Frugtniet v State of Vic

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M75 of 1997

B e t w e e n -
SUZANNE MARIE FRUGTNIET
Plaintiff
and
THE STATE OF VICTORIA

First Defendant

HIS HONOUR JUDGE ANTHONY FELSTEAD SMITH
Second Defendant
THE DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) AS AGENT FOR THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA
Third Defendant
Application for a stay

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 17 SEPTEMBER 1997, AT 9.36 AM

_________________________

MRS S.M. FRUGTNIET: Your Honour, my name is Suzanne Marie Frugtniet. I am the plaintiff in these proceedings, and I appear in person.

MR L. LASRY, QC: May it please your Honour, I appear with my learned friend, MR P.M. TAFT, for the first and third-named defendants. (instructed by the Victorian Government Solicitor and instructed by the Director of Public Prosecutions (Commonwealth)).

HIS HONOUR: There is a minute which I have received from the Deputy Registrar informing me that the second defendant, His Honour Judge Anthony Smith, does not wish to be represented at the hearing and will submit to any order of the Court, save as to costs.

You are appearing for both the State of Victoria and the Director of Public Prosecutions for the Commonwealth?

MR LASRY: For the Commonwealth, your Honour, yes, that is so.

HIS HONOUR: I follow, thank you very much. Yes, Mrs Frugtniet.

MRS FRUGTNIET: Your Honour, I filed a writ of summons and a statement of claim, the original of which I have here. I am not sure what, procedurally, ought to be done but I would like to rely on the writ of summons, the statement of claim, my affidavit sworn on 12 September 1997 before the Deputy Registrar of the Melbourne Office of the Registry, and my affidavit sworn yesterday which is 16 September 1997, and the annexures thereto.

HIS HONOUR: Have you seen both of these affidavits, Mr Lasry?

MR LASRY: Your Honour, I have. There is a difficulty, though, in this sense that the affidavit sworn by the plaintiff, I think yesterday, was handed to us this morning.

HIS HONOUR: Yes. Well, it was only handed to me a minute or so ago, so we are in equal difficulty.

MR LASRY: Yes. So, your Honour, I have read it and the annexures to it as best we could in the time but we are in no position, of course, to file any answering material.

HIS HONOUR: No. This matter has come on rather quickly because of a situation that all of us understand. Well now, just let me make sure that I have all of these documents. There is a handwritten affidavit.

MRS FRUGTNIET: That is the one dated 12 September.

HIS HONOUR: Yes, I have seen that.

MRS FRUGTNIET: Now, annexed thereto is an affidavit sworn 12 September in Sydney and annexed thereto is an affidavit sworn 11 September. Obviously being a litigant in person, your Honour, I have difficulty in putting together material but I have done the best I can in the circumstances.

HIS HONOUR: Yes. You may be a litigant in person, but you do not seem to be an inexperienced litigant. You have had a lot of cases before the court and you seem to have done quite a good job in getting the affidavit together.

MRS FRUGTNIET: Thank you, your Honour.

HIS HONOUR: So, we have that affidavit. Now, just indicate what the exhibits are that are referred to in that affidavit.

MRS FRUGTNIET: The first affidavit, that is 12 September 1997, has annexed to it an affidavit, a one-page affidavit.

HIS HONOUR: Yes, I have seen that.

MRS FRUGTNIET: And annexed thereto is another affidavit comprising of two pages which is sworn 11 September 1997. The first exhibit to that is marked A and it is the presentment in Victoria.

HIS HONOUR: Yes, I follow. I have seen that.

MRS FRUGTNIET: And that comprises of the front page of the presentment with the details written of the two charges and then the witnesses.

HIS HONOUR: How many witnesses are there in that list?

MRS FRUGTNIET: According to the Crown they have attached, I think, about 130 if I am not mistaken but I do not - well, I understood them to be calling between 80 and 100 but nobody knows until the prosecution says so.

HIS HONOUR: Very well. Then there is the statement of claim which you have also filed in this Court.

MRS FRUGTNIET: Yes, that is correct.

HIS HONOUR: That is not before me today. I think I am dealing only with the summons.

MRS FRUGTNIET: The summons, that is correct, your Honour.

HIS HONOUR: Except, as the statement of claim is annexed to the affidavit which you filed in support of the summons.

MRS FRUGTNIET: That is right.

HIS HONOUR: The purpose of the summons, as I understand it, is to secure a stay of the proceedings.

MRS FRUGTNIET: A stay until such time as this Court can deal with the substantive matter raised in that, in that it is denying me the right to a fair trial.

HIS HONOUR: Yes. At this stage we are simply getting the documentation clear. So, that is that affidavit. Now, you then filed this morning, or at least I was provided this morning, apparently also Mr Lasry ‑ ‑ ‑

MRS FRUGTNIET: I filed it last evening, your Honour, because I was in court all day yesterday in the pool room of the jury. I asked the trial judge if I could have some time off but Mr Lasry here called a mention at 4 pm yesterday limiting my time further so I was not able to file any further material or swear it. It deprived me of that opportunity but I believe that, in the end, it was a valid mention. However, I thought that it could have been heard at, say, 3 pm when the court actually adjourned.

HIS HONOUR: Do not worry about that. What I am concerned about at the moment is the identification of the document. I am not complaining about receiving it late. It is the nature of the proceedings that we are dealing with this matter urgently. But just tell me what this document contains?

MRS FRUGTNIET: The affidavit comprises nine pages, your Honour. It is sworn yesterday before Deputy Registrar of the High Court, Melbourne Office of the Registry. Annexed thereto - now this is where the confusion arises, I am sorry about this. But the first annexure is marked Z. Z is a four‑page letter from Slades & Parsons. Mr Tony Parsons was my solicitor until funding from Legal Aid was terminated in June of this year. That is a four-page letter which is exhibit Z. The next one is exhibit Y, which is your Honour’s judgment in respect of my husband’s transfer to the State of Victoria.

HIS HONOUR: Yes. That is now reported in the Australian Law Journal Reports.

MRS FRUGTNIET: I am sorry, your Honour, I did not know that.

HIS HONOUR: Do not worry about that. That is not important.

MRS FRUGTNIET: That is about 10 pages plus the cover sheet. The next annexure is marked X and it is a ruling of Judge Smith who is the trial judge in the proceedings in Victoria. It was an application for a stay, for a permanent stay, by my husband, Brian Frugtniet, on the basis that he has already been dealt with on the same matter or similar matter or whatever the argument is, in New South Wales, and he has already been convicted and done his sentence and he is now being tried again for the same thing. Now, in that judgment, the part I really find that your Honour should apply is on page No 6. It says “The ‘Justiciality’ Issue”. I am not quite sure what it means exactly, but as I understand it, your Honour, we were arguing that according to these charges, it is a conspiracy, it is an agreement to do something. Now, part of that agreement, well we thought at the time, was to counterfeit American Express travellers’ cheques and what they said was to take it overseas and distribute it in Europe. If that is to be the case, then the community of the State of Victoria is not affected by it. This is just a layman’s understanding of what they are saying.

HIS HONOUR: That is a different question, I think.

MRS FRUGTNIET: Yes, but it is in that ruling, your Honour, and I understand it to be a threshold question but the trial judge has put it to the trial. At the trial all three accused are unrepresented and we are unable to know what to do with it, if the Crown changes its case in the middle of the trial, with no representation. So, that is why I highlight that issue, the justiciality issue, and also it is called the extraterritorial issue. It refers to two cases. One is Re Hamilton-Byrne (1995) - - -

HIS HONOUR: I can see the document. I am merely identifying the documents at this stage. Going further, the next one is W.

MRS FRUGTNIET: But just to press what the importance was in that, your Honour. The next one - - -

HIS HONOUR: You know that this is the first time in 30 years of legal practice that I have ever seen an affidavit which has the affidavit annexures going from the back to the front.

MRS FRUGTNIET: Your Honour, the reason for that - I am not Chinese but what happened was that I started the other affidavit with A and I thought if I start with this one with A again then we will have so many As. As it happened, I was all confused and you must remember I am in the middle of a trial at the same time doing all this.

HIS HONOUR: Yes. I am not complaining, I am just noting that that is a curiosity.

MRS FRUGTNIET: And I have done two Ys and I have made a big mess of it but, I mean, it is the best - - -

HIS HONOUR: Never mind, now what is W?

MRS FRUGTNIET: W is the ruling of the Chief Judge of the County Court of Victoria, Judge Waldron.

HIS HONOUR: That was on the application under section 360A.

MRS FRUGTNIET: Section 360A. Now, that adverts to a test that he has set and that is what abrogates my right and that is what I am fighting about.

HIS HONOUR: Yes, I have read Justice ‑ ‑ ‑

MRS FRUGTNIET: It is called the “triable issue” test and it has never been tested before.

HIS HONOUR: Then just to confuse things more, there is another Y.

MRS FRUGTNIET: Yes, that is what I mean. That is the second Y - I am sorry about this. Maybe we should add “Y2” or something to that?

HIS HONOUR: Do not worry about that.

MRS FRUGTNIET: That is all right? And that is only one page of the transcript which would explain why it took that time to bring the review before the Supreme Court of Victoria.

HIS HONOUR: Oh, I see.

MRS FRUGTNIET: You see, what it is - what is discussed before we ‑ ‑ -

HIS HONOUR: This is before Justice Hedigan?

MRS FRUGTNIET: Yes, that is right, in order to bring it before him, but this is what Judge Smith said on the first day after Judge Waldron handed down his ruling on the 360A application.

HIS HONOUR: I see, yes.

MRS FRUGTNIET: And Judge Smith actually said there, if you look about the third paragraph - the second, rather:

Maybe that’s what he did have in mind, but let’s get things organised up until the end of all the preliminary issues.....including the voir dire evidence and then re-assess the situation when we’re about to get under way with the trial.

And that is the point I am making, and I believe that I had to wait, in any case - my solicitor told me that it would be premature to immediately appeal Judge Waldron’s ruling, because I was unhappy with it immediately and I asked him why he was not taking the matter up straightaway, because at that time he said he was going to do it for me but when funding stopped, well, he stopped as well, your Honour.

The next annexure is V. It is called a Ridgeway ruling, and that is a matter, your Honour, where one of the co-accused, Edward Seyfarth - and my husband and I joined in this application - there is another threshold issue and that is that the police perpetrated a lot of frauds in order to create this offence, if you like. Those frauds included burglary on people’s homes, passports - - -

HIS HONOUR: I have an idea about this. It is mentioned in Justice Hedigan’s judgment, I think.

MRS FRUGTNIET: Is it? I do not think so.

HIS HONOUR: Somewhere I have noted that you had a Ridgeway argument.

MRS FRUGTNIET: Yes, and the problem, your Honour, is that the judge did not entertain the argument because in order to establish the illegalities perpetrated by the police and the Crown or whoever the police did it with - I think it is the AFP and, in particular, Commissioner Bates and Sergeant Scott and Sergeant Vickery from the Chatswood Police.

HIS HONOUR: Yes. Well, I am not concerned with that just at the moment. I am just identifying the documents just now.

MRS FRUGTNIET: Yes. Well, that is the ruling where Judge Smith refused - - -

HIS HONOUR: Was this considered in the pre-trial voir dire, was it?

MRS FRUGTNIET: That is correct, your Honour.

HIS HONOUR: I follow.

MRS FRUGTNIET: But the thing is that there is no decision given. So, therefore, we go to the trial with pre-trial issues unresolved, not knowing what is going to happen, refusing to give a voir dire to establish the illegalities done by the police.

HIS HONOUR: Yes. Well now, the next document is U which is Justice Hedigan.

MRS FRUGTNIET: The next document is U which is Justice Hedigan’s but I believe that - - -

HIS HONOUR: I have read that judgment, so I know that one. The next one is S. Now, what is that?

