Wealthy alleged criminals whose assets are frozen have no incentive to fund their own defence and are instead falling back on an already limited public purse, prompting calls to reform the territory's proceeds of crime laws.
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The calls for change follow the case of Melissa Beowulf and her sons Thorsten and Bjorn, who had assets worth well upwards of $1 million available to them when they were accused of murdering Katherine Panin, the boys' grandmother and Mrs Beowulf's mother-in-law.
But after their arrest territory prosecutors froze those assets pending the trial. Faced with a choice between accepting the small stipend equal to legal aid rates to fund their defence, or simply accepting legal aid, the trio chose the latter.
All three were found not guilty, and have since had the assets returned to them, unscathed by the expense of a criminal trial while the legal aid service has little chance of recouping the expense of running three two-month murder trials. That figure could be up to $200,000 based on legal aid's publicly available scale of fees.
"There is absolutely no incentive whatsoever for an accused person, who is limited to using their own money to $1200 [a day], from ever using their own money when they can get legal aid," president of the ACT Bar Association Steven Whybrow said.
That amount is low for a criminal defence, and although the Beowulfs were fortunate two of Canberra's most experienced criminal barristers were willing to accept the brief on legal aid rates, they might have been left with less experienced lawyers on a charge of murder.
Solicitor Adrian McKenna, who had represented the Beowulfs until their assets were seized, agreed with Mr Whybrow, saying there would never be any motivation for a defendant to make that choice. He said the Beowulfs - presumed innocent until proven otherwise - had the capacity and wanted to fund their own defence until their assets were frozen. The ridiculous outcome was that it was the taxpayer left to foot the bill, he said.
The law was introduced after a series of cases in which alleged criminals rich from potentially ill-gotten gains burned their cash on Rolls Royce defence teams. When there was a plea or finding of guilt and it came time to seize the assets, authorities would discover there was little left.
But Mr Whybrow said that mischief had been fixed, and the response has gone the other way meaning noone would spend any of their own money. He suggested raising the cap on the amount accused people can withdraw, to somewhere in the middle of the range.
That would allow defendants who are always presumed innocent until proven guilty to choose and fund their own defence, while not burdening what many in the profession consider a chronically underfunded legal aid service.
Mr Whybrow, who sits on the Legal Aid appeal review body, said of every 100 applications for legal aid, 90 would have a genuine need but there was only enough money for about 10.
Legal Aid ACT chief John Boersig said the organisation supported moves that would allow defendants with means to use those resources, rather than Legal Aid towards their defence.
