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Better legal aid funding could cut court delays

Fri Feb 02 2018
Law reform and public affairs

Judges recognise the importance for defendants in criminal proceedings to have adequate representation. They accept it is critical to ensure a fair and efficient trial.

Regrettably most politicians show little interest in this topic except when they need representation in a criminal trial or face corruption allegations.

After years of neglect, the criminal justice system is in a state of crisis with significant delays impacting both victims and the accused.

The matter has come to a head because the NSW Bar Association is at an advanced stage of discussions with the NSW Attorney General and Legal Aid NSW to ensure that our members who undertake this most difficult work are fairly remunerated.

The NSW Bar's push for adequate legal aid funding is not about self-interest.

Rather, we know that the criminal justice system works best when defendants are represented by experienced legal counsel. The benefits are obvious: fewer court delays and saving taxpayers’ money.

The importance of adequate representation is best illustrated by two key decisions — in Australia and the US.

When Olaf Dietrich was convicted of heroin trafficking in the Victorian County Court in 1992, he alleged a miscarriage of justice and appealed. The matter eventually reached the High Court, which allowed Dietrich’s appeal but rejected its primary ground — that he was denied the right to be provided with legal counsel at public expense.

Australian law, said Chief Justice Anthony Mason and Justice Michael McHugh, did not recognise that a person on trial for a serious criminal offence had a right to legal counsel at public expense. Rather, the law acknowledged that an accused had the right to a fair trial, and that “depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial …” However, the judges said the desirability of representation in cases of serious charges is “so great that we consider that the trial should proceed without representation for the accused in exceptional cases only”.

Defendants in the US have an unequivocal right thanks to the case of Clarence Gideon, convicted and jailed in 1961 over a Florida poolroom burglary.

Gideon appealed to the US Supreme Court. A judge in Florida had ruled out Gideon’s claim for court-appointed legal representation, saying the right applied only to those charged with capital offences. The Supreme Court disagreed. While Gideon was ultimately acquitted, the crux of the matter was the Supreme Court’s finding that the assistance of legal counsel, if desired by a defendant who could not afford one, was a fundamental right, and essential to a fair trial.

It is to be hoped Australia can move closer to the US position. In the meantime, there are significant impediments in NSW and other states.

Inadequate legal aid funding has meant that the legal profession, particularly junior counsel from the private Bar, has subsidised the operation of the criminal justice system. For example, day rates of $987 for junior counsel appearing in District Court trials have remained unchanged since May 2007, while cumulative inflation as measured by rises in the CPI over the same period was 26.4 per cent.

It is important to put the issue of the Bar's demand for adequate legal aid funding into perspective. Barristers make an enormous contribution to assist the justice system on a pro bono basis. The duty barrister scheme at Sydney’s Downing Centre, the busiest court complex in the nation, has operated for 23 years. A legal assistance referral scheme in NSW has operated for 23 years so that members of the public who are refused legal aid can receive assistance from a barrister. The Law Kitchen, established in 2011, provides free legal services to the homeless.

However, it is not possible to remedy current delays through pro-bono contributions. As at July 2016, the District Court Criminal caseload was 2,042 criminal trials and 1,195 sentencing matters outstanding. In May 2017, BOCSAR released its NSW Criminal Courts Statistics 2016 report. It found that between 2012 and 2016, the median delay in the NSW District Court between committal for trial and finalisation rose from 243 days to 378 days, and the median time between arrest and trial finalisation is now 714 days (up from 512 days in 2012). BOCSAR released an update in April 2017 which found that a 10 per cent increase in the Sydney trial case backlog results in a 2.38 per cent increase in the average time taken to finalise criminal trials. It also found it takes about 260 days to finalise 50 per cent of trial cases in the NSW District Court. To reduce the median time to finalise trial cases to 130 days, the backlog of pending trial cases would have to be reduced by about 80 per cent.