MRS FRUGTNIET: The next one is S which is my submissions in an application before the trial judge for a 360A order as well because I have no choice but to keep pursuing - trying to get legal representation. So, I am simultaneously trying to do that but that has just been set for a date to be

fixed. We do not know what is going to happen about that but I submitted that, as my reasons - that is actually annexed to an affidavit but I did not worry about the affidavit. I just put the submissions, your Honour, because that sets out all the matters that are of concern that are - in any case, if you take this “triable issue” test, those are all the issues that are still current or live in the trial, and I do not see how anyone can have a fair trial with things undecided and without representation. In the matter of Dietrich it was said that - - -

HIS HONOUR: We will come to submissions in due course. We have to keep a degree of order in the proceedings, you understand. So, I am simply identifying what the documents are. The last is not a legal article.

MRS FRUGTNIET: The last of them is marked T. It is an assessment of “Dietrich, the High Court and Unfair Trials Legislation”, and asks the question: “A Constitutional Guarantee?”. That is an article where - I do not know. Monash University has put that out to state that section 360A is ultra vires of the power of the Victorian State Government to override the High Court as they set the principles for a fair trial in Dietrich.

HIS HONOUR: That would depend upon whether Dietrich lies at its foundation upon the Constitution or whether it is simply a statement of common law principle. If it is the latter, it can be - - -

MRS FRUGTNIET: Your Honour, all the majority rulings seem to say that there is an implied right to a fair trial under the Constitution and, in any event, Australia - - -

HIS HONOUR: We will come to that in a moment. So, that is the affidavit which you filed last night or this morning. So, I have both of those affidavits. Now, in the file there are some other documents and perhaps they may be placed before me by Mr Lasry. Are the documents you have indicated the only ones you wish to put before me?

MRS FRUGTNIET: Yes, your Honour.

HIS HONOUR: Perhaps I should ask you first, Mr Lasry, do you wish to cross-examine the plaintiff on any of those documents for the purpose of these proceedings?

MR LASRY: No, your Honour, but can I say this, there would be a number of factual issues that arise on that affidavit material.

HIS HONOUR: Yes, I understand that. We are only dealing with this on the summons which is a summons for a stay of the trial. So that at this stage I am not going to get into the detailed factual matters which would be the province of the trial judge and the jury, but simply to understand the basis on which the stay is sought.

MR LASRY: Yes, your Honour. So, no, I do not wish to cross‑examine the plaintiff.

HIS HONOUR: Now, do you have any evidence that you wish to place before the Court?

MR LASRY: Your Honour, as far as I am aware, there is one affidavit to be filed on behalf of the third-named defendant. It would be the affidavit of Jamie David Singh, sworn 15 September - - -

HIS HONOUR: Yes, just a moment. Let me just see that I have that. Now, this is an affidavit by Mr Singh which is sworn 15 September 1997?

MR LASRY: Yes.

HIS HONOUR: And that has a number of exhibits that are referred to in it. Perhaps you might identify these.

MR LASRY: Certainly, your Honour.

HIS HONOUR: Do you have this affidavit, do you, Mrs Frugtniet?

MRS FRUGTNIET: Yes, your Honour.

MR LASRY: Your Honour, exhibit JDS1 is the presentment.

HIS HONOUR: Yes. How many witnesses - I did see somewhere the number of witnesses. I have not counted them up but how many are on the list with the asterisk?

MR LASRY: I do not know, your Honour. I have not counted them either but it is a figure of around 100. It may be more; it may be less. There may, of course, be some witnesses we do not need to call.

HIS HONOUR: And then there is JDS2 which is the judgment - - -

MR LASRY: Can I just say something about the presentment just in passing, your Honour, as to the form of the document?

HIS HONOUR: Yes.

MR LASRY: The back sheet of the presentment in JDS1, I think, makes it clear by way of amendment the two counts of conspiracy are alleged breaches of section 321 of the Victorian Crimes Act. Your Honour will see there that there are references also to subsections of section 83A of the Crimes Act. As your Honour will have realised, count 1 is a conspiracy to make false documents and count 2 is a conspiracy to use them. So the object of the conspiracy is referred to in those sections of the Crimes Act but they are both statutory conspiracies or breaches of the statutory - - -

HIS HONOUR: Yes. There was an earlier suggestion which I think I was told in the proceedings involving Mr Frugtniet earlier in the year, and I think I have read them in some of the material annexed to Mrs Frugtniet’s affidavit, that the original charges were charges of a specific criminal offence but they were withdrawn, were they, and the presentment has been presented in terms of two counts of conspiracy?

MR LASRY: Yes, your Honour, and that is, I think, reflected in the amendments on the back sheet of the presentment.

HIS HONOUR: Yes, very well.

MR LASRY: Now, your Honour, JDS2 is what is described as a synopsis which was prepared some now considerable time ago. It is effectively an outline of the way in which the Crown case is put. That document was provided - - -

HIS HONOUR: That would be like the opening to the jury, would it? It would run along these lines generally.

MR LASRY: Yes, along those lines generally, your Honour, yes. It was provided to his Honour the Chief Judge and also, of course, to Justice Hedigan. Exhibit JDS3 is a chronology which essentially traces the history of the proceedings commencing in September 1992 and up to 27 August 1997.

HIS HONOUR: Yes. The only development since then have been the application before Justice Hedigan and the commencement of the trial?

MR LASRY: That is so.

HIS HONOUR: Now, what stage has the commencement of the trial reached because I do not quite understand what has happened since Monday?

MR LASRY: Certainly, your Honour. On Monday and Tuesday a panel - two groups of about 250 jurors in each, were summoned and his Honour the trial judge commenced to hear excuses from members of those two panels as to why they would not be able to serve on the jury.

HIS HONOUR: Yes. The trial was estimated for four months, I think I read.

MR LASRY: For four months, yes. Difficulties arose in relation to both panels. A juror in the first panel had some knowledge of the accused and said so - or two of the accused.

HIS HONOUR: What, this is after sworn?

MR LASRY: No. While excuses were being taken, a juror sought to be excused on the basis that he was a retired Customs officer and had had some dealings with two of the accused in his capacity as a Customs officer. The question arose as to whether he had spoken to anyone about that and who heard what he said in court. Ultimately, that first group was excused. Yesterday, in the second group, a person known to the accused in the travel business, and obviously with some antipathy towards them, sought to be excused on the basis of his knowledge. The same question arose as to who he might have spoken to. The result of that has been that we are going to start the process again from the beginning tomorrow with another two panels of jurors in order to pick a group from whom a jury will be empanelled. It is anticipated, your Honour, that the trial itself would commence - that is by way of Crown opening - probably in the middle of next week or towards the end of next week.

HIS HONOUR: Will the empanelling of the jury take until then? Is it expected that it will take - - -

MR LASRY: Well, the hearing of excuses takes a day each for the panels of 250 and his Honour is urging jurors who have not sought to be excused to go home and speak to their families and their employers to make sure that they really are available to serve for four months, particularly given that the matter will go past Christmas.

HIS HONOUR: Yes. Have we identified each of the exhibits now?

MR LASRY: No, your Honour, there is JDS4 - is the judgment of his Honour Mr Justice Hedigan. That is the last of the exhibits in that affidavit.

HIS HONOUR: The only other documents that have been placed before me are the notice of appearance, some fees regulation documents which attached to the fact that the applicant is the holder of a pensioner health benefit card. But I read, I think, in Justice Hedigan’s judgment that there was no dispute but that the plaintiff is an indigent person.

MR LASRY: No, your Honour, that is not within our knowledge but there is no dispute as between the plaintiff and the Legal Aid Office of that fact.

HIS HONOUR: Yes, and you have both the summons and the statement of claim that have been filed.

MR LASRY: Yes, the writ, the statement of claim and the summons that brings us before your Honour this morning.

HIS HONOUR: Very well. We seem to have all the documents identified then. It is always a little tricky because sometimes you can have regard to a document that is not known to both of the parties. That is why I have taken pains to go through the documents in this manner.

MRS FRUGTNIET: Your Honour, may I just say just one little thing? With the synopsis, I am not objecting to it being read but, your Honour, if the prosecutor can concede that he did concede at the trial that that synopsis may not be accurate or something to that effect, your Honour.

HIS HONOUR: It may be sufficiently accurate for the purposes before the Court.

MRS FRUGTNIET: For the purposes of this, yes, your Honour.

HIS HONOUR: I mean, we are not dealing with the trial here, we are dealing with the question of whether a stay order should be made and for that purpose, if there are any identifiable mistakes that you think are important, no doubt you will bring them to my notice.

MRS FRUGTNIET: Thank you, your Honour.

HIS HONOUR: Now, do you have anything in reply to the affidavit of Mr Singh or are all the matters that you wish to put by way of evidence placed in the two affidavits which you have read?

MRS FRUGTNIET: Yes, your Honour.

HIS HONOUR: Very well. Yes, well, what do you have to say, Mrs Frugtniet?

MRS FRUGTNIET: Your Honour, the main documents that I rely on, your Honour, are the judgments of Chief Judge Waldron and Justice Hedigan. The issue that I am raising, your Honour, is that section 360A of the Victorian Crimes Act is ultra vires of the power of the Victorian Parliament to override the principles that the High Court has set out in the matter of Dietrich.

HIS HONOUR: Do you say that Dietrich itself establishes a constitutional principle?

MRS FRUGTNIET: Your Honour, if one looks at exhibit T, that study, and that is all I can go by because I am not a legal person - I am doing the best I can as a lay person - but if you look at that one there, it says there:

The judgment in Dietrich v R raises the arguments concerning fairness of trial; its sources, extent and ramifications.

And then it continues, two paragraphs down. These are the underlined paragraphs. It is the last exhibit.

HIS HONOUR: Yes, at what page?

MRS FRUGTNIET: The first page of it.

HIS HONOUR: Yes.

MRS FRUGTNIET: The underlined paragraphs is what I read first and the next one is:

This concept is crucial to the development by this High Court of certain implied rights and guarantees which are found in or constructed from the Commonwealth Constitution 1901 (Cth) or the common law of the Commonwealth, and the decision in this case is an excellent example of the extent and inadequacies of these protections. It is a powerful decision with potentially far-reaching consequences.

The majority judgments - each of the majority judgments does rely on the fairness of a trial, the right to a fair trial by an accused person, particularly facing serious charges, is implied in the Constitution.

HIS HONOUR: Where is that? I would like to have a reference to that if, in fact, it is there.

MRS FRUGTNIET: Particularly Justice Gaudron’s and Justice Deane’s, on page - - -

HIS HONOUR: Can I put bluntly what my concern is. My recollection is that Justice Murphy, at some stage - - -

MRS FRUGTNIET: Yes, the dissenting judgment of McInnes.

HIS HONOUR: - - - suggested that there was implied in Chapter III of the Constitution certain due process requirements but I did not understand that the majority of the Court in Dietrich had embraced that question. Certainly what they have decided may not deny it but I did not understand that the foundation of the Dietrich decision was a constitutional principle as distinct from a common law principle, and the difference is very important because a common law principle can be overridden by valid State legislation. A constitutional principle cannot.

MRS FRUGTNIET: Well, your Honour, I would submit that the Dietrich ruling does - well, to the common man, to the public at large, everybody believes in a constitutional right to a fair trial. I only understood the difference by having - - -

HIS HONOUR: They may believe it but - - -

MRS FRUGTNIET: But that is the public perception, your Honour.

HIS HONOUR: The public perception does not make the law. The public perception on matters of constitutional law may not be accurate and we have to, in this Court, apply the law, not public perception.

MRS FRUGTNIET: If you look at page 259, your Honour, it does relate to Justice Murphy’s statement in McInnes, the dissenting judgment of Justice Murphy. He said:

Every accused person has the right to a fair trial, a right which is not in the slightest diminished by the strength of the prosecution’s evidence and includes the right to counsel in all serious cases. This right should not depend on whether an accused can afford counsel. Where the kind of trial a person receives depends on the amount of money he or she has, there is no equal justice.
Murphy J goes on to cite a number of the United States cases and Article 14(3) of the International Bill of Human Rights in support of the right to representation being essential to achieve a fair trial.

HIS HONOUR: But I do not think even Justice Murphy appears to have founded on constitutional principle as distinct from a principle of the common law.

