LAW1LIM Lecture 6: LIM Lecture 6
LIM Lecture 6 – Access to Justice: Legal Representation in Criminal Law
VLA – Types of Assistance
– Legal Help Line (Advice) -
– Legal Information -
– Duty Lawyer Service
– Funded case work
– Program Areas
– Chambers – In-house barristers and advocates.
Providers of Legal Representation
• Private Representation
• Victoria Legal Aid funding: In-house, Private Panel Firm
• In person – fails to qualify or refuses assistance
Funding Representation in Criminal Cases
• VLA – Funding Guidelines
– Matter type and seriousness
– Level of assistance
– Means test
– Merit test – challenging allegations
– Priority client groups i.e. Children
– Section 197 Criminal Procedure Act 2009 – Supreme and County Court Trials only.
Funding Representation for Criminal Trials
• In most situations, legal representation is necessary to produce a fair trial (Attorney-General for New South
Wales v Milat (1995) 80 A Crim R 530; Dietrich v R (1992) 177 CLR 292)
• A trial court can order VLA to provide legal representation to an accused on any conditions specified by the
court if it is satisfied that:
– it is unable to ensure a fair trial for the accused unless he or she is legally represented; and
– the accused requires legal representation because he or she is unable to afford the full cost of obtaining
private legal representation (CPA 2009 s197)
Legal Representation to Ensure a Fair Trial
• The law presumes that a trial without legal representation is unfair. The accused does not need to
demonstrate that there is a "triable issue". Unless the accused waives the right to representation, the
presumption will only be rebutted in a very exceptional case, where the court is satisfied that legal
representation could not have any impact on the outcome of the case.
• A court must be careful in accepting that this presumption has been rebutted, as it is often those who appear
on a preliminary view to be guilty that are most in need of legal representation
Need for Representation to Ensure a Fair Trial
The following risks to a fair trial arise when an accused is unrepresented:
– possible reception of inadmissible evidence;
– failure of accused to give evidence;
– failure of accused to properly test the prosecution evidence;
– deficiencies in accused’s address to the jury;
– the potential for the trial to be terminated or miscarry; and
– the added burden placed on the trial judge when the accused is unrepresented
Need for Representation to Ensure a Fair Trial
• The judge must, however, be satisfied that the court cannot provide a fair trial in the absence of legal
representation. It is not sufficient for the judge to be
satisfied that representation would make the trial quicker,
more orderly or easier to conduct.
• Legal representation is not an essential precondition of a fair trial if the accused refuses representation. The
wishes of the accused are a relevant factor in determining the content of the obligation to ensure a fair trial.
Document Summary
Lim lecture 6 access to justice: legal representation in criminal law. Providers of legal representation: private representation, victoria legal aid funding: in-house, private panel firm, in person fails to qualify or refuses assistance. Funding representation in criminal cases: vla funding guidelines. Section 197 criminal procedure act 2009 supreme and county court trials only. Funding representation for criminal trials: in most situations, legal representation is necessary to produce a fair trial (attorney-general for new south. It is unable to ensure a fair trial for the accused unless he or she is legally represented; and. The accused requires legal representation because he or she is unable to afford the full cost of obtaining private legal representation (cpa 2009 s197) Legal representation to ensure a fair trial: the law presumes that a trial without legal representation is unfair. The accused does not need to demonstrate that there is a "triable issue". Need for representation to ensure a fair trial.
