R v Phung
[1999] VSCA 195
•1 December 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 27 of 1999
THE QUEEN
v
QUOC KINH PHUNG
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JUDGES: BROOKING, CHARLES and BUCHANAN, JJ.A. WHERE HELD: MELBOURNE DATES OF HEARING: 13 and 14 October 1999 DATE OF JUDGMENT: 1 December 1999 MEDIA NEUTRAL CITATION: [1999] VSCA 195
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CRIMINAL LAW – Application for legal assistance – s.360A Crimes Act 1958 – Triable issue test incompatible with fair trial – Miscarriage of justice.
SECTION 360A Crimes Act 1958 – Validity.
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APPEARANCES: Counsel Solicitors For the Crown Mr P.A. Coghlan, Q.C. P.C. Wood, Solicitor for
Public ProsecutionsFor the Applicant Mr P.G. Nash, Q.C. and Kuek & Associates Mr D. Perkins Amicus Curiae Mr D. Grace, Q.C. Law Institute of Victoria Amicus Curiae Dr D.J. Neal Victorian Legal Aid
BROOKING, J. A.:
The circumstances out of which this application arises appear from the judgment of Buchanan, J.A.
Section 360A of the Crimes Act 1958 is peculiar to Victoria. In the first five years or so of its operation only 39 applications under it were made: Victoria Legal Aid v. B. [1998] VSCA 56 at [12]. We were told that up to the present time an application has been refused because there was no "triable issue" in only five cases. The origin of the "triable issue" test is the decision of Chief Judge Waldron in R. v. Drljaca, given on 12 November 1993, where, on an application under the section, his Honour said this (the emphasis is mine):
"… The critical question to be answered therefore is what is meant by the words that 'it (the court) will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial'. In my judgment, subject to any authority to the contrary, when coming to answer that question the court must decide whether there is some triable issue. In a situation where an accused raises no triable issue but simply wishes to put the Crown to its proof in the hope that at trial that proof may in some way or other be deficient, it cannot in my view be said that the accused will not receive a fair trial unless he be legally represented in the trial.
In my judgment, it is a very different thing to say on the one hand that an accused person requires legal representation in order to obtain a fair trial where there is a contest on the facts, albeit that the Crown case is a very strong one, and on the other hand, where an accused offers no positive defence and raises no triable issue, to say that the court cannot ensure that an accused will receive a fair trial unless he is legally represented in order simply to put the Crown to its proof.
Is, however, the drawing of such a distinction consistent with the decision in Dietrich? The High Court in that case was of course determining, in the exercise of its appellate jurisdiction, whether a miscarriage of justice had occurred by reason of the appellant not having been legally represented on his trial. The issue of an unfair trial resulting from an accused being unrepresented was however, thoroughly canvassed.
Thus, in the joint judgment of Mason CJ and McHugh J, when they were considering the exercise of the appellate jurisdiction in criminal matters, it was said at page 14 that such jurisdiction 'depends upon a conclusion that there was a "miscarriage of justice" such that that the applicant 'has thereby lost a chance which was fairly open to him of being acquitted' or 'a real chance of acquittal'". Toohey J at page 60 said 'it would not be hard, in many cases where an accused had lacked legal representation, to point to the disadvantages that have ensued and to conclude that the accused had lost thereby a chance of an acquittal'. At page 69 he said 'it is the loss of the chance of acquittal fairly open to an accused, rather than the unfairness of the trial itself that leads to a conviction being set aside.' Gaudron J said at page 73 'a trial is not necessarily unfair because it is less than perfect but it is unfair if it involves a risk of the accused being improperly convicted'. At page 78 Gaudron J went on to say 'once it is acknowledged that an accused person has a right to be legally represented, that legal representation is the norm, and that a person who is not represented is bound to face difficulties arising from his lack of knowledge and from the stress of the occasion – difficulties which are probably exacerbated by his personal circumstances – it is difficult to accept that a trial without representation does not involve a risk of the accused being improperly convicted, at least for serious offences.'
The essence of the decision of the majority of the Justices was, as I understand it, stated by Mason CJ and McHugh J at page 19 to this effect namely, (and I paraphrase), the trial of a serious indictable offence should proceed without representation for the accused in exceptional cases only.
Nevertheless, as I understand the majority judgments, that case was said not to be an exceptional case because, despite the fact that the Crown case was a strong case, there was a contest on the facts and indeed emphasis was put on the fact that the jury acquitted the accused on one of the counts on the indictment.
In my view it is therefore implicit in the observations of the learned Justices making up the majority in Dietrich, which I have quoted above, that there needs to exist a triable issue for there to be a requirement that the accused have representation in order to ensure a fair trial. If an accused in truth has no defence but nevertheless simply wishes to put the Crown to its proof in the hope rather than the expectation that that proof will not prevail, it cannot in my view be said that lack of representation has caused the accused to 'lose a chance which was fairly open to him of being acquitted' or 'to involve a risk of the accused being improperly convicted' or to result 'in the court being unable to ensure that the accused will receive a fair trial.' Rather, such a case is an exceptional case as contemplated in Dietrich."
| 3 | The test seems to have been generally adopted in the County Court. It has in addition received approval in the Supreme Court on at least three occasions. In |
Denysenko v. Victoria Legal Aid and His Honour Judge Kimm of the County Court of
Victoria (unreported, 23 November 1998) Beach, J. upheld the refusal to make an order under the section where the judge had relied on the fact that there was no "triable issue" and no "positive contest on the facts". Beach, J. observed that the judge was "more than justified" in taking those matters into account: at 7. In the present case, Beach, J. had dealt with an application for judicial review of the decision of the Chief Judge on the second attempt to obtain an order under the section. In dismissing the application Beach, J. said that it was "more than open" to the judge to conclude that the Court would be able to ensure a fair trial without legal representation where "a defendant … cannot demonstrate that there is a triable issue in the proceeding and wishes to go for trial in the hope that despite the evidence to be led on behalf of the Crown, a jury may fail to convict him …": Phung v. Victoria Legal Aid & Anor [1999] VSC 1 at [8]. The third decision is R. v. Reid (1998) 1 V.R. 224 at 227-8, where Balmford, J. approved the passage from Drljaca set out above. On the other hand, in Frugtniet v. Victoria Legal Aid & Ors (unreported, 11 September 1997, at 21-23) Hedigan, J. expressed reservations about the "triable issue" test and these reservations were endorsed by Smith, J. in yet another decision in the Frugtniet saga: Frugtniet v. County Court of Victoria & Ors (unreported, 20 October 1997, at 9).
