R v Pinkstone

[2001] WASC 254

R -v- PINKSTONE & ORS [2001] WASC 254

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 254
Case No:	IND:124/2001	Heard:	13 SEPTEMBER 2001
Coram:	ROBERTS-SMITH J	Delivered:	17/09/01
No of pages:	31	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
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Parties:	THE QUEEN ANTHONY JOHN PINKSTONE WAYNE JOHN YANKO MICHAEL BRAZIER PAUL PHILLIP BRAZIER
Catchwords:	Criminal law Procedure Dietrich application Stay of indictment Principles Burden of proof Cross-examination of applicant on his affidavit Whether applicant indigent Whether unable to obtain legal representation through no fault on his part
Legislation:	Nil
Case References:	Clarke v Director of Public Prosecutions (Cth) (1998) 147 FLR 165 Dietrich v The Queen (1992) 177 CLR 292 Karounos (1995) 77 A Crim R 479 Lucas (1993) 78 A Crim R 480 R v Connell, unreported; SCt of WA; Library No 930239; 5 May 1993 R v Phillips & Ors, unreported; SCt of WA (Miller J); Library No 980638; 2 November 1998 Re Healy; Ex parte Roddan, unreported; FCt SCt of WA; Library No 950681; 24 November 1995 South Australia v Russell and Craig (1993) 71 A Crim R 497 Craig v South Australia (1995) 184 CLR 163 Cummings v The Queen (1994) 12 SR (WA) 172 Fuller v The Queen, unreported; DCt of WA; Ind No 216 of 1995; 16 November 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : R -v- PINKSTONE & ORS [2001] WASC 254 CORAM : ROBERTS-SMITH J HEARD : 13 SEPTEMBER 2001 DELIVERED : 17 SEPTEMBER 2001 FILE NO/S : IND 124 of 2001 BETWEEN : THE QUEEN

AND

ANTHONY JOHN PINKSTONE
WAYNE JOHN YANKO
MICHAEL BRAZIER
PAUL PHILLIP BRAZIER

Catchwords:

Criminal law - Procedure - Dietrich application - Stay of indictment - Principles - Burden of proof - Cross-examination of applicant on his affidavit - Whether applicant indigent - Whether unable to obtain legal representation through no fault on his part

Legislation:

Nil

Result:

Application refused

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Category: B

Representation:

Counsel:

Crown : Ms G A Archer
Second-Named Accused : Ms V Amizdic
Third-Named Accused : Mr I Fraser
Fourth-Named Accused : Mr I Fraser

Solicitors:

Crown : State Director of Public Prosecutions
Second-Named Accused : Amidzic & Co
Third-Named Accused : Laurie Levy
Fourth-Named Accused : A Palumbo

Case(s) referred to in judgment(s):

Clarke v Director of Public Prosecutions (Cth) (1998) 147 FLR 165
Dietrich v The Queen (1992) 177 CLR 292
Karounos (1995) 77 A Crim R 479
Lucas (1993) 78 A Crim R 480
R v Connell, unreported; SCt of WA; Library No 930239; 5 May 1993
R v Phillips & Ors, unreported; SCt of WA (Miller J); Library No 980638; 2 November 1998
Re Healy; Ex parte Roddan, unreported; FCt SCt of WA; Library No 950681; 24 November 1995
South Australia v Russell and Craig (1993) 71 A Crim R 497

Case(s) also cited:

Craig v South Australia (1995) 184 CLR 163
Cummings v The Queen (1994) 12 SR (WA) 172
Fuller v The Queen, unreported; DCt of WA; Ind No 216 of 1995; 16 November 1995

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1 ROBERTS-SMITH J: By application dated 23 August 2001, the applicant, Anthony John Pinkstone, applied for an order that I stay the proceedings on the indictment in this matter permanently, or alternatively, temporarily. The application is made on the basis that a stay order should be made because the applicant is an indigent accused, charged with serious offences who, through no fault on his part, is unable to obtain legal representation for his trial. The application is founded on the legal principle articulated by the High Court in Dietrich v The Queen (1992) 177 CLR 292.

2 The applicant filed an affidavit in support of his application dated 23 August 2001. Ms Archer, counsel for the respondent, gave notice that she wished to cross-examine the applicant on his affidavit.

3 It is helpful to give a brief outline of the history of these proceedings before turning to the relevant legal principles and the substance of the application.

4 The applicant was arrested in Perth on 13 October 1999. He was originally charged on two complaints, one that he supplied cocaine and conspired to possess cocaine and the second that he supplied methylamphetamine.

5 Following a preliminary hearing he appeared in the District Court on 17 January 2001. He was charged on an indictment bearing that date, with two offences, the first being supplying methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) and one of attempting to supply cocaine contrary to s 6(1)(c) and s 33 of the Misuse of Drugs Act. The first charge carries a maximum statutory penalty of a fine of $100,000 or 25 years imprisonment or both and the second carries a maximum statutory penalty of a fine of $50,000 or imprisonment for 12 years 6 months or both.

6 The applicant was jointly indicted with his three co-accused.

7 At the hearing before Wisbey DCJ on 17 January 2001 the applicant told his Honour that he had previously applied for legal aid and been refused. He said he had made a second application for legal aid and at that time had received no reply.

8 On 12 February 2001 the applicant appeared before Pidgeon J in this Court. His Honour was informed that the estimated length of trial would be 10 weeks and it was for that reason, and given the likely delay were the matter to be listed in the District Court, that agreement had been reached

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between the Chief Judge of that Court and the Chief Justice that the case would be heard in the Supreme Court. On that date the applicant told Pidgeon J that his first application for legal aid had been refused and that he had applied again but had received no reply to that date. A little later (t 9) he indicated that his first legal aid application had been for assistance for the preliminary hearing; his second application was made following the committal and in it he sought legal aid for trial. He indicated to his Honour then that if he was not granted legal aid he would have to apply to the Court for an order staying the indictment. At par 10 of his affidavit, the applicant deposed that on 12 February 2001 he filed a legal aid application with Legal Aid WA ("the Commission" or "Legal Aid") for a grant of aid for his forthcoming 10 week trial which Pidgeon J had tentatively listed for 2 October 2001.

9 When the applicant appeared before me on 22 February 2001, I enquired about the position with respect to his legal representation. He said (t 15) that Legal Aid had advised they were still waiting for further documents from him. He said he had written to the Director of Public Prosecutions seeking the release of $5700 which had been seized from him following his arrest but had received no reply. He said he had written to various people asking for loans and expected replies within four or five weeks at the most. He reiterated (t 25) that he hoped to know within the following two or three weeks if he could obtain private funding for his legal representation.

