R v Luciano Marchi, Philip Marchi and Neville John Leslie Mead No. SCCRM 96/279 Judgment No. 5963 Number of Pages 10 Criminal Law and Procedure (1996) 67 Sasr 368

[1996] SASC 5963

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - Dietrich application - three accused, jointly charged with manslaughter and creating risk of harm, applied to stay proceedings on the information on the ground that they lacked the means to engage legal representation for the trial - the case is unusual, and will involve a considerable body of lay and expert evidence relating to the epidemic of the HUS syndrome which affected members of the public in early 1995 - the epidemic was said to have resulted from criminal negligence on the part of the accused in the preparation of fermented meat products for sale - the accused had access to some superannuation fund entitlements but no other substantial assets - the costs of legal representation for what would be a lengthy trial, including the retainer of expert witnesses, would be substantial and would far exceed their respective means - legal aid has been refused, as has an approach to the Attorney-General for special funding - the accused are in the relevant sense indigent, and, through no fault of their own, cannot fund their defences to the charges - in those circumstances proceedings on the information should be stayed until further order. Juries Act 1927s7; Juries Rules 1996 R
8 and 17; Evidence Act 1929s59J, referred to. Dietrich v Reg (1992) 177 CLR 292; New South Wales v Canellis and Ors (1994) 181 CLR 309; South Australia v Judge Russell and Anor (1994) 62 SASR 288; R v Karounis (1994) 63 SASR 451; Craig v South Australia (1995) 184 CLR
163; Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370, considered.

HRNG ADELAIDE, 5-6, 19 November, 18 December 1996 (hearing), 20 December 1996
(decision) #DATE 20:12:1996 #ADD 28:1:1997

Counsel for appellants Marchi:     Ms A Vanstone QC with her Mr S Ey

Solicitors for appellants Marchi:    Mangan Ey &; Associates Pty Ltd

Counsel for appellant Mead:         Ms L Powell QC

Solicitors for appellants Mead:     Andersons

Counsel for respondent:             Mr M Griffin

Solicitors for respondent:         DPP (SA)

ORDER
Applications allowed.

JUDGE1 PERRY J

1. Luciano Marchi, Philip Luciano Marchi and Neville John Leslie Mead stand charged upon the ex officio information of the Director of Public Prosecutions with three counts, namely, manslaughter, that is, the alleged unlawful killing of Nikki Dearne Robinson, and two counts of creating risk of harm.

2. As to the first of the latter two counts, the particulars take the form of an allegation that the accused, without lawful excuse, "failed to maintain adequate standards of production of fermented meat products knowing that such failure was likely to cause harm to other persons and were recklessly indifferent as to whether such harm was caused".

3. As to the second of them, the particulars assert that the accused "without lawful excuse, failed to inform the South Australian Health Commission of the possible contamination of salami and failed to issue a recall notice for salami knowing that such failures were likely to cause harm to other persons and were recklessly indifferent as to whether such harm was caused".

4. Initially, Garibaldi Smallgoods Pty Ltd (In Liquidation) ("Garibaldi") was jointly charged with the accused on the same information and with respect to the same alleged offences. However, on 23 September 1996 counsel for the DPP entered a nolle prosequi against the company.

5. I have before me two applications. The first, by the defendant Mead, is dated 31 October 1996, the second, by the defendants Luciano and Philip Marchi, 26 November 1996. Both applications seek orders that the indictment be quashed or alternatively that the trial of the information be "adjourned, postponed or stayed É".

6. The grounds upon which both applications are advanced are the same. They are that the defendants are said to be indigent and that through no fault of their own they lack the means to secure legal representation to defend the charges.

7. I heard the applications separately, dealing first with that brought by the defendant Mead. I reserved the decision in that case pending the hearing of the other application. These reasons deal with both applications.

8. It is common ground that the principles upon which the applications fall to be determined are those which find expression in the decision of the High Court in Dietrich v Reg. Those principles were stated in terms which substantially reflect the view of the majority in the joint judgment of Mason CJ and McHugh J as follows:
    "In view of the differences in the reasoning of the members of the
    Court constituting the majority in the present case, it is
    desirable 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 that 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 has been convicted without a fair trial."

9. I will say something about the nature of the charges.

10. All three charges arise out of the outbreak which occurred in South Australia in early 1995 of the syndrome known as Haemolytic Uraemic Syndrome (HUS). Nikki Robinson, who died of HUS, is said to have been a victim of that epidemic which affected a number of other people, largely young children.

11. The epidemic is said to have been caused by the consumption of mettwurst produced by Garibaldi. Two of the accused, Luciano Marchi and his son Philip Luciano Marchi were at the relevant time directors of the company. All three worked at the company's factory. The accused Neville Mead was employed in a position known as Financial Controller.