In Drljaca the Chief Judge begins by observing that one must decide whether there is some triable issue. His Honour goes on to contrast a case in which there is a triable issue with one in which the accused "simply wishes to put the Crown to its proof in the hope that at trial that proof may in some way or other be deficient" and, later, with one in which an accused "in truth has no defence but nevertheless simply wishes to put the Crown to its proof in the hope rather than the expectation that that proof will not prevail". The second, and somewhat longer, of these two sets of words should be regarded as an expanded version of the first. What is meant by the words in the longer version "in truth has no defence"? Do they mean that in the judge's opinion the accused is in fact guilty or that in the judge's opinion, on the material available for the purposes of the s.360A application, the accused will, or will almost certainly, or will in the absence of some unforseen eventuality – various ways of putting the matter might be suggested – be found guilty if there is a trial? An accused person may in fact be guilty but escape conviction because of the state of the Crown's proofs. If the words "in truth has no defence" mean that in the judge's opinion the accused is in fact guilty, then how is the judge to form that opinion? The answer must be, by reference to the material available for the purposes of the application, and if there is a difference between the result arrived at on the first approach (the issue being the fact of guilt) and that arrived at on the second (the issue being the probable outcome of a trial), this can presumably only be because the material available includes matter that could not be used on a trial, for example, the opinion of counsel briefed by Victoria Legal Aid or that of one of its solicitors, or what is said on the application by or on behalf of the applicant.
The passage cited uses the words "in the hope that at trial proof may in some way or other be deficient" and "in the hope rather than the expectation that that proof will not prevail". "In some way or other" and "the hope rather than the expectation" convey to my mind that the accused has not detected any possible deficiency in the Crown's proofs and is merely hoping that there may turn out to be one.
The passage contrasts the case where there is a "contest on the facts" with the case where "an accused offers no positive defence and raises no triable issue". Several questions arise here. At what stage and by what means can a contest on the facts be raised? Is it necessary that some contest appear from the depositional materials? Is it enough if the accused says to the judge, "I challenge the whole Crown case. Everything is very much in issue", but refuses to be more specific? What if the accused has answered "No comment" to all police questions and the committal throws no light on what the defence version of the facts would be? Can one then say that there is no contest on the facts? What is meant by "offers no positive defence"? What is a "positive defence"? The expression is unlikely to be confined to the relatively uncommon case of an affirmative defence in the sense of one the burden of establishing which lies on the accused. And I doubt very much whether it is intended to be confined to true affirmative defences and in addition "defences" (like provocation) where the accused bears an evidential burden. Presumably the expression includes also the matters which are simply elements of the offence, but requires (by reason of the word "positive") that the accused shall in some way – by what means and at what stage is not clear – "offer" or raise for consideration some affirmative defence or the absence of some element in the Crown case. Aid is, it seems, always given in murder cases, but would it be enough for counsel to say to the judge on the hearing of an application under s.360A in a murder case, "Conscious, voluntary act, specific intent and the cause of death will all be put in issue." After all, a plea of guilty itself puts all elements of the crime in issue. Is it intended to distinguish between "offering no positive defence" and "raising no triable issue"? Or is the second expression epexegetical of the first?
I raise these questions, not by way of captious criticism of the Drljaca test, but because the test cannot be evaluated unless it is properly understood.
The test seems to have been treated by those who have applied it, not as determining in all circumstances for the purposes of s.360A(2) whether the court will be unable to ensure a fair trial without representation, but as laying down a condition that must be satisfied before that conclusion of inability to ensure a fair trial can be reached. The judges say that unless the accused shows that there is a triable issue it cannot be concluded that the court will be unable to ensure a fair trial without representation. This does not mean that if the accused does raise a triable issue the conclusion of inability must in all cases be reached. In a given case, likely to be rare in practice, the simplicity of the issues, the envisaged short duration of the trial and the capacity of the accused (who might even be a most able and experienced criminal lawyer, familiar with all aspects of criminal litigation) to conduct the defence in person might lead the judge to decide that a trial without representation would be fair. See the reference by Kirby, J. to relevant considerations in Frugtniet v. Victoria (1997) 148 A.L.R. 320 at 327 and the treatment on appeal of the Dietrich application in R. v. Fuller & Cummings (1997) 69 S.A.S.R. 251.
