R v Bryers

Principles from Dietrich v The Queen

The judgment of Mason CJ and McHugh J in Dietrich v The Queen contains a summary of the common ground between their Honours' reasons and the reasons of Deane, Toohey and Gaudron JJ. Mason CJ and McHugh J held as follows: Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused. […] The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained. […] In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.
As recounted below, in determining Mr Bryers' application for a s 69(3) certificate I have found that he is "indigent", to adopt the High Court's terminology. It remains to be determined whether that status is "through no fault on his […] part" in the sense that that concept is employed by Mason CJ and McHugh J in the above passage from their judgment. See also Craig v South Australia (1995) 184 CLR 163; [1984] HCA 58. The issue of responsibility for indigence may in this case be narrowed by the circumstance that restraining orders against Mr Bryers, made on 17 June 2020 pursuant to the Proceeds of Crime Act 2002 (Cth), appear on their face to make it impossible for him to fund his legal defence privately.
A further issue that remains to be determined is whether "on all the circumstances of the particular case" and taking into account "the background of the accused", his trial will be rendered unfair if he is unrepresented or whether this case involves "exceptional circumstances" that avert that consequence. In making that assessment it will be necessary for the Court to exercise extreme care as the consequence of a misjudgement on this issue could be that the trial would proceed with Mr Bryers unrepresented, in the expectation that no unfairness would result to him, and that a different view might later be taken in the Court of Criminal Appeal or in the High Court, possibly resulting in the necessity to conduct a retrial over another six months - at enormous cost to the public.

Delay in resolving legal assistance for Mr Bryers

It has been noted earlier in these reasons that a representative of the CDPP served Mr Bryers with a copy of sub-s (3) of s 69 when he was committed, as required by the subsection. Mr Bryers duly applied to the Court for a certificate, by filing his notice of motion within the statutory time limit of 14 days. On 11 February 2022 Mr Bryers provided the CDPP with copies of the notice of motion and his supporting affidavit, to which was annexed a letter of 17 December 2021 from Legal Aid advising that his application for aid was refused. Legal Aid's letter explained, in numbers, why Mr Bryers' financial circumstances exceeded the criteria of eligibility. On 2 March 2022 Mr Bryers wrote to the CDPP to advise that he would not be in a position to enter a plea at the second listing of the indictment in this Court, on 4 March, because he was unable to fund legal representation for the purpose of being properly advised.
A solicitor in the CDPP's Sydney office, replied on 3 March 2022 in these terms: [You] do not appear to have exhausted avenues to obtain Legal Aid or other pro bono legal assistance, including by way of appealing Legal Aid's decision or otherwise applying to the Commonwealth Attorney-General for assistance by their special circumstances scheme. [A URL was provided for a webpage on which information about this scheme could be found].
This letter made no reference to the fact that the CDPP had served a copy of s 69(3) on Mr Bryers. It said nothing about whether a certificate under that subsection, if obtained from the Court, would be recognised by the Attorney-General as a sufficient basis for granting legal assistance. The Attorney-General's Department ought to have made it known to the CDPP that such a certificate would be of no consequence in determining whether Mr Bryers would receive Commonwealth legal financial assistance, as subsequent events have proved to be the case. That ought to have been communicated to the accused at the time of serving a copy of the subsection so that Mr Bryers' efforts and the time of the Court would not have been wasted on the application under s 69(3).
The solicitor's suggestion that Mr Bryers should seek pro bono legal assistance was unrealistic. At the date of this letter the CDPP's estimate of the trial duration was six to seven months. On my calculation, which a CDPP solicitor could as easily make, the value of legal representation by a solicitor and junior counsel for a trial of six months would be between $706,000 (at the rates allowed under Commonwealth legal assistance schemes) and at least $1.5 million (if privately funded). There would be no possibility of securing pro bono legal representation for such a long trial. A solicitor for public prosecutions ought not to hold out to a lay person who is facing very substantial criminal proceedings the illusory prospect of pro bono representation but should guide him towards a viable source of public funding.