10 On that occasion I emphasised (t 37) the need to have his financial situation and legal representation worked out. The applicant agreed to advise the Crown and the Court of the position as soon as possible.

11 At a directions hearing on 26 March 2001, I again raised, inter alia, the issue of his legal representation (t 45). The applicant said then that his family and friends were re-financing properties to assist him and he was expecting funds to be available within two or three weeks (t 57). I pointed out (t 70) that if any application needed to be made with respect to his legal representation, the sooner it could be made the better. I emphasised that the case was progressing to its trial date of 2 October 2001, which was then a firm date, and the closer that came, the more difficult it would be likely to be to deal with any such application in a way that might be most satisfactory to the applicant.

12 There were thereafter, various further directions hearings. I have referred to a number of them in my reasons for decision in my ruling upon

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the applicant's application that I disqualify myself published on 13 September 2001. I will not repeat them here.

13 The question of the applicant's legal representation also arose on 20 April (t 78), 4 May (t 183), 25 May (t 195-196 and 203), 3 August (t 312) and 24 August (t 323-324, 339-340, 343, 345, 362, 369, 372-374 and 378).

14 In his affidavit of 23 August the applicant stated that on 19 October 2000 his previous solicitor, Ms Horrigan, wrote to Legal Aid to request a grant of aid for his preliminary hearing. He stated that on 24 October 2000 the Commission replied to her requesting further information and on 11 November 2000 it refused aid, although indicating that he could reapply for his trial in the District Court. None of that correspondence was annexed to his affidavit.

15 He then went on to depose that family members and previous employers had come to his aid and helped finance several early court appearances between the date of his arrest on 13 October 1999 until his last bail application on 15 December 2000 but that family funding ceased after the preliminary hearing and last bail application. No details of these matters were provided.

16 The applicant deposed that on 10 January 2001, the Director of Public Prosecutions ("the DPP") wrote to the Chief Judge of the District Court requesting the trial be expedited and removed into the Supreme Court. He said the DPP advised the trial was set down for an estimated 10 weeks.

17 The applicant deposed then, that on 17 January 2001 he appeared "indigent and unrepresented" before a District Court Judge when the indictment was presented and the matter was ordered to be removed into the Supreme Court. He stated that on 12 February 2001 he again "appeared indigent and unrepresented" before Pidgeon J in the Supreme Court and that on that date he filed a legal aid application with the Commission for a grant of aid for his forthcoming 10 week trial on 2 October 2001.

18 He stated that on 15 February 2001 he wrote to the DPP requesting the return of moneys seized from him when he was arrested to enable him to procure a lawyer as the Commission had thus far refused to grant legal aid. Although he stated in his affidavit that a copy of his letter to the DPP was annexed to his affidavit, in fact it was not.

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19 The Crown's response to his request for the return of those funds was referred to by Ms Archer at the directions hearing on 22 February 2001 where she said (t 29) that in relation to his letter to the DPP, the short answer to the applicant's request for the return of the money was in the negative; the Crown did not propose to return it.

20 In his affidavit the applicant then deposed that on 1 March 2001 he wrote to the Commission requesting his legal aid application be "placed on hold" until he could establish if family members were going to lend him funds for his trial. At par 14 he stated that after considerable consultation with family members and his former employer, Mr Nekvapil, over 12 weeks, he was finally informed that there were no more funds available until he repaid the money he had borrowed for several court appearances before the Western Australian courts up to the end of 2000. He gave no details of these consultations nor responses.

21 He then deposed that on 13 July 2001 he again wrote to the Commission requesting a grant of aid for the trial to commence on 2 October. He said that on 1 August 2001 the Commission replied to that letter requesting more information and that on 6 August 2001 he wrote to the Commission supplying the information requested. He did not say what that information was and the correspondence was not annexed to his affidavit.

22 As to his current situation, the applicant deposed that he has been in custody since 13 October 1999, has not been earning an income, has no assets and has no funds available to him to be used in his defence. In terms of his ability to proceed to trial, he stated that he is indigent and thus has no funds available to secure legal representation, has not been able to secure legal representation, is unable to conduct his own defence, unable to contact his defence witnesses in New South Wales, has been accused of committing serious offences on which, if convicted, he would face a long term of imprisonment and that his inability to secure legal representation is through no fault of his own.

23 As to his financial situation he stated [20] that he has not operated a personal bank account since mid-1999 and that the balance of that account as at August 1998 was around $800. As to his asset position, he said all of his assets were seized ([21]) and described these as being one 1998 BMW motor bike currently held by the Western Australian authorities as disputed property under Holding Order no 41217 and $5700 in cash currently held by the authorities as disputed property under Holding Order no 41218. The applicant asserted that on his understanding there is a

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significant volume of work to be done for pre-trial preparation, including the need to read "… the voluminous prosecution brief of in (sic) excess of 2300 pages", another "… 1000 pages of interrogatory transcripts and submissions", to listen to over 2000 intercepted telephone calls, to view 16 lengthy Crown videotapes of evidence, to prepare arguments as to admissibility of certain evidence and to brief expert witnesses, to contact and take statements from over 60 defence witnesses from New South Wales, to organise travel arrangements and accommodation in Perth for all New South Wales witnesses and to file an application for "trial separation" from his three co-accused.

24 The applicant said that as a consequence of being incarcerated in a maximum security prison and not being legally trained, he is unable to participate in the pre-trial arguments and preparation without legal representation. He further stated that he has canvassed 10 legal firms in Perth asking if they would be prepared to represent him on a pro bono basis, but to the date of the affidavit he had not received any replies. He concluded by saying that he has been trying to the best of his ability from inside prison, some 3500 kms from home, to secure trial funding since March 2001. He said he now believes that all of the preparations for trial cannot be completed in time for the forthcoming trial in six weeks, even if funding were now confirmed immediately and the delay in the commencement of preparations is through no fault of his own.

25 He stated that on the basis of all of these circumstances he is seeking a temporary stay of the proceedings pending further efforts to attempt to secure funding in order to obtain legal representation and a fair trial.

26 So far as legal principle is concerned, the starting point is Dietrich v The Queen (supra). The issue in that case was whether or not an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. All members of the Court held there was no such right. The position was explained by Mason CJ and McHugh J at 311:

"For the foregoing reasons, it should be accepted that Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a

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fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused.

A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained."

27 The principle pertinent to the present application was set out by their Honours at 315 in the following terms:

"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."

