The extracts below are from a Pilot Project Proposal which was presented to Legal Aid in 2015. Legal Aid declined to fund the Pilot Project, so this website invitation way of getting testers is being used.
Proposal Summary
The Trial Workbook Company seeks [funding for] a pilot project which aims to reduce the number of successful appeals challenging the conduct of trial counsel by improving the expectations and communication between trial defence counsel and defendant.
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Introduction
The number of appeals raising the conduct of trial counsel has increased[1] and now forms a significant proportion of criminal appeals before the Court of Appeal[2]. The Court of Appeal decision of H v R[3] noted that “it has become apparent there is a mismatch between current procedures and practise”. As a result, the court reviewed the processes applicable to these appeals to ensure they are effective and promote the overall interests of justice.
Counsel conduct appeals are stressful for the defendant, complainant, witnesses and counsel. They take time and are expensive. A successful appeal may result in a retrial which incurs additional stress and expense to defendants, complainants, witnesses and Legal Services.
Complaints made commonly reflect a perception by a convicted person that their trial was conducted by their lawyer without proper attention being paid to their views or instructions. Files viewed for appeal purposes or as part of a complaints or audit process often suggest that the lawyer did not consult the client and seek instruction on all important matters.
There are three fundamental decisions in the trial process which give rise to appeals based on counsel’s failure to follow specific instructions. Failure to follow specific instructions will generally give rise to a miscarriage of justice, a successful appeal and potentially, a retrial. The fundamental decisions relate to entry of the plea, the election to give or call evidence, and a positive defence relating to the defendant’s version of events.
A properly informed instruction requires a defendant to be fully informed on all relevant implications of their decision. The defendant needs to have an understanding of the relevant law, the disclosure and their ability to comprehend how those matters relate to their views and version of events. For these things the defendant relies on the expertise of trial counsel.
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In the past six years there have been 253 appeals raising trial counsel conduct of which 25 have succeeded on that ground. In 1996 there were four appeals which raised trial counsel conduct. In the past six years the average number of appeals raising this issue has increased to an average of 42 appeals per year. Only a small reduction of these numbers is needed to create significant savings in legal aid costs and justice sector costs generally.
Purpose
The purpose of this project is to provide a set of resources for lawyers and defendants to use to keep both of them orientated as to roles and tasks. The resources will contain prompts as to the issues to be discussed, space to record advice, tasks, checklists and instructions (or where to find them elsewhere).
The intention is that:
- If it is easier for defendants to be actively involved in decisions about their trial then they will be better satisfied with the service provided by Legal Aid and their lawyers; and
- When complaints are made, lawyers will be better equipped to explain how the defendant was involved, or offered the opportunity to be involved, in the preparation of and decision making about the conduct of the trial.
A further goal is that the resources will act as a checklist for lawyers about their role and about legal issues that may arise in the preparation for and conducting of trials. This will increase the skill and attention of the lawyer which occurs before conviction or acquittal, and again will reduce the likelihood of complaints, general and on appeal.
The proposed pilot project will prepare a paper based workbook for both counsel and defendant. Each workbook will address each of the matters raised by the Court of Appeal, include references to the Lawyers and Conveyancers Rules and Code of Conduct, provide guidelines and checklists for both counsel and the defendant and provide space to record analysis, advice, views and instructions.
The work book acts as an aide memoir for counsel and a comprehensive communication tool for the defendant and counsel, as well has providing a user-friendly written record of discussions and decisions. Defendants will feel informed and engaged in the process which will improve effective communication between counsel and client. Which will create more satisfactory outcomes for the defendant and fewer appeals based on counsel competency.
Resources
We propose resources comprising of a case specific printed workbook for the lawyer and a printed booklet for the defendant, each being developed from the draft provided at earlier meetings. A folder/file could be offered to the defendant, but we recognise that some defendants will not want the details of their criminal charges and their dealings with their lawyers to be where others may come across them.
The workbook will contain headings and space for recording information about the case, advice given, and instructions received. For some topics there will be space for lists of things to be done and prompts to record who is to do them. There will be an emphasis on prompting for detailed advice and instructions where appropriate, rather than general plans. The folder is not intended to replace the files lawyers are currently expected to keep or to increase paperwork. Spaces could be completed with notes such as “see letter/email discussion/file note dated…”.
The workbook will contain some of the responsibilities of defence lawyers as described in the Practise Standards For Legal Aid Providers (Ministry of Justice, October 2011 [now February 2017]), contained in the Code of Conduct, set out in Mason v Glover [2013] NZHC 1321 Whaata J, and more recently in the full bench decision of the Court of Appeal H v R.
The booklet will brief defendants as to their role and responsibilities, and give them a list of issues to be discussed with their lawyer. There will be space for notes, and lists of tasks.
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Anticipated benefits
- Defendant has correct information about trial decision making, process and their role
- Increased defendant involvement in trial decision making process
- Improved defendant satisfaction with trial process and outcome
- Opportunity for increased lawyer awareness of roles and responsibilities
- Opportunity for enhanced lawyer performance
- The combined effect of these improvements will result in fewer complainants and appeals based on those complaints
- Overall savings and benefits to all stakeholders in the criminal trial and appellate process
[1] In 2009 there were 35 of appeals raising trial counsel conduct. Only four succeeded on that ground. In 2011 there were 50 such appeals where 7 appeals succeeded. In 2014 43 appeals raised trial counsel conduct. Only one appeal was successful (H v R [2015] NZCA 403 appendix table 1)
[2] above para [1]
[3] [2015] NZCA 403 para [2]
