R v East

SUPREME COURT OF QUEENSLAND

CITATION: R v East [2008] QCA 144

PARTIES: R / v / EAST, Neil Frank / (appellant)

FILE NO/S: CA No 168 of 2007 / DC No 319 of 2007

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Maroochydore

DELIVERED ON: 6 June 2008

DELIVERED AT: Brisbane

HEARING DATE: 8 April 2008

JUDGES: Keane JA, Fryberg and Lyons JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal allowedConvictions on both counts of the indictment set asideThere should be a new trial of both counts

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – OTHER MATTERS – where the trial judge granted counsel for the appellant leave to withdraw on the day before the date on which the trial was due to commence – where the application was granted without hearing submissions from the appellant – whether the trial judge erred in granting leave to withdraw without first hearing from the appellant / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – where counsel for the appellant was granted leave to withdraw on the day before the date on which the trial was due to commence – where the appellant applied for an adjournment to allow time to seek new representation – where the application for an adjournment was refused – whether the refusal of the adjournment by the trial judge resulted in a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – where during the course of the trial the appellant was removed from the courtroom during the testimony of various witnesses due to the appellant's disruptive behaviour – where upon return of the appellant to the courtroom the trial judge refused the appellant's request to call for cross-examination those witnesses whose evidence-in-chief was given in his absence – whether the refusal by the trial judge of the appellant's request to cross-examine certain witnesses resulted in a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where there were procedural irregularities in the conduct of the trial – whether these irregularities resulted in a substantial miscarriage of justice – whether there should be an application of the proviso set out under s 668E(1A) of the Criminal Code / Criminal Code Act 1899 (Qld), s 590AE, s 592, s 616, s 617, s 668E(1A) / AK v The State of Western Australia [2008] HCA 8, cited / Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2, applied / Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, applied / MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, applied / MWJ v The Queen (2005) 222 ALR 436; [2005] HCA 74, cited / Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, applied / Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533; [1940] HCA 2, applied / R v Couper (1985) 18 A Crim R 1, applied / R v Haringey Justices; ex parte DPP [1996] 1 All ER 828, cited / R v Henderson [1966] VR 41, applied / R v K; ex parte A-G (Qld) (2002) 132 A Crim R 108; [2002] QCA 260, applied / R v McMaster [1918] St R Qd 57, considered / R v Oliva (1965) 49 Cr App R 298, cited / R v Russell-Jones [1995] 3 All ER 239, cited / R v TQ (2007) 173 A Crim R 385; [2007] QCA 255, applied / The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38, considered / Wakeley and Bartling v The Queen (1990) 93 ALR 79; [1990] HCA 23, considered / Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited / Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6, applied

COUNSEL: D R Kent for the appellant / G P Long SC for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Commonwealth Director of Public Prosecutions for the respondent

KEANE JA: On 31 July 2007 the appellant was convicted upon the verdict of a jury of one count of defrauding the Commonwealth and one count of failing to disclose required information to his trustee in bankruptcy. The appellant was sentenced to three years imprisonment with a recognisance release order after 15 months in respect of the first count, and six months imprisonment in respect of count 2.

The appellant seeks to set aside his conviction on a number of grounds. His principal contentions are that he was forced to proceed to trial without legal representation against his wishes, and that during the trial he was excluded from the courtroom for some parts of the Crown case and was denied the right to cross-examine some Crown witnesses. He also contends that the two counts were wrongly joined on the indictment, the evidence in support of one count being inadmissible on the other count.

I shall discuss the arguments agitated on the appeal after first summarising the evidence in each side's case and the course of the trial insofar as it is relevant to these arguments. Because it is not contended that the evidence was not sufficient to support the jury's verdicts, it is, I think, sufficient to summarise the evidence very briefly.

The evidence

The Crown case in relation to the first count on the indictment was that between 1 July 1993 and 3 June 1999 the appellant received unemployment benefits described as the Newstart Allowance from the Commonwealth through its agency Centrelink when he was not entitled to these benefits because he was in fact engaged full time in the operation of four backpackers' hostels: the Federal Guesthouse in Bundaberg; the Workers and Divers Backpackers in Bundaberg; the Prince of Wales Backpackers in Bundaberg; and the White Lion Hotel complex in Maryborough. The Crown case was that the appellant made false representations about the circumstances of his employment in forms presented by him to Centrelink every 12 weeks or so. By these means, so it was alleged, he received $52,347.95 to which he was not entitled.

The Crown relied on documentary evidence and called a number of witnesses to establish that the appellant represented GSB Nominees Pty Ltd and Rushill Pty Ltd, the corporate owners of these operations, in relation to the leasing of the premises from which they were conducted and in relation to the conduct and financing of the businesses during the period 1993 to 1999. The appellant had been a director of one of these companies, GSB Nominees Pty Ltd, until resigning as a director on 22 June 1993. Thereafter, the directors were the appellant's then wife, Gayle Currie, and Ms Dianne Selby-Brown. The directors of Rushill Pty Ltd were Gayle Currie and Ms Selby-Brown.

The Crown also relied on the oral evidence of a number of witnesses who gave evidence that the appellant acted as the manager of these businesses and routinely described himself as such. One of these was a Ms Mandell with whom the appellant had had a sexual relationship while they had been working together. In the course of cross-examining Ms Mandell, the appellant tendered a statement by Ms Mandell which referred to offences allegedly committed by the appellant other than those the subject of the indictment.

Evidence was also given for the prosecution by Mr Moroney, a Centrelink investigating officer, who gave evidence that he was unable to locate in Centrelink's records any papers from the appellant concerning profit share arrangements between the appellant and the corporate owners of the backpacker hostel operations.

The appellant's case in relation to the first count on the indictment was that he was not engaged in full-time work relating to the backpacker operations. He agreed that he negotiated for occupancy rights and supplies for which he was to receive a 30 per cent profit share when the operations eventually produced a taxable profit. He said that he informed Centrelink of this arrangement. He said that the absence of any record with Centrelink was the result of poor record keeping on its part. He also said that the businesses had not paid, or been obliged to pay, him his profit share. He said that his duties in the backpacker operations were limited to working as a driver/cleaner early morning and late afternoon. As a result he was, he said, available to seek, and he was seeking, work in between these times of the day. He was obliged to accept that, in the six year period in question, he was unsuccessful in locating full-time work. He also accepted that he and his wife maintained control over the accounts and that the businesses were profitable.

The appellant relied upon a deed dated 29 November 1993 whereby GSB Nominees Pty Ltd agreed to pay him $75 per week together with a bonus equivalent to 30 per cent of taxable earnings not less than one month after a year of income. He also relied upon a written contract of employment dated 29 November 1993 between GSB Nominees Pty Ltd and himself. The appellant also put into evidence the till records from the White Lion Hotel which showed amounts of cash taken by various persons from the till. The appellant relied upon this document with a view to damaging the credibility of Ms Mandell by showing that she took money from the till. This document also showed that the appellant himself took substantial sums of cash from the till.

In relation to the second count on the indictment, the Crown case was that, in contravention of s 265(1)(ca) of the Bankruptcy Act 1966 (Cth), the appellant signed a statement of affairs in connection with his application to have himself declared bankrupt. It was alleged that the appellant did not, to the best of his knowledge and belief, fully and truly disclose to the trustee in bankruptcy the information required by the trustee concerning his conduct and examinable affairs. His statement of affairs was alleged to contain a number of false statements: it represented that he was unemployed when the truth was that he was fully employed; it represented that he was unmarried when, in truth, he was married to his wife Gayle Currie; it represented that he was employed by the Federal Guesthouse as a part-time driver/cleaner when, in truth, he was its full-time operator/manager; it represented that no other entity received a benefit as a result of his employment which was false in that GSB Nominees received benefits from his activities on its behalf; and it represented, falsely, that he had not been a director of any company during the previous 12 months, whereas he had been a director of GSB Nominees Pty Ltd in that period.

The appellant presented a debtor's petition for bankruptcy on 29 June 1994. He became bankrupt the following day. A statement of the appellant's affairs had been lodged in the office of the Registrar in Bankruptcy on 15 June 1994.

As to whether the incorrect statements in the appellant's statement of affairs were made with intent to defraud creditors (a matter of defence in respect of which the appellant bore the onus of proof), it was said by the prosecution that the misrepresentation of the appellant's relationship with Gayle Currie and GSB Nominees Pty Ltd was intended to deprive the trustee in bankruptcy of the opportunity to investigate whether there was any prospect of recovering something from those sources in the administration of the appellant's bankruptcy.

The appellant gave oral evidence that, to the extent that his answers in the statement of affairs may have been inaccurate, he was depressed at the time he prepared the document, and he had no intention to defraud creditors. He was, he said, separated from his wife although their marriage had not been legally dissolved. He described their relationship as a "marriage like relationship". He also asserted that the information he had provided was such that it would have sufficiently facilitated any enquiry by the trustee in bankruptcy to enable his association with Gayle Currie and GSB Nominees Pty Ltd to be discovered.

The course of the trial

The appellant had been on bail for three years by the time his matter came to trial in July 2007. The appellant had been committed for trial on 5 June 2006 and the indictment was presented on 30 August 2006.

The solicitor who had represented the appellant at the committal withdrew as the appellant's solicitor over a funding issue on 9 March 2007.

Another solicitor, Mr Murphy, was engaged by the appellant in late March 2007. Mr Murphy sought and obtained an adjournment of the trial then set for 16 April 2007. The learned trial judge acceded to this application and the matter was adjourned until 10 July 2007.

On 9 July 2007, the day before the date on which the trial was due to commence, Mr Murphy applied to the learned trial judge for leave to withdraw.

Mr Murphy's application for leave to withdraw was put on the footing that, six days prior to the date of the commencement of the trial, the appellant had raised a complaint with Mr Murphy and Mr Reid of Counsel expressing the view that the matter was not ready for trial. He expressed a lack of confidence in their ability properly to represent him. At that point, the appellant had had three conferences with Counsel in relation to the matter during May and June. Mr Murphy felt that he could not continue to act for the appellant, and immediately notified the prosecution and the court of his intention to apply to the court for leave to withdraw.

Without hearing from the appellant in relation to Mr Murphy's application, the learned trial judge granted Mr Murphy leave to withdraw as the appellant's solicitor.

His Honour then directed that the trial would commence on the following day. At this point, the appellant who was present in court protested about his lack of representation, and asked that the trial be adjourned to enable him to obtain competent representation. The appellant handed up to the learned trial judge an affidavit to which he had annexed a transcript of his last conversation with Mr Murphy during which he asserted that Mr Murphy had not prepared his case because necessary subpoenas had not been issued, necessary documents had not been obtained and relevant witnesses had not been marshalled. The appellant's affidavit showed that Mr Murphy had declined to act further for the appellant. It is apparent from the transcript that Mr Murphy, quite understandably, lost patience with the appellant's querulous concerns about matters which, by any objective measure, were irrelevant to the case and the appellant's assertion that the case had not been competently prepared. When Mr Murphy told the appellant that he would no longer act for the appellant, the appellant withdrew his assertion of incompetence. Understandably, Mr Murphy was not mollified.

In court on 9 July 2007, the appellant agreed that his relationship with Mr Murphy had broken down. The appellant also complained that the discovery given by the prosecution was deficient and, in particular, that of the 152 fortnightly returns which he provided to Centrelink during the period the subject of count 1, only four were available.

The prosecution resisted the appellant's application for an adjournment of the trial. As to the paucity of Centrelink forms, the prosecutor explained that Centrelink had "culled" the balance of the forms as part of its ordinary administrative processes. The prosecutor told the trial judge that the appellant had all the documents produced at the committal hearing which had occupied 13 days. The prosecution had 32 witnesses arranged to give evidence, one of whom was particularly old and frail. Coordinating these witnesses again would be difficult. The prosecutor submitted that the appellant's problem was of his own making.

In refusing the appellant's request for an adjournment, the judge noted that:

the appellant had been represented at a lengthy committal hearing in June 2006;

the indictment was presented in August 2006;

in December 2006, it was determined that the appellant and his co-accused, Gayle Currie, should be tried separately with the appellant to be tried at the first trial in the April sittings of the District Court at Maroochydore and with Currie to be tried at the first trial date in the June sittings of the court in order to accommodate the large number of witnesses involved;

the trial listed for April had been adjourned in March 2007. The appellant's then lawyers sought leave to withdraw because of an issue as to the funding of the defence. The appellant's trial was relisted for 10 July 2007 and Currie's trial had been relisted for 30 July 2007;

the appellant's current lawyers had been given leave to withdraw because of his expressions of a lack of confidence in them; and

the appellant "wants, apparently, to have Legal Aid brief some other lawyers who will prepare the case and run the case as he thinks it should be run and prepared."

