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 tenet of our society.  The second simple proposition is that as a society, we believe that the procedures to be used in the resolution of disputes, or for the protection of rights, ought to be fair and equitable.  No matter the issue, ordinary citizens expect that they will be heard in support of their cause.  That expectation is that the nature of the case will be explicable, the tribunal dispassionate, and the right afforded to the citizen to present relevant material.  A citizen may not agree with the outcome and might challenge its reasoning or logic, but if the framework of fairness is perceived to exist, then verdicts or judgments will generally be respected.  Given that central to our form of governance is acceptance, by most, of its norms and structures, the long-term effect of distrust in the fairness of verdicts will weaken a central tenet of a decision-making process.  A footnote to an academic paper entitled Republicanism, Community Values and Social Psychology by Ghosh, published in the Sydney Law Review (1998) Vol 20 5 at 35, concisely states the proposition:

"There is a substantial research literature suggesting that 'the key factor affecting the perceived legitimacy of authorities is procedural fairness':  Tyler, T and Mitchell, G, 'Legitimacy and the Empowerment of Discretionary Legal Authority:  the United States Supreme Court and Abortion Rights' (1994) 43 Duke LJ 703 at 746.  The authors state that the most important factor determining citizens' acceptance of the Court's authority to make decisions relating to the permissibility of abortion is not their personal views on abortion but their general views on the legitimacy of the Court.  This was in turn most significantly dependent on judgments of the court's procedural fairness, in particular, whether judges were 'trying to be fair' and 'consider[ed] people's opinions':  id at 776—7."

Insofar as the criticism claims disregard of economic consequence, it should be remembered that courts are ordinarily precluded from paying regard to such a consideration in giving effect to the law as enacted by Parliament.  The decision by a court to stay proceedings is no more than an acknowledgment that in a particular case involving a citizen and the state, an individual ought be afforded a fair trial in accordance with the prevailing values accepted by society.  These concepts are of long-standing and they have been recognised in the practice of "dock" briefs, much beloved in literature and judicial reminiscences, the provision of a public defender's office, and pro bono work by legal practitioners.  Parliaments have recognised the need to provide statutory schemes (Legal Assistance Act 1943 - 1970 (NSW); Legal Aid Act 1970 (Vic); Legal Assistance Act 1969 (Qld); Poor Persons Legal Assistance Act 1925 (SA); Legal Practitioners Act 1936 - 1969 (WA); Legal Assistance Act 1954 (Tas)).  In 1924, the Tasmanian Parliament enacted the Criminal Code, s410, which provided:

"410  Legal assistance to appellant — (1)  In any case in which it appears to be in the interests of justice that the appellant should have legal aid, and that he has not sufficient means to enable him to obtain such aid, the Court or a judge may make an order for the payment to or for the appellant of such sum as the Court or judge may think reasonable.

(2)     Any sum so ordered to be paid shall be paid to or for the appellant at such time and upon such conditions as may be prescribed."

The moneys were to be provided in accordance with s414(2) which stated:

"(2)    Any moneys ordered to be paid under section four hundred and ten, or under this section, to a person convicted, and the expenses of any assessor appointed, and of any witnesses attending on the order of the Court, or examined, and of and incidental to any examination or reference, and of the appearance of an appellant on the hearing of his appeal or on any proceedings preliminary or incidental to his appeal, shall be defrayed out of moneys to be provided by Parliament."

In the United Kingdom, it has long been recognised that a person without representation could suffer prejudice.  The Trial or Felony Act 1836, entitled a person charged with felony to legal assistance to all aspects of the trial.  It was early recognised that:

"When a prisoner is undefended his position is often pitiable, even if he has a good case."  (A History of the Criminal Law of England (1833), Vol 1 442, Sir James Stephen.)

