McInnis v The Queen

High Court of Australia|1979-07-01|Before: Wilson JJ

High Court of Australia Barwick C.J. Mason, Murphy, Aickin and Wilson JJ. McInnis v The Queen [1979] HCA 65

ORDER Application for special leave to appeal refused.

The applicant for special leave was indicted before the Supreme Court of Western Australia on three counts: first, of unlawful assault; second, of unlawful restraint; and, third, of rape. He pleaded guilty to the first but not guilty to the other two. In the result, he was convicted by the jury and sentenced to a term of imprisonment. The ground upon which the applicant seeks special leave to appeal from the decision of the Court of Criminal Appeal, which by majority dismissed his appeal to that Court, is that the trial judge erred in refusing his application to adjourn the trial to enable him to obtain the services of counsel and that the refusal so seriously prejudiced him in his trial that it constituted itself a miscarriage of justice.

The applicant applied for legal aid and it is common ground that he did all that was required of him in order to secure legal aid for his defence of the charges. The matter came before the Court on two occasions prior to the date of his trial on which he was represented by counsel. The purpose of the matter coming before the Court on those occasions was to arrange for an adjournment in the case and, in the long run, for the fixing of a date for the trial. It may be taken that he had every reason to think that counsel who was provided for by legal aid and appeared for him on those two occasions was not briefed merely for the purposes of the adjournment or for the fixation of a date for trial but was briefed for him in his defence. It may also be taken for the purposes of the resolution of this application that he was told about 4.10 p.m. on the day preceding the day set for the trial that legal aid had been refused and that the counsel who had earlier appeared would not represent him on his trial. Although legal aid had been refused, the Legal Aid Commission Act, 1976 W.A. ("the Act") provided the applicant with an opportunity to seek a reconsideration of the refusal of aid and in the event that such an appeal did not reverse the decision the applicant had a right of review to a review committee.

He had been advised by counsel at the time he was informed that legal aid had been refused to apply for an adjournment of the trial. He did so and, in the course of doing so, indicated to the trial judge that his relatives might possibly provide him with means of securing the services of counsel. The trial judge, taking into account the strain under whicih the prosecutix was labouring and the circumstances that the witnesses and jurors had been assembled, legal aid had been refused and that the date for the trial had been set, refused the application and the trial proceeded. Thereafter the applicant conducted his own defence.

The evidence against the applicant was very strong indeed. There is no doubt that he had had intercourse with the prosecutrix. She had been violently treated and had made early complaint to a neighbour. Due to drugs he had been taking it seems that he was unable to consummate the intercourse though there was penetration. Indeed, he collapsed during the course of the intercourse. Technical evidence established the presence of semen on his underclothes

The applicant sought to explain these physical facts by the assertion in his statement that he had had intercourse with the prosecutrix with her consent some hours before the time at which she charged that rape had taken place, but he did not raise this suggestion with the prosecutrix whilst she was giving evidence. Counsel for the applicant pointed to his failure to ask the prosecutrix about this earlier intercourse which he alleged to have taken place as indicative of the prejudice the applicant suffered by the absence of counsel but, in my opinion, the failure to ask the prosecutrix about the suggested earlier intercourse cannot be explained in this way.

The question before the Court of Criminal Appeal was whether or not there had been a miscarriage of justice. It was not simply whether an adjournment of the trial ought to have been ordered. It was whether, assuming the adjournment to have been wrongly refused, that refusal resulted in the miscarriage of justice.