MRS FRUGTNIET: No, Justice Murphy was very definite about it being a constitutional right. Australia is also signatory to the International Covenant on Civil and Political Rights and under Chapter III of the Constitution, I think it is section 75, it says that if there is any issue raised by way of a treaty then the original jurisdiction of this Court is invoked, and I believe that - - -

HIS HONOUR: No, but that is irrelevant to the issue. That is simply giving the Court the power to open its doors to you. It does not deal with what law the Court has then to apply when the matter comes before the Court. It may be more helpful to you to argue this point after you have heard what Mr Lasry has to say because he will, presumably, put up his propositions and then you can seek to answer it.

MRS FRUGTNIET: Your Honour, can I just add that Justice Gaudron ‑ ‑ ‑

HIS HONOUR: Certainly, yes.

MRS FRUGTNIET: - - - and Justice Deane’s judgments. You see, it says here:

Gaudron J in Dietrich comes to the same ultimate conclusion. For her Honour, the fundamental right to a fair trial is derived from Chapter III of the Commonwealth Constitution and, as Murphy J held in McInnis, so too Gaudron J finds that ‘the absence of legal representation constituted a serious miscarriage of justice.’

And that is at page 443.

HIS HONOUR: Yes. I think you are right. I am just looking at Justice Gaudron’s judgment in Dietrich at page 362 of the report and her Honour says:

The fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution by Ch III’s implicit requirement that judicial power be exercised in accordance with the judicial process. Otherwise the requirement that a trial be fair is not one that impinges on the substantive law governing the matter in issue. It may impinge on evidentiary and procedural rules; it may bear on when and where a trial should be held; in exceptional cases it may bear on whether a trial should be held at all.

That is what her Honour says at 362 to 363. But the point that I am making to you is that my recollection of Dietrich is that none of the other Justices embraced that idea in the Dietrich decision. This does not necessarily mean that it is not a good argument but I am trying to find what the principle that the Court has adopted is.

MRS FRUGTNIET: Your Honour, I submit that both Justices Deane and Brennan also - each of the Justices in Dietrich did - - -

HIS HONOUR: Justice Brennan was dissenting and therefore, for the purpose of deriving the principle, you have to exclude his reasons.

MRS FRUGTNIET: Right.

HIS HONOUR: So, we are looking at the principles that determine the decision of the majority. So, you have to put out of account, I think it is Justice Brennan and Justice Dawson.

MRS FRUGTNIET: Yes. Well, it says here:

The right of an accused indigent to be convicted only after a fair trial is also the crux of Justice Deane’s judgment.

And there it refers to - well, it says:

The legal source of the judgment will be discussed below.
.....

His Honour refers from the outset to the case of Barton v R which acknowledged ‘an overriding common law requirement that a criminal trial be “fair”’, and that the courts possess all power necessary to ensure that it is received, including a stay of proceedings where necessary.

And that was at pages 385, and 408 and 409 of the Dietrich Case.

In coming to this decision, Deane J refers, as does Gaudron J, to the international context of this issue. His Honour notes that in Ireland, India, Canada, the United States and the European Community (through the European Court of Human Rights) the right to a fair trial in criminal cases is a fundamental human right. Deane J refers to the judgment of Black J (Douglas and Murphy JJ concurring) in Betts v Brady.

And that is a US case, (1942) 316 US 455 at 476.

A practice cannot be reconciled with “common and fundamental ideas of fairness and right”, which subjects innocent men to increased dangers of conviction merely because of their poverty.
Deane J notes also that Australia is a party to the ICCPR and has enacted the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

And then it continues to say:

that these international agreements and instruments are not part of Australian domestic law, and that although they may be utilised in the development of the common law where matters are unclear they are of no great force in this situation.

But I think that that view is not correct, your Honour, because the international community - I mean, the very reason that we are living in this country is because it is a democratic country and because we believe that we will get our fundamental rights and freedoms and that is why we made this our home, and to be denied a fair trial is extremely wrong, I say, in my submission.

Then Justice Deane:

goes on further to postulate three situations where the decision by a trial judge not to grant an adjournment in the absence of legal representation might not be a miscarriage of justice.

HIS HONOUR: Yes, I have seen that in the written material that you have placed. Number one is where the accused elects and that is not your case.

MRS FRUGTNIET: That is right.

HIS HONOUR: Number two is where the accused has the funds, and that is not your case.

MRS FRUGTNIET: Yes.

HIS HONOUR: And number three is where it is a very simply matter, and you say that is not your case.

MRS FRUGTNIET: No, it is a four-month trial with 130 witnesses, your Honour. It can never be seen - with all these issues that I have submitted in my exhibit S as being unresolved matters, that lay people are supposed to tackle, to deal with. I mean, the judge told me that the empanelling process or the excuses of the jury do not require legal representation. As it turned out, two people who were potential jury members caused sufficient furore for the prosecutor, in fairness, to get up on our behalf and submit that they ought to be discharged or to be excused. I would not have known to do anything. I did not say anything when that happened. I was feeling unfairness inside but I did not have the courage to get up and say anything because there was a whole room full of jurors and I did not want to highlight something that would cause even more prejudice to me. So, I think a whole lot of wrong is going to happen if this trial starts, until the threshold issue of representation is resolved. I believe that my right to a fair trial is of the utmost significance to the public. It is in the public interest that this matter be resolved, that this Court deems it to be a definite constitutional guarantee because the public at large - - -

HIS HONOUR: That may be so but at the moment I am trying to establish whether it is a doctrine of the Court.

MRS FRUGTNIET: Yes. Well, I say it is, your Honour.

HIS HONOUR: You say it is but when I look into Dietrich, which is a better source than what counsel or a party says, when I look into the reasons of the Justices, the only Judge of the Court who appears to have embraced the notion that it derives from the Constitution appears to be Justice Gaudron.

MRS FRUGTNIET: Yes, I understand so. But, your Honour, apparently each of the majority - - -

HIS HONOUR: That does not necessarily mean that at some time in the future the constitutional foundation that you argue for may not be established. All I am saying is at the moment, as you come before the Court for this immediate, urgent and exceptional relief, you cannot really point to a decision of the Court that says that the foundation for the right to legal counsel or the right to fair trial is a constitutional principle. That has not yet emerged from the jurisprudence of the Court. It may in the future but it has not yet. That is the only point I am making.

MRS FRUGTNIET: Yes, your Honour, but I submit that each of the majority judgments - I just cannot point my finger to each of them but I will do that while Mr Lasry is talking, I will search for it - does refer to it, so there is an implied right at the moment, I believe, in the Constitution.

HIS HONOUR: Very well. Well, that is the first - - -

MRS FRUGTNIET: Now, the issue to be raised here, your Honour, is to be reminded that after section 360A was enacted - that legislation, if you look at Chief Judge Waldron’s judgment at page 7, your Honour - - -

HIS HONOUR: Now, that is another annexure to this material, is it not?

MRS FRUGTNIET: Yes, annexure W, somewhere towards the middle of my affidavit.

HIS HONOUR: Page?

MRS FRUGTNIET: Page 7 of that.

HIS HONOUR: Yes, I have that.

MRS FRUGTNIET: It gives you the section:

“Section 360A of the Crimes Act was introduced into that Act following on the decision of the Full High Court in the case of Dietrich v R. The purpose of the section is to meet the effect of that decision in circumstances where an accused has been refused legal assistance in respect of a trial. However, although the section in sub s.(1) provides that the fact that an accused has been refused legal assistance in respect of the trial is not a ground for an adjournment or stay of the trial, by virtue of sub. s.(2) the court is given the discretion to order Legal Aid Commission of Victoria” (as it then was, Victoria Legal Aid as it now is), “to provide assistance to the accused where it is satisfied that the court will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial.

Now, your Honour, I would submit - - -

HIS HONOUR: But the section does not oblige a court in Victoria to refuse adjournment or a stay, it simply provides that there is a discretion.

MRS FRUGTNIET: It is a discretion.

HIS HONOUR: If the discretion is exercised in favour of the accused person then there is no conflict, there is no contradiction between - - -

MRS FRUGTNIET: No, your Honour, but this is the exact thing that I am arguing here and that is that the reason why no application will ever succeed is because Chief Judge Waldron of the County Court of Victoria has set in concrete a certain rule or a test called the “triable issue” test and nobody - if you look at all the cases he has referred to, they are all his own cases. There is nobody else’s test that has been - and Justice Hedigan has hedged the issue. He has said he does not quite agree. Maybe he agrees; maybe he does not agree but he will not decide it. But that is directly impacting upon me because I am being denied a right to a fair trial because I am being denied the legal representation that I seek. In the first place it was terminated unfairly because it was terminated on the basis - well let me go first to the - I am sorry, I am all over the place. Now, I had better get better organised, sorry.

Section 360A of the Crimes Act was introduced for that purpose, to overcome the decision of Dietrich, because the High Court said that if you cannot get a fair trial - - -

HIS HONOUR: Yes, I understand why it has come about.

MRS FRUGTNIET: Now, what I submit, your Honour, is that the Chief Judge, who has set the whole test in train, he poses the critical question, and if you turn to page 8, that is where he poses it, whether triable issues should exist. That is basically his criteria for establishing whether or not someone should have a fair trial. Contrary to any other authority, where no triable issue exists but the accused puts the Crown to its proof, it cannot be said that the accused will not receive a fair trial unless he be legally represented in the trial. He quotes the various judgments in the Justices of High Court in the Dietrich Case on previous occasions saying that it was implicit in the observation of the learned Justices that there needs to exist a triable issue for there to be a requirement for the accused to have representation in order to ensure fair trial. He goes on to say where the accused puts the Crown to its proof, it cannot be said:

that lack of representation has caused the accused to ‘lose a chance which was fairly open to him of being acquitted’, or ‘to involve a risk of the accused being improperly convicted’ -

I do not believe that the High Court propounded a triable issue test. I do not believe that the High Court suggested a judge should determine whether there was a triable issue and there always has to be a presumption of innocence. One must understand that Chief Judge Waldron just has a brief idea of the trial from a synopsis prepared by the prosecution and handed up to him, which is the same synopsis which is before your Honour. Now, that does not tell you all the evidence that is going into the trial - what the issues are. In fact, even I am confused because things are coming up as time goes by and we are watching new things emerge like this justiciability issue. That came up with the trial judge putting a proposition and then the Crown and the defence counsel suddenly coming up with these arguments and, “extraterritoriality”, I did not know that word prior to it coming before the - during the course of the pre-trial applications.

So, there are issued that come up which a lay person just cannot deal with. Therefore, it would be unfair to force an unrepresented person on in a trial where these complex issues are cropping up at speed all the time. Now, there is the presumption of innocence and it must prevail. What would happen as a result of forensic examination and re-examination if there was a recapitulation - no, if any of the Crown witnesses were to capitulate as has already happened. The chief Crown witness, Dallimore, in my husband’s appeal at the Court of Criminal Appeal, recanted his evidence he gave. This is all the same evidence that has been put to this particular trial. It is all the same investigation, the same circumstances, facts, investigation, informants, witnesses, everything is practically the same except Melbourne has extra witnesses. That is the only - and there is the question of the financial instruments. Apart from that, everything is the same.

The capitulation of witnesses’ testimony may lead to an acquittal. Why would an accused need to disclose triable issues at this stage? What guarantees are there that issues such as voluntariness on the record of interview of Brian Frugtniet, identification evidence of the voices of the tapes on the issue in respect of Seyfarth. You see, your Honour, this being a conspiracy trial, all these issues affecting the other people apparently are subsequently possibly going to impact upon me and I have no control over it. If these tapes will be accepted, if such witnesses are not going to be examined by competent counsel, I do not know how we are going to adequately argue these issues. The thing is that on those listening device tapes there is challenges by Seyfarth to the warrant. There are arguments as to whether or not Legal Aid should pay for that. Now Legal Aid just came and said, “On the listening devices, we are going to give legal aid.” But the trial is already happening. When are they going to give legal aid. When are these threshold things going to be determined? After the trial is finished or what? There seems to be something terribly wrong with this particular trial.

