‘Wholly inadequate’: Bar warns low pay risks aborted trials and overturned convictions

Victoria’s Criminal Bar Association has warned that underpaid and unprepared lawyers are causing aborted trials and convictions to be overturned, saying the low pay rates offered by the state’s public prosecutors are largely to blame.

In an email sent to members and seen by this masthead, association chair Chris Carr, SC, said briefing fees paid to external counsel by the Office of Public Prosecutions (OPP) were markedly lower than the fees paid by Victoria Legal Aid (VLA). This, he said, was generally acknowledged to be “wholly inadequate”, and half what other government agencies, such as the Environmental Protection Authority and WorkSafe, paid.

“The state government has been prepared to properly fund prosecutions of environmental crimes, occupational health and safety offences … but has been unwilling to similarly fund the prosecutions of rapes, murders, sexual offences against children,” Carr said.

“Complex prosecutions that are not conducted by sufficiently experienced counsel, or that are conducted by prosecutors who are not adequately funded to spend the time necessary to properly prepare cases, are prone to result in unjust and inappropriate outcomes.”

The email came after the OPP said it would increase the fees it pays barristers by 2.5 per cent from April 1, which Carr said left them behind the current 3.8 per cent inflation rate.

Though the OPP has in-house prosecutors and Crown prosecutors, it regularly briefs external barristers due to the state’s case load, which commonly includes cases of murder, manslaughter, sexual assault, drug trafficking and fraud.

Carr expressed disappointment on behalf of the association, and said there had been a need to retry a number of cases due to mistakes that could be tracked back to inadequate funding of counsel.

He said the work done by the OPP was fundamental to the operation of the criminal justice system.

“Suitably experienced prosecutors, who are paid appropriately to properly prepare and conduct cases, are essential to our system’s ability to produce just outcomes,” Carr said.

“There have been numerous instances of OPP solicitors seeking adjournments of criminal trials because they are unable to secure counsel willing to prosecute cases at the fee rate set by the OPP.

“There are many instances of cases in which mistakes by prosecutors, who were not paid sufficient preparation to spend the time necessary to prepare a case properly, or who were asked to take on a case that required the skills and experience of a more senior barrister, have resulted in aborted trials, juries being discharged and convictions overturned.”

In 2022, this masthead revealed criminal trials were being adjourned because the OPP was unable to find prosecutors.

At the time, the OPP had been plagued by low morale, inadequate funding and an exodus of experienced staff following its contentious decision to disband its specialist sex offences unit.

Data on current fees paid to Victoria Legal Aid and OPP barristers shows a difference of hundreds of dollars a day in some situations.

At magistrates’ committals, VLA-instructed barristers are paid between $1157 and $1284 a day. By comparison, barristers for the OPP with less than seven years’ experience are paid between $654.50 and $762 a day, marking a 16 per cent difference in rates.

In the County Court, VLA pays barristers $1834 for the first day, while the OPP pays junior barristers $1360.70 for the same time, according to 2026 pay schedules – a difference of almost 35 per cent.

The OPP released a response to the association’s email on Tuesday. OPP director Brendan Kissane and solicitor Abbey Hogan rejected the proposition that there was a link between preparation funding, the seniority of counsel and unjust legal outcomes such as the overturning of convictions and retrials.

An internal review found these outcomes were impacted by a range of factors, including errors by the defence and judicial misdirection, they said.

“The OPP values highly the skill, integrity and commitment of the barristers we brief,” they said.

“We recognise the genuine pressures associated with counsel fees. Within a very constrained fiscal environment, the OPP continues to advocate for improved funding.”

Legal sources with knowledge of the issue, who agreed to speak only on the condition of anonymity, said the biggest impact was happening to sex offence-related cases, with barristers not paid to meet complainants or read briefs of evidence, which span 1200 to 2000 pages on average.

The source said that with the Victorian Bar entrance exams recently being made easier to pass, significantly more people were becoming barristers and able to work in the field without any criminal law experience. This opened up a market, they said, for cheaper but less experienced available barristers.

With the recent abolishing of committals for rape cases, the source said, there was also a risk of innocent people languishing in jail and possibly being found not guilty with no recourse, when potential issues may have been identified earlier if the evidence was tested in a magistrates’ court.

“You either subscribe to the idea of ‘I believe people need to go to jail, the police mentality’ ... otherwise there is no lure [to work for the OPP],” they said.

“There needs to be systemic change, and consequences for bringing [weak] cases to court.”

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