Provision was made for the expenditure of public moneys (Poor Prisoners Defence Act 1903 (UK)) so as to permit representation and it has long been recognised that legal aid committees are required to act judicially so that aggrieved parties may seek prerogative relief to obtain a right afforded by statute (R v Manchester Legal Aid Committee; Ex parte R A Brand & Co Ltd [1952] 2 QB 413). The words of Lord Goddard in that case, at 431, are as relevant today as they were in 1952:

"Though the local committees may be said to be administrative bodies in the sense that they are responsible for administering the Act, they are quite unconcerned with questions of policy.  They cannot refuse legal aid because the fund is becoming depleted or because they think that certain forms of action should be discouraged.  They have to decide the matter solely on the facts of the particular case, solely on the evidence before them and apart from any extraneous considerations.  In other words, they must act judicially, not judiciously."

That position remains so in the United Kingdom (R v Liverpool City Magistrates' Court; ex parte Shacklady [1993] 2 All ER 929) and the general principles have been expanded by affording the courts power to grant a legal aid certificate (Legal Aid in Criminal and Care Proceedings (General) Regulations 1989; see also R v Liverpool City Magistrates' Court; ex parte Pender (No 2) [1994] 2 All ER 897; R v Legal Aid Board; ex parte Donn & Co (A Firm) [1996] 3 All ER 1.)

The remedy provided by the courts where there has been, or is perceived to be, a failure to obtain a fair trial has long been recognised.  As Lord Devlin said in his speech delivered in the House of Lords in Connolly v DPP [1964] AC 1254 at 1347:

"My Lords, in my opinion, the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court's process is used fairly and conveniently by both sides.  I consider it to be within this power for the court to declare that the prosecution must as a general rule join in the same indictment charges that 'are founded on the same facts, or form or are a part of a series of offences of the same or a similar character' (I quote from the Indictments Act, 1915, Schedule I, rule 3, which I shall later examine); and power to enforce such a direction (as indeed is already done in the civil process) by staying a second indictment if it is satisfied that its subject-matter ought to have been included in the first.  I think that the appropriate form of order to make in such a case is that the indictment remains on the file marked 'not to be proceeded with.'"

The New Zealand Parliament has enacted a Bill of Rights 1990, s24(f), which provides that everyone charged with an offence has the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance.  Whilst there are limits to the provision of counsel, imposed by the Legal Services Act 1991, the courts have consistently upheld the right to be afforded access to legal advice (Police v Kohler [1993] 3 NZLR 129; R v Piper [1995] 4 NZLR 540). (See generally The Right to Criminal Legal Aid (1993) NZLJ 168.)

The Constitution of the United States, Sixth Amendment, provides:

"In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence."

That constitutional right was recognised as applying to a poor defendant charged with a capital offence (Powell v Alabama (1932) 287 US 45) and the right to be provided with counsel by the state was held to arise under the due process clause of Amendment 16. The principle was extended to non-capital felonies in Gideon v Wainwright (1963) 372 US 335, and, although the courts have not expressly determined the ambit of responsibility for payment, it would appear to extend to cases where loss of liberty is involved (Argersinger v Hamlin (1972) 407 US 25, 32). Further, in Miranda v Arizona (1966) 384 US 436, the Supreme Court has upheld the right to counsel in cases involving custodial interrogation, and the requirement for the state to provide for the appointment of such counsel. In that case, the court described a series of safeguards which are required, in the words of Warren CJ:

"Unless other fully effective means are devised to inform accused persons of their right to silence and to assure a continuous opportunity to exercise it."

One of the safeguards laid down was that a person has the right to consult a lawyer and have a lawyer with that person during interrogation, and if there be any doubt as to his or her financial circumstances, that a lawyer be appointed to represent that person (see Harvard Law Review (1966) Vol 80 201).

Although pre-Charter Canadian courts had rejected the proposition that a legislative right to counsel comprehends a right to have counsel appointed by the courts (Re Ewing and Kearney v R (1974) 18 CCC (2d) at 356; Barrette v R (1976) 29 CCC (2d) 189), they recognised that an unrepresented accused charged with a serious offence is under a grave disability (R v Littlejohn and Tirabasso (1978) 41 CCC (2d) 161).  The Canadian Charter of Rights and Freedoms, ss10(b) and 11(d), provides:

"10      Everyone has the right on arrest or detention ...

(b)to retain and instruct counsel without delay and to be informed of that right ...

...

11Any person charged with an offence has the right ...

(d)to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ..."

