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Criminal Court of Appeal decision highlights challenges of underfunding legal aid in NSW

Tue Sep 25 2018
Law reform and public affairs

A recent decision by the NSW Court of Criminal Appeal has profiled some of the issues and uncertainties that underfunding of the state’s legal aid system creates for clients, counsel and the courts, the president of the Bar Association, Arthur Moses SC, said today.

The case of Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207 concerned an application to adjourn the DPP’s appeal against a ruling on the rejection of tendency evidence in Martin’s criminal trial. The Court’s practice note provides that such appeals must be heard “as expeditiously as possible” as a trial is pending.

The matter was listed before the Court on 21 September and the trial was the subject of a grant of legal aid to the accused. On 21 September the Court was informed that “trial counsel is not available today to appear on the Director’s appeal because Legal Aid has required that a separate grant be made with respect to the Director’s application in this Court and that, before aid is granted, a “merits advice” will be required from counsel other than trial counsel”.

As that advice was yet to be received, Martin sought an adjournment. The Court noted at [13] that “to refuse the adjournment application would be to cause, potentially, a significant detriment to the accused and the respondent to the appeal” as “He would be left without counsel through no fault of his own”. The matter was relisted for hearing on 5 October 2018.

In its judgment, the Court raised two important issues regarding the management and impact of the legal aid system. First, in relation to Legal Aid’s processes, Basten JA noted at [5]-[7] that:

The requirement of the Legal Aid Commission that a grant of aid will depend upon the obtaining of merits advice from counsel other than trial counsel appears, on its face, to defy rational explanation. It is one thing to impose such a condition where the accused is the applicant who seeks to review an adverse interlocutory ruling of the trial court; it makes very little sense to impose such a requirement where the accused has been successful at trial and seeks to retain the fruits of his success. The Registrar of the Court has communicated with the Legal Aid Commission in relation to this issue. Nevertheless, the Commission has confirmed that the requirement stands.

The Legal Aid Commission is staffed, relevantly for present purposes, by trained lawyers who work on a daily basis with applications for legal aid in indictable criminal matters. If some independent review of a grant to defend an interlocutory ruling were required, it might be expected that that review could be undertaken in-house so that an immediate response could be made to the application. In the alternative, the application might have been considered as simply a continuation of the grant with respect to the trial.

There may be an explanation for the Commission’s stance, but it is not self-evident. Because the Commission’s position has not changed in the face of informal communications from the Court, it is appropriate that this matter be aired publicly in the hope that steps will be taken to avoid this situation arising again.

Second, in relation to the position of Counsel for the accused, Basten JA noted at [9] that the Court was informed that the accused’s “counsel lives on the north coast and has not been prepared to attend the sitting of this Court in Sydney unless fees are guaranteed. The solicitor has no funds to provide such a guarantee and has no grant of legal aid for that purpose”. His Honour stated that:

Without further inquiry and hearing from counsel, it is doubtful whether this is an acceptable response. The offences the subject of the charges are alleged to have been committed in a western suburb of Sydney. The trial is being conducted at Penrith. As a general proposition, the fact that counsel briefed to appear at a trial lives on the north coast of New South Wales and would incur additional expenses in travelling to and from Sydney for the hearing of an interlocutory appeal is not an acceptable reason for non-attendance. (at [10])

...

The issue may not have arisen in the past because the Court would expect trial counsel to be prepared to appear in defence of an interlocutory judgment, particularly where the appeal is dealt with at a time when the trial, had it proceeded, might be expected to still be running. (Indeed, the Court has been informed that if the matter is determined today, the trial will commence next Monday.) There are occasions when counsel is expected to fulfil his or her professional obligations by appearing in circumstances where funding may be uncertain. There must, at least, be a reasonable expectation that legal aid, which had apparently been granted for the trial, would be extended to cover resistance to the current appeal. (at [8])

"This case highlights the problems of our underfunded Legal Aid system, which contributed to this situation,” Mr Moses SC said. “Under-resourcing of legal aid in NSW continues to pose challenges for clients, the victims of crime, witnesses, counsel and the courts in promoting the administration of justice. Delays impact on victims and witnesses who find the trial process stressful, not just the accused. However, despite this I remind Counsel acting in matters to be alert to the concerns outlined by the Court of the Criminal Appeal".

