Malcolm John Souter v R No. SCCRM 95/119 Judgment No. 6162 Number of Pages 7 Legal Aid Criminal Law

[1997] SASC 6162

IN THE SUPREME COURT OF SOUTH AUSTRALIA

OLSSON, J

Legal aid - legal assistance schemes

Criminal law - jurisdiction, practice and procedure - matters connected with conduct of defence - legal representation - application for a stay of proceedings based on the principle enunciated in Dietrich v The Queen (1992) 177 CLR 292 - inability of the accused to obtain legal representation - whether offer of funding adequate considering the potential length of the trial and time required for its preparation - whether it was the fault of the accused in not being able to obtain representation - whether the accused necessarily has a right to representation by counsel of his own choice at public expense - alternative methods of providing representation discussed - order that the proceedings be stayed until such time as the issue of funding is resolved in a satisfactory manner.The following parties appeared as amicus curiae: Mr M Abbott QC for The South Australian Bar Association Inc; Ms L Powell QC for The Law Society of South Australia. Mr A Moss appeared as intervenor on behalf of the Attorney-General of South Australia. The Queen v Karounas (1995) 77 A Crim R 479; Cummings v The Queen (Barlow DCJ, District Court of Western Australia, 28 November 1994, unreported,); Dietrich v The Queen (1992) 177 CLR 292; Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370, applied.

ADELAIDE, 14 May 1997 (hearing), 22 May 1997 (decision)

#DATE 22:5:1997

#ADD 29:5:1997

Applicant:

Counsel: Mr W Bouc

Solicitors: Mangan Ey

Respondent R:

Counsel: Mr S Smart

Solicitors: DPP (SA)

Order: application allowed.

OLSSON J

1. In these proceedings the accused seeks a stay of the information presented against him, on the principle enunciated by the High Court in Dietrich v The Queen (1992) 177 CLR 292 ("Dietrich"). He asserts that he has been charged with serious criminal offences, is "indigent" in the relevant sense and, without fault on his part, is unable to obtain legal representation.

2. The accused is an accountant in private practice. He was recently declared bankrupt and the official trustee in bankruptcy has claimed what modest assets he had, including a sum of money paid into Court at my direction. On the undisputed evidence his current earnings are only sufficient to enable him to meet day to day living expenses.

3. The information presented by the Director of Public Prosecutions asserts sixty-three counts of fraudulent conversion. It focuses on a series of financial transactions spanning a period from October 1985 to late May 1992.

4. It is said by Mr Smart, of counsel for the Director, that declarations have been obtained from some 171 potential witnesses, all of whom will have to be called unless relevant facts can be agreed. That number may be capable of being reduced by not less than 50 if such agreement can be achieved.

5. The charges brought relate to four broad categories of alleged fraudulent dealings on the part of the accused. These are said by Mr Smart to be - (1) misappropriation of funds contributed to a formally constituted superannuation scheme administered by him;

(2) misappropriation of funds contributed to a separate, informal superannuation scheme set up by him;

(3) misappropriation of funds entrusted to him for general investment;

(4) misappropriation of tax refund cheques received by him on behalf of clients.

6. It will be the Crown case that the funds said to have been misapplied were expended, either directly or indirectly, to maintain an extravagant lifestyle pursued by the accused. To that end, various money flows will need to be traced to prove what ultimately occurred and to demonstrate how, inter alia, funds were juggled to give the appearance that proper investments had been made. It was, Mr Smart, intimated, in part, a case of robbing Peter to pay Paul, until the activities of the accused were eventually called into question.

7. So it is that there will be a need for the Crown to examine a large series of financial transactions and complex money flows in relation to them, in an attempt to prove dishonest intention on the part of the accused.

8. It was Mr Smart's original intimation that the Crown case was likely to occupy about twelve weeks. That estimate was, as now appears, based on the need to call all 171 witnesses.