It is proper to observe that an accused does not have a right to be provided with counsel at public expense. He has, of course, a right to be represented by counsel at his own or someone else's expense. He has no absolute right to legal aid. He has a right, of course, to have the procedures of the Legal Aid Commission Act duly followed, including of course the hearing of an appeal and review if these are sought. Nothing I say, nor what follows, can be taken to cast any doubt on my own belief that a defence conducted by a competent counsel has an advantage to an accused and that it is in the best interest of the administration of justice that an accused be so represented. Consequently, in my opinion, the trial judge ought very seriously to consider whether an accused should be forced on without counsel in any case in which there is a reasonable possibility that he may obtain the services of counsel in his defence without unbearable delay: but, of course, a trial judge must also have in mind the interests of the Crown and of the witnesses, including a prosecutrix in such a case as the present, and of the jurors. In the present case, the case had been specially fixed for trial on the day in question, the jurors had been summoned and the witnesses were present. It is indeed a close balance and a matter of judgment whether in those circumstances the chance that the refusal of legal aid might on appeal or review be reversed outweighed other considerations. I would not be prepared myself to say that the trial judge erred in his exercise of judgment and in his refusal of an adjournment. But in so saying, I would emphasize the need for the most careful weighing of the interests of the accused, of Crown, witnesses, jurors and, generally, of the administration of justice, when an adjournment is sought in order to obtain or to endeavour to obtain the services of counsel for the conduct of the defence.

However, on the assumption that the judge was in error in the exercise of his judgment in refusing an adjournment, it is necessary to consider whether such a refusal itself amounted to or brought about a miscarriage of justice: cf. s. 689 (1) of the Criminal Code of Western Australia. In order to answer that question, it is necessary to look at the facts of the case as they may be taken to have been accepted by the jury and ask the question whether, to use one formula, any reasonable jury properly instructed must have convicted the accused on that material or, as it was put by Sir Wilfred Fullagar, did the accused really lose a chance of acquittal by the course of events of which he complains. Of course, there may be some cases in which it may be concluded that had counsel conducted the defence the jury may have been less likely to have believed the case made by the prosecutrix but I cannot think that this is such a case. As I have said, the material against the applicant was very strong indeed. His endeavour to explain away the incriminating physical facts by the suggestion of earlier consensual intercourse lacks credibiliity. It depends only on his own statement and his failure to endeavour to obtain admissions of his assertion from the prosecutrix, so far from being explicable by inexperience, is to my mind eloquent of the lack of truth in the assertion.

The majority of the Court of Criminal Appeal thought that there had been no miscarriage. The learned Chief Justice thought that the refusal of the adjournment itself worked a miscarriage but with this conclusion, with due respect, I am unable to agree.

This is an application for special leave to appeal against a decision of the Court of Criminal Appeal of Western Australia which by majority (Jones and Brinsden JJ., Burt C.J. dissenting) dismissed an appeal against conviction on two counts of rape and unlawful deprivation of liberty. The applicant was also convicted of assault, but no appeal is brought from that conviction.

The basis of this application for special leave is that the trial judge failed to exercise his discretion to adjourn the trial upon the applicant's request for an adjournment because he found himself without legal representation, and that this, together with other features of the trial due to the accused not having counsel, resulted in a miscarriage of justice (s. 689 (1), Criminal Code of Western Australia).

The circumstances surrounding the applicant's application for legal aid are confused because the evidence is contradictory. However, there is independent evidence to support the applicant's claim that he acted promptly to obtain legal aid. He was informed at 4.10 p.m. on the day before the day set for trial that legal aid had been refused and that counsel, who had appeared for him previously and whom he reasonably expected would appear for him on the trial, would not represent him.

On the day of the trial the applicant applied to the trial judge for an adjournment in order that he might obtain legal representation. He mentioned that he had a right of appeal against the decision not to grant him legal aid and that he might approach his family for financial help.

The trial judge refused an adjournment because it was "imperative that justice be attended to swiftly, as swiftly as possible", that seven months had elapsed since the applicant had been charged, that the complainant was under considerable nervous stress and that both she and the other witnesses had been brought to the court on three occasions. The trial judge then proceeded with the applicant conducting his own defence.

In considering this application the question before us, as before the Court of Criminal Appeal, is not merely whether or not an adjournment should have been granted but whether the refusal to grant an adjournment resulted in a miscarriage of justice (s. 689 (1)).

