<< Return to previous page | Senate Legal and Constitutional Affairs Committees
CHAPTER 6
Legal Aid in Criminal Law Matters
Scope of matters covered by Commonwealth funding
6.1 As described in Chapter 1, the Commonwealth since 1 July 1997 has
accepted responsibility only for the funding of certain `Commonwealth
matters'. Schedule 2 to the Commonwealth's agreements with the states
and territories, in the version that is to apply after 1 July 1998, defines
the `Commonwealth Priorities' in criminal law as covering:
Representation to defend charges arising under any Commonwealth statute,
including charges arising under the Corporations Law and State/Territory
legislation applying that Act:
(a) where the charges are to be dealt with summarily the applicant has
a reasonable prospect of acquittal and there is a real prospect that the
applicant, if convicted:
(i) would be imprisoned; or
(ii) would lose the capacity to continue in his or her usual occupation.
(b) where the charges are to be dealt with on indictment.
6.2 Assistance will also be provided for pleas of guilty in limited circumstances.
The `Commonwealth Guidelines' in schedule 3 of the agreements elaborate
on these priorities. In their July 1998 form, they provide that the means
and merits tests discussed in Chapter 4 apply, and contain detailed guidelines
relating to:
- summary criminal prosecutions;
- committal proceedings;
- superior court criminal prosecutions;
- appeals;
- bail applications; and
- costs management: criminal law superior courts.
6.3 In addition, the document provides that the guidelines do not apply
to children's court matters and legal assistance may be granted for criminal
matters in children's courts as the legal aid commission determines. It
also states that no legal aid is available for proceedings under the Proceeds
of Crime Act 1987 (Cth), and that normally it is not available to
make applications for stays based on the decision in Dietrich's
case.
6.4 The Committee received little criticism directed at the specific
content of these guidelines and priorities, although there was a generalised
view that more funding ought to be provided so as to enable less stringent
controls to apply. In many cases it appeared to the Committee that the
issue was not with the priorities and guidelines themselves. Rather it
was because the legal aid commissions lack the funding to provide assistance
for all the cases that did comply with them. The main matters that were
raised are considered in the remained of this Chapter.
Viability of separating Commonwealth from state/territory criminal matters
6.5 Under the priorities, Commonwealth funding is available only for
matters arising under Commonwealth law. Concern was expressed to the Committee
in submissions and its hearings in the first part of 1997 that this distinction
would prove difficult to apply in practice because some matters involved
both Commonwealth and state/territory elements. In relation to criminal
law, the areas of principal concern were major drug trials and matters
arising under laws that are the result of cooperative schemes between
the Commonwealth and the states and territories, such as the Corporations
Law and the Consumer Credit Code. [1]
6.6 Problems have not emerged in relation to criminal law matters to
the extent that some anticipated. The Committee is aware of a fraud and
theft case in Perth which attracted considerable media attention. The
bringing of the prosecution had to be delayed while the Commonwealth and
the state sorted out who was going to fund the legal aid for the accused.
[2] The Committee was told that the disagreement
had arisen because, although the offences were state ones, they were investigated
initially as a corporate matter by Commonwealth authorities and, as a
consequence, the prosecutions were being run by the Commonwealth Director
of Public Prosecutions. [3] But the Committee
was told that there did not appear to have been any other cases in Western
Australia delayed for a similar reason. [4]
It seems that there have not been any similar cases impacting on the Commonwealth-state/territory
legal aid division elsewhere, save for one or two in Victoria. [5]
6.7 More generally, the Committee notes that the Commonwealth guidelines
contain provisions designed specifically to avoid disputes over whether
a matter is a Commonwealth one or not. They provide that legal aid may
be granted in these mixed-law matters, and the relevant legal aid commission
is to determine if a matter `is essentially Commonwealth'. If it is, Commonwealth
funds are to be used. If it is `essentially State/Territory', then state
or territory funds are to be used. Where there is `a substantial mix of
Commonwealth and other charges', Commonwealth and state/territory funds
are to be used proportionately, as determined by the commission.
6.8 Victoria Legal Aid advised the Committee: `We do not have any difficulty,
at this stage anyway, in deciding what is a Commonwealth matter and what
is a state matter'. [6] Other legal aid commissions
similarly indicated that there had not been any problems to date. [7]
The Committee notes that data provided by the Attorney-General's Department
shows that of the 87,944 legal aid applications in criminal matters approved
in 1996-97, only 566 (0.64 per cent) involved a mixture of Commonwealth
and state/territory law. [8]
6.9 The Committee believes that the division between Commonwealth and
state/territory criminal matters ignores the policy imperative for the
Commonwealth to provide funding in some types of cases in which the charges
are under state/territory law. The Prime Minister has emphasised the importance
of the war on drugs. [9] Yet his Government's
policy for funding legal aid fails to acknowledge that some major drug
cases that come before the courts are of national importance, even though
the actual charges may be laid under state or territory laws.
6.10 In many major drug cases the arrests often flow from cooperation
that transcends jurisdictional boundaries. The investigation may have
been carried out by joint Commonwealth/state/territory law enforcement
task forces, perhaps working with overseas agencies. Charges may only
be laid under state or territory law due to technical deficiencies in
the evidence related to possible Commonwealth charges, or to decisions
of prosecuting authorities based on technical legal factors. [10]
It does not follow that the Commonwealth should wash its hands of all
responsibility for providing legal aid in these cases. The Committee considers
it objectionable that it has done so. At a time when the law enforcement
effort against drugs increasingly demands the putting to one side of jurisdictional
boundaries, it is unacceptable that the Commonwealth has chosen to erect
an artificial jurisdictional distinction for legal aid funding for the
resulting trials.
Inflexibility of the guidelines
6.11 The Law Council of Australia argued that the guidelines are too
inflexible in that they do not allow sufficient regard to be paid to the
characteristics of the individual applicant. The Council pointed out that
under the guidelines, grants of legal aid are only permitted for matters
in the lower courts if the accused faces a real likelihood of imprisonment.
The Council argued:
Yet these are the very Courts in which the elderly, the disadvantaged
or the disabled within the community are most likely to be found. These
are the Courts where they most need assistance to be able to cope with
the stresses and strains associated with a court appearance even though
on an objective legal aid analysis there is no `real likelihood' of imprisonment.
[11]
Merits tests for criminal law matters
6.12 Under the guidelines, a merits test applies to the grant of legal
aid in Commonwealth criminal matters. As noted in Chapter 4, this requires
amongst other things that in most cases there be a reasonable prospect
of success. The revised guidelines to come into effect on 1 July 1998
contain a new provision for criminal trials in superior courts which requires
that:
The merits of the application should be considered when determining the
extent of legal assistance which is to be provided. In determining the
extent of legal assistance, the Commission may decide to limit assistance
to a plea of guilty, to assistance to follow a specific defence argument
or arguments, or to any other form of assistance considered appropriate
in the circumstances.
6.13 In relation to assistance for both committal proceedings and appeals,
a higher merits test applies. For committals, the relevant guideline (in
its July 1998 form) provides that assistance may be granted where it is
shown that there is `a strong likelihood' that representation will result
in substantial benefit to the applicant. The benefit is defined as either
having the charge dealt with summarily, or that the committal hearing
is likely to identify an early plea, or lead to a significant reduction
in the length of any subsequent trial or plea, or lead to the accused's
discharge at the committal. The fact that the committal may discover the
prosecution case does not constitute a substantial benefit.
6.14 For appeals, the relevant guideline (in its July 1998 form) provides
that assistance may be granted to an applicant wishing to appeal where
there is `a strong likelihood' of quashing the conviction or of a material
reduction in the sentence where there is a strong likelihood of quashing
the conviction or of a material reduction in the sentence and:
(i) if successful, the appeal would result in the applicant regaining
his or her liberty, livelihood or employment; or
(ii) the appeal involves an important question of law.
6.15 The Legal Services Commission of South Australia submitted that
the new test for committals and appeals `is at odds with a fundamental
principle of the criminal law – that it is not for the accused to
establish innocence, but for the prosecution to prove guilt'. [12]
6.16 The Legal Aid Commission of NSW raised the issue whether merits
tests were cost-effective in its December 1996 submission:
Some LACs have responded to budgetary difficulties by imposing a merit
test in criminal matters. LACNSW has given this issue considerable attention,
but is not convinced that the application of a merit test in criminal
matters ultimately saves money. Introduction of a merit test would require
additional administrative procedures. The extra work involved for LACNSW
solicitors in applying the test to each application would require additional
staff. The experience in those states which have a merit test in criminal
matters is that few accused persons are refused legal aid on this ground.
It would appear that the financial savings likely to flow to LACNSW would
therefore be small and savings may not even cover the additional cost
of implementing the test. [13]
6.17 The Committee notes that, at least until recently, some of the legal
aid commissions have not applied a merit test in criminal matters heard
upon indictment in the first instance. [14]
The Committee in its Second Report set out the evidence suggesting
that one impact of the Dietrich decision was to prevent the legal
aid commissions from applying any rigorous merits test. [15]
However, the Committee lacks the information needed to determine if the
merits testing required under the guidelines in criminal law matters is
cost-effective.
