Pro Bono Assistance from the Australian legal profession for criminal proceedings in Nauru
Criminal proceedings relating to separate disturbances in
the Regional Processing Centre (RPC) that occurred in
September 2012 and on 19 July 2013 pose a significant challenge for
the Nauru court system and for the very small number of legal
practitioners who comprise the Nauru legal profession. The
first trials concerning the September 2012 incidents will commence
on 22 August 2013.The Nauru legal profession comprises a very few
graduate lawyers and a small number of Pleaders, who are
experienced in conducting criminal cases but are not graduate
lawyers. There are very few experienced graduate criminal
lawyers.
Article 10(2) of the Nauru Constitution provides that each
person charged must be afforded a fair hearing within a reasonable
time, by an independent and impartial court. Where the person
cannot meet the cost of legal representation by a lawyer of his/her
own choice, then Art 10(3) provides that the Court must assign a
legal practitioner where it is in the interests of justice to do
so.
Given that more than 150 persons have been charged with offences
relating to the RPC events, and that these cases are additional to
the significant number of criminal and civil cases otherwise in the
court lists relating to Nauruan citizens and residents, it is clear
that both governments and the judiciary must assess the needs for
legal assistance for all of these defendants in ensuring the
expeditious and just disposition of their cases. An
additional factor that must be taken into account is the limited
court room facilities in Nauru. The District Court and the Supreme
Court currently share the use of a single, small, courtroom.
In recent years the Chief Justice of Nauru, the Hon Geoffrey M
Eames AM QC, and the Resident Magistrate, Mr Peter Law, have
designed and implemented a number of advocacy training programs,
both in civil and criminal law, which have been well attended and
appreciated by members of the Nauru legal profession. Those
programs have been made possible by funding from the Pacific
Judicial Development Program (PJDP) and by the provision of pro
bono services from highly qualified and experienced members of the
Victorian legal profession. It was intended that such
training programs would continue and the PJDP has now generously
agreed to support a two phase program for the provision of ongoing
training and case work support in August and October 2013 to the
Nauru practitioners.
Mr Law has made representations to the Nauru government for
legal aid funding for members of the Nauru profession to represent
defendants and those representations have been favourably received,
but that funding is limited.
To add to the legal resources, two experienced Victorian
practitioners have offered their services pro bono. They are
Mr Sam Norton, in-house counsel with Robert Stary Lawyers, the
largest criminal law firm in Victoria, and barrister, Mr Ashley
Halphen, nominated by the Victorian Bar Council.
Mr Norton is Chair of the Criminal Law Section of the Law Institute
of Victoria and is an experienced advocacy teacher. Mr
Halphen is an experienced criminal barrister, who also conducted a
highly successful advocacy workshop in Nauru in 2011. Their
accommodation and travel costs will be met by PJDP.
Mr Norton and Mr Halphen will work closely with members of the
local profession, providing practical training and support,
including, where appropriate, appearing for defendants as sole or
co-counsel, and providing advice and support for practitioners in
conducting trials.
In addition to offering their services, as requested, to members
of the local profession, and to defendants, Mr Norton and Mr
Halphen will evaluate the future needs for representation, with a
view to exploring ways in which the Victorian legal profession (and
professional bodies in other States)might provide ongoing support
to the legal profession and people of Nauru, if requested.
The training and support program will have two phases. In
August 2013 Mr Norton will be available to share appearances with
members of the Nauru profession for defendants charged with
offences arising in 2012. He will, in addition, work with
local practitioners to ascertain how many of the detainee
defendants will require legal representation, and how that support
may be provided. The work with local practitioners will
provide "hands-on" training. The second phase will be in
October, when Mr Halphen will attend for three weeks. He will offer
similar training and support as Mr Norton, and will appear in such
cases as are ready to be heard and in which he receives
instructions to act.
The Chief Justice expressed his gratitude to Mr Norton and Mr
Halphen, and to the Pacific Judicial Development
Program. The Victorian legal profession has a long and
honourable tradition of providing legal support and training to
legal practitioners throughout the Pacific.
In addition, the Chief Justice acknowledges the valuable pro
bono support provided to date for RPC defendants by members of the
legal profession in New South Wales, in particular, by Mr Jason
Williams. It is hoped that such support from the New South
Wales profession will continue.
Whilst continuing pro bono support from the Australian legal
profession will be welcomed, it is clear that significant funding
will be required to meet the challenge facing the courts. It
would be unreasonable to expect the Nauruan Government to provide
that funding out of its existing budget.