The things that must start at the beginning are not starting. They are pushing us into something that we do not know what is happening and the next thing we now is that the trial has started and these threshold issues are not argued and then if a jury is going to be for four months in a trial and then keeps getting sent in and out of the courtroom, they will be so anti the accused that we - - -

HIS HONOUR: But that is not unusual in a criminal trial. Jurors are quite often sent in and out as matters are argued and voirs dire are conducted and matters of law are argued or submissions are put that might prejudice the accused. The juries are quite often sent out and they just have to get used to it. In a four-month trial I would expect that will happen many times.

MRS FRUGTNIET: Your Honour, the point to note, though, is that these issues have been identified prior to the trial commencing. I believe that the pre-trial applications were set in train in order to - what do they call that word, to “settle the dust”. Justice Hedigan used a phrase - I am learning as I go from what the judges are saying and if it appears to be that I am suddenly giving very legal things and suddenly not, it is because none of this is my material. It is either copied from judges or judgments or law textbooks. So, even though it may appear that I am a more able litigant than others, it is not the case, your Honour, because I am thoroughly lost. I believe that anything that should be pre-trial ought to be settled pre-trial and the trial ought not to start until these issues are resolved.

Now, if the Crown is going to lead evidence on things like listening devices and so on, I believe that the warrant should be - whatever is questioned about it should be settled. Those warrants were issued in the New South Wales court and it was issued by Justice James of the Supreme Court, the same judge who sat on my husband’s appeal, who heard the same witness that he issued a warrant for. You know, there are issues that are ‑ multiple issues that are coming out of this trial and nobody is resolving it. Everybody is putting it under the carpet. You know, I believe that unfairness has already occurred and it is continuing to occur and it ought not to be allowed to continue to occur.

Another thing is the presentment. When these issues of extraterritorality were raised, if your Honour were to look at the synopsis which has been provided to you by the Crown, it gives you a whole lot of references to distribution and use of this - the alleged agreement to distribute and use these travellers’ cheques in Europe and overseas, yet when the argument came before the trial judge, the Crown then sort of sidestepped from that and said, “No, no, we are not saying that. That is in the synopsis but you can’t take that. You look at the presentment and the presentment doesn’t say that.” Well, what case are we answering here? Are we answering any old story that they are putting to us and do we change as we go? Do we get to the goal and find the goal posts have moved? And we are unrepresented in all of this. It is absolutely wrong what is happening.

Now, what guarantees are there that separate trial applications resulting from prejudicial evidence flowing from the co-conspirators rule being different and hampering other accused cases affecting the trial being conducted. This list is not exhaustive, neither closed, but surely this test is manifestly wrong and it is submitted that the High Court did not propound such a test. At page 9 of the Chief Judge’s ruling it says maybe it needs “to come within the Dietrich ruling” but still continues to canvas the triable issue and suggest the Crown case is strong. So was Mr Dietrich’s case. It was extremely strong but it did not stop a jury from acquitting Mr Dietrich on one of the charges, on count No 4.

In our case, your Honour, there are two counts on the presentment and my particular barrister, Mr Malcolm MacGregor, QC, argued that there is an overlap and there is a duplicitous nature to the second charge or something to that effect which, of course, the trial judge ruled against him. But there is always the possibility that either they will change or that one count and the other count may not, you know - that it is not correctly drafted because one overlaps the other or whatever.

MRS FRUGTNIET: Now, Mr Dietrich’s case was extremely strong but the jury acquitted him on count 4. Surely when does a judge determine the merits of the case when this is a trial by jury. He did not even have the depositions. This is the Chief Judge, acting as the trial judge. He is not aware of what defence witnesses are going to be called. It is a futile exercise to be making such a determination. To conclude that it would be unfair until the conclusion of the voir dire and not thereafter appears to propound the contradiction that it is triable up to the end of the voir dire and thereafter not.

Your Honour, since all these issues still remain after those rulings have been handed down, and given that the trial judge has not decided on certain issues, that is why I annexed those two rulings of the trial judge to my affidavit to demonstrate to your Honour that the trial judge has left it so that the Crown, at the end of the Crown case, can either change its case or can - well, I suppose, ambush three unrepresented accused at the end of the case. What will be do? We do not know exactly. To conclude that it would be unfair to the conclusion of the voir dire and not thereafter appears to propound the contradiction that it is triable up to the end of the voir dire and not thereafter.

To suggest a strong Crown case against two of the accused and not so strong against myself and then say that the one where it is not so strong could also manage, through trial management, further complicates the issue because whether it is strong or weak, this judge is saying it does not matter, in other words.

HIS HONOUR: I realise this case is extremely important for you, your husband and the other accused, and of course it is also important for the community, but when I looked through the papers I counted that there were at least 12 substantial interlocutory proceedings which have been battled out on the way to this trial and you will have seen that one of the judges - I think it may be the Chief Judge - expressed the view that he had formed an opinion that you had been trying every strategy to delay the commencement of the trial. He indicated that that was not a matter which could ultimately determine the exercise of the discretion under section 360A but it would be hard to entirely put out of mind, though perhaps one must, a sense of irritation that such a vast amount of public funds have been expended in 12 interlocutory proceedings that have been fought out by you, your husband and the other co-accused, at great cost to the public purse, at the diminution in the amounts that are available to other people with their legitimate claims to be fairly and legally represented, instead of concentrating on the representation of you at the criminal trial. This is what has happened in your case. You have your rights, but I suppose it is fair to say other members of the community, with a scarce resource, have their rights as well.

MRS FRUGTNIET: Your Honour, there are many findings that have been based on wrong material and irrelevant material ‑ ‑ ‑

HIS HONOUR: There may be, but there have been 12 proceedings ‑ ‑ ‑

MRS FRUGTNIET: No, your Honour, and I would submit that this presentment was done on 19 November 1993. We were committed to trial on 11 December 1992. The Crown did not bring the matter to trial - and in fact sought extensions for the first three years of the proceedings, so that we are looking at a six-year period from now ‑ ‑ ‑

HIS HONOUR: I have read the chronology. I understand what happened.

MRS FRUGTNIET: Yes, your Honour, but I would like to place on the record that the first three years were the Crown’s exclusive delays in this trial and none of the accuseds had any say about it because it was the same Chief Judge who granted the Crown’s extensions one after the other. It was my diligence that brought my husband to an appeals bail situation where this trial could commence in the first place. The Crown could not bring Brian Frugtniet to Victoria in the beginning of 1995 because he was not yet sentenced and he had been convicted. Then the trial came on for hearing on 30 January 1995 ‑ ‑ ‑

HIS HONOUR: Can I interrupt you to say if there is any reporting of this matter, it would be undesirable that there be any reference to the conviction of Mr Frugtniet.

MRS FRUGTNIET: I am sorry, your Honour, I should not mention it, but I think I have to, to you, to explain exactly what the delays were. I would like to place ‑ ‑ ‑

HIS HONOUR: I would just say that it is undesirable there be any reference to that because that could occasion further complications.

MRS FRUGTNIET: On 30 January 1995 is when this trial was first set down for hearing. I had Mr Malcolm MacGregor QC appearing for me. I was ready, willing and able. The Crown sought an adjournment and that is demonstrated on the Crown’s presentment. If you look at JDS1, and in particular the cover sheet of the Crown presentment, it refers to:

30/1/95
Coram: Judge Smith
Further Mention: Trial adjourned to a date to be fixed. Subpoenas also adjourned to a date to be fixed. Costs -

I think that means certificates. I am not sure what that word is -

made & granted on behalf of Seyfarth & Brian Frugtniet due to D.P.P. adjournment request.

So it is the Crown that adjourned the trial on 30 January. At that stage I was ready ‑ ‑ ‑

HIS HONOUR: I realise all this. I have read the chronology very thoroughly.

MRS FRUGTNIET: I know, your Honour, but the thing is that your Honour has put things from Judge Waldron’s ruling. It is unfair to put things on the record and then not make a finding about it because all that happened was that in January 1995 they could not bring Brian to trial. In order to get the arraignment effected I managed to get appeals bail for my husband by organising a barrister, Mr Wendler, to appear for him and Justice Levine of the Supreme Court granted him appeals bail. We then, all three, were arraigned before Judge Smith in April of 1995.

Now, the delays that occurred are not the fault of the accused because each of the accused are entitled to one change of representation and that is all that has occurred. That is that I have had the same barrister right throughout. Brian Frugtniet had two changes and that was the first change was Mr Brezniak, but he had not actually briefed Mr Brezniak. He appeared in the Sydney trial which miscarried due to the lack of preparation on the part of his defence counsel. That is demonstrated by the Court of Criminal Appeal rulings, all of the grounds of which say rule 4 applies. They say the counsel at trial did not raise the issue. Now, you cannot blame him then for not having confidence in that counsel.

He then wanted to have another counsel and the Legal Aid Commission agreed to that course. It was then that this matter arose regarding Mr Howard, because one of the barristers that he rang and had substantive conferences with on the telephone was Mr Howard QC who, two months later, took up the prosecution of this matter as leading counsel. Now, your Honour ‑ ‑ ‑

HIS HONOUR: Mr Howard is not now involved in the matter?

MRS FRUGTNIET: No, he is not. Mr Lasry is, your Honour. So that at least now that matter has been resolved, but it was not, so one cannot blame accused in having concerns when you have spoken about your defence and given instructions to a barrister who later turns around and prosecutes you. I think that is highly improper, your Honour, and complaints were made and the Ethics Committee seems to be looking after their own, if you like, but I believe the Legal Ombudsman has more power than that.

In the meantime, what happened was that the adjournments were sought and properly obtained by various counsel for various defendants, but certainly not for me. I never caused any adjournments to occur. Not one of those was me. Now, when Brian Frugtniet was incarcerated, what they are implying is that because I assisted a man who is my husband of 27 years and he was in hospital suffering with upper lobe pneumonia, that I appeared on a couple of mentions before Supreme Court judges to get the matter moving, rather than having it stagnate waiting for him to come out of hospital. How can that be said to be a delay. That is, in fact, speeding it up. He did not wish ‑ ‑ ‑

HIS HONOUR: I am aware of the fact that not only did you seek at various times to have the matter proceed but you also sought the separate trial of yourself so that whatever was the application against you or the presentment against you, that that should proceed separately ‑ ‑ ‑

MRS FRUGTNIET: Certainly, your Honour, and expeditiously.

HIS HONOUR: So I understand all this, Mrs Frugtniet. I have read the papers quite carefully.

MRS FRUGTNIET: Yes, your Honour. And Brian Frugtniet, I might say for the record, was pursuing his rights, as your Honour found in - that is why your Honour’s judgment is attached. It was the only impartial judgment of the factual background and the fact that here was a man pursuing his rights through the courts. He did not run away, he did not do anything wrong, he did everything that was legally correct and he did not expend one cent of public moneys in doing so. In the interstate transfer proceedings, your Honour, there was not one cent of legal aid paid. If I did not come up to the court, then I obtained on a pro bono basis through justice action, the services of Mr Malcolm Ramage QC, and the services of Clarrie Stevens QC and they gave of their time because they believed it to be in the public interest.

HIS HONOUR: Now, can I explain to you the difficulties that I see that you face in your case so that you can then address yourself to those difficulties. The first I have already mentioned to you and that is that it does not seem to me, as I read the decision in Deitrich, that the holding of the Court, which is the rule that is binding on me as a single Judge of the Court, is a holding which is based upon a constitutional principle. That is problem No 1. That is a doctrine that may at some time in the future develop but you start your application today, as I understand the law, without a clear holding of a constitutional principle and that is important. That is the first point.

The second point is that section 360A of the Crimes Act of Victoria does not of itself prohibit the granting of an order for legal assistance in accordance with Deitrich. It simply gives a discretion and if it is contrary to Deitrich, then the first point is important because if Deitrich rests on a common law basis as distinct from a constitutional basis, it would be competent to the Parliament of Victoria by a valid statute to override it.