His Honour concluded:

"I am not going to adjourn the trial. Two solicitors – three sets of legal advisors have already appeared for Mr East in this matter. The most recent legal advisors, Mr Murphy and Mr Reid, are experienced and competent criminal lawyers. The trial has now been set down on two occasions over at least a six-month period; the most recent setting down of the trial occurred in March when it was set down to commence today."

On the following morning, the appellant complained that the trial judge's refusal of the appellant's application for an adjournment was indicative of bias on his part. Accordingly, the appellant asked the learned trial judge to disqualify himself. This application was refused.

The learned trial judge was of the view that the matter was not so difficult that the appellant could not be assured of a fair trial without the benefit of legal representation. That appears from his Honour's report, pursuant to r 94 of the Criminal Practice Rules, his Honour said:

"Despite remarks made by Mr East throughout the trial which might suggest he was not in possession of all statements and transcripts from the committal it was apparent he was and that he thoroughly knew the content of all of it.

It was also apparent throughout the trial the he was quite capable of effectively conducting any defence that may have been available. He is not an unintelligent man.

The trial was prolonged by Mr East. On the occasion he was removed from the court whilst three witnesses gave evidence he had rendered and had continued to render the continuance of the trial in his presence impracticable. After each witness he was brought back into court and asked to allow the witness to give evidence in his presence but continued with his behaviour. This behaviour ceased when he realised that the fourth witness was a federal police officer called by the prosecution so Mr East could cross-examine him.

The following morning the trial adjourned for a couple of hours or thereabouts so Mr East could listen to the audio recording of the evidence for which he was absent. I refused to have the witnesses brought back for cross-examination. It was my view that their evidence in the context of the whole of the evidence to that point in the trial and in the light Mr East's behaviour leading to his absence did not compel that course."

Immediately after the jury had been empanelled, the appellant complained that he had "no documents regarding the case". The following exchange then occurred in the presence of the jury:

"HIS HONOUR: You have no what?

ACCUSED: My solicitor acting for me only just resigned yesterday, and I'm here today unrepresented. I am totally unqualified to represent myself, and I believe I'm being denied natural justice.

HIS HONOUR: Yes, well you've already said some of that already a number of times, Mr East.

ACCUSED: But I - I think the jury do need to understand that only yesterday I had a solicitor and he only just resigned, and you'll now force me on to represent myself, and I'm totally unprepared. I do not know what to do. I have no brief-----

HIS HONOUR: Mr East-----

ACCUSED: I have no exhibits, but nothing.

HIS HONOUR: Mr East, listen to me. Earlier this year your matter was set for trial. You had a solicitor then. That solicitor withdrew.

ACCUSED: Yesterday?

HIS HONOUR: No. Earlier this year.

ACCUSED: Yes.

HIS HONOUR: Mr Owens withdrew.

ACCUSED: That's correct. Because he wasn't able to represent me with the - he - he applied for 200 hours of Legal Aid-----

HIS HONOUR: Yes.

ACCUSED: -----and they denied him that, and they went and got another solicitor who accepted less, and that solicitor yesterday resigned because he wasn't prepared for this case. And I had put an application to you this morning asking you to stand down because you are biased with now my case, and now you are still continuing to proceed, and I believe I am being denied natural justice.

HIS HONOUR: Well, you're entitled to your belief, Mr East. Your solicitor, and barrister, who had been briefed to appear for you in this trial yesterday, sought leave to withdraw, and your solicitor told me certain things. You told me certain things. I have given them leave to withdraw, and I ruled that the trial would proceed today. It has been set to proceed today for three months now. I rule the trial will proceed today, and you could represent yourself. I'm quite satisfied you're capable of representing yourself in this matter. Your solicitor told me yesterday, that as far as he knew, you had all the documents in this trial. But if you wished to go to his office he would give you all the documents, or copies he had. I don't know whether you went to his office yesterday or not. But if you didn't, that was your choice.

ACCUSED: I then went to Legal Aid with those documents, and they then tried to get a solicitor yesterday to represent me here today-----

HIS HONOUR: Yes.

ACCUSED: -----but no-one was prepared to take the case up because of the amount of time. But normally they would take 200 hours reading, plus meetings before and after, but no-one-----

HIS HONOUR: Mr East, the trial is going to proceed-----

ACCUSED: That's fine.

HIS HONOUR: -----and you're going to represent yourself. Now, you've made your point in front of the jury. You've told the jury I'm biased, and you've told the jury you can't have a fair trial, and all the rest of it. You've said it a number of times. They've all heard it. There's no need to keep repeating it. The trial will proceed and you will represent yourself. I will give you what assistance I can throughout the trial to try and ensure you have a fair trial."

The appellant continued to complain about the failure of the prosecution to produce relevant documents. While the appellant's complaints in this regard were satisfactorily answered by the prosecution, it is not suggested that the appellant's refusal to be satisfied with the explanations proffered was indicative of a dishonest or cynical determination to frustrate the trial process.

After the prosecution case had been opened to the jury, the appellant asked to be allowed "to say something to the jury". The learned trial judge then said: "Well, yes, if you want to put your – tell the jury now what your case is, you may do so."

The appellant then addressed the jury in terms which involved a clear abuse of the opportunity which he had been afforded:

"Jury, obviously I've never done this before, and you heard me talk this morning, and I'm very inexperienced, but I made an application to the Courts - to the Judge - and it was an oral application and I made it quite clear that I do not seek to avoid a trial. I merely seek to have a fair trial, as is my right. I approached - this is a similar letter that I presented this morning, to the Judge. I approached Legal Aid Queensland yesterday after my solicitor resigned, and after the Judge ruled-----

HIS HONOUR: Mr East - what I'm allowing you to do is tell the jury what your case is. I'm not going to allow you to go on with this, what you're doing now. All right? You can tell them what your case is; what your defence to these allegations is. But that's the limit of it, at this point.

ACCUSED: Well, I'm unable to do that. I cannot represent-----

HIS HONOUR: You don't want to do that? All right.

ACCUSED: Well no, it's not that I don't want to. It's just that I'm unable to.

HIS HONOUR: Very well.

ACCUSED: I just wish to explain to the jury what's happening.

HIS HONOUR: No.

ACCUSED: I'm unrepresented-----

HIS HONOUR: Mr East - no.

ACCUSED: -----I'm asking for an adjournment.

HIS HONOUR: Sit down please. Sit down."

The court was then adjourned. On the following day, the appellant renewed his request to open the case for the defence to the jury. The learned trial judge acquiesced in this request. The following ensued:

"ACCUSED: Thank you, your Honour. Yesterday, I went away from the Court and I guess I had time to recollect what was happening with the events. It was quite obvious by listening to the way Frank presented the prosecution-----

HIS HONOUR: Call him Mr Walsh, please. You're not-----

ACCUSED: I'm sorry.

HIS HONOUR: -----good friends.

ACCUSED: Yes, Frank - sorry, Mr Walsh put the presentation to you outlining the prosecution's case, and I went away. And it was quite obvious setting down the way Mr Walsh has presented the prosecution's case, it makes it quite obvious it would be difficult for anyone to look at it from a distance and say that I was anything but guilty, because the evidence that's been presented by the prosecution in the format that they have done is very impressive from first observation, and I'd just like to make a little point, I guess, and that this is the problem that I have had from day one with the entire proceedings since I've been going through the committal hearings.

And I've been dealing with barristers and solicitors who, on the face of it, looking at the brief - because, what's happened is the brief is overwhelming. The documentation is overwhelming. It's overwhelming in that the amount of documentation that was taken by the DPP, it was taken from approximately five premises. They were premises that I was living in, or had lived in, and businesses that I was associated with. And the documentation was extreme in the least. And, from that, the DPP have gained a lot of information, but what's happened is the barristers that I've been dealing with from first observation, they have found it very overwhelming.

And it's not till they've actually been able to get inside it to actually understand what's happened here with my situation that they then begin to understand that, hey, there's more to this, and when they do fully and finally understand it, they realise that there has been a grave injustice done on my behalf, and that, unfortunately, to get to that stage, though, takes a lot of time, money and energy on their behalf to do that. And my problem I had in the early days is I defended myself with a representative who I, not knowing - because I've never been in front of a Court before, and I've never had to, you know, never been charged or anything. I mean I've had a couple of speeding fines, but that's about all.

And, so, the - oh, sorry. Yes, the amount of hours that were needed at the committal was - they were assigned 100 hours for reading. And they were assigned - there was a week's - a 10 - 10, 13 days trial. And so what happened is I went in to represent myself with an assistant who I thought could represent me, but wasn’t a barrister, and that first off, he got knocked back. So then I had to stand up and represent myself, and then we went through the process of getting legal aid, and they assisted. So, what's happened has been time delays because of these - you know, these issues. And, subsequently, from that, the committal hearing was held. My barrister did a good job. He did the - you know, I think it was roughly 10 days, and then, unfortunately, he quit being a barrister. No fault of anyone's own, but as time goes on, and he's got another job.

So I then went back, all the time remembering I'm - I've been - needed legal aid to assist me, because I'm not financial. I've - sorry, I'm going round and round. But I'm employed by a - I was employed by a foundation, was the President, and that finished in November last year and I've been unemployed since. So all the time I've been dependent on the – the government's assistant with, you know, representation. And, so, we - I went back to legal aid and they then assigned Mr Ken Owens, and he then proceeded to then try and find a barrister, and what happened was he - he put in a recommendation for 200 hours reading, and meetings before and after Court, because we're talking a two week trial. We're talking quite substantial. And, because of the time delay, you know, the lack of time in six weeks, the legal aid wanted two to three weeks to approve it, the 200 hours.

And it was six weeks before trial, so it was unfortunate. The man he wanted was Paul Smith in Brisbane, who's a very reputable barrister, and he came up with a figure of 200 hours. But, unfortunately, for him to be approved for the length of time - because as I've pointed out, the amount of files, documentation, you know that has been involved in this case is quite extreme. So he needed the full time to do the job correctly. And he was - Ken Owens was denied the representation by Paul Smith because they said it would take two or three weeks. They couldn’t approve it. And so Ken, not being able - in my best interest, had to resign as a solicitor.

I don’t know if you realise, with defendants, you have two people. You have the solicitor and a barrister. They had to do it together. They can't do it on their own. You can – you can't even really talk to the barrister. You’ve got to talk to the solicitor who talks to the barrister. And - but in trial, it's all the barrister doing the work, and basically he asks the-----

HIS HONOUR: Mr East, are you going to get to what your case is-----

ACCUSED: Yeah.

HIS HONOUR: -----or are you going to continue along this line?

ACCUSED: Yeah. Oh, sorry.

HIS HONOUR: What's your case? You see, what you're now trying to do-----

ACCUSED: Well, I'm coming to it. I'm sorry. I'm just trying to explain my situation, your Honour.

HIS HONOUR: What I gave you leave to do was to tell the jury what your case was, and you're not doing that. You're-----

ACCUSED: All right.

HIS HONOUR: -----going over and over this same material that you’ve gone over before.

ACCUSED: No. I'm just trying to explain why I'm representing myself, just - and that's fine. But the problem that we've had in the past, and why I'm not being represented. But I'll start on the case. What I'd like to do is I've realised that, as I said, from the - Mr Walsh's summary or presentation yesterday, it didn’t look very good. And I understand now that, by myself representing myself, I'm greatly disadvantaged, because I don’t know how to do it. I mean Mr Walsh has had over 30 years experience in the law practice I would imagine. I've had none. It's only what I've just learnt from going through all this, and - and of that, as you can appreciate not good.

I've been advised by a lot of people through the course. You know I've had barristers and solicitors. I've had, you know, the ex-wife, the - you know, the neighbour and everyone telling me - giving me advice. And, through all of this, I've tried to present myself or defend myself correctly, and I've never wanted not to, you know, have a trial, but all I've ever asked is to have a fair trial with the availability of all the documentation and all the facts known.

And, because of such a big case, it's been very difficult. So, I've realised that, for me to go through and do cross-examination of the witnesses that Mr Walsh is going to come up, I'm going to be pretty well slaughtered. I don’t know what I'm going to be doing. I don’t know how I'm going to do it. So I feel the best way I can talk to you and explain my situation, my case, is just tell you the truth on how it was; my situation, and, starting from the beginning. And by doing that now, I can, you know, outline all the facts. Because, once the cross-examination goes forth, the fact that I don’t have a barrister, or the skills of a barrister, I believe I'm going to be definitely disadvantaged.

