R v Poumako

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v POUMAKO
[2007] SADC 114
Reasons for Ruling of Her Honour Judge Simpson
13 December 2007
LEGAL AID - LEGAL ASSISTANCE SCHEMES
The defendant is jointly charged with another with offences against ss 1311(1), 727(1) and 727(4) of the Corporations Act 2001 (Cth). The defendant is without legal representation for his trial. He has been refused a grant of legal assistance by the Legal Services Commission after consideration of relevant criteria, including a means test. The defendant brought an application for an adjournment, postponement or stay of proceedings on the grounds that he is indigent and through no fault of his own, is unable to obtain legal representation for his trial. A preliminary issue arose on his application as to whether the Criminal Law (Legal Representation) Act 2001 (SA) applies to the defendant and the procedure for his trial by the operation of federal law. Held: As a matter of statutory interpretation, by the operation of ss 1338A, 1338B and 1338C of the Corporations Act 2001 (Cth), the Criminal Law (Legal Representation) Act 2001 (SA) applies so far as it is applicable to the defendant and the procedure for his trial. The defendant is to be directed pursuant to section 8 of the Criminal Law (Legal Representation) Act 2001 to make an application to the Legal Services Commission for legal assistance at his trial. The defendant's application for an adjournment, postponement or stay of proceedings should be deferred to allow the application to be made.
Corporations Act 2001 (Cth) ss 9, 727(1), 727(4), 1311(1), 1338A, 1338B, 1338C; Criminal Law (Legal Representation) Act 2001 (SA) ss 3, 4, 6, 8, 11, 14, 18; Judiciary Act 1903 (Cth) ss 68, 69, 79; District Court Act 1991 (SA) s 9; Crimes Act 1914 (Cth) s 4G; Crimes Act 1958 (Vic) s 360A; Legal Services Commission Act 1977 (SA) ss 5, 6, 10, 23, 27; Criminal Law Consolidation Act 1935 (SA) s 275, referred to.
Williams v R (No 2) (1934) 50 CLR 551; Peel v R (1971) 125 CLR 447; Rohde v R (1986) 161 CLR 119; Ex Parte Palmer (1986) 2 QdR 176; R v Loewenthal; ex parte Blacklock (1974) 131 CLR 338; R v Murphy (1985) 158 CLR 596; R v Gee (2003) 212 CLR 230 , applied.
Solomons v District Court of New South Wales and others (2002) 211 CLR 119, distinguished.
Dietrich v R (1992) 177 CLR 292; Seaegg v The King (1932) 48 CLR 251; Re Application of Pearson (1999) 162 ALR 248; Director of Public Prosecutions v Wodak and others (1998) 146 FLR 287; Australian Securities and Investments Commission v Vis and others (2000) 77 SASR 490, considered.

R v POUMAKO
[2007] SADC 114

The defendant, Robin Brian Poumako, is jointly charged with Anne-Marie Donaldson with 44 offences against section 1311(1) and section 727 of the Corporations Act 2001 (Cth) on an information of 26 June 2006 presented by the Commonwealth Director of Public Prosecutions in the District Court of South Australia.
Section 69 of the Judiciary Act 1903 (Cth) relevantly provides:
(1)Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney‑General of the Commonwealth or of such other person as the Governor‑General appoints in that behalf.
…
(2A)   Nothing in subsection (1):
(a)     affects the power of the Director of Public Prosecutions[1] to prosecute by indictment in his or her official name; or
(b)     affects, or shall be taken to have affected, the power of a Special Prosecutor to prosecute by indictment in his or her own name;
indictable offences against the laws of the Commonwealth.
[1] Section 5(2), Director of Public Prosecutions Act 1983 (Cth)
The document on which the charges presented against the defendant are set out, the indictment, is also referred to in South Australia as an information.
The trial is set down to commence on 7 April 2008, with 20 days set aside for the hearing. The defendant, Robin Brian Poumako, is unrepresented. He does not wish to do without legal representation at his trial.
The Application
The defendant brought an application dated 29 May 2007 pursuant to rule 8 of the District Court (Criminal and Miscellaneous) Rules 1992 for the trial to be adjourned, postponed or stayed until legal representation is available to him. The application is supported by an affidavit sworn on 29 May 2007 in which the defendant deposes to the grounds on which the court might find that he is indigent and through no fault on his part, is unable to obtain legal representation.[2]
Preliminary Issue
[2] Dietrich v R (1992) 177 CLR 292
The preliminary issue on the defendant’s application for a stay, postponement or adjournment of the trial until legal representation is available to him is whether as a matter of statutory interpretation the Criminal Law (Legal Representation) Act 2001 (SA) applies to the defendant by the operation of federal law.
On 2 November 2007, I made a ruling that the Criminal Law (Legal Representation) Act applies to the defendant and the procedure for his trial. Pursuant to section 8(3) of the Act, the defendant was directed to make an application to the Legal Services Commission for legal assistance for his trial. I delivered reasons for the ruling on 2 November 2007. Shortly afterwards, my attention was drawn to section 1338A of the Corporations Act and further submissions were made. The further submissions did not change the ruling I made, but the operation of section 1338A of the Corporations Act did affect the reasons for it and the reasons were withdrawn. These are now my reasons for the ruling I made on 2 November 2007.
The Criminal Law (Legal Representation) Act came into operation on 11 February 2002. It was introduced to address the undesirability of trials being adjourned, postponed or stayed on account of the lack of legal representation ‘by removing both the entitlement to a stay and the need for it.’[3]
[3] Parliamentary Debates, Legislative Council, 11 April 2001, p 1349
The objects of the Act are set out in section 3. They are:
(a)to ensure that legal representation is available to persons charged with serious offences; and
(b)as a consequence of the provision made for legal representation – to limit the application of the rule under which the trial of a person charged with a serious offence may be stayed on the ground that the trial would be unfair for want of legal representation; and
(c)to ensure, as far as practicable, that trials are not disrupted by adjournments arising because the defendant lacks legal representation; and
(d)to ensure that defendants who obtain legal representation pay for it to the extent their means allow.
A ‘serious offence’ is defined in section 4 of the Act to mean:
an indictable offence under the law of the State that is to be tried in the Supreme Court or the District Court, and includes any summary offence that is to be tried together with such an offence in the same proceedings.
On an application by a defendant for legal assistance under the Criminal Law (Legal Representation) Act, the Legal Services Commission (the Commission) must grant legal assistance by way of representation for the trial and any associated proceedings, subject to the qualifications in the Act.
Counsel for the Crown submitted that the Criminal Law (Legal Representation) Act applies to the defendant pursuant to the operation of federal law, which provides for the laws of the State respecting criminal procedure in relation to persons charged with offences to apply to persons charged with offences against the Corporations Act.
