Regina v B.K

LEGISLATION CITED : Criminal Appeal Act 1912 House v The King (1936) 55 CLR 499 at 504, 505 Dietrich v The Queen (1992) 177 CLR 292 Craig v The State of South Australia (1995) 184 CLR 163 Reg v Small (1994) 72 A Crim R 462 at 473 CASES CITED: Moss v Brown [1979] 1 NSWLR 114 at 125 Reg v Greer (1992) 62 A Crim R 442 Reg v Frawley (1993) 69 A Crim R 208 DPP v Allan, CCA unreported, 1/11/95 Reg v Roula Kay, CCA unreported, 27/4/98 DECISION : Appeal dismissed; Interlocutory order of Christie DCJ affirmed

1 SULLY J: This is an appeal brought pursuant to section 5F of the Criminal Appeal Act 1912 by 'BK' ("the appellant"). The appeal is brought against an interlocutory judgment of Christie DCJ, being a judgment delivered on 19 April 1999, refusing an application by the appellant for a stay of proceedings pending against the appellant in the District Court, "……… until the matter of legal representation is resolved". 2 The Notice of Appeal represents that Christie DCJ did not give a certificate that his Honour's interlocutory judgment was a judgment proper for consideration by this Court on appeal pursuant to section 5F. It is, however, clear from the transcript of proceedings before Christie DCJ on 22 April 1999 that his Honour did certify the matter as one proper for the consideration of this Court. That being so, it is not necessary that the applicant obtain leave of this Court to appeal against the interlocutory judgment in question: see section 5F(3)(b). It is to be noted that an appeal of the present kind is to be determined "………on the evidence (if any) given in the proceedings to which the appeal relates" unless this Court "…… gives leave to adduce fresh, additional or substituted evidence,………..": see section 5F(4). The particular powers of this Court in connection with an appeal of the present kind are limited to the affirming or the vacating of the judgment against which the appeal has been brought; or to the giving or making of an interlocutory judgment or order in place of the judgment or order against which the appeal has been brought: see section 5F(5). 3 The judgment or order sought in the Notice of Appeal is described simply as : "Stay of Proceedings". The appeal to this Court was conducted upon the basis that what the appellant is seeking in fact from this Court is an interlocutory judgment and order of the kind that he sought from Christie DCJ ; that is to say, an interlocutory order staying, until he is able to provide appropriate legal representation in aid of his defence, the criminal proceedings current against him in the District Court. 4 The grounds of appeal, as notified by the notice of appeal, are as follows: "1. His Honour erred in refusing to grant a stay of proceedings based on the Dietrich principle. 2. His Honour accepted submissions on behalf of the Appellant that (a) the Appellant is indigent; (b) that the Appellant has taken all steps in his power to secure legal aid but has been unsuccessful; (c) that the appellant was not the cause of any delay in the failure of these charges to be heard at trial over and during a substantial period of time and his Honour had regard to the chronology of applications and adjournments in coming to that finding. 3. His Honour held that he must make a decision as between the public interest in the hearing of the charges against the difficulties in obtaining legal representation on the part of the appellant. His Honour concluded that the public interest must prevail over the difficulties of the Appellant." 5 The factual background relevant to the present appeal can be stated shortly as follows. 6 The appellant is to be presented for trial in the District Court on 14 February instant. He is to be so presented upon an indictment charging against him a number of serious offences of a sexual nature which offences are said to have been committed by him against a complainant who is said to be the appellant's adopted daughter. The events in question appear to span the years between 1987 and 1994. There are to be, as it would seem, 13 counts in the indictment upon which the appellant will be tried. 7 The appellant was arrested on 13 December 1994 and charged with the offences for which he is now facing trial. The course of events between 13 December 1994 and 9 April 1999 is set out in a 4-page document, a copy of which I attach for ease of reference to this judgment. To that chronology it is necessary to make the following additions: · On 19 April 1999 the appellant's trial was listed before Christie DCJ. The appellant appeared unrepresented. There was a deal of discussion, involving his Honour, the Crown Prosecutor and the appellant, concerning various procedural matters, the fine detail of which is not now significant. At the conclusion of that discussion, and without, as it would seem, any prior notification having been given by the appellant of his intention to make an interlocutory application, the appellant presented his Honour with a Notice of Motion and a supporting affidavit. The Notice of Motion sought an indefinite stay of the appellant's trial until such time as proper legal representation could be arranged for him in connection with the presentation of his defence at trial. The Crown opposed the application; and his Honour heard brief submissions from the appellant in connection with it. The appellant concluded his submissions as follows: "Now if I went back to Legal Aid which I must do then I would certainly be seeking counsel. Now in my meetings with Legal Aid they did say to me do you want your own counsel, in other words you are free to choose your own counsel other than people employed by