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: