Faine, Jon --- "Student counsel scheme under threat" [1997] LawIJV 6; (1997) 71(1) The Law Institute Journal 17

• Student counsel scheme under threat

Student counsel scheme under threat

Fiona Zuccala is in the queue to see the prosecutor at Dandenong Magistrates' Court. It is 10.45am on Friday, and the queue is moving slowly. About a dozen lawyers are waiting to haggle with the prosecutor.

Fiona is patiently waiting her turn, clutching her papers, checking the record of inter-view her client gave the police, probably for the twentieth time, to make sure nothing has been overlooked. She is going to haggle, with the very limited material she has got, to extract every last bit of cooperation from the police to try to minimise her client's sentence.

Nothing unusual in all this, you say, just another mouth-piece doing the rounds of the foyer and getting on with the job. But there is something special about Fiona: she has not yet been admitted, but is about to appear in court. Fiona is a final year law student from Monash University, appearing under the student appearance program, a newly launched scheme operating in Dandenong in the Magistrates' and Family Courts as part of the clinical program run by the Law School. It is what is called a "win win" situation, to re-cycle some management jargon from the seventies.

A couple of years ago, the Law School's clinical program at Springvale Legal Service sought meetings with the local magistrates and judges to see if the students working at the Service could appear regularly in matters where legal aid had been refused. The then Chief Magistrate, Sally Brown, and Justice Frederico, in charge of the Family Court in the region, gave their support. Professor Sue Campbell from the Law School and Adrian Evans from Springvale Legal Service put forward a convincing argument: the court would be assisted by having fewer people appearing unrepresented; the clients would have someone looking out for them at no cost; the local profession would not be asked to do as many "freebies" and the duty lawyers from Victoria Legal Aid would have a slightly lesser burden. And the great advantage for the students was getting a taste of advocacy - appearing in a real court in front of a real magistrate with a real client. It doesn't get better than that.

The student appearance pro-gram is now fully operational. It has been a huge success, and deserves to be copied widely around the nation. However, the future of the scheme is in doubt - it could be an unintended victim of the new Legal Practice Act, which will outlaw non-lawyers appearing in court on behalf of other people. So far, over 150 student appearances have been chalked up and, according to Adrian Evans,

"it is an educational and professional success. And don't overlook that it is the university giving something back to the community. We have had 99 percent support from the bench, and the students can be transformed. Even if they want to go on to a career in commercial work, they at least get to give advocacy a try."

Deputy Chief Magistrate Brian Barrow agrees that many magistrates are happy with the scheme. He says that the standard of advocacy he has seen has been good, and the students are clearly well pre-pared and closely supervised. Everything is checked and re-checked before each case is heard to make sure that nothing can go wrong. The supervising solicitors at the Monash Oakleigh and Springvale Legal Services engage the students in role playing as a form of rehearsal beforehand, and on the day they are watched over by a volunteer barrister. As Adrian Evans says:

"If they are not up to it we do not let them appear, but that hardly ever happens. Most of them are terrific."

As an example, I watched Fiona appear in October at Dandenong for Adam (not his real name). He was facing typical "use, possess and cultivate" charges. He told me he had been busted at his house and together with a friend had been charged by the local CIB. To help his housemate, who had a prior conviction, he agreed to accept responsibility for the eleven plants growing in the cupboard under lights. He gave a full record of inter-view, was cooperative at all times and was pleading guilty. He had hoped to keep the overall costs of the bust to a minimum, and had rung Legal Aid in the city for advice. It had referred him to Springvale Legal Service which offered him the choice of advising him on how to appear on his own, or having a final year law student appear for him.

Now Adam struck me as an articulate and friendly sort of bloke who could have coped with appearing on his own if necessary, but as he told me:

"I'd be kacking meself, so if they'll do it for me, why not? I was happy to pay maybe a hundred bucks, but I don't even have to pay that."

He was very impressed with the level of preparation that had gone into his case. Despite never having been involved with the legal system before, he noted that his student counsel seemed to be better on her feet than several of the full fee charging advocates taking up the magistrate's time with various pleas that morning. He is not the only person to have made that observation.

The guidelines under which the student appearance pro-gram works have been thoroughly negotiated between the Magistrates' Court, the Family Court and the legal services. The Law Institute and Bar Council have given the scheme their blessing, and indeed it is

important to emphasise that every student appearing is directly supervised by a volunteer barrister in that court on the day. That barrister also assists the legal service by completing an assessment sheet. The time given by the members of the Bar is commendable.

Although the scheme has the approval of the court, the student must announce his or her appearance each time and seek leave from the court to appear. As a matter of law, the court has a discretion whether or not to agree to the student's appearance, and if for any reason the magistrate is unhappy or uneasy about the case, it is agreed protocol to stand the matter down while the supervising barrister takes over or the matter is adjourn-ed. Let us hope that some ruling can be made - or any ambiguity in the new Act resolved - to allow this terrific scheme to continue.

JON FAINE