A conclusion that the Criminal Law (Legal Representation) Act applies to the defendant had the potential to dispose of his application, without the need for the defendant to give evidence about his personal circumstances and financial affairs or be exposed to cross-examination by the prosecutor.
It was submitted that it would therefore be appropriate to consider the issue before hearing from the defendant on his application. The defendant raised no objection to that course. He made no submissions on the issue under consideration.
The Commission is directly affected by the scope of the operation of the Criminal Law (Legal Representation) Act and in particular has an interest in the outcome of the preliminary issue before the court. Counsel for the Commission was given permission to intervene on the application.
The Charges
The defendant is charged with offering securities without lodgement of a disclosure document in contravention of section 727(1) of the Corporations Act and issuing securities without disclosure to investors in contravention of section 727(4) of the Corporations Act.
Section 727 of the Corporations Act relevantly provides:
(1)A person must not make an offer of securities, or distribute an application form for an offer of securities, that needs disclosure to investors under Part 6D.2 unless a disclosure document for the offer has been lodged with ASIC.
…
(4)If a person relies on subsection 708(1) to make offers of securities without disclosure to investors under Part 6D.2, the person must not issue or transfer securities without disclosure to investors under that Part if the issue or transfer would result in a breach of the 20 investors ceiling or the $2 million ceiling (see subsections 708(3), (4), (5), (6) and (7)).
It is alleged that the defendants were directors, shareholders and principals of International Finance Corporation Ltd (IFC), a company which through the conduct of the accused raised $2,915,000 from 36 investors through loan agreements supported by written contracts entered into between December 2002 and December 2003. Offers of securities require a disclosure document to be lodged with the Australian Securities and Investment Commission and provided to investors if they may result in the issue of securities to more than 20 investors or more than $2,000,000 being raised within any 12 month period.
It is alleged that the loans made by IFC from 14 July 2003 resulted in a breach of the 20 investors ceiling and the $2 million ceiling and that IFC did not lodge a disclosure document with the Australian Securities and Investment Commission or provide a disclosure document to investors in accordance with the requirements of the Corporations Act.
Section 1311(1) of the Corporations Act is a general penalty provision which provides:
A person who:
(a)     does an act or thing that the person is forbidden to do by or under a provision of this Act; or
(b)     does not do an act or thing that the person is required or directed to do by or under a provision of this Act; or
(c)     otherwise contravenes a provision of this Act;
is guilty of an offence by virtue of this subsection, unless that or another provision of this Act provides that the person:
(d)     is guilty of an offence; or
(e)     is not guilty of an offence.
The maximum penalty for each offence is imprisonment for 5 years or a fine of $22,000 or both. Section 4G of the Crimes Act 1914 (Cth) provides that offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.
Applications by the Defendants for Legal Assistance
The defendants were committed for trial on 25 May 2006. Section 69(3) of the Judiciary Act makes provision for the appointment of counsel for the defence of a person committed for trial for an offence against the laws of the Commonwealth, if such a person is found to be without adequate means, as follows:
Any person committed for trial for an offence against the laws of the Commonwealth may at any time within fourteen days after committal and before the jury is sworn apply to a Justice in Chambers or to a Judge of the Supreme Court of a State for the appointment of counsel for his or her defence. If it be found to the satisfaction of the Justice or Judge that such person is without adequate means to provide defence for himself or herself, and that it is desirable in the interests of justice that such an appointment should be made, the Justice or Judge shall certify this to the Attorney‑General, who may if he or she thinks fit thereupon cause arrangements to be made for the defence of the accused person or refer the matter to such legal aid authorities as the Attorney‑General considers appropriate. Upon committal the person committed shall be supplied with a copy of this subsection.
There is no suggestion that either of the defendants applied for the appointment of counsel for his or her defence in accordance with the provisions of section 69(3) of the Judiciary Act within fourteen days after committal. The defendants are out of time to make such an application.[4]
[4] Ex Parte Palmer (1986) 2 QdR 176 at 178; Director of Public Prosecutions (Cth) v Wodak and others (1998) 146 FLR 287 at 293
The defendants were arraigned in the District Court on 26 June 2006. They pleaded not guilty to all counts on the information. The defendants were initially represented by the same firm of solicitors. Counsel appeared on their behalf at arraignment and at a number of directions hearings. On 21 February 2007, an application was made by counsel representing both defendants for permission to cease acting for either of the defendants and withdraw, on the grounds of a conflict of interest which had arisen in the course of obtaining instructions over the previous few months. Permission to withdraw was granted.
Both the defendants applied to the Commission for legal assistance at trial. Ms Donaldson made her application in February 2007. A grant of legal assistance was eventually confirmed and Ms Donaldson has been represented at and since a directions hearing on 9 May 2007. Her legal representative advised the court that he has been assured of funds to appear for her as counsel at trial.
Mr Poumako applied to the Commission for a grant of legal assistance in October 2006. His application was refused and he appealed against the decision. The appeal was unsuccessful. Mr Poumako re-applied to the Commission in February 2007 and his application was again refused. Mr Poumako has been unrepresented since 21 February 2007.
It is common ground that the Commission approached the applications made by the defendants for legal assistance pursuant to the provisions of the Legal Services Commission Act 1977 (SA).
Legal Services Commission Act 1977 (SA)
Section 6 of the Legal Services Commission Act established the Commission as a body corporate, with perpetual succession and a common seal. The Commission is capable of acquiring, dealing with and disposing of real and personal property, and acquiring or incurring any other rights or liabilities that may properly attach to a body corporate. It has the powers, functions and duties prescribed or imposed upon it by or under the Act.
The functions of the Commission include, amongst other things, providing, or arranging for the provision of legal assistance in accordance with the Act, determining the criteria under which the legal assistance is to be granted, and co-operating and making reciprocal arrangements with persons administering schemes of legal assistance in other States and Territories of the Commonwealth or elsewhere.[5] "Legal assistance" means assistance in any matter affecting the rights or liberty of any person.[6]
[5] Section 10, Legal Services Commission Act 1977
[6] Section 5, Legal Services Commission Act 1977
The Commission is not an instrumentality of the Crown and is independent of the Government.[7]
[7] Section 6(3), Legal Services Commission Act 1977
Section 23(1) of the Legal Services Commission Act establishes the Legal Services Fund. Pursuant to section 23(2)(b), the Fund is constituted in part by all money paid to the Commission for the provision of legal assistance by the Government of the State or the Commonwealth.
Section 27 of the Legal Services Commission Act provides:
(1)The State, or the Commission with the approval of the Attorney-General, may from time to time enter into an agreement or arrangement with the Commonwealth with respect to the provision of legal assistance.
(1a)The matters for which any such agreement or arrangement may provide include (but are not limited to) the following:
(a) the money to be made available by the Commonwealth, or (in the case of an agreement or arrangement between the State and the Commonwealth) by the State and the Commonwealth, for the purposes of the provision of legal assistance; and
(b) the priorities to be observed, in relation to money made available by the Commonwealth, in the provision of legal aid and other legal services.
