Self represented accused

Street CJ

At 612

The next ground that has been argued is formulated in the following terms: “2. That his Honour erred in refusing to accept the services of a ‘McKenzie's adviser’.”

The appellant declined an invitation extended to him at an interlocutory stage by the Chief Judge of the District Court to apply for legal aid. Had he accepted, legal aid would have been available to cover his representation at the trial. He was again asked, on this occasion by the trial judge, at the beginning of the trial why he had not made application for legal aid, to which he replied: “Well, I represent myself, that is why not.” It is apparent, accordingly, that the appellant had deliberately and advisedly chosen not to avail himself of the opportunity of being professionally represented at the hearing.

At the very outset of the proceedings the appellant made an application: “… to have a McKenzies adviser here to be able to advise me and take notes during the course of the trial.” After hearing argument on this application, Goran DCJ, for reasons which his Honour then stated, refused it.

At 614

To permit indirect participation in the trial process by a person to whom the court has no direct access in a disciplinary and controlling sense — a person who may well, for one reason or another, be concerned to promote the case of the person whom he is advising by fair means or foul, by legal means or illegal, or by any device whatever, a person immune from disciplinary or effective control by the trial judge — is in my view fraught with the prospect of causing serious miscarriages in the orderly and regular conduct of criminal trials in this State.

At 614

The next ground that has been argued is: “That in view of the fact that the accused was unrepresented the learned Crown Prosecutor ought not to have addressed the jury.” The argument has taken this proposition a little further. It is pressed as a rule of law that, where an accused person is unrepresented, the trial will miscarry if the Crown is permitted to address the jury at the end of the evidence.

At 616

The submission did not find favour in the High Court and the decision of the Court of Criminal Appeal was upheld. As Barwick CJ said, it is the usual practice for the Crown not to address where an accused is unrepresented. But it goes no further than that. It is not a rule of practice, still less is it a rule of

law.

The trial judge ultimately has such discretionary authority over the course of proceedings in the trial as will ensure that the trial is fair in all respects. Fairness is not a one-sided concept. It is a dual concept involving fairness to accused persons and fairness to the public through the prosecuting agency of the Crown. Where a judge thinks that the usual practice should be relaxed in a particular case, then in my view he has a discretion to give effect to that opinion.

I accordingly, with the greatest of respect, dissent from the opinion expressed by Bray CJ. The decision in R v Turner is not to be regarded in this State as authority for the proposition therein stated. The law in this State is that the trial judge has a discretion in the matter which will, of course, be exercised against the background of a long-standing and a usual practice.

Nagle CJ at CL

At 616

I agree

Maxwell J

At 616

I agree

The Court (Hunt, Enderby and Sharpe JJ)

At 93

The appellant (Roy Peter Zorad) was found guilty by a jury in the District Court at Gosford of one charge of robbery with striking and one charge of supplying a prohibited drug (cannabis). Walsh DCJ imposed a sentence of twelve years penal servitude on the first charge and seven years imprisonment on the second, to be served concurrently, and he fixed a non-parole period of six and a half years.

At 94

Such issues should not have been difficult to try. But the trial was made extremely difficult for the judge because of the decision by the appellant to appear unrepresented. No reason for that decision was stated to the judge. Although an invitation was extended by this Court to his counsel to explain why that decision had been taken, no explanation was given. The appellant has had a long experience of the criminal justice system. In these days of almost universal legal aid (at the trial stage), there is therefore available the clear inference (which we draw) that he elected to dispense with legally aided professional representation at the trial in the hope of obtaining tactical advantages.

The difficulties which arose in the conduct of the trial by an unrepresented accused unfortunately led to a number of errors being made by the judge. Many of those errors (taken individually) led to no miscarriage of justice, but the question which arises in the end is whether the cumulative effect of all the errors made has been such as to have denied the appellant a fair trial.

The first ground of appeal complains that the judge wrongly permitted the Crown Prosecutor to make a closing address to the jury. Appeal has been made to the decisions of the Victorian Full Court in R v Ginies [1972] VR 394 at 401-402, and of Bray CJ in R v Turner (1977) 16 SASR 444 at 446, that the Crown is not permitted to address where the accused is unrepresented, and that the trial judge has no discretion to relax that absolute rule. This Court, in R v E J Smith [1982] 2 NSWLR 608 at 615-616, has declined to follow those decisions. There is a practice in New South Wales whereby the Crown does not address in such circumstances, but it is not a rule of practice, still less is it a rule of law (ibid at 616).