These delays are directly attributable to a lack of adequate legal aid funding and funding for the court.

The NSW Bar Association will not take ‘no’ for an answer in its efforts to procure funding for an under-resourced, strained criminal justice system.

  • Arthur Moses SC
  • @NSWBarPresident

This article was published on 2 February 2018 as an op-ed piece in The Australian.

Legal Aid News for February 2018

Fri Feb 02 2018

Legal Aid News for February 2018 is out now. There is a feature article on the opening of the refurbished Children's Court in Albion Street, Surry Hills. There are reports on the Rolling List Court being tested in the District Court and Legal Aid's two-year strategy to enhance and expand their services to people experiencing, or at risk of, elder abuse. There is more news for panel lawyers, updates on community legal education and resources, as well as courses and conferences. You can view the newsletter here.

Katrina Dawson Award - applications close 30 March 2018

Fri Feb 02 2018
Awards

Katrina Dawson was a much-loved member of the New South Wales Bar, where she excelled. She was tragically killed during the Lindt Cafe siege. The Katrina Dawson Award seeks to encourage women to practise at the bar. The award is open to women who have passed the New South Wales Bar exam and committed to enrolling in a Bar Practice Course within 18 months of winning the award. Applications are now open and will close on 30 March 2018. Applications must be submitted online. Learn more here.

Bar Council forms new committee

Thu Feb 01 2018

At its meeting of 8 December 2017, the Bar Council resolved to establish an Industrial, Employment and Health and Safety Law Committee with the following charter:

  • To engage with barristers practicing in the industrial, employment and health and safety areas and to ensure a sense of collegiality and best practice amongst those members;
  • To organise seminars/lectures/discussions to deal with developments in industrial, employment and health and safety law;
  • In consultation with the president, to act as a liaison between the Bar Association and its members and the various courts and tribunals engaged in industrial, employment and health and safety matters; and
  • To assist the Bar Association in dealing with government on industrial, employment and health and safety matters.

The full membership of the new committee is as follows:

  • Bruce Hodgkinson SC (Chair)
  • Yaseen Shariff (Secretary)
  • John Fernon SC
  • Anthony Britt
  • Mark Gibian
  • Bruce Miles
  • Oshie Fagir
  • Jaye Alderson
  • Vanja Bulut
  • Lucy Saunders
  • Maurice Baroni

Seeking guitarist

Thu Feb 01 2018
Wellbeing at the New South Wales Bar

Are you a Barrister interested in playing Reggae Music? Bob Marley Covers and Soul – seeking an excellent rhythm guitarist with stage experience- semi-professional and or bass player with vocal ability to form duo with fellow colleague Singer/ Keyboard Player. Please call Daniel 0499 032 888

Swearing-in ceremony for Peter Thompson

Thu Feb 01 2018
Appointments

Peter Thompson will be sworn-in as a magistrate at a ceremonial sitting of the Local Court of NSW on Monday, 5 February 2018 at 9.00am in courtroom 5.2 of the Downing Centre. Sophie Callan will speak on behalf of the New South Wales Bar. Wigs and gowns should not be worn.

Are you eating well?

Thu Feb 01 2018
Wellbeing at the New South Wales Bar

ABC Radio has reported the findings of a study by the University of Western Australia, which found that lawyers have "disturbing" rates of disordered eating patterns. Learn more here.

Coming up in CPD Next Week

Thu Feb 01 2018

Thursday, 8 February 2018:- “Skinning the Cat - Non-delegable Duties of Care in Clinical Negligence Cases”

Presented by David Pittaway QC of Hailsham Chambers, London, England, and chaired by Robert Sheldon SC of Tenth Floor Chambers. Flyer to follow.