(2)Any such agreement or arrangement will, to the extent that it involves matters within the purview of the Commission, be binding on the Commission.
On 4 April 2005, the Commonwealth of Australia and the State of South Australia, represented by and acting through the respective Departments of the Attorneys-General, entered into a comprehensive Agreement for the Provision of Legal Assistance Services (the Agreement). A copy of the Agreement was tendered at the hearing by counsel for the Commission[8].
[8] Exhibit TP2
In the recitals to the Agreement, the parties recognise that the provision of legal assistance is an important element in the administration of justice and that the State has established the Commission to provide legal assistance in accordance with the Legal Services Commission Act.
Under the Agreement, the Commonwealth is to provide funding to the Commission to provide legal assistance services for Commonwealth law matters in the State. Schedule 3 to the Agreement sets out detailed Commonwealth Legal Aid Guidelines which are to be applied when the Commission considers an application for legal assistance for a Commonwealth law matter:- guidelines in relation to the application for legal assistance itself and in relation to family law, criminal law and civil law matters.
The Criminal Law Guidelines in Schedule 3, Part 3, include guidelines as to superior court criminal proceedings[9], bail applications[10], criminal law matters involving both Commonwealth and State law[11], applications arising from the decision in Dietrich’s case[12], appeals[13], criminal law costs management[14] and the Commonwealth Criminal Law-Expensive Cases Fund[15].
[9] Guideline 4
[10] Guideline 6
[11] Guideline 7
[12] Guideline 8
[13] Guideline 10
[14] Guideline 11
[15] Guideline 12
Guideline 3 in Part 1 of Schedule 3 requires:
Unless the Commonwealth Minister otherwise directs the Commission, in writing, to apply a different test, the means test to be applied by the Commission is the means test used by the Commission, at the date of the relevant application for assistance, for applications for assistance in State and Territory law matters.
Note The Commonwealth’s strong preference is for the Commission to use the simplified means test developed for Legal Aid Queensland, and for this test to be adopted nationally.
An affidavit sworn on 27 September 2007 by Mr Hugh Gilmore, Director of the Commission, was admitted for the purposes of this application[16]. Mr Gilmore said in his affidavit that, in refusing the application of the defendant for legal assistance, the Commission had regard to the failure of the defendant to meet relevant criteria and, in particular, the means test used to assess eligibility for legal assistance.
[16] Exhibit TP1
In his affidavit, Mr Gilmore said that he had ‘sought a written direction from the Commonwealth Attorney-General enabling the Commission to vary the normal means test to provide that aid be granted for trial in Commonwealth matters where a Dietrich order is sought by an accused, as if it were a State prosecution governed by the Criminal Law (Legal Representation) Act, but funded from the Commission’s Commonwealth funds’. On 22 August 2007, Mr Gilmore received telephone advice from the Commonwealth Attorney-General’s Department that the Attorney-General was not prepared to direct the Commission in the manner requested.
Jurisdiction of the District Court

Section 9 of the District Court Act 1991 (SA) provides that the District Court has jurisdiction to try a charge of any offence except treason or murder, or a conspiracy or attempt to commit, or assault with intent to commit either of those offences, and any other criminal jurisdiction conferred by statute.
Pursuant to section 275(1) of the Criminal Law Consolidation Act 1935 (SA), any person may be put upon his trial at any criminal sessions of the District Court on an information presented to the Court in the name and by the authority of the Director of Public Prosecutions[17]. Section 275(2) relevantly provides that every rule of law and enactment for the time being in force in the State relating to indictments and to the trial thereon shall apply to any information so presented.
[17] Section 4, Director of Public Prosecutions Act 1991 (SA)
Division 2 of Part 9.6A of the Corporations Act makes provision for jurisdiction to be conferred on courts of the State in relation to criminal matters arising under the Corporations legislation. Pursuant to section 9 of the Act, the Corporations legislation includes the Corporations Act.
Section 1338A of the Corporations Act provides:
(1)This Division provides in relation to the jurisdiction of courts in respect of criminal matters arising under the Corporations legislation and so provides to the exclusion of sections 68, 70 and 70A of the Judiciary Act 1903.
(2)This Division does not limit the operation of the provisions of the Judiciary Act 1903 other than sections 68, 70 and 70A.
(3)Without limiting subsection (2), this Division does not limit the operation of subsection 39(2) of the Judiciary Act 1903 in relation to criminal matters arising under the Corporations legislation.
Because the provisions of section 68 of the Judiciary Act bear close resemblance to sections 1338B(1) and 1338C of the Corporations Act, reference to section 68 of the Judiciary Act and to some authorities in which the effect of its provisions have been considered is made later in these reasons. Sections 70, 70A and 39 of the Judiciary Act are not relevant to the issue raised on this application.
Section 1338B(1) of the Corporations Act provides:
Subject to this section, the several courts of each State, the Capital Territory and the Northern Territory exercising jurisdiction:
(a)     with respect to:
(i)     the summary conviction; or
(ii)    the examination and commitment for trial on indictment; or
(iii)     the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State, the Capital Territory or the Northern Territory, and with respect to:
(iv)     their sentencing, punishment and release; or
(v)    their liability to make reparation in connection with their offences; or
(vi)     the forfeiture of property in connection with their offences; or
(vii)    the proceeds of their crimes; and
(b)     with respect to the hearing and determination of:
(i)     proceedings connected with; or
(ii)    appeals arising out of; or
(iii)     appeals arising out of proceedings connected with;
any such trial or conviction or any matter of a kind referred to in subparagraph (a)(iv), (v), (vi) or (vii);
have the equivalent jurisdiction with respect to offenders or persons charged with offences against the Corporations legislation.
Section 1338C of the Corporations Act provides that the laws of the State respecting criminal procedure are to apply to persons who are charged with offences against the Corporations legislation as follows:
(1)Subject to this Division, the laws of a State, the Capital Territory or the Northern Territory respecting:
(a)     the arrest and custody in the State or Territory of offenders or persons charged with offences; and
(b)     criminal procedure in the State or Territory in relation to such persons; and
(c)     the rules of evidence applied in criminal procedure in the State or Territory in relation to such persons;
apply in the State or Territory, so far as they are applicable, to persons who are charged with offences against the Corporations legislation.
(2)     In this section:
"criminal procedure" means the procedure for:
(a)     the summary conviction; and
(b)     the examination and commitment for trial on indictment; and
(c)     the trial and conviction on indictment; and
(d)     the hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings;
of offenders or persons charged with offences, and includes the procedure for holding accused persons to bail.
The District Court is a court exercising jurisdiction with respect to the trial and conviction on indictment of a person charged with offences against the laws of the State and with respect to the hearing and determination of proceedings connected with any such trial or conviction. The Court has the equivalent jurisdiction with respect to the defendant as a person charged with offences against the Corporations Act.
