Dietrich V The Queen - (1992) HCA 57

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Dietrich v the Queen - [1992] HCA 57
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HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ
DIETRICH v. THE QUEEN

(1992) 177 CLR 292
13 November 1992
Criminal Law—Trial—Fair Trial—Legal Representation—Whether right to counsel at public expense—Power

to adjourn or stay trial where indigent accused unrepresented—Crimes Act 1958 (Vict.),s. 397.
Decisions
Following paragraph cited by:
Evans v The Queen (13 December 2007) (Gummow, Kirby, Hayne, Heydon and Crennan JJ)
because of the very high value accorded by our law to the fair trial of a person accused of a
criminal offence[113] and the normal assumption that every person facing such an
accusation will have a legally accurate and fair
KRIJNEN v Conti (06 June 2003) (Barker J)

is well established that the right of an accused person to receive a fair trial according to law
is a fundamental element of our criminal justice system: Dietrich v The Queen (1992) 177
CLR 292 at 297 per Mason CJ and McHugh J
Carter v Managing Partner, Northmore Hale Davy and Leake (14 June 1995) (Brennan(1), Deane
(2), Toohey(3), Gaudron(4) and McHugh(5) JJ)
Dietrich v The Queen (1992) 177 CLR 292 at 298
The Queen (1992) 177 CLR 292 at 298
MASON C.J. AND McHUGH J. 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.
3. The applicant was found guilty by a jury of one count of importing into Australia not less than a
trafficable quantity of heroin in contravention of s. 233B(1)(b) of the Customs Act 1901 (Cth) . The
indictment on which the applicant was presented contained three further counts: two counts, which
alleged possession of the heroin the subject of the importation charge, were alternatives to the more
serious charge and were not considered once a verdict of guilty had been returned on the importation
charge; the third additional count alleged possession of a quantity of heroin which was not the subject
of the importation offence, and the applicant was found not guilty on this count. The applicant had
pleaded not guilty to all counts.
4. The trial before Judge Nixon in the County Court lasted approximately forty days, from presentment
of the applicant on 23 May 1988 to the return of the jury's verdicts on 29 July 1988. Throughout the entire
course of the trial, the applicant was unrepresented. Prior to trial, he had applied unsuccessfully to the
Legal Aid Commission of Victoria for legal assistance and had also been unsuccessful in seeking
reconsideration of the Commission's refusal pursuant to the review procedures available under Pt VI of
the Legal Aid Commission Act 1978 (Vict.). The Commission's view was that assistance would only be
provided for representation for a plea of guilty, this being an approach which the applicant would not
consider. Immediately prior to trial, the applicant had also made an application pursuant to s. 69(3) of
the Judiciary Act 1903 (Cth) to have counsel appointed. That sub-section provides:
Marwan v Director of Public Prosecutions (18 July 2019) (Leeming JA at [1]; R A

Hulme J at [78]; Adamson J at [79])
and Dietrich at 299)
R v M, RS (11 May 2018) (The Honourable Justice Peek, The Honourable Justice
Nicholson and The Honourable Justice Hinton)
[27] In R v Macfarlane
Lee v New South Wales Crime Commission (09 October 2013) (French CJ, Hayne,
Crennan, Kiefel, Bell, Gageler and Keane JJ)
the right of a person charged with a criminal offence to a fair trial, "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"[590]
X7 v Australian Crime Commission (26 June 2013) (French CJ, Hayne, Crennan,
Kiefel and Bell JJ)
immunity against conviction otherwise than after a fair trial, for no person
can enforce a right to be tried by the state, "it is convenient, and not unduly
misleading, to refer to an accused's positive right to a fair trial"[67]
Victoria Police Toll Enforcement v Taha (04 March 2013) (Nettle, Tate and Osborn
JJA)
[233] As Isaacs J said in R v McFarlane
R v Lodhi (04 April 2006)

as a "fundamental element" or a "fundamental prescript": Dietrich v The
Queen (1992) 177 CLR 292 at 299, 326
Beamish v The Queen (01 April 2005) (Steytler J, Wheeler J, McLure J)

Easterday v The Queen (28 March 2003) (Scott J, Steytler J, Roberts-Smith J)

Azzopardi v the Queen (03 May 2001) (Gleeson CJ,Gaudron, McHugh, Gummow,
Kirby, Hayne and Callinan JJ)
In Dietrich v The Queen[188], Mason CJ and I pointed out that "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
Attorney-General (NSW) v X (02 August 2000)

Dietrich v The Queen (1992) 177 CLR 292 at 299)
R v NRC (19 November 1999) (Winneke, P., Charles and Chernov, JJ.A.)
Dietrich v. The Queen (1992) 177 C.L.R. 292, at 299, 326, 353 and 362
Crutch v The Queen (30 September 1999) (Ipp J, Wallwork J, Parker J)
Dietrich v The Queen (1992) 177 CLR 299Johns v R, unreported

: In personRespondent : Mr K M TavenerSolicitors: Applicant : In
personRespondent : State Director of Public ProsecutionsCase(s) referred to
in judgment(s): Dietrich v The Queen (1992) 177 CLR 299Johns v R, unreported

10 The applicant also seeks to raise that he has been refused legal aid to
conduct his appeal and he asked that this Court assign him counsel, relying
on the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 299
R v O'Neill (04 August 1995)

(1992) 177 C.L.R. 292, Mason C.J. and McHugh J. accepted at p. 299 that "[t]he
right of an accused to receive a fair trial according to law is a fundamental
element of our criminal justice system", but said at pp. 310-311:
"Any person committed for trial for an offence against the laws of the Commonwealth may
at any time within fourteen days after committal and before the jury is sworn apply to a
Justice in Chambers or to a Judge of the Supreme Court of a State for the appointment of
counsel for his defence. If it be found to the satisfaction of the Justice or Judge that such
person is without adequate means to provide defence for himself, and that it is desirable in
the interests of justice that such an appointment should be made, the Justice or Judge shall
certify this to the Attorney-General, who may if he thinks fit thereupon cause arrangements
to be made for the defence of the accused person or refer the matter to such legal aid
authorities as the Attorney-General considers appropriate. Upon committal the person
committed shall be supplied with a copy of this subsection."
On 20 May 1988 in the Supreme Court of Victoria, Gobbo J. dismissed this application on the ground
that it had been brought out of time, the applicant having been committed for trial on 10 August 1987.
An application for legal assistance directed to the Commonwealth Minister for Justice and the Attorney-
General for the Commonwealth was also unsuccessful.
5. At the commencement of his trial, the applicant had therefore exhausted all avenues for legal
assistance. Nevertheless, one of the grounds of his application to the Court of Criminal Appeal for leave
to appeal against conviction was that every indigent accused charged with an indictable offence is
entitled to counsel provided at the expense of the State and that the failure of the trial judge to appoint
counsel for the applicant was a miscarriage of justice requiring that the conviction be quashed. The
Court of Criminal Appeal (O'Bryan, Gray and Vincent JJ.) refused leave.
6. It is from the order refusing leave that the applicant now seeks special leave to appeal to this Court.
The sole ground of the application is that the applicant's trial miscarried by virtue of the fact that he was
not provided with legal representation. Right to a fair trial
Nguyen v The Queen (30 June 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and
Edelman JJ)
It has been said that the concept of a fair trial cannot comprehensively or exhaustively be
defined[46]
Baker (a Pseudonym) v Director of Public Prosecutions (22 March 2017) (Maxwell P, Tate and
Beach JJA)
Smith v The Queen (05 August 2015) (French CJ, Kiefel, Bell, Gageler and Gordon JJ)
As stated by Mason CJ and McHugh J in Dietrich v The Queen[24]:
Lee v New South Wales Crime Commission (09 October 2013) (French CJ, Hayne, Crennan,
Kiefel, Bell, Gageler and Keane JJ)
, it is understandable that there has been no judicial attempt to list, exhaustively, the
attributes of a fair trial[381]
and the Queen v Matwali Chaouk , Attorney-General for the State of Victoria , the Victorian
Equal Opportunity and Human Rights Commission , the Criminal Bar Association , the Law
Institute of Victoria and Victoria... (02 May 2013) (Nettle AP, Buchanan and Osborn JJA)
21 In considering the attributes of a fair trial, their Honours noted:[13]
Victoria Police Toll Enforcement v Taha (04 March 2013) (Nettle, Tate and Osborn JJA)
there is no single exhaustive set of the aspects of a trial which will make it fair:[236]
Nudd v The Queen (09 March 2006) (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon
JJ)
Legal representation, in other words, contemplates effective assistance, not simply having a
person present in court in an advocate's garb[48]
R v Forbes (04 November 2005) (Spigelman CJ at 1; McClellan CJ at CL at 149; Hall J at 150)

” ( Dietrich v The Queen (1992) 177 CLR 292 at 300 per Mason CJ and McHugh J, see also
Toohey J at 353
TKWJ v The Queen (10 October 2002) (Gleeson CJ,Gaudron, McHugh, Gummow and Hayne JJ)
In Dietrich v The Queen[4], Mason CJ and McHugh J said:
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) 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) 141 CLR 54 ; Reg. v. Sang (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) 147 CLR 75, at pp 95-96 ; Williams v. Spautz (1992) 66 ALJR 585; 107
ALR 635.).
8. There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in
the ordinary course of the criminal appellate process, an appellate court is generally called upon to
determine, as here, whether something that was done or said in the course of the trial, or less usually
before trial ((5) Reg. v. Glennon (1992) 173 CLR 592 .), resulted in the accused being deprived of a fair trial
and led to a miscarriage of justice. However, 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)). 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, 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. The argument of the applicant
WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (18 February 2004)
(French, Lee and Hill JJ)
legally represented before a Court, although as the judgment of Mason CJ and McHugh J in
Dietrich v The Queen (1992) 177 CLR 292 at 301 observes, this rule, which dated back to a
time beyond legal memory had been relaxed
9. The primary argument of the applicant relies in part on the explications of the right to a fair trial in
the instruments to which we have referred. The argument is that, at least in any indictable matter to be
tried before a judge with or without a jury that may result in imprisonment upon conviction, the
interests of justice require that an indigent accused who wishes to have legal representation be provided
with such representation at public expense. The central proposition in this submission is that the
absence of representation for an accused who cannot afford to engage counsel necessarily means that
the trial is unfair and that any conviction should be quashed.
10. In the course of argument, counsel for the applicant proposed a less absolute form of this
proposition. He submitted that, as an incident of a court's duty to ensure that an accused receives a fair
trial, a trial judge has a discretion to stay or adjourn the trial of an unrepresented accused and that, in
the absence of exceptional circumstances, this discretion should be exercised in favour of the accused.
This contention was proposed in the context of an alternative submission that the trial judge erred in
refusing the applicant's application for an adjournment of his trial for the purpose of trying to secure
representation.
11. It is little more than one hundred and fifty years since legislation was enacted to provide that all
accused persons be permitted to be represented by counsel. Prior to the passage of The Trials for Felony
Act 1836 (Imp) ((10) 6 and 7 Wm IV c.114) ("the 1836 Act"), "(a)n Act for enabling Persons indicted of Felony
to make their Defence by Counsel or Attorney", the common law of England did not recognize the right
of a person charged with a felony to be defended by counsel. This prohibition, which appears to date
back beyond the limits of legal memory to the Leges Henrici Primi ((11) Chowdharay-Best, "The History
of Right to Counsel", (1976) 40 Journal of Criminal Law 275, at p 275.), had been substantially relaxed
prior to the enactment of the 1836 Act. The principal reform effected by the 1836 Act was that it enabled
all persons tried for felonies "after the close of the case for the prosecution, to make full answer and
defence thereto, by counsel learned in the law" ((12) s.1); it was already common practice for counsel for
the defence to be permitted to stand by the accused at the bar and to cross-examine witnesses on his or
her behalf ((13) Blackstone, Commentaries, 1st ed. (1769), vol.4, pp 349-350). It has been observed that,
despite its significance as a landmark in the history of the right to counsel, the passage of the 1836 Act
did not effect as great a change as that made by The Treason Act 1695 (Imp) ((14) 7 and 8 Wm III c.3),
which extended the right to the assistance of counsel to persons accused of high treason ((15)
Holdsworth, A History of English Law, vol.9, 3rd ed. (1944), p 235.).
Day v Woolworths Group Limited (12 March 2021) (Mullins JA and Henry and Williams JJ)
fact she was self-represented carried the dual disadvantages, identified by Mason J and
McHugh J in Dietrich v The Queen,[36] that she did not have the legal knowledge and skill
or the capacity for dispassionate assessment
Russell v Wisewould Mahony Lawyers (16 May 2018) (McLeish, Niall and Hargrave JJA)
MS v The Queen (27 October 2017) (Macfarlan JA at [1]; Beech-Jones J at [71]; Wilson J at [73])
However, a person who takes this course, either by choice or of necessity, faces significant
disadvantages, as described by Mason CJ and McHugh J in Dietrich v The Queen (1992) 177
CLR 292 at 302; [1992] HCA 57:
R v Gee (26 July 2012) (The Honourable Justice Gray, The Honourable Justice Sulan and The
Honourable Justice Peek)
where Mason CJ and McHugh J made the following observations:[9]
Burnett v Director of Public Prosecutions (01 November 2007) (Martin (BR) CJ, Mildren and
Southwood JJ)
[(1992) 177 CLR 292 at 302], Mason CJ and McHugh J repeated the extrajudicial opinion of
Lord Devlin that, save in the exceptional case of the skilled litigant, in practice the
adversarial system breaks down where there is no
R v Hoang (07 June 2007) (Maxwell P, Eames and Neave JJA)

Mansfield v Director of Public Prosecutions (WA) (20 July 2006) (Gleeson CJ, Gummow, Kirby,
Hayne, Heydon and Crennan JJ)
In Dietrich v The Queen[61], Mason CJ and McHugh J repeated the extrajudicial opinion of
Lord Devlin that, save in the exceptional case of the skilled litigant, in practice the
adversarial system breaks down where there is no
R v Phung (01 December 1999) (Brooking, Charles and Buchanan, JJ.A.)

See Dietrich v. R. (1992) 177 C.L.R. 292 at 302 per Mason, C
12. The advantages of representation by counsel are even more clear today than they were in the
nineteenth century. It is in the best interests not only of the accused but also of the administration of
justice that an accused be so represented, particularly when the offence charged is serious ((16) McInnis
v. The Queen (1979) 143 CLR 575, per Barwick C.J. at p 579 ; see also Galos Hired v. The King (1944) AC 149,
at p 155 and Foster v. The Queen (1982) 38 ALR 599, at p 600 .). Lord Devlin stressed the importance of
representation by counsel when he wrote ((17) The Judge, (1979), p 67):
"Indeed, where there is no legal representation, and save in the exceptional case of the
skilled litigant, the adversary system, whether or not it remains in theory, in practice breaks
down."
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) 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 ). As Sutherland J. stated in Powell v. Alabama, when
delivering the judgment of the United States Supreme Court ((21) (1932) 287 US, at p 61 ):
"But how can a judge, whose functions are purely judicial, effectively discharge the
obligations of counsel for the accused? He can and should see to it that in the proceedings
before the court the accused shall be dealt with justly and fairly. He cannot investigate the
facts, advise and direct the defense, or participate in those necessary conferences between
counsel and accused which sometimes partake of the inviolable character of the
confessional."
13. However, the right to retain counsel and the right to have counsel provided at the expense of the
State, the existence of which the applicant asserts, are not the same thing ((22) Reg. v. Rowbotham (1988)
41 CCC (3d) 1, at pp 65-66 ). Standing in the path of the applicant's argument are certain statements in the
judgments in McInnis v. The Queen to the effect that the common law does not recognize the right of an
accused to be provided with counsel at public expense. Barwick C.J. stated ((23) (1979) 143 CLR, at p 579 ):
"It is proper to observe that an accused does not have a right to be provided with counsel at
public expense. He has, of course, a right to be represented by counsel at his own or
someone else's expense."
Mason J. stated ((24) ibid., at p 581):
"Although I am in agreement with what the Privy Council said in the case of Galos Hired v.
The King ((25) (1944) AC, at p 155 ), concerning 'The importance of persons accused of a
serious crime having the advantage of counsel to assist them before the courts', an accused
in Australia does not have a right to present his case by counsel provided at public
expense."
On the other hand, Murphy J., in his dissenting judgment, stated ((26) (1979) 143 CLR, at p 592 .):
"If a person on a serious charge, who desires legal assistance but is unable to afford it, is
refused legal aid, a judge should not force him to undergo trial without counsel. If
necessary, the trial should be postponed until legal assistance is provided".
14. It is important to appreciate that these statements in McInnis were made in the absence of any
argument directed to the existence of a right to be provided with counsel. The issue in McInnis was
whether, on the particular facts of the case, there had been a miscarriage of justice by virtue of the trial
judge's refusal of an adjournment sought by the unrepresented accused. That issue was resolved in the
negative but, in our opinion, the actual decision in the case did not depend upon an acceptance of the
proposition, after consideration of argument, that an indigent accused does not have a right to be
provided with counsel at public expense and, therefore, the applicant need not seek to convince this
Court that the decision should be reconsidered. The most that can be said against the applicant is that
McInnis assumed the correctness of that proposition. In these circumstances, there is no strong reason
why the Court should not reconsider the statements made in that case.
15. The applicant relies upon three suggested sources for the alleged right for which he contends. The
first is s.397 of the Crimes Act 1958 (Vict.) and related provisions in other jurisdictions ((27) Judiciary Act
1903 (Cth), s. 78 ; Crimes Act 1900 (N.S.W.), s.402; Criminal Law Consolidation Act 1935 (S.A.), s.288; The
Criminal Code (Q.), s. 616 ; The Criminal Code (W.A.), s.634; Criminal Code (Tas.), s.368; Criminal Code
(N.T.), s.360.). Section 397 provides:
"Every accused person shall be admitted after the close of the case for the prosecution to
make full answer and defence thereto by counsel."
As soon as one appreciates that this provision is simply the descendant of the section in the 1836 Act,
quoted above, it becomes obvious that this branch of the applicant's argument cannot succeed. The
section enshrines the right of an accused person to have the assistance of counsel in defending himself
or herself at a criminal trial. The meaning of the phrase "to make full answer and defence thereto by
counsel" has received scant attention in Australia. In Ibrahim, in the context of a submission similar to
the present submission of the applicant, the Victorian Court of Criminal Appeal declined to consider
the question whether the right in s.397 should be held to comprehend a right to have counsel appointed
by the court ((28) (1987) 27 A Crim R 460, at pp 462-463 ).
16. The Canadian courts have had occasion to consider the same phrase as it appears in s.577(3) of the
Criminal Code. The applicant in this case places reliance on the Canadian cases of Reg. v. Johnson ((29)
(1973) 11 CCC (2d) 101), Re Ewing and Kearney and The Queen ((30) (1974) 49 DLR (3d) 619 ) and Barrette
v. The Queen ((31) (1976) 68 DLR (3d) 260 ) which all considered the relevant statutory provision. These
decisions reject the proposition that the legislative right comprehends a right to have counsel appointed
by the court; the most that can be extracted from these cases is that an accused should not be forced, by
exercise of the judge's discretion, to go to trial unrepresented for reasons that are not well founded in
law ((32) Johnson (1973) 11 CCC (2d), at pp 105-106; Barrette (1976) 68 DLR (3d), at p 264 ). Accordingly, in
so far as the applicant's argument relies on s.397 of the Crimes Act, it cannot succeed in the absence of
compelling, additional reasons for interpreting it in the suggested manner.
17. The second suggested source of the right for which the applicant contends is to be found in
Australia's international obligations, particularly as embodied in the ICCPR to which Australia is a
party. Article 14(3) of the ICCPR provides:
Sanderson v Bank of Queensland Limited (31 May 2016) (Morrison and Philip
McMurdo JJA and Burns J,)
[14] Their Honours noted the view expressed by Kirby P in
Gramotnev v Queensland University of Technology (10 July 2015) (Margaret
McMurdo P and Holmes JA and Jackson J,)
CPCF v Minister for Immigration and Border Protection (28 January 2015) (French
CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ)
unless those provisions have been validly incorporated into our municipal
law by an Act of the Commonwealth Parliament[345]
Tajjour v New South Wales (08 October 2014) (French CJ, Hayne, Crennan, Kiefel,
Bell, Gageler and Keane JJ)
The provisions of an international treaty to which Australia is a party do not
form part of Australian law unless those provisions have been validly
incorporated into Australian municipal law[146]
Povey v Qantas Airways Ltd (23 June 2005) (Gleeson CJ, McHugh, Gummow, Kirby,
Hayne, Callinan and Heydon JJ)
can create no rights in Australian domestic law without there being legislation
giving effect to those rights, the source of the right which the appellant seeks
to enforce must be found in the Carriers' Liability Act[12]
Povey v Qantas Airways Ltd (23 June 2005) (Gleeson CJ, McHugh, Gummow, Kirby,
Australia's entry into an international agreement does not itself create rights
or liabilities or impose duties enforceable under the domestic law of this
country[48]
Ribot-Cabrera v The Queen (18 May 2004) (Steytler J, EM Heenan J, LE Miere J)

because a treaty, in part or in whole, was included in the schedule to an Act
did not incorporate the treaty into municipal law - Dietrich v The Queen
(1992) 177 CLR 292 at 305, 321 and 361 and that it is plainly the case that
Western Australia v Ward (08 August 2002) (Gleeson CJ,Gaudron, McHugh,

Gummow, Kirby, Hayne and Callinan JJ)
It has repeatedly been held that the separation of the legislative and executive
arms of government necessitates that treaties be implemented domestically
under statute[1051]
Minister for Immigration and Ethnic Affairs v Teoh (07 April 1995) (Mason CJ,
Deane, Toohey, Gaudron and McHugh JJ)
The Queen (1992) 177 CLR 292 at 305
Minister for Immigration and Ethnic Affairs v Teoh (07 April 1995) (Mason CJ,
Deane, Toohey, Gaudron and McHugh JJ)
The Queen (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J, 359-360 per
Toohey J
"In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality: ...
(d) To be tried in his presence, and to defend himself in person or through legal assistance
of his own choosing; to be informed, if he does not have legal assistance, of this right; and to
have legal assistance assigned to him, in any case where the interests of justice so require,
and without payment by him in any such case if he does not have sufficient means to pay
for it".
Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and
obligations contained in the ICCPR are not incorporated into Australian law unless and until specific
legislation is passed implementing the provisions ((33) Bradley v. The Commonwealth (1973) 128 CLR 557,
at p 582 ; Simsek v. MacPhee (1982) 148 CLR 636, at pp 641-644 ; Kioa v. West (1985) 159 CLR 550, at pp 570-
571 .). No such legislation has been passed. This position is not altered by Australia's accession to the
First Optional Protocol to the ICCPR, effective as of 25 December 1991, by which Australia recognizes
the competence of the Human Rights Committee of the United Nations to receive and consider
communications from individuals subject to Australia's jurisdiction who claim to be victims of a
violation by Australia of their covenanted rights. On one view, it may seem curious that the Executive
Government has seen fit to expose Australia to the potential censure of the Human Rights Committee
without endeavouring to ensure that the rights enshrined in the ICCPR are incorporated into domestic
law, but such an approach is clearly permissible.
Sanderson v Bank of Queensland Limited (31 May 2016) (Morrison and Philip McMurdo JJA and
Burns J,)
[16] But they held that there was no uncertainty or ambiguity in domestic law in any
relevant respect
AMS v AIF (17 June 1999) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan
JJ)
also affected the rights of other members of the child's family, it was permissible to have
recourse to applicable principles of international law for the purpose of determining how
the statutory powers should be exercised[200]
Re East; Ex parte Nguyen (03 December 1998) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby,
Hayne and Callinan JJ)
and in the development of the common law[69]
18. Although counsel for the applicant accepted that the ICCPR does not form part of domestic law, he
submitted that the common law of Australia should be developed in a way which recognizes the
existence and enforceability of rights provided for in international instruments to which Australia is a
party. In particular, the applicant points to the enactment of the Human Rights and Equal Opportunity
Commission Act 1986 (Cth) . This Act has scheduled to it the ICCPR, as well as other international legal
instruments dealing with human rights, and assigns to the Commission it creates the function, inter alia,
of inquiring into and reporting on any act or practice that may be inconsistent with or contrary to
human rights as declared in the scheduled instruments ((34) s.11(1)(f)). The evident intention that the
establishment of an Australian Human Rights and Equal Opportunity Commission would be one part
of an overall programme to incorporate international human rights obligations into domestic law was
made more explicit in the preamble to the former Human Rights Commission Act 1981 (Cth) which
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".
19. In Jago v. Judges of the District Court of N.S.W. ((35) (1988) 12 NSWLR 558, at p 569 ) Kirby P
expressed the view that, where the inherited common law is uncertain, Australian judges may look to an
international treaty which Australia has ratified as an aid to the explication and development of the
common law. As a suggested example of this approach, the applicant points to the status accorded to the
ECHR in English law. In common with the status of the ICCPR in Australian law, the ECHR is not part
of English domestic law and thus rights contained in the ECHR cannot be enforced directly in English
courts; furthermore, if domestic legislation conflicted with the ECHR, English courts would
nevertheless be required to enforce the legislation. However, it is "well settled" ((36) Reg. v. Home
Secretary; Ex parte Brind (1991) 1 AC 696, per Lord Bridge of Harwich at pp 747-748 ) that, in construing
domestic legislation which is ambiguous, English courts will presume that Parliament intended to
legislate in accordance with its international obligations. English courts may also have resort to
international obligations in order to help resolve uncertainty or ambiguity in judge-made law ((37)
Derbyshire County Council v. Times Newspapers Ltd. (1992) 3 WLR 28, per Balcombe L.J. at p 44 ).
20. Assuming, without deciding, that Australian courts should adopt a similar, common-sense approach,
this nevertheless does not assist the applicant in this case where we are being asked not to resolve
uncertainty or ambiguity in domestic law but to declare that a right which has hitherto never been
recognized should now be taken to exist. Moreover, this branch of the applicant's argument assumes
that Art.14(3)(d) of the ICCPR supports the absolute right for which he contends. An analysis of the
views of the Human Rights Committee on communications submitted to it relating to Art.14(3)(d)
reveals little more than that the Committee considers that legal assistance must always be made
available in capital cases ((38) Pinto v. Trinidad and Tobago, CCPR/C/39/D/232/1987). However, the
European Court of Human Rights has approached the almost identical provision in the ECHR by
emphasizing the importance of the particular facts of the case to any interpretation of the phrase "when
the interests of justice so require" ((39) Monnell and Morris v. United Kingdom (1987) 10 EHRR 205, at p 2
25 ; Granger v. United Kingdom (1990) 12 EHRR 469, at pp 480-482 ). As will become clear, that approach
is similar to the approach which, in our opinion, the Australian common law must now take.
21. The third suggested foundation for the absolute right draws upon analogies with the domestic law of
other jurisdictions, in particular, Canada and the United States. These analogies do not support the
applicant's argument. The current law in the United States is that an accused cannot be sentenced, upon
conviction, to a term of imprisonment unless the State has afforded him or her the right to the
assistance of counsel ((40) Scott v. Illinois (1979) 440 US 367 , retreating from the decision in Argersinger
v. Hamlin (1972) 407 US 25 that the State must provide counsel, even in misdemeanour cases, whenever
imprisonment is an authorized penalty.). However, the development of this right in decisions of the
United States Supreme Court is based on the constitutional guarantee of the right to counsel expressed
in the Sixth Amendment to the United States Constitution and its incorporation within the right of "due
process" enshrined in the Fourteenth Amendment. These constitutional guarantees have no direct
parallel in Australian law. The applicant argued that the requirements of "due process" must be
observed in Victorian courts by virtue of the statute 42 Edw.III c.3, passed in 1368, which remains in
force in Victoria pursuant to s.3 of the Imperial Acts Application Act 1980 (Vict.). The Imperial Act
provides that "no man be put to answer without presentment before justices, or matter of record, or by
due process ... And if any thing from henceforth be done to the contrary, it shall be void in the law". As it
appears in that provision, the expression "due process" can hardly be the "compendious expression for
all those rights ... basic to our free society" ((41) Wolf v. Colorado (1949) 338 US 25, at p 27 ) that it is in the
United States Constitution. As Priestley J.A observed in Adler v. District Court of N.S.W. ((42) (1990) 19
NSWLR 317, at p 351 ), the Imperial legislation was simply designed to ensure that only in common law
courts should persons be tried for crimes and only by recognized procedures.
22. In Canada, there are a number of cases in which it has been argued that provisions of the Charter of
Rights and Freedoms, particularly ss.7, 10(b) and 11(d), enshrine a right to counsel at public expense. The
right has, however, never been accepted in the absolute form proposed; rather, the issue whether
counsel should be appointed by the court for an accused who is unable to afford representation has
been approached as one aspect of the accused's right to a fair trial ((43) See also the approach of the
British Columbia Court of Appeal in a case based upon a less explicit provision in the Canadian Bill of
Rights 1960: Re Ewing and Kearney and The Queen (1974) 49 DLR (3d), at pp 628-629 .).
23. In Deutsch v. Law Society of Upper Canada Legal Aid Fund ((44) (1985) 48 CR (3d) 166) the accused
brought two applications for judicial review of the refusal of legal aid in respect of criminal charges he
was facing. Sitting as the Ontario Divisional Court, Craig J. concluded that the Charter did not entrench
any right to publicly funded counsel. He stated ((45) ibid., at pp 173-174):
"In conclusion as to this issue, 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. Here the
accused faces possible imprisonment. Pursuant to s.7 of the Charter, the accused has an
entrenched right not to be deprived of his liberty except in accordance with the principles
of fundamental justice. Also, pursuant to s.11(d), he has an entrenched right to a 'fair and
public hearing'. The right to fundamental justice and a fair and public hearing includes the
right to a fair trial. There may be rare cases where legal aid is denied to an accused person
facing trial, but, where the trial judge is satisfied that, because of the seriousness and
complexity of the case, the accused cannot receive a fair trial without counsel, in such a case
it seems to follow that there is an entrenched right to funded counsel under the Charter."
24. In Reg. v. Rowbotham, a number of accused were tried on an indictment containing four counts of
conspiracy either to import or traffic in hashish. The trial lasted twelve months. Two of the accused had
been refused legal aid and both proceeded to trial without counsel. On appeal to the Ontario Court of
Appeal, one of the two unrepresented accused argued that she had the constitutional right to be
provided with counsel because she lacked the means to employ counsel. The Court unanimously
rejected the existence of an absolute right ((46) (1988) 41 CCC (3d), at pp 65-66 ):
"The right to retain counsel, constitutionally secured by s.10(b) of the Charter, and the right
to have counsel provided at the expense of the state are not the same thing. The Charter doe
s not in terms constitutionalize the right of an indigent accused to be provided with funded
counsel. At the advent of the Charter, legal aid systems were in force in the provinces,
possessing the administrative machinery and trained personnel for determining whether
an applicant for legal assistance lacked the means to pay counsel. In our opinion, those who
framed the Charter did not expressly constitutionalize the right of an indigent accused to be
provided with counsel, because they considered that, generally speaking, the provincial
legal aid systems were adequate to provide counsel for persons charged with serious crimes
who lacked the means to employ counsel. However, in cases not falling within provincial
legal aid plans, ss.7 and 11(d) of the Charter, which guarantee an accused a fair trial in
accordance with the principles of fundamental justice, require funded counsel to be
provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the
accused by counsel is essential to a fair trial."
As the last clause of this statement makes clear, the accused has a right to a fair trial and representation
by counsel must be considered not on its own but as one relevant element of the broader right. The
Court in Rowbotham concluded that, on the particular facts of the accused's case, she was not able to
receive a fair trial without representation by counsel.
25. It therefore appears clear that the Charter does not entrench a general right to counsel at public
expense irrespective of the circumstances of the particular case. Where an accused has been denied
legal aid, the trial judge may direct the appointment of counsel if satisfied that the accused is
impecunious and that the nature of the case is such that the accused cannot receive a fair trial without
representation ((47) MacFarlane, "The Right to Counsel at Trial and on Appeal", (1990) 32 Criminal Law
Quarterly 440, at p 463.). The right to counsel, so called, is inextricably linked to the facts of the case.
Accordingly, the Canadian authorities provide no support for the applicant's primary argument.
Nudd v The Queen (09 March 2006) (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon
JJ)
need to have legal representation, particularly in criminal trials, is the special difficulty
faced by accused persons standing trial, to represent themselves without a qualified lawyer
who can provide "effective assistance"[44]
R v Gudgeon (17 November 1995)

said (177 C.L.R. 292, 310) that recognition of such a right would create problems of its own
26. Despite the absence in Australia of any formally entrenched declaration of rights similar to the
Canadian Charter, the approach of Australian courts resembles the Canadian approach in rejecting the
proposition that an indigent accused has an absolute right to the provision of counsel at public expense.
As well as the statements of this Court in McInnis, several decisions of the South Australian Supreme
Court support the view that there is no absolute right to counsel provided at public expense. In Reg. v.
Hanias ((48) (1976) 14 SASR 137) the Full Court of the Supreme Court held that a trial judge was not
required in all circumstances to assign counsel to an accused who desired but could not afford
representation. As Bray C.J. observed ((49) ibid., at p 142 ), "(m)any circumstances have to be taken into
account." The Full Court in the subsequent case of Reg. v. Bicanin ((50) (1976) 15 SASR 20, at p 25 )
expressed this idea more fully:
"3. There is no rule of law or practice in this State that every accused person should be
represented if he so desires - e.g. by means of an order by the trial Judge under the Poor
Persons Legal Assistance Act, 1925-1972.
4. Even in circumstances where the lack of representation at the trial weighs with a court of
criminal appeal it is not that the lack of representation in such a case itself constituted a
ground of appeal, but that the lack of representation - and particularly the circumstances
under which the accused person had been unrepresented, including his efforts to obtain
representation and/or an adjournment or remand for the purpose - may form part of a
composite set of factors leading to the conclusion that there was an overall miscarriage of
justice."
27. In addition, recognition of an absolute right to counsel provided at public expense would create its
own problems. First, the court would logically be driven to decide whether such a right to counsel
entails the right to the "effective assistance" of counsel, as it is called in the United States ((51) See Cuyler
v. Sullivan (1980) 446 US 335 ; Evitts v. Lucey (1985) 469 US 387 ). That is, if an accused has a right to
counsel, does he or she have a right to demand counsel of a particular degree of experience and who can
conduct the defence "effectively"? How could such a right be monitored properly by the trial judge?
28. Secondly, if one of the conditions for appointment of counsel for the accused at public expense is the
impecuniosity of the accused, will it be the responsibility of the trial judge to assess this? Clearly, if
proper guidelines were formulated and all the relevant material put before a trial judge, it would be
possible for him or her to decide the matter, but the ad hoc development of such a procedure is unwise
and undesirable.
Kahil v The Queen (30 March 2020) (Harrison J at [1]; Adamson J at [5]; Button J at [29])
The approach to be taken was laid down in Dietrich v The Queen (1992) 177 CLR 292; [1992]
HCA 57 by Mason CJ and McHugh J at 311:
Croke v R (10 February 2020) (Adamson J; Beech-Jones J; Ierace J)

Thus, in Dietrich Mason CJ and McHugh J stated (at 311):
Marwan v Director of Public Prosecutions (18 July 2019) (Leeming JA at [1]; R A Hulme J at [78];
Adamson J at [79])
, using language drawn from Dietrich v The Queen (1992) 177 CLR 292 at 311; [1992] HCA 57
Attorney-General for the State of Queensland v Wands (25 June 2019) (Sofronoff P and Morrison
JA and Davis J)
Even having regard to his “background” as a solicitor, such a trial is likely to be unfair if he
is forced on unrepresented (Dietrich at p 311)
R v Davy (19 December 2017) (Fraser and McMurdo JJA and Boddice J)
R v Davy (19 December 2017) (Fraser and McMurdo JJA and Boddice J)
Ralton & Ralton (07 September 2017) (Bryant CJ, Strickland and Aldridge JJ)
Further, the mother had no right to legal representation (Dietrich v The Queen (1992) 177
CLR 292 at 297 – 298 and 311
Achanfuo-Yeboah v The Queen (23 December 2016) (Refshauge ACJ)

see Dietrich v The Queen at 311 per Mason CJ and McHugh J, at 330 per Deane J, and at 354-
5 per Toohey J
Burns J,)
[19] The prevalent view in
Burns J,)
was as stated in this passage from the judgment of Mason CJ and McHugh J:[20]
Slaveski v Smith (29 February 2012) (Warren CJ, Nettle and Redlich JJA)
R v Huston; R v Fox; R v Henke (06 December 2011) (Muir and Chesterman JJA, and Margaret
Wilson AJA, Judgment of the Court)
In Dietrich v The Queen[63] Mason CJ and McHugh J said:
SM v The Queen (22 September 2011) (Redlich and Mandie JJA and Whelan AJA)
likelihood[26] or threat
Gajic v Harb (06 May 2011) (Tate JA and Macaulay AJA)

R v East (06 June 2008) (Keane JA, Fryberg and Lyons JJ,)
Gassy v The Queen (14 May 2008) (Gummow, Kirby, Hayne, Crennan and Kiefel JJ)
Mason CJ and McHugh J acknowledged that a lack of representation may mean that an
accused is unable to receive a fair trial, but that such a finding depended upon the
circumstances of the particular case[107]
Burnett v Director of Public Prosecutions (01 November 2007) (Martin (BR) CJ, Mildren and
Southwood JJ)
Dietrich v The Queen (supra) at 297-298, 302-303, 311, 330, 342 and 364-365

that the trial of an unrepresented accused for a serious offence should only proceed in
exceptional cases,[4] applied only where the accused is unrepresented “through no fault of
his own”

El Hajje v Chief Executive Officer of Customs (17 December 2003) (Phillips, Batt and Buchanan,
JJ.A.)
acknowledged in Dietrich v. R.[2] in the context of a criminal trial, whether an adjournment
is to be granted to an unrepresented accused to enable him to obtain representation calls
for the exercise of a discretion having regard
R v White (13 November 2003) (Charles, Chernov and Eames, JJ.A.)

An accused has a right not to be tried unfairly[1]
R v Osborne (03 October 2002) (Phillips, C.J., Chernov and Vincent, JJ.A.)
See, for example, Dietrich v. The Queen[11] and Bollen
Eastman v The Queen (25 May 2000) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby, Hayne
and Callinan JJ)
These involve the very integrity of the trial (and subsequently of the appellate) process[307]

See Dietrich v. The Queen (1992) 177 C.L.R. 292, 311 (Mason C
Ridgeway v the Queen (19 April 1995) (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron
and McHugh JJ)
The Queen (1992) 177 CLR 292 at 311, 332
New South Wales v Canellis (26 October 1994) (Mason CJ, Brennan, Dawson, Toohey, and
McHugh JJ)
The Queen (1992) 177 CLR 292 at 311
29. Thirdly, recognition of the right to counsel provided at public expense would necessarily entail, and
indeed be founded upon, the principle that absence of representation necessarily means that a criminal
trial is unfair. However, appellate courts in this country do not interfere with convictions entered at trial
purely on the basis that there was unfairness to the accused in the conduct of the trial ((52) cf. McInnis
(1979) 143 CLR, per Murphy J. at p 591). The appellate jurisdiction in criminal matters depends upon a
conclusion that there was a "miscarriage of justice" ((53) e.g., Crimes Act 1958 (Vict.), s.568(1)) such that
the applicant "has thereby lost 'a chance which was fairly open to him of being acquitted' ((54) Mraz v.
The Queen (1955) 93 CLR 493, per Fullagar J. at p 514 ) ... or 'a real chance of acquittal' ((55) Reg. v. Storey (1
978) 140 CLR 364, per Barwick C.J. at p 376 )", to repeat the expression used by Brennan, Dawson and
Toohey JJ. in Wilde v. The Queen ((56) (1988) 164 CLR 365, at pp 371-372 ). Unless the recognition of the
absolute right sought by the applicant entails the consequence that want of representation necessarily
means that a trial has miscarried, the absolute right would lack an adequate sanction. The right would
thus appear to be rather hollow. The position in Australia
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.
Pyrenees Shire Council v Day (23 January 1998) (Brennan CJ,Toohey, McHugh, Gummow and
Kirby JJ)
of resource allocation and diversion, and budgetary imperatives should fall for
consideration along with other factual matters to be "balanced out"[210] when determining
what should have been done to discharge a duty of care
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. While, in some
jurisdictions, judges once had the power to direct the appointment of counsel for indigent accused ((57)
e.g., Poor Persons Legal Assistance Act 1925 (S.A.), s.3), this power has been largely overtaken by the
development of comprehensive legal aid schemes in all States and, as such, trial judges now cannot be
asked to appoint counsel in order that a trial can proceed ((58) Apart, of course, from the related
procedure under the Judiciary Act, s. 69(3)) . However, even in those cases where the accused has been
refused legal assistance and has unsuccessfully exercised his or her rights to review of that refusal, it is
possible, perhaps probable, that the decision of a Legal Aid Commission would be reconsidered if a trial
judge ordered that the trial be adjourned or stayed pending representation being found for the accused.
In the absence of more extensive factual, statistical and economic material than was furnished by the
parties, it is difficult for this Court to assess the full practical implications which will flow from the
procedure of adjourning a criminal trial, on such occasions as may be necessary, to enable an
unrepresented indigent person accused of a serious offence to be represented by counsel at public
expense.
32. In this respect, we should point out that, after this matter initially came before a bench of three
Justices, the applicant, pursuant to a direction given by the Registrar, gave notice to the Commonwealth
and the States of the issues to be argued, in particular that the applicant would be asserting that an
indigent accused had a right to have counsel appointed at public expense in serious indictable matters.
Notwithstanding this notice, only the Attorney-General for the Commonwealth and the Attorney-
General for the State of South Australia intervened. But no argument was put to the Court that
recognition of such a right for the provision of counsel at public expense would impose an
unsustainable financial burden on government. In these circumstances, we should proceed on the
footing that, if a trial judge were to grant an adjournment to an unrepresented accused on the ground
that the accused's trial is likely to be unfair without representation, that approach is not likely to impose
a substantial financial burden on government and it may require no more than a re-ordering of the
priorities according to which legal aid funds are presently allocated. Did the applicant's trial miscarry?
33. The alternative argument of the applicant was that the trial judge erred in the exercise of his
discretion in refusing an application by the applicant for an adjournment. This argument was not
developed fully in submissions, principally because the applicant's case was founded upon the existence
of the alleged absolute right. However, it is clear that the issue is before the Court in the alternative
form.
34. In approaching this argument, the question before this Court is not merely whether or not an
adjournment should have been granted but whether the applicant's conviction should be set aside "on
the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of
justice", provided that the conviction will stand if "no substantial miscarriage of justice has actually
occurred" ((59) Crimes Act, s.568(1); McInnis (1979) 143 CLR, per Mason J. at pp 581-582).
35. The Crown case against the applicant was as follows. On the night of 17 December 1986, the applicant
arrived at Melbourne Airport from Bangkok and imported into Australia a quantity of heroin which was
packaged in condoms concealed in his body. Members of the Australian Federal Police followed the
applicant from the airport to his flat in Hotham Street, East St Kilda. The next morning, the applicant
drove from his flat and was arrested some distance away by police. The police returned the accused to
his flat and, pursuant to a lawful warrant, conducted a search. Under a rug in the study they found a
quantity of heroin in a plastic bag, which became the subject of count four on the indictment, and in a
kitchen bin they found a condom containing 3.7 grams of heroin, which became the subject of count
one. The applicant was then charged and transferred to an isolation ward in the hospital at Her
Majesty's Prison, Pentridge. He remained in that ward until the following morning when condoms
containing 66.4 grams of heroin, which the applicant had allegedly passed during the night, were
discovered in the ward. This heroin also became the subject of count one.
36. The Crown relied on evidence of Australian Federal Police officers involved in the surveillance,
arrest and search procedures, as well as evidence of prison officers, hospital staff and police officers
present while the applicant was in hospital. The applicant denied the importation and alleged that the
heroin discovered in his flat and in the hospital ward was placed there by police officers or other
unnamed persons.
Cook v The Queen (16 April 2019) (Priest and Beach JJA)
The latter was described as having been "emotionally and psychologically overwhelmed" by
the prospect of proceeding to trial unrepresented (177 C.L.R. 292, 314)
37. As stated earlier, the applicant was unrepresented at all stages of his lengthy trial. It is difficult to
gain an accurate impression of the course of the trial from the mere 150 pages, culled from a transcript
exceeding 3,000 pages, that have been placed before this Court, but certain important features emerge.
The applicant did not wish to go to trial unrepresented. Failing appointment of counsel by the trial
judge, who had no power to make such an appointment, the applicant sought leave to be assisted by
what is called a "McKenzie friend" after the procedure confirmed in McKenzie v. McKenzie ((60) (1971) P
33 ). That application was refused. There was also a serious question prior to trial as to the applicant's
fitness to plead. On several occasions, the applicant appeared to be emotionally and psychologically
overwhelmed, whether genuinely or not, by the prospect of proceeding to trial unrepresented. A clinical
psychologist called by the applicant testified that the applicant was an excitable, volatile person who
would have great difficulty withstanding the rigours of a trial, although it appears that the opinion of a
psychiatrist, who did not give evidence, was that the applicant was fit to plead. From the material before
this Court, it appears that the undue length of the trial may well have been occasioned by the applicant's
irregular outbursts of volatile behaviour.
38. In this context, and before the trial proper commenced, the applicant made an informal application
for an adjournment. As the following exchange shows, this was peremptorily refused:
"HIS HONOUR: I want you to understand this, Mr. Dietrich - if you will listen to me - that I
have no power to give you legal representation.
ACCUSED: You have the power to adjourn the matter, sir. HIS HONOUR: I don't propose
to adjourn the matter. The matter is an alleged offence, which occurred the year before last,
and it is desirable that the matter proceed to trial.
ACCUSED: Desire by whose side? HIS HONOUR: Desirable to the community.

ACCUSED: The community has got no interest in it. If the community is aware that they're
putting people in front of court without representation, the community would be aghast.
HIS HONOUR: Yes. Well, I don't propose to engage in this type of matter; this debate can
get us nowhere."
On numerous occasions, the trial judge reiterated his lack of power to appoint counsel to represent the
applicant, but on no other occasion did he appear to give any consideration to exercising his discretion
to adjourn the matter on the ground that there was a real likelihood that the applicant would not
receive a fair trial. In fact, the trial judge did not seem to be aware of the discretionary power he
enjoyed; rather than just failing to take into account some material consideration or giving undue
weight to one or another factor, his Honour virtually overlooked the possibility of adjourning the matter
on the basis suggested. The trial judge erred in this respect.
Croke v R (10 February 2020) (Adamson J; Beech-Jones J; Ierace J)

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” (Dietrich at 315)
F v Minister for Education and Child Development (26 June 2017) (The Honourable Justice
Vanstone, The Honourable Justice Peek and The Honourable Justice Blue)
[7] The foundation of the principle recognised in
Potier v R (03 June 2015) (Ward JA at [1]; Simpson J at [597]; Wilson J at [598])
His Honour considered that, by his actions qua his Counsel and his solicitor, Mr Potier had
placed himself well outside the range of the considerations referred to in Dietrich v The
Queen [1992] HCA 57; (1992) 177 CLR 292 at 315
Absent circumstances of the kind described in Dietrich,[33] a judge should be hesitant to
conclude that a lack of legal representation will preclude the court from reaching a just
decision
[4] Mr Long argued that the appellant placed himself outside the scope of the principle in
Philopos v R (01 April 2008) (McClellan CJ at CL at 1; James J at 82; Barr J at 83)
In Dietrich Mason CJ and McHugh J said at 315:

[5] In this case the applicant was unrepresented because he had refused to provide financial
information to Victoria Legal Aid, so that he did not lack representation “through no fault of
his own”
Wong v the Queen (15 November 2001) (Gleeson CJ,Gaudron, Gummow, Kirby, Hayne and
Callinan JJ)
That this is so, can be seen in many instances where this Court has, in the context of a
particular case, propounded broad principles[214] or condoned judicial guidelines as
compatible with law
Victoria Legal Aid v Beljajev (05 October 1998) (Winneke P, Callaway JA and Vincent AJA)
in Dietrich’s case where their Honours said ((1992) 177 C.L.R. 292 at 315):
Craig v South Australia (24 October 1995) (Brennan, Deane, Toohey, Gaudron and McHugh JJ)
2 See (1992) 177 CLR 292 at 315
Craig v South Australia (24 October 1995) (Brennan, Deane, Toohey, Gaudron and McHugh JJ)
37 (1992) 177 CLR 292 at 315
39. In our view, the trial judge's failure to adjourn the trial resulted in an unfair trial and deprived the
applicant of a real chance of acquittal. Central to this conclusion is the not guilty verdict returned by the
jury on count four. The evidence against the applicant appears strong on all counts but, in
circumstances where the jury found him not guilty on one count, how can this Court conclude that,
even with the benefit of counsel, the applicant did not have any prospect of acquittal on count one, of
which he was then deprived by being forced to trial unrepresented ((61) cf. McInnis (1979) 143 CLR, per
Mason J. at p 583)? It is impossible to know the basis on which the jury found for the applicant on count
four; the possibility exists that the jury found credible the alternative explanation of events given by the
applicant which involved allegations of impropriety by the police. Judging by the question asked of the
trial judge by the jury foreman during deliberations, the jury may also have doubted whether the first
count could be made out against the applicant in relation to the heroin found in the hospital ward. If
such doubts were present in the jury's mind, how can it be said that competent counsel appearing on
behalf of the applicant may not have found further weaknesses in the prosecution case? On the material
before this Court, it appears that the applicant's defence was so disorganized and haphazard as to lack
cogency. In these circumstances, the conclusion that the applicant may have lost a real chance of
acquittal is compelling.
40. 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.
41. In the result, we would grant special leave to appeal, allow the appeal, set aside the conviction and
order a new trial.
BRENNAN J. The applicant, having insufficient resources of his own to fund legal representation for
himself at his trial and having apparently exhausted the possibility of obtaining legal aid, had to stand
his trial unrepresented. He applied for an adjournment of the trial and the adjournment was refused. He
was convicted of importing into Australia a trafficable quantity of heroin. He appealed unsuccessfully to
the Court of Criminal Appeal of Victoria on the ground, inter alia, that it was contrary to the unwritten
Constitution of the State of Victoria and to the "due process" provisions of (1368) 42 Edw.III c.3 (applied
in Victoria by Div.3 of Pt II of the Imperial Acts Application Act 1980 (Vict.)) for the trial judge not to
appoint counsel to conduct the applicant's defence. It was submitted "that every person charged with an
indictable offence in (Victoria) is entitled to counsel provided at the expense of the State". He seeks
special leave to appeal to this Court. The only grounds advanced in support of the application were that
the "Court of Criminal Appeal erred in law -
(i) in holding that the Applicant did not have a right to be provided with Counsel at public
expense; and/or
(ii) in not holding that by reason of the Applicant being unrepresented, a miscarriage of
justice had occurred in the circumstances of this case and of the Applicant."
I agree with the reasons of Dawson J. for holding that these grounds of appeal find no support either in
the provisions of (1368) 42 Edw.III c.3 or in the common law of this country as hitherto understood. The
Constitution of Victoria, written and unwritten, adds nothing to the applicant's case. There remains the
question whether this Court can and should now hold that, by the common law of this country, the trial
of a person charged with a serious offence will miscarry if he, unable to afford to retain counsel himself,
is not provided with counsel at public expense.
2. It cannot be doubted that a criminal trial is most fairly conducted when both prosecution and defence
are represented by competent counsel ((62) As each of Barwick C.J., Mason and Murphy JJ. so forcefully
acknowledged in McInnis v. The Queen (1979) 143 CLR 575 : see pp 579, 582, 586-588, 590). 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.
3. The common law has never recognized such a rule. Indeed, in England a person accused of felony
had no right to be represented by counsel at his trial ((65) Stephen, A History of the Criminal Law of
England, (1883), vol.1, pp 424-425) until 1836 when, for the first time, such an accused was given the right
to be represented by counsel ((66) 6 and 7 Wm IV, c.114, s.1). In this country, no common law entitlement
to legal aid has been recognized. In this respect, our constitutional law differs from the constitutional
law of some of the great common law countries which, by incorporating a Bill of Rights in their
Constitutions, have empowered their Courts to construe broadly expressed guarantees of individual
rights to include a right to counsel. Having no comparable constitutional foundation, the Courts of this
country cannot translate the rights declared by the Courts of those other countries into the municipal
law of Australia.
4. In this country, a Court might declare an individual legal right bearing some resemblance to a right
conferred by a constitutional Bill of Rights. But such an individual legal right is distinguishable from a
right conferred by a constitutionally entrenched Bill of Rights, for it is either (i) an immunity resulting
from a limitation on legislative power imposed otherwise than by reference to the scope of the right
itself, or (ii) a right amenable to abrogation by competent legislative authority. The only legal sources
from which such "rights" may emerge are the text of the Constitution of the Commonwealth and other
organic laws governing our legal system ((67) The Commonwealth of Australia Constitution Act 1900,
the Statute of Westminster Adoption Act 1942 (Cth) , the Australia Act 1986 (Cth) and entrenched
clauses of the Constitutions of the several States.), statutes and the common law. Rights can be declared
upon a construction of the Constitution ((68) As in Australian Communist Party v. The Commonwealth (
1951) 83 CLR 1 ; Street v. Queensland Bar Association (1989) 168 CLR 461 ; Nationwide News Pty. Ltd. v.
Wills (1992) 108 ALR 681 .) or other organic laws, upon a construction of a statute ((69) As in Re Bolton;
Ex parte Beane (1987) 162 CLR 514 and Ainsworth v. Criminal Justice Commission (1992) 66 ALJR 271; 106
ALR 11.), or by judicial development of the rules of the common law. In the present case, there is no
constitutional or statutory provision which supports the applicant's case. To hold that the trial of the
applicant miscarried solely on the ground that the trial proceeded when he was unrepresented, it is
necessary to hold that an accused person is entitled under the common law to have legal representation
provided at the expense of the State in a trial for a serious offence if the accused person does not have
the funds to secure that representation for himself. It is not suggested that such an entitlement is
directly enforceable by, for example, a mandatory order. But, as Dixon C.J. said in Reg. v. The
Commonwealth Court of Conciliation and Arbitration; Ex parte Ellis ((70) (1954) 90 CLR 55, at p 64 .) in
reference to an entitlement to be represented, "every right or title must be enforced or administered in
some forum". An entitlement to legal aid is said to be enforceable by the court before which the trial of
an unrepresented accused person is listed. The entitlement is said to be enforceable by an order, made
upon application by the accused person, to adjourn the trial until counsel is provided - indefinitely, if
counsel is not provided. Whether it be said that there is a "right" to be provided with counsel or whether
it be said that the court is bound to adjourn in the circumstances stated, the only ground advanced for
allowing the appeal is that the common law should now accept that an entitlement to legal aid is
essential to a fair trial.
5. I do not doubt that the Courts of this country, and especially this Court as the ultimate court of
appeal, acting within their respective jurisdictions and in response to the exigencies of particular cases, c
reate new rules of the common law. The common law has been created by the Courts and the genius of
the common law system consists in the ability of the Courts to mould the law to correspond with the
contemporary values of society. Had the Courts not kept the common law in serviceable condition
throughout the centuries of its development, its rules would now be regarded as remnants of history
which had escaped the shipwreck of time ((71) Adaptation from Francis Bacon, The Advancement of
Learning, (1605), Bk 2, fol.10b.). In modern times, the function of the Courts in developing the common
law has been freely acknowledged ((72) See, for example, Myers v. Director of Public Prosecutions (1965)
AC1001, per Lord Reid at p 1021 ; Mutual Life and Citizens' Assurance Co. Ltd. v. Evatt (1968) 122 CLR 556,
per Barwick C.J. at p 563 ; Geelong Harbour Trust Commissioners v. Gibbs Bright and Co. (1974) AC 810,
per Lord Diplock at pp 820-821 .). The reluctance of the Courts in earlier times to acknowledge that
function was due in part to the theory that it was the exclusive function of the Legislature to keep the
law in a serviceable state. But Legislatures have disappointed the theorists and the Courts have been left
with a substantial part of the responsibility for keeping the law in a serviceable state, a function which
calls for consideration of the contemporary values of the community. Where a common law rule
requires some expansion or modification in order to operate more fairly or efficiently, this Court will
modify the rule provided no injustice is done thereby ((73) As in L Shaddock and Associates Pty. Ltd. v.
Parramatta City Council (No.1) (1981) 150 CLR 225 , or Hawkins v. Clayton (1988) 164 CLR 539 or David
Securities Pty. Ltd. v. Commonwealth Bank of Australia (unreported, 7 October 1992).). And, in those
exceptional cases where a rule of the common law produces a manifest injustice, this Court will change
the rule so as to avoid perpetuating the injustice ((74) As in Mabo v. Queensland (1992) 66 ALJR 408; 107
ALR 1.).
Commonwealth Bank of Australia v Barker (10 September 2014) (French CJ, Kiefel, Bell, Gageler
and Keane JJ)
As Brennan J said in Dietrich v The Queen[40]:
Northern Sandblasting Pty Ltd v Harris (14 August 1997) (Brennan CJ, Dawson, Toohey,
Gaudron, McHugh, Gummow and Kirby JJ)
cf Dietrich v The Queen (1992) 177 CLR 292 at 320 per Brennan J (dissenting) citing Lord
Devlin, The Judge (1979) at 12
6. The contemporary values which justify judicial development of the law are not the transient notions
which emerge in reaction to a particular event or which are inspired by a publicity campaign conducted
by an interest group. They are the relatively permanent values of the Australian community. Even if the
perception of contemporary values is coloured by the opinions of individual judges, judicial experience
in the practical application of legal principles and the coincidence of judicial opinions in appellate
courts provide some assurance that those values are correctly perceived. The responsibility for keeping
the common law consonant with contemporary values does not mean that the Courts have a general
power to mould society and its institutions according to judicial perceptions of what is conducive to the
attainment of those values. Although the Courts have a broad charter, there are limits imposed by the
constitutional distribution of powers among the three branches of government and there are limits
imposed by the authority of precedent not only on courts bound by the decisions of courts above them
in the hierarchy but also on the superior courts which are bound to maintain the authority and
predictability of the common law. Most significantly, there are limits inherent in the very technique by
which the Courts develop the common law - a subject considered below.
NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (10
March 2021) (Farrell, Wigney and Perry JJ)
, the common law of procedural fairness, and “customary international law, which has been
adopted or incorporated into the common law of Australia” citing relevantly Dietrich at 321
(Brennan J) and
Tajjour v New South Wales (08 October 2014) (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler
and Keane JJ)
might be engaged[274]
Uittenbosch v Department of Corrective Services (19 August 2005) (McPherson JA, Atkinson and
Mullins JJ,)
Such international instruments have, as Brennan J (as his Honour then was) observed in
Dietrich v The Queen,[15] a legitimate influence on the development of the common law
R v Stringer (10 August 2000) (Grove J at 1; Adams J at 28; Smart AJ at 120)

CJ and McHugh JJ, Brennan J, who said that Art 14(3)(d) of the International Covenant On
Civil and Political Rights “is a legitimate influence on the development of the common law”,
and Toohey J at 177 CLR at 306, 321, 360
Kartinyeri v The Commonwealth (01 April 1998) (Brennan CJ,Gaudron, McHugh, Gummow,
Kirby and Hayne JJ)
Where there is ambiguity in the common law or a statute, it is legitimate to have regard to
international law[304]
R v Davidson (20 December 1996) (Macrossan CJ. Fitzgerald P. Pincus JA.)

Minister for Immigration and Ethnic Affairs v Teoh (07 April 1995) (Mason CJ, Deane, Toohey,
Gaudron and McHugh JJ)
The Queen (1992) 177 CLR at 321 per Brennan J, 360 per Toohey J
7. Changes in the common law are not made whenever a judge thinks a change desirable. There must be
constraints on the exercise of the power, else the Courts would cross "the Rubicon that divides the
judicial and the legislative powers" (to adopt Lord Devlin's phrase in his memorable paper "The Judge as
Lawmaker" ((75) The Fourth Chorley Lecture, 1975, in The Judge, (1979), p 12.)). In courts of first instance
and in intermediate courts of appeal, the constraints are usually found in precedents by which those
courts are bound. In ultimate courts of appeal, the chief constraints are found in the traditional methods
of judicial reasoning which ensure that judicial developments ((76) "A constant process of innovation
and amelioration" to use Lord Wright's phrase: "The Study of Law", (1938) 54 Law Quarterly Review 185,
at p 188.) remain consonant not only with contemporary values but also with what I described in Mabo
v. Queensland ((77) (1992) 66 ALJR, at p 416; 107 ALR, at p 18.) as "the skeleton of principle which gives the
body of our law its shape and internal consistency". The law must be kept in logical order and form, for
an aspect of justice is consistency in decisions affecting like cases and discrimination between unlike
cases on bases that can be logically explained. The greater the authority accorded to precedent by an
ultimate court of appeal, the slower the pace of change. In such a court, there is room for difference in
opinion as to the appropriate rate and subject-matter of change. The principles of the law must be
adequate to resolve disputes arising in contemporary society but, as Lord Wright said, the ideal of
justice "can only be realized in the concrete, and within such limits as the practical conduct of disputes
in Courts of law permits" ((78) op cit, at p 188 .). In practical terms, the Courts are aware that rejection or
discounting of the authority of precedent not only disturbs the law established by a particular precedent
but infuses some uncertainty into the general body of the common law. The tension between legal
development and legal certainty is continuous and it has to be resolved from case to case by a prudence
derived from experience and governed by judicial methods of reasoning.
8. In this case, the legitimacy and the scope of the judicial function of changing the common law call for
consideration. There is no common law entitlement to legal aid. Should there be? How can such an
entitlement be enforced? Who is to pay for it? The issues to be considered go beyond the question of an
entitlement to legal aid; they touch the legitimacy of judicial legislation.
9. If the Courts were competent to reform the law of criminal procedure by conferring an entitlement to
legal aid, I would favour the reform. An entitlement to legal aid is a measure which reduces the
possibility of injustice and enhances the fairness of the criminal trial. As an abstract proposition,
contemporary values favour steps designed to reduce the possibility of injustice and to enhance the
fairness of trials, especially criminal trials. And a concrete indication of contemporary values is given by
Art.14(3)(d) of the International Covenant on Civil and Political Rights, to which Australia is a party.
Article 14(3)(d) declares that:
following minimum guarantees, in full equality: ... (d) To be tried in his presence, and to
defend himself in person or through legal assistance, of his own choosing; to be informed, if
he does not have legal assistance, of this right; and to have legal assistance assigned to him,
in any case where the interests of justice so require, and without payment by him in any
such case if he does not have sufficient means to pay for it".
Although this provision of the Covenant is not part of our municipal law, it is a legitimate influence on
the development of the common law ((79) See Mabo v. Queensland (1992) 66 ALJR, at p 422; 107 ALR, at p
29.). Indeed, it is incongruous that Australia should adhere to the Covenant containing that provision
unless Australian Courts recognize the entitlement and Australian governments provide the resources
required to carry that entitlement into effect. But the Courts cannot, independently of the Legislature
and the Executive, legitimately declare an entitlement to legal aid.
10. Sir Owen Dixon commended ((80) "Concerning Judicial Method", (Yale 1955), in Jesting Pilate, (1965),
pp 153, 154, 157.), as the methodology for judicial development of the common law, "high technique and
strict logic". That method guarantees the authority and acceptability of any change in the common law
made by the courts. The "strict logic" of which Sir Owen Dixon spoke includes, of course, inductive as
well as deductive logic for strict logic is part of the methodology of change. The classic example is to be
found in Lord Atkin's speech in Donoghue v. Stevenson ((81) (1932) AC 562, at p 580 .) where, perceiving
the theme common to earlier cases, he reasoned to a unifying principle which, once articulated,
governed the host of cases that followed. Inductive reasoning leads to the expression of a normative
principle which prescribes with some particularity the character of the facts to which the principle
applies. The principle must be more precise than a value or concept, else its content is left for
contention in later cases ((82) See Gala v. Preston (1991) 172 CLR 243, at pp 262-263 .). Analogical
reasoning is the handmaid of strict logic in developing the common law ((83) See per Lord Simon of
Glaisdale in Lupton v. FA and AB. Ltd. (1972) AC 634, at pp 658-659 .). When a legal rule or result is
attached to certain relationships or phenomena, the perception of similar characteristics in another
relationship or phenomenon leads to the attachment of a similar legal rule or result. Unless the analogy
is close, the applicability of the legal rule or result to the supposedly analogous relationship or
phenomenon is doubtful. It is fallacious to apply the same legal rule or to attribute the same legal result
to relationships or phenomena merely because they have some common factors; the differences may be
significant and may call for a different legal rule or result. Judicial technique must determine whether
there is a true analogy. The present case brings out the point.
Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (08 February 2017) (Kiefel, Bell,
Gageler, Keane and Gordon JJ)
it is within the exclusive control of the legislature[7]
Murphy v Electoral Commissioner (05 September 2016) (French CJ, Kiefel, Bell, Gageler, Keane,
Nettle and Gordon JJ)
our system of separated powers to require the executive government or the legislature to
raise and spend public funds in order to effect what might be thought to be desirable
improvements in the public life of the community[213]
R v Chi Wai Chung (11 March 2010) (Redlich and Harper JJA and King AJA)
of bias could not be removed, he was obliged to make the order that he did in accordance
with his duty to make the trial as fair as he could make it[26] and to ensure confidence in the
integrity of the jury’s verdict
Winters v Attorney-General (NSW) (18 March 2008) (Mason P at 1; Giles JA at 37; Hodgson JA at
84)
presuming that the Government will provide funding invites the remark of Brennan J in
Dietrich v The Queen (1992) 177 CLR 292 at 323 in relation to funding for a postulated
entitlement to legal aid, that “to declare such
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (14 December 2005)
(Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ)
In Dietrich v The Queen[137], the dissentients made remarks similar to those contained in
the reasons of Gummow J in this case
Dow Jones & Co Inc v Gutnick (10 December 2002) (Gleeson CJ,Gaudron, McHugh, Gummow,
the existence of significant economic implications of any change[84]
Webb v the Queen (30 June 1994) (Mason CJ, Brennan, Deane, Toohey and McHugh JJ)
The Queen (1992) 177 CLR 292 at 323
11. It is possible to construct a syllogism which appears to answer Sir Owen Dixon's methodology of
"strict logic". Starting with the premisses that all trials without legal representation for indigent persons
accused of serious criminal offences are unfair and that all unfair criminal trials result in a miscarriage
of justice, the conclusion can be asserted that all trials without legal representation of indigent persons
accused of serious criminal offences result in a miscarriage of justice. But, if the syllogism is used to
support that conclusion, it is clear that its validity depends on the existence of a valid analogy between
cases of unfairness which result in a miscarriage of justice and cases in which an indigent person
charged with a serious offence goes unrepresented. Hitherto, no analogy has been found - and for good
reason. Clearly enough, many trials of unrepresented persons do not result in a miscarriage of justice.
And, although both categories of cases may exhibit "unfairness" in the sense of falling short of the ideal
of fairness, there is a difference between them. Cases of unfairness amounting to a miscarriage of justice
have been cases where the Courts failed to do what was needed to secure a fair trial ((84) e.g., in failing
to order a separate trial, or to put the prosecution to an election between counts in an indictment, or to
exclude evidence that is unduly prejudicial, or to give a warning to the jury where the failure has
resulted in the loss of a reasonable prospect of acquittal.). In these cases, the Courts had the capacity to
remove the source of the unfairness. But the Courts do not have the capacity themselves to remove
unfairness by providing legal aid. The analogy between the two categories of cases is valid only if the
incapacity of the Courts to provide legal aid is immaterial. I cannot think that that difference is
immaterial.
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 .
13. If the Court were to declare the existence of a common law entitlement to legal aid, the only remedy
available to enforce it would be an order for adjournment until legal aid is provided and, if it were not
provided, an indefinite adjournment. Such a remedy at least limits the postulated entitlement so that its
enforcement does not depend on the Legislature or the Executive. But an indefinite adjournment is
tantamount to a refusal to exercise jurisdiction ((85) See Hinckley and South Leicestershire Permanent
Benefit Building Society v. Freeman (1941) Ch 32, at pp 38-39 ; Robertson v. Cilia (1956) 1 WLR 1502, at p 15
07 ; In re The Corporation of the Town of Port Pirie; Ex parte Executor Trustee and Agency Company of
South Australia Limited (1934) SASR 97, at p 100 ; Reg. v. Whiteway (1961) VR 168, at p 171 .). Such a
remedy would bring the administration of criminal justice substantially to a halt until public funds were
made available. The criminal law could not be carried into effect. Yet it is the duty of the Courts to
exercise their jurisdiction to administer the laws of the land ((86) Ashby v. White (1703) 2 Ld.Raym.938,
at p 956 ( 92 ER 126, at p 138 ).), especially the laws which protect the peace and security of the
community. The Courts cannot, by declaring a novel rule of the common law, create a justification for
refusing to exercise their jurisdiction. To grant an indefinite adjournment in cases where there is no
abuse of the process of the Courts is inconsistent with their constitutional duty. Nor can a refusal to
exercise criminal jurisdiction be justified on the ground that the unfairness flowing from the absence of
legal representation amounts to an abuse of process. Although unfairness is characteristic of an abuse of
process, not every case of unfairness amounts to an abuse of process. None of the cases in this Court
goes so far. To the contrary, Jago v. District Court (N.S.W.) ((87) (1989) 168 CLR 23 ) and Reg. v. Glennon
((88) (1992) 173 CLR 592 ) show that it is erroneous to equate the two concepts. When the criminal
jurisdiction is invoked for the purpose it is designed to serve, there is no abuse of process. The
jurisdiction must be exercised in a way that prevents unfairness as far as possible, but it must be
exercised. As a matter of constitutional duty, the Courts cannot indefinitely adjourn a trial to force the
provision of legal aid.
Johnson v The Queen (24 November 2017) (Payne JA at [1], McCallum J at [88], Wilson J at [95])
As Brennan J said in Dietrich (at 325),
Pattison v Tasmania (31 August 2017) (Wood, Pearce and Brett JJ)
Dietrich v R (1991) 177 CLR 292 at 325
Mahmoud v Attorney General of New South Wales (15 February 2017) (Beazley P at [1]; Macfarlan
JA at [2]; Payne JA at [3].)
and Dietrich v The Queen (1992) 177 CLR 292 in particular at 298, 317, 325, 330, 354 and 364
As Brennan J explained in Dietrich,[31] it is only where the lack of representation results in
a miscarriage of justice that the trial is unfair:
Isherwood v Tasmania (02 September 2010) (Crawford CJ, Evans and Blow JJ)
Tompkins v Honeyman (31 July 2009) (McMurdo P, Fraser JA and Jones J,)
Gassy v The Queen (14 May 2008) (Gummow, Kirby, Hayne, Crennan and Kiefel JJ)
does not hold that an accused's lack of representation itself amounts to a miscarriage of
justice[106]
Donnachy v Riegert (18 March 2004) (Roberts-Smith J)