Legal Aid. At the time I just said well what can I do, I don't know any solicitors, I don't know any barristers, how does an ordinary person in the street find counsel. Well I think I have a solution to that now whereas I didn't have a solution to that six months ago and so therefore I'm asking for a stay of proceedings to give me time with Legal Aid knowing that the trial has been indefinitely deferred to seek counsel." (Appeal Book at 36) · Christie DCJ gave judgment ex tempore. His Honour dismissed the appellant's interlocutory application for a stay. The appellant at once indicated that he proposed to appeal against that decision. His Honour heard, thereupon, further submissions from the appellant, and some brief further submissions from the Crown Prosecutor. The upshot of the further discussion was that the appellant's trial was stood down until 2.00 p.m. in the hope that some officer of the Legal Aid Commission could be in attendance for the purpose of clarifying anything that needed to be clarified in connection with the appellant's possible entitlement to a grant of legal aid in connection with his defence of the charges upon which he was then facing trial. · At 2.00 p.m. the appellant reappeared before Christie DCJ represented by a solicitor who had some familiarity with the appellant's case. In attendance also was Mr. Humphreys, manager of the Criminal Law Branch of the Legal Aid Commission. His Honour re-opened the appellant's application for a stay pending the making of appropriate arrangements for the appellant's legal representation at trial. His Honour canvassed with the appellant's solicitor and with the Crown Prosecutor various procedural problems that his Honour perceived in the event that the appellant's trial proceeded with the appellant unrepresented. His Honour was pressed by the appellant's solicitor to take evidence from Mr. Humphreys, and that was done. · During the course of his evidence given in chief to the Crown Prosecutor, Mr. Humphreys was taken to the conversation said to have taken place on 13 October 1998 between him and the solicitor then appearing for the appellant, that solicitor being the legal representative then appearing for the appellant before Christie DCJ. In that connection Mr. Humphreys gave the following evidence: "A. I can indicate that a discussion took place. It was not along the lines as indicated in the affidavit that the only way he would achieve a grant of aid was to plead guilty to the charges. The circumstances were that Mr. K withdrew his instructions as a result of a number of matters which included matters where the solicitor who was appearing for him felt he was in ethical difficulties and they were a series of matters and it was certainly not a situation where the only way he would achieve a grant of legal aid would be by pleading guilty. It related to other instructions. In terms of the end had he done that then that would have obviously overcome those ethical difficulties at the time. Q. In any event the ultimate refusal of legal aid was related to the means test? A. Yes. Q. I think a little while ago you were handed a further application for legal aid by Ms White on behalf of the accused? A. That's correct, it was filled in just outside the Court and completed as we were in Court. Q. Have you had an opportunity to consider that as well as consider the affidavit which you've now got a copy of? A. Yes, I've read the affidavit and I have read the application for legal aid. Q. And although you haven't formally determined the matter yet, can you indicate to his Honour what do you think your decision will be in relation to this fresh application for legal aid? A. The application for legal aid is not substantially different to that which was lodged in September of 1998. In considering whether or not to grant legal aid I am bound to apply the Legal Aid Commission's means test. That test requires me to take account of income from all sources, less an amount of $60 per week for any dependents, less an amount of up to $128 per week for accommodation. It required me to take into account the income of financially associated persons which includes Mrs. K. I am required to have a look at what are required or are termed net liquid assets and if the net liquid assets exceed the likely cost of the grant of legal aid then I'm required to refuse legal aid. On attachment A2 of the affidavit referred to - it's attachment A2 page 2 of 6 which is the requirement to - the fourth page of the affidavit including the front - it discloses in there that his wife has a cash management trust account of $9,640 and that there are investments estimated which I understand is by way of shares and I assume that these are the shares that were declared on the last occasion and they haven't changed, there's an amount of $25,000 there. I'm required to take into account those amounts which is approximately $34,000 and on that basis alone I would be refusing legal aid because of the existence of net liquid assets which could be put towards the cost of legal expenses in this matter. Q. What about what is shown on that same page as debts? A. Under the Legal Aid Commission's means test I'm not normally required to take into account debts. In reading this Mr. K has entered into a scheme of arrangement with the Taxation Commission and that debt is not due and payable at the moment. I acknowledge there is a contingent liability for 1995 and 1996, however that is not yet due and payable and that whilst the Taxation Office may threat if money is simply not there to recover it can't be recovered if it's put to other uses as in some payment towards legal expenses