"I COME BACK TO THE JAMA CASE. UNLESS PROSECUTION CASES CAN BE ROBUSTLY CHALLENGED BY THE DEFENDANTS, TRIALS ARE BOUND TO MISCARRY. THE RESOURCES ALLOCATED TO LEGAL AID CASES GIVE LITTLE CAUSE FOR CONFIDENCE. PWC MADE THE FOLLOWING FINDINGS IN A VICTORIAN STUDY:
* THE FEES PAID TO DEFENCE LAWYERS (ON AN ANNUALISED BASIS) ARE LESS THAN HALF THOSE PAID TO PROFESSIONAL PROSECUTORS.
* FEES PAID BY LEGAL AID IN CRIMINAL CASES HAVE BEEN DECLINING FOR THE PAST 15 YEARS. THEY HAVE FALLEN UP TO 28 PER CENT BELOW THE CPI OVER THAT TIME.
* THE NUMBER OF LAWYERS SPECIALISING IN CRIMINAL LAW IS DECLINING ALARMINGLY AND THEY ARE NOT BEING REPLACED BY NEW ENTRANTS TO THE FIELD."
DAVID NEAL; THE SYDNEY MORNING HERALD;"
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BACKGROUND: According to the Australian, Farah Jama was found guilty of raping a 40-year-old woman at a nightclub in Melbourne's outer-eastern suburbs after the victim was found unconscious. She had no memory of the crime but Mr Jama's DNA was later found on the victim. The then 20-year-old denied ever being near the nightclub on that night, saying he was reading the Koran to his critically ill father at his bedside in their home in the northern suburbs. The only evidence police had was the DNA sample of Mr Jama, which was coincidentally taken 24 hours before the alleged crime after he was investigated over another unrelated matter but not charged. Prosecutors told the Victoria Court of Appeal earlier this week that it had since been discovered that the same forensic medical officer who took the first DNA sample of Mr Jama had coincidently taken the DNA sample from the 40-year-old rape complainant 24 hours later. They said it had emerged that the officer had not adhered to strict procedure when taking the sample and therefore they could not “exclude the possibility” of contamination. Therefore they argued the guilty verdict was unsafe and satisfactory and should be quashed. His lawyer Kimani Adil Boden hailed a “momentous” day for Mr Jama, whose case he described as “tragic”. “He's been in custody for close to one-and-a-half years on charges he didn't commit. “Justice has finally been done, however, at a price.” Victoria's police chief responded to Mr. Jama's release by banning all forensic officers from submitting DNA evidence or providing statements to the courts until further notice.
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"Is the case of Farah Jama — wrongly convicted and jailed for 15 months for rape on the basis of contaminated DNA evidence — one of those cases that points to wider problems with the justice system?," David Neal's column in the December 11, 2009, edition of the Sydney Morning Herald, begins, under the heading "Legal aid funding crisis denies justice."
"The criminal justice system depends heavily on the ability of defendants to challenge the evidence led by the prosecution," the column continues.
"DNA evidence – with all the problems that have emerged in Victoria this week – is but one example. While welcome, better internal controls over evidence gathering by prosecution agencies are not enough. The quality control stakes are too high. Our system promises equality before law. That provides the external quality control, which means that defendants will have adequate resources to test the prosecution evidence. But two recent reports on legal aid – one by Pricewaterhouse Coopers and one by a Senate Committee – show that resources for defendants are in a perilous state.
Criminal defendants overwhelmingly come from impoverished backgrounds and depend on legal aid to fund their defence. The PWC graph shows that funding for legal aid is in crisis. In 1997 the Howard government cut the Commonwealth contribution to legal aid by millions of dollars. The Rudd Government has not returned the Commonwealth funding to 1997 levels and it is forecast to decline.
The 1997 cuts transferred the cost of providing legal aid to certain categories of people (some indigenous Australians, immigrants, pensioners and beneficiaries) onto state legal aid budgets. State legal aid budgets rose to meet the shortfall, but the increases were heavily underpinned by the interest earned on money held in solicitors' trust accounts. The global financial crisis has had a devastating effect on that source of income.
So where is the money to come from now? The Federal Government as the principal tax gatherer must take a leadership role. Traditionally, the Commonwealth funds legal aid for family law – a Commonwealth law – and the states fund legal aid for criminal cases. The Commonwealth baulks at the prospect of funding legal aid for state criminal law. Traditionally this has been a state matter.
But "co-operative federalism" was meant to end the "blame game" between the Commonwealth and the states. In the areas of health, education and homelessness – all areas of traditional state responsibility – the Rudd Government has taken a national approach. It should take a similar approach to justice in criminal cases, the subject of public concern and media commentary on virtually every day of the week. A national government that stresses social inclusion and human rights cannot distance itself from the quality of justice administered in the criminal courts of the states and territories. The Federal Government has an interest — just as the state and territories governments do — in ensuring that criminal justice in Australia is just and that it runs efficiently.
I come back to the Jama case. Unless prosecution cases can be robustly challenged by the defendants, trials are bound to miscarry. The resources allocated to legal aid cases give little cause for confidence. PWC made the following findings in a Victorian study:
* The fees paid to defence lawyers (on an annualised basis) are less than half those paid to professional prosecutors.
* Fees paid by legal aid in criminal cases have been declining for the past 15 years. They have fallen up to 28 per cent below the CPI over that time.
* The number of lawyers specialising in criminal law is declining alarmingly and they are not being replaced by new entrants to the field.
Providing legal aid to people accused of crime wins few votes. But we recognise injustice. It is easy to recognise in the Jama case and in the Mohamed Haneef case. The defence of David Hicks by Major Dan Mori shows that it is easy to recognise injustice even in the case where someone has done the wrong thing. Mori's defence of Hicks illustrated some of the best aspects of the legal system and why a properly resourced defence is so important. It stands in sharp contrast to the lop-sided, under-resourced justice handed out to Australians who need legal aid. This does the country no credit. It is a national problem. It needs a national solution. The Federal Government needs to become a full partner with the states in solving this problem.
Dr David Neal, SC, Victorian Bar. He was the project manager for the Pricewaterhouse Coopers report on behalf of the Australian Bar Association, the Law Council of Australia, the Law Institute of Victoria and the Victorian Bar."
This column can be found at:
http://www.brisbanetimes.com.au/opinion/contributors/legal-aid-funding-crisis-denies-justice-20091211-kngh.html
Harold Levy...hlevy15@gmail.com;
