CRIMINAL LAW - Appeal - Interlocutory appeal - Application for leave to appeal out of time - Stay of trial until counsel for respondent provided with solicitor to instruct counsel on day to day basis for duration of trial - Crown acquiescing in stay - Later application by Crown for leave to appeal out of time against stay despite previous acquiescence - Whether just to grant leave to appeal - Application for leave to appeal refused - Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, referred to.

CRIMINAL LAW - Criminal Procedure - Stay - Whether trial judge erred in finding that lack of instructing solicitor likely to make trial unfair - Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, considered; Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370, distinguished; R v Fuller & Cummings [1997] SASC 6297; (1997) 95 A Crim R 554, referred to.

HUMAN RIGHTS - Charter of Human Rights and Responsibilities - Whether appropriate to entertain Charter points on interlocutory criminal appeal - Wells v R (No 2) [2010] VSCA 294, applied - Charter of Human Rights and Responsibilities Act 2006 (Vic).

PRACTICE AND PROCEDURE - Application for leave to appear as amicus curiae - Whether court would be assisted by submissions of amicus - Roadshow Films Pty Ltd v iiNet Ltd (2011) 284 ALR 222, [2011] HCA 54, applied.

For the Victorian Equal Opportunity and Human Rights Commission

Victorian Equal Opportunity and Human Rights Commission

1 This is an application by the Director of Public Prosecutions for leave to bring an interlocutory appeal out of time against an order of Lasry J made on 15 February 2013: that the trial of the respondent, Matwali Chaouk, be adjourned to a date to be fixed and not commence until counsel for the respondent has the assistance of an instructing solicitor on a day to day basis for the duration of the trial.

2 The application is remarkable not only because the Crown did not oppose the order at the time it was made and yet now seeks leave to appeal against it, but also because the application has attracted, on the one hand, the support of the Attorney-General for Victoria, pursuant to s 34 of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'), and Victoria Legal Aid (VLA), which seeks leave to intervene as amicus curiae; and, on the other hand, the opposition of the Victorian Equal Opportunity and Human Rights Commission, pursuant to s 40 of the Charter, and the Victorian Bar and the Law Institute of Victoria who also seek leave to intervene as amici curiae. Each of those parties is represented before us by counsel and instructing solicitors and has favoured us with detailed written submissions ranging broadly across matters of criminal procedure and Charter jurisprudence.

3 At base, the application for leave to appeal is said to be justified by the fact that, since the order was made and despite strenuous efforts by the Director to procure the necessary legal aid funding for the respondent, VLA has declined to alter its previously announced determination that it will not fund the attendance at court of an instructing solicitor for the respondent for more than two half days of the trial. Thus, it is contended that judge's order has become 'in effect, a permanent stay of the serious criminal charges the subject of the indictment' with the result that 'there is a very strong public interest that the correctness of that decision be the subject of appellate scrutiny'.

4 In fact, the cost of funding the attendance at court of an instructing solicitor for the estimated two to three weeks' duration of trial would be but a fraction of the costs associated with this application. Ultimately, the State of Victoria is responsible not only for prosecuting the respondent but also for the provision of legal aid. In the circumstances, one might perhaps suppose that the large amount of money evidently outlaid on this proceeding could have been a little more productively directed.

5 Of course, it is not part of this court's function to husband legal aid resources, still less to determine what amount of legal aid funding the State should provide.[1] In a federation such as ours, these things may well reflect the present condition of Commonwealth/State finances and, in any event, they involve questions of policy which it is for the executive alone to decide.

6 The fact that the executive has choices in such matters, however, is something to be borne in mind. The power of the court to stay a criminal trial is the ineluctable concomitant of the court's duty to ensure that a criminal trial is as fair as we can reasonably make it.[2] There is of course a significant public interest in the independent performance of that duty by the court. When it comes to legal representation, a decision to stay a trial reflects the court's assessment of what is necessary to ensure that justice is done. Allowing that the executive has choices as to the extent of legal aid funding, the court's assessment of what is necessary for a fair trial and the dictates of executive policy may not necessarily coincide.

7 As a matter of law, the application is put on the basis that the judge's determination involves an erroneous departure from the manner in which the New South Wales Court of Criminal Appeal in Attorney-General for New South Wales v Milat[3] interpreted the principles laid by the High Court in Dietrich v The Queen;[4] and that, consistently with the obligation of Australian intermediate appellate courts to follow each other's decisions,[5] we are bound to correct the error.