The "triable issue" test as laid down in Drljaca should be regarded as requiring the judge to consider whether the accused has shown that at trial there will be some issue of fact or law which, if resolved in favour of the accused, will result in acquittal, and that the issue is one on which the accused has some prospect of success, even though that prospect may be small. So understood, the test does not seem to me, with all respect to those who have thought otherwise, to lay down an acceptable condition of, that is to say, prerequisite to, the making of an order under s.360A(2). As Hedigan, J. emphasised in his helpful discussion in the unreported decision I have mentioned, all that paragraph (a) of s.360A(2) refers to is inability to ensure a fair trial without legal representation. If I correctly understand the "triable issue" test, it can be supported as laying down a condition or prerequisite only if one can say that there can never be inability to ensure a fair trial without representation unless, by the time of the application under the section, the accused has raised an issue of fact or law which may be fatal to the prosecution and on which there is some prospect, though it may be small, that the prosecution will fail. I do not think that this proposition can be supported. I accept that it is possible to conceive of a case in which a judge might be able to say in advance that it was fanciful to suppose that the accused might avoid conviction, so that legal representation could not by any possibility affect the outcome of the trial and the absence of representation would not make the trial unfair. This possibility – of a "most extreme case" − was raised in R. v. Rich (1998) 4 V.R. 44 at 50 in relation to the Dietrich principle. Such a case must be very rare. It might be difficult to conceive of one in the absence of a full, unchallenged and unexplained confession. Save in a most exceptional case, unlikely to be encountered in practice, I do not think it can be said in advance that the Crown case is so strong that legal representation may not affect the outcome of a trial. (I am presently concerned only with the suggested "triable issue" prerequisite. I accept, as already mentioned, that rare cases can be imagined in which the capacity of the accused to conduct the defence in person is such that a trial without legal representation would not be unfair.) If the possibility that legal representation will affect the outcome of a trial is not excluded, then a trial without representation is unfair and, provided that the financial requirement of paragraph (b) of s.360A(2) is satisfied, an order for the provision of assistance should be made unless it may be declined in the proper exercise of the discretion conferred by the word "may": compare Victoria Legal Aid v. B. [1998] VSCA 56. Applications under the section should be approached on the footing that in all but a most exceptional case representation may possibly affect the result of a trial and that it is not for the applicant to raise a triable issue but for the judge to consider whether the presumption that a fair trial requires representation has been displaced. This means asking whether it affirmatively appears that it is fanciful to suppose that the accused might avoid conviction, bearing always in mind the difficulty of reaching that conclusion at a preliminary stage as opposed to considering the matter in the light of an actual trial. The Chief Judge described the Crown case here as "strong in the extreme" and "overwhelming". On the Crown case, the accused had sold heroin on a number of occasions to a police undercover operative and had been under surveillance, been tape recorded and been videotaped. He had made a rather curious record of interview which could be regarded as containing admissions up to a point but which also contained a number of denials and "no comment" answers.
In 1944 the Judicial Committee observed that the importance of persons accused of a serious crime having the advantage of counsel to assist them before the courts could not be doubted: Galos Hired v. R. [1944] A.C. 149 at 155. These words were cited by the Court of Criminal Appeal in 1948 in a judgment which itself attracted favourable notice from the Judicial Committee in Robinson v. R. [1985] A.C. 956 at 968. The decision of the Court of Criminal Appeal was in R. v. Kingston (1948) 32 Cr.App.R. 183, where at Manchester Quarter Sessions Mary Kingston faced a case which some might describe as "strong in the extreme" or "overwhelming". The Court summarised the facts as follows (at 185):
"The case was a very simple one. There were very few witnesses, and the facts were in a nutshell. A role of cloth was stolen by somebody. The appellant was seen in the street shortly afterwards carrying the cloth. She was seen to put it down in a place quite close to where it was afterwards found. The answer she made at the time was that she knew nothing about it, and that is the only answer she has ever made to this charge."
Mary Kingston was charged with receiving. She had paid a solicitor the then considerable sum of thirty pounds to obtain the services of counsel but the barrister, thinking the case was unlikely to be reached before the afternoon, did not appear when it was called on at half past ten. The judge was told of counsel's position but declined the prosecutor's suggestion that the trial be deferred for a few hours or that one of the other counsel present in court be invited to appear for the accused. The judge said, "The Court will naturally watch the interests of the accused". Mrs Kingston complained to him that she had paid for representation and was not getting it. He advised her of her right to cross-examine, to give evidence or make an unsworn statement and to call witnesses. She exercised none of these rights and at the end of the Crown case remarked, "I could say a lot, but I just cannot put them into words, so I cannot say anything". This might be thought not to have raised a "triable issue". The same might be said of what was later put to the Court of Criminal Appeal by her previously absent counsel, as recorded at 187:
"We do not know whether there was any defence or whether there was not, but we have heard learned counsel, Mr Abrahams, tell us that his client having already pleaded Not Guilty, he was going to fight the case on her behalf, and that there were certain things he was desirous of putting to the witnesses, and so forth. The case would, therefore, have proceeded in the ordinary way as a trial."
I doubt whether Mr Abrahams would have been regarded nowadays in Victoria as "offering a positive defence" or "raising a triable issue". Yet the Court of Criminal Appeal, which was of course concerned with whether there had been a miscarriage of justice, reminded itself of what had been said in Galos Hired about the importance of accused persons having the advantage of counsel to assist them and quashed the conviction, comforting itself with the familiar reflection that it was better the guilty person should escape than that a possibly innocent person should be convicted.
After Kingston the Court of Criminal Appeal, in a number of cases of accused persons who had, contrary to their wish, been tried without legal representation, either quashed the conviction or allowed it to stand according as it formed the view that representation might, or on the other hand could not, have affected the outcome of the trial: R. v. Howes [1964] 2 Q.B. 459; R. v. Sowden [1964] 1 W.L.R. 1454; R. v. Phillipe (1965) Crim. L.R. 109.
It is a familiar enough process for an appellate court to ask itself whether a conviction was inevitable even without the flaw in the trial. The suggested flaw may not be the absence of legal representation of the accused: it may take many forms. But the court is able to consider the suggested inevitability of conviction, in determining the question of miscarriage, or substantial miscarriage, by examining the evidence actually led and the actual course of the trial. It is one thing to do this. It is altogether another to consider the depositional material and an outline of the Crown case from the prosecutor (offered as a prelude to his or her withdrawal), and possible affidavit material from Victoria Legal Aid dealing with the view formed of the case, and what is said to the judge by or on behalf of the applicant. No one can tell with anything approaching certainty what the evidence or the course of the trial will be. This makes it extremely difficult to say that legal representation cannot affect the outcome of the trial.
We have the benefit of knowing what took place at the trial. The question for us is, not whether an application under s.360A should have been granted, but whether there has been a miscarriage of justice. The judgment of Buchanan, J.A. demonstrates that there has. The trial was not fair. To take one important example of the consequences of the applicant's appearing in person, he has been convicted on significant inadmissible evidence. If he had been represented, he might not have been convicted.