51 The fact that a defendant is unrepresented by a lawyer cannot of itself amount to a
miscarriage of justice (Dietrich v The Queen (1992) 177 CLR 292 per Brennan J at 325, Deane J
at 335-6 and Dawson J at 343)
14. If the absence of a common law entitlement to legal representation means that the Courts cannot
ensure that a criminal trial is fair according to the contemporary values of the community, it is
necessary to remember that the fairness of a trial can be affected by circumstances outside the Court's
control, as I pointed out in Jago ((89) (1989) 168 CLR, at p 47 ). The rhetoric that our system of
administering criminal justice ensures a fair trial is comforting, but the reality is that the Courts cannot
always eliminate obstacles to a fair trial. Rhetoric does not always correspond with reality. If public
funds are not available to provide legal representation in serious criminal cases, the administration of
criminal justice will not be, or at least will not be seen to be, evenhanded. But the remedy does not lie
with the Courts; the remedy must be found, if at all, by the Legislature and the Executive who bear the
responsibility of allocating and applying public resources.
15. The procedure of the criminal courts is designed to produce as fair a trial as practicable in the
circumstances of each case. Where an accused person is unrepresented, a particular burden is placed on
the trial judge to ensure that the trial is fair ((90) See, for example, MacPherson v. The Queen (1981) 147
CLR 512, at pp 546-547 .). And if, through want of legal representation, some error occurs in the conduct
of the trial which occasions a substantial miscarriage of justice, a conviction must be set aside. But the
rhetoric that a trial must be fair before a conviction can properly be recorded is true only to the extent
that unfairness leads to a miscarriage of justice. The legal question then is not whether a trial has been
unfair according to community values but whether it is unfair in the sense that it has not taken place
according to law. A miscarriage of justice may consist in a failure to adopt a lawful procedure which
would have ensured fairness to an accused person or would have eliminated unfairness to him, but it
cannot consist in failing to adopt a procedure which the court has no power to adopt.
R v M, RS (11 May 2018) (The Honourable Justice Peek, The Honourable Justice Nicholson and
The Honourable Justice Hinton)
[29] Accepting this as bedrock, in
KS v Veitch (No 2) (10 December 2012) (Basten JA at [1]; Harrison J at [81]; Beech-Jones J at [82])
Dietrich v The Queen, 177 CLR 292 at 326 (Deane and Gaudron JJ)
Morley v Australian Securities and Investments Commission (17 December 2010) (Spigelman CJ;
Beazley JA; Giles JA)
709 The existence of an overriding and, perhaps, unifying principle was expressed by
Deane J in Dietrich v The Queen (1992) 177 CLR 292 at 326 -
Lodhi v R (20 December 2007) (Spigelman CJ at 1; Barr J at 112; Price J at 215)

The authority upon which the appellant relied in this regard was the judgment of Deane J
in Dietrich v The Queen (1992) 177 CLR 292 at 326
Chief Executive Officer of Customs v El Hajje (03 August 2005) (McHugh, Gummow, Kirby,
Hayne and Heydon JJ)
Had it been necessary, this Court would, in that case, have had to consider the respondents'
arguments about the due process implications said to arise from Ch III of the Constitution
[110]
John Fairfax Publications Pty Ltd v District Court of New South Wales (15 September 2004)
(Spigelman CJ at 1; Handley JA at 113; Campbell AJA at 114)
as a “fundamental element” or a “fundamental prescript”: Dietrich v The Queen (1992) 177
CLR 292 at 299, 326
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (05 September 2003)
(Gleeson CJ,McHugh, Gummow, Kirby and Hayne JJ)
By this issue, the respondents sought to invoke what they described as a "general guarantee
of due process" contained in Ch III of the Constitution[28]
Pasini v United Mexican States (14 February 2002) (Gleeson CJ,Gaudron, McHugh, Gummow
and Kirby JJ)
It was necessary that it should be available to any federal court that exercised the judicial
power of the Commonwealth or indeed to any Australian court in the integrated hierarchy
of courts envisaged by the Constitution[105]

((1992) 177 C.L.R. 292) both Deane, J. at 326 and Gaudron, J

a stay or adjournment the subject matter of Dietrich v. R. being grounded in a constitutional
principle rather than in common law. Although Deane, J. (at 326) and Gaudron, J.(at 362)
said that the principle that no person
Re East; Ex parte Nguyen (03 December 1998) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby,
or of constitutional due process applicable to the proceedings affecting him[53]
Frugtniet v Victoria (17 September 1997) (Kirby J)
Dietrich v The Queen (1992) 177 CLR 292 at 326 per Deane J, 362 per Gaudron J
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 b
e right to grant special leave to raise that question here on the materials available.
17. I would grant special leave to appeal to raise the question of a general entitlement to legal aid but I
would dismiss the appeal.
DEANE J. The fundamental prescript of the criminal law of this country is that no person shall be
convicted of a crime except after a fair trial according to law. In so far as the exercise of the judicial
power of the Commonwealth is concerned, that principle is entrenched by the Constitution's
requirement of the observance of judicial process and fairness that is implicit in the vesting of the
judicial power of the Commonwealth exclusively in the courts which Ch.III of the Constitution designat
es. Strictly speaking, the requirement that the trial of a person accused of a crime be fair, being a legal
one, is encompassed by the requirement that such a trial be in accordance with law. Nonetheless, it is
desirable that the requirement of fairness be separately identified since it transcends the content of
more particularized legal rules and principles and provides the ultimate rationale and touchstone of the
rules and practices which the common law requires to be observed in the administration of the
substantive criminal law.
2. Traditionally, the law's insistence that a person not be convicted of a crime except after a fair trial has
been conveniently, albeit slightly inaccurately ((91) See Jago v. District Court (N.S.W.) (1989) 168 CLR 23,
at pp 56-57 .), expressed in terms of a "right to a fair trial". Thus, for example, Isaacs J. in R. v. Macfarlane;
Ex parte O'Flanagan and O'Kelly ((92) (1923) 32 CLR 518, at pp 541-542 ) referred to "the elementary right
of every accused person to a fair and impartial trial" and added some well-known words which merit
further repetition:
"That such a right exists as a personal right seems to me so deeply rooted in our system of
law and so elementary as to need no authority to support it. It is a right which inheres in
every system of law that makes any pretension to civilization. It is only a variant of the
maxim that every man is entitled to his personal liberty except so far as that is abridged by a
due administration of the law. Every conviction set aside, every new criminal trial ordered,
are mere exemplifications of this fundamental principle. And if the right be admitted, it
would be an empty thing, unless the law adequately protected it. It seems necessary,
however, to adduce authority. Fortunately it is clear and weighty."
Haydon v Chivell (20 August 1999) (Gaudron J)

to a fair trial may require a trial judge to take steps in addition to those ordinarily required
by law, including to stay proceedings, if those steps are necessary to prevent the perceptible
risk of a miscarriage of justice[4]
Isaacs J.'s statement that the requirement that the trial of an accused person be "fair and impartial" is
"deeply rooted in our system of law" was not the stuff of empty rhetoric. It remains an accurate
statement of the common law of this country. Thus, two of the critical steps in the reasoning of each of
the six justices in Barton v. The Queen ((93) (1980) 147 CLR 75) were the acknowledgment of an
overriding common law requirement that a criminal trial be "fair" and the assertion of the authority of
the courts to take the steps - including an order that proceedings be indefinitely stayed - necessary to
ensure that an accused person is protected from the unlawfulness of an unfair trial. In the course of
their joint judgment, Gibbs A.C.J. and Mason J. (with the concurrence of Aickin J. ((94) ibid., at p 109))
said (( 95) ibid., at p 96 (emphasis added)):
"There is ample authority for the proposition that the courts possess all the necessary
powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power
extends in an appropriate case to the grant of a stay of proceedings."
To similar effect was the opening comment of Stephen J. ((96) ibid., at p 103 (emphasis added)) that he
agreed, for the reasons given by Gibbs A.C.J. and Mason J., that:
"the filing of an ex officio indictment by the Attorney-General is not subject to judicial

review but ... the courts do have a power to postpone or stay the trial on such an indictment
where necessary to ensure that the accused receives a fair trial".
Murphy J. said ((97) ibid., at p 107 (emphasis added)):
"Every court hearing criminal proceedings has power to control those proceedings in order
to avoid injustice; where necessary it may stay proceedings."
Murphy J. then referred ((98) ibid.) to his judgment in McInnis v. The Queen ((99) (1979) 143 CLR 575)
which had commenced((100) ibid., at p 583 ) with the equally unqualified statement that "(e)very accused
person has the right to a fair trial". Wilson J. stated((101) Barton v. The Queen (1980) 147 CLR, at p 109 (em
phasis added).) that he agreed with the conclusion of Gibbs ACJ. and Mason J.:
"to the effect that ... the courts may postpone or stay the trial on any indictment in
circumstances where such action is necessary to prevent an abuse of process and ensure a
fair trial for the accused person".
More recently, "the entitlement of an accused person to a fair trial according to law" was expressly
recognized by the majority of this Court in McKinney v. The Queen((102) (1991) 171 CLR 468, at p 478) as
the "central thesis of the administration of criminal justice" in this country(( 103 ) See also, e.g.,
MacPherson v. The Queen (1981) 147 CLR 512, per Gibbs C.J. and Wilson J. at pp 523, 524-525 ; Jago v.
District Court (N.S.W.) (1989) 168 CLR, per Mason J. at p 29, per Deane J. at pp 56-57, per Toohey J. at p
72, per Gaudron J. at p 75.). Indeed, the acknowledgment of the entitlement of an accused person to a
"fair trial" provided the foundation of the rule of practice which the Court enunciated in that case((104)
See below).
3. While the law's insistence that there be no conviction without a fair trial according to law has been
long established, the practical content of the requirement that a criminal trial be fair may vary with
changing social standards and circumstances((105) See, e.g., Hicks v. The King (1920) 28 CLR 36, per
Isaacs and Rich JJ. at p 48 ). As O'Higgins C.J. commented in The State (Healy) v. Donoghue((106) (1976)
IR 325, at p 350 ):
"The general view of what is fair and proper in relation to criminal trials has always been
the subject of change and development. Rules of evidence and rules of procedure gradually
evolved as notions of fairness developed. The right to speak and to give evidence, and the
right to be represented by a lawyer of one's choice were recognised gradually. To-day many
people would be horrified to learn how far it was necessary to travel in order to create a
balance between the accuser and the accused."
Less dramatic illustrations of the point are the change from the view that the evidence of an accomplice
was of special cogency to the introduction of a requirement of a special warning in relation to such
evidence((107) See Holdsworth, A History of English Law, vol.9, 3rd ed. (1944), p 244, fn.6; and Davies v.
Director of Public Prosecutions (1954) AC 378, at p 399.) and the recent recognition by this Court that, in
the context of the increased availability of the means of reliable corroboration of confessional
statements made by an accused in police custody, the law's insistence that a trial be fair dictated the
adoption of a new rule of practice in certain cases where there is no reliable corroboration of the making
of such a statement(( 108 ) McKinney v. The Queen (1991) 171 CLR, at pp 473-474 ). Conversely, a change
in community perceptions or standards may lead, on reconsideration, to the modification or
abandonment of rules or practices which were, in other times, seen as necessary to ensure that the trial
of an accused was a fair one((109) See, e.g., Longman v. The Queen (1989) 168 CLR 79, at pp 85-88, 91-97, 10
4-107 ).
[2] There is of course a significant public interest in the independent performance of that
duty by the court
LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd (20 May 2011) (White JA, Margaret Wilson
AJA, Ann Lyons J,)
those phrases mean is best understood, in the time honoured way, on a case by case basis,
informed by judgment about the relevant legal principles and is expressed, albeit in a
different context, in Dietrich v The Queen[37] as
4. That is not to suggest that the determination of what is or is not necessary to satisfy the requirements
of a fair trial is unprincipled. While the requirement of fairness provides the ultimate rationale and
touchstone for the law's adjudgment of the minimum safeguards which must be observed in the
administration of the substantive criminal law, the practical content of the requirement in a particular
category of case will primarily fall to be determined by the staple processes of legal reasoning, namely,
induction and deduction from earlier decisions and settled rules and practices. Inevitably, however,
there will arise the rare case in which those processes of legal reasoning are inadequate in a developing
area of the law or in which a court, ordinarily a final appellate court, concludes that the circumstances
are such that it is entitled and obliged to reassess some rule or practice in the context of current social
conditions, standards and demands and to change or reverse the direction of the development of the law
((110) See, generally, Jaensch v. Coffey (1984) 155 CLR 549, at pp 599-600 ). It is in such a case that direct
reference will necessarily be made to the underlying notion of fairness and that subjective values and
perceptions may intrude into the judicial process. Nonetheless, the identification or the reconsideration
of the existence and content of the particular rule or practice in such a case is an unavoidable
concomitant of the judicial function if the law is not to lose contact with the social needs which justify
its existence and which it exists to serve. Thus, for example, in Barton v. The Queen((111) (1980) 147 CLR,
per Gibbs ACJ. and Mason J. (Aickin J. concurring) at pp 100-102, per Stephen J. at pp 105-106.), a
majority of this Court held that notwithstanding the long-standing practice of the courts to entertain
trials on ex officio indictments, a trial judge was entitled and obliged to stay proceedings if, in the
circumstances of a particular case, the absence of committal proceedings would give rise to an unfair
trial.
5. The background and facts of the present application for special leave to appeal are set out in other
judgments. It is unnecessary that I do more than identify three aspects of those facts which are of
particular significance. The first is that the crimes alleged against the applicant were serious ones. The
second is that, as I followed the argument, it is common ground both that the applicant lacked the
financial means to obtain legal representation for himself and that he had exhausted all avenues for
obtaining legal representation from other sources. The third is that the applicant made clear at the
commencement of his trial his strong objection to being subjected to a trial without legal representation:
Russell v Eaton (25 September 2020) (Kyrou JA)

Achanfuo-Yeboah v The Queen (23 December 2016) (Refshauge ACJ)
of a trial and of an appeal are different, though the comments of Deane J in
Dietrich v The Queen are relevant. His Honour pointed out at 330 that it was
the government’s choice as to whether an
R v Lodhi (04 April 2006)

and as an "overriding requirement": Dietrich (at 330)
John Fairfax Publications Pty Ltd v District Court of New South Wales (15
September 2004) (Spigelman CJ at 1; Handley JA at 113; Campbell AJA at 114)
and as an “overriding requirement”: Dietrich at 330
"I cannot appear for myself, I'm not legally minded." ... "I don't understand the system ... I've
got no idea." ... "I'm not emotionally or mentally fit to conduct my own trial."
In a context where it appeared that the applicant was unable to obtain legal representation either from
his own resources or, unless he pleaded guilty, from any other source, the learned trial judge considered
that the trial must proceed. His Honour's view in that regard accorded with past practice in that it has
been customary in this country to force an indigent person accused of serious crime to go to trial
unrepresented in those fortunately rare cases where no legal representation has been available from
any source. It also accorded with some of the comments made in majority judgments in this Court in
McInnis((112) (1979) 143 CLR, per Barwick C.J. at p 579, per Mason J. at p 581). The question which the
applicant now raises for the determination of this Court is whether, in the context of contemporary
circumstances and standards, that practice and those comments are consistent with the common law's
fundamental prescript that the trial of a person be fair.
[14] This is not the exercise of a discretion
R v Crothers (30 November 2010) (Margaret McMurdo P, Chesterman JA and Douglas J,

Judgment of the Court)
[(1992) 177 CLR 292 at 311, 331, 342-343] held that a criminal trial for a serious offence should
be adjourned, rather than that an indigent accused should be forced on to trial without legal
representation against his or her
in Australia of a fairly conducted criminal trial that the majority of the High Court in
Dietrich v The Queen[1] held that a criminal trial for a serious offence should be adjourned,
rather than that an indigent
De La Espriella-Velasco v The Queen (10 March 2006) (Roberts-Smith JA)

or to make himself understood, the trial judge must, as part of his duty to ensure a fair trial,
see to it that the accused receives the assistance of a competent interpreter: Dietrich v R
(1992) 177 CLR 292 at 331 per Deane J
De La Espriella-Velasco v The Queen (10 March 2006) (Roberts-Smith JA)

himself understood, the trial judge must, as part of his/her duty to ensure a fair trial, see to it
that the accused receives the assistance of a competent interpreter: Dietrich v The Queen
(1992) 177 CLR 292 at 331 per Deane J
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. On occasion, the
appropriation and expenditure of such public funds will be directed towards the provision of
information and assistance to the accused: for example, the funds necessary to enable adequate pre-trial
particulars of the charge to be furnished to the accused; the funds necessary to provide an accused held
in custody during a trial with adequate sustenance and with minimum facilities for consultation and
communication; the funds necessary to provide interpreter services for an accused and an accused's
witnesses who cannot speak the language. Putting to one side the special position of this Court under
the Constitution , the courts do not, however, assert authority to compel the provision of those funds or
facilities. As Barton v. The Queen((113) (l980) 147 CLR, at pp 96, 103, 107, 109 ) establishes, the effect of the
common law's insistence that a criminal trial be fair is that, if the funds and facilities necessary to enable
a fair trial to take place are withheld, the courts are entitled and obliged to take steps to ensure that their
processes are not abused to produce what our system of law regards as a grave miscarriage of justice,
namely, the adjudgment and punishment of alleged criminal guilt otherwise than after a fair trial. If, for
example, available interpreter facilities, which were essential to enable the fair trial of an unrepresented
person who could neither speak nor understand English, were withheld by the government, a trial
judge would be entitled and obliged to postpone or stay the trial and an appellate court would, in the
absence of extraordinary circumstances, be entitled and obliged to quash any conviction entered after
such an inherently unfair trial. Again, if the government failed to provide the ordinary facilities
necessary to enable an accused held in custody to attend his trial, the trial judge would be entitled and
obliged to postpone or stay the trial and, in the absence of such a stay or postponement, an appellate
court would be entitled and obliged to quash any conviction. Similarly, if in all the circumstances of the
present case the effect of the applicant's inability to obtain legal representation was that the trial would
be an unfair one, the learned trial judge should have acceded to the applicant's obvious wish that the
trial be postponed or delayed for so long as such legal representation remained unavailable to him.
and private interests in the completion of concurrent civil and criminal proceedings, it does
not operate to override the Supreme Court's "undoubted power to stay criminal
proceedings which will result in an unfair trial"[294]
X7 v Australian Crime Commission (26 June 2013) (French CJ, Hayne, Crennan, Kiefel and Bell JJ)
The power to prevent an abuse of process is an incident of the general power to ensure
fairness[71]
7. It can be said at once that I consider that the decision of this Court in McInnis should not be seen as
decisive of the question whether, either as a general proposition or in the circumstances of a particular
case, the inability of an accused person to obtain legal representation on a criminal trial will have the
consequence that the trial is an unfair one. The only judgment in McInnis which directly referred to the
question whether Mr. McInnis' trial had been unfair by reason of his lack of representation was the
dissenting judgment of Murphy J. One explanation of that is that the question had not been raised in
argument. Another, and possibly more relevant one for present purposes, is that McInnis was decided
before the Court had had occasion expressly to assert the authority and duty of the courts to take all
steps necessary, including a stay of proceedings, to prevent the abuse of process involved in an unfair
trial((114) See ibid., per Gibbs A.C.J. and Mason J. at p 97). Nor is there any other decision of the Court
which compels a particular answer to that question. The judgments in past cases in the Court do,
however, take one a considerable way along the path to the answer to it. In particular, as has been seen,
they recognize in unequivocal terms the common law's insistence that a criminal trial be fair. They also
now unequivocally assert, to use words which had the express((115) ibid., per Gibbs A.C.J. and Mason J.
at pp 96, per Stephen J. at p 103, per Aickin J. at p 109, per Wilson J. at p 109.) or implicit((116) ibid., per
Murphy J. at p 107) support of all members of the Court in Barton v. The Queen, "that the courts possess
all the necessary powers ... to ensure a fair trial" including, "in an appropriate case ... the (power to) grant
... a stay of proceedings". They also recognize the duty of the courts to determine the essential
prerequisites of a fair trial in the context of contemporary standards and circumstances((117) ibid., at pp
100-102; McKinney v. The Queen (1991) 171 CLR, at pp 473-474, 478 .).
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((118) See, e.g., Galos Hired v. The King (1
944) 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.
9. In the State courts of this country and in the Provincial courts of Canada, the weight of authority
supports the view that there must be something special or extraordinary in the circumstances of a
particular case to found a conclusion that a refusal of a trial judge to adjourn or stay the trial of a person
accused of serious crime on the ground of unavailability of legal representation gives rise to a
miscarriage of justice((120) See, e.g., R. v. Gould (1917) VR 454, at p 455 ; Reg. v. Bicanin (1976) 15 SASR 20,
at pp 22-23, 25 ; Reg. v. Cox (1960) VR 665, at p 667 ; Reg. v. Maher (1987) 1 Qd R 171, at pp 178-180 ; Re
Ewing and Kearney and The Queen (1974) 49 DLR (3d) 619, at pp 628-629 ; Reg. v. Rowbotham (1988) 41
CCC (3d), at p 69 (but cf., Foster v. The Queen (1982) 38 ALR 599, per Fox J. at p 600 ; Reg. v. Corak (1982)
30 SASR 404, at p 409 ; Re Ewing and Kearney and The Queen (1974) 49 DLR (3d), at pp 621-623 ).). To
that extent, the weight of existing authority in those jurisdictions militates against any general
proposition to the effect that, at least in the absence of exceptional circumstances, the inability of an
indigent accused person to obtain legal representation on a criminal trial on a charge of serious crime
will have the consequence that the trial is unfair. With great respect, however, the statements in those
cases asserting that legal representation of an indigent person accused of a serious crime is not a
prerequisite of a fair trial seem to me to be based either on the mere assertion of unpersuasive
propositions such as that it is the function of a trial judge to conduct proceedings in a way which will
ensure that an unrepresented accused has a fair trial or on subterranean policy considerations which
largely remain unarticulated((121) But cf. the frank acknowledgment of considerations of economic cost
and feasibility in S. v. Rudman; S. v. Mthwana (1992) 1 South African LR 343, at pp 387-390.). At the
intermediate appellate court level in the United Kingdom, the prevalent approach, while more
favourable to an accused((122) See, e.g., Reg. v. Howes (1964) 2 QB 459 ; Reg. v. Sowden (1964) 1 WLR 1454 ;
Reg. v. Serghiou (1966) 1 WLR 1611 .), would also appear to be that lack of representation by reason of
poverty does not of itself involve miscarriage of justice.
10. In contrast, the judgments in cases in the Supreme Court of the United States provide powerful and
reasoned support for the acceptance of a general proposition to the effect that the inability of a person
accused of serious crime to obtain legal representation by reason of lack of means will cause the trial to
be an unfair one((123) See, in particular, Powell v. Alabama (1932) 287 US 45, at pp 68-69 ; Gideon v.
Wainwright (1963) 372 US 335, at pp 343-345 .). It is true that those United States judgments were directly
concerned with the effect of constitutional provisions which have no exact counterpart in the
Constitution of this country. To disregard them for that reason would, however, be to ignore their
substance and to fail to appreciate that their essential concern, like cases in this Court such as Barton v.
The Queen((124) See nn.(113) and (114) above.) and McKinney v. The Queen((125) (1991) 171 CLR 468 ), was
to identify what is necessary to ensure that an accused receives "a fair trial"((126) See, e.g., Gideon v.
Wainwright (1963) 372 U.S, at pp 344-345 .). As such, they were concerned to identify the practical content
of the notion of a fair trial by reference to standards which are common to the legal systems of this
country, the United States and many other common and civil law countries: what Isaacs J. referred to as
"the right which inheres in every system of law that makes any pretension to civilization"((127) R. v.
Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR, at p 541 .); what Douglas J., speaking for the
United States Supreme Court, identified as one of the "fundamental rights applicable to all ... criminal
prosecutions" where an accused faces deprivation of liberty((128) Argersinger v. Hamlin (1972) 407 US 25,
at p 32 .); and what the European Court of Human Rights has described as the right to a fair trial "in a
democratic society"((129) Artico v. Italy (1980) 3 EHRR 1, at p 13 .).
11. The most important of the relevant passages from the United States judgments are set out in the
judgments of Mason C.J. and Gaudron J. in this case or in the judgment of Murphy J. in McInnis((130) (19
79) 143 CLR, at pp 586-587 ). I refrain from also setting them out in this judgment but add to them the
comment of Black J. (Douglas and Murphy JJ. concurring) in Betts v. Brady((131) (1942) 316 US 455, at p 476
.) :
"A practice cannot be reconciled with 'common and fundamental ideas of fairness and
right', which subjects innocent men to increased dangers of conviction merely because of
their poverty."
The reasoning in those United States judgments is, in my view, compelling in its analysis of the
significance of lack of legal representation by reason of poverty to the law's fundamental requirement
that a criminal trial be fair. Similar reasoning has prevailed in the highest courts of the common law
jurisdictions of the Republics of Ireland((132) See The State (Healy) v. Donoghue (1976) IR, at pp 350-351, 3
54-355, 357, 363-364.) and India(( 133 ) See Hoskot v. State of Maharashtra (1979) 1 SCR (India) 192, at pp
204-208; Hussainara Khantoon v. Home Secretary (1979) 3 SCR (India) 760, at p 765.). It should now be
accepted and applied in this Court.
Robinson v R (22 June 2006) (Spigelman CJ at 1; Simpson J at 20; Johnson J at 21)

R v BK (08 February 2000) (Sully J at 1; Carruthers AJ at 26; Smart AJ at 38)

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”: see per Deane J in Dietrich v The
Queen, (1992) 177 CLR 292 at 335

in Dietrich v. R. at 335 said:
R v Craggs (01 September 1995) (McPherson JA. Moynihan J. Fryberg J.)
Dietrich v. The Queen (1992) 177 C.L.R. 292, 335
12. A criminal trial in this country is essentially an adversarial process. Where the charge is of a serious
crime, the prosecution will ordinarily be in the hands of counsel with knowledge and experience of the
criminal law and its administration. The substantive criminal law and the rules of procedure and
evidence governing the conduct of a criminal trial are, from the viewpoint of an ordinary accused,
complicated and obscure. While the prosecution has a duty to act fairly and part of the function of a
presiding judge is to seek to ensure that a criminal trial is fair, neither prosecutor nor judge can or
should provide the advice, guidance and representation which an accused must ordinarily have if his
case is to be properly presented((134) See, e.g., Richardson v. The Queen (1974) 131 CLR 116, at p 122 ;
Whitehorn v. The Queen (1983) 152 CLR 657, at pp 682-683 .). Thus, it is no part of the function of a
prosecutor or trial judge to advise an accused before the commencement of a trial about the legal issues
which might arise on the trial, about what evidence will or will not be admissible in relation to them,
about what inquiries should be made to ascertain what evidence is available, about what available
evidence should be called, about possible defences, about the possible consequences of cross-
examination, about the desirability or otherwise of giving sworn evidence or about any of a multitude of
other questions which counsel appearing for an accused must consider and in respect of which such
counsel must advise in the course of the preparation of a criminal trial. Nor is it consistent with the
function of prosecutor or trial judge to conduct, or advise on the conduct of, the case for the defence at
the trial. Nor, in the ordinary case, is an accused capable of presenting his own case to the jury as
effectively as can a trained lawyer.
13. An accused is brought involuntarily to the field in which he is required to answer a charge of serious
crime. Against him, the prosecution has available all the resources of government. If an ordinary
accused lacks the means to secure legal representation for himself and such legal representation is not
available from any other source, he will, almost inevitably, be brought to face a trial process for which
he will be insufficiently prepared and with which he will be unable effectively to cope. In such a case,
the adversarial process is unbalanced and inappropriate((135) See, generally, Powell v. Alabama (1932)
287 US, at pp 68-69 ; Gideon v. Wainwright (1963) 372 US, at p 344 ; Galos Hired v. The King (1944) AC, at
p 155 ; Re Ewing and Kearney and The Queen (1974) 49 DLR (3d), per Farris C.J.B.C., dissenting, at p 621;
The State (Healy) v. Donoghue (1976) IR, at p 357 ; Hoskot v. State of Maharashtra (1979) 1 SCR (India), at
pp 204-206; Reg. v. Corak (1982) 30 SASR, at pp 408-409 .) and the likelihood is that, regardless of the
efforts of the trial judge, the forms and formalities of legal procedures will conceal the substance of
oppression.
[34] We emphasise that it is a question which his Honour will need to consider with care
14. 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"((136) Barton v. The Queen (1980) 147 CLR, per Gibbs ACJ. and Mason J. at p 101.). There are
circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepr
esented. 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((137) See, e.g., Reg. v. Greer, unreported, New South Wales Court of Criminal Appeal, 14
August 1992, per Kirby P at pp 12-15.). 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((138) e.g. where there is no real threat of deprivation of personal liberty: see Argersinger
v. Hamlin (1972) 407 US, 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 least in relation to such a trial, I would echo the conclusion of the United States
Supreme Court in Gideon v. Wainwright((139) (1963) 372 US, at p 344 ): "reason and reflection require us
to recognize that in our adversary system of criminal justice, any person haled into court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us
to be an obvious truth."
R v Pearson (24 December 2002) (Giles JA at 1; Bell J at 2; Smart AJ at 94)

The distinction between a miscarriage and a substantial miscarriage has been maintained (
Dietrich (1992) 177 CLR 292 at 337
R v Nguyen (21 August 2002)

