Counsel’s duties and legal aid funding for criminal appeals

This article outlines counsel’s duties when confronting the problem of obtaining legal aid funding for criminal appeals.

The right to appeal against conviction and sentence without leave is a valuable right.

After enactment of the New Zealand Bill of Rights Act 1990, s383 of the Crimes Act 1961 was amended, removing the requirement to obtain leave to appeal (if the appeal did not involve a question of law alone). This greatly increased the volume of criminal appeals coming before the Court of Appeal. In turn, it led to the procedurally improper reduction in appeals by the mechanism of refusal of legal aid by Court of Appeal Judges, disapproved by their Lordships in R v Taito [2003] 3 NZLR 577 (PC).

Recently, the Legal Services Agency has restricted funding for criminal appeals, giving rise to a bureaucratic version of the pre-Taito problem.

In order to preserve and enhance the value of the right of appeal under s383 of the Crimes Act, counsel must do their best to bring focussed and well-prepared cases before the court. By virtue of sections 3 and 5 of the Legal Services Act 2000, and sections 3, 24(f) and 25(h) of the New Zealand Bill of Rights Act 1990, the Government has a corresponding obligation to ensure that counsel are adequately funded for that purpose.

In R v Clode [2009] 1 NZLR 312, the Court of Appeal directed that before raising as a ground of appeal complaints about trial counsel, counsel acting in an appeal must first undertake due diligence. This means that before notifying such a ground of appeal, counsel must discern and investigate complaints about trial counsel, evaluate their merit, and provide full and frank advice to the client and the Legal Services Agency.  

Subsequent to Clode, dicta in R v Hunter (CA221/08, 17 June 2009) required counsel to further assess the merits of a ground of appeal based upon trial counsel error, if new information comes to hand.

Moreover, when drafting grounds of appeal, counsel must state with particularity alleged misdirections or errors of law (see the directions of the English Court of Appeal in R v Singh [1973] Crim LR 36 and R v Morson (1976) 62 Cr App R 236, approved in the commentary in Adams on Criminal Law, at CA388.01(2)).

Decisions on mode of hearing and filing or testing fresh evidence cannot be made until the grounds of appeal are properly particularised: see Rules 12A, 12B and 12BA of the Court of Appeal (Criminal) Rules 2001.

When seeking funding from the Legal Services Agency to undertake criminal appeal work, counsel should cite the above rules and authorities in support of requests for funding.

While the Legal Services Agency appears reluctant to grant adequate funding for due diligence, it is not proper for counsel to lodge an appeal in default of adequate funding being granted. On the other hand, counsel cannot be expected to undertake such important appellate work if it is not properly funded. This may mean having funding refusals to properly prepared appeal grounds reviewed by the Legal Aid Review Panel, in order to protect the client’s right to access justice through the right of appeal.

by Warren Pyke 

This article was published in LawTalk 764, 28 January 2011, page 10.