A fair trial for all?

courts melbourne

A fair court system is the basis of a democratic society. In Australia, a crucial component of the courts is skilled representation by a lawyer who is able to put an individual’s best case forward. This is particularly important in criminal and family matters where the complexity of the legal system requires the skilled knowledge of a legal specialist. In Victoria, funding is provided for those that cannot afford legal representation through Victorian Legal Aid, an organisation which ensures access to justice for marginalised and economically disadvantaged Victorians. However, recent changes to eligibility for grants to fund a solicitor and barrister to represent an individual in court threaten one of the most basic principles of our legal system, a right to a fair trial.

In a nutshell, the changes made to VLA eligibility guidelines, which came into effect earlier this year, work to limit the amount of funding individuals can receive in various proceedings. For family law matters, parents can now only be funded for trial preparation and not for representation at a trial unless the other party has a privately funded or pro bono lawyer. In civil law matters, a grant of assistance will not be made to people who have fines of less than $5,000. Perhaps most significantly, in criminal law matters, instructing solicitors’ fees are capped to two half-days with only limited exceptions. Previously, instructing solicitors were funded for the duration of the trial. These cuts emerge due to constraints within VLA’s budgets caused by an increase in demands for its services without any increase in funding from the state government. The cuts have been introduced to address a possible budget deficit of $3.1 million in the next financial year.

Already the effects of the changes to the eligibility guidelines have been felt in the court system. Two serious criminal trials have been put on hold as the presiding judges both felt the representation provided to the accused persons was inadequate. A double murder trial was postponed by the judge until VLA could provide the defendant a solicitor for the duration of the trial. An instructing solicitor usually works with the client from the time they are arrested to the end of the trial and assists the barrister to prepare and structure the defence. In this particular case, the defence had a complex task which involved up to 78 prosecution witnesses. The barrister representing the defendant threatened to withdraw from the case for ethical reasons if the grant for the stay was unsuccessful. In ordering the postponement, the judge stated that a fair trial could not be guaranteed unless the legal team was expanded to include an instructing solicitor. Another less complex case was stayed when the judge agreed with the defence barrister’s application that the funding of a solicitor for one day of the criminal trial was inadequate.

The VLA states that trials should not proceed if they cannot be fair to the accused. Further, VLA claims that people are not going to court facing serious charges without at least one barrister to represent them and a solicitor to prepare their case. While this may be the case, it is troubling that the judiciary has already seen cases where there have been inadequacies in a defendant’s legal representation that have required trials to be postponed indefinitely. Cuts to VLA funding have put the organisation in a difficult position, however the changes to the eligibility guidelines and decision to stop funding crucial services is a worrying response. As identified by the Law Institute of Victoria, the real answer may be for VLA to join the call to secure more funding from the state government to save the essential service. Otherwise, access to justice and the right to a fair trial could become a privilege for the few.

Jessica Dawson Field is an arts graduate and current law student with a keen interest in social justice and human rights.