These provisions have been interpreted as affording no constitutional right to funded counsel (Deutsch v Law Society of Upper Legal Aid Fund (1985) 48 CR (3d) 166), but rather as providing a basis for determining that an unrepresented impoverished accused has, because of the seriousness and complexity of the case, been denied the right of a fair trial (R v Rowbotham (1988) 41 CCC (3d) 1). In such circumstances, the Court has the power to stay further proceedings. In R v Rowbotham (supra), the Ontario Court of Appeal at 69 stated:

"In our view, a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided.  As stated above, the finding of legal aid officials that an accused has the means to employ counsel is entitled to the greatest respect.  Nevertheless, there may be rare circumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial.  In those circumstances, even before the advent of the Charter, the trial judge had the power to stay proceedings until counsel for the accused was provided.  Such a stay is clearly an appropriate remedy under s24(1) of the Charter.  Where the trial judge exercises this power, either Legal Aid or the Crown will be required to fund counsel if the trial is to proceed."

Concluding at 70:

"To sum up:  where the trial judge finds that representation of an accused by counsel is essential to a fair trial, the accused, as previously indicated, has a constitutional right to be provided with counsel at the expense of the state if he or she lacks the means to employ one.  Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trial for the accused, a stay of the proceedings until funded counsel is provided is an appropriate remedy under s24(1) of the Charter where the prosecution insists on proceeding with the trial in breach of the accused's Charter right to a fair trial.  It is unnecessary in this case to decide whether the trial judge in those circumstances would also be empowered to direct that Legal Aid or the appropriate Attorney-General pay the fees of counsel."

The power of a court to stay proceedings is simply an application of long-held values pertaining to procedural fairness in the criminal law.  Dietrich is a recognition that, in some cases, the absence of professional representation renders the adversarial process unfair.

It is also necessary to state what Dietrich is not.  The High Court did not say that no trial could proceed in the absence of legal representation for an accused person, nor that a person has the right to be represented at public expense.  The position was stated by Mason CJ and McHugh J, at 311, in the following terms:

"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."

Nor does Dietrich require representation by counsel of choice (Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370) or "Rolls Royce" representation (R v Souter (1997) 93 A Crim R 400 at 404). It creates no new rights but instead gives practical effect to those existing.

The above demonstrates that the ratio and conclusion of the High Court in Dietrich is not an exercise in judicial activism or an usurpation of the problems of Parliament.  It is a decision in accordance with the jurisprudence of other countries.  It states principles which are in accord with the most fundamental values of Australian society.

Prosecution Case

The indictment alleges that the applicant, without lawful excuse, had in his possession stolen property, namely, an aluminium boat, an outboard motor and trailer, knowing the same to be stolen.  The essence of the case concerns knowledge.  There is evidence that a fourteen foot boat with a forty horse power outboard engine was stolen on 28 February 1997, and that the same was returned by police to the owner on 15 March.  The vessel had been recovered from premises owned by the applicant.  There is some evidence of the description of two men who had been observed on 28 February removing a vessel from premises at which the vessel had been stored, and further evidence of the description of two men in possession of a vessel matching the description of that stolen on 2 March, such men being joined by a third person referred to by the nickname "Buck" which corresponded to that used by the applicant.  The description afforded by the witness to the events of 2 March could likewise be said to match the applicant.  The applicant told police that the vessel had been temporarily left on his premises by a man named "Greg" because it could not be towed home after a fishing trip due to a burnt out clutch in "Greg's" motor vehicle.  The interview of the applicant by investigating detectives was recorded on video and the allegations by those officers concentrated on the fact of possession, his contact with Greg and others, and his own presence on the vessel.  The applicant initially told police that he had not been told that the vessel was stolen, stating:

"... I don't know if it was hot, that's straight up, I don't know ..."

In the course of the interview, the detective went to the crux of his line of enquiry when he stated:

"No, like I said a second ago, right, not in any way am I implying or alleging that you stole the boat or had anything to do with the theft of the boat, what I am saying is the boat is at your house and you know that either C - M, whatever his name is, and possibly W -, had stolen the boat and that whilst the boat was at your place, you knew it was stolen property, that's what I'm saying."

