HIGH COURT PRACTICE - Stay - Application for order staying criminal trial - Pending application to High Court for relief under Constitution, s 75 - Alleged failure to accord accused fair trial involving legal representation in accordance with Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 - Alleged inconsistency of Crimes Act 1958 (Vic), s 360A with implied guarantees said to arise from Constitution Ch III - Whether any irremediable harm to plaintiff - Whether balance of convenience requires stay - Stay refused.

CONSTITUTIONAL LAW - Right to fair trial - Requirement of legal representation - Complex conspiracy charges - Many witnesses - Trial estimated to last months - Whether legal representation required by implications arising from Constitution, Ch III - Whether Crimes Act 1958 (Vic), s 360A inconsistent with Constitution - Whether stay of trial should be granted to protect alleged constitutional right - Stay refused.

CRIMINAL PROCEDURE - Right to fair trial - Lengthy trial - Conspiracy charges - Whether court unable to ensure that accused will receive a fair trial unless legally represented - Requirements of Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 - Whether such requirements derive from the Constitution, Ch III - Whether stay of trial by High Court should be ordered - Importance of manifest justice in criminal trials.

Constitution of the Commonwealth, s 75

Crimes Act 1958 (Vic), ss 360A, 391, 391A

Legal Aid Act 1978 (Vic)

KIRBY J. A summons is before me. It has been returned with expedition. It concerns a request for an order to stay the commencement of the trial of a person in the County Court of Victoria. Unless stayed, that trial is expected to commence in Melbourne in the middle of next week. Only one of three persons presented for trial, Mrs Suzanne Frugtniet (the plaintiff) has applied for the stay. However, I am prepared to assume that the other accused, who are not represented before me, know of her application and either support it or do not oppose it for, in material respects, their positions appear to be similar to hers.

Application for declarations of constitutional right

The plaintiff appears in person. She claims the stay to allow this Court to hear and determine certain points presented for decision by a statement of claim which she has also filed in the Court. That statement of claim seeks two declarations, namely:

"1. A declaration that sections 360A(1) and (2) of the Crimes Act 1958 (Vic) as amended by section 1 of the Crimes (Criminal Trials) Act (Vic) is contrary to the implied Constitutional guarantee in Chapter III of the Constitution of a Constitutional right to a fair trial and therefore are invalid.

2. A declaration that the Court is unable to ensure that the Plaintiff will receive a fair trial without legal representation and in those circumstances stay the further proceedings until such time as legal representation is available based on the principles as set out by this Court in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292."

The first declaration purports to present a matter arising under the Constitution and involving its interpretation[1]. It is raised in a matter which is also said to engage the diversity jurisdiction of this Court[2], the plaintiff being ordinarily a resident of the State of New South Wales and one of the named defendants being the State of Victoria. The other defendants are the judge of the County Court of Victoria assigned to the plaintiff's trial, his Honour Judge Anthony Smith (who has submitted) and the Director of Public Prosecutions for the Commonwealth.

The second declaration appears to do little more than to refer to the foundation for the plaintiff's argument for a stay, namely the decision of this Court in Dietrich v The Queen[3]. However, it signals the contention of the plaintiff that, without competent legal representation in her pending criminal trial, she will be denied her right to have a fair trial in conformity with the holding in Dietrich. Because she asserts that such right is grounded in the implications to be found in Chapter III of the Constitution, and not simply in the common law, the plaintiff has submitted that any legislative provision which purports to limit or prevent the attainment of that right is unconstitutional and thus of no legal effect. According to her, section 360A of the Crimes Act 1958 (Vic) is such a provision. It is pursuant to that section that orders have been made which the plaintiff contests.

The affidavits read in support of the application reveal a remarkable saga of litigation which has occupied the time of the Magistrates' Court of Victoria, the County Court of Victoria, the Supreme Court of Victoria, the Supreme Court of New South Wales and even this Court. See Frugtniet v Attorney-General (NSW)[4]. So many, varied and persistent have been the preliminary and interlocutory proceedings that the Chief Judge of the County Court of Victoria, his Honour Chief Judge Waldron, observed that all three accused had "explored every opportunity and pursued every point, both in this trial and in various proceedings in the courts in New South Wales, which have been calculated to delay the expeditious disposition of this trial"[5]. The Chief Judge concluded that[6]:

"[A]ll three accused have deliberately and calculatingly combined to frustrate the trial process ... with the objective of avoiding the force of the prosecution against them. In that process they have squandered or have caused to be squandered a very great amount of public funds".

