ADELAIDE, 22 July 1997 (hearing), 29 August 1997 (decision)

The circumstances of these appeals are explained in the reasons of Olsson J which I have had the advantage of reading.

In my opinion, the learned Judge who heard the Dietrich application took too narrow a view when he said that the need of a defendant for financial assistance to proof and call expert witnesses falls outside the scope of a Dietrich application. However, a disagreement with the learned Judge on that issue would not of itself undermine his Honour's decision with respect to a lack of legal representation. As to that, the Judge took into account that the Legal Services Commission's revised policy on funding cuts meant that, even if he were to grant the application for a stay, legal aid would not be forthcoming and the charges against the appellants "would virtually be permanently stayed". In my opinion, that was not a relevant consideration. That means that we must form an opinion of our own on the merits of the applications. On that question I am in general agreement with the reasons of Olsson J. Some of the arguments urged by the appellants have little merit and others have none at all, and it is a weighty consideration that they are qualified lawyers and that the case against them will in large measure duplicate the civil case they have already faced in the Federal Court. If we were considering a trial of a similar nature and length to the trial in the District Court of Western Australia last year, I might well reject the applications. The appellants would not find such a trial easy, but I think they could probably manage adequately, as, indeed, they evidently did in Western Australia. However, the projected trial in this Court is of a quite different order of magnitude from the Western Australian case. That was a five-week trial in which the two appellants faced three charges, two against one defendant and a single charge against the other. Here there will be two or three defendants, facing twenty-two counts, seventeen against them jointly and five against Fuller alone, and the Crown estimates that the trial will take at least six months. I think all of that makes this a very different case. The appellants' court experience is practically confined to the matters, civil and criminal, in which they have appeared as litigants - quite a number of them by now, but in my judgment an insufficient qualification for them (and especially Cummings) to conduct their defences adequately in a case of such length and complexity as this. I do not think that they could have a fair trial if they were to go into it unrepresented. To use the language of Dietrich, the appellants made out their general case and no sufficient "exceptional circumstances" have been shown to deny them the relief they seek.

I would allow the appeal and make the orders proposed by Olsson J.

These are appeals, pursuant to section 352(1)(c)(i) of the Criminal Law Consolidation Act, against refusals to stay prosecutions against the appellants on the basis of the principles adverted to in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 ("Dietrich").

They have been presented for trial on informations filed by a Commonwealth Assistant Director of Public Prosecutions. Those informations allege multiple counts of fraudulent application of property as director of a public company and improper use of position as a director. Most are joint counts based upon an assertion that the appellants were aided, abetted, counselled or procured by or acted in concert with one Johnson in committing the offences, whilst five counts are preferred against the appellant Fuller alone. In their totality the alleged offences relate to a series of commercial transactions said to have involved in excess of twenty million dollars; and occurred whilst the appellants held office as directors of public companies known as Claremont Petroleum NL and/or Beach Petroleum NL. It is accepted that the charges against the appellants were "serious offences", in the sense in which that phrase is employed in Dietrich.

It is common ground that any trial of the charges against the appellants will necessarily extend over 6-9 months and involve complex factual and legal issues. Clearly, if the appellants were lay persons possessing no skills in the conduct of major litigation, then they would be quite unable to conduct a defence of the charges against them in an adequate fashion, so that any trial could be characterised as fair.

It is also to be noted that both appellants were declared bankrupt and are "indigent" within the concept espoused in Dietrich, albeit that the appellant Cummings was discharged from bankruptcy on 29 June 1996. Manifestly, they both lack the means of engaging appropriate legal representation, securing expert evidence, or expending other significant moneys to conduct their respective defences in a trial of the magnitude here in question. It has never been suggested that there is any relevant "fault" on their part in relation to their inability to obtain legal representation.

