R v Pirimona, Lawrence Stewart - [1998] TASSC 49

49/1998

PARTIES:  R
  v
  PIRIMONA, Lawrence Stewart

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  164/1997
DELIVERED:  4 May 1998
HEARING DATE/S:  27 April 1998
JUDGMENT OF:  Slicer J

CATCHWORDS:

Legal Aid - Legal assistance schemes - Generally - Governing principles - Criminal proceedings - Serious offences - Inability to obtain legal representation.

Dietrich v R (1992) 177 CLR 292, applied.
Connolly v DPP [1964] AC 1254; R v Souter (1997) 93 A Crim R 400, Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370, R v Fuller (1997) 69 SASR 251, referred to.
R v Rowbotham (1988) 41 CCC (3d) 1; R v Sechon (1996) 104 CCC 554, approved.
Aust Dig Legal Aid [1]

REPRESENTATION:

Counsel:
             Applicant:  A R McKee
             Respondent:  D J Bugg QC
Solicitors:
             Appellant:  Gunson Pickard and Hann
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:
Judgment ID Number:  49/1998
Number of pages:  12

Serial No 49/1998
File No 164/1997

THE QUEEN v LAWRENCE STEWART PIRIMONA

REASONS FOR JUDGMENT SLICER J

4 May 1998

The applicant seeks a stay of proceedings which were instituted by an indictment alleging commission of the crime of receiving, contrary to the Criminal Code, s258. The application is based on the contention that, absent legal representation, the applicant will be unable to obtain a fair trial in accordance with the principles stated by the High Court in Dietrich v R (1992) 177 CLR 292. It is accepted by the Crown that the applicant is indigent, has taken all reasonable steps to obtain legal representation and will be without representation on the trial. The applicant was represented by counsel for the purpose of applying for stay, but such representation was limited to this application.

Stay of Proceedings

Much political criticism has been directed at the judicial system for its implementation of the principles stated by the High Court in Dietrich v R (supra). Some claim the decision to be an example of judicial activism and an irresponsible usurpation of the legislative functions of Parliament. The decision is said to impose an economic impost on the state without regard to economic consequence. The criticisms, usually emanating from members of the executive arm of government, ignore some simple propositions. As society becomes more and more complex, parliaments pass more voluminous and complex laws to meet the needs of that society. Those with resources are able to test the boundaries of legislative enactment, leading to further responses which apply equally to those without resource. Yet we hold as a shared value that all are equal before the law. Without drifting into romantic idyll, courts are required to attempt, as best they are able, to give effect to that shared value, and if not so able, to admit it to be a sham. Parliaments may alter their legislative approach, or enact laws seeking to alter that shared value. However, absent such action, the courts are required to give effect to a central…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] TASSC 49
Decision Date: 4 May 1998

CaseChat Overview and Summary

The applicant in this case sought a stay of proceedings on the basis that he would be unable to obtain a fair trial without legal representation. The applicant, Lawrence Stewart Pirimona, was charged with receiving stolen property, namely an aluminium boat, an outboard motor and trailer. The Crown accepted that the applicant was indigent, had taken all reasonable steps to obtain legal representation, and would be without representation at trial. The application was heard in the Supreme Court of Tasmania, presided over by Slicer J. The central legal issue was whether the absence of legal representation would render the trial unfair, and whether this would justify a stay of proceedings. Slicer J concluded that while the absence of legal representation could potentially lead to an unfair trial, this was not inevitable in all cases. The court considered the principles established in Dietrich v R, which recognise the right to a fair trial but not necessarily the right to state-funded counsel. The court also considered the seriousness of the offence, the complexity of the prosecution case, and the likelihood of sanction. In this case, the prosecution case was relatively simple, involving one count and a small number of witnesses. While the applicant might face difficulties in presenting his case without counsel, Slicer J was not persuaded that the trial would inevitably be unfair. The application for a stay of proceedings was dismissed.

Orders