R v S No. DCCRM-99-740

R v S
[2000] SADC 34

Judge Robertson
Criminal

The accused is charged with thirteen counts of unlawful sexual intercourse. He was committed for trial in this Court on 24 August 1999. On 9 December 1999 the trial was ordered to be heard on 20 March 2000.
This application seeks a stay of the proceedings for at least six months. The Application is commonly known as a Dietrich Application. Counsel for the accused, Mr Mancini, said that the purpose of seeking the stay is to allow the accused the opportunity to sell a vacant allotment of land which he owns jointly with his wife in an orderly fashion. It is the accused’s intention to use part of the proceeds of the sale of the land to fund his defence. He claims that without the availability of the proceeds of sale of the land he does not have the financial capacity to meet the costs of his defence. The Application is supported by an affidavit of the accused and an affidavit of his solicitor and counsel, Mr Mancini. The accused also gave evidence.
The accused is currently unemployed. He has been unemployed for approximately two years. He receives a New Start allowance of $206 a fortnight. His wife is currently undertaking post graduate studies. She has a research scholarship which provides a stipend of $16,415 per annum tax free. Prior to that time his wife held a half scholarship from which she received approximately $8,000 per annum tax free. There are two children of the marriage, one of whom lives at home.
There are a number of assets which the accused and his wife own jointly. The first is their family home which was purchased in 1979. It is subject to a mortgage. At 31 December 1999 the indebtedness pursuant to the mortgage was $41,870. The monthly payments are $350. The Council valuation of the house is $112,000. The accused, who gave evidence, said he considered its value to be about $125,000. In addition to the house property, they jointly own the allotment of land. It is unencumbered. For rating purposes it is valued at $58,000. The accused and his wife also have a number of bank accounts in which there are relatively small balances therein. The funds in the bank accounts are used to meet the ongoing expenses of the household.
The accused owns four life insurance policies issued by AMP Life Limited (“AMP”). The policies are over the respective lives of his wife, his son, his daughter and himself. They are each whole of life policies. At the present time the total net surrender value of those policies is $15,782. Apart from some motor vehicles of very limited value and of course the furniture in the house, there are no other assets.
In 1999 as a result of the demutualisation of AMP the accused received nine hundred and twenty one AMP shares. He sold some of the shares in May 1999 and received the sum of $8,558.76. The balance of the shares were sold in November and the accused received the sum of $6,085.88. The total amount received from the sale of those shares was $14,644.60. At the time of the sale of the first parcel of shares, the accused had been charged with the offences for which he is to stand trial. Part of the proceeds of the sale of the shares have been used to pay his legal expenses to date, namely $5668. The accused said the balance of the proceeds of the sale of the shares has been used to meet ongoing liabilities of the family. He said that for the year ended 30 June 1999 the family expenditure exceeded the income received by he and his wife. Furthermore, he estimates for the year ended 30 June 2000, the family expenditure will exceed the joint income received by he and his wife.
On 16 April 1999 the accused applied for legal aid. His application for legal aid was refused and his appeal against he decision was disallowed. Ms Karen Lehmann, an officer with the Legal Services Commission gave evidence. She said that the decision to refuse legal aid resulted from the Commission’s decision, following a means test, that the accused must contribute $16,645.93 to his own legal costs before legal aid would be granted. Ms Lehmann said that the Commission then assessed that on legal aid rates, the costs of preparation for the trial and the trial itself would not reach that level of fees that it required the accused to meet. In reaching this conclusion the Commission made its own assessment of the length of the trial. Accordingly, she said that the accused would never be eligible for legal aid.
Ms Lehmann, indicated that the current rates of legal aid for a trial of this nature is $1,000 fee on brief together with refreshers at the rate of $600. The fee on brief normally includes all preparation work. She said that where the issues in a trial were of sufficient complexity to treat it as a special case then the Commission would provide additional funding. In such a case, where it was anticipated that the trial would be for ten days, then the Commission would grant 50 hours of reading time and 20 hours of extra preparation time. The reading time would be charged at $60 per hour and the preparation time at $80 per hour. Ms Lehmann said that if the trial was not certified as a one which was a special case then the Commission would pay, by way of fees, the sum of $3,400 for a five day trial and $6,400 for a ten day trial.
Ms Lehmann said that the fact that since the Application was made for legal aid, the accused had received about $15,000 for the sale of the AMP shares would not make any difference to the Commission’s stance. The Commission would still refuse to grant legal aid. She said the Commission took the view that if an applicant was aware of criminal charges and sold assets without making provision for legal fees, then the applicant would be refused aid. Ms Lehmann also said that on further consideration of the Application form she was able to say that the value of the AMP shares were not included in the means test. If the value of the shares were included then the personal contribution required before the grant of legal aid would have increased to a little over $31,000.