in respect of this case. Q. At the end is it the situation that you will be obliged under the Act to determine the application that was handed to you ten minutes or so ago -- A. Yes. Q. -- when you get back to your office? A. When I get back to the office I will determine it and --- Q. How will you determine it? What decision will you come to? A. I will decline legal aid on the same basis that legal aid was declined by another authorised officer in September last year." [Appeal Book at 44,45] · In cross-examination Mr. Humphreys gave the following evidence: "Q. And in relation to the conversation that I had with you on 13 October 1998 that's referred to in the affidavit annexed to the notice of motion brought on by Mr. K, in relation to the plea of guilty do you agree that that was discussed? A. It certainly was discussed but a large range of matters which it would be preferable for ethical reasons that I not go into were discussed as well. It was an attempt to fully inform you of the stage the case was at and the difficulties that had arisen. Q. In that conversation did I advise you that I had no difficulty with Mr. K's instructions? A. Yes you did. Q. And that I believed that I could adequately represent Mr. K at trial? A. My recollection is that you did. Q. And it was subsequent to that that I received your letter dated 20 November refusing aid on a means test basis? A. Yes. Q. And in our conversation we had not discussed the question of means at all? A. No, no not at all, we were dealing with the legal questions that arose. We then got the application and the application was dealt with on the basis of means. You then - you were completely frank and open with your dealings with the Commission." "Q. Would you say that Mr. K's application and his conduct of his application for legal aid throughout has been diligent or tardy, has he done everything that's been required of him? A. He certainly - where requests have been made of him in each case he has supplied us with information that has been requested and he has as far as I can see been open and honest in respect of his financial situation and he - he did not seek to appeal the decision to refuse legal aid in September and has not lodged an application, I can't comment on the basis for that, but certainly in terms of anything that we have requested of him, he has assisted the Commission in its administrative processes." [Appeal Book at 46] · No further evidence was called before his Honour. His Honour heard further addresses and again dismissed the appellant's application for a stay. His Honour was informed that, in the event that the appellant's trial was forced on, the appellant would be unrepresented. After some further discussion with the appellant's solicitor, his Honour adjourned the trial until 10.00 a.m. on 27 April 1999. · On 22 April 1999 the appellant's trial was listed for mention before Christie DCJ. By that time the appellant had instituted the present appeal to this Court. The Crown consented to the adjournment of the pending trial; but made it clear to his Honour that such consent was predicated upon information which had been communicated to the Crown to the effect that the Registry of this Court could arrange an early hearing of the proposed appeal, the date of 18 May 1999 having been suggested as a date probably available. His Honour was told that the appeal to this Court would be listed for mention on 3 May 1999. · His Honour thereupon adjourned the appellant's trial. In doing so, his Honour made the following observations which are, in my opinion, of significance for present purposes: "…………….. (I)t's my personal view in the matter that the delays in this trial are such as to bring the criminal law in this State into disrepute and it's a question of balancing the two competing interests. I believe that I have given the accused an opportunity to seek a pro bono representation, ……………………… but if there's a real prospect of the Court of Criminal Appeal dealing with it early and then if the trial is to proceed it is to proceed fairly shortly, then my major concern would be removed." [Appeal Book at 61] · At the hearing of the present appeal the Court was told that the date for the hearing of the appeal had not been fixed until 25 August 1999. As the evidence before this Court stands, there is no explanation of the delaying, until that date, of the fixing of a date for the hearing of the present appeal. That there is such a gap in the evidence is, in my opinion and to say the least, both regrettable, and unhelpful to the Court in the proper performance of its present task. · On some date not particularised otherwise than as having been later than 25 August 1999, the appellant's trial was fixed for hearing on 14 February next. 8 In connection with the relevant factual background, there are two further matters to be noted. 9 First, the appellant was represented before this Court by Senior Counsel. Counsel's instructing solicitor, who was present with him throughout the hearing, was the solicitor who appeared, as earlier herein noted, for the appellant before Christie DCJ. Counsel informed the Court that his appearance did not indicate any dramatic improvement in the personal financial circumstances of the appellant; and that, while not appearing in a completely pro bono capacity, he was appearing at a very much reduced fee. 10 Secondly, this Court did receive in connection with the hearing of the appeal some evidence additional to that which had been before Christie DCJ. The salient features of that additional material are as follows: · The present financial situation of the appellant was put as follows:

