Complex Criminal Trials

In a recent article in the SMH, Tim Game SC was quoted as saying that he knew of several barristers who did not apply for the complex trial panels recently created by the Legal Aid Commission of NSW. The panel is made up of some barristers selected from a larger group of barristers. Precisely who does the selection isn’t immediately apparent and the process seems based on paper applications by those seeking admission to the panel.

The panel, we are told, will work by allowing those on it to be paid more to do complex trials. What is a “complex trial” isn’t clear but no doubt it includes those areas of law that are fraught – sexual assault trials and especially those that are historical in nature or involve juvenile complainants. No doubt it includes arson cases that are marked by sophisticated forensic expert opinion. Surely it doesn’t include drug trials that, though lengthy because of telephone intercepts that need to be laboriously played to a jury, can be otherwise relatively straightforward. 

In any event, Mr Game SC observes that of those he knows who didn’t apply, some are happy not to be doing this sort of work. Though he isn’t quoted as saying so, perhaps his point is that the reason most practitioners (barristers or solicitors) are guarded when it comes to legally aided work is that it underpays for the work done while creating a very high burden on the practitioner to comply with Legal Aid Policy.

But is there not an issue that might be worthy of consideration? Is it possible that the barristers of NSW who have a long history of being independent and fiercely so are in danger of allowing a group within their ranks emerge as having a competitive advantage over their colleagues – not by virtue of their seniority (presumably that’s what silk is used to denote) but by virtue of their having been appointed to a panel of practitioners by a committee that considers them proper appointments? Is it not the case that quite apart from a “two-tier” system of justice emerging, what are we to say to clients whose barrister is not on the “in-list”? That they get second best?

I admit that I’m baffled that the NSW Bar Association would allow its members to be divided by an external party (a government one no-less) and it must surely come at a time of difficulty for the Bar (when it is confronted by agitation from within regarding silk-appointment) but what remains of question is how is it possible that we have a situation where Legal Aid underpays for trial representation (as Bill Grant of Legal Aid notes in the article) but is prepared to underpay a bit less for some and not others? 

All trials have the potential for complexity. Such is the nuanced and sophisticated nature of the trial system. Creating a division that determines some are complex and others are not based on objective criteria runs the risk of quickly becoming irrelevant in the multitude of variables that each trial will present. More than that, it suggests to the public and the client that there are more than one class of barrister and that Legal Aid is prepared to say so and maintain a list of those they prefer to do complex work. It seems to me that such a situation invites argument and controversy. Perhaps it should.

Meanwhile some of the very finest and hardest working barristers in the criminal bar fall outside the preferment list. They continue to be worthy of briefing and have fulsome private brief practice that are not marked by back-to-back legally-aided trials. What are we to make of that?

In the background to all of this continues the redoubtable solicitor – the backbone of legally aided work who continues to operate well beyond the $250 or so given for preparation that would normally cost four or five times that amount. Eventually practitioners will not be able to afford to take legally aided cases. Perhaps then the new list of special appointees will have to be enlarged as they will probably be the only ones left standing.

It’s time to pay fair rates for legally-aided matters. Fair is not determined by “whatever private practice charges minus as much as we can”. Fair is determined by reasonable market rates. 

Food for thought…

A Kernaghan.


New Office

We’ve moved to our new offices on Level 4, 2 Coombe Street Wollongong. Our contact number remains the same: (02) 4244-0339 and our fax is (02) 4210-8668.

Our new premises provides the firm with greater space in which to serve our clients with a dedicated client conference room, advanced I.T. facilities and a client archival system that provides faster access to files and client information than ever before.