We see no reason to depart from this Court's decision in Smith's Case. The practice that the Crown Prosecutor does not make a closing address where the accused is unrepresented appears originally to have arisen because it was thought to be unfair to an accused who could not afford representation that he should be pitted against a trained advocate in the final stages of the trial. With the ready availability of legal aid at the trial stage, however, there must be at least some question whether such an approach continues to be appropriate. There is an increasing tendency of accused persons with a long experience of the criminal justice system electing to dispense with legally aided professional representation in order to obtain certain tactical advantages, but in our view the practice needs to be reconsidered whatever the purpose may have been of the election to appear unrepresented.

At 95

In every case, the decision whether the Crown Prosecutor should exercise his right to make a closing address is for the trial judge to make in the exercise of his discretion. The fact that the transcript may be silent upon the subject does not mean that the judge did not turn his mind to it: cf R v Cartwright (Court of Criminal Appeal, 22 July 1983, unreported at 2). There has been nothing shown by the appellant in the present case to suggest that the judge failed to exercise that discretion or that he did so wrongly. This ground of appeal is rejected

At 99

Then it is said that the judge gave to the appellant no assistance in reformulating questions such as that which were not in proper form and rejected for that reason. The judge was under no duty to do so. His duty is to rule on the questions, not to formulate them. His duty to give to an unrepresented accused such information and advice as is necessary to ensure that he has a fair trial would include, if it became necessary, an explanation as to the form in which questions should be asked, but it is not to put the questions in that form for the accused. The judge's duty is to ensure that the unrepresented accused is put in a position where he is able to make an effective choice as to the exercise of his rights during the course of the trial, but it is not to tell him how to exercise those rights: MacPherson v The Queen (at 534-535) and R v Gidley [1984] 3 NSWLR 168 at 180-181.

At 100

The fourth ground of appeal complains that the judge “did not render such assistance as was required of him and was necessary for the appellant to properly represent himself on the trial”. Much of what has already been said is relevant also to this ground of appeal.

At 101

What the complaint boils down to in the present case is that, although the appellant put this assertion about the handcuffing incident to each of the police witnesses, the judge should have advised him how to put it in a better way. That forms no part of a trial judge's duty to an unrepresented accused. In any event, each of the police officers denied the basic fact that the appellant had been handcuffed to a chair. The appellant's case was not prejudiced by his failure to put to each of them the additional matter that the purpose of their having done so was to force him to make admissions.

…

Of more concern is the direction which the judge gave to the jury drawing attention to the appellant's failure to elicit from the witness Keegan any support for his own version that he had been present only under duress at the time when the robbery with striking took place. Even an unrepresented accused is obliged in certain circumstances to comply with the rule in Browne v Dunn: R v Schneidas (Court of Criminal Appeal, 14 May 1981, reported in relation to other matters at [1981] 2 NSWLR 713 at 18); although we do not accept that, without prior warning, such was the obligation of the appellant in this case. If, therefore, comment was going to be made in relation to the appellant's failure to comply with the rule (which is itself a rule of fairness), fairness demanded that he should first have been advised of the existence of the rule. (At the stage when Keegan gave evidence, the judge had been made aware of this issue of duress by the appellant's cross-examination of Kelly, the victim of the robbery.) We shall have to consider the effect of that unfairness upon the ultimate fairness of the trial at the conclusion of this judgment.

Mason CJ and McHugh J (allowing the appeal)

1. This application for special leave to appeal seeks to raise the question whether the applicant's trial in the County Court at Melbourne miscarried by virtue of the fact that he was unrepresented by counsel. 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.

2. The applicant is entitled to succeed because his trial miscarried by virtue of the trial judge's failure to stay or adjourn the trial until arrangements were made for counsel to appear at public expense for the applicant at the trial with the consequence that, in all the circumstances of this case, he was deprived of his right to a fair trial and of a real chance of acquittal.

