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Lawyers warn legal aid at breaking point after NSW murder trial derailed

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The nation’s peak lawyers group has warned the legal aid funding crisis is at “breaking point” following the extraordinary derailment of a high-profile murder trial in New South Wales.

Three men were due to face trial in the NSW supreme court on Monday for the 2016 alleged killings of underworld figure Pasquale Barbaro and Mehmet Yilmaz.

But the court was forced to vacate the four-month trial because the legal aid rates were woefully inadequate for suitable barristers to take on such a lengthy and complex case.

The trial has now been put off for at least a year, forcing victims and witnesses to endure a longer wait for justice, wasting months of preparation by prosecutors and police, and playing havoc with scheduling in an already backlogged court system.

On Thursday, the Law Council of Australia president, Arthur Moses, told Guardian Australia the case was a worrying example of chronic legal aid underfunding “undermining the criminal justice system”.

He said the federal government had continually ignored the profession’s pleas for more legal assistance funding. Private lawyers had been working on legal aid cases either at a loss or only just breaking even.

“For too long they have relied on the goodwill of the profession, but there comes a point when that cannot continue,” Moses said. “What that will result in, as we have seen with this judgment … is that trials are vacated or delayed, which not only has an impact on the accused, but also on the victims and witnesses.”

“Politicians are badly mistaken if they think there is no votes in this, because this impacts on the whole community, both in terms of safety of community, and the interests of the victim and witnesses, as well as the accused.”

Legal Aid NSW, like its counterparts across the country, is funded by the commonwealth through the National Partnership Agreement on Legal Assistance Services.

The legal profession and the Productivity Commission have all warned federal funding is hundreds of millions of dollars short of what is required to meet demand.

In the lead-up to the last federal budget, the Law Council of Australia identified a minimum $310m a year shortfall in legal assistance funding.

The federal government offered a $20m increase per year, increasing from $350.3 million in 2019-20 to $370m ongoing from July 2020. The Law Council slammed that increase at the time as “abysmal”.

On Monday, the trial judge in the NSW supreme court, Desmond Fagan, said “urgent attention” was needed to improve the legal aid situation.

The trial will now not take place until late next year at the earliest. The men could not have properly defended themselves without barristers, Fagan said, and they will now languish on remand until the new trial begins.

Fagan said witnesses and prosecutors had also wasted considerable time and effort preparing for Monday’s start date, while the court had set aside four months of its time for the trial, which it will now struggle to fill with other cases.

“Where inability to brief counsel for a long trial at Legal Aid rates forces an adjournment, the waste of public resources is enormous,” Fagan said.

The Law Society of NSW president, Elizabeth Espinosa, said the hourly rates available for legal aid work had not increased in “more than a decade” in the state. Espinosa said this was impacting those at the “lowest end of the poverty threshold”.

“We have the situation where solicitors are effectively treating legal aid work as pro bono work,” Espinosa said.

“Unfortunately, if the lack of adequate remuneration for legal practitioners is not addressed, we will continue to see experienced solicitors reluctantly withdraw from legally aided matters, particularly in the regional and remote areas of the state.”

The shadow attorney general, Paul Lynch, said the state government had ignored the problem for “an eternity”. Lynch said proper legal aid funding is an investment that saves the government money in the long term.

“The failure by the government to increase the rates for over a decade is simply absurd,” Lynch told Guardian Australia. “They have been happy for a crisis to develop.”

A spokesman for the NSW government told the Sydney Morning Herald a recent Legal Aid NSW review of fees was under consideration.

The federal attorney-general, Christian Porter, was approached for comment.

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