Supreme Court of SA|1994-04-20|Before: Mr J, Matheson J

THE STATE OF SOUTH AUSTRALIA v HIS HONOUR JUDGE RUSSELL AND ANTHONY DAVID CRAIG No. SCGRG 93/1778 Judgment No. 4491 Number of pages - 19 Criminal law and procedure - jurisdiction, practice and procedure - stay of proceedings (1994) 71 A Crim R 497 (1994) 62 SASR 288 [1994] SASC 4491 (20 April 1994)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON(1), PRIOR(2) AND OLSSON(3) JJ

CWDS Criminal law and procedure - jurisdiction, practice and procedure - stay of proceedings - Criminal trial in District Court - stay of proceedings granted by trial judge on Dietrich application - application for judicial review seeking order in the nature of certiorari to quash the stay of proceedings - whether, on the evidence, accused could be said to have been unable to obtain legal representation through no fault of his own - trial judge correctly applied test in Dietrich - factual findings of trial judge justified by evidence

Solicitors for plaintiff: Crown Solicitor (SA)

Solicitors for defendant Craig: Harrap and Associates

JUDGE1 MATHESON J The second defendant, Anthony David Craig, (I shall refer to him as "the prisoner" because the first defendant so referred to him in his judgment), is charged on the information of the Director of Public Prosecutions with the following offences: "First Count Statement of Offence Larceny. (Section 131 of the Criminal Law Consolidation Act, 1935.) Particulars of Offence Anthony David Craig on about the 28th December, 1991 at Morphett Vale, stole a motor car of the value of about $8,000, the property of David Shane Lord.

Second Count Statement of Offence Receiving. (Section 196

of the Criminal Law Consolidation Act, 1935.) Particulars of Offence Anthony David Craig on about the 28th December, 1991 at Morphett Vale, received the property mentioned in the first count, knowing it to have been stolen.

Third Count Statement of Offence Arson. (Section 85(1) of the Criminal Law Consolidation Act, 1935.) Particulars of Offence Anthony David Craig on about the 30th December, 1991 at Morphett Vale, unlawfully damaged by fire the property of David Shane Lord, such damage amounting to $8,000."

He must have been arrested on or about 14 April, 1992, because he entered into a bail agreement on that day, one term of which was that he would not leave the State of South Australia without permission. A man called John Argent "went guarantor".

The information was called on for hearing before the first defendant, his Honour Judge Russell, on 22 June,
The prisoner was unrepresented and Ms P Kelly appeared for the Crown. The prisoner pleaded not guilty to all three charges. He then applied for the proceedings on the information to be stayed until such time as he could be provided with representation by counsel at public expense. He told his Honour that the application was based upon the decision of the High Court of Australia in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292. The prisoner called Miss Lehmann, an officer of the Legal Services Commission ("the Commission") to give evidence. Miss Lehmann said that the Commission received an application for legal aid from the prisoner on 4 May, 1992. On 7 May, the Commission wrote to the prisoner's then solicitors seeking information as to whether he was still employed, and whether he was receiving a so- called DEET allowance. It also sought information about some money that had been deposited into his bank account. The Commission did not receive a reply by 2 June, and legal aid was refused. On 19 June, the Commission received a letter from the prisoner's solicitor dated 18 June which set out further information about his means. On the basis of that letter, the Commission considered that he was eligible for legal aid, and he and his solicitor were so advised by letter dated 25 June. He was represented by a solicitor, Mr. T. Kavanagh, upon the committal hearing in the Christies Beach Magistrates Court on 22 July, 1992, upon which date he was committed for trial, and the bail previously granted, as I understand it, continued.

Miss Lehmann said that once the Commission has completed means testing it looks into the question of merit on applications for legal assistance in criminal matters, and legal aid is granted either for the trial or just for a guilty plea.

The prisoner also gave evidence, and some of it is referred to in the learned Judge's reasons for judgment.

Rather than summarise the reasons, which are not lengthy, I propose to set them out in full (including the order that was made). His Honour said: "The prisoner's application proceeds, as I understand it, upon several grounds:
1. He lacks the necessary resources to fund legal representation.
2. He has no knowledge of legal matters, nor any sufficient concept of the legal concepts which underlie the charges that he has to meet, and nor of the procedure by which matters of this kind are prosecuted before a judge and jury.
3. He suffers personally from an impediment of speech which makes it difficult for him to express himself as fluently as others.
4. He has been unable to get in touch with a solicitor since his incarceration at Yatala Labour Prison, and that means of communication from prison have prevented him from obtaining any documentary proof of his true financial position.
5. Such possessions as he did have before his arrest have now been removed from his former home, and he has been unable to recover a car worth about $3,000 from a person with whom he left it in Sydney before he was extradited from New South Wales.

