Chapter 4
Implications of the Dietrich decision
Introduction
4.1 Term of reference 8 requires the Committee to inquire into and report
on the following matter:
The implications, if any, for the Legal Aid system that arise
from the High Court Dietrich decision.
4.2 Accordingly, in this Chapter the Committee briefly examines the Dietrich
decision. It then reviews the evidence to the inquiry on the implications
of the decision for the legal aid system in Australia. Finally, it notes
some of the responses by governments to these implications.
The decision
4.3 Olaf Dietrich was charged in Victoria with four heroin-related offences.
He pleaded not guilty to the charges. He sought legal aid to defend the
matters without success from the Legal Aid Commission of Victoria, although
it offered to assist him with a guilty plea. He was subsequently unsuccessful
in obtaining legal aid from the Commonwealth Attorney-General.
4.4 As a result Dietrich was unrepresented at his trial in 1988, which
lasted some forty days. He was convicted on the first and most serious
charge, that of importing a trafficable quantity of heroin in contravention
of the Customs Act 1901 (Cth), and was sentenced to a term of seven years
imprisonment. The second and third charges were alternatives to the first,
and so no verdict was required. He was acquitted on the fourth charge,
which related to possession of heroin.
4.5 During his trial Dietrich emphasised on several occasions the difficulties
he was under in conducting his own defence, and the Crown did not later
dispute that these were real difficulties. Dietrich was refused leave
to appeal by the Victorian Court of Criminal Appeal. He then sought special
leave from the High Court to appeal to it on the ground that his trial
had miscarried because he had not been provided with legal representation.
4.6 In November 1992, a majority of the High Court, in Dietrich v The
Queen, [1] decided that where an indigent
defendant [2] is charged with a serious
criminal offence and, through no fault of his or her own, is unrepresented,
a trial judge should normally grant a stay or an adjournment if the accused
requests one. The purpose of the stay is to allow the accused the opportunity
to seek legal representation. This is the basis of what is commonly referred
to as "the Dietrich principle".
4.7 It should be noted that the Court explicitly recognised that there
is no "right" to legal representation at public expense. However,
the Court's decision was premised on the common law right that an accused
receive a fair trial and that legal representation is a component of a
fair trial for a serious criminal offence. The reasoning of the majority
is reflected in the following passage from the judgment of Mason CJ and
McHugh J:
it should be accepted that Australian law does not recognise
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. [3]
4.8 Mason CJ and McHugh J also set out the approach a trial judge should
take if faced with an unrepresented indigent accused charged with a serious
criminal offence:
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. [4]
4.9 The Dietrich principle has been widely applied in Australian courts.
In addition to its application in indictable proceedings in District and
Supreme Courts, it has been held by the South Australian Supreme Court
that there is no reason why the Dietrich principle should not apply in
a hearing of a serious criminal offence in summary proceedings before
a Magistrate. [5]
Implications of Dietrich
4.10 Most submissions and witnesses welcomed the principles enunciated
in the Dietrich decision. However, several specific concerns were raised
about its implications for the legal aid system. The Committee has identified
the following main areas of concern. These are:
- its potential to direct legal aid funding to criminal law matters
at the expense of civil and family law matters;
- its impact on the legal aid assessment criteria for determining an
applicant's means and the merits of his or her case;
- its potential to increase the incentive for an accused to defend charges
rather than plead guilty;
- the consequential impact of these points on legal aid funding; and
- the associated impacts on the administration of justice.
Directs funding to criminal law matters
4.11 Several witnesses maintained that the Dietrich principle has a significant
implication for the legal aid system in Australia because it directs more
expenditure to one specific area, that is to serious criminal law matters.
In a funding situation in which resources are limited, this in turn is
said to produce a proportionate reduction in the funding available for
other types of cases. [6] It was argued
that these other cases, including civil and family law cases, have implications
for the participants which are just as serious as the imprisonment which
may result from criminal law matters.
