Slaveski v Smith
[2012] VSCA 25
•29 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2010 0101 | |
| LJUPCO SLAVESKI | Appellant |
| v | |
| PAUL SMITH | First Respondent |
| and | |
| VICTORIA LEGAL AID | Second Respondent |
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| JUDGES | WARREN CJ, NETTLE and REDLICH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 2 February 2012 |
| DATE OF JUDGMENT | 29 February 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 25 |
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CRIMINAL LAW – Trial – Legal aid – Fair Trial – Human rights – Whether accused having right under Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) to counsel of choice at public expense – Relationship between Charter right to fair trial and right to fair trial at common law – Power to adjourn or stay trial in aid of rights to legal aid and fair trial – Momcilovic v R (2011) 280 ALR 221; Dietrich v The Queen (1992) 177 CLR 292, considered; Perotti v Collyer-Bristow [2004] 2 All ER 189, applied – Human Rights and Responsibilities Act 2006, ss 7(2), 24(1) and (2), 25(2)(d) and (f) and 32(1).
Criminal Procedure – Power to order provision of legal assistance under s 197 of Criminal Procedure Act 2009 – Whether power applies otherwise than to trial on indictment – Criminal Procedure Act 2009, s 197.
Legal Aid – Whether accused’s conduct in repeatedly dispensing with counsel provided by way of legal assistance by Victoria Legal Aid a relevant consideration in determining whether to grant accused further legal assistance – Legal Aid Act 1978, ss 24(1) and (2) and 25(2)(d) and (f)
Words and phrases – ‘Trial’.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr E W Coady (Appearing as Duty Barrister) | Victorian Bar Duty Barrister Scheme |
| For the First Respondent | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Second Respondent | Mr S Holt with Mr M E Dempsey | Victoria Legal Aid |
WARREN CJ
NETTLE JA
REDLICH JA:
On 2 August 2010, his Honour Judge Gullaci of the County Court referred the following questions of law to this Court pursuant to s 33(1)(b) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’):
(1) Does s 25(2)(f) of the Charter require that the word ‘trial’ in s 197 of the Criminal Procedure Act 2009 be interpreted to include the trial of an indictable matter heard on appeal from the Magistrates’ Court, so as to permit a County Court judge in an appropriate case to order Victoria Legal Aid to provide free legal aid?
(2) Does s 25(2)(f) of the Charter operate to afford an enforceable right to legal representation to a person who is eligible upon criteria of the Legal Aid Act 1978, independent of the exercise of any discretion by Victoria Legal Aid under the Legal Aid Act 1978?
(3) Does the right to a fair trial pursuant to s 24(1) of the Charter operate to include the right to be legally represented?
The circumstances in which the questions have arisen
The plaintiff was charged with an offence of making threat to kill, which is an indictable offence, but was tried summarily in the Magistrates’ Court pursuant to s 25 of the Magistrates Court Act 1989. Following a hearing which lasted several days, he was convicted and sentenced to a term of imprisonment to be served by way of Intensive Correction Order.
From his conviction, he appealed to the County Court pursuant to s 83 of the Magistrates’ Court Act. He was granted legal aid. The appeal was first listed to be heard on 11 February 2008 but was adjourned for hearing to 26 May 2008. When the matter came on for hearing on that day, the plaintiff’s counsel withdrew and thus the matter was adjourned for hearing to 29 April 2009. When the matter came on for hearing on 29 April 2009, the plaintiff was represented by other counsel, but after a disagreement that counsel sought and was granted leave to withdraw. Thus the matter was refixed for hearing on 23 November 2009.
In the meantime, Victoria Legal Aid (VLA) revoked the plaintiff’s grant of legal aid in this and an unrelated proceeding because he refused to follow reasonable advice and was in breach of the terms of his grant of legal assistance. When the present matter came on for hearing on 23 November 2009, the plaintiff appeared unrepresented. He also objected to the judge who had been assigned to hear the case. Hence, the matter was referred for hearing to Judge Gullaci on 12 April 2010.
When the matter came before Judge Gullaci on 12 April 2010, the plaintiff again appeared unrepresented and stated that he would defend the case in person. His Honour, however, took the view that the plaintiff would be ‘seriously disadvantaged’ by his lack of legal representation, and the prosecutor stated that he agreed it was in the interests of justice that the plaintiff be represented. Then the plaintiff stated that he wished to be legally represented.
The judge invited a representative of VLA to come to court and asked if further legal aid could be provided. The representative replied that, because of the plaintiff’s repetitive behaviour in discharging previous counsel, VLA was not prepared to provide further legal aid. The judge invited VLA to reconsider its position in view of what his Honour considered to be the analogy between the circumstances of the refusal of legal aid in this case and the circumstances to which s 197 of the Criminal Procedure Act 2009 is directed.