As to the first of these, it is appropriate for me to say at the outset that Miss Lehmann gave particulars of certain financial details provided by the prisoner to the Legal Services Commission through his then solicitor, upon which the Commission assessed the prisoner to be eligible to receive legal aid, in that his means, or lack of them to be more accurate, satisfied the financial tests imposed upon applicants for aid. However, the Commission refused legal aid on other grounds which were not divulged and are not relevant. However that may be, certain fresh factors were revealed when the prisoner was cross-examined by Ms Kelly, who appeared as counsel for the Director of Public Prosecutions. In particular, it was revealed that a solicitor who was acting for the accused in August 1992 in

the matter of certain proceedings in the Family Court concerning the breakdown in his marriage managed to secure an early payment of what the prisoner described as an inheritance from an aunt in the amount of $20,000. However, the prisoner says that $3,000 to $4,000 of the inheritance, as I shall call it, went to the solicitor for his services, $4,000 or thereabouts went on the car that has disappeared in Sydney, and the rest has been paid out in order to satisfy pressing creditors. Indeed, on the face of the evidence, the prisoner appears to be hopelessly in debt, having, in addition to a number of accumulated personal debts, lost some $30,000 to $40,000 when his small business, a music shop, failed about two years ago. Seemingly, he owes that money to the bank that financed the business. He did tell me, however, that no proceedings had been taken out to have him declared bankrupt. His only income last year was derived from a music teaching business, which declined during last year and eventually failed, and an allowance made to him, I assume by the Commonwealth, to enable him to attend Flinders University, where he was taking a course in

music. That allowance, I should add, would not even meet the cost of the rent on his house. In my opinion, the prisoner has made out the first ground upon which his application is made, and that is that he lacks the necessary resources to fund legal representation for a trial which has been estimated to take three days, in that I am satisfied, on the balance of probability, which I conceive to be the appropriate standard of proof, that he does lack those resources, and so is an indigent accused. It is also equally clear on the evidence that he has been refused legal aid. Moreover, I accept that he lacks any, or any sufficient, knowledge of law or procedures such as would enable him to conduct his own case. In addition to that, his impediment of speech would be likely to make that all the more difficult. I also accept that the prisoner has sufficiently made out what I have called grounds four and five, although I do not know that they really bear upon the matter, and Ms Kelly did not appear to pursue them. Ms Kelly did, however, submit that the prisoner had not demonstrated that he had been unable to obtain legal representation through no fault of his own. There was no evidence before me to suggest that the prisoner was at fault when his music shop business failed. Indeed, I would have thought that, nowadays, it is not an uncommon event for small businesses to fail in the present economic circumstances. Nor was there evidence that he was responsible for the failure of his music teaching business. On the contrary, the prisoner said that the latter failed because of something that appeared in the Messenger Press. Nor was there any evidence that the money he expended on legal costs incurred by him as result of the proceedings in the family court arose as a result of his own fault, and the accused's explanations, whilst somewhat vague, as to how the rest of his cash had been expended, namely the cash received from the inheritance, on other outstanding debts, do not, in my view, demonstrate any fault on the part of the prisoner. They were such items as electricity, telephone, rent and a variety of arrears that he had accumulated up to that point in time, let alone the still outstanding debt resulting from the failure of his business. In all the circumstances, I must say that I cannot find any exceptional circumstances which would prevent me from making the orders that I propose. Whilst I do not propose at this stage to take the drastic step of staying the proceedings, I am satisfied, on the balance of probability, that the prisoner could not

receive a fair trial unless he is properly represented by counsel, and furthermore, that he has no means, or no sufficient means, to fund the cost of such representation. The orders that I make then in the circumstances are: 1. That the trial date be, and is hereby, vacated. 2. That a fresh status conference be appointed for 9.40 am on Tuesday, 13 July 1993. 3. That the Registrar inform the Attorney-General of the orders now made and the reasons given by me for making those orders. 4. That in the event that no provision is made for the proper representation of the prisoner by counsel at his trial within a reasonable time, the prisoner be, and is hereby, at liberty to apply, either to me or to any other judge of the court, for such other order, or other orders, as may be proper in the circumstances. 5. That subject to the orders that I have now made, you, Anthony David Craig, will be further remanded in custody for trial."

The matter was called on again before the learned Judge on 28 July, 1993. Counsel appearing for the Crown said: "The reason the matter has been listed at the Crown's request is that I am instructed by the Attorney-General to advise your Honour that he does not intend to make any particular provisions for Craig's representation ... so the position is ... that no legal representation is available through the Legal Services Commission ... In those

circumstances the Crown's request is that your Honour re-list the matter for trial. We say of course that in our submission the accused is not without legal representations through no fault of his own."

His Honour then said that for the reasons that he had already published there would be an order staying the proceedings until further order.

The plaintiff has issued a summons at the request of the Director of Public Prosecutions seeking the following orders by way of judicial review pursuant to Rule 98.01 of the Supreme Court Rules 1987: "1. An order in the nature of certiorari quashing the order made by His Honour Judge Russell on 28 July, 1993 staying the information of the Director of Public Prosecutions ... 2. An order in the nature of mandamus directed to the first defendant requiring the first defendant to try the matter according to law. 3. Such further orders as this Honourable Court deems appropriate."