4.12 In the past, criminal law matters have received a significant proportion
of the legal aid funding provided through legal aid commissions. National
Legal Aid advised the Committee that over the last five years, the percentage
of criminal law matters as part of the overall case-mix of legal aid commission
work has steadily increased. National Legal Aid added:
Criminal law currently accounts for 74% of approvals, family law for
19% and civil law for 7%. Over the five year period [from December 1990
to September 1995], approvals in grants of aid for criminal law matters
have increased 9.2%, family law matters have decreased by 0.3% and civil
law matters have increased by 2.9%. [7]
4.13 The Committee was told that the Dietrich principle has been used
by accused persons in a number of complex and lengthy white collar criminal
prosecutions. [8] Mr Alan Cameron, the
Chairman of the Australian Securities Commission, noted that there have
been particular problems with certain defendants in Corporations Law prosecutions
resorting to Dietrich stays of proceedings through want of legal assistance.
Mr Cameron observed:
Major prosecutions under the Corporations Law tend to be regarded
by the Courts as the kind of cases which no one can be expected to defend
without legal assistance. Applying the Dietrich
principle, the Courts have ruled that individuals who ought to have
legal assistance to defend themselves, and do not have that assistance,
can seek a permanent stay of the proceedings against them. [9]
Impact on legal aid assessment criteria
4.14 In assessing a person's eligibility to receive legal aid, the funding
body generally applies a means test and a merits test. The former assesses
the ability of the applicant to pay or contribute to the cost of their
legal representation. The latter assesses the merits of the case the applicant
wishes to present in court and, for example leads to a denial of funding
if the prospect of the case succeeding is assessed as minimal. The use
of merits tests aims to ensure that scarce legal aid funds are directed
to the most meritorious cases.
4.15 The concern has been expressed that in two respects the Dietrich
principle does not fit into the existing assessment criteria. Firstly,
it is not altogether clear whether the criteria in the means tests are
identical with the requirements to determine "indigence" under
the Dietrich principle. Secondly, and more seriously, the Dietrich principle
does not contain any equivalent to the merits test. On this point, National
Legal Aid told the Committee:
Those LACs previously imposing a merits test on applicants are
effectively no longer able to continue this practice, particularly in
cases where a trial is stayed along Dietrich
lines, where the refusal to fund is based on merit. [10]
4.16 The Legal Services Commission of South Australia stated in its submission
to the Committee:
The Dietrich decision has, perhaps
subliminally, resulted in a watering down of the Legal Services Commission's
merits test, in that we have tended to fund indigent accused, faced
with serious charges for trial, where the merits as they are presented
to the Legal Services Commission, have been equivocal, and very borderline
in terms of satisfying the merits test. This has been done in an effort
to avoid prolonged examination of merits, protracted correspondence
and dialogue, and the wasted resource of a partial or full Dietrich
hearing, in cases where it is quite clear that the discretion of the
Director would subsequently have to be invoked to approve funding for
trial. [11]
Increased incentive to plead not guilty
4.17 The Committee was told that the Dietrich principle may provide an
incentive for indigent people accused of serious crime to defend charges
rather than to plead guilty. For example, National Legal Aid states:
While there are still incentives for people to plead guilty,
for example, sentence indication for early pleas in NSW, more accused
persons may be likely to defend charges, rather than pleading guilty,
knowing that the Courts will virtually insist on Legal Aid being made
available. This would result in an increased cost to LACs... [12]
Increased pressure on funding
4.18 The Committee received submissions and heard evidence that the Dietrich
principle is likely to significantly increase pressure on legal aid commission
budgets and more generally, the costs to the criminal justice system.
[13]
4.19 The Committee received conflicting evidence on the actual effect
so far of the Dietrich principle on legal aid budgets. For example, the
Legal Services Commission of South Australia estimated in its submission
to the Committee's inquiry that as of May 1996, Dietrich's case has caused
it to fund approximately $250,000 worth of matters that it would have
not funded according to its guidelines and to expend approximately $150,000
in administration costs. [14] The Legal
Aid Commission of Tasmania similarly observed that the "Dietrich
decision has resulted in more cases being funded for trial than might
have been the case." [15]
4.20 On the other hand, the submission from the Victorian Government
stated "the initial concerns expressed by some people about Dietrich
and the operation of s. 360A and their effect on the legal aid budget
have, so far, not come to pass". [16]
The submission from Victoria Legal Aid noted:
Although there was concern that this provision [section 360A
of the Crimes Act 1958] would have
a significant impact on the Legal Aid Fund which Victoria Legal Aid
could not predict or control, that has not in fact proven to be the
case (so far). There have been less than 25 orders made under this section.