Mr Nash submitted that s.360A was invalid; his argument varied from time to time, and I am not sure of his final position. Since Mr Grace argued more briefly and adopted Mr Nash's submission, I am also not clear about his final position. They seem to me to have taken two points:
(a)
That the section was invalid by reason of its inconsistency with the Commonwealth Constitution, on the footing that the right to a fair trial was embodied in Chapter III of the Constitution by reason of the implicit requirement of the Chapter that judicial power be exercised in accordance with the judicial process. Reliance was placed on the fact that in Dietrich ((1992) 177 C.L.R. 292) both Deane, J. at 326 and Gaudron, J. at 362 derived the requirement of a fair trial from Chapter III and the fact that in Frugtniet v. Victoria (1997) 148 A.L.R. 320 Kirby, J. proceeded on the basis that this view might be correct. It was then said that s.360A contravened the constitutional requirement of a fair trial having regard to the terms of subs.(1) and to the suggested circumstance that paragraph (a) of subs.(2) reversed the burden of proof in that, while Dietrich required legal representation with all serious offences unless there were exceptional circumstances, paragraph (a) operated only where the court was satisfied that it would be unable to ensure a fair trial unless there was legal representation. It appeared to be implicit in this argument that the section is in conflict with the Constitution even in relation to State offences. But on no view is this so. Dietrich was concerned with Federal offences only. Deane, J. said at 326 that the principle that a trial must be fair was entrenched by the Constitution "in so far as the exercise of the judicial power of the Commonwealth is concerned", and it is clear that the suggested implication from Chapter III must be limited to the judicial power of the Commonwealth. In Frugtniet the accused was charged only with State offences, as appears from the report. The argument considered by Kirby, J. was an argument (at 322) that "any legislative provision which purports to limit or prevent the attainment of [the right to a fair trial grounded in the implications to be found in Chapter III] is unconstitutional and thus of no legal effect". His Honour does not refer to the fact that the accused was charged with State offences only. This is also the position in the present case. In Frugtniet at 325 Kirby, J. referred to what he had himself said in Chau v. Director of Public Prosecutions (1995) 37 N.S.W.L.R. 639 at 653. That was a case of a federal offence in which it was argued, in reliance on what was said by Deane and Gaudron, JJ. in Dietrich, that a section of the Bail Act making it more difficult for drug offenders to get bail was "contrary to the constitutional guarantee of fair process". Two members of the Court in Chau were content to assume that there was a constitutional guarantee of fair process and held that the State Act did not infringe it. The same view was taken by Kirby, P., who was the only judge to refer to what had been said in Dietrich, and he described the applicant's submission as requiring that the judicial power of the Commonwealth be exercised in accordance with the judicial process. The short answer to the argument in the present case is that we are concerned with the trial of a State offence. In any event, s.360A does not impinge upon the notion of a fair trial as laid down in Dietrich, so that the point would be a bad one even if there was a constitutional basis for the requirement of a fair trial.
(b)
That Kable v. Director of Public Prosecutions (1996) 189 C.L.R. 51 was applicable in the sense that s.360A departed so significantly from the requirements with regard to a fair trial laid down in Dietrich (assumed for this purpose to be requirements of the common law, as Mason, C.J. , Toohey, J. and McHugh, J. accepted in Dietrich) that the court would be brought into disrepute and so unable properly to perform its function in federal cases as a Chapter III court. The short answer to this contention is that, whether or not s.360A gives less protection than Dietrich to an accused, no-one could suggest that acting in accordance with the section would bring the court into disrepute in the necessary sense.
Accordingly, I reject the submission that the section is invalid.
There must be an order for a new trial.
CHARLES, J.A.:
I have had the advantage of reading in draft the judgment of Buchanan, J.A. in which the facts of this case are set out. I agree with his Honour that there has been, in all the circumstances, a miscarriage of justice, for the reasons he gives, and that there must be a new trial.
I also agree with respect with the analysis made by Brooking, J.A. of s.360A of the Crimes Act 1958 and with his reasons given in par. [16] for the conclusion that s.360A is valid. In particular I agree that applications for legal assistance under the section should be approached on the footing that in all but a most exceptional case, legal representation may possibly affect the result of a trial and that it is for the judge to consider whether the presumption that a fair trial requires representation has been displaced.
Section 360A creates problems of great difficulty for any court conducting the trial of an indigent accused charged with a serious offence. This case is, I think, a good demonstration of why it is that the "no triable issue" test does not lay down an acceptable condition of the making of an order under s.360A. There was every justification for the view taken by the Chief Judge during the applications for legal aid that the Crown case was a very strong one. But, as Brooking, J.A. has shown, it is impossible to say in the present case whether or not the accused would have been convicted if he had been represented. The undercover police officers who gave evidence that the applicant had sold heroin to them claimed to have been acting under written instructions from a superior given pursuant to the provisions of s.51 of the Drugs, Poisons and Controlled Substances Act 1981. During the applications for legal aid, the applicant's counsel said that the applicant wished to contend that the authority did not accord with s.51, and to challenge the decision of this Court in R. v. Te [1998] 3 V.R. 566. Since the authorities under s.51 were never tendered during the trial, it was impossible to say upon the evidence whether those authorities complied with the provisions of s.51, still less whether an application for special leave to appeal to the High Court to challenge Te might in the circumstances have been mounted. The applicant's concern that a substantial sum of his father's money had been taken from his flat might have led, had he been represented, to a line of cross- examination of prosecution witnesses. If counsel for the accused had been present, the judge's attention would doubtless have been drawn to the contents of the record of interview which had been tendered, when considering whether the defence was entitled to raise with the jury matters such as those that the judge ruled the applicant could not include in his short address to the jury.
I agree also that it will only be in very rare – or most exceptional - cases that it can be said in advance that the Crown case is so strong that legal representation may not affect the outcome of a trial, or that the absence of representation would not make the trial unfair. Furthermore it must be remembered that the discretion to order the provision of legal assistance conferred by s.360A(2) continues into the trial itself. The intent of the section is to ensure that the accused receives a fair trial. Even in the very rare case in which the provision of legal assistance may be refused before trial, the judge conducting the trial must, of course, bear in mind the continuing discretion to order the provision of legal assistance, and to adjourn the trial, if anything should occur to put at risk the fairness of the trial. The usual consequence of a failure to intervene in this event will be a successful appeal.