Section 197 of the Criminal Procedure Act provides:
Order for legal representation for accused
(1) In this section –
private law practice has the same meaning as in the Legal Aid Act 1978; private legal practitioner has the same meaning as in the Legal Aid Act 1978.
(2)Subject to subsection (3) and despite any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.
(3) If a court is satisfied at any time that –
(a)it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b)the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial -
the court may order Victoria Legal Aid to provide legal representation to the accused, on any conditions specified by the court, and may adjourn the trial until that legal representation has been provided.
(4)Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (3).
(5) Despite anything to the contrary in subsection (3) –
(a) if the court is satisfied that, in relation to the trial, the accused has engaged in vexatious or unreasonable conduct that has contributed to the accused's inability to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial, the court may refuse to make an order under subsection (3);
(b) the legal burden of proof for the purposes of subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation rests on the accused;
(c) for the purposes of proving under subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation, regard must be had to property –
(i)that is subject to the effective control of the accused (whether or not the accused has an interest in it); or
(ii)in which the accused has an interest – as determined in accordance with section 9 or 10 of the Confiscation Act 1997:
(d) the conditions that may be specified by the court under subsection (3) do not include conditions relating to the identity, number or remuneration of persons representing the accused.
(6)A court must give Victoria Legal Aid an opportunity to appear and be heard before an order is made under subsection (3).
(7)Despite anything to the contrary in this or any other Act, Victoria Legal Aid may appeal to the Court of Appeal, if the Court of Appeal gives leave to do so, from an order under subsection (3) made by the Trial Division of the Supreme Court constituted by a Judge.
VLA replied that it declined to provide legal aid because it considered that s 197 did not apply to an appeal from the Magistrates’ Court. It said that the plaintiff had previously been granted legal aid because it was considered that he was ‘eligible’ but that, by his subsequent conduct in dismissing counsel retained to represent him, he had rendered himself ineligible. It was not in issue that at common law the plaintiff had no enforceable right to have VLA provide legal representation.
The plaintiff then questioned whether he was entitled to legal representation under the Charter.
Should the Questions be Answered?
Before turning to each of the questions it is necessary to address the threshold contention of VLA ‘that it is not clear from the material before this Court that the answers to the questions will genuinely assist the County Court to determine specific issues between the parties’. Relying upon the decision of this Court in De Simone v Bevnol Constructions and Development Pty Ltd[1] it was submitted that the questions raised were hypothetical and did not resolve any issues between the parties.
[1][2010] VSCA 231.
During the course of oral argument, VLA conceded that Question 1 did relate to an order that the County Court had in contemplation and which was amenable to an answer in this Court. It was further accepted that although the issue the subject of Question 3 had not been explicitly raised in the proceedings, the answer to it would inform the answer to Question 1. The argument was maintained, however, that we should not answer Question 2 as it did not arise for resolution in these proceedings, as the County Court could not have declared that the applicant was eligible for legal aid or ordered that VLA grant him legal aid.
True it is that, were Question 2 to be answered in the affirmative, Judge Gullaci could not have made either of these orders; but one must allow that his Honour may adjourn the proceedings to enable the applicant to proceed by way of Mandamus or other relief, to enforce his entitlement. For these reasons we consider each Question should be answered.
Question 2: Right to Legal Aid under s 25(2)(f) of the Charter
It is convenient to deal first with the scope of the right to legal aid under the Charter. Although the Question refers to s 25(2)(f) of the Charter, VLA submitted during the appeal that s 25(2)(d) of the Charter was the more relevant provision having regard to the purpose of the Question. It is convenient to consider both sub-sections in answering the Question.
Section 25 of the Charter provides for rights in criminal proceedings. Section 25(2)(d) and (f) state:
A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees:
(d)to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978;
(f)to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978.
…
The criteria set out in the Legal Aid Act appear in s 24 of the Act, as follows:
Circumstances in which legal assistance may be provided
(1) VLA may provide legal assistance to a person if—
(a) in its opinion the person is in need of that legal assistance by reason that he is unable to afford the full cost of obtaining from a private legal practitioner the legal services in respect of which the legal assistance is sought; and
(b) it is reasonable having regard to all relevant matters to provide the legal assistance.
(2)In the making of a decision whether legal assistance shall be provided to a person charged with—
(a) an indictable offence;
(b)a summary offence in circumstances where the person could have been proceeded against for the same offence by indictment; or
(c)an indictable offence which by consent has ceased to be indictable—
if VLA is of opinion that it is desirable in the interests of justice that the person should have legal representation, regard shall be had only to the matters referred to in paragraph (a) of subsection (1).