Although I am in agreement with what the Privy Council said in the case of Galos Hired v. The King [9] , concerning "The importance of persons accused of a serious crime having the advantage of counsel to assist them before the courts", an accused in Australia does not have a right to present his case by counsel provided at public expense. However, he does have a right to apply for legal aid under statutory procedures and the importance of obtaining legal aid cannot be over-estimated - see Lord Parker C.J. in Reg. v. Howes [1] . Here the applicant had applied for legal aid under s. 36 (1) of the Legal Aid Commission Act, 1976. However, due to circumstances outside the knowledge and control of the accused his application only came before the Committee in time to be considered on the day preceding the day of the trial. The accused did not have time to pursue the procedures for review given to him under ss. 48 and 49 of the Legal Aid Commission Act. Nor had he applied to his family for legal assistance as he had been under the misapprehension until the evening before the trial that he would be granted legal aid.

[1944] A.C. 149, at p. 155. 2. [1964] 2 Q.B. 459, at p. 463.

The trial judge in considering an application for an adjournment of a trial is called upon to exercise a judicial discretion. "The judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a very different matter." (Reg. v. Cox [2] .) Although I appreciate the importance of the factors which led the trial judge in the present case to refuse an adjournment, I am of the opinion that he failed to attach sufficient importance to the desirability of the accused's case in answer to a very serious charge being presented by counsel. The importance of representation by counsel or solicitor in a serious criminal charge cannot be too highly stressed. Had the trial judge recognized its importance he would have perceived that the applicant should have been allowed to pursue all avenues of obtaining legal aid to their conclusion. The factors called in aid by his Honour were not so overwhelming as to require that the trial should proceed without the accused having the benefit of counsel. Here the accused himself had not been slow to pursue his rights; it was not suggested that the responsibility for seven months' delay rested with the applicant.

In defence of the trial judge I should repeat what Burt C.J. said in the Court of Criminal Appeal: " in this case many of the facts now appearing to us were not known to the trial judge as no doubt they would have been if counsel having decided not to act had appeared before his Honour and explained the circumstances to him." But the fact remains that the adjournment should have been granted; the applicant should not have been forced on with very little opportunity given to him to prepare personally the conduct of his defence.

It was conceded by the applicant's counsel that he had to show something more than that the adjournment was wrongly refused in order to make out a miscarriage of justice and thereby bring the case within s. 689 (1). What needs to be shown in circumstances such as the present in order to constitute a miscarriage has been exemplified in the cases. If the appellate court finds that the course of the proceedings has deprived the accused of a prospect or chance of acquittal then a miscarriage has occurred. Or to express the same thought in another way, the conviction will be set aside if the appellate court entertains a doubt as to the accused's guilt (see Reg. v. Beadle [3] ; Reg. v. Howes [4] ).

(1979) 21 S.A.S.R. 67, at p. 70. 2. [1964] 2 Q.B., at p. 466.

On one reading of the cases an accused who makes no attempt to present his defence at the trial may be thought to have a better chance of securing a new trial than an accused who presents his defence and does so creditably, though unsuccessfully. Certainly in some of the cases attention is given to the manner in which the accused conducts his defence. But I do not think that this attention indicates that the calibre of the accused's forensic performance is a critical factor in the making of the decision. The question is primarily to be resolved by looking to the nature and strength of the Crown case and the nature of the defence which is made to it. If the Crown case is overwhelming then the absence of counsel cannot be said to have deprived the accused of a prospect of acquittal. If the accused in such a case has presented his defence with skill, that may constitute some confirmation that conviction was inevitable in any event. But if the Crown case is less than overwhelming I have some difficulty in perceiving how in general the conduct of the case by an accused who is without legal qualification and experience can demonstrate that, even with the benefit of counsel, he had no prospect of an acquittal. How is it to be said, for example, that cross-examination of Crown witnesses by counsel would not have been more effective?

This brings me to the point which in my view is fatal to the present application. As I read the judgment of Brinsden J. (with whom Jones J. agreed) in the Court below, the majority accepted and applied the principle as I have stated it. They held that it had not been shown that there was a possibility that injustice resulted. Brinsden J. did refer to the skill with which the applicant conducted his case, but I do not regard this as indicating the application of an erroneous principle or test. The consequence is that the application does not raise any question as to the existence of a general principle of law.