9. It is not denied by the Crown that, on any view, the defence case would occupy about two weeks; and that addresses could well extend over a week. There may, or may not, be a need to call expert accounting evidence on both sides, dependent upon what factual issues emerge.

10. A major issue will clearly arise as to the state of mind of the accused in relation to each of a large number of money transactions; and whether dishonesty can and should be imputed to him. Because of the various categories of transaction, potential severance arguments could (but will not necessarily) arise.

11. On a best case basis - assuming maximum, realistic agreement of facts and non-severance of counts - the estimated minimum length of trial is of the order of nine or ten weeks, although, even with maximum co-operation as to non-contentious facts, a trial could "blow out" to a period greater than that. There would, in such a situation, still be a need to call between 85-120 witnesses.

12. In an affidavit sworn by him and not controverted, the accused deposes that -
* he has no financial means of securing legal representation for his trial and has been unable to do so;

* he has no legal training or experience and no knowledge of criminal processes and procedure;

* he will be unable, adequately, to identify, locate, interview and proof necessary lay and expert witnesses;

* he maintains his innocence, but fears that he may be convicted because of his own ineptitude, if he does not have proper legal representation at trial.

13. Some indication of the dimensions of the task confronting the defence at trial is to be gleaned from the fact that the Crown have already provided some 21 volumes of witness declarations and documentary exhibits - in addition to which additional documentary material is yet to be supplied. In the course of his submissions Mr Smart conceded that, even with the aid of the investigating police officers, it took him two weeks of reading to obtain a basic appreciation of the factual issues - but that this did not involve an exhaustive perusal and digestion of all of the relevant material. As a matter of common sense, any defence lawyer, coming into the matter "cold" and without external assistance, would take a much longer time to become familiar with the documentary material and assess its significance.

14. The present application has been before me over a considerable period of time and I earlier vacated the date appointed for the trial of this matter pending a proper examination of the circumstances. At my urging, steps have been taken to attempt to put some reasonable funding regime in place, to enable the accused to have proper legal representation at trial.

15. In the result, combined Government and legal aid funding of $120,000.00 (to include all legal costs and disbursements, apart from cost of transcript of evidence) has been offered to the accused. Expenditure approval against that sum has also enabled him to secure legal representation for the purposes of the present application. However, quite strict expenditure conditions have been imposed, including a maximum of 40 hours' reading time at $48.00 per hour, to make a preliminary assessment of the Crown case and the probable defence needs.

16. As to that, the present solicitor for the accused asserts that the process of "reading in" and discussing potential agreement of factual material with the Crown would occupy at least four weeks - an assessment which appears to me to be beyond substantial challenge. The proposed limit of 40 hours is, patently, quite unrealistic.

17. His evidence is to the effect that he could not afford to spend that time at the rate offered and still maintain a viable legal practice, nor could another practitioner of suitable experience be engaged on such a basis. Indeed, a substantial number of enquiries made by him of other practitioners in the criminal jurisdiction suggests that it will be impossible to secure legal representation for the accused for the trial for the total approved sum. Indeed, his opinion is to the effect that - given the accuracy of the Crown estimate of the likely duration of trial - the funding approval could well be of the order of only about one half of that sum which would, realistically, be required to assure representation of the accused by a practitioner of adequate ability and experience for the likely duration of a trial.

18. On the original Crown estimate of the likely length of trial, I have no hesitation in accepting that opinion as an accurate and realistic appraisal - regardless of who might be retained.

19. True it is that, if a significant amount of factual material could be agreed and issues could substantially be narrowed, then the cost of legal representation may well reduce in considerable degree. However, something of a "Catch 22" situation has arisen.

20. Because the funding approval and conditions fall hopelessly short of that which would, reasonably, be required, in relation to a suitably experienced practitioner, to cover the four weeks of work likely to be involved in the initial assessment and negotiation process, those activities cannot presently go forward; i.e., the fundamental, prerequisite process to lead to potential major cost savings simply cannot get under way.

