Begg v Police
[2005] SASC 131
•8 April 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BEGG v POLICE
Judgment of The Honourable Justice Anderson
8 April 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - LEGAL REPRESENTATION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - INDIGENT PERSON
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
Appellant charged with non-aggravated serious criminal trespass (residential) and theft - appellant unrepresented at trial - appellant unable to afford representation - appellant made a 'Dietrich' application - whether Magistrate erred in refusing to grant an adjournment to enable the appellant to seek legal representation - whether there was a substantial miscarriage of justice - held: appeal allowed - convictions quashed - matter remitted to the Magistrates Court for retrial.
Criminal Law Consolidation Act 1935 s134(1), s170(1); Criminal Law (Legal Representation) Act 2001, referred to.
Dietrich v The Queen (1992) 177 CLR 292, applied.
R v Karounos (1994) 63 SASR 451, discussed.
MacPherson v The Queen (1981) 147 CLR 512; R v Gidley [1984] 3 NSWLR 168, considered.
BEGG v POLICE
[2005] SASC 131
ANDERSON J This is an appeal from a Magistrate who convicted the appellant on two charges as follows:
“In count 1, that between 31 October 2003 and 3 November 2003 at Millswood in the state of South Australia, he entered a place of residence of Eileen Joan Hambour as a trespasser with the intention of committing an offence under s.170(1) of the Criminal Law Consolidation Act, 1935, namely, theft; and
In count 2, that between 31 October 2003 and 3 November 2003 at Millswood in the state of South Australia committed theft by taking a clock, a light shade, a suitcase and a quantity of property together of a value involving $30,000 or less and more than $2,500, the property of Eileen Joan Hambour, dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights, pursuant to s.134(1) of the Criminal Law Consolidation Act, 1935”
At the heart of the appeal is the fact that whereas on previous occasions in the pre-trial hearings the appellant was represented by counsel, he appeared in this matter during the trial unrepresented. Because the trial was to take place in the Magistrates Court, the Criminal Law (Legal Representation) Act 2001 (SA) did not apply. This meant that the applicable law in relation to the lack of legal representation was the common law as expounded in Dietrich v The Queen (1992) 177 CLR 292 and subsequent cases.
I will set out as part of the background the learned Magistrate’s reasons at [5], [6] and [7]:
“Mr Simon Slade appeared as amicus curiae and advised the court that his firm was currently acting for the defendant in a pending District Court matter and that legal aid had been granted in relation to that matter, but the defendant was ineligible for legal aid in relation to the Magistrates’ Court matters. The matter was further complicated by the fact that the defendant had been remanded in custody since 24 November 2003 and that the Legal Services Commission of South Australia had lodged a caveat on the defendant’s house, which is owned jointly with his wife, to secure the legal costs of the defendant’s District Court matter. Thus, he was not able to access any funds using any equity in that property as security and, as a result, the defendant was not able to afford legal representation.
The defendant applied to adjourn the trial to enable him to obtain legal representation, but in the circumstances it appeared futile to adjourn the matter because his financial position was not likely to improve in the near future. The prosecution was ready to proceed and had a number of witnesses in the court precinct. This is a common occurrence in the Magistrates’ Courts these days where defendants, for various reasons, do not qualify for legal aid and do not have sufficient funds to cover legal expenses. I was reluctant to adjourn the trial to the next available trial date, which was well into 2005 as the incident had occurred in November 2003.
I explained the court procedure to the defendant and the trial proceeded with the defendant doing his best to cross-examine the prosecution witnesses and then giving evidence on his own behalf. He did have some difficulty in asking relevant questions, however, I tried to render whatever assistance I could from time to time.”
The appellant complains that there has been a miscarriage of justice arising out of the fact that the appellant was unrepresented and because of the failure of the Magistrate to grant a Dietrich application – see Dietrich v The Queen and in particular the comments of Mason CJ and McHugh J at 315:
“In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through not fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.”