8 Yesterday, we heard extensive argument on both points and then adjourned to consider the matter overnight. Having now reflected upon the Director's arguments, we are not persuaded by them.

9 This court will not ordinarily entertain an appeal by a party on the basis of a point of law which that party did not advance below. As the High Court held in Metwally v University of Wollongong (No 2):[6]

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

10 Those words were spoken in the context of a proposed appeal from final orders, but there is no doubt that similar considerations apply here. Indeed, if anything, unless new facts come into existence or are discovered which make an interlocutory order unjust, the principle that a party is bound by the conduct of his case applies with even greater force to interlocutory appeals than to appeals against final orders,[7] and especially so in the case of the Crown.

11 Yesterday, the Director argued that in this case there were exceptional circumstances in that, although the Crown did not oppose the judge's order at the time, at that stage it was contemplated that the order might be varied once funding had been secured for an instructing solicitor or second counsel. As a result, in the Director's submission, the stay was in substance only a temporary stay and it was not until later, after VLA had reiterated that it would not fund an instructing solicitor's attendance at court for more than two half days of trial, or fund second counsel, and the State declined to assist, that the stay became in effect a permanent stay; whereupon the Crown applied to the judge to vary the order and so allow the trial to proceed without the respondent having a solicitor present at court.

12 In our view, the Director's submission breaks down at several levels. First, the judge's order was not temporary, but conditional. The condition was that counsel for the respondent be provided with the assistance of a solicitor at court to instruct counsel on a day to day basis for the duration of the trial. It was not that sufficient time be given to allow VLA or the State of Victoria or indeed anyone else to consider or reconsider whether they would fund the attendance of defence counsel's instructing solicitor at court for more than two half days of the trial.

13 Secondly, the basis on which the judge made the order was his Honour's finding that a trial without the attendance of a solicitor at court to instruct counsel for each day of the trial would not be a fair trial. By its silence before the judge, the Crown must be taken to have accepted the finding.

14 Thirdly, the finding that the absence of the respondent's solicitor from the trial would be productive of an unfair trial necessarily entailed a determination by the judge of what practically must be provided to render the trial fair. By its silence before the judge, the Crown must be taken to have accepted that determination.

15 Fourthly, the determination that a fair trial necessitates the attendance of an instructing solicitor at court for each day of the trial is logically unaffected by VLA's reiteration of its refusal, or the State's disinclination, to fund the costs of the respondent's solicitor's attendance at trial for more than two half days of the trial. As we have said, the determination of what is fair must reflect the court's assessment of what is reasonably necessary to ensure that justice is done, and that is so notwithstanding executive policy as to what the State chooses to provide.[8]

16 Accordingly, to allow the Crown now to argue that the judge erred in holding that the respondent could not receive a fair trial without the attendance of an instructing solicitor at court for each day of the trial would be to allow the Crown to advance a new and radically different point for the first time on interlocutory appeal. In the circumstances of this case, we are unable to discern the justice in allowing that to be done.

17 In case it matters, however, we should say that, even if the Crown were permitted to advance that point for the first time on appeal, we are not at all persuaded that the judge was in error in finding that, in the circumstances of this case, a fair trial necessitated the attendance of the defence instructing solicitor at trial for each day of the trial.

18 Counsel for the Director argued that the judge was in error in holding or finding that the absence of an instructing solicitor:

substantially increase the likelihood of errors being made or important matters being overlooked by counsel - a risk that will not confront the prosecution. I am therefore of the view that in the circumstances as they are at present, the trial of the accused is likely to be unfair in the sense that it carries a risk of improper conviction.[9]

In counsel's submission, the judge so erred because it is to be seen that his Honour applied an incorrect test of there being a 'risk' of an unfair trial or a 'risk' of an improper conviction, as opposed to what counsel contended to be the correct test of whether the trial would be unfair or at least likely to be unfair, as propounded by the High Court in Barton v The Queen and Dietrich v The Queen.

19 We reject the submission. In his reasons for judgment, his Honour expressly set out the following statements of principle from Barton and Dietrich as those by which he considered himself to be bound:

19 Barton v The Queen[10] was a case where the High Court was concerned with whether the filing of an ex officio indictment was judicially reviewable and whether an unfairness arose by the failure to hold a committal proceeding. As to the power of the trial judge, concerning the prospect of an unfair trial, Gibbs ACJ and Mason J said:[11]

There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place. (Emphasis added.)