The substantial question raised for decision is whether the majority were right in holding that there was no possibility of injustice resulting, or, as I would put it, whether the applicant was deprived of a prospect of acquittal. The Court of Criminal Appeal held against the applicant on this issue, being of opinion that there was no doubt as to the correctness of his convictions. I am not persuaded that they were wrong in this respect. But in any event, I cannot see enough in this question to warrant the grant of special leave.

Every accused person has the right to a fair trial, a right which is not in the slightest diminished by the strength of the prosecution's evidence and includes the right to counsel in all serious cases. This right should not depend on whether an accused can afford counsel. Where the kind of trial a person receives depends on the amount of money he or she has, there is no equal justice.

Mr. McInnis was convicted on 20th October 1978 of rape and unlawful restraint after a trial by jury in the Supreme Court of Western Australia at which he was unrepresented. He was liable to a maximum sentence of imprisonment for life and was sentenced to six years. He claims that his convictions were a miscarriage of justice (see s. 689 (1) of the Criminal Code of Western Australia, (as amended) because, although he requested an adjournment on finding himself without legal representation, the judge ordered his trial to proceed. His appeal to the Court of Criminal Appeal was dismissed (Jones and Brinsden JJ., Burt C.J. dissenting).

Mr. McInnis was too poor to afford legal assistance. While he was in prison awaiting the committal proceedings, Mr. Singleton, a barrister and solicitor, arranged for him to lodge an application for legal aid, nominating Mr. Singleton as counsel. He appeared for Mr. McInnis on an unsuccessful bail application, arranged for another practitioner to appear for him at the committal proceedings, which ended on 7th June 1978, and then appeared for him in the Supreme Court in August 1978 and requested an adjournment. The trial was adjourned to be heard in the September sittings but was not reached and was ultimately fixed for 18th October. Several weeks before the trial date, Mr. Singleton told Mr. McInnis that his legal aid application had been lost or misplaced and asked him to send a second application which he promptly did, also nominating Mr. Singleton as his counsel. Mr. Singleton visited Mr. McInnis a few days before the trial and briefly discussed some details of his defence. The application did not reach the Legal Aid Commission until 17th October 1978, apparently because of Mr. Singleton's neglect. It was dealt with immediately and refused. Late on that day, Mr. McInnis was given a message by a prison welfare officer that Mr. Singleton would not represent him at the trial the following day. Until that time Mr. McInnis believed that Mr. Singleton would represent him in the conduct of his defence.

Mr. Singleton spoke to Mr. McInnis at the Supreme Court on the morning of 18th October 1978, and advised him to make lack of representation the basis of an application for an adjournment. Mr. McInnis then asked the presiding judge for an adjournment so that he might apply for reconsideration of his application to the Legal Aid Commission (see ss. 48 and 49 of the Legal Aid Commission Act, 1976). He also informed the judge that (anticipating legal aid) he had not tried to obtain money from his family to pay for private assistance.

Crown counsel opposed the application, submitting that the applicant had no prospect of obtaining finance for his defence, that nothing could be gained by an adjournment and emphasizing the distress which would be caused to the complainant if there were another adjournment. The trial judge, taking into consideration the time since the alleged offence (7th March 1978) and the complainant's nervous condition, declined to adjourn the trial. As Burt C.J. pointed out, the trial judge was not made aware of facts which showed that Mr. McInnis' lack of representation was not his fault. He allowed Mr. McInnis about half an hour to read a copy of the depositions of the committal proceedings and then the trial commenced. Mr. McInnis was thus forced to trial unrepresented.

Mr. McInnis claims that he was distressed at the prospect of having to fight his own case, that he had never represented himself previously at a trial and that he had little understanding of the rules of evidence, the techniques of cross-examination or the correct way to present his defence. He claims that he did not have time to arrange his thoughts about presentation of his defence; that he had not had the opportunity to speak to or subpoena any witnesses, prepare any questions or consider whether he should give evidence; that during the trial he found the proceedings confusing and had difficulty in trying to correlate his questioning of Crown witnesses with his defence and that he had only a quarter of an hour after the close of his defence to attempt to formulate his address to the jury. He claimed that his defence was not adequately presented.

Mr. McInnis was in a far worse position that if he had known all along that he would have to conduct his own defence. It is daunting for most persons to be on trial and have to make a statement or give evidence; it must be overwhelming to attempt also to cross-examine, address a jury, and use other forensic skills. These difficulties would be increased by an accused's sudden necessity to conduct his own defence. Mr. Singleton was available for the trial and his only reason for returning the brief was that there was no assurance that his fees would be paid. The trial was not expected to be, and was not lengthy. There may be some excuse for Mr. Singleton's behaviour (which does not appear to be consistent with the standards of his profession), but it did not appear in the affidavit made by him which was filed in this Court.

A practical solution may have been for the judge to ask Mr. Singleton to continue to represent Mr. McInnis to avoid both the public inconvenience which would arise if the trial were not to proceed and the injustice to Mr. McInnis if it were. Any lawyer, conscious of his responsibility as a member of a profession which has exclusive rights to represent others in court and has high ethical standards of public service, would not have refused. If he did refuse, then the judge should have adjourned the case and refused to allow it to continue until Mr. McInnis had been provided with adequate representation.

The Crown contended that the case concerns the exercise of a trial judge's discretion and was not special. To accept that is to brush aside the accused's fundamental right to a fair trial.

Right to counsel. The right to counsel derives from the disadvantage of being unrepresented in a judicial system which claims to dispense equal justice in accordance with the rule of law. Whatever the position in minor cases may be, it is fundamental to the administration of justice in serious cases (which undoubtedly include rape) that an accused has the right to legal representation, even if he has no means to engage counsel. Counsel is necessary for the protection of an accused and desirable for assistance to a court in the administration of justice. It is no longer tolerable that persons accused of serious crime who are too poor to pay for legal representation can be forced to trial without representation.

The disadvantage, at least in serious cases, of being unrepresented is widely recognized. In Powell v. Alabama [5] Sutherland J., delivering the Court's judgment, said:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. 1. (1932) 287 U.S. 45, at pp. 68-69 [77 Law Ed. 158, at p. 170].

In Johnson v. Zerbst [6] , Black J. for the Court, stated that the right to assistance of counsel is "necessary to insure fundamental human rights of life and liberty". In Betts v. Brady [7] a minority considered that the right to counsel extended to trials in State courts. Black J. (dissenting, with the concurrence of Douglas and Murphy JJ.) said [8] :

Denial to the poor of the request for counsel in proceedings based on charges of serious crime has long been regarded as shocking to the "universal sense of justice" throughout this country. In 1854, for example, the Supreme Court of Indiana said: "It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be debarred of counsel because he was too poor to employ such aid. No Court could be respected, or respect itself, to sit and hear such a trial. The defence of the poor, in such cases, is a duty resting somewhere, which will be at once conceded as essential to the accused, to the Court, and to the public." Webb v. Baird [9] . And most of the other States have shown their agreement by constitutional provisions, statutes, or established practice judicially approved, which assure that no man shall be deprived of counsel merely because of his poverty. Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law. This dissenting view was accepted in Gideon v. Wainwright [10] in which the right to counsel in all serious cases was affirmed. It was extended in Argersinger v. Hamlin [11] to all cases in which the defendant may be imprisoned. 1. (1938) 304 U.S. 458, at p. 462 [82 Law Ed. 1461, at p. 1465]. 2. (1942) 316 U.S. 455 [86 Law Ed. 1595]. 3. (1942) 316 U.S., at pp. 476-477 [86 Law Ed., at p. 1609]. 4. (1854) 6 Ind. 13, at p. 18. 5. (1963) 372 U.S. 335 [9 Law Ed. 2d 799]. 6. (1971) 407 U.S. 25 [32 Law Ed. 2d. 530].

reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. 1. (1963) 372 U.S., at p. 344. [9 Law Ed. 2d, at p. 805].