REGISTER NOW: 2018 Regional CPD Conference Series

Thu Feb 01 2018

Registrations are OPEN for the New South Wales Bar Association Regional CPD Conferences. For more details about each venue, speakers and the costs involved please click here

  • Saturday, 17 February 2018 - North Coast - Program
  • Saturday, 24 February 2018 - Parramatta - Program
  • Saturday, 10 March 2018 - Newcastle - Program
  • Saturday, 17 & Sunday, 18 March 2018 - Orange - Program
  • Saturday, 24 March 2018 – Sydney - Program

The conferences are run by registration only and places in each conference are strictly limited. To register and pay to secure your place please click here

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department on 02 9232 4919 or via e-mail cpd@nswbar.asn.au

REGISTER NOW: 2018 Regional CPD Conference Series

Thu Feb 01 2018

Registrations are OPEN for the New South Wales Bar Association Regional CPD Conferences. For more details about each venue, speakers and the costs involved please click here

  • Saturday, 17 February 2018 - North Coast - Program
  • Saturday, 24 February 2018 - Parramatta - Program
  • Saturday, 10 March 2018 - Newcastle - Program
  • Saturday, 17 & Sunday, 18 March 2018 - Orange - Program
  • Saturday, 24 March 2018 – Sydney - Program

The conferences are run by registration only and places in each conference are strictly limited. To register and pay to secure your place please click here

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department on 02 9232 4919 or via e-mail cpd@nswbar.asn.au

2018 North Coast CPD Conference Program - Saturday, 17 February

Thu Feb 01 2018

The 2018 North Coast CPD Conference schedule has been finalised. Please view the program HERE. The North Coast CPD Conference is to be held on Saturday, 17 February 2018 at the Ramada Hotel, Ballina.

Full attendance at the North Coast Conference will attract 6 CPD points and will cover the four strands required for the practising certificate year. NSW barristers, interstate barristers and solicitors are welcome to attend.

For more details about the North Coast Conference, or any of the 2017 CPD Conference Series, please click HERE.

To register please click HERE. Please note, registrations will only be accepted when accompanied by full payment.

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department on 02 9232 4919 or via e-mail cpd@nswbar.asn.au

2018 North Coast CPD Conference Program

Wed Jan 31 2018

The 2018 North Coast CPD Conference schedule has been finalised. Please view the program HERE. The North Coast CPD Conference is to be held on Saturday, 17 February 2018 at the Ramada Hotel, Ballina.

Full attendance at the North Coast Conference will attract 6 CPD points and will cover the four strands required for the practising certificate year. NSW barristers, interstate barristers and solicitors are welcome to attend.

For more details about the North Coast Conference, or any of the 2017 CPD Conference Series, please click HERE.

To register please click HERE. Please note, registrations will only be accepted when accompanied by full payment.

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department on 02 9232 4919 or via e-mail cpd@nswbar.asn.au

Ceremony to Commemorate the Opening of Surry Hills Children’s Court

Wed Jan 31 2018
Courts

The Surry Hills Children’s Court was opened on Tuesday, 30 January 2018 following a $38 million redevelopment. The ceremony was attended by the Attorney General, the President of the Children’s Court, the Chief Magistrate and the President of the NSW Bar Association, President of the NSW Law Society, the Acting Police Commissioner and other office holders. The Court had previously operated from 1911 until it was replaced by Bidura’s Children’s Court in Glebe in 1983. The Bidura Children’s Court was closed in 2017. The President of the NSW Bar Association, Arthur Moses SC, stated in relation to the opening of the new Children’s Court:

The NSW Bar congratulates the President of the Children’s Court and the Berejiklian Government on the opening of the new facilities which are larger, more technologically advanced and better suited to deal with children. There is no doubt that the redevelopment will increase the Children’s Court’s capacity to conduct specialist hearings involving juvenile offenders. However, the NSW Bar also supports the call by the President of the Children’s Court that there be increased funding to enable the Children’s Court to sit on circuit in country areas so that it’s specialist judicial officers can deal with juvenile offenders in these regions.