The issue is whether the Criminal Law (Legal Representation) Act is one of the statutory laws of the State within the contemplation of the Corporations Act and, in particular, whether it is a law respecting criminal procedure in the State in relation to persons charged with offences and is therefore to apply so far as it is applicable to the defendant, a person charged with offences against the Corporations Act.
Criminal Law (Legal Representation) Act 2001 (SA)
The Criminal Law (Legal Representation) Act provides for procedure which must be followed to ensure that legal representation is available at trial to persons charged with serious offences and, as a consequence of the provision made for legal representation, to limit the application of the rule under which a trial may be stayed on the ground that the trial would be unfair for want of legal representation.
The Commission is required to grant legal assistance for the trial and associated proceedings when an application is made to it by any person charged with a serious offence. ‘Legal assistance’ means legal assistance under the Legal Services Commission Act, which is referred to in the Criminal Law (Legal Representation) Act as ‘the LSC Act’.
Section 6 of the Criminal Law (Legal Representation) Act provides:
(1)If an application is made to the Commission for legal assistance by a person charged with a serious offence, the Commission must (subject to the qualifications that appear below) grant legal assistance by way of—
(a)     legal representation for the trial; and
(b)     legal representation for associated proceedings—
(i)     that are not initiated by the defendant; or
(ii)that are initiated by the defendant and have, in the Commission's opinion, sufficient merit to justify being brought within the ambit of the legal assistance.
(2)The LSC Act applies, subject to this section, to an application for, or grant of, legal assistance under this section.
(3)In particular, the Commission's obligation to grant legal assistance does not prevent it from imposing conditions under the LSC Act on the grant of legal assistance.
Examples—
1       The Commission might impose a condition requiring the assisted person to do either or both of the following:
(a)to make payments in advance to the Commission towards legal assistance costs;
(b)     to indemnify the Commission in full for legal assistance costs.
2       The Commission might impose a condition requiring the assisted person to authorise a bank or other third party to disclose to the Commission information relevant to the assisted person's financial affairs.
3       The Commission might impose a condition limiting the ambit of the assistance so that it does not extend to the funding of forensic strategies that have, in the Commission's opinion, no reasonable prospect of success.
(4)The Commission must not terminate legal assistance granted under this section unless—
(a)    the assisted person—
(i)obtains privately funded legal representation for the trial or an associated proceeding; or
(ii)notifies the Commission of an intention to do without legal representation at the trial; or
(b)     the assisted person contravenes or fails to comply with a condition on which the legal assistance was granted and the court authorises the Commission to terminate legal assistance on that ground;[18] or
(c)     the assisted person refuses or fails to cooperate with the legal practitioner assigned to provide the legal assistance and the court authorises the Commission to terminate the legal assistance on that ground; or
(d)     the defendant is charged with a minor indictable offence and legal assistance was granted on the basis that the defendant was to be tried in the Supreme Court or the District Court but it now appears that the trial is to proceed before the Magistrates Court.
(5)If legal assistance has been terminated under subsection (4) and a further application for legal assistance is made—
(a)     the Commission has an absolute discretion whether to grant or refuse the further application and is under no obligation to grant it; and
(b)     if the Commission grants the application, it has an absolute discretion to terminate the legal assistance on any ground it considers sufficient (and a decision to do so cannot be challenged in any way).
[18] see for instance R v Heinicke unreported 26/8/05 [2005] SADC 113
Part 3 of the Criminal Law (Legal Representation) Act is entitled ‘Representation Procedures’. Section 8 of the Act provides:
(1)At the first directions hearing to be held after the defendant's arraignment, the court—
(a)     must consider the question whether a direction is required under this section; and
(b)     must determine the question at that hearing or as soon as practicable afterwards.
(2)If the defendant is represented by a lawyer, the lawyer must, at least 7 days before the day fixed for the first directions hearing, file in the court a certificate certifying that—
(a)     the defendant is an assisted person; or
(b)     the lawyer undertakes that the defendant will be provided with legal representation for the duration of the trial; or
(c)     the defendant is not an assisted person and the lawyer is not prepared to give an undertaking under paragraph (b).
(3)The court must direct the defendant to make an application to the Commission for legal assistance unless—
(a)     the defendant is an assisted person; or
(b)     the defendant's lawyer has given an undertaking to the court that the defendant will be provided with legal representation for the duration of the trial; or
(c)     the court is satisfied, on the basis of a written assurance given by the defendant, that the defendant does not want legal representation at the trial.
The court must fix a reasonable time within which the direction is to be complied with.[19] ‘Assisted person’ is defined in section 4 of the Act to mean a person for whom legal assistance is, or has been, provided in connection with the trial of a serious offence (whether or not the case actually proceeds to trial).
[19] Section 8(4)
As a consequence of section 11 of the Criminal Law (Legal Representation) Act, the fairness of a trial cannot be challenged and a trial or prospective trial cannot be stayed on the ground of lack of legal representation unless the Commission has refused or failed to provide legal assistance or has failed to reach agreement with the Attorney-General on a case management plan under section 18 of the Act.
Pursuant to section 18, the Commission can be reimbursed for expenditure over and above the funding cap set by the Commission, in accordance with an agreement reached with the Attorney-General.
I set out section 18 because some emphasis was placed on it in the course of submissions:
(1)The Commission is entitled to be reimbursed by the Treasurer an amount by which the net amount of legal assistance costs exceeds the funding cap.
(2)     However, the Commission's right to reimbursement is contingent on—
(a)     the Attorney-General's approval of a case management plan in relation to the relevant trial under the Expensive Criminal Case Funding Agreement; and
(b)     compliance by the Commission with the approved plan.
(3)If a case management plan complies with the criteria for approval fixed in the Expensive Criminal Cases Funding Agreement, the Attorney-General must approve the case management plan.
(4)If the Commission, after making reasonable attempts to reach agreement with the Attorney-General on a case management plan for the trial of an assisted person, fails to obtain the Attorney-General's approval, the Commission may, by notice in writing to the assisted person, withdraw legal assistance.
(5)The Commission must, in each of its annual reports, publish the text of the Expensive Criminal Cases Funding Agreement as in force at the end of the year to which the report relates.
(6)In this section—
"Expensive Criminal Cases Funding Agreement" means the agreement to be made between the Commission and the Attorney-General governing the approval of management plans for cases to which this section applies, and includes that agreement as amended from time to time;
"funding cap" means an amount fixed as the funding cap for criminal cases by the Commission for a particular financial year;
"net amount" of legal assistance costs means the gross amount of legal assistance costs less the amount of any payments the Commission has received or has a reasonable prospect of recovering from the assisted person or a financially associated person.