There are some relevant facts that are not referred to in his Honour's reasons. He referred to the prisoner's receipt of $20,000 in August, 1992, but not to the strong inference that the prisoner did not advise the Commission of that fact. Further, his Honour did not refer to the prisoner's admission that he broke bail in or about February, 1993, and travelled to New South Wales, or to his admission that he wrote the following letter to his bail guarantor, John Argent, on 3 March, 1993: "3 March 1993 Dear John, I'm writing to let you know that I am okay and have decided to get away from all the shit in Adelaide - you know all the hassles with breakins, the police and harassment etc. I rang Lance from across the border in Victoria Monday week ago to ask him to let you know that I was no longer in South Australia so that you could go in to Christies Beach Police station and withdraw the surety on the bail before it came to court. As long as you just say that you want to withdraw the surety and say nothing about knowing I am no longer there you will be okay. I checked before I went. They will just withdraw the surety and then come looking for me. However it appears that Lance

has possibly been causing a lot of shit about me down there since I have been gone and I am now not sure that he has passed the message on. He was really vague as to your reply. I have been hearing on the grape vine that someone and we think it is Lance because we have proof he has done some of it has been spreading rumours that I am a child molester, was involved in an incident at a local beat with a young boy, and that my father found all these photographs of young boys in compromising positions in my house. As you know this is all a pile of bullshit and I have contacted my father who is also aware that his name has been mentioned. Lance has also been raving on that I am selling my lounge suite for $300 and my car for $500- once again all a load of bullshit. I am staying with friends for a while before deciding where exactly to settle down. Charlie is supposed to be joining me soon but a few complications have arisen and his arrival may be delayed a week or so. When I find out just exactly who and how many are responsible for all the bullshit that is going on down there and up here I will be getting Jim to issue writs for defamation of character and then we'll see who has the last laugh. I currently have three witnesses who have received first hand phone calls

from Lance. I am trusting you to keep this information to yourself and not mention anything to Lance or Mark or anyone else. If I find out that you have I will never contact you again and I don't really want that to happen. I am really pleased that I made the break and I am looking forward to a new life in a new town. If everything goes okay I will let you know in a week or so where I am, or at least a contact point for me. Yours sincerely, (Signed) Anthony."

The above information of the Director of Public Prosecution was set for trial in the District Court of South Australia for 9 March, 1993. The prisoner failed to answer his bail on that date, and a bench warrant was issued for his arrest. He was extradited from Sydney and brought before the District Court on 23 March. His Honour did not refer to these facts. The matter was then listed for trial on 22 June, and came on before the first defendant. The prisoner said in evidence that he had legal representation at "a couple of the hearings after" the committal, but the evidence does not reveal when legal assistance was terminated, but obviously it had been terminated by 22 June.

His Honour also did not refer to the facts that in consequence of the prisoner breaking bail some of his household goods in South Australia were stolen in his absence, and as a result of his subsequent extradition to South Australia, he lost possession of his Volvo car which was left behind in New South Wales.

The Solicitor-General took us through the judgments of the majority in Dietrich v The Queen (supra). The underlining in the following quotations therefrom is mine. At pp.311-312, in their joint judgment, Mason CJ and McHugh J said: "For the foregoing reasons, it should be accepted that Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair

trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused. A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained."

At p.335-336, Deane J said: "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' (Barton v The Queen (1980), 147 CLR, at p.101, per Gibbs ACJ and Mason J). 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 that is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available (See, e.g. Reg. v Greer (1992), 62 ACrimR 442, at pp.12-15, per Kirby P.). Another category of case in which that is so is where the accused has the financial means to engage legal representation but decides not to incur the expense. It is true that, in the context of the current level of legal fees, it is arguable that no accused should be required to devote a substantial part of his possessions to obtaining legal representation in resisting a prosecution for an alleged offence of which the law presumes him to be innocent. Nonetheless, it appears to me that it cannot be said that a trial is unfair by reason of lack of legal representation in a case where the accused possesses the means to obtain such representation but elects not to utilize them. Finally, it is arguable that there are categories of criminal proceedings where inability to obtain legal representation would not have the effect that the trial of an accused person was an unfair one. For example, there is much to be said for the view that proceedings before a magistrate or judge, without a jury, for a non-serious offence (e.g. where there is no real threat of deprivation of personal liberty: see Argersinger v Hamlin (1972), 407 U.S., at pp.37-38,40.) would not be rendered inherently unfair by reason of inability to obtain full legal representation. It is, however, unnecessary to pursue that question for the purposes of the present case where the trial was a jury trial of alleged offences which were, by any standards, serious. It appears to me to be manifest that, in the absence of exceptional circumstances, the inability of an indigent accused to obtain legal representation from any source will have the consequence that such a trial is unfair."