Employment and earnings: the appellant and his wife conduct a business from their present place of residence. The appellant draws $750 per week in gross earnings. The appellant's wife draws $600 per week in gross earnings. Debts: taxation $36,000 (estimated up to end June 1989, and including a component for estimated provisional tax for the current financial year)

Debts: non-taxation $ 8,378 · There is no evidence of any detailed kind concerning the shares standing in the name of the plaintiff's wife. There is no information as to the identity of the company or companies in which the shares are held; or of the likely stability of the present estimated value of $35,000; or of how readily saleable the shares might be; or of the estate or interest, if any, of the appellant himself in the shares. There is no evidence to indicate whether the shares are held in the name of the appellant's wife because that is a convenient taxation, or other personal financial strategy; or whether, in a real and true sense, the shares are the property of the appellant's wife quite independently of any estate or interest in them of the appellant. · There is no information concerning the commercial operations of the business conducted by the appellant and his wife. It is impossible, as the evidence stands, to form any view about the profitability of the business venture(s) in which the appellant is currently engaged; although it is, in my opinion, reasonable to infer that the business interests of the appellant and of his wife are, overall, profitable to a not insubstantial extent if those enterprises are yielding regularly, as the Court was told is the case, weekly drawings for the appellant and his wife in the order of the figures earlier herein noted. · There is no way of expediting a further application to the Legal Aid Commission for a grant of legal aid. The Commission will not do anything unless the appellant files a further formal application upon the prescribed form. The Commission will, thereupon, assess whatever information is thus provided to it by the appellant; and will do so in the light of the Commission's existing current guidelines as to means. · Having regard to what has passed previously between the appellant and the Legal Aid Commission, as supplemented by the fairly exiguous additional material that was placed before the Court in connection with any fresh application by the appellant for legal aid, it seems to me to be an overwhelming inference that the appellant either will not be granted legal aid at all; or will be granted legal aid upon such terms as are unacceptable to him. There seems to be an irreconcilable difference of view between the appellant and the relevant officials of the Legal Aid Commission as to the justification for the briefing of Senior Counsel rather than junior counsel to represent the appellant at his trial. It is, in my opinion, reasonable to infer also that there are irreconcilable differences of opinion between the appellant and the relevant officials at the Legal Aid Commission as to the way in which, and the basis upon which, the appellant's case at trial should proceed. 11 In my opinion, any present review by this Court of the interlocutory decision of Christie DCJ must keep carefully in mind two basic propositions. 12 First, the onus in the interlocutory proceedings before Christie DCJ rested upon the appellant and not upon the Crown; and it is for the appellant to make good his present challenge to the interlocutory decision of Christie DCJ. 13 Secondly, it is important to remember that the decision of Christie DCJ represented the exercise by his Honour of a judicial discretion. It is not for this Court peremptorily to interfere with the exercise by his Honour of that discretion. If this Court is to interfere at all, then the present case must be brought within the relevant, and well-established, principles, the standard definition of which appears in the following extract from the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504, 505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 14 For the appellant it was submitted that Christie DCJ had erred in two respects. It was contended, first, that his Honour had taken into account an immaterial consideration. It was contended, secondly, that his Honour had been required to conduct, essentially, a balancing exercise, and had struck a balance that did not reflect what the law requires. 15 The first of those contentions has to do with the following passage in the judgment of Christie DCJ: "I am told from the bar table and without demur from the accused and it appears to accord with common sense, that the complainant, having made these complaints in somewhere around October, November 1994 and the accused having been arrested in December 1994, has had no contact apparently with either the accused or the accused's wife, her adoptive mother." [Appeal Book at 54,55] 16 A fair view of what is said in that passage requires that the passage be set fairly into the whole of the context of which it forms but a part; and that the passage then be considered with a fair allowance made for the fact that his Honour was speaking ex tempore. 17 The passage in question, when read in that way, seems to me to convey nothing more than this: that his Honour was concerned by the prospect that, were the appellant to appear unrepresented at his trial, the complainant would find herself confronted, more or less unexpectedly, by the appellant and the appellant's wife, the appellant himself cross-examining her about sensitive matters of sexual conduct and misconduct; and the appellant's wife being, possibly, seated beside the appellant at the Bar table assisting the appellant with his clerical and other practical administrative needs. I think that it is fair to infer that his Honour was apprehensive that the complainant would be exposed, in such a situation, to an undesirable exacerbation of the distress which she might be expected to be suffering in any event. 18 Looked at in that way, I do not see that the passage of which present complaint is made manifests error in the sense for which the appellant contends, or in any other relevant sense. 19 The appellant's second contention is not so easily dealt with. 20 The relevant principles by which Christie DCJ was bound in connection with the balancing exercise to which I have earlier referred, are not in doubt. They were established, initially, by the decision of the High Court of Australia in Dietrich v The Queen (1992) 177 CLR 292. The following well-known passage, at 177 CLR 315, sets out the basic considerations: "……………..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." 21 Subsequently, and in Craig v The State of South Australia (1995) 184 CLR 163, the High Court has given some supplementary guidance. The relevant propositions are stated as follows: "The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being 'through no fault on his or her part' was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that: '………….. what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.' A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused." 22 The correct application of the Dietrich and Craig principles to the evidence that was placed before Christie DCJ supports, in my opinion, the following propositions:

It is beyond doubt that the charges pending against the appellant are very serious criminal charges.

It is equally beyond doubt that it would be preferable in every way that the appellant be represented at his trial by competent and experienced solicitor or counsel, rather than that he should appear in person and unrepresented.

The time that is being taken to bring the appellant to trial is unconscionable. It is unconscionable from the point of view of the appellant himself, in that he is entitled to have the charges against him adjudicated to finality and without undue delay. It is unconscionable from the point of view of the complainant, whose proper interest is to have these distressing allegations brought to finality as soon as possible, so that she may get on with her own life. It is unconscionable, not least of all, from the point of view of the public interest in the prompt and efficient administration of criminal justice according to law.

As long ago as October 1997 the appellant was granted legal aid. He appears to have had the benefit of this assistance for about 10 months and until August 1998.

In or about mid-August 1998 this grant of legal aid was withdrawn. Among the materials attached by the applicant to the affidavit which he swore in support of his application before Christie DCJ, is a document identified as "Attachment C1" . It is reproduced at Appeal Book, 18. It appears from that material that the appellant was advised that legal aid had been withdrawn upon the bases, as quoted by the appellant from the relevant letter written by the Legal Aid Commission, "that you were not prepared to accept the advice given by your legal representative in relation to the conduct of the trial, and that you therefore withdrew your instructions. Further, I understand that you stated that you would represent yourself" . So far as I can see from the available material, it does not seem that the appellant now disputes, or has in the past disputed, the correctness of what is thus stated in that letter.

The same attachment, C1, establishes that as long ago as 20 November 1998 the appellant was notified by the Legal Aid Commission that he did not satisfy the relevant means test.

The evidence before Christie DCJ does not seem to me to establish with any clarity at all just what it was that the appellant did, between November 1998 and April 1999. The chronology attached to this judgment establishes, it is true, that the appellant has made, within that period, some further application(s) for legal aid; and it is clear that those applications have been unsuccessful. There is, however, no more precise canvass of the course of events between November 1998 and April 1999.

