R v Phung [1999] VSCA 195

"(i) the appellant was not without intelligence; and

(ii) he had a considerably better knowledge of English then he was prepared to disclose."

88. Section 360A of the Crimes Act provides, so far as is presently relevant:

"(1) Subject to sub-section (2) and despite any rule of law to the contrary, if -

the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.

(2) If a court is satisfied at any time before or during the trial that -

(a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and

(b) the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial -

the court may order Victoria Legal Aid to provide assistance to the accused, on any conditions specified by the court, and may adjourn the trial until such assistance has been provided."

99. The first application made by the applicant pursuant to the section was made to the Chief Judge of the County Court on 7 August 1998. The applicant appeared unrepresented by counsel or solicitor. An outline of the case against the applicant was stated by counsel for the Crown. He said that in a covert operation the applicant was observed selling heroin from a flat. The police used listening devices, video cameras and telephone intercepts. An undercover policeman, on occasion accompanied by an undercover policewoman, purchased heroin from the applicant. The applicant was easily recognisable as he had an extra thumb on each hand. After explaining the case for the Crown the prosecutor left the Court. The Chief Judge told the applicant that no representative of the Crown was present in court and no record of the proceedings would be provided to the Crown.

102. LAV was represented by counsel whose object was to oppose the making of an order that legal aid be given to LAV's former client. An affidavit exhibiting memoranda from counsel and a solicitor acting for the applicant at the committal paid for by LAV was relied upon by LAV. The memorandum from counsel stated that the committal hearing had been adjourned, but

"There is little merit in pursuing the committal further ... Mr. Phung intends at this stage to contest the charges, but acknowledges the problems he faces. In short, he has been surveilled, audio-taped and video-taped in his trafficking activities, he sold drugs to undercover police and the continuity of the drugs is unassailable, and he made a non-committal interview which excludes any apparent defences."

"... believed there would be no merit in funding a trial for this man. That is also my view. However the client is adamant he will plead not guilty because he did not do what he is accused of."

Neither counsel nor the solicitor said that the applicant admitted the charges or had no answer to the Crown case.

109. The Chief Judge said that "the evidence which is proposed to be led by the Crown, in my judgment, is very, very strong indeed in establishing your implication in the trafficking ..." The following exchange took place between the Chief Judge and the applicant speaking through an interpreter:

"What answer do you make to the evidence of the undercover police officers that they dealt with you and, indeed, purchased heroin from you on these number of occasions during that period in late 1996?

ACCUSED: I don't really understand. What sorts of evidence is?"

"So, to put it another way, what answer do you have to that evidence which is proposed to be led by the Crown?

HIS HONOUR: Does it come to this, that you wish to go for trial simply in the hope that, on the Crown evidence, the jury will not be satisfied of your guilt?

119. The Chief Judge refused the application on the sole ground that the applicant had not raised a triable issue. He said:

"In my judgment the Crown case is strong in the extreme and short of some significant additional evidence to be provided by the accused, one cannot contemplate that any genuine triable issue exists in the trial."

His Honour quoted from an earlier judgment of his own to the following effect:

"In a situation where an accused raises no triable issue, but simply wishes to put the Crown to its proof in the hope that at trial that proof may in some way or other be deficient it cannot, in my view, be said that the accused will not receive a fair trial unless he be legally represented in the trial."

"The fact simply is that the Crown case is complete, and, as I judge it, overwhelming and the accused makes no effective answer to it."

127. On 11 November 1998 another application for an order pursuant to s.360A was made to the Chief Judge. On this occasion the applicant was represented by counsel, who intimated that the applicant wished to contend that the undercover policeman to whom he was said to have sold heroin was an active participant in the alleged criminal activity and thus his evidence ought not to be admitted, in line with the principles discussed in such cases as Bunning v. Cross [1978] HCA 22; (1978) 141 C.L.R. 54 and Ridgeway v. R. [1995] HCA 66; (1995) 184 C.L.R. 19. The prosecution proposed to rely upon the fact that the policeman was acting under written instructions from a superior given pursuant to the provisions of s.51 of the Drugs, Poisons and Controlled Substances Act 1981. The section deems members of the Police Force acting under instructions "given in writing in relation to a particular case" not to be an offender or accomplice in criminal activity.