…

7. The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system ((1) Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23, per Mason C.J. at p 29; Deane J. at p 56; Toohey J. at p 72; Gaudron J. at p 75.). As Deane J. correctly pointed out in Jago v. District Court (N.S.W.) ((2) ibid., at pp 56-57.), the accused's right to a fair trial is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial, for no person can enforce a right to be tried by the State; however, it is convenient, and not unduly misleading, to refer to an accused's positive right to a fair trial. The right is manifested in rules of law and of practice designed to regulate the course of the trial ((3) Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54; Reg. v. Sang [1979] UKHL 3; (1980) AC 402, both referred to in Jago (1989) 168 CLR, at p 29.). However, the inherent jurisdiction of courts extends to a power to stay proceedings in order "to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair" ((4) Barton v. The Queen [1980] HCA 48; (1980) 147 CLR 75, at pp 95-96; Williams v. Spautz [1992] HCA 34; (1992) 66 ALJR 585; 107 ALR 635.).

…

12. An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown ((18) McInnis (1979) 143 CLR, per Murphy J. at p 590). The hallowed response ((19) See the reference to Coke's opinion in Powell v. Alabama [1932] USSC 137; (1932) 287 US 45, at p 61) that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a "helping hand" to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems ((20) See Foster (1982) 38 ALR, at p 600).

…

30. 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.

31. 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.

Per Brennan J (dismissing the appeal)

2. What, then, should a court do when an accused person, charged with a serious offence and having insufficient resources to retain legal representation at his trial, wishes to be legally represented at his trial and no counsel is provided? One answer is that the court should adjourn the trial until legal representation is available, at public expense if necessary, and, if it is not made available, the court should adjourn the trial indefinitely. The other answer is that, once every reasonable prospect of obtaining legal representation has been exhausted, the trial must proceed. Neither answer is wholly satisfactory. The first answer sacrifices both the interests of the public and the interests of the victim, if any, in seeing that an alleged offender is brought to justice. The second answer sacrifices the interests of the accused and the interests of the public in the even-handed administration of justice. The problem can be resolved only by providing counsel to represent a person charged with a serious offence and, if he cannot afford to retain counsel himself, to provide counsel at public expense. The entitlement of a person charged with a serious offence to be represented by counsel at public expense if he cannot afford to retain counsel himself (hereafter "an entitlement to legal aid") would be an important safeguard of fairness in the administration of criminal justice. A society which secures its peace and good order by the administration of criminal justice should accept, as one of the costs of providing a civilized system of justice, the cost of providing legal representation where it is needed to guarantee the fairness of a criminal trial. I respectfully agree with the observations made in other judgments in this case and in McInnis v. The Queen ((63) supra, fn (62)) as to the desirability of competent legal representation for an accused person in a criminal trial ((64) The dangers of incompetent legal representation to an accused are sadly familiar to judges in the criminal jurisdiction.). Although the desirability of according an entitlement to legal aid is manifest, the critical legal question in this appeal is whether this Court can and should translate the desirability into a rule of law or, if there be any difference, into a rule of practice governing the conduct of criminal proceedings. In my respectful opinion, this Court cannot properly create such a rule.

…

12. To accord the postulated entitlement to legal aid, public funds must be appropriated to pay for representation or counsel must be required to appear without fee. The Courts do not control the public purse strings; nor can they conscript the legal profession to compel the rendering of professional services without reward. The provision of adequate legal representation for persons charged with the commission of serious offences is a function which only the Legislature and the Executive can perform. No doubt, demands on the public purse other than legal aid limit the funds available. If the limitation is severe, the administration of justice suffers. The Courts can point out that the administration of justice is an inalienable function of the State and that the very security of the State depends on the fair and efficient administration of justice, but the Courts cannot compel the Legislature and the Executive Government to provide legal representation. Nor can this Court declare the existence of a common law entitlement to legal aid when the satisfaction of that entitlement depends on the actions of the political branches of government. In my opinion, to declare such an entitlement without power to compel its satisfaction amounts to an unwarranted intrusion into legislative and executive functions. The common law is the creature of the Courts alone and susceptible of enforcement by the Courts: the common law is never dependent for its effect on action to be taken by the Legislature in exercise of a legislative discretion or by the Executive in exercise of an executive discretion. If the Constitution conferred an entitlement to legal aid, the Courts would be empowered, if need be, to enforce the entitlement against the political branches of government. But we do not live under such a Constitution.