20 In Dietrich,[12] Mason CJ and McHugh J began their joint judgment by saying:

In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence. (Emphasis added; citations omitted.)

21 In considering the attributes of a fair trial, their Honours noted:[13]

There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial resulted in the accused being deprived of a fair trial and led to a miscarriage of justice. (Citations omitted.)

22 Adopting the approach identified by their Honours in Dietrich, the decision I have to make as to whether to grant an adjournment or order a stay in the exercise of the Court's inherent jurisdiction, is whether the trial is likely to be unfair if the accused is forced on under the present circumstances.[14] This is not the exercise of a discretion. If I find that the trial is likely to be unfair in the relevant sense, then I must adjourn or temporarily stay the trial.[15]

Relevant to the question of fairness are all the interests of justice, referring not only the interests of the accused but also to the public interest in having cases tried.

20 As can be seen, the judge specifically observed in paragraph 22 of his reasons that:

the decision I have to make as to whether to grant an adjournment or order a stay in the exercise of the Court's inherent jurisdiction, is whether the trial is likely to be unfair if the accused is forced on under the present circumstances.[16]

21 Further, contrary to counsel's submission, the judge did not say that the test was whether test there was a 'mere risk' of an unfair trial or a 'mere risk' of an improper conviction. Rather, his Honour reasoned that, because the absence of an instructing solicitor from court would be productive of a 'substantially increased ... likelihood of errors being made or important matters being overlooked by counsel' - a risk which would not face the Crown - 'the trial [was] likely to be unfair'.[17]

22 Certainly, his Honour based his conclusion as to the likelihood of an unfair trial on his finding that the absence of an instructing solicitor would be productive of an unacceptable risk of improper conviction. Logically, however, both the finding and the path of reasoning from it to his Honour's conclusion are unimpeachable. In the sense in which the judge surely intended to convey, the procedural shortcomings of a trial are only ever unfair if productive of an improper risk of conviction - otherwise, they are deemed to be immaterial. And, for the reasons essayed by the judge at paragraphs [27]-[40] of his reasons, we see no reason to doubt that the lack of an instructing solicitor at trial would be productive of a very real and substantial risk of improper conviction.

23 Quite apart from anything else, his Honour made his judgment with the benefit of an understanding of the matrix of fact involved in the case which we do not have. As the identification of the issues in the case contained in his Honour's reasons makes clear, he had considered depositional evidence comprising the Crown case, which has not been placed before us.

24 Counsel for the Director further contended that the judge erred in failing properly to apply the decision in Milat,[18] which counsel characterised as being that, except for extreme cases where the only representation available to an accused is manifestly inadequate to the task at hand, the level of sufficiency or competency of the representation is irrelevant to the question of whether the trial would be fair. It followed, in counsel's submission, that the judge was in error in granting a stay without first being satisfied that the state of representation available to the respondent was so insufficient that the respondent should properly be regarded as unrepresented.

25 We do not accept that submission. In Milat, the question was whether, in the circumstances revealed by the evidence in that case, the accused had shown that he was unable to obtain proper legal representation and thus that his trial would be unfair.[19] The evidence included that the New South Wales Legal Aid Commission had offered and remained prepared to provide a public defender of senior counsel status, a junior counsel of the accused's choice, and an in-house solicitor from the Commission. The argument was only ever about whether, because the Commission was not willing to pay enough to attract both senior and junior counsel of the accused's choice, the trial should be stayed. Unsurprisingly, the argument was rejected. The Court of Criminal Appeal said that:

It is not required by the decision in Dietrich, and would be inconsistent with it, for trial judges, in dealing with stay applications, to embark upon a detailed exercise of assessing the relative degrees of competence and experience of lawyers potentially available to act for an accused person. Of course, lawyers vary in ability; accused persons obtain better representation from some lawyers than from others, just as trial judges obtain better assistance from some lawyers than from others. But the principle in Dietrich turns upon whether legal representation is unavailable to an indigent accused. It would be a serious criticism of a qualified lawyer, regularly

practising in the criminal area, to say that representation by such a person was the equivalent of being relevantly unrepresented.[20]

26 With respect, we entirely agree. It is not for the court to undertake a detailed analysis of the competence of counsel and solicitors offered by legal aid compared to the competence of counsel and solicitors of the accused's choice.[21] Allowing that levels of competence may vary, by and large it must be assumed that counsel and solicitors who are qualified by training and experience are up to the standard required. Of course, there may be exceptions where it is manifest that the apparent level of competence of the assistance offered is entirely inadequate relative to the task at hand.[22] As the court said in Milat:[23]

... questions of competence are [not] entirely irrelevant to the application of the Dietrich principle. They are, however, to be put in their proper perspective. It may well be that, in a given case, if the only representation available to an accused is manifestly inadequate to the task, it would be appropriate to regard the accused as being, for practical purposes, unrepresented. That, however, is not the present case.

