The Role of Legal Representation in the Criminal Trial Process
Our
legal system is an adversarial system in which each party has a right to a fair
and just trial. A fair and just trial, however, can only be achieved if the
defendant has legal representation as according to comments made by the
Justices Mason CJ and McHugh J in Dietrich v. The Queen (1992) 177 CLR 285 “…by
reason of the lack of representation of the accused, the resulting trial is not
a fair one…for the reason that there has been a miscarriage of justice in that
the accused has been convicted without a fair trial.” This is due to a lack of
knowledge of law and a lack of understanding of the criminal trial process of
the accused as indicated by the comments made by Dietrich over the course of
the trial “I’m not emotionally or mentally fit to conduct my own trial”.
However, even though the justices have mentioned the importance of legal
representation in upholding the rule of law – through making the trial just and
fair - they did not agree that the accused was entitled to legal representation
on behalf of the state.
In
NSW an individual has several methods to obtain legal representation if they do
not have the means to pay for it. The largest of these methods is Legal Aid
NSW, a state run legal assistance and representation program that aims to
address these issues of injustice that was introduced in the Legal Aid
Commission Act 1979 (NSW). However, legal aid has several restrictions to those
who can access its services. For those earning above the threshold, that is
$318 a week, they will not be able to receive these services and will have to
obtain legal representation through other methods. In a Sydney Morning Herald
article published in June of 2012, titled ‘Tough means test locks low-income
earners out of legal aid’ the importance of legal representation is reinforced
by the reported “internal report by Legal Aid prepared for the
Attorney-General, Greg Smith” which indicated that there is “a big “justice
gap” that has left socially and economically disadvantaged people unable to
access the courts”. It is further mentioned that “Importantly, as access to the
legal system decreases, there is also a loss of confidence in the justice
system and the rule of law”. These findings indicate the importance of legal
representation in courts – that without such representation, our adversarial
legal system is unjust and unfair.
Our
adversarial system is dependent on either side presenting a legal argument,
with the aforementioned necessary legal representation; however the role of
legal representation has become unclear in certain cases with the judge
breaching its role. In a Sydney Morning Herald article, published in February
of 2012, titled ‘Resignation now could help O’Shane preserve a proud legacy’ it
details the controversial breaches of role that occurred under Justice O’Shane
“In at least three of these cases, she was criticised for refusing to allow a
prosecutor to call further witnesses and, in effect, placing herself in the
role of counsel for the defendant rather than an impartial judicial umpire.” It
is further noted that due to these errors in duty “The Supreme Court has found
O’Shane got the law wrong in 14 out of those 16 criminal cases.” O’Shane shows
the importance of legal representation in the criminal trial process and in
effect both clarifies – through her actions showing that a defendant’s legal
representation is to present a legal argument on behalf of their client – as
well as blur their role – by overtaking the role of a defendants legal counsel.
Hence,
the necessity and role of legal representation in the criminal trial process is
to achieve justice for the accused and to uphold our fair and just trial
system, although this is not always the case as some individuals do not have
access to such services, either due to their social or economic predicament and
in certain circumstances their role is blurred due to actions of the magistrate
or judge. Therefore the importance and role of legal representation can be seen
more clearly in regards to its necessity as someone who understands the legal
system, legal terminology and processes and as an intermediary for the
defendant.
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