…

16. In the present case, the application for special leave to appeal was founded on the submission that the applicant, who did not have the means of retaining counsel at his own expense, was denied a legal entitlement to counsel at public expense. That argument fails. There was no miscarriage of justice arising simply from the fact that the applicant was not legally represented. Whether there was any miscarriage in the particular circumstances of this case arising from the trial judge's refusal of an adjournment to allow the applicant to renew his application for legal aid is a question that might have been, but was not, argued before the Court of Criminal Appeal. The applicant's argument before the Court of Criminal Appeal that an adjournment should have been granted was not founded on the possibility of his obtaining legal representation in the circumstances of his case; it was founded on his supposed right to be provided with counsel. As the Court of Criminal Appeal was not invited to consider whether an adjournment should have been granted because the applicant might have obtained legal representation in the circumstances actually existing at the time of his trial, it would not be right to grant special leave to raise that question here on the materials available.

Deane J (allowing the appeal)

6. It must be stressed that the applicant does not argue that he had a directly enforceable common law "right" to be provided with legal representation at public expense. Clearly, he did not. The common law does not impose upon the government or any section or member of the community an enforceable duty to provide free legal advice or representation to anyone. What the common law requires is that, if the government sees fit to subject an accused person to a criminal trial, that trial must be a fair one. Inevitably, compliance with the law's overriding requirement that a criminal trial be fair will involve some appropriation and expenditure of public funds: for example, the funds necessary to provide an impartial judge and jury; the funds necessary to provide minimum court facilities; the funds necessary to allow committal proceedings where such proceedings are necessary for a fair trial.

…

8. Clearly enough, circumstances can arise in which a refusal of a trial judge to grant an adjournment of a trial by reason of lack of legal representation has the consequence that the whole trial miscarries. If authority is needed for that confined proposition, it is abundant (See, e.g., Galos Hired v. The King (1944) AC 149, at p 155; Kingston (1948) 32 Cr.App R 183, at pp 188-189; Reg. v. Sowden (1964) 1 WLR 1454, at pp 1459-1461; Reg. v. Howes (1964) 2 QB 459, at p 466; Reg. v. Green (1968) 1 WLR 673; Reg. v. Hanias (1976) 14 SASR 137, at pp 142, 148-149; Re Ciglen and The Queen (1978) 45 CCC (2d) 227, at p 231; Reg. v. Beadle (1979) 21 SASR 67, at pp 68-70; Reg. v. Rowbotham (1988) 41 CCC (3d) 1, at p 69.). Beyond that, the judgments of the common law courts are discordant in that the approach adopted in intermediate appellate courts in this country, Canada and, to a lesser extent, the United Kingdom((119) And, semble, by the courts of New Zealand: see Parkhill v. Ministry of Transport (1992) 1 NZLR 555, at p 559.) is in conflict with the approach which has prevailed in the final appellate courts of the United States, Ireland and India.

…

16. It follows from the foregoing that, as a general proposition and in the absence of exceptional circumstances, a trial of an indigent person accused of serious crime will be unfair if, by reason of lack of means and the unavailability of other assistance, he is denied legal representation. There was nothing exceptional in the circumstances of the present case which would preclude the applicability of that general proposition. That being so, the applicant has not had a fair trial. His conviction and sentence of imprisonment without such a trial necessarily constituted a miscarriage of justice. It remains to be considered whether the case is one in which the proviso contained in s.568(1) of the Crimes Act 1958 (Vict.) can be applied for the reason that it appears that "no substantial miscarriage of justice has actually occurred" (emphasis added). In my view, it is not.

Dawson J (dismissing the appeal)

11. Entitlement to appear by counsel is not the same thing as entitlement to have counsel provided at public expense (See Reg. v. Rowbotham (1988) 41 CCC (3d) 1, at pp 65-66; Re Ewing and Kearney and The Queen (1974) 49 DLR (3d) 619, at p 626; Reg. v. Robinson (1989) 73 CR (3d) 81, at p 110.). It is a right on the part of an accused person to avail himself of counsel if counsel is available to him or can be made available to him. A legal aid scheme is nowadays a means by which counsel may be made available to an accused person. If, by the refusal of an adjournment, an accused is prevented from pursuing a course which could, with any reasonable prospect of success, enable him to avail himself of counsel, then it seems to me that it should be irrelevant to enquire further whether he lost a chance of acquittal because he was unrepresented. The refusal of an adjournment which would deprive an accused of a reasonable opportunity to obtain representation would effectively deny him the form of trial to which he was entitled by statute - a trial at which he was represented by counsel. In such a case, the refusal of the adjournment would itself and without more cause the trial to miscarry. It is not to the point that the accused would inevitably have been convicted because that is no answer when a trial is fundamentally flawed (See Wilde v. The Queen [1988] HCA 6; (1988) 164 CLR 365, at p 373.). Of course, not every refusal of an adjournment for the purpose of obtaining counsel will amount to a refusal to allow an accused to exercise his right. The accused may previously have had adequate opportunity to pursue his entitlement and have failed to do so. An adjournment may be sought for merely tactical reasons and not for the genuine purpose of obtaining representation. And no counsel may be available because the accused lacks the means to secure representation and all avenues to obtain legal aid have been explored unsuccessfully.