That same chronology establishes that the trial which was supposed to commence before Christie DCJ on 19 April 1999 had been fixed for that date on 8 October 1998. There is, so far as I can see, no explanation at all from the appellant of things done by him between 8 October 1998 and 19 April 1999 in order to arrange representation at his trial.

The situation obtaining in April 1999 as between the appellant and the Legal Aid Commission was one of complete stalemate. The appellant wanted, (and for that matter still wants), representation by Senior Counsel. The Commission was, and for that matter is still, adamant that representation at that level cannot be justified having regard to the resources available to the Commission and to the Commission's perception of the reasonable requirements of the appellant's defence.,

Further, there was in April 1999, and there appears still to be, some intractable difficulty, as between the appellant and the Legal Aid Commission, concerning the way in which the appellant's defence at trial is to be framed and presented. It does not seem to me to be necessary for present purposes to make a finding of fact, in any particular sense, of the nature and extent of such differences between the appellant and the Commission. It is sufficient to understand that some such difference(s) exist(s).

Christie DCJ, in his Honour's judgment on the interlocutory application, described as a dilemma the situation which confronted his Honour. The reality of that dilemma seems to me to be well described in the following passage from the judgment of Hunt CJ at CL in Reg v Small (1994) 72 A Crim R 462 at 473: "It is a well known and frequently encountered phenomenon that some accused persons are psychologically quite unable to face up to the fact that their trial is to proceed. They put off applying for legal aid until it is far too late for their case to be prepared adequately. Very rarely could such conduct properly or fairly be characterised as a deliberate refusal or a wilful neglect on their part, yet the absence of legal representation can certainly be characterised as resulting from their fault. The criminal justice system would be crippled if such persons had either the absolute right to an adjournment in order finally to arrange legal representation or the right to a new trial if the trial is unsatisfactory as a result of the absence of such representation when they are solely responsible or at fault for that state of affairs."

Given the whole of the foregoing propositions, and given also the demonstrated history of the prosecution of the appellant, I am not persuaded that Christie DCJ erred in the way in which his Honour struck the balance that the law required him to strike in connection with the appellant's interlocutory application. 23 I have referred earlier herein to certain additional material received by this Court on the hearing of the appeal. I have considered whether that material makes any difference to the view that I would take, otherwise, about the interlocutory judgment of Christie DCJ. It does not. 24 In my opinion, the material before Christie DCJ was wholly inadequate to discharge the burden of proof that rested on the appellant at first instance. The material before this Court is, in my opinion, equally insufficient to discharge the onus carried by the appellant in connection with his appeal to this Court. 25 For the whole of the foregoing reasons, I would dismiss the present appeal and affirm the interlocutory order of Christie DCJ.

IN THE COURT OF CRIMINAL APPEAL CCA60182/99 SULLY J CARRUTHERS AJ SMART AJ

26 CARRUTHERS AJ: I have read the judgment of Sully J in draft form and I am in complete agreement with the orders he proposes and his reasons therefore. For my own part, I would wish however, to make the following observations. 27 Reduced to its simplest terms the issue of legal representation for the appellant reached a stalemate some considerable time ago. The matter cannot be resolved by the grant of legal aid at the instance of the Legal Aid Commission for three reasons. The appellant's financial position is such that he does not qualify as eligible for a grant of legal aid because of the Commission's means test criteria. Secondly, even if the means test could be satisfied the Commission would only grant legal aid for junior counsel to represent the appellant. This has always been unacceptable to him. Thirdly, there is an insuperable difficulty because of ethical matters, the detail of which it is inappropriate to expand upon at this stage. Those ethical problems could be resolved by the appellant but the mode of resolution is unacceptable to him. 28 On the other hand the appellant is not in a financial position to afford the quality of private representation (experienced senior and junior counsel) which he wishes to retain. 29 The only proposal which senior Counsel appearing for the appellant before this Court was able to submit for the resolution of this problem was for the trial to be delayed for at least a further 18 months or two years to enable the appellant to obtain the necessary funds to finance appropriate private representation. 30 Such a proposal is, however unsupportable. It is now almost five years since the appellant was committed for trial on these serious charges, some of which relate to the period when the complainant was a child. Such further proposed delay in the trial is unacceptable. Secondly, in the light of the evidence as a whole, no court could have any degree of confidence on the present evidence that the appellant would be in a financial position to afford the quality of legal representation of which he speaks at any foreseeable time in the future. 31 In recent years the senior criminal courts of this country led by the High Court have stressed the need for fairness in criminal trials, including the desirability of an accused charged with a serious offence being represented other than in exceptional cases. There can be little doubt that this attitude had the consequence that we have not had in this country any of the major miscarriages of justice such as have occurred in other criminal jurisdictions. However, be that as it may, the High Court has consistently reaffirmed the basic proposition that in determining the practical content of the requirement that a criminal trial be fair, regard must be had "to the interests of the Crown acting on behalf of the community as well as to the interests of the accused": see per Deane J in Dietrich v The Queen, (1992) 177 CLR 292 at 335. quoting Gibbs ACJ and Mason J in Barton v The Queen. (1980) 147 CLR 75 at 101. 32 Relevantly, in Moss v Brown [1979] 1 NSWLR 114 at 126. the Court of Appeal (Moffitt P, Reynolds and Hutley JJA) said: "In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in respect of invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain those rights, even if they may bear heavily upon some accused. As Lord Goddard CJ said in Grondkowski [1946] KB 369 at 372: 'The judge must consider the interests of justice as well as the interests of the prisoners'." 33 In the light of these authorities, it seems to me that, ever vigilant as a trial judge must be to ensure that, so far as it is possible an accused person has a fair trial according to law, nevertheless, the trial process must not be allowed to degenerate, by reason of manipulation by the accused, to the position where it is at his or her mercy. This would be so inimical to the public interest and the general administration of justice that it would necessarily lead to an undermining of public confidence in the criminal justice system. 34 Thus in Dietrich; 177 CLR 292 at 335 - 336. Deane J said: "There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented. The most obvious category of case in which this is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available." 35 Deane J referred to Regina v Greer. (1992) 62 ACrimR 442. In that case Kirby P emphasised that an accused person has no right to determine for himself or herself when he or she will be ready for trial. At 451. 36 In Regina v Frawley, (1993) 69 C Crim R 208. this Court held that the neglect of an accused to arrange legal representation in time, when adequate time was available to do so, will be one circumstance to be considered in determining whether there has been a miscarriage of justice. It is significant that Frawley was a case in which this Court declined to disturb a conviction for murder on the ground that the accused was legally unrepresented at the trial, although the conviction was quashed on other grounds. 37 The stage has been reached in the instant case where the trial must proceed without further delay. The public interest (which includes the interests of the complainant and the Crown witnesses) demands it. The appellant has had more than adequate time to arrange for what might objectively be considered as appropriate legal representation. Unless he puts his house in order as a matter of urgency so far as legal representation is concerned, the inevitable consequence is that he must represent himself.

