Dietrich v The Queen

[1992] HCA 57

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

DIETRICH v. THE QUEEN

(1992) 177 CLR 292

13 November 1992

Criminal Law—Trial—Fair Trial—Legal Representation—Whether right to counsel at public expense—Power to adjourn or stay trial where indigent accused unrepresented—Crimes Act 1958 (Vict.),s. 397.

Decisions

MASON C.J. AND McHUGH J. This application for special leave to appeal seeks to raise the question whether the applicant's trial in the County Court at Melbourne miscarried by virtue of the fact that he was unrepresented by counsel. In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.

2. The applicant is entitled to succeed because his trial miscarried by virtue of the trial judge's failure to stay or adjourn the trial until arrangements were made for counsel to appear at public expense for the applicant at the trial with the consequence that, in all the circumstances of this case, he was deprived of his right to a fair trial and of a real chance of acquittal.

3. The applicant was found guilty by a jury of one count of importing into Australia not less than a trafficable quantity of heroin in contravention of s.233B(1)(b) of the Customs Act 1901 (Cth). The indictment on which the applicant was presented contained three further counts: two counts, which alleged possession of the heroin the subject of the importation charge, were alternatives to the more serious charge and were not considered once a verdict of guilty had been returned on the importation charge; the third additional count alleged possession of a quantity of heroin which was not the subject of the importation offence, and the applicant was found not guilty on this count. The applicant had pleaded not guilty to all counts.

4. The trial before Judge Nixon in the County Court lasted approximately forty days, from presentment of the applicant on 23 May 1988 to the return of the jury's verdicts on 29 July 1988. Throughout the entire course of the trial, the applicant was unrepresented. Prior to trial, he had applied unsuccessfully to the Legal Aid Commission of Victoria for legal assistance and had also been unsuccessful in seeking reconsideration of the Commission's refusal pursuant to the review procedures available under Pt VI of the Legal Aid Commission Act 1978 (Vict.). The Commission's view was that assistance would only be provided for representation for a plea of guilty, this being an approach which the applicant would not consider. Immediately prior to trial, the applicant had also made an application pursuant to s.69(3) of the Judiciary Act 1903 (Cth) to have counsel appointed. That sub-section provides:

"Any person committed for trial for an offence against the laws of the Commonwealth may at any time within fourteen days after committal and before the jury is sworn apply to a Justice in Chambers or to a Judge of the Supreme Court of a State for the appointment of counsel for his defence. If it be found to the satisfaction of the Justice or Judge that such person is without adequate means to provide defence for himself, and that it is desirable in the interests of justice that such an appointment should be made, the Justice or Judge shall certify this to the Attorney-General, who may if he thinks fit thereupon cause arrangements to be made for the defence of the accused person or refer the matter to such legal aid authorities as the Attorney-General considers appropriate. Upon committal the person committed shall be supplied with a copy of this subsection."

On 20 May 1988 in the Supreme Court of Victoria, Gobbo J. dismissed this application on the ground that it had been brought out of time, the applicant having been committed for trial on 10 August 1987. An application for legal assistance directed to the Commonwealth Minister for Justice and the Attorney-General for the Commonwealth was also unsuccessful.

5. At the commencement of his trial, the applicant had therefore exhausted all avenues for legal assistance. Nevertheless, one of the grounds of his application to the Court of Criminal Appeal for leave to appeal against conviction was that every indigent accused charged with an indictable offence is entitled to counsel provided at the expense of the State and that the failure of the trial judge to appoint counsel for the applicant was a miscarriage of justice requiring that the conviction be quashed. The Court of Criminal Appeal (O'Bryan, Gray and Vincent JJ.) refused leave.

6. It is from the order refusing leave that the applicant now seeks special leave to appeal to this Court. The sole ground of the application is that the applicant's trial miscarried by virtue of the fact that he was not provided with legal representation. Right to a fair trial

7. The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system ((1) Jago v. District Court (N.S.W.) (1989) 168 CLR 23, per Mason C.J. at p 29; Deane J. at p 56; Toohey J. at p 72; Gaudron J. at p 75.). As Deane J. correctly pointed out in Jago v. District Court (N.S.W.) ((2) ibid., at pp 56-57.), the accused's right to a fair trial is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial, for no person can enforce a right to be tried by the State; however, it is convenient, and not unduly misleading, to refer to an accused's positive right to a fair trial. The right is manifested in rules of law and of practice designed to regulate the course of the trial ((3) Bunning v. Cross (1978) 141 CLR 54; Reg. v. Sang (1980) AC 402, both referred to in Jago (1989) 168 CLR, at p 29.). However, the inherent jurisdiction of courts extends to a power to stay proceedings in order "to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair" ((4) Barton v. The Queen (1980) 147 CLR 75, at pp 95-96; Williams v. Spautz (1992) 66 ALJR 585; 107 ALR 635.).

8. There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial ((5) Reg. v. Glennon (1992) 173 CLR 592.), resulted in the accused being deprived of a fair trial and led to a miscarriage of justice. However, various international instruments and express declarations of rights in other countries have attempted to define, albeit broadly, some of the attributes of a fair trial. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the ECHR") enshrines such basic minimum rights of an accused as the right to have adequate time and facilities for the preparation of his or her defence ((6) Art.6(3)(b).) and the right to the free assistance of an interpreter when required ((7) Art.6(3)(e)). Article 14 of the International Covenant on Civil and Political Rights ("the ICCPR"), to which instrument Australia is a party ((8) Australia signed the ICCPR on 18 December 1972 and ratified it on 13 August 1980), contains similar minimum rights, as does s.11 of the Canadian Charter of Rights and Freedoms ((9) Pt 1 of the Constitution Act 1982, enacted by the Canada Act 1982 (U.K.)). Similar rights have been discerned in the "due process" clauses of the Fifth and Fourteenth Amendments to the United States Constitution. The argument of the applicant

9. The primary argument of the applicant relies in part on the explications of the right to a fair trial in the instruments to which we have referred. The argument is that, at least in any indictable matter to be tried before a judge with or without a jury that may result in imprisonment upon conviction, the interests of justice require that an indigent accused who wishes to have legal representation be provided with such representation at public expense. The central proposition in this submission is that the absence of representation for an accused who cannot afford to engage counsel necessarily means that the trial is unfair and that any conviction should be quashed.