A copy of the Expensive Criminal Cases Funding Agreement dated 29 January 2003, as amended on 2 December 2004, the most recently published agreement, was tendered during the course of submissions.[20] The recitals to the agreement refer to the objects of the Criminal Law (Legal Representation) Act, to section 18 of the Act and to the wish of the parties to enter into the agreement in order to give effect to section 18 of the Act.
[20] Exhibit TP3
Clause 6.1 of the Expensive Criminal Cases Funding Agreement provides:
A case management plan must be submitted to the Attorney-General by the Commission in writing as soon as possible after the Commission becomes aware that the costs of the case may exceed the legal aid funding cap AND as soon as practicable either after the defendant has been arraigned or after a direction of the court pursuant to section 8(3) of the Act.
The agreement includes provision for the contents of a case management plan, approval of it by the Attorney-General, its variation from time to time, the obligations of the Commission in management of a case management plan and reimbursement of the Commission for the costs of providing legal assistance.
Conclusion
The Criminal Law (Legal Representation) Act does not apply to the defendant of its own force. The definition of ‘serious offence’ in section 4 of the Act in terms confines its operation to a person charged with an indictable offence under the law of the State. When the Act was introduced, reference was made in the second reading speech to limiting its operation to offences against State law because:
under the present funding arrangements for legal aid, State money is used to pay for the defence of State charges, and Commonwealth funds for Commonwealth charges. It would not be appropriate that the State incur liability to cover the cost of expensive Commonwealth cases. Instead, funding for those matters will remain a matter of negotiation between the Commission and the Commonwealth.[21]
[21] Parliamentary Debates, Legislative Council, 11 April 2001, p 1350
The resolution of the preliminary issue on the application depends in my opinion on the construction to be given to the effect of sections 1338B(1) and 1338C of the Corporations Act, the provisions conferring jurisdiction on the court with respect to the defendant, as a person charged with offences against the Corporations Act, and providing for the application of the laws of this State respecting the criminal procedure for the trial. It depends upon whether the Criminal Law (Legal Representation) Act can properly be regarded as a law of the State respecting criminal procedure, in particular, the procedure for the trial and conviction on indictment in relation to persons charged with offences.
The provisions in sections 1338B(1) and 1338C of the Corporations Act[22] closely resemble those in sections 68(2) and 68(1) of the Judiciary Act respectively.
[22] Previously sections 55(1) and 56 Corporations (South Australia) Act1990 (SA); sections 64 and 65 Corporations Act 1989 (Cth)
Section 1338B(1) of the Corporations Act provides that the District Court, the court in this State exercising jurisdiction with respect to the trial and conviction on indictment of persons charged with offences against the laws of the State, has equivalent jurisdiction with respect to persons charged with offences against the Corporations legislation.
Section 68(2) of the Judiciary Act provides that a court with jurisdiction with respect to the trial and conviction on indictment of persons charged with offences against the laws of the State shall, subject to the section and section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.[23] Section 68(2) of the Judiciary Act does not provide, for instance, for jurisdiction with respect to liability to make reparation or forfeiture of property in connection with offences, or proceeds of crimes, but otherwise it is expressed in similar terms to those used in section 1338B(1) of the Corporations Act.
[23] Section 80 of the Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury and held in the State where the offence was committed.
Section 1338C of the Corporations Act provides that the laws of the State respecting criminal procedure in the State in relation to persons charged with offences, in particular, respecting the procedure for the trial and conviction on indictment, apply so far as they are applicable to persons who are charged with offences against the Corporations legislation.
Section 68(1) of the Judiciary Act provides that the laws of the State respecting the arrest and custody of persons charged with offences and the procedure for their trial and conviction on indictment apply and are to be applied so far as they are applicable to persons charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the court by the section.
The authorities which have considered the operation and scope of section 68 of the Judiciary Act have established four principles which are, in my opinion, relevant and applicable to this case. First, when section 68(2) of the Act refers to the ‘like’ jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth, it recognizes that the adoption of State law must proceed by analogy.[24]
[24] Williams v R (No 2) (1934) 50 CLR 551 at 561 per Dixon J; Peel v R (1971) 125 CLR 447 at 469 per Gibbs J; Rohde v R (1986) 161 CLR 119 at 124-125 per Gibbs CJ, Mason J and Wilson JJ, at 126 per Brennan J, at 134 per Deane J
Secondly, the policy upon which the provision is based is that the administration of the criminal law should be uniform in any given State although some offences are created by Federal legislation and others exist under State law, or ‘to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two systems of criminal justice’.[25]
[25] Williams v R (No 2) (1934) 50 CLR 551 at 558 (Rich J), at 560 ( Dixon J), at 558 (Starke J agreeing) - referring specifically to the amendment to section 68, Act No 60 of 1932, conferring on the Courts of Criminal Appeal of the States jurisdiction to hear and determine appeals in the case of persons charged with Commonwealth offences - and see R v Murphy (1985) 158 CLR 596 at 613, 617; R v Loewenthal; ex parte Blacklock (1974) 131 CLR 338 at 345; Re Application of Pearson (1999) 162 ALR 248 at 295 (Wood CJ)

In my opinion, section 1338B(1) of the Corporations Act should be read as a provision enacted to establish equivalent jurisdiction with respect to offences against State law and offences against the Corporations legislation. The section now makes clear that the position concerning the extent of jurisdiction of State courts in relation to the Corporations legislation should be the same as with offences against other federal laws, following the decision in Australian Securities and Investments Commission v Visand others (2000) 77 SASR 490.[26] In that case, the Chief Justice referred to the well-established line of authority dealing with the purpose of section 68 of the Judiciary Act, and to a submission made that section 55 of the Corporations (South Australia) Act 1990, effectively the predecessor to section 1338B(1) Corporations Act, had a similar object. The Chief Justice said at 497:
The concept used in s 68 of the Judiciary Act, and in s 55, is that of vesting a jurisdiction equivalent to the jurisdiction exercised with respect to persons charged with offences against State law. National uniformity is necessarily subordinated to equivalence of jurisdiction within a given State or Territory.
[26] Explanatory Memorandum to the Corporations Bill 2001, paragraph 5.17
Thirdly, section 1338C provides for the laws of the State respecting criminal procedure to apply to persons charged with offences against the Corporations legislation. In the context of the comparable expressions used in section 68(1) of the Judiciary Act, it has been held that the connecting words, ‘respecting’ or ‘with respect to’ should be given a wide interpretation. Whatever falls within the natural meaning of the description of the laws of a State ‘respecting the arrest and custody of offenders or persons charged with offences, and the procedure for’ their trial, should be understood as within the legislative intention and should not be given an unduly restrictive meaning. There only needs to be a ‘discernible and rational link’ between the matters in question.[27]
[27] Solomons v District Court of New South Wales and others (2002) 211 CLR 119 at 141, 157; and see more generally, Williams v R (No 2) (1934) 50 CLR 551 at 561.
In my opinion, a similarly wide interpretation must be given to the provisions of section 1338C of the Corporations Act, referring to the laws of the State respecting criminal procedure and, in particular, the procedure for the trial and conviction on indictment in relation to persons charged with offences. Applying an interpretation which is not unduly restrictive to what constitutes the class of laws respecting criminal procedure in relation to persons charged with offences in this State, in my opinion, it is appropriate to include the Criminal Law (Legal Representation) Act in the class.
Fourthly, established authority that obliges the acceptance, unchanged, of State laws ‘picked up’ by section 79 of the Judiciary Act, necessarily involves some adaptation of State laws, provided there is no distortion or change to the laws which results in their no longer answering the description of a law of the State. [28] The Corporations Act expressly limits the operation of sections 68, 70 and 70A only of the Judiciary Act.[29] By the operation of section 79 of the Judiciary Act, the laws of the State, including the laws relating to procedure, evidence, and the competency of witnesses, except as otherwise provided by the Constitution or the laws of the Commonwealth, are binding on all courts exercising federal jurisdiction in all cases to which they are applicable.
[28] Solomons v District Court of New South Wales (2002) 211 CLR 119 at 134, 161
[29] Section 1338A(2) Corporations Act
The Criminal Law (Legal Representation) Act provides for the procedure to ensure that legal representation is available to persons charged with serious offences. As a consequence of the provision made for legal representation, the application of the rule under which the trial of a person charged with a serious offence may be stayed on the ground that the trial would be unfair for want of legal representation is limited. The Act aims to ensure, as far as practicable, that trials are not disrupted by adjournments arising because the defendant lacks legal representation, and that defendants who obtain legal representation pay for it to the extent their means allow.
The Criminal Law (Legal Representation) Act may in my opinion be classed as a law of the State respecting the procedure for trial, notwithstanding that it includes a mechanism for the provision of legal assistance and recovery of the costs of the legal assistance from a defendant in accordance with his means to pay and, to an extent, modifies a common law right to challenge the fairness of the trial on account of the lack of legal representation. In my opinion, the Criminal Law (Legal Representation) Act may be characterised as a law of this State respecting the procedure for the defendant’s trial, without changing or distorting the meaning of the Act.
The defendant is one of two defendants charged with offences against the Corporations Act. The defendants both applied to the Commission for legal assistance at trial. In considering the applications, the Commission had regard only to the provisions of the Legal Services Commission Act and to the Agreement with the Commonwealth and in particular to the means test set by the Commission and applied to all applicants for legal assistance.
Ms Donaldson has been granted legal assistance and she is assured of representation at trial. Mr Poumako has been refused a grant of legal assistance on account of his means. His application for an adjournment, postponement or stay of the trial until legal representation is available to him will require the court to enquire into his financial circumstances, an enquiry which will involve the prosecutor.
It is clearly undesirable that different rules should apply with respect to the trial of persons charged with Commonwealth offences and persons charged with State offences, or persons charged for example on the same information with both Commonwealth and State offences.
There is some precedent for legislation with similar effect to that of the Criminal Law (Legal Representation) Act having application to a person charged with a Commonwealth offence. In Victoria, section 360A of the Crimes Act 1958 (Vic) provided:
(1)     Subject to sub-section (2) and despite any rule of law to the contrary, if-
(a)     a person is committed for trial; or
               (b)     a presentment has been filed;
the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.
(2)     If a court is satisfied at any time before or during the trial that –
(a)     it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and
(b)     the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial;
the court may order Victoria Legal Aid to provide assistance to the accused, on any conditions specified by the court, and may adjourn the trial until such assistance is provided.
(3)Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under sub-section (2).
In Director of Public Prosecutions (Cth) v Wodak and others (1998) 146 FLR 287, a defendant was charged in the County Court of Victoria with a number of drug offences pursuant to both Commonwealth and State regulations relating to the importation of heroin into Australia. The defendant exhausted all avenues of obtaining legal representation for his trial, including by application to Victoria Legal Aid, which had refused him assistance. The defendant applied to a judge of the County Court for an order that Victoria Legal Aid provide assistance to him, pursuant to section 360A of the Crimes Act.
The application was refused. The judge upheld a submission that where a State law is picked up by section 68(1) of the Judiciary Act, it is given effect not of its own force but by force of the Judiciary Act as federal law. It was held that there were then two potentially contradictory mechanisms for the provision of representation to indigent persons; section 69(3) of the Judiciary Act was inconsistent with Section 360A of the Crimes Act; section 69(3) prevailed and, in that event, the court had no jurisdiction to hear and determine an application by the defendant under section 360A of the Crimes Act. The trial was stayed until such time as the defendant should be provided with legal representation necessary for a fair trial or with resources for such representation or until further order.
On judicial review of the rulings made in the County Court, a single judge of the Supreme Court of Victoria, Beach J, found that if section 360A of the Crimes Act were picked up by virtue of the provisions of section 68(1) of the Judiciary Act, it was able to operate independently of section 69(3) of the Judiciary Act and there was no inconsistency between them. An application under section 69(3) could only be made within fourteen days after committal, and thereafter had no operation - section 360A operated at any time before or during trial. Section 69(3) empowered the court only to certify to the Attorney-General that it was desirable in the interests of justice that appointment of a legal representative should be made, leaving the matter to the Attorney-General as he or she thought fit - section 360A empowered the court to order Victoria Legal Aid to provide assistance if the court were satisfied that it would be unable to ensure that the accused would receive a fair trial.[30]
[30] Director of Public Prosecutions (Cth) v Wodak and others (1998) 146 FLR 287 at 292-293
Beach J also considered whether the combined effect of the Commonwealth and State legislation was to discriminate between persons charged with Commonwealth offences in Victoria and those so charged in other States, and to single out a State instrumentality, Victoria Legal Aid, and impose a special burden on that instrumentality which was not imposed on any other State.Beach J found that it is within the power of the Commonwealth to adopt different procedural laws in each State concerning the provision of legal assistance to a person charged with a Commonwealth offence. The effect of section 68 of the Judiciary Act in picking up section 360A was to take the State of Victoria, as it found it, and to apply the State’s procedural rules to the trial of persons charged with Commonwealth offences. It was held that there was no undue burden imposed on Victoria Legal Aid because under an agreement between the Commonwealth and the State of Victoria, the Commonwealth provided funds which Victoria Legal Aid was obliged to use for grants of legal assistance in matters arising under Commonwealth law.[31]
[31] Director of Public Prosecutions (Cth) v Wodak and others (1998) 146 FLR 287 at 295-296