The website to which the solicitor directed Mr Bryers appears to be another figment. It contains the following introduction, on a page entitled "Commonwealth Legal Financial Assistance" (emphasis added): The Attorney-General's Department administers a range of non-statutory and statutory legal financial assistance schemes. Each scheme has a different purpose, but all schemes are generally targeted towards helping people who could not otherwise afford to pay for their legal costs. […] The department cannot help people facing criminal charges in Australia or with legal matters under state or territory laws. For these matters, contact your local legal aid office or community legal centre.
A person such as Mr Bryers, seeking aid to defend criminal charges, would appear not to fall within any of the specific purpose schemes described on this Commonwealth Legal Financial Assistance website, leaving only the "Special Circumstances Scheme" for consideration. Following through to the page on which that scheme is outlined, the following introduction appears (emphasis added): Assistance under this scheme will only be granted in the most exceptional of circumstances. The department will not generally grant funding: to people who can meet their legal costs without incurring serious financial difficulty, or for costs incurred before an application is made.
The above introduction is uninformative and nothing that follows makes it any clearer. What would be regarded as "the most exceptional of circumstances"? For present purposes, would they include that the applicant faces a six-month trial on Commonwealth criminal charges, that all of his assets are restrained under the Proceeds of Crime Act 2002 (Cth) with no provision under that Act for release of funds for legal expenses, that an order under s 18(6) of the Act prohibits Mr Bryers from dealing with "any property acquired by [him] after the date of this order [17 July 2020] of a value of $5,000 or greater" and that, in the face of that order, it would be impossible for him to accumulate in a bank account - and expend from it - sufficient funds to brief trial counsel?
If this "scheme" permits, at all, Commonwealth public funding of criminal defence, it operates on a principle that runs counter to the law as declared by the High Court, yet no legislative warrant for doing so is cited. If the scheme applies to indigent accused persons it restricts eligibility for financial assistance to "the most exceptional of circumstances", whereas a trial judge is bound by the highest authority to stay the prosecution of an indigent accused who is not publicly funded unless "exceptional circumstances", in the opposite sense, prevail.
Further, according to a letter from the Attorney-General's Department considered below at [46], grants of legal assistance from the Department depend upon: availability of funds in any year, ensuring that funds are available for the most meritorious applications. Again, this pays no heed to the law declared by the High Court, 30 years ago, in a Commonwealth prosecution under the Customs Act 1901 (Cth). If limitations of available funds, or perceived priority of more "meritorious applications", should result in an impecunious accused being unfunded and unrepresented, the prosecution will be stayed if a trial without counsel would be unfair - as would usually be the case.
The CDPP solicitor with carriage of this prosecution has taken the view that the order under s 18(6) of the Proceeds of Crime Act is not significant to Mr Bryers' ability to secure legal representation. He wrote as follows on 20 September 2021: In relation to the $5,000 restriction, I note that we are aware of the restriction, and do not consider that it hinders your ability to obtain legal representation.
I characterise that proposition as unworldly. The letter of 20 September 2021 continued with an observation that "a similar restriction has not impeded the ability of your co-accused from obtaining legal representation". How that may be, I am unable to understand. But it is a matter of record that when I came to hear Mr Bryers' application for a certificate under s 69(3), on 17 June 2022, counsel instructed by the CDPP accepted in writing, that it is open to the Court on the material before it to certify under [the subsection] that the applicant is without adequate means to provide defence for himself and that it is desirable in the interests of justice that counsel be appointed for his defence.
I do not see why that could not have been frankly acknowledged to Mr Bryers in the CDPP's letter of 20 September 2021, instead of arguing the toss with him about the prima facie crippling financial effect of an order that prohibits him from accumulating and disposing of any more than $5,000. Nothing changed in Mr Bryers' circumstances between 20 September 2021 and 17 June 2022 except that he and the Court were put to the aggravation of a futile application under a subsection that has stood on the statute books unchanged for nearly 120 years and to which the Attorney-General's Department evidently attaches no significance.