12. The prosecution case is that the accused were criminally negligent in their production of fermented meat products. Specifically the charges relate to the production of mettwurst, certain batches of which, on the Crown case, were contaminated by bacteria known as E.coli 0111. That, in turn, in the case of some of those who consumed it, which included Nikki Robinson, gave rise to the onset of HUS.

13. It is the Crown case that not only were the accused criminally negligent with respect to the production of the contaminated mettwurst, but that (with specific reference to the second of the two counts of creating risk of harm) they deliberately delayed in recalling all of their fermented meat products after they had been advised by health authorities that their products appeared to be linked to the HUS outbreak.

14. The laying of the information was not preceded by committal proceedings. However, there was a lengthy coronial inquest which generated some 5,788 pages of transcript of evidence and some ten volumes of depositions and exhibits, together with a considerable volume of other documentary material.

15. The hearing before me proceeded substantially upon the basis of affidavits sworn by each of the accused. In the case of the accused Mead there was a further affidavit of his wife, an affidavit by Mr Peter Norman, solicitor, who deposed to various cost estimates, and an affidavit by a scientist, Ms Mary Barton.

16. In the application by Luciano and Philip Marchi I received an affidavit sworn by Mr Stephen Ey, solicitor, which set out various cost estimates.

17. At the hearing of the application by Mr Mead, both he and his wife and Ms Barton were called to give evidence supplementing their affidavits and for the purposes of cross-examination.

18. In the case of the applications by Luciano and Philip Marchi, Mr Ey was called for a similar purpose.

19. In view of the unusual nature of the charges and the fact that there had been no preliminary hearing, I invited counsel for the DPP to furnish a summary of the basis upon which the case was pursued as against each of the accused. In response to that request, he provided a 106 page document which, in effect, comprises what is intended to be the prosecution's opening statement. As well, I was provided with a set of all of the various witness statements which comprised the DPP's trial brief.

20. While I have read the whole of the prosecutor's opening statement, I have only skimmed the other material to the extent necessary to assist in assessing the accuracy of the estimates with which I was furnished as to the likely length and cost of the trial.

21. The Crown case will involve a considerable volume of lay evidence as to the manner in which the epidemic broke out and the manner in which members of the public were affected by it, and expert and other evidence as to the alleged shortcomings in the processes by which fermented meats were produced by Garibaldi.

22. Although the accused Mead is separately represented by his own solicitors and proposes that, if the trial proceeds, he be represented separately by his own counsel, the two Marchis are both represented by the same firm of solicitors. Furthermore, if there is to be a trial, they intend to be jointly represented by one counsel.

23. Pursuant to s7 of the Juries Act 1927, the accused Luciano and Philip Marchi have elected to be tried by Judge alone. No election has yet been made by the accused Mead, the time for the election by him having been extended pursuant to the Juries Rules 1996 to Monday 6 January 1997. Given that all three accused are jointly charged, the effectiveness of the election by the Marchis is, having regard to the terms of s7(3) of the Juries Act, questionable. However, the parties are approaching the matter on the footing that if Mr Mead elects within the extended time given to him for that purpose to be tried by Judge alone, there will then have been an effective election to that end by all three accused. I do not pause further to address that question.

24. I suppose that trial by Judge and jury is likely to take a little longer than trial by Judge alone. However, none of the various estimates as to cost or time furnished during the course of the hearing of the applications make any distinction between the two. I think that is realistic, given the fact that in the circumstances of the case, only the broadest of estimates as to the likely length of the trial can be made at this stage.

25. The estimate given by counsel for the DPP is that the trial is likely to extend over six weeks. Counsel for the accused, however, doubt that estimate and suggest that the trial may well take longer. The estimates as to costs offered by Mr Norman were based upon an estimate of thirteen weeks, which equates with the time taken for the coronial inquest.

26. Mr Ey, on the other hand, offered an estimate of "not less than eight weeks", made up of five weeks for the Crown case, two weeks for the defence case and a week for submissions.

27. I would like to think that there would be some prospect at least that some of the evidence to be led by the Crown would be non- contentious and capable of informal proof. It has not been possible at this stage to address that question in any detail, as so far the attention of the solicitors for the parties has been focused upon the applications now under consideration.

28. At all events, at the last status conference conducted by me on 18 December 1996, I confirmed the commencement date of the trial as 24 February 1997 and left in place the previous estimate of six weeks. At the same time I directed that no R 9 application be entertained unless filed and served on or before Monday 3 February 1997. I reserved the right to call a further status conference early in the New Year.

29. I must say that with the benefit of further consideration of the submissions put with respect to the two applications now in question, I cannot think that it would be sensible to work on an estimate of the likely length of the trial less than eight weeks. The case has the capacity to blow out substantially beyond that, and in my view, there is no real possibility of it taking any less time than that.

30. As to costs, in Mr Norman's affidavit he suggests a total estimated costs of $597,900, based on a thirteen week trial, and including all costs of preparation and costs involved with expert witnesses.

31. Mr Ey, on the other hand, during the course of his oral evidence advanced a revised estimate of $309,000, including preparation costs, the costs of expert witnesses and the costs of presentation of the defence at the trial. Unlike Mr Norman's estimate, which was based upon the Supreme Court taxing officers guide to counsel fees, Mr Ey's estimates were based upon counsel fees at the rate allowed by the Legal Services Commission, which is a considerably lower daily rate.

32. Particularly in the area of expert evidence, one would expect that all three accused could sensibly pool their resources to some extent.

33. Mr Ey's estimates are based on a modest hourly rate for solicitor's time. I think that his revised approach, based upon counsel fees as paid by the Legal Services Commission, is a proper basis upon which to proceed. After all, if he offers those estimates, it is reasonable to assume that counsel are available to present the defence at a rate of remuneration reflecting the Legal Aid scales. Ms Vanstone QC, who presented the application on behalf of the Marchis, did not suggest otherwise.

34. Although a little more work might be expected in preparation and presentation of the defence of two accused as opposed to one, I do not think that to be a factor which would give rise to any substantial differential in the particular circumstances of this case.

35. In all the circumstances, I think it proper to estimate the likely costs of the presentation of the defence on behalf of the two Marchis on the one hand and Mr Mead on the other, including the costs associated with any expert witnesses, at the revised estimate put forward by Mr Ey which I would round off at $310,000.

36. In offering that estimate, I observe that this is a case where every effort should be made by the Court to ensure that the parties facilitate the presentation of evidence which is not seriously contested. If necessary, it is a case where it would be appropriate to have recourse to s59J of the Evidence Act 1929 in an endeavour to achieve that end.

37. Against that background, I proceed to consider the evidence as to the means of the accused.

Neville Mead

38. Mr Mead is married, with three children aged 10, 13 and 14 years. He lives with his wife and family in a house owned by Mrs Mead which she values at about $150,000. Her estimate of value has not been placed under challenge. The house is subject to a mortgage to the Commonwealth Bank, upon which is owed approximately $24,000. The mortgage debt is owed by both Mr and Mrs Mead.

39. It appears from the evidence of Mr and Mrs Mead that originally the matrimonial home was jointly owned. Mr Mead executed documents transferring it into the name of his wife in about August 1994, apparently because he had an intention at that stage of going into business on his own account. The transfer was not actually effected then, but was registered on the title in February 1995 after Mr Mead had received some personal threats. Mrs Mead's evidence was that he effected the transfer at that stage "to protect his family". His evidence was to much the same effect. Neither Mr nor Mrs Mead was prepared to concede any interest in the house in favour of Mr Mead.

40. The only other substantial asset owned between them is Mr Mead's interest in certain superannuation funds. His evidence that his interest in a superannuation scheme conducted by his former employer, the Commonwealth Bank, amounted to $64,527.25, and in a separate scheme conducted by the AMP $28,057.67, and in another scheme conducted by his present employers, $2,032.12, was not challenged. Neither was his evidence challenged that he was not able to obtain payment at this stage of the amounts accrued with AMP or with his present employer.

41. As to the superannuation entitlement with the Commonwealth Bank, his understanding, again unchallenged, was that he could have the whole of the present surrender value paid out to him, but that he was disinclined to do so as he regarded the superannuation fund entitlements, and for that matter whatever equity he might have had in the family home, as being assets which should be protected for the benefit of his wife and children. Mrs Mead took the same view.

42. The argument put on behalf of the DPP was that Mr Mead should be regarded as having access to at least 50% of the total "matrimonial assets". If one looks broadly at the equity in the house, together with the entitlements said to exist in the superannuation funds, one half would amount to approximately $110,000. That sum is nowhere near enough to fund Mr Mead's defence.

43. Mr Mead has employment. I deliberately do not give the details of this as I have made a suppression order with respect to any evidence tending to identify the employer. He earns approximately $750 per week gross, $540 net, but he regards the job as being in jeopardy if he has to absent himself from his employment in order to be involved in the trial.

44. Mrs Mead has a weekly income from part-time work amounting to some $270 net.

Luciano Marchi

45. Until 6 February 1995, Luciano Marchi was a director of Garibaldi. Thereafter he commenced working for the receiver of the company until 2 May 1995, for which he received approximately $400 net per week. He then received sickness benefits until 25 January 1996 when he commenced working as a packer/driver. This is part-time work in which he is still engaged and from which he earns approximately $280 net per week.