Tonight: Australian Business Volunteers information evening

Tue Sep 25 2018
Wellbeing

The Bar Association's Wellbeing Committee will host a joint information session with Australian Business Volunteers highlighting the opportunities and benefits for members in joining ABV's cohort of professionals and senior business people. The seminar will take place in the Common Room on Tuesday, 25 September at 5.15pm and will be chaired by Kylie Nomchong SC. The special guest speakers will be Sue Kluss, barrister, and Liz Mackinlay, CEO of ABV.

ABV is an expert international aid organisation spearheading inclusive economic growth across the Asia Pacific region. They were established in 1981 by the Australian Government to leverage Australian business expertise for sustainable community development and institutional capacity building. They have over 35 years working in the region delivering more than 5000 development projects.

ABV work exclusively with professionals that have over ten years’ experience, as well as small business owners who are experienced in cultivating entrepreneurship. These professionals provide expertise spanning marketing, regulatory compliance, occupational health and safety and more.

If you have practised in, or have a deep familiarity with, Papua New Guinea, Fiji, the Solomon Islands or other nations in the Asia Pacific, then this program may be of interest to you.

Joining the cohort of volunteers for overseas assignment would have a number of wellbeing and professional benefits for barristers, including giving them a means to take a medium term break from chambers or to transition to retirement.

For more information, contact the coordinator of services and benefits, Chris Winslow.

Message from President Arthur Moses SC

Tue Sep 25 2018
Conduct associated with social media

Dear members,

A number of recent incidents have prompted me to write to remind members that electronic communication - including email and the use of all forms social media - requires the same level of courtesy and professionalism as other more traditional means of communication. This is reflected in the Legal Profession Uniform Conduct (Barristers) Rules 2015. One object of the Rules is to ensure that barristers act in accordance with the general principles of professional conduct. The principles of the Rules state that the Rules are made in the belief that, inter alia, barristers must maintain high standards of professional conduct and that barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues. The Rules provide that a barrister must not engage in conduct which is discreditable to a barrister or likely to diminish public confidence in the legal profession or bring the legal profession into disrepute. The Rules also prohibit conduct which constitutes discrimination, sexual harassment or workplace bullying. Breach of the Rules is capable of constituting unsatisfactory professional conduct or professional misconduct.

Members should be especially vigilant when using methods of communication which are by their nature less formal in tone, such as Facebook, Twitter, blogs, Instagram and other forms of social media. In addition, you should be aware that any comment made online, even in a closed / secret Facebook group, can be shared via a screen shot.

Conduct at functions associated with the Bar Association

The Bar Association organises, or is associated with, a number of social functions to which barristers are invited. I wish to remind members of the need for exemplary conduct when attending such functions. By all means enjoy yourself, but be mindful that your conduct must not cause harm to, or negatively impact, others.

I would like to bring to your attention some provisions of the Barristers’ Rules that you must keep in mind at such events. Under Rule 8 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, a barrister must not engage in conduct which is dishonest or otherwise discreditable to a barrister or is likely to diminish public confidence in the legal profession. In addition Rule 123 of the Barristers Rules provides that a barrister must not in the course of practice, engage in conduct which constitutes discrimination, sexual harassment, or workplace bullying. Both these Rules are relevant to your conduct at such events which are work events. In addition, if the Bar Council suspects on reasonable grounds that a person has committed a serious offence as defined in section 6 of the Legal Profession Uniform Law (NSW)), then section 465 of the Legal Profession Uniform Law (NSW) imposes on the Bar Council an obligation to report the suspected offence (if it has not already been reported) to the police or other appropriate investigating or prosecuting authority.