In these proceedings, the prosecutor filed an affidavit in which he deposes to some of the history of this matter before the Magistrate. There had apparently been some discussions regarding a series of charges and whether they could all be resolved, and the appellant was hopeful that they could be so resolved, but all attempts at resolving the matters had failed. The appellant had been brought from custody to the court and was unrepresented, but had been accompanied by Mr Slade who was counsel in this appeal. After hearing of the appellant’s situation and discussing the question of a Dietrich application, it seems that the Magistrate suggested that a further pre-trial conference should be attempted. The matter was therefore adjourned for a hearing before the Chief Magistrate where a pre-trial conference was conducted. The matter did not resolve however and came back before the Magistrate appealed from and the trial commenced.
The appellant complains that his wife had indicated to the court that she was in employment and that therefore there was some chance that she might be able to secure representation for her husband at a later time. As indicated earlier, the Legal Services Commission had a charge over the property which prevented the appellant’s wife from borrowing any more money against the property, but as counsel pointed out, it did not prevent her from saving money in order to pay for legal fees if the matter were adjourned.
It was argued that there was a realistic prospect that the appellant would have been able to secure representation eventually and therefore it was appropriate to adjourn and allow some further inquiries to be made.
It seems that it was only on the morning of the trial that the prosecution and the defence lawyers were finally unable to resolve the various matters in which the appellant was involved and in respect of which they were attempting to reach a compromise. There is no indication from the transcript as to whether any, and if so, what evidence was taken on the Dietrich application so I have to assume in the absence of any other information that there was no such Dietrich inquiry.
The appellant submits that such an inquiry would, of necessity, have required evidence from the Legal Services Commission concerning the efforts made by the appellant to secure representation. This is relevant because of the decision of the High Court in Dietrich as later explained by King CJ in R v Karounos (1994) 63 SASR 451 at 458-9 where his Honour said:
“Dietrich has established that the opportunity of legal representation, irrespective of means, is a necessary incident of a fair trial on a charge of a serious offence. It is, however, the responsibility of an accused person to arrange his own legal representation. He is not deprived of a fair trial if the lack of legal representation is due to the accused’s failure to take the appropriate measures to obtain legal representation. Those measures include utilisation of his own financial resources or, if they are insufficient to fund the trial, taking the necessary steps to obtain legal aid. If legal aid is sought the accused must comply with the reasonable requirements of the legal aid authority. Dietrich should not be applied in a manner which would undermine the proper procedures of the Legal Services Commission for ensuring that it is not imposed upon and that it is provided with all necessary information and means of verifying it. In the end, of course, the decision as to whether it would be fair to force the accused to trial unrepresented is for the court. If aid is refused for a trial of a charge of a serious offence on the ground of perceived lack of merit or of lack of funds available for legal aid, the court may well stay the trial until legal representation is arranged. The court may, if it sees fit, review the Commission’s assessment of indigence. It may review and assess for itself the reasonableness of the Commission’s requirements. Where, however, the reason for the lack of representation is the accused’s refusal or neglect to comply with the reasonable and proper requirements of the Commission, he deprives himself of representation and to force him to trial unrepresented cannot be regarded as a denial of a fair trial.”
Unfortunately in this case it is not possible to see where the appellant fits within the alternatives mentioned by King CJ. It is not clear from the transcript whether any inquiry was made at all. It is also not clear whether the appellant’s plight was through no fault of his own. There is no suggestion that the situation had arisen because of either neglect or failure by the appellant to comply with the reasonable and proper requirements of the Commission.
What is apparent from a reading of the transcript taken at the trial is that the appellant protested, as did his wife, apparently from the body of the court, when, at different stages of the trial, various matters were discussed in relation to the procedures in court.
One such discussion, following the completion of the evidence of the witness, Bambridge, reads as follows:
“DEFENDANT: I’m just wondering, do I get a chance to say my turn of events as far as that’s concerned, like as far as alibis are concerned and where I was at that time? When does that actually happen.
