Director of Public Prosecutions (Commonwealth) v Michael John Fuller and Joseph Patrick Cummings No. SCCRM 95/426 Judgment No. 6005 Number of Pages 11 Criminal Law Legal Aid

[1997] SASC 6005

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Criminal law - applicants on serious fraud charges arising out of evidence in earlier civil action in the Federal Court - application to quash or stay indictment - reliance by applicants on decision of High Court in Dietrich v The Queen - whether applicants indigent and whether failure to obtain legal aid was without fault on their part - applicants experienced commercial solicitors skilled in litigation - relevance of funding caps of Legal Services Commission - whether circumstances exceptional - applications dismissed. Dietrich v The Queen (1992) 177 CLR 292; New South Wales v Canellis (1994) 181 CLR
309; Peter Kenneth Lucas (1993) 78 A Crim 480; R v Marchi, Marchi and Mead Unrep Jt No S5963 dated 20 December 1996; Beach Petroleum NL and Claremont Petroleum NL v Johnson and Others (1993) 115 ALR 411; Archbold Criminal Pleading Evidence and Practice 42nd Edition p471 ; MacPherson v The Queen (1981) 147 CLR 512, considered.

HRNG ADELAIDE, 18-21 March, 10, 30 July, 19 August 1996, 28 January 1997 (hearing), 7 February 1997 (decision) #DATE 7:2:1997 #ADD 19:2:1997

Counsel for informant:     Mr P J Rice, with him Mr R Christoforou

Solicitors for informant:    DPP (Cwlth)

Respondents:                 In person

ORDER
Applications dismissed.

JUDGE1 MATHESON J

1. The applicants Michael John Fuller and Joseph Patrick Cummings are charged on the information of the Commonwealth Director of Public Prosecutions which was filed in the Criminal Court Registry on 12 March 1996. An earlier information of the Assistant Director of Public Prosecutions was filed in the Criminal Court Registry on 25 August 1995. The application concerns the later information which contains twenty-two counts. They all allege offences at "Adelaide and elsewhere" and cover the period from 12 October 1988 until 19 January 1990. The applicants are charged jointly on the first seventeen counts. The last five counts relate to the applicant Fuller alone. All twenty-two counts allege that either or both the applicants were aided abetted counselled or procured by Malcolm Keith Johnson in committing the relevant offence, and all relate to dates in which the applicants were directors of either Claremont Petroleum NL or Beach Petroleum NL or both of those companies. Of the seventeen joint counts, eight allege that the applicants as directors of a public company fraudulently applied property thereof, contrary to the provisions of s189 of the Criminal Law Consolidation Act, and nine allege improper use of their position as directors to gain advantage, contrary to the provisions of s229(4) of the said Act. The five charges against the applicant Fuller alone include two further counts under s189, and three further counts under s229(4). The charges involve millions of Australian dollars. Both applicants seek orders that the information be stayed or quashed. Their applications were actually filed in relation to the earlier information, but it is agreed that I should treat them as applying to the later information. They appeared before me and argued their applications without the assistance of counsel.

2. The applications were clearly prompted by the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292. In that case an accused person had appeared unrepresented at his trial and was convicted of importing heroin into Australia. Mason CJ, Deane, Toohey, Gaudron and McHugh JJ allowed his appeal, set aside the conviction and ordered a new trial. Brennan and Dawson JJ would have dismissed the appeal. In their joint judgment, Mason CJ and McHugh J said at p315:
    "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."

3. In a joint judgment in the subsequent case of New South Wales v Canellis (1994) 181 CLR 309, Mason CJ, Dawson, Toohey and McHugh JJ said at p328:
    "... The principle established by the decision in ... [Dietrich]
    is that a court has jurisdiction to grant an adjournment or order
    a permanent stay of proceedings at a trial until such a time as an
    indigent person charged with a serious criminal offence is
    provided with legal representation necessary for a fair trial or
    resources for such representation. As the majority judgments made
    clear, that principle is based on, and derives from, the accused's
    right to a fair trial."

The estates of both applicants were sequestrated in May 1993. On 29 June 1996, Cummings was discharged from bankruptcy by operation of law. Both have made all reasonable endeavours to obtain legal aid and have been unsuccessful through no fault on their part. Counsel for the informant concedes that the charges are very serious and that the trial will be a long and complex one. He estimates it will last about six months. The applicants estimate that it will last about nine months. As I understand counsel for the informant, he concedes that the cost of legal representation would be not less than $500,000. The applicants consider the cost would be much greater.

