U3AOS1 Topic 10: Legal practitioners

Key Knowledge Dot Point:

1. The need for legal practitioners in a criminal case.

Preface:

1. As the dot point focuses on the need for legal practitioners, it is important to understand why they are essential in the first place. The justice system is inherently complex, and legal representation plays a crucial role in enabling individuals to navigate it effectively. In addition, this dot point falls under the principles of justice during a criminal case, meaning that you may be asked to evaluate the ability of legal practitioners in the criminal justice system to achieve the principles of justice during a criminal case.

Note: all the potentially unfamiliar terminology used in this chapter is listed below:

1. Legal practitioner refers to a lawyer with an Australian legal practising certificate.
2. Barrister refers to a self-employed lawyer who regularly appears in court and is responsible for representing a party at trial by making legal arguments, questioning witnesses, and summarising the case for the judge and/or jury.
3. Solicitor refers to a lawyer who advises clients on legal matters, prepares legal documentation for trial, communicates with the other party’s legal representatives, and researches relevant laws. When required, a solicitor also engages the services of a barrister and briefs them to represent the client in court.

There is nothing stated in the study design that states that you need to know the difference between a solicitor and barrister.

The need for legal practitioners in a criminal case:

1. Uphold the rule of law — The rule of law requires that accused persons receive a fair and impartial trial. Legal advice and representation play a crucial role in promoting fair outcomes by enabling the accused to present their case effectively, with legal practitioners articulating relevant evidence and applying appropriate legal principles. According to the Law Council of Australia, the rule of law is upheld when everyone has access to competent and independent legal advice, and when laws are readily known, certain, and clear. By obtaining legal advice, the law can be explained to the accused in a clear and accurate manner, as legal practitioners possess specialist knowledge and expertise in the law. This allows accused persons to better understand their legal rights—such as the right to silence—as well as the court processes and proceedings they will be involved in, thereby supporting the effective operation of the rule of law.
2. Ensure an accused understands legal proceedings — The Criminal Procedure Act 2009 (Vic) outlines the processes involved in criminal proceedings in Victoria, including how a criminal proceeding is commenced, the conduct of committal proceedings and directions hearings, the circumstances in which written pleas of guilty may be accepted, the manner in which evidence must be presented, and the process for appealing a criminal conviction. These procedures can be complex and difficult to understand for individuals with limited legal knowledge. By obtaining legal advice or engaging a legal practitioner, an accused person can be guided through each stage of the criminal justice process, enabling them to understand what is required of them and to participate meaningfully in the proceedings.
3. Offer support — Interacting with the criminal justice system can be an overwhelming and intimidating experience for an accused person, particularly when being questioned by police during an investigation or appearing in court while the Office of Public Prosecutions (OPP) scrutinises their alleged conduct. This pressure is often heightened for individuals who have no prior experience with legal processes or who lack confidence in understanding their rights and obligations. The presence of a legal practitioner provides not only legal guidance but also emotional and procedural support during these high-stress situations. By explaining what is occurring at each stage and advising the accused on how to respond appropriately, a legal practitioner can help reduce anxiety and uncertainty. As a result, the accused is more likely to communicate calmly and coherently with police and the court, which may assist them in presenting their case effectively. This measured and informed participation can contribute to the accused being perceived as credible and reliable, supporting a fairer assessment of their case.
4. Help an accused to receive a fairer outcome — An experienced criminal lawyer can significantly improve the likelihood of a fair outcome by drawing on their knowledge of the law, court procedures, and past cases to construct a strong and targeted defence. Legal practitioners are skilled in challenging the prosecution’s evidence, identifying weaknesses in the case, and ensuring that relevant legal principles are applied correctly. By receiving representation tailored to their specific circumstances, an accused person is better placed to achieve a just outcome than a self-represented individual with limited legal knowledge. This may help ensure that an innocent accused is not wrongfully convicted, that a guilty accused receives a sanction that appropriately reflects the circumstances of the offence, and that relevant mitigating factors—such as remorse, mental impairment, or lack of prior offending—are properly raised before the court. Furthermore, legal practitioners play a critical role in advising and assisting accused persons with appeals, which involve complex legal and procedural requirements that many individuals would struggle to navigate independently. Through these functions, legal representation supports fairness by ensuring outcomes are based on law, evidence, and individual circumstances rather than an accused person’s ability to represent themselves.

Legal practitioners and their ability to uphold the principles of justice: fairness, equality and access:

How legal practitioners uphold fairness:

1. Legal practitioners promote fairness by providing advice that enables accused persons to participate in criminal proceedings on an informed basis. By explaining complex pre-trial and court processes, legal practitioners ensure that the accused understands their rights, obligations, and available options throughout the criminal justice process. This informed participation can lead to fairer outcomes, as the accused is better equipped to engage meaningfully in key aspects of their case, such as deciding whether to enter into plea negotiations or proceed to trial, rather than being disadvantaged by a lack of legal knowledge.
2. The prosecution has a professional and ethical duty to present all relevant evidence and applicable legal principles to the court, regardless of whether they support or undermine the prosecution’s case. This obligation helps ensure that the whole truth is placed before the judge or jury. Consequently, decision-makers are able to base their verdict on a complete and balanced assessment of the facts, which promotes impartiality and reduces the risk of unjust or biased outcomes.

