Dietrich v The Queen

[1991] HCATrans 327

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M21 of 1989

B e t w e e n -

OLAF DIETRICH

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ

BRENNAN J

DAWSON J

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TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 NOVEMBER 1991, AT 12.27 PM

Copyright in the High Court of Australia

MR D. GRACE:	If the Court pleases, I appear on behalf of the applicant in this matter. (instructed by Grace
& Macgregor)

MR P.A. COGHLAN: If the Court pleases, I appear with my

learned friend, MS L. LIEDER, for the respondent.

(instructed by the Commonwealth Director of Public

Prosecutions)

MR GRACE: If the Court pleases, the primary issue raised in this application concerns the right of an indigent

accused to have counsel appointed at public expense

to represent him at his trial.

Inherent to the application is the primary submission that principles enunciated by this Court

in Mcinnis v Reg, (1979) 143 CLR 575, ought to be

reconsidered in so far as it was held in that case

that an accused does not have a right to be provided

with counsel at public expense.

MASON CJ: Let us be clear about this. Mcinnis did not

actually decide that point, did it? No such

submission of the kind that you are putting forward

now was presented to the Court in Mcinnis.

MR GRACE:  As I understood the judgment in Mcinnis, there

was a clear statement to that effect by the

majority of the Court.

MASON CJ: But what I am suggesting to you is that the

submission you want to put was not put to the Court

in Mcinnis.

MR GRACE:  I understand what Your Honour has to say but in

my understanding of that case, that submission was

put. Perhaps I am in error in that regard. But

certainly it is put in this case that the

submission that an indigent accused - - -

MASON CJ:  I follow. You are putting the submission in this

case. Now, can you indicate to us what are the

boundaries of this proposition that you are putting

forward.

MR GRACE:  The boundaries of the proposition are the

boundaries that are contained in Article 14 of the

International Covenant on Civil and Political

Rights. That is an International Covenant which is

now annexed to the Human Rights and Equal

Opportunity Commission Act 1986 (Commonwealth).

Perhaps I could just refer briefly the Court to

that particular article in that covenant.

Article 14, point 3(d) says as follows:

In the determination of any criminal charge against him, everyone shall be entitled to the

Dietrich 2 15/11/91

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;

The parameters that are contended for are

these: that where the interests of justice so

desire, the right to the appointment of counsel

exists .

MASON CJ:	How is that to be determined?
MR GRACE:	In my respectful submission, it should be

determined by determining whether the case is,

first of all, an indictable matter to be tried

before a judge and/or jury and it involves a
serious offence. There can be no doubt that the
applicant in this matter was charged with serious
offences and that he was presented on indictment
before a judge and a jury. His offence carried

with it a maximum penalty of imprisonment of

25 years.

MASON CJ:  By what machinery is this right to be

implemented?

MR GRACE:  The machinery is to be implemented by trial

judges granting or ordering that proceedings be

stayed until an accused person, where the interests

of justice so requires, is provided with legal

representation.

MASON CJ: And is there any limit at all on the amount of

money that is to be provided at public expense for

the representation?

MR GRACE:  In my submission, the limit should be that

competent counsel is employed. If the trial judge

is satisfied that competent counsel is employed on

behalf of the accused, then that would satisfy the

test.

BRENNAN J: Why should it be at public expense? Why should

not the legal profession bear the responsibility?

MR GRACE:  This is indeed a matter that has been considered

recently by the Ontario Court of Appeal in Canada

in the case of Rowbotham and their conclusion as to

why the legal profession should not bear the

Dietrich 3 15/11/91

expense was because of the indeterminate length of

some trials. And indeed, in the applicant's trial,

the trial went for two months and one would have
thought that a trial judge who would attempt to ask

a member of the bar to appear on behalf of the

applicant may be met with a response that two

months without remuneration may be too big a

sacrifice. So that is perhaps the practicalities

of the situation.

BRENNAN J:  The proposition reduced to its essence is this,

that in a serious indictable case there can be no

trial unless the accused is adequately legally

represented, if he wishes to be so represented?

MR GRACE:	Yes.
BRENNAN J:	Does the trial judge have any function to

perform in securing that representation, in your

submission?

MR GRACE:  The trial judge may have an indirect function to

perform in that he may indicate quite categorically

to the Crown and to the legal aid authorities of

that particular State that, "Unless this man is
represented, I will not proceed with this trial, in

the interests of justice." In that way, the trial

judge then forces the Crown to either pay out of

its coffers, if I could use that word, the costs of

representation - and that has occurred on a number of occasions in the past in Victoria - or that the

Legal Aid Commission comes to the party eventually

and meets the costs of legal representation.