Mr Mancini has been acting as Solicitor and Counsel for the accused. He has received to date legal fees from the accused totalling $5,668 for services rendered. In his affidavit Mr Mancini estimated the length of time of the trial and he also stated the fees he would charge. Mr Mancini supplemented his affidavit evidence with statements from the bar table which were made without objection. He estimated that the trial would take approximately ten days. In his estimate he calculated that there would be two days of pre-trial argument and evidence. He said that it was the accused’s intention to seek a Basha inquiry to allow cross-examination of the complainant. He said that he estimated the evidence of the complainant would take two to three days. I pause here to mention that the complainant will be the only prosecution witness. Mr Mancini estimated that the defence case will occupy approximately three days. Finally, he included in his estimate, one day for addresses and one day for the summing up and verdict.
Mr Mancini stated that his fees for preparation and Counsel fees for the hearing would be $25,000. He said his Counsel fees for each hearing day was $1500. He said in addition he would need seventy hours of preparation time. He reached this estimation on the basis that he allowed one day preparation time for each day of court time. Mr Mancini indicated that he would charge $165 per hour or thereabouts for preparation time. He said that he has a written solicitor/client Retainer Agreement with the accused, in which the accused is required to pay the total fees into his trust account in advance of the hearing. It was his position that if the fees were not paid into his trust account in advance of the hearing then he could not continue to represent the accused. Finally, Mr Mancini acknowledged that when the proceedings were set down for trial on 9 December 1999 he provided what he called a “guestimate” of the length of the trial which he said was five days. He said that his present estimate of ten days has arisen as a result of a more detailed consideration of the issues to arise in the trial.
Earlier I made reference to the vacant allotment of land. The accused and his wife put that land on the market for sale in August 1999. They appointed land agents, for the purpose of selling it. The only method of attracting potential buyers has been the regular advertising of the land for sale in “the Advertiser” newspaper and on two occasions in the “Messenger” newspaper. The land was first advertised about 25 August 1999. A “For Sale” Notice Board was erected on the vacant land indicating the land was for sale. However, this Notice Board was subject to regular damage by vandals and at the present time there is no Notice Board on the allotment of land. The accused said that the main reason for placing the land on the market was to obtain funds to pay for his defence.
The initial asking price for the land was $120,000. The accused said that he thought the land would bring that figure. He said that a land agent indicated that the sum of $120,000 was too high. A senior consultant with the land agents told him that he thought the land would sell for about $105,000 but if no responses were received then they would need to look at reducing the price. There had not been any firm offers by December. The accused said that as a result of the proceedings being set down for trial he instructed the agent to advertise the land for sale at “$80,000 plus”. He said that he had in mind a price range of between $80,000 and $100,000. The accused said that if the property was sold then he and his wife would use the funds in the first place to discharge their liability under the mortgage secured on their house property and then to use the balance of the funds to meet the cost of his defence. He said that he would consider accepting $70,000 to $75,000 for the land, but he would not be happy about it because it would not be giving him the return that he desired. The accused said that if it was sold at $70,000 this would be a good price for a buyer because land in close proximity was selling for about $85,000. He said that he has not attempted to auction the allotment of land.
A letter from land agents dated 21 February 2000 under the hand of the Senior Consultant was tendered in evidence. He said that no offers have been received for the land since they commenced advertising it at “$80,000 plus” in mid-December although there had been a number of enquiries. The Senior Consultant stated in the letter that the limited number and strength of enquiries indicate that there is no sign of a strong demand for the land. It was his view that he would not be confident of any reasonable bids been received if the land was to be offered at auction. He indicated that the cost of developing the land would be quite expensive because it had a slope of one in five. It was his view that to achieve a price in excess of $80,000 it may take a further six to twelve months.
Having dealt with the evidence, I now turn to consider the principles relevant to a Dietrich Application. In The Queen v Karounos 63 SASR 451 King CJ at 457 stated the following general principle:-
“It will be seen from that proposition that an accused person, charged with a serious offence, seeking an adjournment or stay on this ground must prove on the balance of probabilities that he is indigent, that he has been unable to obtain legal representation and that that inability is not due to fault on his part”.