10. In the course of argument, counsel for the applicant proposed a less absolute form of this proposition. He submitted that, as an incident of a court's duty to ensure that an accused receives a fair trial, a trial judge has a discretion to stay or adjourn the trial of an unrepresented accused and that, in the absence of exceptional circumstances, this discretion should be exercised in favour of the accused. This contention was proposed in the context of an alternative submission that the trial judge erred in refusing the applicant's application for an adjournment of his trial for the purpose of trying to secure representation.

11. It is little more than one hundred and fifty years since legislation was enacted to provide that all accused persons be permitted to be represented by counsel. Prior to the passage of The Trials for Felony Act 1836 (Imp) ((10) 6 and 7 Wm IV c.114) ("the 1836 Act"), "(a)n Act for enabling Persons indicted of Felony to make their Defence by Counsel or Attorney", the common law of England did not recognize the right of a person charged with a felony to be defended by counsel. This prohibition, which appears to date back beyond the limits of legal memory to the Leges Henrici Primi ((11) Chowdharay-Best, "The History of Right to Counsel", (1976) 40 Journal of Criminal Law 275, at p 275.), had been substantially relaxed prior to the enactment of the 1836 Act. The principal reform effected by the 1836 Act was that it enabled all persons tried for felonies "after the close of the case for the prosecution, to make full answer and defence thereto, by counsel learned in the law" ((12) s.1); it was already common practice for counsel for the defence to be permitted to stand by the accused at the bar and to cross-examine witnesses on his or her behalf ((13) Blackstone, Commentaries, 1st ed. (1769), vol.4, pp 349-350). It has been observed that, despite its significance as a landmark in the history of the right to counsel, the passage of the 1836 Act did not effect as great a change as that made by The Treason Act 1695 (Imp) ((14) 7 and 8 Wm III c.3), which extended the right to the assistance of counsel to persons accused of high treason ((15) Holdsworth, A History of English Law, vol.9, 3rd ed. (1944), p 235.).

12. The advantages of representation by counsel are even more clear today than they were in the nineteenth century. It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious ((16) McInnis v. The Queen (1979) 143 CLR 575, per Barwick C.J. at p 579; see also Galos Hired v. The King (1944) AC 149, at p 155 and Foster v. The Queen (1982) 38 ALR 599, at p 600.). Lord Devlin stressed the importance of representation by counsel when he wrote ((17) The Judge, (1979), p 67):

"Indeed, where there is no legal representation, and save in the exceptional case of the skilled litigant, the adversary system, whether or not it remains in theory, in practice breaks down."

An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown ((18) McInnis (1979) 143 CLR, per Murphy J. at p 590). The hallowed response ((19) See the reference to Coke's opinion in Powell v. Alabama (1932) 287 US 45, at p 61) that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a "helping hand" to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems ((20) See Foster (1982) 38 ALR, at p 600). As Sutherland J. stated in Powell v. Alabama, when delivering the judgment of the United States Supreme Court ((21) (1932) 287 US, at p 61):

"But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional."

13. However, the right to retain counsel and the right to have counsel provided at the expense of the State, the existence of which the applicant asserts, are not the same thing ((22) Reg. v. Rowbotham (1988) 41 CCC (3d) 1, at pp 65-66). Standing in the path of the applicant's argument are certain statements in the judgments in McInnis v. The Queen to the effect that the common law does not recognize the right of an accused to be provided with counsel at public expense. Barwick C.J. stated ((23) (1979) 143 CLR, at p 579):

"It is proper to observe that an accused does not have a right to be provided with counsel at public expense. He has, of course, a right to be represented by counsel at his own or someone else's expense."

Mason J. stated ((24) ibid., at p 581):

"Although I am in agreement with what the Privy Council said in the case of Galos Hired v. The King ((25) (1944) AC, at p 155), concerning 'The importance of persons accused of a serious crime having the advantage of counsel to assist them before the courts', an accused in Australia does not have a right to present his case by counsel provided at public expense."

On the other hand, Murphy J., in his dissenting judgment, stated ((26) (1979) 143 CLR, at p 592.):

"If a person on a serious charge, who desires legal assistance but is unable to afford it, is refused legal aid, a judge should not force him to undergo trial without counsel. If necessary, the trial should be postponed until legal assistance is provided".

14. It is important to appreciate that these statements in McInnis were made in the absence of any argument directed to the existence of a right to be provided with counsel. The issue in McInnis was whether, on the particular facts of the case, there had been a miscarriage of justice by virtue of the trial judge's refusal of an adjournment sought by the unrepresented accused. That issue was resolved in the negative but, in our opinion, the actual decision in the case did not depend upon an acceptance of the proposition, after consideration of argument, that an indigent accused does not have a right to be provided with counsel at public expense and, therefore, the applicant need not seek to convince this Court that the decision should be reconsidered. The most that can be said against the applicant is that McInnis assumed the correctness of that proposition. In these circumstances, there is no strong reason why the Court should not reconsider the statements made in that case.

15. The applicant relies upon three suggested sources for the alleged right for which he contends. The first is s.397 of the Crimes Act 1958 (Vict.) and related provisions in other jurisdictions ((27) Judiciary Act 1903 (Cth), s.78; Crimes Act 1900 (N.S.W.), s.402; Criminal Law Consolidation Act 1935 (S.A.), s.288; The Criminal Code (Q.), s.616; The Criminal Code (W.A.), s.634; Criminal Code (Tas.), s.368; Criminal Code (N.T.), s.360.). Section 397 provides:

"Every accused person shall be admitted after the close of the case for the prosecution to make full answer and defence thereto by counsel."

As soon as one appreciates that this provision is simply the descendant of the section in the 1836 Act, quoted above, it becomes obvious that this branch of the applicant's argument cannot succeed. The section enshrines the right of an accused person to have the assistance of counsel in defending himself or herself at a criminal trial. The meaning of the phrase "to make full answer and defence thereto by counsel" has received scant attention in Australia. In Ibrahim, in the context of a submission similar to the present submission of the applicant, the Victorian Court of Criminal Appeal declined to consider the question whether the right in s.397 should be held to comprehend a right to have counsel appointed by the court ((28) (1987) 27 A Crim R 460, at pp 462-463).

