Legal Aid accused

A LAUNCESTON lawyer who has conducted two murder trials for free after being denied funding has accused the Legal Aid Commission of Tasmania of acting like a `` law unto themselves''.

However, the commission has defended its decision not to transfer legal aid to the private practitioner, arguing that it must be cautious when spending public money.

 Devonport's Adrian Wayne Smillie was charged with murder on December 26, 2012. 

He engaged an in-house Legal Aid lawyer that day but on January 2 requested that his grant be transferred to Launceston barrister Adrian Hall. 

The commission refused the transfer on the basis that Smillie already had a lawyer. 

 Mr Hall asked for the decision to be reviewed, offering not to charge for work already done. 

``What greater justification can one have than on a murder charge wanting to be represented by a solicitor in whom you have confidence rather than one in whom you do not?'' he wrote to the commission.

  But the commission's review committee backed the initial decision. 

Mr Hall agreed to act pro bono for Smillie, taking the matter to trial where the 34-year-old  was found guilty after a five-day hearing in the Supreme Court in Burnie.  

In the meantime the Law Society of Tasmania launched a Supreme Court appeal against the commission's decision to deny Mr Hall funding.

Society president Anthony Mihal said the action was prompted by ``ongoing concern about the application of the [commission's] transfer policy and the accountability of [it] for its decisions''.

However, Justice Helen Wood dismissed the appeal after deciding that she did not have the authority to examine a decision by the commission's review committee. 

Mr Hall, who also represented murderer Mathew Patrick Tunks for free, said defendants should always have a choice of counsel, particularly for serious charges.  

``Strip away all the legalese, a lack of means should not equate to a lack of choice,'' he said.

In light of the Wood decision, the Law Society has called on the commission to establish a process whereby its decisions can ``be reviewed independently, quickly and cheaply''.

Commission director Graham Hill has knocked back the proposal, saying it would direct funds away from ``needy applicants''. 

``With only six to 10 requests for transfer refused out of 7000 applications for legal aid, it would hardly be economical to set up machinery for review,'' he said. 

Mr Hill said the commission was unique in Australia in allowing recipients of aid to choose their own lawyers.

Once a lawyer was chosen, there must be ``exceptional circumstances'' to allow a transfer of aid, he said.

 ``This is in accord with every other state -  no legal aid commission has a policy of open transfer,'' Mr HIll said. 

Despite this, most requests to transfer were approved, he said. 

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