At pp.356-357, Toohey J said: "If it is likely that an accused will suffer prejudice in conducting a defence by reason of lack of counsel (and that will almost inevitably be so where the charge is of a serious offence), the trial judge may adjourn the trial. It is not possible to say that the trial judge must adjourn the trial for there are other considerations to be taken into account. Counsel for the applicant is not right in suggesting that only the interests of the accused are relevant. The situation of witnesses, particularly the victim, may need to be considered as well as the consequences of an adjournment for the presentation of the prosecution case and for the court's programme generally (Beadle (1979), 21 SASR, at p.71). But ordinarily the requirement of a fair trial will be the prevailing consideration. Therefore, in the absence of compelling circumstances, a trial should be adjourned where an indigent accused charged with a serious offence lacks legal representation, not due to any conduct on the accused's part."

At p.365, Gaudron J, in a judgment which went further than her fellow judges, said: "A trial is not necessarily unfair because it is less than perfect (Jago v District Court (NSW) (1989), 168 CLR, at p.49, per Brennan J), but it is unfair if it involves a risk of the accused being improperly convicted (See fn.(37)). If the only trial that can be had is one that involves a risk of that kind, there can be no trial at all (Jago v District Court (NSW) (1989), 168 CLR at pp.30, 31, 34 per Mason CJ; pp.56-58, per Deane J; pp. 71-72, per Toohey J; p.75, per Gaudron J; Reg. v Glennon (1992), 173 CLR, at p.623, per Deane, Gaudron, McHugh JJ). If an accused person declines to be legally represented, then he may be taken to accept that, in the circumstances, fairness does not depend on legal representation. But that situation aside, if fairness requires legal representation there can be no trial without it. If fairness requires representation in a particular case, in a particular class of case, or, even, in all cases, that will have consequences - probably in relation to the administration of legal aid schemes. There may also be consequences for governments in relation to the funding of those schemes. But whatever the consequences and whatever the cost, it is for the courts to decide what is or is not fair in a criminal trial. And it is the duty of the courts to ensure that only fair trials are had, either by tempering the rules and practices to accommodate the case concerned or, if that not be adequate, by staying the prosecution."

At p.374, her Honour said: "The difference in approach in the majority judgments in McInnis and the other factors to which I have referred combine, in my view, to require that, to the extent that it is authority for the proposition that legal representation is not essential for the fair trial of a serious offence, McInnis should no longer be followed. Instead, legal representation should be seen as essential for the fair

trial of serious offences unless the accused chooses to represent himself."

I do not propose to dwell on the dissenting judgments of Brennan and Dawson J. Suffice it to quote the following passage from the judgment of Dawson J at pp.349-350: "There is, in any event, some difficulty about speaking of legal representation for an accused in the interests of justice. If, as is the situation, legal representation is an advantage to an accused in practically every case, then it is in the interests of justice that representation be available in practically every case, if necessary at public expense. Not only that, but it is in the interests of justice that the representation be of the highest calibre. If the interests of justice are to be pursued without regard to other considerations, then clearly they require not only a fair trial but the fairest possible trial. But the interests of justice cannot be pursued in isolation. There are competing demands upon the public purse which must be reconciled and the funds available for the provision of legal aid are necessarily limited. The determination of

what funds are to be made available is not a function which the courts can or should perform (See Jago v District Court

(NSW) (1989), 168 CLR, at p.39; Reg. v Robinson (1989), 73 CR (3d), at p.119; 51 CCC (3d), at p.487; cf McInnis v The Queen (1979), 143 CLR, at p.592.). Nor are the courts equipped to determine how the available funds are to be distributed - for example, whether it is preferable to spread them amongst the largest number of cases possible or to devote them to a smaller number of complex and more costly cases. The function of the courts is to ensure that an accused person receives the fairest possible trial in all the circumstances and those circumstances may include the lack of representation of the accused in some cases. To be sure, the law lays down the requirements for a fair trial and departure from those requirements will result in a miscarriage of justice. But those requirements presently do not, and cannot in a practical world, include the availability of representation for an accused at public expense. That must be something towards which we should aim, at least in cases of a serious nature, but the responsibility for providing the means of realizing that aim lies not with the courts, but elsewhere."

As to the question whether the plaintiff has demonstrated that his Honour's decision reveals the necessary jurisdictional error for the relief that he seeks, I refer to a passage in the oft-quoted speech of Lord Reid in Anisminic v Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147 at p.171, where his Lordship said: "It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make.

It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly." (See also the publication of the Law Book Company Limited, "The Laws of Australia", especially paras.99 and 104.)

Reverting to Dietrich's case, I have not yet quoted an important passage in the judgment of Mason CJ and McHugh J. At p.315, their Honours said: "In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, 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. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial."