28 In Lucas (1993) 78 A Crim R 480 at 485, Seaman J held that the meaning of the word "indigent" should be taken to be "lacking in what is requisite; wanting, deficient". In that same case, his Honour adverted to some of the difficulties inherent in applications of this kind, most pertinently for present purposes, those difficulties arising out of the need

(Page 9)

to put before the court evidence as to the applicant's means. The procedure adopted in that case was explained by his Honour at 483:

"It seems to me that there are very great difficulties in exposing an accused presumed innocent until he is proved guilty to any form of cross-examination in proceedings upon an indictment, or indeed to publicity about his personal affairs. Indeed, those difficulties were underlined on the first day upon which the application for a stay was before me. Additionally, when the matter last came before me on 30 April 1992, questions arose as to the extent of the court's power pursuant to s 635A of the Criminal Code to exclude counsel from the hearing about Mr Lucas' means.

Fortunately, all those difficulties were overcome by the agreement of counsel for the Director to withdraw from the hearing whilst reserving the right to be present had he wished, and by the withdrawal of counsel for Mr Carter voluntarily. She told me she was present because her client may soon be in the position of making his own application for a stay on similar grounds.

Furthermore the difficulties were overcome by the manner in which Mr Cock, instructed by the Attorney-General, conducted his examination of Mr Lucas as to his means and by my order that those proceedings should only be published to a very limited extent."


and at 484:

"In my opinion much better mechanisms need to be created to determine questions of this sort and I fail to see how the judges of this Court can dispose of the very large volume of business with which they presently deal if they have to hear detailed evidence about the means of accused persons and the contributions which they should make to the cost of their defences. Often these questions will involve the rights and interests of spouses and relatives, partners and others, and in my view difficulty arises as to how those matters should be justly dealt with.

Equally, there may be cases, and this is certainly not one of them, where questions of the confiscation of profits of crime are

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involved and where an accused would be disadvantaged by any cross-examination as to his means.

Indeed, it seems to me undesirable that a prosecutor should ever have the right to cross-examine the accused except upon his election to give evidence at the close of the Crown case. As I have said, the prosecutors in this case have overcome that difficulty by voluntarily withdrawing."

29 In R v Connell, unreported; SCt of WA; Library No 930239; 5 May 1993, White J adopted a procedure similar to that taken by Seaman J. In his reasons for ruling on an application by Connell in that case, White J said that once the question of Connell's claim that he was unable to fund his legal representation had arisen, he had asked the applicant to provide him with an affidavit producing details of his financial position. Connell did that, but requested that the learned trial Judge not divulge that affidavit to anyone, including the Crown or, alternatively, that he direct that any discussion of its contents be held in camera. His Honour said in his reasons that in light of that request, he had kept the affidavit confidential and would not advert to its contents in any detail in his reasons.

30 So far as I am aware, the procedure in this jurisdiction on an application of this nature since then has been to allow the Crown to cross-examine an applicant on his or her affidavit as to the applicant's means or financial circumstances, - see eg R v Phillips & Ors,unreported; SCt of WA (Miller J); Library No 980638; 2 November 1998.

31 The problem was considered by the Court of Criminal Appeal in South Australia in Karounos (1995) 77 A Crim R 479. In that case the appellant appealed on a number of grounds including one going to the refusal of the trial Judge to order a stay of the indictment against him because of his lack of legal representation. In support of his application to the trial Judge, the appellant had filed an affidavit. The Crown had cross-examined him on the content of that affidavit. He persistently claimed privilege in respect of questions as to whether he had communicated with the Legal Services Commission of South Australia in compliance with its request for further information from him as to his financial situation. The learned trial Judge formed an adverse view of the appellant's credibility and in the end was unable to find the appellant was indigent because of his distrust of the appellant's evidence. He found that the appellant had failed to discharge the onus of proving that his inability to obtain legal representation was without fault on his part.

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32 On appeal the Court held that to establish the proposition articulated in Dietrich, an accused person, charged with a serious offence, seeking an adjournment or stay on that ground, must prove on the balance of probabilities that he is indigent, that he has been unable to obtain legal representation and that that inability is not due to fault on his part (see King CJ at 485). At 486, King CJ said:

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

33 As to the point of procedure involving cross-examination of an accused on an application of this kind, King CJ said at 487:

"Mr Wells argued that the application for a stay on Dietrich grounds miscarried because the appellant was obliged to submit to cross-examination in the belief that his evidence could be

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used against him at trial. The belief was said to have been confirmed by the trial judge. In fact, as the transcript shows, the judge merely indicated that any attempted use of the evidence would be subject to all proper objections as to admissibility and that such questions would be decided at the trial. This was the proper course."

34 The Full Court of the Supreme Court of this State has held in Re Healy; Ex parte Roddan, unreported; FCt SCt of WA; Library No 950681; 24 November 1995, that where an accused elects to bring a Dietrich application the prosecution is entitled to cross-examine him or her to test the evidence in support, even where the financial position of the accused is relevant to his or her defence. The Court (Kennedy ACJ, Ipp and Murray JJ) in a joint judgment noted (at 6) that the criteria identified by the High Court in Dietrich, are not facts which, when found, automatically require the court to stay the proceedings, but are matters which will illuminate the true question, namely whether the circumstances are such that the trial of the unrepresented accused would be unfair (see also South Australia v Russell and Craig (1993) 71 A Crim R 497, 506, 51--511).

35 In Ex parte Roddan the learned trial Judge had required the applicant to serve his affidavit on the Crown Solicitor (on behalf of the Attorney General - to whom he had applied for funding) and on the DPP (on behalf of the Crown). On an application to the Full Court for prohibition the applicant contended that disclosure of this material to the Crown would prejudice his defence to the charges and should not have been permitted. The Court said (9-10):

"It was pointed out to the applicant from the Bench that, if he chose to bring such an application, the issue as to whether he was indigent was of fundamental importance to the relief sought, and, on ordinary principles, the Director of Public Prosecutions would be entitled to cross-examine him as to the allegations which he had made, subject of course to the overriding discretion of the learned trial Judge. The applicant did not then persist in this submission and, in the circumstances, there being no need for any other party to make submissions in this regard, no such submissions were made.


We would comment that there are obvious difficulties of a serious nature which arise when determining indigence for the purposes of an application for a stay according to the principles

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laid down in Dietrich v The Queen , particularly where the financial position of the accused person is relevant to his defence. This is an area which is in urgent need of legislative intervention to clarify the situation. Nevertheless, it seemed to us, on the present state of the law, that once the accused person elects to bring such an application, the prosecution must be entitled, by cross-examination, to test the allegations made by the applicant. That is the inevitable consequence of the election to make the application. The difficulty is potentially ameliorated in this case by the prosecution's undertaking to make limited use of information revealed in the course of the stay application only for the purpose of responding to that application, but that is obviously an unsatisfactory way to proceed generally."

