Legal memo of advice
You are a first year law student completing a clerkship at the Victorian
Government Solicitors Office. Your supervising solicitor, Jemma York, knows that you are a current Deakin University student who is studying the Charter of Human Rights and Responsibilities Act 2006 (Vic) and requests your advice in relation to the scenario below.
Debbie Allen was charged with the indictable offence of obtaining property by deception. As the value of the property was $90,000, the indictable offence was
tried summarily in the Magistrates Court of Victoria. On 13 February 2013,
Debbie was convicted and sentenced by Magistrate Ryan Doherty to a term of imprisonment of two years. Debbie was transferred to Cowden Prison on14 February 2013. A privately owned corporation, Reformatory Services Pty Ltd, has a valid contract with the Department of Justice to manage Cowden Prison.
Debbie decided to appeal the sentence imposed by Magistrate Doherty
The appeal was lodged in the County Court of Victoria on 1 March 2013 and Debbie was granted legal aid to facilitate the appeal. The appeal was listed
for hearing on 15 May 2013, however, Debbie’s lawyer, Joe Smith, withdrew
because Debbie would not follow his legal advice. As a result, the matter was adjourned for hearing to 5 August 2013. Debbie was to be represented by Elizabeth Robinson for the hearing on 5 August. However, after a disagreement with Debbie in relation to the advice provided Elizabeth sought leave to withdraw as counsel for Debbie. The leave was granted and the appeal was relistedfor hearing on 15 October 2013. Before the appeal was heard, Victoria Legal Aid (VLA) revoked Debbie’s grant of legal aid.
Debbie appeared unrepresented before Judge Daves of the County Court of Victoria on 15 October 2013. Judge Daves expressed concern that Debbie maybe ‘seriously disadvantaged’ by her lack of legal representation. Debbie stated to Judge Daves that she wanted to be legally represented but VLA revoked her legal aid.
Sharon Mantz, the representative for VLA, explained to Judge Daves that
due to Debbie failing to follow the advice of previous counsel and her
repetitive behaviour of discharging previous counsel, VLA was not prepared to provide further legal aid.
Debbie contended that she was entitled to legal representation under the
Charter of Human Rights and Responsibilities Act2006 (Vic) (‘Charter’) and that without legal representation she would not have a fair trial as mandated by the Charter.
Judge Daves referred the questions of law, pertaining to the Charter, to the Supreme Court of Victoria. While in custody at Cowden Prison, awaiting the decision of the Supreme Court of Victoria. Debbie has alleged that her Charter rights are being contravened. Your supervising solicitor has provided you with the complaint made by Debbie.
My name is Debbie Allen and I am serving a 2 year sentence at Cowden Prison, located in the State of Victoria. Since arriving at Cowden Prison I have been forced to work in the prison cafeteria for between 3 – 4 hours per week. I have been forced to do tasks such as wash dishes and chop vegetables. I find this work uninteresting and menial. I have also been denied medical treatment.
Before my imprisonment I was seeing my physiotherapist, Joanna Ling, on a
weekly basis to help with my bad back and mobility issues. Since being imprisoned I was told that I could no longer see Joanna, but instead I could make an appointment to see the Cowden Prisonphysiotherapist, Kathy Keith. I do not want to see a new physiotherapist. Joanna has been treating me for years and knows of all my aches and pains. I worry that myback will get worse and my health will suffer because I am unable to see Joanna during my term of imprisonment.
The Director of Cowden Prison, Karl McAdams, has confirmed that all inmates
are required to assist in the prison canteen for up to 4 hours per week. Required tasks of all inmates include washing dishes, mopping the floor and chopping vegetables. Debbie has been asked to complete the same tasks required of all inmates. Karl also Confirmed that it is the policy of Cowden Prison to arrange the provision of necessary healthcare services for inmates. Karl stated that the reason inmates are unable to choose their own healthcare providers is because it would be a threat to the security of Cowden Prison. All healthcare professionals who are employed by Cowden Prison are carefully screened and have to pass extensive background checks. Your supervising solicitor seeks the following advice from you:
(1) Is there an enforceable right to legal aid under the Charter?
(2) Is Debbie correct in her assertion that without legal representation she would not have a fair trial as mandated by the Charter?
(3) Is Cowden Prison in breach of the Charter?
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