Parenthetically, I observe that where there is no legal representation in such a case, the assistance of the accused by the trial judge (see Archbold 42nd Edn. pp.470-471, MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 especially at pp.534-535, The Queen v Corak (1982) 30 SASR 404 at p.411 and R v Zorad (1990) 19 NSWLR 91) may still result in a fair trial. Be such considerations as they may, I have reached the conclusion here that his Honour misconstrued their Honours' reference to an accused being unable to obtain legal representation "through no fault of his own".

The facts that in the case at bar the prisoner's music shop and music teaching businesses failed and that he incurred legal and living expenses through no fault of his own were scarcely to the point. What was to the point was that after having been granted legal assistance, and having had that legal assistance for the committal hearing, the prisoner received an inheritance of $20,000, that he did not advise the Commission thereof, that he broke bail as a result of which at least assets in the form of household goods in South Australia were taken, and as a result of the subsequent extradition he has apparently lost his Volvo car in New South Wales. It must be remembered that whilst the charges were certainly serious enough to make legal representation most desirable, the court was told that the hearing would only last three days and I can not imagine that it required senior counsel. In other words, legal costs would not have been great. If all the facts had been properly investigated and the decision of the majority in Dietrich properly understood, his Honour's decision may well have been different. I think that notwithstanding that this Court has said that "in principle the administration of the criminal law should be kept to the criminal courts" (see Goldsmith v Newman (1992) 59 SASR 404 at p.412), this Court should intervene here to correct what I consider has amounted to jurisdictional error. I would make the order sought in paragraph one and hear the parties as to what, if any, further order should be made.

JUDGE2 PRIOR J I am in substantial agreement with the reasons published by Justice Matheson.

I would, in the exercise of this Court's discretion, make an order in the nature of certiorari quashing the order made by Judge Russell on 28 July 1993. I think it is appropriate to do so to correct an error of law, notwithstanding the general principle that the administration of the criminal law should be left to the criminal courts: Clayton v Ralphs and Manos (1987) 45 SASR 347 at 361 and 365. There is no other way to correct a decision the effect of which is to wrongly prevent the due process of the law. The error, if not corrected, could have general consequences for the administration of justice in the criminal courts of this State: King CJ in Carter v Hayes and State of South Australia, Full Court, 30 March 1994, Judg.No. S4477. The finding that the accused was an indigent person unable to obtain legal representation through no fault of his own was erroneous. His Honour's reasons reflected an imperfect understanding of the decision of the High Court in Dietrich v The Queen (1992) 172 CLR 292. The errors were of a fundamental kind sufficient to warrant intervention by this Court now: Goldsmith v Newman and State of South Australia (1992) 59 SASR 404 at 411.

JUDGE3 OLSSON J This is an application, by the Director of Public Prosecutions, for judicial review, which was, by order, reserved for the consideration of the Full Court. It seeks an order in the nature of certiorari, quashing an order made by Russell DCJ on 28 July 1993, following an earlier hearing on oral evidence before him on 22 June 1993, when he stayed an information of the Director charging the respondent Craig ("Craig") with one count of larceny, one count of receiving and one count of arson, until further order.

The order now sought to be impugned was made by the learned Judge on a so-called "Dietrich" application. Having heard evidence from both Craig and an officer of the Legal Services Commission, Russell DCJ held that the test enunciated by the High Court in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 had been satisfied.

In the course of his reasons for decision Russell DCJ, with respect, correctly directed himself as to the ratio decidendi of the decision in Dietrich. He pointed out that, in order to justify a stay of a criminal prosecution, it must be established that an indigent accused has been charged with a serious offence and, through no fault on the part of that person, is unable to obtain legal representation. He accepted that, once such a scenario has been established, then, in absence of exceptional circumstances, the trial should be adjourned, postponed or stayed until legal representation is available. (See the joint judgment of Mason CJ and McHugh J at p311.)

As was pointed out in his reasons, the learned Judge readily concluded that Craig was indigent and lacked the resources necessary to fund legal representation. He noted that legal assistance had been declined by the Legal Services Commission, although there was no evidence led of the basis of that refusal. He further concluded, on the material before him, that, not only did Craig have no knowledge of legal matters or procedures, but he suffered from a speech impediment which made it difficult to express himself fluently. He also unhesitatingly accepted that the charges faced by Craig related to allegations of the commission by him of what were serious offences.

Russell DCJ acknowledged that the fact that Craig was in custody also rendered it difficult for him to provide strict proof of what had happened to certain moneys to which he had become entitled, through his then solicitor, in August 1992, the charges with which he is presently faced having been initiated in April of that year.

As to this Russell DCJ made the following express findings:- "... it was revealed that a solicitor who was acting for the accused in August 1992 in the matter of certain proceedings in the Family Court concerning the breakdown in his marriage managed to secure an early payment of what the prisoner described as an inheritance from an aunt in the amount of $20,000. However, the prisoner says that $3,000 to $4,000 of the inheritance, as I shall call it, went to the solicitor for his services, $4,000 or thereabouts went on the car that has disappeared in Sydney, and the rest has been paid out in order to satisfy pressing creditors.