The distinction between a miscarriage and a substantial miscarriage has been maintained
(Dietrich (1992) 177 CLR 292 at 337
Regina v Roger William Mitton (30 July 2002) (Beazley JA at 1; Bell J at 2; Smart AJ at 52)
Dietrich (1992) 177 CLR 292 at 337
15. It is true that, as has been mentioned, past practice in this country has been to force a person accused
of serious crime to trial notwithstanding that, by reason of lack of means, he is unable to obtain legal
advice or representation. That past practice and the approach to the poor and disadvantaged which it
reflects have, however, long been inconsistent with the standards and circum stances of our community.
The validity of the perception that "the availability of legal aid to all who are accused of serious crime
and are unable to afford legal representation is an indispensable condition of the fair administration of
criminal justice"((140) Reg. v. Corak (1982) 30 SASR, per King C.J. at p 409.) has long been appreciated by
the Australian legal profession with the result that, even in the days before governmental legal aid was
generally available to persons accused of serious crime, it had become comparatively rare for such a
person to be forced, by reason of lack of means, to face trial without legal representation. The present
general acceptance of the validity of that perception within the Australian community is evidenced by
the expansion of governmental legal aid to the current level where such aid, including representation, is
now ordinarily made available for those accused of serious crime who lack the means necessary to
obtain it((141) See, e.g., Thirteenth Annual Report of the S.A. Legal Services Commission, 1990-91, p 24,
Table 7.). In that regard, it is relevant to note that Australia, as a nation, is a party to the International
Covenant on Civil and Political Rights which expressly provides((142) Art.14(3)(d); and see, also, Human
Rights and Equal Opportunity Commission Act 1986 (Cth), Sched. 2.) that, in the determination of any
criminal charge, everyone shall be entitled "to defend himself in person or through legal assistance of
his own choosing ... and to have legal assistance assigned to him, in any case where the interests of
justice so require, and without payment by him in any such case if he does not have sufficient means to
pay for it".
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.
Washer v Western Australia (08 November 2007) (Gleeson CJ, Kirby, Hayne, Heydon and
Crennan JJ)
that the appellate court should consider the entirety of the record for itself, in order to
answer the question posed by the common form in which the "proviso" is expressed in cases
of appeals against criminal convictions[81]
Darkan v The Queen (22 June 2006) (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ)
They include, as this Court pointed out in Weiss v The Queen[133], the limitations inherent
in an appellate court conducting a criminal trial on the record
17. Statutory provisions which enable an appellate court to dismiss an otherwise successful appeal by a
convicted person, who maintains his innocence, on the ground that there was no substantial miscarriage
of justice do not authorize an appellate court to find that there has been no substantial miscarriage of
justice in a case where error, impropriety or unfairness has pervaded the trial and infected the verdict to
an extent that the conviction was not the outcome of a fair trial. In such a case, the conviction without a
fair trial necessarily involves substantial miscarriage. Were it otherwise, the injustice of a conviction
without a fair trial according to law could, as I pointed out in Wilde v. The Queen((143) (1988) 164 CLR 365
, at p 375 .), be effectively made the occasion for a trial of an accused person by appellate judges who had
seen no witnesses, heard no evidence and had had no direct contact with the atmosphere, the tensions,
the nuances or the reality of the actual trial. Indeed, in a case such as the present where what was
involved was a trial upon indictment for alleged offences against a law of the Commonwealth, a
statutory provision which purported to enable the effective substitution of an appellate court's verdict of
guilt or obvious guilt would contravene the Constitution's((144) s.80.) guarantee of trial by jury. Such
statutory provisions providing for dismissal of an appeal on the ground that there was no substantial
miscarriage of justice extend only to cases where it can be seen either that any error, impropriety or
unfairness did not prejudice the overall trial to an extent that made it an unfair trial or that the residual
effect (i.e. viewed in the context of the overall trial) of any such error, impropriety or unfairness could
not have relevantly infected the verdict in the sense that it could not have adversely influenced the jury
in reaching their verdict on the charge or charges upon which the accused was convicted and in respect
of which the appeal to the appellate court is brought.
18. Special leave to appeal should be granted and the appeal allowed. The order of the Court of Criminal
Appeal of Victoria refusing leave to appeal to that court should be set aside. In lieu thereof, it should be
ordered that leave to appeal to that court be granted, the appeal allowed, the conviction quashed and a
new trial ordered.
DAWSON J. The applicant was presented in the County Court of Victoria upon one count of importing
not less than a trafficable quantity of heroin contrary to s. 233B(1)(b) of the Customs Act 1901 (Cth) , two
counts of possession of a prohibited import which were alternatives to the first count, and a fourth
count of possession of a prohibited import. The applicant pleaded not guilty to all four counts. After a
lengthy trial he was found guilty on the first count and was acquitted on the fourth count. He was
sentenced to a term of seven years imprisonment with a minimum term of five years.
2. The appeal raises only one issue. That is whether the applicant's conviction can be allowed to stand
when, despite his desire to be legally represented at his trial, he was unable to obtain representation and
was therefore forced to conduct his defence in person.
3. Before his trial the applicant made application to the Legal Aid Commission of Victoria for legal aid
but his application was refused, save that he was offered assistance upon a plea of guilty or upon a
finding of guilt. The offences with which he was charged being Commonwealth offences, he also made
application to a Judge of the Supreme Court for assistance under s. 69(3) of the Judiciary Act 1903 (Cth) .
That sub-section provides:
counsel for his defence. If it be found to the satisfaction of the Justice or Judge that such
person is without adequate means to provide defence for himself, and that it is desirable in
the interests of justice that such an appointment should be made, the Justice or Judge shall
certify this to the Attorney-General, who may if he thinks fit thereupon cause arrangements
to be made for the defence of the accused person or refer the matter to such legal aid
authorities as the Attorney-General considers appropriate. Upon committal the person
committed shall be supplied with a copy of this subsection."
The applicant's application under s. 69(3) was refused because more than fourteen days had elapsed
after his committal for trial. The applicant also made unsuccessful applications for legal assistance to
the Commonwealth Minister for Justice and the Commonwealth Attorney-General.
4. The Legal Aid Commission of Victoria functions under the Legal Aid Commission Act 1978 (Vict.).
Under s.24 of that Act the Commission may provide legal assistance to a person charged with an
indictable offence if it is of the opinion that the person is in need of that assistance because he is unable
to afford the full cost of obtaining legal services from a private practitioner and either if it is reasonable
having regard to all relevant matters to provide the assistance or if the Commission is of the opinion
that it is desirable in the interests of justice that the person should have legal representation. In making
the decision whether it is reasonable in all the circumstances to provide assistance to a person charged,
the Commission is to have regard to whether the proceeding is likely to terminate in a manner
favourable to that person. Provision is made in Pt VI of the Act for the review of a decision of the
Commission by a legal aid review committee and for a further review by a legal aid appeal committee.
The precise steps taken by the applicant do not appear but it is common ground that he did all that he
could to obtain legal aid from the Legal Aid Commission and was unsuccessful in obtaining aid to be
represented at his trial.
5. The applicant made various submissions to the learned trial judge that the trial should not proceed.
At one point it appears that the applicant sought an adjournment, although the precise purpose for
which the adjournment was sought does not emerge. What is clear is that the trial judge took the view
that there was no prospect of the applicant obtaining legal representation and that an adjournment for
the purpose of enabling him to do so would be futile. The trial judge made it apparent that he would
have preferred the applicant to have been represented, but pointed out that this was a matter for the
authorities responsible for granting legal aid. The trial judge did not give consideration to any course,
such as an adjournment, for the purpose of placing pressure upon those authorities to reverse their
decision. Nor, in my view, would it have been proper for him to do so.
6. The applicant does not allege any error or defect in his trial save that he was compelled to present his
case in person when he wished to be represented. As might be expected, the trial judge gave the
applicant such assistance as he could in the presentation of his defence and the prosecutor appearing
for the Crown did all that could be done to ensure that the applicant was not at a disadvantage because
of his lack of representation. The applicant makes no complaint in these respects. Further, in his charge
to the jury the trial judge said:
"In assessing the demeanour and personality of the accused man, it is proper for you to
make every allowance for the fact that he has not had any counsel to guide him in the
presentation of his case. You should bear in mind what I said, I think more than once
during the course of the trial, that you should make due allowance for the accused, and for
the fact that there is considerable stress and strain on any person in any criminal trial, and
more, one would imagine, on any unrepresented person in any criminal trial. So, make all
due and proper allowances for what he himself, I think, described as his volatile nature. He
is, as you would expect, under stress and strain, being an unrepresented person in a
criminal trial. As to why he is unrepresented, that is not a matter for your consideration or
concern. The fact is he is unrepresented, and you should make whatever allowances you
believe appropriate for that fact."
7. The submission made by the applicant is that the failure to provide him with legal representation
upon his trial for serious offences of itself resulted in a miscarriage of justice. To avoid that miscarriage,
the applicant submits, the court ought to have stayed the proceedings at least until such time as the
applicant was provided, at public expense if necessary, with adequate legal representation. That not
having been done, he submits that the conviction cannot be allowed to stand.
8. In McInnis v. The Queen((145) (1979) 143 CLR 575.) the trial judge refused an adjournment of a criminal
trial requested by the accused to enable him to obtain legal representation. The accused was convicted
upon charges of deprivation of liberty and rape. At the time the application for an adjournment was
made there was the possibility that he might obtain financial help from his family and there was also
the possibility of a reconsideration of the decision to refuse him legal aid (a decision made on the day
preceding the day set for the trial) and, if that did not produce legal aid, there was the possibility of
seeking a review of the decision by a review committee. Barwick C.J., with whom Aickin and Wilson JJ.
agreed, was not prepared to say that the trial judge erred in refusing to grant an adjournment. Mason J.,
on the other hand, thought that he did. Murphy J., who was in dissent in the result, found it unnecessary
to consider the point. However, Barwick C.J. was prepared to assume that the trial judge was in error in
refusing the adjournment and commented that the question then was whether there had been a
miscarriage of justice in the conviction of the accused. He said that the question((146) ibid., at p 579 .):
"was not simply whether an adjournment of the trial ought to have been ordered. It was
whether, assuming the adjournment to have been wrongly refused, that refusal resulted in
the miscarriage of justice."
9. Barwick C.J. proceeded to examine the evidence and concluded that the case against the accused was
sufficiently strong to enable him to say that the accused was not deprived of a fair chance of acquittal
and that there was no miscarriage of justice. In the course of reaching that conclusion, his Honour
observed((147) ibid., at p 580.):
"Of course, there may be some cases in which it may be concluded that had counsel
conducted the defence the jury may have been less likely to have believed the case made by
the prosecutrix but I cannot think that this is such a case."
Mason J. also was of the view that the refusal of the adjournment did not of itself result in a miscarriage
of justice; that must appear from the proceedings at trial. Thus he said((148) ibid., at p 583.):
"The question is primarily to be resolved by looking to the nature and strength of the
Crown case and the nature of the defence which is made to it. If the Crown case is
overwhelming then the absence of counsel cannot be said to have deprived the accused of a
prospect of acquittal. If the accused in such a case has presented his defence with skill, that
may constitute some confirmation that conviction was inevitable in any event. But if the
Crown case is less than overwhelming I have some difficulty in perceiving how in general
the conduct of the case by an accused who is without legal qualification and experience can
demonstrate that, even with the benefit of counsel, he had no prospect of an acquittal."
Mason J. agreed with Barwick C.J. in the result. The majority were all of the view that in this country an
accused person does not have a right to present his case by counsel provided at public expense((149) See,
ibid., per Barwick C.J. at p 579, per Mason J. at p 581.). Murphy J., in dissent, held the contrary, at least
where the accused person was charged with a serious crime((150) ibid., at p 586.).
10. The course of reasoning adopted by the majority in McInnis was no doubt influenced by the fact that
the accused's counsel conceded that he had to show something more than that the adjournment was
wrongly refused in order to make out a miscarriage of justice and thereby bring the case within the
power to quash a conviction conferred by the Criminal Code (W.A.). It does not appear to have been put
that the refusal of the adjournment in effect denied the accused a right which he had and that the denial
of that right itself constituted a miscarriage of justice. The right which the accused had is to be found in
s.634 of the Code:
"Every person charged with an offence is entitled to make his defence at his trial and to
have the witnesses examined and cross-examined by his counsel."
to publically funded legal representation at common law or under the Constitution:
Dietrich at 297–298 (Mason CJ and McHugh J), 317 (Brennan J), 330 (Deane J), 343 (Dawson
J), 356 (Toohey J), and 364–365 (Gaudron J)
Berben, Laurens v The Queen (04 June 2008) (Giles JA; Barr J; Hall J)
The question is whether in the particular circumstances the appellant could not or did not
receive a fair trial: Dietrich v The Queen at 311 per Mason CJ and McHugh J, 325 per
Brennan J, 343 per Dawson J

also Dietrich, at 325 (Brennan J.); at 337-338 (Deane J.); at 343 (Dawson J
11. Entitlement to appear by counsel is not the same thing as entitlement to have counsel provided at
public expense((151) 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((152) See Wilde v. The Queen (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.
12. In the last set of circumstances, the accused has no right to be represented by counsel at public
expense. That is made clear in McInnis. The fact that an accused is unrepresented cannot in those
circumstances of itself amount to a miscarriage of justice. If he is convicted, an appeal cannot succeed
merely because he was at a disadvantage in being unrepresented. As in other cases, to succeed on
appeal he must show that the verdict is unreasonable or cannot be supported having regard to the
evidence, that there was an error of law or that for some other reason there was a miscarriage of justice.
But there cannot be a miscarriage of justice merely because an accused is unrepresented when he has
no entitlement to representation. Obviously, in some trials a defect may be more likely to occur in the
course of the trial because of an accused's lack of representation, but it is the defect which must be relied
upon on appeal, not the lack of representation. It is, I think, implicit in the decision in McInnis that a
form of trial which is contemplated by the law - a trial in which the accused is unrepresented because he
lacks the means to obtain representation - cannot of itself be said to be unfair.
13. Any other analysis would, I think, result in an inconsistency between the approach in the case of an
accused who, having means, is denied the opportunity to avail himself of counsel and the case of an
accused to whom counsel is unavailable because of lack of means. If it were possible to say that the
appeal of a person who could afford, but was denied, counsel on his trial may turn upon whether he was
deprived of a fair chance of acquittal by reason only of his lack of representation, then it should be open
to say the same thing in the case of a person who was unrepresented at his trial because he could not
afford representation and representation was not otherwise made available. The only valid distinction
which can be drawn between the two cases is that in the former case the accused had a right to be
represented whereas in the latter case he did not. And, as I have explained, the denial of a right to
representation when it exists is, in my view, of itself sufficient to render a trial defective and to result in a
miscarriage of justice.
14. The Victorian equivalent of the right under s.634 of the Criminal Code (W.A.) is conferred by s.397 of
the Crimes Act 1958 (Vict.) which provides:
This provision was derived from The Trials for Felony Act 1836 (U.K.)((153) 6 and 7 Wm IV c.144.), s.1, the
enactment of which reflected the gradual relaxation of the old common law rule that an accused
charged with a felony could not be defended by counsel. Having regard to the origins of s.397 and the
view that I have expressed above, the applicant was correct in conceding that the section does no more
than give a right to an accused to retain counsel if he has the means to do so or if counsel is otherwise
available.
15. The applicant does, however, contest the view, at all events where the charge is a serious one, that
lack of representation of an accused cannot of itself result in an unfair trial. In so doing he necessarily
contends that an accused has a right to counsel at public expense. To the extent that McInnis leads to a
contrary conclusion, he seeks to reopen that decision.
16. It is only realistic to recognize that an accused who is unrepresented is ordinarily at a disadvantage
because of his lack of representation((154) McInnis v. The Queen (1979) 143 CLR, at p 579 ; Reg. v. Nilson (1
971) VR 853, at p 864 ; Foster v. The Queen (1982) 38 ALR 599, at p 600 ; Galos Hired v. The King (1944) AC
149, at p 155 ; Powell v. Alabama (1932) 287 US 45, at p 69 .). If there are some cases in which lack of
representation is not a disadvantage or may even be turned to advantage, they must be exceptional.
Commencing with a consideration of the form of the presentment or indictment and ending with the
making of any necessary objection to the trial judge's charge to the jury, the proper conduct of an
accused's defence calls for a knowledge not only of the criminal law but also of the rules of procedure
and evidence. Skill is required in both the examination-in-chief and the cross-examination of witnesses
if the evidence is to emerge in the best light for the defence. The evidence to be called on behalf of the
accused, if any, must be marshalled so as to avoid raising issues which will be damaging to the case for
the defence. A decision must be made whether the accused is to give evidence on oath, is to make an
unsworn statement or is to remain mute. Competence in dealing with these matters depends to a large
extent upon training and experience. And, as Murphy J. pointed out in McInnis((155) (1979) 143 CLR, at p
590 .), an accused in person cannot effectively put some arguments that counsel can, such as an
argument that, although on the evidence the accused is probably guilty, he is not guilty beyond
reasonable doubt.
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) 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. He continued((157) ibid., at p 49.):
"If it be said that judicial measures cannot always secure perfect justice to an accused, we
should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in
law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the
courts can make it. Were it otherwise, trials would be prevented and convictions would be
set aside when circumstances outside judicial control impair absolute fairness."
18. The applicant placed reliance upon that part of 42 Edw.III c.3 (1368) which provides:
"It is assented and accorded, for the good governance of the commons, that no man be put
to answer without presentment before justices, or matter of record, or by due process and
writ original, according to the old law of the land; And if any thing from henceforth be done
to the contrary, it shall be void in the law, and holden for error."
That provision is in force in Victoria under s.3 of the Imperial Acts Application Act 1980 (Vict.). The
applicant emphasized the words "by due process" and sought to draw an analogy between those words
in the English statute and the same words in the Fifth and Fourteenth Amendments to the United States
Constitution, where it is provided that no person shall be deprived "of life, liberty, or property, without
due process of law". The Sixth Amendment expressly provides that in all criminal prosecutions the
accused shall enjoy the right "to have the Assistance of Counsel for his defense". Of course the Sixth
Amendment only applies to federal courts. However, the due process clause of the Fourteenth
Amendment, which applies to states, has subsequently been held to incorporate the right to counsel
afforded by the Sixth Amendment((158) Gideon v. Wainwright (1963) 372 US 335 .). The precise scope of
the Sixth Amendment was clarified in Argersinger v. Hamlin((159) (1972) 407 US 25 ; see also Scott v.
Illinois (1979) 440 US 367 .). In that case it was held that, absent a knowing and intelligent waiver, no
person could be imprisoned for any offence, whether classified as petty, misdemeanour or felony,
unless he was represented by counsel at his trial.
19. As I have said, the words "due process of law" in the United States Constitution form part of the
constitutional guarantees contained in the Fifth and Fourteenth Amendments. In relation to the right to
counsel, the words "due process" represent, when read with the Sixth Amendment, a rejection of the
common law upon the subject((160) cf. Powell v. Alabama (1932) 287 US, at pp 64-67 .). Conversely, that
part of 42 Edw.III c.3 upon which the applicant seeks to rely was directed to a more limited end. Its
purpose, unlike the words "due process" in the Fifth and Fourteenth Amendments to the United States
Constitution((161) See, e.g., Wolf v. Colorado (1949) 338 US 25, at p 27 ; Bute v. Illinois (1948) 333 US 640, at
p 649 .), was not to lay down a broad concept with a flexible application to the changing requirements of
different times. Its purpose was more immediate. It was to rid the law of those oppressive inquisitorial
proceedings which had developed rapidly during the reign of Edward III((162) See Ex parte Walker (1924
) 24 SR(NSW) 604 ; Adler v. District Court of N.S.W. (1990) 19 NSWLR 317, at pp 345-353 ; Victoria v.
Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, at p 1
50 ; Mummery, "Due Process and Inquisitions", (1981) 97 Law Quarterly Review 287.). In its use of the
words "due process", together with the words which accompany that phrase, it was intended to ensure
that no man be put to answer - be put to trial - except in the common law courts according to the
recognized procedures of the time. The common law did not then extend any right to counsel to an
accused charged with felony and the statute was not directed to the alteration of existing common law
procedures; on the contrary, it was intended to ensure their application. It is for these reasons that it is
not possible to read into the words "due process" in 42 Edw III c.3 a meaning which is the equivalent of
that given to those words in the United States Constitution.
20. Finally, the applicant sought to rely upon Art.14(3)(d) of the International Covenant on Civil and
Political Rights which provides:
following minimum guarantees, in full equality: ... (d) To be tried in his presence, and to
defend himself in person or through legal assistance of his own choosing; to be informed, if
he does not have legal assistance, of this right; and to have legal assistance assigned to him,
in any case where the interests of justice so require, and without payment by him in any
such case if he does not have sufficient means to pay for it".
The applicant pointed to the fact that not only is Australia a party to the Covenant but it is also a party
to the First Optional Protocol to the Covenant which recognizes the competence of the Human Rights
Committee to receive and consider communications from individuals who claim to be victims of
violations of any of the rights set forth in the Covenant.
Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia (03 February 2003)

(Black CJ, Beaumont and Hill JJ)
In consequence, the ICCPR does not of itself operate to give rights to or impose duties on
members of the Australian community: see, for example Dietrich v The Queen (1992) 177
CLR 292, at 305-306, 321, 348, 359-360
21. Article 14(3)(d) does not purport to confer an absolute right upon an accused to have legal counsel
assigned to him; the right is expressed to arise "in any case where the interests of justice so require".
Nevertheless, it is plain that the Article purports to confer a right to representation in circumstances
where the common law would not. As I have said, the common law, whilst recognizing the
disadvantages which an unrepresented accused may suffer because of his lack of representation, does
not accept that those difficulties cannot be overcome and a fair trial held. The Article, on the other
hand, presupposes that there are some cases in which justice will necessarily be denied if an accused is
tried without representation at public expense. The difference may be illustrated by the case of
Robinson v. The Queen((163) (1985) AC 956 .).
22. In that case, which was an appeal to the Privy Council from the Court of Appeal of Jamaica, the
accused had been refused an adjournment to obtain other counsel after counsel retained by him had
failed to appear, at least partly, it seems, because they had not been put in funds. The accused was tried
for murder and convicted. Murder was a capital offence in Jamaica. The Jamaican Constitution
provided that an accused was to be afforded a fair hearing and that he was to be permitted to defend
himself in person or by a legal representative of his own choice. The majority in the Privy Council held
that the accused had, in all the circumstances, notwithstanding the refusal of the adjournment, been
permitted to exercise his right to counsel. They also held that there was no miscarriage of justice; that is
to say, they held that the accused's lack of representation did not prevent his trial being a fair trial. The
minority, on the other hand, held that the accused had not been permitted to defend himself by a legal
representative of his own choice and that this denial of a constitutional right was sufficient to vitiate the
trial even if it was in every other respect fair.
23. The matter was the subject of a communication under the First Optional Protocol to the
International Covenant on Civil and Political Rights((164) Frank Robinson v. Jamaica, CCPR/C/35/D/223
/1987.). The view taken by the Human Rights Committee was as follows:
"The Committee, noting that article 14, paragraph 3(d) stipulates that everyone shall have
'legal assistance assigned to him, in any case where the interests of justice so require',
believes that it is axiomatic that legal assistance be available in capital cases. This is so even
if the unavailability of private counsel is to some degree attributable to the (accused)
himself, and even if the provision of legal assistance would entail an adjournment of
proceedings. This requirement is not rendered unnecessary by efforts that might otherwise
be made by the trial judge to assist the (accused) in handling his defence in the absence of
counsel. In the view of the Committee, the absence of counsel constituted (an) unfair trial."
Eric v The State of Western Australia (15 July 2019) (Buss P, Mazza JA, Mitchell JA)
[21] By a process of evaluation a judge will determine whether he or she is satisfied that 'it is
in the interests of justice' to discharge the jury from giving its verdict on a charge
Landsman v R (19 December 2014) (Beazley P at [1]; Hidden J at [90]; Fullerton J at [91])
regard, the Crown referred to authority in which emphasis was placed on the particular
facts of a case in the interpretation of that phrase: Dietrich v R [1992] HCA 57; 177 CLR 292
per Dawson J at 349 and per Toohey J at 360
24. Article 14(3)(d) has not been enacted as part of the domestic law of Australia, but the applicant sought
to rely upon it by submitting that the development of the common law should, where possible, be in
conformity with international obligations. There is authority for the proposition that, in the
construction of domestic legislation which is ambiguous in that it is capable of being given a meaning w
hich either is consistent with or is in conflict with a treaty obligation, there is a presumption that
Parliament intended to legislate in conformity with that obligation((165) See Reg. v. Home Secretary; Ex
parte Brind (1991) 1 AC 696, esp. at pp 747-748 .). Whether that approach may be extended beyond
statutory interpretation to the resolution of uncertainty in the common law is not so clearly established
((166) Cf. Attorney-General v. Guardian Newspapers (No.2) (1990) 1 AC 109, at p 283 ; Derbyshire County
Council v. Times Newspapers Ltd. (1992) 3 WLR 28 .). It is unnecessary to consider the question in this
case because to extend to the common law the principle which underlies Art.14(3)(d) - the principle that
there are cases in which the absence of representation of itself results in an unfair trial - would not be to
resolve ambiguity or uncertainty but to effect a fundamental change. This is, upon any view, sufficient
to preclude reliance upon the Covenant. Moreover, not only is the common law free from uncertainty in
this respect, but there are also statutory provisions which are predicated upon the position at common
law. There is s.397 of the Crimes Act which confers a right to counsel but not a right to counsel at public
expense. There is s. 69(3) of the Judiciary Act which, in the cases to which it applies, confers a discretion
upon the Attorney-General to cause arrangements to be made for the defence of the accused or to refer
the matter to a legal aid authority. And there is the Legal Aid Commission Act which lays down the
circumstances in which legal aid may be provided, those circumstances involving considerations which
extend beyond the interests of justice in the particular case.
R v M, RS (11 May 2018) (The Honourable Justice Peek, The Honourable Justice Nicholson and
The Honourable Justice Hinton)
[26] That right is more accurately stated as “a right not to be tried unfairly or as an
immunity against conviction otherwise than after a fair trial”
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((167) 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 ).
26. For these reasons I am of the view that special leave to appeal should be granted but the appeal
should be dismissed.
TOOHEY J. In opening this appeal, counsel for the applicant said:

"The issue is whether an accused person charged with a
serious crime, punishable by imprisonment, who cannot afford counsel, has a right to be provided with
counsel at public expense."
2. As the argument developed, although counsel did not cease to contend for such a "right", he also
argued that in the circumstances postulated a trial without representation could not be a fair trial. The
distinction is important and calls for some analysis. For the moment it is enough to note that, if there is a
right to legal representation in absolute terms, the absence of representation of itself constitutes a
breach of that right. The concept of a fair trial is more flexible in that all relevant circumstances
surrounding the trial have to be taken into account. The facts
3. The applicant stood trial in the County Court of Victoria on an indictment containing four counts
under s. 233B of the Customs Act 1901 (Cth) . After a lengthy hearing he was convicted on the first count
of importing not less than a trafficable quantity of heroin (the second and third charges were
alternatives to this charge) and acquitted of a charge of possession of a prohibited import, namely,
heroin. He was sentenced to imprisonment for seven years with a minimum term of five years.
4. Following his committal for trial, the applicant applied for legal aid to the Legal Aid Commission of
Victoria. He lacked the means to engage a lawyer himself. He was refused legal aid to defend the
charges but was offered legal assistance to plead guilty. His appeal to a legal aid appeal committee
failed. Section 69(3) of the Judiciary Act 1903 (Cth) provides that a person:
"committed for trial for an offence against the laws of the
Commonwealth may at any time within fourteen days ... apply to a Justice in Chambers or to a Judge of
the Supreme Court of a State for the appointment of counsel for his defence". The applicant applied to
the Supreme Court of Victoria under this provision but, 14 days having expired, his application was
refused. An approach for financial assistance to the Commonwealth Attorney-General and to the
Commonwealth Minister for Justice met a similar fate. It is clear that the applicant did all that he could
to secure legal representation. During his trial he stressed more than once the difficulties he was under
in conducting his own defence; the respondent did not dispute that these were real difficulties.
5. There are obvious problems in formulating a "right to counsel"; the problems are discussed later in
these reasons. But unless such a right is subject to some qualifications, it means that the absence of
counsel is enough to preclude a trial of the accused and, if a trial does take place, to abort any conviction
that results. Thus Art.14(3)(d) of the International Covenant on Civil and Political Rights ("the ICCPR"),
requires only that an accused:
"have legal assistance assigned to him, in any case where
the interests of justice so require, and without payment by him in any such case if he does not have
sufficient means to pay for it". The European Convention for the Protection of Human Rights and
Fundamental Freedoms contains a similar provision in Art.6(3)(c). The historical background
6. The existence of any right to counsel cannot be divorced from an historical context. In that context
the issue was not whether an accused had a right to insist upon legal representation at public expense
but whether he or she could even be represented by counsel. Holdsworth has pointed out((169) A
History of English Law, vol.9, 3rd ed. (1944), p 235) how The Treason Act 1695 (Imp.)((170) 7 and 8 Will.III
c.3.) gave to persons accused of high treason the right to be defended by counsel, a right which was not
extended to those accused of felony until The Trials for Felony Act 1836 (Imp )((171) 6 and 7 Will.IV c.
114.). That is not to say that those accused of felony had hitherto no assistance from counsel. Counsel
were permitted to cross-examine witnesses for the prosecution but as a Royal Commission in 1836
observed((172) Great Britain, Second Report from His Majesty's Commissioners on Criminal Law, 1836
(343), p 2.):
"One of the peculiarities incident to crimes of the
degree of Felony, but not amounting to the offence of High Treason ... is that the Prisoner is denied his
full defence by Counsel, (or, in other words, that his Counsel is not allowed the liberty of addressing the
Jury,)".
7. Although not directly relevant, it is worth remembering that an appeal against conviction or sentence
was unknown to the common law, though a writ of error, a writ of certiorari and the exercise of the
royal prerogative in the form of a pardon constituted means whereby a conviction or sentence might be
challenged((173) Stephen, A History of the Criminal Law of England, (1883), vol.1, pp 308-313.). It was
possible for a judge presiding over a criminal trial, in the event of a finding of guilt by the jury, to refer
difficult questions of law to other members of the court. It was this practice of reserving questions of law
that led to the establishment of the Court of Crown Cases Reserved in 1848((174) Crown Cases Act 1848
(U.K.) (11 and 12 Vict. c.78).). To that Court, only a judge might reserve a point of law for its consideration
((175) Stephen, op cit, pp 311-312. For an historical overview of the right to counsel, see MacFarlane, "The
Right to Counsel at Trial and on Appeal", (1990) 32 Criminal Law Quarterly 440, at pp 440-448.). Until
the introduction of the Criminal Appeal Act 1907 (U.K.), no right of appeal by a convicted person existed
((176) See generally Davern v. Messel (1984) 155 CLR 21, at p 47 .).
Davey v Tasmania (05 August 2020) (Blow CJ, Estcourt and Geason JJ)
Dietrich v The Queen (1992) 177 CLR 292 at 300, 353
R v Seller; R v McCarthy (01 March 2013) (Bathurst CJ at [1]; McClellan CJ at CL at [119]; Rothman
J at [121])
concept was one which was impossible to formulate exhaustively in advance, nonetheless
the right was ingrained in the legal system of this country: Dietrich supra at 301 (Mason CJ
and McHugh J), 327-328 (Deane J), 353 (Toohey J)
and McHugh JJ)
The Queen (1992) 177 CLR at 299-300, 326-329, 353, 362-365 and the cases and authors there
cited
8. These historical references demonstrate that the general appearance of counsel for an accused and
the existence of any general appeal procedures are comparatively recent. In such a setting it would be
surprising to find in the common law a right to counsel formulated in absolute terms. And none is to be
found. It is more profitable to consider the present appeal by reference to the concept of a fair trial, in
particular the extent to which that concept requires legal representation for an accused and the
consequences if representation is not available. The right to a fair trial
9. The right to a fair trial is engrained in our legal system((177) Jago v. District Court (N.S.W.) (1989) 168
CLR 23 .). The absence of a fair trial arises most often where procedural irregularities occur, though
more and more the extent of media coverage of criminal proceedings prompts applications for a stay of
the trial, permanent or otherwise((178) See, by way of illustration, Murphy v. The Queen (1989) 167 CLR
94 and The Queen v. Glennon (1992) 173 CLR 592 . As to abuse of process, see Williams v. Spautz (1992) 66
ALJR 585; 107 ALR 635.). Clearly enough, the concept of a fair trial is one that is impossible, in advance,
to formulate exhaustively or even comprehensively. Only a body of judicial decisions gives content to
the concept. And when, as in the present appeal, the fairness of a trial is called into question because of
the lack of legal representation for an accused, it is not possible to exclude entirely from consideration
the role of the State in providing legal aid.
10. How, relevantly, is the concept of a fair trial to be stated? In its most extreme form the submission of
the applicant is that the State must provide legal representation to an indigent accused charged with a
serious offence and that, if it does not, any trial that follows is necessarily unfair and any conviction that
results must necessarily be set aside. The applicant says further that, to ensure that an accused receives
a fair trial, the trial judge should, perhaps must, adjourn the trial if the accused is unable to secure
counsel. Put that way, the ground of appeal alters form. It becomes a ground that the trial judge erred in
refusing to adjourn the trial until the applicant had secured legal representation. The importance of
legal representation
Sharp v Rangott (03 April 2008) (Gray, North and Besanko JJ)
This was recognised by the High Court in another context in the well-known decision of
Dietrich v The Queen (1992) 177 CLR 292 at 302 per Mason CJ and McHugh J, 334-5 per
Deane J, 354 per Toohey J, 370-1 per Gaudron J
11. It is hardly necessary to spend time in this judgment on the advantages to an accused of legal
representation. They are well recognised((179) See, for instance, McInnis v. The Queen (1979) 143 CLR 575
, at pp 582, 590 ; Powell v. Alabama (1932) 287 US 45, at pp 68-69 ; Douglas v. California (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 disadvan tage, 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((180) Richardson v. The Queen (1974) 131
CLR 116, at p 122 ; MacPherson v. The Queen (1981) 147 CLR 512, at pp 546-547 ; Whitehorn v. The Queen (1
983) 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.
12. But, that said, the question still remains. Is it part of the concept of a fair trial that, if an accused
cannot afford legal representation, the State must provide it? The decision in McInnis suggests
otherwise. The decision in McInnis
13. The actual decision in McInnis turned on the refusal of the trial judge to grant an adjournment to an
accused charged with unlawful assault, deprivation of liberty and rape, whose barrister had told the
accused he would not represent him only the day before the trial began. A majority of the Court held
that, even if the trial judge had erred in refusing to grant an adjournment, there had been no
miscarriage of justice because of the strong case against the accused and the lack of credibility of his
defence.
14. In the course of his judgment, Barwick C.J. said((181) (1979) 143 CLR, at p 579 .):
"It is proper to observe that an accused does not have a
right to be provided with counsel at public expense. ... He has no absolute right to legal aid." Mason J.
said that((182) ibid., at p 581):
"an accused in Australia does not have a right to present his case by counsel provided at
public expense".
Aickin and Wilson JJ. agreed with Barwick C.J. However, Murphy J. took a different approach. He said
((183) ibid., at p 583):
"Every accused person has the right to a fair trial, a right which is not in the slightest
diminished by the strength of the prosecution's evidence and includes the right to counsel
in all serious cases. This right should not depend on whether an accused can afford
counsel."
Later, Murphy J. observed((184) ibid., at p 592):
"If a person on a serious charge, who desires legal assistance but is unable to afford it, is
refused legal aid, a judge should not force him to undergo trial without counsel. If
necessary, the trial should be postponed until legal assistance is provided".
15. Once it is appreciated that the decision turned on the refusal to adjourn the trial, McInnis does not
stand as an obstacle in the way of the present applicant in the sense that an appeal cannot succeed
unless the Court overturns that decision. Nevertheless, the philosophy underlying the judgments of the
majority is inimical to the applicant's case, at any rate to the argument that there is a right to counsel at
public expense. The difficulties of formulating any right
AMF15 v Minister for Immigration and Border Protection (20 May 2016) (Flick, Griffiths and
Perry JJ)
The contentions are inconsistent with High Court authority, including Dietrich at 297-298,
per Mason CJ and McHugh J, at 317 per Brennan J, at 330 per Deane J, at 343 per Dawson J,
at 356 per Toohey J and at 364-365 per Gaudron J
16. It is important to keep in mind that the present case is not one in which the trial judge denied to the
applicant the opportunity to get legal aid or, for that matter, to get someone to represent him. The
applicant had exhausted all means then available to him to do either. It is necessary, therefore, to have
regard to the consequences of allowing an appeal, quashing the conviction and ordering a new trial.
What, if at the commencement of a new trial, the applicant is in precisely the same position he was in at
the commencement of his first trial? And there are other difficulties. Obviously the trial judge must
make an assessment of the complexities of the trial before it begins. But what is the position of an
appellate court when a decision to allow the trial to proceed is made and it is sought to overturn a
resulting conviction? Does the appellate court place itself in the shoes of the trial judge at the time the
decision was made or does it look at the way in which the trial progressed? An assessment made on the
one basis may be different from an assessment made on the other. Perhaps the closest analogy is with
the role of an appellate court when a conviction is challenged as being unsafe or unsatisfactory. The
court must then make its own assessment in the light of the relevant evidence((185) Morris v. The Queen
(1987) 163 CLR 454 ). And it seems to me that some such approach is inevitable when it is the fairness of
the trial that is being considered. I return to this aspect later.
17. Some of these considerations may seem peripheral to the essential aspects of this appeal. However,
not only are they important in themselves, but they also highlight the very real obstacles that confront
the applicant in formulating a right to counsel, as opposed to a right to a fair trial, and even in
formulating a right to a fair trial, except in the sense that a person may not be convicted as a result of a
trial which is unfair. An appropriate remedy
18. One of the best known Latin maxims is ubi jus ibi remedium - there is no wrong without a remedy
((186) See Broom's Legal Maxims, 10th ed. (1939), pp 118-136). Holt C.J. observed in Ashby v. White((187) (17
03) 2 Ld Raym 938, at p 953 ( 92 ER 126, at p 136 )) that "it is a vain thing to imagine a right without a
remedy; for want of right and want of remedy are reciprocal". If there is a "right" to counsel, what is the
remedy? Is it an action by the accused against the State to compel the provision of counsel at public
expense? The applicant did not contend that he had such a right of action. And no such right of action
exists. If there is a "right" to a fair trial, what is the remedy? It can hardly be an action by the accused
against the State to compel a fair trial. It is apparent that, at its highest, protection is against conviction
of a criminal offence after a trial which is held to be unfair. But, in truth, it is the loss of a chance of
acquittal fairly open to an accused which in the end leads to a conviction being set aside((188) Mraz v.
The Queen (1955) 93 CLR 493, at p 514 ; Wilde v. The Queen (1988) 164 CLR 365, at pp 371-372 ). The
inquiry is whether the absence of legal representation for an accused gave rise to a miscarriage of justice
((189) See, for instance, The Queen v. Cox (1960) VR 665, at pp 667-668 ; The Queen v. Hanias (1976) 14
SASR 137, at pp 140-143, 148-150 ; The Queen v. Bicanin (1976) 15 SASR 20, at pp 24-25 ; The Queen v.
Austin (1979) 21 SASR 315, at p 319 ; The Queen v. Beadle (1979) 21 SASR 67, at pp 70-71 ; The Queen v.
Corak and Palmer (1982) 30 SASR 404, at pp 408-410, 425-426 ).
New South Wales v Canellis (26 October 1994) (Mason CJ, Brennan, Dawson, Toohey, and
McHugh JJ)
(1992) 177 CLR 292). In that case, a majority of the Court held that a person charged with a
criminal offence has a right to a "fair trial" and that the trial of an unrepresented and
indigent person charged with a serious...
19. The protection referred to in the preceding paragraph does not require a trial to proceed in the
absence of counsel and the situation then to be assessed in the light of the outcome of the trial. 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((190) 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. The role of the court
20. In performance of its duty to conduct a trial fairly, a court may stay proceedings as "an incident of the
general power of a court of justice to ensure fairness"((191) Jago (1989) 168 CLR, per Mason C.J. at p 31; see
also per Deane J. at p 58; per Toohey J. at pp 71-72; per Gaudron J. at pp 77-78.). It may be said that a court
cannot control the allocation of government funds such as those provided for a legal aid scheme and
that a court is not responsible for the fact that an accused appears unrepresented before it. Those
assertions are no doubt true. The organisation of legal aid is a matter for government. Many
considerations enter into the provision of legal aid, not the least of which are the many other demands
made on the resources of government. However, once an accused appears before a court, the
unavailability of legal representation does become a matter for the court, not because the court can
remedy the situation by insisting upon the appointment of counsel, but because the court must then
assess whether a fair trial may be had by the accused without legal representation. It cannot be said that
the matter is truly beyond the control of the court because it is for the court to decide whether, in all the
circumstances, the trial should proceed.
21. In Re Ewing and Kearney((192) (1974) 49 DLR (3d), at p 629 ) Seaton J.A remarked:
"If a trial Judge concluded that he could not conduct a fair
trial without defence counsel and his requests for counsel were refused, he might be obliged to stop the
proceedings until the difficulties had been overcome. Our law would not require him to continue a trial
that could not be conducted properly." (emphasis added) That statement, with respect, rather
understates the position. Not only would the law not require the trial judge to continue the trial in the
circumstances postulated; it would require the judge to discontinue the hearing, at least in the sense
that any conviction resulting from the trial would be liable to be set aside. A legal foundation
22. It is one thing to identify the problems associated with a lack of legal representation for an accused
and to postulate the powers of a court in that regard. But it is necessary to ask: is there a legal foundation
for the recognition of a right to remedy the situation? Certain statutory and other provisions need to be
mentioned, even if an analysis of them leads to the conclusion that they offer no legal foundation for
any such right.
1. Section 397 of the Crimes Act 1958 (Vict.) reads:
This provision, which first appeared in England in 1836((193) The Trials for Felony Act; see supra pp 58-
59), was designed to overcome the rule at common law which denied legal representation to an accused
in cases of felony. It does not enact a right to counsel at public expense((194) Re Ewing and Kearney (1974
) 49 DLR (3d), at p 627 ; see Ibrahim (1987) 27 A Crim R 460, at p 463 .). In Deutsch v. Law Society of
Upper Canada Legal Aid Fund((195) (1985) 48 CR (3d) 166, at p 171. See also Barrette v. The Queen (1976)
68 DLR (3d) 260 ) Craig J. commented that the
"entrenched right to retain and instruct counsel (contained in s.10(b) of the Canadian
Charter of Rights and Freedoms) is a matter separate and distinct from the issue of the right
to funded counsel".
Island Maritime Ltd v Filipowski (15 June 2006) (Gleeson CJ, Gummow, Kirby, Hayne, Callinan,
Heydon and Crennan JJ)
It may also have been in the contemplation of the majority of this Court in Dietrich v The
Queen[96], in holding that the conduct of a "trial" of an accused who, through no fault of his
or her own could not afford counsel, might
2. Section 69(3) of the Judiciary Act , which has been mentioned already, enables an accused to apply to
a Justice in Chambers or to a Judge of a State Supreme Court for the appointment of defence counsel.
The Justice or Judge must be satisfied that the accused "is without adequate means to provide defence
for himself and that it is desirable in the interests of justice that such an appointment should be made".
The Commonwealth Attorney-General then has a discretion to "cause arrangements to be made for the
defence of the accused" or to "refer the matter to such legal aid authorities as the Attorney-General
considers appropriate". It is apparent that s. 69(3) enshrines no absolute or automatic right to counsel at
public expense. In any event, the applicant lost whatever rights it does confer with the expiration of 14
days after committal. 3. Also as mentioned earlier, the applicant applied for legal assistance to the Legal
Aid Commission, pursuant to the Legal Aid Commission Act 1978 (Vict.). His attempts to obtain legal
assistance failed. He had no right to a favourable determination of his application by the Legal Aid
Commission, only a right to have the application considered in accordance with the Act((196) See Esber
v. The Commonwealth (1992) 66 ALJR 373, at p 377; 106 ALR 577, at p 583 ).
4. The 1368 enactment, 42 Edw.III c.3, which is still in force in Victoria by virtue of ss.3 and 8 of the
Imperial Acts Application Act 1980 (Vict.), provides that:
"no man be put to answer without presentment before justices ... or by due process ...; And if
anything ... be done to the contrary, it shall be void in the law, and holden for error".
Counsel for the applicant submitted that the words "by due process" should now be interpreted as
including the right to appointment of counsel at public expense. He relied upon American authority by
which the requirement of "due process" in the United States Constitution now embraces the right to
have counsel appointed to an indigent accused charged with a serious crime. However, as Priestley J.A
pointed out in Adler v. District Court of New South Wales((197) (1990) 48 A Crim R 420, at p 452 ), the
purpose and intent of the 1368 enactment were:
"to ensure that only common law courts exercised what was regarded as traditional
common law jurisdiction and that only in those common law courts should persons be tried
for crimes, and then by recognised procedures".
The enactment cannot found the right for which counsel for the applicant primarily contends. 5.
Constitutional rights in the United States to have counsel appointed at public expense derive from the
express constitutional guarantee of the Sixth Amendment and from the requirement of due process
enshrined in the Fourteenth Amendment to the Constitution((198) Powell v. Alabama; Johnson v. Zerbst
(1938) 304 US 458 ; Gideon v. Wainwright (1963) 372 US 335 ; Argersinger v. Hamlin (1972) 407 US 25 ; Scott
v. Illinois (1979) 440 US 367 .). There is nothing directly comparable in Australian law.
CPCF v Minister for Immigration and Border Protection (28 January 2015) (French CJ, Hayne,
until it has been enacted in legislation[324]
R v Togias (14 December 2001)