…

17. The assistance which the trial judge can give to an unrepresented accused is limited, but its effect ought to be to redress as far as possible any imbalance in the presentation of the prosecution and defence cases and to ensure that the procedures adopted fairly reflect the case which the accused wishes to put in his defence. That having been said, it is undeniable that if trials were to move closer to the attainment of perfect justice, every accused would be represented by competent counsel. But, as Brennan J. pointed out in Jago v. District Court (N.S.W.)((156) [1989] HCA 46; (1989) 168 CLR 23, at p 47.), although the absence of competent representation is an obstacle in the way of a fair trial, it is an obstacle to be overcome by the trial judge however burdensome the task.

…

25. 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 (N.S.W.) (1989) 168 CLR, at p 39; Reg. v. Robinson (1989) 73 CR (3d), at p 119; 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((168) See Reg. v. Cormier (1988) 90 NBR (2d) 265).

Toohey J (allowing the appeal)

11. It is hardly necessary to spend time in this judgment on the advantages to an accused of legal representation. They are well recognised (See, for instance, McInnis v. The Queen [1979] HCA 65; (1979) 143 CLR 575, at pp 582, 590; Powell v. Alabama [1932] USSC 137; (1932) 287 US 45, at pp 68-69; Douglas v. California [1963] USSC 85; (1963) 372 US 353, at pp 357-358.). I assume, of course, that representation is competent. Most trial judges have had the experience of a litigant in person who seems able to conduct his or her part in the proceedings with skill and, sometimes, to a successful conclusion. But such situations are exceptional. Any litigant in person is at a disadvantage, above all an accused facing a serious criminal charge. Indeed, the adversary system that prevails in this country assumes the existence of contestants who are more or less evenly matched. Where they are not, the trial judge can lend assistance. But that can only be limited and may interfere with the true function the trial judge is required to perform (Richardson v. The Queen [1974] HCA 19; (1974) 131 CLR 116, at p 122; MacPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512, at pp 546-547; Whitehorn v. The Queen [1983] HCA 42; (1983) 152 CLR 657, at pp 682-683; Powell v. Alabama (1932) 287 US, at p 61; Re Ewing and Kearney and The Queen (1974) 49 DLR (3d) 619, at p 621.). Likewise, while the prosecutor must act fairly towards the accused and can offer some assistance, the prosecutor cannot tell the accused how to conduct his or her defence. Indeed, a prosecutor would need to tread carefully in dealing with the accused in order to avoid compromising the prosecutorial role. It would not be hard, in many cases where an accused has lacked legal representation, to point to the disadvantages that have ensued and to conclude that the accused may have lost thereby the chance of an acquittal.

…

28. The present application clearly calls for a grant of special leave to appeal from the order of the Court of Criminal Appeal refusing the applicant leave to appeal against his conviction. The outcome of the appeal itself turns, not on a right to counsel at public expense, but on what Deane J. described (Jago (1989) 168 CLR, at p 56) as the "central prescript of our criminal law ... that no person shall be convicted of crime otherwise than after a fair trial according to law". The applicant did not have a fair trial according to law. He was facing serious criminal charges. The offences were punishable by "imprisonment for life or for such period as the Court thinks appropriate": Customs Act, s.235(2)); he made all the efforts he could to obtain legal representation; and, as appears from other judgments, he clearly suffered considerable disadvantage in trying to conduct his own defence. It is the loss of a chance of acquittal fairly open to an accused, rather than the unfairness of the trial itself, that leads to a conviction being set aside. The judgment of Mason C.J. and McHugh J. demonstrates that in the present case the applicant may well have lost the chance of an acquittal on the charge of which he was convicted. It is unnecessary to repeat what is said by their Honours in that regard. Certainly, in the context of a serious criminal charge, an appellate court would be slow to conclude that the absence of legal representation for an accused is not likely to have led to the loss of a chance of acquittal. Nevertheless, as in the present case, an appellate court must reach a conclusion on that matter if the occasion arises((206) See Wilde v. The Queen (1988) 164 CLR, at pp 371-372, where there is a discussion of some aspects of the loss of a chance of acquittal, though in a different context.). The applicant did ask the trial judge to adjourn the trial; that application was refused. The matter having proceeded, attention necessarily now focuses on the trial and its outcome.