As a general rule, when deciding whether a trial would be fair, one counsel or solicitor must be taken to be about as good as another.

27 Very little of that, however, has anything to do with this case. The respondent here did not make demands of the kind made by Mr Milat. The judge was not asked to determine, and did not undertake a determination of whether, the solicitor offered to the respondent was of a sufficient level of competence. Evidently, his Honour assumed that he was. The only question for the judge, and the only question which his Honour purported to decide, was whether, because the respondent would not have a solicitor present at court for more than two half days of trial, the trial would be unfair. Ultimately, the reasoning in Milat is not in the least determinative of that.

28 Finally, counsel for the Director submitted that, in the context of a two to three week trial, of what he was disposed to characterise as unremarkable complexity albeit for very serious offences, the provision of experienced criminal trial counsel without the assistance of an instructing solicitor for each day of the trial could not properly be regarded as leaving the respondent unrepresented; and, further or alternatively, could not properly be regarded as productive of such an unacceptable risk of improper conviction as to mean that the trial would likely be unfair.

29 The first of those submissions repeats the error already identified of taking out of context the New South Wales Court of Criminal Appeal's obiter dictum in Milat as to when, although an accused is apparently represented by both counsel and instructing solicitor, the level of competence of one or other of them is so manifestly inadequate as to mean that the accused should be regarded as effectively unrepresented. As has been explained, that dictum was not directed to a situation like the present where an accused is not provided with a solicitor for anything more than a minuscule fraction of the trial.

30 The second submission overlooks that this is an application for leave to bring an interlocutory appeal out of time against what is in effect a discretionary judgment and thus is bound to fail unless it be shown that the judge proceeded upon wrong principle or took into account irrelevant matters or failed to take into account a relevant consideration or otherwise that his decision is so plainly unjust that it may be inferred that he in some way or other failed properly to exercise the discretion reposed in him.[24]

31 For the reasons already stated, we do not consider that the judge proceeded upon wrong principle. To the contrary, his Honour's perception of relevant law appears to us to be right. Nor do we consider that the judge took into account irrelevant considerations or failed to have regard to any relevant considerations in the course of his reasoning process. To the contrary, his Honour's survey of the facts and relevant considerations, and in particular his Honour's analysis of the critical importance of the role of instructing solicitor in the course of a criminal trial for a serious indictable offence, present to us as compelling. His Honour was bound to make a judgment of fact and degree. His conclusion was plainly open to him.[25] Indeed, so far from his conclusion being so plainly unjust as to imply that his Honour must have failed properly to exercise his discretion, we find it difficult to imagine on the particular facts of this case that his Honour could properly have come to any other conclusion.

32 Counsel for the Director submitted that it was plain that the judge had erred in principle by failing to have regard to whether the problems likely to be caused by the absence of an instructing solicitor could be sufficiently overcome, without a stay of the trial, by trial management techniques such as sitting shorter hours, granting frequent breaks and allowing days out for counsel to attend to reading and preparation.

33 We do not accept that submission either. Given that the Crown did not advance any such argument when the judge had the matter under consideration, there was no obligation on his Honour to refer to the idea in his reasons, still less to explain why he rejected it. More importantly, however, we see no reason to suppose, and none has been identified, why a most experienced criminal trial judge, which his Honour certainly is, would fail to have regard to whether the need for a stay could be avoided by the invocation of trial management techniques of the kind submitted. Nor do we find it surprising that a judge so qualified by trial experience should conclude in the circumstances of this case that arrangements of the kind posited would be inadequate.

34 As was earlier mentioned, the Attorney-General appears before us as of right, pursuant to s 34 of the Charter, and the Victorian Equal Opportunity and Human Rights Commission has intervened, as of right, pursuant to s 40 of the Charter. As they announced yesterday, they came here to argue issues concerning the application of the Charter which were presaged in a notice given by the respondent in advance of the hearing pursuant to s 35 of the Charter. VLA, which also appears, announced that it would seek to be heard as amicus curiae on Charter issues should those issues arise. Lined up against those forces, as it were, the Victorian Bar and the Law Institute announced that they would seek to be heard as amici curiae, in effect to make submissions as to the necessity of having an instructing solicitor in court during trial and, in the case of the Law Institute, also as to the ramifications of the Charter.