Celebrating Women in the Judiciary

Wed Jan 31 2018

The Honourable Justice Virginia Bell AC will be guest speaker at 'Celebrating Women in the Judiciary' on Thursday, 22 February 2018 from 6.00pm to 8.00pm at the Union, University & Schools Club, 25 Bent Street, Sydney. Learn more here.

REGISTER NOW: 2018 Regional CPD Conference Series

Wed Jan 31 2018

Registrations are OPEN for the New South Wales Bar Association Regional CPD Conferences. For more details about each venue, speakers and the costs involved please click here

  • Saturday, 17 February 2018 - North Coast - Program
  • Saturday, 24 February 2018 - Parramatta - Program
  • Saturday, 10 March 2018 - Newcastle - Program
  • Saturday, 17 & Sunday, 18 March 2018 - Orange - Program
  • Saturday, 24 March 2018 – Sydney - Program

The conferences are run by registration only and places in each conference are strictly limited. To register and pay to secure your place please click here

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department on 02 9232 4919 or via e-mail cpd@nswbar.asn.au

Barristers Classifieds

Wed Jan 31 2018

Barristers Classifieds are published each Wednesday. Individual notices will remain here until they are sold. No liability will be accepted by the New South Wales Bar Association for the information contained in the classifieds.

Internal room for licence on Second Floor Selborne

A spacious (circa. 5.3 x 3.7 metres) internal room is available for licence on Second Floor Selborne Chambers. Just re-painted, the room has been recently renovated to include a new air conditioning unit, new windows and new roller blinds.

The room has floor to ceiling bookcases along one wall, a robe cupboard and storage all along the wall beneath the window. Further bookcases are included. The centrepiece of the room is a leather topped partner’s desk, with leather office chair and conference chairs included. The room is fully networked to Counsels’ Chambers, and is only four floors by elevator to the Bar Library. The 24 floor members practice across a wide range of areas including commercial, corporate, equity, tax, administrative law, medical negligence, personal injury and coronial enquiries.

The asking price is $3,000 per month. Please contact the clerk, Sarah Aleksovski (9233 6400; saleksovski@selbornechambers.com.au) for further details. Enquiries will be treated in strict confidence.

Opportunity to join Jack Shand Chambers

An opportunity to join Jack Shand Chambers on Level 55 in one of Sydney’s most iconic buildings ‘The MLC Building’, 19-21 Martin Place Sydney. We have possibly the best room on the floor for sale. Over 40 sqm this outside room faces north east and beyond overlooking the Domain and the Royal Botanic Gardens with gun barrel views up the harbour to the heads. The room comes extremely well fitted out with an extensive library. For all enquiries please contact Dennis Wheelahan RFD QC or his Clerk Stephen Upton on 9233-7711. All such enquiries will be dealt with in the strictest confidence.

Room for licence at Chalfont Chambers

An external room has become available to licence at Chalfont Chambers. The monthly licence fee is $2,500 excl. GST. Chalfont Chambers is located in the Culwulla Chambers building at 9/67 Castlereagh Street, Sydney. If you are interested in inspecting the room, please contact the Clerk, Justine Ferraro on 02 9232 0186 or clerk@chalfont.com.au All enquiries will be dealt with in the strictest of confidence.

Larger size Room for Sale on Second Floor Wentworth

Presently licensed on a short term basis, a larger size room (1 and 1/3 size or 4000 shares in CCL) on the Macquarie Street side of Second Floor Wentworth Chambers is available for purchase. It would most likely suit a silk, aspiring silk or senior junior, with or without a PA, or else a barrister requiring or needing more, but not too much, extra space.

The room has extensive “Rosewood” colour shelving and cupboards and a Mitsubishi air-conditioner. There is also a large leather-topped desk with matching leather office chair, a leather lounge and 2 leather lounge chairs, all in excellent condition, which may be included in the sale.

CCL Maintenance Contributions are only $1,552.86 pm incl of GST and SFWC Floor fees are only $2,093.85 pm incl of GST.