BUCHANAN, J.A.:
On 4 February 1999 the applicant was arraigned and pleaded not guilty to a presentment containing one count of trafficking in heroin, and one count of possession of cannabis. After a five-day trial the jury found the applicant guilty on both counts. On 19 February 1999 the applicant was sentenced to be imprisoned for a term of five years on count 1. A non-parole period of three years was fixed. The applicant was fined $50 on count 2.
The applicant seeks leave to appeal against his conviction on count 1 on various grounds which all stem from three unsuccessful applications pursuant to the provisions of s.360A of the Crimes Act 1958 for an order that Victoria Legal Aid ("VLA") provide him with legal representation and his subsequent trial unrepresented by counsel or solicitor.
At the time of his trial the applicant was 34 years of age. He told the trial judge through an interpreter that he had come to Australia from Vietnam at the age of 13 years. Upon arrival in Australia he had attended an English course for a few months and spoke "a bit" of English. He had left school when he left Vietnam. He had never been employed. Hieu Tien Nguyen, a teacher and youth worker, gave evidence before the trial judge. Mr. Nguyen said that he had known the applicant for some years. The applicant was illiterate. His level of education was very low; he had only completed Year 4 in primary school. The applicant's ability to communicate verbally in both English and Vietnamese was limited. According to Mr. Nguyen, "[H]is language ... only for survive, for living and just basic communication; that's all." I doubt that the applicant's ability to understand English was as deficient as these words suggest. Mr. Nguyen also said that the applicant's de facto wife, with whom he had lived for 10 years and by whom he had two children, was an "Australian" who did not speak Vietnamese. The applicant had lived in Australia for 20 years from a young age. In his report to this Court the trial judge stated that over the course of the trial he had formed the opinion that:
"(i) the appellant was not without intelligence; and (ii) he had a considerably better knowledge of English then he was prepared to disclose."
Section 360A of the Crimes Act provides, so far as is presently relevant:
"(1) Subject to sub-section (2) and despite any rule of law to the
contrary, if –(a) a person is committed for trial; or
(b) a presentment has been filed -
the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.
(2) If a court is satisfied at any time before or during the trial that -
(a)
it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b)
the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial -
the court may order Victoria Legal Aid to provide assistance to the accused, on any conditions specified by the court, and may adjourn the trial until such assistance has been provided."
The first application made by the applicant pursuant to the section was made to the Chief Judge of the County Court on 7 August 1998. The applicant appeared unrepresented by counsel or solicitor. An outline of the case against the applicant was stated by counsel for the Crown. He said that in a covert operation the applicant was observed selling heroin from a flat. The police used listening devices, video cameras and telephone intercepts. An undercover policeman, on occasion accompanied by an undercover policewoman, purchased heroin from the applicant. The applicant was easily recognisable as he had an extra thumb on each hand. After explaining the case for the Crown the prosecutor left the Court. The Chief Judge told the applicant that no representative of the Crown was present in court and no record of the proceedings would be provided to the Crown.
LAV was represented by counsel whose object was to oppose the making of an order that legal aid be given to LAV's former client. An affidavit exhibiting memoranda from counsel and a solicitor acting for the applicant at the committal paid for by LAV was relied upon by LAV. The memorandum from counsel stated that the committal hearing had been adjourned, but
"There is little merit in pursuing the committal further ... Mr. Phung intends at this stage to contest the charges, but acknowledges the problems he faces. In short, he has been surveilled, audio-taped and video-taped in his trafficking activities, he sold drugs to undercover police and the continuity of the drugs is unassailable, and he made a non-committal interview which excludes any apparent defences."
The solicitor said in his memorandum that counsel
"... believed there would be no merit in funding a trial for this man. That is also my view. However the client is adamant he will plead not guilty because he did not do what he is accused of."
Neither counsel nor the solicitor said that the applicant admitted the charges or had no answer to the Crown case.
The Chief Judge said that "the evidence which is proposed to be led by the Crown, in my judgment, is very, very strong indeed in establishing your implication in the trafficking ..." The following exchange took place between the Chief Judge and the applicant speaking through an interpreter:
"What answer do you make to the evidence of the undercover police officers that they dealt with you and, indeed, purchased heroin from you on these number of occasions during that period in late 1996?
ACCUSED: I don't really understand. What sorts of evidence is?"
His Honour summarized the Crown case and asked:
"So, to put it another way, what answer do you have to that evidence
which is proposed to be led by the Crown?
ACCUSED: No.
HIS HONOUR: Does it come to this, that you wish to go for trial simply in the hope that, on the Crown evidence, the jury will not be satisfied of your guilt?
ACCUSED: Yes."
The Chief Judge refused the application on the sole ground that the applicant had not raised a triable issue. He said:
"In my judgment the Crown case is strong in the extreme and short of some significant additional evidence to be provided by the accused, one cannot contemplate that any genuine triable issue exists in the trial."
His Honour quoted from an earlier judgment of his own to the following effect:
"In a situation where an accused raises no triable issue, but simply wishes to put the Crown to its proof in the hope that at trial that proof may in some way or other be deficient it cannot, in my view, be said that the accused will not receive a fair trial unless he be legally represented in the trial."
The Chief Judge concluded:
"The fact simply is that the Crown case is complete, and, as I judge it,
overwhelming and the accused makes no effective answer to it."On 11 November 1998 another application for an order pursuant to s.360A was made to the Chief Judge. On this occasion the applicant was represented by counsel, who intimated that the applicant wished to contend that the undercover policeman to whom he was said to have sold heroin was an active participant in the alleged criminal activity and thus his evidence ought not to be admitted, in line with the principles discussed in such cases as Bunning v. Cross (1978) 141 C.L.R. 54 and Ridgeway v. R. (1995) 184 C.L.R. 19. The prosecution proposed to rely upon the fact that the policeman was acting under written instructions from a superior given pursuant to the provisions of s.51 of the Drugs, Poisons and Controlled Substances Act 1981. The section deems members of the Police Force acting under instructions "given in writing in relation to a particular case" not to be an offender or accomplice in criminal activity.
