HIS HONOUR: The Court is required to deal with an application for a temporary stay of a pending criminal trial in relation to Mr Pratten, the accused in the trial and the applicant on the motion (hereinafter, "the applicant/accused"). Mr Pratten is the subject of seven charges of dishonestly obtaining a financial advantage by deception, contrary to s 134.2 of the Criminal Code Act 1995 (Cth) (the Code). Each charge relates to a different financial year between 30 June 2003 and 30 June 2009 and relates to knowingly understating income derived in the relevant financial year.
The applicant/accused was originally arrested on 22 September 2010 and on 21 November 2011 the Commonwealth Director of Public Prosecutions (CDPP) sought restraining orders pursuant to s 17 of the Proceeds of Crime Act 2002 (Cth). Those orders were granted.
The applicant/accused was tried before a jury; the trial commencing 19 March 2012, and concluding on 13 June 2012, with guilty verdicts in relation to each charge. In addition to the length of the trial, there were a significant number of accounting records and other documents tendered during the course of the trial and it is fair to describe the trial, and the nature of the Crown case, as complex.
Apparently, the first trial was initially funded by the applicant/accused and, after a short period of time, was the subject of a grant of Legal Aid. It is said that the sentence proceedings were conducted on behalf of the applicant/accused on a pro bono basis, although, it seems, that the fees for the day of sentence were funded by another grant of Legal Aid.
The applicant/accused lodged an appeal against conviction and sentence. A cross-appeal was filed by the CDPP against sentence. The Court of Criminal Appeal heard the appeal, the application for leave to appeal and associated matters over three days in June 2014 and upheld the appeal against conviction on 1 July 2014. The appeal was also funded by the Legal Aid Commission.
Having succeeded on the conviction appeal, in the manner determined, the applicant/accused faces another trial, which is scheduled to commence on 18 May 2015, with an estimate of six weeks.
The applicant/accused applies for the trial (and proceedings) to "be stayed pending the provision of funding for its preparation and running". In the alternative to the primary orders sought, the applicant/accused seeks to have the commencement date of 18 May 2015 vacated.
The applicant/accused was represented throughout the first trial, as well as during substantial proceedings, being a collateral civil attack on the institution of the prosecution by attacking the conduct of the CDPP, the Australian Federal Police, the Australian Taxation Office and/or officers thereof in relation to the investigation and was also represented for the prosecution of the appeal.
The applicant/accused, as stated, was represented by two senior counsel and junior counsel (instructed by solicitors) during the appeal. One of the bases upon which the appeal was prosecuted was that the verdict was unreasonable, as a consequence of which all of the evidence in the first trial was required to be read by the legal representatives and was the subject of full and thorough submissions to the Court of Criminal Appeal.
[2]
Evidence on the Motion
The essential basis upon which the applicant/accused relies for the success of the motion is the principle embodied in the comments of the High Court inDietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, namely, that for the trial of the seven charges, that is the second trial, to proceed "without representation" would not be a "fair trial" and the matter should not proceed until representation has been provided. In essence, the applicant/accused submits that he is constructively, or as a matter of practical effect, without representation, because of the manner in which Legal Aid has been provided or qualified.
The applicant/accused relies upon two affidavits of Justeen Kim Dormer, one sworn 30 March 2015 and the other sworn 1 April 2015. The applicant/accused also relies upon an affidavit of Vivian Evans sworn 2 April 2015.
In response, the CDPP relies upon an affidavit of Katrina Curry sworn 1 April 2015. There was no cross-examination of any witness and the factual dispute is within short compass.
At his first trial, the applicant/accused was represented by Mr Paul Hardin of Hardin Law. On 11 February 2015, Paul Hardin advised, in writing, that he (and I infer his firm) was "no longer willing to act" in any of Mr Pratten's matters and informed Mr Pratten that he had orally informed the Legal Aid Commission of that circumstance and was shortly to confirm it by email.
The email correspondence referred to in the immediately preceding paragraph was the culmination of correspondence between the applicant/accused and the solicitors then acting for him. As a consequence of the foregoing, the litigation history of this matter involves one firm of solicitors acting for the applicant/accused in his first trial, in the collateral attack on the investigation and prosecution decisions, in the appeal against conviction and sentence and, necessarily, in the cross-appeal. Different counsel acted at different times. It is necessary to particularise some prior history.
On 18 December 2014, the solicitors acting for the applicant/accused in this matter (hereinafter, "the current solicitors") wrote to the Legal Aid Commission informing them that Mr Pratten had instructed them "that the relationship between [the applicant/accused] and [his previous solicitors] has broken down and that he would like to engage [the current solicitors]…". The correspondence requested transfer of the Legal Aid grant from the previous solicitors to the current solicitors, notwithstanding the fact that the current solicitors were not on the Legal Aid Panel for Serious Crime.
