Covering the Gaps in Legal Aid Cases

In today’s Australian an article by Nicholas Patrick raises the issue of just how far pro bono legal representation can go to cover the gaps left in representation for legally aided (government funded) representation. The article is here.

The issue of course is that often the needs for legally funded representation are greatly underwhelmed by the realities of the process, especially so in criminal litigation where the current standard grant of legal aid covers a couple of hours in court and less than an hour of preparation time (often including time to speak with the client). Additional permission must be sought to lodge subpoenas which of course doesn’t take into account the time necessary to prepare them. The result, many legal aided cases may well proceed on the leanest conditions and without a full set of the tools that a complete defense require.

Anyhow, interesting reading and some food for thought.

Timely reminder to know your rights.

At Court this morning we encountered another example of where it is vital that you know your rights. Drink-driving is a serious matter and charges can lead to significant impact on your driving rights and even to gaol sentences. For that reason the NSW Parliament has developed a set of laws that relate to traffic matters. These laws and their operation can be quite complex and at times seem daunting. 

Our case involved a situation where Police had arrested a fellow for failing to provide a breath sample when asked to do a breath test. He was taken back to the Police Station, further requested to provide a sample (which he did not) and ultimately charged with the offence. The only problem is – he was never asked in the first place to provide such a sample. That’s an essential first step, perhaps a simple oversight but an important one. The legislation requires the procedure be followed carefully and professionally by Police in all circumstances. Where it’s not, it can lead to the charges being withdrawn or dismissed at court (as happened here).

People going before the courts, facing such serious charges, will often choose to plead guilty – get it over with and cause minimal fuss. Perhaps the cost of a lawyer isn’t something they are prepared to pay for. But the simple fact is that the laws are not just there to create offences you can be charged with – they are also there to ensure proper procedure, due process, fairness and rights. If you know your rights, you can win the day. If you don’t know your rights, as this case showed, you should get a lawyer who can help you.

For Urgent Assistance Call:
(02) 4244-0339

Litigation as Civil Protest, Disobedience and Objection

For a very long time litigation has been synonymous with the image of lawyers as craven, money-grabbing or unnerving to the common-law lawyer, “American-style” in their pursuit for law suits and pay-outs of mythological proportions.

Such a concept is one ready-made for acceptance – it appeals to and speaks from a cynicism of those who speak on our behalf. That cynicism is easily recognised in professed doubts and dubiousness about politicians. But the same doubt in those that speak for us has an obvious connection to the role of “lawyer” and especially so of that most notorious of legal eagle – the criminal defence lawyer. 

Defence lawyers don’t always help – we are ever-present at the edges of society, ready to assist when called-upon to do so. But our preparedness clothed in the integrity of our professional is rarely taken for the vigilance and attentiveness that it is.

Perhaps this is so because, like an ambulance, the defence lawyer is only ever called upon to enter the lives of their clients when darkness clouds their day. After the nuclear explosion of being arrested and charged, our clients struggle through the long night of the fall that is the inevitable fall out from such a tremendous disruption in their lives. Only in the midst of this turmoil does the citizen turn to a lawyer for help.

NSW Court of Appeal.
Photo: John Reid
At these times, the lawyer will often be the only person prepared to talk and listen to the increasingly isolated client. In the post-apocalyptic landscape of the post-arrested soul, the lawyer’s omnipresence is a little too in common with the humble cockroach. The ambulance is a sign of trouble, the cockroach a pest that we are told will last past a nuclear winter.

So the defence lawyer is that dreadful creation of a dignified society, a person who challenges its essential assumptions and acts and thereby is both enemy of the state and its protector. For all the capacity, the presence and prescience with which a defence lawyer self-promotes, it is our status as the contrarian, the disobedient individual who challenges on behalf of a fellow citizen,  that renders us most especially a collective group of unsavouries.

Litigation is a method of civil disobedience in a civilised society. It is a mechanism that permits private parties to pursue their view in disputes and quarrels with their community or others within it. In criminal litigation especially, it is the process by which one individual may challenge the entire government with a demand of proof. Such demands are facilitated by a process that affords a person the right to question, investigate, probe and dispute. 

The benefits to all citizens are significant and perhaps fundamental. The litigator is armed in his or her course of civil disobedience with powerful forensic tools that enable them to go behind assertions and allegations, into the details of government. This is followed by testing, checking, analysis and occasionally challenge and disputation of the actions and assertions bought against you. 