The floor is fully networked to CCL, uses its VOIP telephone system, has a WiFi connection, and has its own website and electronic diary management by the Clerk. Recently, the floor’s common areas underwent a stylish refurbishment. There is also easy access from the floor through Second Floor Selborne Chambers and the Selborne lifts to the Bar Library.

The floor currently comprises 2 silks, 17 juniors and 2 readers. Members practise in most jurisdictions and areas of practice. Floor members work together harmoniously.

The room is realistically priced and terms, including as to delayed settlement, if required, are negotiable. The room may be inspected by prior arrangement with the clerk on 9232 4466 or email to clerk2@wentworthchambers.com.au. All enquiries will be dealt in the strictest confidence

Third Floor Wentworth Chambers

Third Floor Wentworth Chambers currently has a spacious 1 ½ size room for sale (4500 shares in CCL). The internal light well facing room has new carpet and windows, a new air-conditioning unit and extensive shelving. All enquiries regarding sale price or inspection can be directed to the clerk, Kaitlyn Faiella, on 9232 3937 or clerk3@wentworthchambers.com.au All enquiries will be dealt in the strictest confidence.

Third Floor Wentworth Chambers

Third Floor Wentworth chambers currently has a Secretarial Bay for license. The bay is suitable for a Reader or 1-2 year Barrister, rent is $550 + GST per month and is available from 29 January, 2018. All enquiries can be directed to the clerk, Kaitlyn Faiella, on 9232 3937 or clerk3@wentworthchambers.com.au

Room for Sale at Sixth Floor Windeyer Chambers

An impressive large external room (18 sq m) with views of historic Macquarie Street is available for purchase at Sixth Floor Windeyer Chambers for $65,000.00 ono. The room has floor to ceiling double-glazed windows and built-in bookcases with fitted desk included. Would suit senior counsel or senior junior.

The Counsel’s Chambers maintenance levy is $ 1,273.51 per month (incl. gst), and floor fees are $1,657.50 per month (incl. gst). 3,280 shares in Counsels Chambers Ltd. The floor consists of one senior counsel, 7 senior juniors and 4 juniors with a wide variety of work.

The floor uses the Counsel’s Chambers internet and email system, has VoIP telephony, and is located in the same building as Land & Environment Court. Contact Heather Harbon on 9235 3100 or clerk6@windeyerchambers.com.au

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Furniture

Working desk available; built-in keyboard tray and drawers; 68 cm wide, 138.7 cm long, 80 cm tall. Please contact Nora Faulua for enquiries, inspections or offers (02) 9236 8600 nfaulua@stjames.net.au

REGISTER NOW: 2018 Regional CPD Conference Series

Wed Jan 31 2018

Registrations are OPEN for the New South Wales Bar Association Regional CPD Conferences. For more details about each venue, speakers and the costs involved please click here

  • Saturday, 17 February 2018 - North Coast - Program
  • Saturday, 24 February 2018 - Parramatta - Program
  • Saturday, 10 March 2018 - Newcastle - Program
  • Saturday, 17 & Sunday, 18 March 2018 - Orange - Program
  • Saturday, 24 March 2018 – Sydney - Program

The conferences are run by registration only and places in each conference are strictly limited. To register and pay to secure your place please click here

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department on 02 9232 4919 or via e-mail cpd@nswbar.asn.au

