HIS HONOUR: Before the Court is a motion, the essential characteristics of which were described in a judgment, which was delivered on 23 April 2015 and contained the reasons for the orders made on 2 April 2015 (R v Timothy Charles Pratten (No 14) [2015] NSWSC 457; hereinafter, "the first judgment on the motion").
On 2 April 2015, on first hearing the motion, I adjourned the motion before the Court, allowed the matter to be relisted on three working days' notice and otherwise listed the matter (including the motion) for trial on 18 May 2015. The first judgment on the motion makes clear that the principles in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, as interpreted by the Court of Criminal Appeal and other intermediate courts of appeal in Australia, provide that a person charged with a serious criminal matter is entitled to be represented before the Court in relation to that criminal matter. As I stated in the first judgment on the motion, the Court does not involve itself in the determination of rates or conditions applicable under a grant of Legal Aid. While the Court's jurisdiction is one to protect against an unfair trial, in so doing its capacity is limited to adjourning or staying proceedings that would contravene the principles adumbrated by the High Court in Dietrich v The Queen.
The first judgment on the motion contains, at least to the extent necessary, the facts of the situation facing Mr Pratten. For this reason, this judgment ought to be read in conjunction with the first judgment on the motion.
There are two developments that are important in dealing with the relisting and re-agitation of this motion. The first is that it is now definite that the Legal Aid Commission has granted Legal Aid to a firm of solicitors and to junior and senior counsel. As is clear from the correspondence before me (and as is known by anyone practising in the criminal jurisdiction) the grant of Legal Aid for junior and senior counsel is, itself, an unusual course.
Nevertheless, the issue remains that the amount of time for which the Legal Aid Commission is prepared to pay for the solicitor's preparation of the matter is ten days. It has been submitted that the evidence before me demonstrates that ten days is insufficient time for a solicitor to prepare properly the proceedings that are before the Court.
I have heard, somewhat unusually, from the legal representatives of Mr Pratten who are instructed only on the motion, and also from the junior counsel who is briefed at the re-trial. Notwithstanding the potential conflict that may exist if I were to hear from two counsel for the same party, and the oddity of a bifurcation of a party before the Court, I considered, in the unusual circumstances of this case, that hearing from both sets of legal representatives was the appropriate way of dealing with the issues before the Court.
The second development to which I shall refer was the request that had been filed with the Legal Aid Commission by Mr Pratten on 28 April 2015 and which seeks:
"An appeal to transfer the grant to Dormer Stanhope and an appeal against the Commission's decision to refuse to increase the grant".
Mr Pratten, through legal representative on this motion, relies upon the provisions of s 57 of the Legal Aid Commission Act 1979 (NSW) ("the Act") in support of a stay of proceedings. That, in turn, depends upon a proper construction of s 56 of the Act.
The terms of s 56 (1), (1A) and 1(AA) of the Act, are as follows:
"s 56 Appeals
(1) An applicant or legally assisted person dissatisfied with:
(a) the determination or redetermination, by a person or committee acting in pursuance of a delegation or authorisation under section 69, of an application under section 34 (1),
(b) the variation, by such a person or committee, of a grant of legal aid under section 38 (1),
(b1) the redetermination of a variation of a grant of legal aid, by such a person or committee, under section 38 (1AA), or
(c) a decision, by such a person or committee, to decline payment of the whole or any part of costs under section 47 (4) or (4A),
may appeal to a Legal Aid Aid Review Committee.
(1A) Such an appeal may not be made in respect of the determination or redetermination of an application under section 34 (1):
(a) if the application has been refused as referred to in section 34 (3) (b), or
(b) if the application relates to proceedings in the Local Court with respect to a criminal offence and the applicant is dissatisfied because he or she is required to pay a contribution towards the costs and expenses of the legal services sought by the applicant.
(1AA) Despite subsection (1), an appeal may not be made in respect of the imposition of a condition on a grant of legal aid (whether imposed by way of a determination or redetermination of an application for legal aid, or by way of a variation or redetermination of a variation of a grant of legal aid) if the condition is to the effect that the Commission is to provide the legal aid concerned by any of the following means:
(a) by making available the services of the Chief Executive Officer or members of the staff of the Commission, or
(b) by arranging for the services of the Public Defendants to be made available,
(c) by arranging for the services of private legal practitioners to be made available, wholly or partly at the expense of the Commission."