Although in the United States the decisions have a constitutional basis, the principle is fundamental to the administration of justice in a civilized society. The requirements of due process and equal protection of the laws are basic to the operation of our criminal justice system. Any significant departure from these standards is a miscarriage of justice. Putting an accused to trial in a serious case without a lawyer is "barbarous" (see William O. Douglas, The Great Rights: The Bill of Rights is Not Enough (1963), p. 151).

The Ontario Court of Appeal regarded "as self-evident, the proposition that a person charged with a serious offence is under a grave disadvantage if he is, for any reason, deprived of the assistance of competent counsel" (see Reg. v. Littlejohn and Tirabasso [13] ; see also Re White and the Queen [14] ; Barrette v. The Queen [15] ).

(1978) 41 C.C.C. (2d) 161, at p. 173. 2. (1976) 73 D.L.R. (3d) 275. 3. (1976) 68 D.L.R. (3d) 260.

The International Bill of Human Rights in Art. 14 (3) of the International Covenant on Civil and Political Rights provides:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(d) to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

"The interests of justice" require the assistance of counsel at trials on all serious charges. Australia signed the Covenant on 12th December 1972 but has not yet ratified it. It includes undertakings by each party to it to respect and ensure to all individuals within its territory the rights recognized in it; to take the necessary steps in accordance with its constitutional processes to adopt such legislative or other measures as may be necessary to give effect to these rights; and to ensure that any person shall have an effective remedy for violation of such rights, notwithstanding that the violation has been committed by persons acting in an official capacity (Art. 2).

A realistic assessment of the development of English common law does not reveal any strong tendency to increase an accused's rights and, in particular, an indigent accused's right to counsel. Galos Hired v. The King [16] is an exception in which the Privy Council, setting aside a judgment where the accused was unrepresented because his counsel was prevented by wartime conditions from reaching the appeal court, said [17] :

The importance of persons accused of a serious crime having the advantage of counsel to assist them before the courts cannot be doubted by anybody who remembers the long struggle which took place in this country and which ultimately resulted in such persons having the right to be represented by counsel: see Holdsworth, History of English Law, vol. IX, p. 226 et seq. The struggle was one to overcome judge-made rules which deprived all accused of treason or felony of the right to counsel. Parliament abrogated these judicial inventions and allowed the right. The right is an empty one, however, if courts force accused to trial unrepresented because counsel refuse or neglect to represent the accused (because of poverty, or other reasons). 1. [1944] A.C. 149. 2. [1944] A.C., at p. 155.

In Mary Kingston [18] the defendant was charged with receiving. She briefed counsel who, without her fault, did not appear. The Crown prosecutor properly suggested that the trial judge appoint counsel for her or adjourn the trial. The judge rejected the suggestions, ordered the trial to proceed and, during it, informed her of her procedural rights. In an example of rare courage in the face of injustice, she declined to take any part in the trial. The Court of Appeal "not without considerable hesitation" did what should have been done in a civilized society without any hesitation, that is, quashed the conviction. Reg. v. Beadle [19] is a similar case. They are exceptions. In numerous cases in England and those following the English tradition, courts have declined to set aside the conviction of an accused who was unrepresented without his fault. In these cases, the appellate courts considered there was no miscarriage because the accused handled his own defence adequately and (in the appellate court's opinion) was clearly guilty (see, e.g., Reg. v. Howes [20] ).

(1948) 32 Cr. App. R. 183. 2. (1979) 21 S.A.S.R. 67. 3. [1964] 2 Q.B. 459.

In my opinion, the English cases should not be followed. The notion that an unrepresented accused can defend himself adequately goes against experience in all but the rarest cases. Even an experienced lawyer would be regarded as foolish to represent himself if accused of serious crime.