16. The Canadian courts have had occasion to consider the same phrase as it appears in s.577(3) of the Criminal Code. The applicant in this case places reliance on the Canadian cases of Reg. v. Johnson ((29) (1973) 11 CCC (2d) 101), Re Ewing and Kearney and The Queen ((30) (1974) 49 DLR (3d) 619) and Barrette v. The Queen ((31) (1976) 68 DLR (3d) 260) which all considered the relevant statutory provision. These decisions reject the proposition that the legislative right comprehends a right to have counsel appointed by the court; the most that can be extracted from these cases is that an accused should not be forced, by exercise of the judge's discretion, to go to trial unrepresented for reasons that are not well founded in law ((32) Johnson (1973) 11 CCC (2d), at pp 105-106; Barrette (1976) 68 DLR (3d), at p 264). Accordingly, in so far as the applicant's argument relies on s.397 of the Crimes Act, it cannot succeed in the absence of compelling, additional reasons for interpreting it in the suggested manner.

17. The second suggested source of the right for which the applicant contends is to be found in Australia's international obligations, particularly as embodied in the ICCPR to which Australia is a party. Article 14(3) of the ICCPR provides:

"In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: ...

(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 this right; 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".

Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions ((33) Bradley v. The Commonwealth (1973) 128 CLR 557, at p 582; Simsek v. MacPhee (1982) 148 CLR 636, at pp 641-644; Kioa v. West (1985) 159 CLR 550, at pp 570-571.). No such legislation has been passed. This position is not altered by Australia's accession to the First Optional Protocol to the ICCPR, effective as of 25 December 1991, by which Australia recognizes the competence of the Human Rights Committee of the United Nations to receive and consider communications from individuals subject to Australia's jurisdiction who claim to be victims of a violation by Australia of their covenanted rights. On one view, it may seem curious that the Executive Government has seen fit to expose Australia to the potential censure of the Human Rights Committee without endeavouring to ensure that the rights enshrined in the ICCPR are incorporated into domestic law, but such an approach is clearly permissible.

18. Although counsel for the applicant accepted that the ICCPR does not form part of domestic law, he submitted that the common law of Australia should be developed in a way which recognizes the existence and enforceability of rights provided for in international instruments to which Australia is a party. In particular, the applicant points to the enactment of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). This Act has scheduled to it the ICCPR, as well as other international legal instruments dealing with human rights, and assigns to the Commission it creates the function, inter alia, of inquiring into and reporting on any act or practice that may be inconsistent with or contrary to human rights as declared in the scheduled instruments ((34) s.11(1)(f)). The evident intention that the establishment of an Australian Human Rights and Equal Opportunity Commission would be one part of an overall programme to incorporate international human rights obligations into domestic law was made more explicit in the preamble to the former Human Rights Commission Act 1981 (Cth) which stated:

"WHEREAS it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform with the provisions of the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons and other international instruments relating to human rights and freedoms".

19. In Jago v. Judges of the District Court of N.S.W. ((35) (1988) 12 NSWLR 558, at p 569) Kirby P expressed the view that, where the inherited common law is uncertain, Australian judges may look to an international treaty which Australia has ratified as an aid to the explication and development of the common law. As a suggested example of this approach, the applicant points to the status accorded to the ECHR in English law. In common with the status of the ICCPR in Australian law, the ECHR is not part of English domestic law and thus rights contained in the ECHR cannot be enforced directly in English courts; furthermore, if domestic legislation conflicted with the ECHR, English courts would nevertheless be required to enforce the legislation. However, it is "well settled" ((36) Reg. v. Home Secretary; Ex parte Brind (1991) 1 AC 696, per Lord Bridge of Harwich at pp 747-748) that, in construing domestic legislation which is ambiguous, English courts will presume that Parliament intended to legislate in accordance with its international obligations. English courts may also have resort to international obligations in order to help resolve uncertainty or ambiguity in judge-made law ((37) Derbyshire County Council v. Times Newspapers Ltd. (1992) 3 WLR 28, per Balcombe L.J. at p 44).

20. Assuming, without deciding, that Australian courts should adopt a similar, common-sense approach, this nevertheless does not assist the applicant in this case where we are being asked not to resolve uncertainty or ambiguity in domestic law but to declare that a right which has hitherto never been recognized should now be taken to exist. Moreover, this branch of the applicant's argument assumes that Art.14(3)(d) of the ICCPR supports the absolute right for which he contends. An analysis of the views of the Human Rights Committee on communications submitted to it relating to Art.14(3)(d) reveals little more than that the Committee considers that legal assistance must always be made available in capital cases ((38) Pinto v. Trinidad and Tobago, CCPR/C/39/D/232/1987). However, the European Court of Human Rights has approached the almost identical provision in the ECHR by emphasizing the importance of the particular facts of the case to any interpretation of the phrase "when the interests of justice so require" ((39) Monnell and Morris v. United Kingdom (1987) 10 EHRR 205, at p 225; Granger v. United Kingdom (1990) 12 EHRR 469, at pp 480-482). As will become clear, that approach is similar to the approach which, in our opinion, the Australian common law must now take.

21. The third suggested foundation for the absolute right draws upon analogies with the domestic law of other jurisdictions, in particular, Canada and the United States. These analogies do not support the applicant's argument. The current law in the United States is that an accused cannot be sentenced, upon conviction, to a term of imprisonment unless the State has afforded him or her the right to the assistance of counsel ((40) Scott v. Illinois (1979) 440 US 367, retreating from the decision in Argersinger v. Hamlin (1972) 407 US 25 that the State must provide counsel, even in misdemeanour cases, whenever imprisonment is an authorized penalty.). However, the development of this right in decisions of the United States Supreme Court is based on the constitutional guarantee of the right to counsel expressed in the Sixth Amendment to the United States Constitution and its incorporation within the right of "due process" enshrined in the Fourteenth Amendment. These constitutional guarantees have no direct parallel in Australian law. The applicant argued that the requirements of "due process" must be observed in Victorian courts by virtue of the statute 42 Edw.III c.3, passed in 1368, which remains in force in Victoria pursuant to s.3 of the Imperial Acts Application Act 1980 (Vict.). The Imperial Act provides that "no man be put to answer without presentment before justices, or matter of record, or by due process ... And if any thing from henceforth be done to the contrary, it shall be void in the law". As it appears in that provision, the expression "due process" can hardly be the "compendious expression for all those rights ... basic to our free society" ((41) Wolf v. Colorado (1949) 338 US 25, at p 27) that it is in the United States Constitution. As Priestley J.A observed in Adler v. District Court of N.S.W. ((42) (1990) 19 NSWLR 317, at p 351), the Imperial legislation was simply designed to ensure that only in common law courts should persons be tried for crimes and only by recognized procedures.