Thereafter, the interview proceeded on the basis of enquiry into the knowledge possessed by the applicant.  The answers claimed to be significant to the prosecution case are set out in the following exchanges:

"You didn't think that was strange either? ... Well I didn't ask questions.

Why didn't you ask questions? ... Didn't think.

Or is a case of don't ask questions, you don't get the right answers? ... I didn't think to ask, possibly, yeah, yeah, I know, if you don't ask questions you won't get told no, no crap.

That's right because you didn't want to hear any crap did you? ... Nah.

And why didn't you want to hear any crap? ... Well I don't want no troubles.

That's right, because you thought that the boat was stolen? ... Yeah, I s'pose, yeah.

Yeah and surely when you thought about it and you talked about it and he told you about the trouble with his wife, he told you that the boat was stolen, didn't he? ... Yeah, yeah, when we went out fishin', yeah.

...

... but you knew that when you showed us the boat that the boat was a stolen boat? ... Well it was there and it was obvious.

How do you mean it was obvious? ... Well everything was there, to what you wanted, numbers and everything.

But you knew it was stolen? ... Well, I'd heard, yes."

The prosecution case is relatively simple, consisting of deprivation from the owner, possession and admissions as to knowledge.  It does not have the complexities of international drug importation (Dietrich v R (supra)), bankruptcy (R v Reid [1998] 1 VR 224), or conspiracy to defraud (R v Karounos (1995) 63 SASR 451; Rich and Hynes (1997) 93 A Crim R 483). Nor does the indictment comprise multiple counts (cf, R v Fuller (1997) 69 SASR 251; R v Souter (supra)).  There do not appear to be any complex evidentiary issues, other than those relating to the appropriate test of knowledge.  It may be that a failure by the applicant to give evidence on the trial could raise the issue of inference of guilt in terms discussed by the High Court in Weissensteiner v R (1993) 178 CLR 217, but that issue is more one for an appropriate direction by the trial judge.

Defence Position

It is not incumbent on an applicant to disclose his or her defence in the course of an application such as this; nor is it appropriate to permit the prosecution to examine, other than by way of obtaining explanation, the validity or detail of an accused's version.  But, absent complexity readily apparent from the Crown case, there may be a need for an applicant to provide material which illustrates the difficulties anticipated in a presentation of his or her case.  In support of his application, the applicant has sworn an affidavit setting out his personal circumstances and the fact that he is unable to obtain representation.  He deposes that he left school at the age of 15 whilst in grade 10, has no other qualifications and has worked as a labourer, truck driver and machine operator.  In relation to the difficulties anticipated at trial, he further deposes:

"14On 15th March 1997, I was interviewed by officers of the Tasmania Police concerning a boat.  Prior to the police arriving at my premises, I had taken two Normison tablets and two Serapax tablets.  When the police arrived, I was feeling docile.

15The police then asked me to accompany them to the Kingston Police Station to participate in a record of interview, which I agreed to do.  During the interview, I consumed more Serapax tablets.

16I have made two admissions in that record of interview.  Those admissions appear at the end of the record of interview.  Those admissions were made under duress.  At the time I made those admissions, I had been interviewed by the police for approximately one hour.  I was feeling drowsy because of the Serapax I had taken and I felt I was under pressure.  The police were asking and firing lots of questions at me.  I only made those admissions so the police would let me go home."

In the course of argument, the special characteristic involving complexity was articulated as:  any voir dire based on allegations of impermissible cross-examination by the interrogating officers will require an analysis of the text of the interview itself and that, coupled with his claimed ingestion of the drug Serapax prior to the interview, and the likelihood of such drug affecting his response to suggestions made by the officers to which passive agreement was expressed, would require skill beyond the capacity of the applicant.

In addition, it is said that the applicant may have a need to call expert evidence as to the effects of Serapax.

