R v Grosser

R v GROSSER
SASC 193
Application for stay of proceedings

DUGGAN J. The applicant filed an application dated 21 June 2001 for a stay of proceedings and, alternatively, an indefinite adjournment of the trial of this matter. The application followed the dismissal by the applicant of counsel and solicitor assigned by the Legal Services Commission to represent him at the trial. I dismissed the application on 28 June 2001. I now publish my reasons.
The application is to be determined by reference to the principles enunciated in Dietrich v The Queen (1992) 177 CLR 292. When giving reasons for the dismissal of a previous “Dietrich application” for a stay of proceedings in this matter, I set out some of the relevant history. I begin by repeating that history up to the time of the present application.
The applicant is charged with the attempted murder of a police officer and, in the alternative, wounding the police officer with intent to do him grievous bodily harm. There are a further five counts alleging that the applicant endangered the lives of various police officers.
According to the prosecution case, the offences took place on 3 May 1994 in the course of a siege at a farm house which the applicant was leasing at Nuriootpa. The police officers were there to execute a warrant for the applicant’s arrest following his failure to attend a hearing in the Adelaide Magistrates’ Court. The police officers claim that they were aware that the applicant was armed. The prosecution allege that, after police officers surrounded the house, the applicant opened fire from inside the house firing a volley of shots from a semi-automatic rifle. The police officer named as the alleged victim in the count of attempted murder was hit by at least six bullets.
This is a retrial. The previous trial concluded on 27 November 1996. The applicant was convicted on the count of attempted murder and the five counts of endangering life. He was sentenced to imprisonment for 22 years with a non-parole period of 18 years. The applicant appealed against the convictions and sentence. His appeal against conviction was upheld and a retrial ordered.
Counsel who represented the applicant at the trial and on the hearing of the appeal no longer act for him. He was represented at directions hearings held since the trial and on the first Dietrich application by his then solicitor Mr McKenney. Despite the considerable period of time which has elapsed since the delivery of judgment by the Court of Criminal Appeal, it was claimed in an application dated 15 February 2001 that the applicant was not yet ready for trial. The matter had been given a trial commencement date of 2 April 2001.
The basis upon which the first application for a stay of proceedings (the first application) was made is set out in the following paragraphs of that application:
“3The charges allege serious offences and through no fault of his own the Defendant is indigent and cannot obtain competent representation in the conduct of his defence to the charges at his re-trial.
4The charges allege matters which raise numerous complex matters of fact and law.
5The applicant has done everything reasonably necessary to obtain competent legal representation including the making of applications for Legal Aid to the Legal Services Commission and seeking to appeal where Legal Aid was refused.
6A miscarriage of justice will occur if the applicant has to proceed unrepresented due to the complexity of the matters of fact and law involved.”
It is appropriate at this point to say something more about the applicant’s defence as it was presented at the original trial. He gave evidence that he was acting in self-defence. He said he was unaware that the persons who had come to the house were police officers. He said he believed that it was a man named Cass and his associates. He said he had become aware that Cass, who he said was associated with criminals, was out to kill him. The applicant said that he believed his life was in danger. He told the jury that he had met various people who were engaged in illegal activities and they included Cass. According to the applicant he became aware of various activities in which corrupt police officers and criminals were involved. He said he gave information to various authorities including the police, the NCA and Whistleblowers Australia about the alleged activities of police officers and persons he described as “the Mafia”. In October 1993 he was told that Cass was going to shoot him. He said when the police arrived at the farmhouse he thought that Cass was carrying out his threat and that it was necessary for him to defend himself.
The applicant swore two affidavits in support of the first application for a stay of proceedings in which he made a series of allegations, not all of which had obvious relevance to that application. They include the following assertions:
(1)The applicant’s former lawyers would not follow and act on his instructions which would expose corruption and evil in high places in the Government.
(2)The Director of Public Prosecutions perverted the course of justice and hid documents that would help the applicant prove his innocence.
(3)The police tried to murder him as he knew too much about the involvement of the South Australian police, the bombing of the NCA building on 2 May 1994 and other police activities.
(4)Most South Australian lawyers are not prepared to expose police corruption.
(5)The applicant’s previous lawyers worked in with the Crown behind his back thus denying him a fair trial.
(6) The Government will not fund a fair retrial for the applicant.
(7)The applicant’s previous lawyers worked with the NCA behind his back during the trial to stop NCA failings being exposed.
(8)The applicant’s previous lawyers denied him documents which would have helped prove his innocence.
(9)The applicant’s case is unique and complicated.
(10)The Legal Services Commission will not fund his current legal team.
(11)The Legal Services Commission is not independent as it works in with the South Australian Government via the Attorney-General’s department.
(12)The Legal Services Commission has procrastinated on the applicant’s case.
(13)The Legal Services Commission is not trustworthy and has acted in bad faith towards the applicant on many occasions in relation to this matter.
(14)Lawyers for the Legal Services Commission have given confidential information to the Director of Public Prosecutions and worked in with the prosecution behind the applicant’s back.
(15)The two counsel who acted for the applicant on his appeal are unable to represent him at the trial for personal reasons. They did not act for him at the trial.
(16)Two Queen’s counsel who acted for the applicant at different times since the judgment was delivered by the Court of Criminal Appeal no longer act for the applicant. According to the applicant one was reluctant to follow his instructions and the other raised the issue of the applicant’s mental fitness to stand trial, a matter which the applicant saw as incompatible with an acceptable working relationship.
(17)A third Queen’s counsel has intimated that he is prepared to act for the applicant but at a fee considerably above that which is allowed by the Legal Services Commission.
There were several other matters raised by the applicant in these affidavits but it is unnecessary to refer to them at this stage.
After the retrial was ordered, Mr McKenney accepted an assignment to act for the applicant as solicitor although he intimated he would be junior counsel in the event of a retrial. He stated at the hearing of the application that since accepting the assignment he had worked on the case for approximately 100 days.
The Director of the Legal Services Commission, the Deputy Director and a senior lawyer employed by the Commission were called by the applicant to give evidence on the hearing of the first application. The applicant also tendered correspondence relating to funding by the Legal Services Commission.
It appears from this correspondence that Mr McKenney advised the Legal Services Commission on 14 February 2000 that he had agreed to act for the applicant on the condition that appropriate funding could be arranged. The Legal Services Commission resolved to approve funding for the applicant’s retrial late in February 2000. Mr McKenney was assigned subsequently to act as the applicant’s solicitor. Following this the two senior counsel referred to above were assigned to act as counsel for the applicant until they were dismissed by him.
In the course of preparing for the retrial Mr McKenney advised the Legal Services Commission that the applicant had instructed him to issue approximately 2000 subpoenas in relation to documents and witnesses he proposed to call at the retrial. Throughout the period up to the time of the hearing of the first application there were many directions hearings at which attempts were made to hasten the preparation of the matter for trial.
The funding of the applicant’s case was reviewed by the Legal Services Commission on 25 October 2000. The Commission passed a resolution in the following terms:
“AThat the applicant be requested that within the next 2 weeks he appoint either a senior counsel or senior junior both experienced in criminal law to advise the applicant and the Commission on an appropriate defence and who is prepared to represent the applicant on that defence.
BIn the event that applicant does not so appoint the Commission will appoint an appropriately qualified counsel from South Australia or interstate.
CIn the event that the applicant:-
(i)     refuses to co-operate and follow the advice of either his appointed counsel or the Commission’s appointed counsel, and/or
(ii)    refuses to permit counsel or his solicitor to openly communicate to the Commission the advice given and instructions given, and/or
(iii)   refuses to provide instructions as required,
then it is likely in any of these circumstances that the Commission will resolve to cease funding any further representation.”
On 17 November 2000 Mr McKenney wrote to the Legal Services Commission advising that he had taken instructions from the applicant concerning the applicant’s attitude to legal aid. In his letter Mr McKenney quoted from the written instructions he had received from the applicant. In these instructions the applicant referred to the fact that a third Queen’s counsel was prepared to act for him. He said that he would not accept a lawyer appointed by the Legal Services Commission. He said he was using South Australian money to expose corruption in the South Australian Government and that this made it hard for him to find counsel prepared to represent him. He said that all of his instructions to his counsel were privileged and he would not allow any of the instructions to be given to the Legal Services Commission because it was not trustworthy.
The third Queen’s counsel was not assigned to act by the Legal Services Commission because he required remuneration which was considerably in excess of the remuneration generally allowed by the Legal Services Commission. This issue and the intimation by the applicant that he was not prepared to provide certain information to the Legal Services Commission appear to have resulted in a stalemate. The Director of the Legal Services Commission wrote to Mr McKenney on 29 December 2000. He summarised some of the history of the grant of legal aid to the applicant and referred to the applicant’s request that the third Queen’s counsel be funded at a daily rate which was approximately 50 per cent higher than the Commission’s daily rate for Queen’s counsel. Mr McKenney was advised that legal assistance at the rate requested was refused and that the applicant’s grant of legal assistance was terminated with effect from 29 December 2000.
At the commencement of the hearing of the first application on 12 March 2001. Mr Cuthbertson announced that he appeared on behalf of the Legal Services Commission. He said he had been instructed by the Commission to advise that funding was available for the applicant’s representation at the trial on the following basis:
(1)Legal Services Commission scale rates will apply.
(2)Funding would be available for a Queen’s counsel or a senior junior as well as a junior counsel and an instructing solicitor at the trial.
(3)The Legal Services Commission was prepared to appoint appropriately qualified counsel from South Australia or elsewhere in the event that the applicant did not engage counsel.
(4)The grant of funding would be conditional upon the applicant providing proper instructions to his legal representatives and following the reasonable advice of counsel.
(5)The applicant would be required to provide to the Commission, through his solicitor, information which might be required pursuant to the Legal Services Commission Act, 1977 s 22.
(6)The Legal Services Commission would fund the issue of subpoenas which counsel advised were reasonable and necessary for the conduct of the applicant’s defence.
I dismissed the first application for a stay of proceedings on March 2001. After that I convened a series of directions hearings to monitor the preparation of the case for trial and, in particular, the attempts by Mr McKenney to obtain counsel prepared to act for the applicant at the trial. It is unnecessary to detail these attempts but, as they were taking place, I suggested that Mr McKenney present argument to the court as to why I should authorise the issue of a subpoena which the applicant wished to serve on Mr Gordon Barrett QC who acted for the applicant at the first trial and who was one of the witnesses the applicant wished to call. I decided to deal with this application then because some potential counsel for the applicant were members of Mr Barrett’s chambers and had indicated that they would not act in the matter if Mr Barrett’s conduct was in issue.
Mr McKenney said that it would take him five days to prepare for the argument on the subpoena and Ms Powell QC who appeared for the Legal Services Commission intimated that the Commission would not fund such extensive preparation. The Commission was clearly justified in adopting this attitude. It was at this point that Mr Germein was appointed to act as counsel for the applicant on the subpoena application.
On 11 May 2001 Mr Germein announced that he was appearing on the subpoena application and that the applicant had indicated a preparedness to instruct him as counsel at the trial as well. This was subject to Legal Services Commission approval. At the same time, Mr McKenney applied to withdraw from the case as solicitor. I gave leave for Mr McKenney to withdraw.
In due course Mr Germein’s assignment as counsel for the trial was approved by the Legal Services Commission along with that of Mr Klotz as instructing solicitor. Mr Klotz was introduced to the applicant by Mr Germein and the applicant was content to instruct him in this capacity. On 17 May 2001 I listed the trial to commence on 25 June. I monitored the progress of the preparation of the matter at directions hearings on 23 May and 8 June 2001.
On 25 June 2001 Mr Germein announced at a directions hearing that he and Mr Klotz had been dismissed by the applicant as legal advisers. He and Mr Klotz sought leave to withdraw from the case. Ms Powell QC appeared for the Legal Services Commission and she stressed that Mr Germein and Mr Klotz had not decided to withdraw from the case of their own volition, but that the applicant had dismissed them. She said the Legal Services Commission was prepared to continue funding the applicant’s legal representation, but only through Mr Germein as counsel and Mr Klotz as solicitor. She referred to the undertakings signed by the applicant whereby he agreed that he would provide proper instructions to his advisers and that he would follow the reasonable advice of counsel.
Prior to this hearing the applicant filed the present application dated 21 June 2001 to adjourn the matter indefinitely or, alternatively, to have the proceedings stayed.
I heard submissions from the applicant and then suggested that Mr Germein and Mr Klotz set out their versions of events in affidavit form. In response, both filed affidavits dated 26 June 2001. I accept the versions given by Mr Germein and Mr Klotz in their affidavits and it is appropriate to summarise the history of their involvement with the applicant as explained in the affidavits.
Mr Germein first met the applicant on 4 May 2001. At that time Mr Germein had been assigned by the Legal Services Commission to argue in favour of the issue of the subpoena directed to Mr Barrett QC. It was at this meeting that Mr Grosser agreed that Mr Germein should represent him at the trial.
At a directions hearing held on 11 May 2001 Mr Germein announced that he had been authorised by the Legal Services Commission to act for the applicant in relation to the subpoena. The possibility of Mr Germein acting as counsel at the trial was also discussed at that directions hearing.
On 14 May Mr Germein spoke to Mr Klotz who agreed to act as instructing solicitor in the place of Mr McKenney. This was subject to approval by the Legal Services Commission.
A directions hearing was held on 17 May and Mr Germein confirmed that he and Mr Klotz would be appearing for the applicant at the trial. It was at this directions hearing that the trial was listed to commence on 25 June.
Mr Germein and Mr Klotz visited the applicant on 22 May and there was a general discussion about the case. The applicant provided them with a bundle of documents including various pages of instructions to former solicitors and counsel. On the afternoon of 23 May Mr Germein collected various documents from Mr McKenney.
The applicant forwarded written instructions to Mr Klotz on 28 and 31 May. It was apparent that a significant number of the instructions could not be pursued because of irrelevance. It was because of this that Mr Klotz visited the applicant on 1 June in order to explain the difficulties associated with the instructions. According to Mr Klotz, the applicant became upset when these difficulties were explained to him. It was for this reason that Mr Klotz wrote to the applicant on 4 June in order to clarify further some of the matters discussed at the earlier meeting. Mr Klotz explained in the letter that he and Mr Germein could not accept instructions which related to issues which had no relevance to the case. Mr Klotz had been told by the applicant that he did not wish Mr Klotz to correspond with or contact the Legal Services Commission which he regarded as being untrustworthy. Mr Klotz said he could not accept this instruction and that he was bound by s 22 of the Legal Services Commission Act to provide certain information to the Commission.
Mr Klotz went on in the letter to refer to the applicant’s wish that 50 witnesses be subpoenaed to give evidence. He referred to the fact that the applicant had told him that some 2,000 people might have to be called to give evidence for the defence. Mr Klotz listed the names of the people the applicant wished to have subpoenaed and said that he found it difficult to ascertain what relevance any of these people had to the case. He said he wanted the applicant’s explanation as a matter of urgency as to how their evidence would be relevant.
Mr Klotz then referred to the suggestion that an adjournment might be sought. He said:
“You said that if all the documents you have requested and witnesses you want subpoenaed are not available in time for a proper preparation of your trial to be done, then we are to apply to vacate the trial date. I acknowledge your comment that you are happy for the trial to proceed on 25th June provided that all necessary preparation is done.
I have mentioned this to Mr Germein. We will only be applying to vacate the trial if counsel considers that there is insufficient time in which to properly prepare for your trial (that includes having sufficient time to examine documents and statements directly relevant to your defence).”

Mr Klotz concluded by saying that if the applicant did not accept anything in the letter would he please advise Mr Klotz as a matter of urgency. The applicant’s response was to write a letter to Mr Klotz on 5 June informing him that he did not require his services anymore.
In the meantime Mr Germein had become concerned by the applicant’s attitude and the difficulty in obtaining instructions from him. At a directions hearing on 8 June he said the question of the representation of the applicant at the trial may well be re-opened. He said the applicant had given him instructions to vacate the trial date. He stated that he had difficulties in obtaining instructions from the applicant and he said that the applicant did not appear to appreciate the issues of relevance which had been discussed. He then drew my attention to the provisions in the Criminal Law Consolidation Act which enable the court to initiate an enquiry as to fitness to stand trial. I commented that at that stage there was insufficient material before me to embark upon an investigation of that nature. Mr Germein also told me at the hearing that Mr Klotz had been dismissed as solicitor and that the applicant had instructed him (Mr Germein) to find another instructing solicitor who had not had the opportunity to be corrupted by the legal system. Mr Germein said that the applicant had advised him that the dismissal of Mr Klotz was to be kept secret. However Mr Germein said that he owed a duty to the court to advise of this development.
I suggested that an attempt might be made to resolve these problems, but the applicant wrote to Mr Germein on that afternoon dismissing him as counsel.
At the hearing of the present application for a stay of proceedings or, alternatively, an adjournment, the applicant has made a number of complaints concerning Mr Germein and Mr Klotz. In my view none of them are justified.
I deal first with the complaints against Mr Klotz. The applicant stated that Mr Klotz did not attempt to obtain documentation relevant to the defence or apply to the court for the issue of subpoenas in relation to the 50 witnesses the applicant wished to call. Almost all of the subpoenas were sought in relation to persons allegedly written to by the applicant concerning alleged criminal activity by various persons. The persons named in the subpoena applications include members of the media, the Premier and Attorney-General for South Australia, various members of Parliament, the former Commissioner of Police for South Australia and other police officers and various criminal justice agencies.
The primary relevance of the evidence and documents sought by the applicant from these witnesses is aimed at establishing that the applicant complained of various prominent criminals including a man named Cassidy and that, in the applicant’s mind, these criminals were out to kill him. According to the defence presented at the previous trial, the applicant said he believed that the persons who raided his premises on the occasion of the alleged offences were criminals. He said he did not realise they were police officers. According to the applicant, he considered it necessary to protect himself against these persons and that he acted in self defence throughout the siege.
There is no dispute that the applicant did give information to various agencies and persons concerning alleged criminal activities prior to the siege. The fact of the making of the complaints is relevant to the applicant’s state of mind at the time of the alleged offences. There is dispute as to the applicant’s motive for making the allegations. It is alleged by the prosecution that he provided information in order to have various criminal charges laid against him dropped. However, it appears that the applicant wishes to embark upon an extensive investigation of the alleged criminal activities of various persons at the trial and at a number of directions hearings I have attempted to explain that only those matters directly relevant to the defence can be explored.
The applicant’s legal advisers had a clear duty to explain to the applicant that only relevant evidence could be led by the defence. Apart from anything else, the applicant had signed an undertaking that he would provide proper instructions to his legal representatives and that he would follow the reasonable advice of counsel.
In order to support the issue of the 50 subpoenas, it was necessary for Mr Klotz to satisfy himself and the court that the witnesses and documents were relevant. I have pointed out that in his letter of 4 June, Mr Klotz listed the names of each of the persons referred to in the subpoenas and sought the urgent instructions of the applicant as to the relevance of each. Mr Klotz was prevented from taking the matter any further because he was dismissed on the day after he wrote the letter.
The applicant alleged in his submissions to me that Mr Klotz was biased because he had been a former employee of the Office of the Commonwealth Director of Public Prosecutions. I accept Mr Klotz’s assertion that he advised the applicant of his former employment when he first took instructions and that the applicant stated that he had no objection to Mr Klotz acting for him.
In his written instructions to Mr Klotz the applicant said he wished to challenge the validity of the warrant issued for his arrest on 3 May 1994 and the circumstances in which the police attempted to serve it on the day of the alleged offences. He claimed that the police were trespassers on his land. The complaint he has made against Mr Klotz in this respect seems to be that Mr Klotz did not issue an application to have the matter determined before trial. Whatever relevance this issue might have it is not necessary to deal with it before the commencement of the trial.
Another complaint arises from the fact that the prosecutor has given notice that he intends to call the applicant’s partner Lorraine Bailey as a witness for the prosecution. Ms Bailey was with the applicant for part of the siege. The applicant has pointed out that she assisted him with various aspects of his defence at the previous trial and that it is now unfair for the prosecution to call her as a witness. The point of the complaint against Mr Klotz is that he should have made a pre-trial application to the court to prevent Ms Bailey from giving any evidence. There is no legal justification for such an application.
The applicant complains that Mr Klotz did not apply to have the State Director of Public Prosecutions called on a pre-trial application so that he could be cross-examined on various allegations made by the applicant against him, including an assertion that he has not made available to the court communications sent to him from the applicant prior to the siege incident in which the applicant alleged criminal behaviour against various persons. The applicant did not provide any information to his legal advisers which would justify a pre-trial procedure of the type envisaged by him.
There are a number of ancillary complaints against Mr Klotz including an assertion that he did not make any enquiry concerning various expert witnesses and the whereabouts of a potential exhibit which the applicant said he had handed to a solicitor who had acted for him at one stage of the proceedings. However, the fact remains that Mr Klotz’s services were terminated shortly after he agreed to act for the applicant. He had little time to undertake any preparation of the case before he was dismissed by the applicant.
The applicant had no justification at all for dismissing Mr Klotz. It appears that an important factor in his dismissal was that he found it necessary to advise the applicant that there were limits to the extent to which the applicant could canvass the many issues raised by him in his written and oral instructions.
The complaints concerning Mr Germein are based principally on the remarks which he made to the court during the directions hearing on 8 June. At this point the trial had already been listed for 25 June. Mr Germein was aware that Mr Klotz had been dismissed as the instructing solicitor and it was appropriate to bring to the court’s attention the fact that, as Mr Germein put it “the question of representation of Mr Grosser at trial may well be re-opened”.
Apart from that, it was Mr Germein’s view that the matter was ready for trial, but he had been instructed to vacate the trial date. Mr Germein was required to determine what defence preparation was reasonable, bearing in mind that the trial was funded by legal aid and it was a term of the assignment, agreed to by the applicant, that the applicant would accept Mr Germein’s reasonable advice.
Mr Germein did not disclose to the court any information which was vital to the defence case such as would ordinarily attract legal professional privilege. However, as the trial was so close to its commencement date, it was important that he indicate to the court any difficulties he was having in obtaining instructions, particularly if those difficulties might have affected the appropriateness of the commencement date of the trial.
I have already stated that Mr Germein also raised the question of the applicant’s fitness to stand trial. At the directions hearing Mr Germein referred to s 269W of the Criminal Law Consolidation Act which provides:
“(1)If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant’s best interests.
(2)If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant’s best interests.”
Mr Germein submitted that it would be advisable to obtain an up to date psychiatric report on this issue. I should mention that at the previous trial the defence led evidence from Dr Westmore that the applicant may suffer from a severe paranoid personality disorder and from Dr Clayer that the applicant exhibited paranoid ideation or thought processes which, while not delusional, involved the belief that he was being harassed, persecuted or unfairly treated. Mr Borick QC also suggested that I might consider the possibility of an investigation into the applicant’s fitness to stand trial when he withdrew from the case as the applicant’s counsel at an earlier directions hearing.
I did not think at that time that there was sufficient justification for me to embark upon an enquiry of my own volition pursuant to s 269J of the Criminal Law Consolidation Act. However, no criticism can be made of Mr Germein for raising the issue. Mr Germein was entitled to act in the exercise of the independent discretion provided for in s 269W. Indeed it would seem that he was under a duty to draw any concerns as to the applicant’s fitness to stand trial to the attention of the court (R v Dashwood [1943] 1 KB 1 at 4).