6.18 The Legal Aid Commission of NSW also questioned whether merits in
criminal matters were appropriate in principle:
Perhaps more important than budgetary concerns … LACNSW has a more
fundamental concern about merit testing in criminal matters. The fundamental
principle of the criminal justice system is that it is the obligation
of the Crown to prove guilt beyond reasonable doubt. Application of a
merit test by LACs is inconsistent with this principle. Approximately
20% of defendants in criminal indictable matters plead not guilty. The
trials of approximately 10% are aborted. Of the remaining 10% whose trial
is concluded, approximately half are acquitted. This points to the difficulty
in assessing merit.
LACNSW already has the option of terminating legal aid where a client
will not accept legal advice. This is a reasonable control to ensure that
legal aid funds are not wasted in fruitless lines of defence. [16]
Caps and expensive criminal law cases
How the cap operates
6.19 The Commonwealth has been concerned for some time about the way
in which a small number of very expensive cases use up a disproportionate
share of the legal aid money. [17] Under the
1 July 1997 guidelines, the following limits apply:
In respect of trials in the District/County Courts and Supreme Courts,
for any one trial aid will be limited to $40,000 with an additional $20,000
for each co-accused where the matter is referred to a private practitioner.
Allocation of funding between defendants is determined by the Commission.
6.20 The legal aid commissions advised the Commonwealth in December 1997
that the smaller amount allowed for co-accused was unrealistically low.
[18] They argued that trials are likely to
be longer where there are multiple defendants. Assuming that the available
funds are apportioned equally amongst the several accused, the first accused
would get less for the longer trial than if he had been tried on his own
in a shorter trial. [19]
6.21 The version of the guidelines to apply after 1 July 1998 no longer
contains a lower limit on funding for co-accused. All are now subject
to the same $40,000 cap. The Committee welcomes this change. However it
regards the need to make the changes as a further example of the Government's
failure properly to think through the original guidelines and ensure that
they were soundly based.
6.22 The Commonwealth expects the legal aid commissions to use a variety
of ways to seek to reduce the cost of an expensive criminal trial. These
include dealing with it in-house, where the commission is able to keep
a greater control on costs; tendering it out for a fixed amount; and negotiating
with those involved in the case so that it can be handled in a way that
reduces its cost below the cap. [20]
6.23 However, the cap is not an absolute limit. Were it to be so, there
would be some accused who would not get the level of assistance needed
to ensure a fair trial. These accused would then be able to seek permanent
stays on their trials under the principles set out in the High Court's
Dietrich decision.
6.24 Mr Richard Coates, the Chairman of National Legal Aid and Director
of the Northern Territory Legal Aid Commission, informed the Committee
in February 1998 that prior to the new legal aid agreements the Commonwealth
provided a special fund to assist with the paying for very expensive criminal
cases involving Commonwealth matters. He said:
That fund is no longer available. It would seem clear that, in discussions
commissions have had with the Commonwealth, the Commonwealth expects us
to fund these cases notwithstanding that they are going to exceed the
caps. If that is the case, as prudent managers, we are going to have to
start setting aside reserves to meet the cost of these cases. That is
really going to mean us diverting even more money away from family law
to keep in reserve for these cases. For some of the commissions, such
as my own, that could amount to us setting aside 20 per cent of the money
that the Commonwealth gives us each year to establish a reserve for expensive
Commonwealth criminal cases … Commissions are concerned that we are
spending more and more of our money on criminal cases. [21]
6.25 The legal aid agreements with the states and territories all make
provision in very similar terms for the procedure to be followed where
adequate assistance cannot be provided within the cap amount. The current
agreement with South Australia, for example, provides:
If it appears likely that the costs ceiling will be exceeded, the case
should be handled in-house, wherever possible using resources such as
a public defender or retained counsel.
In exceptional circumstances, if it is not possible to limit costs within
the ceiling, at the discretion of the Director [of the Legal Services
Commission of South Australia] a fee package must be negotiated by the
Commission to enable the matter to be handled by the private profession.
The package should in all cases be subject to a strict limit on costs
which has been negotiated with the service provider. The Director is responsible
for ensuring that costs are managed within the limit set.