On the Attorney-General's "Special Circumstances Scheme" webpage, after the introduction, a link is provided to the "Commonwealth Guidelines for Legal Financial Assistance 2012". That is a 47 page document of which a small part is concerned with criteria of eligibility for the "Special Circumstances Scheme". None of the criteria give any indication that the Scheme would be applicable to funding the defence of criminal charges, in any circumstances or for any applicant. I quote the relevant part in full, as follows: 3.10 The special circumstances scheme (1) The purpose of this scheme is to provide financial assistance for an entity involved in legal action in special circumstances. (2) Special circumstances include, but are not limited to, the following: (a) the entity could seek financial assistance under a statutory scheme, but the application of the legislation establishing the statutory scheme to the entity produces a result that is unintended, anomalous, inequitable or otherwise unacceptable in the particular circumstances; (b) legislation is proposed to deal with the circumstances of the entity, but it is appropriate to make a grant to the entity before the legislation is in force; (c) no scheme provides for financial assistance to the entity but the Attorney-General considers that there is a moral obligation on the Commonwealth to make a grant; (d) the following circumstances apply: (i) an individual receives a notice from the Secretary of the Department under subsection 39A(1) of the National Security Information (Criminal and Civil Proceedings) Act 2004; and (ii) the individual is not legally represented in the civil proceedings (as defined in that Act) to which the notice relates; and (iii) the individual has applied for a security clearance by the Department; and (iv) the Department has decided not to grant a security clearance to the individual, or not to give a security clearance to the individual at the level considered appropriate by the Secretary of the Department, in relation to the information to which the notice relates; (e) cases where an individual - who has a continuing connection with Australia - is being, or will be, prosecuted for a criminal offence overseas for which the individual may be punished by a term of imprisonment equal to or longer than 20 years, and the Attorney-General is satisfied that the exceptional circumstances of the case justify the provision of financial assistance by the Commonwealth.
Although cl 3.10(2) states that the list of "special circumstances" set out therein is not exhaustive, the guidelines do not suggest any qualification to the overarching statement with respect to all Commonwealth legal financial assistance schemes, quoted at [19] above, namely: "The department cannot help people facing criminal charges in Australia". The "Special Circumstances Scheme" webpage also provides a link to an application form. The form provides no additional information about eligibility for the scheme. In particular, it does not indicate that funding for criminal defence might be provided. The opening words of the form refer the reader to the Guidelines that I have extracted above: Before completing this application form, you should read the following documents to ensure you are eligible to apply for financial assistance (available on the department's website at www.ag.gov.au): • Commonwealth Guidelines for Legal Financial Assistance 2012 • Commonwealth Legal Financial Assistance - Assessment of Costs 2012
Mr Bryers responded to the CDPP solicitor's letter of 3 March 2002 (see [16] above) on the same day. Referring to the service upon him of a copy of s 69(3) on 7 December 2021, he wrote this: In relation to the application of the special circumstances [scheme administered by the Commonwealth Attorney-General] I was not aware of that option and understood from your office's earlier advice in December that my motion to the Court was the appropriate course of action. The CDPP solicitor replied in these terms: [With] respect to our correspondence from December, for clarity, that was not advice, but rather what was required by s 69(3) of the Judiciary Act 1903 (Cth).
A CDPP solicitor cannot advise an accused person on the law pertaining to the charge or on the accused's response to it. There is no ethical or professional impediment to informing an accused how financial assistance for legal representation might be obtained. The reply quoted above demonstrates the futility of the CDPP merely going through the motions of serving a copy of s 69(3), apparently not knowing or being in a position to warn that a certificate under the subsection will not be given any substantive effect by the Attorney-General's Department. Mr Bryers must have been left in a state of abject confusion. He was given notice of the subsection as if it was meant to be taken seriously. He followed it to the letter. He was then directed by the CDPP to three dead ends - pro bono assistance, an appeal to Legal Aid's review committee, a Special Circumstances Scheme of the Attorney-General's Department that on its face does not apply. Lastly, he was told that he had been provided with a copy of the subsection for no better reason than that the Judiciary Act required he be given it, with no information as to whether obtaining a certificate would have any - and, if so, what - practical effect towards securing legal financial assistance.