So what I would like to do is just go through and explain to you my complete story and why I am here today now in front of you, and just show you my - my innocence."

The appellant then proceeded to explain the case for the defence to the jury at great length and in considerable detail. In the course of this opening, he returned to the theme of the deficiency of the documentary evidence bearing upon count 1. He said:

"Now, the problem with the - the real problem I've had with documents, it's very difficult to get a lot of them through the Court proceedings. I've tried to get a lot of documents and a lot of them haven't been forthcoming but we have certain documents, and one of them is a document showing that I was on a profit share and I will be presenting that to yourselves to show you that and I'll also be showing you that I had – I reported it with Centrelink and it's on their file.

Now, the problem is, they - Centrelink have reported it. They acknowledge that I rang claiming I earned 75 a week and a company gave me an option to participate in profit sharing and I wanted confirmation in writing as to how it would affect because profit is unknown. I told - this had been - they told me I would have to declare when received and I should take the papers in.

I went into Centrelink the same day and showed them the documentation which they acknowledge, along with other items of paper which - what else? I did the profit share. I showed them that, you know, that I was earning the $75. I will be presenting them a wage book that I've got showing that I earned $75 a week from the date of roughly November and I will be showing you that Centrelink have recorded that on their computer but they - the problem with Centrelink, we'll be showing you that up till '95, they didn't have any – they haven't got any documentation stored so prior to '95, they don't have any documentation stored and from '95 to - well, prior to '97, they'll be showing that they had a problem with Centrelink with procedures and that they brought out a program or a - yes, a program in '97 called, "Getting it Right", and you'll be hearing from witnesses that are presented to you about that.

Mr Moroney will be coming up, the ARO with Centrelink and they will say - well, he will, when cross-examined, will be - well, showing you evidence that he was the - yes, that - that the whole problem with Centrelink was the lack of procedural awareness.

I'll be showing you that there was documentation showing that there was home visits by or lack of home visits from Centrelink to myself and what's happened is, there's been a lot of documents go missing and we'll be showing you that the case is with the DPP that they originally, when they attacked me, they went and got all the documentation from Ken Moroney from the Centrelink who - and Ken Moroney is the decision maker there.

So, they took all the documentation from Centrelink; took it to the AFP, well, DPP, and then gave it back what they felt was necessary for a prosecution and for a decision for Ken Moroney, the ARO to make without having full access to all the information and you'll be shown documentation later whereby at the tribunal where I went in to do an appeal, whereby they acknowledge that they did not have enough information to make any decisions.

They were lacking in documentation and information. And they've written - I'll show you several letters confirming that that's the case, even though Centrelink have gone ahead, the ARO, and made a decision saying that, you know, I was wrong and I should pay it back. And so the whole case for myself, the prosecution, Mr Walsh works around, is the activity test with Centrelink. And the activity test is a test whereby you've [got] to make yourself available for work, every - you know, applying to try and find work, and to be made available, and if at any time a job is provided that you don't decline it. And you will see through the trial, with examination through Mr Maroney, that the activity test that they refer to, there are no guidelines, and there never have been any guidelines. And you'll see through that - when we do talk to Mr Maroney, that the lack of guidelines - it's never been there, and especially back in those days.

So it's very difficult. We've - what's happened is I've put in the job application, Newstart Allowance forms, every fortnight, and there was 156 of those put in, approximately, plus other forms. And you'll see that only four of those have been returned, documentation. Which makes it rather difficult. You'll see from Centrelink that they've never, ever queried my payments from them; that I've never done anything wrong. I fully informed them about the profit-share, and the - that I sent in documents. The - the Centrelink have forms that we'll show you, and they make no mention of profit-share, nett profit, no mention of share-holding, and they make no mention about what is income. Income includes nett profit for profits, you were notified. These are forms that they sent out, and I have, I'll show you documentation that shows that I – you know, I've applied correctly to the whole procedure.

And more importantly that they knew that I was on a profit share and I was receiving $75 a week. That’s $75 that you'll see that I - was for accommodation, and so - and - sorry, I'd like to just go - 93 - so you know, so in '93 I entered into a profit share with $75 a week with 30 per cent nett taxable profit. And that was - November '94, November Centrelink were informed by Neil initially over the phone that he had a profit share agreement, and on the same day when he took the agreement to Centrelink, Centrelink informed myself that I do not need to declare anything until money was paid to me. They did not advise me to do anything else; I was paid 75 a week for two hours, five days a week. This document was dated the 9/11 and archived on the 9th of December '94.

And this document is missing from Centrelink. There's quite a few documents that - through the course of the trial, I'll show you that are missing from Centrelink, and I will show you that in good faith that I tried to complete the procedure with Centrelink, informing them always what I was doing. The business - in '94 the business slowly converted into a backpackers, from a hotel/guest, which operated 80 per cent of the time, before 8 a.m. and we'll show you evidence, after 4. So that all the backpackers worked on the farms, picking fruit and vegetable. I gave myself - I'll give you evidence freely before 8 a.m. and 4 p.m. in the afternoon - so I gave myself freely before those times, because with the workers most [of] them would have been out on the farms before 7.30, 8 o'clock in the morning. And then they would be returning back in the afternoon. So my time was free. And what I did is, I moved to Bundaberg, the reason I did was a new start, but also to – for a new beginning for myself, I was a single man. And it was a great opportunity to be in a backpackers environment.

Bear in mind previous to that, back in '89, I had been involved in hospitality, and property investment – with property. And it was - in New Zealand I was involved in buying properties as well. So it's always been a love. Currently or when I was in the Foundation a lot of the business that we did there was putting people together with deals, because the E-Foundation was part of E-Banc Trade, which is a trade dollar company, so they use trade dollars. I don't know if you know about trade dollars. I'll show you what happens there. But basically your - the Foundation use these trade dollars exclusively, and then they connected people together. Members of the E-Banc trade, they went and did sponsorships for, and donations. And then they helped those people spend those trade dollars amongst themselves, and make their own membership. And by doing so they would greatly benefit by that. And so I'll give you evidence to show that I've always - it's like something that I've always loved doing, I enjoy doing it. It's not a hardship. You can do it on the end of a phone, you know you don't have to sort of go and meet people, as such. And it's very easy to do it in your own time.

The business - yeah - since '94 the business converted into a backpackers, from the hotel guests, which operated 80 per cent of the time, before, 8 a.m. in the morning, 4 p.m. to help a family on the [indistinct] okay. And I gave my time freely before those times, to help the family on the understanding I would get a profit share as agreed by the profit share arrangement in the future. So I gave myself for the benefit of Gayle and the family, and more - what I was happy to do was be in an environment where I was - it had accommodation – because I lived on site. So I didn't have to worry about that. Previously I'd lived down in a backpackers down in Maroochydore. And so I moved up from there, up to Bundaberg, and Bundaberg was far busier, more people, interesting – the YHA down in Maroochydore was pretty slow and boring, so it was a lot more exciting. There was foreign people up in the guest house, and so it was a very, very good place for a single man to be.

You're going to see evidence that I slept with several of the witnesses that are going to be coming up, and so - there's going to - give you - present information, evidence to show that these people whereas they were happy in the early days, when this was happening, later on when they found out about each other, everyone got very upset. And from that, you'll see the witnesses - several of them, being very - how would I say, very aggressive towards me now. And so - that's made it very difficult. This suited - at the time this suited myself, because it was much needed healing time, with accommodation, casual employment, hotel below full of backpackers and plenty of female company. The hotel down below was a large organisation, we had nothing to do with that. And so [we were all] able to go down and drink. So it was - you know, pretty good times.

So it was a very good time for me. I'll attempt to try and show you - see that I've made two home visits during this time. The problem is there are no records, of home visits, because of the lack of information by Centrelink. Centrelink official was told all about my circumstances and shown all through the backpackers. The visits are not recorded – or evidence not returned by AFP. You are going to see evidence whereby we have repeatedly applied through FOI, through a request through the Courts, to the DPP and AFP for the return of documentation. And you're going to see documentation that they have said doesn't exist, but fortunately we have got that information, and we have been able to photograph that information down when we've been viewing documents, but they've since gone missing.

The '94 - Sharon Mandell - you're going to see she moved into the backpackers and February '95 started working at the backpackers in the office. And this is where her and I became an item and - with Sharon. Then she moved - you're going to see evidence where she moved into the same room with me. And you'll hear evidence that I travelled very little to the – to the Mount Coolum to see the children until - that was round about '96.

You'll - you'll hear how I declared bankrupt in June '94. And you'll remember - you'll - you'll - as I said earlier only, you'll hear that in '89 I went bankrupt. Well, it took three, four years for me to heal. I came out of that and then finally went to the accountants to start doing tax returns, and was advised that I had a problem which would relate to a tax bill of approximately 54,000. And so I didn't have any money, so I then was forced into bankruptcy.

And you're going to hear evidence that - the prosecution are going to say that I was married to my - to Gayle. So, we'll be showing evidence to the contrary to that. You're going to hear that - so, yeah, for that time, you're going to see that - I - I hope to present that I was in a pretty run down situation myself. So, in '94 when I went to Cairns – found out that I had that bill, I then was forced to go bankrupt. And I then - and it's not till later that I found out - and I think Frank is bringing it up - that I had an AGC bill in '89, or a guarantee. And I failed to - I think - put it in there - I failed to clear that.

I honestly don't remember if I did or didn't. I - you know, if it was, it would've been my guarantee but I assumed it was the company. I'll show you - or attempt to show you that I haven't received any correspondence from - from basically '91, '90 through to '94 from anybody, you know, that I owed money, you know, what happen, you walk away, and then all the finance companies take the property and didn't even know.

I don't recall any communication from the AGC or - or anyone. So - and when I filled the form out, you're going to - there's - it's one of those things: you fill out and you don’t really - I'll be honest, I didn't possibly put a lot of thought into it. I don't know. But I went through it the best I could at that time. And I think Frank's going to show you that, you know, I left out - or I did things wrong. Well, if I did them wrong, then I really - you know, at that time, I was in a pretty bad state and for me, at that time, there was no big deal because there was nothing there anyway.

All through the trial you're going to hear that I have had no money, basically. The DPP, or the [AFP] rather, when they did all the searches, they've gone into all the - my account. You're going to hear them go into the accountants; all the files they've taken, all the balance sheets. And you'll see that I haven't received a cent physically. And so none of that, I've - don't believe or if it is, it's certainly - I'm not aware of it, is being presented in the brief to you, even though they went through all the files from the accountancy they took away, and - and they have failed to find any of it. So, there was - there's been no money on my behalf, been taken, other than what I received from the $75 a week and from Centrelink while I was in it."

The appellant continued "opening" the defence case for a further period of time. The passage cited is, I think, sufficient fairly to capture the appellant's smooth self-regard, bordering on the narcissistic, which characterised his opening speech to the jury, his evidence, and his address. The jury may well have found the manner of the appellant's evidence and speeches distinctly off-putting. Such a reaction would have been peculiarly disadvantageous to the accused in a fraud case. One may pause here in the narrative of the course of the trial to note that no barrister worth his or her salt would have made the overstated promises of what the defence would prove in terms of documents and cross-examination. No barrister would have damaged the appellant's credibility by promising to prove that the appellant and his wife were not married at the relevant time, when the indisputable legal fact was that they were married. No barrister would have so exposed the appellant's case, as the appellant did, to the scorn liberally and, no doubt effectively, poured upon it by the prosecutor in his final address. That address commenced with the following withering statement:

"Ladies and gentlemen of the jury, I'm going to tell you a story. Once upon a time in a place not so far away, called Bundaberg there lived a happy contented chap from middle earth called Neil. Neil lived in a backpackers' palace called the Federal Guesthouse and he was happy and contented because he had been put there by two fairy godmothers called Gayle and Dianne who had answered his wish to live a long and contented life untroubled by the worries of the world.

In the Federal Guesthouse Neil could eat and drink to his heart's content and have his mischievous way with the wenches in the palace. He only had to work a little each morning and evening and could wile away the rest of the day time as he chose. You see, the two fairy godmothers had cast a magic spell on the Federal Guesthouse and it operated itself.

Over time Neil moved to other backpacker palaces called the Prince of Wales, the Workers and Divers, the Federal Hotel and the White Lion and carried on in the same fashion as he had at the Federal Guesthouse. These new premises also ran themselves with the help of fairies installed by the two fairy godmothers. However, when Neil was at the White Lion things started to go bad for him. One of Neil's favourite wenches called Sharon became jealous of Neil's flirtatious ways and went and spoke to one of the fairy godmothers called Dianne.

