More early guilty pleas on the cards

JIMMY ELLINGHAM
Last updated 12:00 10/12/2012

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A top Palmerston North lawyer is concerned changes to legal aid funding could encourage early guilty pleas at the expense of properly examining a case.

Since March legal aid for criminal cases has been paid on a "fixed-fee" basis. This was introduced as an attempt to limit legal aid spending, which skyrocketed by 50 per cent between 2007 and 2010.

It is paid for by the Government to people who can't afford their own lawyer. In some cases, people who receive legal aid must pay it back.

Criteria for defendants claiming assistance have tightened and those charged with less serious crimes can no longer choose who represents them.

In most cases lawyers now receive between $300 and $390 for representing someone who pleads guilty.

If the matter goes to a defended hearing, they receive $480 to $580 for all the pre-hearing court appearances, preparation and up to 90 minutes' hearing time.

"I think the real concern is there's a financial disincentive for examining whether there's a defence or not," experienced Manawatu lawyer Peter Coles said.

A "classic example" was when police searched a person's property and found cannabis plants.

On the face of it the person was guilty, but to check everything's done properly the lawyer should obtain a copy of the search warrant and search warrant application to check if the evidence would be admissible in court, Mr Coles said.

"People are no longer being encouraged to defend matters. The benefit of that is non-meritorious cases aren't being pursued to make money out of them, but equally there's a more worrying side that people who have a valid legal defence may not be having that investigated." Fixed fees made economic sense, however, Mr Coles said.

Charges for trial matters are more generous and lawyers spoken to by the Manawatu Standard don't have a problem with them.

There are also extra fees for lawyers who obtain pre-sentence reports for their clients, such as forensic or restorative justice evaluations. They pay $150 each.

Mr Coles said such payments could encourage lawyers to make submissions that were not helpful.

The head police prosecutor in Palmerston North, Neil Coker, said while he didn't see all the submissions made by lawyers, there had been a "small increase" in such pre-sentence reports.

A Ministry of Justice spokesman said it had not received any information about the system being abused.

"However, we are currently evaluating the fixed fees regime and we continuously monitor case statistics to spot any unusual trends."

In the 2011/12 year, more than $171 million was paid to 1455 firms and lawyers around New Zealand.

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Legal aid changes were introduced after a damning 2009 report by Dame Margaret Bazley that included criticism of "car boot lawyers" who worked without an office. Palmerston North had some "serious quality issues" with lawyers, she found.

City lawyer Tony Thackery raised concerns about legal aid cases being handed out on a rotational basis, saying it meant lawyers would have to start afresh all the time rather than get to know clients.

"Sometimes the judge knows more about your client than you do," he said. He said lawyers would try to ignore the incentives for early guilty pleas.

Minister of Justice Judith Collins was overseas and unavailable for comment.

- Manawatu Standard

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