In this way, litigation allows an individual to never be coerced into admitting they did something where they did not. It permits that no-one need bare false witness or countenance the abrogation of their rights. Where there has been a wrongful arrest, Police brutality, a wrongful accusation or a lie against another, litigation is the means by which the victim may stand firm and defy the weight of opinion or power that may be raised against him/her.

The result is substantial in principal and practice. One individual may exercise civil disobedience with as much strength and vigour as a riotous mob. There is no need for getting numbers to advance your petition, nor is there a need to take up arms and visit violence on others (whether you have the strength to do so or not). Instead, our approach is to permit a forum for the most earnest challenges to be bravely and fearlessly bought in a system that permits such challenges, so long as we agree to submit to the independent judgement of the court.

Darlinghurst Court NSW where
in 1923, a new section was
opened for the then homeless
High Court of Australia.
To appropriate someone else’s worthy phrase, litigation is war by other means. Of course the warfare of the citizen is really those acts of protest, disputation and discourse that we regularly engage in so as to advance the development of the dignity of our community while arresting any harmful changes to our society. Protest must not be considered the acts of the stereotypical “un-bathed, fringe-dwelling small “l” liberal” whose days are  preoccupied with the fastidious establishment of tents in our squares of commerce. Protest can come in the form of the thinker who asks for a pause in proceedings so that the value of collective efforts may be considered. In other words, preventing assumption and provoking contemplation on all aspects of a society’s efforts is a type of protest. It stops, however haltingly, the momentum of a state so that its actions may be tested for validity. The work of legislators yields similar results (as do the efforts of many of the commissions of inquiry, law reform establishments and policy think-tanks that accompany the legislator on his/her modern walk to work).

In the criminal justice system, litigation affords the one the powers of the many. This is done by placing a decision on the validity of accusations in the hands not of a government appointee but in those of one’s peers. These people are drawn from the community and invested with free and unaccountable decision-making. That litigation depends upon this fundamental approach to resolution is an inviolably significant statement of a civilised community investing the power to challenge in the hands of the weakest (by nature or misadventure) among us. Litigation is our golden shield and our most worthy sword.

Litigation has a resonance in Australia. Our history is one of constitutional formation emanating from debate and discussion, challenge and agreement. Australia was not born as a nation by an act of violent opposition against the monarch but from a considered discussion, the results of which were written down in our entirely worthy constitution. We established a nation without a single sword blow or act of aggression. Not one. We came into being by discussion and set on its course a history of constitutional development and contemplation that continues to this day.

Litigation is the very same act – the process of discovery through discussion, dispute through debate, disobedience through questions, challenge to the order of things by a defence in court. It is a fundamental process that speaks of the value we place on a dignified contemplation of contemporary troubles to the exclusion of the red mists and anarchy of violence. 

We are a nation built upon the debate of wise minds not the blades of young men. We should value that and protect against any attempt to foreshorten or forestall such discourse. If for no other reason than that such a noble history of enlightened civility is worthy of our present and future fidelity.

Aaron Kernaghan.

Where do we Provide Representation?

Kernaghan & Associates provides representation for all
criminal litigation matters that come before
most of the state’s courts including:

Wollongong District Court
Wollongong Supreme Court
Campbelltown Local Court
Campbelltown District Court
Nowra Local Court
Nowra District Court
Albion Park Local Court
Kiama Local Court
Moss Vale Local Court
Port Kembla Local Court
Port Kembla Children’s Court
Gosford Local Court
Gosford District Court
Newcastle Local Court
Newcastle District Court
Sydney Local Court
Sydney District Court
Sydney Supreme Court
Central Local Court
Parramatta Local Court
Parramatta District Court
Parramatta Children’s Court
Goulburn Local Court
Goulburn District Court
Penrith Local Court
Penrith District Court

Other Courts We Appear In from Time to Time:
Bankstown Local Court
Bathurst Local Court and Bathurst District Court
Burwood Local Court
Camden Local Court
Coffs Harbour Local Court
Coffs Harbour District Court
Goulburn Local Court
Goulburn District Court
Hornsby Local Court
Katoomba Local Court
Liverpool Local Court
Mt Druitt Local Court

Our Team: Aaron Kernaghan

Aaron Kernaghan LLB Hons BA GradDip(LP)
Principal Solicitor
Aaron Kernaghan is the principal lawyer at Kernaghan & Associates and leads a team of solicitors who practice exclusively in criminal law. With over a decade of experience in criminal law, Aaron is a highly successful litigation lawyer who focusses on sophisticated criminal litigation and advice work. He has an extensive trial, appeals and hearing practice and leads our team in the more complicated trials (including homicide, robbery, fraud and sexual assault defences).

