Explainer – why we fund serious criminal cases

Explainer – why we fund serious criminal cases

Monday, 4 June 2018

We arrange lawyers for many people accused of committing crimes in Victoria. Often, members of the community question why we use public funds to help people who have been charged with serious and sometimes shocking offences. While the emotional nature of these cases can be overwhelming, there are many practical, ethical and legislated reasons why people accused of serious crimes need legal representation. Our decisions about who we assist are made without regard to a person’s notoriety. Everyone is assessed under the same guidelines.

Why do we fund criminal law matters?

The justice system must be fair for everybody. That means someone charged with a serious criminal offence must get the chance to test the evidence against them. Nobody wants mistakes being made or the wrong people going to jail for the wrong reason. In serious cases that often feature complex scientific evidence or a long list of witnesses, it is simply not possible to properly test the evidence without the assistance of a lawyer.

Legal representation prevents mistakes being made, and where more than one person is accused of participating in a crime, representation ensures the degree of culpability or blame is apportioned fairly between them.

It is important to remember that most people charged with serious crimes end up pleading guilty before trial, but only after a lawyer has advised them about their rights and the strength of the case against them, including whether pleading guilty to a lesser and more appropriate charge might be preferred, if the prosecution were to agree.

Because a fair trial is crucial to our system of justice, courts will not allow trials to proceed if they determine an unrepresented person is unable to put their case fairly before the court. This helps no one because it leaves everyone in limbo.

Having legal aid arrange a lawyer for someone also means that an accused person does not directly question or cross-examine witnesses, including victims, which can otherwise be quite traumatic for victims and their families.

Trials also run more efficiently when lawyers are involved. Criminal lawyers use their skills, experience and empathy to ensure the jury and sentencing judge have the information needed to reach a fair and just decision. This is not the same as condoning the alleged actions of the accused, but it is essential for a fair process and a hallmark of a fair society.

Finally, a guilty plea is an acknowledgement of wrongdoing, whereas a trial is way to determine wrongdoing. Evidence tendered with a guilty plea and gathered from a trial is essential to frame a sentence that fits the crime. This wouldn’t occur without defence lawyers working constructively with prosecution lawyers to help the sentencing judge with their task.

Criminal appeals

We don’t provide funding for an appeal simply because a person is unhappy with the outcome of their plea or trial. We fund appeals to ensure any legal mistakes, such as a wrongful conviction or a disproportionate sentence, are corrected to keep the system fair and just. In 2016–17 only three per cent of serious criminal cases went on to receive a grant of aid for appeal to a higher court.

Most appeals we fund are applications to reduce sentences. While some may question if this is an appropriate use of public funds, these appeals are a vital part of the administration of justice and are only pursued where a skilled lawyer believes there was an error in sentencing. If a mistake has been made, it should be corrected. Sentence appeals also set useful precedents to guide future decisions, saving the court system time and money into the future.

Not every appeal is successful, but all appeals, regardless of the result, can serve an important purpose by clarifying points of law. The outcome of one appeal may affect whether countless others go ahead or not.

We can be ordered to fund criminal trials

If we have refused to provide someone with assistance for their criminal trial the court still has the power to order us to provide funding to make sure a trial can proceed and proceed fairly. This is in the interests of justice, victims and the community.

This power was given to the courts after the judgment in the High Court case of Dietrich v R (1992) 177 CLR 292. That case established that legal representation is sometimes essential to ensure a fair trial. Spending public money on legal representation is preferable to the trial being indefinitely stopped or delayed, which is what can happen if a court decides a fair trial is not possible without legal representation.

‘Wealthy’ clients

Sometimes we fund or provide a lawyer for an accused person who appears to have enough money to pay for a lawyer themselves. They might live in a nice home or have a successful business, but there are several reasons why they might qualify for help under our guidelines.

Assets which appear to be theirs may be owned by someone else and are not available to be used. If they do own assets, they may have been frozen or confiscated by the court. Assets that are confiscated are often used to compensate victims of crime.

In such situations, the law requires us to provide legal assistance to such a person, to make sure their trial goes ahead fairly. We can apply to recoup these costs from the confiscated assets or seek to have the State Government reimburse us.

Commonwealth cases

The Federal Government recognises the important work we do by sometimes refunding us the cost of very expensive Commonwealth trials in serious criminal cases such as drug importation, people smuggling, fraud, or terrorism. By doing this, the Government acknowledges that legal representation is critical for these serious cases. The Federal Government reimburses us for these cases to ensure we can deliver the necessary representation without having to divert funds away from other important legal aid functions, such as family law.

More information

Read Managing Director Bevan Warner’s open letter to the community.

Learn about all of our legal services

Read more about our guidelines for grants of legal assistance.

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