The primary submission is that Australia now

has a legal and a moral obligation to abide by the

terms of that particular article stated in the

Covenant and in order to - - -

MASON CJ: It has not been enacted as law, has it, that

article?

MR GRACE:	It has not been enacted as law.
MASON CJ:	So it is not part of the law of this land.
MR GRACE:	It perhaps is, in a qualified sense, Your Honour,

in that the Human Rights and Equal Opportunity

Commission Act establishes what is called a Human

Rights and Equal Opportunity Commission and it

makes provisions in relation to human rights, and

the functions of the Commission include inquiries
into alleged abuses of human rights, and I refer to
section ll(l)(f) of the Act, and preparing reports

to ministers in relation to actions that may be

required to be taken by Australia in order to

Dietrich 4 15/11/91

comply with the provisions of the Covenant, and

that is contained in section ll(l)(k) of the Act.

The Australian instrument of ratification of

the Covenant makes certain reservations and
declarations in relation to how the Covenant is to
be effected in terms of its operation in Australian
courts and in the Australian criminal justice

system and perhaps if I could just refer briefly to

what that reservation says in relation to

Article 14. It is contained in the International

Treaty Series 1980, No 23, and in respect to

Article 14 it was indicated that in respect of

paragraph 3(d), which is the paragraph that I read,

that:

Australia interprets paragraph 3(d) of

Article 14 as consistent with the operation of

schemes of legal assistance in which the

person assisted is required to make a

contribution towards the cost of the defence

related to his capacity to pay and determined

according to law, or in which assistance is

granted in respect of other than indictable
offences only after having regard to all

relevant matters.

That is the only reservation that is directly

applicable to this particular article.

MASON CJ: That does not help you, does it, in establishing

that 3(d) is part of the law of the land?

MR GRACE:  No, it does not. But perhaps I could get some

on 20 June 1991. That was a judgment

comfort from the majority judgment in the recent delivered

dealing with the question of whether a foreign

national convicted of heroin importation should be

eligible for parole in light of Crown submissions

that such a person should be ineligible. At

page 773 of the report, at line 28, when dealing

with that submission, the Judges in the majority,

Justices Deane, Dawson and Toohey, said this:

There are two aspects of that submission.

The first would seem to be that this country

has no interest in, or responsibility for, the

rehabilitation of an offender of the kind

described, notwithstanding that he is or has

been imprisoned in an Australian gaol. The

other aspect is that, since deportation will

almost certainly render inappropriate or

futile the supervision and other safeguards

which control and regulate release on parole,

the system cannot, and should not be concerned

to, cope with such offenders.

Dietrich 15/11/91
It can be said at once that we find both

aspects of the submission unpersuasive. In so

far as the submission involves an assertion

that the community is not concerned with the

rehabilitation of a prisoner who has no ties

with this country and who will be deported

when released from gaol, it takes a blinkered

view of community concerns and interests and

unjustifiably confines them within strict

territorial limits. This country has a direct

and significant interest in the well-being and

rehabilitation of all who are detained within its gaols, whether or not their origins, ties

or future prospects lie in this or in some
other country. It also has a responsibility,

both moral and under international treaty, to

treat all who are subjected to criminal

proceedings in its courts or imprisonment in

its gaols humanely and without discrimination based on national or ethnic origins (see, eg,

International Convention on the Elimination of

All Forms of Racial Discrimination, (1965)

Art S(a); R v Binder - - -

MASON CJ: That does not tell us very much, does it? All it

does is to say there was a moral obligation there

of some kind and an obligation under a treaty. You

say there is an obligation under a treaty here, but

not part of the law of the land.

MR GRACE:  I cannot say positively, of course, that this

particular treaty is enshrined in the municipal law

of Australia. I can say however, it is submitted,

that it has been incorporated in a very limited

sense by the annexure in Schedule 2 to the Human

Rights and Equal Opportunity Commission Act and by the declaration that Australia may, at the time of

its ratification in 1980, which is some 14 years

after the actual treaty was enacted by the United

Nations, that Australia has undertaken to abide by

its provisions. I cannot place the matter - - -

BRENNAN J: It has also ratified the optional protocol, has

it not, which gives - - -

MR GRACE:  Yes, it has, Your Honour, which gives persons who

complain about abuses to take their complaint to
the United Nations Human Rights Committee, amongst

other things, as I understand it.

