R v Grosser - [2002] SASC 193

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Grosser

Details

AGLC: R v Grosser [2002] SASC 193
Case: [2002] SASC 193
Decision Date: 1 July 2002

CaseChat Overview and Summary

In the South Australian Supreme Court, Grosser applied for a stay of proceedings and, alternatively, an indefinite adjournment of the trial of charges of attempted murder, wounding with intent to do grievous bodily harm, and endangering life. The applicant had been represented by various solicitors and counsel since the original trial which resulted in a conviction on some counts and an appeal which resulted in a retrial. The applicant dismissed counsel and solicitor assigned by the Legal Services Commission prior to the retrial and applied for a stay of proceedings and, alternatively, an adjournment of the trial. The court dismissed the application. In the course of the hearing, the applicant made a number of complaints concerning Mr Germein and Mr Klotz, the counsel and solicitor who had been dismissed. In the court's view, none of these complaints were justified. The applicant had dismissed Mr Klotz and Mr Germein for reasons which were not justified. The applicant was intent on proving the substance of the allegations he had 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 counsel assigned by it had a clear duty to ensure the applicant’s legal assistance was restricted to those matters reasonably necessary for the presentation of the defence. The dilemma thus created was insoluble. The applicant would not accept anyone as a legal adviser who would not conduct his defence in the manner which he required. It was obviously undesirable for the applicant to be unrepresented at his trial and the court had endeavoured to impress this upon him on several occasions when encouraging him to accept the legal representation provided to him. The court had attempted to explore with the applicant every avenue which might lead to his representation at the trial. The court had given the applicant an opportunity to reconsider his dismissal of Mr Germein and Mr Klotz after announcing its finding that they had not acted improperly in relation to the matters about which the applicant had complained. These attempts to persuade him had been to no avail. The question arose as to whether a trial in which the applicant was unrepresented would be unfair and, as part of that enquiry, it was necessary to determine whether such lack of representation should be seen as being through no fault on the applicant's part. In the court's view, the applicant had been unreasonable in refusing offers of skilled legal assistance for the forthcoming trial. It could not be said that he was unrepresented through no fault of his own.

Orders