Almost all of them have been made for trials of two weeks or less duration
where VLA had been prepared to grant assistance for a plea in any event
(but not a contest).
4.21 The implications of the Dietrich principle for legal aid
were succinctly summarised by the Chief Justice of the Supreme Court of
Western Australia, the Hon David Malcolm AC, when he appeared before the
Committee. He told the Committee:
It would seem to me that resort to the Dietrich
principle is likely to become much more frequent as a result of the
cutbacks in legal aid, unless there is some compensating source of funding
which is made available to meet the Commonwealth cutbacks. Let me explain
it in this way: the Legal Aid Commission in Western Australia had put
a $20,000 cap on funding of criminal trials. I understand that is being
reduced to $10,000. That is going to mean that any trial which will
last more than a few days is going to become the subject of a Dietrich
application. There are many of those trials, so inevitably there will
be an increase in Dietrich applications.
There is also a risk that it will simply become a delaying tactic which
will be adopted by people. They are perfectly entitled to make the application.
There will have to be a hearing about whether they are indigent or not.
[18]
4.22 The Commonwealth Attorney-General's Department noted:
If governments are concerned to ensure that prosecutions proceed
and are not frustrated by Dietrich
applications it is up to them to provide ways for legal assistance to
be granted without adversely affecting LAC's budgets. This occurs in
Western Australia, where, if the LAC is not prepared to grant aid and
a Dietrich application is successful,
the State Government provides special funds for representation which
are administered by the LAC but do not come from the LAC's budget. [19]
Associated impacts on the administration of justice
4.23 The Committee's terms of reference relate to the implications of
the Dietrich decision for legal aid. In this section it briefly notes
some of the other implications of the decision that were identified in
the evidence it received.
4.24 In the event that legal representation is not available from any
quarter, the initially temporary Dietrich stay has the potential to act
as quasi permanent stay of the criminal prosecution. The Committee heard
evidence that this might have an adverse impact on the credibility of
the justice system.
4.25 The New South Wales Director of Public Prosecutions, Mr Nicholas
Cowdery QC, stated in his submission to the Committee's inquiry that if
there is no legal aid for indigent accused charged with serious criminal
offences:
People who have committed serious crimes, including murder and
rape - perhaps dangerous people - will have to be released (at least
on bail) and the community will be at risk from their reoffending. Victims
of their crimes will live in fear. [20]
4.26 The Victorian Government observed that where legal aid pursuant
to the Dietrich principle is not available at the time of trial, the trial
may have to be adjourned. It then commented:
Delays to trials and summary hearings undermines the credibility
of the legal system. Where witnesses and defendants find themselves
the subject of repeated systemic delay, the "trust" they feel
in the system may be severely eroded. Such delays, and in particular
permanent stays of proceedings based on the decision in Dietrich
v R, also reduce community confidence in the ability
of the system to deal with serious crime. [21]
Living with the Dietrich principle
4.27 The thrust of the evidence received by the Committee was to support
the Dietrich principle. Many witnesses praised the decision as an important
procedural safeguard for accused persons and considered the principle
for which the case stands a desirable one. [22]
The Queensland Bar Association, for example, observed that the Dietrich
decision recognises the fundamental significance of legal representation
in a democratic society:
There can be no argument with the concept that citizens (no matter
how heinous the allegation against them) whose liberty is at issue are
deserving of legal representation. In cases where such citizens do not
have sufficient means to arrange their own representation it is a fundamental
obligation of our society to provide it from the public purse. To contend
otherwise would be to deny the free and democratic basis upon which
our society operates. [23]
4.28 A number of witnesses also praised the Dietrich decision because
it complements Australia's international human rights obligations. [24]
4.29 The majority of the evidence to the Committee favoured an approach
that sought to overcome the consequential problems it may have raised,
rather than seeking simply to overturn the High Court decision. However,
the Committee was told that the options for overcoming the consequential
problems raised by Dietrich were very limited. [25]
The Committee notes that attempts to overcome the consequential problems
have involved:
- legislation by Victoria;
- consideration by the Standing Committee of Attorneys-General; and
- revised procedures by the legal aid commissions.