22. In Canada, there are a number of cases in which it has been argued that provisions of the Charter of Rights and Freedoms, particularly ss.7, 10(b) and 11(d), enshrine a right to counsel at public expense. The right has, however, never been accepted in the absolute form proposed; rather, the issue whether counsel should be appointed by the court for an accused who is unable to afford representation has been approached as one aspect of the accused's right to a fair trial ((43) See also the approach of the British Columbia Court of Appeal in a case based upon a less explicit provision in the Canadian Bill of Rights 1960: Re Ewing and Kearney and The Queen (1974) 49 DLR (3d), at pp 628-629.).

23. In Deutsch v. Law Society of Upper Canada Legal Aid Fund ((44) (1985) 48 CR (3d) 166) the accused brought two applications for judicial review of the refusal of legal aid in respect of criminal charges he was facing. Sitting as the Ontario Divisional Court, Craig J. concluded that the Charter did not entrench any right to publicly funded counsel. He stated ((45) ibid., at pp 173-174):

"In conclusion as to this issue, under the common law the accused has a right to a fair trial and the trial judge is bound to ensure that an accused person receives a fair trial. Here the accused faces possible imprisonment. Pursuant to s.7 of the Charter, the accused has an entrenched right not to be deprived of his liberty except in accordance with the principles of fundamental justice. Also, pursuant to s.11(d), he has an entrenched right to a 'fair and public hearing'. The right to fundamental justice and a fair and public hearing includes the right to a fair trial. There may be rare cases where legal aid is denied to an accused person facing trial, but, where the trial judge is satisfied that, because of the seriousness and complexity of the case, the accused cannot receive a fair trial without counsel, in such a case it seems to follow that there is an entrenched right to funded counsel under the Charter."

24. In Reg. v. Rowbotham, a number of accused were tried on an indictment containing four counts of conspiracy either to import or traffic in hashish. The trial lasted twelve months. Two of the accused had been refused legal aid and both proceeded to trial without counsel. On appeal to the Ontario Court of Appeal, one of the two unrepresented accused argued that she had the constitutional right to be provided with counsel because she lacked the means to employ counsel. The Court unanimously rejected the existence of an absolute right ((46) (1988) 41 CCC (3d), at pp 65-66):

"The right to retain counsel, constitutionally secured by s.10(b) of the Charter, and the right to have counsel provided at the expense of the state are not the same thing. The Charter does not in terms constitutionalize the right of an indigent accused to be provided with funded counsel. At the advent of the Charter, legal aid systems were in force in the provinces, possessing the administrative machinery and trained personnel for determining whether an applicant for legal assistance lacked the means to pay counsel. In our opinion, those who framed the Charter did not expressly constitutionalize the right of an indigent accused to be provided with counsel, because they considered that, generally speaking, the provincial legal aid systems were adequate to provide counsel for persons charged with serious crimes who lacked the means to employ counsel. However, in cases not falling within provincial legal aid plans, ss.7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require funded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial."

As the last clause of this statement makes clear, the accused has a right to a fair trial and representation by counsel must be considered not on its own but as one relevant element of the broader right. The Court in Rowbotham concluded that, on the particular facts of the accused's case, she was not able to receive a fair trial without representation by counsel.

25. It therefore appears clear that the Charter does not entrench a general right to counsel at public expense irrespective of the circumstances of the particular case. Where an accused has been denied legal aid, the trial judge may direct the appointment of counsel if satisfied that the accused is impecunious and that the nature of the case is such that the accused cannot receive a fair trial without representation ((47) MacFarlane, "The Right to Counsel at Trial and on Appeal", (1990) 32 Criminal Law Quarterly 440, at p 463.). The right to counsel, so called, is inextricably linked to the facts of the case. Accordingly, the Canadian authorities provide no support for the applicant's primary argument.

26. Despite the absence in Australia of any formally entrenched declaration of rights similar to the Canadian Charter, the approach of Australian courts resembles the Canadian approach in rejecting the proposition that an indigent accused has an absolute right to the provision of counsel at public expense. As well as the statements of this Court in McInnis, several decisions of the South Australian Supreme Court support the view that there is no absolute right to counsel provided at public expense. In Reg. v. Hanias ((48) (1976) 14 SASR 137) the Full Court of the Supreme Court held that a trial judge was not required in all circumstances to assign counsel to an accused who desired but could not afford representation. As Bray C.J. observed ((49) ibid., at p 142), "(m)any circumstances have to be taken into account." The Full Court in the subsequent case of Reg. v. Bicanin ((50) (1976) 15 SASR 20, at p 25) expressed this idea more fully:

"3. There is no rule of law or practice in this State that every accused person should be represented if he so desires - e.g. by means of an order by the trial Judge under the Poor Persons Legal Assistance Act, 1925-1972.

4. Even in circumstances where the lack of representation at the trial weighs with a court of criminal appeal it is not that the lack of representation in such a case itself constituted a ground of appeal, but that the lack of representation - and particularly the circumstances under which the accused person had been unrepresented, including his efforts to obtain representation and/or an adjournment or remand for the purpose - may form part of a composite set of factors leading to the conclusion that there was an overall miscarriage of justice."

27. In addition, recognition of an absolute right to counsel provided at public expense would create its own problems. First, the court would logically be driven to decide whether such a right to counsel entails the right to the "effective assistance" of counsel, as it is called in the United States ((51) See Cuyler v. Sullivan (1980) 446 US 335; Evitts v. Lucey (1985) 469 US 387). That is, if an accused has a right to counsel, does he or she have a right to demand counsel of a particular degree of experience and who can conduct the defence "effectively"? How could such a right be monitored properly by the trial judge?