The third point is that this Court has repeatedly said that it will not interfere in criminal trials. I think I mentioned that in the decision in your husband’s case. Interfering in criminal trials is reserved to the most exceptional circumstances and there are very good reasons of principle and policy that bind me, and that are observed by all appellate courts in Australia, to interfere in criminal trials only in the last resort.

Fourthly, you would not lose your constitution or common law points or criticisms of the decisions of Judge Waldron or Judge Smith. They would remain available to you to take up in the event that you and your husband, or that you are convicted, to raise the matter in the Court of Criminal Appeal or the Court of Appeal of Victoria.

Now, I know that that is not as good from your point of view as preventing the matter proceeding, but it is often a question to be considered as to whether a person will lose the argument that they are advancing. You may remember in your husband’s case that was one of the questions that was concerning me, whether he would lose forever the argument that he had under the Transfer of Prisoners Act. In this case, you would not lose your argument. You would be able to raise that in the event of a conviction.

MRS FRUGTNIET: Your Honour, I do not believe that I ought to go to a conviction when I am innocent of the crimes alleged. It is not fair ‑ ‑ ‑

HIS HONOUR: I realise that, but you must understand ‑ ‑ ‑

MRS FRUGTNIET: ‑ ‑ ‑to force somebody on unrepresented when one is not guilty. That is just wrong.

HIS HONOUR: Nothing I will say today, Mrs Frugtniet, will be in any way determinative of whether an order should be made under the section. I can well understand the complaint you make of having to face a four-month trial with 100 witnesses, in a complex matter with technical legal question, without legal representation. But what you are asking from me is an order to stay the proceedings which have been ‑ ‑ ‑

MRS FRUGTNIET: No, not stay permanently, your Honour.

HIS HONOUR: No, no, but to stay until this Court has determined the issue. What I am saying to you is that this Court, and other appellate courts in Australia, have said they will not interfere in criminal trials. They will allow those point to be reserved and later to be argued if the criminal trial goes against the applicant. There are good reasons of practicality why this is so from the point of view of an appellate court because ordinarily, or in many cases, problems go away. People are acquitted, cases are abandoned, cases are required to be retried on other grounds, and a Court like this is then not troubled.

MRS FRUGTNIET: So the commonsense of prevention is better than cure does not apply at law, does it?

HIS HONOUR: It does apply, but it is a matter of conserving the very scarce time of this Court, as the ultimate Court of the nation, from interfering in criminal trials. Otherwise we would have every criminal accused coming up here, seeking to raise some point that would found a basis for the Court interfering in a criminal trial. And that just cannot be.

MRS FRUGTNIET: But the point, your Honour, is that this is not an ordinary case, as your Honour yourself observed. It is an exceptional case and the fact that there is this test set in concrete in the State of Victoria about this trial of the issue test. Is everybody going to just sidestep the issue, your Honour, to the detriment of the public in general? It is a public interest question. Surely the community is interested.

HIS HONOUR: No, that issue will not be sidestepped. Sooner or later, somebody will be convicted who says that they did not receive a fair trial, that they ought to have been provided with an order, that the discretion to provide them with the order miscarried, and for that reason they did not get a fair trial and it miscarried because the wrong test was applied. And the Court of Appeal of Victoria will then have the opportunity to determine that question. If, then, people are discontented with that determination, they can seek special leave to come to this Court. But you are seeking to telescope the whole process and jump up here and get an order staying a criminal trial, which I have to tell you is extremely rare. I cannot think of a case where this Court has ordered a stay of the conduct of a criminal trial in order to let a party argue a constitutional point. I cannot think of a single case in 93 years of the existence of this Court.

MRS FRUGTNIET: I am sorry. Your Honour, would this Court then at least have the power to define what is a fair trial?

HIS HONOUR: It would, but in a matter that is properly presented to it. It would normally come to this Court after a trial, after the trial judge has ruled on the matter; after the Court of Appeal or Court of Criminal Appeal of the State has ruled on the matter; the matter then comes up by special leave to this Court. That is the usual way in which these matters come before us. I do want to emphasise that nothing I will say today will seek to discourage the trial judge, if he thinks it appropriate, to provide an order under section 360A, because I can well understand the complaint that you are making to this Court about the unfairness of the procedures that impose on you the obligation of a lengthy, complex, complicated trial. Apart from anything else, it would put tremendous burdens on the trial judge to make sure that you did have a fair trial, although unrepresented.

MRS FRUGTNIET: Can I just complete my submissions, please?

HIS HONOUR: Of course.

MRS FRUGTNIET: I am still on Judge Waldron’s ‑ ‑ ‑

HIS HONOUR: Do you wish to address the matters that I have raised with you, because they are the matters that are going to be the most important in my mind.

MRS FRUGTNIET: Is it possible then to seek a short adjournment so I can put some thoughts together and then read it out to the Court?

HIS HONOUR: I think it would be better, perhaps, if I hear Mr Lasry and then you can perhaps have a think about the points that I have raised and then you can respond to them at the end of Mr Lasry’s arguments. Would that be appropriate?

MRS FRUGTNIET: Yes, all right, thank you.

HIS HONOUR: If at the end of hearing Mr Lasry you feel you need a bit more time, I will provide it to you.

MRS FRUGTNIET: Thank you, your Honour.

HIS HONOUR: Yes, Mr Lasry.

MR LASRY: Your Honour, the summons, as we understand it, before your Honour this morning is one which seeks to effectively delay the commencement of the trial, pending the resolution of the issue that the plaintiff has raised.

HIS HONOUR: Do you know of a case where the High Court has provided a relief of that kind?

MR LASRY: No, your Honour, I do not.

HIS HONOUR: It may have happened, it may be in the nature of such interlocutory matters that they do not get reported, but I do not know of a single case where that has been done.

MR LASRY: No, your Honour, I do not, and the three points that it seemed to use arose particularly to some extent have just been stated by your Honour. But in terms of any delay to any proceedings to enable a constitutional argument to be conducted, there seemed to us to be - and we submit there are - essentially three principles to be discussed. One is whether or not there is a serious question to be tried. Secondly, whether there is some irreparable injury done, in this case to Mrs Frugtniet. Thirdly, it would seem that there is a question of the balance of convenience and, in a criminal trial of course, we would submit the balance of convenience very much weighs in favour of the trial continuing.

I make the point, with respect, your Honour, that this trial, as your Honour has seen from the chronology, has been before the County Court for some two and a half years in one form or another. These proceedings were launched on the last business day before the jury in this case was to be empanelled and some two to two and a half months after the ruling ‑ ‑ ‑

HIS HONOUR: I do not think the plaintiff can be criticised for that, in the sense that she was challenging the proceedings before the Supreme Court and that was only determined, I think, on 11 September, so I do not really think that it can be said that they have delayed their application deliberately or unfairly. They did not know quite how to bring the protest to the Supreme Court. They apparently went an saw a master and the master gave a little bit of advice and then they commenced the proceedings. But as the judge of the Supreme Court mentioned, that proceeding was of necessity limited to the usual administrative law remedies and it did not arguably allow review of the merits of the order.

I have to tell you that I feel a sense of disquiet about having three persons undergo a four-month criminal trial, involving the law of conspiracy, which is notoriously technical and difficult, in a case where they are not legally represented. It is a prospect which I would imagine that you, as prosecutor for the Crown, would also be facing with some anxiety.

MR LASRY: Yes, your Honour, I am.

HIS HONOUR: I would imagine that his Honour is also facing it with anxiety because it would be his duty, as far as fairness permits, to ensure that a fair trial is had.

MR LASRY: Can I say this, perhaps, as a result of what your Honour said, there is, as Mrs Frugtniet told your Honour, an application before the trial judge pursuant to section 360A which has not yet been completed. It would obviously be appropriate that a transcript of what your Honour has just said, and some earlier remarks that your Honour made, be put before his Honour during the course of that application.

HIS HONOUR: I do not think I have said anything remarkable. I have merely indicated the anxiety about a trial of this length with up to 130 witnesses, let it be only 100, being faced by three lay people, although apparently in the case of Mrs Frugtniet an intelligent lay person, in an area of the law which is fraught with complexities and difficulties and with the great expense of a jury trial and the inconvenience to members of the public taking part in a jury trial, having to hear such a lengthy proceeding. If it were a short proceeding, then the issues can be tendered in a much more succinct way and Justice Deane allowed that there might be an exception to the Deitrich principle in terms of simple matters. But there is no way this could be described as a simple trial.

MR LASRY: No, your Honour. As your Honour realises, the debate has essentially been between the accused and Victoria Legal Aid who have taken the position that they have in each of these applications.

HIS HONOUR: It is more the vision of the jury sitting there, and of the community which is notionally in the back of the court sitting there, in a trial where the Crown is well lawyered and the accused are sitting at the other end of the table without a lawyer, a single lawyer.

MR LASRY: It is not a vision that appeals to me either, your Honour.

HIS HONOUR: If our system of justice were the inquisitorial system, it might be different, because there you build into the judiciary the procedures for the defence of the fairness of the trial to ensure that all relevant matters come out. But our system is accusatorial and adversarial.

MR LASRY: However, in summarising the matters that were concerning your Honour, your Honour dealt with essentially the matters that we had sought to raise in terms of ‑ ‑ ‑

HIS HONOUR: Am I right in saying that Justice Gaudron is the only Justice in Deitrich who has referred to a constitutional principle? Did Justice Deane refer to it?

MR LASRY: Justice Deane also, your Honour.

HIS HONOUR: Where is that in Justice Deane’s judgment?

MR LASRY: In Justice Deane’s judgment at page 326, I think it is. The very beginning of his judgment his Honour says, near the top of the page:

The fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law. In so far as the exercise of the judicial power of the Commonwealth is concerned, that principle is entrenched by the Constitution’s requirement of the observance of judicial process and fairness that is implicit in the vesting of the judicial power of the Commonwealth exclusively in the courts which Ch. III of the Constitution designates. Strictly speaking, the requirement that the trial of a person accused of a crime be fair, being a legal one, is encompassed by the requirement that such a trial be in accordance with law.

HIS HONOUR: Now, this is a case where the judicial power of the Commonwealth is invoked, is it not?

MR LASRY: Your Honour, not quite, in the sense that the Commonwealth Director of Public Prosecutions prosecutes this matter, I suspect, by virtue of the fact that the original investigation was conducted by federal police, but the charges before the court are State charges.

HIS HONOUR: Let us not get into the arcane area of the Commonwealth judicial power because that would certainly be a matter that a lay person could not argue very comfortably.

MR LASRY: No. I am not trying to confuse it, your Honour, but your Honour asked me a question which I have endeavoured to answer. That, as far as I am aware ‑ ‑ ‑

HIS HONOUR: The original charges were under the Commonwealth Crimes Act?

MR LASRY: No, I believe all charges that have ever been laid have been State charges. The original charges were conspiracies to defraud, I think, American Express. There has been a revision of the charges ‑ ‑ ‑

HIS HONOUR: I thought the instrument to charge - was that not a Commonwealth offence?

MR LASRY: No, they are State offences, your Honour. They are - the make and use false documents are both said to be breaches of the Victorian Crimes Act.

So the question then arises - the difficulty that we have, and it is a difficulty occasioned by Mrs Frugtniet being unrepresented before your Honour, is that it is not clear, and cannot be clear from her material, the basis on which it is suggested - the logical basis on which it is suggested that a right to a fair trial is implied in the Constitution. She relies, of course, on Deitrich, but as your Honour has observed in the course of argument, that is not the principle for which that case stands.

HIS HONOUR: But it is still the majority ‑ ‑ ‑

MR LASRY: It is your Honour, yes.

HIS HONOUR: And the majority, was it five Justices in the majority?

MR LASRY: Yes, your Honour, it was his Honour the Chief Justices and Justices Deane, Toohey, Gaudron and McHugh were the majority and both Justice Deane and Justice Gaudron, of course, were in the majority and Justice Gaudron quite clearly takes a robust view of the effect of Chapter III of the Constitution. But that in turn raises, of course, assuming that there is such an implied right, the question, initially, as to what the limits or parameters of that right are: are they absolute; are there qualifications to that right of the kind that were referred to in the course of the judgment in Dietrich. Essentially, the judgment of the Court in that case referred to circumstances being exceptional. If there are qualifications to the implied right, what are they?