The Commission must inform the Commonwealth of any case in which the
estimated costs exceed $20,000. [22]
Impact of the cap
6.26 The Committee is not aware of any information indicating how the
Commonwealth's cap levels were decided upon. Like the choice of levels
for the family law caps discussed in the previous Chapter, the level appears
to have been chosen arbitrarily, presumably influenced by budgetary concerns,
rather than based on any objective assessment of whether a limit should
apply and what that limit ought to be. The Committee notes that different
levels apply in the states for state criminal law matters, and there are
large variations between states. [23]
6.27 The Committee has no statistics on the number of cases since 1 July
1997 which have either exceeded the cap or which have required special
management attention to reduce costs below the cap level.
6.28 As a rough indication of the number of cases that might be affected
by the Commonwealth's $40,000 cap, the Legal Aid Commission of New South
Wales advised the Committee that during 1995-96 it had 22 matters, state
and Commonwealth, which were finalised where expenditure was in excess
of $80,000. [24] The data collected on a national
basis only itemises expenditure level in those cases referred out to private
practitioners, not those handled in-house, and does not distinguish between
state and Commonwealth matters. It indicates that across Australia during
1995-96 there were 74 matters referred which exceeded the $40,000 level
at which the cap now exists, and of these, 23 cost more than $100,000
each. [25] Of the 74 matters, 8 were Commonwealth
matters. [26]
6.29 The incidence of these major cases is apparently uneven across Australia.
The Queensland Legal Aid Commission advised the Committee: `We have been
very fortunate in Queensland in that we have not had the big cases like
the southern states. We have had a couple, but we have been able to manage
those.' [27]
6.30 The Legal Aid Commission of Western Australia informed the Committee
that it had been advised by the Commonwealth that it had to provide legal
aid in criminal cases notwithstanding that the cap would be exceeded:
`we have been told we have to aid these matters, that the Commonwealth
does not want any Dietrich applications'. [28]
The February 1998 submission from the Legal Services Commission of South
Australia stated: `In some instances, where a Commonwealth criminal matter
looks like costing more than the cap and cannot be dealt with in-house,
aid is refused'. [29]
6.31 In a letter to the Attorney-General's Department on 22 December
1997, Mr Robert Cornall on behalf of all the Australian legal aid commissions
noted:
There is real concern that legal aid commissions will not be able to
fund expensive criminal cases (such as R v Fuller and Cummings in South
Australia). Alternatively, legal aid commissions will fund defences to
major prosecutions at the expense of a number (possibly a large number)
of other applicants who would have expected to qualify for assistance
under the Commonwealth's priorities and guidelines. [30]
Case study
Michael Fuller and Joseph Cummings have been involved in Dietrich
applications and stays in separate proceedings in Western Australia and
in South Australia.
In 1993 in Western Australia they were committed for trial on charges
of improperly using their positions as directors of companies to obtain
advantages for other companies, contrary to section 229(4) of the Companies
(WA) Code. The charges concern the acquisition of a 15 per cent parcel
of Claremont Petroleum NL shares by Petrogulf Resources Ltd.
Fuller and Cummings, who were by then undischarged bankrupts, sought
a stay under the Dietrich principle. On 3 March 1995 they were
found to be indigent in the sense used in that decision. The Legal
Aid Commission of Western Australia and the Commonwealth declined
to provide legal aid. A stay was granted by the Western Australian District
Court on 1 June 1995.
The Commonwealth Director of Public Prosecutions in his Annual Report
1995-96, p. 33 noted that the estimated cost of providing legal aid
to Fuller and Cummings was $68,300 for each defendant for a five week
trial. The alleged improper uses of position by them cost the two public
companies involved in the offences over $16 million.
In a separate matter in Western Australia, Fuller was charged with one
offence of failing to act honestly as a director of a public company with
intent to deceive and one offence of making improper use of his position
as a director. Cummings was charged with being knowingly concerned in
the second offence by Fuller. They failed to obtain a stay on Dietrich
grounds. They were acquitted on 13 May 1996 in the Perth District Court,
both having represented themselves during the trial which lasted five
weeks.
In South Australia Fuller and Cummings were charged with offences of
misapplying company funds under the Criminal Law Consolidation Act
1935 (SA) and offences of improper use of position under the Companies
(SA) Code. The charges relate to a scheme whereby Beach Petroleum NL,
a public company, acquired rights in the Burbank Oil Fields in Okalahoma
USA at a price of US$28 million from companies controlled by an associate
of Fuller and Cummings, Malcolm Johnson. It is alleged that the price
was grossly inflated and that Johnson's companies only paid $US3.7 million
for the rights. The purpose of the alleged scheme was to transfer US$24.3
million of assets from Beach Petroleum to companies controlled by Johnson.
Johnson is currently in the United Kingdom fighting extradition proceedings
which commenced in June 1996 to have him returned to Australia. In these
proceedings he has argued that, like Fuller and Cummings, he would not
receive legal aid in his trial in Australia and therefore he should not
be extradited.
Fuller and Cummings were committed for trial in June 1995 and they then
made Dietrich applications. These were dismissed in February 1997,
the judge ruling that there were exceptional circumstances in that the
defendants were capable of defending themselves (both are qualified lawyers).
They appealed against that decision and the South Australian Court of
Criminal Appeal granted the stay on 29 August 1997. It was common ground
in the Court of Appeal that the trial could last between six and nine
months.
No further action has occurred in relation to the Western Australian
stay. However, in the South Australian case the Commonwealth Director
of Public Prosecutions has requested Fuller and Cummings to reapply for
legal aid under the new Commonwealth legal aid guidelines. [31]
6.32 The Committee has two concerns with the Commonwealth's approach.
One is that by no longer providing the top-up funding for major criminal
cases it is in effect squeezing the resources of the legal aid commissions,
forcing them to reduce the use of Commonwealth funding to other areas,
in order to meet the costs of major criminal cases. [32]
The Committee does not regard this as acceptable.
Inadequacy of current provisions for dealing with expensive cases
6.33 In addition to the funding issue, the provisions made in the legal
aid agreements appear to the Committee to be incapable of coping with
all situations that are likely to arise. The aim of the provisions to
secure economies where possible in the running of legally-aided defences
in major cases is to be commended. But even if all feasible economies
are achieved, the occasional unusually expensive criminal case will still
occur, albeit perhaps less often. As the NSW Legal Aid Commission explained
to the Committee: `There are always going to be expensive cases where
the ordinary rules cannot apply, if the person is to be provided with
an opportunity to be represented at their trial'. [33]
6.34 The option of dealing with these cases in-house does little to reduce
the burden on the commissions' budgets, and in any event, may frequently
not be a complete answer. The Legal Services Commission of South Australia,
advised the Committee that complications can arise if it seeks to deal
in-house with criminal cases involving more than one legally-aided accused.
This is because there may be a conflict between the interests of the accused
from the outset, or one may emerge during the course of the trial. [34]
As a result, the Commission will not normally act for more than one accused
in a trial. The Committee comments that expensive criminal trials are
quite likely to involve more than one accused.
6.35 If no proven, effective method of providing representation in the
unusually expensive case is in place, then the case that arises will have
to be delayed while a method is found. Delays such as those experienced
in a case in Western Australia involving two brothers named Roberts accused
of serious drug offences, with all the attendant media publicity, risk
undermining confidence in the justice system. [35]
As such they are unacceptable, and the way in which such cases are funded
needs to be addressed in advance. [36]
6.36 Under the guidelines, if the cap is to be exceeded the legal aid
commission is required to consider alternative means of funding. One means
to be considered is the negotiation of a fee package with a private practitioner
to handle the matter, with a strict limit on costs imposed in the agreement.
The Committee notes that this has proven difficult to achieve. The basic
problem is that neither the commission or the practitioner can reliably
estimate the length of the proceedings. The Western Australian Legal Aid
Commission advised the Committee:
a common problem with Dietrich matters, is that you have the Crown coming
to you saying it is going to take six to eight weeks, then you have defence
counsel coming to you saying it is going to take four to six months, and
you are trying to cost it … Obviously, without a detailed study of
the defence case and the defence needs, it is very hard to determine which
body is giving you the correct figure. [37]
6.37 Given the lack of any reliable estimate of the length of the trial,
any practitioner taking on the matter has to be prepared to take a large
gamble, or the commission has to offer a significant premium to cover
the risk that the case will exceed even the pessimistic estimate. It seems
clear to the Committee that this type of fee negotiation process has only
limited prospects of coping with the problems posed by expensive criminal
trials. As the Legal Services Commission of South Australia pointed out:
`Considerable time is spent sorting out who is to represent the accused
person in these cases' and the delay places a strain on people already
facing serious criminal charges. [38]
Case study
Arthur Reginald Roberts and his brother Andrew Hope Roberts were charged
in Western Australia with six count of importing a trafficable quantity
of ecstasy between 1993 and 1995 contrary to provisions of the Customs
Act 1901. They first appeared in the Western Australian District Court
on 14 January 1997 and pleaded not guilty.
They appeared again on 21 July 1997. The matter was adjourned to enable
an up-to-date report to be obtained from the Legal Aid Commission on whether
legal aid would be provided. On 4 August the Commission advised the Court
that there were difficulties with the funding, and finalisation of its
position would not occur until a proper estimate of the length of the
trial had been made. Dietrich applications were foreshadowed. The
accused remained in custody. On 25 August the accused again appeared,
a trial date was set for February 1998, but the issue of legal aid funding
remained unresolved.