36 I am conscious that in the present case the Crown has seized property of the applicant under holding orders. In these circumstances, whilst I allowed the Crown to cross-examine him at the hearing of his application, that was done expressly on the basis that the cross-examination had to be relevant to the issues on the application and no wider and that if there were some attempt later in the course of the trial to rely upon any evidence given by him on this application, the question of the admissibility of that evidence would fall to be dealt with at that time.

37 The hearing of this application on 13 September occupied most of the day. At the outset the applicant indicated he intended to rely upon a bundle of material which he had not had an opportunity to have copied and served whilst on remand. I accordingly arranged for the Court Orderly to make sufficient photocopies of the material for the applicant, the Court, the Crown and counsel for his co-accused. I adjourned whilst that was done.

38 Following that adjournment, I explained to the applicant the procedure which would be followed on the application. He then gave evidence, in the course of which he tendered the documents upon which he wished to rely. They mainly consisted of correspondence with the Commission, but included 10 letters from him to firms of private solicitors, copies of replies from five of them and a further 44 paragraph affidavit of the applicant dated 12 August 2001, together with attachments. The applicant was then cross-examined and following that, gave some brief further evidence in the nature of re-examination. He then returned to the bar table and made his submissions in support of his application. Ms Archer then made her submissions for the Crown and the

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applicant made submissions in reply. I then indicated that I would reserve my decision on the application until today.

39 The essential matters which an applicant is required to establish on the balance of probabilities on a Dietrich application are that:

(1) he is charged with a serious offence;

(2) he is indigent;

(3) he is unable to obtain legal representation;

(4) that inability is not due to any fault on his part, and

(5) there are no exceptional circumstances by reason of which the trial should proceed notwithstanding his lack of representation.

In identifying these as separate considerations, I do so in the way explained by the Full Court in Roddan, supra, namely that they are considerations which illuminate the real question, which is whether the circumstances are such that the trial of the accused whilst unrepresented, would be unfair. I shall deal with these separately, but before I do, I should address submissions made by the applicant about the nature and complexity of the case and the difficulties confronting him in preparing his defence as a remand prisoner.

40 There is certainly a considerable volume of material in the prosecution brief. That runs to slightly more than 2000 pages. The applicant however, refers to, for example, a need to listen to more than 2000 intercepted telephone calls, to view 16 lengthy videotapes of evidence and to contact, take statements from and make travel and accommodation arrangements for, more than 60 defence witnesses from New South Wales.

41 The Crown does not propose to lead evidence of 2000 intercepted telephone calls. That number represents the total calls intercepted. Even accepting the speculative proposition that there may be material on some of the other calls upon which the Crown does not rely, but which may assist the applicant at trial, the essential requirement it seems to me, is for the applicant (or his legal adviser should he obtain one) to begin with a focus upon those which the Crown does intend to lead. So far as the "16 lengthy videotapes" are concerned, Ms Archer submits that there are four video records of interview with the several accused, of which it intends to lead evidence of only one - that relating to Mr P Brazier and upon which the Crown will apparently seek to rely for a contention that P Brazier told certain lies. On the face of that explanation by the Crown, none of those video records of interview would be admissible either for or

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against the applicant. I am told by Ms Archer that the remaining videotapes are surveillance videos and are each generally of only a few minutes or less duration. The witness statements in the Crown brief, in substantial part, relate to proof of technical aspects of the telephone intercepts and police surveillance or analysis of the drugs. I accept Ms Archer's submission that notwithstanding the volume of material, the case in substance is not a particularly complex one. I am reinforced in that by what I have seen of the material in the prosecution brief thus far, although of course I have certainly not been through it all, I have seen enough to have a sense of the nature and extent of it.

42 When giving evidence on 13 September the applicant referred to the need, as he sees it, to lead evidence from more than 60 witnesses from New South Wales. In his letter to the Commission dated 6 August 2001 (Exhibit 18) the applicant wrote that the persons named on the list attached to that letter (a copy of which was provided to me but not to the Crown) would be required to give oral evidence to substantiate the applicant's physical movements and conduct in New South Wales on 7 October 1999, (the day upon which it is alleged he consigned the drugs to Western Australia), and to counter a contention that the applicant is a full-time drug dealer who never conducted any legitimate business whilst under investigation by the authorities for six months between May 1999 and October that year.

43 That perception springs from submissions made by Ms Archer on the bail application before me on 15 December 2000. Ms Archer subsequently acknowledged that her remarks in that regard on that occasion were incautious and overstated the position. She has since confirmed (as she did again at the hearing on 13 September) that it is not the Crown case that the applicant was a full-time drug dealer who never conducted any other legitimate business.

44 In his letter to Legal Aid of 6 August 2001, the applicant stated that more than 20 of the witnesses on his list would be required to give oral evidence to substantiate all his legitimate business dealings and extensive domestic and international travel prior to his arrest.

45 The list of witnesses with a brief synopsis of the evidence the applicant wishes to lead from each of them was, as I have said, provided to me but not to counsel. I do not propose here to elaborate on the content of that list. Suffice to say it does reflect what the applicant set out in his letter to Legal Aid.

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46 Whatever earlier misconception may have arisen, it has for some time and certainly is now clear, that the Crown case is to be that the applicant was engaged in drug dealing and the two offences with which he is charged were part of that activity; but it will not be the Crown case that he was engaged in drug dealing exclusively. In particular, the Crown would not dispute that he was, or may have been, engaged in other legitimate business activities. That being so, and subject to there being some specific evidence that might go to meet some particular aspect of the Crown case or the evidence led by the Crown, it would seem to me at this stage that evidence that the applicant generally engaged in legitimate business activity would be simply irrelevant to the issues in this case and hence inadmissible in any event. On that appreciation of the matter, it is difficult to see how there could be any realistic prospect of the applicant being able to call that number of witnesses from New South Wales to give the sort of evidence he has foreshadowed. Lest there be any misunderstanding about this, I make it clear I am not here expressing any firm nor concluded view about these matters. They would need to be revisited at a later stage in light of more detailed disclosure and legal argument if necessary.

47 Further, notwithstanding what I have said above, I accept the applicant would be seriously disadvantaged were he to have to go to trial without legal representation - but I also note that for reasons explained in various of the authorities, that circumstance would not necessarily result in an unfair trial.

