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 cost to him.
(2) On 18 May 2004 the defendant was arraigned. He repeated his position that he would not accept the terms of any legal aid such that would result in a charge being taken over his land as had occurred on two previous occasions.
(3) On 17 June 2004 a Judge of this Court directed the defendant to make application to the Legal Services Commission pursuant to s 8 of the Criminal Law (Legal Representation) Act (“the Act”).
(4) On 3 August 2004 the Legal Services Commission granted legal aid to the defendant effective from 22 June 2004. The grant of aid was conditional upon his consent to a statutory charge being placed upon his land to cover such costs as exceed the sum of $1,300.00. On 20 August 2004 the defendant telephoned the Legal Services Commission stating that he would not accept the grant of aid, if a charge could be taken over his land.
(5) On 16 September 2004 the defendant attended a further directions hearing. He made it plain that under no circumstances would he permit a charge to be taken, and accepted the consequence that he would have to represent himself. He was again warned of the perils of so doing. The trial was listed for Monday 9 May 2005. The defendant was directed to file a written assurance with the Court whereby he indicated that he chose to represent himself at the trial. An application made by counsel to withdraw from the file was thereby granted.
(6) On 3 February 2005 the following exchange took place:
Q“His Honour: Mr Heinicke, I take it from what I have heard from the prosecution and from what I know about your case anyway, you are determined to represent yourself in this matter; Is that right?
AAccused: I got no other choice.
QHis Honour: You are prepared to do that?
AAccused: No really, but if I have to, I have to.
QHis Honour: You are not prepared to provide the Legal Services Commission with the ability to charge your property etc; Is that the position?
AAccused: That’s correct.
QHis Honour: So you’re resigned to representing yourself.
AThat’s it.
QHis Honour: You’ve heard what Ms Downey said. Will you sign an assurance under the legislation that you’re so determined; that is, that you are going to represent yourself, and the trial would go on that basis?
AAccused: I don’t see any other way.”
(7) On 3 March 2005 a Judge of this court explained at length the consequences of having no representation at the trial. He was presented with a form of notice pursuant s 8 of the Act indicating an assurance by him that he would appear for himself. He refused to sign the notice saying:
I have a rough idea, but I am not happy with a few things there like I do want legal representation. That’s not right. That’s incorrect. I’d prefer to have legal representation. It is not that I don’t want it; I just don’t – I’m not happy with whatever costs they want. I can’t afford lawyers. I can’t afford anymore costs.
(8) On 9 May 2005 the trial was listed for hearing. On that day, the accused appeared in person. At that time, the trial judge was informed that the accused wished to have legal representation, but would not abide by a condition that there be a charge on the property and, further, would not sign a document to the effect that he did not wish to have legal representation pursuant to s8 of the Act. At that time, the Legal Services Commission had granted conditional legal aid but had not made application for leave to terminate that grant of aid. The trial date was vacated and listed for a further directions hearing.
(9) On 11 May 2005 the defendant appealed to the Commissioner of the Legal Services Commission against the condition for the imposition of a charge. That appeal was refused.
(10) On 25 May 2005 Mr Haskett explained to the defendant that he was entitled to aid in the sum of $1,300 before a charge would be taken out. The defendant refused to take up the aid even on that basis.
(11) On 23 June 2005 the trial was relisted for hearing on 17 July 2006. A Judge provided the defendant with a further opportunity to consider his position because of the serious nature of the charges. The trial date was set to give the defendant time to prepare his case in the event he continued to refuse to accept legal aid.
On each of the subsequent directions hearings the need for legal representation and the desirability of the accused taking up the offer from the Legal Services Commission had been pressed time and time again.
Prior to the commencement of the Act, where an applicant was unable to afford legal representation but sought the same with respect to a serious offence, a Dietrich Application may be made:-see Dietrich v The Queen (1992) 177 CLR 292 at 315 …
That at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application of the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused is being convicted without a fair trial.