21. In my opinion both the 40 hour "reading" limit and the hourly rate of $48.00 are utterly unrealistic in the context of a case of this nature. No suitably experienced practitioner is remotely likely to undertake even a preliminary assessment of the case on such a financial basis. Moreover, quite apart from the obvious benefits likely to flow from such an assessment, no such practitioner could hope either to form any real appreciation of the needs of the defence, nor be able to assess the adequacy of funds offered without undertaking such an exercise.

22. If this matter were to go forward, either without any agreed facts at all, or even in some truncated form, it is obvious that the accused could not possibly conduct a defence on any basis which could be said to be fair. A trial of this complexity and magnitude is a daunting task for a competent legal practitioner of appropriate experience. It would be a hopeless task for a lay accused, as against experienced Crown counsel. He could not possibly do himself justice.

23. The legal principle expressed by the High Court in Dietrich is now trite law. The proposition espoused was stated as under - "In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial."

24. It is for an applicant for a stay to establish, on the balance of probabilities, that - (1) he is charged with a serious offence;

(2) he is indigent;

(3) he has been unable to obtain legal representation; and

(4) his inability is not due to any fault on his part.

25. No real issue arises as to (1) to (3), even given Mr Smart's valiant attempt to suggest that it ought to be feasible to secure some practitioner, within the funding provided; and that the accused has not provided suasive evidence to the contrary. All that need be said on that score, in the situation as it currently stands, is that such a contention is offensive both to common sense and common knowledge of anyone experienced in the administration of the criminal law.

26. The real issue is as to whether it can fairly be contended that the inability of the accused is due to some fault on his part.

27. As to that aspect of the matter a number of propositions emerge from the published authorities - (1) "fault" connotes not doing what is reasonable in the circumstances, or doing something which, reasonably, ought not to have been done (The Queen v Karounas (1995) 77 A Crim R 479 at 485, Cummings v The Queen (Barlow DCJ, District Court of Western Australia, 28 November 1994, unreported, at p 9);

(2) an accused is not entitled to demand "Rolls Royce" representation (Cummings at p 11). However, if he is not represented by a person of experience appropriate to the demands of the particular case, who is able competently to conduct the defence, the situation is that he is, in the relevant legal sense, taken to be unrepresented in the Dietrich sense. I agree with Mr Smart, however, that this does not mandate that an accused is necessarily entitled to counsel of his first choice (see the reasoning in Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370 ("Milat");

(3) the judge's function, on an application for a stay, is not to arbitrate between lawyers and the providers of legal aid as to proper fee levels, but to determine whether, in the events which have happened, the accused is shown to be a person to whom proper legal representation is unavailable. On the other hand, if it appears that legal aid being offered is so inadequate, or subject to such restrictive terms and conditions, that adequate legal representation could not be procured on such a basis, then, once again, the accused will be taken to be a person to whom requisite legal representation is unavailable (Milat at p 375).

28. In essence, the accused says that he stands in precisely the situation last adverted to.

29. Mr Smart has sought to answer that assertion by contending that the failure of the accused to accept that offer made to him and to attempt, adequately, to obtain legal representation within that offer indicates a failure to demonstrate lack of "fault" on his part.

30. The immediate riposte to such a suggestion is that the inability of the accused to obtain legal representation within the figure offered is the very reason for his failure to accept it.

31. I should record that, in the course of this application, a somewhat extraordinary situation developed.

32. Mr Moss, of counsel, intervened on behalf of the Attorney-General. He intimated that the Government was concerned that it was said that proper representation could not be secured within the sum offered; and that it envisaged that it might seek to put this and other like matters out to tender to the profession generally - on the basis that a successful tenderer would then be offered to the accused, to be refused by him at his peril.

33. As I understand the proposal, this was based on the contention that the obligation of the Crown, in a case such as this, was either to provide reasonable resources to obtain legal representation or, alternatively, to procure proper, reasonably competent, representation and supply it to the accused (see the reasoning in Milat).