Indeed, on the face of the evidence, the prisoner appears to be hopelessly in debt, having, in addition to a number of

accumulated personal debts, lost some $30,000 to $40,000 when his small business, a music shop, failed about two years ago. Seemingly, he owes that money to the bank that financed the business. He did tell me, however, that no proceedings had been taken out to have him declared bankrupt. His only income last year was derived from a music teaching business, which declined during last year and eventually failed, and an allowance made to him, I assume by the Commonwealth, to enable him to attend Flinders University, where he was taking a course in music. That allowance, I should add, would not even meet the cost of the rent on his house."

He later went on to say:- "Ms Kelly did, however, submit that the prisoner had not demonstrated that he had been unable to obtain legal representation through no fault of his own. There was no evidence before me to suggest that the prisoner was at fault when his music shop business failed. Indeed, I would have thought that, nowadays, it is not an uncommon event for small businesses to fail in the present economic circumstances. Nor was there evidence that he was responsible for the failure of his music teaching business. On the contrary, the prisoner said that the latter failed

because of something that appeared in the Messenger Press. Nor was there any evidence that the money he expended on legal costs incurred by him as a result of the proceedings in the family court arose as a result of his own fault, and the accused's explanations, whilst somewhat vague, as to how the rest of his cash had been expended, namely the cash received from the inheritance, on other outstanding debts, do not, in my view, demonstrate any fault on the part of the prisoner. They were such items as electricity, telephone, rent and a variety of arrears that he had accumulated up to that point in time, let alone the still outstanding debt

resulting from the failure of his business. In all the circumstances, I must say that I cannot find any exceptional circumstances which would prevent me from making the orders that I propose."

In addressing the present application it is important to note that it was expressly prosecuted on only two grounds, namely:- "4.1 The First Defendant erred in the exercise of his

jurisdiction and as a consequence wrongly declined to exercise his jurisdiction to hear the information filed under the District Court Act in that on the facts before him it was not open to him to conclude that the accused was indigent through no fault of his own. The facts were: (a) In August, 1992 the accused received a $20,000 inheritance and did not inform the Legal Services Commission of that fact even though he had applied for, and in 1992 had obtained, legal aid for these charges. (b) The accused spent $4,000 on a Volvo motor car. (c) The accused spent $3,000 - $4,000 on legal fees associated with a Family Court matter. (d) It is unclear how the accused spent the remaining $12,000. He appears to have put some of the money toward living expenses such as Telecom. What he did with the whole of the $12,000 is not explained in his evidence. (e) The accused travelled to Sydney on about the 3rd day of March, 1993 in breach of his bail agreement. He incurred

further financial losses when his home was burgled during the time he was in Sydney and items of property were removed from his home. His Volvo motor car was left in Sydney after he was extradited back to face these charges.

4.2 On those facts the only finding properly open was: (a) Between August 1992 and March 1993 the accused was in possession of sufficient funds to enable him to meet the anticipated costs of legal representation in relation to these charges; (b) If, at the time of the application to the First Defendant the accused claimed he was indigent and unable to obtain legal representation, it could not be said that he was unable to obtain legal representation through no fault on his part. (c) In any event the issues to be raised at trial were not so complex that the accused could not adequately represent himself."

It is pleaded that, on those bases, the learned Judge erred in law in staying the information and wrongly declined to exercise his jurisdiction.

As I understand his submissions the Solicitor General, who appeared on behalf of the Director, sought to found the application for judicial review on two separate bases.

First, he argued that Russell DCJ fell into jurisdictional error, in that he applied the wrong test as to what constituted "fault" in relation to that aspect of the Dietrich formulation which focuses on inability to obtain legal representation through no fault of the accused. The Solicitor General contended that the learned Judge applied what was tantamount to a moral test, whereas the word "fault" had been employed by the majority of the High Court in Dietrich in the sense of "due to circumstances beyond the control" of the accused person. It was on that basis, he declaimed, Russell DCJ had manifestly fallen into jurisdictional error.

What is required to make good an assertion of jurisdictional error has variously been described in the authorities. (See, for example, Greiner v Independent Commission against Corruption (1992) 28 NSWLR 125 at 147-8, Glenvill Homes Pty Ltd v Builders Licensing Board (1981) 2 NSWLR 608 at 616, R v Bjelke-Peterson; ex parte Plunkett (1978) QdR 305 at 311 and Dickinson v Perrignon (1973) 1 NSWLR 72 at 85, to cite but a few.) However, I agree with the learned author of "The Laws of Australia" Vol 2 at 88 (paragraph 101) that the question is whether the error of law was a fundamental one that went to the root of the jurisdiction conferred on the decision-maker. By way of contrast the test is not satisfied by the mere demonstration of some error of law which is essentially a collateral defect. (See R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 243, Ex parte Hebburn Ltd; Re Kearsley Shire Council [1947] NSWStRp 24; (1947) 47 SR(NSW) 416 at 420.)

