Perth, Western Australia:
McGinnis was an ex-convict who had done six years for rape and was accused again of rape by his estranged girl friend. His application for Legal Aid was turned down the day before the trial and the Queens Counsel (QC) who was expecting to defend him refused to appear withouth guarantee of payment.
“What am I to do – do the case for nothing? Why should I?” the QC asked. “I take the contract on the basis that I’m to be paid. It is not a question of being mean or greedy. A man is entitled to be paid for his services.”
The presiding Judge was the one who had sentenced McGinnis previously in 1972. It was not pointed out clearly to him that Aid had been applied for and refused only 24 hours before.
McGinnis requested an adjournment while he appealed against the Legal Aid decision but the Prosecutor argued that everyone was ready and waiting, and that McGinnis’ financial situation would not change with more time.
“It is imperative that justice be attended to swiftly, as swiftly as possible,” said the Prosecutor. “There is not only you to consider but also those witnesses brought to this court on three occasions to have this matter disposed of …”
The Judge decided: “… The trial will proceed today. You (McGinnis) will have a copy of the depositions and you will have time to read them and it will be my obligation to assist you as much as i can in the conduct of your defense.”
The QC who had refused the case was ‘staggered’ but did not re-enter the case. (The W.A. Bar Association Rules that “only in the most exceptional cases should a brief for the defense of a person charged with a serious criminal offence be returned when once accepted and only if sufficient time remains for another counsel to master the case.”).
In the United States no man or woman accused of a serious offence may face trial without counsel: “This noble ideal [that every defendant must stand equal before the law] cannot be realised if the poor man charged with a crime has to face his accusers without a lawyer to assist him.”
In due course Legal Aid was granted for an appeal to the West Australian Supreme Court. Two judges felt that no miscarriage of justice had occurred although they expressed disquiet at the course of events which left McGinnis unrepresented. The Chief Justice of W.A. dissented. Meanwhile the Perth Bar Society held an inquiry, the upshot of which was that “they were not to become involved with poor clients before cash was secured.”
The case went on to the High Court of Australia where it was lost 4:1.
Against the case, Chief Justice Sir Garfield Barwick said: “Legal Aid promises speculative litigation and unjustifyably protracted trials … It is proper to observe that an accused does not have a right to be provided with counsel at public expense. Any right to pursue opportunities for legal aid – or aid of any kind – must be balanced against the convenience of the Crown and Crown witnesses.”
Justice Mason, who finally concurred with Barwick, had reservations: “The adjournment should have been granted; the applicant should not have been forced with very llittle opportunity given to him to prepared personally the conduct of his defense.”
Justice Lionel Murphy was the lone dissenter.
The original QC was eventually fined a total of $2000 by his Bar Society for accepting the brief without it going through a Solicitor or Legal Aid.”
Reported in the National Times 12/10/1980