Dietrich v The Queen (1992) 177 CLR 292 at 360 per Toohey J
Dietrich (1992) 177 CLR at 321, 360
6. Article 14(3)(d) of the ICCPR has been mentioned already. The ratification by Australia of the ICCPR
on 13 August 1980 did not render it part of Australian municipal law((199) Simsek v. MacPhee (1982) 148
CLR 636, at pp 641-642 . See also Kioa v. West (1985) 159 CLR 550, per Gibbs C.J. at p 570 .). The ICCPR is
now contained in Sched. 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) .
While the Act confers power on the Human Rights and Equal Opportunity Commission to investigate
and conciliate alleged breaches of rights contained in the ICCPR, it does not create justiciable rights for
individuals. Likewise, although Australia's accession to the First Optional Protocol to the ICCPR
effective as of 25 December 1991 enables Australians to petition the United Nations Human Rights
Committee for alleged violations of the rights set out in the ICCPR, it does not make the ICCPR part of
Australian municipal law.
23. Counsel for the applicant conceded that the ICCPR has not been incorporated into Australian
municipal law. However, he submitted that "Australia has moral and legal obligations at international
law under the Covenant". He argued that the ratification of the ICCPR, Australia's accession to the First
Optional Protocol, and the annexure of the ICCPR to the Human Rights and Equal Opportunity
Commission Act "all indicate the importance the Australian government places ... on the Covenant and
an intention to abide by it in its domestic activities"; that "Australia is morally obliged to accord its
citizens and those within its jurisdiction the rights provided for under the Covenant"; and that "the
common law in Australia should develop in a way which protects standards of human rights which are
broadly accepted by the Australian executive and legislative arms of government and by the Australian
community".
24. Where the common law is unclear, an international instrument may be used by a court as a guide to
that law((200) Jago v. District Court of New South Wales (1988) 12 NSWLR 558, per Kirby P at p 569 .). But
the applicant's difficulty is that the common law does not recognise the right to counsel for which he
contends. There is no ambiguity or uncertainty to be resolved. And no international instrument upon
which the applicant may successfully rely has been incorporated by legislation into Australian
municipal law.
25. While there is some English authority tending to support an argument that a court may, perhaps
must, consider the implications of an international instrument where there is a lacuna in the domestic
law((201) Derbyshire County Council v. Times Newspapers Ltd. (1992) 3 WLR 28, at pp 44, 61 .), even this
approach does not support the recognition of an absolute right to counsel. Article 14(3)(d) of the ICCPR
requires that legal assistance be assigned to an indigent accused "where the interests of justice so
require". In other words, the obligation depends on the facts of the particular case((202) See Artico v.
Italy (1980) 3 EHRR 1, at pp 13-15 ; Monnell and Morris v. United Kingdom (1987) 10 EHRR 205, at pp 221-
222, 225 ; Granger v. United Kingdom (1990) 12 EHRR 469, at pp 480-482 .).
26. In the end, such support as the applicant may derive from the international instruments mentioned
takes him no further than the argument based on the right to a fair trial. As the Solicitor-General for
South Australia submitted, the inherent power of the court to prevent its process being used in a
manner which gives rise to injustice would be misused if it were employed to declare categorically, in
advance and regardless of individual circumstances, that the trial of an unrepresented accused facing a
serious charge was necessarily unfair and the conviction unsustainable.
27. In Canada, where the Charter of Rights and Freedoms has been held not to entrench a right to
counsel at public expense irrespective of the circumstances, thus reflecting the common law on this
point, it has been said that((203) MacFarlane, op cit, at p 463):
"at the trial level, the right to counsel ... is
inextricably linked to the facts of the case and the background of the accused. It is clearly not a general
right applicable to all cases, irrespective of circumstances." In other words, an indigent accused in
Canada charged with a serious crime has a right to counsel at public expense where representation of
the accused by counsel is essential to a fair trial. The present case
of the Commonwealth Constitution, the decision of the High Court in Dietrich v The
Queen (1992) 177 CLR 292 (Dietrich) at 326 (Deane J) and 362 (Gaudron J), the common law of
procedural fairness, and “customary
Flightdeck Geelong Pty Ltd v All Options Pty Ltd (14 August 2020) (Markovic, Derrington and
Anastassiou JJ)
Statements to the effect that, “Courts have an overriding duty to ensure that a trial is fair”:
see, eg, Dietrich v R (1992) 177 CLR 292, 330, 362
Strickland (a pseudonym) v Director of Public Prosecutions (08 November 2018) (Kiefel CJ, Bell,
Gageler, Keane, Nettle, Gordon and Edelman JJ)
Accused persons have a right to a "not unfair" trial[189] and it is the courts that decide what
is fair, or not fair
Anile v The Queen (17 September 2018) (Priest, Beach and Weinberg JJA)
[1] Another way of putting this is that an accused person has the right not to be tried unfairly
Thomas v Mowbray (02 August 2007) (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon
and Crennan JJ)
In Leeth v The Commonwealth, Deane and Toohey JJ pointed out that the provisions of Ch
III[485]:
Attorney-General (NSW) v X (02 August 2000)
Dietrich saw the High Court declaring this negative right to be a matter of substance, not
mere form. In Gaudron J's words (at 362):
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((204) 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((205) 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.
29. I would grant special leave to appeal, allow the appeal from the order of the Court of Criminal
Appeal, allow the appeal to that Court, quash the conviction of the applicant and order a retrial. This
Court cannot make any orders relating to the circumstances of a retrial. But if there is a retrial and the
applicant is unrepresented, through no conduct of his own, it is apparent that the issues which have
been agitated on this application may arise again.
GAUDRON J. 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((207) Wilde v. The Queen (1988) 164 CLR 365, per
Deane J. at p 375 ; Jago v. District Court (N.S.W.) (1989) 168 CLR 23, per Deane J. at p 56 ; Reg. v. Glennon (
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]
Police v Dunstall (05 August 2015) (French CJ, Kiefel, Bell, Gageler, Keane and Nettle JJ)
The first example is where the weight and credibility of evidence cannot be effectively tested
[85]
He calls in aid Gaudron J's discussion of fairness in its application to the rules of evidence in
Dietrich v The Queen[87]:
Haddara v the Queen (27 May 2014) (Redlich, Weinberg and Priest JJA)
[205] Whether these principles are beyond the reach of statute law to modify or abolish, or
at least require an explicit and unmistakable legislative intent to do so, we do not stay to
consider, but it may be that if the
Dupas v The Queen (21 December 2012) (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno
JJA)
Her Honour observed:[39]
DPP v Moore (29 July 2003) (Batt, Chernov and Eames, JJ.A.)
In Dietrich v. The Queen[52] Gaudron, J
R v NRC (19 November 1999) (Winneke, P., Charles and Chernov, JJ.A.)
In Dietrich, Gaudron, J. at 363 said that evidence might be excluded –
2. The fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution by
Ch.III's implicit requirement that judicial power be exercised in accordance with the judicial process.
Otherwise the requirement that a trial be fair is not one that impinges on the substantive law governing
the matter in issue. It may impinge on evidentiary and procedural rules; it may bear on when and where
a trial should be held; in exceptional cases it may bear on whether a trial should be held at all. Speaking
generally, the notion of "fairness" is one that accepts that, sometimes, the rules governing practice,
procedure and evidence must be tempered by reason and commonsense to accommodate the special
case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the
requirement results in the exclusion of admissible evidence because its reception would be unfair to the
accused in that it might place him at risk of being improperly convicted((208) McDermott v. The King (19
48) 76 CLR 501, per Dixon J. at pp 511-515 ; Driscoll v. The Queen (1977) 137 CLR 517, per Gibbs J. at p 541.),
either because its weight and credibility cannot be effectively tested(( 209 ) McDermott v. The King
(1948) 76 CLR, per Dixon J. at pp 511-515; R. v. Lee (1950) 82 CLR 133, at p 144 . See Pattenden, Judicial
Discretion and Criminal Litigation, (1990), p 233.) or because it has more prejudicial than probative value
and so may be misused by the jury((210) R. v. Christie (1914) AC 545, at p 560 ; Harris v. Director of Public
Prosecutions (1952) AC 694, at p 707 ; Driscoll v. The Queen (1977) 137 CLR, per Gibbs J. at p 541. See
Waight and Williams, Evidence Commentary and Materials, 3rd ed. (1990), p 11 and Pattenden, op cit, p
233.). In other cases, the procedures may be modified, for example, to allow evidence to be given
through an interpreter((211) See Johnson (1987) 25 A Crim R 433 and R. v. Lee Kun (1916) 1 KB 337 .), or to
allow for special directions to counteract the effect of pre-trial publicity or even something said or done
in the trial itself((212) See Jago v. District Court (N.S.W.) (1989) 168 CLR, per Brennan J. at pp 46-47, 49;
Reg. v. Glennon (1992) 173 CLR, per Brennan J. (with whom Dawson J. agreed) at p 614, per Deane,
Gaudron, McHugh JJ. at p 623.). Sometimes the venue may be changed to counteract some perceived
difficulty in obtaining a fair trial in the area in which the offence was committed; in other cases
proceedings may be adjourned, for example, to enable evidence to be checked or to allow for pre-trial
publicity to abate. The examples are not exhaustive. They are, however, sufficient to show that the
requirement of fairness is, and, in various different contexts, has been recognized as, independent from
and additional to the requirement that a trial be conducted in accordance with law.
Nguyen v The Queen (30 June 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and
Edelman JJ)
They vary according to the circumstances of the particular accused person and the
changing circumstances of the case, and over time can even change with changing social
values[108]
Ardrey v The State of Western Australia [No 2] (07 March 2017) (Buss P, Mazza JA, Mitchell JA)
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 364 (Gaudron J)
As Gaudron J observed in another context, "what is fair very often depends on the
circumstances of the particular case" and "notions of fairness are inevitably bound up with
prevailing social values"[156]
Hence, "the inherent powers of a court to prevent injustice are not confined within closed
categories"[157]
Those powers include the power to take appropriate action to prevent injustice[135]
State of New South Wales v Public Transport Ticketing Corporation (No 3) (22 July 2011) (Allsop
P at 1, Hodgson JA at 41, Sackville AJA at 42)
Dietrich v The Queen [1992] HCA 57; 177 CLR 292 at 364
Em v The Queen (04 October 2007) (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ)
[97] cf Dietrich v The Queen (1992) 177 CLR 292 at 364
Batistatos v Roads and Traffic Authority of New South Wales (14 June 2006) (Gleeson CJ,
Gummow, Hayne, Crennan, Kirby, Callinan JJ)
notions of justice and injustice, as well as other considerations that bear on public
confidence in the administration of justice, must reflect contemporary values and, as well,
take account of the circumstances of the case[37]
Reid v Howard (16 August 1995) (Deane(1), Toohey(2), Gaudron(2), McHugh(2) and Gummow(2)
JJ)
and McHugh JJ)
The Queen (1992) 177 CLR 292 at 328-329, 364
3. The requirement of fairness is not only independent, it is intrinsic and inherent. According to our
legal theory and subject to statutory provisions or other considerations bearing on the powers of an infer
ior court((213) Grassby v. The Queen (1989) 168 CLR 1, at pp 10, 16-17.) or a court of limited jurisdiction(( 214
) Reg. v. Forbes; Ex parte Bevan (1972) 127 CLR 1, at p 8 ; Jackson v. Sterling Industries Ltd. (1987) 162 CLR
612, at pp 618-619, 623-624, 630-631.), the power to prevent injustice in legal proceedings is necessary and,
for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in
every case(( 215 ) Cocker v. Tempest 7 M.and W. 501, at pp 503-504 ( 151 ER 864, at p 865 ); Riley McKay
Pty. Ltd. v. McKay (1982) 1 NSWLR 264, at p 270 ; Wentworth v. New South Wales Bar Association (1992)
66 ALJR 360, at p 364; 106 ALR 624, at p 630 .). Thus, every judge in every criminal trial has all powers
necessary or expedient to prevent unfairness in the trial((216) Connelly v. Director of Public
Prosecutions (1964) AC 1254, at pp 1301-1302, 1347 ; Barton v. The Queen (1980) 147 CLR 75, at pp 96, 107 ;
Jago v. District Court (N.S.W.) (1989) 168 CLR, at p 75 .). Of course, particular powers serving the same
end may be conferred by statute or confirmed by rules of court((217) See, for example, s.23 of the
Supreme Court Act 1970 (N.S.W.) referred to in Riley McKay Pty. Ltd. v. McKay (1982) 1 NSWLR, at pp
269-270 .).
4. The notion of a fair trial and the inherent powers which exist to serve that end do not permit of
"idiosyncratic notions of what is fair and just"((218) Pavey and Matthews Pty. Ltd. v. Paul (1987) 162 CLR
221, per Deane J. at p 256 .) any more than do other general concepts which carry broad powers or
remedies in their train. But what is fair very often depends on the circumstances of the particular case.
Moreover, notions of fairness are inevitably bound up with prevailing social values. It is because of
these matters that the inherent powers of a court to prevent injustice are not confined within closed
categories((219) Tringali v. Stewardson Stubbs and Collett Ltd. (1966) 66 SR(NSW) 335, at p 344 ; Jackson
v. Sterling Industries Ltd. (1987) 162 CLR, at p 639 ; Hamilton v. Oades (1989) 166 CLR 486, at p 502 ; Jago
v. District Court (N.S.W.) (1989) 168 CLR, at pp 25-26, 74 .). And it is because of those same matters that,
save where clear categories have emerged, the enquiry as to what is fair must be particular and
individual. And, just as what might be fair in one case might be unfair in another, so too what is
considered fair at one time may, quite properly, be adjudged unfair at another.
As Gaudron J observed in Dietrich at 365, “[t]he question whether public funds should be
allocated for the legal representation of persons charged with criminal offences is one for
governments, not the courts
Davies v The Queen (26 November 2018) (Kaye, McLeish and T Forrest JJA)
[13] Rather, the issue is whether any, and if so which, of the circumstances, specified by the
applicant, impede the applicant’s right to a fair hearing, by preventing him from being able
to properly and effectively present
Often there are less drastic steps available to courts which are capable of preserving the
fairness of a trial[198]
trial – including granting a stay, "tempering the rules and practices to accommodate the
case concerned"[200] or, to the extent that the issue was capable of being addressed by
directions to the jury, making appropriate
Tompkins v Honeyman (31 July 2009) (McMurdo P, Fraser JA and Jones J,)
Re JJT; Ex Parte Victoria Legal Aid (25 June 1998) (Gaudron, Gummow, Kirby, Hayne and
Callinan JJ)
was preserved by the Parliament out of recognition of the need to respect the control of the
executive government over the expenditure of legal aid funds raised, for the most part, from
taxation levied on the people[96]
5. The question in this case can be put in various ways, including whether an accused person who
cannot provide for his own defence has a right to be provided with counsel at public expense. No right
of that kind is conferred by statute; nor has it been recognized by the common law. Indeed, there are
passages in McInnis v. The Queen((220) (1979) 143 CLR 575, per Barwick C.J. (with whom Aickin J. and
Wilson J. agreed) at p 579 : "It is proper to observe that an accused does not have a right to be provided
with counsel at public expense."; per Mason J. at p 581: "an accused in Australia does not have a right to
present his case by counsel provided at public expense". But cf. Murphy J. at p 583: "Every accused
person has the right to a fair trial, a right which ... includes the right to counsel in all serious cases. This
right should not depend on whether an accused can afford counsel."; and later at p 592: "If a person on a
serious charge, who desires legal assistance but is unable to afford it, is refused legal aid, a judge should
not force him to undergo trial without counsel.") which deny the right exists. Accordingly, if put in terms
of a right to be provided with counsel at public expense, the question is whether a right of that kind
should now be recognized. The question whether public funds should be allocated for the legal
representation of persons charged with criminal offences is one for governments, not the courts. But, as
already indicated, courts are duty bound to ensure that trials are conducted fairly.
6. A trial is not necessarily unfair because it is less than perfect((221) Jago v. District Court (N.S.W.) (1989)
168 CLR, per Brennan J. at p 49.), but it is unfair if it involves a risk of the accused being improperly
convicted((222) See fn.(208)). If the only trial that can be had is one that involves a risk of that kind, there
can be no trial at all((223) Jago v. District Court (N.S.W.) (1989) 168 CLR, per Mason C.J. at pp 30, 31, 34,
per Deane J. at pp 56-58, per Toohey J. at pp 71-72, per Gaudron J. at p 75; Reg. v. Glennon (1992) 173 CLR,
per Deane, Gaudron, McHugh JJ. at p 623.). 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.
7. 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.
8. Mr Dietrich stood trial in the County Court of Victoria on four charges under s. 233B of the Customs
Act 1901 (Cth) . The first was a charge of importing a trafficable quantity of heroin. The second and third
charges were charges of possession of that heroin and were alternative to the first charge. The fourth
charge was also a charge of possession of heroin, but it was separate from the others. The offences are
punishable by life imprisonment or "for such period as the Court thinks appropriate".((224) Customs Act
1901 (Cth), s. 235(2).) Obviously, they are serious offences.
9. Mr Dietrich was arrested and charged on 18 December 1986. He was refused bail. On 10 August 1987,
he was committed for trial and was again refused bail. He remained in custody until presented for trial
on 23 May 1988. He was not legally represented. His case was that the heroin, including that in the fourth
charge, had been "planted" on him; in other words, that the evidence had been fabricated.
Notwithstanding that the burden of proof is with the prosecution, a defence of that kind poses
considerable forensic difficulties((225) See, as to the difficulties with respect to records of interview, Carr
v. The Queen (1988) 165 CLR 314 and McKinney v. The Queen; Judge v. The Queen (1991) 171 CLR 468 .).
10. After a trial lasting several weeks, Mr Dietrich was convicted on the first charge and,
notwithstanding the difficulties inherent in the defence case, acquitted on the fourth. No verdicts were
taken on the second and third charges, for, as already mentioned, they were alternative to the first. An
appeal to the Full Court of the Supreme Court of Victoria was unsuccessful. He now seeks special leave
to appeal to this Court on the ground that he should not have been required to stand trial without legal
representation.
11. Mr Dietrich was unrepresented because he had neither means nor money to secure a lawyer and
because he was refused legal aid. He applied for legal aid following his committal for trial. He first
applied to the Legal Aid Commission of Victoria ("the Commission"), a body established pursuant to the
Legal Aid Commission Act 1978 (Vic.) ("the Act") for the provision of legal aid. That body has power to
grant legal aid in cases arising under the laws of the Commonwealth((226) Legal Aid Commission Act
1978 (Vic.), ss.3, 10.), provided that regard is had to the recommendations of the Commonwealth Legal
Aid Commission.
12. The Commission indicated that legal aid would be available should Mr Dietrich plead guilty, but his
application for legal representation to defend the charges was refused. An appeal to a legal aid review
committee was unsuccessful. He had no further right of appeal for, by s.36(3) of the Act, "(t)he decision of
a legal aid appeal committee is final and conclusive." Mr Dietrich then applied to the Supreme Court of
Victoria pursuant to s. 69(3) of the Judiciary Act 1903 (Cth) which relevantly provides:
counsel for his defence."
Unfortunately, more than fourteen days had passed before Mr Dietrich made his application and it was
refused.
13. As earlier indicated, Mr Dietrich was presented for trial in the County Court of Victoria on 23 May
1988. There was a preliminary discussion about the indictment, during which the trial judge said:
"Mr Dietrich, you are appearing for yourself; is that correct?"
Mr Dietrich replied:
"I cannot appear for myself, I'm not legally minded."
He added:
"I don't understand the system, what is going to happen to me, and I've got no idea."
Later he said:
"I don't want to show any disrespect to this court. I'm not emotionally and mentally fit to
conduct my own trial, and I don't want to take the brunt of ... I know my own character, I
know what's going to happen, and it's going to look bad in front of the jury and I'm not
prepared to take that chance. I'll just sit here mute."
14. This exchange is eloquent of the central and inevitable problems confronting an accused person who
must present his own defence. He is doubly disadvantaged, first by lack of knowledge and, then, by the
stress of the occasion. There are often other problems, some of which may be seen in this case. Mr
Dietrich asked permission for a fellow prisoner to be present in court, if for no other purpose, to take
notes for him. The trial judge ruled:
"You can take your own notes. A table will be provided, or facilities will be provided; paper
will be provided; a pen will be provided; and you can take your own notes."
Mr Dietrich also complained that, by reason of his having been held in custody, he had been unable to
investigate matters bearing on his defence and to speak to persons whom he wished to call as witnesses.
Different cases may raise different or additional difficulties and, as is pointed out by Steytler((227) The
Undefended Accused on Trial (1988), p 1.), the difficulties of an unrepresented person "may be
exacerbated by problems such as illiteracy, language difficulties, and class or cultural differences".
15. There are many expressions of the importance of legal representation in a criminal trial((228) See, for
example, McInnis v. The Queen (1979) 143 CLR, per Barwick C.J. at p 579, per Mason J. at p 582, per
Murphy J. at pp 586-591; Powell v. Alabama (1932) 287 US 45, at pp 68-69 ; Gideon v. Wainwright (1963)
372 US 335, at p 344 .). Perhaps the best known is to be found in Galos Hired v. The King((229) (1944) AC
149, at p 155 ) where it was said:
"The importance of persons accused of a serious crime having the advantage of counsel to
assist them before the courts cannot be doubted by anybody who remembers the long
struggle which took place in this country and which ultimately resulted in such persons
having the right to be represented by counsel".((230) The rule in England until 1836 was
that, although a person might be represented in civil proceedings, in criminal proceedings for
misdemeanours and, from 1695, for treason, there was no right of representation on a charge of felony
except on a question of law which the unrepresented accused himself raised. See Holdsworth, A History
of English Law, vol.9, 3rd. ed. (1944), p 235. For an account of the "long struggle", see Chowdharay-Best,
"The History of Right to Counsel", (1976) 40 Journal of Criminal Law 275.)
16. There are now statutory provisions conferring a right on an accused person to be represented on his
trial((231) See, s. 78 Judiciary Act 1903 (Cth) ; s.402 Crimes Act 1900 (N.S.W.); s.402 Crimes Act 1900 (N.S.
W.) as it applies to the A.C.T.; s.360 Criminal Code (N.T.); s. 616 Criminal Code (Qld) ; s.288 Criminal
Law Consolidation Act 1935 (S.A.); s.368 Criminal Code (Tas.); s.397 Crimes Act 1958 (Vic.); s.634 Criminal
Code (W.A.).). That right is conferred in cases involving federal jurisdiction, as this case does, by s. 78 of
the Judiciary Act which relevantly provides:
"In every Court exercising federal jurisdiction the parties may appear personally or by such
barristers or solicitors as ... are permitted to appear therein."
17. It has been the case, almost since the right to legal representation was first acknowledged, that
accused persons have generally been legally represented in jury trials. In part, that may have been
because legal representation was more affordable than is now the case; in part, it may have been
because of various schemes for legal assistance which have operated at various times, ranging from "the
Dock Brief"((232) See Halsbury's Laws of England, 4th ed., vol.3, par.1141; Borrie and Varcoe, Legal Aid in
Criminal Proceedings, (1968), p 3. The English Bar Council abolished the rules for Dock Briefs in 1980.)
or other early attempts to provide financial assistance((233) For a history of the origins of legal aid see
Ross, "A Legal Assistance Scheme", (1948) 22 Australian Law Journal 51; Cranston and Adams, "Legal Aid
in Australia" (1972) 46 Australian Law Journal 508. As early as 1876 in South Australia, for example, a
person accused of a capital offence could apply to the judge for assistance: s.373 Criminal Law
Consolidation Act 1876 (S.A.). By the first years of this century all States and the Commonwealth had
provisions for legal assistance for persons committed for trial on an indictable offence; see Cranston and
Adams, ibid., at p 515. These schemes were based on the English Poor Prisoners' Defence Act 1903 (3 Edw.
VII c.38) and were entirely discretionary. The subsequent history of criminal legal aid varied widely
from State to State but culminated with modern statutory schemes in all States and Territories; see
National Legal Aid Advisory Committee, Legal Aid for the Australian Community, (1990), pp 32-36.) to
modern statutory schemes((234) Modern comprehensive statutory schemes began with the enactment of
the Commonwealth Legal Aid Commission Act 1977 (Cth) and from the same year, beginning in
Western Australia, legislation establishing State or Territory Legal Aid Commissions, independent
statutory bodies with the responsibility of providing legal aid in accordance with the respective Act and
controlling and administering the legal aid fund, was enacted throughout Australia. By 1981 New South
Wales, Victoria, Western Australia, South Australia, Queensland and the A.C.T. had Legal Aid
Commissions; see Legal Aid for the Australian Community, ibid., p 36. Tasmania and the Northern
Territory followed in 1990.), funded, in large measure, by public moneys and directed to the provision of
legal aid in those cases where the relevant Legal Aid Commission considers that a person is in need of
assistance and it is reasonable to provide it.
18. The fact that, since the right was first acknowledged, persons have generally been represented in
criminal trials may or may not have had a direct influence on the subsequent development of the
criminal law and the laws and procedures governing criminal trials. But it may be assumed that the law
and procedures would not have developed with quite the same degree of technical complexity if the
position had been that accused persons were expected to represent themselves in any but the isolated
case.
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. As was said in Powell v. Alabama((235) (1932) 287 US, at p 61 .):
"But how can a judge, whose functions are purely judicial, effectively discharge the
obligations of counsel for the accused? He can and should see to it that in the proceedings
before the court the accused shall be dealt with justly and fairly. He cannot investigate the
facts, advise and direct the defense, or participate in those necessary conferences between
counsel and accused which sometimes partake of the inviolable character of the
confessional."
20. There are two features of the criminal trial that strongly challenge the assumption that a trial may be
fair notwithstanding that the accused, contrary to his wishes, is not represented. The first is the
adversarial nature of the proceedings. The second is the nature of the forensic contest involved.
21. The adversary system has been described by Brouwer as "party oriented"((236) "Inquisitorial and
Adversary Procedures - a Comparative Analysis", (1981) 55 Australian Law Journal 207.), signifying that,
to a large extent, it is the parties who determine the area of dispute and the evidence presented in that
dispute. Decisions as to the evidence to be called and as to the course of cross examination determine
the factual account on which the jury must reach its verdict. And it must be expected that that
evidentiary account will, on occasions, differ from the underlying facts((237) ibid., at pp 208, 221.).
Further, as Certoma((238) "The Accusatory System v. The Inquisitional System : Procedural Truth v.
Fact" (1982) 56 Australian Law Journal 288, at p 291. See also Ziedler, "Evaluation of the Adversary
System: As Comparison, Some Remarks on the Investigatory System of Procedure (1981) 55 Australian
Law Journal 390, at p 391.) points out, the factual account that emerges does so as a product of
collaboration between the parties, whether overt or otherwise. Thus, in any given case, the way in which
the case is conducted may affect its outcome. And, of course, that means that the knowledge and
forensic skills which legal representation would bring to bear might also affect its outcome.
22. The forensic contest in a criminal trial is whether guilt has been proved beyond reasonable doubt.
That contest occurs in a context in which the jury is free to disbelieve all or any of the evidence or, more
pertinently, not to be satisfied as to the truth of matters the burden of proving which, almost invariably,
rests on the prosecution((239) See Wilde v. The Queen (1988) 164 CLR, at pp 384-385 .). Bearing in mind
the presumption of innocence, it is simply not possible to say that, in that contest and in that context,
the absence of legal representation does not involve a risk of the accused being improperly convicted.
23. In the United States of America, the right to counsel is a constitutional right deriving, to the extent
that it is not comprehended in the Sixth Amendment, from the "due process of law" clauses of the Fifth
and Fourteenth Amendments((240) The Fifth Amendment of the Constitution of the U.S.A. relevantly
states: "No person shall ... be deprived of life, liberty, or property, without due process of law". The
Fourteenth Amendment states: "... (No State shall) deprive any person of life, liberty or property,
without due process of law".). It was held to be an aspect of "due process" in Powell v. Alabama((241) (1932
) 287 US, at pp 68-69 ) for these reasons:
"The right to be heard would be, in many cases, of little avail if it did not comprehend the
right to be heard by counsel. Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good or bad. He is unfamiliar with the
rules of evidence. Left without the aid of counsel he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his
defense, even though he have a perfect one. He requires the guiding hand of counsel at
every step in the proceedings against him. Without it, though he be not guilty, he faces the
danger of conviction because he does not know how to establish his innocence."
That analysis, though undertaken in a different legal context, confirms my view that, at least insofar as
serious offences are concerned, legal representation, where it is desired, is essential for a fair trial.
24. The conclusion that legal representation, if desired, is necessary for a fair trial of serious offences
may not sit comfortably with the decision in McInnis. In that case Murphy J. considered that legal
representation was essential for a fair trial. His Honour also held that the absence of legal
representation constituted a serious miscarriage of justice and, on that account, would have quashed the
convictions involved. The other Justices concluded that no miscarriage of justice had been involved and
that the application for special leave to appeal should be refused. None of their Honours positively
asserted that the trial had been fair, but a finding to that effect is implicit in the judgment of Barwick C.J.
(with whom Aickin and Wilson JJ. agreed) in so far as his Honour was not prepared to find that the trial
judge erred in refusing an adjournment to enable the accused to seek legal representation((242) (1979)
143 CLR, at p 579 ). Thus, it is necessary to turn to the question whether, so far as it bears on the present
matter, the decision in that case should be reconsidered.
25. There are three matters which, in my view, favour reconsideration of McInnis. The first is the
fundamental importance of the trial within our system of criminal justice. In cases where the
investigation is less than perfect - and in many cases, perfect investigation is impossible - a fair trial
according to law is the only protection that our system provides against a person being convicted of an
offence that he did not commit.
26. The second matter which favours reconsideration of McInnis is that the notion of "fairness" is not
one that is absolute. As earlier indicated, it is one that may have different content in different cases and
at different times. And in this regard, it is not without significance that, since McInnis was decided, the
position with respect to the provision of legal aid has been secured by statute in every State and
Territory of the Commonwealth. When Mr McInnis stood trial in 1978, modern statutory legal aid
schemes were in their infancy((243) See supra fn.(234)), developing along the lines of the
Commonwealth Legal Aid Commission which was established by statute only in 1977. Schemes of the
same kind were established in Western Australia and Victoria in 1977 and 1978 and, by 1981, they existed
in all mainland States and the Australian Capital Territory. In 1990 similar schemes were established in
Tasmania and the Northern Territory. The establishment, development and spread of these
comprehensive legal aid schemes, which now operate throughout the Commonwealth, constitute
strong evidence of current and widespread community expectation that an accused person who cannot
afford a lawyer should not be forced to stand trial unrepresented.
27. The third reason for reconsidering McInnis is the importance of legal representation - an importance
which is not only recognised in our legal system but in those of other advanced countries. There are, of
course, special problems with developing and third world countries((244) See Steytler op cit, pp 18-22,
238-242. And see S v. Rudman; S v. Mthwana (1992) 1 South African LR 343. In that case the Appellate
Division of the Supreme Court of South Africa decided legal representation was not essential for a fair
trial, holding that it was impractical to oblige the State to provide counsel to indigent accused when
such an obligation would result in an intolerable burden on the organization and financial status of the
legal aid system.), but most advanced countries proceed on the view that a person accused of a serious
offence should be legally represented at his trial. In the United States, constitutional provisions have
been construed as comprehending the right of an indigent accused person to have counsel appointed
for his defence((245) Gideon v. Wainright (1963) 372 US 335 . See also Argersinger v. Hamlin (1972) 407 US
25, at p 37 where it was held that an indigent person who does not have the benefit of counsel may not be
deprived of his liberty.). Member countries of the European Community are bound by the European
Convention for the Protection of Human Rights and Fundamental Freedoms which provides for legal
representation in these terms((246) Art.6(3)):
"Everyone charged with a criminal offence has the following minimum rights: ... (c) to
defend himself in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assitance, to be given it free when the interests of justice so
require".
In England, a member country of the European Community, a statutory scheme provides for
representation at public expense((247) Under the Legal Aid Act 1988 (U.K.) legal representation may be
granted to a person who meets the financial requirements where the court to which the application is
made considers it to be desirable in the interests of justice. The Act specifies factors which are to be
taken into account in making this determination and they include the likelihood of the deprivation of
liberty or damage to livelihood or reputation of the accused. In some cases (such as murder trials)
representation must be granted.). And the countries which are parties to the International Covenant on
Civil and Political Rights - and they include Australia - have assumed an obligation as specified in
Article 14(3)(d), which is as follows:
following minimum guarantees, in full equality: ... (d) ... to have legal assistance assigned to
him, in any case where the interests of justice so require".
28. Quite apart from the three matters to which I have already referred, the decision in McInnis is
comparable with the decisions that were overruled in John v. Federal Commissioner of Taxation((248) (1
989) 166 CLR 417). In that case, there were several features of the overruled decisions which also attend
the decision in McInnis, including that "the earlier decisions did not rest upon a principle carefully
worked out in a significant succession of cases", that "the earlier decisions had achieved no useful result
but on the contrary had led to considerable inconvenience" and that "the earlier decisions had not been
independently acted on in a manner which militated against reconsideration"((249) ibid., at pp 438-439 ).
29. One other factor was present in John v. Federal Commissioner of Taxation, namely, that "there was a
division of opinion among the justices of the Court constituting the majority" in one of the earlier
decisions((250) ibid., at p 440). As earlier indicated, in McInnis Barwick C.J. was not persuaded that the
trial judge erred in refusing an adjournment to enable the accused to seek legal representation.
However, Mason J., who agreed with Barwick C.J. that special leave to appeal should be refused, was of
the view that "the adjournment should have been granted" and "the (accused) should not have been
forced on with very little opportunity given to him to prepare personally the conduct of his defence".
((251) (1979) 143 CLR, at p 582 )
30. 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.
31. This application raises a further question as to the nature of the enquiry to be undertaken in an
appeal based on a decision requiring an accused to stand trial notwithstanding that, contrary to his
wishes, he is unrepresented. Mr Dietrich's appeal to the Full Court was, by force of s. 79 of the Judiciary
Act , governed by s.568(1) of the Crimes Act 1958 (Vic.). That sub-section provides:
"The Full Court on any such appeal against conviction shall allow the appeal if it thinks that
the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be
supported having regard to the evidence or that the judgment of the court before which the
appellant was convicted should be set aside on the ground of a wrong decision of any
question of law or that on any ground there was a miscarriage of justice and in any other
case shall dismiss the appeal: Provided that the Full Court may, notwithstanding that it is of
opinion that the point raised in the appeal might be decided in favour of the appellant,
dismiss the appeal if it considers that no substantial miscarriage of justice has actually
occurred."
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 (195
5) 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".
33. As a general rule, little is to be gained by approaching a proviso of the kind found in the common
criminal appeal provisions on the basis that one side or the other bears a persuasive burden as to some
or all of the matters in issue. A persuasive burden is one that arises, if at all, from the nature of the error
or the nature of the particular case. A burden of that kind has been recognized in cases involving a
misdirection of law so that, generally, it is for the prosecution to establish that, even if there had been no
misdirection, the jury would have come to the same conclusion((253) Quartermaine v. The Queen (1980)
143 CLR 595, at pp 600-601 . See also Wilde v. The Queen (1988) 164 CLR 365 .). And, where the prima
facie position is that, had the accused been represented, a different result might have been achieved, it
must also be the case that, generally, it is for the prosecution to establish that, even with representation,
conviction would have been inevitable.
34. An approach which would generally require the prosecution to show that, even with legal
representation, conviction would have been inevitable may not accord exactly with the approach taken
in McInnis. In that case, counsel for the applicant conceded that "he had to show something more than
that the adjournment was wrongly refused"((254) (1979) 143 CLR, at p 582 ) in order to bring himself
within s.689(1) of the Criminal Code (W.A.), which, for all practical purposes, is the same as s.568(1) of
the Crimes Act. That concession may have been made by reason that much of the evidence at the trial,
which was for rape and related offences, was uncontested and the substantial issue was whether it
resulted from the matters alleged by the prosecution or from earlier consensual intercourse. Whatever
the basis of the concession, it is clear that, as a general rule, where the accused has not been legally
represented, the starting point on appeal must be that representation might have made a difference to
the outcome of the case.
35. The present case is not one in which it can be said that the conviction sustained by Mr Dietrich was
inevitable. The charges against him related to three quantities of heroin, one located in a condom in a
kitchen tidy, one in a plastic bag in a study and the other, also in a condom, found in Pentridge prison.
The primary case against Mr Dietrich was that he imported the heroin found in the condoms. As an
alternative to this case were two separate charges of possession of the heroin found in the condoms in
the kitchen and the prison, respectively. The final charge was possession of the heroin found in the
study.
36. The prosecution case was undoubtedly a strong one, but it was not without its difficulties. Proof of
importation depended largely on an inference to that effect being drawn from other evidence, including
the finding of heroin in the condoms in the kitchen tidy and at Pentridge prison. If the jury were not
satisfied as to possession of one or other of those lots of heroin, it could not be satisfied as to
importation. And, if it were not satisfied as to possession of one or other of the lots, that might bear on
its finding as to possession of the other, particularly as the defence case was that all three lots of heroin
had been "planted" on the accused. It seems that the jury may have had some difficulty in accepting the
prosecution case with respect to the heroin in the kitchen tidy, for clarification was sought with respect
to the importation charge in these terms:
"We want it clarified in regard to if, say, for instance, that we maybe do not agree, or could
not reach a verdict, in regard to the condom found at the flat, but we did agree on what was
found at the prison, does that still class it as importation or must it be on both."
Given the doubt with respect to the heroin in the kitchen tidy that is implicit in that request for
clarification, and given that the jury rejected the prosecution case with respect to the heroin found in
the study, it cannot be said that conviction with respect to the heroin found in Pentridge prison was
inevitable, whether on a charge of importation or of possession.
, Dawson J, with whom Gaudron J agreed[18] on this point, said:
37. One other matter should be noted. This case is one in which the accused was unrepresented because
he lacked means to provide for his defence and because he was refused legal aid. It is not a case where
the decision of the trial judge denied the accused an opportunity to obtain legal representation or, for
that matter, to apply for legal aid. In a case involving the denial of an opportunity to obtain legal
representation, whether through a legal aid scheme or privately, there would be a denial of the right to
trial with representation. Like Dawson J., I am of the view that a denial of that kind would result in the
trial being fundamentally flawed so that, without further enquiry, a conviction entered against the
accused would have to be set aside. The present case is not a case of that kind. It is a case to be
determined by application of s.568(1) of the Crimes Act.
38. The application for special leave to appeal should be granted. The appeal should be allowed and the
conviction set aside. A new trial may be had if Mr Dietrich is able to obtain legal representation.
Orders
Application for special leave to appeal granted.
Appeal allowed.
Set aside the order of the Court of Criminal Appeal of Victoria. In lieu thereof:
(i) allow the application to that Court for leave to appeal
against conviction;
(ii) allow that appeal; (iii) quash the conviction; and