4. As far as I am aware the High Court has not had occasion to explain what is meant relevantly by the word "indigent". In the Western Australian case of Peter Kenneth Lucas (1993) 78 A Crim R 480, Seaman J said at pp484-485:
    "Mr Fenbury for Mr Lucas submitted that 'indigent' means
    relevantly indigent, to wit, has his client got the means to fund
    his defence in this very long trial, it not being a matter for me
    to determine whether he has the means to pay for some part of it.
    Relevantly, submitted Mr Fenbury, his client was poor and lacking
    in the necessaries of life. In any event, he submitted that the
    aid to which Dietrich's case referred was competent representation
    and an accused in a case of this sort could not be put in the
    hands of a lawyer in his or her first year of practice.

When giving my reasons for refusing Mr Carter's renewed
    application for a separate trial I said that the developments from
    Dietrich's case will have to be worked out case by case and that
    in the circumstances of that case I could not be concerned with
    the comparison between representation offered to an accused person
    by one group of lawyers as opposed to any other group of lawyers.

In my opinion much better mechanisms need to be created to
    determine questions of this sort and I fail to see how the judges
    of this Court can dispose of the very large volume of business
    with which they presently deal if they have to hear detailed
    evidence about the means of accused persons and the contribution
    which they should make to the cost of their defences. Often these
    questions will involve the rights and interests of spouses and
    relatives, partners and others, and in my view difficulty arises
    as to how those matters should be justly dealt with.

Equally, there may be cases, and this is certainly not one of
    them, where questions of the confiscation of profits of crime are
    involved and where an accused would be disadvantaged by any cross-
    examination as to his means.

Indeed, it seems to me undesirable that a prosecutor should ever
    have the right to cross-examine the accused except upon his
    election to give evidence at the close of the Crown case. As I
    have said, the prosecutors in this case have overcome that
    difficulty by voluntarily withdrawing."

5. I now turn to my limited findings of fact and my limited decision. I do not favour the meaning of 'indigent' in the Shorter Oxford Dictionary which is relied upon by counsel; I prefer the meaning given by that dictionary 'lacking in what is requisite; wanting, deficient'.

In R v Marchi, Marchi and Mead (judgement number 5963 delivered on 20 December 1996, unreported, available in SCALEplus), Perry J said at p9:
    "... indigent does not mean that the accused must be penurious in
    the sense of living in poverty. Rather, the test of indigence is
    satisfied if the accused lacks the means to engage appropriate
    legal representation to conduct his or her defence."

6. It is not entirely clear to me whether there is really any difference in the approach of the two judges, but for myself I prefer the articulation of Perry J.

7. Counsel for the informant concedes that the applicant Cummings is indigent. He argued, however, that there was considerable doubt as to whether Fuller was indigent, and much of the cross examination of Fuller and the witnesses he called in support of his application was directed to that question. Without canvassing that evidence, and having regard to what I am about to say, I am prepared to assume, but without actually finding, that Fuller is indigent.

8. In his argument before me, counsel for the informant fastened on the phrase "exceptional circumstances" in the dictum of Mason CJ and McHugh J (supra). He referred to an earlier passage in their joint judgment in which they said at p302:
    "Lord Devlin stressed the importance of representation by counsel
    when he wrote (The Judge (1979) p67): '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."

9. Later at p311, their Honours said:
    "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."

10. In his dissenting judgment, Brennan J, as he then was, said at pp324-325:
    "The rhetoric that our system of administering criminal justice
    ensures a fair trial is comforting, but the reality is that the
    courts cannot always eliminate obstacles to a fair trial.
    Rhetoric does not always correspond with reality. If public funds
    are not available to provide legal representation in serious
    criminal cases, the administration of criminal justice will not
    be, or at least will not be seen to be, evenhanded. But the
    remedy does not lie with the courts; the remedy must be found, if
    at all, by the legislature and the executive who bear the
    responsibility of allocating and applying public resources.