130. The instructions authorized carrying out inquiries and obtaining evidence in respect of a police operation to discover the extent of organized crime within the Asian community in Melbourne. The applicant wished to contend, so it was said, that the authority did not accord with s.51 in that it did not contain any instructions to do any particular act and if it did, the instructions were not given "in relation to a particular case". According to the Crown such an attack ran headlong into the decisions of the Full Court and this Court in R. v. Papoulias [1988] VicRp 76; [1988] V.R. 858 and R. v. Te [1998] 3 V.R. 566, in which like instructions had been held to comply with the section. Counsel for the applicant sought to cast doubt upon the decisions by referring to the transcript of the application for special leave to appeal to the High Court from the decision in R. v. Te, above. It was submitted that one member of the High Court expressed some reservations about the correctness of the decision of the Court of Appeal. Leave was refused. The presiding judge said:

"The Court should not be taken as necessarily accepting the construction placed by the Court of Appeal upon s.51 of the Drugs, Poisons and Controlled Substances Act 1981 of the State of Victoria. However, an appeal to this Court would turn upon the interpretation of a particular instrument made in exercise of the power conferred by s.51 and upon the application of the principles in Bunning v. Cross and Ridgeway v. The Queen. In those respects, there are insufficient prospects of success to attract the grant of special leave and, accordingly, special leave is refused."

It was contended that the applicant required legal representation to challenge the authority and to elicit evidence that would enable the Court's discretion to be exercised in his favour.

135. The Chief Judge refused the application. He said that he must act on the law as it was decided by the Court of Appeal and "therefore the validity of the instruments or authorities cannot be, in my view, effectively called in question on the trial of this matter." The ability of the applicant to test the correctness of the Court of Appeal decisions was not considered.

138. The applicant applied to a judge of the Supreme Court for an order in the nature of certiorari to quash the order of the Chief Judge on the basis that there was an error of law on the face of the record constituted by his Honour's reasons for judgment. The error was said to be the triable issue test applied by the Chief Judge. The application was refused by the judge, who said:

"If a defendant in a criminal proceeding cannot demonstrate that there is a triable issue in the proceeding and wishes to go for trial in the hope that despite the evidence to be led on behalf of the Crown, a jury may fail to convict him, as is the situation in the present case, it is more than open to the Judge to whom the s.360A application is made, to conclude that the Court will be able to ensure that the defendant will receive a fair trial even though he is not legally represented at the trial and even though he will require the assistance of an interpreter."

142. Before the commencement of his trial, counsel on behalf of the applicant applied to the trial judge for an order for the provision of legal aid pursuant to s.360A. He called the evidence from the teacher and youth worker as to the applicant's education and ability to communicate referred to above. The trial judge refused the application saying that the only new question was whether the applicant was illiterate or of sub-normal intelligence and concluded that "Mr. Nguyen's evidence did not establish either and the accused gave no evidence." His Honour had earlier said that he would not act on hearsay evidence as to facts within the knowledge of the applicant and had warned the applicant's counsel after hearing Mr. Nguyen's evidence that "the burden of proof of ... English and literacy, literacy in particular, is with your client, and at the moment I am by no means satisfied. But the ball is in your court."

145. At the trial of the applicant the Crown relied upon the oral evidence of the undercover police who were said to have dealt with the applicant and the oral evidence of the policeman who searched the flat of the applicant's father, which was said to be the base of his drug operations, and found a small amount of cannabis. The undercover policeman was given a general permission to refer to notes made by him in giving his evidence after stating that he could not accurately recall his first conversation with the applicant and without being first required to exhaust his memory. Cf. R. v. Baffigo [1957] VicRp 39; [1957] V.R. 303. He said that he held a written authority under s.51 of the Drugs, Poisons and Controlled Substances Act. The authority was not produced and the trial judge acquiesced in the witness describing its terms. The witness answered affirmatively the helpful question of the prosecutor: "Does [the authority], in effect, authorize you to deal in drugs?" The trial judge appears either to have considered that the question of the effect of the authority had been determined by the Chief Judge or not to have considered the question at all, perhaps because the applicant did not raise the point. The prosecutor also elicited from the witness apparently hearsay evidence of a seizure of a large quantity of heroin in Keilor by the National Crime Authority in order to explain a remark by the applicant to the witness that "the Chinese had lost some." No order was made that prospective witnesses leave the court while evidence was being given. No one told the applicant that such an order could be made, and the trial judge did not appear to turn his mind to the exercise of his discretion to make such an order (R. v. Tait [1963] VicRp 74; [1963] V.R. 547). The undercover policewoman who accompanied the undercover policeman gave oral evidence that she was authorized by her superiors to act as a drug dealer. Again the authority was not produced. She could not remember the name of the officer who gave the authority. She gave no direct evidence of any conversations with the applicant. She said she was present while her colleague gave evidence and that his evidence was correct. Tape-recordings of conversations between the applicant and the undercover police were tendered, but interceptions of telephone conversations and video film foreshadowed before the Chief Judge were not tendered.

148. The applicant took little part in the trial. He did ask the policeman who searched his father's flat whether he or someone else stole $12,000 belonging to his father. The witness denied any knowledge of any money other than a sum of $2,250 recorded as being seized in the flat. The point was not further explored other than in re-examination when the witness said that the applicant's father had complained about the matter, but "either the complaint has been withdrawn or it hasn't been substantiated far enough". The applicant did not cross-examine any other Crown witness. When asked if he wished to question the undercover policeman, the principal Crown witness, the applicant said: "I don't know what to ask." Nor did the applicant participate in debates as to whether and how the tapes of the records of interview should be edited and whether a photograph should be admitted in evidence.

151. At an early stage in the trial the applicant had foreshadowed calling as a witness one of the persons present at a conversation with the undercover policeman, but when required to decide whether he would call the witness, he said: "I don't know what I'm going to ask him so probably I don't call him." When asked whether he wished to give sworn evidence the applicant declined, saying:

"I don't have anything to say except I want to find out the money which my father saved up for his funeral in the future was taken."

155. The only other step taken by the applicant in the trial was to dictate a short statement to the interpreter, who read it to the jury. The statement was concerned with the Crown case, and in particular the lack of evidence of fingerprints, the failure to tender the video film or any heroin and the failure to call as a witness the person said to have introduced the applicant to the undercover policeman. The trial judge heard the statement read in the absence of the jury and excised these sentences:

"And the last thing I want to say is, I am not going to say I'm a good man. I agree that I use heroin, I use cannabis, but when the police want to bring somebody to court charged then they must have the evidence, strong evidence, good evidence. That's all I want to say. Please jury consider for me."

The applicant had admitted his use of heroin in the record of interview that was before the jury. The record of interview was tendered by the prosecutor, and became evidence for all purposes. See R. v. Lovett [1972] VicRp 46; [1972] V.R. 413 at 418. The trial judge said:

"He can't be heard to say that I am a law abiding man apart from taking heroin, or anything of that sort, because he hasn't given evidence."

I think the applicant wished to say that notwithstanding his admitted use of drugs, the police were still required to prove the charges.

162. At the hearing of this application counsel for VLA and the Law Institute of Victoria sought and were granted leave to appear as amici curiae. The former contended that the triable issue test that determined the application under s.360A was an appropriate means of deciding whether a court could ensure a fair trial of an unrepresented accused. The latter supported the submissions of the applicant that s.360A(1) was incompatible with the provisions of Chapter III of the Constitution and was invalid and that the triable issue test did not ensure a fair trial.

165. It would appear from the approach of the Chief Judge that the requirement that the applicant must demonstrate the existence of a triable issue in order to succeed in an application under s.360A is not fulfilled by the applicant putting the Crown case in issue. An accused does that by pleading not guilty. It seems that in order to satisfy the test the applicant must persuade the Court that he has a prospect of succeeding upon an issue which the Crown must prove in order to establish guilt. The phrase "triable issue" is reminiscent of the language of the Rules of Court dealing with summary judgment, which will be given "unless the defendant satisfies the Court that ... a question ought to be tried or that there ought for some other reason be a trial of that claim ..." (Rule 22.06(b)). In Jacobs v. Booth's Distillery Co. (1901) 85 L.T. 262 at 262, Lord James said a defendant may show cause against an application for summary judgment by disclosing a "triable issue".

168. While the concept of a triable issue may have its genesis in the summary judgment procedure, the procedure has to be adapted to meet the requirements of s.360A. In the case of applications for summary civil judgment the onus to demonstrate a defence is created by sworn verification of the cause of action, whereas in the case of applications under s.360A it seems the Crown case need only be stated by counsel. In many, but not necessarily all, cases there will have been a committal hearing, but the statements of the test do not rely upon the accused having been committed for trial. In the present case the Chief Judge described the Crown case as "strong in the extreme" and "overwhelming" but as I understand it the test does not require the Crown case to attain such a standard before the accused is required to demonstrate the existence of a triable issue.

