Solicitors:
Solicitor for the Commonwealth DPP
Mark Bryers - self represented
File Number(s): 2020/210541
[2]
Judgment [revised]
Mark Ronald Bryers is being prosecuted in this Court on an indictment filed by the Commonwealth Director of Public Prosecutions. He is charged jointly with several others on the following counts:
(1) Between about 1 July 2018 and about 21 July 2020 at Sydney in the State of New South Wales, the Gold Coast in the State of Queensland and elsewhere [he and other accused] did conspire with each other and divers others with the intention of dishonestly causing a loss to a third person, namely, the Commonwealth.
(2) Between about 1 July 2018 and about 21 July 2020 at Sydney in the State of New South Wales and the Gold Coast in the State of Queensland and elsewhere [he and other accused] did conspire with each other and divers others to deal with the money of a value of $1 million or more believing it to be proceeds of crime.
The first count is laid under s 135.4(3) of the Criminal Code (Cth) and the second count is laid under ss 11.5(1) and 400.3(1) of the Criminal Code. Mr Bryers was arraigned on those counts before me on 11 April 2022 and pleaded not guilty. Mr Bryers is unrepresented as he has been since he was first charged in 2020.
I have fixed the trial to commence on 23 January 2023. The Crown estimates it will occupy between six and seven months. That estimate was given on 4 March this year during a directions hearing. I have conducted interlocutory hearings and made directions to advance the trial preparation and to facilitate discussions between the Crown and the accused for the purpose of defining the likely trial duration more accurately. Six to seven months remains the current estimate.
R v Bryers [2022] NSWSC 1284 | Case summary | Zoe
Before the Court is a notice of motion filed by Mr Bryers on 20 December 2021 in which he has applied for orders as follows:
(1) to stay proceedings pending an appointment of legal representation;
(2) for the Court to urgently request the Attorney General of New South Wales to appoint legal representation, as chosen by [Mr Bryers]; and
(3) any other orders the Court deems appropriate.
The order sought in para 1 is claimed in reliance on the principles stated by the High Court in Dietrich v The Queen (1992) 177 CLR 292. I have adjourned further proceedings on that part of the notice of motion to Friday 26 August 2022 for the purpose of ascertaining in the meantime whether legal representation may be found for Mr Bryers as a result of the manner in which I will address para 2 of his notice of motion.
The order in para 2 is claimed under s 69(3) of the Judiciary Act 1903 (Cth), which is in these terms:
(3) Any person committed for trial for an offence against the laws of the Commonwealth may at any time within fourteen days after committal and before the jury is sworn apply to a Justice sitting other than in open court or to a Judge of the Supreme Court of a State for the appointment of counsel for his or her defence. If it be found to the satisfaction of the Justice or Judge that such person is without adequate means to provide defence for himself or herself, and that it is desirable in the interests of justice that such an appointment should be made, the Justice or Judge shall certify this to the Attorney-General, who may if he or she thinks fit thereupon cause arrangements to be made for the defence of the accused person or refer the matter to such legal aid authorities as the Attorney-General considers appropriate. Upon committal the person committed shall be supplied with a copy of this subsection.
Although Mr Bryers' notice of motion refers to the Attorney General of New South Wales, it is apparent from what has been argued before me and from consideration of all possibly relevant legislation and legal principles that s 69(3) is the section that he must be seeking to invoke.
Mr Bryers' application is supported by an affidavit sworn on 14 April 2022. The evidence in that affidavit is uncontested by the Crown. I had thought that the Commonwealth Solicitor's Office might wish to be heard on Mr Bryers' motion, as the claim for the relief under para 2 essentially concerns an economic matter rather than a prosecution matter, namely, the funding of his defence. However, the Court has been informed that there will be no appearance by the Commonwealth Solicitor on behalf of the Commonwealth Attorney General in relation to the notice of motion.
Mr Bryers' affidavit has satisfied me that he has a present income from consulting work that is variable, in the order of $1,500 to $2,000 per week. He has deposed to a schedule that forecasts his living expenses demonstrating that even on an income of $2,200 per week, if his consulting income can be expanded to that level, he would have a discretionary income, after covering living expenses including substantial rent, of only $149 per week.
Mr Bryers has deposed that his assets are subject to restraining orders made under the Proceeds of Crime Act 2002 (Cth). Those assets, according to Mr Bryers' evidence, are, in any event, modest and significantly exceeded by his liabilities. He has deposed to a net deficiency of slightly over $216,000. Even if there were net assets, having regard to their restraint and the absence of any provision in the Proceeds of Crime Act for assets to be released in order to fund legal expenses, his ownership of assets contributes nothing to his capacity to retain representation for his trial.
One would not need to know anything about usual levels of legal fees to understand that they certainly could not be funded for a trial on complex evidence concerning, effectively, a defrauding of the Commonwealth and handling of proceeds of crime, at anything like the amount of $149 per week.
Mr Bryers has applied to the Legal Aid Commission in New South Wales but on 17 December 2021 his application was refused. The letter notifying Mr Bryers of this explained that the Legal Aid Commission has calculated his "net assessable income" as $1,745 per week and that Legal Aid is made available only to persons with $400 or less per week. The process by which Legal Aid has made that calculation takes into account housing costs, for example, at the rate of $455 per week for Sydney residents. Mr Bryers has deposed to rental expense significantly in excess of that. I would regard it as judicially noticeable that $455 per week would be significantly below what would readily be obtainable in the way of reasonable rental accommodation in Sydney. In any event, substantial other recurrent expenses have been deposed to by Mr Bryers and, whatever assessment Legal Aid may make of them, they appear unsurprising and they are unchallenged. I accept that they leave him with the inadequate amount to which he has sworn. Mr Bryers appealed the decision of Legal Aid, but his appeal was rejected.
On this material I am satisfied within the meaning of s 69(3) that Mr Bryers is without adequate means to provide defence for himself. Section 69(3) appears to be an antiquated and inutile provision. The process whereby the Court is required to assess the adequacy of means in a situation like this, where neither the Commonwealth Director of Prosecutions representing the Crown nor the Australian Government Solicitor's Office representing the Attorney General is in a position to, or chooses to, provide any contradiction, leaves the Court trying to make an assessment merely on the basis of prima facie material. I have done the best that I can with that but the process of certification under the section is really quite meaningless. My review of Mr Bryers' affidavit and the conclusion that I have reached adds nothing to a process that could be much more expeditiously carried out by him simply submitting his representations directly to the Attorney General or to some other authority established for the purpose.
It is quite unnecessary and of no material benefit to any authority affected in the matter for the Court to be required to assess the means of a person being prosecuted before it in these circumstances and in this manner. Nevertheless, that is the nature of the provision and, subject to the limitations to which I have referred, I have arrived at the conclusion that Mr Bryers' means are inadequate.
The other matter I must be persuaded of before providing certification is that it is desirable in the interests of justice that the appointment of counsel should be made. This is a portion of the subsection that has been overtaken by legal developments. It is no longer a question of desirability. The High Court in Dietrich v The Queen made it perfectly clear that a trial judge is bound to stay proceedings in circumstances where the accused cannot afford legal representation, without fault on his own part. That has been clear as a matter of law throughout the Commonwealth since the High Court handed down that decision 30 years ago.
No additional step of reasoning or conclusion is required by the specified criterion of s 69(3), that it should be found desirable for him to have legal representation appointed. His trial simply cannot be permitted to go ahead, unless he does have such representation. It must be funded and provided, one way or another, or the proceeding must be stayed.
For these reasons I have issued the certification that s 69(3) envisages. The proceedings will continue against Mr Bryers for the time being as he is not, for the moment, required actually to take any step that would require legal representation, such that he could be fairly called upon to perform it. He is simply required to wait until the Crown fulfils the directions that I have made for clarification and greater particularisation of its case. When that has been done and when it is possible to see whether the estimate of six to seven months is accurate and how much of a burden the proceedings will place upon Mr Bryers individually, both in the further interlocutory stages up to 23 January next year and in the trial, then I will be able to determine whether the proceedings, including interlocutory steps, should be stayed.
It is for the purpose of making that assessment, in light of developments hereafter, that I have stood the balance of his notice of motion over until Friday, 26 August 2022.
[3]
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Decision last updated: 23 September 2022