48 The disadvantages to which I refer were described for example, by Mason CJ and McHugh J in Dietrich at 301-302:

"The advantages of representation by counsel are even more clear today than they were in the nineteenth century. It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious (McInnis v The Queen (1979) 143 CLR 575, at p 579, per Barwick CJ; also Galos Hired v The King [1944] AC 149, at p 155 and Foster v The Queen(1982) 61 FLR 440, at pp 441-442; 38 ALR 599, at p 600). Lord Devlin stressed the importance of representation by counsel when he wrote (The Judge (1979), p 67): 'Indeed, where there is no legal representation, and save in the exceptional case of the skilled litigant, the adversary system, whether or not it remains in theory, in practice breaks down.' An unrepresented accused is disadvantaged, not merely because

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almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown (McInnis (1979) 143 CLR, at p 590, per Murphy J). The hallowed response (See the reference to Coke's opinion in Powell v Alabama (1932) 287 US at p 61) that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a 'helping hand' to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems (See Foster (1982) 61 FLR, at pp 441-442; 38 ALR, at p 600). As Sutherland J stated in Powell v Alabama ((1932) 287 US, at p 61), when delivering the judgment of the United States Supreme Court:

'But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional'."

49 Similar observations were made by Deane J at 334-335:

"A criminal trial in this country is essentially an adversarial process. Where the charge is of a serious crime, the prosecution will ordinarily be in the hands of counsel with knowledge and experience of the criminal law and its administration. The substantive criminal law and the rules of procedure and evidence governing the conduct of a criminal trial are, from the viewpoint of an ordinary accused, complicated and obscure. While the prosecution has a duty to act fairly and part of the function of a presiding judge is to seek to ensure that a criminal trial is fair, neither prosecution nor judge can or should provide the advice, guidance and representation which an accused must ordinarily have if his case is to be properly presented (See, eg, Richardson v The Queen (1974) 131 CLR 116, at p 122;

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Whitehorn v The Queen(1983) 152 CLR 657, at pp 682-683). Thus, it is no part of the function of a prosecutor or trial judge to advise an accused before the commencement of a trial about the legal issues which might arise on the trial, about what evidence will or will not be admissible in relation to them, about what inquiries should be made to ascertain what evidence is available, about what available evidence should be called, about possible defences, about the possible consequences of cross-examination, about the desirability or otherwise of giving sworn evidence or about any of a multitude of other questions which counsel appearing for an accused must consider and in respect of which such counsel must advise in the course of the preparation of a criminal trial. Nor is it consistent with the function of a prosecutor or trial judge to conduct, or advise on the conduct of, the case for the defence at the trial. Nor, in the ordinary case, is an accused capable of presenting his own case to the jury as effectively as can a trained lawyer.

An accused is brought involuntarily to the field in which he is required to answer a charge of serious crime. Against him, the prosecution has available all the resources of government. If an ordinary accused lacks the means to secure legal representation for himself and such legal representation is not available from any other source, 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 (See, generally, Powell v Alabama (1932) 287 US, at pp 68-69; Gideon v Wainwright (1963) 472 US, at p 344; Galos Hired v The King [1944] AC, at p 155; Re Ewing and Kearney and the Queen (1974) 49 DLR (3d), at p 621;18 CCC (2d), at p 358, per Farris CJBC, dissenting; The State (Healy) v Donoghue [1976] IR, at p 357; Hoskot v Maharashtra [1979] 1 SCR (India), at pp 204-206; Reg v Corak (1982) 30 SASR, at pp 408-409) 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."

50 Why the lack of legal representation may not inevitably result in an unfair trial was explained by Deane J at 335-336:

"In determining the practical content of the requirement that a criminal trial be fair, regard must be had 'to the interests of the

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Crown acting on behalf of the community as well as to the interests of the accused' (Barton v The Queen (1980) 147 CLR, at p 101, per Gibbs ACJ and Mason J). There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented. The most obvious category of case in which that is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available (See, eg, Reg v Green (1992) 62 A Crim R 442, at pp 12-15, per Kirby P). Another category of case in which that is so is where the accused has the financial means to engage legal representation but decides not to incur the expense."

51 In this case there is a unique aspect of disadvantage advanced by the applicant.

52 Mr Pinkstone's affidavit dated 12 August 2001 (Exhibit 7) is concerned virtually exclusively with his complaints about the seizure of his computers by prison authorities and (he claims) police officers. He deposes that in early 2000, with the permission of prison authorities, he purchased a lap top computer to enable him to prepare for trial and that throughout the following year he collated and prepared on it, all his legal correspondence with previous counsel, his legal research notes, submissions, affidavits and other related legal materials.

53 He says that over the months his co-accused Michael Brazier and Wayne Yanko also used that computer for the purpose of preparing their own cases for trial.

54 According to the applicant, his lap top computer was seized by prison authorities on 20 February 2001. That this did occur is confirmed by documentary evidence and is apparently not in dispute. The applicant wrote to the Assistant Supervisor (Prison Management) on 28 February 2001 outlining his need for his computer and requesting its return. He states the response was that his computer was in the possession of West Australian police officers. There were subsequent discussions or interviews between the applicant and police officers about this issue and about the data on his computer. He alleges all the data was copied. Again, that would not seem to be in dispute. When she responded on 24 August to my request for a report on Mr Pinkstone's complaints in this regard, Ms Archer advised that an officer from the Computer Crime Investigation Unit ("CCI Unit") copied data from the applicant's lap top onto 88 compact disks - but I shall return to this later.

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55 I will not detail all the circumstances described by the applicant in this connection. I do note that he says his lap top was returned to the prison by Western Australian police officers about 17 February 2001, but that he was then informed inmates were not allowed to use lap tops within the prison and accordingly his would have to be signed out, although he had permission to copy data from it onto floppy disks which he could then use on a new desk top computer which he could purchase through the prison. He states he did this, receiving a new desk top computer about 25 April 2001. According to his affidavit however, that computer too was seized by prison authorities on 30 July 2001. When it was returned on 2 August, he found both that it had been dismantled and that all files had been copied. That resulted in him producing a document entitled "Official protest to the Supreme Court" which he handed to me when he appeared on 3 August 2001. I expressed my concerns about what was being said by the applicant and asked Ms Archer to investigate and report at the next hearing.

56 In his affidavit (Exhibit 7) Mr Pinkstone claims his computer was seized again on 9 August, although as I understand it, Ms Archer disputes that.

57 Without canvassing the detail of his claims, they essentially come to the concern that the police and officers of the DPP have thereby obtained confidential and "legally privileged" information about his defence and that of his co-accused Michael Brazier and Wayne Yanko, and that by reason of the seizure of his computer he has been impeded in preparing his case for trial. These are serious allegations and raise serious concerns.