(2A)In the making of a decision whether legal assistance is to be provided to a person who is subject to a supervision order under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (including a person who is deemed to be subject to a custodial supervision order by force of clause 2 of Schedule 3 to that Act) in relation to any proceeding under that Act with respect to that supervision order, VLA is to have regard only to the matters referred to in subsection (1)(b).
(3)In the making of a decision whether a person is in need of legal assistance by reason that he is unable to afford the full cost of obtaining from private legal practitioners the legal services in respect of which the legal assistance is sought, regard shall be had to all relevant matters, including the following matters—
(a) the income of the person;
(b)the cash that is readily available to the person or can be made so available;
(c)the debts, liabilities and other financial obligations of the person;
(d)the cost of living in the locality in which the person resides;
(e)the cost of obtaining the legal services from private legal practitioners; and
(f)any other matters affecting the ability of the person to meet the full cost of obtaining the legal services from private legal practitioners—
but, without limiting the generality of the preceding provision of this section—
(i) ***
(ii)the assets and financial circumstances of a person who is involved only in a representative, fiduciary or official capacity—
shall not be taken into account as affecting the ability of the person to meet the cost of obtaining the legal services from private legal practitioners.
(4)In the making of a decision whether it is reasonable in all the circumstances to provide legal assistance to a person, regard shall be had to all relevant matters, including—
(a)the nature and extent of any benefit that may accrue to the person, to the public or to any section of the public from the provision of the assistance or of any detriment that may be suffered by the person, by the public or by any section of the public if the assistance is not provided;
(b)in the case of assistance in relation to a proceeding in a court other than a criminal appeal—whether the proceeding is likely to terminate in a manner favourable to the person; and
(c)in the case of assistance in relation to a criminal appeal—whether there are reasonable grounds for the appeal.
(5)Except where a reciprocal arrangement is made pursuant to section 7(e) with another legal aid commission, legal assistance shall not be provided under this Act to a person who is not ordinarily resident in the State unless the assistance relates to—
(a) a proceeding in a court in the State; or
(b) a matter arising under the law in force in the State.
(6)Legal assistance shall not be provided under this Act to a person in or in connexion with a review under Part VI.
(7) This section is subject to any legal aid arrangement.
Section 24(1) is cast in terms of a discretion. It provides for the circumstances in which VLA may provide legal assistance rather than that VLA shall or must provide legal assistance. Other provisions of the Act also imply that s 24(1) is intended to be discretionary:
(1) Section 41 provides for the establishment of a Legal Aid Fund and for the fund to be comprised principally of such moneys as are made available by the State and Commonwealth for the purposes of legal aid. There is nothing in terms which requires the State to provide any amount, still less to provide whatever amount may be necessary to meet all just claims for legal assistance.
(2) Section 7, sets out the duties of VLA and requires VLA to ‘have regard to the amount of money for the time being standing to the credit of the fund’ (s 7(k)) and to ‘determine or vary priorities in the provision of legal aid as between classes of persons and classes of matters or both’ (s 7(c)(i)).
(3) Section 9 provides that VLA ‘must determine, having regard to funds available … guidelines in relation to the provision of legal aid and, in particular, guidelines to be applied in … the application of s 24…’.
(4) Section 12 provides for the role of the board of VLA and requires the board to ‘determine the policies, priorities and strategies of VLA’.
(5) Section 12M provides that the Attorney-General may give to the board written directions in relation inter alia to the policies, priorities or guidelines of VLA.
There are some statutory exceptions to the apparently discretionary nature of VLA’s power to grant legal assistance, but they are limited. Parliament has legislated in precisely focused terms, in ss 197 and 357 of the Criminal Procedure Act 2009, s 143 of the Confiscation Act 1997 and ss 71 and 72 of the Family Violence Protection Act 2008, to impose an unconditional obligation on VLA to provide legal assistance in the limited circumstances to which those provisions apply. Those provisions do not apply in this case.
It is necessary then to consider s 32 of the Charter. It provides that:
32 Interpretation
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(3) This section does not affect the validity of—
(a)an Act or provision of an Act that is incompatible with a human right; or
(b)a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.
One must also have regard to s 7(2) of the Charter. It states that:
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
The operation of ss 32(1) and 7(2) was recently considered by the High Court in Momcilovic v R.[2] So far as s 32(1) was concerned, French CJ,[3] Crennan and Kiefel JJ[4] and Gummow J, Hayne J and Bell J each held in separate judgments[5] that s 32(1) does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky Inc v Australian Broadcasting Authority.[6]
[2](2011) 280 ALR 221 (‘Momcilovic’).