The fact that your conduct may become the subject of complaint, or referred to the police or other relevant authority, is not in itself the reason why proper behaviour is expected of barristers. However, a general awareness that unacceptable behaviour may lead to these consequences should be borne in mind.

If you feel you are consuming too much alcohol, or not coping with work or other life pressures, a reminder that the facilities of BarCare are available. Jenny Houen may be contacted via telephone on 0427 317 958 or via email: jhouen@barcare.org

Tendency and coincidence evidence

Mon Sep 24 2018
Implications of The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40

The High Court of Australia handed down its unanimous decision in the matter of The Queen v Dennis Bauer (a pseudonym) on 12 September 2018. Stephen Odgers SC and Phillip Boulten SC,together with Chair Gabrielle Bashir SC, will discuss the implications of this judgement for tendency and coincidence evidence on Wednesday, 26 September 2018 at 5.15 in the Common Room. For more information click here.

Contracting Out of Statutory Prohibitions Against Misleading or Deceptive Conduct

Mon Sep 24 2018

On Thursday, 18 October 2018 The Hon JD Heydon AC QC, Richard Scruby SC and Dr Kristina Stern SC will present a CPD titled 'Contracting Out of Statutory Prohibitions Against Misleading or Deceptive Conduct’. The seminar will examine the extent to which it is permissible to contract out of statutory prohibitions against misleading or deceptive conduct and considers whether restrictions against contracting out can be justified on grounds of public policy. For further information, please download the flyer here.

This seminar has been organised by the Commercial Law Section

Funeral arrangements for Ken Horler AM QC

Mon Sep 24 2018
Vale

A celebration of the life of Ken Horler AM QC will be held at St John's Church, 120 Darlinghurst Road, Darlinghurst on Thursday, 27 September 2018 commencing at 3.00 pm. In lieu of flowers, please consider a donation to the Actors Benevolent Fund. A wake will be held at Old Nimrod - The Griffin Theatre Bar, after the memorial.

Current issues in employment and industrial law

Mon Sep 24 2018

The Federal Court of Australia invites practitioners to a Conversation on Current Issues in the Practice of Employment and Industrial Law, hosted by the Hon Justice Mordy Bromberg on Thursday, 25 October 2018 from 5.30pm to 7.00pm (AEDT) in Court 1, Level 21, Queens Square.

There will be three short presentations:

  • Class Actions in Employment and Industrial Law – Kate Eastman SC (NSW Bar) and Alexandra Grayson (Maurice Blackburn)
  • Availability of Judicial Review arising from Dispute Settlement Procedures – Ingmar Taylor SC (NSW Bar) and Kylie Nomchong SC (NSW Bar)
  • The WorkPac Decision of the Full Court – Mark Gibian (NSW Bar) and Alice DeBoos (K&L Gates)

Refreshments will be served at the conclusion of the event. Please RSVP to Ms Elizabeth Sotiriadis at Ea.Brombergj@fedcourt.gov.au by Friday, 19 October 2018.

Video-link will be available at the Federal Court in the following locations:

  • Melbourne: Court 6A, Commonwealth Law Courts, 305 William Street
  • Perth: Court 4, Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue
  • Canberra: Court 1, Nigel Bowen Commonwealth Law Courts Building, Childers Street
  • Brisbane: Court 6, Harry Gibbs Commonwealth Law Courts Building, 119 North Quay
  • Adelaide: Court 2, Roma Mitchell Commonwealth Law Courts Building, 3 Angas Street
  • Darwin: Court 9, Supreme Court Building, State Square

Hike for mental health - Great Wall of China 2019

Mon Sep 24 2018
Philanthropy

A team of barristers ran in this year's City to Surf to raise funds for the Black Dog Institute. If running isn't your thing, consider making a nine-day trek along the Great Wall of China in September-October 2019 to raise urgently needed funds for the Black Dog Institute and help create a mentally healthy world. Learn more here.

