History of Public Defenders
There has been a Public Defender in New South Wales since 1941. The first incumbent was Gordon Champion. When he died in 1945 he was replaced by Fred Vizzard who remained the sole Public Defender until he was joined by Clarrie Cullen in 1953. Fred Vizzard came to national prominence for his defence of Stephen Lesley Bradley who was charged with, and ultimately convicted of, the kidnapping of young Graeme Thorne. The establishment of Public Defenders was increased to three in 1965 with the appointment of Howard Purnell QC. Over the years since 1965, the establishment has been increased and now stands at twenty-five permanent Public Defenders.
Initially, Public Defenders came within the ambit of the Public Service and were under the control of the Public Service Board. This was seen as unsatisfactory because it meant that Public Defenders did not have the same independence as Crown Prosecutors. Consequently, in 1969 the government decided that Public Defenders should be, and be seen to be, independent of the executive arm of government. In that year, the Public Defenders Act 1969 was passed. The Public Defenders worked under that Act for 26 years.
The Public Defenders Act
In 1995, the
Public Defenders Act 1995 replaced the earlier Act. The new Act extended the scope of work that Public Defenders can undertake, allowing them now to appear and advise in relation to prerogative writ work in the Supreme Court, bail applications and quasi criminal procedures such as parole hearings, hearings before the Mental Health Review Tribunal and the like. Further, the Public Defenders were now enabled to accept work for legal aid agencies other than the Legal Aid Commission of New South Wales, that is, Aboriginal legal services and other community legal centres. The Public Defenders Act 1995 also permitted Public Defenders to be seconded to Royal Commissions, ICAC and to the Crown Prosecutors. The new Act enshrined the positions of Senior Public Defender and Deputy Senior Public Defender into legislation and outlined the responsibilities of persons holding those offices.
In 1999 changes were made to provisions which now appear in the Crimes (Sentencing Procedure ) Act giving the Senior Public Defender a special right to intervene in cases where the Court of Criminal Appeal has been asked to give a Guideline Judgment about a matter or offence of general public importance.
Public Defenders' clients may come from anywhere in New South Wales and their trials may occur in District Courts and Supreme Courts throughout the State. Public Defenders are based at Dubbo, Wollongong, Lismore and Newcastle to accept briefs from these areas. Briefs are generally referred to the Public Defenders from the Legal Aid Commission, Aboriginal legal services, private solicitors and community legal centres. Public Defenders can only appear for clients who have been granted legal aid.
Public Defenders accept briefs to appear or advise in relation to criminal trials, sentence matters and appeals. They may also accept briefs relating to quasi criminal procedures such as parole hearings and applications before the Mental Health Review Tribunal. Public Defenders are trial advocates, doing trials before the District Court and Supreme Court. Most trials are conducted before a judge and jury, although there is provision for trials on indictment to be conducted in front of a judge alone. The more experienced Public Defenders also do appellate work.
Appointment of Public Defenders
Public Defenders are appointed by the Governor in Council. The Governor usually acts upon the advice of the Attorney General, who is authorised by Cabinet to give the Governor such advice. A Public Defender appointed by the Governor has tenure and can only be removed from office as a result of incompetence, misconduct, bankruptcy and mental illness.
To be eligible to be appointed a Public Defender, an applicant must be a legal practitioner. To be eligible for appointment as a Deputy Senior Public Defender, an applicant must have been a legal practitioner for at least five years; and before being eligible to be appointed a Senior Public Defender, an applicant must have been a legal practitioner for seven years.
Public Defenders are independent advocates. As such, they are accountable for the responsible and effective performance of their duties to their clients under the Legal Practitioners Act 1987 and to the Senior Public Defender.
Read more about the role of the Public Defenders