[3]Ibid [18] and [51] (French CJ).
[4]Ibid [544], [565] and [566] (Crennan and Kiefel JJ).
[5]Ibid [170] (Gummow J), [280] (Hayne J) and [684] (Bell J).
[6](1998) 194 CLR 355.
Their Honours did not achieve the same degree of consensus as to the effect of s 7(2). The Court of Appeal in Momcilovic held that the interpretative task under s 32 does not involve the application of s 7(2), which needs to be considered only for the purposes of making a declaration of inconsistent interpretation under s 36.[7] In the High Court, French CJ, Crennan and Kiefel JJ concluded that s 7(2) ‘cannot inform the interpretative process which s 32(1) mandates’ but is engaged only when and if ‘the statutory provision under consideration imposes a limit on its enjoyment’.[8] ‘[I]t cannot be interpreted into the content of the rights and freedoms set out in the Charter’.[9] In contrast, Gummow, Hayne and Bell JJ held that s 7(2) does inform the interpretative task to the extent that it will usually be appropriate for a court first to consider whether under s 7(2) there is scope for a justified limitation of the right in issue.[10] It followed, as Gummow J put it, that ‘[s]ection 32(1) is directed to the interpretation of statutory provisions in a way which is compatible with the human right in question, as identified and described in Part 2, including, where it has been engaged, s 7(2).[11] Heydon J observed that, if s 7(2) were valid, it would inform the interpretative task,[12] but his Honour held that both s 7(2) and s 32(1) were invalid.
[7]R v Momcilovic (2010) 25 VR 436, [105]–[110].
[8]Momcilovic v The Queen (2011) 280 ALR 221, [35] (French CJ), [572]–[574] (Crennan and Kiefel JJ).
[9]Ibid [35] (French CJ).
[10]Ibid [166] (Gummow J).
[11]Ibid [168] (Gummow J).
[12]Ibid [408]–[409], [439] (Heydon J).
Hayne and Heydon JJ both dissented with respect to the final orders and Heydon J also dissented on the question of whether the appeal should be allowed. It is unnecessary to decide whether, in these circumstances, the Court of Appeal is bound to follow its own decision in Momcilovic unless satisfied that it is clearly wrong.[13]
[13]Green v The Queen [2011] HCA 49, [83]–[87] (Heydon J); Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151 [135]; Brodie v Singleton Shire Council (2001) 206 CLR 512, 562 [112] (Gaudron, McEwan and Gummow JJ); Federation Insurance Ltd v Wasson (1987) 163 CLR 303, 314.
Putting aside the disparity of views as to the application of s 7(2), it nonetheless emerges from Momcilovic that the effect of s 32(1) is limited. It requires:
statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) [thus] applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application…[14]
[14](2011) 280 ALR 221, [51] (French CJ).
Consequently, if the words of a statue are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.[15]
[15]Ibid [40]–[50] (French CJ).
We approach the construction of s 24(1) of the Legal Aid Act on that basis.
According to ordinary principles of statutory interpretation, it is permissible to read ‘may’ as meaning ‘shall’ or ‘must’ where the particular context of words and circumstances make it apparent that Parliament intended a statutory power to be exercised in a particular way in certain events.[16] The question here is whether Parliament intended by s 25(2)(d) or (f) of the Charter to convey that VLA must always exercise the power to grant legal aid favourably to an applicant wherever the applicant satisfies the requirements of s 24(1)(a) of the Legal Aid Act.
[16]Julius v Bishop of Oxford (1879–80) 5 App Cas 214, 222–3; Finance Facilities Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134–7.
We do not consider that it was Parliament’s intention to bring about that result. There are five reasons:
(1) First, as a matter of textual analysis, to construe s 25(2)(d) and (f) as having that effect would be to read their terms as if they were absolute and unqualified rather than, as they are, expressly conditioned upon the existence of an entitlement to legal assistance under the Legal AidAct. The wording of s 25(2)(e) further supports that view.
(2) Secondly, as a matter of purposive construction, to construe the sub-sections as imposing an obligation on VLA to provide legal assistance would run counter to Parliament’s apparent statutory intention of empowering VLA to determine as a matter of discretion its priorities for the application of a limited fund between competing demands for legal assistance. The circumstances in which legal aid may be provided under the Legal Aid Act depend upon VLA being of opinion that the person needs legal representation and that it is reasonable to make such provision[17] or, in the case of indictable offences, being of opinion that it is desirable in the interests of justice that they should have legal representation.[18]
[17]s 24 (1).
