We arrange lawyers for many people accused of committing crimes in Victoria. Often, members of the community ask why we use public funds to help people charged with serious and sometimes shocking offences. While the emotional nature of these cases can be overwhelming, there are many practical 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. We assess everyone 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 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 not possible to properly test the evidence without the assistance of a lawyer.
Legal representation prevents mistakes. In cases where more than one person is accused of participating in a crime, representation ensures the degree of culpability or blame is apportioned fairly.
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. Advice might include recommending a client plead guilty to a lesser and more appropriate charge if the prosecution agrees.
Because a fair trial is crucial to our system of justice, courts will not allow trials to proceed if they find an unrepresented person is unable to put their case fairly before the court. This can leave 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 be traumatic for victims and their families.
Trials are also more efficient when lawyers are involved. Criminal lawyers can 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 give 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 a legal outcome. We fund appeals to ensure any legal mistakes, such as a wrongful conviction or an unfair sentence, are corrected to keep the system fair and just.
Most appeals we fund are applications to reduce sentences. We only pursue these cases when a skilled lawyer believes there was an error in sentencing. This is part of the administration of justice, if a mistake has been made, it should be corrected.
Not every appeal is successful, but all appeals can serve an important purpose by clarifying points of law. The outcome of one appeal may affect whether countless others go ahead, potentially saving the court system time and money into the future.
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 fairly. This is in the interests of justice, victims and the community.
This power was given to the courts after the High Court case of Dietrich v R (1992) 177 CLR . That case established that legal representation is sometimes essential to ensure a fair trial. Spending public money on legal representation is preferable to indefinitely stopping or delaying a trial, 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. 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 that appear to be theirs may be owned by someone else. If they do own assets, they may have been frozen or confiscated by the . Confiscated assets 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 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 diverting funds away from other important legal aid functions, such as family law.
More information
- Learn about all of our legal services.
- Read more about our guidelines for legal aid grants.
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au
Reviewed 15 March 2022