What is meant by “indigent” was discussed by Perry J in the The Queen v Marchi 67 SASR 368 at 375:-

“For these purposes, indigent does not mean that the accused must be penurious in the sense of living in poverty. Rather, the test of indigence is satisfied if the accused lacks the means to engage appropriate legal representation to conduct his or her defence.”

That statement of principle was adopted by Olsson J in The Queen v Burns & Ors (No.5) [2000] SASC 8 at 9. With respect, I also adopt it for the purpose of this Application.

The accused claims that he is indigent in the sense that I have just referred to and as a result he will be unable to obtain legal representation for the trial. He says that such inability to obtain legal representation is not due to any fault on his part. Mr Mancini submitted that his solicitor/client Retainer Agreement requires the accused to pay $25,000 into his trust account in advance of the hearing. He said that the evidence discloses that the accused does not have the capacity to meet that payment due to no fault of his own and that therefore he will be left without legal representation at the commencement of the trial on 20 March 2000. On the other hand, Mr Crowe submitted that the accused is not indigent because he has the ability to surrender the life insurance policies immediately and that this will provide him with an amount of $15,782 which would be ample funds to meet the legal costs for the preparation of the trial and for Counsel fees for the hearing. In addition, Mr Crowe submitted that the accused has not discharged the onus upon him of proving that through no fault of his own he is unable to obtain legal representation. He submitted that he has failed to take reasonable steps to sell the allotment of land.
Before I turn to consider these submissions I need to give consideration to some further relevant principles. Where a person has access to assets but the likely proceeds of sale or the proceeds of borrowing against those assets would not be sufficient to meet the legal costs of conducting a defence to a charge, then that person is indigent. (Marchi at 375; Burns (No.5) at 9). Furthermore, where an accused person does have assets but the nature of the assets are such that they cannot be readily realisable or in any other way accessed for the purpose of raising funds then that person is also indigent (Burns (No.5) at 9).
With respect to the question of whether an accused’s inability to obtain legal representation is due to his or her fault, King CJ in Karounas, said at 457:-
“A person may desire legal representation but be unwilling to take the necessary and proper means to obtain it. The basic reason why a lack of representation may lead to a stay is that it may deprive the accused of a fair trial. A person cannot be said to be deprived of a fair trial by reason of lack of legal representation if he refused to take reasonable steps which are necessary to obtain it. He therefore deprives himself the opportunity to obtain legal assistance. His conduct must be regarded as fault in the relevant sense. An alternative way of looking at the matter, is that he is not really unable to obtain representation because he has unreasonably omitted to use the necessary means to obtain it”.
In my opinion, at the present time, the accused is indigent. It is clear that he does not have at present funds necessary to obtain legal representation for the trial. Mr Crowe says that the accused is not indigent because he can request the AMP to pay him the surrender value of the insurance policies at any time. He further submits these funds would be ample to obtain appropriate legal representation. In my view, the fact that an accused has the potential to raise funds is not a relevant consideration in the enquiry as to whether the accused is indigent or not. The accused refused to surrender the policies. Therefore, at present, he does not have funds to obtain legal representation. In those circumstances it seems to me that the spotlight then falls on that refusal in order to determine whether it is reasonable in the circumstances. In other words, it is relevant to the enquiry whether the accused’s indigence is due to fault on his part.