58 Ms Archer responded on 24 August 2001 to my request for information in respect of these claims. She outlined the results of enquiries made and handed up several statements (t 329-333). The Western Australian Police CCI Unit officer stated that he had been requested by prison authorities to examine the applicant's computer equipment because of their concerns that he was involved in illicit drug trading whilst in the prison and was communicating with people outside. He alleged that when the equipment was examined, it was discovered that one of the hard drives had been hollowed out which left it inoperative and left a space for some purpose. In the other hard drive tray there was found a Nokia phone device with a simcard and numerous Ministry of Justice labels. These labels are used by the prison authorities as evidencing that equipment has been checked and not tampered with, similar to Customs' labels put on suitcases after Customs' inspection. The examination also revealed two encrypted volumes, one very large and one quite small.

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Those volumes required a password to access and could not be viewed without it. The officer was able to identify the password and made a forensic image of the electronic data to 88 compact disks. Those disks have been secured in the commercial crime exhibits room which is subject to controlled access and the CDs themselves have been sealed in drug bags which cannot be opened or accessed by anyone without those bags being destroyed. The officer says in his statement that he does not recall seeing any documentation or information relating to the applicant's defence for his trial and that no other person has access to the material. I do not propose to set out anything further of the content of those statements as explained by Ms Archer.

59 The material in those statements is not evidence. The statements have not been sworn to, or tested in cross-examination. The applicant has sworn to the truth of these allegations, both in his affidavit and in his evidence, but he was not cross-examined about them. I take that to have been because, on this application, the relevance of the evidence was confined to the issue of the actual seizure of the computer and the difficulty thereby caused to him in preparation for trial and the circumstances to that extent at least were not contested. The evidence does not go so far as to show that the legally confidential information (to use a neutral phrase) was improperly obtained by the police or prosecution, nor that by reason of these events (about which I am presently in no position to make findings) the applicant's trial would, or may be, unfair. In the circumstances I think it inappropriate for me to say any more about that at this stage. For the purposes of this application I confine myself to the conclusion that his computers were seized by, or at the request of, prison authorities or by arrangement with them, and that the applicant's ability to prepare for trial was seriously impeded by the removal of his computer for those periods. Notwithstanding my serious concerns about this situation, on the information presently available to me, it does not lead me to the conclusion that by reason of these circumstances the applicant's trial would, or would be likely to, be unfair.

60 In this context I have also had regard to the difficulties described by the applicant in communicating with his co-accused and with possible witnesses.

61 That brings me to a consideration of the particular factors bearing on a Dietrich application.

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Whether serious offence

62 I certainly accept that the two offences of which the applicant stands charged on this indictment are serious offences. The Crown conceded that was so.

The applicant is indigent

63 With respect, I agree with and accept the meaning of that word as explained by Seaman J in Lucas, supra.

64 I am very concerned that these proceedings are still in the interlocutory stages. No jury has yet been empanelled. The prosecution has not yet opened its case and no evidence has yet been led on behalf of the Crown. The evidence given by, or relied upon by the applicant, has been confined to issues relevant only to this application. In the circumstances I consider it would be inappropriate for me to refer to the evidence in detail or to express specific findings or conclusions about the evidence, or to express any particular views about the applicant or his testimony beyond those which may be strictly necessary to deal with this application.

65 Bearing in mind that it is for the applicant to prove on the balance of probabilities that he is indigent, that he has been unable to obtain legal representation, that the inability is not due to fault on his part and that there is no exceptional reason why the trial should not proceed notwithstanding his lack of legal representation (Karounos, supra) I am compelled to begin with the observation that the evidence put before me by Mr Pinkstone in support of his application was variously characterised by unsubstantiated assertion on his part, vagueness and broad generality.

66 His testimony was to the effect that between October 1999 and about December 2000 he had been represented on different occasions by senior counsel from Melbourne and Sydney, and by junior counsel and a solicitor from Perth, all which cost approximately (he was vague about the amounts) $54,000. These costs he said, were funded by borrowings from his brother, his girlfriend, other friends or relatives and his former employer, Mr Nekvapil. He asserted the funds had been loaned to him and would have to be repaid. He said the expectation was that he would be able to repay them and earn an income to pay his further legal costs from his continued employment with Mr Nekvapil and his company Asia Team Holdings once he was released on bail. As events transpired he was not released on bail and so was not able to earn any income beyond the

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minimal prison wage. He said the loans have not been repaid and those people are unable or unwilling to advance any further funds.

67 The applicant was adamant in his evidence that apart from an amount of $5700 cash and a BMW motor bike, both seized from him by the police and held under a holding order since then, and one account with the ANZ Bank in which there is an amount of approximately $800, he has no assets, no income and no property of any kind.

68 On the other hand in cross-examination, the applicant conceded he may have bank accounts in false names - although he insisted there was no money in them. He said they had all been seized by the police or other authorities. He said he could not recall in which false names he had opened bank accounts. The same applied to credit card accounts.

69 He testified he had been employed by Mr Nekvapil from about 1998 until his arrest on 13 October 1999. He was totally vague about his income over that period. When pressed, he conceded he had received probably not more than 20 payments from Mr Nekvapil. These were not regular amounts and he was not on a wage. The payments were not calculated on any hourly, nor other fixed basis. He was paid whatever Mr Nekvapil thought appropriate depending upon the deal done by the applicant. He gave no elaboration of this, other than to say it could have been $2000 per month or substantially greater. He referred to various inventions, for instance a new design for a surfboard fin, fin plugs and a "Monster Mash" toy. These had been previously mentioned in evidence in support of his bail applications.

70 He referred to his work for Asia Team Holdings marketing various micro-chemical products for such purposes as waste disposal and fertiliser.

71 Although he said he had been working on that project for Asia Team Holdings since January 1998, the applicant said he was unable to remember any particular product which he was marketing.

72 He agreed that he had been involved in various companies. He acknowledged one was Red Water Enterprises, but said that was the only one he could think of. He said he could not recall if that company had a bank account, although investors did contribute to it. He said he was doing the organisation of the company, which leased a silver Lexus vehicle in New South Wales which he drove. He said the vehicle was eventually sold but the sale proceeds only covered the balance outstanding on the lease.

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73 He said the money received from investors for the company was mostly in the form of cash and from people he had known for a number of years. There were possibly some 80 people involved and they usually put in about $5000, although some put in substantially more and some put in less. These were people whom he had known for some 30 years in the surfing fraternity, although again when pressed, he was unable to name a single one. I pause to make the observation that on those very broad figures, the investment income would have been in the order of $400,000.

