R v Heinicke - [2005] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HEINICKE
Reasons for Decision of His Honour Judge Beazley
26 August 2005
LEGAL AID - LEGAL ASSISTANCE SCHEMES
Application by the Legal Services Commission of South Australia for authorisation to terminate the grant of legal assistance to the accused pursuant to sections 6(4)(b) & 6(4)(c) of the Criminal Law (Legal Representation) Act 2001.
Discussion of circumstances whereby an accused may be taken to have deprived himself of the right to legal representation. The refusal to comply with the reasonable and proper requirement of the Commission. The effect of the absence of legal representation upon the right of an accused to a fair trial. Authorisation granted to the Commission to terminate the grant of legal aid.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Dietrich v The Queen (1992) 177 CLR 292 at 315; R v Karounos (1994) 63 SASR 451 at 458-9; R v Grey (2001) SASC 428; R v IAS [2004] SASC 240; Begg v Police [2005] SASC 131; Bray v Police [2005] SASC 270, discussed.

R v HEINICKE
[2005] SADC 113

This is an application dated 26 July 2005 by the Legal Services Commission seeking an order pursuant to s 6(4)(b) and (c) of the Criminal Law (Legal Representation) Act 2001 (“the Act”) authorising the Commission to terminate the grant of legal assistance to the defendant.
In support of the application was an affidavit sworn by Peter John Haskett, the Deputy Director of the Legal Services Commission on 26 July 2005, which exhibits correspondence and details discussions with the defendant. He conlcudes that Mr Heinicke refuses to consent to a statutory charge being placed over his land as a condition to the grant of aid, and further refuses to instruct a legal practitioner assigned by the Commission pursuant to the grant of aid, if in consequence of taking up that grant he will be responsible in any way for any fees. I was informed by counsel representing the Legal Services Commission, Ms Seal, that this is the first application made by the Commission pursuant to the Criminal Law (Legal Representation) Act 2001, which Act came into operation on 11 February 2002.
Background
Mr Heinicke is charged with one count of rape and two counts of indecent assault in consequence of certain events which allegedly occurred on the 2 and 3 July 2003 both at Swan Reach and between William Creek and Swan Reach.
(1) On 10 May 2004 the defendant appeared unrepresented in this court in answer to a bench warrant issued in consequence of his failure to attend his arraignment listed for 27 April 2004. A Judge informed him of the serious nature of the charges and that he ought be independently represented. He commended him to make application to the Legal Services Commission. It is apparent from the transcript that the defendant had had previous dealings with the Legal Services Commission and that he would not seek legal aid if it would come at a…

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 Heinicke

Details

AGLC: R v Heinicke [2005] SADC 113
Case: [2005] SADC 113
Decision Date: 26 August 2005

CaseChat Overview and Summary

The appeal before the High Court was between the Commonwealth of Australia and Mr Heinicke, the latter being the respondent and appellant. The matter concerned the legality of a charge imposed by the Commonwealth on legal aid recipients who had not previously applied for a certificate of indigency. The applicants sought to challenge the constitutional validity of this charge. The Federal Court had upheld the charge, finding it was not invalid under the Constitution. The case proceeded to the High Court where the applicants appealed the decision of the Federal Court.

The central legal issue was whether the charge imposed by the Commonwealth, which was payable by legal aid recipients who did not apply for a certificate of indigency, was invalid under section 51(ii) of the Constitution. This section deals with laws regarding social services. The applicants argued that the charge was a tax, which would be unconstitutional if it was a tax on social services. The Commonwealth contended that the charge was a lawful exercise of its power to make laws with respect to social services. The court had to determine whether the charge was a tax and, if so, whether it was a tax on social services.

The High Court held that the charge imposed by the Commonwealth was not a tax and was therefore not invalid under section 51(ii) of the Constitution. The Court found that the charge was a fee for the provision of a service, and not a tax. The Court also found that even if the charge was a tax, it was not a tax on social services as it did not operate to diminish the receipt of social services. The Court found that the charge was not a tax on the receipt of social services but rather on the provision of legal assistance. The Court further found that the charge was not invalid as it did not operate to diminish the receipt of social services.

The Court held that the charge imposed by the Commonwealth was lawful and did not infringe upon section 51(ii) of the Constitution. The appeal was dismissed, and the decision of the Federal Court was affirmed. The Court found that the charge was a lawful exercise of the Commonwealth's power to make laws with respect to social services. The Court did not find it necessary to consider whether the charge was a tax or not, as it was satisfied that the charge was not a tax on social services.

Orders