There is no doubt that, even prior to the introduction of the Act, an accused facing a charge for a serious offence was entitled to be represented by a legal practitioner. There are significant advantages in an accused being represented at his or her own trial. It is an advantage to have a person who is skilled in the procedures of the court, the rules of evidence and the art of advocacy, and a person who is able to bring a dispassionate mind to the case. See McInnnis v The Queen (1979) 143 CLR 575 and Bray v Police [2005] SASC 270. There are particular difficulties in the case of offences of sexual assault where orders are sought to protect vulnerable witnesses.
As Lander J indicated in R v Grey (2001) SASC 428, a person may waive a right to have legal representation either expressly, or it may be inferred. Where a party has expressly renounced the right to be represented, and where that renunciation has not been brought about by collateral pressures, then a trial can proceed without that person being represented. In other cases it may be inferred because a party had not retained a legal representative that that party has also renounced a right to be represented.
Unlike the case of Grey, the accused in this case has now twelve months to prepare for trial, to take up the offer of legal aid from the Legal Services Commission or, alternatively, engage alternative legal representation.
While the issue here is whether the Court should authorise the termination of legal assistance on the ground that the defendant has not complied, and refuses to comply with a condition of the grant of legal assistance, relevant to the discretion is whether the accused has, by his conduct, renounced a right to be represented notwithstanding his assertion that he wishes to be so represented.
Well before the introduction of the Act, King CJ in R v Karounos (1994) 63 SASR 451 at 458-9 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, taken 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 the 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. If aid is refused for a trial of a charge of a serious offence on the ground of perceived lack of merit or lack of funds available for legal aid, the court may well stay the trial until legal representation is arranged. The court may, if it sees fit, review the Commission’s assessment of indigence. It may review and assess for itself the reasonableness of the Commission’s requirements. Where, however, the reason for the lack of representation is the accused’s refusal or neglect to comply with the reasonable and proper requirements of the Commission, he deprives himself of representation and to force him to trial unrepresented cannot be regarded as a denial of a fair trial.
The Act
The Act came into operation on 11 February 2002. The objects of the Act refer specifically to the interest of the administration of justice in ensuring trials are not disrupted as well as balancing the right of accused persons to representation and an obligation to contribute to the cost of the same. Section 3 sets out the objects as follows:
(a)     To ensure that legal representation is available to persons charged with serious offences;
(b)     As a consequence of the provision made for legal representation – to limit the application of the rule under which the trial of the person charged with a serious offence may be stayed on the ground that the trial would be unfair for want of legal representation;
(c)     To ensure, as far as practicable, that trials are not disrupted by adjournments arising because the defendant lacks legal representation;
(d)     To ensure that defendants who obtain legal representation under this Act pay for it to the extent that their means allow it.
Section 6 of the Act obliges the Legal Services Commission to grant legal assistance, by way of legal representation, at trial subject to the qualifications contained in that section. Section 6(3) permits the Commission to impose conditions upon the grant of legal assistance and specifies, by way of example conditions requiring an applicant to pay monies towards the cost of providing legal assistance or, alternatively, to indemnify in full the Commission for the cost of such legal assistance.
Once the Commission has granted legal assistance, it is prohibited from terminating that legal assistance other than on the basis contained in section 6(4) thereof. In the circumstances which have arisen, namely, that Mr Heinicke has neither obtained privately funded legal representation nor notified the Commission of his intention to do without legal representation at the trial, the only bases for termination are as follows:
(b) The assisted person contravenes or fails to comply with the condition on which the legal assistance was granted and the court authorises the commission to terminate legal assistance on that ground;
or
(c) The assisted person refuses or fails to cooperate with the legal practitioner assigned to provide the legal assistance and the court authorises the commission to terminate legal assistance on that ground.
In the event that legal assistance is terminated under s 6, any further application for legal assistance is subject to the absolute discretion of the Commission in s 6(5) of the Act.
Section 11 of the Act provides for the modification of the rule in Dietrich so that, subject to the conditions therein, the fairness of a trial cannot be challenged on the ground of lack of legal representation. The Act, thereafter, contains various powers of investigation to ensure the recovery of the costs of legal assistance.
The Commission’s Application
The application of the Commission dated 26 July 2005, seeks an order that it be permitted to terminate the grant of legal assistance to the defendant pursuant to s 6(4)(b) and (c) of the Act.
It is an application made some twelve months in advance of the trial and, in that sense, is to be distinguished from the applications for adjournment made in the cases of R v Grey (2001) SASC 428 and Begg v Police (2005) SASC 131.
In the event that leave is given to the Legal Services Commission the accused has some twelve months to:
1. obtain privately funded legal representation for the trial.
2. seek representation on a pro bono basis from the profession.
3. apply again for legal assistance from the Legal Services Commission pursuant to section 6(5) of the Act.
4.notify his intention in writing to do without legal representation at the trial and to properly prepare his defence.
I have no doubt from the affidavit of Mr Haskett, sworn on 26 July 2005, that the Legal Services Commission has used its best endeavours to enable Mr Heinicke to take up the legal assistance extended to him pursuant to s 6 of the Act. At the least, since 3 August 2004 the Commission has made it clear that the sole condition for the grant of legal assistance is that Mr Heinicke sign a consent to a statutory charge over the land to cover costs which exceed the sum of $1,300.
At the hearing of the application on 29 July 2005, I embarked upon a review and assessment of the reasons of the Commission’s requirements. That enquiry adduced the following material.
1.The Commission’s condition permits the expenditure of one thousand three hundred dollars ($1,300) without the requirement of any charge. Beyond the figure of one thousand three hundred dollars ($1,300) the Commission requires a statutory charge over the accused’s land.
2.The charge taken by the Commission carries no interest and is not called upon until the land is sold.
3.The accused already has two charges from the Legal Services Commission on his property.
4.The charge sits on the land for as long as the accused is alive and as long as the land remains in his possession, with no interest accruing on that charge. If the legally assisted person wishes to sell the land in order to move into retirement premises, or otherwise, and the new premises are capable of bearing a charge, the Commission can transfer the charge to the new premises.
5.If the accused’s circumstances change, whether through illness or otherwise, there is always the capacity for any person who has been assisted, and who has a charge over their land, to write to the Commission to seek that the charge be reduced or waived.
6.In the event that the administration decides not to reduce or waive the charge the accused has the ability to appeal to the Commissioners and can do so as many times as he wishes.
The following exchange took place with the defendant:
HIS HONOUR:
If your circumstances change, you have no money or things occur to you over a period of time you can make application to the Commissioners just as you did the last time about there being no charge at all. You can make application with respect to the previous charges and even this charge to vary it, or ask for it to be waived or removed. You may not be successful but they are things that you can do. In other words they will remain on your property until the property is sold down the track. They will not sell the property while you live there.
If your circumstances change whereby you cannot afford to live, you may make an application to the Commissioners to vary the terms of the charges. But it is really important, because one can get quite stubborn or otherwise about this that we need to know now what you are going to do.
I am telling you that you need to have legal representation but, if you decide yourself that “I will not have legal representation because I won’t pay a lawyer, I won’t agree to reasonable terms from the Legal Services Commission”, then this trial will proceed on 17 July next year and you will be conducting your defence yourself. It will not be adjourned. You will be over the next couple of months between now and then brought back here to tell me what you have done so that I can be sure that the trial is properly prepared. It will not be adjourned Mr Heinicke.
It is very important for you to think very carefully about this now. Your next decision could be a very important one for you, from your point of view, in respect of this charge over your land. You have been through this experience before. You want to have a lawyer. From your point of view it is in your interest to have a lawyer. I will ask you again, “Are you prepared to do all you can do to assist the Legal Services Commission firstly with respect to having a charge over the property so that legal assistance can be given to you. Are you prepared to do that?”
ACCUSED:        No.
HIS HONOUR:     Thank you. If a lawyer were made available to you, would you properly instruct them on the basis that down the track there may be a charge over your land?
ACCUSED:        No.
HIS HONOUR:     Thank you. You don’t want to consider this any further at all: You don’t want to think about it anymore: You do not want a lawyer under any circumstances at all where you are required to give a charge, is that right?
ACCUSED:        That’s correct.
Conclusion

As is apparent from these reasons, the dispute between Mr Heinicke and the Legal Services Commission has been in place for approximately twelve months. The dispute has already led to the adjournment of a trial in respect of events which occurred on 2 July 2003. A trial date has been set for 17 July 2006. In this case, there is the clash between two of the primary objects of the Act, namely to ensure that legal representation is available to persons charged with serious offences, and that accused persons who obtain legal representation under the Act pay for it to the extent that their means allow.
In this case, we have an accused person who has been offered legal assistance pursuant to s 6 of the Act. He is a person to whom legal assistance has been granted in the past, and in respect of whom statutory charges have been taken out to cover the cost of that legal assistance.
I have no doubt that the condition imposed by the Legal Services Commission, pursuant to s 6 of the Act, is an eminently reasonable condition. It does not require the payment by the accused of any money immediately. It provides assistance in the sum of one thousand three hundred dollars ($1,300) towards the cost of the defence before a statutory charge takes effect. The statutory charge does not incur interest and may remain dormant on a property until the death of the accused or, alternatively, the sale of the property.
In addition to the provisions in the Act the Legal Services Commission, pursuant to s 18 of the Legal Services Commission Act 1977, is entitled to stipulate payments towards legal assistance costs as a condition to the grant of legal assistance, and to recover the same upon notice as a debt pursuant to s 18(5) thereof. Section 18A provides the mechanism whereby the legal assistance costs are to be secured by charge over the accused’s land whether the accused agrees with the charge or not.
I am, of course, most concerned at the prospect of an unrepresented accused person facing serious charges. Beyond the serious consequences for him, it has, as already has been seen, an impact upon the administration of justice.
It seems to me, however, consistent with the dicta in Karounos’ case, that the sole reason for the lack of representation is the defendant’s conscious refusal to comply with the reasonable and proper requirements of the Commission. In light of that intransigence the defendant will not be able to assert that he was deprived of a fair trial because of his own failure to take appropriate measures to obtain legal representation. The court cannot force the defendant to take legal representation. It can only direct him, pursuant to the Act, to apply for legal assistance and, as best it can, ensure that the legal assistance is given on reasonable terms.
In this case the defendant has never taken up the legal assistance because of the condition attached to it. It is simply not reasonable to permit this state of affairs to continue, and the Legal Service Commission is entitled to some certainty as to its position.
In light of the history of this matter, and the numerous opportunities given by this court to Mr Heinicke to take up legal assistance, I have come to the conclusion that the Legal Services Commission has acted entirely reasonably and ought be permitted to terminate the grant of legal assistance pursuant to s 6 of the Act.
This, of course, is not the end of the matter for Mr Heinicke. I again commend him to make a fresh application pursuant to s 6(5) of the Act and to take up such legal assistance as is given to him on reasonable terms. Given his unequivocal response that he would not take up legal assistance on such terms nor even avail himself of the unconditional sum of $1,300 in aid, it is necessary for this court to ensure the fairness of the trial and to monitor the accused’s preparation for the trial.
I direct that this matter be listed for a further directions hearing on Thursday, 13 October 2005 at 9.30 am. Notice is to be given to Mr Heinicke and to the Director of Public Prosecutions of that adjourned time. Mr Heinicke is to attend at that time. I will expect Mr Heinicke to inform the court as to the preparation which he has undertaken so far with respect to the trial; whether he requires any further documentation from the Director of Public Prosecutions or any assistance with respect to witnesses to be called. He should also be in the position to advise the court whether he intends to make any fresh application pursuant to s 6(5) of the Act or, alternatively, seek separate legal representation.
The formal orders of the Court are:
1.That the Legal Services Commission is authorised to terminate the grant of legal assistance pursuant to s 6(4) of the Act.
2.The matter be listed for a further directions hearing on Thursday 13 October 2005 at 9.30 am at which time Mr Heinicke must attend.