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.