It is unnecessary to set out the full extent of the correspondence.
Nevertheless, from the time of the correspondence of 18 December 2014, there was clearly a breakdown between the applicant/accused and his previous solicitors, at least from the perspective of the applicant/accused.
On 19 December 2014, the applicant/accused wrote to the Legal Aid Commission confirming that he had not sacked his previous solicitors. This was in response to correspondence, some of which has already been mentioned.
As earlier stated, on 11 February 2015, the previous solicitors wrote to the applicant/accused advising that they were no longer willing to act "under any circumstances in any of your matters".
A request was then made by the applicant/accused to transfer the grant of Legal Aid to the current solicitors.
The ensuing correspondence between the current solicitors and the Legal Aid Commission dealt with the amount of the grant and the basis upon which funds would be allowed and the work for which it is was allowed. It also included correspondence as to rates.
Much correspondence has occurred, as earlier stated, in relation to the time that has been allowed for preparation and the rates that have been set and whether or not the current solicitors could be the subject of a grant of Legal Aid in a serious and complex criminal proceeding.
The material before the Court, on which there is little controversy, suggests that the criminal prosecution involves commercial complexities; the brief of evidence consists of approximately 20,000 pages; there are nearly 10,000 pages of statements and exhibits; evidence in the first trial was taken over forty days of evidence; there are approximately 2,000 pages of trial transcripts; while no witnesses were called by the defence in the first trial, there are potentially 6 or more witnesses who might be called in the defence case in the forthcoming trial; and the current estimate for the re-trial is thirty days. However, the Crown has (to its credit) proposed to adduce the evidence in a more confined manner in the re-trial, details of which are being awaited.
The Legal Aid grant, as it currently stands, provides (to whomever it may be transferred) ten days of preparation for a solicitor at prescribed Legal Aid rates; fifteen days' preparation for junior counsel at differently prescribed Legal Aid rates; ten days' preparation for senior counsel at a third level of prescribed Legal Aid rates; and thirty days of hearing for senior counsel, junior counsel and a solicitor appearing at the trial.
It is said, on behalf of the applicant/accused that the amount of time for preparation (if the current solicitors were preparing it) is between 368 and 510 hours.
[3]
Principles and Consideration
There is no issue between the parties as to the principles to be applied in determining an application for a stay based upon the Dietrich principles. It is the effect of those principles that is in issue. Nevertheless, in order to arrive at the appropriate result, it is necessary to explain the principles. Given the absence of controversy as to those principles, the explanation will be brief.
There is no right for an accused person to be provided with counsel or solicitor at public expense. Nevertheless, where an accused is charged with a serious criminal offence, the courts have traditionally required representation of the accused as an essential element to the provision of a fair trial: seeDietrich at 298.
Where an accused, in the above situation, is unrepresented and the court considers that, as a consequence, an essential aspect of a fair trial is missing, the court may (and probably will) stay or adjourn a trial until arrangements are made for counsel to appear. This usually involves public expense: seeDietrich at 298. The basis for that principle derives from the fundamental principles associated with natural justice or procedural fairness. Every party, particularly a party facing a serious criminal charge, is entitled to an adequate opportunity to prepare and to present the desired case (and answer the charge as preferred).
There are significant advantages to an accused to be represented by counsel and those advantages, as the High Court has adumbrated, are more obvious today than they have been in the past. However, as the number of appeals to the Court of Criminal Appeal discloses, those appeals being based, inter alia, on incompetence of legal representation leading to manifest injustice, there are different levels of expertise and specialisation amongst the legal profession.
No doubt, this latter element is one of the factors that has led the Legal Aid Commission to establish panels of persons whom they consider to be competent to deal with different kinds of matters, and relevantly, a Serious Crime Panel. The restriction by the Legal Aid Commission on a grant of Legal Aid to persons who are on that panel (assuming the panel has been derived with sufficient choice for the accused or potential accused and on a bona fide basis, neither of which is impugned in these proceedings) cannot be the subject of complaint. Such a qualification on the grant of Legal Aid is not inconsistent with the principles established by the High Court in Dietrich. Indeed, it may be a necessary concomitant of the requirement that representation be competent.
I am satisfied that, given the effect of the confiscation orders made by this Court on the assets of the applicant/accused, he does not currently have available to him sufficient resources to secure legal representation in the absence of a grant of Legal Aid. Further, I am satisfied that, as is all but conceded by the Legal Aid Commission in its requirement for an allocation from the Serious Crime Panel and its allowance for senior counsel in preparation and hearing, the matter is sufficiently serious to warrant the application of the Dietrich principles.