171. The triable issue test does not depend upon the simplicity of the Crown case or the ability of the accused to competently conduct his own defence. Attention is concentrated upon the existence of an issue identified by the accused which he wishes to contest. The test amounts to saying that persons who do not raise a triable issue do not need the protection of a trial conducted by a legal representative. Presumably all that is required to ensure a fair trial is that only admissible evidence is led and the jury are correctly instructed in the appropriate law. The test assumes that the trial judge can see to those matters without the assistance of counsel. While the judge cannot lead evidence in chief or in cross-examination on behalf of the accused, that limitation is irrelevant as no defence evidence is required, for no issue exists. As its application in the present case illustrates, the test does not treat a denial of the charge and a plea of not guilty as raising a triable issue. The possibility that the Crown case might not satisfy the jury to the requisite standard is not taken into account.

174. In my opinion the transposition of an approach to the grant of summary judgments in civil actions to applications under s.360A is incompatible with the Court ensuring that the accused does receive a fair trial. The present case is an example. The Crown case was strong or overwhelming provided that the police were telling the truth and their evidence was not excluded in the exercise of a discretion to exclude evidence of participants in the crimes with which the applicant was charged. Those matters could not be tested unless by the applicant or the trial judge. The former was incapable of investigating the Crown case, and the latter was inhibited by his primary role as adjudicator. See Dietrich v. R. [1992] HCA 57; (1992) 177 C.L.R. 292 at 302 per Mason, C.J. and McHugh, J. and at 334-5 per Deane, J. In a sense those who appear on a preliminary view of the Crown case to be guilty stand in greater need of representation than those with an evident defence.

177. As the judgments in Dietrich v. R. make clear, our system of criminal justice, in which the judge acts as adjudicator and plays no part in the investigation or prosecution of the crime or in establishing any defence to the charge, requires the law and the facts on both sides of each question to be identified, introduced, made evident and explained by the adversaries. Unless they are represented by persons trained and skilled in such tasks, generally speaking there can be no guarantee that the system will operate properly and justly. As Lord Simon of Glaisdale said in Waugh v. British Railways Board [1979] UKHL 2; [1980] A.C. 521 at 536:

"[T]he adversary system calls for legal representation if it is to operate with such justice as is vouchsafed to humankind."

181. In my view the application of the triable issue test is not an appropriate means of disposing of applications under s.360A. That is not to say that there can never be a case where it is clear beyond any doubt that there is no matter warranting investigation and on that basis an application under s.360A might be refused. In R. v. Rich [1998] 4 V.R. 44 at 50, Brooking, J.A. gave the example:

"...where there was a not unintelligent accused, who had signed a detailed tape recorded confession which on any view was a full confession of guilt and who volunteered to the trial judge that he did not challenge the making or the truth of the confession or wish to suggest that there were any additional facts which bore on the question of guilt."

Brooking, J.A. said that might be an example of exceptional circumstances that the majority in Dietrich v. R. recognized might warrant the refusal of an adjournment or stay. Compare Pirimona (1998) 100 A.Crim.R. 137. His Honour also said that "it is possible that anything that smacks of an evaluation of the Crown's prospects of success, even in a most extreme case, would be held to be outside the scope of possible exceptional circumstances." While I am inclined to think that Brooking, J.A.'s example is within the category of exceptional circumstances that would justify refusal of an adjournment or stay, and similarly would warrant the refusal of an application under s.360A, the present case is some distance short of such an extreme case.

186. Although the applicant consistently contended that he was not guilty, effectively he was adjudged guilty by the refusal of his application that he be provided with assistance by VLA to conduct his defence. Because it had been decided that there was no triable issue, the only proceeding the applicant was offered was one in which the Crown case would not be tested and no defence version of the facts would be properly deployed before the jury. And so it proved. The applicant did not test the Crown's case. His cross-examination was limited to the alleged theft of money, and he failed to explore at all the possibility that if a theft had been committed, the police might have had good reason to give false evidence against him. The trial judge did not, indeed for the most part could not, redress the shortcomings in the conduct of the defence. In MacPherson v. R. [1981] HCA 46; (1981) 147 C.L.R. 512 at 546 Brennan, J. referred to the

"distinction between telling the players how to play and telling them the rules of the game. If the distinction is not observed, and an unrepresented accused is kept in ignorance of the rules, the procedural rules which are designed to protect an accused and to ensure a fair trial become a trap, for an unwitting failure to make objection would avoid the judicial duty to control the admission in evidence."

The trial judge did explain some of the rules to the applicant but it is not obvious to me that the applicant's failure to take advantage of the rules was not due to lack of ability rather than will.