An appeal must be lodged with the Legal Aid Commission within a period of 28 days. The Legal Aid Commission itself has the power to allow a longer time. My construction of the provisions of s 56(1AA) leads me to the conclusion that there cannot be, under s 56, an appeal against the decision to arrange the services of a private legal practitioner or, as in Mr Pratten's appeal, against the identity of that private legal practitioner. That does not mean that within its administrative discretion the Legal Aid Commission is not capable of reviewing that decision, which is a fundamentally different issue. The issue is simply whether s 56 grants the right of such an appeal.
The second potential issue that I see in relation to Mr Pratten's appeal to the Legal Aid Commission is that there is no specific decision of the Legal Aid Commission refusing to increase the grant. Counsel for the Crown submits that the appeal is really an appeal against the grant and is therefore out of time. That may be one way of looking at the application, however, it would fly in the face of the terms of the appeal itself.
The third and final issue related to Mr Pratten's appeal is whether there is a right of appeal against a refusal to vary a grant of Legal Aid. It would seem to me that a proper construction of s 56(1)(b) of the Act would allow an applicant to appeal against a refusal to vary a grant of legal aid, as much as it would allow an appeal against a variation.
It does not seem to me that I am required by the provisions of s 57 of the Act to adjourn the proceedings. Even if I were otherwise convinced of the operation of s 56 of the Act, I consider that there are special circumstances that overcome the primary effect of s 57 of the Act, namely, preventing the continuation of these proceedings. I do not, in those circumstances, need to decide finally the operation of the Act.
Two further matters need to be addressed. The first of them is the existence, of which I have been informed during the course of these preliminary hearings, of documents in Vanuatu that are in the possession of law enforcement authorities and, as I understand it, to which neither the Crown nor Mr Pratten have access. It would seem to me, on one view, a difficulty for the Crown if such documents exist, since a jury would be entitled to be addressed on the basis that they have not seen all of the relevant documents and they therefore cannot know the proper arrangement between Mr Pratten, the insurance companies, the brokerage firms in Vanuatu and the trust company, nor the manner in which the funds were held in accountants' trust funds.
The second matter is the submission from counsel appearing on the motion that as yet there seems to be a lack of confidence by Mr Pratten in the solicitor and counsel who have been allocated the Legal Aid grant. I am told that Mr Pratten has sought an undertaking from the solicitor and counsel that they are able to prepare properly and to conduct properly the proceedings before any such confidence will be forthcoming. My understanding of the operation of the Legal Profession Act 2004 (NSW), and the duties of solicitors and counsel in proceedings, is that they are required by the law to prepare properly and to present properly in all proceedings in which they are acting. Therefore, an undertaking of that kind is an undertaking to do that which is required of a solicitor and counsel in any event. As such, I do not have much regard to Mr Pratten's requirement for such an undertaking.
It seems, however, that Mr Pratten's lack of confidence in the solicitor and counsel for the re-trial returns to the issues that were addressed in the first judgment on the motion, namely whether I can infer that Mr Pratten is conducting himself in a way that hinders the proceedings. I am not prepared yet to draw that inference. I can well-understand, when faced with serious criminal charges, an accused's desire to ensure that the case will be prepared and presented properly. Nevertheless, Mr Pratten's request for an undertaking gives me some concern as to what, in truth, this motion is about.
In the circumstances, and bearing in mind all of the principles to which I referred in the first judgment on the motion relating to Dietrich v The Queen, I am of the mind that a solicitor and counsel having been retained for the re-trial, Mr Pratten is not unrepresented, constructively or otherwise, and I dismiss the motion. I make it clear that the dismissal of the motion does not preclude its re-agitation once solicitors and counsel who are appearing in the re-trial have prepared the matter to the extent permitted by the Legal Aid grant and are aware of what else needs to be prepared. In those circumstances, an application that the matter cannot proceed without a risk to the conduct of a fair trial would be treated significantly differently.
The circumstances of these preliminary matters and the lateness of the briefing of solicitor and counsel in the re-trial lead me to the conclusion, suggested by the Crown, that the start date of 18 May should be vacated and the matter listed to commence on 1 June 2015. I will still allow a period of six weeks, which is the original estimate, but the parties should understand that the matter will proceed, subject to applications of this kind, to finality once a jury has been empanelled.
The Court makes the following orders:
1. The motion is dismissed;
2. The trial date, being the date of empanelment, of 18 May 2015, is vacated and the matter is listed to commence by empanelment on 1 June 2015;
3. Leave is granted to the parties to approach on three working days' notice in relation to any of the matters I have addressed in these reasons.
[2]
Amendments
29 April 2016 - amended case name in coversheet
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Decision last updated: 29 April 2016