In the course of his reasons for refusing a stay, the learned trial Judge noted that, in Dietrich, the relevant principle was summarised in these terms

" 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 instant case the learned trial Judge concluded that there were "exceptional circumstances" which took the situation outside the application of the Dietrich principle. The appellants were, he said, experienced and skilled litigants, who possessed a detailed knowledge and understanding of the factual and legal issues involved. Moreover, whilst he seems to have accepted that they needed financial assistance to proof and call relevant expert witnesses, he considered that "Dietrich's case does not deal with that problem for an indigent accused. It is not clearly to be categorised as a legal representation problem". He also bore in mind that the Legal Services Commission had reduced its funding "cap" for expensive cases to $75,000, where there was more than one accused. He assessed that "even if I grant the application for a stay, legal aid will not be forthcoming, and this information would virtually be permanently stayed". He further made reference to the legal obligation of the trial Judge to assist unrepresented accused.

It is to be noted that, in further reasons for decision published by him on 25 March 1997, the learned trial Judge made it abundantly clear that his ultimate decision to reject the appellants' applications was based on the combined effect of the above reasons; i.e., he did not separately base it on any single one of them, or on specific, alternative grounds (Appeal Book p 48).

The appellants seek to challenge the propriety of the conclusions reached by the learned trial Judge. They also contend that he does not appear, adequately, to have focused upon the individual situation of each of them, taken separately.

Before I turn to the specific grounds of the appeals it is desirable, initially, to reflect upon certain aspects of the factual background.

I commence by noting that it was conceded by counsel for the respondent that the trial would be lengthy and that "It would have to be acknowledged that it is going to be a difficult trial for experienced counsel". The prosecution team will be led by senior counsel.

As against that both appellants possess legal qualifications, although neither have been active in legal practice for some years; and neither has ever practised in the criminal jurisdiction, or as counsel.

The appellant Fuller was admitted as a legal practitioner in 1964. He was in legal practice as a commercial solicitor until about 1983/4. He was the director of numerous companies and, after ceasing practice, concentrated on his role and responsibilities as director of corporate entities.

The appellant Cummings was admitted as a legal practitioner in December 1981. He practised as a commercial solicitor until March 1985. He has, since, also been engaged in corporate activities as a director.

It appears that the appellants each appeared in person in civil proceedings before the Federal Court, in what was described as the closing stages of a trial which, in its totality, extended over a period of some ten months from mid-1992 to early 1993. This case led to the 191 page judgment of von Doussa J, reported as Beach Petroleum NL and Anor v Johnson and Ors [1993] FCA 283; (1993) 115 ALR 411. That judgment traversed a factual background similar to that which founds the present prosecutions. It eloquently testifies to the likely length of and complexities attendant upon the present criminal proceedings. It is not to be forgotten that the appellants had been legally represented by experienced counsel before von Doussa J for what was, basically, the first half of the trial. According to the evidence given by Cummings, the appellants' role, in the latter stages, was relatively limited.

The appellants sought, unsuccessfully, to appeal successively to the Full Court of the Federal Court and to the High Court against the judgment of von Doussa J. The learned trial Judge commented that these appeals were argued by the appellant Fuller, in particular, in a confident and sophisticated manner.

According to the reasons published by the learned trial Judge, the appellants, following an unsuccessful Dietrich application to the Western Australian District Court, defended themselves in person in that court on a trial of charges not generically dissimilar to those here in issue, extending over some five weeks. That trial, which involved only a single charge against the appellant Cummings and two charges against the appellant Fuller, resulted in their acquittal.

It had been preceded by an earlier, successful Dietrich application prosecuted by the appellants in relation to other charges sought to be brought against them in the Western Australian District Court.

The learned trial Judge drew attention to the transcript of the proceedings in the Western Australian District Court related to the unsuccessful Dietrich application and reasons for decision of Muller DCJ in relation to it. These reasons advert to the apparent knowledge of Fuller, in particular, of the rules of evidence and procedure and his ability as a cross examiner. Reference was also made to comments by Muller DCJ concerning the capacity of the appellant Cummings as a cross examiner and advocate.

The learned trial Judge further adverted to Fuller's involvement in other forms of civil litigation and the mode of conduct, by both appellants, of the committal proceedings in relation to the charges now before the Court. Full details of the litigation in question are set out, in precis form, in the outline of submissions of Mr Rice, of counsel for the respondent, and do not here require repetition.

The learned trial Judge concluded his recitation of the relevant history by saying -

" From what I have written, it will, I think, be apparent that both the applicants, and especially Fuller, are experienced and skilled litigants. Moreover, they have had the very relevant experience of being involved in person in Beach Petroleum out of which these charges arose."

He went on to acknowledge that, whilst it is true that the appellants would be incapable of acting dispassionately in conducting their own defence, nevertheless, they stood in a position of marked contrast with Dietrich - who had had no relevant training or understanding of legal procedures and who had asserted that he was not emotionally or mentally fit to conduct his own defence.

Although the notices of appeal raise a variety of issues, it seems to me that the gravamen of the appellant Fuller's complaints is summarised in his assertions that the learned trial Judge erred by failing to consider and give weight to these circumstances

"(a) the fact that this will be a joint trial involving at least two (2) accused;

(b) the inadequacy of the defence's resources to counterbalance the power of the State;

(d) the skills involved other than a knowledge of evidence and procedure;

(e) the continual exposure of personality and demeanour other than in the witness box;

(f) uncertainty as to the appearance and representation of the co-accused Johnson;

(g) the difficulties associated with re-examination;

(h) the difficulties associated with the relationship between the accused during the prosecution case compared with their relationship during the defence case."

For his part, the core contentions of the appellant Cummings were said to be that -

". The learned Trial Judge erred in failing to consider whether the absence of financial assistance to enable the applicant to proof and call expert witnesses would lead to an unfair trial according to law.

* The learned Trial Judge erred in relying upon the following matters in the assessment of the applicant's ability to defend himself unrepresented: (a) The findings of fact of Muller DCJ made in the context of a single charge of three weeks' duration. (b) The applicant's appearance as a litigant in the civil case of Beach petroleum NL and Claremont Petroleum NL v Johnson & Ors [1993] FCA 283; (1993) 115 ALR 411 when the evidence before him was that, final submissions aside, the applicant did not directly participate in those proceedings. (c) The applicant's successful representation of himself before Barlow DCJ on an application to stay a criminal trial of an information charging five counts with an estimated duration of six weeks, and in giving no or insufficient weight to: (i) the respondent's concession that the charges were very serious, that the trial would be difficult even for experienced counsel (transcript p 484) and that the prosecution would be conducted by senior counsel (transcript p 485); (ii) the length and complexity of the case which is compounded by being a joint trial involving at least two accused; (iii) the applicant's incapacity to act dispassionately in conducting his own defence; (iv) the applicant's lack of special skills for the proper conduct of his own defence.

* The learned Trial Judge erred in failing to distinguish and independently assess the capability of the applicant to defend himself from the capability of his co-accused Fuller."

In addressing the submissions made to the Court on these appeals it is necessary, first, to direct attention to certain basic principles established by the authorities.

The logical commencement point is the reasoning of the majority in Dietrich.

As I understand the judgments in that case they confirm the following propositions -

(1) the common law of Australia does not confer upon a person accused of a serious offence the right to be provided with counsel at public expense;

(2) it does, however, recognise the right of an accused to a fair trial and the concomitant power of a court to stay criminal proceedings in circumstances which deny that right;

(3) it is not feasible, or desirable, to attempt to construct an exhaustive list of the attributes of a fair trial. However, leaving aside, for the moment, the issue of legal representation, basic minimum rights of an accused include -

* the right to have adequate time and facilities for the preparation of a defence; * the right to the free assistance of an interpreter when required;

(4) subject to the caveats expressed in the Dietrich formulation, a trial will not, relevantly, be fair if an accused does not have representation by counsel;

(5) That situation arises "save in the exceptional case of the skilled litigant", because the unrepresented litigant is disadvantaged -

"... not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown. The hallowed response that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a "helping hand" to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems."

As Gaudron J stressed in Dietrich, a trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted. This is, as it appears to me, the bottom line consideration in assessing any situation in its discrete factual context.

In seeking to test the circumstances of the instant case against the foregoing concepts it is, in my opinion, unduly simplistic merely to focus upon a suggestion that each of the two appellants is a legally qualified person with commercial experience, has a detailed grasp of all the relevant narrative facts, and is familiar with relevant statutory provisions bearing on the corporate area. Nor is it appropriate simply to consider the broad situation of the two accused collectively - by way of contrast with focusing upon the position of each of them individually. Indeed, in this case, there is a body of evidence which suggests that the capacity of the appellant Fuller to defend himself may well be significantly different to that of his co-accused Cummings.

The appellant Cummings, in his affidavit in support of the Dietrich application, deposed to these matters -

* he has not practised as a lawyer since March 1988; * when in practice he did not engage in any form of litigation and had never participated in any criminal trial; * he has had no experience as a legal practitioner to equip or assist him in the conduct of the criminal charges preferred against him and his sole advocacy experience arises from the litigation in which he has recently been involved, as above adverted to; * the present charges give rise to complex legal and factual issues - as to which the interests of the appellant Fuller and himself may not be coincident. The situation may become even more complex if, as appears likely, Johnson is extradited to Australia. Questions may well arise as to whether there ought to be separate trials of each appellant; * such is the scope and complexity of the presentation that the appellants will be required to face a case conducted by a prosecution team led by senior counsel and a junior, plus appropriate support staff. The prosecution has already served a brief comprising some 70 witness statements in 30 lever arch files, together with a large quantity of other subpoenaed material; * witnesses to be called by the Crown include experts such as lawyers, accountants, geologists, petroleum engineers and stock brokers. [In this regard it was pointed out on behalf of the appellants that a core issue in the case is likely to be the validity of certain complex oilfield valuations made by a Crown expert, which necessarily imports a need to seek and obtain defence expert evidence on the same topic.]; * it is already apparent that, at trial, difficult questions will arise on issues relating to jurisdiction (because most factual events occurred outside this State), joinder of counts, joinder of parties, admissibility of documentary evidence, the situation of Crown witnesses not proposed to be called, further and better particulars, accomplice evidence and the adequacy of prosecution disclosure; * difficult evidentiary issues will also inevitably arise in relation to the "co-conspirator's rule" and evidence admissibility vis a vis specific appellants - and cross examination capacity of a high order will be needed to develop the defence cases.

Cummings deposes that he does not possess the skill necessary to handle these aspects effectively. He points out that he does not have adequate, relevant cross examination experience in the criminal setting and does not possess the knowledge or experience essential to make proper tactical decisions as to objections and the proper conduct of a criminal trial of the present magnitude and complexity.

Counsel who appeared to assist Cummings at the appeal hearing stressed that, quite apart from the problems above outlined, he had no resources with which to engage any assistance at trial, or to engage expert witnesses; and that it would impose an unfair and intolerable burden on him to attempt, unaided, to grapple with a 6-9 month trial - he could not even afford to purchase a basic item such as a copy of the transcript. He would greatly be disadvantaged in attempting to present evidence in chief effectively and in dealing with the issue of re-examination. He would also be at an enormous disadvantage, bearing in mind the obvious stresses and emotional impact of the trial, in making objective and rational decisions as to detailed aspects of the conduct of a defence and in competing with a team of counsel and instructing solicitors experienced in criminal work, including senior counsel. It would, to say the least, be a very unequal contest.

It is fair to say that not only are many of these complaints self-evident truths, but also a large number of them were not effectively challenged. The high water mark of the prosecution answer was a pointing to the involvement of the appellants to date in various forms of litigation and the bald assertions that, seemingly, they had coped quite well in the context of them. This is a facet which seems to have made a significant impact upon the learned trial Judge.

With all due respect, it is a very hazardous exercise to attempt to make such an assessment on the basis of mere documentary material, judgmental expressions of others, or the very limited context of evidence given in a Dietrich application. The nature and scope of the Western Australian proceedings adverted to and the personal involvement of the appellant Cummings in them are worlds apart from the prospect of a multiple accused, complex criminal trial before a jury, extending over 6-9 months, with all of the technical and tactical considerations arising in relation to it.

It seems to me that it is turning one's face away from reality to suggest that the appellant Cummings would be able, effectively, to come to terms with a task which would be considered daunting even by a highly experienced and capable member of the criminal bar, who also had appropriate support from a competent instructing solicitor. Indeed there is, in truth, relatively little evidence which suggests a high level of capability on the part of the appellant Cummings as an advocate, by way of contrast with the appellant Fuller, who, to date, has essentially played the leading advocacy role. There is, in my view, force in the contention that there has been an unfortunate tendency to view both appellants as a composite duo, rather than assess their separate situations. This becomes doubly significant when it is borne in mind that their respective interests may not, on an objective overview, necessarily remain coincident at trial.

Be that as it may, the characteristics of Fuller are essentially similar to those of Cummings, given that, in a general sense, he is the more experienced of the two. However, it must be emphasised that he too, has had no formal experience at the bar, or in the criminal jurisdiction. The court is simply not in a situation to assess - with any accuracy, how well either appellant has really been able to perform, even in the context of what have, to date, been relatively simple criminal proceedings.

The inescapable assessment on the material before this Court is that neither appellant is likely, absent counsel and other professional assistance, to be able to do himself justice in the conduct of a proper and adequate defence of a criminal trial of the type of that now in contemplation.

On any view it is, in my opinion, therefore difficult to sustain the conclusion arrived at by the learned trial Judge on an overall appraisal of the evidence in this case. The Crown contention is, at best, one which has some superficial attraction, but cannot withstand serious scrutiny. However, that aside, there can be no doubt that, on these appeals, counsel for the appellants have clearly established that, with all due respect, the learned trial Judge fell into error in two important and quite critical respects, both of which formed significant bases for the conclusion to which he came.

Insofar as the learned trial Judge based his conclusion on an understanding of the legal aid situation and the fact that a stay pending provision of proper representation would be tantamount to a virtual permanent stay, two comments need to be made.

The first is that what was said by the learned trial Judge constituted an assumption of fact for which there was no adequate evidentiary foundation. It does not follow that the expressed attitude of the Legal Services Commission would, necessarily, be the end of the matter. As in other cases, it would be open to the prosecuting authority, through the Attorney-General, to make some special provision for costs if it desired to proceed.

Secondly, and more importantly, this aspect is, with respect, simply totally irrelevant to the proper disposal of a Dietrich-type application. If the Dietrich tests are satisfied, then a proper exercise of judicial discretion demands the granting of a stay until proper representation is assured. If, in the event, no proper representation is provided for and the stay becomes, as a matter of practical reality, of permanent operation, then so be it. That end result is merely the outcome of a positive decision by the Executive Government not to do those things which are requisite to bring about a discharge of the stay order. To bring into account a consideration of the nature referred to by the learned trial Judge would be, seriously, to undermine (and largely negate) the Dietrich concept.

Finally, the somewhat summary rejection by the learned trial Judge of the need for financial assistance to secure the advice and evidence of expert witnesses because "Dietrich's case does not deal with that problem for an indigent accused" fails to recognise the fundamental reasoning adopted by the High Court in Dietrich. As is apparent from a perusal of the majority judgments in that case, the facts there under consideration simply constituted a practical illustration of when a trial would, patently, be unfair. The underlying principle itself is that the court should exercise its power to stay criminal prosecutions in any circumstance which would necessarily bring about a situation in which an accused person was tried unfairly, in the sense that what was proposed would involve the risk of an accused being improperly convicted. (See also Jago v The District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 at 56-7; McDermott v The King (1948) 76 CLR 501 at 511-515; Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 541.)

