Bail and human rights – new decision

source site Bell J, in his customary comprehensive style has given a significant judgment about the threshold questions for bail and how they relate to the various human rights reflected by the Charter. In particular, he discusses the relationship between unacceptable risk and show cause. Congratulations to members involved. Woods v DPP [2014] VSC 1 (17 Jan 14)

Viagra för kvinnor billigt CRIMINAL LAW – bail – human rights – fundamental common law rights and liberties – whether applicants represent unacceptable risk – whether applicants showed cause why detention not justified – imposition of conditions compatibly with human rights of applicants – onus of proof with respect to unacceptable risk in show-cause situations – bail of child-accused – ‘presumption of innocence’, ‘liberty’, ‘freedom of movement’ – ‘unacceptable risk’, ‘exceptional circumstances’, ‘show cause’ – Bail Amendment Act 2010 (Vic) – Bail Amendment Act 2013 (Vic) – Bail Act 1977 (Vic) ss 45Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 1221 and 25.

Responding to the VLA review

enter site The CBA is working to preserve and advance the status of our members – the Criminal Bar – as the provider of counsel in criminal trials.  We write to update you about current legal aid developments, and to seek your feedback and comments.  We mean to put strong submissions.  They are due in six weeks. Legal Aid has released its Consultation and options paper, entitled “Delivering High Quality Criminal Trials”.  The paper is publicly available (see post below). As you will see, many models are on the table.  Matters of interest to our members include the following:

  • Accreditation;
  • Direct briefing (or “solicitor-lite” briefing) of barristers by Legal Aid;
  • Fixed or sliding fees for specific phases of the process, including trial;
  • Augmented preparation fees;
  • Instructing solicitors only “as needed”;
  • Indictable trial panels;
  • Expanding the practice of Legal Aid to include more trial-ready Public defenders;
  • Major trials to be intensely managed (or, per option 34, assigned to Public defenders);

Responses should consider the desirable overall scheme, not merely the attractiveness of individual proposals.  A holistic vision is needed.

We should not take for granted that the Bar is assured an ongoing role of significance, but we should make submissions on the basis that the Bar provides the best trial representation possible.  The Committee believes that there will be major change, and that the Bar will remain relevant by advancing a clear vision of what is needed.  The Committee will do this, and welcomes your input.

Our preliminary view is that we must pursue a model that preserves the trial role of barristers.   The interests of justice and the health of the criminal bar (including its junior members) are favoured by preserving our central role in criminal trials.  We believe that means committing to some form of accreditation and to a willingness to embrace a system involving augmented continuity of counsel.  The CBA, with the Victorian Bar, supports a model incorporating the following:

  • Augmented, targeted CPD seminars;
  • Focussed mentoring/shadowing;
  • Some level of review or assessment (including a mechanism to deal with allegations of impropriety or incompetence).

The Criminal Bar in Victoria is strong, well-trained and respected.  We deliver excellent representation to the parties in criminal litigation, prosecution, defence and others including victims, witnesses and investigating agencies.   It is right that barristers continue to play that role: our shared experience, expertise and collegiate knowledge leave us well-placed.  The community benefits from our expertise, and we also enjoy the benefit of a worthwhile vocation.

The primary challenge we face in 2014 is not to chase better fees, but to ensure we are not replaced by competitors: chiefly, by in-house counsel of various types.  This challenge is not illusory: Magistrate’s Court criminal work has been almost entirely taken by duty lawyers and private solicitors.  Now that legal aid is restricted, competition for legally aided trial work has stiffened.  That competition is sharpened by Legal Aid’s spending priorities.

The challenge is acute for junior barristers.  These colleagues are currently disadvantaged in two ways.  In-house advocates advance their claims for trial work based largely upon the accreditation as specialists they enjoy: currently, the Criminal Bar does not have this.  Secondly, junior barristers are now denied access to the previous hard training-ground of Magistrates court contests.  Both these disadvantages must be faced.

The CBA also wishes to deal with criticisms advanced against barristers, based upon the perceived incompetence or intransigence of a few.  These criticisms are often unfair and opportunistic, but in the absence of some quality-control mechanism, they can be made without rebuttal.  This matter must be addressed, and the mere existence of the ethics committee is patently insufficient.

We welcome suggestions and comments from members. Please send them to Fiona Todd.

Conference for prosecuting counsel (28 Apr)

Private counsel who are briefed to appear for the DPP will be invited to a one day conference on Monday 28 April 2014 (9am-4pm). Personal invitations will be sent out, but you may wish to note the date in your diaries. The conference will be held in Melbourne, covering the DPP’s procedures and policies and recent developments impacting on criminal prosecutions. Conference presenters will include leaders from the courts and the Crown Prosecutors’ Chambers.

Vale Peter Clarebrough

Peter Clarebrough passed away on 29 December after a long illness.

Peter was a much-loved and highly respected practitioner. He ran many famous trials, and lent his intelligence, tactical nous and scientific acumen to all his cases. But Pete will be remembered most for his kindness, his diligence on behalf of poor and difficult clients and his comradeship to all of us in the criminal law. Pete was beloved by the Fairlea girls, who could always trust his courtesy, decisiveness and candour; their respect spoke volumes for his character. Pete was a great friend of the Bar, and we are all sad that he has gone, though happy he is at peace.

The funeral is at Our Lady of Good Counsel church, Whitehorse Rd Deepdene, at 2pm on 8 January 2014.