HIS HONOUR: You will give your evidence. Once the prosecution is finished then -
DEFENDANT: Okay. I’m not sure how to –
HIS HONOUR: - you’ll give your evidence and you will be cross-examined. But if you have any alibis, notices should be given of those alibis beforehand.
DEFENDANT: I’ve never done this before, right, and I’m having trouble. I don’t know what to do.
HIS HONOUR: I’ll take that into account.
DEFENDANT: When you asked me before whether I could represent myself – I can’t, but I’m doing it.
HIS HONOUR: These alibis, are you going to call them as witnesses or –
DEFENDANT: It’s my wife.
HIS HONOUR: She’s been sitting in court.
DEFENDANT: I haven’t said anything about it yet, but see, this is what I mean. I’ve been put in a situation here now – I don’t know what to do. I don’t know what to do.
HIS HONOUR: Mrs Begg, if you are going to be a witness in this case it is better that you should stay outside of the court. I wasn’t made aware that you were going to be a potential witness, that’s why I didn’t say anything at first.
MRS BEGG:How can I not be here? It’s the only support person he has. He can’t deal with this on his own. He’s a man with mental illness and you’re making him do this – I just can’t believe it.
HIS HONOUR: I’m not making him do anything, Mrs Begg.
MRS BEGG:He’s got no alternative but to appear for himself and he can’t do this. This is not fair. This is not giving him any chance of defending himself. And I don’t know what else to do but to be here so that he knows that at least somebody is caring for him.
HIS HONOUR: I’m in a difficult position as well.
MRS BEGG:I understand that, I was here yesterday.
HIS HONOUR: I don’t make the law, I only interpret it and unfortunately we’ve got a system at this stage that – I won’t go into it.
MRS BEGG:I understand that.
HIS HONOUR: I’m not going to go into it because otherwise I might get myself into –
MRS BEGG:I still really don’t understand how you can ask him to do this because it’s just a farce.
HIS HONOUR: I’ve got no alternative.
MRS BEGG:He can’t do this. He’s got anxiety attacks, he’s got depression. How can he defend himself. How can you people ask him to do this.
DEFENDANT: I couldn’t ask that lady questions yesterday, when she was talking about her mother and that and has got dementia and my mother’s got dementia and I couldn’t ask her anything because I felt bad about it. I don’t know what to do. I’m not a lawyer.
MRS BEGG:Even on a daily basis he has problems with problem solving things. How can you ask him to stand up with a prepared case that they’ve had 10 months to prepare for and he’s had five minutes and he doesn’t even know what to do. I mean a week ago we were told this was all going away provided that we helped the police with some of the other issues and then five minutes before the moment they changed their mind. How can you expect anyone to be prepared for this? I can’t believe that the police can do things like that. At quarter to nine that morning our lawyer found out they’d changed their minds. How is that possible?”
There is another passage at page 60 where the defendant is again protesting. The passage reads:
“DEFENDANT: Excuse me – all I need to say about certain things is that when I was put in a situation yesterday where I had to go and listen to what those two people had to say and you asked me to write down notes about certain things, and I wrote down some notes as you advised me to do and that’s all I knew to do, right, and I’ve got written down here four different accounts, complete 100% different accounts of what’s supposed to have happened in that place from one person to the other person. That’s all I know what to do is to write that down. I don’t know how to react to that, I don’t know how to – I don’t know what to do. I don’t know what I’m supposed to be doing.”
Making due allowance for the fact that the appellant and his wife had a vested interest in protesting as they did, I am still of the view that the appellant was really not certain how he should conduct the trial, and on that aspect he did not receive much assistance from the Magistrate.
The role of the court where an accused represents himself and pleads not guilty was discussed by Mason J, as he then was, in MacPherson v The Queen (1981) 147 CLR 512 at 534:
“I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial.”