28. Secondly, if one of the conditions for appointment of counsel for the accused at public expense is the impecuniosity of the accused, will it be the responsibility of the trial judge to assess this? Clearly, if proper guidelines were formulated and all the relevant material put before a trial judge, it would be possible for him or her to decide the matter, but the ad hoc development of such a procedure is unwise and undesirable.

29. Thirdly, recognition of the right to counsel provided at public expense would necessarily entail, and indeed be founded upon, the principle that absence of representation necessarily means that a criminal trial is unfair. However, appellate courts in this country do not interfere with convictions entered at trial purely on the basis that there was unfairness to the accused in the conduct of the trial ((52) cf. McInnis (1979) 143 CLR, per Murphy J. at p 591). The appellate jurisdiction in criminal matters depends upon a conclusion that there was a "miscarriage of justice" ((53) e.g., Crimes Act 1958 (Vict.), s.568(1)) such that the applicant "has thereby lost 'a chance which was fairly open to him of being acquitted' ((54) Mraz v. The Queen (1955) 93 CLR 493, per Fullagar J. at p 514) ... or 'a real chance of acquittal' ((55) Reg. v. Storey (1978) 140 CLR 364, per Barwick C.J. at p 376)", to repeat the expression used by Brennan, Dawson and Toohey JJ. in Wilde v. The Queen ((56) (1988) 164 CLR 365, at pp 371-372). Unless the recognition of the absolute right sought by the applicant entails the consequence that want of representation necessarily means that a trial has miscarried, the absolute right would lack an adequate sanction. The right would thus appear to be rather hollow. The position in Australia

30. For the foregoing reasons, it should be accepted that Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused.

31. A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained. While, in some jurisdictions, judges once had the power to direct the appointment of counsel for indigent accused ((57) e.g., Poor Persons Legal Assistance Act 1925 (S.A.), s.3), this power has been largely overtaken by the development of comprehensive legal aid schemes in all States and, as such, trial judges now cannot be asked to appoint counsel in order that a trial can proceed ((58) Apart, of course, from the related procedure under the Judiciary Act, s.69(3)). However, even in those cases where the accused has been refused legal assistance and has unsuccessfully exercised his or her rights to review of that refusal, it is possible, perhaps probable, that the decision of a Legal Aid Commission would be reconsidered if a trial judge ordered that the trial be adjourned or stayed pending representation being found for the accused. In the absence of more extensive factual, statistical and economic material than was furnished by the parties, it is difficult for this Court to assess the full practical implications which will flow from the procedure of adjourning a criminal trial, on such occasions as may be necessary, to enable an unrepresented indigent person accused of a serious offence to be represented by counsel at public expense.

32. In this respect, we should point out that, after this matter initially came before a bench of three Justices, the applicant, pursuant to a direction given by the Registrar, gave notice to the Commonwealth and the States of the issues to be argued, in particular that the applicant would be asserting that an indigent accused had a right to have counsel appointed at public expense in serious indictable matters. Notwithstanding this notice, only the Attorney-General for the Commonwealth and the Attorney-General for the State of South Australia intervened. But no argument was put to the Court that recognition of such a right for the provision of counsel at public expense would impose an unsustainable financial burden on government. In these circumstances, we should proceed on the footing that, if a trial judge were to grant an adjournment to an unrepresented accused on the ground that the accused's trial is likely to be unfair without representation, that approach is not likely to impose a substantial financial burden on government and it may require no more than a re-ordering of the priorities according to which legal aid funds are presently allocated. Did the applicant's trial miscarry?

33. The alternative argument of the applicant was that the trial judge erred in the exercise of his discretion in refusing an application by the applicant for an adjournment. This argument was not developed fully in submissions, principally because the applicant's case was founded upon the existence of the alleged absolute right. However, it is clear that the issue is before the Court in the alternative form.

34. In approaching this argument, the question before this Court is not merely whether or not an adjournment should have been granted but whether the applicant's conviction should be set aside "on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice", provided that the conviction will stand if "no substantial miscarriage of justice has actually occurred" ((59) Crimes Act, s.568(1); McInnis (1979) 143 CLR, per Mason J. at pp 581-582).

35. The Crown case against the applicant was as follows. On the night of 17 December 1986, the applicant arrived at Melbourne Airport from Bangkok and imported into Australia a quantity of heroin which was packaged in condoms concealed in his body. Members of the Australian Federal Police followed the applicant from the airport to his flat in Hotham Street, East St Kilda. The next morning, the applicant drove from his flat and was arrested some distance away by police. The police returned the accused to his flat and, pursuant to a lawful warrant, conducted a search. Under a rug in the study they found a quantity of heroin in a plastic bag, which became the subject of count four on the indictment, and in a kitchen bin they found a condom containing 3.7 grams of heroin, which became the subject of count one. The applicant was then charged and transferred to an isolation ward in the hospital at Her Majesty's Prison, Pentridge. He remained in that ward until the following morning when condoms containing 66.4 grams of heroin, which the applicant had allegedly passed during the night, were discovered in the ward. This heroin also became the subject of count one.

36. The Crown relied on evidence of Australian Federal Police officers involved in the surveillance, arrest and search procedures, as well as evidence of prison officers, hospital staff and police officers present while the applicant was in hospital. The applicant denied the importation and alleged that the heroin discovered in his flat and in the hospital ward was placed there by police officers or other unnamed persons.

37. As stated earlier, the applicant was unrepresented at all stages of his lengthy trial. It is difficult to gain an accurate impression of the course of the trial from the mere 150 pages, culled from a transcript exceeding 3,000 pages, that have been placed before this Court, but certain important features emerge. The applicant did not wish to go to trial unrepresented. Failing appointment of counsel by the trial judge, who had no power to make such an appointment, the applicant sought leave to be assisted by what is called a "McKenzie friend" after the procedure confirmed in McKenzie v. McKenzie ((60) (1971) P 33). That application was refused. There was also a serious question prior to trial as to the applicant's fitness to plead. On several occasions, the applicant appeared to be emotionally and psychologically overwhelmed, whether genuinely or not, by the prospect of proceeding to trial unrepresented. A clinical psychologist called by the applicant testified that the applicant was an excitable, volatile person who would have great difficulty withstanding the rigours of a trial, although it appears that the opinion of a psychiatrist, who did not give evidence, was that the applicant was fit to plead. From the material before this Court, it appears that the undue length of the trial may well have been occasioned by the applicant's irregular outbursts of volatile behaviour.