In other words, it would be essential to a fair trial of the applicant/accused that he be represented during the trial. As a consequence of the foregoing, in the absence of Legal Aid and representation, the applicant/accused will not be able to obtain a fair trial from his own resources.
I accept the submission that if the Legal Aid being offered is so inadequate or subject to such restrictive terms that adequate legal representation could not be procured on the basis offered, then the accused should be taken to be a person who, for any constructive purpose, is unrepresented: see R v Souter(1997) 93 A Crim R 400 at 402-404.
It is no answer to the application of the principles in Dietrich that some practitioners may be available to conduct the case out of a sense of duty or basis other than the normal and usual fee and the appropriate level of preparation for proceedings. It is not for the applicant on a motion such as this to trawl though all of the legal practitioners in New South Wales to see if one can act. However, that is not the issue in this motion.
The expert evidence before the Court suggests that, if taken afresh, a brief to represent the accused at his retrial could not be adequately prepared in the time made available by the grant of Legal Aid. It is misleading to refer to it as ten days' preparation. It is ten days' preparation for a solicitor and further days, as set out earlier, for junior and senior counsel. Nor is it inconsistent with Dietrich that the Legal Aid Commission insists that where two counsel are warranted each is counsel and that the solicitor is performing different work. It is not the role of the Court to arbitrate the fees set by the Legal Aid Commission or the respective roles it suggests or demands of the different branches of the legal profession.
The difficulty with the proposition that ten days' preparation is insufficient is, in some senses, manifest. The application is made by counsel, who is not briefed at the hearing, instructed by a solicitor, who is not the subject of a grant of Legal Aid. The Legal Aid Commission has asked the applicant/accused to select a solicitor from its panel to whom it can grant the Legal Aid.
Ms Evans, called as an expert witness on behalf of the applicant/accused, specified the general practice in relation to the acceptance of a Legal Aid brief. She is a solicitor on the panel. Her evidence is that the Legal Aid Commission does not generally inform her of the extent of the documents disclosed in a matter and she accepts a brief on a Legal Aid basis without the knowledge of the extent of the preparation required or the extent of the brief. Once the brief is accepted, she then negotiates the terms of the grant with the Legal Aid Commission: Affidavit of Vivian Evans, 2 April 2015, at [10].
I have no evidence or material to suggest that the foregoing general practice would not apply in this matter.
Further, once the applicant/accused selects a solicitor to whom the grant of Legal Aid will be transferred (either a solicitor on the requisite panel or a solicitor that can establish exceptional circumstances required for a brief outside the panel) and that solicitor briefs counsel, the Court will be in the position, described separately by Gaudron J and by Toohey J in Dietrich, to ascertain whether the Court should intervene to ameliorate a risk that the trial will be unfair.
For all the Court now knows, one or more of the counsel and solicitors that have been briefed in the various proceedings, each of which has been fully prepared, in this sorry tale of litigation, will accept the brief in these proceedings and will not require the kind of hours of preparation to which the current solicitors attest.
The Court will not be in a position to ascertain that issue until a solicitor has been engaged and counsel instructed.
The fundamental principle that a party is entitled to an adequate opportunity to prepare and to present (or, in criminal proceedings, to answer) the case necessarily is qualified by the proposition that the opportunity, once given, is a matter for the party. The Court cannot ensure that such an opportunity is used to the best advantage: Sullivan v Department of Transport (1978) 20 ALR 323 at 343, per Deane J.
Thus far, the applicant/accused's case has been prepared at least twice. There is no suggestion of incompetence of any previous legal representation. As far as the Court is aware, the previous solicitors no longer act as a result of action that has no relationship with the reasonableness and adequacy of the work they performed.
It cannot be part of the principles applicable under Dietrich that an accused may dismiss solicitors and counsel and then claim an inadequate opportunity to prepare afresh a case that has already been prepared. Unfairness that may be caused by that course is an unfairness wholly in the hands of the accused.
I am not suggesting that the foregoing statement is applicable to this applicant/accused, but there is nothing before the Court to suggest to the contrary. Nor, might I add, will there be anything or could there be anything until such time as solicitors and counsel who will be acting at the time of the re-trial have been engaged.
For the foregoing reasons, I adjourned the motion to a time and date that would allow the solicitors and counsel to be engaged and the Court to be aware of the real needs of the applicant/accused.
[4]
Amendments
29 April 2016 - amended case name in coversheet
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Decision last updated: 29 April 2016