74 The applicant conceded that he travelled a lot, but had no idea how often he was overseas in 1999. He agreed he did go to Hong Kong and he would imagine it was more than one trip, but he had no idea how many trips without his diary which had been seized by the police. Likewise he had no idea what that cost, but said Mr Nekvapil would reimburse him when he got there. He conceded that when travelling interstate he could have travelled under a false name. He agreed that he was not declaring money received from Mr Nekvapil on any income tax return and indeed although a resident of Australia and did not file an income tax return elsewhere, he had only filed "a couple" of income tax returns in Australia and had no idea when that was. He was asked about other income and acknowledged that he did advisory work for a few people in the surfing industry and also for a certain person in Western Australia whom he refused to name (although he did write the name on a piece of paper which he provided to me and which after reading I returned to him). I shall refer to that person as his West Australian associate.

75 Again he reiterated frequently that he had no idea how much money he had received from any of these people and in particular his West Australian associate. He kept reiterating that he was unable to give any information about these matters because all of the details were in his diary (which I understood to be a reference to both a hard-copy and electronic diaries or personal organisers) which had been seized by the police. He described the sort of work he did for his West Australian associate as "running around" for him on various matters and seeing people. He said that on occasions that person did give him money because he liked the applicant. He was a good friend. The sort of things he was doing for this person were business, investment opportunities, properties, purchasing fish co-operatives and doing due diligence work on about 40 companies. The applicant said he saw owners of businesses and he mentioned one particular factory by name, but was unable to give any further details even as to where the premises were. Again, he acknowledged that money did change hands but without his diary he could not recall any more details. He acknowledged that he provided advice to people in New South Wales

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in the fashion and surfing industries and mentioned the names of two people but could not recall any others without his diary.

76 Generally, throughout his cross-examination when asked to give particular information about specific matters, he either declined to do so, or more commonly, asserted that he could not remember without reference to his diary which had been seized by the authorities.

77 In respect of his complaints that he was unable to contact witnesses and other people for the preparation of his case because of the seizure of his computers by prison or police authorities whilst he was on remand, he conceded that he did have four or five personal organisers on which these details were in various forms of completeness and that he did provide his girlfriend Ms Mikkelides with such an organiser, but the details on it were encrypted and he did not give her access to those because it was correspondence which he considered might distress her and he did not want to do that.

78 Returning again to the question of his income, he said it would have been different all of the time. He said he knew thousands of business people all around Australia and would have two or three meetings every week. If he did do a deal for or with them, then there would usually be a cash payment to him "under the table".

79 Ms Archer specifically asked the applicant whether he had false bank accounts in names which she then listed. On each occasion he said he could not recall.

80 He was asked whether he had ever discussed with his co-accused Yanko, putting money into an account and initially said he did not know but later demurred and when confronted with a transcript of an intercepted telephone call, conceded he may have discussed the deposit of an amount of approximately $4000 for some purpose. He accepted it was possible he may have bank accounts in some of the false names mentioned, but again maintained there was no money in them.

81 Asked about the details of the airfare and booking when he came to Perth on 5 October 1999 prior to his arrest, he said he vaguely remembered flying to Perth but had no idea under what name he had travelled nor how it was paid for. He said he had absolutely no idea where he got the money to pay the airfare to Perth and back to Sydney.

82 The applicant produced no evidence as to his lifestyle or his accommodation or living expenses or arrangements prior to his arrest. It

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is quite impossible to form any firm appreciation of his financial position. He adduced no evidence apart from his own assertions to prove the source of the funds which paid for his legal costs to December 2000. Given his evidence as to how he said he was conducting business and the nature of it, with what he himself described as "under the table" payments, given the vagueness and evasiveness of his evidence generally about these matters and given what seemed to me to be a determined refusal to disclose any information which might be to his disadvantage, I am not satisfied that he has shown himself to be indigent.

Unable to obtain legal representation

83 In the circumstances of this case, this consideration is very much bound up with the questions whether the applicant is indigent and whether his lack of legal representation is due to fault on his part. He has shown himself to be able to obtain legal representation in the past. He maintains his inability to do so since December 2000 is because he is indigent, because private lawyers are not prepared to act for him without fee and because he has been unable to obtain legal aid. I have already said I am not satisfied he is indigent. I accept that private lawyers are not likely to be prepared or able to represent him on a trial of this nature without fee and that at least five firms have already confirmed that.

84 The applicant maintains he has done all he can to obtain legal aid and has complied with all requirements for information which the Commission has made of him. I note however, that when his attention was drawn to the Legal Aid letter dated 24 October 2000 and the request there for documents and information relating to all bank, building society and credit union accounts operated by him showing transactions for the previous three months, he said he doubted if that had been supplied because all the relevant documentation had been seized by the Western Australian police or the New South Wales Crime Commission and those agencies refused to release them. I do not regard that as a satisfactory response in the circumstances.

85 The next aspect which I note is that although the applicant said he first applied for legal aid in October 2000 (which is true) that was for the preliminary hearing. The Commission refused legal aid for that purpose on 15 November 2000 but invited him to reapply for aid for trial if he was committed.

86 The applicant wrote to the DPP on 15 February 2001 (Exhibit 4) requesting the release of the $5700 then being held by the WA Police

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Service and foreshadowed that if the funds were not released and he could not obtain legal aid, he would have no option other than to apply for an order staying the proceedings.

87 By letter dated 26 February 2001 (Exhibit 10) the Commission refused legal aid on the ground that the applicant had not provided enough information to enable it to decide whether or not his case was likely to succeed. It was pointed out that a grant of legal aid could not be considered further until the requested information was given. The applicant maintained in evidence that he had in fact provided all the information sought of him by the Commission.

88 On 1 March 2001 the applicant wrote to the Commission (Exhibit 11) indicating that he had mentioned to a Legal Aid representative at the prison that he did intend to forward further information to support his application but since then further "ancillary matters" had occurred. (In evidence he said the further information there referred to related to a vehicle which was leased by a company in New South Wales of which he was a director). He went on to write that:

"Over the past 16 months of my incarceration I have borrowed a substantial amount of money from family, friends and ex-employers to fund legal representation. That money was lent to me with the firm belief that I would be granted bail, and therefore able to work and repay those debts. Unfortunately as I have since established, bail in Western Australia is not an option for a New South Welshman with tenuous links to this State.

Nevertheless, I have again begged those previous considerate family members, friends and ex-employers to please extend my credit to obtain legal representation. Only recently I received verbal conformation (sic) that some monies have been raised, but to what amount is still unknown. Therefore, I request my legal aid application be placed on hold until I can establish exactly how much money I can raise to procure counsel."