Legislation by Victoria
4.30 In 1993, Victoria legislated in response to the Dietrich decision.
It is the only jurisdiction to have done so, although the Committee was
told that the South Australian Government has also been considering legislation.
[26]
4.31 As a result, subsection 360A(2) of the Crimes Act 1958 (Vic) gives
the court the power to direct Victoria Legal Aid to provide assistance
to an indigent accused person, on any conditions specified by the court,
if the court is satisfied that this is necessary to ensure a fair trial.
The subsection gives the court the power to adjourn the trial until the
assistance has been provided. Subsection 360A(1) states:
Subject to sub-section (2) and despite any rule of law to the
contrary ... the fact that an accused has been refused legal assistance
in respect of a trial is not a ground for an adjournment or stay of
the trial.
4.32 The effect of the legislation is that the judge directs that legal
aid shall be provided as a condition of allowing the trial to proceed,
thus bypassing the assessment that would otherwise be done by the legal
aid authorities. Without the legislation, the judge before whom the Dietrich
application was made out could only issue a stay order. It would then
be up to the legal aid authorities to assess if legal aid would be granted,
and this assessment might involve duplication of the work done by the
judge in arriving at the decision to apply the Dietrich principle. The
stay order would remain in effect until such time, if ever, as the legal
aid authorities decided to grant the aid.
4.33 As noted above, the initial concerns held by some that the Victorian
scheme would have unacceptable effects on the legal aid budget have not
so far been realised.
Consideration by the Standing Committee of Attorneys-General
4.34 Issues arising from the Dietrich principle have been considered
by the Standing Committee of Attorneys-General (SCAG) since February 1993.
The Committee requested information from the Commonwealth Attorney-General's
Department concerning the progress of SCAG's handling of the issues.
4.35 On 5 March 1997, the Department replied that the Dietrich matter:
was on the SCAG agenda in 1993. A Working Party reported to Ministers
in June 1993 resulting in model legislation being prepared for consideration
by SCAG in late 1993. No consensus was reached and no State nor Territory
has made the changes recommended in 1993. These were that legal aid
commissions' means tests be used to determine indigence and that commissions
be allowed to be reimbursed from an accused's assets restrained under
proceeds of crime legislation.
The Dietrich issue was relisted
on the agenda for SCAG in July 1995 at the request of the Commonwealth
following expressions of concern about the issue from several commissions'
Directors. Further draft model legislation has been prepared for consideration
by all jurisdictions. The Commonwealth is awaiting comments on the draft
legislation. No jurisdiction has yet commented, despite the legislation
having been put to SCAG at its July 1996 meeting. [27]
Revised procedures by the legal aid commissions
4.36 In some States, such as Western Australia, the procedure for handling
Dietrich applications has become relatively settled. In Western Australia,
it has been the practice of the State government to make funds available
for an indigent person's defence after a successful Dietrich application.
The person's legal representation will then be arranged by the Western
Australian Legal Aid Commission as agent for the State government. Up
to January 1997, there had been eleven cases stayed under the Dietrich
principle. [28]
4.37 In other States, the State Attorneys-General have also, on occasion,
intervened and made funds available to allow prosecutions to proceed.
In NSW, the problem caused by lack of legal aid has been exacerbated by
the policy of the Legal Aid Commission of NSW not to fund retrials and
there have been a number of celebrated cases where there has been uncertainty
over whether legal assistance would be available and whether the retrial
would proceed. [29]
Conclusion and Recommendation Nos: 4 and 5
The Committee notes the evidence suggesting that the impact of the Dietrich
principle will be severe for the budgets of the providers of legal aid.
It also notes that this impact has not yet eventuated, and may not do
so. It appeared to the Committee that precise information on the impact
is not available.
The Committee recommends that the Commonwealth should ensure that
the impact of the Dietrich principle on the legal aid system is
monitored.