Gaudron J (allowing the appeal)

1. It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law (Wilde v. The Queen [1988] HCA 6; (1988) 164 CLR 365, per Deane J. at p 375; Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23, per Deane J. at p 56; Reg. v. Glennon [1992] HCA 16; (1992) 173 CLR 592, per Deane, Gaudron, McHugh JJ. at p 623.). The expression "fair trial according to law" is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness.

…

19. Once it is acknowledged that an accused person has a right to be legally represented, that legal representation is the norm, and that a person who is not represented is bound to face difficulties arising from his lack of knowledge and from the stress of the occasion - difficulties which are probably exacerbated by his personal circumstances - it is difficult to accept that trial without representation does not involve a risk of the accused being improperly convicted, at least for serious offences. In other words, it is difficult to accept that, these matters notwithstanding, trial without legal representation is a fair trial. And that is so even if the trial judge makes every effort to assist by explaining the procedures, the issues and the law.

…

32. Once it is accepted that legal representation is essential for the fair trial of serious offences, it follows that the trial judge was in error in allowing the trial of Mr Dietrich to proceed. What makes a trial without representation unfair is the possibility that representation might affect the outcome of the case. That same matter reveals the nature of the error involved in this case and the consequence of that error. If an accused who is forced to represent himself is convicted, the prima facie position is that, had he been represented, he might have been acquitted. In other words, the prima facie position is that the accused has "lost a chance which was fairly open to him of being acquitted"((252) Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493, per Fullagar J. at p 514.) and that, in terms of the proviso to s.568(1) of the Crimes Act, there has been a "substantial miscarriage of justice".

The Court (Brennan, Deane, Toohey, Gaudron, McHugh JJ)

2. The appellant applied to a judge of the District Court for an order that the proceedings against him be stayed until such time as he could be "provided with representation by counsel at public expense". The application came on for hearing before Russell DCJ on 22 June 1993. Oral evidence was given by both the appellant and a witness from the Legal Services Commission and documentary evidence was also received. After hearing submissions from the appellant and counsel for the Crown, his Honour adjourned the matter until later in the day when he delivered oral reasons for judgment.

3. In his reasons, Judge Russell made a number of specific findings about the appellant, the charges against him, his lack of means and his inability to obtain legal representation for his pending trial. In the light of those findings, he considered that the appellant "could not receive a fair trial unless he is properly represented by counsel". His Honour concluded that, in all the circumstances of the case, the effect of the majority judgments in this Court in Dietrich v The Queen (1) was that the trial "should be adjourned, postponed or stayed until legal representation (was) available" (2). Rather than taking "the drastic step of staying the proceedings", he ordered that the date which had been set for trial be vacated, that a fresh status conference be appointed, that the South Australian Attorney-General be informed of the orders made and the reasons for making them, and that, in the event that no provision was made for the proper representation of the appellant by counsel at his trial within a reasonable time, the appellant was to be at liberty to apply for such other order or orders as may be proper in the circumstances.

…

21. 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.

Santow JA

1. I agree with the reasons of Smart AJ and the additional observations of Buddin J.

Buddin J

2. I have had the advantage of reading in draft form the judgment of Smart AJ. I agree with what His Honour has had to say. I wish only to add the following remarks.

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4. It may be accepted that there is an even stronger public interest in ensuring, if at all possible, that a criminal trial which is well advanced, proceeds to verdict. Accordingly, an adjournment will not be readily granted in such circumstances. In the present case the complainant had given evidence over a number of days. The trial judge's reluctance to accede to the application for an adjournment was, in those circumstances, understandable.

5. It is also of course highly desirable that an accused person is legally represented at trial, particularly if, as was the case here, he or she is facing very serious charges. However, a trial judge must be alive to the possibility that an accused person may withdraw instructions from counsel purely in order to obtain an adjournment. In BK [2000] NSWCCA 4; (2000) 110 A Crim R 298, Carruthers AJ said…

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11. Of paramount importance is the need to ensure that a person who is accused of a crime has a fair trial. It could not be said with any degree of confidence that the applicant, having been forced to continue on with his trial without representation, would receive a fair trial. That being so, it appears to me that the factors which would ordinarily militate against granting an adjournment had to yield to the need to ensure that the applicant got the trial to which he was entitled.