In Solomons v District Court of New South Wales and others (2002) 211 CLR 119, an application was made by a person, acquitted of charges under the Customs Act1901 (Cth), for a certificate from the trial judge under section 2 of the Costs in Criminal Cases Act1967 (NSW) (the Costs Act). The Costs Act provided for the court in certain circumstances to grant a certificate to a defendant acquitted of charges. The grant of a certificate allowed the defendant to apply to the Under Secretary of the Attorney-General’s Department for reimbursement from the State’s Consolidated Revenue Fund of costs in the proceedings to which the certificate related. A certificate was payable only if the Treasurer formed the opinion that ‘in the circumstances of the case, the making of a payment to the applicant is justified.’[32]
[32] Section 4(5) Costs in Criminal Cases Act 1967 (NSW)
The High Court assumed for the purposes of the decision, that section 68(2) of the Judiciary Act conferred on the District Court of New South Wales, a court with jurisdiction in respect of all indictable offences against the laws of New South Wales, the ‘like jurisdiction’ to hear the charges of offence against the Customs Act and that in considering the application under the Costs Act, notwithstanding the acquittal of the applicant, the court was exercising jurisdiction ‘with respect to’ the trial. The jurisdiction so invested was federal jurisdiction.[33]
[33] Solomons v District Court of New South Wales (2002) 211 CLR 119 at 128, 133, 137-139, 148, 155, 157-159
It was held that on its proper construction, the Costs Act only applied to State offences. The grant of a certificate by a court required the Under Secretary and the Treasurer to give consideration to the application. There was no federal law authorising reimbursement of costs after an acquittal or the grant of a certificate in federally invested criminal jurisdiction. The ‘like jurisdiction’ conferred by section 68(2) of the Judiciary Act did not therefore include jurisdiction to grant a certificate to a person acquitted of a federal offence. Section 79 of the Judiciary Act did not authorise the grant of a certificate because it binds only courts and not State officials. If the Costs Act were picked up by the operation of section 79, it would give it a different meaning and different legal effect from that in State jurisdiction, because no comparable duty could be imposed on the Treasurer to consider an application with respect to an acquittal of a federal offence. The Treasurer would be free to disregard the grant of a certificate by the court.[34]
[34] Solomons v District Court of New South Wales (2002) 211 CLR 119 at 135-136, 144-147
In my opinion, the construction of the Criminal Law (Legal Representation) Act as a law of the State respecting the procedure for the trial of the defendant does not result in any similar difficulty.
If the Criminal Law (Legal Representation) Act is applied to the defendant, as it applies to a person charged with offences against the laws of the State, the court is required to consider whether a direction should be given to the defendant to apply to the Commission for legal assistance at his trial. If the defendant is not an assisted person and legal representation for his trial is not assured, the court must direct the defendant to make an application to the Commission. Such a direction is to be regarded as an exercise of judicial power or incidental to judicial power.[35]
[35] Solomons v District Court of New South Wales (2002) 211 CLR 119 at 142-144, 164-165; Director of Public Prosecutions (Cth) v Wodak and others (1998) 146 FLR 287at 294
The consequences of a direction given by the court in accordance with the provisions of the Criminal Law (Legal Representation) Act are that the Commission must grant legal assistance to the defendant. The Commission is not an instrumentality of the Crown and is independent of Government. A direction given by the court to the defendant in accordance with section 8 of the Criminal Law (Legal Representation) Act does not directly affect any officer of the State.
It is not possible or appropriate in these proceedings to make any detailed assessment of the financial consequences to the Commission of the application of the Criminal Law (Legal Representation) Act to persons charged with offences against the Corporations Act in particular or against the laws of the Commonwealth generally. I am not asked to do so. However, it seems on the material before the court that no undue burden is likely to be placed on the Commission if the construction of statutory provisions leads to such a conclusion.
The Legal Services Fund established pursuant to section 23(1) of the Legal Services Commission Act is partly constituted by money paid to the Commission by the Commonwealth for the provision of legal assistance in Commonwealth law matters. Section 27 of the Legal Services Commission Act provides for agreement between the State and the Commonwealth, or with the approval of the State Attorney-General, between the Commission and the Commonwealth. Under an existing, comprehensive Agreement between the Attorneys-General, the Commonwealth is to provide funding to the Commission, for the Commission to provide legal assistance services for Commonwealth law matters.[36]
[36] Exhibit TP2, clause 2.3
The Commission is bound to adhere to the Guidelines to the Agreement in providing legal assistance services in relation to Commonwealth matters. Guideline 3 in Part 3 of Schedule 3 to the Agreement provides that the means test to be applied by the Commission is the same means test used by the Commission in relation to Commonwealth law matters as for applications for assistance in State and Territory law matters. Reference to the means test is relevant to the operation of both of the Legal Services Commission Act and to the Criminal Law (Legal Representation) Act in relation to all defendants who make an application for legal assistance.
If an application is made by the defendant following a direction given to him by the court in accordance with the requirements of section 8 of the Criminal Law (Legal Representation) Act, the Commission must grant the defendant legal assistance irrespective of the defendant’s means, but subject to conditions and provisions as to recovery from the defendant of the cost of the grant.
Following a direction by the court to a defendant to make an application to the Commission for legal assistance, the means test is relevant, not to the decision as to whether or not there should be a grant of aid, but at a later stage in the consideration of the application, that is, after the grant of legal assistance is made when consideration is given to any conditions which should attach to it.
No variation of or departure from the means test to be applied by the Commission to the defendant is required by virtue of the application of the Criminal Law (Legal Representation) Act to the defendant.
The Commission is entitled to attach conditions to the grant of legal assistance and to recover from the defendant the cost of the legal assistance provided as far as the means of the defendant allow. Section 6(2) of the Criminal Law (Legal Representation) Act provides for the Legal Services Commission Act to apply, subject to the section, to an application for or grant of legal assistance under the section. Section 6(3) provides that the Commission’s obligation to grant legal assistance does not prevent its imposing conditions on the grant, including, for example, a condition requiring the assisted person to make payments in advance and or indemnify the Commission in full for legal assistance costs.
There are provisions for the recovery of funds expended on account of the provision of legal assistance to defendants through the operation of the Criminal Law (Legal Representation) Act. Under section 4(2) of the Act, assisted persons are divided into two categories:- those who are, apart from the Act, eligible for legal assistance under the Legal Services Commission Act (category 1) and those who are not (category 2). Part 5 of the Act provides for the recovery of legal assistance costs and an associated investigation into the financial affairs of an assisted person or a person who is financially associated with an assisted person. Section 14 provides for the Commission to make an application to the court for orders relating to dealing with assets of a category 2 person, that is, a person who would not, apart from the Act, be eligible for assistance under the Legal Services Commission Act.