The Committee further recommends that the Attorney-General take
up in the Standing Committee of Attorneys-General the need for it to complete
its consideration of the impact of the Dietrich principle as a
matter of priority.
Footnotes
[1] (1992) 177 CLR 292. Mason CJ, Deane, Toohey,
Gaudron and McHugh JJ in the majority. Brennan and Dawson JJ in the minority.
[2] According to Black's Law Dictionary
(Fifth Edition, West Publishing Company, 1979) the term “'indigent
defendant” means a "person indicted or complained of who is
without funds or ability to hire a lawyer to defend him". This interpretation
was confirmed in a recent South Australian decision R v Lucas (1993)
78 A Crim R 480. There is also a developed jurisprudence concerning indigence
in the United States, see for example, US v Robinson 718
F.Supp. 1583 (M.D. Ga 1989).
[3] Dietrich v The Queen (1992) 177 CLR
292, p. 311.
[4] Dietrich v The Queen (1992) 177 CLR
292, p. 315.
[5] Weinel v Fedchelshen (1995) 65 SASR
156.
[6] See, for example, Submission No. 108,
Australian Law Reform Commission, p. 1551; Submission No. 88, National
Legal Aid, p. 1090E; Evidence, Victorian Government, p. 395.
[7] National Legal Aid, 'Meeting Tomorrow's
Needs with Yesterday's Budgets: The Undercapacity of Legal Aid in Australia',
paper appended to Submission No. 88, National Legal Aid, p. 1096.
[8] Submission No. 127, Commonwealth
Attorney-General's Department, p. 1831; Submission No. 23,
Australian Securities Commission, p. 202.
[9] Submission No. 23, Australian Security
Commission, p. 204.
[10] Submission No. 88, National Legal
Aid, p. 1090E.
[11] Submission No. 44, Legal Services
Commission of South Australia, p. 411.
[12] Submission No. 88, National Legal
Aid, p. 1090E.
[13] For example, Submission No. 52,
Law Society of South Australia, p. 489; Submission No. 113, ACT
Attorney-General's Department, p. 1496; Submission No. 104, Combined
Community Legal Centres Group, p. 1496, Submission No. 149, Victorian
Government, p. 2172.
[14] Submission No. 44, Legal Services
Commission of South Australia, p. 411.
[15] Submission No. 43, Legal Aid Commission
of Tasmania, p. 383.
[16] Submission No. 149, Victorian Government,
p. 2172.
[17] Submission No. 35, Victoria Legal
Aid, p. 293.
[18] Evidence, Chief Justice of the
Supreme Court of Western Australia, pp. 1208-09. See also Submission
No. 155, NSW Director of Public Prosecutions, p. 2458.
[19] Submission No. 127, Commonwealth
Attorney-General's Department, p. 1822.
[20] Submission No. 155, Director of
Public Prosecutions NSW, p. 2457.
[21] Submission N. 149, Victorian Government,
p. 2172.
[22] See, for example, Submission No. 125,
Commonwealth Director of Public Prosecutions, p. 1728; Submission No.
132, Human Rights and Equal Opportunity Commission, p. 1973, Submission
No. 90, National Association of Community Legal Centres, p. 1186.
[23] Submission No. 102, Bar Association
of Queensland, p. 1435.
[24] The Committee notes however that Australia's
international obligations may extend beyond the provision of legal aid
to indigent defendants charged with serious offences, in particular to
trials involving children and to some civil matters. Furthermore, the
international obligations may extend beyond the right to a fair trial
to legal representation at public expense. See Chapter 3 above. See also,
for example, Submission No. 120, Victorian Council for Civil Liberties,
p. 1681.
[25] Submission No. 47, Justice Research
Centre, p. 449.
[26] Answers to Questions on Notice, Commonwealth
Attorney-General's Department, 5 March 1997, p. 3.
[27] Answers to Questions on Notice, Commonwealth
Attorney-General's Department, 5 March 1997, p. 3.
[28] Submission No. 150, Legal Aid Western
Australia, p. 20.
[29] See for example: 'Why a suspected drug
baron may not face court', Sydney Morning Herald, 5 February 1997.