As recorded in R v Bryers (No 1) at [8], on 4 March 2022 when Mr Bryers' notice of motion was first listed before me I requested that the Australian Government Solicitor be informed of the application because it concerned an issue affecting Commonwealth expenditure rather than an issue within the prosecutorial responsibility of the CDPP. If the Commonwealth, in any of its manifestations, wished to test Mr Bryers' claim of impecuniosity, the appropriate Commonwealth representative would have to have taken an active part in the hearing of the notice of motion. The Court could not conduct an inquiry into Mr Bryers' financial affairs without the assistance of a contradictor to subpoena additional records, cross-examine Mr Bryers and so on.
The CDPP duly notified the Attorney-General's Department, on whose behalf Ms Susan Davis, Principal Legal Officer, Legal Financial Assistance Casework responded by email of 22 March 2022, in these terms: I confirm that we do not intend appearing in the matter. Should the Court issue a certificate under section 69(3) of the Judiciary Act 1903 (Cth) Mr Bryers will be eligible to make an application for legal financial assistance. Information on applying is available at [the URL for Commonwealth legal financial assistance was provided].
Contrary to the above response, subsequent examination of the Commonwealth legal financial assistance website reveals no stipulation that a certificate issued under s 69(3) would confer eligibility under any of the assistance schemes administered by the Attorney-General's Department. The Court was informed of Ms Davis' response on 11 April 2022. As no representative of the Commonwealth proposed to test Mr Bryers' evidence of financial circumstances, I required him to pursue his appeal to the Legal Aid review committee. I had hoped that this might result in closer examination of his means and consideration of the effects upon him of the Proceeds of Crime Act restraining orders. I regret that, in retrospect, requiring that the appeal be pursued only delayed proceedings on the notice of motion and put Mr Bryers to further wasted effort. His appeal to the review committee was rejected. The Crown prosecutor then made the concession noted at [25] above and I issued the certificate.
When the certificate was granted, the prosecutor caused the Attorney-General's Department to be informed promptly. Mr Bryers became unwell and was convalescing until early July. He then obtained a costs estimate from the firm of solicitors whom he wished to instruct, Nyman Gibbs Miralis, on about 2 August 2022 - as required by the Commonwealth legal financial assistance application form. He informed the Court at the next directions hearing in the prosecution proceedings, on 26 August 2022, that on 2 August he had lodged his application for legal assistance with the Attorney-General's Department. Mr Bryers stated, without contradiction, that in the week commencing 22 August he emailed the Attorney-General's Department on three occasions to ascertain progress with his application but received: absolutely no response apart from saying that it is under consideration.
On 26 August 2022 Mr Bryers advised the Court that he had been informed of a conversation between the CDPP solicitor with carriage and a lady named Angela in the Attorney-General's Department, in which Angela asserted that Mr Bryers' application was incomplete and that the estimated usual response time of 28 days had not commenced to run. Mr Bryers had not up to that time been told by the Attorney-General's Department that there was any deficiency in his application. He telephoned the Department at 5:00pm on 25 August 2022 to express his frustration concerning the lack of response to his inquiries and concerning the belated assertion of a defect in his application. When Mr Bryers brought this history to the attention of the Court on 26 August 2022, I was informed by the Crown prosecutor that at that date the Attorney-General's Department was "still considering whether the application was complete and, therefore, whether the 28 day period is engaged". The Court is driven to question how long that could possibly take.