(iv) order that there be a new trial.
Cited by:
R v Pablo [2021] QCA 41 (12 March 2021) (Fraser and McMurdo and Mullins JJA)
They indicate that some assistance was provided to the applicant by someone who knew about
certain cases,[11] but with no understanding of their irrelevance to the applicant’s case
Day v Woolworths Group Limited [2021] QCA 42 (12 March 2021) (Mullins JA and Henry and Williams JJ)
, cited Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, cited
fact she was self-represented carried the dual disadvantages, identified by Mason J and McHugh J
in Dietrich v The Queen,[36] that she did not have the legal knowledge and skill or the capacity for
dispassionate assessment
fact she was self-represented carried the dual disadvantages, identified by Mason J and McHugh J
in Dietrich v The Queen,[36] that she did not have the legal knowledge and skill or the capacity for
dispassionate assessment
Lacey (a pseudonym) v Attorney General for New South Wales [2021] NSWCA 27 (10 March 2021)
(Basten JA at [1]; Leeming JA at [41]; McCallum JA at [51])
It respects the prohibition upon a court imposing a cost order upon the Crown, a constraint
recognised in Dietrich v the Queen (1992) 177 CLR 292
NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 30 (10 March 2021) (Farrell, Wigney and Perry JJ)
of the Commonwealth Constitution, the decision of the High Court in Dietrich v The Queen (1992)
177 CLR 292 (Dietrich) at 326 (Deane J) and 362 (Gaudron J), the common law of procedural fairness,
and “customary
, the common law of procedural fairness, and “customary international law, which has been
adopted or incorporated into the common law of Australia” citing relevantly Dietrich at 321
(Brennan J) and
However, the decision in Dietrich established that an accused person in a criminal trial has no
right or entitlement to publically funded legal representation at common law or under the
Constitution:
to publically funded legal representation at common law or under the Constitution: Dietrich at 297–
298 (Mason CJ and McHugh J), 317 (Brennan J), 330 (Deane J), 343 (Dawson J), 356 (Toohey J), and
364–365 (Gaudron J)
As Gaudron J observed in Dietrich at 365, “[t]he question whether public funds should be allocated
for the legal representation of persons charged with criminal offences is one for governments, not
the courts
” While Mr NWQR’s counsel sought to distinguish Dietrich on the basis that the present case was a
public law matter concerning an impecunious individual in immigration detention, no principled
reason was given as to why such
Nor, in line with the decision in Dietrich does the appellant’s reliance upon Ch III of the
Furthermore, to the extent that the appellant relied upon Dietrich to suggest that a stay ought to be
granted, the contention fails to appreciate that in contrast to the situation of an accused person in a
criminal trial, the
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA
6 (04 March 2021) (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ)
and that the need for fairness applies to the discharge of that duty[35]
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA
6 (04 March 2021) (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ)
understand English, or both, there are usually rules of court which may be deployed to ensure that
a court performs its duty[54] to give such a person a fair trial and that the person is otherwise
accorded procedural fairness
Bell v The Queen; R v Bell; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116 -
Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298 (19 November 2020) (Basten JA at [1];
Meagher at [69]; Simpson AJA at [70])
(1992) 177 CLR 292 at 311-312 (Mason CJ and McHugh J)
Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298 (19 November 2020) (Basten JA at [1];
Meagher at [69]; Simpson AJA at [70])
[1992] HCA 57
Russell v Eaton [2020] VSCA 249 (25 September 2020) (Kyrou JA)
However, in Dietrich v The Queen,[41] the majority of the High Court held that, in order to ensure
a fair hearing, a court has power to adjourn, postpone or stay a criminal prosecution of a serious
offence until legal
The principle in Dietrich applies only to serious criminal cases
He acknowledged that this submission ‘necessarily demands an extension of the principles in
[Dietrich]’
d although Dietrich did not hold that a litigant has a right to publicly funded defence counsel,
rather than a court ought to stay its proceedings in some circumstances, in the absence of publicly
funded defence
The principle in Dietrich upon which the applicant relied did not apply to the judicial review
proceeding before McDonald J
Russell v Eaton [2020] VSCA 249 -

However, in Dietrich v The Queen,[41] the majority of the High Court held that, in order to ensure
a fair hearing, a court has power to adjourn, postpone or stay a criminal prosecution of a serious
offence until legal
Russell v Eaton [2020] VSCA 249 -

NG -v- COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [No 2] [2020] WASCA 160 (24
September 2020) (Murphy JA, Vaughan JA)
Dietrich v R [1992] HCA 57; (1992) 177 CLR 292
the decision of the High Court in Dietrich v R[6] and what was said in the Supreme Court of the
United States of America in
In determining whether it was in the interests of justice that the appeal be stayed, the principle in
Dietrich v R did not assist the appellants
The principle for which Dietrich v R stands was stated in that case by Mason CJ and McHugh J as
follows:
The limited scope of the principle in Dietrich v R was recognised in
Among other things, in discussing Dietrich v R, a plurality comprising Mason CJ, Dawson, Toohey
and McHugh JJ observed that there was no suggestion in the majority judgments in
, a plurality comprising Mason CJ, Dawson, Toohey and McHugh JJ observed that there was no
suggestion in the majority judgments in Dietrich v R that the court would exercise a similar
jurisdiction in civil proceedings
[S]o far, the Dietrich principle excepted, there is no authority for the proposition that the rules of
procedural fairness extend to a requirement that legal representation be provided to a party at a
trial …
This court has affirmed the principle that, putting aside the principle in Dietrich v R, the rules of
procedural fairness do not extend to a requirement that legal representation be available to a party
appearing before a court
The principle in Dietrich v R is inapplicable
the decision of the High Court in Dietrich v R[6] and what was said in the Supreme Court of the
United States of America in
NG -v- COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [No 2] [2020] WASCA 160 -
[15] The principle is based on, and derives from, the accused's right to a fair trial where an indigent
person is charged with a serious criminal offence
[21] The practical reality is that where one of the parties is a self-represented litigant, this court, as a
matter of course, takes steps to ensure a fair and just appeal hearing in accordance with law
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 (14 August 2020) (Markovic,
Derrington and Anastassiou JJ)
Statements to the effect that, “Courts have an overriding duty to ensure that a trial is fair”: see, eg,
Dietrich v R (1992) 177 CLR 292, 330, 362
Davey v Tasmania [2020] TASCCA 12 (05 August 2020) (Blow CJ, Estcourt and Geason JJ)
Dietrich v The Queen (1992) 177 CLR 292 at 300, 353
Jackmain (a pseudonym) v The Queen [2020] NSWCCA 150 (03 July 2020) (Bathurst CJ at [1]; Leeming
JA at [26]; Johnson J at [230]; Button J at [236]; Wilson J at [240].)
Dietrich v The Queen (1992) 177 CLR 292
Nguyen v The Queen [2020] HCA 23 (30 June 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and
Edelman JJ)
It has been said that the concept of a fair trial cannot comprehensively or exhaustively be defined
[46]
Nguyen v The Queen [2020] HCA 23 (30 June 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and
Edelman JJ)
They vary according to the circumstances of the particular accused person and the changing
circumstances of the case, and over time can even change with changing social values[108]
Proudfoot v Director of Public Prosecutions [2020] VSCA 138 (29 May 2020) (Tate, McLeish and
Hargrave JJA)
, Dietrich v The Queen (1992) 177 CLR 292,
Hargrave JJA)
Proudfoot relies on Dietrich v The Queen,[42] and the judgment of Kirby P in
Hargrave JJA)
be provided with counsel at public expense and that Proudfoot’s reliance on Dietrich is misplaced
Hargrave JJA)
Dietrich stands for the proposition that the courts have the power to grant a stay of a proceeding
that will result in an unfair trial
Hargrave JJA)
As Mason CJ and McHugh J in Dietrich observed:
Hargrave JJA)
Proudfoot relies on Dietrich v The Queen,[42] and the judgment of Kirby P in
Proudfoot v Director of Public Prosecutions [2020] VSCA 138 -

Mendonca v Legal Services Commissioner [2020] NSWCA 84 (07 May 2020) (Basten JA at [1]; Leeming
JA at [2]; McCallum JA at [3])
“Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292
Kahil v The Queen [2020] NSWCCA 56 (30 March 2020) (Harrison J at [1]; Adamson J at [5]; Button J at
[29])
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Kahil v The Queen [2020] NSWCCA 56 (30 March 2020) (Harrison J at [1]; Adamson J at [5]; Button J at
[29])
The approach to be taken was laid down in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
by Mason CJ and McHugh J at 311:
Croke v R [2020] NSWCCA 8 (10 February 2020) (Adamson J; Beech-Jones J; Ierace J)

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 House v The King

The approach to be adopted in addressing that contention was authoritatively stated by Mason CJ
and McHugh J in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 (“Dietrich”)

Thus, in Dietrich Mason CJ and McHugh J stated (at 311):

Later their Honours confirmed that the judgments of the majority in Dietrich enunciated “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

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” (Dietrich at 315)

While this proposition is expressed by reference to an “indigent” accused, the discussion in
Dietrich concerning the significance of legal representation to an accused’s trial being fair is not
just confined to an accused

It is necessary to address three particular aspects of the above statements from Dietrich and their
relevance to Mr Croke’s application before the primary judge, namely the potential effect of the
absence of counsel on the
However, it would be inconsistent with Dietrich (and the accusatorial system of justice) to regard
those matters as overcoming the disadvantage faced by a person who must face a jury trial of a
serious criminal charge of some

Second, the next relevant aspect of Dietrich concerns the responsibility of the accused person for
the circumstance that they are to face trial on a serious criminal charge without effective
representation

that the primary judge proceeded on the basis that the absence of counsel for a trial starting on 29
January 2020 was “through no fault” on the part of Mr Croke in the sense discussed in the above
passage from Dietrich

However, as the above passage from Dietrich makes clear, once it is found, as it had to be, that to
not adjourn the trial would result in Mr Croke facing a trial on a serious charge without effective
representation through no

tempore nature of her Honour’s judgment, this Court was satisfied that, in considering Mr Croke’s
applications, the primary judge failed to apply the approach stated in Dietrich and thus acted upon
a “wrong principle” (
Carson (a Pseudonym) v The Queen [2019] VSCA 317 (20 December 2019) (Niall, T Forrest and Ashley
JJA)
[19] It was submitted in writing that the judge’s failure to disclose the ‘photograph’ allegation and
its sequelae for a week was not a matter of significance to the parties, although in oral submissions,
senior counsel
Talbot v The Queen [2019] SASCFC 112 (27 September 2019) (The Honourable Justice Kelly, The
Honourable Justice Stanley and The Honourable Justice Parker)
Talbot v The Queen [2019] SASCFC 112 (27 September 2019) (The Honourable Justice Kelly, The
Honourable Justice Stanley and The Honourable Justice Parker)
[6] It is generally accepted that the so-called
Pallas v Minister for Home Affairs [2019] FCAFC 149 (27 August 2019) (Greenwood, Logan and
Derrington JJ)
Other than in the case of persons appearing before a court for a serious criminal offence: Dietrich v
The Queen (1992) 177 CLR 292
Derrington JJ)
As these passages show, there is nothing in the reasoning in Dietrich to suggest that the decision
applies otherwise than to a court hearing a prosecution for a serious criminal offence under
Commonwealth, State or Territory law
Derrington JJ)
On the contrary, the rationale underlying Dietrich, namely the power of a court to stay proceedings
in order to prevent an unfair criminal trial taking place, does not apply to an administrative review
conducted by a tribunal no
Marwan v Director of Public Prosecutions [2019] NSWCCA 161 (18 July 2019) (Leeming JA at [1]; R A
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Eastman v Director of Public Prosecutions
(No 13)
, using language drawn from Dietrich v The Queen (1992) 177 CLR 292 at 311; [1992] HCA 57
The position is analogous with what was established by Dietrich v The Queen as to legal
representation
and Dietrich at 299)
Eric v The State of Western Australia [2019] WASCA 101 (15 July 2019) (Buss P, Mazza JA, Mitchell JA)
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
See, generally, Dietrich v The Queen
[21] By a process of evaluation a judge will determine whether he or she is satisfied that 'it is in the
interests of justice' to discharge the jury from giving its verdict on a charge
Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 (02 July 2019) (Murphy,
Rangiah and O'Callaghan JJ)
[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R 177 CLR 292; [1992]
HCA 57
Attorney-General for the State of Queensland v Wands [2019] QCA 125 (25 June 2019) (Sofronoff P and
Morrison JA and Davis J)
In Dietrich v The Queen[73] an impecunious man, unable to fund counsel or attract a grant of legal
aid appeared unrepresented at his trial and was convicted of importing heroin into Australia which
was then an offence against the
“[69] Mr Issakidis does not fall within the principle in Dietrich although he comes close
Even having regard to his “background” as a solicitor, such a trial is likely to be unfair if he is forced
on unrepresented (Dietrich at p 311)
In Dietrich v The Queen[73] an impecunious man, unable to fund counsel or attract a grant of legal
aid appeared unrepresented at his trial and was convicted of importing heroin into Australia which
was then an offence against the
Cook v The Queen [2019] VSCA 87 (16 April 2019) (Priest and Beach JJA)
is not broad enough to embrace the provision of clothes, stationery and similar – Dietrich v The
Queen (1992) 177 CLR 292
In Dietrich,[17] the High Court held that the power of a trial judge to stay criminal proceedings that
will result in an unfair trial extended to the case of an indigent accused charged with a serious
offence who, through no
Dietrich provoked a legislative response, resulting in the enactment of
In Dietrich,[17] the High Court held that the power of a trial judge to stay criminal proceedings that
will result in an unfair trial extended to the case of an indigent accused charged with a serious
offence who, through no
Cook v The Queen [2019] VSCA 87 -

Davies v The Queen [2018] VSCA 315 (26 November 2018) (Kaye, McLeish and T Forrest JJA)
[13] Rather, the issue is whether any, and if so which, of the circumstances, specified by the
applicant, impede the applicant’s right to a fair hearing, by preventing him from being able to
properly and effectively present
Strickland (a pseudonym) v Director of Public Prosecutions [2018] HCA 53 (08 November 2018) (Kiefel
CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
Accused persons have a right to a "not unfair" trial[189] and it is the courts that decide what is fair,
or not fair
Often there are less drastic steps available to courts which are capable of preserving the fairness of
a trial[198]
trial – including granting a stay, "tempering the rules and practices to accommodate the case
concerned"[200] or, to the extent that the issue was capable of being addressed by directions to the
jury, making appropriate
Anile v The Queen [2018] VSCA 235 (17 September 2018) (Priest, Beach and Weinberg JJA)
[1] Another way of putting this is that an accused person has the right not to be tried unfairly
Commissioner of Corrective Services v Liristis [2018] NSWCA 143 (28 June 2018) (Beazley P at [1]; Basten
JA at [37]; White JA at [113])
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Fish v Solution 6 Holdings Ltd
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Commissioner’s case, if Mr Liristis could not receive a fair trial without such access, the
appropriate remedy would be an adjournment or stay of the proceedings: Dietrich v The Queen
(1992) 177 CLR 292; [1992] HCA 57 and
referring to statements from Dietrich and
Closer to the present circumstances was the claim in Dietrich v The Queen [32] that an
impecunious person charged with a serious indictable offence was entitled to counsel provided at
public expense
Dietrich denied the right of a person accused with serious criminal offences to have legal
representation supplied at public expense
and Dietrich in the High Court, this Court in
and Dietrich, in
Commissioner’s case, if Mr Liristis could not receive a fair trial without such access, the
appropriate remedy would be an adjournment or stay of the proceedings: Dietrich v The Queen
(1992) 177 CLR 292; [1992] HCA 57 and
El-Saeidy v Director of Public Prosecutions [2018] NSWCA 127 (14 June 2018) (McColl JA; Macfarlan JA;
Emmett AJA)
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Honeysett v The Queen
El-Saeidy v Director of Public Prosecutions [2018] NSWCA 127 (14 June 2018) (McColl JA; Macfarlan JA;
Emmett AJA)
The decision in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 upon which Mr El-Saeidy
relied provided no support for his application
R v Gibb [2018] QCA 120 (12 June 2018) (Holmes CJ and Gotterson and McMurdo JJA)
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, cited
Dietrich v The Queen[3] establishes that where a trial judge“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
Dietrich v The Queen[3] establishes that where a trial judge“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
Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 (04 June 2018) (Basten JA at [1];
Johnson J at [72]; Adamson J at [73])
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Director of Housing v Sudi
Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 (04 June 2018) (Basten JA at [1];
Johnson J at [72]; Adamson J at [73])
(1992) 177 CLR 292; [1992] HCA 57
Russell v Wisewould Mahony Lawyers [2018] VSCA 125 -

R v M, RS [2018] SASCFC 37 (11 May 2018) (The Honourable Justice Peek, The Honourable Justice
In Dietrich v The Queen, Deane J spoke of the requirement of fairness as transcending “the
content of more particularized legal rules and principles and provides the ultimate rationale and
touchstone of the rules and
[26] That right is more accurately stated as “a right not to be tried unfairly or as an immunity
against conviction otherwise than after a fair trial”
[27] In R v Macfarlane
[29] Accepting this as bedrock, in
Zonneveld v The Queen [2018] ACTCA 29 (05 April 2018) (Burns ACJ)
was unsuccessful, with Blackmore DCJ referring to the judgment of Mason J and McHugh J in
Dietrich v The Queen (1992) 177 CLR 292, in which they referred to the power to stay criminal
proceedings that would result in an
Zonneveld v The Queen [2018] ACTCA 29 (05 April 2018) (Burns ACJ)
There is no inconsistency between Dietrich and
Duckworth v The State of Western Australia [No 4] [2018] WASCA 2 (04 January 2018) (Martin CJ, Buss
P, Mazza JA)
P, Mazza JA)
that no reliance is placed on the principle enunciated in Dietrich v The Queen
P, Mazza JA)
refusal of the application for an adjournment, nor any reliance placed upon the principle
enunciated in Dietrich, the appeal must be determined on the basis that this is not a case in which
an accused person was unable to
P, Mazza JA)
However, this is not to say that in cases such as this, which fall outside the principles enunciated in
Dietrich, the fact that an accused person has, for some reason or another, represented himself or
herself at trial is
P, Mazza JA)
On the other hand, the circumstances of the case are materially different from those in Dietrich
and are closer to those in Greer
P, Mazza JA)
[14] No evidence has been adduced on the question of whether an application was in fact made for
legal aid, and if so, the grounds upon which the application was declined (if in fact it was declined)
R v Davy [2017] QCA 312 (19 December 2017) (Fraser and McMurdo JJA and Boddice J)
Dietrich v The Queen (1992) 177 CLR 292, [1992] HCA 57, cited
R v Davy [2017] QCA 312 (19 December 2017) (Fraser and McMurdo JJA and Boddice J)
As Mason CJ and McHugh J observed in Dietrich v The Queen:
R v Davy [2017] QCA 312 -

R v Davy [2017] QCA 312 -
Johnson v The Queen [2017] NSWCCA 278 (24 November 2017) (Payne JA at [1], McCallum J at [88],
Wilson J at [95])
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Edwards v The Queen
Wilson J at [95])
As has been frequently observed, a fair trial is not required to be a perfect trial: Dietrich v The
Queen (1992) 177 CLR 292; [1992] HCA 57
Wilson J at [95])
As Brennan J said in Dietrich (at 325),
MS v The Queen [2017] NSWCCA 252 (27 October 2017) (Macfarlan JA at [1]; Beech-Jones J at [71]; Wilson
J at [73])
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Filippou v The Queen
MS v The Queen [2017] NSWCCA 252 (27 October 2017) (Macfarlan JA at [1]; Beech-Jones J at [71]; Wilson
J at [73])
However, a person who takes this course, either by choice or of necessity, faces significant
disadvantages, as described by Mason CJ and McHugh J in Dietrich v The Queen (1992) 177 CLR 292
at 302; [1992] HCA 57:
VJS v The State of Western Australia [2017] WASCA 172 (15 September 2017) (Martin CJ, Buss P, Mazza
JA)
JA)
Alternatively, he contends that the learned trial judge should have adjourned or stayed his trial,
having regard to the principles enunciated by the High Court in Dietrich v The Queen
JA)
and Dietrich v The Queen make clear, the common law of Australia does not recognise the right of
an accused facing serious charges to be provided with counsel by the State at public expense
JA)
For ease of reference, I will refer to these propositions as 'the Dietrich principles'
JA)
Axiomatically, the Dietrich principles apply only to an accused person who wishes to be
represented by counsel at his or her trial
JA)
Nothing in Dietrich v The Queen denies an accused person's right to appear unrepresented
JA)
be legally represented at his or her trial, the onus is upon an accused who seeks a stay on the basis
of the Dietrich principles, to prove, on the balance of probabilities, that he or she is indigent and
that he or she has been
JA)
Indigence, for the purposes of the Dietrich principles, means that the accused lacks the means to
engage appropriate legal representation to conduct his or her defence
JA)
In that case, Brennan, Deane, Toohey, Gaudron and McHugh JJ held that the expression used in
Dietrich v The Queen was not intended to indicate that every instance of misbehaviour,
improvidence or other fault on the part of the
JA)
Their Honours agreed with the statement made by Olsson J in the court below, that the test of
'fault' contemplated in Dietrich v The Queen:
JA)
In my opinion, the appellant's contention that the trial judge should have stayed or adjourned his
trial pursuant to the Dietrich principles must be rejected for the following reasons
JA)
I have already referred to Gaudron J's statement to this effect in Dietrich
VJS v The State of Western Australia [2017] WASCA 172 -

JA)
[225] For ease of reference, I will refer to these propositions as 'the
JA)
[226] All litigants have the right to present their own case

DC v Secretary, Department of Family and Community Services [2017] NSWCA 225 (08 September 2017)
(Beazley P at [1]; White JA at [11]; Sackville AJA at [158])
“[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177
CLR 292
Ralton & Ralton [2017] FamCAFC 182 (07 September 2017) (Bryant CJ, Strickland and Aldridge JJ)
Ralton & Ralton [2017] FamCAFC 182 (07 September 2017) (Bryant CJ, Strickland and Aldridge JJ)
Further, the mother had no right to legal representation (Dietrich v The Queen (1992) 177 CLR 292
at 297 – 298 and 311
Pattison v Tasmania [2017] TASCCA 13 (31 August 2017) (Wood, Pearce and Brett JJ)
Dietrich v The Queen (1992) 177 CLR 292, considered
to stay the appellant's trial pending the sale of his property, and as raising the principle in Dietrich
v The Queen (1992) 177 CLR 292, although detail regarding the efforts made by the appellant to sell
his land was lacking
The ground relies upon the principle in Dietrich (above)
(As for this general proposition, see also Dietrich (above) per Deane J (as he then was) at 337)
the contention raised on appeal, I will proceed on the basis that the circumstances adverted to in
Dietrich applied such that the learned trial judge's discretion to stay had been enlivened, and that
the appellant had
Xuarez & Vitela [2017] FamCAFC 139 (17 July 2017) (Ryan, Aldridge and Cronin JJ)
In his list of authorities the appellant relied on Dietrich v The Queen (1992) 177 CLR 292 (“Dietrich”)
But the point of Dietrich is that the High Court made it clear that the common law of Australia
does not recognise the right of an accused to be provided with counsel at the public expense
Of course, Dietrich went on to point out that courts have the power to stay criminal proceedings
that will result in an unfair trial
Dietrich does not lend support to the appellant’s argument that there is a constitutional right to
legal representation in proceedings arising under the
F v Minister for Education and Child Development [2017] SASCFC 71 (26 June 2017) (The Honourable
Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Blue)
until both parents were legally represented, supported by an affidavit in which he said that he
relied on the Dietrich principle, rule 6 of the Youth Court (Children’s Protection) Rules 2012 (SA)
(the Rules) and article 14
The appellants rely on Dietrich v The Queen[6] in which the High Court held that a court has
jurisdiction to grant an adjournment or stay proceedings at a trial until an indigent person charged
with a serious criminal offence is
The foundation of the principle recognised in Dietrich v The Queen is the right of an accused to a
fair trial
The appellants accept that Dietrich v The Queen is only authority for the existence of power to
stay or adjourn proceedings in the case of an accused charged with a serious criminal offence but
contend that the underlying
In the alternative to their reliance upon the Dietrich principle the appellants rely upon the wider
principle of procedural fairness
Mason CJ, Dawson, Toohey and McHugh JJ observed that “Dietrich may possibly be regarded as a
manifestation of the rules of procedural fairness”
And, so far, the Dietrich principle excepted, there is no authority for the proposition that the rules
of procedural fairness extend to a requirement that legal representation be provided to a party at a
trial, let alone a
The appellants rely on Dietrich v The Queen[6] in which the High Court held that a court has
jurisdiction to grant an adjournment or stay proceedings at a trial until an indigent person charged
with a serious criminal offence is
[7] The foundation of the principle recognised in
Baker (a Pseudonym) v Director of Public Prosecutions [2017] VSCA 58 (22 March 2017) (Maxwell P, Tate
and Beach JJA)
In Dietrich v The Queen[27] the High Court famously recognised that the power to grant a stay
may be exercised where the lack of representation deprives an accused of a fair trial:
Baker (a Pseudonym) v Director of Public Prosecutions [2017] VSCA 58 (22 March 2017) (Maxwell P, Tate
and Beach JJA)
In Dietrich v The Queen[27] the High Court famously recognised that the power to grant a stay
may be exercised where the lack of representation deprives an accused of a fair trial:
Baker (a Pseudonym) v Director of Public Prosecutions [2017] VSCA 58 -

