Access to Legal Representation by Criminal Defendants in Victoria, 1861-1961

Abstract

Traditionally under the English legal system, prisoners charged with felonies had been denied the right to legal representation on the grounds that such assistance was superfluous, perhaps even harmful to the cause of justice.1 Jurist William Hawkins, writing in the early 18th century, declared that ‘it requires no manner of Skill to make a plain and honest Defence’, adding that the ‘artless and ingenuous Behaviour of one whose Conscience acquits him’ had ‘something in it more moving and convincing than the highest Eloquence of Persons speaking in a Cause not their own’.2 However, it was also from the early 18th century that defence counsel were gradually allowed to take part in the trials of those charged with serious crimes. Much has been written on how this fundamentally changed the nature of the criminal trial process in jurisdictions derived from the common law system, as we discuss later.