Litigation Work
Assault – Actual Bodily Harm, Wounding & Grievous Bodily Harm;
Robbery, Armed Robbery, Aggravated Robbery, Robbery in Company;
Sexual Assault – Aggravated, Indecent Assaults, In Company;
Fraud (Commonwealth and State);
Apprehended Domestic Violence Orders (AVO) and Personal Violence Orders (PVO);
Subpoena Privilege Argument, Advice and Representation;
Complex Criminal Prosecution and Defence Advice;
Appeals to the NSW Court of Criminal Appeals; Supreme Court Bail Applications; District Court Trials, Severity and All Grounds Appeals.


Law Society of NSW
International Bar Association
International Criminal Defence Attorneys Association
Sydney Forensic Medicine & Science Network at the University of Sydney
Wollongong Law Society

Courts He Practices In
Albion Park Local Court
Albury Local Court and Albury District Court
Balmain Local Court
Bankstown Local Court
Batemans Bay Local Court
Bathurst Local Court and Bathurst District Court
Bega Local Court and Bega District Court
Bowral Local Court
Bidura Children’s Court
Burwood Local Court
Byron Bay Local Court
Camden Local Court
Campbelltown Local Court and Campbelltown District Court
Central Local Court
Cessnock Local Court
Cobham Children’s Court
Coffs Harbour Local Court and Coffs Harbour District Court
Cooma Local Court
Downing Centre Local Court
East Maitland Local Court and East Maitland District Court
Eden Local Court
Fairfield Local Court
Gosford Local Court
Goulburn Local Court and Goulburn District Court
Gundagai Local Court
Gunnedah Local Court
Hornsby Local Court
Katoomba Local Court
Kiama Local Court
Kogarah Local Court
Lismore Local Court
Lithgow Local Court
Liverpool Local Court
Maitland Local Court
 Manly Local Court
Moree Local Court and Moree District Court
Moruya Local Court
Moss Vale Local Court
Mt Druitt Local Court
Newcastle Local Court and Newcastle District Court
Newtown Local Court
North Sydney Local Court
Nowra Local Court
Parramatta Local Court and Parramatta District
Parramatta Children’s Court
Penrith Local Court and Penrith District Court
Picton Local Court
Port Kembla Local Court
Port Macquarie Local Court and Port Macquarie District Court
Queanbeyan Local Court and Queanbeyan District Court
Ryde Local Court
Sutherland Local Court
Sydney District Court
Taree Local Court
Wagga Wagga Local Court and Wagga Wagga District Court
Wollongong Local Court and Wollongong District Court
Yass Local Court


I need a lawyer – how does it work?

When you need a lawyer, this is how we work:

STEP ONE: You contact us (02-4244-0339)
We will briefly discuss with you your case and organize a consultation for you with one of our lawyers. Generally consultations are available within seven to eight days of your call or in cases of emergency we will make special arrangements. 

STEP TWO: First Consultation
This is your opportunity to bring any paperwork or notes you have relating to your case. We will go through that paperwork and obtain information from you regarding your case. Once we have sufficient information we will be able to give you advice concerning how to proceed. Then it’s up to you to instruct us how you want us to run your case. We will help you by making sure you have all the information you need to work out what your next step is but it is always up to you to decide.

We provide you with information on our anticipated legal costs in representing you. Before we proceed you have the opportunity to agree to our costs or, if you wish, to seek other representation. Generally our costs are set out as a flat fee rather than an hourly rate. This helps you by ensuring you know precisely what your costs are before commencing with your representation and ensures that your matter isn’t drawn out unreasonably.

STEP FOUR: Going to Court.
As we are a criminal litigation practice, the next step generally involves going to court on your behalf. This can be to make representations for you in a sentence matter or to defend you against Police allegations (in a hearing matter). 

If you have been spoken to by Police, they wish to interview you or you are being charged we urge you to contact us before you take further action. We always advise that you don’t participate in an interview with Police until you have first sought legal advice.

Contact us on 02-4244-0339 for assistance.
See our website for more information.