In every jury trial, the Crown is represented by counsel to present its case dispassionately. A represented accused has the same advantage. When an accused is unrepresented, he is disadvantaged, not merely because almost always he lacks the knowledge and skills of a professional advocate but also because there is a profound difference between the conduct of a case by an accused and its conduct by an advocate. No matter how skilled an accused, this difference cannot be erased; it is founded on the different roles of an accused and an advocate. It appears in the cross-examination of a witness whose version of the events conflicts with that of the accused. It is also manifest in the address to the jury: an accused cannot really assume the role of a dispassionate advocate who may compare the various parts of the evidence, including the accused's, put alternative conflicting propositions, and advance arguments that, although on the evidence the accused is probably guilty, he is not guilty beyond reasonable doubt. In practice, this can not be done by the accused who is forced simply to maintain his innocence, otherwise he risks destroying his credibility. Thus, the involved accused is pitted against the dispassionate prosecution advocate.

In the light of the accepted wisdom that counsel is essential in serious cases, it is unrealistic to compare the performance of an accused with the hypothetical performance of counsel. What difference should it have made if Mary Kingston had asked a few questions or tried to put her defence to the jury? How can one decide from the record whether testimony, which remained intact despite the accused's cross-examination, would have done so if the cross-examination were by skilled counsel? The embarrassment to the judicial system of an unrepresented accused's conviction is too easily overcome by acceptance of an assessment that the accused handled his case as well as counsel could have done. The lesson to be drawn from the English and Australian cases is that an accused, in similar circumstances to Mr. McInnis, should like Mary Kingston, refuse to participate in the trial; he should not by his participation give an air of legitimacy to proceedings which are a denial of justice.

In his defence, Mr. McInnis advanced a version of the events which contradicted the complainant's. He failed to put his version to her. He thus breached the rule stated by Lord Herschell in Browne v. Dunn [21] . This omission was criticized at the trial. It is an error easily made by a layman and occasionally by counsel. The trial judge directed that it was significant on the question of whether the accused should be believed. He also interrupted Mr. McInnis' address to the jury, observing: "you are saying lots of irrelevant things". My assessment is that Mr. McInnis defended himself to the standard to be expected of a non-lawyer.

A futher ground in the English cases for affirming a conviction is the strength of the evidence against an accused. However, it is unsound to judge the strength of the evidence against him and the weakness of the defence from a trial at which he was unrepresented. How can an appellate court assess what would have happened if the accused had been represented? Further, the fact that an appellate court is satisfied that the accused is guilty is irrelevant to this question. If it has any reasonable doubt of his guilt, then, irrespective of whether or not he had a fair trial, the conviction should not stand (see Ratten v. The Queen [22] ). Introduction of new standards of guilt (for example, that the conviction of an unrepresented accused will be set aside if there is "the slightest doubt" of his guilt, see Reg. v. Howes [23] ) will, if these standards differ from the reasonable doubt standard, only confuse the criminal law. If they do not differ, they add nothing. The theme of these cases is that if, on an assessment of the record, the appellate court thinks the accused is so guilty that it would not have made any difference whether he was defended professionally then the conviction will stand. From this theme, it follows that because the appellate court is satisfied of the accused's guilt, it is immaterial whether he had a fair trial. I find this unacceptable.

(1974) 131 C.L.R. 510. 2. [1964] 2 Q.B., at p. 466.

Suppose a person were convicted after a trial at which he was unrepresented because the judge arbitrarily refused to let his counsel appear for him or because his counsel died just before the trial began and the judge refused an adjournment. This would be a miscarriage of justice. No one would inquire about the strength of the prosecution's case or whether the accused defended himself competently. Why is this case essentially different when Mr. McInnis without his fault suddenly found himself without counsel whom he could not afford to pay? The crucial difference is the acceptance of unequal justice, unequal because it depends on an accused's financial circumstances. Crown counsel conceded that it is a rarity in Western Australia for a person who can afford it to go into a serious criminal case without counsel.

Legal Aid. Crown counsel informed us that the legal aid scheme operated by the State of Western Australia is insufficient to provide legal representation for all poor persons accused of serious crimes, that legal aid would not necessarily be granted even to a person being tried for murder, and that refusal of legal aid in cases such as the present is not exceptional. He said that the decision to refuse aid to Mr. McInnis was certainly not "so out of the ordinary that one would have expected a change on review. It is quite on the cards that a trial of this nature may occur without aid being granted". If that is so, the State systematically denies a basic human right.