[18]s 24 (2).
(3) Thirdly, bearing in mind that Parliament has provided in express and precisely focussed terms for a select range of circumstances in which VLA may not refuse to provide legal assistance, it is unlikely that Parliament intended by means of the broad and comparatively imprecise terms of s 25(2)(d) and (f) of the Charter to impose an unqualified obligation to provide assistance in the circumstances specified in s 24(1) of the Legal Aid Act.
(4) Fourthly, there is no certainty that VLA will always, if ever, have sufficient funds with which to provide legal aid in cases where an applicant satisfies the requirements of s 24(1) of the Legal Aid Act. Hence, to read ‘may’ as ‘must’ in that section would be to expose VLA to a requirement which could prove financially impossible of achievement.
(5) Fifthly, the Explanatory Memorandum to the Charter states that the Charter was not intended to confer any greater right to legal aid than already existed under the Legal Aid Act before the coming into force of the Charter. The Explanatory Memorandum states:
Clause 25: In relation to legal assistance, references have been made in sub-clause (2)(d), (e) and (f) to the Victorian Legal Aid Act 1978. It is Parliament’s intention that any rights to legal assistance contained in the Charter are consistent with existing rights under that Act.
In summary, the power conferred on VLA by s 24(1) of the Legal Aid Act is in terms discretionary; the apparent statutory purpose of the section is that the power be discretionary; and the qualified conditional terms of s 25(2)(d) and (f) of the Charter imply that it was not intended to alter that position. In our view, the Charter does not seek to extend the obligation to grant legal aid beyond the discretionary power conferred by the Legal Aid Act.
It follows that Question 2 should be answered by saying that the rights of a person to legal representation accorded by s 25(2)(d) and (f) of the Charter are conditional upon the person being eligible for legal representation under the Legal Aid Act; and that, insofar as the person’s eligibility for legal assistance under the Legal Aid Act is dependent upon a favourable exercise of discretion by VLA, neither s 25(2)(d) or (f) confers an entitlement to legal assistance independent of the exercise of discretion by VLA.
Compliance with s 24(2) of the Legal Aid Act
A question arose in the course of oral argument as to how s 24(2) of the Legal Aid Act might affect VLA’s decision as to whether legal assistance should be provided. As has been noted, the plaintiff was charged with an indictable offence which by consent ceased to be indictable. Consequently, if VLA were of opinion that it was ‘in the interests of justice’ that the plaintiff be provided with legal assistance, s 24(2) would have required that VLA have regard only to the matters referred to in s 24(1)(a).
If VLA had determined not to grant further legal assistance because it did not consider it reasonable to do so having regard to all relevant matters within the meaning of s 24(1)(b), it would have acted contrary to s 24(2) and therefore unlawfully by having regard to matter referred to in s 24(1)(b) in a way that was incompatible with the right to legal aid conferred by s 25 of the Charter.
In cases which do not fall within s 24(2), so that VLA is required under s 24(1)(b) to consider whether it is reasonable in all the circumstances to provide legal assistance to a person, s 24(4) sets out criteria to which VLA must have regard. They include in ss 24(4)(b) and (c) the chances of success of the person in the proceeding in respect of which legal assistance is sought. Where s 24(2) applies, VLA is not required to have regard to the criteria referred to in s 24(4) and so need not necessarily take into account the person’s chances of success.
In VLA’s submission, s 24(2) should thus be seen as providing for cases where VLA considers it is in the interests of justice for a person to be represented regardless of the person’s chances of success, in order to ensure that justice is seen to be done or because the person cannot meaningfully participate in the proceeding due to mental illness or some other comparable condition. As such, VLA contended, s 24(2) does not limit VLA’s discretion to grant or withhold legal assistance out of a necessarily limited legal aid fund in accordance with VLA’s policies, priorities and guidelines.
VLA did not refer in their submissions to the criteria identified in s 24(4)(a), which include the nature and extent of any benefit likely to flow to the person, the public or any section of the public if assistance is provided and any detriment that may be suffered by the person, the public or any section of the public if assistance is not provided. The effect of s 24(2) is that, where it applies, VLA must not have regard to those matters when determining whether to grant legal assistance. On one possible view of the provision, it precludes VLA taking into account any benefit or detriment to the person or the public that might result from the grant or refusal of legal assistance. If so, VLA’s discretion to grant or refuse assistance would be more circumscribed than counsel would allow. In turn, that may bear upon the content and application of VLA’s policies and guidelines.
