Written by Bill Doogue. Partner, Doogue O’Brien George Criminal Defence Lawyers.
The Victoria Legal Aid “VLA” consultation on criminal trials is an interesting document. It is hard to fault most of what it puts forward.
From my perspective, the consultation can be broken down into the following underlying three parts:
- Delivering better trials
- Assisting the Court in case management and trying to reduce long delays for trials.
- Trying to reduce the money spent on indictable crime
You need only glance at these factors to realise the tensions that arise from what VLA, and the Courts, are attempting to do. It is an incredibly hard balancing act for them. Hopefully, the interests of the indigent accused do not get lost in all of this.
From the Defence Lawyer perspective the trial system is generally working well. There are delays and frustrations, but clients, at this stage, definitely get a fair chance on trial.
To me, the number of not guilty verdicts is a positive endorsement of the system. It demonstrates that the process is working well. That Judges are applying the law properly and giving people a fair crack at a defence. Bear in mind that the vast majority of matters that go before the Courts in Victoria are pleas of guilty. Of the people who maintain their innocence there is a reasonable chance that a jury deciding on the facts will agree that the case against them cannot be proven.
The jury process, to my mind, underpins our system and is a bulwark against tyranny. I know that sounds pompous, but I believe that very strongly. The decision about the facts of what occurred on a given day should be decided by the people rather than a Government appointed official. Otherwise there is a reason to stack the bench with people who will uphold the Government’s stance on how cases should be determined. At present that is not a consideration nor has any impact on appointments. The corollary to the jury deciding facts is that serving on a jury and performing their role as a juror properly is one of the most important things a citizen can do.
This is a very tense time for those involved in this process and there are very sensitive souls out there. So here is the standard disclaimer. I blog because I enjoy the process. These are just my thoughts and not part of a Machiavellian plot by private Criminal Defence Lawyers.
Some of my personal observations on what arises from this report;
Delivering better trials
This has been received well by our firm and, in some sense considered long overdue. Solicitors should be sufficiently qualified to run trials and there is no point in having someone instructing in a trial who does not know the file and adds nothing to the process. Training is really important and we should all be endorsing that. Lifting the levels of analysis of the brief and information provided to Counsel is a great idea.
The same applies for barristers. VLA should have a panel and they should expect the Barristers on it to undergo ongoing training. The Bar already provide a lot of training for their people so it should not be too hard for them to formalize that process.
Our firm participated in an advocacy course recently and the facilitator advised us that the previous weekend he had been training a group of Senior Counsel from the independent Bar. They understood that doing your job well meant always trying to extend yourself.
One difficulty that will arise is the evaluation of the barristers who the Court don’t like but we solicitors do. That is hard to reconcile. We are results driven for our clients. That is we choose the Barrister that we consider will advocate our client’s case best. So we come at it from a very different angle from the Court. I do not believe that we have an underlying duty to the Court to help them in case management by briefing barristers who take less time in argument. Nor only briefing the barrister who only argues the palatable or speedy points. I might be wrong there but I doubt it very much.
Assisting the Court in case management and trying to reduce long delays for trials.
Assisting case management is intended to be done by front-loading fees or such things as the block briefing initiative.
The report notes that the lack of date certainty is an enormous problem in effectively dealing with cases. The obvious solution is more funding for the Courts and more Judges. Although you would be a brave seer to predict that happening given the financial problems Governments are facing.
My guess is that we are seeing an end to clients choosing their solicitor or barrister. Currently the clients choose private practitioners over VLA lawyers to a large degree.
I would guess that the most efficient system the Court and VLA would try to introduce would be a hybrid system of block briefing and fixed trials. The smaller legal aid matters will go into the block briefing stream. The bigger matters or more complex will go to a fixed trial date.
We all have to endeavour to avoid the system which occurs on circuit (i.e. at regional courts) where a trial is called on at short notice and the availability of Counsel and witnesses becomes an issue. To give a perception of a fair system for the Accused the new system should try to avoid this. There would seem to be some obvious ways to manage this particular issue.