It is beyond question that, in the case at bar, fundamental, difficult and contentious technical issues will arise, in relation to which the prosecution will be calling a series of professional/expert witnesses. One area of concern will relate to the very difficult and highly specialised question of oilfield valuation. It is stating the obvious to say that, if, due to indigency, the two accused are unable to secure countervailing expert assistance and evidence, they will clearly be unable to develop a proper defence or, for that matter, even equip themselves to found a proper and adequate cross examination of important prosecution witnesses. The situation is somewhat analogous to a practical denial of the right of an accused to access to independent expert DNA analysis and evidence to meet contentious DNA evidence proposed to be adduced by the Crown in a sexual assault case.

I do not see how it can seriously be contended that a denial of access by an accused person to the means of meeting contentious expert evidence founding a prosecution case (both by cross examination and the adducing of proper countervailing evidence) does not, manifestly, give rise to a most serious risk of improper conviction.

That situation alone would found an unanswerable case for a stay order.

However, as I have been at pains to demonstrate, the decision of the learned trial Judge was stated by him to be based on a complex of considerations. It is impossible to discern, in his reasons, the relative impact of any single factor on his ultimate decision.

This inevitably leads to a situation in which error has been demonstrated on a basis which not only requires the order appealed against to be set aside, but also requires this Court to reconsider the matter at large, on a footing whereby the exercise of discretion becomes our responsibility afresh, untrammelled by the views of the learned trial Judge.

Bearing in mind the reasoning above expressed, I would allow the appeal, set aside the orders of dismissal appealed against and substitute for them orders that proceedings on the information against each appellant be stayed until such further time as -

(1) proper and adequate legal representation for the reasonable duration of the trial is provided to each appellant; and

(2) proper and adequate funds are provided to the appellants to enable them to secure the services of such professional and/or expert assistance and witnesses as they may reasonably require to mount proper defences to the prosecution cases against them.

The background to these appeals is set out in the reasons of Olsson J.

The learned Judge at first instance observed: "... it seems clear that even if I grant the applications for a stay, legal aid will not be forthcoming, and this information would virtually be permanently stayed."

With respect, that was an irrelevant consideration. When the court yields to an application for a stay sought on a Dietrich application, the stay is likely to be permanent unless funding for the defence is forthcoming from one source or another. In practice it will usually come down to whether the Government is prepared to put up the necessary funds. The outcome of the balancing by the Government of the public interest and other considerations attendant upon the resolution of that question is not something upon which it is proper for the court, when considering an application of this kind, to speculate upon.

The only relevant question for the learned Judge was whether, having regard to the test propounded in Dietrich, the risk that the trial, if allowed to proceed, would not be a fair one was sufficiently substantial to justify the stay.

But the fact that the learned Judge referred to an irrelevant consideration would not amount to appealable error unless that consideration was taken into account by him in exercising his discretion. While the matter is not entirely clear, having regard to the context in which the observation was made, I think it likely that in fact it was a matter to which the learned Judge had regard in determining the application. In that connection, I note that the observation to which I have just referred was immediately followed by the statement:

"In my opinion, the combination of the circumstances are exceptional in this case."

It follows that in my opinion this Court should reconsider afresh the exercise of the discretion.

I have not found the process of revisiting the exercise of the discretion in this case an easy one. The matter is unusual. Not only are the appellants experienced legal practitioners, but the manner in which they have acquitted themselves in presenting their defence to other criminal charges, and in complex civil proceedings relating to the transactions which are at the heart of the present prosecutions, gives some buoyancy to the contention of the Crown that the risk of an unfair trial, if they were to appear unrepresented, is not substantial enough to justify a stay.

Not without some hesitation, but having regard particularly to the considerations referred to by Cox J in his reasons, I would not be prepared to dissent from the view of the majority that the appeal should be allowed and a stay ordered in the terms suggested by Olsson J.

Before parting with the matter, I should say that I agree with the other members of the Court that the need for financial assistance to proof and call expert witnesses is a factor to which regard can, and should, properly be made in the context of a Dietrich application.