In our view, however, that is not so. In terms, s 24(4)(a) is directed only to the determination under s 24(1)(b) of whether it is reasonable in all the circumstances to provide legal assistance. It does not expressly restrict the criteria to which VLA may have regard for the purposes of s 24(1)(a) when deciding whether in VLA’s opinion it is desirable in the interests of justice that the person should have legal assistance. Nor do we think that s 24(2) implies that criteria mentioned in s 24(4)(a), (b) or (c) are excluded from the range of considerations to which VLA may have regard in forming an opinion as to the interests of justice. Logically, one or more of the matters mentioned in s 24(4) might well be relevant to an appreciation of the interests of justice in a given case. That being so, it is unlikely that Parliament intended by the express mention of these things in s 24(4) to exclude those matters from consideration when considering the interests of justice.
As far as can be told from Judge Gullaci’s statement of facts, VLA is or was of opinion that it was ’desirable in the interests of justice’ that the plaintiff should have legal representation and was thereby satisfied as to the requirements of s 24(1)(a). Hence, the initial grant of aid.
It seems, from what the VLA representative told Judge Gullaci, that the reason VLA withheld further legal assistance was because of the manner in which the plaintiff had treated counsel previously made available by VLA. The factual basis for the termination was always clear. VLA terminated aid because the plaintiff had refused to follow reasonable advice and was in breach of the terms of his grant of legal assistance.[19]
[19]See [4] above.
One must consider whether, because the plaintiff was provided with legal assistance and then dispensed with it, VLA was entitled to conclude that it ceased to be ‘in the interests of justice’ that he be provided with legal assistance.[20] There is some support for that view in the decision of the New Zealand Court of Appeal in R v Page.[21] The defendant there had the opportunity to be represented and had dispensed with the services of a number of legal practitioners. It was held that there was no breach of his rights to representation under the New Zealand Bill of Rights Act 1990.
[20]s 24(2).
[21](2000) NZCA 75.
VLA submitted that although the plaintiff had been found eligible for aid, the plaintiff could no longer be considered eligible for legal assistance when aid had been terminated pursuant to s 29 in accordance with the Guidelines promulgated by the Board under s 9. It submitted that Question 2 wrongly assumes that the status of eligibility cannot be affected by a person’s conduct with respect to the terms and conditions of a grant of assistance.
We conclude that s 24(2) does not exclude the fact that the plaintiff responded as he did to previous grants of legal assistance from the range of considerations to which VLA may have regard for the purposes of determining whether in VLA’s opinion it is in the interests of justice for further legal assistance to be granted to the plaintiff. Of course, whether it should be taken into account and the weight which it should be given are matters to be decided in the opinion of VLA, subject to judicial review.[22]
[22]Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 336, 360.
In supplementary submissions filed by leave of the Court following the conclusion of oral argument, VLA contended that the termination of aid under the express power conferred by s 29 of the Act meant that s 24(2) had no application as the refusal was not based on s 24(1)(b) reasonableness grounds. The submission further implies that the refusal of further aid did not rest upon any opinion of VLA that it was no longer ’in the interests of justice’ to provide legal representation to the plaintiff.
That does not appear to be the way, however, in which the refusal of further assistance was sought to be justified below. The contention that s 24 has no application to a decision to terminate aid under s 29 was not previously asserted during oral submissions and was not amplified in the supplementary submission. It is not a question of law which has been referred to us for decision. Accordingly, beyond the view we have already expressed, we say nothing further about the possible interrelationship between ss 24 and 29.
Question 1: The meaning of s 197 of the Criminal Procedure Act
We turn to Question 1. The word ‘trial’ is not defined in the Criminal Procedure Act but it is implicit that ‘trial’ in s 197 means a trial on indictment before a jury. Section 197 appears in Part 5.5 of Chapter 5 of the Criminal Procedure Act. Chapter 5 is headed ‘Trial on Indictment’ and s 158 provides that Chapter 5 applies if an accused is committed for trial under Chapter 4 (by a Magistrate following a committal hearing) or a direct indictment is filed against the accused. Part 5.5 of the Act is directed to the steps to be undertaken in preparing for a trial before a jury.
Appeals from the Magistrates’ Court to the County Court are dealt with separately in Chapter 6 of the Act and there is no provision in Chapter 6 like s 197. The inclusion of s 197 in Chapter 5 and the absence of a corresponding provision from Chapter 6 implies that it was not intended that a judge have the same power to order legal aid with respect to an appeal from the Magistrates Court as is conferred
by s 197 in relation to a trial on indictment. In effect, the position remains much as it was under s 360A of the Crimes Act 1958, on which s 197 is based.[23][23]R v Rich [1998] 4 VR 44, 47 (Brooking JA).