34. Mr Abbott QC, of senior counsel for the Bar Association of this State and Ms Powell QC, of senior counsel for the Law Society of South Australia, obtained leave to address the court as amicus curiae on this issue of principle. They joined in vehemently protesting that such a stance was abhorrent to the proper administration of justice and would, inevitably, lead to an accused receiving second rate representation.

35. It is, in my opinion, not appropriate, at this time, to address the Government proposition in other than the context of the present case. However, to do so is, immediately, to expose its obvious unacceptability for the purposes of the Dietrich principle.

36. Unlike Milat, what is here in issue, on the proposition advanced by Mr Moss, is NOT a proposal to supply a suitably experienced member of the staff of a Public Defender's office or of the professional staff of the Legal Services Commission, who would be entitled, with proper professional independence, to see a trial, through all of its vagaries, to a conclusion on a basis which is a proper recognition of the reasonable interests of an accused person.

37. Rather, it is a proposal to seek tenders for the provision of legal services for a specified lump sum in circumstances in which (like that presently confronting the present temporary solicitor for the accused) the very nature and potential extent of the work reasonably involved cannot possibly be identified without a full investigation extending over several weeks; and where the likely trial process might vary from nine to fifteen weeks or more. If any practitioner was foolish enough to tender within the sum presently offered, a conflict would naturally arise between the financial self-interest of that person to conclude the trial as rapidly as possibly and the legitimate interest of the accused to an adequate conduct of the defence, however long that might reasonably take. Moreover, on what basis the Government would be entitled to publish information germane to the accused (possibly of a privileged or sensitive nature) to potential tenderers is difficult to perceive.

38. Such a process, if sought to be implemented, would be likely to precipitate more legal proceedings (including applications for possible judicial review) than it seeks to resolve and, inevitably, would potentially embroil the Court in an exercise, deprecated in Milat, of attempting to pass upon the adequacy (in terms of experience and competence) of a successful tenderer to handle a case of the relevant complexity and magnitude. There is a serious danger that what may be quite unacceptable to a suitably experienced member of the criminal bar might be accepted by a very junior and inexperienced practitioner, simply to gain experience in an area beyond that person's practical competence. One poses the question as to how such situations could be appraised on an acceptable basis.

39. I consider that the contentions of Mr Abbott QC and Ms Powell QC to the effect that a system such as that outlined by Mr Moss would be likely to bring the administration of the criminal law into serious public disrepute are far from fanciful.

40. In so saying, I do not accept that, as was inferred, an accused necessarily has a right to representation of his own choice, at public expense, within the Dietrich principle. That thesis is, effectively, negated in Milat. There may be situations in which an offer of counsel of the nature of a competent staff member employed by the Legal Services Commission, adequately resourced by the Government for the proper conduct of the defence, may well be quite proper.

41. Be that as it may, it seems to me that, in the instant case, the first question to be resolved is as to what will necessarily be involved in the trial process, given a reasonable attitude by the accused to the conduct of his defence, by not seeking to put the Crown to formal proof in relation to factual issues not bona fide in contention.

42. As I have already indicated, it is utterly impossible to proceed to any sensible assessment in that regard absent a proper examination of the Crown material and negotiation between a competent practitioner representing the accused and the Crown Prosecutor.

43. The present restrictions placed upon approved funding in that regard render it impossible, in practical terms, for such an exercise to be carried out effectively. The current intransigence of the Government and the Legal Services Commission in that regard - in the context of this case - is quite unacceptable and unfair. It has the practical effect of continuing to deny the accused a fair trial by reason of lack of proper legal representation; unless and until funds are released to enable about four weeks' work to be done at a realistic hourly rate.

44. I therefore propose to make an order of the nature of a stay until such time as that "stand-off" situation has been resolved in a fair, satisfactory manner. The position will then need to be re-assessed, if and when the net requirements of a fair trial can be identified.

45. I will hear counsel as to the form of the order appropriate to be made at this point.