191. It was submitted on behalf of the applicant that s.360A(1) was invalid as it interfered with the exercise of the power of courts to ensure that trials were conducted fairly, thereby undermining public confidence in the just administration of the judicial functions of State courts. A State legislature cannot validly confer power on a State court to make an order for the detention of a person who has committed no crime because to do so compromises "the integrity of the judicial system brought into existence by Ch. III of the Constitution" (per Gaudron, J. in Kable v. Director of Public Prosecutions [1996] HCA 24; (1996) 189 C.L.R. 51 at 107) or "might lead an ordinary reasonable member of the public to conclude that the court was not independent of the executive government of the State" (per McHugh, J. at 117) or "saps the appearance of institutional impartiality and the maintenance of public confidence" in an integrated Australian judicial system (per Gummow, J. at 133). Similarly, so it was said on behalf of the applicant, s.360A(1) is invalid because it constitutes legislative interference with the exercise of a judicial function which is an essential attribute of judicial power.

194. As I understand it the argument does not depend upon the entitlement to a stay or adjournment the subject matter of Dietrich v. R. being grounded in a constitutional principle rather than in common law. Although Deane, J. (at 326) and Gaudron, J.(at 362) said that the principle that no person should be convicted of a crime except after a fair trial according to law was entrenched in Chapter III of the Constitution, the majority of the Court based their decision on a right to a fair trial found in the common law. It was submitted on behalf of the applicant that even if the principle in Dietrich was derived only from the common law, a statutory provision incompatible with the principle would render a State court system one in which the public could place no trust as operating justly, and on that account the statutory provision would be invalid.

197. Section 360A was introduced as "an urgent response" to the problem posed by "large numbers of accused persons ... starting to use the Dietrich device as a means of avoiding or delaying prosecution ..." according to the Attorney-General in her second reading speech (Hansard, 29 April 1993, p.1359). Sub-sections (1) and (2) are designed to provide a practical solution to the problem posed by the fact that the common law of Australia does not recognize the right of an accused to be provided with legal representation at the public expense. Courts can avoid staying or adjourning the trials of indigent persons accused of serious crimes by ordering that they be provided with assistance to obtain legal representation. Assistance will be ordered if the Court is satisfied that it will be unable to ensure that the accused will receive a fair trial unless he or she is legally represented. If the section does not operate so as to avoid an unfair trial, that is, if a miscarriage of justice occurs in that a trial is not conducted fairly in the absence of legal representation of the accused, this Court can set aside the verdict since (ex hypothesi) there has been a miscarriage of justice within the meaning of s.568(1) of the Crimes Act 1958. Compare Frugtniet v. Victoria [1997] HCA 44; (1987) 148 A.L.R. 320 at 326 per Kirby, J. Section 360A does not deem the trial of an unrepresented accused to be fair after an unsuccessful application for assistance pursuant to the section.

200. Accordingly I do not think that the section can be seen as compromising the integrity of the State judicial system or can undermine public confidence in the fairness of criminal trials in this State. While in my opinion the reasoning in Kable v. R. does not lead to the conclusion that s.360A is invalid, that is not to say that the section would not be invalid in its application to the trial of an offence against a law of the Commonwealth if the Dietrich principle is derived from the Constitution and s.360A is incompatible with the principle. However, that question does not arise in the present case.

203. In the present case I consider that there was a miscarriage of justice in that the applicant was denied a fair trial. The applicant at all times maintained he was innocent, yet without assistance he was clearly incapable of meeting the Crown case. Save in respect of one matter, and then only to a limited extent, he did not cross-examine any of the Crown witnesses. I do not think it likely that his failure to give evidence was due to a nice appreciation of the forensic issues involved in such a decision. His address to the jury was rudimentary. He did not test the ability of the authorities given pursuant to s.51 of the Drugs, Poisons and Controlled Substances Act to avoid the consequences of the principal Crown witnesses actively participating in the commission of one of the crimes with which the applicant was charged. None of these deficiencies in the conduct of the defence was made good by the judge, and indeed they could not be. There is doubt whether even with assistance the applicant could have countered the Crown case. For present purposes it is enough that the question is open. In my opinion the applicant answered the description of the ordinary accused without legal representation, of whom Deane, J. in Dietrich v. R. at 335 said:

"... he will, almost inevitably, be brought to face a trial process for which he will be insufficiently prepared and with which he will be unable effectively to cope. In such a case the adversarial process is unbalanced and inappropriate and the likelihood is that, regardless of the efforts of the trial judge, the forms and formalities of legal procedures will conceal the substance of oppression."

207. I would grant leave to appeal against the applicant's conviction, treat the appeal as instituted and heard instanter, allow the appeal, quash the convictions and order that there be a new trial.