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New aid policy alarms lawyers

Monday, 18th November, 2013

By Craig Brealey

Now in NSW if you are charged with a criminal offence you can get a lawyer on legal aid - but only if you plead guilty.

Plead not guilty and you will have to defend yourself unless there is a very good chance that you will be sent to jail. 

A jail term is defined as a full-time prison sentence, a suspended sentence, an intensive corrections order or home detention.

The new policy, introduced this month, has alarmed Broken Hill lawyers who say that it has very serious implications for the administration of justice in this State.

Legal aid has never been available to everyone; applicants have always had to meet a means test to show they do not earn enough money to hire a lawyer and satisfy other criteria relating the expenditure of public funds and the type of charges brought against them.

The new policy also does not apply to children and exceptions may be made for with a proven psychiatric or intellectual disability.

But, says William Buxton, the President of the Far West Regional Law Society, the changes could very well result in unjust decisions and obstruct the running of the overloaded Local Court system .

Broken Hill has three lawyers who represent people who qualify for legal aid. They are also know as “duty” lawyers because they share that duty between them.

“One of our biggest concerns is if you come to court to talk to a duty lawyer and say ‘I want to plead not guilty’ and the lawyer says ‘I can represent you if you plead guilty but if you plead not guilty you’re on your own,’” Mr Buxton said.

“That in itself makes it more likely that people will plead guilty to a charge.

“It must contribute to inequality before the court.

“The Law Society believes this will encourage people to plead guilty, deprive them of their right to defend a charge, promote inequality in the application of the law, cause delays in the Local Court and has the potential to foster the abuse of process.”

Most people who came before the courts are from disadvantaged backgrounds - the poor, ill-educated and the functionally illiterate.

Yet such people, if they wanted to fight a charge, were now expected to defend themselves against an experienced police prosecutor and, on occasions, lawyers acting for other parties.

“They would not know if the charges against them were the appropriate charges, or even if too many charges had brought against them,” said Mr Buxton.

“They would also have to know whether the evidence against them or that in their defence was even admissible in court.

“A magistrate can do some things to even the balance but in an adversarial system he or she can only go so far.”

The magistrate’s work would also be profoundly frustrated by ordinary people struggling to defend themselves and court cases would inevitably take longer than they should.

There were other dangers as well, Mr Buxton said.

“A person might plead guilty to a charge and not be sent to jail. But then they might breach their bond and end up in jail on a charge for which they should never have been convicted.”

The new policy also raises issue of civil liberties, he said.


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If someone wanted to make a complaint about an abuse of power, for example, or police using excessive force against them, but were ineligible for legal aid, then they may have to argue the case themselves and this would put them at a distinct disadvantage.

The government had every right to save taxpayers’ money wherever it found inefficiency or waste but the cuts to legal aid were simply unfair, Mr Buxton said.

“They can cut costs but not at the expense of the most vulnerable people in our society, and often they are the most vulnerable.

“There are many people with undiagnosed, or not fully diagnosed, psychiatric conditions or intellectual disabilities that will affect their ability to represent themselves in court.”

Mr Buxton presented the following as an example of the injustice latent in the changes to legal aid:

“Let’s say you and I are both charged with something. You blame me and I blame you. Assume that I can get legal aid but you can’t. You will be in court against the police prosecutor and my lawyer, and you will be defending yourself.”

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