35 As Redlich and Weinberg JJA made clear in Wells v R (No 2),[26] ordinarily this court should not be expected to entertain Charter points on an interlocutory criminal appeal. As it turns out, this case is no exception. For the reasons already stated, the matter is capable of being decided in favour of the respondent without resort to the Charter; and, even assuming, without deciding, that the Charter could make any difference, it is agreed on all hands that it would be in no way be inimical to the respondent's position.

36 That leaves the applications of the Victorian Bar and the Victorian Law Institute to be heard as amicus curiae on non-Charter issues.

37 The principles to be applied in determining whether to grant a non-party leave to intervene or to be heard as amicus curiae were recently restated by the High Court in Roadshow Films Pty Ltd v iiNet Ltd:[27]

In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria,[28] are relevant. A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation.

Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose.

The grant of leave for a person to be heard as an amicus curiae is not dependent upon the same conditions in relation to legal interest as the grant of leave to intervene. The Court will need to be satisfied, however, that it will be significantly assisted by the submissions of the amicus and that any costs to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the expected assistance.

None of the applicants for leave to intervene demonstrates that any identified legal interest of that applicant will be directly affected by the outcome of this case. It follows that none of those applicants shows that it has a right to intervene in these proceedings.

In considering whether any applicant should have leave to intervene in order to make submissions or to make submissions as amicus curiae, it is necessary to consider not only whether some legal interests of the applicant may be indirectly affected but also, and in this case critically, whether the applicant will make submissions which the Court should have to assist it to reach a correct determination. Ordinarily then, in cases like the present where the parties are large organisations represented by experienced lawyers, applications for leave to intervene or to make submissions as amicus curiae should seldom be necessary or appropriate and if such applications are made it would ordinarily be expected that the applicant will identify with some particularity what it is that the applicant seeks to add to the arguments that the parties will advance.

38 In this case, because of the views to which we have come concerning the propriety of the judge's decision, we are not satisfied that we would be significantly assisted by the submissions of the Bar or of the Institute, or that any costs to the parties or delay consequent on agreeing to hear them would not be disproportionate to the expected assistance. Accordingly, we decline their applications for leave to appear.

39 It should not be thought, however, that we are unappreciative of the work so obviously devoted by all parties to their written submissions or that we have failed to derive considerable benefit from them in coming to our conclusion.

40 In the result, we refuse the application for leave to appeal out of time.

[1] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 310-311 (Mason CJ and McHugh J), 330-331 (Deane J).

[2] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 100-102; Dietrich v The Queen, ibid, 329; New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309, 328.

[3] (1995) 37 NSWLR 370.

[4] [1992] HCA 57; (1992) 177 CLR 292.

[5] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 151-2 [135].

[6] (1985) 59 ALJR 481, 483; (1985) 60 ALR 68, 71; Bond v The Queen (2000) 201 CLR 213, [30].

[7] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. [1981] HCA 39; (1981) 148 CLR 170, 178.

[8] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 331 (Deane J); R v Fuller & Cummings [1997] SASC 6297; (1997) 95 A Crim R 554, 562 (Olsson J) and 564 (Perry J).

[10] [1980] HCA 48; (1980) 147 CLR 75.

[11] Ibid 96. See also Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, 243.

[12] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 297-98.

[14] Ibid 311 (Mason CJ and McHugh J), 331 (Deane J) and 357 (Toohey J).

[15] Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370.

[17] R v Chaouk [2013] VSC 48, [47].

[18] Attorney-General for NSW v Milat (1995) 37 NSWLR 370.

[19] (1995) 37 NSWLR 370, 374.

[21] Victoria Legal Aid v Beljajev [1999] 3 VR 764, 777 [37]-[38].

[22] See for example R v Souter (1997) 93 A Crim R 400, 405-6 (Olsson J).

[24] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

[25] See and compare MK v Victoria Legal Aid [2013] VSC 49, [45]-[60].

[26] [2010] VSCA 294, [39] (Redlich JA), [48] (Weinberg JA).

[27] [2011] HCA 54; (2011) 284 ALR 222, 223-4 [2]-[6]; [2011] HCA 54, [2]-[6].

[28] (1997) 189 CLR 579, 600-5.