We earlier referred to the way in which an Act of the Victorian Parliament is to be construed in light of s 32 of the Charter. As noted, s 32 applies in the same way as the principle of legality with a wider field of application. It does not authorise a process of interpretation which departs from established understandings of the process of construction. Although it may serve as a guide as to which of two possible constructions is to be preferred, it does not allow the reading in of words which are not explicit or implicit in a provision, or the reading down of words so far as to change the true meaning of a provision.
In this case, the grammatical or syntactical meaning of s 197 is clear. It applies to trials on indictment before a jury. The context in which the section appears, and the absence of comparable provisions from parts of the Act dealing with other kinds of proceedings, support the conclusion that s 197 does not apply to appeals to the County Court from the Magistrates Court. In those circumstances, to hold that s 197 extends to appeals to the County Court from the Magistrates Court would be to depart from established understandings of the process of construction.
It follows that Question 1 should be answered: No.
Question 3: The right to a fair trial under s 24(1) of the Charter
It remains to determine whether, apart from s 25(2)(d) or (f) of the Charter, there is a right to legal aid under s 24(1) of the Charter because a fair trial cannot be had without legal representation. Section 24 provides that:
A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Section 24(1) is similar to art 6(1) of Schedule 1 to the Human Rights Act 1998 (UK) (‘the Convention’), which provides that:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
The European Court of Human Rights and the English Court of Appeal have each held that one aspect of the right to a fair hearing for which art 6(1) provides is effective access to the courts and that, in the case of a litigant who is not legally represented, the question of whether the litigant has effective access to a court depends on whether the litigant’s appearance before the court without the assistance of a lawyer would be effective, in the sense that the litigant would be able to present his or her case properly and satisfactorily.
In Perotti v Collyer-Bristow,[24] the English Court of Appeal dealt with the question of whether art 6(1) of the Convention entitled a civil litigant to a grant of legal aid. Chadwick LJ, who delivered the principal judgment, said:
…the obligation on the state to provide legal aid arises if the fact of presenting his own case can be said to prevent him from having effective access to the courts. But a litigant who wishes to establish that without legal aid his right of effective access will have been violated has relatively high threshold to cross.
It is, in my view, important to have in mind that however much this court, and indeed any other court, would welcome the assistance that can be given by a legally qualified and competent advocate, the test is not whether (with such assistance) this court would find it easier to reach the decision which it has to reach on the facts of the case. This court, and other courts, have ample experience of cases in which the material is not presented in an ideal form; and have not found it impossible to reach just decision in such cases. The test under art 6(1), as it seems to me, is whether a court is put in a position that it really cannot do justice in the case because it has no confidence in its ability to grasp the facts and principles of the matter which it has to decide. In such a case it may well be said that a litigant is deprived of effective access; deprived of effective access because, although he can present his case in person, he cannot do so in a way which well enable the court to fulfil its paramount and over-arching function of reaching a just decision. But it is the task of courts to struggle with difficult and ill-prepared cases; and courts do so every day. It is not sufficient that the court might feel that the case could be presented better; the question for the court is whether it feels that the case is being, or will be, presented in such a way that it cannot do what it is required to do – that is to say, reach a just decision. If it cannot do that the litigant is effectively deprived of proper access to the courts.
[24][2004] 2 All ER 189, 196–7 [31]–[32].
Given the similarities between s 24(1) of the Charter and art 6(1) of the Convention, we are disposed to construe s 24(1) of the Charter in similar fashion.[25] In that sense, it may be said that s 24(1) creates a right to legal representation in limited circumstances. It is, however, no more than reflective of the position at common law. An indigent person does not have a right at common law to be represented at the State’s expense on a serious criminal offence. He has a right to a fair trial, more accurately expressed in negative terms as a right not to be tried unfairly. Depending upon the circumstances of the particular case, including the background of the person, lack of representation may mean that the person is unable to receive a fair trial.[26]
[25]Charter of Human Rights and Responsibilities Act 2006, s 32(2).
[26]Dietrich v The Queen (1992) 177 CLR 292, 311 (Mason CJ, McHugh J).
Moreover, where such circumstances exist, so that a right to representation is enlivened, it is not the sort of right which is capable of enforcement by order for the provision of legal assistance. Perforce of the conditional terms of s 25(2)(d) and (f) of the Charter, it is subject to the establishment of an entitlement to legal assistance under the Legal Aid Act. The only means of direct enforcement of such an entitlement are by way of judicial review.
