‘Justice’ Becomes Unachievable for Most

Lawyers don’t come cheap, and there are concerns that legal representation is becoming unaffordable, and not just in Australia.

UK newspaper The Guardian reports that lawyers in Britain are out of reach for most households – and many feel the same applies in Australia.

According to the UK Lord Chief Justice, rising court costs are partly to blame, with costs in civil cases increasing by 600% in recent years.

Rising court and legal costs have been criticised by many, with Chantal-Aimee Doerries QC pointing out that:

“Justice is not a luxury, and everyone should be able to defend their rights through the legal system.”

Going to Court in Australia

Private legal costs in criminal cases can depend on a range of factors – including:

• The lawyer’s hourly rate,
• The seriousness of the charges,
• The complexity of the evidence,
• Whether you are pleading guilty or not guilty,
• The court in which the case is heard, and
• Whether the firm offers a ‘fixed fee’.

Defending charges can involve taking a case to a hearing in the Local Court or jury trial in the District or Supreme Court. This is usually a lot more expensive than pleading guilty because it involves a lot more work. If the case stays in the Local Court, costs will usually be far less than those referred to a higher court.

While relatively simple guilty pleas in the Local Court may be affordable, lengthy and complex District and Supreme court trials are likely to end up being very pricey, especially if a barrister becomes involved.

Can I Get My Legal Costs if I Win?

Even if you are found ‘not guilty’ in the Local Court, getting the prosecution to pay your legal costs isn’t easy.

Section 117 of the Criminal Procedure Act (1986) NSW requires one of the following grounds to be met for costs to be awarded:

• The investigation into the offence was conducted in an unreasonable or improper manner;
• The proceedings were initiated without probable cause or in bad faith, or were conducted by the prosecutor in an improper manner;
• The prosecution unreasonably failed to investigate (or investigate properly) any relevant matter that it was aware of, should reasonably have been aware, which suggested that the accused may not be guilty, or other reasons why the proceedings should not have been brought; or
• Because it is just and reasonable to award costs due to other exceptional circumstances relating to the conduct of the proceedings by the prosecutor.

An application for costs must be made upon the finalisation of the case (e.g. on the day of acquittal), and the strength of the application can be bolstered by handing-up letters previously written to the prosecution which requested the withdrawal of the charges (called ‘representations’).

Rising Costs

It is reported that the average cost of getting legal representation for a District Court trial has risen significantly in recent years.

Back in 2012, an Adelaide newspaper reported that the price of getting representation for a serious case had doubled over the previous decade. In 2002, SA Law Society President estimated it would cost between $40,000 and $60,000 for a ten-day assault and robbery trial. But by 2012, the average cost had reportedly increased to $100,000. The cost in Sydney can be even more.

Private barristers will often be briefed to act as ‘advocates’ in jury trials; i.e. to question witnesses and make verbal submissions in the courtroom. Criminal barristers in Sydney can cost between $2,000 and $10,000 per day to attend a trial – and this doesn’t include the cost of preparations.

One of the consequences of rising fees and legal aid cuts is that a growing number of people are falling into the ‘justice gap’ – where they cannot afford to pay for a private lawyer but are ineligible for a grant of legal aid.

Unlike America, Australian defendants do not have a right to a court-appointed lawyer; which means thousands are left to fend for themselves in courts across the nation every year, often against a well-resourced prosecution – hardly a ‘just’ situation.