In part, the "public funds" referred to are the legal aid funds which, until recently, were provided to the plaintiff and her co-accused. They have now been withdrawn. Of course, the plaintiff contests the Chief Judge's description of the earlier proceedings. She suggests that they represented no more than proper attempts by the accused, including herself, to uphold and defend their legal rights.

The plaintiff has been presented for trial with her husband, Mr Brian Frugtniet, and another co-accused, Mr Edward Seyfarth. They are jointly charged upon two counts of conspiracy, namely, to make and use counterfeit American Express travellers cheques and to induce others, to their prejudice, to accept such cheques as genuine. The preliminaries to the trial of those charges actually commenced on Monday last, 15 September 1997, when the selection of the jury was begun before Judge Smith. The process of jury selection has continued. However, it was delayed, remarkably enough, by the fact that each of the large panels of jurors in waiting included a person who was said to have known one of the accused. Accordingly, the process of jury selection is to commence again tomorrow morning. In the interval, the plaintiff has travelled to Sydney to argue this application before me.

The plaintiff was first served with a summons in July 1992. She immediately applied for, and was granted, legal aid by the Legal Aid Commission of Victoria, now known as Victoria Legal Aid. It was not disputed then, or since, that the plaintiff is indigent. The plaintiff is apparently in receipt of social security benefits as her only source of income. Her property, if any, is not detailed but it is accepted to be modest. The plaintiff was provided with a solicitor in the employ of Victoria Legal Aid at the committal proceedings between August 1992 and December 1992. At the conclusion of those proceedings, on 11 December 1992, she was committed for trial in the County Court. The original counts charged her with making and using false instruments. Subsequently, they were altered to the two conspiracy charges which she now faces.

The trial of the plaintiff and her co-accused was assigned to Judge Smith in December 1994. There were delays in the commencement of the hearing[7]. The plaintiff applied, unsuccessfully, for a separate trial. This was the first of many interlocutory applications concerning the accused in all or most of which, until recently, they were represented by legal practitioners funded by Victoria Legal Aid. I will not detail them all. However, they included:

(1) Proceedings concerning the provision of submissions and the production of documents;

(2) An unsuccessful application to the trial judge that he disqualify himself for alleged bias;

(3) The conduct of an extensive pre-trial voir dire;

(4) An inquiry into the withdrawal of the original legal representatives of Mr Frugtniet;

(5) A challenge to the conduct of the proceedings by the then Crown Prosecutor who has since been changed;

(6) An adjournment of the trial by reason of difficulties which Mr Frugtniet had in New South Wales, referred to in my earlier judgment;

(7) A renewed but equally unsuccessful application for the severance of the trial of the plaintiff from that of her co-accused;

(8) An application for review of a legal aid decision in the Supreme Court of Victoria;

(9) A reconsideration of the withdrawal of legal aid funding for the trial by the Legal Aid Review Committee of Victoria;

(11) The hearing of a renewed application for an order for legal assistance for the trial under section 360A of the Crimes Act decided by Chief Judge Waldron; and

(12) Upon the adverse outcome of the last-mentioned application, an application to the Supreme Court of Victoria for judicial review.

The judicial review application was dismissed on 11 September 1997 by Hedigan J. Accordingly, last week, the trial seemed, at last, set to commence on 15 September 1997. Then came the application to this Court for a stay to permit the constitutional challenge first to be heard.

Suggested unfairness of a trial without representation

Section 360A of the Crimes Act was apparently a response by the Parliament of Victoria to the decision of this Court in Dietrich. The section reads as follows:

"(1) Subject to sub-section (2) and despite any rule of law to the contrary, if -

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 has been 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)."

Victoria Legal Aid having withdrawn legal aid to the plaintiff for her defence at the trial, she complains that the result of the adverse decision under s 360A will be a denial of her right to a fair trial which the application of the provisions of the section will purportedly permit. This is the context for the plaintiff's challenge to the validity of the section which she wishes to agitate before this Court. She argues, in effect, that it is grotesque to require her to undergo a trial without legal representation provided by legal aid. In defence of her rights she seeks this Court's intervention. In support of her application, she relies upon the following considerations, amongst others:

(1) The suggestion in Dietrich that all persons in Australia facing serious criminal charges on indictment have a right to a fair trial enforceable by orders of trial judges to stay or adjourn proceedings where a person is unrepresented and where such representation is essential to a fair trial. In particular, the plaintiff relied on the remarks of Deane J and Gaudron J in Dietrich that a constitutional foundation exists for that principle[8];

(2) The complexity of the law of conspiracy and of the procedures of a long trial before a jury where the accused is unrepresented and has not elected that course[9];