Courts should not allow the integrity of the judicial process to be undermined by the financial exigencies of legal aid schemes. The threat to its integrity is real when legal aid administrators in Western Australia, and apparently elsewhere (see Reg. v. Beadle [24] ), can decide when an indigent accused will be aided and when he will not, and courts implement those decisions by forcing persons to trial without legal assistance although the interests of justice require (as is obvious in all serious cases) that legal assistance be provided. If a person on a serious charge, who desires legal assistance but is unable to afford it, is refused legal aid, a judge should not force him to undergo trial without counsel. If necessary, the trial should be postponed until legal assistance is provided, and in an extreme case, the accused, if not already on bail, should be granted bail.

Judge acting as counsel for an accused. The trial judge, when refusing the applicant's request for adjournment, said: "it will be my obligation to assist you as much as I can in the conduct of your defence". A judge's assistance to an unrepresented accused does not make up for lack of counsel. In an adversary system, it is not his function to assist one party. An attempt to do so generally serves only to gloss over procedural injustice; how can a judge assist effectively without having conferred with the accused and his witnesses in circumstances in which the accused has the protection of the confidentiality rule?

In the eighteenth century, the English common law denied representation in felonies and treasons but permitted it in misdemeanours. This was denounced by Blackstone: "For upon what face of reason can that assistance be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass?" (4 Comm. 355). In support of the common law, Coke relied on the ground that the court itself was counsel for the prisoner. In Powell v. Alabama, after referring to the Blackstone-Coke controversy, Sutherland J. (delivering the judgment of the Court) said [25] :

But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional. 1. (1932) 287 U.S., at p. 61 [77 Law Ed., at p. 166].

Special leave. This Court has been entrusted by s. 73 of the Constitution and by the Parliament (see s. 35 of the Judiciary Act 1903) with responsibility for the supervision of the Australian criminal justice system. It should insist that the minimum universal standards of justice be observed in our courts. References to miscarriage of justice in the Criminal Code of Western Australia and similar provision in other States should be read consistently with the universally accepted standards of human rights.

Often courts cannot remedy denial of human rights which occur outside the judicial system, but there is no excuse for tolerating it within the system. It is useless to pretend that the rule of law operates throughout Australia when a basic human right is denied in a State Supreme Court, its denial confirmed there on appeal, and then tolerated by this Court. The case is of general public importance because an indigent accused has been convicted of serious crimes after a trial which was unfair because he was denied representation and because such an unfair trial is not exceptional, at least in Western Australia.

Special leave should be granted. There has been a substantial miscarriage of justice. The appeal should be allowed, the convictions and sentences set aside and a new trial ordered.

I have had the advantage of reading the reasons for judgment prepared by the Chief Justice. I agree with those reasons and have nothing to add.

I would refuse special leave in this case, for the reasons given by Barwick C.J. I wish merely to add two observations. The first is the obvious one that the decision whether or not to grant an adjournment calls for the exercise of a judicial discretion on the part of the trial judge, in the exercise of which he must have regard to all the relevant circumstances. In my opinion, it cannot be said that that trial judge erred in the exercise of his discretion in the present case. The acute distress which previous adjournments had occasioned to the prosecutrix was a proper matter for the judge to take into account.

The second observation is to emphasize the point that my brother Barwick has made, namely, that the jurisdiction of the Court of Criminal Appeal to quash the verdict of a jury resides in the conclusion that there has been a miscarriage of justice. In a case such as the present, this requires that the appellate court review the course of the trial, the manner in which the accused conducted his defence, and the strength of the Crown case. Each case must turn on its own facts. A perusal of the transcript in this case leaves me in no doubt, not only of the strength of the Crown case to which Barwick C.J. has referred, but of the reasonably competent way in which the defence was conducted. I am unable to perceive any ground on which it can be said that the trial miscarried.

At a glance

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Before

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Judgment (71 paragraphs)

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