Role of Trial Judge

It is sometimes claimed that any unfairness occasioned by reason of lack of representation ought be remedied by the trial judge, and, indeed, some would say that if he or she is unable to so do, that person ought not hold judicial office.  The claim as a whole manifests ignorance of the judicial system, whilst the latter portion can be seen as spiteful.  A judicial officer is able to ensure that the trial procedures are explained and kept as simple as possible, and to prevent counsel from obtaining tactical advantage by reason of knowledge of the rules of procedure and evidence.  A trial judge is well able to ensure that inadmissible evidence is excluded and that issues of character, prior inconsistent statements and the consequences of their introduction are explained to an unrepresented accused before a particular course is adopted.  But a trial judge cannot and ought not attempt to enter the arena in an effort to redress imbalance.  The High Court in Dietrich recognised this distinction when Mason CJ and McHugh J, at 302, cited with approval the observations of Sutherland J in Powell v Alabama (supra) at 61:

"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."

But the dichotomy does provide some assistance in any decision concerning a stay of proceedings.  If the unfairness is perceived to arise because of lack of knowledge concerning trial procedures, rules of evidence or from an inability to adequately prepare for the next witness and similar matters, the court ought be able to remedy the unfairness by granting adjournments, affording simple advice as to the manner of presentation, questioning and the like.  If an unrepresented accused needs assistance with respect to the calling of a witness or the production of documents, then the trial judge ought be able to cause a subpoena to issue in the name of the accused or require the production of documents from the Crown or some other party.  If the prosecution is perceived as having taken advantage, then the right, indeed obligation, to abort or adjourn the trial and stay further proceedings remains.  Where the unfairness arises by reasons of factors external to the nature of the case, then the court is better able to ensure fairness and is less constrained to stay proceedings.  Where the unfairness arises by reason of the nature of the prosecution case by virtue of complexity, number of counts, reliance on scientific or other forms of expert evidence and the like, then a court is less able to ensure fairness since it ought not become involved in an examination of the defendant's case, nor attempt to act as an "amicus".  This approach is consistent with that taken by Thorson JA in R v Taubler (1987) 20 OAC 64 (a decision of the Ontario Court, cited with approval by the Court of Appeal in R v Sechon (1996) 104 CCC 554 at 559). An example of the difficulties associated with the trial judge attempting to redress the balance is afforded by the case of R v Turlon (1989) 49 CCC (3d) 186, where the Court of Appeal stated, at 191, the trial judge had "gone beyond merely assisting the accused and conducted the kind of cross-examination that would have been expected of defence counsel."

A factor relevant to any decision to stay proceedings because of potential unfairness is whether prejudice arises by reason of matters inherent or external to the nature of the case.  In the event that the trial proceeds, it remains incumbent on the court to monitor and review the course of the trial and, if necessary, to intervene and either afford adjournment, discharge the jury and/or stay proceedings.

Serious Crime

It should be borne in mind that the High Court in Dietrich was attempting to provide guidelines which might assist courts in deciding in advance of any trial whether a stay ought be granted. Among other factors to be considered is the seriousness of the offence. In the opinion of Mason CJ and McHugh J, stated at 311:

"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."

Deane J, at 329, identified as one of the three significant factors associated with Dietrich's application as "that the crimes alleged against the applicant were serious ones."

"Finally, it is arguable that there are categories of criminal proceedings where inability to obtain legal representation would not have the effect that the trial of an accused person was an unfair one.  For example, there is much to be said for the view that proceedings before a magistrate or judge, without a jury, for a non-serious offence would not be rendered inherently unfair by reason of inability to obtain full legal representation.  It is, however, unnecessary to pursue that question for the purposes of the present case where the trial was a jury trial of alleged offences which were, by any standards, serious.  It appears to me to be manifest that, in the absence of exceptional circumstances, the inability of an indigent accused to obtain legal representation from any source will have the consequence that such a trial is unfair."  (at 336)

Gaudron J conceded that a trial is not necessarily unfair because it is less than perfect and regarded the risk of improper conviction as the paramount consideration.  She made reference to a criminal trial, stating at 365:

"If fairness requires representation in a particular case, in a particular class of case, or, even, in all cases, that will have consequences - probably in relation to the administration of legal aid schemes.  There may also be consequences for governments in relation to the funding of those schemes."

without elaborating on any test of seriousness, or stating whether all criminal trials would require representation, although she did consider that the notion of fairness "may have different content at different times", adding at 374 - 375:

"Once it is accepted that legal representation is essential for the fair trial of serious offences, it follows that the trial judge was in error ...  What makes a trial without representation unfair is the possibility that representation might affect the outcome of the case."