The procedure of the criminal courts is designed to produce as
    fair a trial as practicable in the circumstances of each case.
    Where an accused person is unrepresented, a particular burden is
    placed on the trial judge to ensure that the trial is fair (See,
11., MacPherson v. The Queen (1981), 147 CLR 512, at pp546-547).
    And if, through want of legal representation, some error occurs in
    the conduct of the trial which occasions a substantial miscarriage
    of justice, a conviction must be set aside. But the rhetoric that
    a trial must be fair before a conviction can properly be recorded
    is true only to the extent that unfairness leads to a miscarriage
    of justice."

12. At pp335-336, Deane J said:
    "There are circumstances in which a criminal trial will be
    relevantly fair notwithstanding that the accused is unrepresented.
    The most obvious category of case in which that is so is where an
    accused desires to be unrepresented or persistently neglects or
    refuses to take advantage of legal representation which is
available (See, e.g. Reg v Greer (1992), 62 A Crim R 442 at pp12-
    15 per Kirby P.). Another category of case in which that is so is
    where the accused has the financial means to engage legal
    representation but decides not to incur the expense. It is true
    that, in the context of the current level of legal fees, it is
    arguable that no accused should be required to devote a
    substantial part of his possessions to obtaining legal
    representation in resisting a prosecution for an alleged offence
    of which the law presumes him to be innocent. Nonetheless, it
    appears to me that it cannot be said that a trial is unfair by
    reason of lack of legal representation in a case where the accused
    possesses the means to obtain such representation but elects not
    to utilize them. Finally, it is arguable that there are
    categories of criminal proceedings where inability to obtain legal
    representation would not have the effect that the trial of an
    accused person was an unfair one. For example, there is much to
    be said for the view that proceedings before a magistrate or
    judge, without a jury, for a non-serious offence (e.g. where there
    is no real threat of deprivation of personal liberty: see
Argersinger v Hamlin (1972), 407 U.S., at pp 37-38, 40) would not
    be rendered inherently unfair by reason of inability to obtain
    full legal representation."

13. In his dissenting judgment, Dawson J said at p345:
    "The assistance which the trial judge can give to an unrepresented
    accused is limited, but its effect ought to be to redress as far
    as possible any imbalance in the presentation of the prosecution
    and defence cases and to ensure that the procedures adopted fairly
    reflect the case which the accused wishes to put in his defence.
    That having been said, it is undeniable that if trials were to
    move closer to the attainment of perfect justice, every accused
    would be represented by competent counsel. But, as Brennan J.
pointed out in Jago v. District Court (N.S.W.) (1989) 168 CLR 23
    at p47, although the absence of competent representation is an
    obstacle in the way of a fair trial, it is an obstacle to be
    overcome by the trial judge however burdensome the task. He
    continued (ibid at p49):'If it be said that judicial measures
    cannot always secure perfect justice to an accused, we should ask
    whether the ideal of perfect justice has not sounded in rhetoric
    rather than in law and whether the legal right of an accused,
    truly stated, is a right to a trial as fair as the courts can make
    it. Were it otherwise, trials would be prevented and convictions
    would be set aside when circumstances outside judicial control
    impair absolute fairness.'"

14. At p353, Toohey J said: "Most trial judges have had the experience of a litigant in person who seems able to conduct his or her part in the proceedings with skill and, sometimes, to a successful conclusion. But such situations are exceptional."

15. At pp356-357, he said:
    "If it is likely that an accused will suffer prejudice in
    conducting a defence by reason of lack of counsel (and that will
    almost inevitably be so where the charge is of a serious offence),
    the trial judge may adjourn the trial. It is not possible to say
    that the trial judge must adjourn the trial for there are other
    considerations to be taken into account. Counsel for the
    applicant is not right in suggesting that only the interests of
    the accused are relevant. The situation of witnesses,
    particularly the victim, may need to be considered as well as the
    consequences of an adjournment for the presentation of the
    prosecution case and for the court's programme generally (Beadle
    16., 21 SASR at p71)."

17. Gaudron J does not appear to admit that there are exceptional cases.

18. Are the circumstances here exceptional?

19. Both the applicants are legally qualified. Fuller was admitted to practice as a legal practitioner in 1964. He continued so to practice until 1983/1984. In the late 70s, early 80s he became a director of a number of companies. At one time he was a director of about twenty companies. He conceded in evidence before me that he is now a very experienced commercial solicitor. Cummings was admitted to practice in December 1981, and practised as a commercial solicitor from January 1982 until March 1988. In his affidavit sworn herein on 28 September 1995 he deposed:
    "My only advocacy experience arises from my appearances as an
    unrepresnted accused in criminal proceedings in South Australia
    and Western Australia and after seeking and failing to obtain
    legal representation, as an unrepresented respondent to a
    bankruptcy petition and as a defendant in a civil trial consequent
    upon withdrawal of solicitors and counsel (after expiration of the
    first six months of the trial) for non-payment of legal fees.At
    the committal proceedings before Mr F R Field SM [in relation to
    the present case] I was unrepresented, aside from some pro bono
    assistance on discreet matters."