The circumstances leading to the dismissal of Mr Germein and Mr Klotz as the applicant’s legal advisers are an illustration of the problem which lies at the heart of the difficulty with respect to the applicant’s representation. For some years prior to the first trial the applicant embarked on a campaign aimed at exposing activities of allegedly corrupt police officers and members of the group he refers to as “the mafia”. It is unnecessary for present purposes to enter into the question as to whether the campaign was genuine.
However, this campaign is of some relevance to the applicant’s defence. It is of relevance to the relationship which existed between the accused and the police at the time of the alleged offences. It has some relevance to the issue of credibility and the motives for the police actions at the time of the siege. Nevertheless, it is also apparent that the applicant is intent on proving the substance of the allegations he has been making about alleged corruption to an extent which could not be justified on the grounds of relevance at his trial. The Legal Services Commission and various counsel who have represented the applicant from time to time in this matter have attempted to confine the issues to those which are relevant to the trial. The reaction of the applicant has been to accuse them of joining in a conspiracy to prevent the corrupt practices perceived by the applicant from being exposed and to thwart his defence.
The dilemma thus created is insoluble. The applicant will not accept anyone as a legal adviser who will not conduct his defence in the manner which he requires. On the other hand, the Legal Services Commission and counsel assigned by it have a clear duty to ensure the applicant’s legal assistance is restricted to those matters reasonably necessary for the presentation of the defence.
It is obviously undesirable for the applicant to be unrepresented at his trial and I have endeavoured to impress this upon him on several occasions when encouraging him to accept the legal representation provided to him. I have attempted to explore with him every avenue which might lead to his representation at the trial. I gave him an opportunity to reconsider his dismissal of Mr Germein and Mr Klotz after announcing my finding that they had not acted improperly in relation to the matters about which the applicant had complained. However, these attempts to persuade him have been to no avail.
The question arises, therefore, as to whether a trial in which the applicant was unrepresented would be unfair and, as part of that enquiry, it is necessary to determine whether such lack of representation should be seen as being through no fault on his part (Craig v South Australia (1995) 184 CLR 163).
In determining these issues I have had regard to the guidance given in Craig (183) as to the effect of the reasons in Dietrich:
“The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused’s inability to obtain legal representation being ‘through no fault on his or her part’ was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that:
‘… what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.’
A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused.”
I am also mindful of the fact that, if the legal aid on offer to an accused person is transparently inadequate or subject to unreasonable conditions, the accused may fall into the category of a person to whom appropriate legal representation is unavailable through no fault of his or her own. (Souter (1997) 93 A Crim R 400 at 404; Attorney-General (NSW) v Milat (1995) 37 NSWLR 370).
However, it is far from the case that the legal assistance available through Mr Germein and Mr Klotz is clearly inadequate and it is equally obvious that the conditions attached to the grant of aid are fair and reasonable. Nevertheless, despite signing an undertaking that he will abide by the reasonable advice of his counsel, the applicant has demonstrated a determination not to be represented by anyone who does not accept his view of what is appropriate in the preparation and conduct of his case.
The applicant’s assertions that the counsel most recently dismissed lied in court and that counsel and the solicitor acted against the applicant’s interests are quite baseless. There is nothing before me to support the applicant’s often repeated assertions that other lawyers assigned to represent him from time to time had taken part in a “cover-up” with the DPP and have worked with the NCA and the DPP behind his back.
I have no doubt that the applicant will refuse to accept legal assistance unless those who represent him will conduct the trial in the manner he requires it to be conducted regardless of the cost or relevance. He has rejected offers of skilled legal assistance for the forthcoming trial and has acted unreasonably in so doing. It cannot be said that he is unrepresented through no fault of his own.
The application for a stay of proceedings and an indefinite adjournment of the trial will be dismissed.

[2002] SASC 193

1 July 2002