How legal practitioners do not uphold fairness:

1. Legal representation for the accused can be costly, meaning some accused persons may only be able to afford either a solicitor or a barrister, or may be unable to access legal representation at all. This can create an imbalance between the parties, particularly where the Office of Public Prosecutions (OPP) has access to a team of experienced solicitors and barristers. As a result, the accused may be placed at a disadvantage when presenting their case, which can undermine fairness by reducing the equality of arms between the prosecution and the defence and increasing the risk of an unjust outcome.
2. An accused person may struggle to participate effectively in criminal proceedings without access to legal advice. For example, they may not understand how to appeal a conviction or sentence following a guilty verdict, particularly given the complexity of appellate procedures. This lack of understanding can prevent the accused from exercising their legal rights fully, limiting their ability to challenge an unjust outcome and thereby undermining the achievement of fairness within the criminal justice system.
3. Where an accused person is required to present their own evidence and question their own witnesses, this evidence may be perceived by the judge or jury as less reliable or less persuasive, as it is presented by an interested party rather than an experienced and impartial legal practitioner. As a result, the accused’s evidence may be given less weight or overlooked, increasing the risk of an unfair outcome within the criminal justice system.

How legal practitioners uphold equality:

1. When an accused person has access to legal representation, equality before the law is better achieved because the imbalance that would otherwise exist between the accused and the prosecution is reduced. Legal practitioners ensure that the accused is able to respond effectively to the prosecution’s case, preventing the accused from being disadvantaged simply because the prosecution has professional legal expertise. This promotes a more level playing field between the parties and supports equality by ensuring that outcomes are influenced by the merits of the case rather than disparities in legal knowledge or skill.
2. Victoria Legal Aid’s (VLA) strict eligibility requirements prioritise individuals who are disadvantaged in accessing legal representation. By directing assistance to those most in need, VLA actively works to minimise structural disadvantage and promote equality before the law. This ensures that individuals are not denied legal representation solely due to characteristics such as low income, cultural background, or social disadvantage, supporting equal participation in court processes and outcomes based on legal merit rather than personal circumstances.

How legal practitioners do not uphold equality:

1. Legal representation for the accused can be expensive, meaning some accused persons may only be able to afford either a solicitor or a barrister, or may be unable to secure comprehensive legal representation at all. This can result in unequal legal representation, particularly where the Office of Public Prosecutions (OPP) has access to a team of experienced solicitors and barristers. Consequently, an imbalance may arise between the parties, undermining equality before the law by disadvantaging the accused due to financial constraints rather than the merits of the case.
2. Victoria Legal Aid’s (VLA) strict eligibility requirements mean that not all accused persons are able to access free legal representation, even where they cannot afford the high costs of private legal services. As a result, some accused individuals may be left without adequate legal representation due to falling outside eligibility thresholds, undermining equality before the law by allowing financial circumstances to influence an individual’s ability to defend themselves effectively in court.
3. Legal practitioners in Australia typically communicate in English, which may disadvantage accused persons who do not speak English as their first language. Even where legal advice is provided, non-English speaking accused persons may continue to struggle to understand the law and legal proceedings if they are unable to access a solicitor or barrister who speaks their first language or appropriate interpreter services. This language barrier can limit effective participation in the criminal justice process and undermine equality before the law by disadvantaging individuals based on linguistic background rather than the merits of their case.

How legal practitioners uphold access:

1. Legal practitioners assist parties in preparing and presenting their case, thereby increasing access to justice by enabling accused persons to develop a clear understanding of their legal rights and the criminal proceedings in which they are involved. Through legal advice and representation, accused persons are better equipped to engage meaningfully with the justice system, rather than being excluded or disadvantaged by a lack of legal knowledge.
2. By engaging a legal practitioner, an accused person is better able to access legal mechanisms that may reduce the severity of their sentence. Legal practitioners can advise the accused on options such as entering into plea negotiations, raising relevant mitigating factors, or appealing a conviction or sentence where appropriate. Given the complexity of these processes, legal representation ensures that the accused is not denied access to potential remedies simply due to a lack of legal knowledge. This supports access to justice by enabling accused persons to pursue all lawful avenues available to them to achieve a more just outcome.

How legal practitioners do not uphold access:

1. The high cost of legal practitioners can significantly restrict an accused person’s access to legal representation. As a result, some accused individuals may be unable to obtain legal advice or representation, limiting their ability to understand their rights, engage effectively in criminal proceedings, and access mechanisms that could lead to a fair or reduced outcome. This undermines access to justice by making effective participation in the legal system dependent on financial capacity rather than legal need.
2. Where an accused person does not engage legal representation, they may struggle to understand and navigate legal processes. The legislation governing criminal proceedings is often complex and difficult to interpret for individuals without a legal background. As a result, an accused may be unable to participate effectively in their case or access key legal options, limiting access to justice and increasing the risk of an unjust outcome.
3. Victoria Legal Aid’s (VLA) strict eligibility requirements mean that not all individuals are able to access free legal representation. As a result, some people who cannot afford private legal services may be left without legal representation, limiting their access to legal practitioners and reducing their ability to participate effectively in criminal proceedings.