Despite your Honours observation to me a moment ago, it might well be a question of whether there is an application to State offences although I would have to say that the likelihood is that, logically, such an implied right might well apply to State offences and, finally, another question on which your Honour has touched on is whether or not section 360A interferes with any such implied right, and if so, how does it do it? Because as your Honour observed, that section contemplates fair trials. It contemplates that a trial judge will ensure a fair trial subject to a discretion. The principal effect of section 360A, in our submission, is to place in the control of a trial judge the ability to make orders for legal representation where, to him, that appears to be an appropriate course for the purpose of ensuring a fair trial.

This argument, we would submit, is essentially - although it is not expressed in the relief sought in the documents, but essentially becomes an attempt to appeal the ruling of the Chief Judge and the ruling of Justice Hedigan because Mrs Frugtniet inevitably raises issues which, in our submission, generally are not relevant to the question your Honour has to resolve which is whether or not this trial should be adjourned pending the resolution of these matters.

HIS HONOUR: That argument is, of course, powerful, overwhelmingly powerful, where a trial is going to take three days, one week, two weeks, three weeks. But here, with a trial of four months, to submit people to such a trial without legal representation in a case which has the potential for considerable complexities is at least arguably in a different class.

MR LASRY: I agree with that, your Honour. It clearly is but as your Honour observed, even in those circumstances, the damage will not be irreparable. It would certainly be a burden but it will not be damage which is irreparable because the rights of the plaintiff remain upon conviction. She is entitled to raise these issues before the Victorian Court of Appeal and if necessary by an application for special leave to this Court and I suppose that raises the question of both irreparable damage and whether there is any done to her by the trial proceeding and also questions of balance of convenience. But, your Honour, in order to ‑ ‑ ‑

HIS HONOUR: A problem that worries me about the notion of which the section envisages that you can make an application at any time during the trial is, if this were a three-day trial, you could expect a short adjournment and counsel to get the matter up overnight. But with a four-month trial, and particularly one which was in an advanced stage, that would be requiring heroic ability on the part of counsel or a legal representative to come in at a later stage to fairly represent an accused person. It seems, as a matter of practicality, that the decision under the section has or ought to be made before the trial really gets under way.

MR LASRY: Yes, your Honour.

HIS HONOUR: And that is essentially what, as I understand it, is the ‑ ‑ ‑

MR LASRY: That will happen.

HIS HONOUR: - - - purpose of the applicant’s application to me, to try to get a focus on this issue before the matter gets to the point where effectively the right to competent legal representation throughout the trial is lost.

MR LASRY: I am sure that is the purpose of the application, but the question that your Honour has to determine, among others, is whether there is a basis on which it might be held, that this section is not constitutional and, among other things, Mrs Frugtniet might wind up in the position where she effectively has to demonstrate, in order to succeed on the application today, that but for section 360A , assuming the assertion that it is unconstitutional and in conflict with Chapter III of Constitution, she would have otherwise been granted legal aid.

We would take issue with that, but we are not in a position to conclude that issue but she would need to be able to demonstrate that but for that section, and assuming it is lack of constitutionality, she would have legal representation. In the absence of a demonstration of that proposition, we would submit, your Honour would not proceed to grant the relief that she seeks today. Now, there is a proposition, in my submission, she would have to contend for is not demonstrated on the material and it can be perhaps summarised in this way - and perhaps I really need to take your Honour to the ruling of the Chief Judge.

HIS HONOUR: Yes. I did not have this before this morning because I only had the note of it in the judgment of the Supreme Court of Victoria. This is exhibit W to the recent affidavit by Mrs Frugtniet.

MR LASRY: Yes, I refer to that, your Honour.The plaintiff’s position is dealt with at page 11. I am happy to read it to your Honour or summarise it, whichever is most convenient.

HIS HONOUR: Just let me get that. Page 11, yes, which paragraph?

MR LASRY: Well, it commences with the words “I come finally to the accused Suzanne Frugtniet” and then finally ‑ ‑ ‑

HIS HONOUR: I must have the wrong document. Just let me get this. This is the one that it begins “Ruling - a number of applications pertaining” ‑ ‑ ‑

MR LASRY: Yes, your Honour.

HIS HONOUR: Page 11 of that document. Yes, I see. Yes, thank you. I will just read that.

As I said to Mrs Frugtniet, I can understand the sense of irritation, even judicial irritation, about the large numbers of applications and even, perhaps, a conclusion that this had been deliberately and calculated to frustrate the trial process as Judge Waldron states, but I question whether that is relevant to the exercise of the discretion under the section, because it is focused on, and only on, the fairness of the trial that the accused will have in the criminal trial. That requires a new refocussing of attention on something which is not only important to Mrs Frugtniet but also to the community.

MR LASRY: Yes. Your Honour, as I follow it there are two aspects to the decisions - this decision of the Chief Judge and others that he has made. His Honour generally has sought to give some form to the meaning of what is involved in ensuring a fair trial and when is it necessary for a judge to take the step under section 360A to ensure a fair trial. It is true that what he has done is then asked himself the question, is there, what his Honour called, “a triable issue”. If the answer to that is, no, and if the answer is that the case, effectively, is one in which the accused are doing no more than putting the Crown to its proof, then that is not a triable issue and an order under section 360A is not made.

HIS HONOUR: But is not this passage indicative of the fact that at least Mrs Frugtniet claims that her situation is different from that of the other accused and that, therefore, vis-a-vis herself, there is going to be some sort of triable issue as to her involvement in the conspiracy and whatever may be the rights of the other accused, if that is, in essence, her defence, she would certainly be at a disadvantage if the evidence on the conspiracy were not scrutinised and tested thoroughly as to how much of it touches her.

MR LASRY: Yes. Your Honour, the relevant part that I, perhaps, rely on is the passage in the middle of the large paragraph on page 11 where his Honour says:

However, in my judgment, other relevant matters do exist in her case and must be brought into account. As I have observed earlier, on the evidentiary material placed before the court, namely, the chronology prepared by the Crown (Exhibit B) and the affidavits of Ms Crundall and their exhibits, I am satisfied that Suzanne Frugtniet along with her two co-accused, has deliberately and calculatingly combined to frustrate the trial process in this trial with the objective of avoiding the force of the prosecution against them. As a result, approximately $157,000 has been expended to date on Suzanne Frugtniet’s defence.

HIS HONOUR: Again, I repeat that I can understand that that would be a source of irritation but query whether it is a matter relevant to the exercise of the discretion to ensure that Mrs Frugtniet has a fair trial of the offences as distinct from her conduct post offence.

MR LASRY: Quite, your Honour. Now, if we took section 360A out of the equation altogether and debated the issue in relation to the judgment of this Court in Dietrich, the likelihood is, and again this is hypothetical and it is not a role that the Crown is involved in, that Victoria Legal Aid would be submitting, in terms of any application for a stay, that there were, in this case, exceptional circumstances. The exceptional circumstances, no doubt they would say, would be the conduct of the accused.

Now, ultimately, whether or not that would result in a stay not being granted by a trial judge, would remain, of course, to be seen. There would be a clear issue as to whether those were the kinds of circumstances that this Court considered were exceptional when it was resolving the issue in Dietrich’s case, and I agree that they are not the circumstances that Justice Deane referred to in the course of his judgment. But that would be the debate in the absence of section 360A.

I say all that, your Honour, simply for this purpose, that for the purpose of this mornings application, our submission is that Mrs Frugtniet needs to be able to demonstrate that, but for the section, she would otherwise be represented. We would submit that that does not follow at all - not that she has demonstrated that. If the position is that that is not able to be demonstrated then that would be, in our submission, another reason why your Honour would not order that the trial not proceed until this matter had been resolved.

HIS HONOUR: I am not sure about that because Dietrich does say that ordinarily, in a serious criminal trial, a person needs legal representation given our system of criminal justice and then three exceptions were allowed and they do not apply here. Whatever may be the situation, whether a one‑week or a three-week case, it is the length and complexity of this case that causes me concern. But, as against that, I do not know of another single case where this Court has interfered. The constitutional law that is invoked is, at best, still undetermined and the damage is not irreparable. Even recently in Elliott’s Case the Court has held its hand up against disturbance by the appellate process of criminal trials.

All of these are injunctions of caution, but I am still left with a sense of anxiety that without legal representation this trial will get under way and it will not look as a criminal trial in Australia should look, with that element of fairness that Dietrich was determined to ensure. At one end of the table will be three, possibly more, lawyers for the Crown; at the other end of the table will be three unrepresented accused.

MR LASRY: Yes. Well, as things presently stand, your Honour, that will be the picture.

HIS HONOUR: Now you are representing today, not only the Director, but also the State of Victoria, which may have a position somewhat different. You are in your role as Director and, if I can say so, Mr Lasry, you have exercised very properly, acting in a way that is entirely neutral in the tradition of the Crown.

The State of Victoria may have a slightly different interest to uphold the validity of this Act and the policy that stands behind it which is designed, as I understand it, to respond to the Dietrich decision. If it be possible, is there anything you want to put wearing your more aggressive hat, in that regard?

MR LASRY: No, I do not. There certainly would be at any subsequent proceedings but I have no other instructions from the State of Victoria.

HIS HONOUR: It is possible that the State might have to be separately represented because its position may not have the same colour of neutrality as the Crown will traditionally take.

MR LASRY: I think that is so. I think the Director of Public Prosecutions and the State of Victoria agree on this preliminary issue but there may be a separation subsequent to that.

HIS HONOUR: Yes, I understand that.

MR LASRY: Your Honour, in essence, they were our submissions unless there were matters that your Honour wished to raise with me.

HIS HONOUR: No, I think you have responded to my concerns.

MR LASRY: If you Honour pleases.

HIS HONOUR: Mrs Frugtniet, there is one preliminary matter I wanted to ask you. Did your husband and the other accused know about these proceedings? They are not parties to it. You are simply appearing for yourself, but they could be affected by the proceedings. Are they aware of the proceedings before the Court?

MRS FRUGTNIET: Yes, they are aware. The reason I only did it on my own ‑ ‑ ‑

HIS HONOUR: I am not asking you to explain the reason. You are entitled to bring any matter before the Court that you want to on your own. I am just wanting to satisfy myself that they are aware that you are here seeking a stay of a trial which, for all I know, they may want to have - press on and have come to a conclusion.

MRS FRUGTNIET: No, your Honour, they are just as concerned about the representation. To be a lay person trying to bring an application, it is much easier to have one plaintiff than three plaintiffs and then all the documents and we do not have facilities for photocopying and so on, plus all three are in a trial locked in a courtroom. It is sort of very difficult for one, much less three, so all three are agreeable and the counsel who gave some advice said to me that if one person applies, that is good enough, it would assist all three.

HIS HONOUR: Yes. You heard what Mr Lasry said and I think he put it very fairly. Is there anything that you want to say in response to what he said or in elaboration of your answer to what I earlier put to you? I see you have somebody behind you who appears to be looking through a law book and although you have been declined legal representation and although, it seems, the judge has declined to allow you to have a McKenzie friend, perhaps, I take a more generous view on these matters. If there is anything that your adviser would wish to say to assist the Court I would be prepared, subject to anything Mr Lasry says, to hear him.

MRS FRUGTNIET: You have made him blush, your Honour. He does not want to - sorry.

HIS HONOUR: You are doing a pretty good job so far, Mrs Frugtniet. It does seem as though you have had quite a bit of experience.

MRS FRUGTNIET: Well, I have had - I have only had some assistance, but from people with legal minds, have put things together. A lot of what I have read is basically - well that is by a law student, who is my brother‑in‑law who was the McKenzie friend I tried to invoke. But in view of the fact that the trial judge did not allow him, he did not want to come all the way to Sydney, because he lives in Melbourne, and then find that he is not allowed to talk on my behalf.