20. The Commonwealth Director of Public Prosecutions has said in correspondence that the civil case heard in the Federal Court of Beach Petroleum NL and Claremont Petroleum NL v Johnson &; Others, including both the present applicants, ("the Beach Petroleum case") which is reported in (1993) 115 ALR 411, "closely reflects the prosecution case herein". That case was heard over a ten month period commencing on 3 July 1992 and ending on 6 April 1993. During the many days of court hearings after 8 December 1992 the present applicants appeared in person. Until that date they had been represented. I have not seen the transcript, but in his unreported judgment in the District Court of Western Australia in relation to Indictment No 216 of 1995 against the present applicants, Muller DCJ said at p20 (in relation to Fuller):
    "It appears he represented himself for a substantial part of those
    proceedings [in the Beach Petroleum case] during which he cross-
    examined several witnesses including one Brian Thomas Morris, an
    accountant, who is named as a Crown witness in the case which is
    the subject of this application."

21. The applicants sought to take the Beach Petroleum case on appeal to the Full Court of the Federal Court, and both appeared before that Court in person (see 118 ALR 235.) The appeal was dismissed as incompetent. Subsequently they appealed to the High Court from the decision of the Full Court of the Federal Court. On 22 August 1995, the applicant Fuller argued their appeal in person before five Justices, and an examination of the transcript indicates a confident and sophisticated argument was put by him. The High Court reserved judgment, and on 20 June 1996 it dismissed the appeals.

22. In relation to the preliminary hearing before Muller DCJ on Indictment No 216 of 1995, that learned Judge said in his judgment dated 16 November 1995 on the Fuller application (supra):
    " Most of the witnesses called by the prosecution at the
    preliminary hearing were cross-examined by the applicant. The
    first witness was a Mr Jermyn. The applicant made extensive

    objections to the admissibility of this witness' evidence on the
    grounds of hearsay and relevance. During the course of Mr
    Jermyn's testimony the applicant also made submissions as to the
    admissibility of the acts and declarations of co-conspirators made
    in furtherance of the unlawful common purpose. He also took
    objection to the admissibility of certain documents tendered
    through the witness and objected to questions asked by the Crown
    prosecutor which were couched in a leading form. When his
    opportunity to cross-examine the witness arose the applicant
    embarked upon a detailed and searching line of questioning which
    revealed a thorough appreciation of the issues involved.

Another witness called by the prosecution at the preliminary
    hearing was a Mr Olney. He was a geologist who tendered a report.
    He was cross-examined by the applicant as to the technical aspects
    of his report. The applicant's line of questioning revealed an
    understanding of the issues involved and was designed to cast
    doubt upon certain aspects of the report and the opinion of the
    witness. My impression is that the cross-examination was
    conducted professionally with what appears to have been no small
    degree of skill.

The evidence of a third witness called by the prosecution, a Mr
    Tabuzu, was met by numerous objections from the applicant. The
    admissibility of this witness' evidence was disputed on grounds of
    irrelevance or inadmissible opinion.

Mr Javier, another witness called by the prosecution, also met
    with numerous objections and interjections by the applicant during
    the course of his evidence. Objections were taken by the applicant
    as to the admissibility of this witness' testimony because of his
    alleged lack of expertise in the mining field. The applicant also
    objected to leading questions being addressed to the witness by
    the prosecutor. Cross-examination of this witness by the
    applicant revealed, yet again, a detailed grasp of the issues
    involved and a sound technique in the method of questioning.

The evidence of another Crown witness, Mr Edwards, an accountant
    by profession, was also met by a series of objections from the
    applicant to the form of questioning adopted by the Crown
    prosecutor. Objections were also made by the applicant to
    secondary evidence being given by the witness. The applicant also
    challenged the admissibility of certain documentary evidence
    sought to be introduced through the witness. As with the other
    witnesses I have referred to, the applicant's cross-examination
    appears to have been exhaustive and by no means unpolished in
    technique.

