Analysis of R v Chaouk VSC 48 - Article Example

? R v Chaouk VSC 48 Task R v Chaouk VSC 48 The two rulings delivered by the Supreme Court in February by Justice Forrest and Lasry impacted criminal trials by order stay. In the first case, Victoria Legal aid issued a decision instructing that financing of a solicitor to be done two half days after the trial regardless of the duration taken to issue a ruling. In the first ruling made by his honor Justice Lasry it was argued that the accused would be declined a fair trial if at all he was dispossessed his right of having his solicitor present. That position was accepted by his honor who cited 16 duties that are within the delineate role of a solicitor. This led to the decline by the Victoria legal aid to make a submission of the case after they were invited to do so by the court ‘R v Chaouk [2013] VSC 48’.The tasks as enumerated by the trial judge superseded was could easily be understood as provision of administrative assistance to the legal counsel acting in cahoots with the plaintiff. In his ruling the trial judge lay more emphasis on the important role that the solicitor would be playing including cross examination of the key witnesses in the case, forensic examination and decision to be made in the running of the trial plus all those other important factors to be considered in managing the case at hand. In the subsequent matter that was brought before justice Forrest an impending application was made under section 197 of the criminal procedure act directing Victoria Legal Aid to make a provision of solicitor attendance during the administration of the trial. The judge interpreted legal representation as presence of an Australian legal counsel (Encyclopedia of Crime and Justice, 2004). This went contrary to a ruling made earlier by Kim in which the court upheld that legal representation was when there was a provision of a solicitor Vis a Vis a barrister. Kim (Unreported. Supreme Court of Victoria, Eames J, 21 August 1997). In a legal view the concept of legal aid is well demonstrated in the intervention of a legal aid counsel to an accused person in a criminal proceeding which at times will play a pivotal role in securing a fair trial of the accused person and who in this case is acting as his client. Moreover legal programs exercised and which comes in to play in safeguarding the interest of vulnerable groups such as marginalized women in abusive relationships and juvenile will by the nature of their formation tend to improve legal mechanism relating to the safeguard of rights of the affected groupings together with securing of their fundamental freedom. From the perspective of the human rights the provision of legal services to the poor is attributable to the strengthening of the rights of the poor in the society as well as exercise of their moral recognition as stipulated by the law. In most cases provision of legal services to the marginalized has a conflicting stance with the aspect of dissemination of legal information which results in a vague realization of human rights. In Kim’s case the judge ruled that where an instructor is absent a gap emerges leading to unfair representation between the defense and the prosecution. He asserted that the accused rights would be biased by the absence of an instructing solicitor representing him. The honorable judge thus concluded that the accused would not get a fair trial and thus stayed the proceedings.MK v VLA [2013] VSC 49 A fair trial in any criminal proceeding requires a well-established institutional framework with the case at hand be conducted by a competent court of the land which should surpass tests of being impartial and independent. The concept of independence emanates from the fact that the judiciary should be able to exercise its mandate without undue influence from the executive branch. The rationale behind this establishment was to avoid the biasness and arbitrariness that would arise if any criminal proceeding was to be carried out by a political body or a state agency. In a legal context the judiciary should be spared all undue influence and control whether direct or indirect by the state which is basically the prosecuting party (Gorman, Mihalkanin, & Gorman, 2009). In Kim’s case it’s learnt that inadequate representation of the accused would result to unfair trail and the resultant factor would be miscarriage of justice. Such Misrepresentation results to disruption of the trial. In this regard it is has the magnitude of a complete failure in the administration of criminal justice. In this case, the office of the Director of public Prosecution found it inept to compete against the decision made by two high ranking court judges (Skog, 2009). Australia has a federal system of Government with the composition being federal state and territorial jurisdiction. The composition of these arms of Government is responsible to provision of legal assistance in all matters arising regarding the rule of law. Legal assistance for both the state and commonwealth is delivered through commissions established known as territorial and state aid Commissions. These commissions use a mixed model in the provision of legal assistance and representation services. Legal aid grant could be assigned to a salaried legal counsel or else could be referred to a private legal Practioner. The mixed model is of merit especially in instances where the legal services are provided in the same region and where in case of arising conflict the same counsel cannot represent both individuals. In 1942 the Australian Government established Legal Services Bureaux as a first attempt of providing legal services. However in 1970 the federal and state Government led a move to service delivery. Thus in 1977 the Australian Government enacted the Commonwealth Legal Aid Commission Act 1977 (LAC Act) which would see cooperative arrangement between the Australian Government federal and territorial states under which provision of this aid would be enhanced by independent commissions to be recognized under territorial or state legislation. The cooperative engagements established by the LAC Act provided for territorial state and commonwealth funding covenants which commenced in 1987. In 1997 the Australian Government varied its arrangement to directly fund legal provision services for commonwealth law issues (Zwier, 2013). In European Countries there is a Scheme that gives a suspected person of a criminal act express right of a free legal advice at any Police Station. The accused person can hire a solicitor or the absence of one a duty solicitor can be hired to represent the accused in the criminal proceeding. There is a ‘national rot a scheme’ and the duty solicitor covers all the police stations on a regular basis. In most of these cases the duty solicitor will impose a single charge to cover an accused representation at the police station which is basically a one off fee that does not change whether the case is visited once or a couple of times before it is concluded (International Law Students Association., 1987). In this case a sudden change of a solicitor is unheard of as the initial solicitor will impose a fine to the Government which is a fixed fee whilst the second solicitor will act without payment or else will have to impose the fine privately. Following the interview of the accused the police will charge the person resulting to and elapse of the case and or if there are issues unresolved and which are thus on close analysis are considered significant to make the case move to a higher level, the police with make a representation of the matter to a magistrate Court. The magistrate Court will decide if it has jurisdiction to try the case or if there is a need to move the case to a higher Crown Court (Burgis, 2009). In the United States the sixth amendment reduces an explicit constitutional right to representation in a legal case to federal criminal issues (Pillai KNC, 2008). By taking into account this right in comparison to federal constitutional right due process in the fourteenth amendment the United States Court in Gideon Vis Wainright found it impossible to deduce a right to representation of any criminal legal issues. RichardAbel, ‘Law without Politics: LegalAid under Advanced Capitalism’ (1985)32 UCLA L. Later on the united states cases in which gaol sentence is possible were put into consideration and thus the United States limited the right to criminal representation since it was argued that what the court can give it can take away meaning that the defendant has a right to personal freedom and not necessary rights to counsel in criminal cases as stipulated in the sixth and fourteenth amendment which basically necessitated the right to a legal representation (Roach, Smith & Roach, 2012). Gideon vs. wainright and dietrich puts the nature of criminal matter as implied but in the consideration of other rights fair trial and due process. These have been the basis for rampant persistent calls for recognition of the same rights of representation in the non-criminal cases. One of the factors hampering this is the astute view by the policy makers and the courts leading to their refusal to treat the rights of an accused person in these proceedings the same as the right of an accused person in non-criminal case. Dietrich vs. the Queen (1992) 177 CLR 292, [1992] HCA 57. There is obviously inequality in the treatment of arms when the accused faces the state in a non-criminal matter who in most cases is a well-resourced party in a proceeding. That party with abundant resources on one side is the state (Williams& Scharf, 2002). In these cases when the right to a party in a non-criminal cases in recognized the courts are very well known of restricting the right (International Law Students Association, 1987). In Canada in the case New Brunswick v G, the provincial security service minister wanted to assume the care of woman children where the state was a party to this non-criminal case. As observed in the case when the rights to liberty freedom and safety of a person are at risk, the state is under that intense obligation to ensure that the accused person receives a fair trial. In most circumstances depending on the case at hand and the complexity of the proceeding the Government may be compelled to provide an indigent with a solicitor funded by the state. David Luban, ‘The Right to Legal Services’ in Alan Paterson and Tamara Goriely (eds.) Resourcing Civil Justice, OUP 1996 at 59. New Brunswick (Minister of Health and Community Services) vs. G (J) [1999] 3 SCR 46; 1999 Can. L. J. I 653 (SCC) In the academic arena the scholars embrace the courts approach by attaching a direct implication in a particular context. Steel and Morris v the United Kingdom (2005) 41 EHRR 22, [2005] ECHR 103. The analysis that surrounds the criminal as well as non-criminal matters and have thus looked beyond ‘fair trial’ is the main foundation for the ‘right to context as the terms of a provincial commission or as broad as democratic system generally’. Presumption of innocence – there is a wide acceptable view that the accused person right of the accused person should be upheld in regard to presumption of his innocence unless he is pronounced guilty and his guilt is proved beyond reasonable doubt. That principle is very paramount as far as administration of justice is concerned. This is a notion that has been embrace as the right of an accused persona in many conventions (Basu, 2007). There exist a legal adage that asserts that’s its better tem criminals escape that one accused person who have received unfair representation. This principle was well illustrated in the United States of America in the case Coffin v. United States13 which stated that the accused receives a favorable hearing and judgment where there exists ‘undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law...’ The basic component of this principle is that the burden of proof shift on the side of the prosecutor who has an obligation to provide evidence beyond reasonable doubt implicating the accused to the committal of a criminal or non-criminal offence and this leaves the accused with the benefit of doubt. This assumption is seen to emerge from the latin legal principle that ei incumbit probatio qui dicit, non qui negat the burden of proof eventually lie to that one who asserts and not the one that denies. This principal has been created in law in most of the countries to shade innocent individuals who in most cases are not criminals. The principle states that with respect to criminal facts presented regarding the case and whether the said crime had been committed or not the state has the burden of proof. Therefore, in respect to the stated facts the defendants is thus freed from the burden of proof. The defendant in this case does not have to call witnesses, to testify or present any other evidence and if the defendant decide to testify or call witnesses for that matter this act cannot used against him. The judge is thus not obliged to draw interpretations by the mere fact that the accused has been charged for a crime and is represented by a legal counsel in the court. The judge must rely on the evidence presented on the trial for him to deliver a ruling. Knowledge of the accused- One of the main attribute of a fair trial is when the accused person is provided with enough opportunity to defend himself. But before given the opportunity the accused person must be informed of the impending accusation against him. Case law provisions in many countries provide that when the accused person is brought before the court for the trial, the details of the offence that he ‘committed’ shall be read to him. In unique cases where the offences ‘committed’ are serious in nature the court is obligated to frame in writing a formal charge of which the charge should be read and explained to the accused person (Arora, 2007). Role of the Defense Lawyer- The defense counsel as perceive by many represent an example of what is best in the legal profession. But this opinion is holds a divergent view from different persons since others attach the defense counsel as the worst experience the legal profession.Nekram v. State of M.P., (1988) Cr LJ 1010 (MP). The defense counsel plays an important role in shielding the innocent accuser against wrongful conviction. He is also the accuser’s main instrument for overturning justice and eventually getting away with the crime. In this context the advocate or legal counsel shifts all his ‘weight’ behind one person that he represents known as the client. Thus the counsel has the obligation of using all the necessary facilities and the impending hazards and cost to expeditiously saves his client which he considers as his only duty. The system of criminal justice mainly adopted clearly depicts the prosecution against the defense team and requires complete partisanship. Since the prosecution is an agent of the state and will therefore present the state’s case the defendant must put their entire concentration of the accused and present the case as vehemently as he can (International Law Students Association, 1995). Expeditious Trial – For the public to gain confidence in the judiciary speedy trial for the case is inevitable. ‘Delayed trial defeats the objective of the re-socialization of the offenders too’. Courts are required to adopt speedy trials and disposal mechanism. This is regarded as a major requirement of a trial but majority of the court in the world find this as the most stressing challenge. The underlying task is to make this a major reality where millions of cases are pending fair trials. ‘The right to speedy trial begins with actual restraint imposed by arrest and consequent incarceration, and continues at all stages so that any possible prejudice that may result from impressible and avoidable delay from the time of commission of the offence till its final disposal, can be prevented’(Prashanth V, Balaji, 2000). Prohibition on double jeopardy - this concept is based on the doctrine of autrefois acquit and autrefois convict which basically mean that if a person is tried in either criminal or non-criminal case and acquitted of an offense the same offense or the fact there of cannot be applicable for any other offence. ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country” Conclusion Many legal instructors, funding agencies, and legal counsels on the ground are working determinedly in support of admittance to justice methods and programming. However, backing for legal education in countries in which there are vast under-served populations is meager. Yet law school ex-students in these countries rapidly assume positions of accountability in their justice systems. Working in arms, legal educators, advocates representing individuals’ and groups, and financing organizations can do much to influence these fledgling professionals with the need to make their justice systems more reachable and more approachable to community needs (Prasannan, 1968). Bibliography See website: www.newperimeter.comSee Shearman & Sterling website: Read More