It is just to say that that section effectively takes away the common man’s right to a fair trial because in Dietrich the High Court, this Court, said that if the Court is unable to ensure that you have a fair trial, it must stay the proceedings. Now, it did not give a discretion. It said if it is not fair there is no other result than to stay the proceedings.

Section 360A is effectively taking that out. In subsection (1) it says that the trial judge has no power to stay the proceedings and subsection (2) says “instead of staying the proceedings, what you do is this” but it does not say what you must do - what you may do. When the judge is assessing how he may come to that conclusion he is using a different criteria to that of what is a fair trial and is this person going to have a fair trial. He is using different considerations when coming to the conclusion that he does and that is what takes away the fairness. You are getting unfairness before the unfairness of a trial, in that, people are taking away your rights to a fair trial. The thing I want to ‑ ‑ ‑

HIS HONOUR: That is not quite so because subsection (2)(a) says that:

If the Court is satisfied.....that it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented.....the court may order - - -

MRS FRUGTNIET: “May”, that is the word: “may”. So even if it is unsure ‑ ‑ ‑

HIS HONOUR: But the criterion for ordering it and the criterion for the exercise of the discretion, as I read the subsection, and without full argument on it, remains the Dietrich criterion: will the accused receive a fair trial if the accused is not legally represented and if the accused will not, then the court may make an order which has the effect, in a sense, of burdening the consolidated revenue.

MRS FRUGTNIET: Well, what I say, your Honour, is that by giving the judge the discretion to grant the legal aid, the judge then goes into an area of assessing - in fact that is what has been done in practice. The only record of these applications are the ones before Chief Judge Waldron and he has set this test which has prevented many people from obtaining legal representation.

Your Honour, all I was asking was for an adjournment. I believed that on 3 October this Court could have heard this matter and that was all the ‑ ‑ ‑

HIS HONOUR: On 3 October this year?

MRS FRUGTNIET: Yes, that is what I thought.

HIS HONOUR: The list for 3 October is already fixed. The list for virtually the whole of this year is already fixed and a matter of this kind, if the substance were heard, would normally have to be heard by a Bench of seven Justices because it raises the Constitution and, having regard to the pending retirement of Justice Toohey, that could not be done until next February or later. So that is another problem of convenience that stands in the way of interference by order of the Court.

MRS FRUGTNIET: Your Honour, I think that the High Court ought to ensure that unfairness does not arise and, in some way, just a temporary stay may be direct ‑ ‑ ‑

HIS HONOUR: You make it sound so little but it is something that has never been done in the history of this country. That does not necessarily mean that it is not appropriate to do it now, but it is not a little thing and the Court has said many times that it will not and ought not to interfere in the conduct of criminal trials.

MRS FRUGTNIET: But, your Honour, if it is to prevent an unfairness from - from creating an unfairness then I ‑ ‑ ‑

HIS HONOUR: In the theory of the law, you are not deprived of the chance to make a complaint about that. You can make that complaint later if it is still relevant at the end of the trial.

MRS FRUGTNIET: But it will not be relevant. You have taken away - the right to a fair trial with legal representation happens before the trial, not after, your Honour.

HIS HONOUR: If it resulted in an unfair trial then that is a matter that you could take to the Court of Appeal and if that was the conclusion that was reached by the Court of Appeal it could quash any conviction that followed the unfair trial.

MRS FRUGTNIET: Yes, but the thing is - so there is no presumption of innocence ‑ ‑ ‑

HIS HONOUR: You say you should not be subjected to that procedure.

MRS FRUGTNIET: No. Nobody should, your Honour.

HIS HONOUR: I understand that, but it is a very serious matter for any court and very exceptional, indeed unique, for this Court to interfere in the conduct of a criminal trial which is in the charge of a judge and is almost in the charge of a jury.

MRS FRUGTNIET: Well, the judge is able to grant a short adjournment, is not he?

HIS HONOUR: You are entitled to make application to the judge.

MRS FRUGTNIET: Well, he has refused me that adjournment.

HIS HONOUR: But as I understand it, you still have before the judge an application under section 360A.

MRS FRUGTNIET: To be heard when?He has not given us any date. We have given our written submissions and when are we going to hear it?

HIS HONOUR: I would have assumed that his Honour would hear that application before the trial begins.

MRS FRUGTNIET: Well, that is what I would have expected but we do not know what is happening, your Honour, and that is the difficulty.

HIS HONOUR: You can make application to his Honour for that purpose.

MRS FRUGTNIET: Yes, but he did not set a date.

HIS HONOUR: That is a matter that is in his charge.

MRS FRUGTNIET: Well, I was just seeking relief. I understood from my inquiries with the Registry and I understood that the matter would come on on 3 October. I had no intention of getting a stay until February, your Honour. It was an intention only to get it for a couple of weeks so that we get, hopefully, either the order or get something resolved whereby we get legal representation. Malcolm MacGregor is my QC and he is prepared, he is fully able to understand this case but he has taken other matters because he has been messed around so much in the last couple of years, your Honour, so ‑ ‑ ‑

HIS HONOUR: There may be some misunderstanding about the October date. It may be that some date has been notified to you which would be the date of the return of the proceedings for mention in this Court, but there is no way that the matter could be listed for hearing in October, no way at all. It could not be heard until next February and then only by orders of expedition so that we have to face the reality that if you were granted the relief that you sought, the matter would not be heard until next year and that effectively, therefore, we would be delaying the criminal trial until after that then there would have to be time for the Court to consider its decision. So we are effectively talking of a very long delay.

The experience of judges, especially appellate judges, reinforces the principle of restraint in interfering with criminal trials. The reason is that many problems go away and then appellate courts are not troubled. That is one of the reasons why courts say cases that are in the charge of the trial judge should proceed at the trial level and only if it is still relevant will the matter come up the ladder to the High Court.

MRS FRUGTNIET: But, your Honour, this did not come up by the trial judge. This is the Chief Judge who did all this, not the trial judge.

HIS HONOUR: Yes, I know all this, Mrs Frugtniet, but he did it as an adjunct to the trial. Now, is there anything else that you wish to say?

MRS FRUGTNIET: No, your Honour. Thank you very much for hearing me, your Honour.

HIS HONOUR: Not at all, that is my duty.

MRS FRUGTNIET: Thank you for the comments you made. I am sure they will be helpful for me.

HIS HONOUR: It is my duty. Yes, is there anything new that comes out of that?

MR LASRY: Your Honour, I just wanted to raise one matter which I omitted. It really does not bear on the issue, but I am specifically asked to say this to your Honour. Reference was made to the conduct of Mr Howard QC who was the prosecutor in the matter before I was briefed. Can I just say this to your Honour: a complaint was made about Mr Howard’s conduct and that complaint was determined by the Ethics Committee of the Victorian Bar and determined completely in his favour. I am simply asked to say that to your Honour so that it is recorded to complete the issue raised by Mrs Frugtniet.

HIS HONOUR: Yes. Well, it is not really a very relevant matter in these proceedings. It was only one of twelve interlocutory applications that I have counted.

MR LASRY: Yes, your Honour.

MRS FRUGTNIET: Just as an adjunct to that, your Honour, the point is that whatever submissions Mr Howard put in response to the complaint were never provided to Brian Frugtniet by the Ethics Committee of the Victorian Bar.

HIS HONOUR: I am not concerned in that matter. It is really not relevant to the matters that are before me. Well, I will adjourn briefly then I will come back within 20 minutes or so to announce what orders are made. Court will adjourn.

AT 11.24 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.09 PM:

HIS HONOUR: A summons is before me. It has been returned with expedition. It concerns a request for an order from this Court to stay the commencement of the trial of a person in the County Court of Victoria. That trial is expected, unless stayed, to commence in Melbourne in the middle of next week. Only one of three persons presented for trial, Mrs Suzanne Frugtniet (the plaintiff) has applied for the stay. However, I am prepared to assume that the other accused, who are not represented before me, know of her application and either support it or do not oppose it for, in material respects ,their positions appear to be similar.

Application for declarations of constitutional right

The plaintiff appears in person. She claims the stay to allow this Court to hear and determine certain points presented for decision by a statement of claim which has also been filed in the Court. That statement of claims seeks two declarations, namely:

1. A declaration that sections 360A(1) and (2) of the Crimes Act 1958 (VIC) as amended by section 1 of the Crimes (Criminal Trials) Act (VIC) is contrary to the implied Constitutional guarantee in Chapter III of the Constitution of a Constitutional right to a fair trial and therefore are invalid.
2. A declaration that the Court is unable to ensure that the Plaintiff will receive a fair trial without legal representation and in those circumstances stay the further proceedings until such time as legal representation is available based on the principles as set out by this Court in Dietrich v The Queen (1992) 177 CLR 291.

The first declaration purports to present a matter arising under the Constitution and involving its interpretation. See Judiciary Act 1903 (Cth) s 30. It is raised in a matter which is also said to engage the diversity jurisdiction of this Court under section 75(iv) of the Constitution, the plaintiff being ordinarily a resident of the State of New South Wales and one of the named defendants being the State of Victoria. The other defendants are the judge assigned to conduct the plaintiff’s trial in the County Court of Victoria, his Honour Judge Anthony Smith, who has submitted, and the Director of Public Prosecutions for the Commonwealth.

The second declaration appears to do little more than to refer to the foundation for the plaintiff’s argument for a stay, namely the decision of this Court in Dietrich v The Queen (1992) 177 CLR 292. However, it signals the contention which the plaintiff has advanced, namely, that without competent legal representation in her pending trial, she will be denied her right to have a fair trial in compliance with the holding of the Court in Dietrich. Because she asserts that such right is grounded in the implications to be found in Chapter III of the Constitution, and not simply in the common law, she has submitted that any legislative provision which purports to limit or prevent the attainment of that right is unconstitutional and thus of no legal effect. According to her, section 360A of the Crimes Act 1958 (Vic) is such a provision. It is pursuant to that section that orders have been made which the plaintiff contests.

A sage of criminal litigation

The affidavits read in support of the application reveal a remarkable saga of litigation which has occupied the time of the Magistrates’ Court of Victoria, the County Court of Victoria, the Supreme Court of Victoria, the Supreme Court of New South Wales and even this Court. See Frugtniet v Attorney-General for New South Wales (1997) 71 ALJR 810. So many, varied and persistent have been the preliminary and interlocutory proceedings that the Chief Judge of the County Court of Victoria, his Honour Chief Judge Waldron, observed that all three accused, including the plaintiff, had “explored every opportunity in the trial and in the New South Wales courts with the calculated judgment to delay the expeditious disposition of their trial.” The Chief Judge also concluded that “all three accused had deliberately and with calculation combined to frustrate the trial process with the objective of diluting the effectiveness of the prosecution, squandering vast public funds in the process”. The “public funds” referred to are the legal aid funds which, until recently, were provided to the plaintiff and her co-accused. They have now been withdrawn. Of course, the plaintiff contests the Chief Judge’s description of the earlier proceedings. She suggests that they represented no more than proper attempts by the accused, including herself, to uphold and defend their legal rights.

The plaintiff has been presented for trial with her husband, Mr Brian Frugtniet, and another co-accused, Mr Edward Seyfarth. They are jointly charged upon two counts of conspiracy, namely, to make and use counterfeit American Express travellers cheques and to induce others, to their prejudice, to accept such cheques as genuine. The preliminaries to the trial of those charges actually commenced on Monday last, 15 September 1997, when the selection of the jury was begun before Judge Smith. That process has continued. However, it was delayed, remarkably enough, by the fact that each of the large panels of jurors in waiting included a person who was said to have known one of the accused. Accordingly, the process of jury selection is to commence again tomorrow morning. In the interval, the plaintiff has returned to Sydney to argue this application before me.

The plaintiff was first served with a summons in July 1992. She immediately applied for ,and was granted, legal aid by the Legal Aid Commission of Victoria, now known as Victoria Legal Aid. It was not disputed then, or since, that the plaintiff is indigent. The plaintiff is apparently in receipt of social security benefits as her only source of income. Her property, if any, is not detailed but it is accepted to be modest. The plaintiff was provided with a solicitor in the employ of Victoria Legal Aid at the committal proceedings between August 1992 and December 1992. At the conclusion of those proceedings, on 11 December 1992, she was committed for trial in the County Court. The counts charged were originally of making and using false instruments. Subsequently, they were altered to the two conspiracy charges which she now faces.

