R v Phung [1999] VSCA 195

[1999] VSCA 195

Court of Appeal (Vic)|1999-12-01|Before: BROOKING, CHARLES and BUCHANAN, JJ.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

1999-12-01

Before

BROOKING, CHARLES and BUCHANAN, JJ.A.

Source

Original judgment source is linked above.

Judgment (63 paragraphs)

[1]

The applicant seeks leave to appeal against his conviction on count 1 on various grounds which all stem from three unsuccessful applications pursuant to the provisions of s.360A of the Crimes Act 1958 for an order that Victoria Legal Aid ("VLA") provide him with legal representation and his subsequent trial unrepresented by counsel or solicitor.

[2]

At the time of his trial the applicant was 34 years of age. He told the trial judge through an interpreter that he had come to Australia from Vietnam at the age of 13 years. Upon arrival in Australia he had attended an English course for a few months and spoke "a bit" of English. He had left school when he left Vietnam. He had never been employed. Hieu Tien Nguyen, a teacher and youth worker, gave evidence before the trial judge. Mr. Nguyen said that he had known the applicant for some years. The applicant was illiterate. His level of education was very low; he had only completed Year 4 in primary school. The applicant's ability to communicate verbally in both English and Vietnamese was limited. According to Mr. Nguyen, "[H]is language ... only for survive, for living and just basic communication; that's all." I doubt that the applicant's ability to understand English was as deficient as these words suggest. Mr. Nguyen also said that the applicant's de facto wife, with whom he had lived for 10 years and by whom he had two children, was an "Australian" who did not speak Vietnamese. The applicant had lived in Australia for 20 years from a young age. In his report to this Court the trial judge stated that over the course of the trial he had formed the opinion that:

[35]

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.

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

Phung \[1999\] VSCA 195

Cases Cited (6)

[1999] VSCA 195

Section 360A of the Crimes Act 1958 is peculiar to Victoria. In the first five years or so of its operation only 39 applications under it were made: Victoria Legal Aid v. B. [1998] VSCA 56 at [12]. We were told that up to the present time an application has been refused because there was no "triable issue" in only five cases. The origin of the "triable issue" test is the decision of Chief Judge Waldron in R. v. Drljaca, given on 12 November 1993, where, on an application under the section, his Honour said this (the emphasis is mine):

The test seems to have been generally adopted in the County Court. It has in addition received approval in the Supreme Court on at least three occasions. In Denysenko v. Victoria Legal Aid and His Honour Judge Kimm of the County Court of Victoria (unreported, 23 November 1998) Beach, J. upheld the refusal to make an order under the section where the judge had relied on the fact that there was no "triable issue" and no "positive contest on the facts". Beach, J. observed that the judge was "more than justified" in taking those matters into account: at 7. In the present case, Beach, J. had dealt with an application for judicial review of the decision of the Chief Judge on the second attempt to obtain an order under the section. In dismissing the application Beach, J. said that it was "more than open" to the judge to conclude that the Court would be able to ensure a fair trial without legal representation where "a defendant ... 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 ...": Phung v. Victoria Legal Aid & Anor [1999] VSC 1 at [8]. The third decision is R. v. Reid (1998) 1 V.R. 224 at 227-8, where Balmford, J. approved the passage from Drljaca set out above. On the other hand, in Frugtniet v. Victoria Legal Aid & Ors (unreported, 11 September 1997, at 21-23) Hedigan, J. expressed reservations about the "triable issue" test and these reservations were endorsed by Smith, J. in yet another decision in the Frugtniet saga: Frugtniet v. County Court of Victoria & Ors (unreported, 20 October 1997, at 9).