Dianne felt sorry for Sharon and became angry with Neil and then started casting evil spells on him. Some of these spells caused the federal agents to visit Neil and take away his possessions and to bring him before the King on two trumped-up charges of stealing the King's property and giving the King false information.

Well, ladies and gentlemen, does that fairy tale sound familiar to you? Well, it should because you've been hearing it from virtually the first day of this trial from the defendant. And that's all it is. His defence case, ladies and gentlemen, is a fairy tale."

I have digressed from my narrative of the course of the trial to make the point that a person may be self-regarding, narcissistic, unreasonable and foolish in the conduct of his defence of a criminal charge and yet still be innocent. The potential disadvantage suffered by such a person who is obliged to represent himself is significant. In this case, the learned trial judge did not warn the jury to disregard these aspects of the appellant's presentation of his case in assessing the evidence.

I return to the narrative of the course of the trial. A significant exchange occurred between the learned trial judge and the appellant in the presence of the jury on 17 July 2007, the sixth day of the trial. The appellant was cross-examining Mr Kourloufas, one of the officers of the Australian Federal Police involved in the investigation and prosecution of the appellant. The appellant was pressing to be provided with cash receipt books taken by the AFP. The following exchange occurred:

"HIS HONOUR: Mr Walsh will no doubt make those available in the lunch hour so you can see them.

MR WALSH: Your Honour, as far as I'm aware those 41 cash receipt books were photocopied over a considerable period of time. The copies were supplied to Mr East after he requested that be done after the inspection.

HIS HONOUR: Yes.

ACCUSED: When were they given to me, Frank?

MR WALSH: On the day of the inspection.

ACCUSED: The day of the-----

MR WALSH: Or shortly thereafter when they were copied.

ACCUSED: Hang on. But in this property - in the record of receipt-----

HIS HONOUR: Copies were given to you after that, Mr East, is what Mr Walsh is saying.

ACCUSED: I'm saying they weren't, your Honour.

HIS HONOUR: Well, all right.

ACCUSED: They have never been given to us.

HIS HONOUR: Yes. All right. Back in those days you were represented by two separate solicitors and a barrister.

ACCUSED: Hang on.

HIS HONOUR: Mr East, I have no doubt you have received copies-----

ACCUSED: Hang on.

HIS HONOUR: -----of these documents. Now, get on with your cross-examination.

ACCUSED: I have had-----

HIS HONOUR: Two solicitors over the last nine months or so, at least, if not more, all paid for by Legal Aid-----

ACCUSED: I've had one solicitor, your Honour.

HIS HONOUR: You had Mr Owens-----

ACCUSED: Yes.

HIS HONOUR: -----and you had Mr Murphy.

ACCUSED: Oh yeah, just recently. Mr Murphy-----

HIS HONOUR: Just recently, yes.

ACCUSED: -----didn't do anything, your Honour.

HIS HONOUR: So you said.

ACCUSED: Well, he didn't. He-----

HIS HONOUR: All right.

ACCUSED: -----talked-----

HIS HONOUR: That's why you're on trial on your own, Mr East, because you made it impossible for Mr Murphy to continue acting for you.

ACCUSED: That's your opinion, your Honour.

HIS HONOUR: Now, get on with your cross-examination.

ACCUSED: I submitted-----

HIS HONOUR: Get on with your cross-examination.

ACCUSED: -----a copy of our conversation.

HIS HONOUR: Members of the jury, would you retire for a moment, please?

ACCUSED: Well, don't tell lies to me, that's all. That's not the case, you know."

It is unfortunate that the patience of the learned trial judge, which exceeded that of Job himself, ran out at this point. The jury should not have been told that the appellant had "made it impossible for Mr Murphy to continue acting for" the appellant.

On 25 July 2007, the 12th day of the trial, the learned trial judge curtailed the appellant's cross-examination of Mr Moroney. His Honour also set aside a subpoena issued by the appellant to Mr Curtis, another officer of the AFP. The appellant evidently wished to attempt to elicit from Mr Curtis evidence which would show that the evidence of Ms Mandell and Ms Selby-Brown was "coached and contrived". The appellant also wished to agitate the suggestion that the AFP's investigation of his activities was initiated by complaints from his jilted ex-lovers Ms Mandell and Ms Selby-Brown. (It should be noted that Ms Selby-Brown denied ever having had a sexual relationship with the appellant.) The appellant protested that he was being denied natural justice. After this protest the learned trial judge warned the appellant that a further "outburst like that" would result in the appellant being removed from the court for the rest of the trial. The learned trial judge then said to the jury:

"HIS HONOUR: Members of the jury, this morning Mr East told me he wanted to subpoena various witnesses and he took out subpoenas.

ACCUSED: One.

HIS HONOUR: One of the witnesses was a Mr Curtis of whom you've heard during this trial. He's a Federal Police officer apparently. He's now in Canberra. That's where he lives and works. I told Mr East that if he wished Mr Curtis to be a witness, then he'd have to provide him with air fare and witness's expenses. And he indicated a willingness to do that.

In view of the length of this trial so far, and in view of the extent of the questioning of Mr East about matters that are perhaps peripheral to anything you have to decide, I decided to ask Mr East why he wanted Mr Curtis, and asked him to tell me. And he told me why he wanted Mr Curtis to come along. And essential so that, he told me, it was so he could ask Mr Curtis about witness statements that were taken from various witnesses, including Ms Mandell and Dianne Selby-Jones, and he could ask him about protocols and how the witness statements were taken and so on.

And he also told me that Mr Curtis was present during the execution of some of the search warrants; and he wanted to ask him questions about things like that. And that was the extent of why he wanted Mr Curtis there.

So I then ruled that what Mr Curtis had to say about these matters was irrelevant to any issues in this trial. And in that circumstance, I would set the subpoena aside; and that's what I did. So Mr Curtis won't be here. So that's what this is all about. Mr East apparently feels that he's been dealt with unjustly and that's why you heard that outburst just a while ago. So, that's the background to all of that. Okay.

Now, what we're going to do now is we're going to get on with the trial and try and focus on what the trial is all about; what the offence is; what the elements are; and the evidence about that offence."

When the next witness, Mr Pitt, was called by the prosecution, the appellant continued to protest the unfairness of the curtailment of his cross-examination of Mr Moroney. The appellant was invited to sit down, but he continued to protest the unfairness, as he perceived it, of the conduct of the trial. He did not sit down and he was ordered to be removed from the courtroom. Before Mr Pitt began to give evidence, the appellant was allowed to return to the courtroom. The appellant renewed his request to complete his cross-examination of Mr Moroney. His Honour ultimately ordered that Mr Moroney return to enable the appellant to complete his cross-examination. The appellant then asked his Honour why he had changed his mind in relation to the issue of the subpoena to Mr Curtis. The following exchange ensued:

"ACCUSED: Why did you change your mind?

HIS HONOUR: Mr East do you want to question Mr Maroney, or don’t you?

ACCUSED: But why can't you answer one simple question?

HIS HONOUR: Question Mr Maroney.

ACCUSED: You can't even answer it, can you? Because you have no reason other than you don’t want this trial to be done correctly. You don’t want me to have a fair trial to be able to cross-examine the vital - two vital statements that have been made by Dianne Selby-Brown and Sharon Mandell and it is quite clear from the conversation we've had with Sharon Mandell, that John Curtis did not take it correctly. The statement was not taken correctly.

HIS HONOUR: Well, look, that-----

ACCUSED: And you have left me - denied me the ability to be able to cross-examine the man that took that statement. And then she - he probably from what we've worked out, that he went and did Dianne Selby-Brown's as well. Why can't I talk to him? Why are you denying me that?

HIS HONOUR: You had an opportunity to cross-examine both Mandell-----

ACCUSED: Yeah - but-----

HIS HONOUR: -----and Selby-Brown.

ACCUSED: I'm talking about the man that took the statement-----

HIS HONOUR: The jury's heard their-----

ACCUSED: -----not the person giving the statement.

HIS HONOUR: The jury's heard their evidence.

ACCUSED: Yes. But we haven't heard how it was taken. The man that was the one that took it, we need to talk to him.

HIS HONOUR: You asked Ms Mandell how it was taken and she answered you. She was asked questions-----

ACCUSED: I need to talk to the man that took it to see if protocol was adhered to within the AFP.

HIS HONOUR: Well, you're not going to talk to the man who took it?

ACCUSED: Why not? You said in the morning, you agreed to it.

HIS HONOUR: Because it has absolutely no relevance to this trial.

ACCUSED: It has everything to do with it. In the morning you agreed to it and in the - later in the morning-----

HIS HONOUR: Mr East, I never-----

ACCUSED: -----you changed your mind.

HIS HONOUR: I never agreed to it, Mr East.

ACCUSED: You did. You said to Mr Welsh can it be organised.

HIS HONOUR: That's right.

ACCUSED: And then you had a further discussion when the subpoena was done, "Are you prepared to pay-----

HIS HONOUR: That was-----

ACCUSED: -----the fee to get his plane fare up?" Why would you even bother asking that? And it wasn’t until I said, yes, that you had no other alternative other than to say, "No, I'm not going to let you have it", after in the morning you had agreed. I ran around. I got it in the morning. I ran around at the break and got it and went downstairs and came up and I've got it here. I've got the subpoena here, here. And Frank was going to accept it on behalf of the Federal Police.

HIS HONOUR: That's right.

ACCUSED: Correct?

HIS HONOUR: That's right. He was.

ACCUSED: I want my witness.

HIS HONOUR: You're not having him.

ACCUSED: Why not?

HIS HONOUR: The subpoena-----

ACCUSED: Why did you change your mind?

HIS HONOUR: -----has been set aside.

ACCUSED: Why did you change your mind?

HIS HONOUR: Because-----

ACCUSED: Why did you change your mind?

HIS HONOUR: Mr-----

ACCUSED: You can't give an answer can you?

HIS HONOUR: Will you stop shouting, please.

ACCUSED: It's injustice. I've been denied natural justice and all you want to do is railroad me so I can't represent myself. You’ve taken away my key witnesses. I've got - I would loved to have talked to about half a dozen of AFP staff.

HIS HONOUR: Do you wish to cross-examine Mr Maroney any further.

ACCUSED: I want to know why - I want to know why you won't let me cross-examine the AFP officer, John Curtis, who was involved - instrumental in taking a statement from the two key witnesses and I say the two, because it's 99 per cent sure it is.

HIS HONOUR: Well, firstly, you can't cross-examine him if you call him.

ACCUSED: Well, I wanted to interview him then.

HIS HONOUR: Secondly, I asked you-----

ACCUSED: Whatever you want.

HIS HONOUR: -----what you wanted to ask him and you told me and-----

ACCUSED: You made a ruling this morning-----

HIS HONOUR: -----what you told me was completely irrelevant-----

ACCUSED: -----that would have enable me-----

HIS HONOUR: -----to anything in this trial.

ACCUSED: -----to get an important defence witness from the Federal Police in front of the jury and now you have changed your mind. Cross-examination of this witness will show that at least Ms Mandell's evidence has been coached and contrived to show an incorrect picture. I need the AFP witness and others to get a fair trial. I am being denied natural justice. I have been forced to represent myself, contrary to clear High Court ruling and the jury don’t even know that. We've had discussions on that. Dietrich's case, quite a clear case and I'd love to talk about that but I was - I've never been allowed to talk about that. It's contrary to clear High Court. I should not have to represent myself. My solicitor sacked me and they came up in Court and said that I sacked them and it is a lie. I gave you a recording of the last conversation I had with my solicitor, proving that he sacked me.

HIS HONOUR: It proves-----

ACCUSED: He sacked me. He sacked me 10 days-----

HIS HONOUR: It proves nothing of the kind, Mr East.

ACCUSED: You read it for 15 minutes.

HIS HONOUR: It proves nothing of the kind.

ACCUSED: You read it for - why don’t you let the jury read it then?

HIS HONOUR: I'm not going to argue with you about this.

ACCUSED: Well, let the jury read it.

HIS HONOUR: Are you going to question Mr Maroney or not?

ACCUSED: I'm here unrepresented. You made a ruling this morning-----

HIS HONOUR: Remove him from the Court please.

ACCUSED: -----that would have - I'm fine.

ACCUSED REMOVED FROM COURTROOM"

Mr Moroney was then allowed to go. Mr Pitt was then called. He gave evidence that he dealt with the appellant to arrange the supply of backpackers as farm labourers during the period of the charge in count 1. Mr Pitt was then excused, and Mr Byles was called.

The learned trial judge ordered that the appellant be allowed to return to court. The appellant immediately renewed his enquiry as to why the trial judge had "changed his mind" about allowing the appellant to call Mr Curtis. The judge ordered that the appellant be removed again.

