Legal Aid funding in crisis

The Victorian Committee
Victoria

Earlier this year, Victoria Legal Aid implemented a series of sweeping funding changes. Its decision to reduce funding of instructing solicitors in trials to preparing the case and two half-day appearances was received with a sounding backlash from the legal community. Several Supreme Court justices and a County Court judge stayed trials after the defence lost their instructing solicitors. This has resulted in significant delays in criminal proceedings.

Justice Lasry stayed the criminal trial of Matwali Chaouk, who had been charged with attempted murder and recklessly endangering life, because the trial would be ‘likely to be unfair in the sense that it carries a risk of improper conviction’ unless he had an instructing solicitor. The Office of Public Prosecutions (‘OPP’) (Vic) appealed against this decision.

The Court of Appeal upheld Justice Lasry’s decision and refused the OPP’s application for leave to appeal out of time. In The Queen v Matwali Chaouk [2013] VSCA 99 (2 May 2013) Nettle AP, Buchanan, Osborn JJAs, noted that even had the Court granted leave to appeal out of time, ‘we are not at all persuaded that the judge was in error in finding that, in the circumstances of this case, a fair trial necessitated the attendance of the defence instructing solicitor at trial for each day of the trial.’

Following the decision, Victoria Legal Aid introduced an interim instructing/co-counsel guideline that provides funding for an instructing solicitor or co-counsel to appear as and when required in a trial.

The Victorian Attorney-General, the Victorian Equal Opportunity and Human Rights Commission, Criminal Bar Association and the Law Institute of Victoria, as well as Victoria Legal Aid, all intervened in the appeal proceedings. Although some funds were allocated to Legal Aid in the Victorian May Budget, this will not make up the shortfall. Further stays are likely.

THE VICTORIAN COMMITTEE

(2013) 38(2) AltLJ 133
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