At this point in the directions hearing I informed prosecuting counsel that the timeframe had become critical for Mr Bryers and I requested that the Attorney-General's Department be asked to expedite consideration of his legal assistance application. I made the following observations: We are running out of time. It is really in the hands of the Commonwealth between the various authorities. As you know, by the High Court's decision in Dietrich v [The Queen], my hands are completely tied. If there isn't representation and that lack of representation is not through fault of the accused, then the trial against them just can't proceed, so this is in the hands of the Commonwealth. […] I am getting a bit concerned because the Court has a judge assigned to this case, a court assigned to this case, jury summonses will go out and so on for a four to six month trial commencing on 23 January. If it can't happen on that date, then there is a massive disruption to the attempts of this Court to run its criminal list, so we have to get it resolved. […] The Court, as you understand, tries to cooperate with the prosecuting authorities to make a judge, a courtroom and a jury available to resolve these things, but it needs in a case of this magnitude significant special effort on the part of the Commonwealth authorities themselves.
In accordance with my request, an Assistant Director in the office of the CDPP wrote to Ms Susan Davis, Principal Legal Officer, Legal Financial Assistance Casework in the Attorney-General's Department on 30 August 2022, as follows: [On 26 August 2022] Fagan J asked that the Crown convey his concern that consideration of [Mr Bryers' legal assistance application] by the Attorney-General has not yet been finalised, emphasising the following matters: the trial of Mr Bryers and his co-accused is fixed to commence on 23 January [2023], with a trial estimate of six to seven months; the Court has allocated significant public resources to preparation for trial commencement and will continue to do so in the coming months; a trial of the length and complexity of these proceedings requires significant preparatory work on the part of each accused's legal representatives (both solicitors and counsel), including to engage with the substantial volume of documentary material and to facilitate the completion of necessary legal argument in December 2022, ahead of empanelment of the jury in January [2023]. There are orders for pre-trial disclosure which create significant obligations on Mr Bryers which are due no later than 26 September 2022; it would be a significant impost on the Court if the trial were vacated by reason of the defendant not having obtained legal representation, or having obtained legal representation with insufficient time to adequately prepare for the matter; the present environment ofCovid-19 and associated illnesses has given rise to considerable delay in criminal trials before the Court and is likely to hamper the efficiency of the trial fixed to commence in January [2023]. These challenges make it imperative that each defendant's legal representation have sufficient time to prepare for the trial to commence as scheduled in January [2023].
The trial proceedings were again before me on 16 September 2022 for the purpose of reviewing the status of legal representation for Mr Bryers and for four of the other accused. Mr Bryers then read his affidavit sworn 9 September 2022, annexing recent correspondence to himself from the Attorney-General's Department. This had been sent after the CDPP's letter to the Department of 30 August. There was an email from the Department to Mr Bryers on 6 September 2022 requesting, by close of business on 8 September, a copy of Legal Aid's notification that his application for assistance was refused.
It is unsatisfactory that the Department should have been requesting this document from Mr Bryers after a delay of five weeks from lodgement of his application for legal financial assistance and nearly three months after the Court had issued the s 69(3) certificate. Legal Aid's letter was in the hands of another Commonwealth agency, the CDPP, from 11 February 2022 as an annexure to Mr Bryers' affidavit of 20 December 2021 in support of his motion. Not only could the Department have had the document in April; its representative could have questioned Mr Bryers about it on oath if any interest had been taken by the Department when the invitation to be heard on the notice of motion was extended.
It is surprising that the Department should be so dilatory regarding matters affecting Mr Bryers' legal representation, which is a matter critical to whether the prosecution of him can proceed. After all, it is a prosecution for alleged conspiracy to defraud the Commonwealth revenue of many millions of dollars.
Before Mr Bryers could respond to the email of 6 September 2022 he received a letter dated 7 September from another Principal Legal Officer in the Legal Financial Assistance Section of the Department, Ms Bridget Quayle. Ms Quayle recited that a certificate had been issued by the Court under s 69(3), quoted the subsection in full and continued as follows: You have deposed to the NSW Supreme Court that your application to the NSW Legal Aid was refused on 17 December 2021, notwithstanding that, and pursuant to subsection 69(3) of the Act, on behalf of the Attorney-General I have decided to refer your matter to Legal Aid NSW to provide your defence. Legal Aid NSW has been requested to reconsider whether or grant legal aid, in light of the s 69(3) certificate having been issued. Pending the outcome of the referral of your matter to Legal Aid NSW, the Attorney-General's Department will provide you with further advice in relation to your legal financial assistance application.