(3) The lack of legal training on the part of the plaintiff and the other co-accused and the fact that she deposes to confusion and nervousness when taken away from her written notes of argument. She also relies upon an apparent refusal of the trial judge to permit her to have the assistance of a brother-in-law, who is said to be a law student, who was willing to assist her in the capacity of a McKenzie friend[10];

(4) The estimated duration of the trial of four months and the number of witnesses named by the Crown in its notice of witnesses. The number to be called is said to be between 100 and 130;

(5) The suggested differences between the respective Crown cases against the plaintiff, on the one hand, and the other accused, on the other, which competent counsel could elicit and develop in defence of the plaintiff's separate position; and

(6) The reported statements to the plaintiff by senior counsel representing her at a time when she had the benefit of legal aid that, properly represented, she would have every prospect of acquittal.

It is important to appreciate that I am not in these proceedings deciding the plaintiff's constitutional challenge. In the ordinary course such challenge, raised by her statement of claim, would be listed for directions at a later time. Orders would then be made for the hearing of the statement of claim, for its remitter to another court or for other relief in respect of it. The only question which is now before me is whether the nature of the claim foreshadowed in that document and the circumstances facing the plaintiff in the pending trial justify her application for the immediate, but temporary, stay which she seeks.

In my opinion they do not. My principal reasons are as follows:

(1) The holding of this Court in Dietrich does not, at least as I now understand it, appear to be grounded in a constitutional principle[11]. As expressed in the majority reasons, the decision relates to the power of a judge at common law, faced with an application by an indigent accused, to grant an adjournment or stay of a trial hearing. For a constitutional rule, the plaintiff would have to persuade the Court to express a new principle not yet upheld by a majority of the Court. The capacity of Chapter III of the Constitution to give rise to important implications cannot be denied. Its potency for an implication of due process rights has been foreshadowed by some Justices including, in this context, by Deane J and Gaudron J[12]. However, nothing so far decided by this Court affords the plaintiff a certain constitutional foundation for the first declaration claimed by her[13]. She therefore has some way to go in her litigious journey before the principle which she invokes could be said to be the law of Australia. I do not wish to be taken as denying her proposition. I could scarcely do so in the face of the dicta of Deane J and the holding of Gaudron J in Dietrich's Case. However, the constitutional proposition advanced by the plaintiff has not yet emerged as established constitutional doctrine.

(2) The provisions of s 360A of the Crimes Act do not purport to oblige a court in Victoria to refuse an adjournment or stay of a trial in conflict with the plaintiff's suggested "constitutional right". The section merely affords a judicial discretion to do so. This Court, at least in proceedings of the foreshadowed kind, would not, as such, be reviewing the exercise of that judicial discretion. Any such review would have to be argued in other proceedings. A challenge to the exercise of the judicial discretion could, for example, be raised, ultimately, in an appeal to the Court of Appeal of Victoria following a conviction of an accused person who contended that the refusal of an order under s 360A(2) had occasioned a miscarriage of justice or had otherwise resulted in a trial which did not conform to the law.

(3) The facility of such scrutiny of the exercise of the discretion provided by s 360A, speaks strongly against intervention by this Court at this stage. If a stay were refused, the plaintiff would not be left without redress. If her trial, without competent legal representation, were unfair and she were convicted, she would have legal remedies. However, if she were acquitted, this Court would not then be troubled. It should also be noted that the application for an order under the section is not confined to one attempt. The section contemplates that "at any time before or during the trial" an order may be made. I accept that appointment of a legal representative in the midst of a long and complex trial would present distinct disadvantages to an accused person. However, it is a possibility that remains open. The judge might be convinced at a later stage as to the necessity to provide relief under the section which has so far been refused. If he were, it would be expected that appropriate ancillary relief would then be granted, by way of adjournment of the trial or otherwise. The power of the judge is unquestioned. The duty of Victoria Legal Aid, once an order is made under the section, is also plain. I have been informed that there is currently before the trial judge a renewed application under the section. I do not doubt that it would be heard as a matter of priority before the trial was long advanced.

(4) This Court has more than once, including recently, emphasised how rare it is to make orders which would have the effect of interfering in the conduct of a criminal trial. No case has been brought to my notice where the Court has made a stay order equivalent to the one sought on this summons. Although I do not doubt that, in a proper case, the Court would have the jurisdiction to make such an order to protect the utility of its process[14], it would be truly exceptional for it to do so. The Court expressed its attitude of restraint most recently in its decision in R v Elliott[15]. There are many earlier such cases[16]. They evidence the strong disposition of appellate courts in Australia - and especially of this Court - not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required. Analogous principles apply, as it seems to me, to the provision of a stay to prevent the commencement of a trial so as to permit a constitutional point to be argued. That point will not be lost to the plaintiff. If need be, at a later stage, it can be raised again.