Baker (a Pseudonym) v Director of Public Prosecutions [2017] VSCA 58 -
Ardrey v The State of Western Australia [No 2] [2017] WASCA 41 (07 March 2017) (Buss P, Mazza JA,
Mitchell JA)
Ardrey v The State of Western Australia [No 2] [2017] WASCA 41 (07 March 2017) (Buss P, Mazza JA,
Mitchell JA)
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 364 (Gaudron J)
Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 (15 February 2017) (Beazley P at [1];
Macfarlan JA at [2]; Payne JA at [3].)
Dietrich v The Queen (1992) 177 CLR 292 Donaghy v Council of the Law Society of NSW (No 2)
Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 (15 February 2017) (Beazley P at [1];
Macfarlan JA at [2]; Payne JA at [3].)
and Dietrich v The Queen (1992) 177 CLR 292 in particular at 298, 317, 325, 330, 354 and 364
Commissioner of State Revenue v ACN 005 057 349 Pty Ltd [2017] HCA 6 (08 February 2017) (Kiefel, Bell,
Gageler, Keane and Gordon JJ)
it is within the exclusive control of the legislature[7]
Achanfuo-Yeboah v The Queen [2016] ACTCA 71 (23 December 2016) (Refshauge ACJ)
This argument is reinforced by the approach that the High Court took Dietrich v The Queen (1992)
177 CLR 292, though that was in the context of the right to counsel at trial, not on appeal
of a trial and of an appeal are different, though the comments of Deane J in Dietrich v The Queen
are relevant. His Honour pointed out at 330 that it was the government’s choice as to whether an
see Dietrich v The Queen at 311 per Mason CJ and McHugh J, at 330 per Deane J, and at 354-5 per
Toohey J
The importance of legal representation was well described by Toohey J in Dietrich v The Queen at
353-4
Murphy v Electoral Commissioner [2016] HCA 36 (05 September 2016) (French CJ, Kiefel, Bell, Gageler,
Keane, Nettle and Gordon JJ)
our system of separated powers to require the executive government or the legislature to raise and
spend public funds in order to effect what might be thought to be desirable improvements in the
public life of the community[213]
Sanderson v Bank of Queensland Limited [2016] QCA 137 (31 May 2016) (Morrison and Philip McMurdo
JJA and Burns J,)
, cited Dietrich v The Queen
JJA and Burns J,)
(1992) 177 CLR 292; [1992] HCA 57, cited
JJA and Burns J,)
As to that matter, his Honour referred to Dietrich v The Queen,[2] in which it was held that, in the
absence of exceptional circumstances, a trial of a person charged with a serious criminal offence,
who through no fault is
JJA and Burns J,)
“There is no suggestion in the majority judgments [in Dietrich] that a court could exercise a similar
jurisdiction in civil proceedings or in committal proceedings
JJA and Burns J,)
In Dietrich it was argued that, at least in an indictable matter, the absence of legal representation
for an accused who cannot afford to engage counsel meant that the trial was unfair and that any
conviction should be quashed
JJA and Burns J,)
More generally, most of the judgments in Dietrich rejected the argument that under Australian
law, an indigent accused on trial for a serious criminal offence has a right to the provision of
counsel at public expense
JJA and Burns J,)
The prevalent view in Dietrich was as stated in this passage from the judgment of Mason CJ and
McHugh J:
JJA and Burns J,)
It could hardly be thought that the ICCPR could affect the common law of Australia in relation to
the fairness of a trial of a civil case, although, according to Dietrich, it does not for a criminal case
JJA and Burns J,)
And the principle from the majority judgments in Dietrich, that a trial should proceed without
representation in exceptional cases only, does not extend to civil litigation, as appears from the
High Court’s subsequent judgment
JJA and Burns J,)
The second is that the court’s duty is to ensure that a trial is fair, which is a different thing from
what Dawson J in Dietrich described as “the attainment of perfect justice”
JJA and Burns J,)
As to that matter, his Honour referred to Dietrich v The Queen,[2] in which it was held that, in the
absence of exceptional circumstances, a trial of a person charged with a serious criminal offence,
who through no fault is
JJA and Burns J,)
[13] One suggested source for that right was said to be Art 14(3) of the ICCPR
JJA and Burns J,)
[14] Their Honours noted the view expressed by Kirby P in
JJA and Burns J,)
[16] But they held that there was no uncertainty or ambiguity in domestic law in any relevant
respect
JJA and Burns J,)
”[17] They continued:
JJA and Burns J,)
They continued:[18]
JJA and Burns J,)
[19] The prevalent view in
JJA and Burns J,)
was as stated in this passage from the judgment of Mason CJ and McHugh J:[20]
JJA and Burns J,)
[26] In Jago v District Court (NSW), Brennan J said:
AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 (20 May 2016) (Flick, Griffiths
and Perry JJ)
All judges have an overriding duty to ensure a fair trial for all parties who are involved in a
proceeding (Dietrich v R [1992] HCA 57; 177 CLR 292 (Dietrich))
and Perry JJ)
309 Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR
292
and Perry JJ)
The contentions are inconsistent with High Court authority, including Dietrich at 297-298, per
Mason CJ and McHugh J, at 317 per Brennan J, at 330 per Deane J, at 343 per Dawson J, at 356 per
Toohey J and at 364-365 per Gaudron J
El-Hilli v The Queen; Melville v The Queen [2015] NSWCCA 289 (23 November 2015) (Basten JA at [1];
Hall J at [112]; Wilson J at [113])
Dietrich v The Queen (1992) 177 CLR 292 Dipangkear v Regina
El-Hilli v The Queen; Melville v The Queen [2015] NSWCCA 289 (23 November 2015) (Basten JA at [1];
Hall J at [112]; Wilson J at [113])
Formulated in this way, the ground eschewed, no doubt correctly, [3] asserting a right to
representation, nor even a right to an adjournment to allow them a reasonable opportunity to seek
representation (which may, in
R v L, GA [2015] SASCFC 166 (18 November 2015) (The Honourable Justice Sulan, The Honourable
Justice Peek and The Honourable Justice Lovell)
R v L, GA [2015] SASCFC 166 (18 November 2015) (The Honourable Justice Sulan, The Honourable
Justice Peek and The Honourable Justice Lovell)
[1] What does and what does not remove the quality of fairness from a trial must proceed on a case-
by-case basis and involves essentially an intuitive judgment
Berg v Director of Public Prosecutions (Qld) [2015] QCA 196 (16 October 2015) (Fraser and Morrison JJA
and Flanagan J,)
and Flanagan J,)
The appellant also submitted, by reference to the Dietrich[76] principle, that as long as he remains
legally unrepresented his charges should be permanently stayed
and Flanagan J,)
First, as observed by her Honour, the Dietrich principle does not apply to committals
and Flanagan J,)
The appellant also submitted, by reference to the Dietrich[76] principle, that as long as he remains
legally unrepresented his charges should be permanently stayed
McCloy v New South Wales [2015] HCA 34 (07 October 2015) (French CJ, Kiefel, Bell, Gageler, Keane,
Nettle and Gordon JJ)
but with negative restrictions on legislative powers and, secondly, it permits the development of
different criteria for different constitutional contexts[406]
Smith v The Queen [2015] HCA 27 (05 August 2015) (French CJ, Kiefel, Bell, Gageler and Gordon JJ)
An accused's right to a fair trial in accordance with law is ensured, and informed, by "rules of law
and of practice designed to regulate the course of the trial"[23]
Police v Dunstall [2015] HCA 26 (05 August 2015) (French CJ, Kiefel, Bell, Gageler, Keane and Nettle JJ)
The first example is where the weight and credibility of evidence cannot be effectively tested[85]
The first example is where the weight and credibility of evidence cannot be effectively tested[85]
As Gaudron J observed in another context, "what is fair very often depends on the circumstances of
the particular case" and "notions of fairness are inevitably bound up with prevailing social values"
[156]
Hence, "the inherent powers of a court to prevent injustice are not confined within closed
categories"[157]
Bare v Independent Broad-based Anti-Corruption Commission [2015] VSCA 197 (29 July 2015) (Warren
CJ, Tate and Santamaria JJA)
[328] which includes the right of access to the courts
Bare v Independent Broad-based Anti-Corruption Commission [2015] VSCA 197 (29 July 2015) (Warren
CJ, Tate and Santamaria JJA)
[513] On many occasions, authorities whose task it is to ensure public order or to restore justice will
be required to use force or to administer punishment
Gramotnev v Queensland University of Technology [2015] QCA 127 (10 July 2015) (Margaret McMurdo P
and Holmes JA and Jackson J,)
, referred to Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, referred to
The appellant in Dietrich v The Queen[117] relied on the convention to argue that he had a right to
The appellant in Dietrich v The Queen[117] relied on the convention to argue that he had a right to
Gramotnev v Queensland University of Technology [2015] QCA 127 -

Dunn v The Queen [2015] WASCA 126 (19 June 2015) (Buss JA, Newnes JA, Mazza JA)
an unrepresented accused, to play the part of his or her advocate and give the advice, guidance and
representation which counsel would have provided: Dietrich v The Queen [1992] HCA 57; (1992) 177
CLR 292, 334 - 335 (Deane J)
Potier v R [2015] NSWCCA 130 (03 June 2015) (Ward JA at [1]; Simpson J at [597]; Wilson J at [598])
His Honour considered that, by his actions qua his Counsel and his solicitor, Mr Potier had placed
himself well outside the range of the considerations referred to in Dietrich v The Queen [1992]
HCA 57; (1992) 177 CLR 292 at 315
Potier v R [2015] NSWCCA 130 (03 June 2015) (Ward JA at [1]; Simpson J at [597]; Wilson J at [598])
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Director of Public Prosecutions (NSW) v
Burns
Clarke v State of New South Wales [2015] NSWCA 27 (24 February 2015) (McColl JA; Ward JA)
Mr Clarke referred to Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 and maintained that
his right of self-representation meant that the standard applicable to him in relation to pleadings
should not be higher than that
Clarke v State of New South Wales [2015] NSWCA 27 (24 February 2015) (McColl JA; Ward JA)
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 El-Saeidy v NSW Land & Housing
Corporation
Snook v The State of Western Australia [No 2] [2015] WASCA 29 (20 February 2015) (Buss JA, Mazza JA,
Hall J)
Dietrich v The Queen [1992] HCA 57 ; (1992) 177 CLR 292
Glover v Reyne
Hall J)
Glover v Reyne
Hall J)
stayed on the basis that she would be unrepresented through no fault of her own and that the trial
would be unfair if she was required to proceed unrepresented relying on Dietrich v The Queen
[1992] HCA 57; (1992) 177 CLR 292
CPCF v Minister for Immigration and Border Protection [2015] HCA 1 (28 January 2015) (French CJ,
Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ)
until it has been enacted in legislation[324]
CPCF v Minister for Immigration and Border Protection [2015] HCA 1 (28 January 2015) (French CJ,
Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ)
unless those provisions have been validly incorporated into our municipal law by an Act of the
Commonwealth Parliament[345]
Landsman v R [2014] NSWCCA 328 (19 December 2014) (Beazley P at [1]; Hidden J at [90]; Fullerton J at
[91])
Dietrich v R [1992] HCA 57; 177 CLR 292 Director of Public Prosecutions (Nauru) v Fowler
Landsman v R [2014] NSWCCA 328 (19 December 2014) (Beazley P at [1]; Hidden J at [90]; Fullerton J at
[91])
regard, the Crown referred to authority in which emphasis was placed on the particular facts of a
case in the interpretation of that phrase: Dietrich v R [1992] HCA 57; 177 CLR 292 per Dawson J at
349 and per Toohey J at 360
Wills v The Queen [2014] NSWCCA 253 (10 November 2014) (Hoeben CJ at CL at [1], R A Hulme J at [2],
Davies J at [3])
Dietrich v The Queen (1992) 177 CLR 292 R v Battiato
Wills v The Queen [2014] NSWCCA 253 (10 November 2014) (Hoeben CJ at CL at [1], R A Hulme J at [2],
Davies J at [3])
for an adjournment to obtain legal advice and in circumstances where it cannot be said the
Applicant was under any relevant incapacity, the matters discussed in Dietrich v The Queen (1992)
177 CLR 292 are not applicable
Singh v The Queen [2014] NTCCA 16 (09 October 2014) (Kelly and Blokland JJ, Mildren AJ)
Tajjour v New South Wales [2014] HCA 35 (08 October 2014) (French CJ, Hayne, Crennan, Kiefel, Bell,
Gageler and Keane JJ)
It is incompatible with the long accepted dualism of international law and Australian domestic law
[104]
It is incompatible with the long accepted dualism of international law and Australian domestic law
[104]
The provisions of an international treaty to which Australia is a party do not form part of
Australian law unless those provisions have been validly incorporated into Australian municipal
law[146]
might be engaged[274]
Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014) (French CJ, Kiefel, Bell,
Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014) (French CJ, Kiefel, Bell,
Police v Dunstall [2014] SASCFC 85 (25 July 2014) (The Honourable Chief Justice Kourakis, The
Honourable Justice Gray and The Honourable Justice Sulan)
[92] He concluded that the Chief Magistrate had a discretion to exclude otherwise admissible
evidence, which could be enlivened by circumstances of unfairness or by reason of matters of
public policy, or by the combination of
Rich v The Queen [2014] VSCA 126 (20 June 2014) (Nettle, Neave and Osborn JJA)
Dietrich v R (1992) 177 CLR 292, referred to
Rich v The Queen [2014] VSCA 126 (20 June 2014) (Nettle, Neave and Osborn JJA)
[180] It seems to us that it was necessary to refer to it in order to provide the judge with a complete
understanding of the time which the applicant had spent in gaol
El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172 (30 May 2014) (McColl JA; Ward JA)
), where Young JA (Beazley JA and Handley AJA agreeing) referred to Dietrich v The Queen [1992]
HCA 57; (1992) 177 CLR 292, where "the High Court made it clear that the right to receive a fair trial
according to law is a
El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172 (30 May 2014) (McColl JA; Ward JA)
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 El-Saeidy v New South Wales Land &
Housing Corporation
Haddara v the Queen [2014] VSCA 100 (27 May 2014) (Redlich, Weinberg and Priest JJA)
Mason CJ and McHugh J in their joint judgment in Dietrich v The Queen[106] said:
In Dietrich Gaudron J referred to the fundamental principle of the system of criminal justice that a
person should not be convicted save after a fair trial according to law
Before leaving this question, we should refer to the observations of Gaudron J in Dietrich[203]
which we have set out and which were referred to in
Mason CJ and McHugh J in their joint judgment in Dietrich v The Queen[106] said:
Haddara v the Queen [2014] VSCA 100 -

Haddara v the Queen [2014] VSCA 100 -
Before leaving this question, we should refer to the observations of Gaudron J in Dietrich[203]
which we have set out and which were referred to in
[205] Whether these principles are beyond the reach of statute law to modify or abolish, or at least
require an explicit and unmistakable legislative intent to do so, we do not stay to consider, but it
may be that if the
Tongahai v The Queen [2014] NSWCCA 81 (15 May 2014) (Basten JA at [1]; Fullerton J at [45]; Davies J at
[46])
Dietrich v The Queen [1992] HCA 57 ; 177 CLR 292
Tongahai v The Queen [2014] NSWCCA 81 (15 May 2014) (Basten JA at [1]; Fullerton J at [45]; Davies J at
[46])
A person accused of serious crime who is denied a reasonable opportunity to obtain representation
may have a basis for setting aside a subsequent conviction: Dietrich v The Queen [1992] HCA 57; 177
CLR 292
Doepgen v Mugarinya Community Association Incorporated [2014] WASCA 67 (28 March 2014) (Pullin
JA, Newnes JA)
Doepgen and Mugarinya Community Association Inc [No 2]
JA, Newnes JA)
Doepgen and Mugarinya Community Association Inc [No 2]
JA, Newnes JA)
with a serious criminal offence is provided with appropriate legal representation (Dietrich v The
Queen [1992] HCA 57; (1992) 177 CLR 292), that aside, the rules of procedural fairness do not extend
to a requirement that
Cramphorn v Bailey [2014] WASCA 60 (21 March 2014) (McLure P, Buss JA, Mazza JA)
DPJB v The State of Western Australia
DPJB v The State of Western Australia
These were not proceedings in which the principles laid down by the High Court in Dietrich v The
Queen (1992) 177 CLR 292 applied
R v Orchard [2013] NSWCCA 342 (24 December 2013) (Rothman J; Fullerton J; Beech-Jones J)
- or the inability of an accused to obtain legal representation: Dietrich v The Queen [1992] HCA 57;
177 CLR 292
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 (29 November 2013) (Allsop
CJ, Robertson and Mortimer JJ)
[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177
CLR 292
Jamal v Director of Public Prosecutions [2013] NSWCA 355 (25 October 2013) (Meagher JA at [1]; Gleeson
JA at [2]; Latham J at [88])
The principles applicable to the Court's duty to unrepresented litigants in criminal proceedings are
to be found in Dietrich v The Queen (1992) 177 CLR 292 and
In Dietrich's case, Mason CJ and McHugh J noted at 396 that Australian law did not recognise that
an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at
public expense
Lee v New South Wales Crime Commission [2013] HCA 39 (09 October 2013) (French CJ, Hayne,
and private interests in the completion of concurrent civil and criminal proceedings, it does not
operate to override the Supreme Court's "undoubted power to stay criminal proceedings which will
result in an unfair trial"[294]
and private interests in the completion of concurrent civil and criminal proceedings, it does not
operate to override the Supreme Court's "undoubted power to stay criminal proceedings which will
result in an unfair trial"[294]
, it is understandable that there has been no judicial attempt to list, exhaustively, the attributes of a
fair trial[381]
the right of a person charged with a criminal offence to a fair trial, "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"[590]
O'Meara v The State of Western Australia [2013] WASCA 228 (02 October 2013) (Buss JA, Mazza JA, Hall
J)
Driscoll v The Queen
J)
Driscoll v The Queen
J)
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 363 - 364 (Gaudron J)
X7 v Australian Crime Commission [2013] HCA 29 (26 June 2013) (French CJ, Hayne, Crennan, Kiefel and
Bell JJ)
Relevant authorities have given context to the concept and importance of the right of every
accused person to a fair and impartial trial according to law[65]
Bell JJ)
Relevant authorities have given context to the concept and importance of the right of every
accused person to a fair and impartial trial according to law[65]
Bell JJ)
immunity against conviction otherwise than after a fair trial, for no person can enforce a right to be
tried by the state, "it is convenient, and not unduly misleading, to refer to an accused's positive right
to a fair trial"[67]
Bell JJ)
An accused's right to a fair trial is commonly "manifested in rules of law and of practice designed to
regulate the course of the trial"[68], but the right extends to the whole course of the criminal
process
Bell JJ)
The power to prevent an abuse of process is an incident of the general power to ensure fairness[71]
and the Queen v Matwali Chaouk , Attorney-General for the State of Victoria , the Victorian Equal
Opportunity and Human Rights Commission , the Criminal Bar Association , the Law Institute of
Victoria and Victoria... [2013] VSCA 99 (02 May 2013) (Nettle AP, Buchanan and Osborn JJA)
CRIMINAL LAW – Criminal Procedure – Stay – Whether trial judge erred in finding that lack of
instructing solicitor likely to make trial unfair – Dietrich v The Queen (1992) 177 CLR 292,
considered
interpreted the principles laid by the High Court in Dietrich v The Queen;[4] and that, consistently
with the obligation of Australian intermediate appellate courts to follow each other’s decisions,
as opposed to what counsel contended to be the correct test of whether the trial would be unfair or
at least likely to be unfair, as propounded by the High Court in Barton v The Queen and Dietrich v
The Queen
In his reasons for judgment, his Honour expressly set out the following statements of principle
from Barton and Dietrich as those by which he considered himself to be bound:
20 In Dietrich,[12] Mason CJ and McHugh J began their joint judgment by saying:
22 Adopting the approach identified by their Honours in Dietrich, the decision I have to make as to
whether to grant an adjournment or order a stay in the exercise of the Court’s inherent
jurisdiction, is whether the trial is
It is not required by the decision in Dietrich, and would be inconsistent with it, for trial judges, in
dealing with stay applications, to embark upon a detailed exercise of assessing the relative degrees
of competence and
But the principle in Dietrich turns upon whether legal representation is unavailable to an indigent
accused
… questions of competence are [not] entirely irrelevant to the application of the Dietrich principle
[1] In a federation such as ours, these things may well reflect the present condition of
Commonwealth/State finances and, in any event, they involve questions of policy which it is for the
executive alone to decide
[2] There is of course a significant public interest in the independent performance of that duty by
the court
interpreted the principles laid by the High Court in Dietrich v The Queen;[4] and that, consistently
with the obligation of Australian intermediate appellate courts to follow each other’s decisions,
Victoria and Victoria... [2013] VSCA 99 -
20 In Dietrich,[12] Mason CJ and McHugh J began their joint judgment by saying:
21 In considering the attributes of a fair trial, their Honours noted:[13]
[14] This is not the exercise of a discretion
Lee v The Queen [2013] NSWCCA 68 (03 April 2013) (Basten JA at [1]; Hall J at [237]; Beech-Jones at [247])
- or the inability of an accused to obtain legal representation: Dietrich v The Queen [1992] HCA 57;
177 CLR 292
Lee v The Queen [2013] NSWCCA 68 (03 April 2013) (Basten JA at [1]; Hall J at [237]; Beech-Jones at [247])
Dietrich v The Queen [1992] HCA 57; 177 CLR 292 Dhanhoa v The Queen
Victoria Police Toll Enforcement v Taha [2013] VSCA 37 (04 March 2013) (Nettle, Tate and Osborn JJA)
[233] As Isaacs J said in R v McFarlane
Victoria Police Toll Enforcement v Taha [2013] VSCA 37 (04 March 2013) (Nettle, Tate and Osborn JJA)
there is no single exhaustive set of the aspects of a trial which will make it fair:[236]
R v Seller; R v McCarthy [2013] NSWCCA 42 (01 March 2013) (Bathurst CJ at [1]; McClellan CJ at CL at
[119]; Rothman J at [121])
Nevertheless, in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, at least four members of
the Court seemed to take the view that although there had been no attempt to list exhaustively the
attributes to a fair trial and
[119]; Rothman J at [121])
concept was one which was impossible to formulate exhaustively in advance, nonetheless the right
was ingrained in the legal system of this country: Dietrich supra at 301 (Mason CJ and McHugh J),
327-328 (Deane J), 353 (Toohey J)
[119]; Rothman J at [121])
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Dunn v Australian Crime Commission
O'Connor v Adamas [2013] FCAFC 14 (15 February 2013) (Lander, McKerracher and Barker JJ)
Ex parte Bennett
the first respondent has relied on Australian case law, including decisions such as Dietrich v The
Queen [1992] HCA 57; (1992) 177 CLR 292 in the High Court, to say that his trial was unfair because
he was entitled to appear
In particular, the Minister was advised, at paragraph 201, that Deane J, in Dietrich v The Queen
(1992) 177 CLR 292, said that the “fundamental prescript of the criminal law of this country is that no
person shall be
Dupas v The Queen [2012] VSCA 328 (21 December 2012) (Warren CJ, Maxwell P, Nettle, Redlich and
Bongiorno JJA)
Gaudron J said in Dietrich v The Queen[38] that the rules governing evidence must sometimes be
tempered by reason and commonsense to accommodate the special case that has arisen, otherwise
prejudice or unfairness might result
Bongiorno JJA)
As Gaudron J observed in Dietrich, there inheres in every judge in every criminal trial the powers
necessary or expedient to prevent unfairness in the trial
Bongiorno JJA)
Gaudron J said in Dietrich v The Queen[38] that the rules governing evidence must sometimes be
tempered by reason and commonsense to accommodate the special case that has arisen, otherwise
prejudice or unfairness might result
Bongiorno JJA)
Her Honour observed:[39]
KS v Veitch (No 2) [2012] NSWCCA 266 (10 December 2012) (Basten JA at [1]; Harrison J at [81]; Beech-
Jones J at [82])
Dietrich v The Queen [1992] HCA 57; 177 CLR 292
Jones J at [82])
Dietrich v The Queen [1992] HCA 57; 177 CLR 292 Forge v Australian Securities and Investments
Commission
Jones J at [82])
Dietrich v The Queen, 177 CLR 292 at 326 (Deane and Gaudron JJ)
Best v The Queen [2012] VSCA 277 (21 November 2012) (Maxwell P, Tate and Osborn JJA)
[24] A tactical choice was made not to do so, and instead to pursue a direction favourable to the
defence
Werden v Legal Services Board [2012] VSCA 278 (21 November 2012) (Redlich and Tate JJA)
[37] The duty, often onerous, to assist a self-represented litigant in civil proceedings, requires the
judge to provide such guidance to a self-represented litigant as will ensure procedural fairness
Szulc v Chief Executive Officer, Department of Environment and Conservation [No 4] [2012] WASCA
143 (31 July 2012) (Buss JA, Newnes JA, Mazza JA)
as he did not have the means to obtain legal representation, the contempt application should be
'indefinitely adjourned' on the basis of the 'Dietrich principle' (Dietrich v The Queen [1992] HCA 57;
(1992) 177 CLR 292) (ts 103)
The primary judge pointed out that he had previously made it clear that if the appellant sought to
rely on Dietrich, details of his financial position had to be provided (ts 169)
However, an accused has the right to receive a fair trial and, in some circumstances, a lack of
representation may mean that an accused person is unable to receive, or did not receive, a fair trial:
Dietrich (311, 337, 343, 357)
What is now commonly known as the Dietrich principle was described by Mason CJ and McHugh
J in Dietrich to apply where a trial judge is faced with an application for an adjournment or a stay
by an indigent accused charged with a
The appellant's reliance on Dietrich falls at the first hurdle
appellant explained that he did not file the affidavit which his Honour had ordered on 21 March
2011 because he understood it to be required only if he had not obtained legal representation and
wished to pursue the Dietrich point
That does not, however, explain his failure to provide any details of his financial position prior to
the hearing on 11 November 2011 in circumstances where he again sought to rely on the principle in
Dietrich
that a person is entitled to legal aid, based on criteria which no doubt may vary from time to time
with the funds available to the Commission, does not determine that a person is indigent for the
purpose described in Dietrich
had ordered the appellant to file in support of the application the appellant had made at that time
based on Dietrich, was also required to contain an account of the steps the appellant had taken to
obtain legal representation
The absence of legal representation does not of itself mean that a trial was unfair so as to give rise
to a miscarriage of justice: Dietrich (310 311, 325, 362)
R v Gee [2012] SASCFC 86 (26 July 2012) (The Honourable Justice Gray, The Honourable Justice Sulan
and The Honourable Justice Peek)
Counsel referred to Dietrich where Mason CJ and McHugh J made the following observations:
In Dietrich this was explained by Mason CJ and McHugh J in the following terms:
abrogation of the defendant’s rights, including the right to representation although not at public
expense,[3] the right to hear the allegations and to know the evidence adduced in support of them,
the right to challenge
where Mason CJ and McHugh J made the following observations:[9]
this was explained by Mason CJ and McHugh J in the following terms:[59]
AW v Rayney [No 4] [2012] WASCA 117 (08 June 2012) (McLure P, Buss JA, Newnes JA)
Hearne v Street
Hearne v Street
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 299 - 300 (Mason CJ & McHugh J), 326, 330
(Deane J), 362 - 364 (Gaudron J)
Hudson v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA
92 (11 May 2012) (Bathurst CJ at [1]; Whealy JA at [105]; McClellan CJ at CL at [106])
Director General of the Department of Land and Water Conservation v Greentree
Hudson v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA
92 (11 May 2012) (Bathurst CJ at [1]; Whealy JA at [105]; McClellan CJ at CL at [106])
O'Connell v The State of Western Australia [2012] WASCA 96 (04 May 2012) (Martin CJ, Buss JA, Mazza
JA)
Glew Technologies Pty Ltd v Department of Planning and Infrastructure
JA)
(Page 3)
JA)
an unrepresented accused, to play the part of his or her advocate and give the advice, guidance and
representation which counsel would have provided: Dietrich v The Queen [1992] HCA 57; (1992) 177
CLR 292, 334 - 335 (Deane J)
JA)
107 A prosecutor is bound to act fairly towards the accused, but cannot tell the accused how to
conduct his or her defence: Dietrich v The Queen (354) (Toohey J)
JA)
and Dietrich v The Queen
O'Donoghue v Honourable Brendan O'Connor [2012] FCAFC 47 (02 April 2012) (Keane CJ, Rares and
Besanko JJ)
Besanko JJ)
The appellant renewed his application for an adjournment citing the decision of the High Court in
Dietrich v The Queen (1992) 177 CLR 292 (Dietrich) in support of his application
Besanko JJ)
In Dietrich the High Court held that courts in Australia have the power to stay criminal
proceedings that will result in an unfair trial
Besanko JJ)
There are several points on which Dietrich is to be distinguished from this case
Szulc v McNamara [No 2] [2012] WASCA 62 (12 March 2012) (Mazza JA)
Szulc v McNamara
Szulc v McNamara
two grounds of appeal now relied upon allege that, first, the proceedings before Martin CJ should
have been stayed until Mr Szulc received legal representation pursuant to Dietrich v The Queen
[1992] HCA 57; (1992) 177 CLR 292
Slaveski v Smith [2012] VSCA 25 (29 February 2012) (Warren CJ, Nettle and Redlich JJA)
As Brennan J explained in Dietrich,[31] it is only where the lack of representation results in a
miscarriage of justice that the trial is unfair:
Absent circumstances of the kind described in Dietrich,[33] a judge should be hesitant to conclude
that a lack of legal representation will preclude the court from reaching a just decision
Slaveski v Smith [2012] VSCA 25 -

As Brennan J explained in Dietrich,[31] it is only where the lack of representation results in a
miscarriage of justice that the trial is unfair:
Absent circumstances of the kind described in Dietrich,[33] a judge should be hesitant to conclude
that a lack of legal representation will preclude the court from reaching a just decision
[34] We emphasise that it is a question which his Honour will need to consider with care
Szulc v McNAMARA [2012] WASCA 3 (22 December 2011) (Mazza JA)

Szulc v McNAMARA [2012] WASCA 3 (22 December 2011) (Mazza JA)

in stone, the applicant's proposed ground for challenging the findings that he was in contempt is
that he was not afforded legal representation at the hearing, contrary to Dietrich v The Queen
[1992] HCA 57; (1992) 177 CLR 292
Hamod v State of New South Wales [2011] NSWCA 375 (06 December 2011) (Beazley JA at [1]; Giles JA at
[829]; Whealy JA at [830])
Dietrich v R [1992] HCA 57; 177 CLR 292 Dougherty v Chandler
[829]; Whealy JA at [830])
Dietrich v R [1992] HCA 57; 177 CLR 292
[829]; Whealy JA at [830])
Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292
R v Huston; R v Fox; R v Henke [2011] QCA 349 (06 December 2011) (Muir and Chesterman JJA, and
Margaret Wilson AJA, Judgment of the Court)
, cited Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, considered
SM v The Queen [2011] VSCA 332 (22 September 2011) (Redlich and Mandie JJA and Whelan AJA)
likelihood[26] or threat
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
(15 September 2011) (Beazley JA at [1]; Young JA at [2]; Handley AJA at [80])
In Dietrich v The Queen [1992] HCA 57; 177 CLR 292, the High Court made it clear that the right to
receive a fair trial according to law is a fundamental right and it is the overriding duty of a trial
judge to ensure that the
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
(15 September 2011) (Beazley JA at [1]; Young JA at [2]; Handley AJA at [80])
Dietrich v The Queen [1992] HCA 57; 177 CLR 292 Edwards v Allmen Engineering Pty Ltd
R v CAZ [2011] QCA 231 (13 September 2011) (Fraser and Chesterman and White JJA,)
, cited Dietrich v The Queen
(1992) 177 CLR 292; [1992] HCA 57, cited
[29] Thus the rules of procedural fairness are sufficiently flexible to accommodate different degrees
of particularisation being required in different circumstances
Hardwick v The State of Western Australia [2011] WASCA 164 (29 July 2011) (McLure P, Pullin JA, Buss
JA)
of criminal justice that a person should not be convicted of an offence save after a fair trial
according to law: Dietrich v R (1992) 177 CLR 292 at 299-300 per Mason CJ and McHugh J, at 326 per
Deane J and at 362 per Gaudron J
State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200 (22 July
2011) (Allsop P at 1, Hodgson JA at 41, Sackville AJA at 42)
Dietrich v The Queen [1992] HCA 57; 177 CLR 292 at 364
State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200 (22 July
2011) (Allsop P at 1, Hodgson JA at 41, Sackville AJA at 42)
Dietrich v The Queen [1992] HCA 57; 177 CLR 292 Hamilton v Oades
LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105 (20 May 2011) (White JA, Margaret
Wilson AJA, Ann Lyons J,)
informed by judgment about the relevant legal principles and is expressed, albeit in a different
context, in Dietrich v The Queen[37] as
informed by judgment about the relevant legal principles and is expressed, albeit in a different
context, in Dietrich v The Queen[37] as
Gajic v Harb [2011] VSCA 132 (06 May 2011) (Tate JA and Macaulay AJA)
[8] A court has jurisdiction to grant an adjournment
Gajic v Harb [2011] VSCA 132 -

Morley v Australian Securities and Investments Commission [2010] NSWCA 331 (17 December 2010)
(Spigelman CJ; Beazley JA; Giles JA)
Morley v Australian Securities and Investments Commission [2010] NSWCA 331 (17 December 2010)
(Spigelman CJ; Beazley JA; Giles JA)
709 The existence of an overriding and, perhaps, unifying principle was expressed by Deane J in
Dietrich v The Queen (1992) 177 CLR 292 at 326 -
R v Crothers [2010] QCA 334 (30 November 2010) (Margaret McMurdo P, Chesterman JA and Douglas J,
, cited Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, applied Domican (No 3)
The seminal High Court decision, Dietrich v The Queen,[58] affirmed that the common law of
Australia does not recognise the right of accused people in criminal trials to be provided with
Importantly, Dietrich recognised, however, the power of courts to adjourn or even to stay criminal
proceedings, where unrepresented accused people cannot otherwise have a fair trial
Dietrich is not authority for the proposition that accused people have a right to an adjournment, let
alone a stay of proceedings, so that they can be provided with their choice of lawyers at public
expense
But Dietrich recognises that, ordinarily, the requirement that criminal trials for serious offences
must be conducted fairly will result in trials being adjourned rather than indigent accused people
being forced to proceed to
Dietrich qualified that general statement of principle by recognising exceptions
As Dietrich recognises,
"So important is the availability of legal representation to the settled understanding in Australia of
a fairly conducted criminal trial that the majority of the High Court in Dietrich v The Queen [
[(1992) 177 CLR 292 at 311, 331, 342-343] held that a criminal trial for a serious offence should be
adjourned, rather than that an indigent accused should be forced on to trial without legal
representation against his or her
The seminal High Court decision, Dietrich v The Queen,[58] affirmed that the common law of
Australia does not recognise the right of accused people in criminal trials to be provided with
Tryon and Clutterbuck and Attorney-General Of The Commonwealth (Intervenor) [2010] FamCAFC
229 (12 November 2010) (Coleman, Thackray and Le Poer Trench JJ)
submitted that there was no constitutional entitlement to legal representation, except in the area of
serious criminal offences in reliance upon the decision of the High Court in Dietrich v The Queen
(1992) 177 CLR 292 and
Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222 (30 September 2010) (Basten JA Hulme
J Schmidt J)
Dietrich v The Queen [1992] HCA 57 ; 177 CLR 292
Doney v The Queen
J Schmidt J)
R v McFelin [1985] 2 NZLR 750; R v Jenkyns (1993) 32 NSWLR 712; R v Tillott (1995) 38 NSWLR 1; R v
WB [2009] VSCA 173; Roughley v R (1995) 5 Tas R 8; Sparkes v R [1998] TASSC 18; Cheney v The Queen (
1991) 99 ALR 360 ; R v Trochym [2007] SCC 6; 1 SCR 239 ; The Queen v JMS [1998] VSCA 19; RFC [2000
] WASCA 308 ; 23 WSAR 106; 116 A Crim R 280 ; MacPherson v The Queen [1981] HCA 46; 147 CLR 512;
Wendo v The Queen [1963] HCA 19; 109 CLR 559; Dietrich v The Queen [1992] HCA 57; 177 CLR 292 ; Nud
d v The Queen [2006] HCA 9; 80 ALJR 614; Horsfall (1989) 51 SASR 489; 44 A Crim R 345; King v Bryant
(No 2)[1956] QSR 570; R v Clarke [2001] NSWCCA 494; 123 A Crim R 506; THD v The Queen [2010]
VSCA 115; R v Shamouil [2006] NSWCCA 112; R v R (1989) 18 NSWLR 74; R v Cook [2004] NSWCCA 52
, cited.
J Schmidt J)
In other circumstances, there may be unfairness in requiring an accused to proceed on a serious
criminal charge without representation: Dietrich v The Queen [1992] HCA 57; 177 CLR 292
Isherwood v Tasmania [2010] TASCCA 11 (02 September 2010) (Crawford CJ, Evans and Blow JJ)
R v Andrews (1938) 27 Cr App R 12; R v Nilson [1971] VR 853; Dietrich v R (1991) 177 CLR 292 ; Black v
Smith (1984) 30 NTR 29; Abram v Bank of New Zealand (1996) 18 ATPR 41-507; Pezos v Police (2005) 94
SASR 154; Tomasevic v Travaglini (2007) 17 VR 100, referred to.
Isherwood v Tasmania [2010] TASCCA 11 (02 September 2010) (Crawford CJ, Evans and Blow JJ)
Remely v Vandenberg [2010] QCA 214 (13 August 2010) (McMurdo P and Muir JA and Applegarth J,)
, distinguished Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, cited
In this regard, he referred to Dietrich v The Queen
[6] It was not explained how that case assisted him
JB and BW (Application to Extend Time to Appeal) [2010] FamCAFC 144 (13 August 2010) (Faulks DCJ)
of right to a fair trial by virtue of not being legally represented – Consideration of Dietrich v The
Queen (1992) 177 CLR 292 – No right to legal representation in civil proceedings at the public
expense –
R v Dietrich (1992) 177 CLR 292
The appellant relies upon the principles enunciated by the High Court in R v Dietrich,[25] which
established that a court has the power to grant an adjournment or a stay or proceedings if a trial is
likely to be unfair if an
In Dietrich’s Case, Mason CJ and McHugh J relevantly stated:
which further outlined the principle in Dietrich’s Case
[10] The principle in Dietrich was explained in the joint judgment of Mason CJ, Dawson, Toohey
and McHugh JJ in
of this case, where the procedure to be adopted in the contempt proceeding is civil rather than
criminal, the respondent’s application to stay the proceedings on the basis of Dietrich had to fail
because the principle in
had to fail because the principle in Dietrich has no application to civil proceedings
I note in Guest J’s Reasons for Judgment of 26 May 1999 relating to the contravention application
his Honour specifically considered the adjournment issue (albeit not with reference to Dietrich’s
Case)
The principle in Dietrich’s Case would ordinarily relate to fulfilling the obligation both at common
law (and international law) to give parties accused of criminal offences the opportunity to receive a
fair trial
It is difficult to treat circumstances such as in this case as the same or similar to the important
circumstances the High Court contemplated in Dietrich’s Case in protecting the interests of an
accused person
the Court would, (even if they were properly to be considered civil proceedings), nevertheless by
proper jurisprudential extension be subject to the same procedural protection as was considered
appropriate in Dietrich’s Case
In terms of the application of the principle in Dietrich’s Case, one interpretation may lead to the
logical extension of the principle in circumstances where an order of the Court would have the
effect of depriving a person of
It is important, however, to consider what the protections stipulated in Dietrich’s Case actually are
If, therefore, I were to extend the principles in Dietrich’s Case as the appellant suggested should
have occurred, what Guest J might have properly done was not provide the appellant with counsel
at public expense, but rather a
The appellant relies upon the principles enunciated by the High Court in R v Dietrich,[25] which
established that a court has the power to grant an adjournment or a stay or proceedings if a trial is
likely to be unfair if an
, Mason CJ and McHugh J relevantly stated:[26]
Dupas v The Queen [2010] HCA 20 (16 June 2010) (French CJ, Gummow, Hayne, Heydon, Crennan,
Kiefel and Bell JJ)
The appellant contends that the balance of authority in the High Court has approved a concept of
unfairness such that it might arise irrespective of its source and whether or not it was controllable
by court processes[33]
Dupas v The Queen [2010] HCA 20 (16 June 2010) (French CJ, Gummow, Hayne, Heydon, Crennan,
Kiefel and Bell JJ)
The appellant contends that the balance of authority in the High Court has approved a concept of
unfairness such that it might arise irrespective of its source and whether or not it was controllable
by court processes[33]
Remely v Vandenberg [2010] QCA 51 (12 March 2010) (McMurdo P, Muir JA and Daubney J,)
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, considered
He refers to Dietrich v The Queen,[4] emphasising that Dietrich obtained a stay on the grounds
that he could not obtain legal assistance
Dietrich has no relevance in the circumstances of this case
He refers to Dietrich v The Queen,[4] emphasising that Dietrich obtained a stay on the grounds
that he could not obtain legal assistance
R v Chi Wai Chung [2010] VSCA 39 (11 March 2010) (Redlich and Harper JJA and King AJA)
of bias could not be removed, he was obliged to make the order that he did in accordance with his
duty to make the trial as fair as he could make it[26] and to ensure confidence in the integrity of the
jury’s verdict
R v Dupas (No 3) [2009] VSCA 202 (17 September 2009) (Nettle, Ashley and Weinberg JJA)
Dietrich v The Queen,[66]
R v Dupas (No 3) [2009] VSCA 202 (17 September 2009) (Nettle, Ashley and Weinberg JJA)
Dietrich v The Queen,[66]
Tompkins v Honeyman [2009] QCA 217 (31 July 2009) (McMurdo P, Fraser JA and Jones J,)
The right is manifested in rules of law and of practice designed to regulate the course of the trial:
Dietrich v The Queen
[12] In his reasons in that case Brennan J said:-
Tompkins v Honeyman [2009] QCA 217 -

