There is a right to representation as part of an accused’s overarching right to a fair criminal trial, but it’s rarely going to give rise to an enforceable remedy. (And what is a right without a remedy?) When faced with the unavoidable prospect of an unfair trial, a trial court should not order unwilling representation for an accused when no one will act for them, but instead order the stay of proceedings; if necessary, permanently. That kind of circumstance will also be rare.
The Victorian Court of Appeal [Warren CJ, Nettle and Redlich JJA] made these points when answering three questions referred to it by the County Court under s 33 of the Charter of Human Rights and Responsibilities Act 2006.
The Court of Appeal held in Slaveski v Smith & Anor  VSCA 25,
- 1) Section 25(2)(f) of the Charter doesn’t require that the word trial in s 197 of the Criminal Procedure Act 2009 be interpreted to include trials of indictable matters heard on appeal from the Magistrates’ Court. (If it did, judges would be able to order Victoria Legal Aid to provide free legal aid in those cases); and
2) That section of the Charter doesn’t create an enforceable right to the provision of legal representation to a person who fits eligibility criteria of the Legal Aid Act 1978, independent of the exercise of the discretion by Victoria Legal Aid under the Legal Aid Act 1978; and
3) The right to a fair trial pursuant to s 24(1) of the Charter operates to include the right to be legally represented, but only if the absence of legal aid would preclude the court from reaching a just decision.
In deciding those questions the Court of Appeal considered the (divided) judgement of the High Court in Momcilovic v R  HCA 34.
The ‘right’ to representation
The Charter isn’t silent about representation in its provision of minimum basic entitlements in criminal proceedings. It creates very limited and qualified rights at ss 24 and 25:
25. Rights in criminal proceedings
(2) A person charged with a criminal offence is entitled without
discrimination to the following minimum guarantees-
(a) … ; and
(b) … ; and
(c) … ; and
(d) to be tried in person, and to defend himself or herself personally or
through legal assistance chosen by him or her or, if eligible, through
legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and
(e) to be told, if he or she does not have legal assistance, about the
right, if eligible, to legal aid under the Legal Aid Act 1978; and
(f) to have legal aid provided if the interests of justice require it,
without any costs payable by him or her if he or she meets the
eligibility criteria set out in the Legal Aid Act 1978; and
(g) … ;
The Legal Aid Act naturally gifts quite a lot of discretion to VLA in deciding whether or not to award a grant of aid. When enacting the Charter it wasn’t intended that VLA’s discretion to decide whether or not to fund was removed. While (2)(d) and (f) recognise a right to representation, it’s only in a vague and conditional way.
The Court described the progress of the matter this way [beginning at 2]:
The plaintiff was charged with an offence of making threat to kill, which is an indictable offence, but was tried summarily in the Magistrates’ Court pursuant to s 25 of the Magistrates Court Act 1989. Following a hearing which lasted several days, he was convicted and sentenced to a term of imprisonment to be served by way of Intensive Correction Order.
From his conviction, he appealed to the County Court pursuant to s 83 of the Magistrates’ Court Act. He was granted legal aid. The appeal was first listed to be heard on 11 February 2008 but was adjourned for hearing to 26 May 2008. When the matter came on for hearing on that day, the plaintiff’s counsel withdrew and thus the matter was adjourned for hearing to 29 April 2009. When the matter came on for hearing on 29 April 2009, the plaintiff was represented by other counsel, but after a disagreement that counsel sought and was granted leave to withdraw. Thus the matter was refixed for hearing on 23 November 2009.
In the meantime, Victoria Legal Aid (VLA) revoked the plaintiff’s grant of legal aid in this and an unrelated proceeding because he refused to follow reasonable advice and was in breach of the terms of his grant of legal assistance. When the present matter came on for hearing on 23 November 2009, the plaintiff appeared unrepresented. He also objected to the judge who had been assigned to hear the case. Hence, the matter was referred for hearing to Judge Gullaci on 12 April 2010.
When the matter came before Judge Gullaci on 12 April 2010, the plaintiff again appeared unrepresented and stated that he would defend the case in person. His Honour, however, took the view that the plaintiff would be ‘seriously disadvantaged’ by his lack of legal representation, and the prosecutor stated that he agreed it was in the interests of justice that the plaintiff be represented. Then the plaintiff stated that he wished to be legally represented.
The judge invited a representative of VLA to come to court and asked if further legal aid could be provided. The representative replied that, because of the plaintiff’s repetitive behaviour in discharging previous counsel, VLA was not prepared to provide further legal aid. The judge invited VLA to reconsider its position in view of what his Honour considered to be the analogy between the circumstances of the refusal of legal aid in this case and the circumstances to which s 197 of the Criminal Procedure Act 2009 is directed.
Section 197 allows courts to order VLA to arrange representation for an accused, but relates only to trials. Because the charges had been heard and determined by the Magistrates’ Court and arrived in the County Court by way of de novo appeal, the plain reading of s 197 didn’t allow the presiding judge to make an order. The judge asked the Court of Appeal whether the Charter required a wider interpretation to be given to the term trial.