38. In this context, and before the trial proper commenced, the applicant made an informal application for an adjournment. As the following exchange shows, this was peremptorily refused:

"HIS HONOUR: I want you to understand this, Mr. Dietrich - if you will listen to me - that I have no power to give you legal representation.

ACCUSED: You have the power to adjourn the matter, sir. HIS HONOUR: I don't propose to adjourn the matter. The matter is an alleged offence, which occurred the year before last, and it is desirable that the matter proceed to trial.

ACCUSED: Desire by whose side? HIS HONOUR: Desirable to the community. ACCUSED: The community has got no interest in it. If the community is aware that they're putting people in front of court without representation, the community would be aghast.

HIS HONOUR: Yes. Well, I don't propose to engage in this type of matter; this debate can get us nowhere."

On numerous occasions, the trial judge reiterated his lack of power to appoint counsel to represent the applicant, but on no other occasion did he appear to give any consideration to exercising his discretion to adjourn the matter on the ground that there was a real likelihood that the applicant would not receive a fair trial. In fact, the trial judge did not seem to be aware of the discretionary power he enjoyed; rather than just failing to take into account some material consideration or giving undue weight to one or another factor, his Honour virtually overlooked the possibility of adjourning the matter on the basis suggested. The trial judge erred in this respect.

39. In our view, the trial judge's failure to adjourn the trial resulted in an unfair trial and deprived the applicant of a real chance of acquittal. Central to this conclusion is the not guilty verdict returned by the jury on count four. The evidence against the applicant appears strong on all counts but, in circumstances where the jury found him not guilty on one count, how can this Court conclude that, even with the benefit of counsel, the applicant did not have any prospect of acquittal on count one, of which he was then deprived by being forced to trial unrepresented ((61) cf. McInnis (1979) 143 CLR, per Mason J. at p 583)? It is impossible to know the basis on which the jury found for the applicant on count four; the possibility exists that the jury found credible the alternative explanation of events given by the applicant which involved allegations of impropriety by the police. Judging by the question asked of the trial judge by the jury foreman during deliberations, the jury may also have doubted whether the first count could be made out against the applicant in relation to the heroin found in the hospital ward. If such doubts were present in the jury's mind, how can it be said that competent counsel appearing on behalf of the applicant may not have found further weaknesses in the prosecution case? On the material before this Court, it appears that the applicant's defence was so disorganized and haphazard as to lack cogency. In these circumstances, the conclusion that the applicant may have lost a real chance of acquittal is compelling.

40. 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 no 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.

41. In the result, we would grant special leave to appeal, allow the appeal, set aside the conviction and order a new trial.

BRENNAN J. The applicant, having insufficient resources of his own to fund legal representation for himself at his trial and having apparently exhausted the possibility of obtaining legal aid, had to stand his trial unrepresented. He applied for an adjournment of the trial and the adjournment was refused. He was convicted of importing into Australia a trafficable quantity of heroin. He appealed unsuccessfully to the Court of Criminal Appeal of Victoria on the ground, inter alia, that it was contrary to the unwritten Constitution of the State of Victoria and to the "due process" provisions of (1368) 42 Edw.III c.3 (applied in Victoria by Div.3 of Pt II of the Imperial Acts Application Act 1980 (Vict.)) for the trial judge not to appoint counsel to conduct the applicant's defence. It was submitted "that every person charged with an indictable offence in (Victoria) is entitled to counsel provided at the expense of the State". He seeks special leave to appeal to this Court. The only grounds advanced in support of the application were that the "Court of Criminal Appeal erred in law -

(i) in holding that the Applicant did not have a right to be provided with Counsel at public expense; and/or

(ii) in not holding that by reason of the Applicant being unrepresented, a miscarriage of justice had occurred in the circumstances of this case and of the Applicant."

I agree with the reasons of Dawson J. for holding that these grounds of appeal find no support either in the provisions of (1368) 42 Edw.III c.3 or in the common law of this country as hitherto understood. The Constitution of Victoria, written and unwritten, adds nothing to the applicant's case. There remains the question whether this Court can and should now hold that, by the common law of this country, the trial of a person charged with a serious offence will miscarry if he, unable to afford to retain counsel himself, is not provided with counsel at public expense.

2. It cannot be doubted that a criminal trial is most fairly conducted when both prosecution and defence are represented by competent counsel ((62) As each of Barwick C.J., Mason and Murphy JJ. so forcefully acknowledged in McInnis v. The Queen (1979) 143 CLR 575: see pp 579, 582, 586-588, 590). What, then, should a court do when an accused person, charged with a serious offence and having insufficient resources to retain legal representation at his trial, wishes to be legally represented at his trial and no counsel is provided? One answer is that the court should adjourn the trial until legal representation is available, at public expense if necessary, and, if it is not made available, the court should adjourn the trial indefinitely. The other answer is that, once every reasonable prospect of obtaining legal representation has been exhausted, the trial must proceed. Neither answer is wholly satisfactory. The first answer sacrifices both the interests of the public and the interests of the victim, if any, in seeing that an alleged offender is brought to justice. The second answer sacrifices the interests of the accused and the interests of the public in the even-handed administration of justice. The problem can be resolved only by providing counsel to represent a person charged with a serious offence and, if he cannot afford to retain counsel himself, to provide counsel at public expense. The entitlement of a person charged with a serious offence to be represented by counsel at public expense if he cannot afford to retain counsel himself (hereafter "an entitlement to legal aid") would be an important safeguard of fairness in the administration of criminal justice. A society which secures its peace and good order by the administration of criminal justice should accept, as one of the costs of providing a civilized system of justice, the cost of providing legal representation where it is needed to guarantee the fairness of a criminal trial. I respectfully agree with the observations made in other judgments in this case and in McInnis v. The Queen ((63) supra, fn (62)) as to the desirability of competent legal representation for an accused person in a criminal trial ((64) The dangers of incompetent legal representation to an accused are sadly familiar to judges in the criminal jurisdiction.). Although the desirability of according an entitlement to legal aid is manifest, the critical legal question in this appeal is whether this Court can and should translate the desirability into a rule of law or, if there be any difference, into a rule of practice governing the conduct of criminal proceedings. In my respectful opinion, this Court cannot properly create such a rule.