It is not known if the defendant’s case falls within the category of an ‘Expensive Criminal Case’, a case in respect of which the net amount of legal assistance costs exceeds the funding cap set by the Commission and in respect of which section 18 of the Criminal Law (Legal Representation) Act provides for reimbursement of the Commission by the Treasurer. As a general rule of construction, the reference in section 18 to the Treasurer and to the Attorney-General must be a reference to the State Treasurer and the State Attorney-General. The application of section 18 to Commonwealth law matters could not, in my opinion, require reimbursement of the Commission by the Treasurer of the State for legal assistance costs above a funding cap set by the Commission in respect of legal assistance provided for defendants charged with Commonwealth offences. [37] It is not submitted that it does.
[37] Seaegg v R (1932) 48 CLR 251 at 255; Solomons v District Court of New South Wales (2002) 211 CLR 119 at 130, 138

In my opinion, as the Crown submitted, section 18 and section 11 of the Criminal Law (Legal Representation) Act are capable of being adapted by analogy to a federal application if the references to the Treasurer and the Attorney-General are read in the context of the Criminal Law (Legal Representation) Act and the Legal Services Commission Act as references to the Commonwealth Attorney-General and Treasurer, officers exercising like functions to the equivalent State officers.[38]
[38] Williams v R (No 2) (1934) 50 CLR 551 at 561; Peel v R (1971) 125 CLR 447 at 469; Rohde v R (1986) 161 CLR 119 at 124-125, 126-127, 134
The Commission would be entitled to reimbursement by the Commonwealth Treasurer, contingent on the Commonwealth Attorney-General’s approval of a case management plan in relation to the relevant trial under the Expensive Criminal Cases Funding Agreement. While there is no specific Commonwealth ‘Expensive Criminal Cases Funding Agreement’ between the Commission and the Commonwealth Attorney-General, the words used in the Criminal Law (Legal Representation) Act anticipate an agreement being made in the future.
Section 18(6) of the Criminal Law (Legal Representation) Act provides:
In this section—
"Expensive Criminal Cases Funding Agreement" means the agreement to be made between the Commission and the Attorney-General governing the approval of management plans for cases to which this section applies, and includes that agreement as amended from time to time.
There is already provision for expensive criminal cases in Commonwealth law matters, ‘high, one-off costs associated with providing assistance for a particular criminal law matter’, in the Agreement between the Commonwealth and the State of South Australia[39]. Pursuant to Guideline 12 of the Agreement, the Commission may apply to the Commonwealth Attorney-General’s Department for an allocation from the Commonwealth Criminal Law - Expensive Cases Fund, for example, in criminal cases arising under the Corporations Act and in cases where a potential stay of a Crown criminal prosecution may be granted in accordance with the High Court’s decision in Dietrich’s case.
[39] Exhibit TP2
There can be no certainty that the Commission will enter into an agreement, referred to in section 18 of the Criminal Law (Legal Representation) Act as the ‘Expensive Criminal Cases Funding Agreement’, with the Commonwealth Attorney-General. However, it is the Commonwealth Crown making the submission that the reference to the Attorney-General in section 18 of the Act should be read, by analogy, as a reference to the Commonwealth Attorney-General. Section 27 of the Legal Services Commission Act provides that the Commission may with the approval of the State Attorney-General from time to time enter into an agreement or arrangement with the Commonwealth with respect to the provision of legal assistance. Having regard to the existing Agreement between the Commonwealth and the State, there can be no reason to assume that the State Attorney-General would not approve of an Expensive Criminal Cases Funding Agreement between the Commission and the Commonwealth.
In the event that the Commission refused or failed to provide legal assistance to the defendant, or the Commission failed to reach agreement with the Attorney-General on a case management plan, the defendant’s right to challenge the fairness of the trial on the grounds of lack of legal representation is preserved.[40]
[40] Section 11 Criminal Law (Legal Representation) Act
A conclusion that the Criminal Law (Legal Representation) Act applies to the defendant does not result in an exercise in futility. In that regard, the circumstances in this case are in my opinion to be distinguished from those in Solomons’ case. [41]
[41] (2002) 211 CLR 119
While jurisdiction in this case depends on section 1338B(1) of the Corporations Act rather than section 68(2) of the Judiciary Act, the language used in the former section closely correlates with the language used in the latter. The general policy of the Judiciary Act, referred to in Williams v R (No 2) is one of placing the administration of the criminal law of the Commonwealth on the same footing as that of the State and of avoiding the establishment of two systems of criminal justice. It is desirable to give the language used in section 68 of the Judiciary Act “a construction that enables it to ‘pick up’ procedural changes and developments as they occur in particular States from time to time”. The use of ‘general and ambulatory language’ accommodates ‘not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others.’[43] In my opinion, it is appropriate to interpret the effect of section 1338 in the Corporations Act, which has the same function, in the same way.
[43] R v Gee (2003) 212 CLR 230 at 241
In my opinion, the Criminal Law (Legal Representation) Act is a law of the State directed at the court respecting the procedure for the trial of the defendant and pursuant to section 1338C of the Corporations Act applies, so far as it is applicable, to the defendant.
There is in my opinion, no inconsistency between the provisions in section 69(3) of the Judiciary Act and the Criminal Law (Legal Representation) Act relating to the grant of legal assistance at trial. It would be contrary to the purpose of the provisions of the Judiciary Act to treat section 69(3) as the exclusive source of power to provide for legal assistance to a defendant at trial.
Section 69(3) of the Judiciary Act is limited in its application to a period within fourteen days of committal. It allows for an application to a Justice in Chambers or a Judge of the Supreme Court for the appointment of counsel for the defence. If the applicant satisfies the Justice or Judge that he or she is without means to provide defence for himself or herself, and the court is satisfied it is desirable in the interests of justice that such an appointment be made, the Justice or Judge is to certify that to the Attorney-General who may cause arrangements to be made for the defence of the accused person, or refer the matter to such legal aid authorities as he or she considers appropriate.
When the matter is committed to the District Court or the Supreme Court for trial, the court must consider at the first directions hearing after arraignment, whether a direction is required under section 8 of the Criminal Law (Legal Representation) Act.
If, following an application pursuant to section 69(3) of the Judiciary Act, an appointment of counsel for the accused person has been made the defendant will have a lawyer who can undertake that the defendant will be represented for the duration of the trial. Or if arrangements have been made with the Commission, as a legal aid authority, for legal assistance to be provided in connection with the trial, the defendant will be an assisted person. In either case, no direction will be required. If the defendant is not represented by a lawyer, and does want legal representation at trial, a direction must be given to the defendant to make an application to the Commission for legal assistance.
The defendant in this case is not a person for whom legal assistance is or has been provided in connection with his trial. He is not represented by a lawyer who has given an undertaking that he will be provided with legal representation for the duration of his trial. The defendant should be directed to make an application to the Commission pursuant to section 8(3) of the Criminal Law (Legal Representation) Act. Further consideration of the application for an adjournment, postponement or stay of the proceedings should be deferred to allow the application to the Commission to be made.

[42] (1934) 50 CLR 551

[2007] SADC 114

2 November 2007