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.


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

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