MASON CJ:	Mr Grace, it may be that this point is one that is worthy of being referred to a Full Bench of the
Court, but what about this other point of yours? There is nothing in that, is there?
MR GRACE:	The duplicity argument?
Dietrich	15/11/91
MASON CJ: Yes.	You would be doing well, would you not, if

you succeeded in persuading us to refer this first

question to a Full Bench?

MR GRACE:  I certainly would, sir. I am quite content for

that to occur, Your Honour.

MASON CJ: And you would not worry about the second point?

MR GRACE:	No.
MASON CJ:	Mr Coghlan - and this is not to indicate that we have formed a view about this at all - what do you
say about referring the first question raised in the special leave application, the one we have just discussed, to a Full Bench?
MR COGHLAN:	It is argued, Your Honours, that it is not a

point of sufficient importance to be referred.

MASON CJ: It sounds to me rather like a very important

point. I mean, it may not be right, but you can

hardly say it is an unimportant point.

DAWSON J: If it is right, it is very important, is it not?

MR COGHLAN:  It is important if there is any basis for

saying any such right exists. There would have to

be some arguable basis for there to be something to

be considered by the Full Court. But it is

argued - - -

BRENNAN J: What do you say are the implications of the

International Treaty of the optional protocol?

MR COGHLAN:  It is clear, Your Honour, in the Crown

submission, it is not part of the municipal law of

Australia that in relation to the matters that have raised, it is clear, in our submission, that even

if it were, it is perfectly satisfied by the

present provisions in Australia for legal aid.

Because even within the article itself, the article

does not purport to establish a right which would

be an unfettered right. It says, in the operative

part:

in any case where the interests of justice so

require -

so even in examining the article itself, it would
seek to give some right on the party who was

responsible for the providing of such aid or such

representation to make a decision of whether or not it was, in the particular case, in the interests of

justice so required.

Dietrich 7 15/11/91

That is one of the difficulties that arises in

the instant case, Your Honours, as the sort of
vehicle that it might be for the examination of
these propositions at large. This issue arose in
the case of this man only because the case against

him was absolutely overwhelming. Had it not been

overwhelming, and it is clear from the material, he

would have been granted aid.

MASON CJ: But if the right exists, it is not lost because

the Crown has an overwhelming case, surely, is it?

MR COGHLAN:  No, Your Honour, except it might be in the

circumstances of what is required by the interests
of justice, that it is not an unfettered right. It

would not be a right, for instance, Your Honours,

for a person to have counsel argue the case as he

desired it to be argued. It would always be

fettered by counsel's responsibility to argue the

case properly within his responsibilities to the

court and his client. So it would not ever be an

unfettered right for somebody to say, "I want

counsel of my choosing, to be paid for at State

expense, to conduct the case in the way that I want

it conducted."

BRENNAN J:  No counsel worthy of his salt should accept a

brief on those terms.

MR COGHLAN:  No, and -

BRENNAN J: Well, that is not suggested to be the right, is

it?

MR COGHLAN:  And would not, Your Honour - see, that is part

of the problem. It is not clear what the right is

suggested to be if we separate it from the

circumstances of cases such as these. What this

man wanted was to have the case argued in a way of

his choosing.	The legal aid authorities, right
through the whole appellate system of the legal

aid, had looked at the case and said, "We are not

prepared to provide funds for it to be argued the
way you want it argued.", consistent with their

professional responsibilities.

BRENNAN J:  Is that a question of the way you want it argued

or because we do not think you have got a feather

to fly with?

MR COGHLAN:  I am sorry, Your Honour, I did not catch that.

BRENNAN J: Is it a case of the legal aid authorities

saying, "You've got no defence. We so find that

you've got no defence; therefore you are getting no

legal aid."

Dietrich	15/11/91
MR COGHLAN:	Yes, Your Honour, I think it is, in the Crown's

submissions, simply another way of expressing that

proposition in the circumstances of this

particular case.

BRENNAN J: Well, it is very different, is it not, because

there is nothing wrong with a defence counsel

putting the Crown to its proof.

MR COGHLAN:  Yes, and that was not what was sought by this

accused.	Had that been the case, this trial would
have lasted a week.	The trial went for 30 days.

It went for 30 days because everything that could possibly be done to accommodate anything that this applicant wanted put was put to the Court by the co-operation of the prosecution and the trial

judge.

BRENNAN J:  It seems to me that there is a problem here that

needs resolution. It is one thing to say that this

accused was denied a right to counsel, assuming
such a right did exist, understanding the right to
counsel to mean counsel who would argue the case in

accordance with his professional duty. It is

another thing to say he was denied a right to

counsel because the only terms on which he would

take it were those which were inconsistent with
counsel's duty. Now, if you are saying the second,
you are probably saying that this is not a suitable

vehicle to consider the case.