Legal Aid NSW criminal law policy

Mon Sep 24 2018
Law reform and public affairs

Legal Aid NSW criminal law policy has been amended to incorporate the changes made by the sentencing reforms. The sentencing reforms abolish suspended sentences and introduce two new community-based sentencing options: community correction orders and conditional release orders, among other changes. The policy amendment applies to applications for legal aid determined on or after 24 September 2018. More information is available in Policy Bulletin 2018/11 Criminal Law Policy – Sentencing Reforms.

Sentencing reforms come into force in NSW today

Mon Sep 24 2018
Law reform and public affairs

From today, suspended sentences will be abolished in NSW and replaced by "Intensive Correction Orders" as part of the NSW Government’s $330 million strategy to reduce re-offending.

Under the new laws, supervision will be a standard condition for each Intensive Correction Order and a range of other conditions will be available, including home detention, curfews, electronic monitoring and community service work. However, Intensive Correction Orders will not be available to offenders guilty of serious offences such as murder, manslaughter, sexual assault and terrorism.

The reform package also introduces a legal presumption that domestic violence offenders will receive a prison term or supervised community-based sentence.

NSW Attorney General Mark Speakman MP SC said yesterday that these reforms represented the "final piece of the NSW Government’s ‘tough and smart’ Criminal Justice Reform Package" and that "the stronger sentencing laws cap off transformative changes to the administration of criminal justice from the time an offender is charged until the end of their sentence, and beyond in exceptional cases".

Further information is available here in a joint press statement by the Attorney General, the Minister for Police Troy Grant and the Minister for Corrections David Elliott.

rise2018 National Conference - Sponsor announcement

Fri Sep 21 2018

Register now to join the ABA, NSWBA and their sponsors at the rise2018 national conference scheduled to take place from 15-17 November in Sydney; a conference by the Bar for all professionals! Click here for more information.

The conference boasts an exciting and engaging line-up of speakers, interesting and topical discussion and true and genuine social networking opportunities.

Click here for more information on the program and speakers.

An event not to be missed!

Please contact the event organisers here if you have any questions in relation to the program, pricing or how to register.

Large External room for sale - Tenth Floor St James Hall Chambers

Fri Sep 21 2018
Member services and benefits

Tenth Floor St James Hall Chambers currently has a large, well-lit, external room for sale measuring 5.6m by 3.6 m. The room includes built in, wooden storage as well as a robing cupboard. Tenth Floor St James Hall Chambers is a well-established, welcoming floor located opposite the Supreme Court of NSW. The Floor consists of 3 Senior Counsel and 8 Juniors, all of whom practice across a broad range of areas. To view photos click here.

If you require any further information or would like to arrange an appointment to view the room, please contact the Clerk, Grace Kenny on 9224 1501 or email here All enquiries and applications will be treated with the strictest confidence.

2019 John Koowarta Reconciliation Law Scholarship (Koowarta Scholarship)

Fri Sep 21 2018

The Law Council is pleased to inform you that applications for the 2019 John Koowarta Reconciliation Law Scholarship (Koowarta Scholarship) are now open.

The Koowarta Scholarship was established in 1994, with the aim of promoting the study and practice of the law by Aboriginal and Torres Strait Islander peoples, and, commemorates John Koowarta as a member of the Winychanam community and a traditional owner of the Archer River region on the Cape York Peninsula in Queensland. John Koowarta is widely regarded as being at the forefront of Aboriginal land rights in Australia during the late 1970s and early 1980s. He is today revered as one of the most important figures in the progression of Native Title rights for Aboriginal and Torres Strait Islander peoples.

The Koowarta Scholarship is available to Aboriginal and Torres Strait Islander students enrolled in an Australian tertiary institution undertaking an approved course of study provided that may lead to admission as a legal practitioner in any Australian jurisdiction. Click here for more information.

Attached for your information is a copy of the Eligibility Criteria and Application Form.