Even if the Solicitor-General is correct in his interpretation of the expression used by the majority of members of the High Court, I am by no means fully convinced that the error made satisfies the stringent test referred to in the authorities ie that it did amount to a fundamental error of law which went to the root of the jurisdiction.

However, on a fair reading of the judgments of the majority in Dietrich, I am certainly not satisfied that the absolute construction contended for by the Solicitor General is correct. Whilst a divination of the correct approach is not rendered simple by the varying expressions employed in the separate judgments written, I am of opinion that the majority were concerning themselves neither with moral assessments, as such, on the one hand, nor the absolute and unqualified requirement of circumstances beyond the control of the accused, on the other. In my opinion 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.

Such a situation is, perhaps, most clearly to be discerned in the judgment of Gaudron J at p365 of the report, but is also inherent in the reasoning of the other majority judges. The concept of fairness espoused by all of their Honours necessarily involves a consideration of reasonableness of conduct on the part of any person who asserts unfairness.

Any objective appraisal of the reasons for decision expressed by Russell DCJ amply indicates that that is precisely the approach which he adopted. He was not concerning himself with moral issues, but the reasonableness of the conduct of the accused, given the situation in which he found himself.

The conclusion ultimately to be reached on the evidence may be one on which various minds might reasonably differ, but I consider that it cannot properly be asserted that Russell DCJ fell into jurisdictional error of the type necessary to found certiorari. He correctly directed himself and, in light of his assessment of the witnesses (specifically Craig) arrived at those findings of fact which, on his view, fairly arose from the evidence.

As to this prong of his argument the Solicitor General further criticised the learned Judge for not specifically adverting to the need to balance the interest of the community against that of the accused. This suggestion may simply be dismissed on the footing that it was not incumbent upon him to do so. That balancing factor is inherent in the very test postulated by the majority of the members of the High Court in Dietrich. The test enunciated was arrived at as a direct consequence of the balancing by that Court of countervailing policy considerations of such type.

The second limb relied upon by the Solicitor General was that the decision of Russell DCJ exhibited error in law on the face of the record; in that the learned Judge is said to have proceeded to the conclusions to which he came on an insufficient basis of evidence.

He, of course, also contended that error on the face of the record had also been demonstrated by virtue of the fact that it was said that Russell DCJ had applied the wrong test in relation to the concept of fault. However, my reasoning already developed above constitutes the necessary answer to such a suggestion.

It was further argued that the evidence of Craig was vague in the extreme and manifestly not sufficient to discharge his onus of proof that there was no fault on his part, even given the test espoused by me.

In this regard the Director essentially seeks to challenge both the findings of fact made by the learned Judge, after an assessment of the relevant oral evidence, and the inferences which he drew.

I did not take the Solicitor General to go so far as to assert that the findings of fact made were so removed from or inconsistent with the evidence led that they invoked the principle adverted to in R v Medical Appeal Tribunal, ex parte Gilmore [1957] EWCA Civ 1; (1957) 1 QB 574 at 582 - that no reasonable tribunal properly instructed in the law could reasonably have arrived at the decision made, given the findings of fact and the inferences naturally arising in the circumstances. (See also the discussion by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 and the discussion of that decision by Mr Peter Bayne Judicial review of questions of fact (1992) 66 ALJ 96.)

In order to demonstrate error on the face of the record the Director must clearly demonstrate that there was either no evidence to support the findings made or, alternatively, that the findings made were not reasonably capable of being supported by the evidence. (See Hotop, "Principles of Australian Administrative Law" 6th Edn p262, British Launderers' Research Association v Borough of Hendon Rating Authority (1949) 1 KB 462 at 471.) Nothing short of such a situation can constitute an error on the face of the record sufficient to ground an order in the nature of certiorari.

In my opinion the Director has fallen far short of satisfying such a test and this facet of the application therefore fails.

It simply cannot be said that there was no evidence to support the findings made - clearly there was] Equally the facts as found were, manifestly, capable of supporting those findings.

As to the findings in question, it is to be noted that Russell DCJ saw and heard the witnesses and drew inferences on the basis of evidence given, in a situation in which the prosecution simply did not pursue aspects about which it now complains in any real depth in cross examination. The learned Judge was entitled to assess the material before him on the basis that there was, indeed, a fairly perfunctory cross examination. What inferences naturally arose were the product of the impressions made by the witnesses at the time.

It was argued that the evidence failed to disclose

as a matter of fact
that the inability of Craig to secure legal representation arose through no fault of his own. It was, in effect, contended on behalf of the Director that the compelling inferences arising from the evidence were that:-
- the respondent Craig deliberately chose to dissipate the inheritance left to him in payment of other debts, instead of funding his legal costs of defence; and also failed to inform the Legal Service Commission of what had occurred, notwithstanding his obligation to do so - the Commission having already approved legal aid;
- the refusal of the Commission to fund a defence implies

that it is not satisfied that there was a reasonably arguable defence. As to the second aspect it must be said that this point was not been pleaded and therefore cannot arise as an issue in this case. Furthermore, in any event, the evidence fell far short of establishing such a proposition; and the alleged inference cannot be said to be the only logical conclusion which flows from the refusal. An equally compelling thesis may well be that the withdrawal of aid was merely the product of the respondent's perceived failure to adhere to his original conditions of aid by not notifying entitlement to the inheritance.