MR COGHLAN:	I am saying that, I think, Your Honour, yes.
BRENNAN J:	Now, are you in a position to demonstrate that,

that was the reason why legal aid was refused?

MR COGHLAN: That appears implicit, Your Honour, from the

materials that are in the application book. If I

can come back to that in a moment. Your Honours,

there are really two submissions that I am putting

about it: the first is that there is nothing within

the law of Australia that says there is such a
thing as the abstract right to counsel,

particularly at public expense. There is no part

of the Australian law that supports that

proposition.

Such law as there is in the decided cases is

against that proposition and it is clear from what

was said in Mcinnis's case and in McDermott's case,

in particular, although it is perfectly clear in

both Mcinnis and McDermott that the real point that

fell to be decided was the point of whether there

should be an adjournment for somebody to get aid.

But the expressions by the Court in each of those cases, it being the majority in Mcinnis's case and

the Court in McDermott, is clear that no right

Dietrich 9 15/11/91

exists in Australia, as a matter of law, to have

aid - to have it provided.

MASON CJ:	We are familiar with those statements.
MR COGHLAN:	It is argued on behalf of the Crown that that

is such a clear proposition, and an unchallenged

proposition, in any of the other courts throughout Australia that it is not a matter that needs to be

decided by the Full Court, even though it is a

matter of general and abstract interest to lawyers.

But in terms of what the law is in Australia, it is

clear.

The second matter I then seek to argue,

Your Honours, is that this is a very poor vehicle

in which that matter might be argued.

MASON CJ:	Now, why is it a poor vehicle?
MR COGHLAN:	It is a poor vehicle because of the strength of

the Crown case and because this man was given an

opportunity to go through the whole appellate

process as it related to legal aid and that he was

also, it being submitted that any of our

international obligations would be satisfied by the

legal aid system that we provide, including an opportunity that he had to make an application

pursuant to section 68(3) of the Judiciary Act for

a certificate under that section to be given so

that aid would be provided by the Commonwealth

Attorney-General. All those matters were

exhausted.

Now, in relation to his position in State aid,

His Honour Mr Justice O'Bryan in the Full Court set

out at some length what had happened there and that

is at page 33 of the application book, but does not

go into detail.

MASON CJ: What are you looking for, Mr Coghlan?
MR COGHLAN:	I was looking for the sections in the

application book of what was said about his refusal

of aid at various times during the trial itself.

That it set out the history in the - not the

history, but there is some comment on the reasons

for which aid was refused, Your Honours.

MASON CJ:  I think we will adjourn now and you can look for

it during the adjournment and bring it to our

attention when we resume at 2.15.

AT 12.52 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

Dietrich 10 15/11/91

UPON RESUMING AT 2.30 PM:

MASON CJ: Yes, Mr Coghlan.

MR COGHLAN:  Your Honours, it seemed to me there might be

something that I should clarify before proceeding

further. Your Honour the learned Chief Justice had

put a proposition to me when I first commenced my

submissions as to why this was not a case that

should be referred to the Full Bench.

MASON CJ: It was a question rather than a proposition.

MR COGHLAN:  Yes, Your Honour. If the question was, should

it be referred to a Full Bench to determine the

question of special leave - - -

MASON CJ: That was implicit in my question because I was

not suggesting to you, in the form of the question leave.

MR COGHLAN:  Yes, Your Honour. If that be the position, I

would not press the Court further.

MASON CJ: Yes. See, one of the questions, it seems to me,

is: what is the significance of Mcinnis's case and

McDermott's case? There is obviously a difficulty

in a bench of three constituted as we are today

saying to Mr Grace, "Your point is bound to fail".

And that is one reason why I put the question in

the form I did to you, so that a bench of seven can consider the totality of the application, excluding

the duplicity point which Mr Grace has indicated he

will not be pressing.

MR COGHLAN: 

So I was being a little more obtuse than usual

before lunch, Your Honour, and I had not taken that
point up.

MASON CJ:  I do not know, Mr Coghlan.

MR COGHLAN: Under those circumstances, Your Honour, if that

was to be the course, I would not press the Court

further.

MASON CJ:  Thank you, Mr Coghlan. The Court will not

trouble you, Mr Grace.

The application will be referred to a Bench of

seven but it will exclude the duplicity point which

you are not pressing, Mr Grace.

AT 2.31 PM THE MATTER WAS ADJOURNED SINE DIE

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