Summary The Victorian Court of Appeal has unanimously confirmed that a court can stay a criminal trial where the absence of an instructing solicitor on a day to day basis throughout the trial is likely to result in an unfair trial. The decision upholds the first instance finding by Justice Lasry in R v Chaouk  VSC 48 (15 February 2013).
Mr Chaouk was to stand trial on several charges, including a charge of murder. The trial was estimated to take two to three weeks. Victoria Legal Aid determined to fund an instructing solicitor for Mr Chaouk for only two half days of the trial.
The issues for trial were not regarded as complex. There was, however, a great deal at stake for Mr Chaouk. At first instance, Justice Lasry in the Victorian Supreme Court held that the absence of an instructing solicitor would “substantially increase the likelihood of errors being made or important matters being overlooked by counsel”. The trial of Mr Chaouk was therefore “likely to be unfair in the sense that it carries a risk of improper conviction”. Justice Lasry adjourned the further hearing of the trial until counsel for Mr Chaouk had the assistance of an instructing solicitor on a day to day basis for the duration of the trial.
The Director of Public Prosecutions sought leave to appeal the order. As Victoria Legal Aid declined to alter its determination, it was argued the order had become “in effect, a permanent stay of the serious criminal charges the subject of the indictment” with the result that “there is a very strong public interest that the correctness of that decision be the subject of appellate scrutiny”. As a matter of law, it was argued that Justice Lasry’s determination involved an erroneous departure from the principles laid down by the High Court in Dietrich v The Queen (1992) 177 CLR 292, as interpreted in Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370.
A preliminary issue was whether the court would hear the appeal, given the Director did not oppose the order at the time it was made. The court does not ordinarily entertain an appeal by a party on the basis of a point of law raised for the first time on appeal.
The Director argued there were exceptional circumstances, as the stay ordered was in substance a temporary stay, and the stay now being appealed was a permanent stay. It was argued that the stay became permanent only when the relevant bodies confirmed they would provide no or no further funding, whereupon the Director applied to the judge to vary the order.
The court rejected this argument for a number of reasons:
- Justice Lasry’s order was conditional, but not temporary.
- The orders were also made on the basis of Justice Lasry’s finding that a trial without an instructing solicitor for each day would not be a fair trial. It necessarily followed that to render the trial fair, Mr Chaouk must be allowed an instructing solicitor for each day of the trial.
- The determination that a fair trial requires the attendance of an instructing solicitor for the duration of the trial is “logically unaffected” by the relevant bodies refusing or reiterating their refusal to provide funding.
Accordingly, to allow the Director to oppose the making of the order on appeal would be “to allow the Crown to advance a new and radically different point for the first time on interlocutory appeal”. This was not justified by the circumstances of the case.
In any event, even if the Director was permitted to advance that point for the first time on appeal, their Honours were not persuaded that Justice Lasry had erred in his finding. They reasoned as follows:
- His Honour had correctly applied the decision in Dietrich when he considered whether the trial was “likely to be unfair” in the circumstances. Contrary to the Director’s submission, Justice Lasry did not say that the test was whether there was a “mere risk”, but rather whether the absence of an instructing solicitor would produce a “substantially increased … likelihood of errors being made or important matters being overlooked by counsel” such that “the trial [was] likely to be unfair”.
- The Court of Criminal Appeal in Milat held that it is not necessary for trial judges, in dealing with stay applications, to assess the relative degrees of competence and experience of lawyers. The question before Justice Lasry was whether the trial would be unfair because Mr Chaouk would only have a solicitor present for two half days of trial. The reasoning in Milat was “not in the least determinative” of that question.
- It had not been shown that Justice Lasry had, in exercising his discretion to grant a stay, proceeded upon wrong principle, taken into account irrelevant matters, failed to take into account relevant considerations or made a decision so plainly unjust that it may be inferred he failed to properly exercise his discretion.
The court went further, saying that “so far from his conclusion being so plainly unjust as to imply that his Honour must have failed properly to exercise his discretion, we find it difficult to imagine on the particular facts of this case that his Honour could properly have come to any other conclusion”.
During the proceedings, lawyers for Mr Chaouk had argued that rights in the Victorian Human Rights Charter to a fair hearing and rights in criminal proceedings provided an additional basis for the grant of a stay. The court declined to consider these issues, as the case was capable of being decided in favour of Mr Chaouk without resort to the Charter.
The Court of Appeal’s decision confirms that a court may stay a criminal trial where the absence of an instructing solicitor is likely to result in an unfair trial. Justice Lasry’s decision suggests that this will be the case where the charges are serious or the issues are complex.
The Court of Appeal decision also confirms that Charter issues will not be entertained on an interlocutory criminal appeal where it is unnecessary to do so. Despite the intervention of the Attorney-General of Victoria and the Victorian Equal Opportunity and Human Rights Commission, and the proposed intervention of Victoria Legal Aid, the Victorian Bar and the Law Institute of Victoria, the court in this case declined to consider Charter issues. Nevertheless, their Honours did note, with respect to the submissions provided by each of the parties, that:
It should not be thought, however, that we are unappreciative of the work so obviously devoted by all parties to their written submissions or that we have failed to derive considerable benefit from them in coming to our conclusion.
This decision is available online at: http://www.austlii.edu.au/au/cases/vic/VSCA/2013/99.html
Emma Newnham, Law Graduate, King & Wood Mallesons.