The instructions authorized carrying out inquiries and obtaining evidence in respect of a police operation to discover the extent of organized crime within the Asian community in Melbourne. The applicant wished to contend, so it was said, that the authority did not accord with s.51 in that it did not contain any instructions to do any particular act and if it did, the instructions were not given "in relation to a particular case". According to the Crown such an attack ran headlong into the decisions of the Full Court and this Court in R. v. Papoulias [1988] V.R. 858 and R. v. Te [1998] 3 V.R. 566, in which like instructions had been held to comply with the section. Counsel for the applicant sought to cast doubt upon the decisions by referring to the transcript of the application for special leave to appeal to the High Court from the decision in R. v. Te, above. It was submitted that one member of the High Court expressed some reservations about the correctness of the decision of the Court of Appeal. Leave was refused. The presiding judge said:
"The Court should not be taken as necessarily accepting the construction placed by the Court of Appeal upon s.51 of the Drugs, Poisons and Controlled Substances Act 1981 of the State of Victoria. However, an appeal to this Court would turn upon the interpretation of a particular instrument made in exercise of the power conferred by s.51 and upon the application of the principles in Bunning v. Cross and Ridgeway v. The Queen. In those respects, there are insufficient prospects of success to attract the grant of special leave and, accordingly, special leave is refused."
It was contended that the applicant required legal representation to challenge the authority and to elicit evidence that would enable the Court's discretion to be exercised in his favour.
The Chief Judge refused the application. He said that he must act on the law as it was decided by the Court of Appeal and "therefore the validity of the instruments or authorities cannot be, in my view, effectively called in question on the trial of this matter." The ability of the applicant to test the correctness of the Court of Appeal decisions was not considered.
The applicant applied to a judge of the Supreme Court for an order in the nature of certiorari to quash the order of the Chief Judge on the basis that there was an error of law on the face of the record constituted by his Honour's reasons for judgment. The error was said to be the triable issue test applied by the Chief Judge. The application was refused by the judge, who said:
"If a defendant in a criminal proceeding cannot demonstrate that there is a triable issue in the proceeding and wishes to go for trial in the hope that despite the evidence to be led on behalf of the Crown, a jury may fail to convict him, as is the situation in the present case, it is more than open to the Judge to whom the s.360A application is made, to conclude that the Court will be able to ensure that the defendant will receive a fair trial even though he is not legally represented at the trial and even though he will require the assistance of an interpreter."
Before the commencement of his trial, counsel on behalf of the applicant applied to the trial judge for an order for the provision of legal aid pursuant to s.360A. He called the evidence from the teacher and youth worker as to the applicant's education and ability to communicate referred to above. The trial judge refused the application saying that the only new question was whether the applicant was illiterate or of sub-normal intelligence and concluded that "Mr. Nguyen's evidence did not establish either and the accused gave no evidence." His Honour had earlier said that he would not act on hearsay evidence as to facts within the knowledge of the applicant and had warned the applicant's counsel after hearing Mr. Nguyen's evidence that "the burden of proof of ... English and literacy, literacy in particular, is with your client, and at the moment I am by no means satisfied. But the ball is in your court."
At the trial of the applicant the Crown relied upon the oral evidence of the undercover police who were said to have dealt with the applicant and the oral evidence of the policeman who searched the flat of the applicant's father, which was said to be the base of his drug operations, and found a small amount of cannabis. The undercover policeman was given a general permission to refer to notes made by him in giving his evidence after stating that he could not accurately recall his first conversation with the applicant and without being first required to exhaust his memory. Cf. R. v. Baffigo [1957] V.R. 303. He said that he held a written authority under s.51 of the Drugs, Poisons and Controlled Substances Act. The authority was not produced and the trial judge acquiesced in the witness describing its terms. The witness answered affirmatively the helpful question of the prosecutor: "Does [the authority], in effect, authorize you to deal in drugs?" The trial judge appears either to have considered that the question of the effect of the authority had been determined by the Chief Judge or not to have considered the question at all, perhaps because the applicant did not raise the point. The prosecutor also elicited from the witness apparently hearsay evidence of a seizure of a large quantity of heroin in Keilor by the National Crime Authority in order to explain a remark by the applicant to the witness that "the Chinese had lost some." No order was made that prospective witnesses leave the court while evidence was being given. No one told the applicant that such an order could be made, and the trial judge did not appear to turn his mind to the exercise of his discretion to make such an order (R. v. Tait [1963] V.R. 547). The undercover policewoman who accompanied the undercover policeman gave oral evidence that she was authorized by her superiors to act as a drug dealer. Again the authority was not produced. She could not remember the name of the officer who gave the authority. She gave no direct evidence of any conversations with the applicant. She said she was present while her colleague gave evidence and that his evidence was correct. Tape-recordings of conversations between the applicant and the undercover police were tendered, but interceptions of telephone conversations and video film foreshadowed before the Chief Judge were not tendered.
The applicant took little part in the trial. He did ask the policeman who searched his father's flat whether he or someone else stole $12,000 belonging to his father. The witness denied any knowledge of any money other than a sum of $2,250 recorded as being seized in the flat. The point was not further explored other than in re-examination when the witness said that the applicant's father had complained about the matter, but "either the complaint has been withdrawn or it hasn't been substantiated far enough". The applicant did not cross-examine any other Crown witness. When asked if he wished to question the undercover policeman, the principal Crown witness, the applicant said: "I don't know what to ask." Nor did the applicant participate in debates as to whether and how the tapes of the records of interview should be edited and whether a photograph should be admitted in evidence.
