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Ramesh Chand S313319

S118 LWZ115 LEGAL PROCESS

ASSIGNMENT 1 - PART A

Dietrich v The Queen 17 CLR 292

On 17 December 1986, Olaf Dietrich went through customs in Melbourne after a trip to Thailand. He was arrested the next day by the Australian Federal Police on allegation that he imported seventy grams of the drug heroin. Australian Federal Police who searched his flat and found one of the condoms in the kitchen, and some heroin in a plastic bag under a rug in another room. 1 He was taken into custody, and excreted the remaining condoms during the night at the hospital in Pentridge Prison. There was compelling evidence that Dietrich had swallowed small packets of the drug to smuggle them. Mr Dietrich claimed in court that the drugs had been planted by the Police. Dietrich was charged in County Court of Victoria on four charges relating to drug trafficking under the Customs Act 1901 (Cth). During the trial he had no legal representation. He had applied for assistance from the Legal Aid Commission of Victoria but they would not represent him unless he agreed to plead guilty to all charges. Dietrich then applied to the Supreme Court of Victoria for legal assistance but this request was also denied. He was convicted in the Victorian County Court of three out of four charges brought against him. Dietrich appealed his convictions to the Supreme Court, but the Court refused to hear his appeal. Dietrich appealed to the High Court of Australia. A majority of judges in the High Court decided that Dietrich had the right to a fair trial, and that the lack of legal representation meant that the original trial was unfair. The justices also concluded that when an accused, through no fault of their own, does not have legal representation when charged with a serious offence, a judge may order the trial be delayed (stayed) until legal representation is available.

Dietrich v Queen(1992) is an important case in Australian criminal law, and also in Australian constitutional law, since it is one of many cases in which some members of the High Court have found implied human rights in the Australian Constitution. 2 It calls into question “the equality of arms principle” which involves giving each party the reasonable possibility to present its cause, in those conditions that will not put any party in disadvantage against its opponent.”[3] The Dietrich case established the principle that a person charged with a serious criminal offence should have their trial stayed until they can obtain legal representation. 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.3 The subsection gives the court the power to adjourn the trial until the assistance has been provided. Other states have followed suit. In Australia it has been customary to force a person who cannot afford legal representation to trial undefended, even in cases of serious crime. In Dietrich v The Queen (1992), the Full Bench of the High Court of Australia, in a majority decision, signalled that this practice should cease.4 The precedent set indicates that if the trial proceeds in those circumstances without the defence counsel, and if the accused is convicted, the conviction will almost certainly be quashed. ---------------------------------------------------------------------------------------------------------------1. Dietrich v The Queen [1992] HCA 57, 177 CLR 292. 2. https://en.wikipedia.org/wiki/Dietrich_v_The_Queen . 3. Crimes Act 1958 (Vic). 4. http://www.internationallawreview.eu/fisiere/pdf/06-Elisa-Toma.pdf.

Under the common law the accused has a right to a fair trial and the trial judge is bound to ensure that an accused person receives a fair trial. The accused has an entrenched right not to be deprived of his liberty except in accordance with the principles of fundamental justice.5 “Various international instruments and express declarations of rights in other countries have attempted to define, albeit broadly, some of the attributes of a fair trial. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the ECHR") enshrines such basic minimum rights of an accused as the right to have adequate time and facilities for the preparation of his or her defence ((6) Art.6(3)(b).) and the right to the free assistance of an interpreter when required ((7) Art.6(3)(e)).6 Article 14 of the International Covenant on Civil and Political Rights ("the ICCPR"), to which instrument Australia is a party ((8) Australia signed the ICCPR on 18 December 1972 and ratified it on 13 August 1980), contains similar minimum rights, 7 as does s.11 of the Canadian Charter of Rights and Freedoms ((9) Pt 1 of the Constitution Act 1982, enacted by the Canada Act 1982 (U.K.)). Similar rights have been discerned in the "due process" clauses of the Fifth and Fourteenth Amendments to the United States Constitution.” 8 Human Rights Commission Act 1981 (Cth) stated: "Whereas it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform with the provisions of the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons and other international instruments relating to human rights and freedoms". 9 Miscarriage of justice brings the whole judicial due process and rule of law to disrepute when it is discovered later on that an innocent person had been unfairly penalised or incarcerated. It can have grave everlasting consequences to the innocent person or parties in respect to health, welfare, well-being, financials and no compensation can reverse such harm, loss, damage, pain and suffering. It can also lead to loss of public faith in the law and judicial system if too many errors keep fronting up. The very purpose of law is to protect the society and not harm the society and maintain fairness and “fair go” for everyone. It is expected that errors can occur but appellate process ensures rigorous scrutiny and elimination of as much unfairness as possible from the proceedings and trial process. Legal representation thus forms integral part of this check and balance process to ensure justice prevails. Sitting of multiple judges and use of juries is used for same purpose.

5.

https://jade.io/article/67720. 6. Article 6, The European Convention. 7. Article 14, International covenants of civil and political rights 3(b) (d). 8. 5th, 14th Amendment, United States Constitution. 9. Human Rights Commission Act 1981 (Cth).

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 480.10 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). 11 Provision of legal representation on grounds of poverty is unquestionably accepted. The notion that a trial judge (or the prosecutor) may be able to give a helping hand to the accused, so as to avoid an unfair trial, is illusory, and bound to cause problems in the course of the trial.11 As much as the integrity of the judge and or prosecutor is not questioned there is a duty for such persons to remain neutral and not sway to either side as it may give an impression of conflict of interest even though there may not be one Trial judges will be dragged into assessment of means, policy obligations, objections from accused or other significant parties to the use of personal property and assets to fund legal representation and other such issues may arise that may cause significant delay in getting on with the proceedings or maybe used as a tactic to abuse the due process. However, to grant an indefinite adjournment where there is no abuse of process of the courts is inconsistent with constitutional duty. 12 The Dietrich case may be summarised as follows. An accused has a right not to be tried unfairly. Trial courts possess the power to make appropriate orders, and where necessary, stay proceedings, in order to ensure that a person is not subject to an unfair trial. Unless there are exceptional circumstances, experience shows that the trial of an unrepresented accused on a serious charge will result in an unfair trial.

(Approx 1000 words) ---------------------------------------------------------------------------------------------------------------10. R v Lucas (1993) 78 A Crim R 480. 11. US v Robinson 718 F.Supp. 1583 (M.D. Ga 1989). 12. For the present Australian position see Judiciary Act 1903 (Cth)0 s 78; Crimes Act 1958 (Vic), s 397; Crimes Act 1900 (NSW), s 402; Criminal Code (Qld) s 616; Criminal Code (WA), s 634; Criminal Code (Tas) s 368; Criminal Law Consolidation Act t935, s 288. The right to counsel was recognised in treason in 1696. Until 1836 an accused was entitled to be represented in misdemeanours and in civil proceedings and, on a charge of felony, on questions of law only. The Trial for Felony Ac¢ 1836 (Imp) established the fight to representation in Marion to felony: see Cbowdharay-Best, ’The History of the Right to Counsel’ (1976) 40 Journal of Criminal Law 275. 13. Ibid 4.

BIBLIOGRAPHY

Dietrich v The Queen 17 CLR 292 Dietrich v The Queen[ 1992]HCA57 https://www.ruleoflaw.org.au/education/case-studies/access-justice/dietrich-vthe-queen https://en.wikipedia.org/wiki/Dietrich_v_The_Queen https://jade.io/article/67720 http://www.internationallawreview.eu/fisiere/pdf/06-Elisa-Toma.pdf http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx...