R v Grosser No. Sccrm-94-392

[2001] SASC 68

R  v  GROSSER
[2001] SASC 68

Criminal

Application for Stay of Proceedings

1................ DUGGAN J..... The applicant has applied for a permanent stay of criminal proceedings commenced against him or, alternatively, for an adjournment of the trial.  The application for a stay of proceedings is based on the principles enunciated in Dietrich v The Queen (1992) 177 CLR 292.

1. 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.

2. 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.

3. The applicant was presented for trial on 12 September 1996.  The 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 was upheld and a retrial ordered.

4. Counsel who represented the applicant at the trial and on the hearing of the appeal no longer act for him.  He has been represented at the directions hearings held since the trial and on the present application by Mr McKenney.  Despite the considerable period of time which has elapsed since the delivery of judgment by the Court of Criminal Appeal, it is claimed that the applicant is not yet ready for trial.  The matter was given a trial commencement date of 2 April 2001.

5. The basis upon which the application for a stay of proceedings is made is set out in the following paragraphs of the application dated 15 February 2001:

   “3..... The 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.

   4.The charges allege matters which raise numerous complex matters of fact and law.

   5...... The 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.

   6.A miscarriage of justice will occur if the applicant has to proceed unrepresented due to the complexity of the matters of fact and law involved.”

6. It is appropriate to say something about the applicant’s defence as it was presented at the 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 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 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 understood that Cass was carrying out his threat and that it was necessary for him to defend himself.

7. The applicant has sworn two affidavits in support of his application for a stay of proceedings.  He makes a series of allegations in the affidavits, not all of which have obvious relevance to the application.  They include the following assertions:

·.. 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.

·.. The Director of Public Prosecutions perverted the course of justice and hid documents that would help the applicant prove his innocence.

·.. 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.

·.. Most South Australian lawyers are not prepared to expose police corruption.

·.. The applicant’s previous lawyers worked in with the Crown behind his back thus denying him a fair trial.

·.. The Government will not fund a fair retrial for the applicant.

·.. The applicant’s previous lawyers worked with the NCA behind his back during the trial to stop NCA failings being exposed.

·.. The applicant’s previous lawyers denied him documents which would have helped prove his innocence.

·.. The applicant’s case is unique and complicated.

·.. The Legal Services Commission will not fund his current legal team.

·.. The Legal Services Commission is not independent as it works in with the South Australian Government via the Attorney-General’s department.

·.. The Legal Services Commission has procrastinated on the applicant’s case.

·.. The Legal Services Commission is not trustworthy and has acted in bad faith towards the applicant on many occasions in relation to this matter.

·.. 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.

·.. 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.

·.. 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.

·.. 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.

1. There are several other matters raised by the applicant in the affidavits but it is unnecessary to refer to them at this stage.

2. 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.  A considerable amount of the work which he has done in preparing for the retrial has been funded by the Legal Services Commission.  He stated at the hearing of the application that since accepting the assignment he has worked on the case for approximately 100 days.

3. 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 application.  The applicant also tendered correspondence relating to funding by the Legal Services Commission.

4. 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.

5. 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 this period there have been many directions hearings at which attempts have been made to hasten the preparation of the matter for trial.

6. 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:

   “A.... That 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.

   B.In the event that applicant does not so appoint the Commission will appoint an appropriately qualified counsel from South Australia or interstate.

   C...... In 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.”

7. 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.

8. 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.

9. At the commencement of the hearing of the application before me 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:

10. Legal Services Commission scale rates will apply.

1. Funding will be available for a Queen’s counsel or a senior junior as well as a junior counsel and an instructing solicitor at the trial.

1. The Legal Services Commission is prepared to appoint appropriately qualified counsel from South Australia or elsewhere in the event that the applicant does not engage counsel.

1. The grant of funding would be conditional upon the applicant providing proper instructions to his legal representatives and following the reasonable advice of counsel.

1. 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.

1. The Legal Services Commission will fund the issue of subpoenas which counsel advises are reasonable and necessary for the conduct of the applicant’s defence.

1. In the light of this offer of funding, it is my view that the application for a stay of proceedings based on the considerations referred to Dietrich’s case cannot succeed.

2. In Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370 at 373 the New South Wales Court of Criminal Appeal (Gleeson CJ, Kirby P and Mahoney JA) summarised the propositions enunciated in Dietrich as follows:

   “(1).. Australian law does not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense.

   (2)However, under Australian law, an accused has the right to a fair trial or, perhaps more accurately, a right not to be tried unfairly.

   (3)... The courts have an inherent jurisdiction which extends to a power to stay proceedings in order to prevent the prosecution of a criminal proceeding which will result in a trial which is unfair.

   (4)Each case needs to be examined in the light of its own particular circumstances.  However, ordinarily, where an indigent person has been charged with a serious criminal offence, if, by reason of lack of means and the unavailability of other assistance, that person is denied legal representation, the trial will be unfair.

   (5)... Accordingly, where an indigent person has been charged with a serious criminal offence, and he or she is denied legal representation by reason of lack of means, and the unavailability of other assistance, the court has jurisdiction to stay the proceedings until he or she is provided with legal representation necessary for a fair trial, or with the resources necessary for such representation.”

3. In order to succeed on the application for a stay of proceedings the applicant in the present case must establish that he has been unable to obtain legal representation and that his trial would be unfair as a result.  (Milat at 380G). The task which I am required to perform is similar to that which confronted the trial judge in Milat where there was an offer of legal assistance by the New South Wales Legal Aid Commission which consisted of four alternatives.  The Court of Appeal commented (376B):

   “... as his Honour’s approach to the matter impliedly and correctly recognised, if the application for a stay were to proceed [sic], the respondent had to show why he ought to be regarded as unable to obtain representation when, on the face of it, any one of the four alternatives involved an offer of representation, or of funding for representation.”

