Much has been written about Adrian Bayley, the devastation he wreaked and various failures to contain his random acts of violence.
Greg Barns (The Age, 15/07/2016) helpfully explained the limits of "identification evidence" in our courts but failed to assemble the most basic facts when exhorting Victoria Legal Aid to explain whether it had "buckled to community sentiment" in refusing to fund Adrian Bayley's most recent appeals.
Decisions to approve or refuse aid are made independently of government and the media. The Attorney General is prohibited from interfering in any decision about an individual, and the views and attitudes of individual media commentators or outlets are similarly not relevant. This is a good thing.
This independence enables us to ensure the fair treatment of people accused of the most serious crimes, even in the face of considerable public anger. Legal aid commissions around Australia are no strangers to representing people feared and reviled in the community, or to making decisions that are unpopular.
In Bayley's case a fair-minded decision to refuse aid was made in accordance with the applicable law set out in the Legal Aid Act 1978. Unlike serious criminal trials, legal aid for a criminal appeal is not automatic.
A number of "reasonableness" considerations must be weighed, as framed by the Parliament. These include the possible benefit and detriment to the individual and to the community as well as the strength of the case. A particular issue in this matter was whether there was benefit in funding an appeal that would, even if successful, result in very little change to the applicant's overall sentence and non-parole period.
Critics may say that this invites speculation about what a court would do, but this is something we must do every day, including in family law and children's matters when assessing the merit and reasonableness of spending limited public funds on one person's case ahead of another.
Anyone who is refused aid can have this decision reconsidered and then independently reviewed if they remain dissatisfied. Independent reviewers are not employed by Victoria Legal Aid and make their decisions separately.
It is a matter for public record that Adrian Bayley's applications were twice considered by independent reviewers. In both instances, the independent reviewers upheld the decision to refuse aid.
The first independent reviewer's decision was also subject to a judicial review. This resulted in a Supreme Court judgment which required us to submit the application for aid to another independent reviewer for a second review. We provided this guidance from the court to the second independent reviewer. Extensive written reasons for refusing aid (the third occasion on which aid was refused) were provided to Bayley's legal team and these could have been made available to the Court, if requested.
If our independent reviewers had approved legal aid for Bayley's appeals, we would have complied without complaint.
Finally, I note that a competent appeal was run by competent counsel of the sort and calibre identified by the Court as essential to their task.
We respect the decision of independent reviewers and the Court of Appeal, but we do not agree that the decision to not fund Bayley's appeal was an abrogation of our responsibility or a failed reaction to the sentiments or opinions of others.
Bevan Warner is Managing Director of Victoria Legal Aid