Of course, a trial judge would not be powerless to prevent an infringement of the Charter right to a fair trial which results from a lack of legal representation.[27] As with a breach of the common law right to a fair trial which results from a lack of legal representation, the judge would have power to grant an adjournment or order a stay of proceedings.[28] But a stay is an extraordinary remedy. A proceeding should only be stayed on that basis if the judge is truly satisfied that, without legal representation, the accused will not receive a fair hearing.[29]
[27]We note that in De Simone v Bevnol Constructions & Developments Pty Ltd [2009] VSCA 199 the Court of Appeal held that ‘ss 24 and 25 [of the Charter] apply directly to courts and tribunals, when they exercise their functions’: at [52]; see also De Simone v Bevnol Constructions and Developments Pty Ltd [2010] VSCA 231.
[28]Ibid.
[29]Ibid.
According to Judge Gullaci’s statement of facts, the plaintiff may be seriously disadvantaged in the conduct of his appeal by reason his lack of legal representation. Even if that is so, however, it does not necessarily follow that the plaintiff cannot get a fair hearing of his appeal without legal representation. Indeed, it would be surprising if he could not. As was remarked in Perotti v Collyer-Bristow,[30] the courts have ample experience of cases in which the material is not presented in an ideal form and yet finding it possible to reach a just decision.
[30][2004] 2 All ER 189, 196–7 [32].
Certainly, it is more difficult for a court to do justice when a party is unrepresented and it is usually slower and more stressful for litigants. Often, too, a lack of legal representation means that a party’s defence is not put as completely or otherwise as well as it might be by counsel. A trial of that kind is imperfect. But a trial does need to be perfect to be fair. As Brennan J explained in Dietrich,[31] it is only where the lack of representation results in a miscarriage of justice that the trial is unfair:
The procedure of the criminal courts is designed to produce as fair a trial as practicable in the circumstances of each case. Where an accused person is unrepresented, a particular burden is placed on the trial judge to ensure that the trial is fair.[32] And if, through want of legal representation, some error occurs in the conduct of the trial which occasions a substantial miscarriage of justice, a conviction must be set aside. But the rhetoric that a trial must be fair before a conviction can properly be recorded is true only to the extent that unfairness leads to a miscarriage of justice. The legal question then is not whether a trial has been unfair according to community values but whether it is unfair in the sense that it has not taken place according to law. A miscarriage of justice may consist in a failure to adopt a lawful procedure which would have ensured fairness to an accused person or would have eliminated unfairness to him, but it cannot consist in failing to adopt a procedure which the court has no power to adopt.
[31](1992) 177 CLR 292, 325 (in diss, but not on this point).
[32]See, eg, MacPherson v The Queen (1981) 147 CLR 512, 546–547.
Absent circumstances of the kind described in Dietrich,[33] a judge should be hesitant to conclude that a lack of legal representation will preclude the court from reaching a just decision. Especially is that so where the hearing is before judge alone with the consequence that errors in relation to evidence and otherwise can effectively be corrected. Most times in such cases, the court is able to rise to the occasion by ensuring that justice is done despite the extra difficulties which the absence of representation entails. The circumstances would need to be very exceptional for an absence of legal representation in an appeal against conviction from the Magistrates’ Court to the County Court to warrant a stay of proceedings.
[33](1992) 177 CLR 292, 315 (Mason CJ and Mc Hugh J).
In the first instance, it will be for Judge Gullaci to determine whether the plaintiff’s lack of legal representation would preclude a fair trial. The decision whether to grant an adjournment or a stay is to be made in the exercise of the judge's discretion, by asking whether the hearing is likely to be unfair if the plaintiff is forced on unrepresented. If his Honour comes to the view that he cannot reach a just decision without the plaintiff being legally represented, then he may be warranted by s 24(1) of the Charter, just as at common law, in staying the appeal until legal representation is provided. Relevant, however, to such a decision is the proposition that a criminal proceeding will not be unfair if the defendant is unrepresented because he persistently neglects or refuses to take advantage of legal representation which is available.[34] We emphasise that it is a question which his Honour will need to consider with care.
[34]Ibid 336 (Deane J) (citations omitted).
Conclusion
For the reasons we have given, we answer the questions earlier set out, as follows:
(1) Question 1: No.
(2) Question 2: The right of a person to legal representation accorded by s 25(2)(f) of the Charter is conditional upon the person being eligible for legal representation under the Legal Aid Act. Insofar, therefore, as a person’s eligibility for legal assistance under the Legal Aid Act is dependent upon a favourable exercise of discretion by VLA, s 25(2)(f) does not confer an entitlement to legal assistance independent of the exercise of discretion by VLA.
(3) Question 3: Yes, but only if the absence of legal aid would preclude the court from reaching a just decision.
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