APPREHENDED VIOLENCE ORDERS AND THE ISSUE OF COSTS

AVO Costs are Weighing Down
the Respondents.
Under the Crimes (Domestic and Personal Violence) Act 2007 section 99 says:
(1) A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section.
(2) Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 .
(3) A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious.
(4) A court is not to award costs against a police officer who makes an application unless satisfied that the police officer made the application knowing it contained matter that was false or misleading in a material particular.
(5) Subsections (3) and (4) have effect despite any other Act or law
The operation of these sections is such that respondents to applications are frequently put to substantial professional costs in answering an application for which there is little real prospects of success. The above section prevents in practice the successful awarding of costs in those circumstances. This can be especially outrageous when Police bring such applications on a plainly problematic basis and courts, at least in some areas, are conventionally reluctant to award costs against Police.
There is a paucity of common law authority on what constitutes a test for the assessment of whether or not an application for an AVO is frivolous or vexatious. The ordinary test for frivolity and vexation operates to create a high threshold for the operation of costs under the act.
It is an admirable feature of the legislation that victims of domestic violence need not worry about whether or not they should bring an application under the shadow of fear cast by the potential for a significant costs award against them. However the practical application of such a principle provides persons who are thinking of bringing applications, without any real or meaningful proof, to do so under what is the protection for a domestic violence victim.
Often clients have to be advised that even though they may have a perfectly legitimate defence against an application for an AVO, they should consider the financial implications of whether or not to proceed as they are unlikely if they win to recover their costs. Worse, clients must be warned that if they do not succeed at court, a costs order can be made against them. You only have to attend the Local Court on an AVO list day in Wollongong, Port Kembla, Albion Park, Sydney, Newcastle, really anywhere at all and see clients retreating from a defence in order to save money.
AVOs being of a nature that frequently sees the applicant appearing in person, are cases that typically suffer from time dilation. As is well-known matters involving self-represented parties often occupy a day, and sometimes more, of hearing time. The costs in such matters run into the thousands of dollars and a respondent to such an application, even upon a successful defence, is unable to recover any costs without first showing that the application was frivolous and vexatious to begin with. 
The difficulty with that high requirement is that it is rarely the case that the court will consider the claims in an application frivolous and vexatious unless, on its face, the application demonstrates a manifest lack of integrity. Registrars and Chamber Magistrates appear to frequently exercise their responsibilities in determining the legitimacy of applications to a very high standard of proficiency. With the consequence that, almost without exception, the applications that are put before the court are ones that on the face of it have a proper basis for adjudication. In those circumstances it seems that it is inevitable that the court will not find such an application to be frivolous or vexatious. However, that is not to say that the application was doomed to failure or had no real prospects of success from the outset.
The current reality of AVO’s is that their use extends well beyond the scope of victims of domestic violence who fear incurring substantial legal costs to secure their rights. It’s no secret that AVOs are frequently used as a stepping stone, tool or leverage in a wider family law dispute or as an addendum to care proceedings. Worse yet, we have seen an increase in the use of AVOs as a structured response to bullying in local secondary schools. An increase in the use of AVOs by children against other children, or by young adults against children, leads to circumstances where many young people are being confronted by incurring substantial costs in an attempt to defend. In the case of bullying this adds insult to injury. Yet bullying cases are a worthy example of how applications bought by a bully (alledging s/he is the victim of bullying by the respondent) are bound to be found more than merely frivolous or vexatious. 
It is important that the court have a capacity to order costs on behalf of the successful party. Not to do so is creating a prejudice which the original drafting of the legislation may well have overlooked. That prejudice is that young and disadvantaged parties (as well as victims of crime who are laboring under the burden of a cross application brought where the applicant is a defendant in criminal proceedings) are confronted with having to pay substantial legal costs to defend themselves. 
Consideration needs to be given to whether or not it would be appropriate for the law to facilitate a consideration of a costs award in circumstances beyond those presently contemplated by the section. Such amendments could allow for costs to be ordered irrespective of whether or not the party is the applicant or the respondent. At the very least this should be available where a successful respondent, seeking a costs order, falls into one or more categories of persons. Such categories might include:
a         – respondents who are under eighteen years of age, 
b        – persons who are currently involved in criminal proceedings as an alleged victim/complainant, 
c       – persons who are currently involved in care proceedings or family court proceedings, where the applicant party regarding the AVO is also a party. 

Aaron Kernaghan.

UPDATE: On 23 January I wrote reps to the Attorney General NSW regarding this issue. The matters raised here have been incorporated into a review of this area of law that the Criminal Law Review Division is currently undertaking.


Women on the Local Court Bench

The Court House at Wollongong.
There are approximately 160 Local Courts
in NSW, each presided over by a magistrate.

The recent appointment of Susan O’Neil (last year) to the Land and Environment Court and Karen Stafford (January 16) to the Local Court bench of NSW is a reminder of the achievement of women practitioners in the legal profession, taking a rightful and important place in the NSW judiciary.


The magistracy is a core element of the work of local courts that interacts with the community on a daily basis in thousands of matters each year. Quite apart from the ethical aspect of gender equality on the bench, ensuring the bench has female members helps to maintain its continued relevance to the community it adjudicates. 

Yet, it can be the case that some regional court centres, away from Sydney, see the same exclusively male magistrates rostered to take the bench year-after-year. The positive and “equalitative” appearance of a female magistrate is sometimes relegated to an occasional relieving-magistrate visit. 

We live in times where clients and participants in the court process are both informed of court process and principles and are very aware of their application. This is especially so where criminal courts sit – having many court dates for a matter such that a client comes to have a degree of familiarity with who sits on the bench. Clients often ask, “are there any women magistrates?” and of course the answer is yes. But, in some court complexes, it is easy to see how a client might pose the question, not having seen a female magistrate in a good while. Wollongong NSW is an example that I’m most familiar with though I’ve seen a similar situation elsewhere as well.

No doubt that the practical realities of organising the allocation of magistrates throughout a state as geographically diverse as NSW is logistically significant and I am certain that the Local Court of NSW has many challenges to meet in trying to ensure every bench is covered precisely where and when it is needed. The challenges will continue to grow with the state’s population and it’s move outwards from the metropolitan region. The need for diversity on the benches in those increasingly populous regional areas is therefore going to become more significant.

The ethnic, gender, age and experience diversities of the NSW Magistracy are some of its greatest attributes, ensuring a breadth of experience that is complimented by the legal profession that daily contributes to it. Its in keeping with that honoured tradition that the Magistracy continues to ensure gender diversity in its roster of magistrates, particularly in regional court centres throughout NSW.

Aaron Kernaghan