Mr Byles then gave evidence that, in February 1998, he sold a 40 foot yacht to GSB Nominees Pty Ltd for $25,000 in cash and 60,000 trade dollars. The sale was negotiated by the appellant.

After Mr Byles was excused, and the prosecution had called another witness, Mr Sinclair, the appellant was allowed to return to the courtroom. Mr Sinclair had begun to give evidence when the following exchange occurred:

"ACCUSED: Your Honour, you made a ruling this morning that would have enabled me to get an important defence witness from the Federal Police in front of the jury and now you have changed your mind. Cross-examination of this witness will show at least Ms Mandell's evidence has been coached and contrived to show an incorrect picture. It was taken by Mr John Curtis and I need to cross-examine him in my defence. It - my cross-examine with Mr Curtis will show that there is a - a standard tactical plan that was presented when the proceedings were initially started showing that they – police believed that there was major crime - serious crime with [relation] to the Australian Tax Office Department. And their whole basis for their whole criminal investigations surround that. And when they then found that that wasn't the case, they then proceeded to try and charge me on lesser offences with regards to defrauding the Commonwealth regards Centrelink and also bankruptcy.

I need to talk to Mr John Curtis because his statement gathering is paramount to my defence. And I need to be able to cross-examine him to be able to clearly [show] that there is a situation here whereby it is not about Centrelink; it was primarily about major fraud with regards to taxation; and that when they couldn't find any evidence regarding that, they then reverted back to the existing charges. I need to talk to him because he cross-examined the witness, Ms Sharon Mandell, and it will show that her evidence has been coached and contrived to show an incorrect picture. Her and Dianne were the original ones that made the complaint. And it's from that complaint that the police acted without full investigation of any of the facts. They simply took their word for it.

Mr Curtis is paramount to my defence and I need to talk to him as a witness. I did ask for Mr Sinclair but you refused that. But I need to talk to Mr Curtis. I need that AFP witness and others to get a fair trial. I am being denied natural justice. I have been forced to represent myself contrary to Clare, High Court authority, your Honour, and I need to know - and the jury need to know what is going on: a total injustice in balance in the number of witnesses that I've been allowed to call. I wanted three and now you've disallowed one of them and I'm only allowed one. An injustice has been committed if I am not allowed to interview these witnesses.

I ask that I am allowed to cross-examine or examine Mr John Curtis, the Federal Police officer that took the statements of Sharon Mandell and Dianne Selby-Brown who are the key witnesses to the prosecution's case. And - so, do I go back out?

HIS HONOUR: Well, it's up to you, Mr East. Mr Walsh is going to ask questions of this witness. Do you want to be present-----

ACCUSED: You made a ruling this morning that would have enabled me to get-----

HIS HONOUR: Remove him from the Court."

In the appellant's absence, Mr Sinclair gave evidence that he, Mr Sinclair, "understood" that the appellant was the owner of the Prince of Wales Backpackers and The Workers and Divers Hostel and dealt with him on that basis. The basis for that understanding was not established by admissible evidence. And, in response to a leading question, Mr Sinclair expressed the opinion that the appellant "would have been directing staff".

The appellant returned to the courtroom after Mr Sinclair's evidence-in-chief had been completed. Mr Kerr-Laslett, an investigating officer with the Australian Federal Police, was called so that the appellant could cross-examine him. Next day the appellant apologised for his behaviour to the judge. He then repeated his apology to the jury. He said:

"ACCUSED: All right. Well, that's what I wish to do. I wish to apologise to the jury for what - for my actions yesterday but I did it because I - I believe I am not getting a fair trial. I am asking for people to be witnesses. I'm only asking for three witnesses, one days. The prosecution has had 30 odd witnesses for many days. And I'm sorry it's gone over for two weeks. I apologise for that but it - it's not my – it wasn't my intention. I didn't want to have to be able to - have to represent myself. I have been forced to do it, and I'm doing it to the best of my ability. I'm sorry it's taking so long and it's drawn out. We're all in the same boat. I'm very tired as well, doing long hours. I am trying to do the best I can under the circumstances. And all I ask [is] a fair trial and I have to be given the opportunity to be able to cross-examine certain witnesses that I ask. I've only asked for three. I've got two. I am now being denied one. So now I've only got two witnesses and I'm being refused to be able to cross-examine these chosen witnesses. I'm now being refused to be - denied cross-examination of the three witnesses yesterday as well. And I've explained to his Honour that some of - Mr Sinclair was a very damning presentation because it left fresh in your mind of his particular operation; and it's his operation is the way he ran it but we ran a completely different operation and-----

MR WALSH: Your Honour, Mr East is defying your Honour's direction.

HIS HONOUR: Yes, that's right. Just take no notice of any of this-----

ACCUSED: I need to be able to cross-examine them.

HIS HONOUR: ----- would you, members of the jury. Just discount it.

ACCUSED: It's not fair. I want a fair trial. You've gaoled me three times because I want a fair trial. I just want to be able to cross-examine some people.

HIS HONOUR: Do you want to ask Mr Kerr-Laslett any further questions?

ACCUSED: I do.

HIS HONOUR: Well, go with it.

ACCUSED: Okay. So, I apologise for everything, and I know it's a hassle, but I'm talking about my freedom here and I need to be able to - to be able to talk and cross-examine the people that I need to help me in my defence here. And I don't feel-----

HIS HONOUR: Mr East, if you continue, I'll send Mr Kerr-Laslett away."

The appellant at last desisted from his protests and proceeded with his cross-examination of Mr Kerr-Laslett.

During the course of opening the Crown case, the prosecutor intimated that a police officer, Mr Curtis, would be called as a witness by the Crown. Mr Curtis had given evidence at the committal hearing. The appellant's outbursts and his removals from the court, all of which could have done him no good in the eyes of the jury, were quite unnecessary if, as the appellant submits, the prosecution was obliged to produce Mr Curtis for cross-examination. I will deal with this contention in the course of addressing the arguments advanced on the appeal.

The appellant was permitted to listen to an audio recording of the evidence of the three witnesses. He then sought to have them recalled for cross-examination. The learned trial judge refused this request. Thus, the appellant was not able to cross-examine Mr Pitt, Mr Byles or Mr Sinclair.

The arguments on appeal

Leave to withdraw

The first contention advanced by Mr Kent of Counsel, who appeared on the appellant's behalf, was that the learned trial judge erred in granting Mr Murphy leave to withdraw prematurely, and, in particular, without hearing from the appellant. It is said that, if the appellant had been called on to make his position clear in that regard before leave to withdraw was given, his concerns may have been allayed and Mr Murphy may have been sufficiently mollified by the appellant's withdrawal of his allegation of incompetence to agree to continue to act for the appellant. The matter may thus have been able to proceed with Mr Murphy and Mr Reid of Counsel representing the appellant.

In my respectful opinion, it is clear beyond argument that the appellant was not disposed to mend the rupture in the mutual trust and confidence essential to a viable relationship of solicitor and client which had occurred in this case. The appellant's lack of confidence in his lawyers was quite unreasonable, but there can be no doubt that it was a view to which he was resolved to adhere notwithstanding his withdrawal of his allegation of incompetence. In this regard, the appellant persisted in the unreasonable pursuit of the irrelevant throughout the trial. While one may accept that this may have been due in part to his ignorance of the law and legal procedure and the pressure upon him which was inherent in his situation as an accused person, the notion that he might have been persuaded to a reasonable appreciation of the competence of his lawyers seems too remote from reality to be seriously entertained. It should also be said that the idea that a trial judge should become involved in attempts to persuade an accused person and his or her lawyers to mend their differences to enable a trial to proceed is to be deprecated as inconsistent with the role of the trial judge. While a trial judge may be obliged to rule upon a contest between an accused and his or her lawyer when an application for leave to withdraw is made, the role of the trial judge does not include attempts to persuade the accused person that he or she should accept and act upon the lawyer's advice. That would be quite inconsistent with the fundamental assumptions of the adversarial system.

I would reject this ground of appeal.

Refusal of an adjournment

The appellant's second argument concerns the learned trial judge's refusal to adjourn the trial to enable the appellant to obtain legal representation. In my respectful opinion, there is much force in this argument.

So important is the availability of legal representation to the settled understanding in Australia of a fairly conducted criminal trial that the majority of the High Court in Dietrich v The Queen¹ held that a criminal trial for a serious offence should be adjourned, rather than that an indigent accused should be forced on to trial without legal representation against his or her will, save in exceptional circumstances.

In Dietrich v The Queen, Mason CJ and McHugh J said:

"A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. 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."²

This passage emphasises the disadvantages of a lack of legal representation in a criminal case are so important where the charges are serious. In the light of this passage, the view formed by the learned trial judge during the trial that the appellant was "quite capable of effectively conducting any defence that may have been available" is difficult to sustain as a view which could be reasonably entertained.³ And, in any event, the view which his Honour formed over the course of the trial is hardly relevant to the question whether the decision to refuse an adjournment at the outset of the trial was soundly based.

In this case, the appellant enjoyed the benefit of a grant of Legal Aid. In my respectful opinion, this consideration makes the appellant's application for an adjournment stronger than that discussed in Dietrich v The Queen. In that case, there was only the most uncertain prospect that the accused would be able to obtain legal representation funded by the public purse. In Dietrich v The Queen, the choice which confronted the trial judge was between proceeding with the trial with the accused being unrepresented, and putting off the trial to a later date when the likelihood was that the accused would still be unrepresented. The trial judge was held to have erred in forcing the accused on to trial where the strong probability was that an adjournment would not have served any useful purpose. The choice which confronted the learned trial judge in the present case was between forcing the appellant to represent himself and delaying the trial with the likelihood that a relatively short adjournment would have meant that the trial could have proceeded with the appellant being represented.

It must be said immediately that, in the administration of criminal justice, fairness to the accused is not the sole consideration to which a trial judge must attend. The processes of the administration of criminal justice cannot be frustrated by delaying tactics calculated to cause such delay in bringing a matter to trial so that material evidence may be lost or the process otherwise frustrated. It needs to be said, however, that in the present case the learned trial judge did not reject the appellant's request for an adjournment on the footing that the appellant was found to be engaged in delaying tactics. His Honour clearly considered that the appellant's lack of confidence in his legal representatives was unreasonable, but he did not go further to conclude that the appellant had raised his concerns about the preparation of his case as a cynical ploy to goad his lawyers into applying to withdraw so as to delay the trial. Nor did his Honour conclude that the appellant had contrived to bring about the previous delays in the progress of the matter to trial. And it must be said, in this latter regard, in the light of the history of the proceedings, that there was little or no reason for his Honour to have reached such a view.

Mr Long SC, who appeared on behalf of the respondent, emphasised that the decision of the High Court in Dietrich v The Queen obliges a trial judge to allow an adjournment to an unrepresented accused to enable legal representation to be obtained (save in exceptional cases) only where the accused person is unable to obtain legal representation "through no fault on his or her part".⁴ Mr Long argued that the appellant placed himself outside the scope of the principle in Dietrich v The Queen when he brought about the termination of Mr Murphy's retainer by his unreasonable demands in relation to the preparation of his case culminating in his unjustified assertion of incompetence on Mr Murphy's part.

I accept Mr Long's argument that Mr Murphy's retainer was terminated by the appellant's unreasonable demands and his allegations of incompetence; but it does not follow that, when the appellant sought an adjournment on the first day of the trial, he was to be regarded as a person who was unable to obtain legal representation. Legal Aid had been willing to fund legal representation, and there was no reason to suppose that appropriate representation could not have been provided within a relatively short time. In speaking of a relatively short time, I have in mind the circumstance that the charges in question related to offences which had allegedly occurred between 14 and eight years previously. The passage in the reasons of Mason CJ and McHugh J to which Mr Long refers speaks not of the accused being "without legal representation", but being "unable to obtain legal representation". So far as appeared to the learned trial judge, the appellant was able to obtain legal representation. Further, one should not be astute to restrict the protection afforded to accused persons against the serious disadvantages involved in facing a criminal trial without the benefit of legal representation. Accordingly, one should not conclude that one unreasonable termination by an accused person of the retainer of that person's lawyers, without more, necessarily means that the accused is relevantly "at fault" in being unrepresented at his trial.

It would be different if the circumstances of the termination of legal representation were so unreasonable that Legal Aid were no longer disposed to afford legal assistance to the accused, just as it would be different if an accused person who had the financial wherewithal to defend himself or herself, simply chose not to spend his or her resources on his or her defence. In the case where an accused person embarked on serial terminations of his or her legal representatives to put off the day of trial, the court would have no difficulty in concluding that the circumstances were sufficiently "exceptional" within the principle in Dietrich v The Queen to refuse a further application for adjournment, even if Legal Aid remained (remarkably) ready and willing to provide legal assistance to the accused.

