Friday, 10 May 2013 16:03

The Queen v Chaouk & Ors (Court of Appeal) - May 2013

This was an appeal by the DPP of Justice Lasry's ruling to stay the criminal trial of Mr Chaouk because his trial was "likely to be unfair in the sense that it carries a risk of improper conviction" unless he had a solicitor to instruct counsel on a day-to-day basis for duration of the trial. The Court of Appeal upheld Justice Lasry's decision and confirmed that courts can stay criminal trials where they consider the absence of an instructing solicitor will result in an unfair trial.

Under Victoria Legal Aid's New Criminal Law Guidelines on County Court and Supreme Court criminal trials (in force since 3 January 2013) , Mr Chaouk would only receive funding for an instructing solicitor for two half days of his 2-3 week trial.

In response to the Court of Appeal's decision, Victoria Legal Aid (VLA) introduced an interim eligibility guideline. The interim eligibility guideline allows for "more flexibility in the funding of second lawyers in criminal trials" and recognises "the importance placed by the Victorian Court of Appeal... on having instructing solicitors present during criminal trials." See VLA's Media Release (7 May 2013) 

In the appeal proceedings, lawyers for Mr Chaouk argued that the human rights in the Charter to a fair hearing and rights in criminal proceedings provided a further basis on which the Court could stay the trial. They also argued that VLA's New Criminal Law Guidelines were incompatible with the human rights to a fair hearing and rights in criminal proceedings. Because the matter was able to be decided in favour of Mr Chaouk without referring to these arguments, the Court of Appeal considered it unnecessary to make a ruling on these human rights arguments.

The Commission intervened in the appeal under section 40 of the Charter and made written submissions on the human rights issues.

A copy of the Commission's submissions are available for download below. View the Court of Appeal's decision.

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