However, before I consider the issue of “fault” in relation to the insurance policies and other matters referred to by Mr Crowe, it is appropriate to consider what is the level of fees which the accused would be required to raise for the purpose of obtaining legal representation. In part, this enquiry needs to take into account the estimate of the length of the trial. I have referred to the evidence of Mr Mancini regarding his estimate of ten days. Mr Crowe challenges that estimate. He said that the Crown is only intending to call one witness. He said that a trial of this nature would only take about four days.
Mr Mancini has provided some information regarding his method of calculating the ten day period. He has referred to the number of witnesses that may be called as part of the defence case. Understandably, he has not provided details of the substance of that evidence. However, such information would be useful in gauging whether the estimate made by him is reasonable. Whilst the estimation does seem longer than some expectations of a trial of this nature there is always danger in generalisation. It is trite to say that each case must turn on its own circumstances. The charges against the accused range over a period of nearly seven years. Whilst I have some doubt whether it is likely to last that long, for the purpose of this Application, I am prepared to accept Mr Mancini’s estimate of ten days.
Mr Crowe has also challenged Mr Mancini’s estimate of $25,000 for the cost of the trial. Mr Mancini says that the calculations are based upon a daily counsel fee of $1500 together with seventy hours of preparation and reading time at $165 per hour. Mr Mancini said his calculation of seventy hours for preparation work was based upon an assumption that he would need to undertake a days preparation for each day of hearing. This seems to be an entirely arbitrary assessment. The Supreme Court Guide to Counsel Fees which taking officers have regard to indicates the range of counsel fees for Junior Counsel per trail day is between $650 and $1350. For preparation time the range is $130 to $200 per hour. As I mentioned earlier, the Legal Aid Commission rates are $1000 fee on brief and $600 for each refresher. Reading time and preparation time can be charged where the Commission considers it to be a special case.
I am not prepared to accept Mr Mancini’s estimate of the time required for preparation prior to trial. It is an arbitrary figure. He did not provide any details of the work required to prepare the case for trial. This presents a problem in determining what would be the appropriate level of fees required by the accused to obtain legal representation. In my opinion, the evidentiary onus is upon an accused person in a Dietrich Application to provide evidence upon which a reliable estimation of the total fees can be made. I also note that the daily counsel fee which Mr Mancini requires is greater than the upper level of the scale in the Supreme Court Guide to Counsel Fees.
The application by the accused for a stay appears to be based on the assumption that Mr Mancini is his only option. I say this, because the application is premised on the basis that Mr Mancini will not represent him unless he receives $25,000 in his trust account in advance of the trial. It can be inferred that as he will be unable to provide that sum by 20 March he will be without legal representation. As a result he seeks an adjournment or interim stay of the trial for a period of at least six months on the basis that he will need that time to enable him to sell the vacant land and thus raise the sum of $25,000 to pay Mr Mancini. However, an accused person, for the purpose of a Dietrich Application, is not necessarily entitled to counsel of his first choice (R v Souter (1997) 191 LSJS at 239). The question of legal representation in the context of a Dietrich Application was addressed by the New South Wales Court of Criminal Appeal in Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370 at 375:-
“The principle in Dietrich concerns persons being, or about to be, tried for a serious criminal offences who are, to use the language of one of the leading judgments (at 311), ‘forced on unrepresented’. It does not concern an accused person’s supposed right to competent counsel; the existence of such a right was denied by the decision in Dietrich. That does not mean that questions of competence are entirely irrelevant to the application of the Dietrich principle. They are, however, to be put in their proper perspective. It may well be that, in a given case, the only representation available to an accused is manifestly inadequate to the task, it would be appropriate to regard the accused as being, for practical purposes, unrepresented.”