The trial of the plaintiff and her co-accused was assigned in
December 1994 to Judge Smith. There were delays in the commencement of the trial. The plaintiff applied, unsuccessfully, for a separate trial. This was the first of many interlocutory applications concerning the accused in all or most of which, until recently, they were represented by legal practitioners provided by Victoria Legal Aid. I will not detail them all. However, they appear to have included:

(1) Proceedings concerning the provision of submissions and the production of documents;
(2) An unsuccessful application for the trial judge to disqualify himself for alleged bias;
(3) The conduct of an extensive pre-trial voir dire;
(4) An inquiry into the withdrawal of the original legal representatives of Mr Frugtniet;
(5) A challenge to the conduct of the proceedings by the then Crown Prosecutor, since changed;
(6) An adjournment of the trial by reason of difficulties which Mr Frugtniet had in New South Wales referred to in my earlier judgment;
(7) A renewed but equally unsuccessful application for the severance of the trial of the plaintiff from that of her co-accused;
(8) An application for review of a legal aid decision in the Supreme Court of Victoria;
(9) A reconsideration of the withdrawal of legal aid funding for the trial by the Legal Aid Review Committee of Victoria;
(10) The conduct of plea negotiations;
(11) The hearing of a renewed application for an order for legal assistance for the trial under section 360A of the Crimes Act decided by Chief Judge Waldron; and
(12) Upon the adverse outcome of that application, an application to the Supreme Court of Victoria for judicial review.

The last mentioned application was dismissed on 11 September 1997 by Justice Hedigan. Accordingly, last week, the trial seemed, at last, set to commence on 15 September 1997. Then came the application to this Court for a stay to permit the constitutional challenge first to be heard.

Suggested unfairness of a trial without representation

Section 360A of the Act was apparently a response by the Parliament of Victoria to the decision of this Court in Dietrich. The section reads as follows:

(1) Subject to sub-section (2) and despite any rule of law to the contrary, if -
(a) a person is committed for trial; or
(b) a presentment has been filed -
the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.
(2) If a court is satisfied at any time before or during the trial that ‑
(a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b) the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial -
the court may order Victoria Legal Aid to provide assistance to the accused, on any conditions specified by the court, and may adjourn the trial until such assistance has been provided.
(3) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under sub-section (2).
Victoria Legal Aid having withdrawn legal aid to the plaintiff for her defence at the trial, she complains that the result of the adverse decision under s 360A will be a denial of her right to a fair trial which the application of the provisions of the section will purportedly permit. This is the context for the plaintiff’s challenge to the validity of the section which she wishes to agitate before this Court. She argues, in effect, that it is grotesque to require her to undergo trial without legal representation provided by legal aid. In defence of her rights she seeks this Court’s intervention. In support of her application, she relies, amongst others, upon the following considerations:

(1) The suggestion in Dietrich that all persons in Australia facing serious criminal charges on indictment have a right to a fair trial enforceable by the entitlement of trial judges to stay or adjourn proceedings where a person is unrepresented and where representation is essential to a fair trial. In particular, the plaintiff relied on the remarks of Justices Deane and Gaudron in Dietrich that a constitutional foundation exists for that principle;
(2) The complexity of the law of conspiracy and of the procedures of a long trial before a jury where the accused is unrepresented and has not elected that course;
(3) The lack of legal training on the part of the plaintiff or the other co-accused and the fact that she deposes to confusion and nervousness when taken away from notes of argument. She also relies upon an apparent refusal of the trial judge to permit her to have the assistance of a brother-in-law, who is said to be a law student, who was willing to assist her in the capacity of a McKenzie friend;
(4) The estimated duration of the trial of four months and the number of witnesses named by the Crown in its notice of witnesses which is said to be between 100 and 130;
(5) The suggested differences between the respective Crown cases against the plaintiff, on the one hand, and the other accused, on the other, which competent counsel could elicit and develop in defence of the plaintiff’s separate position; and
(6) The reported statements to the plaintiff by senior counsel representing her at a time when she was afforded legal aid that, properly represented, she would have every prospect of acquittal.
It is important to appreciate that I am not in these proceedings deciding the plaintiff’s constitutional challenge. In the ordinary course the challenge raised by her statement of claim would, in the ordinary course, be listed for directions at a later time. Orders would then be made for the hearing of the statement of claim, for its remitter to another court or for other relief in respect of it. The only question that is now before me is whether the nature of the claim foreshadowed in that document and the circumstances facing the plaintiff in the pending trial justify her application for an immediate but temporary stay which she seeks.

Reasons for refusing a stay of the criminal trial

In my opinion they do not. My principal reasons are as follows:

(1) The holding of this Court in Dietrich does not, at least as I now understand it, appear to be grounded in a constitutional principle. As expressed in the majority reasons, the decision relates to the power of a judge at common law, faced with an application by an indigent accused, to grant an adjournment or stay of a trial hearing. For a constitutional principle, the plaintiff would have to persuade the Court to express a new principle not yet upheld by a majority of the Court. The capacity of Chapter III of the Constitution to give rise to important constitutional implications cannot be denied. Its potency for an implication of due process rights has been foreshadowed by some Justices including, in this context, by Justices Deane and Gaudron. However, nothing so far decided by this Court affords the plaintiff a certain constitutional foundation for the first declaration claimed by her. She therefore has some way to go in her litigious journey before the principle which she invokes could be said to be the law of Australia. I do not wish to be taken as denying her proposition. I could scarcely do so in the face of the dicta of Justice Deane and the holding of Justice Gaudron in Dietrich’s Case. However, the constitutional proposition advanced by the plaintiff has not yet emerged as an established constitutional doctrine.
(2) The provisions of s 360A of the Crimes Act do not purport to oblige a court in Victoria to refuse an adjournment or stay of a trial in conflict with the plaintiff’s suggested “constitutional right”. The section merely affords a judicial discretion to do so. This Court, at least in proceedings of the foreshadowed kind, would not, as such, be reviewing the exercise of that judicial discretion. Any such review would have to be argued in other proceedings. A challenge to the exercise of the judicial discretion could, for example, be raised, ultimately, in an appeal to the Court of Appeal of Victoria following a conviction of an accused person who contended that the refusal of an order under subsection (2) had occasioned a miscarriage of justice or had otherwise resulted in a trial which did not conform to the law.
(3) The facility of such scrutiny of the exercise of discretion, provided by s 360A, speaks strongly against intervention by this Court at this stage. If a stay were refused, the plaintiff would not be left without redress. If the result of her trial, without competent legal representation, were unfair and she were convicted, she would have legal remedies. If she were acquitted, this Court would not then be troubled. It should also be noted that the application for an order under the section is not confined to one attempt. The section contemplates that “At any time before or during the trial” an order may be made. I accept that appointment of a legal representative in the midst of a long and complex trial would present distinct disadvantages to an accused person. However, it is a possibility that remains open. The judge might be convinced at a later stage as to the necessity to provide relief under the section which has so far been denied. If he were, it would be expected that appropriate ancillary relief would then be granted, by way of adjournment or otherwise. The power of the judge is unquestioned. The duty of Victoria Legal Aid, once an order is made under the section, is also plain. I have been informed that there is currently before the trial judge a renewed application under the section. I do not doubt that it would be heard as a matter of priority before the trial was long advanced.
(4) This Court has more than once, including recently, emphasised how rare it is to make orders which would have the effect of interfering in the conduct of a criminal trial. No case has been brought to my notice where the Court has made a stay order equivalent to the one sought on this summons by the plaintiff. Although I do not doubt that, in a proper case, the Court would have the jurisdiction to make such an order to protect the utility of its process, it would be truly exceptional for it to do so. The Court expressed its attitude of restraint most recently in its decision in Reg v Elliott (1996) 185 CLR 250 at 257. There are many earlier such cases. They evidence the strong disposition of appellate courts in Australia - and especially of this Court - not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required. Analogous principles apply, as it seems to me, to the provision of a stay to prevent the commencement of a trial so as to permit a constitutional point to be argued. That point will not be lost to the plaintiff. If need be, at a later stage, it can be raised again.
(5) This Court has also emphasised that the provision of a stay of proceedings affecting the execution of judgments in the courts below is normally to be regarded as exceptional. This is, in part, because of the function and role of this Court in the Australian judicature. In part, it reflects the practical fact that the Court can hear, and does hear, only a small proportion of the cases which are proffered to it. In part, it reflects the fact that in most cases special leave is required for appeal and in other cases most matters are remitted to be heard by other courts from which an appeal to this Court may come only by special leave, or leave. I endeavoured to explain the stringency of the law governing the provision of stays in Frugtniet v Attorney-General for New South Wales (1997) 71 ALJR 810 at 813. By analogy, those principles apply with equal or, I would say, greater force where the stay sought is directed to a criminal trial which has commenced or is about to commence.
Therefore, having regard to the legal issues proposed to be argued, the risk of any irremediable harm to the plaintiff and the balance of convenience, it follows that the application for a stay sought by the plaintiff on her summons must be refused. The plaintiff’s trial, so long delayed, should take its course.

The importance of manifest justice of criminal trials

If an application for an order under section 360A is renewed, nothing in what I have said should be construed as in any way discouraging to the trial judge to consider that application afresh. A measure of judicial irritation at all of the interlocutory skirmishing and much apparent waste of public funds would be understandable in this case: Very understandable. However, that consideration would, as it seems to me, be irrelevant to the issue which section 360A presents for decision. That issue, from first to last, is whether the plaintiff and the co-accused can have a fair trial without representation by a legal representative. Involved in that question is something more than the rights of the accused. There is also involved the undoubted right of the community to have a manifestly fair trial which conforms to the law of serious charges presented by the Crown. I also consider that there may be involved a question of the propriety of courts being required to undertake proceedings which are otherwise than manifestly just and fair.

Clearly, the complexity of the issues, the envisaged length of the trial, the capacity and experience of the accused to represent themselves, the risks that the trial may have to be aborted or may miscarry and the unreasonable burden placed on the trial judge himself, in default of legal representation, are relevant considerations. The appearance of a well‑resourced Crown, represented by senior and junior counsel and solicitors in a four-month prosecution of three unrepresented accused on two charges of conspiracy (which can be notoriously technical and difficult) may ultimately persuade the trial judge to make an order under the section. In the first instance at least, that will be entirely a matter for him. Nothing I have said today in refusing a stay from this Court is intended to discourage the making of such an order if it is otherwise required by law and by the necessities of and manifest seemly justice in a court of justice of this country.

The summons is dismissed.

MR LASRY: If the Court pleases.

HIS HONOUR: No application is made by the Crown for costs?

MR LASRY: No, we do not apply for costs, your Honour, but I wonder whether the appropriate way of dealing with them is simply to reserve them.
Presumably, these proceedings do not stop at this point.

HIS HONOUR: I am not very happy about reserving them. I would be inclined to refuse costs in a matter of this kind on the principle that normally, in matters that are criminal or adjunct to criminal proceedings, the Crown neither asks for nor receives costs.

MR LASRY: I do not press an application, your Honour. The other matter that I would ask your Honour to consider is this: if it is appropriate for your Honour to make an order that the transcript of these proceedings be made available as soon as possible.

HIS HONOUR: That would normally be done. I will endeavour to have the transcript prepared as quickly as possible and made available to both parties and to his Honour Judge Smith, and I will do so, even before the judgment which I have just given has been corrected. But it will need to be corrected for the ultimate use that it may be put to.

MR LASRY: If your Honour pleases.

HIS HONOUR: Is there anything you wish to say, Mrs Frugtniet?

MRS FRUGTNIET Thank you, your Honour.

HIS HONOUR: Yes, very well, summons dismissed. The Court will now adjourn.

AT 12.35 PM THE MATTER WAS CONCLUDED

[1997] HCATrans 255

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