R v Domenic Perre No. DCCRM-96-922 Judgment No. D3592

[1997] SADC 3592

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Ruling of His Honour Judge David

Hearing

01/04/97 to 02/04/97.

Catchwords

CRIMINAL LAW AND PROCEDURE - DIETRICH APPLICATION Accused charged with 5 others with taking part in the manufacture of methylamphetamine and conspiracy to take part in the manufacture of methylamphetamine - applied to stay proceedings on information on the ground that he lacked the means to engage legal representation for the trial - the accused has exhausted his resources - the family home was transferred to the accused's wife in 1995 - legal aid to be granted if the accused's wife allows a charge to be placed on the family home - the accused's wife refuses to allow a charge on the family house - the applicant is charged with a serious offence and the issues are legally and factually complex - there are no exceptional circumstances which would warrant the trial proceeding notwithstanding that he is not legally represented - without assistance the applicant is indigent - proved that he is unable to afford the trial unassisted - proved that it is not through no fault of his own that he cannot obtain legal representation - the accused's wife was not acting independently in refusing the charge on the house - $50,000.00 maximum from legal aid would be enough to cover an 8 week trial - application not made out - application refused.

Materials Considered

• Dietrich v R (1992) 177 CLR 292;
• Craig v the State of South Australia (1995) 184 CLR 163;
• George Karounas (1995) 77 ACR 479;
• Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370;
• Connell, Lucas and Carter Unreported judgment of the District Court of Western Australia delivered 5/5/93;
• Fuller and Cummings Unreported judgments of District Court of Western Australia delivered 28/11/94;
• R v Marchi, Marchi and Mead Unreported judgment of Supreme Court (South Australia)(S5963) delivered 20/12/96, considered.

Representation

Director Of Public Prosecutions R:
Counsel: Mr. J. Powell - Solicitors: Director of Public Prosecutions

Applicant DOMENIC PERRE:
Counsel: Mr. K. Borick - Solicitors: P.D. WAYE

DCCRM-96-922

Judgment No. D3592

18 April 1997

(Criminal)

R v DOMENIC PERRE

D3592

Criminal Jurisdiction

His Honour Judge David

The applicant, Domenic Perre, is charged on information with:-

1. Taking part in the manufacture of methylamphetamine.

2. Conspiracy to take in the manufacture of methylamphetamine.

He is charged with five other accused and the matter is listed for hearing on 2nd June 1997.

By application dated 6th March 1997 the applicant applies to this Court to order that the trial of the charges against him be stayed on the grounds that he is indigent and has been charged with serious offences and through no fault of his own is unable to defend himself and cannot obtain legal representation.

In support of his application, Mr. Kevin Borick of counsel tendered an affidavit of Domenic Perre of 9th March 1997 with accompanying documentation in support (Exhibit PVD 1).Also tendered by the applicant was an affidavit of his wife, Domenica Perre, of 7th March 1997 also accompanied by documentation in support (Exhibit DVD 3).Both the applicant and his wife were cross-examined upon their affidavits being tendered.The applicant also called his brother Adam Perre.A number of documents were also tendered by both the applicant and the Crown.I will refer to certain of those in the course of my judgment.The Prosecution called Mr. Adrian Hunt who is a solicitor at the Legal Services Commission.

Put simply, the applicant says within the meaning of Dietrich v R (1992) 177 CLR 292 that for the purposes of funding his trial he is "indigent" and cannot retain counsel.It is argued that the charges he has to defend are so complex and serious that unless he can retain counsel the information should be stayed.

Counsel drew my attention to a number of authorities in particular:-

1. Dietrich v R (1992) 177 CLR 292 at page 315

2. Craig v the State of South Australia (1995) 184 CLR 163 at page 184

3. Karounas (1995) 77 ACR 479 at page 485

4. Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370 at page 374-5

5. Connell, Lucas and Carter unreported judgment of the District Court of Western Australia delivered 5th May 1993

6. Fuller and Cummings unreported judgments of the District Court of Western Australia both delivered 28th November 1994

7. R v Marchi, Marchi and Mead unreported judgment of the Supreme Court (South Australia) (S5963) delivered 20th December 1996.

From those authorities I draw the following principles:-

For the applicant to be successful he must prove on the balance of probabilities:-

1. That he is charged with a serious offence.

2. He is indigent.

3. Through no fault on his part he is unable to obtain legal representation.

4. There are no exceptional circumstances which would in any event warrant the trial proceeding notwithstanding he is not legally represented.

(Dietrich v R (1992) 109 ALR 385 at page 399.)

I also add the comments of Perry J. in R v Marchi, Marchi and Mead unreported judgment of Supreme Court (South Australia) delivered 20th December 1996 when he says "... indigent does not mean that the accused must be penurious in the sense of living in poverty.Rather, the test of indigence is satisfied if the accused lacks the means to engage appropriate legal representation to conduct his or her defence".Bearing in mind these principles I turn to the specific application.

The applicant by his affidavitand in cross-examination told the Court of his present financial situation.He also told the Court that he has been unable to retain counsel to represent him at the trial of the present charges because he cannot receive any further money from friends and members of his family who have up until this time helped him pay his extensive and various legal bills. I was informed and I find that he applied for legal aid in October of 1996 and that that application has been refused.I will return to the nature of that refusal later in my judgment.

He has been in custody since 4th January 1996 and certain assets that he did have by way of certain bank accounts were seized by way of Crimes Confiscation of Profits proceedings in relation to a charge of conspiracy to produce cannabis in the Northern Territory.Pursuant to orders of the Supreme Court a suitors fund enabling those frozen assets to be accessed in order to pay legal expenses operated from October 1994 but was exhausted in August of 1995.I am told and there is no dispute there was a total amount within the fund of about $122,000.00 in that period of time which was exhausted by August of 1995.

I have also been given material since the hearing date of this matter setting out the legal fees that Mr. Perre has paid concerning a number of criminal charges that Mr. Perre has faced.They are a charge of murder, a charge of attempted to pervert the course of justice, a charge of conspiracy to produce cannabis in the Northern Territory and the present charges.The information that I have received about the quantum of legal fees he has paid in relation to these matters has come to me in piecemeal fashion and is confusing but it is clear that the amounts were extensive.It is also clear that on all of those charges Mr. Perre has never been convicted.The trial on the present charges is of course pending, the murder charge was discontinued after committal and on the attempting to pervert the course of justice Mr. Perre was acquitted.The charge of conspiring to produce cannabis in the Northern Territory was dismissed on jurisdictional grounds.

On the material presented to me I find subject to one matter that the applicant is indigent.I find that he has exhausted his resources in the funding of a number of expensive criminal matters and has very few assets left.The one exception to that is his family home at 37 Cross Keys Road, Salisbury.At present his wife, Domenica Perre, lives there with her three children.In her affidavit she estimated that the value of the home is about $70,000.00.The property was originally in the name of her husband (the applicant) but was transferred to her on 8th December 1995.She says in her affidavit and in cross-examination that she is not willing to fund her husband's defence and is concerned about the future of the family home on behalf of herself and her children.

Mr. Adrian Hunt from the Legal Services Commission was called and gave evidence that legal aid has been refused in relation to the two charges the applicant will face.He gave general evidence as to the criteria that has to be satisfied before legal aid can be afforded to an applicant and in relation to the present matter he said that legal aid would be granted if Mrs. Perre would agree to a charge being placed over the property which is now in her name but was formerly in her husband's name.He gave further evidence that there will be no requirement for Mrs. Perre to make any repayment at all during the currency of the charge but it would remain on the title until there were some dealing by the registered proprietor such as a transfer, death or refinance. He said otherwise it simply remains there and there is no interest applying to it. According to Mr. Hunt if that were done then legal aid would be granted to a maximum of $50,000.00 which is the maximum applying to every applicant in this State in relation to criminal funding.

In his cross-examination the applicant said that he transferred the title of his house from his sole ownership to his wife's sole ownership in December of 1995 as results of discussions with his wife purely for her security.At that time he was being investigated in relation to criminal matters but not in relation to the matter before the Court.He denied that he was transferring the ownership to shield him from any confiscation proceedings that the Police might initiate.He also said in cross-examination that in a bail review affidavit dated 27th March 1996 (Exhibit PVD2) he said that his wife owned premises at 37 Cross Keys Road, Salisbury which was valued in excess of $100,000.00 and she was prepared to be a guarantor.He also said that when the present matter is finished he will go back and live with his wife although there is a possibility that they may separate.

Mrs. Domenica Perre when cross-examined maintained that after the transfer of the family home from his sole ownership to her sole ownership she still regarded the house was as much his as it was hers.She said that the property was transferred because she was concerned about losing the house in relation to various criminal charges he was facing.Part of that concern was that the house might be disposed of to pay his legal bills.Also she was concerned that it might be confiscated by the Police.She said in cross-examination that he appeared to be concerned about that also.It was because of that that it was decided to transfer the house into her name.She said it was her idea to do so but he agreed with it.She gave evidence that she was contemplating the possibility of a separation when her husband was eventually released but there is a possibility that he would return and live with the family at Cross Keys Road.She said she is not prepared to allow a charge of any amount to be placed over the house even though it might allow the Legal Services Commission to fund her husband's legal expenses for the forthcoming trial.She was closely cross-examined on that topic and I observed her very carefully.In particular I refer to the following passage of evidence:-

"Q. Assume this:If a statutory charge was placed on the house by the Legal Services Commission, you wouldn't lose it and you wouldn't be liable to pay anything unless one of those three different things happened.Assume that's the position - okay.

A. Yes.

Q. Firstly, are you hearing that from me for the first time. (NOT ANSWERED)

HIS HONOUR

Q. Has anyone told you that before.

A. No.

XXN

Q. Assuming that, and assume that the Legal Services Commission placed a statutory charge over your house so that your husband could obtain legal funding, and assume you wouldn't lose the house, assume that the Legal Services Commission wouldn't hound you or pursue you for money, assume those things, in those circumstances, would you be prepared to allow the charge to apply, so your husband can get the money he needs to defend himself.

A. I still say no.

Q. Why not.

A. Because I haven't got -

Q. That wouldn't be unfair, would it.

OBJECTION Mr Borick objects.

MR. BORICK: I object to that question, because there is another one on foot.

HIS HONOUR

Q. Do you want to think about that question, it has just been put to you, those situations.

A. I just don't want to give up my house.

XXN

Q. Do you understand this and assume this, if you would, that the statutory charge being placed on your house doesn't mean you are going to lose your house.

OBJECTION Mr Borick objects.

MR BORICK: You don't know.You could get hit by a train tomorrow.No-one knows the answer to that.

A. I would like the house to remain to my children.

HIS HONOUR

Q. Do you think your house will be put at risk.

A. Yes.

XXN

Q. Why do you think that.(NOT ANSWERED)

HIS HONOUR

Q. Can you answer that.

A. I can't answer that.

XXN

Q. Do you understand the question.Why do you think your house would be put at risk, if a statutory charge was placed over it.

A. Because, if something happened to me, I would lose - the children wouldn't receive - get anything from the house.

Q. Do you think that the children will get nothing at all.

A. Yes.

Q. I would like you to assume that the children would potentially lose only up to $50,000 in value on the house, would you assume that.

A. If the house is worth 70, the children will only get 30.

Q. Or 20 or whatever the difference there happens to be.

A. Or 20 or whatever, yes.

HIS HONOUR

Q. Your decision not to allow the house to have a charge put on it, is that your decision alone.

A. Yes.

Q. Is that your decision alone.

A. Yes.

Q. Despite all those things that Mr Powell has now told you about, that you didn't know about before, you know what I am talking about.

A. Yes.

Q. Is that still your decision.

A. Yes, it is.

XXN

Q. Has anyone told you, in relation to the evidence you are now giving, that you need to stick to your guns in relation to that view.

A. No.

Q. No-one at all.

A. No.

Q. What if your husband approached you and said 'I need half the house.I need half of it.I want my half and I want a charge placed over my half of the house'.What would you say to him.

A. I would say 'No'."

Having observed Mrs. Perre closely I find that I could not accept her evidence as set out above.I find that it has not been proved on the balance of probabilities that in not allowing a charge to be placed over the property she has acted independently of her husband.I find that the transferring of the house in December 1995 was a means of saving the property from possible confiscation and the further refusal by Mrs. Perre to have a charge placed over it by the Legal Services Commission in the terms as set out by Mr. Hunt is a continuation of that arrangement she has made with her husband for the purpose of possibly frustrating the forthcoming trial.At any rate I find that it has not been proved by the applicant that she is acting independently of him in refusing to allow a charge to be placed over the property.

I therefore make the following findings:-

1. The applicant is charged with a serious offence which will be complex and will last for a minimum of 8 weeks.It would be impossible for the applicant to properly defend such a charge without being legally represented.On the face of the depositions from the lower court it is clear that the issues are legally and factually complex.I find that to be so without further elaboration.

2. There are no exceptional circumstances which could warrant the trial proceeding notwithstanding he is not legally represented.

3. Without the assistance of the Legal Services Commission he is indigent. Taking into account all of the evidence I have heard on the matter, I accept as proved that he cannot afford to fund the present trial unassisted.I accept that he has been able to successfully fund previous criminal matters but on my assessment of the evidence he is now not in a position to continue to do so.

4. I do not find it proved that it is through no fault on his part that he is unable to obtain legal representation.I find that the offer by the Legal Services Commission to have a charge placed over the family home which is now in his wife's name in the terms as described by Mr. Hunt is a reasonable one and I also find that the wife's decision not to allow that charge to be placed over the house therefore activating legal aid is not a decision made independently by her.On observing her evidence and taking into account the history of the transfer of the family home and the reason it was originally transferred I find that to be so.

There is one further matter.It has been suggested in argument that even if the Legal Services Commission were to fund the matter the fact that they could only fund it to the amount of $50,000.00 would in a sense leave the applicant indigent because this trial would cost much more.It is very difficult to precisely predict the length of a trial but in my view allowing for something like a trial lasting 8 weeks at Legal Services Commission junior counsel rates it could not be said that $50,000.00 would be an inadequate amount to cover full funding.

I therefore find the application has not been made out and it is therefore dismissed.