Adrian Bayley, the Victorian serial offender who plead guilty in 2013 of journalist Jill Meagher’s rape and murder, had another rape conviction overturned by the Victorian Court of Appeal last week. However, his legal team was working for free, because Victorian Legal Aid controversially refused to fund Bayley’s appeal. 

This article will examine VLA’s decision in the context of the importance of access to justice, even for appellants who are deeply reviled by the community.


The background

In June 2013, Bayley was sentenced to life imprisonment with a non-parole period of 35 years for the rape and murder of Jill Meagher. While in prison, he faced a further three trials for other sex offences against three other female victims. He was convicted at the end of each of those trials: one in July 2014, and two in March 2015.

As a result of these further convictions, Bayley received a variety of sentences, which, cumulatively, meant he was to remain in prison for 43 years – dating from May 2015 – before he was eligible for parole. At this point, he would be 86 years old. The sentencing judge at the time acknowledged that a sentence of this length meant Bayley would probably die in prison.

Bayley had received legal aid from the Victorian government for the conduct of his defence in all these trials. However, he decided to appeal the convictions from the first and third trials, and sought legal aid for this as well. His request was denied. Accordingly, when Bayley was granted leave to appeal to the Victorian Court of Appeal, his legal team was working for free.

Nevertheless, he was successful in overturning the convictions from his first trial, which will result in a new, and lower, non-parole period. At the end of their judgment, the Court of Appeal described the decision not to provide legal aid to Bayley as “regrettable”.

How did he get to this point?


VLA’s first decision

In April and June 2015, Bayley applied to Victorian Legal Aid for funding for his appeals. Those applications were personally considered by the Managing Director of VLA, and were rejected. At the time, Bayley had written material from both a junior and a senior barrister, setting out their opinion that his chances of success in the appeal were quite high. Exercising his rights under section 34(2) of the Legal Aid Act 1978 (Vic), Bayley requested that the Managing Director reconsider his decisions. The Managing Director did so, and again rejected the applications.

Bayley then proceeded to request an independent review of the decisions, under section 35(1) of the Act. This independent reviewer acknowledged that he had reasonable grounds for appeal, but affirmed the Managing Director’s decisions to reject the applications, saying:

  • I consider that it is likely that the Court of Appeal will allow Mr Bayley’s appeal against his conviction in trial 1 … and also in trial 3 … If that prediction is correct those convictions will be quashed.
  • Assuming those convictions are quashed the total effective sentence and the global non parole period will be reviewed and reduced to a lower term.
  • I consider that the appeal against sentence in trial 2 … is unlikely to succeed.
  • The critical question so far as the present applications are concerned relate to the ‘reasonableness of providing legal assistance’ i.e. the state reasonableness test. I have considered the matters detailed in s 24(4) Legal Aid Act in making my assessment as to whether it is reasonable to provide legal assistance for Mr Bayley’s appeal given that I am satisfied that there are reasonable grounds for his appeal.
  • I accept the independent reviewer’s observations in the Dupas appeal that there is an important public interest in ensuring public confidence in VLA’s stewardship of the funds which are limited and taking all relevant matters into account I find that it is not reasonable to provide Mr Bayley with legal assistance for his appeals.

In other words, despite Bayley’s high chances of success in reducing his prison sentence, the reviewer thought that public confidence in VLA would be undermined if further funding was granted, and this was a greater concern. Accordingly, it was reasonable in the circumstances to deny Bayley the funding.


Supreme Court review

Bayley appealed this review to the Victorian Supreme Court, saying it was not a fair exercise of VLA’s discretion to award funding or not. The Victorian Attorney-General intervened in the case on the side of VLA, arguing that they were perfectly within their rights to refuse to grant the funding, and had behaved in a reasonable and fair manner.

Justice Kevin Bell disagreed.

His Honour found that the likelihood of Bayley receiving a lower non-parole period was very significant, given that it could mean the difference between him dying in prison and being paroled in his old age. This factor militated in favour of legal aid being granted.

Against this factor, His Honour found that “there is nothing in the reasons to suggest that some public detriment constituted an objective and relevant heavier counterweight.” He also pointed out that consideration of public confidence in VLA was warranted, but “cannot be allowed to give rise to arbitrary decision-making or the application of a de facto character test.”

As a result, His Honour allowed the appeal, and referred the matter back to VLA for a second independent review.


Second independent review

Somewhat controversially, the second independent VLA review came to the same conclusion as the first: that VLA ought not to award funding to Bayley to pursue his appeals, and was within its rights to exercise its discretion accordingly.

Victorian Attorney-General Martin Pakula had flagged the possibility that the Legal Aid Act might be amended after the Supreme Court’s decision, but that appears not to have transpired.

After the second VLA review, Bayley proceeded with his appeals in the Victorian Court of Appeal, with his legal team working pro bono. He was successful in one appeal, but not in the other, and had his overall non-parole period lowered to 40 years. This means he will be eligible to return to the community in 2055, when he will be 83.

At the end of its judgment, the Court of Appeal noted:

We wish to acknowledge the assistance given to the Court by senior and junior counsel who appeared pro bono on the applicant’s behalf, as did their instructing solicitors. Legal aid was, we were told, declined for the preparation and presentation of the applications in this Court. We were not told why that was so.

In our opinion, that decision was regrettable. The applicant’s case required the assistance of experienced and competent counsel. He was in no position adequately to represent himself. Any proper appraisal of the available material would have made it abundantly clear that, at worst, the applicant had a strongly arguable case for acquittal in relation to the convictions that he sustained in the first trial. As regards the third trial, his application, though ultimately unsuccessful before this Court, was at least arguable.


Access to justice

The controversy over Bayley and legal aid raises an important rule of law principle: access to justice. As Justice Bell noted, discretion to award legal aid funding cannot be allowed to become a de facto character test; access to justice requires that everyone be able to participate in legal processes affecting their rights and responsibilities, not just those deemed ‘acceptable’ by the legal aid offices.

On the other hand, there is no suggestion that the fairness of Bayley’s appeal was undermined. As the High Court noted in its famous case of Dietrich:

The inherent jurisdiction of courts extends to a power to stay proceedings in order “to prevent an abuse of process or the prosecution of a criminal proceeding…which will result in a trial which is unfair.”

In other words, courts have an inherent power to prevent unfair proceedings. Bayley’s appeal may not have been allowed to go ahead if the court considered that it would have denied him a fair chance. Because his legal team worked for free, Bayley received the necessary legal assistance for his appeal. The denial of legal aid did not result in an unfair process. Thus, arguably, the question of awarding funding or not is a secondary one, and only raises the issues of access to justice and the right to a fair trial if no other option (like pro bono assistance) is available.

At any rate, the Bayley appeals stand as a good example of how abstract concepts like access to justice and the right to a fair trial are worked out by courts in concrete situations. It also underlines the ongoing relevance of the comment made by the High Court in Dietrich:

The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system.


— William Shrubb

Further reading

Bayley v Nixon and Victoria Legal Aid [2015] VSC 744, Justice Kevin Bell’s judgment about VLA’s decision not to award Bayley funding

Bayley v the Queen [2016] VSCA 160, the Victorian Court of Appeal’s judgment, overturning the convictions from one of Bayley’s trials

Dietrich v the Queen [1992] HCA 57, the High Court’s landmark judgment, discussing the right to a fair trial in Australia