The test seems to have been treated by those who have applied it, not as determining in all circumstances for the purposes of s.360A(2) whether the court will be unable to ensure a fair trial without representation, but as laying down a condition that must be satisfied before that conclusion of inability to ensure a fair trial can be reached. The judges say that unless the accused shows that there is a triable issue it cannot be concluded that the court will be unable to ensure a fair trial without representation. This does not mean that if the accused does raise a triable issue the conclusion of inability must in all cases be reached. In a given case, likely to be rare in practice, the simplicity of the issues, the envisaged short duration of the trial and the capacity of the accused (who might even be a most able and experienced criminal lawyer, familiar with all aspects of criminal litigation) to conduct the defence in person might lead the judge to decide that a trial without representation would be fair. See the reference by Kirby, J. to relevant considerations in Frugtniet v. Victoria [1997] HCA 44; (1997) 148 A.L.R. 320 at 327 and the treatment on appeal of the Dietrich application in R. v. Fuller & Cummings [1997] SASC 6297; (1997) 69 S.A.S.R. 251.

(a) That the section was invalid by reason of its inconsistency with the Commonwealth Constitution, on the footing that the right to a fair trial was embodied in Chapter III of the Constitution by reason of the implicit requirement of the Chapter that judicial power be exercised in accordance with the judicial process. Reliance was placed on the fact that in Dietrich ((1992) [1992] HCA 57; 177 C.L.R. 292) both Deane, J. at 326 and Gaudron, J. at 362 derived the requirement of a fair trial from Chapter III and the fact that in Frugtniet v. Victoria [1997] HCA 44; (1997) 148 A.L.R. 320 Kirby, J. proceeded on the basis that this view might be correct. It was then said that s.360A contravened the constitutional requirement of a fair trial having regard to the terms of subs.(1) and to the suggested circumstance that paragraph (a) of subs.(2) reversed the burden of proof in that, while Dietrich required legal representation with all serious offences unless there were exceptional circumstances, paragraph (a) operated only where the court was satisfied that it would be unable to ensure a fair trial unless there was legal representation. It appeared to be implicit in this argument that the section is in conflict with the Constitution even in relation to State offences. But on no view is this so. Dietrich was concerned with Federal offences only. Deane, J. said at 326 that the principle that a trial must be fair was entrenched by the Constitution "in so far as the exercise of the judicial power of the Commonwealth is concerned", and it is clear that the suggested implication from Chapter III must be limited to the judicial power of the Commonwealth. In Frugtniet the accused was charged only with State offences, as appears from the report. The argument considered by Kirby, J. was an argument (at 322) that "any legislative provision which purports to limit or prevent the attainment of [the right to a fair trial grounded in the implications to be found in Chapter III] is unconstitutional and thus of no legal effect". His Honour does not refer to the fact that the accused was charged with State offences only. This is also the position in the present case. In at 325 Kirby, J. referred to what he had himself said in at 653. That was a case of a federal offence in which it was argued, in reliance on what was said by Deane and Gaudron, JJ. in , that a section of the making it more difficult for drug offenders to get bail was "contrary to the constitutional guarantee of fair process". Two members of the Court in were content to assume that there was a constitutional guarantee of fair process and held that the State Act did not infringe it. The same view was taken by Kirby, P., who was the only judge to refer to what had been said in , and he described the applicant's submission as requiring that the judicial power of the Commonwealth be exercised in accordance with the judicial process. The short answer to the argument in the present case is that we are concerned with the trial of a State offence. In any event, s.360A does not impinge upon the notion of a fair trial as laid down in , so that the point would be a bad one even if there was a constitutional basis for the requirement of a fair trial.

(b) That Kable v. Director of Public Prosecutions [1996] HCA 24; (1996) 189 C.L.R. 51 was applicable in the sense that s.360A departed so significantly from the requirements with regard to a fair trial laid down in Dietrich (assumed for this purpose to be requirements of the common law, as Mason, C.J. , Toohey, J. and McHugh, J. accepted in Dietrich) that the court would be brought into disrepute and so unable properly to perform its function in federal cases as a Chapter III court. The short answer to this contention is that, whether or not s.360A gives less protection than Dietrich to an accused, no-one could suggest that acting in accordance with the section would bring the court into disrepute in the necessary sense.