The Sword of Damocles

Wed Jan 31 2018
CPD Mini Conferences

On 16 March 2018, the Bar Association will host an all-day CPD at the Federal Court, titled "The Sword of Damocles". The CPD will examine the unique world of regulatory litigation and in particular, decisions made by regulators to pursue matters on a civil, criminal or administrative basis, the different regimes engaged and a considerate of the different outcomes that follow from those decisions. Speakers include: The Honourable Justice Payne of the Court of Appeal, Tim Game SC, Neil Williams SC, Elizabeth Cheeseman SC and Reay McGuinness, solicitor, at Webb Henderson. Afternoon panel will include: The Chief Justice of the Federal Court, The Hon J L B Allsop AO; the Commonwealth Director of Public Prosecutions, Sarah McNaughton SC; Wendy Peter of the ACCC; Chris Savundra of ASIC and from the Sydney Bar: Bret Walker SC, Tim Game SC and Kristina Stern SC. The CPD commences at 9.30am and concludes at 3.30pm in Courtroom 1, Level 21, Federal Court, Law Courts Building, Queens Square, Sydney, NSW 2000. The CPD will include morning tea and a light lunch. A nominal fee of $45 will be charged per attendee.

REGISTER YOUR ATTENDANCE HERE. REGISTRATIONS ARE LIMITED TO 200 ATTENDEES.

Places are ‘first in, best dressed.’ To register attendees must complete the online registration form. Please note, registrations will only be accepted and guaranteed when accompanied by full payment.

For the diary: International Law Association Biennial Conference

Tue Jan 30 2018
Conferences

The Australian Branch of the International Law Association is pleased to announce that the 78th Biennial Conference of the International Law Association will be held in Sydney from 19 to 24 August 2018. This is a major international legal event with extensive working sessions on all major topics of public and private international law. This is the first time the conference has been held in Australia since 1990. Early bird registration for the conference is now open at the conference website

Tonight's CPD Seminar Postponed: The Structure and Themes of the ICAC

Tue Jan 30 2018

A CPD seminar titled "The Structure and Themes of the ICAC" was due to be held in the Bar Association Common Room tonight, Tuesday 30 January 2018. This seminar has now been rescheduled for Monday 9 April 2018. Further details will be advertised in In Brief nearer the event.

2018 Personal Injury/Common Law Conference

Tue Jan 30 2018

Registrations are OPEN for the 2018 Personal Injury and Common Law Conference, which will be held at the Hilton Sydney on Saturday 3 March.

The conference offers 5 CPD points.

The conference runs from 9:00am to 3.00pm. Morning tea and a stand-up buffet lunch will be provided. For more details about the conference and the costs involved please click here

Registrations are open to NSW barristers that currently hold a practising certificate and places in the conference are strictly limited. To register and pay to secure your place please click here

A detailed program will be made available over the coming weeks. The program will be advertised in In Brief as well as on the NSW Bar Association Website.

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department (9223 4919 or cpd@nswbar.asn.au).

The Sword of Damocles

Tue Jan 30 2018
CPD Mini Conferences

On 16 March 2018, the Bar Association will host an all-day CPD at the Federal Court, titled "The Sword of Damocles". The CPD will examine the unique world of regulatory litigation and in particular, decisions made by regulators to pursue matters on a civil, criminal or administrative basis, the different regimes engaged and a considerate of the different outcomes that follow from those decisions.

Speakers include: The Honourable Justice Payne of the Court of Appeal, Tim Game SC, Neil Williams SC, Elizabeth Cheeseman SC and Reay McGuinness, solicitor, at Webb Henderson.

Afternoon panel will include: The Chief Justice of the Federal Court, The Hon J L B Allsop AO; the Commonwealth Director of Public Prosecutions, Sarah McNaughton SC; Wendy Peter of the ACCC; Chris Savundra of ASIC and from the Sydney Bar: Bret Walker SC, Tim Game SC and Kristina Stern SC.

The CPD commences at 9.30am and concludes at 3.30pm in Courtroom 1, Level 21, Federal Court, Law Courts Building, Queens Square, Sydney, NSW 2000. The CPD will include morning tea and a light lunch. A nominal fee of $45 will be charged per attendee.

REGISTER YOUR ATTENDANCE HERE. REGISTRATIONS ARE LIMITED TO 200 ATTENDEES.

Places are ‘first in, best dressed.’ To register attendees must complete the online registration form. Please note, registrations will only be accepted and guaranteed when accompanied by full payment.