Slaveski v Smith & Anor

(2012) 34 VR 206; [2012] VSCA 25

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Trial
3. › Legal aid
4. › Fair trial
5. › Human rights
6. › Whether accused having right under Charter to counsel of choice at public expense
7. › Relationship between Charter right to fair trial and right to fair trial at common law
8. › Power to adjourn or stay trial in aid of rights to legal aid and fair trial
9. › Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 24(1), 25(2)(d), 25(2)(f), 32(1)
1. Criminal Procedure
2. › Power to order provision of legal assistance under s 197 of Criminal Procedure Act 2009
3. › Whether power applies otherwise than to trial on indictment
4. › Criminal Procedure Act 2009 (Vic), s 197
1. Legal Aid
2. › Whether accused's conduct in repeatedly dispensing with counsel a relevant consideration in determining whether to grant further legal assistance
3. › Legal Aid Act 1978 (Vic), ss 24(1), 24(2), 25, 29
1. Statutory Interpretation
2. › Interpretation of statutory provisions in light of human rights charter
3. › Whether 'may' should be read as 'must'
4. › Whether Charter extends obligation to grant legal aid beyond discretionary power
5. › Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32(1)

Quick Take

The Charter of Human Rights and Responsibilities Act 2006 (Vic) does not confer an enforceable right to legal aid independent of VLA's discretion under the Legal Aid Act 1978. The right to a fair trial under s 24(1) of the Charter includes a right to legal representation only where the absence of representation would preclude the court from reaching a just decision — a high threshold reflective of the common law position in Dietrich. An accused's conduct in repeatedly dispensing with counsel is a relevant consideration in VLA's assessment of whether it is in the interests of justice to grant further legal assistance. Section 197 of the Criminal Procedure Act 2009 (power to order legal representation) applies only to trials on indictment before a jury and does not extend to appeals from the Magistrates' Court.