The applicant, who consistently demonstrated an appreciation of
    the fundamental rules of evidence, took exception to a witness
    named Thomas refreshing his memory from notes unless the criterion
    of contemporaneity was first satisfied. His knowledge of the
    appropriate procedure was also revealed by his request for a voir
    dire as to the admissibility of certain evidence to be given by Mr
    Thomas. It is also significant that the applicant objected to the
    Crown prosecutor referring the witness to passages in
    contemporaneous notes used by the witness to refresh his memory.

The applicant's appreciation of the fundamental rules of evidence
    and procedure was demonstrated time and time again during the
    course of the preliminary hearing. When a witness named White was
    giving evidence the applicant objected to the alleged leading
    nature of the questions being asked by the prosecutor and also
    demanded that the witness relate evidence of conversations to
    which he had been a party in a verbatim manner as far as that was
    possible. The evidence of another witness, Mr Kelsall, was also
    the subject of objections raised by the applicant, including one
    based upon the speculative answers given by the witness and the
    form of questioning adopted by the Crown prosecutor.

Perhaps the most revealing insight into the applicant's
    appreciation of the rules of evidence and procedure and his more
    than acceptable technique in cross-examination was apparent during
    the evidence of Mr Morris, a chartered accountant and expert
    witness called by the prosecution. At the outset of his evidence
    the applicant asked for a voir dire to determine the expertise of
    the witness. The witness produced a report which contained an
    analysis of the financial state of the IRL Group of Companies, the
    Spargos Group and the financial effects of the 'King King'
    transactions on the various corporate entities referred to in the
    report. During the evidence of this witness the applicant raised
    numerous objections. He objected, for example, to certain
    documents being tendered in evidence, including the annual report
    of Spargos, which, he claimed, was irrelevant to the issues before
    the court. Other objections raised by him revealed a detailed
    understanding of the inter relationship of the various corporate
    entitles and apparent flaws and deficiencies in the composition of
    the expert's report. When cross-examining this witness the
    applicant asked a series of what appear to have been searching
    questions which, among other things, were designed to cast doubt
    on the validity and accuracy of the data relied upon by the
    witness in preparing his report. The line of cross-examination
    adopted by the applicant revealed a thorough working knowledge of
    the methods of evaluation of the assets of the company and the
    various external factors that came into play in defining the
    values of such assets."

23. In relation to the application by Cummings before Muller DCJ in respect of the same indictment, Muller DCJ said:
    "I have had the opportunity of reading the transcript of the
    preliminary hearing and it is appropriate that I should make the
    following observations. The applicant appears to have played a
    more passive role than that of his co-accused, Fuller, during the
    preliminary hearing. While Fuller appears to have dominated the
    cross-examination of the various witnesses called by the
    prosecution, the applicant confined his questioning to selected
    witnesses. For example, he cross-examined the witnesses Thomas,
    Tabuzu, Edwards, White, Kelsall and Webb. His cross-examination
    of these witnesses, particularly those whom he questioned at
    length and in some detail, demonstrated what appears to have been
    a thorough understanding of the issues involved. There was
    nothing amateurish or clumsy in the applicant's technique; his
    method and form of cross-examination revealed a level of
    competence that might be expected of any lawyer with some trial
    experience and a thorough understanding of the issues involved.

The applicant's contribution to the proceedings in the lower court
    was not confined to cross-examination. Although most legal
    objections were raised and argued by his co-accused, the applicant
    also raised legal objections on occasions and made submissions in
    support of those objections. During the evidence of the witness
    Javier, for example, the applicant objected to the admissibility
    of portions of the evidence and of certain documents tendered in
    evidence through the witness. The evidence of Edwards, an
    accountant, was also punctuated by a series of objections by both
    the applicant and his co-accused. In other instances the
    applicant supported legal objections made by his co-accused."

24. Muller DCJ refused to stay Indictment No 216 on 16 November 1995. The applicants then appeared in person again, and unsuccessfully argued before Yeats DCJ that it should be stayed because they were without funds to engage expert witnesses. Cummings, with the assistance of counsel acting pro bono, then applied to the Supreme Court of Western Australia for prerogative relief, but his application was dismissed by Rowland J on 18 January 1996 as incompetent. The trial of Indictment No 216 ultimately proceeded for five weeks in the District Court of Western Australia in about April 1996. The applicants appeared in person and were acquitted. Fuller stated that his youngest daughter, who is a recently admitted practitioner of this Court, took leave of absence from her firm to assist him in noting the transcript, collating documents and exhibits. She took three weeks paid holiday leave and two weeks unpaid leave of absence to assist him.