In the present case, the learned trial judge did not conclude that the appellant was engaged in a cynical ploy to put off the trial, or even that the appellant was unable to obtain legal representation. There was no sufficient basis in the evidence before his Honour for such a conclusion. Where an application is made for an adjournment by an unrepresented litigant, and the application is not supported by evidence on affidavit which can be tested by the prosecution, a trial judge should invite the applicant to give oral evidence of the circumstances said to warrant the adjournment so that the basis for the application can be explored by the prosecution. That course would afford the trial judge with a clearer view of the facts which bear upon the question whether the trial should proceed without delay.

Whether or not the adoption of that course would have led to a different result in this case is, of course, a matter on which this Court cannot speculate. It is sufficient, in this case, to say that the learned trial judge did not proceed on the basis of a finding that the appellant was unable to obtain legal representation, or that his unreasonable conduct was part of a cynical attempt to put off the trial. And, as I have said, his Honour had no evidentiary basis on which to make such findings.

The learned trial judge was rightly concerned about the delays which had bedevilled this matter in its progress to trial, and the inconvenience to witnesses of an adjournment. Nevertheless, in my respectful opinion, those considerations were not such as to make this case "exceptional" in the sense discussed in Dietrich v The Queen. In this regard, any unnecessary delay in bringing a matter to trial is to be regretted, and every adjournment adds to delay and causes inconvenience to witnesses. Standing alone, these considerations are not such as to make a case "exceptional" in the relevant sense.

In summary in relation to this argument, I am of the opinion that the learned trial judge had no sufficient basis for taking the "exceptional" course of refusing the appellant's application for an adjournment. His Honour could not have been satisfied that the appellant would not be in a position to proceed with legal representation within a relatively short time. In my respectful opinion, the learned trial judge erred in taking the "exceptional" course without sufficient justification.

The removal of the appellant from the trial

The removal of the appellant from the trial was immediately necessitated by the appellant's disruptive behaviour in pursuit of a point which was of, at best, only peripheral relevance. That behaviour, unreasonable though it was, arose from the appellant's attempts to have Mr Curtis made available as a witness.

Mr Kent argued that Mr Curtis, having given evidence at the committal hearing, the prosecution was obliged to ensure his attendance at the trial should the appellant wish to call him to give evidence. As was said by Shand J as long ago as 1918 in R v McMaster,⁵ while the prosecution is not bound to call all the witnesses who have given evidence at the committal, it is "the duty of the Crown to have all witnesses in attendance at trial."

Mr Long SC argued that the statement in R v McMaster upon which Mr Kent relied was merely an obiter dictum which could not be regarded as establishing that it is the duty of the prosecution to ensure the availability of a witness who has given evidence at the committal even where the prosecution has decided not to call that witness. But the position reflected in the summary statement of Shand J in R v McMaster has powerful support.

The first point to be made in this regard is that the statement of Shand J in R v McMaster reflects the operation of s 123 of the Justices Act 1886 (Qld) which provides that, where a defendant has been committed for trial of an indictable offence, each witness who has given evidence shall be given a notice requiring him or her to "attend at the court to which the defendant has been committed and to give evidence at the defendant's trial." By virtue of s 123(2)(b) of the Justices Act, this notice "shall have effect as if it were a summons to the witness issued out of the court that the witness is by the notice required to attend." Even if it be accepted that, as the respondent argues, s 123 "should properly be seen as being no more than the provision of a mechanism by which the attendance of witnesses at trial may be secured by the prosecution", there are statements of high authority which affirm that it is indeed the obligation of the prosecution to ensure the attendance at trial of witnesses who have given evidence at the committal hearing.

Thus in The Queen v Apostilides,⁶ the High Court emphasised that, in a criminal trial, it is "[t]he Crown prosecutor alone [who] bears the responsibility of deciding whether a person will be called as a witness for the Crown." The Court went on to say:

"The description of that responsibility, which we have cited from Richardson, emphasizes that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined."⁷ (emphasis added)

The reference in this passage to persons whose names are on the indictment is to the Victorian practice, which appears to have been the same as that which previously obtained in England and Wales, of writing on the back of the indictment the names of the witnesses called at the committal.⁸ This practice was discussed in Archbold: Criminal Practice and Pleading⁹ in the following terms:

"Where the prosecution have taken a statement from a person whom they know can give material evidence but decide not to call him as a witness, they are under a duty to make that person available as a witness for the defence and should supply the defence with the witness' name and address …"

In Wakeley and Bartling v The Queen,¹⁰ the High Court referred with evident approval to the passage in Archbold. It may be noted that there is a difference in these statements of the obligation of the prosecution. In The Queen v Apostilides, the obligation of the prosecution is said to go beyond merely ensuring the attendance of a witness to actually calling the witness so that he or she may be cross-examined by the defence. There are statements in English authorities which take the same view of the extent of the prosecutor's duty as that expressed in The Queen v Apostilides.¹¹ It is unnecessary here to seek to resolve this difference or even to reach a concluded view as to whether the prosecution was obliged to ensure Mr Curtis' attendance at trial.

It can, I think, fairly be assumed that the appellant was unaware that it was the obligation of the prosecution to ensure Mr Curtis' attendance at the trial; if, indeed, it was the obligation of the prosecution. The failure of the learned trial judge to inform the appellant that this was the case, if it were the case, would have been an irregularity in the trial process. In MacPherson v The Queen,¹² Gibbs CJ and Wilson J said that a trial judge "must give an unrepresented accused such information as is necessary to enable him to have a fair trial."

For the appellant, it is argued that if the appellant had been told, as he should have been, that Mr Curtis would be made available by the Crown, there would have been no occasion for the fracas which led to the appellant's exclusion from the courtroom. Mr Long SC argued that the prejudice to the appellant's defence generated by his own conduct, including his querulous dissent from the learned trial judge's ruling in relation to Mr Curtis, cannot be regarded as unfairness in the trial process resulting from his lack of representation. The fracas leading to the appellant's exclusion, and the loss of the opportunity to cross-examine the witnesses who gave evidence in his absence, were, Mr Long submitted, the appellant's own fault rather than a fault in the process of the trial. There is force in Mr Long's argument. The exclusion of the appellant from the courtroom was the necessary consequence of his disruptive behaviour: to the extent that the judge's failure to ensure Mr Curtis' attendance might have been erroneous, that was a matter for appeal, not for disrespectful agitation and disruption of the court's processes.

I am, however, of the opinion that the learned trial judge's failure to recall the witnesses who gave evidence while the appellant was removed from the courtroom was itself a flaw in the fair conduct of the trial.

Section 616 of the Criminal Code provides:

"(1) Every person charged with an offence is entitled to make the person’s defence at the person’s trial and to have the witnesses examined and cross-examined by the person’s counsel.

(2) In this section–

counsel includes any person entitled to audience as an advocate."

Section 617 of the Criminal Code provides relevantly:

"(1) Subject to this section the trial must take place in the presence of the accused person.

(2) If an accused person so conducts himself or herself as to render the continuance of the proceedings in the person’s presence impracticable, the court may order the person to be removed and may direct the trial to proceed in the person’s absence.

…"

The provisions of s 616 and s 617(1) recognise the fundamental procedural entitlement of a person charged with a serious criminal offence to participate in his or her trial and to confront his or her accusers. Section 617(2) recognises that if the processes of justice would be frustrated by the conduct of the accused person then the accused's entitlement may be qualified to the extent determined by the trial judge to be necessary in this regard. In this case, after the appellant had ceased his disruptive complaints and been allowed to return to the courtroom, the learned trial judge determined that the three witnesses who had been examined should not be recalled to enable the appellant to cross-examine them. In my respectful opinion, the learned trial judge erred in this regard.

The appellant had ceased his disruptive behaviour. There was no suggestion that there would be any difficulty in having any of the witnesses returned to court to enable the appellant to exercise the right of cross-examination reflected in s 616(1) of the Criminal Code. The evidence of Mr Sinclair, in particular, was important and was, on its face, vulnerable to challenge, involving as it did a degree of supposition and opinion for which no basis had been established. A denial of an accused's entitlement to address the case being made against him is inconsistent with an essential aspect of the criminal trial. The extent of such denial should not exceed what is necessary to preserve the practical decorum of the trial process. There was, in my respectful opinion, no sufficient basis for the learned trial judge's refusal to require the three witnesses who had not been cross-examined to be recalled to enable the cross-examination to take place.

I would therefore uphold this aspect of the appellant's argument.

The misjoinder issue

Because of the view I have taken in relation to the other grounds of appeal, it is not necessary to address the appellant's argument that the joinder of the two counts was impermissible. Further, it is undesirable for this Court now to express a view on this question. It was not raised previously. The appellant while represented did not previously seek to have the counts severed: there may have been sound forensic reasons for this.

The proviso

The next question which must be addressed is whether it is open to this Court to apply s 668E(1A) of the Criminal Code 1899 (Qld) ("the proviso") to sustain the convictions. The proviso allows this Court to uphold a conviction notwithstanding an irregularity in the trial of the accused if the error did not result in a substantial miscarriage of justice.

On behalf of the respondent, it is said that the prosecution case against the appellant was overwhelming and that the appellant's defence was a transparent tissue of lies. Accordingly, so it is said, the proviso should be applied to sustain the convictions even if the refusal of the application for an adjournment, the refusal to require return of witnesses for cross-examination and the failure to inform the appellant of the obligation of the Crown to make Mr Curtis available to give evidence were errors on the part of the learned trial judge.

It is well-established that some errors of procedure may be so fundamental to the trial process that they are beyond the reach of the proviso. In Wilde v The Queen,¹³ Brennan, Dawson and Toohey JJ, in speaking of the New South Welsh analogue of s 668E(1A) of the Criminal Code, said:

"Reliance was placed upon what was said by Gibbs J in Quartermaine v The Queen ((1980) 143 CLR 595 at 600 – 601):

'Ordinarily, when there has been a misdirection of law, the proviso to s 689 [Criminal Code (WA)] will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J, who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established 'there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that 'there had been a serious departure from the essential requirements of the law'. The Court of Criminal Appeal was right in taking that view of the law ... .'

This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen ((1977) 137 CLR at 527)); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg v Hildebrandt ((1963) 81 WN (Pt 1) (NSW) 143 at 148); Reg v Henderson ([1966] VR 41 at 43); Reg v Couper ((1985) 18 A Crim R 1 at 7 – 8).

There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, 'Venire de Novo' Law Quarterly Review, Vol 71 (1955) 100 at 128; Reg v Rose ([1982] 1 WLR 614 at 621 – 622; [1982] 2 All ER 536 at 542); and, in the House of Lords ([1982] AC 822 at 831 – 834). But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances."

In Wilde v The Queen,¹⁴ Deane J expressed a similar view of the limited scope of the proviso. His Honour said:

"The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law. The proviso to s 6(1) – which empowers the New South Wales Court of Criminal Appeal to dismiss an appeal, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of an appellant, 'if it considers that no substantial miscarriage of justice has actually occurred' – does not negate that principle. The reason why that is so is that it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been 'no substantial miscarriage of justice' in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law. In such a case, the verdict of guilty is intrinsically flawed and it is no part of the function of a court of criminal appeal to say that the accused is, in its view, so obviously guilty that the requirement of a fair trial according to law can be dispensed with. If it were otherwise, the fundamental prescript of the criminal law could be reduced to a mockery and the injustice of a conviction without a relevantly fair trial according to law could be made the occasion for trial by appellate judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial. In referring to a 'relevantly' fair trial, I have intended to exclude the case where it can be seen that any error, impropriety or unfairness did not prejudice or colour the overall trial or that the residual effect (ie viewed in the context of the overall trial) of any such error, impropriety or unfairness could not have influenced the jury in reaching their verdict on the charges upon which the accused was convicted and in respect of which the appeal to a court of criminal appeal is brought."

That an error in the manner in which a trial has been conducted may involve a fundamental or radical error beyond the curative scope of the proviso, even where the evidence against the accused is overwhelming is thus well-established.¹⁵ It was most recently acknowledged by the High Court in Weiss v The Queen¹⁶ and AK v The State of Western Australia.¹⁷

The first question which must be addressed at this point is whether the wrongful refusal of the adjournment which compelled the appellant to proceed without qualified legal representation is itself such a radical or fundamental error that, without more, it constitutes a substantial miscarriage of justice within the meaning of the proviso. Mr Kent submitted that it was.

