Background to the consultation for delivering high quality criminal trials

Background to the consultation for delivering high quality criminal trials

Victoria Legal Aid has undertaken a consultation process to examine ways in which the quality of legally aided criminal trials in Victoria can be improved, with a focus on preparation, advocacy and value for money

In recent years, reducing delay in the criminal justice system has become a central focus for legal and procedural reform. There have been multiple government reports, inquiries and agency-driven initiatives designed to address systemic inefficiencies and the need for quality service delivery by the legal professionals supporting the administration of criminal justice, particularly in the higher courts.

Public money is wasted as a result of systemic issues such as late preparation, late briefing, late resolution, late entry of discontinuances, a lack of continuity and re-briefing of counsel and limited trial preparation leading to error and re-hearings.

In 2007, a report by the Australian Institute of Criminology found that the average length of trial days increased from five to eight days, with one of the reasons being a decline in quality legal representation. County Court data shows an increase in average trial length from eight days to 11 days since 2007.

In 2009, the Victorian Law Reform Commission’s final report on jury directions noted that ‘various members of the profession expressed concern that some barristers are appearing in criminal cases for which they do not have the necessary experience or expertise’ (page 128) and that trials ‘frequently commenced with counsel who had little familiarity with the facts in issue or appreciation of the issues concerning admissibility of evidence’ (page 32).

Changes to our guidelines

In the context of escalating pressure on the Legal Aid Fund, Victoria Legal Aid examined its funding priorities in late 2012.

Victoria Legal Aid introduced a new guideline for criminal trials in January 2013. The guideline continued to provide for full trial preparation by a solicitor and representation by a barrister for the length of the trial, but with the attendance of an instructing solicitor limited to two half-days. Previously, funding was provided for an instructing solicitor to be present with the barrister for the whole trial. This change produced considerable controversy, such that discussion of value for money and quality trial conduct became impossible.

In February 2013 the Supreme Court stayed two trials because instructors were not available for the full duration of the trial.

In one of the cases the Victorian Supreme Court of Appeal upheld those stays on the basis of the central place of instructing solicitors in ensuring a fair trial (The Queen v Chaouk & Ors at 31).

The Court of Appeal approved of Justice Lasry’s assessment that an instructor should be ‘thoroughly familiar with the facts of the case and able to provide valuable opinions and insights as required in planning the defence’ and that the role is strategic (R v Chaouk [2013] VSC 48 at 30).

Interim guideline

After considering the Court of Appeal decision, Victoria Legal Aid introduced an interim guideline allowing for an instructing solicitor with knowledge of the case for every day of the trial as and when required. The interim guideline acknowledged the importance placed by the Court of Appeal on having well-prepared instructors with knowledge of the case present during trials.

Our interim guideline ensured all legally aided trials could continue. Victoria Legal Aid undertook to consult on the instructing guideline.