Smart AJ

13. At the conclusion of the oral hearing the court announced its decision and made orders because of the urgency of the matter. The parties needed to know whether a part heard trial should continue. The court ordered that leave to appeal be granted, the appeal be allowed and the decision of Freeman DCJ refusing to terminate the applicant's trial be set aside, that the applicant's trial be terminated and a new trial be had. The court stated that it would give its reasons later. I now set out my reasons for participating in those orders.

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19. On the night of 5 March 2003 the applicant telephoned Ms. D. I. Mc Kern, a solicitor, and told her that he was worried about a possible conflict of interest on the part of Mr. Crozier who was acting for him and who (or his firm) had previously acted for witnesses for the Crown. The applicant also told her of what he believed were deficiencies in the way Messrs. Cavanagh and Crozier were conducting his defence.

20. On the morning of 6 March 2003 while the applicant was at the offices of Mr. Crozier he raised with him and Mr. Cavanagh the question of the conflict of interest of Mr. Crozier. He replied that his secretary was onto the Law Society to see where he stood. Mr. Cavanagh remarked, "If Mick stands down I will have to stand down too". The applicant said that he was asked to wait in another room while Messrs. Crozier and Cavanagh variously spoke to the Law Society, the Bar Association and the Crown.

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30. The judge responded:

"...in chambers this morning both counsel told me that there was some, at least potential ethical difficulty confronting Mr. Cavanagh and his instructing solicitor and the matter was stood in the list whilst that area of possible difficulty was explored, if not resolved".

Mr. Cavanagh replied:

"The matter from the Crown's perspective has been attempted to be resolved by speaking to a number of the witnesses, as I understand it, to lift any privilege that they may have in respect of my instructing solicitor. There still, however, remains a confidence issue on behalf of Mr Gilfillan in respect of those witnesses and representation of him by myself and my instructing solicitor".

Mr. Cavanagh stated that their instructions had been withdrawn. They were then granted leave to withdraw and withdrew.

31. I interpolate that it is not easy to see how a waiver of privilege would assist in the resolution of the conflict of interest.

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33. 3Ms. McKern went on to indicate that there were other aspects of the conduct of his case by Messrs. Cavanagh and Crozier with which the applicant was not satisfied. She submitted that to continue the trial would entail a grave miscarriage of justice.

34. The judge immediately responded, "Well I'm against you on that Ms. McKern". The judge expressed his reluctance to waste 7 days and have the complainant put through four days of evidence again if he could possibly avoid it.

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38. When on 7 March 2003 Ms. McKern stated that the applicant was left without representation "due to the fact that his representatives have had to withdraw as a matter of conflict of interest" the judge responded:

"I didn't understand the situation to be that they withdrew because of a conflict of interest. I understood that the conflict of interest had been raised, that that was in the process of being resolved by the Crown seeking some assurances from the witnesses, but, regardless of the outcome of that, Mr. Gilfillan had withdrawn his instructions from his lawyers. It's his action, rather than theirs. I think that's an important distinction".

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47. The judge took a short adjournment. Upon his return Ms. Mc Kern stated in the presence of Mr. Crozier:

"My understanding is that because of this conflict which we did not think could be overcome- my client did not think could be overcome then the instructions were withdrawn by my client".

The judge replied:

"All right. I don't know his reasons, I don't need to know his reasons; in fact, in some-in many ways, I think it's best if I don't know his reasons for withdrawing his instructions, but there's not much point sending Mr. Formosa up here on Monday to argue that the `poor old accused has been dumped by his lawyers and is put in this position of disadvantage' if, in fact, it's been his choice to do that. So I simply give you that perhaps unwanted and I'm sure unnecessary advice and I urge you to redouble your efforts to find somebody to come and run the trial".

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55. The Crown Prosecutor told the judge he had interviewed the various Crown witnesses intended to be called on the Basha inquiry and came to the conclusion that only two of them, Minns and Janeen Maddelina were affected by the ethical concern (as clients or former clients of Mr. Crozier) and, in his opinion to a very minor degree. They had both given instructions that, if it became an issue in the trial, they were happy to waive privilege.

