A Supreme Court judge has ordered the trial of an alleged serious criminal to be delayed indefinitely until the cash-strapped Victoria Legal Aid can provide him with further legal assistance.
The trial, expected to be delayed for months, was adjourned on Friday following an application by the accused man's barrister, Andrew Jackson, for funding through Legal Aid for an instructing solicitor to be present for the duration of the trial. He argued this was necessary for the man to get a fair trial.
Justice Lex Lasry ruled that the trial could not go ahead until an instructing solicitor was provided "on a day-to-day basis for the duration of the trial".
Justice Lasry was scathing of Legal Aid's decision to grant the man – who cannot be named for legal reasons – a solicitor for a total of one day of his trial, saying it demonstrated "a lack of understanding of the solicitor's role".
"The significance of the role of the instructing solicitor is not to be measured only by how many days or weeks [the] trial will take (although that is clearly a factor) or by the complexity of the circumstances," he said in his ruling.
"It is important to consider what is at stake for the accused and whether there is a risk that the trial will be unfair."
The judge said solicitors were necessary to brief barristers and help make important decisions such as whether a defendant should plead guilty. They were also needed to help cross-examine witnesses.
He said without one, Mr Jackson would have been left to rely on his own expertise, up against the prosecutor, who had the "entirely appropriate" benefit of assistance from an instructing solicitor, a police investigator and barristers.
The accused man cannot be named to preserve the integrity of his trial.
Legal Aid's decision was in line with drastic changes to its eligibility guidelines, including a cap on fees for instructing solicitors to one day of serious criminal trials.
This is the first blow to the new guidelines, introduced last month to curb a funding crisis that is likely to see Legal Aid's budget blow out by more than $3.1 million this financial year.
Legal Aid spokeswoman Nicole Rich said outside court that Legal Aid's guidelines were fair.
"VLA is the largest criminal defence firm in the state so we fully understand the role of solicitors in criminal trials and we stand by our decision that it's an appropriate use of our limited legal aid funds to determine that we won't automatically fund two lawyers for every single trial," she said.
"If we're not right then it means that in Western Australia, South Australia, Tasmania and the Northern Territory, where they defend criminal trials on this basis, that there must be something wrong, but we don't believe that's the case."
Ms Rich said the organisation was funding trial preparation for the man in question and that his lawyers had not applied for a second barrister.
While she would not go so far as to say Justice Lasry's decision was wrong, she said the issue "needs to be clarified".
"We are fully funding legal representation in this case and we did believe that a fair trial could proceed," she said. "At trial, Legal Aid considers that the lawyer best placed to ensure an impact on the outcome is the barrister."
Another Supreme Court judge – who also cannot be named – will decide on Monday whether to stay a separate criminal trial of a man whom Legal Aid has also assigned a solicitor for one day.
Under the Victorian Criminal Procedure Act, the court can order Legal Aid to provide defendants representation and adjourn a criminal trial until it has been provided if it is satisfied the person cannot afford a lawyer and a fair trial cannot be ensured without it.
Ms Rich said that Legal Aid would determine the future of the cap on instructing solicitors' fees after Monday's decision.