4. Mr McKenney stated in argument that the only difficulty about the latest offer by the Legal Services Commission was in relation to the appointment of counsel who would lead for the defence.  He said that he was available to appear as junior counsel and there was a solicitor who was available to instruct.  He went on to say, however, that the applicant was adamant that he would accept nothing less than an assignment of Queen’s counsel to lead for the defence.  He stressed the complexity of the case.  He argued that the applicant was entitled to an order staying the proceedings if the Legal Services Commission was not prepared to increase the fee payable to Queen’s counsel to the level stipulated by that counsel and the applicant was unable to secure the services of any other Queen’s counsel prepared to represent the applicant at the level of remuneration fixed by the Legal Services Commission scale.

5. This contention receives no support from Dietrich and various authorities which have followed it.  A court hearing an application such as the present cannot be concerned with the level of competence of the proposed representation except where that representation is found to be so incompetent as to place the accused, for all practical purposes, in the position of being unrepresented.  I respectfully adopt the views expressed by the Court of Appeal in Milat (375C):

   “The principle in Dietrich concerns persons being, or about to be, tried for serious criminal offences who are, to use the language of one of the leading judgments (at 311), ‘forced on unrepresented’. It does not concern an accused person’s supposed right to competent counsel; the existence of such a right was denied by the decision in Dietrich.  That does not mean that questions of competence are entirely irrelevant to the application of the Dietrich principle.  They are, however, to be put in their proper perspective.  It may well be that, in a given case, if the only representation available to an accused is manifestly inadequate to the task, it would be appropriate to regard the accused as being, for practical purposes, unrepresented.  That, however, is not the present case.

   The circumstances in which the stay application came before Hunt CJ at CL involved elements which had the potential to distract attention from the real issue to be determined.  Dietrich, it should be recalled, came before the High Court in a relatively uncomplicated manner.  An accused person, who had been refused legal aid, (for reasons that would not arise in this State), had appeared unrepresented at his trial and had been convicted.  The present case, however, is more complex.  There is a team of lawyers, suitable to the respondent, and available to appear for him.  They have rejected the fees offered to them by the Legal Aid Commission as being too low.  They want to be paid more.  There are other alternative forms of legal assistance on offer.  That is the factual background against which the respondent claims that legal representation is unavailable to him.  It is understandable that a trial judge would be frustrated by a stand-off between the respondent’s chosen lawyers and the Legal Aid Commission, especially if the judge formed an impression that the Commission was taking an unreasonable approach on the question of fees.  However, the judge’s function is not to approve or disapprove of the conduct of the Commission; it is to decide whether, it the events which have occurred, the respondent has shown that he is a person to whom legal representation is unavailable.  There could, no doubt, be cases where the legal aid being offered was so inadequate, or subject to such restrictive terms and conditions, that it would be right to conclude that a person to whom legal aid was offered has been left relevantly unrepresented.  But when a stay application is made in the present circumstances, there is a risk that a trial judge will be drawn into a form of arbitration between lawyers and the Legal Aid Commission.”

6. Again in R v Gudgeon (1995) 133 ALR 379 at 395 McPherson JA and Thomas J observed:

   “An assumption implicit in the appellant’s affidavit dated 14 June 1994 in support of the application seems to have been that the appellant was entitled to insist on being represented by a particular senior counsel, or at least on being represented by senior counsel and perhaps also one who was a member of the Sydney bar.  There is nothing in Dietrich to support such a conclusion. Indeed, in rejecting the proposition that an accused has an absolute right to the provision of counsel at public expense, Mason CJ and McHugh J said (177 CLR 292 at 310; 109 ALR 385 at 395-6) that recognition of such a right would create problems of its own. Their Honours expressed the matter as follows:

   ‘... if an accused has a right to counsel, does he or she have a right to demand counsel of a particular degree of experience and who can conduct the defence ‘effectively’?  How could such a right be monitored properly by the trial judge?’ ”

1. The offer of the Legal Services Commission would enable the applicant to be represented by competent counsel to lead for the defence regardless of whether that counsel was Queen’s counsel.  It must also be borne in mind that there is provision for a junior counsel and an instructing solicitor.  In these circumstances it could hardly be said that the applicant was unrepresented for the purposes of the application of the principles enunciated in Dietrich.  I should also mention that, generally speaking, Dietrich’s case does not require a stay of proceedings where an accused person is unrepresented by reason of his or her failure to meet the reasonable requirements of the Legal. Services Commission.  In R v Karounos (1995) 63 SASR 451 at 458 King CJ said:

   “Dietrich has established that the opportunity of legal representation, irrespective of means, is a necessary incident of a fair trial on a charge of a serious offence.  It is, however, the responsibility of an accused person to arrange his own legal representation.  He is not deprived of a fair trial if the lack of legal representation is due to the accused’s failure to take the appropriate measures to obtain legal representation.  Those measures include utilisation of his own financial resources or, if they are insufficient to fund the trial, taking the necessary steps to obtain legal aid.  If legal aid is sought the accused must comply with the reasonable requirements of the legal aid authority.  Dietrich should not be applied in a manner which would undermine the proper procedures of the Legal Services Commission for ensuring that it is not imposed upon and that it is provided with all necessary information and means of verifying it.  In the end, of course, the decision as to whether it would be fair to force the accused to trial unrepresented is for the court.”

2. For the reasons which I have given the application for a stay of proceedings will be dismissed.  However, I will hear the parties further on the application for an adjournment.