Block briefing may work. There are a lot of trials where clients would want to float in a block briefing list because they want their trial over as fast as possible.
There are also obvious categories that can be identified as are suitable for the block briefed list (i.e. legal aid funded, instructed barrister in the block briefing list and no witnesses being called for defence).
It will be interesting to see what VLA and the Courts decide is the model that they think will work. Obviously many jurisdictions grapple with these issues and if there was one simple solution we would all be following it.
Trying to reduce the money spent on indictable crime
You would have to think that instructors in all trials will soon be a thing of the past. There will be a piecemeal approach to having instructors in the County Court and probably instructors kept in the Supreme Court.
The reality, as we all know, is that Legal Aid is not able to continue to fund criminal trials at the rate it has been doing. Unpalatable as that may seem that is the financial reality.
The main way that the money will be reduced is by eliminating instructing solicitors and reducing the number of trials. Personally, as a measurable outcome, a reduction in trials will mean these changes have failed. When so many people who maintain their innocence are acquitted by juries clearly the number of trials is appropriate. I am opposed to eliminating instructing solicitors for all the obvious reasons but I tend to think it is inevitable.
Also, if this process contributes to the rate of conviction increasing then again, to me, it will have been an abject failure.
To many of us, there has been a huge philosophical change in what VLA stands for and what its core function is. But we are approaching that from our Defence Lawyer perspective. We see VLA’s primary function as being about standing between poor accused and the State. But the priorities of VLA seem different these days and they are extending into other areas and other priorities.
The question is often raised “why should we spend all this money on people accused of crime and not a person who is the victim of a crime? Or a family law client?”
That is something you can argue about. You can put forward your opinion as to which is right but fundamentally it is just philosophical. For those who see an importance in the jury system that goes beyond one person’s rights it is clear. The accused deserves a properly funded defence because in some sense the Barrister appearing at a trial is standing up for all of us.
Most fair dinkum defence lawyers get this concept straight away. It underpins what they do and the often quixotic nature of criminal defence lawyering.
The only way we will retain this system is if there is an effective campaign to fund trials properly.
If you accept that the system generally works well and that the desire for more convictions is ill-placed populism then what are the major issues that spring out?
- Equality at arms – The accused will no longer have an instructor whereas the Prosecutor will have an instructing solicitor and a Police Officer at Court assisting them. How can that be dealt with in a way that does not make it so obvious the legal aid client is being out-muscled and out-resourced by the State?
- Legal Fictions – There are obviously clear signs that VLA intend to take the majority of trial clients in-house and then manage conflicts by assigning clients to different offices. You only have to put that in the context of a private firm to see how that struggles with the basic concepts of conflicts of interest. How can “the largest criminal law practise in Victoria” represent clients who are at odds with each other? The files are held by the same firm, the instructions are typed on the same computers etc etc
To devise a “Chinese walls” system to avoid conflict will understandably leave a bad taste in the mouths of many clients. Most clients in trials choose not to use VLA (when given a choice). To force all the accused to use the same legal practise in a trial is fundamentally wrong. Justice should be seen to be done properly and the capacity for all the problems that underlie why we have rules about conflict of interest will occur.
I do not know if the Law Institute or VLA have got an advice from the LSB about the issue of conflicts. If they have then they should publish it so we can see what is underpinning this approach.
Although possibly for them a better, and simpler course, is not to take conflicts inhouse and take everything else.
That is better both in how clients will perceive it and also, in my opinion, in basic principle.
We can only hope that these changes end up like the recent changes to the Victorian Court of Appeal processes. That was an astonishing change from a process that was incredibly slow to a system that I think is now a template for other jurisdictions. The Government provided extra money for the process because the Courts were able to demonstrate that there were enormous savings to be had with a more efficient system. For the convicted, it means that their lawyers have a detailed conversation with them about the prospects of an appeal in the weeks following their hearing. This a major change from waiting 12 to 18 months in the bizarre limbo that used to occur before people started preparing their appeals.
If the County Court and VLA can achieve what the Court of Appeal did then our clients will be much better off.
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