(1) In this section—
"private law practice" has the same meaning as in the Legal Aid Act 1978 ;
"private legal practitioner" has the same meaning as in the Legal Aid Act 1978 .
(2) Subject to subsection (3) and despite any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.
(3) If a court is satisfied at any time that—
(a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b) the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial—
the court may order Victoria Legal Aid to provide legal representation to the accused, on any conditions specified by the court, and may adjourn the trial until that legal representation has been provided.
(4) Despite anything in the Legal Aid Act 1978 , Victoria Legal Aid must provide legal representation in accordance with an order under subsection (3).
(5) Despite anything to the contrary in subsection (3)—
(a) if the court is satisfied that, in relation to the trial, the accused has engaged in vexatious or unreasonable conduct that has contributed to the accused's inability to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial, the court may refuse to make an order under subsection (3);
(b) the legal burden of proof for the purposes of subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation rests on the accused;
(c) for the purposes of proving under subsection (3)(b) that the accused is unable to afford the full cost of obtaining legal representation, regard must be had to property—
(i) that is subject to the effective control of the accused (whether or not the accused has an interest in it); or
(ii) in which the accused has an interest—
as determined in accordance with section 9 or 10 of the Confiscation Act 1997 ;
(d) the conditions that may be specified by the court under subsection (3) do not include conditions relating to the identity, number or remuneration of persons representing the accused.
(6) A court must give Victoria Legal Aid an opportunity to appear and be heard before an order is made under subsection (3).
S. 197(7) amended by No. 68/2009 s. 20.
(7) Despite anything to the contrary in this or any other Act, Victoria Legal Aid may appeal to the Court of Appeal, if the Court of Appeal gives leave to do so, from an order under subsection (3) made by the Trial Division of the Supreme Court constituted by a Judge.
Pt 5.5 Div. 3A (Heading) inserted by No. 48/2018 s. 29.
Division 3A—Pre-trial taking of evidence and