56. The Crown Prosecutor said that from his enquiries and knowledge it was more a matter of instructions being withdrawn than an ethical problem. He thought that problem was eminently curable. While the Crown Prosecutor's views were worthy of respect, the evidence of Ms. Mc Kern shows the nature of the problem and how it was resolved.

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73. Unreasonable dispensation with legal representation by an accused during a trial would amount to fault on the part of an accused and usually in such circumstances a trial would not be terminated. Whether an adjournment would be granted would depend on all the circumstances, for example, fresh legal representation may be able to be obtained within a couple of days, thus enabling the trial to continue.

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75. Circumstances may exist where it is reasonable for an accused to withdraw his instructions even at an advanced stage of a trial. For example, his counsel may be conducting his case in an obviously incompetent fashion or incorrectly disregarding instructions which were not improper or for personal reasons may not feel able to cross examine a witness adequately. This list is not exhaustive.

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79. In the present case the judge did not take into account the issue of fault, that is, whether it was reasonable for the applicant to withdraw his instructions, and, it seems, the conflict of interest issue. He did not deal with the issue of the effect on the applicant acting reasonably of the knowledge that Mr. Crozier had recently acted for Minns and interviewed Mr. and Mrs. Minns, especially if either or both had to be cross examined in a searching fashion or on credit.

80. Accordingly, I am of the opinion that the exercise of the judge's discretion miscarried. Further, with all due respect to the judge the affidavit of Ms. D. I. Mc Kern does reveal matters causing justifiable concern and it is not correct to refer to the affidavits as an attempt to obfuscate the issue. The affidavits provided evidence.

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84. It becomes necessary for this Court to exercise afresh the judge's discretion. I am not persuaded that it was unreasonable for the applicant to terminate Mr. Crozier's instructions. Waiver of privilege did not overcome the problems which had arisen. Indeed, in the circumstances of the present case that was not the real point. The applicant was entitled to be represented by a solicitor who had no conflicting allegiances and nothing in mind but the protection and advancement of the applicant's interests. The applicant had and was entitled to have little confidence in what had been advanced. The fact that potential witnesses were prepared to waive privilege so readily would have tended to increase his lack of confidence as to the full protection of his interests.

Bell JA

1. I agree with Barr J.

Barr J

22. It was submitted that the trial was unfair because -

a) the trial judge erred in restricting the appellant’s right to cross-examine the complainant;

b) the trial judge erred in holding inadmissible under s293 Criminal Procedure Act certain questions the appellant desired to ask of the complainant;

c) the trial judge erred in admitting evidence as tendency evidence;

d) the trial was procedurally unfair;

e) an uncertainty arose about the use that might properly be made of a particular body of evidence; and

f) the trial judge erred in admitting evidence of the appellant’s bad character.

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40. The purpose of the restriction brought about by s294A is to spare the complainant in the trial of a person accused of a prescribed sexual offence the need to answer questions directly asked of him or her by the person said to have committed the offence. The reasons and the justification for the restriction need no elaboration here, but since the section takes away or modifies rights which accused persons are ordinarily taken to possess, it should be applied in a manner no broader than is sufficient to achieve its purpose. By that standard the appointment by his Honour of the local registrar was appropriate. The registrar was by all appearances a person capable of fulfilling the function contemplated by s294A and asking the appellant’s questions.

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45. Nothing in s294A requires the appointed person to be absent while the complainant is giving evidence-in-chief, and it is not easy to see how the purpose of the section may be advanced by such a requirement. On the other hand, asking the questions in cross-examination, while perfunctory, cannot have been intended to be carried out without understanding. In MSK and MAK Wood CJ at CL, with whom I agreed, said, at [82], that the restriction on giving legal advice does not extend to the formulation of questions. One can imagine that there will be cases in which the appointed person cannot effectively and intelligently cross-examine without having heard the evidence-in-chief. Such a cross-examiner could, if the complainant appeared not to understand a question, put it into other words, aiding the complainant’s understanding and so furthering the purpose of the section and the interests of justice.

46. Equally, no reading of S294A reveals any requirement for an unrepresented accused to inform the Court of any question it is proposed to ask the complainant, let alone write out every question, the accused having read only the complainant’s statement and not having heard the evidence-in-chief.

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53. Neither, in my view, could the requirements of s293, without other compelling reason, justify disclosure of any question before the complainant had given evidence in chief.

Buddin J

262. I agree with Barr J.