With all due respect, I am unable to understand what end can be served by the Department asking Legal Aid to consider, for the third time, Mr Bryers' eligibility for assistance under that body's criteria. His application has already been considered first by the Grants Division of Legal Aid and then by the review committee. His financial circumstances have not been altered by the issue of the s 69(3) certificate. As my judgment in R v Bryers (No 1) records, that certificate followed from an assessment at face value of the financial circumstances sworn to by Mr Bryers in his affidavit of 20 December 2021. The Department chose not to undertake any scrutiny of or challenge to Mr Bryers' information, despite having been given the opportunity to do so. Since 11 February 2022, when Mr Bryers provided to the CDPP his affidavit annexing Legal Aid's letter of refusal, the Commonwealth has been aware of the calculations by which his financial position exceeded the means test.
I conclude from the terms of Ms Quayle's letter of 7 September that the Court has been engaged in a solemn farce with respect to s 69(3) of the Judiciary Act. Commonwealth authorities have passively allowed the application to proceed and have ultimately conceded it while the Attorney-General, apparently, never intended to do anything more than refer Mr Bryers back to the starting point of the very large circle along which he has travelled. If it was the intention of the Attorney-General to take no action on the certificate beyond asking Legal Aid to reconsider Mr Bryers' request for assistance, that could have been done without a certificate and without allowing the Supreme Court to waste its time on the procedure. Given the circumstances in which the certificate was obtained, untested and unopposed, it is a merely formal document of no substance. It is the outcome of consent on the Commonwealth's part, or at least acquiescence. It cannot be expected to have any influence upon Legal Aid.
On 15 September 2022, Ms Quayle replied to the CDPP's letter of 30 August 2022. The reply included the following: I have referred this matter back to Legal Aid NSW to be reconsidered in light of the exceptional circumstances of a certificate having been issued under section 69(3) of the Judiciary Act 1903. Ms Hitter [Chief Executive Officer of Legal Aid] advised that Mr Bryers may make a further application to Legal Aid NSW if he considers that his personal circumstances have changed. This advice has been provided to Mr Bryers and the Attorney-General's Department continues to liaise with Legal Aid NSW on this matter.
I am not aware that Legal Aid would regard the s 69(3) certificate as "exceptional circumstances", especially as it was not the outcome of any Commonwealth forensic examination of Mr Bryers' affairs. The Court has had no indication from Mr Bryers during his appearances at recent directions hearings or from his affidavits that "he considers that his personal circumstances have changed". Consequently, the paragraph quoted above from Ms Quayle's letter appears to offer no prospect of legal funding.
A further paragraph of Ms Quayle's letter to the CDPP of 15 September 2022 is as follows: The department has also advised Mr Bryers that his application for legal financial assistance is under consideration. The Department is preparing advice for the decision-maker regarding Mr Bryers' eligibility under the relevant schemes in accordance with the Commonwealth Guidelines on Legal Financial Assistance 2012. Decisions in relation to any amounts of grant funding are made with regard to the Commonwealth Legal Financial Assistance - Assessment of Costs document and the availability of funds in any year, ensuring that funds are available for the most meritorious applications.
This is most unpromising of a solution from a Commonwealth legal financial assistance scheme. For reasons given above, Mr Bryers' requirement for funding of his criminal defence does not appear to fall within any of the statutory or non-statutory schemes. The fact that by the date of the above letter the Department had been in receipt of his application for six weeks, from 2 August 2022, and was only at that stage "preparing advice for the decision-maker regarding Mr Bryers' eligibility" suggests that no basis of eligibility can be found. Again, how long could this search possibly take?

At a glance

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