89 It was not until 13 July 2001 that he wrote again to Legal Aid (Exhibit 16) advising that his family had contributed as much as they were able and were not in a position to assist him further and so he was urgently seeking legal aid assistance for his trial on 2 October. He estimated the costs would be some $315,000.
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90 On 1 August 2001 the Commission wrote back to him requesting further information and material. On 6 August 2001 the applicant wrote to Legal Aid advising that he was unable to give any details of how much money individual family members had contributed to his defence because only one of them was now speaking to him and he had none of their contact details. He gave the names of his previous solicitors and counsel and provided a "defence witness list" and an explanation in broad terms as to why those witnesses were required. I have already made some mention of this. So far as the Commission's request for copies of judgments and transcripts were concerned, he requested the Commission provide the Ministry of Justice with an open cheque to enable him to photocopy all of that because he could not otherwise possibly afford to do so.

91 By letter dated 29 August 2001, the Commission pointed out that the information provided by him continued to be insufficient to consider his request for legal assistance and requested further specific information. The first material requested was copies of all correspondence between him and his eight former lawyers. The applicant responded to this by letter dated 5 September 2001 in which he asserted that he had always complied with every request from the Commission for information and reiterated the difficulties he had as a prisoner on remand. In relation to the request for copies of correspondence between him and his legal advisers, the applicant said he would not comply with that until such time as he was provided with counsel. He wrote that he had been representing himself and so all legal correspondence is classified "legal privilege" and that he did not intend to provide his entire defence to a government body without there first being formal notification of lawyer/client confidentiality. Furthermore, the correspondence related to other matters apart from this particular prosecution. In relation to the documents, the applicant explained that he had seen the Legal Aid duty lawyer who visited the prison on 4 September 2001 and explained to her the enormous amount of documentation that needed to be photocopied. She had said she would ascertain what could be done and advise him, but as at the date of his letter he had received no response.

92 In fact it appears that some four boxes of material were collected from him by the Legal Aid duty solicitor on 5 September 2001 and the Commission was presently examining that material.

93 In respect of the six month delay between 1 March and 13 July 2001 whilst his Legal Aid application was on hold, the applicant said that two to three months of that delay was due to the seizure of his computers. I do not accept that as an explanation. On 26 March 2001 I informed all

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parties that 2 October was a firm trial date. One reason for my so doing was to give that degree of certainty requisite in my view to enable all concerned to make all necessary arrangements to be ready for trial. The applicant has not persuaded me that his failure to pursue his application for legal aid between 1 March and 13 July 2001 was either justified or reasonable.

94 Furthermore, although his letters to the Commission have often been lengthy, they too tend to consist mostly of general assertions lacking in the sort of specificity which would enable the information and his application to be properly assessed or checked. He has advanced an explanation for his refusal to provide copies of correspondence with his former solicitors, but I do not regard that as satisfactory.

95 It was not until 5 September 2001 that the four large boxes of material were collected by Legal Aid. I accept it was not feasible for the applicant to photocopy the material at the prison, but it seems to me that had he pursued his application with reasonable diligence in and from March 2001, the question of his eligibility for legal aid could, and should, have been determined much earlier.

96 To a considerable extent the situation here in one of its features is not entirely unlike that before Miles CJ in Clarke v Director of Public Prosecutions (Cth) (1998) 147 FLR 165. That case involved a Dietrich application in respect of committal proceedings and so it is in that respect wholly different from the present, but at 170-171 his Honour made the following observations:

"It may also be unfortunate that both the Sydney and Canberra solicitors have concentrated their efforts on the periphery of the case, on adjournments, bail applications and the like, instead of considering the substance of the charges and the evidentiary material to support the charges. In fact the Canberra solicitors never opened one of the boxes containing the lever arch files. It is likely that the applicant has had some assistance from their advice and that advice of counsel briefed by them.

From reading his affidavits and from listening to the applicant in the witness box, I concluded that he has concentrated his own efforts on these peripheral matters. Whilst I do not doubt for a moment the importance of his application for bail and the need to prepare for it, the fact is that the applicant has spent so much time and attention on matters relating to legal aid and

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adjournments, that he appears to have underestimated the need to come to grips with the prosecution case against him. The summary of facts appears on the face of its to be a proper statement in the nature of particulars and a very useful base from which to start in order to understand the nature of the charges and the material to be put in evidence to support the charges. The applicant gave me the impression of being an intelligent and articulate person, but, as sometimes happens with pending litigation, he has tended to defer concentrating on the substantial issues in order to concentrate on other matters."

97 Here the applicant in my view has not devoted sufficient genuine effort to pursue his application for legal aid, but otherwise his situation is not dissimilar to that of the applicant in Clarke in that he appears to have concentrated his efforts on peripheral matters and to have underestimated the need to focus upon the prosecution case against him and the trial itself. The fact is however, that for whatever reason, no final decision has yet been made about the applicant's application for legal aid. That is most unsatisfactory when the trial is due to commence in two weeks. Be that as it may, it is not as unsatisfactory as a situation in which the applicant would proceed to trial without legal representation when he might possibly be able to obtain it. I shall return to this below.

Inability not due to fault on the applicant's part

98 In this context I take this to mean fault in the sense explained in South Australia v Russell & Craig, supra, per Matheson J at 506 and Prior J at 507.

99 Given my conclusion that the applicant has not shown himself to be indigent, it follows that nor am I satisfied that his lack of legal representation is not due to his unwillingness or failure to obtain it. Nor am I satisfied that he has genuinely endeavoured to pursue his application for legal aid.

Exceptional reasons

100 This question does not arise in light of my findings above. Were I to need to decide it, in circumstances in which the applicant was indigent and was unable to obtain legal representation through no fault of his own, then I would not see any exceptional reason here why his trial should proceed notwithstanding those circumstances.

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Conclusion

101 The applicant has failed to establish that he is indigent and that he is unable to obtain legal representation through no fault of his own. The application for a temporary or permanent stay of the indictment will therefore be dismissed.

102 However, as it is clear that (for whatever reason) the legal aid avenues open to him are not yet exhausted and until that occurs (or untilhe chooses to engage legal representation) there is a possibility that he may be able to obtain legal representation, I am prepared to adjourn the trial for two weeks to enable that to be pursued to finality. If the urgency of the situation is made clear to the Commission, I see no reason why the issue of legal aid could not be finally determined within the next few days (bearing in mind they have had his material since 5 September).

103 Although it would obviously be far from the optimum, I consider that one week would be sufficient for competent counsel to get this case up for trial.

104 For these reasons I would be prepared to order that the trial date be vacated and that the trial be relisted to commence on 16 October 2001 whether or not the applicant then has legal representation.