In this regard, in Dietrich v The Queen, Dawson J, with whom Gaudron J agreed¹⁸ on this point, said:

"If, by the refusal of an adjournment, an accused is prevented from pursuing a course which could, with any reasonable prospect of success, enable him to avail himself of counsel, then it seems to me that it should be irrelevant to inquire further whether he lost a chance of acquittal because he was unrepresented. The refusal of an adjournment which would deprive an accused of a reasonable opportunity to obtain representation would effectively deny him the form of trial to which he was entitled by statute – a trial at which he was represented by counsel. In such a case, the refusal of the adjournment would itself and without more cause the trial to miscarry. It is not to the point that the accused would inevitably have been convicted because that is no answer when a trial is fundamentally flawed (See Wilde v The Queen (1988), 164 CLR 365, at p 373)."¹⁹

To similar effect, Deane J said:

"It follows from the foregoing that, as a general proposition and in the absence of exceptional circumstances, a trial of an indigent person accused of serious crime will be unfair if, by reason of lack of means and the unavailability of other assistance, he is denied legal representation. There was nothing exceptional in the circumstances of the present case which would preclude the applicability of that general proposition. That being so, the applicant has not had a fair trial. His conviction and sentence of imprisonment without such a trial necessarily constituted a miscarriage of justice. It remains to be considered whether the case is one in which the proviso contained in s 568(1) of the Crimes Act 1958 (Vict) can be applied for the reason that it appears that 'no substantial miscarriage of justice has actually occurred' (emphasis added). In my view, it is not.

Statutory provisions which enable an appellate court to dismiss an otherwise successful appeal by a convicted person, who maintains his innocence, on the ground that there was no substantial miscarriage of justice do not authorize an appellate court to find that there has been no substantial miscarriage of justice in a case where error, impropriety or unfairness has pervaded the trial and infected the verdict to an extent that the conviction was not the outcome of a fair trial. In such a case, the conviction without a fair trial necessarily involves substantial miscarriage."²⁰

On the other hand, in Dietrich v The Queen, Mason CJ and McHugh J did not regard the wrongful refusal of an adjournment as of itself establishing a substantial miscarriage of justice so as to put the case beyond the scope of the proviso. In their Honours' joint judgment, the following statement appears:

"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.

In the result, we would grant special leave to appeal, allow the appeal, set aside the conviction and order a new trial."²¹

An intermediate court of appeal, confronted by the divergence of views in the High Court on this point, should, I think, proceed on the basis stated in the joint judgment of Mason CJ and McHugh J. On this basis, the wrongful refusal of the appellant's application for an adjournment which obliged him to represent himself cannot be regarded, without more, as a substantial miscarriage of justice which puts the wrongful refusal of the adjournment outside the scope of the proviso.

In my respectful opinion, the appellant's difficulties in representing himself as a result of the refusal of the adjournment did result in unfairness to the appellant. I shall explain my reasons for that conclusion directly, but before doing so, I should state that even if the learned trial judge erred in failing to inform the appellant that the prosecution was obliged to ensure the availability of Mr Curtis at trial, I consider that this error was so inconsequential that it is readily cured by the application of the proviso. If Mr Curtis had been made available to give evidence, so that he could be called as a witness by the appellant, the appellant could not have cross-examined him. He could not have asked him leading questions. The evidence which the appellant wished to elicit from Mr Curtis was said to involve the process where Mr Curtis had elicited the statements of Ms Mandell and Ms Selby-Brown. Any question directed to this topic would have been objectionable as an attempt to enquire into the credibility of Ms Selby-Brown and Ms Mandell's evidence about how their statements were taken.²² In short, the presence of Mr Curtis could not have detracted from the Crown case or assisted the appellant's case in any way. Even if one were to take the view that the prosecution's obligation was actually to call Mr Curtis as its witness so that the appellant might have cross-examined him, he was not denied any prospect of damaging the credibility of Ms Mandell or Ms Selby-Brown because any questions in this regard would have been objectionable, even if put in cross-examination of Mr Curtis.

On the other hand, I consider that the learned trial judge's failure to recall the witnesses for cross-examination was an error of a fundamental kind. The respondent argues that the evidence given in the appellant's absence was not of such significance that he could be said to have lost any fair chance of acquittal by reason of his absence from the court and the denial of the opportunity to cross-examine these witnesses. There is substance in that argument but it does not meet the point that the denial of the opportunity to cross-examine witnesses was an error of a fundamental kind in terms of the process of the trial.

The right of an accused to be present at his trial and to cross-examine the witnesses called against him is one of the fundamental assumptions on which the due administration of criminal justice depends. The denial of this right is the kind of defect which this Court has previously held is beyond the reach of the proviso.²³ The provisions of s 616 and s 617 are statutory expressions of the long-standing principle of the common law that a trial is to be conducted in open court in the presence of the accused who is to have a full opportunity to test the evidence led against him by the prosecution.²⁴ These provisions state, in mandatory terms, essential requirements of due process in relation to the trial of a criminal charge. These requirements are subject, of course, to statutory exceptions, such as that contained in s 617(2), but such exceptions must be applied so as to detract from the statutory requirements of due process no more than is necessary in order to preserve the efficacy and integrity of the trial process. In this case, while it may be accepted that the learned trial judge acted correctly in excluding the appellant from the courtroom, there was no necessity to deny the appellant his right to cross-examine the witnesses called in his absence. The appellant's disruptive behaviour had ceased. There was nothing to suggest that there would have been any difficulty, or even substantial inconvenience, in recalling those witnesses for cross-examination.

In my opinion, the appellant was also disadvantaged by his lack of representation, in relation to the denial of the opportunity to cross-examine witnesses. It may be accepted immediately that the fracas attending the appellant's exclusions from the courtroom and the conduct of part of the case in his absence cannot be regarded for this purpose. An accused who represents himself or herself cannot be expected to be rewarded for his or her unruly behaviour. An accused person who is obliged to represent himself or herself cannot be permitted to cause a trial to miscarry or to create appeal points by such misbehaviour. In the present case, however, while much of the appellant's conduct during the course of the trial was unreasonable, this Court is not in a position to conclude that his unreasonable behaviour was manufactured cynically or dishonestly. More importantly for present purposes, if the appellant had been represented, then even if the appellant had been removed from the court because of his unreasonable behaviour, cross-examination of these witnesses could have proceeded in his absence.

Apart from this disadvantage, the appellant was disadvantaged forensically by reason of his lack of representation in a number of other ways. There was, for example, his insistence on tendering Ms Mandell's statement to the prosecuting authorities. This document inevitably enured to his prejudice by reason of its reference to other offences by him. He also insisted on tendering the takings statement which showed that Ms Mandell took cash from the till. It also showed that he too took cash from the till. The harm that this evidence did him vastly outweighed any possible benefit his case could have gained by damaging Ms Mandell's credibility. The appellant's concern with the possibility that the authorities were prosecuting him for the offences charged because they were unable to prosecute him for tax evasion was, of course, entirely irrelevant to whether he was guilty of the offences with which he was charged. The appellant's pursuit of this concern was not only irrelevant, but it was a waste of the jury's time. Its only likely effect would be to annoy the jury and to suggest that he was engaged in baseless prevarication. No barrister worthy of his or her salt would have allowed the appellant to be disadvantaged in this way.

It is also relevant here to note that the appellant was unable to put an argument to the jury which could have been put by counsel, viz, that, although on the evidence the jury may have thought the appellant was probably guilty, they could not be satisfied of his guilt beyond reasonable doubt, in the light of his evident personal eccentricities and bearing in mind that an element of the offence the subject of the first count was that the appellant knew that what he did was dishonest by the standards of ordinary honest people.²⁵

In its totality, the prejudicial effect of the appellant's representation of himself was serious. The disadvantage suffered by the appellant by reason of the lack of representation was aggravated by the learned trial judge chastising the appellant in front of the jury for dismissing Mr Murphy without any reasonable basis for doing so. It is impossible to conclude that the appellant was not significantly disadvantaged by his repetitious carping about the difficulties he faced in representing himself and his undisciplined, and sometimes downright silly, speeches. The prosecutor reminded the jury that they should not convict the appellant because they did not like him, but, in the end, I am unable to avoid the conclusion that the appellant's ill-advised, undisciplined, and repetitious defence of himself was not only unwise, but was, in its totality, inconsistent with what the High Court has described as the "essential accusatory character of the criminal trial in this country".²⁶

No criticism can be levelled at the learned trial judge by reason of his inability to persuade the appellant to moderate his behaviour and discipline his cross-examination and statements to the jury; but it nevertheless remains true to say that the appellant was substantially disadvantaged by the absence of legal representation in ways that would affect adversely innocent persons charged with criminal misconduct who are obliged to conduct their own defence. Such persons may be uneducated or unreasonable or both. Having legal representation at their trial serves to minimise these disadvantages and to ensure that the forensic advantages of the accusatory character of the criminal trial under our law are preserved to the accused.

In summary then, in relation to the proviso, I consider that the appellant's contention, that the proviso cannot apply to this case, must be upheld. Even though the case against the appellant was very strong, the guilt of the appellant can be lawfully established only by a trial conducted according to law. For the reasons I have given, I respectfully consider that, in this case, that did not occur.

Conclusion and orders

I am acutely conscious that this Court should not be astute to second-guess decisions made by trial judges in the conduct of criminal trials. And this Court should be especially cautious in upholding criticisms of a trial judge which arise in consequence of the judge's zeal to ensure the efficient administration of justice.

Trial judges are confronted with the unenviable task of ensuring the maintenance of the balance between fairness to the accused and the efficiency of the administration of justice. That task is made considerably harder when the trial judge is obliged to preside over the trial of an accused who, in the course of representing himself or herself, is determined to pursue irrelevancies and to resist well-meaning attempts to provide guidance. On occasions, a trial judge will be obliged to shoulder the special burdens associated with the trial of an accused person who does not have the benefit of legal representation. In conformity with the decision of the High Court in Dietrich v The Queen, however, those occasions should be exceptional. In my respectful opinion, the present case was not a case in which this exceptional course was warranted. Nor was it a case where the need to ensure the integrity and efficacy of the trial process warranted a refusal to allow the appellant to cross-examine the witnesses called in his absence.

The errors which occurred in the process of the trial were such that this Court is unable to sustain the convictions by the application of s 668E(1A) of the Criminal Code.

Accordingly, the appeal should be allowed. The convictions on both counts on the indictment should be set aside. There should be a new trial of both counts.

FRYBERG J: “The observance of forms” wrote Windeyer J, “and the due recording of proceedings are one of the safeguards of justice according to law.”²⁷ That dictum was recently cited out of court by Justice Gummow in a footnote to the following passage:

“The criminal law provides examples where great significance is attached to matters of form. A principal reason for this was recently remarked by Lord Bingham of Cornhill in R v Clarke. His Lordship said:

‘Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime certain degree of formality is not out of place.’ [2008] UKHL 8 at [17].”²⁸

The present appeal provides an occasion for the application of those statements.

I agree with the orders proposed by Keane JA. Subject to what follows, I also agree with his Honour's reasons for those orders.

Leave to withdraw

After considerable delay the appellant’s trial was, on 26 March 2007, listed for trial on 10 July 2007. On 9 July 2007 the matter came on before Dodds DCJ. How that came about does not appear from the appeal record. Mr F Walsh appeared for the Crown instructed by the Commonwealth Director of Public Prosecutions. Mr P Murphy of Legal Aid (Queensland) appeared for the appellant, who was present. After the judge indicated his willingness to take the matter, the following occurred:

“MR MURPHY: Your Honour, this is my application for leave to withdraw.

HIS HONOUR: Yes.

MR MURPHY: Your Honour, I was briefed by the Legal Aid Office to appear for Mr East towards the end of March this year. At that stage, a trial listing was in place, I think, for the 16th of April.

HIS HONOUR: Yes.

MR MURPHY: Your Honour would recall that I made an application on the 26th of March before you to seek an adjournment and your Honour granted that adjournment. I briefed Mr Colin Reid of Counsel to appear for Mr East. The brief is rather large. There are about 40 witnesses involved. Mr East was formally represented by another solicitor and counsel at his committal hearing.

Mr Reid and I had three conferences with Mr East throughout the course of May and June this year. Last Tuesday, Mr East came to my office for a meeting with me. Unexpectedly, he raised with me his view that he thought that his matter wasn't ready for trial. He suggested that Mr Reid and I had not been acting in his best interests; that we'd been wasting time. That is not agreed, of course.

He expressed a lack of confidence in us as his representatives. The meeting deteriorated to the point where he shared with me his view that he felt that I wasn't competent to represent him. In those circumstances, I felt that my position was untenable. I indicated to Mr East that I felt I should not act for him any further and I immediately notified the Court and Mr Walsh of my intention to make an application for leave to withdraw.

