For years, criminal defence lawyers have been highlighting the unfairness of a well-resourced prosecution – equipped with Senior Barristers and seemingly endless experts – prosecuting defendants without access to funds for top-notch lawyers or their own experts.
The case of Omarjan Azari is just one example of the disparity in resources. Twenty-year-old Azari is accused of planning to commit a terrorist attack. The allegations are largely based upon a phone conversation that Azari is alleged to have had with Mohammad Ali Baryalei, who is reported to be a senior member of IS. During that conversation, Baryalei is alleged to have said:
“What you guys need to do is just pick a random unbeliever… When finished put the flag of the state in the background and film and send it off.”
The prosecution claims that Azari ‘assented’ to these ideas, and that he is therefore guilty of the offence. Azari denies the allegations.
Clearly, the accusation is very serious and it is imperative that Azari is allowed to have a fair trial. The case is currently listed for a “committal hearing”, which is a local court hearing to decide whether there is enough evidence against Mr Azari for the case to go to a jury trial in a higher court.
In terms of funding the case, the prosecution has vast resources at its disposal – and has funded a prominent Sydney SC (Senior Counsel) to prosecute Mr Azari. That barrister normally commands a payment of $5,500 per day.
By contrast, the Legal Aid Commission has approved a payment to Azari’s criminal defence barrister – including all preparations (which normally takes several days) and at least a two-day hearing – which is equivalent to less than a single day of the prosecution barrister’s fees.
Legal Aid Criminal Assignments
In certain cases, the Legal Aid Commission assigns criminal cases to private lawyers rather than keeping them ‘in house’.
Those private lawyers are paid by Legal Aid to run the cases, although the private lawyers cannot claim fees for most of the work that they undertake, and the applicable ‘scale of fees’ is far lower than the private lawyer would normally charge.
It is estimated that Legal Aid pays private lawyers between 10% and 30% of the fees the lawyer would ordinarily charge for a criminal case.
For example, a trial might take a private lawyer the equivalent of 10 days to adequately prepare – including all conferences with client and witnesses, reviewing briefs that may contain thousands of pages of materials – comprising witness statements, expert reports, transcripts of interviews, surveillance, intercepts, CDs, DVDs etc – issuing subpoenas to various bodies, briefing defence experts (if the Commission can be persuaded to fund any), views, corresponding and communicating with a range of professionals, charge negotiations including drafting and submitting ‘representations’, and the list goes on.
However, it is not uncommon for the Commission to grant private lawyers only 2 or 3 days of preparation for a full District or Supreme Court jury trial.
And it doesn’t end there. The hourly and daily rates that the Commission pays private lawyers are far less than the lawyer would ordinarily charge.
For example, the current hourly rate for court attendances by solicitors is $150 per hour plus GST, paid for every half hour in court (travel time is not included), and the daily rate for jury trials is $750 plus GST for a full day. The preparation allowance for Local Court defended hearing totals $230 plus GST (and that’s not per hour, that is the total for all preparations ‘inclusive of the first conference with client’). These rates have not changed since 2011.
The current hourly rate for court attendances by barristers in the District Court is $199 plus GST (which, again, does not include travel), and the daily rate for jury trials is $987 per day plus GST.
And it doesn’t even end there! There will almost always be a great deal of work that is done, and is apparently captured by the fee scale, which the Commission will simply refuse to pay.
Of course, one of the reasons for the low levels of payment is that Legal Aid is severely underfunded, and simply cannot afford to pay much for assignments.
But in any event, many private lawyers have simply stopped accepting assignments from Legal Aid altogether, and there are concerns that private lawyers are not putting the same amount of work into Legal Aid cases that they are into privately funded cases.
Back to Azari’s Case
Mr Azari has been classified as a high-risk inmate and is kept at Goulburn’s supermax prison.
It costs an average of $900 a day to keep him there, which is equivalent to around $300,000 per year.
By contrast, the Legal Aid Commission has paid Mr Azari’s defence lawyers a total of $1,500 over the last year to conduct his case.
The lawyers believe that this is woefully inadequate, and have foreshadowed an application for a “permanent stay of proceedings” in order to prevent an unfair trial.
What is a “Stay of Proceedings”?
A stay of proceedings is when a court temporarily or permanently stops a case to prevent injustice. It is only ordered in extreme situations, and it is up to the applicant to convince the court that it is warranted in the circumstances.
In Jago v District Court of NSW (1989), the NSW Supreme Court found that it has an inherent power to stay proceedings if there has been an “abuse of process”.
The relevant test for granting a stay was outlined by Justices Mason and Toohey of the High Court in The Queen v Glennon (1992), who stated that:
“A stay of proceedings will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.”
That decision was affirmed in Dupas v The Queen , a case which looked at whether adverse publicity could justify a stay. That case concerned a man charged with murder whose previous murder convictions had been widely reported. The defence argued that the timing, nature and distribution of the reports meant that the client could not receive a fair trial for his current charge.
But the court found that this situation was not sufficient for a stay because any unfairness could be addressed with appropriate directions to the jury.
It remains to be seen whether Mr Azari’s situation is considered sufficient for a permanent stay of proceedings.