That passage followed the observation that a Judge in a Dietrich Application is not to embark upon an exercise of assessing the relative degrees of competence and experience of lawyers who may be potentially available to act for an accused person. (Milat at 375). However, having acknowledged that principle, I am prepared to accept that for the purpose of this the accused should not be “forced on” without competent representation.

It is Mr Crowe’s submission that I am entitled to take into account what the Legal Services Commission would pay competent legal representation in a trial lasting ten days for the purpose of considering the level of funding required for the trial. This was the approach taken by Perry J in Marchi (page 377). In that case one of the accused estimated his costs on the Supreme Court taxing officer’s guide to counsel fees. Another accused calculated the estimate of counsel fees upon the scale of fees used by the Legal Services Commission. Perry J said that as this was offered it was reasonable to assume that counsel are available to present the defence at a rate of remuneration reflecting the legal aid scales.
In considering Mr Crowe’s submission I start from the position that I find that the estimate of $25,000 is too high. I reach that conclusion first because the rate of counsel fees is in excess of the Supreme Court Guide and secondly because I am not prepared to accept the estimate of seventy hours preparation work. Clearly there would need to be some preparation work. The level which is required cannot be estimated as there is no other evidence on which to rely.
I see no reason why I should not, for the purpose of this Application, use the Legal Services Commission scale of fees for determining an estimate of the fees for preparing for trial and the trial itself. Using the scale of $600 per day for counsel fees, the total cost for counsel fees would be $6,000. To this would need to be added an unknown quantity of preparation time. If I arbitrarily select five days preparation time then a further $3,000 is added making a total of $9,000. By contrast, if I use the Supreme Court Guides to Counsel Fees rate and I strike a median figure between the low point of the scale and high point of the scale a daily counsel fee of $1050 is arrived at. The estimated total counsel fees are therefore $10,500. If I adopt the same period of five days preparation then the additional fees antecedents $5,250 making a total estimated fees of $15,750.
It seems to me that I specifically need to focus on two assets, namely the life insurance policies and the vacant allotment of land for the purpose of considering the accused’s application for a stay. As I mentioned earlier, the accused is the owner of each of the policies. Apparently it is a term of policy relevant to each child that ownership vests in the child on obtaining the age of twenty one years. He said that he has owned the policies for just under 16 years and that he has mainly paid the premiums during that period. He said that he has not surrendered the policies as this would leave the family without life insurance. He said that he would feel that he was betraying a trust if he surrendered them. The accused said that to obtain the surrender value it is only necessary to sign a surrender form and complete other formalities.
Whilst the reasons expressed by the accused regarding the surrender of the policies is understandable, in my opinion, in failing to do so he is failing to take a reasonable step necessary to obtain legal representation. In my view, the moral dilemma which confronts him unfortunately is a direct result of his failure to approach the sale of the land in a realistic manner. I will deal further with that point in a moment. In any event, in my opinion, his reasons for refusing to surrender the policies do no assist him discharging the onus of establishing that his conduct is not unreasonable. In other words, the reasons do not justify a finding that his conduct in failing to surrender some or all of the policies should not be regarded as “fault” in the relevant sense. The surrender of some of the policies would enable him to meet his legal expenses if they were calculated on the Legal Aid Commission’s scale of fees. If the scale of fees of the Supreme Court is adopted in the manner I have described then the surrender of all the policies would be sufficient to meet that estimate.
As I mentioned earlier, the foundation of the accused’s Application for an interim stay is based upon the premise that he should be given further time in which to achieve the best possible price for the vacant land. Mr Mancini stated that what is sought is a stay of six months or such other period of time as I may allow. He said that the period of six months is the accused’s estimate of the time it would take to effect an orderly sale of the land.
The accused was committed for trial on 24 August 1999. He placed the land on the market for sale in August 1999. The asking price of $120,000 was considered by the real estate agent far too high. In December of 1999, the accused and his wife instructed the agent to advertise the land at “80,000 plus”. Even at that point the accused was hoping for a price of between $80,000 and $100,000. He assessed that an attractive price for a buyer would be $70,000. The accused is of the opinion that a price of $110,000 would be required for him to receive a return of 8 or 9 percent. He said he felt that to get his money back with a nominal return of 2 to 3 percent he would need to sell the land for $95,000. The land was purchased twenty years ago for somewhere between $7,000 and $8,000.
In my view, the accused has not taken reasonable steps to sell the land and thus obtain funds required to obtain legal representation. He placed the vacant land on the market at a price considerably higher than that recommended. The price sought was based upon what can be described as a whim. In mid December he dropped the price to between $80,000 and $100,000. The evidence indicates that the accused’s attitude to the sale is that he is not prepared to accept a price which he considers is not an appropriate return on his investment. It is clear, that the accused is not prepared to dispose of the land at what he would regard as a “fire sale” price. It is not suggested that the land is not a saleable commodity. That being so there is a price which would be attractive to a buyer. The accused suggests that such a price would be about $70,000. However, he has not shown any desire to sell it at such a price or even close to that price.
It is now six months since the accused was committed for trial. Not taking into account his matrimonial home, the accused has had two sources of assets from which he could raise funds for his legal representation. With respect to the AMP policies he has not been prepared to surrender them. His current lack of cash resources is also due to his failure to approach the sale of the land realistically. The urgency of the requirement to raise funds appears to have been outweighed by his desire to obtain what he considers to be an appropriate return on the land. I am not satisfied that his present lack of funds, which leads him to be unable to obtain legal representation for the trial, is not due to fault on his part. The accused has the capacity to obtain the funds but has failed to take reasonable steps to do so. Accordingly, it follows from what I have said that the accused has not discharged the onus of proving that his lack of means has been due to no fault on his part.
Finally, I desire to make one final comment. There is no evidence that the accused sought advice regarding whether he could use some or all of his assets to raise finance. Whilst the low income of he and his wife may have presented a problem there may be short term finance options which do not require the regular payment of instalments. If such an option was available then this may have overcome the problems which seem to have personally confronted him regarding the sale of the assets. In any event, it will never be known as the accused failed to undertake any detailed investigation regarding finance options.
The application for a stay of proceedings is refused.

[2000] SADC 34

8 March 2000