HIS HONOUR: Yes. You have leave to withdraw.

MR MURPHY: Thank you, your Honour.”

That proceeding was irregular for at least two reasons. First and most importantly, his Honour made the order without hearing from Mr East, the person affected by it. The principle embodied in the Latin expression audi alteram partem is fundamental to the right to have natural justice in proceedings in our courts.²⁹ Second, his Honour made the order without having any evidence before him to justify its making. Mr Murphy's application, made on his own behalf, was brought under r 19(4)(c) of the Criminal Practice Rules. As he was entitled to do, Mr Murphy brought that application orally,³⁰ from the bar table. However Mr Murphy was not entitled to succeed in his application unless it was consented to or he proved the matters set out in rr 19(4)(a) and (b)³¹ and proved facts warranting a favourable exercise of discretion at such a late stage. Mr Murphy did none of these things. He led no evidence at all. He made assertions from the bar table relevant to discretionary matters, but that was all. Those assertions were not admitted by Mr East - as already noted, he was not given a hearing on the question. In the circumstances, the order should not have been made.

There was another reason why evidence was important. The trial was listed to commence the following day. The possibility of an adjournment application must have been obvious. It must, with great respect, also have been obvious that Mr East might base such an application on his inability to brief fresh lawyers in time. Mr East's responsibility for the situation would be a relevant matter in any such application. Although in theory evidence on that topic could be led in the subsequent adjournment application, it was not desirable to create a situation where there was a possible disjunction between such evidence and the actual grounds upon which leave to withdraw was given.

Rule 19 necessarily results in the judge who hears an application under it enquiring into the relationship between an accused person and his legal representatives in cases where that relationship is relevant to the application. Had his Honour done so in the present case, I have no doubt that the argument addressed to this Court on this ground³² would not have been open. The appellant's subsequent conduct makes it plain that evidence of his lack of confidence in his lawyers and his demands for steps to be taken which they were not willing to take would certainly have emerged. The order would have been made. This ground of appeal must be rejected.

The application for an adjournment

Having ascertained that the prosecution was ready to proceed, his Honour turned to Mr East. The latter applied orally for the trial to be adjourned “so that I have enough time to prepare the case for my defence”. Mr East submitted that he needed more time for three reasons. The first was that he needed to get additional legal aid “to [provide] enough hours for preparation, solicitors and barrister on record and largely at least, briefs so they could advise me as to which witnesses I need and arrange for those and for the successful obtaining of necessary documents”. He conceded, indeed asserted, that the solicitor-client relationship between him and Mr Murphy had “completely broken down”. The second was that he and they would then need enough preparation time. The third was that an application for an order for discovery against the prosecution would need to be made. Mr East complained that the prosecution had failed or refused to return documents seized more than five years earlier and had disclosed only four out of 152 fortnightly returns made by him to Centrelink.

Mr East handed his Honour a statutory declaration which he asked not be shown to the Crown prosecutor. His Honour accepted it and read it, and had it placed in a sealed envelope without showing it to the prosecutor. It was a short declaration with two lengthy attachments, designed to show that Mr East was not at fault over the breakdown of the relationship with his solicitor. It failed in that purpose, but it probably contained enough to suggest that he was not solely at fault. Since fault was a factor relevant to the grant of an adjournment, it was a document which if it was to be relied on at all, should have been disclosed to the Crown prosecutor. I doubt if it contains anything which would have prejudiced Mr East's trial, and on the appeal his lawyers were content for the Crown (and the Court) to have it.

In response the prosecutor made three points. First, he told the court that a number of documents were missing because they had been culled as part of normal Centrelink procedures. Second, he submitted that Mr East was fully aware of the Crown case and ought to have been ready for trial. He pointed to the committal proceedings which took 13 days and the extensive number of documents produced at the committal and to the fact that Mr East had received legal advice. He referred to the history of delay in the matter and to the pending trial of Mr East's co-accused, but did not suggest that the delay was Mr East's fault. Third he submitted that the Crown had had some difficulties with witnesses and that it would be difficult to coordinate those witnesses again if the trial were adjourned. One of the witnesses was particularly old and very frail. Others were farmers with operating farms who had to put time aside for the trial and would be inconvenienced by an adjournment. From the Crown's point of view it would be “quite intolerable … just to try to bring these people together again.”

Dodds DCJ rejected the application. He referred to the history of the matter and the listing difficulties which had arisen in relation to it and to the trial of Mr East's co-accused. He recorded the adjournment of the trial the previous March as a result of the solicitor then acting for Mr East being granted leave to withdraw; and that “it was said that there was some funding issue regarding legal aid”. He summarised what Mr Murphy had said in support of his application to withdraw.³³ He summarised Mr East's submission: “He wants, apparently, to have Legal Aid brief some other lawyers who will prepare the case and run the case as he thinks it should be run and prepared”. He recorded that he had read Mr East's statutory declaration but did not indicate what weight, if any, he had given to it. He then stated his decision not to adjourn the trial. He did not expressly say why he had so decided, but it appears implicit that he did so because Mr East had had multiple sets of lawyers and because the trial date on the following day was the second for the matter and had been set well in advance.

Despite the fact that the trial had not begun, his Honour had jurisdiction to deal with the application.³⁴ He did not require it to be in writing, which was reasonable in the circumstances.³⁵ However his willingness to deal with the application on submissions rather than on evidence (with the one exception of the statutory declaration described above) was unfortunate. Mr East's complaint that documents seized from him and needed for his trial had not been returned was left uninvestigated. The prosecutor's implied assertion that all relevant Centrelink documents had been disclosed or destroyed was untested and the circumstances of destruction were unknown. The missing documents may not have been in the possession of the prosecution³⁶ for the purposes of Division 3 of Chapter 62 of the Criminal Code; but that was not conclusive of the necessity for an adjournment. More importantly there was no evidence to establish whether an adjournment would further Mr East's prospects of obtaining legal aid not just for legal representation at the trial (it may be assumed that the grant already made would have covered that), but also for the large amount of preparatory reading which new lawyers would have to undertake and for an advice (or a further advice) on evidence. It was not to be assumed that such funding would have been forthcoming. As things stood, there was not even any evidence that Mr East had applied for the additional funding. One set of lawyers had, apparently, already withdrawn over a funding issue. Unless Mr East had possessed a reasonable prospect of obtaining the necessary funding, an adjournment would have been pointless.

Evidence on such matters would necessarily have involved a considerable amount of speculation. His Honour might have considered adjourning the proceedings for long enough to enable the necessary funding application to be determined. He did not do so.

I am very conscious that decisions at first instance involving the exercise of a discretion on questions of procedure are seldom interfered with at appellate level. However with great respect to his Honour, his reasons for refusing the adjournment were in my judgment inadequate. The great importance of legal representation in securing a fair trial is manifest from the decision of the High Court in Dietrich v The Queen.³⁷ Neither the fact that Mr East had had multiple sets of lawyers nor the fact that the trial date was the second for the matter and had been set well in advance was sufficient to justify depriving Mr East of any reasonable prospect of obtaining legal representation. There was no suggestion that Mr East had been at fault regarding the withdrawal of those who had earlier represented him; and while his statutory declaration was sufficient to demonstrate that he was partly at fault in relation to the withdrawal of Mr Murphy, there was no finding on that question and no investigation of the degree of his fault. In the absence of evidence it was not suggested that he was in any way responsible for the first adjournment of the trial or was engaged upon a deliberate attempt to delay it for ulterior purposes. In these circumstances his Honour should in my judgment at least have advised Mr East of the need for evidence to show that a substantial adjournment would change the position regarding missing documents or legal representation, and allowed sufficient time, perhaps a few days, for such evidence to be gathered.

Does that mean that the appeal should be allowed on this ground? I think not. Mr East was not entitled to a substantial adjournment of the trial unless he could show that such an adjournment would provide him with a reasonable prospect of obtaining either the missing documents or legal representation for the trial. No evidence has been placed before us on the appeal to suggest that Mr East would have been able to do either. It is true that he had already been granted legal aid for the trial, but that would not cover the huge amount of repeat preparation necessary in this case. Given the paltry level of remuneration usually provided by Legal Aid Queensland (a level which is in no way the fault of the admirable people who work in that organisation) it could not be assumed that any lawyer would undertake the additional work pro bono or that another in-house lawyer from the organisation would have been made available.³⁸ In my judgment it is simply not possible to conclude that a substantial adjournment would have been of any benefit to Mr East.

Cross-examination of the three witnesses

The rights conferred by s 616 of the Criminal Code may correctly be described as procedural, but they are fundamental rights to what elsewhere is called due process. In terms the section does not apply in the present case (except to reinforce the appellant's arguments regarding the desirability of granting an adjournment). An unrepresented accused by definition cannot have witnesses examined and cross-examined by his or her counsel. However in my judgment the words of the section should not be read as limiting the rights of an unrepresented accused person or as implying the non-existence of those rights in such a case. Save where the Code expressly otherwise provides, the rights of an unrepresented accused should be no less than those of one who has representation.

I agree with Keane JA that the record discloses no sufficient basis for the judge's refusal to require the three witnesses who had not been cross-examined to be recalled for cross-examination.

I have enormous sympathy for the difficult position in which the trial judge was placed by the appellant's conduct. I know from personal experience the pressures which such conduct places upon a trial judge.³⁹ However the right to cross-examination is so important that on this ground of appeal, procedure trumps substance.

On all other issues I agree with Keane JA.

LYONS J: I have had the advantage of reading the reasons of Keane JA and agree with those reasons. I wish to add the following comments. It is clear that the learned trial judge was concerned to ensure the efficient administration of justice in refusing to grant an adjournment on the eve of trial when the Crown was ready to proceed and where numerous witnesses had been assembled. It was also clear that a substantial period of Court time had been set aside given that it was originally listed as a two week trial and ultimately took some sixteen hearing days. The learned trial judge was diligently trying to progress a matter which had its origins in a factual matrix that commenced in 1993. However, given the very clear exhortation in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 of the desirability of an accused person who is charged with a serious offence being represented and the clear indication that a trial should proceed without representation in “exceptional cases only” an adjournment should have been granted in the circumstances of this case. The circumstances of this case were such that the trial was clearly going to be long and complex given that it involved defrauding the Commonwealth and it had been set down with an indication it would take two weeks to hear even with legal representation. It would also seem clear that the legal aid funding was to continue but that a period of time was required in order to engage new representatives. There was no indication that the adjournment would have been lengthy. In those circumstances the trial should not have proceeded without representation particularly when the appellant was making it very plain that he wished to be represented.

There is no doubt that a perusal of the transcript indicates that the appellant was rude and difficult on many occasions during the trial and the learned trial judge proceeded with undoubted patience and courtesy. However, it is clear on the facts that a portion of the trial was conducted when the appellant was not present. This is contrary to the strict requirements of s 617(1) of the Criminal Code Act 1899 (Qld) but it is also clear that the appellant’s behaviour was such that the learned trial judge was justified in proceeding in accordance with s 617(2) and directing that the trial was to proceed in his absence. However the evidence of three witnesses was given in the appellant’s absence and significantly he was not given the opportunity to cross-examine any of them when he returned to court after his episode of very disruptive behaviour. I agree with Keane JA that when the appellant ceased his disruptive behaviour the three witnesses should have been recalled to give the appellant the opportunity to cross-examine them.

I do not consider that this is a case for the application of the proviso given this failure to afford the appellant the opportunity to cross-examine three witnesses. I agree with the orders proposed by Keane JA.

Footnotes

1. (1992) 177 CLR 292 at 311, 331, 342 - 343. ↩

2. (1992) 177 CLR 292 at 311. ↩

3. Cf R v K; ex parte A-G (Qld) [2002] QCA 260. ↩

4. Dietrich v The Queen (1992) 177 CLR 292 at 315. ↩

5. [1918] St R Qd 57. ↩

6. (1984) 154 CLR 563 at 575 – 578. ↩

7. (1984) 154 CLR 563 at 575 – 576. ↩

8. R v Russell-Jones [1995] 3 All ER 239 at 243 – 245; cf R v Haringey Justices; ex parte DPP [1996] 1 All ER 828 at 831 – 832. ↩

9. 41st Ed at 4-178. ↩

10. (1990) 93 ALR 79 at 87. ↩

11. R v Oliva (1965) 49 Cr App R 298. ↩

12. (1981) 147 CLR 512 at 524. ↩

13. (1988) 164 CLR 365 at 372 – 373 (citations footnoted in original). ↩