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

Tue Sep 25 2018

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 (click here) 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”.

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