For further information please contact Krystal James, Communications Officer here or via phone on 02 6246 3788.

Tendency and coincidence evidence

Fri Sep 21 2018
Implications of The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40

The High Court of Australia handed down its unanimous decision in the matter of The Queen v Dennis Bauer (a pseudonym) on 12 September 2018. Stephen Odgers SC and Phillip Boulten SC,together with Chair Gabrielle Bashir SC, will discuss the implications of this judgement for tendency and coincidence evidence on Wednesday, 26 September 2018 at 5.15 in the Common Room. For more information click here.

Increased judicial retirement age will improve the administration of justice

Thu Sep 20 2018

The New South Wales Bar Association has welcomed the NSW Government’s commitment today to raise the maximum statutory judicial retirement age from 72 to 75. In a statement, attached here, President Arthur Moses SC said ‘The Association initiated this reform because it formed the view that there were compelling reasons in favour of increasing the retirement age for judicial officers serving in NSW’.

‘We support judges and magistrates being able to serve on the bench of NSW courts until the age of 75 and await further details of the proposed legislation with interest,’ he said. The Attorney General announced today that new legislation to change the judicial retirement age will be introduced into Parliament in the coming weeks. The Attorney General also announced that under the changes proposed, judges appointed after the new legislation commences will be able to access their pension at the age of 65, rather than 60.

‘The Association recommended increasing the pension age to 65 in order to better align the judicial pension with the pension schemes of other members of the Australian community. This increase will also ensure the judicial pension scheme remains sustainable and realise significant cost savings for the Justice portfolio, which could fund other policy areas that have been ignored and are in need of resourcing, including legal aid,’ said Mr Moses SC.

‘While the Association welcomes these changes in principle, any legislative reform in this space must be prospective, not retrospective, to maintain the independence of the bench, including the appearance of the independence of the judiciary which is fundamental to the rule of law,’ Mr Moses SC said.

Room for Sale - Maurice Byers Chambers

Thu Sep 20 2018

A rare opportunity has become available to purchase an external room with plenty of natural light in a well-established, recently renovated, busy chambers.

The size of the room is approximately 36sqm and has large windows with exceptional sweeping panoramic views overlooking North and South Heads and Sydney Harbour Bridge. The room has an extensive new fit-out with large built-in cupboards and shelving and robing space. The room is suited to Senior Counsel. Click herefor photos.

The chambers comprises 51 barristers including 8 Silks, with broad areas of practice, specialising in Medical Negligence, Criminal Law¸ Coronial Inquiries and Inquests as well as Commissions of Inquiry and Personal Injury.

For more information about the room or the floor visit the website here.

All applications or inquiries should be directed to the chambers Clerk Melissa Brown via email here or by phone on 82330300 and will be treated in strict confidence.

Retirement Ceremony of the Hon Chief Justice John Pascoe AC CVO

Thu Sep 20 2018

Members are advised a joint ceremony of the Family Court of Australia and the Federal Circuit Court of Australia will be held on Monday 8 October 2018 to mark the retirement of the Honorable Chief Justice John Pascoe AC CVO, Chief Justice of the Family Court of Australia.

The ceremony will be held at 4.30pm in Court 1, Level 21, Law Courts Building, Queen's Square, Sydney

2019 Regional Conference Series

Thu Sep 20 2018
Call for papers

The Bar Association's Professional Development Department invites members to submit suggestions and/or abstracts for papers to be included in the association's 2019 CPD Conference series. The conferences will be held on Saturdays in Ballina, Newcastle, Orange, Parramatta and Sydney during February and March.

The dates for 2019 Conferences are:

  • Newcastle – Saturday 23 February
  • North Coast (Ballina) – Saturday 2 March
  • Orange – Saturday 9 March (Please note, from 2019 Orange will be a single day Saturday conference due to falling demand)
  • Parramatta - Saturday 23 March
  • Sydney – Saturday 30 March

Interested barristers, solicitors, academics, legal and non-legal professionals are invited to submit suggestions for papers online, HERE. During the submission process, you will be asked to provide your contact details, conference preference, a working title and, where possible, a short description or abstract of your suggestion presentation.