3. The common law has never recognized such a rule. Indeed, in England a person accused of felony had no right to be represented by counsel at his trial ((65) Stephen, A History of the Criminal Law of England, (1883), vol.1, pp 424-425) until 1836 when, for the first time, such an accused was given the right to be represented by counsel ((66) 6 and 7 Wm IV, c.114, s.1). In this country, no common law entitlement to legal aid has been recognized. In this respect, our constitutional law differs from the constitutional law of some of the great common law countries which, by incorporating a Bill of Rights in their Constitutions, have empowered their Courts to construe broadly expressed guarantees of individual rights to include a right to counsel. Having no comparable constitutional foundation, the Courts of this country cannot translate the rights declared by the Courts of those other countries into the municipal law of Australia.

4. In this country, a Court might declare an individual legal right bearing some resemblance to a right conferred by a constitutional Bill of Rights. But such an individual legal right is distinguishable from a right conferred by a constitutionally entrenched Bill of Rights, for it is either (i) an immunity resulting from a limitation on legislative power imposed otherwise than by reference to the scope of the right itself, or (ii) a right amenable to abrogation by competent legislative authority. The only legal sources from which such "rights" may emerge are the text of the Constitution of the Commonwealth and other organic laws governing our legal system ((67) The Commonwealth of Australia Constitution Act 1900, the Statute of Westminster Adoption Act 1942 (Cth), the Australia Act 1986 (Cth) and entrenched clauses of the Constitutions of the several States.), statutes and the common law. Rights can be declared upon a construction of the Constitution ((68) As in Australian Communist Party v. The Commonwealth (1951) 83 CLR 1; Street v. Queensland Bar Association (1989) 168 CLR 461; Nationwide News Pty. Ltd. v. Wills (1992) 108 ALR 681.) or other organic laws, upon a construction of a statute ((69) As in Re Bolton; Ex parte Beane (1987) 162 CLR 514 and Ainsworth v. Criminal Justice Commission (1992) 66 ALJR 271; 106 ALR 11.), or by judicial development of the rules of the common law. In the present case, there is no constitutional or statutory provision which supports the applicant's case. To hold that the trial of the applicant miscarried solely on the ground that the trial proceeded when he was unrepresented, it is necessary to hold that an accused person is entitled under the common law to have legal representation provided at the expense of the State in a trial for a serious offence if the accused person does not have the funds to secure that representation for himself. It is not suggested that such an entitlement is directly enforceable by, for example, a mandatory order. But, as Dixon C.J. said in Reg. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte Ellis ((70) (1954) 90 CLR 55, at p 64.) in reference to an entitlement to be represented, "every right or title must be enforced or administered in some forum". An entitlement to legal aid is said to be enforceable by the court before which the trial of an unrepresented accused person is listed. The entitlement is said to be enforceable by an order, made upon application by the accused person, to adjourn the trial until counsel is provided - indefinitely, if counsel is not provided. Whether it be said that there is a "right" to be provided with counsel or whether it be said that the court is bound to adjourn in the circumstances stated, the only ground advanced for allowing the appeal is that the common law should now accept that an entitlement to legal aid is essential to a fair trial.

5. I do not doubt that the Courts of this country, and especially this Court as the ultimate court of appeal, acting within their respective jurisdictions and in response to the exigencies of particular cases, create new rules of the common law. The common law has been created by the Courts and the genius of the common law system consists in the ability of the Courts to mould the law to correspond with the contemporary values of society. Had the Courts not kept the common law in serviceable condition throughout the centuries of its development, its rules would now be regarded as remnants of history which had escaped the shipwreck of time ((71) Adaptation from Francis Bacon, The Advancement of Learning, (1605), Bk 2, fol.10b.). In modern times, the function of the Courts in developing the common law has been freely acknowledged ((72) See, for example, Myers v. Director of Public Prosecutions (1965) AC1001, per Lord Reid at p 1021; Mutual Life and Citizens' Assurance Co. Ltd. v. Evatt (1968) 122 CLR 556, per Barwick C.J. at p 563; Geelong Harbour Trust Commissioners v. Gibbs Bright and Co. (1974) AC 810, per Lord Diplock at pp 820-821.). The reluctance of the Courts in earlier times to acknowledge that function was due in part to the theory that it was the exclusive function of the Legislature to keep the law in a serviceable state. But Legislatures have disappointed the theorists and the Courts have been left with a substantial part of the responsibility for keeping the law in a serviceable state, a function which calls for consideration of the contemporary values of the community. Where a common law rule requires some expansion or modification in order to operate more fairly or efficiently, this Court will modify the rule provided no injustice is done thereby ((73) As in L Shaddock and Associates Pty. Ltd. v. Parramatta City Council (No.1) (1981) 150 CLR 225, or Hawkins v. Clayton (1988) 164 CLR 539 or David Securities Pty. Ltd. v. Commonwealth Bank of Australia (unreported, 7 October 1992).). And, in those exceptional cases where a rule of the common law produces a manifest injustice, this Court will change the rule so as to avoid perpetuating the injustice ((74) As in Mabo v. Queensland (1992) 66 ALJR 408; 107 ALR 1.).

6. The contemporary values which justify judicial development of the law are not the transient notions which emerge in reaction to a particular event or which are inspired by a publicity campaign conducted by an interest group. They are the relatively permanent values of the Australian community. Even if the perception of contemporary values is coloured by the opinions of individual judges, judicial experience in the practical application of legal principles and the coincidence of judicial opinions in appellate courts provide some assurance that those values are correctly perceived. The responsibility for keeping the common law consonant with contemporary values does not mean that the Courts have a general power to mould society and its institutions according to judicial perceptions of what is conducive to the attainment of those values. Although the Courts have a broad charter, there are limits imposed by the constitutional distribution of powers among the three branches of government and there are limits imposed by the authority of precedent not only on courts bound by the decisions of courts above them in the hierarchy but also on the superior courts which are bound to maintain the authority and predictability of the common law. Most significantly, there are limits inherent in the very technique by which the Courts develop the common law - a subject considered below.