JUDGMENT: 38 SMART AJ: Consequent upon the Certificate of the District Court Judge B.K appeals against the judge's refusal to grant "An indefinite stay of proceedings until the matter of legal representation is resolved". The word "indefinite" is inappropriate. The form of order suggested by this Court in DPP v Allan, CCA unreported 1 November 1995 was that "the trial on counts … in the indictment be stayed until legal representation is available to the respondent for the trial on those counts". 39 The Facts: On 13 December 1994 the applicant was arrested on a number of sexual offences involving an adopted daughter. On 17 May 1995 he was committed for trial to Sydney District Court. After a number of adjournments, on 29 September 1995 an indictment containing thirteen courts was presented, the applicant was arraigned, and he pleaded not guilty. On 8 February 1996 a trial date was set for 24 June 1996. Apparently, shortly prior to that date the Crown advised that it was going to rely on additional evidence, namely some handwritten statements allegedly made by a brother of the applicant. Apparently they allegedly record some virtually contemporaneous incriminating oral admissions made by the applicant to his brother. Their authenticity is challenged, and an examination of these was required. The trial was stood over. At a call-over on 7 November 1996 the trial was fixed to commence on 27 October 1997, with an estimated hearing time of three weeks. 40 The applicant stated that as soon as he became aware of his daughter's allegations he sought legal advice. That was in November 1994. He was referred to a specialist criminal lawyer who recommended retaining Senior Counsel. This was done. In June 1996 he had lodged an initial $50,000 for the June 1996 trial. 41 The applicant stated that by August 1997, when it was realised that substantially more work was required because of the further evidence presented by the prosecution, he concluded that he could no longer fund his defence. 42 On 1 September 1997 the applicant made application for legal aid. This was refused on 15 September 1997 on the basis that the applicant did not pass the means test. On 13 October 1997 the applicant appealed against that decision. On 27 October 1997 the appeal was upheld, with a contribution of $2,000 being required. 43 The trial date of 27 October 1997 was cancelled because of the legal aid situation. On 30 October 1997 it was noted at the mention before the District Court that legal aid had been granted but no counsel or solicitor had been instructed. The matter was mentioned on a number of occasions. On 2 April 1998 the trial was fixed to commence on 7 September 1998. 44 The applicant stated that on 11 August 1998 he was advised by the Legal Aid Commission that legal aid had been withdrawn because "you (the applicant) were not prepared to accept the advice given by your legal representative in relation to the conduct of the trial, and that you therefore withdrew your instructions. Further I understand that you stated that you would represent yourself. If you decide to re-apply for Legal Aid it will be necessary for you to provide a fresh Legal Aid application …". 45 About 27 August 1998 the applicant appealed against the termination of legal aid. On 4 September 1998 on the applicant's motion the trial date of 7 September 1998 was vacated. On 8 October 1998 the trial was fixed to commence on 19 April 1999, with a mention on 9 April 1999 to confirm the trial date. 46 On 13 October 1998 there was a conversation between the applicant's solicitor and a Senior Solicitor with Legal Aid. What was said in that conversation was a matter of some debate. The applicant was advised by his solicitor that such Senior Solicitor had "indicated that the only way you would achieve a grant of legal aid was a plea of guilty to the charges, and in that case he would reconsider the matter". The Senior Solicitor said that in the conversation a plea of guilty was discussed along with a large range of matters. These included legal and ethical questions, and financial matters. Mr Humphreys insisted that he did not indicate that the only way in which the applicant would obtain legal aid was to plead guilty. 47 By letter of 20 November 1998 the Commission advised: "I acknowledge receipt of your letter of 21 September, and note that we had a telephone conversation on 13 October. The Commission has carefully assessed Mr K's financial means as disclosed in the application you forwarded on 21 September, and I advise that we are of the opinion that Mr K no longer comes within the Legal Aid Commission's means test. Accordingly, aid is refused on this basis. I also confirm my advice to you in our telephone call, that in the absence of a change of circumstances in relation to Mr K's instructions I would also not be prepared to regrant aid in this matter. In any event, the Commission would not be prepared to approve Mr Geoffrey Nicholson, QC, being retained in the matter, as he is Senior Counsel and this is a District Court matter. It is not Commission policy to approve the retaining of Senior Counsel in District Court matters except in the most unusual of circumstances."