(5) This Court has also emphasised that the provision of a stay of proceedings affecting the execution of judgments in the courts below is normally to be regarded as exceptional. This is, in part, because of the function and role of this Court in the Australian judicature. In part, it reflects the practical fact that the Court can and does hear only a small proportion of the cases which are proffered to it. In part, it reflects the fact that, in most cases, special leave is required for an appeal and in other cases most matters are remitted to be heard by other courts from which an appeal to this Court may come only by special leave, or leave. I endeavoured to explain the stringency of the law governing the provision of stays in Frugtniet v Attorney-General (NSW)[17]. By analogy, those principles apply with equal or, I should say, greater force where the stay sought is directed to a criminal trial which has commenced or is about to commence.

Therefore, having regard to the legal issues proposed to be argued, the risk of any irremediable harm to the plaintiff and the balance of convenience, the application for a stay sought by the plaintiff on her summons must be refused. The plaintiff's trial, so long delayed, should take its course.

The importance of manifest justice of criminal trials

If an application for an order under s 360A is renewed, nothing in what I have said should be construed as in any way discouraging to the trial judge to consider that application afresh. A measure of judicial irritation at all of the interlocutory skirmishing and much apparent waste of public funds would be understandable in this case. Very understandable. However, that consideration would, as it seems to me, be irrelevant to the issue which s 360A presents for decision. That issue, from first to last, is whether the plaintiff and the co-accused can have a fair trial without legal representation. Involved in that question is something more than the rights of the accused. There is also involved the undoubted right of the community to have a manifestly fair trial, which conforms to the law, of serious charges presented by the Crown[18]. I also consider that there is involved a question of the propriety of courts being required to undertake proceedings which are otherwise than manifestly just and fair[19].

Clearly, the complexity of the issues, the envisaged length of the trial, the capacity and experience of the accused to represent themselves, the risks that the trial may later have to be terminated or may miscarry and the unreasonable burden placed on the trial judge himself, in default of legal representation, are relevant considerations. The appearance of a well-resourced Crown, represented by senior and junior counsel and solicitors in a four-month prosecution of three unrepresented accused on two charges of conspiracy (which can be notoriously technical and difficult) may ultimately persuade the trial judge to make an order under the section. In the first instance, at least, that will be entirely a matter for him. Nothing I have said today in refusing a stay from this Court is intended to discourage the making of such an order if it is otherwise required by law and by the necessities of manifest and seemly justice in a court of justice of this country.

[1] See Judiciary Act 1903 (Cth), s 30.

[2] Under section 75(iv) of the Constitution.

[3] [1992] HCA 57; (1992) 177 CLR 292.

[5] R v Frugtniet & Ors unreported, County Court of Victoria, 3 July 1997 at 5.

[6] R v Frugtniet & Ors unreported, County Court of Victoria, 3 July 1997 at 5.

[7] Crimes Act 1958 (Vic), ss 391, 391A; Crimes (Criminal Trials) Act 1993 (Vic), ss 5, 7.

[8] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 326 per Deane J, 362 per Gaudron J.

[9] cf Greer v The Queen (1992) 62 A Crim R 442.

[10] McKenzie v McKenzie [1971] P 33.

[11] Chau v DPP (1995) 37 NSWLR 639 at 653.

[12] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 326 per Deane J, 362 per Gaudron J. See also McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575 at 593 per Murphy J; Boas, "Dietrich, the High Court and Unfair Trials Legislation: A Constitutional Guarantee?" [1993] MonashULawRw 11; (1993) 19 Monash University Law Review 256; Hope, "A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System" [1996] FedLawRw 6; (1996) 24 Federal Law Review 173.

[13] cf New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309 at 328.

[14] cf Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620 at 623; Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 155-156.

[15] [1996] HCA 21; (1996) 185 CLR 250 at 257.

[16] See for example Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 435-436; Sankey v Whitlam (1978) 142 CLR 1 at 26, 79.

[17] (1997) 71 ALJR 810 at 813. See also Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1997] HCA 24; (1997) 71 ALJR 814 at 815-816; [1997] HCA 24; 145 ALR 121 at 122-123.

[18] cf Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 30-31.

[19] Sorrells v United States [1932] USSC 174; 287 US 435 at 457 (1932) per Roberts J; cf Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 58 per Deane J, citing Moevao v Department of Labour [1980] 1 NZLR 464 at 481; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 78; Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 202-203; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 31, 49, 77.