She did not further address the question of seriousness.

The dissenting members of the court, Brennan and Dawson JJ, did not find it necessary to consider the question.  In McInnis v R (1979) 143 CLR 575, Murphy J (in dissent) referred to the necessity for representation "on all serious charges" and "serious cases" without elaboration. In R v Fuller (supra), Cox J distinguished between different trials and parties, concluding that he might have reached a different conclusion had he been dealing with another particular and identified trial.

Counsel for the applicant contended that stay of proceedings should be ordered in every criminal trial where an accused, through no fault of his or her own, is unable to obtain legal representation, since any criminal prosecution warranting trial by jury is serious.  The proposition is attractive, but the Court does not accept that it is in accordance with the propositions stated in Dietrich (supra).  To hold that, absent representation, no criminal trial ought to proceed, is tantamount to saying that there exists a right to have counsel provided by the state.  The High Court  expressly stated that no such right exists.  The obligation to stay proceedings emanates from the acknowledged right of a citizen to have a fair trial, but an accused might waive the right to counsel, or conduct himself or herself in such a manner (for example, by a divesting of assets) that although the trial process might be seen as disadvantageous, it could not be regarded as being unfair.  If there be no right to counsel provided by public resource, and the question of fairness is determined in accordance with varying circumstances, then it is difficult to accept that the term "serious offence or crime" is an absolute term defined only by reference to whether it be tried by jury or has, as a consequence, the possibility of incarceration.  Some wider meaning must be afforded the term.  In my opinion, the Court should have regard to the seriousness of the nature of the crime, the complexity of the means of prosecution (including evidentiary and legal issues), sanction and its likelihood.  To define the term by reference only to theoretical consequence or the terms of a statute creating criminal responsibility would have the result that the trial of most unrepresented and indigent defendants charged with a statutory offence ought be stayed.  Some examples will suffice.  The Poisons Act 1971, s35, provides a maximum penalty of two years' imprisonment for an offence of altering a medical or veterinary prescription. Yet ordinarily it would not be regarded as a serious crime. The Criminal Code, s124, prohibits sexual intercourse with young persons, which is regarded by society as a serious crime. Yet the likelihood of a 17 year old who has sex with a 16 year old partner being imprisoned is remote. On the test of exposure to imprisonment, the former ought require representation, whilst on the test of "seriousness" by reference to nature, the latter would demand such representation. One might require representation in every murder prosecution, but, in my opinion, seriousness is not defined by reference to the fact that the relevant crime is prescribed by the Criminal Code.  The crime of burglary may be dealt with summarily, whilst that of burglary in company (aggravated burglary) has been deemed by Parliament to require trial by jury.  The test ought to encompass the nature of the crime, the complexity of the proceedings and the likely (rather than theoretical) consequence.  I would adopt the test of Rothman JA in R v Sechon (supra) when he said at 560:

"I am therefore satisfied that, although the right to counsel is not constitutionally guaranteed in express terms under the Charter, where the length or complexity of the proceedings or the circumstances of the accused are such that the accused would not obtain a fair trial without the assistance of counsel, counsel must be provided for him if he does not himself have the means to retain counsel.  And where an accused, for whatever reason, is not represented by counsel at his trial, it is clear, as well, that the trial judge has a duty to provide reasonable assistance to the accused in the presentation of evidence and in putting his defences before the court."

Conclusion

I do not disagree with the following formulation of Olsson J as set out in R v Fuller (supra) at 257:

"(1)the common law of Australia does not confer upon a person accused of a serious offence the right to be provided with counsel at pubic expense;

(2)it does, however, recognise the right of an accused to a fair trial and the concomitant power of a court to stay criminal proceedings in circumstances which deny that right;

(3)it is not feasible, or desirable, to attempt to construct an exhaustive list of the attributes of a fair trial.  However, leaving aside, for the moment, the issue of legal representation, basic minimum rights of an accused include:

·the right to have adequate time and facilities for the preparation of a defence;

·the right to the free assistance of an interpreter when required;

(4)subject to the caveats expressed in the Dietrich formulation, a trial will not, relevantly, be fair if an accused does not have representation by counsel;

(5)that situation arises 'save in the exceptional case of the skilled litigant', because the unrepresented litigant is disadvantaged:

'... not merely because 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.  The hallowed response 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.'"

