Chivers v Breinl

[1994] QCA 469

IN THE COURT OF APPEAL [1994] QCA 469

SUPREME COURT OF QUEENSLAND	C.A. No. 335 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Pincus J.A.
[Chivers v. Breinl]

WAYNE PATRICK CHIVERS

v.

JOHN ALEXANDER BREINL (Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27/10/94

The appellant has appealed against his conviction in the

Magistrates Court at Cairns on 7 July 1994 on one count of

unlawful possession of a dangerous drug, namely cannabis sativa,

on 23 March 1994.

On that day, a police officer spoke to the appellant at Rusty's

Bazaar, Cairns. The appellant denied that he was in possession

of cannabis. The police officer found cannabis sativa in plastic bags in a brown leather bag that was in the possession

of the appellant. The appellant was charged that day.

The only witness at the trial, apart from the police officer,

was the appellant, who raised the possibility that he had been "framed up ... because of someone's vendetta ...". At one point, at least, there was also a contention that the appellant had a justification for possessing cannabis sativa, but no legal justification emerged.

Not surprisingly, the magistrate convicted the appellant, a

conviction was recorded, and the appellant was fined $300, in default imprisonment for ten days, and allowed four months to

pay.

The appellant did not appeal within time, but was allowed an

extension of time within which to proceed, subject to a condition restricting the appeal to ground 6, which was expressed in the following terms:

"The magistrate erred and abused my Human Rights in that he did not allow me an adjournment pending the result of my application for Legal Aid."

The appellant did not appear at the hearing of the appeal, but

sent written submissions by facsimile.

Prior to the trial, the appellant had made an application for

legal aid, apparently with the assistance of a solicitor, which

was refused, as was an appeal from that decision. The solicitors, on the appellant's behalf, then requested that his application be reviewed in accordance with the provisions of s. 37 of the Legal Aid Act 1978 (as amended). It is not clear when

the various contacts between the appellant (or his solicitors)

and the Legal Aid Office (Queensland) to that point had occurred. But, on 7 July 1994, the Legal Aid Office wrote to the solicitors stating that the next meeting of the Review Committee would be held on Wednesday, 13 July 1994. It seems

that that letter was received by the solicitors on 11 July.

Meanwhile, the Magistrates Court hearing had proceeded on 7

July, that date having been allocated at an earlier time. The

appellant, who was unrepresented, was refused an adjournment. The nub of the appellant's complaint before this Court appears

to be that he was proceeding in accordance with the statutory

scheme for legal aid, and that the hearing should not have been conducted until he had exhausted his recourse to the legal aid process, particularly because of cll. 3(b) and (d) of Art. 14 of

the International Covenant on Civil and Political Rights, which

is Sch. 2 to the Human Rights and Equal Opportunity Commission

Act 1986 (Cwth). Those clauses are in the following terms: "3. In the determination of any criminal charge against

him, everyone shall be entitled to the following

minimum guarantees, in full equality:

...

(b)to have adequate time and facilities for the preparation

of his defence and to communicate with counsel

of his own choosing;

...
(d)to be tried in his presence, and to defend himself in

person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of his rights; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

..."

The Covenant is not directly applicable: Dietrich v. R. (1992)

177 C.L.R. 292. Further, the majority decision in Dietrich does not determine that the appellant is automatically entitled to a new trial. That result would follow from Dietrich only if, in all the circumstances, the appellant's trial was unfair - assuming, of course, that the trial was one of a "serious offence".

There is an obligation on the Legal Aid Office to process

applications for aid efficiently and expeditiously, taking into account any hearing date which has been allocated by a court. But, there are no indications that that obligation was not

fulfilled in this instance.

Similarly, while courts are understandably reluctant to grant

unnecessary adjournments, which delay other litigants and waste public funds, it may some times be necessary to grant an

adjournment to an unrepresented person whose legal aid application has not been finalised. Each case will depend on its own circumstances, and an unrepresented litigant may need to

be assisted to put the material information before the court.

It is not clear what information was available to the

magistrate, and certainly not demonstrated that his refusal of

an adjournment was mistaken.

We have identified nothing unfair in the appellant's trial, and

it seems obvious from the evidence that he was correctly

convicted.

The appeal is accordingly dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 335 of 1994
Brisbane
[Chivers v. Breinl]

WAYNE PATRICK CHIVERS

v.

JOHN ALEXANDER BREINL (Appellant)

FITZGERALD P.

DAVIES J.A. PINCUS J.A.

Judgment delivered 27/10/94

JUDGMENT OF THE COURT

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:CRIMINAL LAW - CONDUCT OF DEFENCE - LEGAL REPRESENTATION - appellant sought adjournment to await review of refusal to grant legal aid - Magistrate refused to allow adjournment - appellant following statutory scheme for legal aid - claimed refusal breached cll. 3(b) and (d) International Covenant on Civil and Political Rights - whether the hearing of the matter at that time was unfair to the appellant

Dietrich v R (1992) 177 CLR 292

Counsel:No appearance for the Appellant

Mr D Meredith for the Crown

Solicitors:No appearance for the Appellant

Director of Prosecutions for the Crown

Hearing Date:19 October 1994