In his evidence the Senior Solicitor stated that the ultimate refusal of legal aid was related to the applicant not passing the means test. 48 On 19 April 1999, the date fixed for his trial, the applicant was unrepresented. He made application for a stay pending obtaining legal representation. The hearing of that application started shortly after 10 am, and his solicitor attended at Court as a matter of grace to assist the applicant and the court in the afternoon, a number of questions having been raised. If the trial had proceeded the applicant would have been unrepresented. The affidavit prepared in support of the application bore the marks of having been prepared by a lay person. 49 The affidavit, which was not challenged, revealed total current assets of $34,583 and total current debts of $35,912. The assets, which were stated to be those of his wife, revealed a cash management trust account with a credit of $9,640 and investments (shares) of an estimated value of $25,000. It stated that in November 1998 he was forced to enter into an arrangement under threat of bankruptcy to pay the Taxation Department $2,000 per month off taxation debts of $42,732. Future tax liabilities had to be paid on time. The applicant said that tax for 1997 and 1998 had to be determined, and would be significant. The tax would primarily be to his wife's account, as his earnings had plummeted due to illness and distress. The sum of $25,000 was being held to met those tax liabilities which had to be paid on demand or assessment. 50 The applicant attributed his parlous financial position to having paid large sums, namely $79,275, on legal and associated expenses, and having fallen ill and suffered substantially reduced earnings. He and his wife conduct their separate businesses from home. This is rented. He deposed, with details, to what could fairly be described as a modest to impoverished life style. He and his wife support one child at home and two, who are partially dependent, undertaking university studies. The applicant could fairly be described as struggling financially. 51 There were no details given of the income of the applicant and his wife. The evidence points to that being modest. 52 The Senior Solicitor stated that when considering any application for legal aid he was bound to apply the Commission's means test. He is required to take into account the income of the applicant and financially associated persons, that is, his wife. If the net liquid assets exceed the likely costs involved in granting legal aid he was required to refuse legal aid. The Senior Solicitor pointed to the $34,000 in net liquid assets held by the wife. On that basis alone legal aid had to be refused. The Senior Solicitor said that he was not normally required to take debts into account. He regarded the taxation debts as a contingent rather than a present liability. The liability does not become a contingent one merely because the Taxation Department allows a present debt to be paid off over a period. The debt was in respect of 1995 and 1996. 53 The Senior Solicitor stated that the further application for legal aid handed to him on 19 April 1999 would be refused on the same basis as the one handed to him in September 1998. 54 In DPP v Allan, supra, at paragraphs 2 and 3 Hunt CJ at CL said: "2. The issue of the accused's indigence is not resolved by the mere application of the means test guideline laid down by the Legal Aid Commission. If someone falls outside those guidelines he may nevertheless still be unable to obtain legal representation with the means reasonably available to him … 3. That does not result in a trial without legal representation being any the less unfair." 55 That observation is important in this case. I do not regard the $34,000 as being reasonable available to the applicant. He said that the $34,000 belongs to his wife. The majority is earmarked for taxation liabilities. Those liabilities have to be met to avoid being made bankrupt. It would not be easy for the applicant and his wife to carry on their respective businesses if they were made bankrupt. Their businesses are their livelihood. 56 The offences charged cover the period 1987 to 1994. The trial was estimated to take about two weeks by the Crown and about three weeks by the applicant. The Crown Prosecutor told the judge that he could not argue that there was not some complexity about the matter. There was also a personal factor in that the two twin sisters and daughters would be witnesses, as well as the boyfriend of the other twin sister. The applicant, if he appeared in person, would be cross examining members of his close family. The judge thought that if this happened he would, during such period, have to withdraw the wife's leave to assist the applicant husband. 57 During the hearing (T.19 of 19.4.99) the judge stated that he was going to proceed on the basis that the financial position of the applicant was grievous. 58 During argument in this Court it became apparent that the applicant preferred to be privately represented, and wanted Senior Counsel to appear for him. However, his Counsel told us that his client realised that he may have to accept junior counsel. The applicant's counsel thought that there was little prospect of him obtaining legal aid. As the applicant expected to take about a year to meet the remainder of his taxation liabilities, it would take him at least another twelve to eighteen months, and possibly another two years, to save up enough money for his defence. 59 On current legal rates for private practitioners the $35,000 presently held by his wife to cover taxation, if used for legal fees, would not go very far, assuming junior counsel of competence was briefed. It would not be sufficient to cover the costs of a two to three week trial with private representation and pre-trial preparation. 60 The judge noted that since December 1994 the complainant had had no contact with either the applicant or his wife. The judge stressed the need to have matters such as this dealt with as quickly as possible. That is highly desirable. The judge observed that the interests of the accused were by and large paramount. 61 On the issue of whether the applicant had been at fault, the judge noted:

(a) the trial date was fixed some six months previously, after earlier fixtures had been cancelled;

(b) the applicant had not mentioned the application for a stay when the matter was mentioned on 9 April 1999, although the applicant had an explanation which the judge said he had no reason to doubt;

(c) the application for a stay had been made on the morning the trial was to start; the judge said that he had no reason to doubt the applicant's explanation that he had learnt of it of recent times from the internet;

(d) nothing had been done by the applicant in the six months since the trial had been fixed to obtain legal representation;

(e) the judge did not know whether the applicant had approached the Bar Association under the pro bono scheme. That is not available for long criminal trials, and is usually limited to trials not exceeding three days. 62 The judge recognised that he was confronted with a dilemma. On the one hand there had been unacceptable delay. On the other hand, the applicant would be forced on, probably without legal representation. The judge recognised that the applicant had a right not to be tried unfairly on these serious offences. 63 Legal aid having been refused in the latter months of 1998 it is hard to see what the applicant could have done to procure legal representation. Such money as the wife had had been set aside to meet tax liabilities. The applicant had effectively exhausted his funds in that $79,275 had been spent on legal costs and expenses. 64 The applicant's trial will be unfair if he does not have counsel of reasonable competence to represent him. In cases of this type cross examination is important, as doubts need to be raised from the accused's point of view as to the complainant's credibility. 65 In R v Roula Kay, CCA unreported 27 April 1998 I discussed the principles which apply at pp 11 - 13. I adhere to the views which I there expressed. The leading authority is Craig v South Australia, 184 CLR 163 at 183-184 where it was said: "The decision of this Court in Dietrich v The Queen established that, in a criminal case where an unrepresented accused is facing trial for serious offences, a trial judge has power to make an order staying the proceedings if, in the circumstances of the case, it appears that the accused would otherwise not receive a fair trial. In the course of their joint judgment, Mason CJ and McHugh J made the following comments as reflecting their approach and that of the other majority Justices: '…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.' The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being "through no fault on his or her part" was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that: '…what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.' A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused."

The test is not a rigid but a flexible one, and regard must be had to all the circumstances of the case. The reasonableness of the conduct of the accused has to be assessed. 66 Once legal aid was refused I have great difficulty in seeing what the accused could have effectively done. I readily accept, based on current practice, that any private practitioners would probably require a down payment of $50,000 in advance in a case such as this, with a warning that more may be required if the case lasted longer than anticipated. 67 Such assets as the wife has or had could not cover expense of this magnitude. He and she had to stay in business to support themselves and their family, and to do this they had to meet their tax liabilities. 68 I do not think that the evidence before the judge supported the conclusion that the applicant had acted unreasonably. In retrospect, the financial resources would have been better kept for the trial. However, there was a trial aborted apparently after further evidence was discovered by or made available to the Crown at a late stage. When financial resources are tight the costs of an aborted trial make a large hole in such resources, and are hard to recoup. 69 While I greatly regret the delay, much of it appears to be due to the applicant's impoverished financial circumstances and the aborted trial. The judge did not give sufficient weight to those facts. 70 The problem remains that the applicant does not have the funds to be represented, and that without reasonable legal representation his trial will be unfair. He could not be expected to handle a trial of this magnitude on his own. The general procedural advice which a judge gives an unrepresented accused is no substitute for legal representation. 71 The judge was asked to deal with the matter on inadequate materials. This was no doubt due to the applicant being unrepresented until after lunch-time on 19 April 1999. I have endeavoured to piece together the history of this matter and to work out what happened. 72 In my opinion the exercise of the judge's discretion miscarried. The question remains as to what course should be followed. The trial fixed for 14 February 2000 should be vacated. There are two alternatives, namely, to grant a stay until legal representation is available to the applicant for trial on the counts in the indictment, or to remit the matter to the District Court for close supervision by a judge of that Court, in the expectation that a trial date will be set some fifteen to twenty-four months hence. 73 The applicant has made out a case for either form of relief. I prefer the latter form because it is the more effective way of dealing with this matter. It will keep the applicant up to the mark, and allows greater flexibility. It would not be beyond the Court's power to require the applicant to set aside weekly amounts to meet his costs. If the moneys held by the wife are paid to the Taxation Department that may enable a fresh application for legal aid to be made. 74 I propose that the appeal be allowed to the following extent: (a) Vacate the trial date of 14 February 2000. (b) Remit the matter to the District Court to be dealt with in accordance with these reasons.

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