46. He is married and has two children from a previous marriage, namely, the accused Philip Luciano Marchi and another son. His wife is unemployed. She receives a Department of Social Security "partners" allowance of $171.03 per fortnight.

47. As a director, Mr Luciano Marchi provided personal guarantees to the Commonwealth Bank for debts owed by Garibaldi and two other, apparently related, companies. Following the winding up of the companies, the bank was owed in excess of $3.5 million. To enforce the guarantees, the bank forced the sale of his former matrimonial home, taking the proceeds of the sale. The same process was followed with other real estate which he owned.

48. Consequently, he now has no substantial assets except for an amount of superannuation which I will come to, and lives with his wife in rented accommodation.

Philip Luciano Marchi

49. Philip Marchi is married, with two children aged 6 and 4 years respectively. He also worked for the receiver of Garibaldi until May 1995, but thereafter was on social security except for a short period in employment between January and February of this year. In April 1996 he commenced working as a part-time driver earning $300 gross per week. His wife works part-time and earns about $400 gross per week.

50. As was the case with Luciano Marchi, the matrimonial home formerly occupied by Philip Marchi and his wife was sold at the insistence of the Commonwealth Bank, the proceeds being be paid towards the debt owed to the bank. He and his wife and family now reside in rented accommodation. His only asset of consequence is his interest in moneys which resulted from the payment out of a superannuation fund.

The Marchis' Superannuation Entitlements

51. Earlier this year Luciano Marchi obtained what he described as "early release" of superannuation entitlements amounting to $94,678.67, and Philip Marchi of a superannuation entitlement amounting to $21,189.32. The superannuation moneys were pooled and placed in a single account which is operated on solely for the purpose of paying legal expenses.

52. The Marchis former solicitors have been paid certain bills, leaving a present balance in the account of some $70,000. That is liable to be reduced by approximately a further $10,000 in the near future when further accounts for legal work done by the solicitors and counsel are met.

Other Sources of Funding

53. All three applicants applied to the Legal Services Commission for assistance in funding their respective defences. In each case the applications were refused on the basis, inter alia, that the funding cap which would apply to assignments of this kind would be substantially exceeded, and the Legal Services Commission would not contribute towards the cost of a defence which substantially exceed the funding cap.

54. It was agreed by counsel that the funding cap was recently reduced and now stands at some $75,000.

55. Appeals by all of the accused against the refusal of legal aid were in turn refused.

56. Separately, each accused, through their solicitors, sought funding direct from the Attorney-General. The Attorney-General has intimated in effect that he is not prepared to consider any application for funding unless and until the court has ruled on the question whether or not the accused are indigent.

Conclusion

57. What must clearly be understood is that this Court is bound by the decisions of the High Court, in particular the decision in Dietrich, and in the absence of exceptional circumstances, it must adjourn or stay a trial where the accused is indigent and charged with a serious offence, and through no fault on his or her part, is unable to obtain legal representation.

58. For these purposes, indigent does not mean that the accused must be penurious in the sense of living in poverty. Rather, the test of indigence is satisfied if the accused lacks the means to engage appropriate legal representation to conduct his or her defence.

59. In my opinion, despite the fact that the accused have access to some assets, the value of the assets falls so far short of what is reasonably necessary to conduct a defence that they are properly to be classed as indigent for present purposes.

60. Through no fault on their part, they are unable to obtain legal representation.

61. The offences are serious. Furthermore, none of the accused has the skills which would be necessary to conduct his own defence, particularly bearing in mind the complexity of the charges and the large volume of evidentiary material which will be associated with the trial.

62. There are no exceptional circumstances which would operate to deflect the Court from making the order which I propose.

63. The proper course in those circumstances is to stay the proceedings on the information until further order. It will now be incumbent upon the Government to determine whether or not in the circumstances it is prepared to provide the means by which the accused can conduct their defences to the charges. In the course of doing so, in the case of Mr Mead, it will be necessary for the Government to make a decision as to whether he should bring to account in some way his superannuation entitlement, and any equity he may have, if any, in the former matrimonial home. That is obviously not an issue with the Marchis.

64. I can only express the hope that a decision will be made promptly as to the possible provision of funds by the Government. The trial is set to commence on 24 February 1997. I have already resisted one application by counsel for Mr Mead to vacate that date on the footing that even if sufficient assistance was to be forthcoming which would enable Mr Mead's legal advisers to commence working on the brief, there would be insufficient time for the necessary preparatory work to be done before that date.

65. Unless and until an appropriate level of funding is made available to enable the accused to conduct their defence to the charges, the stay will remain in place.