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