7. Changes in the common law are not made whenever a judge thinks a change desirable. There must be constraints on the exercise of the power, else the Courts would cross "the Rubicon that divides the judicial and the legislative powers" (to adopt Lord Devlin's phrase in his memorable paper "The Judge as Lawmaker" ((75) The Fourth Chorley Lecture, 1975, in The Judge, (1979), p 12.)). In courts of first instance and in intermediate courts of appeal, the constraints are usually found in precedents by which those courts are bound. In ultimate courts of appeal, the chief constraints are found in the traditional methods of judicial reasoning which ensure that judicial developments ((76) "A constant process of innovation and amelioration" to use Lord Wright's phrase: "The Study of Law", (1938) 54 Law Quarterly Review 185, at p 188.) remain consonant not only with contemporary values but also with what I described in Mabo v. Queensland ((77) (1992) 66 ALJR, at p 416; 107 ALR, at p 18.) as "the skeleton of principle which gives the body of our law its shape and internal consistency". The law must be kept in logical order and form, for an aspect of justice is consistency in decisions affecting like cases and discrimination between unlike cases on bases that can be logically explained. The greater the authority accorded to precedent by an ultimate court of appeal, the slower the pace of change. In such a court, there is room for difference in opinion as to the appropriate rate and subject-matter of change. The principles of the law must be adequate to resolve disputes arising in contemporary society but, as Lord Wright said, the ideal of justice "can only be realized in the concrete, and within such limits as the practical conduct of disputes in Courts of law permits" ((78) op cit, at p 188.). In practical terms, the Courts are aware that rejection or discounting of the authority of precedent not only disturbs the law established by a particular precedent but infuses some uncertainty into the general body of the common law. The tension between legal development and legal certainty is continuous and it has to be resolved from case to case by a prudence derived from experience and governed by judicial methods of reasoning.

33. As a general rule, little is to be gained by approaching a proviso of the kind found in the common criminal appeal provisions on the basis that one side or the other bears a persuasive burden as to some or all of the matters in issue. A persuasive burden is one that arises, if at all, from the nature of the error or the nature of the particular case. A burden of that kind has been recognized in cases involving a misdirection of law so that, generally, it is for the prosecution to establish that, even if there had been no misdirection, the jury would have come to the same conclusion((253) Quartermaine v. The Queen (1980) 143 CLR 595, at pp 600-601. See also Wilde v. The Queen (1988) 164 CLR 365.). And, where the prima facie position is that, had the accused been represented, a different result might have been achieved, it must also be the case that, generally, it is for the prosecution to establish that, even with representation, conviction would have been inevitable.

34. An approach which would generally require the prosecution to show that, even with legal representation, conviction would have been inevitable may not accord exactly with the approach taken in McInnis. In that case, counsel for the applicant conceded that "he had to show something more than that the adjournment was wrongly refused"((254) (1979) 143 CLR, at p 582) in order to bring himself within s.689(1) of the Criminal Code (W.A.), which, for all practical purposes, is the same as s.568(1) of the Crimes Act. That concession may have been made by reason that much of the evidence at the trial, which was for rape and related offences, was uncontested and the substantial issue was whether it resulted from the matters alleged by the prosecution or from earlier consensual intercourse. Whatever the basis of the concession, it is clear that, as a general rule, where the accused has not been legally represented, the starting point on appeal must be that representation might have made a difference to the outcome of the case.

35. The present case is not one in which it can be said that the conviction sustained by Mr Dietrich was inevitable. The charges against him related to three quantities of heroin, one located in a condom in a kitchen tidy, one in a plastic bag in a study and the other, also in a condom, found in Pentridge prison. The primary case against Mr Dietrich was that he imported the heroin found in the condoms. As an alternative to this case were two separate charges of possession of the heroin found in the condoms in the kitchen and the prison, respectively. The final charge was possession of the heroin found in the study.

36. The prosecution case was undoubtedly a strong one, but it was not without its difficulties. Proof of importation depended largely on an inference to that effect being drawn from other evidence, including the finding of heroin in the condoms in the kitchen tidy and at Pentridge prison. If the jury were not satisfied as to possession of one or other of those lots of heroin, it could not be satisfied as to importation. And, if it were not satisfied as to possession of one or other of the lots, that might bear on its finding as to possession of the other, particularly as the defence case was that all three lots of heroin had been "planted" on the accused. It seems that the jury may have had some difficulty in accepting the prosecution case with respect to the heroin in the kitchen tidy, for clarification was sought with respect to the importation charge in these terms:

"We want it clarified in regard to if, say, for instance, that we maybe do not agree, or could not reach a verdict, in regard to the condom found at the flat, but we did agree on what was found at the prison, does that still class it as importation or must it be on both."

Given the doubt with respect to the heroin in the kitchen tidy that is implicit in that request for clarification, and given that the jury rejected the prosecution case with respect to the heroin found in the study, it cannot be said that conviction with respect to the heroin found in Pentridge prison was inevitable, whether on a charge of importation or of possession.

37. One other matter should be noted. This case is one in which the accused was unrepresented because he lacked means to provide for his defence and because he was refused legal aid. It is not a case where the decision of the trial judge denied the accused an opportunity to obtain legal representation or, for that matter, to apply for legal aid. In a case involving the denial of an opportunity to obtain legal representation, whether through a legal aid scheme or privately, there would be a denial of the right to trial with representation. Like Dawson J., I am of the view that a denial of that kind would result in the trial being fundamentally flawed so that, without further enquiry, a conviction entered against the accused would have to be set aside. The present case is not a case of that kind. It is a case to be determined by application of s.568(1) of the Crimes Act.

38. The application for special leave to appeal should be granted. The appeal should be allowed and the conviction set aside. A new trial may be had if Mr Dietrich is able to obtain legal representation.

Orders

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of Victoria. In lieu thereof:
(i) allow the application to that Court for leave to appeal

against conviction;

(ii) allow that appeal; (iii) quash the conviction; and
(iv) order that there be a new trial.