At an early stage in the trial the applicant had foreshadowed calling as a witness one of the persons present at a conversation with the undercover policeman, but when required to decide whether he would call the witness, he said: "I don't know what I'm going to ask him so probably I don't call him." When asked whether he wished to give sworn evidence the applicant declined, saying:
"I don't have anything to say except I want to find out the money
which my father saved up for his funeral in the future was taken."The only other step taken by the applicant in the trial was to dictate a short statement to the interpreter, who read it to the jury. The statement was concerned with the Crown case, and in particular the lack of evidence of fingerprints, the failure to tender the video film or any heroin and the failure to call as a witness the person said to have introduced the applicant to the undercover policeman. The trial judge heard the statement read in the absence of the jury and excised these sentences:
"And the last thing I want to say is, I am not going to say I'm a good man. I agree that I use heroin, I use cannabis, but when the police want to bring somebody to court charged then they must have the evidence, strong evidence, good evidence. That's all I want to say. Please jury consider for me."
The applicant had admitted his use of heroin in the record of interview that was before the jury. The record of interview was tendered by the prosecutor, and became evidence for all purposes. See R. v. Lovett [1972] V.R. 413 at 418. The trial judge said:
"He can't be heard to say that I am a law abiding man apart from taking
heroin, or anything of that sort, because he hasn't given evidence."I think the applicant wished to say that notwithstanding his admitted use of drugs, the police were still required to prove the charges.
At the hearing of this application counsel for VLA and the Law Institute of Victoria sought and were granted leave to appear as amici curiae. The former contended that the triable issue test that determined the application under s.360A was an appropriate means of deciding whether a court could ensure a fair trial of an unrepresented accused. The latter supported the submissions of the applicant that s.360A(1) was incompatible with the provisions of Chapter III of the Constitution and was invalid and that the triable issue test did not ensure a fair trial.
It would appear from the approach of the Chief Judge that the requirement that the applicant must demonstrate the existence of a triable issue in order to succeed in an application under s.360A is not fulfilled by the applicant putting the Crown case in issue. An accused does that by pleading not guilty. It seems that in order to satisfy the test the applicant must persuade the Court that he has a prospect of succeeding upon an issue which the Crown must prove in order to establish guilt. The phrase "triable issue" is reminiscent of the language of the Rules of Court dealing with summary judgment, which will be given "unless the defendant satisfies the Court that ... a question ought to be tried or that there ought for some other reason be a trial of that claim ..." (Rule 22.06(b)). In Jacobs v. Booth's Distillery Co. (1901) 85 L.T. 262 at 262, Lord James said a defendant may show cause against an application for summary judgment by disclosing a "triable issue".
While the concept of a triable issue may have its genesis in the summary judgment procedure, the procedure has to be adapted to meet the requirements of s.360A. In the case of applications for summary civil judgment the onus to demonstrate a defence is created by sworn verification of the cause of action, whereas in the case of applications under s.360A it seems the Crown case need only be stated by counsel. In many, but not necessarily all, cases there will have been a committal hearing, but the statements of the test do not rely upon the accused having been committed for trial. In the present case the Chief Judge described the Crown case as "strong in the extreme" and "overwhelming" but as I understand it the test does not require the Crown case to attain such a standard before the accused is required to demonstrate the existence of a triable issue.
The triable issue test does not depend upon the simplicity of the Crown case or the ability of the accused to competently conduct his own defence. Attention is concentrated upon the existence of an issue identified by the accused which he wishes to contest. The test amounts to saying that persons who do not raise a triable issue do not need the protection of a trial conducted by a legal representative. Presumably all that is required to ensure a fair trial is that only admissible evidence is led and the jury are correctly instructed in the appropriate law. The test assumes that the trial judge can see to those matters without the assistance of counsel. While the judge cannot lead evidence in chief or in cross-examination on behalf of the accused, that limitation is irrelevant as no defence evidence is required, for no issue exists. As its application in the present case illustrates, the test does not treat a denial of the charge and a plea of not guilty as raising a triable issue. The possibility that the Crown case might not satisfy the jury to the requisite standard is not taken into account.
In my opinion the transposition of an approach to the grant of summary judgments in civil actions to applications under s.360A is incompatible with the Court ensuring that the accused does receive a fair trial. The present case is an example. The Crown case was strong or overwhelming provided that the police were telling the truth and their evidence was not excluded in the exercise of a discretion to exclude evidence of participants in the crimes with which the applicant was charged. Those matters could not be tested unless by the applicant or the trial judge. The former was incapable of investigating the Crown case, and the latter was inhibited by his primary role as adjudicator. See Dietrich v. R. (1992) 177 C.L.R. 292 at 302 per Mason, C.J. and McHugh, J. and at 334-5 per Deane, J. In a sense those who appear on a preliminary view of the Crown case to be guilty stand in greater need of representation than those with an evident defence.
As the judgments in Dietrich v. R. make clear, our system of criminal justice, in which the judge acts as adjudicator and plays no part in the investigation or prosecution of the crime or in establishing any defence to the charge, requires the law and the facts on both sides of each question to be identified, introduced, made evident and explained by the adversaries. Unless they are represented by persons trained and skilled in such tasks, generally speaking there can be no guarantee that the system will operate properly and justly. As Lord Simon of Glaisdale said in Waugh v. British Railways Board [1980] A.C. 521 at 536:
"[T]he adversary system calls for legal representation if it is to operate
with such justice as is vouchsafed to humankind."In my view the application of the triable issue test is not an appropriate means of disposing of applications under s.360A. That is not to say that there can never be a case where it is clear beyond any doubt that there is no matter warranting investigation and on that basis an application under s.360A might be refused. In R. v. Rich [1998] 4 V.R. 44 at 50, Brooking, J.A. gave the example:
"...where there was a not unintelligent accused, who had signed a detailed tape recorded confession which on any view was a full confession of guilt and who volunteered to the trial judge that he did not challenge the making or the truth of the confession or wish to suggest that there were any additional facts which bore on the question of guilt."
Brooking, J.A. said that might be an example of exceptional circumstances that the majority in Dietrich v. R. recognized might warrant the refusal of an adjournment or stay. Compare Pirimona (1998) 100 A.Crim.R. 137. His Honour also said that "it is possible that anything that smacks of an evaluation of the Crown's prospects of success, even in a most extreme case, would be held to be outside the scope of possible exceptional circumstances." While I am inclined to think that Brooking, J.A.'s example is within the category of exceptional circumstances that would justify refusal of an adjournment or stay, and similarly would warrant the refusal of an application under s.360A, the present case is some distance short of such an extreme case.