On 30 October, the Commission advised the Court that the uncertainty
as to the trial length was still complicating its assessment, but it appeared
that no legal aid would be granted. Dietrich applications were
subsequently lodged. On 1 December 1997, the Court began hearing these
applications. The Commission advised that it had undertaken to the Commonwealth
to re-examine the issue and explore options under which it might provide
legal aid. Among these was a so-called `tender' option. Under this bids
would be sought from lawyers to conduct the defence for a fixed sum to
be paid by the Commission. On 15 December the Commission's review committee
refused the Roberts' applications for legal aid. The Chief Judge of the
District Court, who was dealing with the case, commented that at this
stage:
The position appeared to me to be confused but apparently the circumstances
were that following the refusal by the Legal Aid Commission of Western
Australia there had been further discussions between that office and the
Commonwealth Legal Aid Authorities following which a tender situation
involving the nominated practitioners had taken place. Neither of the
nominated solicitors was however in a position to conclude any arrangement
with the Legal Aid Commission in the terms of its offer. [39]
On 21 January 1998 the Court heard further argument on the adequacy of
the Commission's offer as it then stood. The matter was adjourned to 24
February. The Commission wrote on 5 February to 61 legal firms and 61
members of the independent Bar who had previously indicated to it that
they were prepared to handle criminal matters under legal aid.
The letters sought expressions of interest in acting for one or other
of the brothers. The letters divided the matter into three stages: pre-trial,
the trial, and the period between the completion of the giving of evidence
and verdict/sentencing. Fixed amounts were offered for the first and third
stages, and a daily rate capped to 50 days for the trial stage itself.
The maximum amount payable for all stages would be $105,000 for one brother
and $77,000 for the other, plus specified, capped, amounts for disbursements.
The successful tenderer was required to continue to represent the accused
for no additional fee if trial exceeded 50 days. The letters noted that
the Crown estimated the trial would last 8 weeks, or less if certain admissions
were made. The defence view was that it could take four months. Alternative
clauses would apply if the trial miscarried or a guilty plea was entered.
It seems that the Roberts were released on bail in early February, having
been in custody for 2 years and eight months. [40]
The matter came before the Court again on 24 February, when it was advised
that 17 members of the Bar and 21 firms of solicitors had expressed interest
in acting under the Commission's terms. The Commission had written to
the accused inviting them to contact one of the pool of practitioners
who had expressed an interest.
The Bar Association and Law Society appeared jointly as amicus curiae
and argued that the tender option was abhorrent to the proper administration
of justice and would inevitably lead to an accused receiving second-rate
representation. [41] They argued that the daily
rates ($1,500 for one brother, $1,200 for the other) were inadequate and
the estimate of the trial's length was unrealistic, and therefore lawyers
acting under the arrangement would be placed in an invidious conflict
of interest position. The Court held that that the Commission's arrangements
made adequate legal representation available to the accused. It dismissed
the Dietrich applications, and said a trial date would be set for
as soon as it could be accommodated in the Court list.
According to an April 1998 media report, Andrew Roberts subsequently
wrote to at least one lawyer who expressed an interest in acting, questioning
the lawyer's motives and whether the tender arrangement was in the Roberts'
best interests. Roberts indicated that he and his brother would not cooperate
with prosecution attempts to reduce the length of the trial. [42]
6.38 The Committee notes the conclusion expressed to it of the Law Council
of Australia on the problems created for legal aid by the expensive criminal
cases:
The Law Council believes that extra funding and an acceptance by the
Attorney-General's Department of an obligation to fund in such circumstances
is necessary to meet the costs of large and expensive cases and exceptional
matters. The Commonwealth must have the capacity and the flexibility to
cope with such matters through providing additional specific matter funding
where appropriate. [43]
6.39 The Committee agrees with this conclusion.
6.40 The Commonwealth has suggested that the legal aid commissions consider
building up an `expensive cases reserve'. [44]
The Committee questions this approach. Firstly, there is no suggestion
that any extra funding is to be provided to do this, so reserves can only
be built up by using the already inadequate funding provided to meet day-to-day
grants of assistance. Secondly, the presence of significant cash reserves
in times when the pressures on legal aid funds are immense inevitably
leads to calls that they be expended on day-to-day matters. [45]
Applicants find it hard to understand how their application can be refused
for lack of funds when the commission is sitting on a large cash reserve.