However, in Fuller, the court was concerned with multiple counts of fraudulent application of property and improper use of position by company directors, and the evidence included extensive expert testimony.  That formulation includes reference to the caveats expressed in Dietrich and such caveats include the seriousness of the crime.  Given the conclusion that "seriousness" connotes both the nature of the crime and the complexity of the case, in my opinion, not all cases require representation.  I do not see such a conclusion as being in conflict with the formulation made in Fuller.

Given that there exists no right to have counsel provided by the state, the impact of lack of representation on the fairness of a trial can be assessed at varying stages.  An appellate court might conclude that a verdict is unsafe and unsatisfactory by reason of an unfair trial occasioned by lack of representation.  A trial judge might conclude, in the course of a trial, that the proceedings have reached a stage that to continue would create an unjustified risk that an accused would be unfairly convicted.  In such cases, the appropriate remedy is the allowance of appeal or the aborting of the trial.  In some circumstances, a trial judge might grant a lengthy adjournment, or not permit the trial to proceed until the prosecution had provided documentation and the like.  In such cases, the state will incur expense as a consequence of its decision to prosecute and such might affect its course of conduct.  But the remedies required by reason of unfairness exist.  In any application for a stay of proceedings before trial, the remedy ought be afforded when it is likely (rather than possible) that the trial process will prove unfair to an accused.  A court ought not assume that any trial, absent representation, will be rendered unfair.  The High Court in Dietrich provided guidance to courts in the use of prescience and in some cases, the very nature of the prosecution case signals unfairness.  But where potential unfairness can be perceived as arising solely from procedure, simple evidentiary concerns and the application of the law, the trial judge ought be able to prevent prejudice and unfairness.  In cases where the issues between the prosecution and accused are relatively simple, then the trial ought proceed.  If the initial assessment proves to be incorrect, then the remedies of adjournment and abortion remain and should be exercised.  If on review the whole process is found to be tainted, then any appeal should be allowed.  In any trial or appellate process, if there be error, it should favour the accused.

In the circumstances of this application, there is potential for unfairness by reason of the accused's lack of knowledge of procedure and rules of evidence.  That potential unfairness can be remedied by the trial judge.  There is potential unfairness by reason of the accused having to provide evidence of the effects of a drug on his mental state at the time of interrogation.  That potential can be remedied by the issue of a subpoena to a medical practitioner nominated by the accused, or the requirement for the Crown to make available a suitable expert witness.  Insofar as the nature of the prosecution case might be seen to raise the possibility of unfairness, I am not satisfied, at this stage, that it has such potential.  In evidentiary terms, it appears relatively simple; it comprises one count only, a relatively small number of witnesses are to be called, and the legal ingredients of knowledge can be well dealt with in the trial judge's directions to the jury.  I do not regard the nature of the case as requiring a stay of proceedings.

In the course of argument, the learned Director of Public Prosecutions advised the Court that in the event of conviction, the prosecution would not submit to the sentencing court that the conduct of the applicant warranted imprisonment.  He did so as part of his contention that possible consequence was a relevant factor in any assessment of seriousness.  The prosecution ought be held to the statement, but its making has little impact on my determination.  The likelihood of sanction is a relevant factor, but it should be determined on the basis of the material placed before the Court rather than a statement by the prosecutor (however proper).  A sentencing court might not share the view expressed by counsel, and an accused would be entitled to feel grievance if a complex trial were to proceed on the basis that the prosecution had indicated that no custodial sentence would be sought.  Conviction itself is a relevant consequence.  Had I determined the issue of "seriousness" differently and determined that a stay was warranted, the proper statement made by the learned Director of Public Prosecutions, would not, of itself, have persuaded me that no stay ought be ordered.

The application for a stay of proceedings is dismissed.