This issue was also discussed by Hunt J in R v Gidley [1984] 3 NSWLR 168 at 181, where his Honour said:
“The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should exercise those rights or how he should conduct his case.”
It seems to me that the appellant was not told about the purpose of cross-examination and the need for him to put his case to the witnesses who were called by the prosecution. Likewise it appears that he was not told that he did not have to give evidence and that it was up to the prosecution to prove their case beyond reasonable doubt. In the passage earlier quoted, the Magistrate seems to be assuming in his discussion with the appellant that the appellant would give evidence. At the very least it can be said that the Magistrate did not inform the appellant that he had no obligation to give evidence.
Because of the conclusion which I have come to in relation to the matter proceeding with the appellant unrepresented, it is not necessary to go into too much detail in relation to the specific aspects which were complained about in relation to the trial judge’s reasons. However, I will set out the topics of complaint and then make some brief comments about them. The complaints made in relation to the Magistrate’s reasons are as follows:
1The Magistrate failed to provide the appellant with proper advice on the procedure to be adopted in cross-examination;
2The Magistrate failed to provide the appellant with any guidance as to the operation of the rule in Browne v Dunn;
3The Magistrate failed to make an order as to witnesses;
4The Magistrate failed to provide the appellant with any information about the potential consequences of allowing the alibi witness to remain in court;
5The prosecutor had been allowed to cross-examine on the topic of an alibi including referring to a non-compliance with Rule 26.03 of the Magistrates Court Rules when it transpired that he had documents in his possession that seemed to comply;
6The Magistrate failed to advise the appellant of the consequences of not requiring the attendance of Timothy Bambridge and Glenys Bambridge for cross-examination;
7In the alternative, the Magistrate failed to advise the appellant of the option of allowing the statements of Timothy Bambridge and Glenys Bambridge to be tendered in evidence;
8The Magistrate failed to allow the witness, Bartlett, to be recalled;
9The Magistrate failed to reopen the evidence on the topic of alibi following advice by the prosecutor that information from the appellant’s previous solicitor was available to the prosecution;
10The Magistrate failed to take proper steps to ascertain the appellant’s mental state;
11The Magistrate failed to allow the appellant to present a proper Dietrich application;
12The Magistrate failed to warn the appellant about the potential consequences of attacking the character of the witness, Lattas;
13The Magistrate failed to inform the appellant about his right not to give evidence;
14The Magistrate failed to inform the appellant of the potential danger of introducing evidence of his own bad character; and
15The Magistrate failed to inform the accused of his right to object to evidence.
Of these complaints, it seems to me from my reading of the transcript and from the Magistrate’s reasons, that there is some merit in the points numbered 1, 2, 8, 11 and 13. Of the rest, I doubt very much whether, if there are errors by the Magistrate, they have had any effect on the ultimate outcome.
However, given the position in which the appellant was placed, effectively without notice, to contest this matter, when up until the last minute he believed that some deal was being negotiated on his behalf, and given his protests about the way in which the matter proceeded, it makes it all the more important to go back to first principles and see whether the trial should have been commenced at all.
I do not believe that a proper Dietrich inquiry was made, and I do not believe that the Magistrate, albeit from honourable intentions in proceeding with the matter, acted appropriately. In my view, he should have granted an adjournment and then ascertained from the Legal Services Commission exactly what the position was to determine whether the appellant was placed in that position due to no fault of his own. Likewise the Magistrate should have considered the possibility of the appellant finding representation even on a pro bono basis at some future time, and therefore allowing an adjournment at least to enable all avenues to be exhausted as to the representation of the appellant.
I am not saying that this was necessarily a case which should have been stayed, but it should have at least been adjourned to enable investigation of the matters to which I have referred.
It is my view, for the reasons given, that there has been a miscarriage of justice in the circumstances of requiring the appellant to proceed to represent himself at short notice and without proper guidance as to the matters he should be concerned about in defending himself. The order then is that the appeal is allowed, the convictions are quashed and the matter is remitted for retrial.
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