Thirdly, in narrow financial terms it may be more efficient if the Commonwealth
operates a single reserve fund, rather than create separate reserves at
each legal aid commission.
6.41 In the Committee's view, a preferable option would be for the Government
to provide an additional fund administered by the Attorney-General's Department
to meet the extra costs involved in providing legal aid in exceptionally
expensive criminal cases involving Commonwealth matters. The Committee
notes that in respect to very expensive trials for state offences, the
state, in some cases at least, has provided additional funding to meet
the legal aid costs as particular cases have arisen. [46]
Recommendation 12
Accordingly, the Committee recommends that the Government provide
an additional fund administered by the Attorney-General's Department to
meet the extra costs involved in providing legal aid in exceptionally
expensive criminal cases involving Commonwealth matters.
Footnotes
[1] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: First Report,
March 1997, paras. 2.31 to 2.38; Second Report, June 1997, paras.
1.16 to 1.20.
[2] See `Defence lawyer ruling abused: QC',
West Australian, 8 October 1997, p. 4.
[3] Transcript of Evidence, Attorney-General's
Department, p. 1331. The Committee was told (p. 1332) that the Commonwealth
Director of Public Prosecutions has `knock for knock' arrangements with
his State and Territory counterparts in which no funding is sought from
a state/territory if he prosecutes for state/territory offences. See also
Transcript of Evidence, NSW Director of Public Prosecutions, p.
1353.
[4] Transcript of Evidence, Legal Aid
Commission of WA, p. 1525.
[5] Transcript of Evidence, Attorney-General's
Department, p. 1818.
[6] Transcript of Evidence, Victoria
Legal Aid, p. 1404.
[7] Transcript of Evidence, Attorney-General's
Department, p. 1331; Legal Aid Commission of WA, p. 1525; Legal Aid
Commission of NSW, pp. 1716, 1718; Legal Aid Queensland, p. 1763.
[8] Senate Legal and Constitutional Legislation
Committee, Examination of Additional Estimates 1997-98: Additional
Information, vol 3, June 1998, p. 384.
[9] See for example his speech at, and press
release on, the launch of the `Tough on Drugs' strategy on 2 November
1997.
[10] See for example, Transcript of Evidence,
NSW Bar Association, p. 1040: `It is often a matter of a toss up for a
prosecutor of whether or not the case is to be prosecuted as a [Commonwealth]
customs prosecution or as a supply under the [state] drug misuse and trafficking
legislation'. See also Transcript of Evidence, Hon P Foss, Attorney-General
of WA, p. 1078: just because it may be easier in a case involving Commonwealth
and state offences to prosecute only the state ones should not permit
the Commonwealth to avoid responsibility for funding any legal aid that
may be required.
[11] Submission No. 126A, Law Council
of Australia, para. 2.2.
[12] Submission No. 44C, Legal Services
Commission of SA, p. 18 (emphasis in original).
[13] Submission No. 84, Legal Aid Commission
of NSW, section 1.5.4.
[14] Attorney-General's Department, `Legal
Aid in Australia: An Overview', May 1996, p. 5.
[15] Senate Legal and Constitutional References
Committee, Inquiry into the Australian Legal Aid System: Second Report,
June 1997, paras. 4.14 to 4.16.
[16] Submission No. 84, Legal Aid Commission
of NSW, section 1.5.4.
[17] Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 26 February
1998, Attorney-General's Department, p. 37.
[18] Letter from Victoria Legal Aid on behalf
of all the Legal Aid Commissions to Mr N Reaburn, Attorney-General's Department,
22 December 1997, p. 2.
[19] For example, if there were 4 co-accused,
the total legal aid funding under the cap would have been $40,000 plus
three amounts of $20,000, giving $100,000. Apportioned equally, this would
have allowed $25,000 per accused, not the $40,000 they each would have
had if tried alone.
[20] Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 26 February
1998, Attorney-General's Department, p. 37.
[21] Transcript of Evidence, National
Legal Aid, p. 1649.
[22] Agreement between Commonwealth of Australia
and State of South Australia in relation to Provision of Legal Assistance,
18 July 1997, Schedule 3, p. 12.
[23] See for example, Legal Services Commission
of SA, 19th Annual Report 1996-97, p. 12: the Commission provided
a maximum of $50,000 to the defendant, or a total of $75,000 if multiple
defendants; Submission No. 35A, Victoria Legal Aid, Attachment
1, p. 1: Victoria Legal Aid provided a maximum of $30,000 for legal aid
for a person accused of murder or other charge heard in the Supreme Court
and, subject to some exceptions, a maximum of $15,000 for those accused
of other offences.
[24] Transcript of Evidence, Legal Aid
Commission of NSW, p. 1720. In 1996 the Legal Aid Commission of NSW introduced
a cap of $80,000 plus $40,000 for each co-accused for aid for criminal
trials: Submission No. 84, Legal Aid Commission of NSW, section
1.5.2.
[25] Attorney-General's Department, Legal
Aid in Australia: 1995-96 Statistical Yearbook, July 1997, pp. 35-6.
[26] Senate Legal and Constitutional Legislation
Committee, Examination of Additional Estimates 1997-98: Additional
Information, vol. 3, June 1998, p. 383.
[27] Transcript of Evidence, Legal Aid
Queensland, p. 1757.
[28] Transcript of Evidence, Legal Aid
Commission of WA, p. 1527.
[29] Submission No. 44C, Legal Services
Commission of SA, p. 16.
[30] Letter from Victoria Legal Aid on behalf
of all the Legal Aid Commissions to Mr N Reaburn, Attorney-General's Department,
22 December 1997, p. 1.
[31] See Commonwealth Director of Public Prosecutions,
Annual Report 1995-96, p. 32-3 and Annual Report 1996-97,
p. 40; R v Fuller & Cummings, South Australian Court of Criminal
Appeal, 29 August 1997, Judgment No. S6297; Commonwealth Director of Public
Prosecutions, `Supplementary information on cases being prosecuted by
the Commonwealth DPP and affected by applications based on the Dietrich
principle', produced at the request of the Committee and provided on 22
May 1998.
[32] It seems that Dietrich is having
a similar effect on state-funded matters. For example, the Law Society
of WA told the Committee: The limited funds have been taken from representing
people in the lower courts to representing people in the higher courts,
because people in the higher courts have to be represented on serious
criminal charges, otherwise they can make a Dietrich application and the
trial will then be stopped. So what has effectively happened is that money
is being taken from other places in order to ensure that people in the
District and Supreme Courts get funded for their trials. (Transcript
of Evidence, p. 1502)
[33] Transcript of Evidence, Legal Aid
Commission of NSW, p. 1721.
[34] Transcript of Evidence, Legal Services
Commission of SA, pp. 1595-6.
[35] See `Legal row over letter to 'scare off'
trial lawyers', West Australian, 4 April 1998, p. 4; `Hard-hit
Legal Aid calls for tenders', West Australian, 25 February 1998,
p. 13; `Drug-charge pair released from jail', Sunday Times (Perth),
8 February 1998, p. 3; Transcript of Evidence, Legal Aid Commission
of WA, pp. 1525-6, 1527.
[36] See Senate Legal and Constitutional Legislation
Committee, Estimates Hearings, Transcript of Evidence, 26
February 1998, Attorney-General's Department, p. 39: need to have discussions
about expensive criminal cases with Victoria and South Australia, as well
as with Western Australia over one or two cases in addition to the Roberts
matter.
[37] Transcript of Evidence, Legal Aid
Commission of WA, p. 1525.
[38] Submission No. 44C, Legal Services
Commission of SA, p. 16.
[39] The Queen v Roberts and Roberts,
WA District Court, Hammond CJDC, No. IND 6 of 1997, 11 March 1998, transcript
of judgment, p. 8.
[40] `Drug-charge pair released from jail',
Sunday Times (Perth), 8 February 1998, p. 3.
[41] The Queen v Roberts and Roberts,
WA District Court, Hammond CJDC, No. IND 6 of 1997, 11 March 1998, transcript
of judgment, p. 18.
[42] `Legal row over letter to 'scare off'
trial lawyers', West Australian, 4 April 1998, p. 4.
[43] Submission No. 126A, Law Council
of Australia, para. 5.9. See also Transcript of Evidence, Australian
Law Reform Commission, pp. 1812-13.
[44] Letter from Mr N Reaburn, Deputy Secretary,
Attorney-General's Department to Mr C Staniforth, CEO, ACT Legal Aid Commission,
28 April 1998, p. 2. All of the agreements currently contain provisions
allowing the commissions to create and maintain reserves from Commonwealth
funding. In the Northern Territory agreement, three reserves are required,
one of which is for funding expensive criminal cases.
[45] See for example the call for Victoria
Legal Aid to act, given it has reserves said to be about $9 million: letter
from Mr M Gawler, Law Institute Journal, April 1998, vol. 72(4),
p. 5.
[46] Legal Aid Commission of WA, Annual
Report 1997, p. 29; `NSW backs down on legal-aid ban', Sydney Morning
Herald, 16 August 1997, p. 6.