The first aspect required consideration of the circumstances, as revealed by the evidence, which existed at the time of the initial approval of aid.

As I understand the situation Russell DCJ concluded that, as at mid 1992, Craig was beset by a host of problems.

The charges, the subject of the present proceedings, had been initiated against him and the hearing of them was pending. He had sought and been granted legal aid. Divorce proceedings as between himself and his wife were in train in the Family Court, including a claim for a property settlement. In order to fund his total liability for costs in those proceedings he, in some fashion, charged an inheritance to which he had become entitled in his aunt's estate in favour of his then family law solicitor. That solicitor somehow procured payment of the sum of $20,000 in settlement of the inheritance, from which he deducted several thousand dollars for costs.

At the time the respondent was clearly insolvent. He had many business and domestic debts and was unable to meet them as they were due. A business which he was conducting had failed. He returned to study music at University and was attempting to survive on a DEET Auststudy allowance. He had further substantial liabilities for costs in the Family Court proceedings.

Eventually his problems became too much for him. Having expended much of the balance of his inheritance in settlement of some of his most pressing debts and some living expenses, he utilised the balance of about $4,000 in purchasing a Volvo car and subsequently absconded to Sydney, from whence he was extradited.

Most of his personal effects were said to have been stolen since that time. His vehicle was thought still to be in Sydney, but he had been unable to do anything in relation to it, because he had been in custody.

Whilst his action in absconding could not be condoned it could at least be understood. His business having failed he was being harassed by creditors, he was undergoing the trauma of Family Court proceedings and necessarily incurring ongoing additional legal costs in relation to them. Moreover, he was endeavouring to survive on an inadequate DEET allowance at a time at which his wife had forced the sale of the former matrimonial home and he was having to pay rent which absorbed nearly all of the DEET allowance. All of these difficulties

the learned judge assessed - apparently became too much for him.

Russell DCJ concluded that this was not the case of a person who had gratuitously dissipated assets in an irresponsible manner and was thus the author of his own misfortune. He had very much been the victim of a series of financial reverses, some of them obviously not of his own making. As was impliedly recognised by Russell DCJ, the only reason why he had not been declared bankrupt - an act which would have removed the legacy from him even if he had retained it - was that he had no assets of substance and the costs of any bankruptcy administration would manifestly exceed any recovery for creditors. Had he paid money over to be held in trust for costs, this presumably would, in any event, have constituted a preference.

In those circumstances Russell DCJ obviously felt that there was a very real air of unreality in the stance taken by the Director

that it was easy to stand off and dispassionately criticise, on a detached, academic basis, the actions taken by Craig as to what he should and could have done at the time; that it was another thing altogether to have been in his situation and to have had to contend, on a day-to-day basis, with the obvious succession of financial crises and attendant harassment with which he was confronted.

It was against that background that Russell DCJ came to the end conclusion that he did. Whether, on the facts, I would have viewed the facts as he did is not to the point. The question is not whether, on the merits, this Court positively agrees with his assessment of the situation. Importantly, it is whether, in the relevant legal sense, he committed an error on the face of the record. It must be stressed that this is not an appeal, but an application for judicial review seeking an order in the nature of certiorari. As there was evidence before the learned Judge capable of supporting his findings that is an end to the matter.

It only remains to say that, like the learned Judge, I do not accept the proposition now sought to be advanced by the Director that, in any event, the accused could adequately represent himself. This aspect has been traversed by Russell DCJ and I share his conclusion.

Given the above circumstances it seems to me that, on any view, the application fails. The Director has fallen far short of establishing the requisite legal basis for certiorari. I would refuse the relief sought.

Supreme Court Rules 1987

THE STATE OF SOUTH AUSTRALIA v HIS HONOUR JUDGE RUSSELL AND ANTHONY DAVID CRAIG No. SCGRG 93/1778 Judgment No. 4491 Number of pages - 19 Criminal law and procedure - jurisdiction, practice and procedure - stay of proceedings

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Judgment (92 paragraphs)

THE STATE OF SOUTH AUSTRALIA v HIS HONOUR JUDGE RUSSELL AND ANTHONY DAVID CRAIG No. SCGRG 93/1778 Judgment No. 4491 Number of pages - 19 Criminal law and procedure - jurisdiction, practice and procedure - stay of proceedings (1994) 71 A Crim R 497 (1994) 62 SASR 288 [1994] SASC 4491 (20 April 1994)

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Legislation Cited (2)

Cases Cited (14)