Although the applicant consistently contended that he was not guilty, effectively he was adjudged guilty by the refusal of his application that he be provided with assistance by VLA to conduct his defence. Because it had been decided that there was no triable issue, the only proceeding the applicant was offered was one in which the Crown case would not be tested and no defence version of the facts would be properly deployed before the jury. And so it proved. The applicant did not test the Crown's case. His cross-examination was limited to the alleged theft of money, and he failed to explore at all the possibility that if a theft had been committed, the police might have had good reason to give false evidence against him. The trial judge did not, indeed for the most part could not, redress the shortcomings in the conduct of the defence. In MacPherson v. R. (1981) 147 C.L.R. 512 at 546 Brennan, J. referred to the
"distinction between telling the players how to play and telling them the rules of the game. If the distinction is not observed, and an unrepresented accused is kept in ignorance of the rules, the procedural rules which are designed to protect an accused and to ensure a fair trial become a trap, for an unwitting failure to make objection would avoid the judicial duty to control the admission in evidence."
The trial judge did explain some of the rules to the applicant but it is not obvious to me that the applicant's failure to take advantage of the rules was not due to lack of ability rather than will.
It was submitted on behalf of the applicant that s.360A(1) was invalid as it interfered with the exercise of the power of courts to ensure that trials were conducted fairly, thereby undermining public confidence in the just administration of the judicial functions of State courts. A State legislature cannot validly confer power on a State court to make an order for the detention of a person who has committed no crime because to do so compromises "the integrity of the judicial system brought into existence by Ch. III of the Constitution" (per Gaudron, J. in Kable v. Director of Public Prosecutions (1996) 189 C.L.R. 51 at 107) or "might lead an ordinary reasonable member of the public to conclude that the court was not independent of the executive government of the State" (per McHugh, J. at 117) or "saps the appearance of institutional impartiality and the maintenance of public confidence" in an integrated Australian judicial system (per Gummow, J. at 133). Similarly, so it was said on behalf of the applicant, s.360A(1) is invalid because it constitutes legislative interference with the exercise of a judicial function which is an essential attribute of judicial power.
As I understand it the argument does not depend upon the entitlement to a stay or adjournment the subject matter of Dietrich v. R. being grounded in a constitutional principle rather than in common law. Although Deane, J. (at 326) and Gaudron, J.(at 362) said that the principle that no person should be convicted of a crime except after a fair trial according to law was entrenched in Chapter III of the Constitution, the majority of the Court based their decision on a right to a fair trial found in the common law. It was submitted on behalf of the applicant that even if the principle in Dietrich was derived only from the common law, a statutory provision incompatible with the principle would render a State court system one in which the public could place no trust as operating justly, and on that account the statutory provision would be invalid.
Section 360A was introduced as "an urgent response" to the problem posed by "large numbers of accused persons ... starting to use the Dietrich device as a means of avoiding or delaying prosecution ..." according to the Attorney-General in her second reading speech (Hansard, 29 April 1993, p.1359). Sub-sections (1) and (2) are designed to provide a practical solution to the problem posed by the fact that the common law of Australia does not recognize the right of an accused to be provided with legal representation at the public expense. Courts can avoid staying or adjourning the trials of indigent persons accused of serious crimes by ordering that they be provided with assistance to obtain legal representation. Assistance will be ordered if the Court is satisfied that it will be unable to ensure that the accused will receive a fair trial unless he or she is legally represented. If the section does not operate so as to avoid an unfair trial, that is, if a miscarriage of justice occurs in that a trial is not conducted fairly in the absence of legal representation of the accused, this Court can set aside the verdict since (ex hypothesi) there has been a miscarriage of justice within the meaning of s.568(1) of the Crimes Act 1958. Compare Frugtniet v. Victoria (1987) 148 A.L.R. 320 at 326 per Kirby, J. Section 360A does not deem the trial of an unrepresented accused to be fair after an unsuccessful application for assistance pursuant to the section.
Accordingly I do not think that the section can be seen as compromising the integrity of the State judicial system or can undermine public confidence in the fairness of criminal trials in this State. While in my opinion the reasoning in Kable v. R. does not lead to the conclusion that s.360A is invalid, that is not to say that the section would not be invalid in its application to the trial of an offence against a law of the Commonwealth if the Dietrich principle is derived from the Constitution and s.360A is incompatible with the principle. However, that question does not arise in the present case.
In the present case I consider that there was a miscarriage of justice in that the applicant was denied a fair trial. The applicant at all times maintained he was innocent, yet without assistance he was clearly incapable of meeting the Crown case. Save in respect of one matter, and then only to a limited extent, he did not cross- examine any of the Crown witnesses. I do not think it likely that his failure to give evidence was due to a nice appreciation of the forensic issues involved in such a decision. His address to the jury was rudimentary. He did not test the ability of the authorities given pursuant to s.51 of the Drugs, Poisons and Controlled Substances Act to avoid the consequences of the principal Crown witnesses actively participating in the commission of one of the crimes with which the applicant was charged. None of these deficiencies in the conduct of the defence was made good by the judge, and indeed they could not be. There is doubt whether even with assistance the applicant could have countered the Crown case. For present purposes it is enough that the question is open. In my opinion the applicant answered the description of the ordinary accused without legal representation, of whom Deane, J. in Dietrich v. R. at 335 said:
"... he will, almost inevitably, be brought to face a trial process for which he will be insufficiently prepared and with which he will be unable effectively to cope. In such a case the adversarial process is unbalanced and inappropriate and the likelihood is that, regardless of the efforts of the trial judge, the forms and formalities of legal procedures will conceal the substance of oppression."
I would grant leave to appeal against the applicant's conviction, treat the appeal as instituted and heard instanter, allow the appeal, quash the convictions and order that there be a new trial.
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