25. In addition to representing themselves at the preliminary hearing in the District Court of Western Australia in relation to Indictment No 216 of 1995, they had earlier successfully represented themselves on a Dietrich application before Barlow DCJ in the District Court of Western Australia in relation to Indictment No 55 of 1994, an adjournment being granted on 28 November 1994.

26. At the preliminary hearing of the charges now before me, for the greater part of a very lengthy hearing, they appeared in person, took objections, cross-examined witnesses and addressed the learned Magistrate. They were committed for trial by his Honour Mr F R Field SM on 28 June 1995. On 28 November 1995, they lodged in this Court an application for judicial review of the committal order, together with an affidavit in support sworn by Fuller. The application for leave to serve the application on the learned Magistrate and on the Commonwealth Director of Public Prosecutions came on for hearing before Bollen J on 16 February 1996 and was dismissed. Fuller addressed arguments in support of their application which Bollen J described in his judgment as clear and forceful (Action No 2458 of 1995).

27. On 7 March 1996, the applicant Fuller applied to the Family Court of Australia for lump sum spousal maintenance and in the alternative for property settlement. He argued his application in person before Murray J. Counsel appeared for his wife. Her Honour gave judgment on 9 May 1996 dismissing the latter application, but granting leave to proceed with the former. In an affidavit sworn herein on 12 July 1996, Fuller stated that having regard to the reasons given by his trustee in bankruptcy for objecting to his discharge, there was little prospect of any application for lump sum maintenance being successful against his wife, and that therefore he did not intend to prosecute it.

28. Fuller applied to a single judge of the Federal Court seeking an order pursuant to s179 of the Bankruptcy Act that his trustee in bankruptcy be removed as such trustee. Jenkinson J dismissed the application on 6 May 1995. On 28 June 1996, his appeal was dismissed by Sheppard, Spender and Hill JJ. Fuller argued the application and the appeal in person.

29. On 4 July 1996, Fuller filed in the Administrative Appeals Tribunal an application to review his trustee's decision to object to his discharge from bankruptcy, and it contained five pages of detailed reasons in support. Fuller has appeared in person on a number of directions hearings, but the application has not yet been resolved.

30. From what I have written, it will, I think, be apparent that both the applicants, and especially Fuller, are experienced and skilled litigants. Moeover, they have had the very relevant experience of being involved in person in the Beach Petroleum out of which these charges arose. I acknowledge that they are incapable of acting dispassionately in conducting their own defence, but I contrast their situation with that of the appellant Dietrich. At pp329-330, Deane J quoted the following actual statements of the appellant Dietrich: "'I cannot appear for myself, I'm not legally minded.'...'I don't understand the system ... I've got no idea.'...'I'm not emotionally or mentally fit to conduct my own trial.'"

31. Next the Legal Services Commission of South Australia in a circular letter to practitioners dated 19 August 1996, advised that as from 31 July 1996 "funding caps for expensive cases have been reduced from $150,000 to $75,000 (more than one accused)", and it seems clear that even if I grant the applications for a stay, legal aid will not be forthcoming, and this information would virtually be permanently stayed. In my opinion, the combination of the circumstances are exceptional in this case. I acknowledge that in Dietrich's case, several of the judgments described the assistance that a trial judge can give to an unrepresented accused as limited (see, for example, at pp302, 334-335 and 354), but the law remains that the judge "should endeavour to assist an unrepresented [accused] in the conduct of his defence, in particular when he is examining or cross-examining witnesses, or giving evidence himself" (see Archbold, Criminal Pleading Evidence &; Practice, 42nd Edn p 471). I also refer to MacPherson v The Queen (1981) 147 CLR 512, especially at pp536, 537 and 546-547.

32. As far as the submission of the applicants that they need financial assistance to proof and call expert witnesses, I consider that Dietrich's case does not deal with that problem for an indigent accused. It is not clearly to be categorised as a legal representation problem. Without expressing a final view on whether, having regard to the history here, such a need is established, it may be that the Legal Services Commission will reconsider that aspect.

33. The applications are dismissed.