Suggestions and abstracts are requested by Monday 1 October.

Legal Aid Sentencing Training - reforms commence on 24 September

Thu Sep 20 2018

Legal Aid sentencing reforms commence on Monday 24 September. The Legal Aid has been running training sessions over the last couple of months.

As an adjunct to the training sessions training staff have recorded a webinar. The webinar is accompanied by a PowerPoint presentation and can be accessed publicly on YouTube here. The webinar runs for approximately 1 hour and provides a brief overview of the key parts of the reforms.

The webinar will also be added to the Legal Aid Sentencing Reforms internet page, together with other useful resources, prior to the commencement of the reforms.

You can access the webpage here.

EAGP Mandatory Case Conference bookings

Thu Sep 20 2018
Practice support

In most Early Appropriate Guilty Plea case conferences, the NSW ODPP prosecutors will participate by AVL, while the defence lawyer can choose between attending a conference at a Legal Aid office or by AVL using their own device. Case conferences can be be arranged through JUST Connect, a web-based system used to book AVL studios at correctional centres and Legal Aid offices. Learn more about JUST Connect, and how to make a booking here.

Chambers for Lease - Queen's Square Chambers

Wed Sep 19 2018

Rooms have become available for lease at Queen's Square Chambers in The Beanbah Building adjacent to the Supreme and Federal Courts on Macquarie Street.

  • Excellent internet connections
  • VOIP phone system
  • Affordable with no key money required
  • Boutique Chambers closest to Court complex

For more information and an inspection contact the Clerk of Chambers, Mark Wilson on 9232 4671.

Australian Disputes Centre's ADR Address

Wed Sep 19 2018

On 20 September 2018 the Australian Disputes Centre will hold the Supreme Court ADR Address by the Hon Chief Justice, Tom Bathurst AC. Titled "ADR, ODR and AI-DR or, Do We Even Need Courts Anymore?", will be delivered at the Supreme Court of NSW, Banco Court, 184 Phillip Street and will commence at 5.15pm. For more information please click here and to register please click here.

Spigelman Oration and Public Law Section Dinner

Wed Sep 19 2018
Public Law Section

The fifth annual Spigelman Public Law Oration will be delivered by the Hon Christian Porter MP, attorney-general of the Commonwealth on Monday, 24 September 2018 from 5.15pm-6.30pm in the Banco Court. The topic of the oration will be "Securing our Democracy". Immediately following the oration will be the annual dinner of the Public Law Section of the New South Wales Bar (formerly the Constitutional and Administrative Law Section) at Fix Wine Bar & Restaurant, 111 Elizabeth Street Sydney. Cost: $150 pp (including GST). The event includes a three course dinner, canapes and a selection of wine and other beverages. To reserve your place at the dinner, please pay using [this online credit card facility] (https://www.nswbar.asn.au/payments/spigelman-public-law-oration-dinner ""), **no later than 5.00 pm on Thursday, 20 September 2018.

If you have specific dietary requirements, please contact Matt Sherman (msherman@sixthfloor.com.au).

Positions vacant at NCAT

Wed Sep 19 2018
Applications close 23 September

Attorney General Mark Speakman SC is calling for applications from qualified persons for appointment to the NSW Civil and Administrative Tribunal as:

Room for Sale - 4th Floor St James Hall

Wed Sep 19 2018

Room for sale or licence on 4 St James Hall. Large room fronting Phillip Street with abundant natural light. Busy, friendly chambers on a well established floor with members undertaking a wide range of commercial work. The floor comprises two senior counsel together with eight senior juniors. For more information and to see photos, click here.

Please contact Peter O’Loughlin, one of the directors, on 02 9237 0526 with any enquiries. All enquiries will be treated in the strictest confidence.