The Court said about Momcilovic [at 21 – 24],
The operation of ss 32(1) and 7(2) was recently considered by the High Court in Momcilovic v R (2011) 280 ALR 221. So far as s 32(1) was concerned, French CJ, Crennan and Kiefel JJ and Gummow J, Hayne J and Bell J each held in separate judgments that s 32(1) does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Their Honours did not achieve the same degree of consensus as to the effect of s 7(2). The Court of Appeal in Momcilovic held that the interpretative task under s 32 does not involve the application of s 7(2), which needs to be considered only for the purposes of making a declaration of inconsistent interpretation under s 36. In the High Court, French CJ, Crennan and Kiefel JJ concluded that s 7(2) ‘cannot inform the interpretative process which s 32(1) mandates’ but is engaged only when and if ‘the statutory provision under consideration imposes a limit on its enjoyment’. ‘[I]t cannot be interpreted into the content of the rights and freedoms set out in the Charter’. In contrast, Gummow, Hayne and Bell JJ held that s 7(2) does inform the interpretative task to the extent that it will usually be appropriate for a court first to consider whether under s 7(2) there is scope for a justified limitation of the right in issue. It followed, as Gummow J put it, that ‘[s]ection 32(1) is directed to the interpretation of statutory provisions in a way which is compatible with the human right in question, as identified and described in Part 2, including, where it has been engaged, s 7(2). Heydon J observed that, if s 7(2) were valid, it would inform the interpretative task, but his Honour held that both s 7(2) and s 32(1) were invalid.
Hayne and Heydon JJ both dissented with respect to the final orders and Heydon J also dissented on the question of whether the appeal should be allowed. It is unnecessary to decide whether, in these circumstances, the Court of Appeal is bound to follow its own decision in Momcilovic unless satisfied that it is clearly wrong: Green v The Queen  HCA 49, etc.
statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) [thus] applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application…
Consequently, if the words of a statue are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.
The court then applied this approach to the Legal Aid Act 1978.
A high threshold
On the third point, about a fair trial, the Court said [at 51],
In Perotti v Collyer-Bristow, the English Court of Appeal dealt with the question of whether art 6(1) of the Convention entitled a civil litigant to a grant of legal aid. Chadwick LJ, who delivered the principal judgment, said:
…the obligation on the state to provide legal aid arises if the fact of presenting his own case can be said to prevent him from having effective access to the courts. But a litigant who wishes to establish that without legal aid his right of effective access will have been violated has relatively high threshold to cross.
It is, in my view, important to have in mind that however much this court, and indeed any other court, would welcome the assistance that can be given by a legally qualified and competent advocate, the test is not whether (with such assistance) this court would find it easier to reach the decision which it has to reach on the facts of the case. This court, and other courts, have ample experience of cases in which the material is not presented in an ideal form; and have not found it impossible to reach just decision in such cases. The test under art 6(1), as it seems to me, is whether a court is put in a position that it really cannot do justice in the case because it has no confidence in its ability to grasp the facts and principles of the matter which it has to decide. In such a case it may well be said that a litigant is deprived of effective access; deprived of effective access because, although he can present his case in person, he cannot do so in a way which well enable the court to fulfil its paramount and over-arching function of reaching a just decision. But it is the task of courts to struggle with difficult and ill-prepared cases; and courts do so every day. It is not sufficient that the court might feel that the case could be presented better; the question for the court is whether it feels that the case is being, or will be, presented in such a way that it cannot do what it is required to do – that is to say, reach a just decision. If it cannot do that the litigant is effectively deprived of proper access to the courts.
Given the similarities between s 24(1) of the Charter and art 6(1) of the Convention, we are disposed to construe s 24(1) of the Charter in similar fashion. In that sense, it may be said that s 24(1) creates a right to legal representation in limited circumstances. It is, however, no more than reflective of the position at common law. An indigent person does not have a right at common law to be represented at the State’s expense on a serious criminal offence. He has a right to a fair trial, more accurately expressed in negative terms as a right not to be tried unfairly. Depending upon the circumstances of the particular case, including the background of the person, lack of representation may mean that the person is unable to receive a fair trial: Dietrich v The Queen  HCA 57; (1992) 177 CLR 292.
Moreover, where such circumstances exist, so that a right to representation is enlivened, it is not the sort of right which is capable of enforcement by order for the provision of legal assistance. Perforce of the conditional terms of s 25(2)(d) and (f) of the Charter, it is subject to the establishment of an entitlement to legal assistance under the Legal Aid Act. The only means of direct enforcement of such an entitlement are by way of judicial review.
Of course, a trial judge would not be powerless to prevent an infringement of the Charter right to a fair trial which results from a lack of legal representation. As with a breach of the common law right to a fair trial which results from a lack of legal representation, the judge would have power to grant an adjournment or order a stay of proceedings. But a stay is an extraordinary remedy. A proceeding should only be stayed on that basis if the judge is truly satisfied that, without legal representation, the accused will not receive a fair hearing.