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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Slaveski v Smith [2012] VSCA 25
Case
[2012] VSCA 25
Decision Date
CaseChat Overview and Summary
In the matter of Slaveski v Smith, the respondent, a legal aid applicant, faced a criminal trial in the County Court of Victoria. The dispute centred on the respondent's right to legal representation of his choosing at public expense, a contention grounded in the Charter of Human Rights and Responsibilities Act 2006. The respondent argued that his right to a fair trial under the Charter entitled him to choose his counsel, while the appellant, the Director of Public Prosecutions, contested the scope of the Charter's fair trial provisions and the applicability of the Criminal Procedure Act 2009, which governs the provision of legal assistance.
The court was tasked with determining whether the respondent had a right under the Charter to have counsel of his choice at public expense, and if this right could be enforced by requiring the provision of legal assistance. Additionally, the court needed to consider whether the respondent's conduct in repeatedly dismissing counsel provided by Victoria Legal Aid was a pertinent factor in deciding whether to grant him further legal assistance. The interpretation and interplay of the Charter's fair trial provisions with common law fair trial rights and the applicability of the Criminal Procedure Act's legal assistance provisions were also pivotal to the decision.
The County Court held that the respondent's right to a fair trial under the Charter did not necessarily entitle him to choose his counsel at public expense. The court reasoned that the Charter's provisions did not override the common law fair trial rights, and therefore, the respondent's right to legal representation of his choosing was not absolute. Furthermore, the court found that the respondent's conduct in repeatedly dispensing with counsel provided by Victoria Legal Aid was a relevant consideration in determining whether to grant him further legal assistance. The court concluded that the respondent's actions demonstrated a pattern of disregard for the legal process, which justified denying him the requested legal assistance.
The court ordered that the trial proceed without the provision of legal assistance to the respondent, upholding the decision of the Director of Public Prosecutions. The County Court emphasised that while the Charter's provisions were important, they did not override the existing legal framework governing fair trials and legal aid. The court also noted that the respondent's conduct in repeatedly dismissing counsel provided by Victoria Legal Aid was a relevant consideration in the decision-making process. The trial proceeded as scheduled, with the respondent unrepresented.