Tompkins v Honeyman [2009] QCA 217 -
R v Fearnside [2009] ACTCA 3 (24 February 2009) (Gray P, Penfold and Besanko JJ)
R v Fearnside [2009] ACTCA 3 (24 February 2009) (Gray P, Penfold and Besanko JJ)
He made reference to the common law right to a fair trial or, as he put it, not to have an unfair trial,
and he referred to the decision in Dietrich v The Queen (1992) 177 CLR 292
R v Peterson [2008] QCA 405 (12 December 2008) (de Jersey CJ, McMurdo P and White AJA,)
He does not have any constitutional entitlement to legal representation in his application for an
extension of time to appeal against conviction in this Court: cf Dietrich v The Queen[6]and
He does not have any constitutional entitlement to legal representation in his application for an
extension of time to appeal against conviction in this Court: cf Dietrich v The Queen[6]and
Davey and Davey and Anor [2008] FamCAFC 196 (11 December 2008) (May J)
Dietrich v R [1992] 177 CLR 292
Davey and Davey and Anor [2008] FamCAFC 196 (11 December 2008) (May J)
In support of this submission, Mr Bell cited the High Court’s decision in Dietrich v R [1992] 177 CLR
292
R v East [2008] QCA 144 (06 June 2008) (Keane JA, Fryberg and Lyons JJ,)
, applied Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, applied
in Australia of a fairly conducted criminal trial that the majority of the High Court in Dietrich v
The Queen[1] held that a criminal trial for a serious offence should be adjourned, rather than that
an indigent
In Dietrich v The Queen, Mason CJ and McHugh J said:
In my respectful opinion, this consideration makes the appellant's application for an adjournment
stronger than that discussed in Dietrich v The Queen
In Dietrich v The Queen, the choice which confronted the trial judge was between proceeding with
the trial with the accused being unrepresented, and putting off the trial to a later date when the
likelihood was that the accused
Mr Long SC, who appeared on behalf of the respondent, emphasised that the decision of the High
Court in Dietrich v The Queen obliges a trial judge to allow an adjournment to an unrepresented
accused to enable legal representation
Mr Long argued that the appellant placed himself outside the scope of the principle in Dietrich v
The Queen when he brought about the termination of Mr Murphy's retainer by his unreasonable
demands in relation to the preparation
in concluding that the circumstances were sufficiently "exceptional" within the principle in
Dietrich v The Queen to refuse a further application for adjournment, even if Legal Aid remained
(remarkably) ready and
Nevertheless, in my respectful opinion, those considerations were not such as to make this case
"exceptional" in the sense discussed in Dietrich v The Queen
In this regard, in Dietrich v The Queen, Dawson J, with whom Gaudron J agreed
On the other hand, in Dietrich v The Queen, Mason CJ and McHugh J did not regard the wrongful
refusal of an adjournment as of itself establishing a substantial miscarriage of justice so as to put
the case beyond the scope of the
In conformity with the decision of the High Court in Dietrich v The Queen, however, those
occasions should be exceptional
The great importance of legal representation in securing a fair trial is manifest from the decision of
the High Court in Dietrich v The Queen
However, given the very clear exhortation in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA
57 of the desirability of an accused person who is charged with a serious offence being represented
and the clear indication
in Australia of a fairly conducted criminal trial that the majority of the High Court in Dietrich v
The Queen[1] held that a criminal trial for a serious offence should be adjourned, rather than that
an indigent
R v East [2008] QCA 144 -

[4] Mr Long argued that the appellant placed himself outside the scope of the principle in
, Dawson J, with whom Gaudron J agreed[18] on this point, said:
R v East [2008] QCA 144 -

R v East [2008] QCA 144 -
R v East [2008] QCA 144 -
R v East [2008] QCA 144 -
[37] Neither the fact that Mr East had had multiple sets of lawyers nor the fact that the trial date
was the second for the matter and had been set well in advance was sufficient to justify depriving
Mr East of any reasonable
Berben, Laurens v The Queen [2008] NSWCCA 125 (04 June 2008) (Giles JA; Barr J; Hall J)
21 The first matter is that there was a miscarriage of justice because the trial judge should have
adjourned or stayed the trial until the appellant had legal representation: Dietrich v The Queen
(1992) 177 CLR 292
23 The basis of Dietrich v The Queen is the right to receive a fair trial
The question is whether in the particular circumstances the appellant could not or did not receive
a fair trial: Dietrich v The Queen at 311 per Mason CJ and McHugh J, 325 per Brennan J, 343 per
Dawson J
for an adjournment or a stay was not made, and assuming that the offences were serious offences
within Dietrich v The Queen principles it should be asked whether there was a miscarriage of
justice because want of legal
Gassy v The Queen [2008] HCA 18 (14 May 2008) (Gummow, Kirby, Hayne, Crennan and Kiefel JJ)
He elected to appear without counsel although the provision of skilled legal representation was
effectively his legal right[34]
does not hold that an accused's lack of representation itself amounts to a miscarriage of justice[106]
Mason CJ and McHugh J acknowledged that a lack of representation may mean that an accused is
unable to receive a fair trial, but that such a finding depended upon the circumstances of the
particular case[107]
Sharp v Rangott [2008] FCAFC 45 (03 April 2008) (Gray, North and Besanko JJ)
This was recognised by the High Court in another context in the well-known decision of Dietrich v
The Queen (1992) 177 CLR 292 at 302 per Mason CJ and McHugh J, 334-5 per Deane J, 354 per
Toohey J, 370-1 per Gaudron J
In serious criminal trials, that intervention may be as extreme as to stay the proceedings: Dietrich v
The Queen (supra)
Philopos v R [2008] NSWCCA 66 (01 April 2008) (McClellan CJ at CL at 1; James J at 82; Barr J at 83)
Dietrich v The Queen (1992) 177 CLR 292Frawley v R
62 The relevant principles were considered by the High Court in Dietrich v The Queen (1992) 177
CLR 292
In Dietrich Mason CJ and McHugh J said at 315:
After setting out the passage from the reasons of Mason CJ and McHugh J in Dietrich which I have
set out above the court said at 183-184:
The decision was given after the decision in Dietrich
Winters v Attorney-General (NSW) [2008] NSWCA 33 (18 March 2008) (Mason P at 1; Giles JA at 37;
Hodgson JA at 84)
Counsel relied on an analogy with Dietrich v R (1992) 177 CLR 292
Hodgson JA at 84)
presuming that the Government will provide funding invites the remark of Brennan J in Dietrich v
The Queen (1992) 177 CLR 292 at 323 in relation to funding for a postulated entitlement to legal aid,
that “to declare such
Hodgson JA at 84)
It was submitted that the defendant’s reliance upon Dietrich was misplaced, given that the decision
in that case was about the right to a fair trial and not the outcome of that trial
Hodgson JA at 84)
[172] In my judgment Mr Winters’ submission that the position is analogous to that in Dietrich is
not correct
Hodgson JA at 84)
[173] In Dietrich, the denial (through no fault of the indigent accused) of legal aid and legal
representation directly affected the accused’s right to a fair trial
Folbigg v R [2007] NSWCCA 371 (21 December 2007) (McClellan CJ at CL at 1; Simpson J at 66; Bell J at
67)
( Dietrich v The Queen (1992) 177 CLR 292 at 300, 64 A Crim R 176 at 179 per Mason CJ and McHugh
J, see also Toohey J at 353
Lodhi v R [2007] NSWCCA 360 (20 December 2007) (Spigelman CJ at 1; Barr J at 112; Price J at 215)
Director of Public Prosecutions v Coe
Lodhi v R [2007] NSWCCA 360 (20 December 2007) (Spigelman CJ at 1; Barr J at 112; Price J at 215)
The authority upon which the appellant relied in this regard was the judgment of Deane J in
R v Yasso [2007] VSCA 306 (14 December 2007) (Maxwell P, Redlich JA and Habersberger AJA)
[2] In view of the serious matters raised by the applicant’s cousin, the Court adjourned the further
hearing of the appeal and directed a transcription of the morning’s proceedings and that
arrangements be made for a new
Can, Vural v The Queen [2007] NSWCCA 346 (14 December 2007) (Giles JA at 1; Grove J at 2; Harrison J
at 3)
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292Dyers v The Queen
Can, Vural v The Queen [2007] NSWCCA 346 (14 December 2007) (Giles JA at 1; Grove J at 2; Harrison J
at 3)
The appellant argued by analogy with the reasoning in Dietrich v The Queen [1992] HCA 57; (1992)
177 CLR 292 that "an accused person is denied a fair trial if relevant witnesses, through no fault of
the accused, not giving
Evans v The Queen [2007] HCA 59 (13 December 2007) (Gummow, Kirby, Hayne, Heydon and Crennan
JJ)
because of the very high value accorded by our law to the fair trial of a person accused of a criminal
offence[113] and the normal assumption that every person facing such an accusation will have a
legally accurate and fair
Gately v The Queen [2007] HCA 55 (06 December 2007) (Gleeson CJ, Kirby, Hayne, Heydon and
Crennan JJ)
The overriding duty of the judge presiding in a jury trial is to ensure the fairness of the trial and to
avoid any miscarriage of justice[28]
Washer v Western Australia [2007] HCA 48 (08 November 2007) (Gleeson CJ, Kirby, Hayne, Heydon and
Crennan JJ)
that the appellate court should consider the entirety of the record for itself, in order to answer the
question posed by the common form in which the "proviso" is expressed in cases of appeals against
criminal convictions[81]
Burnett v Director of Public Prosecutions [2007] NTCA 7 (01 November 2007) (Martin (BR) CJ, Mildren
and Southwood JJ)
[(1992) 177 CLR 292 at 302], Mason CJ and McHugh J repeated the extrajudicial opinion of Lord
Devlin that, save in the exceptional case of the skilled litigant, in practice the adversarial system
breaks down where there is no
and Southwood JJ)
and Southwood JJ)
In Dietrich v The Queen [
and Southwood JJ)
and Dietrich v The Queen (1992) 177 CLR 292
and Southwood JJ)
In Dietrich, by a majority the High Court held that “… the common law of Australia does not
recognise the right of an accused to be provided with counsel at public expense” (297 - 298)
and Southwood JJ)
A number of authorities were cited in which it was held that the principle in Dietrich does not
apply to civil matters
and Southwood JJ)
In the passages cited earlier from the judgments in Dietrich and
and Southwood JJ)
Dietrich v The Queen (supra) at 297-298, 302-303, 311, 330, 342 and 364-365
and Southwood JJ)
The reason why the Dietrich principle does not apply to civil proceedings is because the plaintiff in
civil proceedings has a right to have his, her or its action heard and the plaintiff in such
proceedings, by bringing those
and Southwood JJ)
where Mason CJ, Dawson, Toohey and McHugh JJ said that there is no suggestion in the majority
judgments in Dietrich v The Queen that a court could exercise a similar jurisdiction in civil
proceedings
and Southwood JJ)
, Pullin JA indicated that the Dietrich principle could apply to confiscation proceedings
and Southwood JJ)
The principle enunciated in Dietrich v The Queen (supra), that the courts have power to stay
proceedings that will result in an unfair trial and the power extends to a case in which
representation by counsel is essential to a
and Southwood JJ)
precluded a defendant from accessing restrained property for that purpose, the principle
enunciated in Dietrich v The Queen (supra) which is the principle on which the courts relied to
grant defendants access to restrained
Em v The Queen [2007] HCA 46 (04 October 2007) (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ)
[97] cf Dietrich v The Queen (1992) 177 CLR 292 at 364
Rivera v Minister for Justice and Customs [2007] FCAFC 123 (09 August 2007) (Emmett, Conti and
Buchanan JJ)
Rivera v Minister for Justice and Customs [2007] FCAFC 123 (09 August 2007) (Emmett, Conti and
Buchanan JJ)
Further, there is no common law right to legal representation at a criminal trial (see Dietrich v The
Queen (1992) 177 CLR 292)
Thomas v Mowbray [2007] HCA 33 (02 August 2007) (Gleeson CJ, Gummow, Kirby, Hayne, Callinan,
Heydon and Crennan JJ)
In Leeth v The Commonwealth, Deane and Toohey JJ pointed out that the provisions of Ch III[485]:
R v Hoang [2007] VSCA 117 (07 June 2007) (Maxwell P, Eames and Neave JJA)
Counsel for the Crown contended that the principle in Dietrich v R,[3] that the trial of an
unrepresented accused for a serious offence should only proceed in exceptional cases,
The majority in Dietrich did not accept the proposition that a trial without legal representation will
always be unfair, so that a conviction occurring in such circumstances must inevitably be quashed
As Mason CJ and McHugh J said in Dietrich:
Counsel for the Crown contended that the principle in Dietrich v R,[3] that the trial of an
unrepresented accused for a serious offence should only proceed in exceptional cases,
that the trial of an unrepresented accused for a serious offence should only proceed in exceptional
cases,[4] applied only where the accused is unrepresented “through no fault of his own”
[5] In this case the applicant was unrepresented because he had refused to provide financial
information to Victoria Legal Aid, so that he did not lack representation “through no fault of his
own”
R v Hoang [2007] VSCA 117 -

Michael v The State of Western Australia [2007] WASCA 100 (14 May 2007) (Steytler P)
Michael v The State of Western Australia [2007] WASCA 100 (14 May 2007) (Steytler P)
That person would not only be ignorant of the criminal law but also of the rules of procedure and
evidence: Dietrich v The Queen (1992) 177 CLR 292 at 344 345
Wilson v White [2007] WASCA 87 (30 April 2007) (Wheeler JA)

Esther Investments Pty Ltd v Markalinga Pty Ltd

Esther Investments Pty Ltd v Markalinga Pty Ltd

See Dietrich v The Queen (1992) 177 CLR 292 per Mason CJ and McHugh J at 305 - 306, per Brennan
J at 321, per Dawson J at 348 - 349, per Toohey J at 359 - 360
Barac v Director of Public Prosecutions [2007] QCA 112 (05 April 2007) (McMurdo P, Jerrard JA and
Keane JA,)
[18] But it is not suggested that this is such a case
MG v R [2007] NSWCCA 57 (05 March 2007) (McClellan CJ at CL; Bell J; Hoeben J)

the absence of legal representation of an indigent person facing serious criminal proceedings
Dietrich v R (1992) 177 CLR 292; 109 ALR 385
Scrymgour v Moore [2006] NTCA 13 (18 December 2006) (Olson AJ)
Coleman v Power (2004) 220 CLR 1 ; Dietrich v The Queen (1992) 177 CLR 292 ; Erglis v Buckley (200
4) 2 Qd R 599 ; Lange v Australian Broadcasting Commission (1997) 189 CLR 520 ; Laurance v Katter (
2000) 1 Qd R 147; (1996) 141 ALR 447; Levy v Victoria (1997) 189 CLR 579 ; Prebble v Television New
Zealand Ltd [1995] 1 AC 321 ; R v Eliot, Hollis and Valentine (1629) 3 St Tr 293 ; Rowley v O’Chee (200
0) 1 Qd R 207; (1997) 150 ALR 199; Johnson v Johnson (2000) 201 CLR 488 ; The Union Steamship Co
of New Zealand Limited and Anor v The Commonwealth and Anor (1925) 36 CLR 130 ; referred to
Scrymgour v Moore [2006] NTCA 13 (18 December 2006) (Olson AJ)
[32] Next we were directed to the fact that the accused were self-represented, apparently because
legal aid had been refused and they were indigent. As Angel J correctly pointed out the principles
established in Dietrich v The Queen (1992) 177 CLR 292 do not apply to summary proceedings.
Sayson v Northern Territory of Australia [2006] NTCA 11 (16 November 2006) (Martin (BR) CJ, Mildren
and Riley JJ)
Sayson v Northern Territory of Australia [2006] NTCA 11 (16 November 2006) (Martin (BR) CJ, Mildren
and Riley JJ)
Air Manymak v Jeffs [2006] NTCA 12 (16 November 2006) (Martin (BR) CJ, Angel and Southwood JJ)
Air Manymak v Jeffs [2006] NTCA 12 (16 November 2006) (Martin (BR) CJ, Angel and Southwood JJ)
MCT v McKinney [2006] NTCA 10 (20 October 2006) (Martin (BR) CJ, Mildren and Thomas JJ)
MCT v McKinney [2006] NTCA 10 (20 October 2006) (Martin (BR) CJ, Mildren and Thomas JJ)
New Zealand v Moloney [2006] FCAFC 143 (05 October 2006) (Black CJ, Branson, Weinberg, Bennett
and Lander JJ)
He argued that even an application for a stay, under the principles laid down in Dietrich v The
Queen (1992) 177 CLR 292, would take a long time to resolve, and would require him to remain
incarcerated until the issue was
Thurlow and Innocenzi v The Architects Studio Pty Ltd [2006] NTCA 8 (22 September 2006) (Martin
(BR) CJ; Mildren and Southwood JJ)
Thurlow and Innocenzi v The Architects Studio Pty Ltd [2006] NTCA 8 (22 September 2006) (Martin
(BR) CJ; Mildren and Southwood JJ)
AM v The Queen [2006] NTCCA 18 (13 September 2006) (Martin (BR) CJ, Angel and Southwood JJ)
AM v The Queen [2006] NTCCA 18 (13 September 2006) (Martin (BR) CJ, Angel and Southwood JJ)
Christopher John Henderson v The Queen; the Queen v Christopher John Henderson [2006] ACTCA 17
(07 September 2006)
Christopher John Henderson v The Queen; the Queen v Christopher John Henderson [2006] ACTCA 17
(07 September 2006)
”, per Mason CJ and McHugh JJ in Dietrich v The Queen (1992) 177 CLR 292 at 310-311
Peach v Bird [2006] NTCA 7 (28 August 2006) (Martin (BR) CJ, Angel and Thomas JJ)
Peach v Bird [2006] NTCA 7 (28 August 2006) (Martin (BR) CJ, Angel and Thomas JJ)
NTA v Dean [2006] NTCA 6 (24 August 2006) (Martin (BR) CJ, Mildren and Southwood JJ)
NTA v Dean [2006] NTCA 6 (24 August 2006) (Martin (BR) CJ, Mildren and Southwood JJ)
Tomlins v Brennan [2006] NTCA 5 (10 August 2006) (Martin (BR) CJ, Thomas and Southwood JJ)
Tomlins v Brennan [2006] NTCA 5 (10 August 2006) (Martin (BR) CJ, Thomas and Southwood JJ)
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38 (20 July 2006) (Gleeson CJ, Gummow,
Kirby, Hayne, Heydon and Crennan JJ)
In Dietrich v The Queen[61], Mason CJ and McHugh J repeated the extrajudicial opinion of Lord
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38 (20 July 2006) (Gleeson CJ, Gummow,
Kirby, Hayne, Heydon and Crennan JJ)
In Dietrich v The Queen[61], Mason CJ and McHugh J repeated the extrajudicial opinion of Lord
DF v The Queen [2006] NTCCA 13 (18 July 2006) (Martin (BR) CJ, Angel and Riley JJ)
DF v The Queen [2006] NTCCA 13 (18 July 2006) (Martin (BR) CJ, Angel and Riley JJ)
Massie v The Queen [2006] NTCCA 15 (18 July 2006) (Martin (BR) CJ, Angel and Southwood JJ)
Massie v The Queen [2006] NTCCA 15 (18 July 2006) (Martin (BR) CJ, Angel and Southwood JJ)
Stevens v McCallum [2006] ACTCA 13 (30 June 2006)

Stevens v McCallum [2006] ACTCA 13 (30 June 2006)

His Honour found recognition of, at least, an implicit assumption of a right to the provision of
competent legal counsel in Dietrich v The Queen (1992) 177 CLR 292
Robinson v R [2006] NSWCCA 192 (22 June 2006) (Spigelman CJ at 1; Simpson J at 20; Johnson J at 21)
Dietrich v The Queen (1992) 177 CLR 292 Carter v Northmore Hale Davy and Leake
Darkan v The Queen [2006] HCA 34 (22 June 2006) (Gleeson CJ, Gummow, Kirby, Heydon and Crennan
JJ)
They include, as this Court pointed out in Weiss v The Queen[133], the limitations inherent in an
appellate court conducting a criminal trial on the record
Robinson v R [2006] NSWCCA 192 (22 June 2006) (Spigelman CJ at 1; Simpson J at 20; Johnson J at 21)
Island Maritime Ltd v Filipowski [2006] HCA 30 (15 June 2006) (Gleeson CJ, Gummow, Kirby, Hayne,
Callinan, Heydon and Crennan JJ)
It may also have been in the contemplation of the majority of this Court in Dietrich v The Queen
[96], in holding that the conduct of a "trial" of an accused who, through no fault of his or her own
could not afford counsel, might
Island Maritime Ltd v Filipowski [2006] HCA 30 (15 June 2006) (Gleeson CJ, Gummow, Kirby, Hayne,
Callinan, Heydon and Crennan JJ)
It may also have been in the contemplation of the majority of this Court in Dietrich v The Queen
[96], in holding that the conduct of a "trial" of an accused who, through no fault of his or her own
could not afford counsel, might
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 (14 June 2006) (Gleeson CJ,
Gummow, Hayne, Crennan, Kirby, Callinan JJ)
notions of justice and injustice, as well as other considerations that bear on public confidence in
the administration of justice, must reflect contemporary values and, as well, take account of the
circumstances of the case[37]
R v Inkamala [2006] NTCCA 11 (07 June 2006) (Martin (BR) CJ, Mildren and Thomas JJ)
R v Inkamala [2006] NTCCA 11 (07 June 2006) (Martin (BR) CJ, Mildren and Thomas JJ)
Ajax v The Queen [2006] NTCCA 12 (07 June 2006) (Martin CJ, Mildren and Thomas JJ)
Ajax v The Queen [2006] NTCCA 12 (07 June 2006) (Martin CJ, Mildren and Thomas JJ)
Highway v Tudor-Stack [2006] NTCA 4 (10 May 2006) (Martin (BR) CJ, Mildren and Thomas JJ)
Highway v Tudor-Stack [2006] NTCA 4 (10 May 2006) (Martin (BR) CJ, Mildren and Thomas JJ)
As Angel J correctly pointed out the principles established in Dietrich v The Queen (1992) 177 CLR
292 do not apply to summary proceedings
O'Meara v The Queen [2006] NSWCCA 131 (28 April 2006)

(ii) that, in accordance with the principles stated by the High Court in Dietrich v The Queen [1992]
HCA 57; 177 CLR 292, a stay of the trial ought to have been granted unless and until the appellant
was granted legal aid

The second matter was put in reliance on the decision of Dietrich

means to obtain legal representation for himself (one of the circumstances referred to in the
decision in Dietrich) Graham DCJ observed that the appellant had become experienced in the
conduct of litigation, was intelligent,

It appears that the appellant, in the District Court, relied upon that part of the decision in Dietrich
in which Mason CJ and McHugh J accepted that disadvantage to an unrepresented litigant might
arise by reason of an inability
R v Lodhi [2006] NSWCCA 101 (04 April 2006)

as a "fundamental element" or a "fundamental prescript": Dietrich v The Queen (1992) 177 CLR 292
at 299, 326
R v Lodhi [2006] NSWCCA 101 (04 April 2006)

and as an "overriding requirement": Dietrich (at 330)
De La Espriella-Velasco v The Queen [2006] WASCA 31 (10 March 2006) (Roberts-Smith JA)
or to make himself understood, the trial judge must, as part of his duty to ensure a fair trial, see to it
that the accused receives the assistance of a competent interpreter: Dietrich v R (1992) 177 CLR 292
at 331 per Deane J
The principle that denial of a fair trial constitutes a miscarriage of justice such that a conviction
following it must be quashed, was made clear by the High Court in Dietrich v The Queen (1992) 177
CLR 292
The principle enunciated in Dietrich was applied in
himself understood, the trial judge must, as part of his/her duty to ensure a fair trial, see to it that
the accused receives the assistance of a competent interpreter: Dietrich v The Queen (1992) 177 CLR
292 at 331 per Deane J
Nudd v The Queen [2006] HCA 9 (09 March 2006) (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and
Heydon JJ)
In Dietrich v The Queen[43], this Court affirmed the power of courts to stay criminal proceedings
that would otherwise result in an unfair trial where an accused person is charged with a serious
offence and, through no fault, is
Heydon JJ)
The result of Dietrich has been to expand significantly the public provision of legal representation
at criminal trials, replacing earlier imperfect arrangements for such assistance
Heydon JJ)
A proliferation of complaints about incompetent representation in Australia has followed the
decision in Dietrich, and the changes to the availability of publicly funded legal assistance that
occurred after that decision
Heydon JJ)
In Dietrich v The Queen[43], this Court affirmed the power of courts to stay criminal proceedings
that would otherwise result in an unfair trial where an accused person is charged with a serious
offence and, through no fault, is
Heydon JJ)
need to have legal representation, particularly in criminal trials, is the special difficulty faced by
accused persons standing trial, to represent themselves without a qualified lawyer who can provide
"effective assistance"[44]
Heydon JJ)
Legal representation, in other words, contemplates effective assistance, not simply having a person
present in court in an advocate's garb[48]
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (14 December
2005) (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ)
In Dietrich v The Queen[137], the dissentients made remarks similar to those contained in the
reasons of Gummow J in this case
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (14 December
2005) (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ)
In Dietrich v The Queen[137], the dissentients made remarks similar to those contained in the
reasons of Gummow J in this case
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 (16 November 2005)
(Wheeler JA, McLure JA, Miller AJA)
R v Forbes [2005] NSWCCA 377 (04 November 2005) (Spigelman CJ at 1; McClellan CJ at CL at 149; Hall J
at 150)
Dietrich v The Queen (1992) 177 CLR 292Driscoll v The Queen
R v Forbes [2005] NSWCCA 377 (04 November 2005) (Spigelman CJ at 1; McClellan CJ at CL at 149; Hall J
at 150)
” ( Dietrich v The Queen (1992) 177 CLR 292 at 300 per Mason CJ and McHugh J, see also Toohey J at
353
Adugna v The State of Western Australia [2005] WASCA 206 (10 October 2005) (Steytler P, Wheeler JA,
McLure JA)
Jago v District Court of New South Wales
Adugna v The State of Western Australia [2005] WASCA 206 (10 October 2005) (Steytler P, Wheeler JA,
McLure JA)
Jago v District Court of New South Wales
APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 (01 September 2005) (Gleeson CJ,
McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ)
This Court has repeatedly found implications defensive of the integrated Judicature mentioned in
Ch III, derived by necessary inference, from the language, purpose and structure of the
Constitution[336]
R v Kerbatieh [2005] VSCA 194 (30 August 2005) (Chernov and Nettle, JJ.A and Byrne, A.J.A.)
For example, in Dietrich v. The Queen[23], Gaudron, J
Contrary to the thrust of counsel’s submissions, Dietrich does not stand for the proposition that the
trial is relevantly “unfair” merely because the accused was forced by circumstances to conduct his
or her own defence
, the conclusion of the majority in Dietrich “rested upon the nature and exigencies of a criminal
trial
” In any event, the circumstances in this case were materially different from those in Dietrich
For example, in Dietrich v. The Queen[23], Gaudron, J
[38] Not surprisingly, however, when the courts have identified the scope of that duty, they have
done so only in general terms
Uittenbosch v Department of Corrective Services [2005] QCA 300 (19 August 2005) (McPherson JA,
Atkinson and Mullins JJ,)
Dietrich v The Queen (1992) 177 CLR 292, cited
Such international instruments have, as Brennan J (as his Honour then was) observed in Dietrich v
The Queen,[15] a legitimate influence on the development of the common law
Such international instruments have, as Brennan J (as his Honour then was) observed in Dietrich v
The Queen,[15] a legitimate influence on the development of the common law
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 143 (03 August
2005) (Sundberg, Marshall and North JJ)
Dietrich v The Queen (1992) 177 CLR 292, cited
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 143 (03 August
2005) (Sundberg, Marshall and North JJ)
see, for example, Dietrich v The Queen (1992) 177 CLR 292
Chief Executive Officer of Customs v El Hajje [2005] HCA 35 (03 August 2005) (McHugh, Gummow,
Kirby, Hayne and Heydon JJ)
Had it been necessary, this Court would, in that case, have had to consider the respondents'
arguments about the due process implications said to arise from Ch III of the Constitution[110]
Greentree v Minister for Environment and Heritage [2005] FCAFC 128 (13 July 2005) (Kiefel, Weinberg
and Edmonds JJ)
Dietrich v The Queen (1992) 177 CLR 292 Cited
Greentree v Minister for Environment and Heritage [2005] FCAFC 128 (13 July 2005) (Kiefel, Weinberg
and Edmonds JJ)
Nevertheless regard may be had to the terms of a Convention where there is ambiguity in the
domestic legislation: Dietrich v The Queen (1992) 177 CLR 292 at 305-6
Higgins v Comans [2005] QCA 234 (28 June 2005) (McPherson and Keane JJA and White J,)
Dietrich v The Queen (1992) 177 CLR 292, distinguished
(supra) in the light of Dietrich v The Queen (1992) 177 CLR 292"
The decision in Dietrich established that a court has jurisdiction to adjourn or permanently stay
criminal proceedings to allow an indigent person charged with a serious offence to obtain legal
representation so that the person
that subsequent High Court authority has made it clear that the Dietrich principle does not apply
to committals
[10] The appellant's submission ignores the occasions since
Povey v Qantas Airways Ltd [2005] HCA 33 (23 June 2005) (Gleeson CJ, McHugh, Gummow, Kirby,
can create no rights in Australian domestic law without there being legislation giving effect to
those rights, the source of the right which the appellant seeks to enforce must be found in the
Carriers' Liability Act[12]
Povey v Qantas Airways Ltd [2005] HCA 33 (23 June 2005) (Gleeson CJ, McHugh, Gummow, Kirby,
Australia's entry into an international agreement does not itself create rights or liabilities or impose
duties enforceable under the domestic law of this country[48]
Re Martin; Ex Parte Dipane [2005] WASCA 111 (15 June 2005) (Steytler P, Roberts-Smith JA, Miller AJA)
Edelsten v Richmond
Edelsten v Richmond
Australia granted the order absolute on the ground the Judge had committed a jurisdictional error
as a result of his misunderstanding of the reasons of the majority of the High Court in Dietrich v
The Queen (1992) 177 CLR 292
Mansfield v The Director of Public Prosecutions for Western Australia [2005] WASCA 79 (29 April 2005)
(Steytler P, Wheeler JA, Pullin JA)
Director of Public Prosecutions for Western Australia v Mansfield
Director of Public Prosecutions for Western Australia v Mansfield
gain legal representation which may lead to a Dietrich application to stay the criminal proceedings:
application to stay the criminal proceedings: Dietrich v The Queen (1992) 177 CLR 292
Beach J considered the Dietrich principle and concluded that it applies by extension to
"applications for restraining orders or pecuniary penalty orders by an accused person". See also the
cases cited by Beach J at 445, namely
the Court to make a freezing order which provided for the release of funds for legal expenses, but
that fact does not alter my reasoning or the statement about the application of the Dietrich
principle to confiscation proceedings
Beamish v The Queen [2005] WASCA 62 (01 April 2005) (Steytler J, Wheeler J, McLure J)
Stack v The State of Western Australia [2004] WASCA 300 (20 December 2004) (Murray J, Steytler J,
Templeman J)
Subramaniam v The Queen [2004] HCA 51 (10 November 2004) (Gleeson CJ,McHugh, Kirby, Hayne and
Callinan JJ)
the absence of legal representation of an indigent person facing serious criminal proceedings[13]
Fardon v Attorney-General (Qld) [2004] HCA 46 (01 October 2004) (Gleeson CJ,McHugh, Gummow,
Kirby, Hayne, Callinan and Heydon JJ)
where the charge is contested[225], in a fair trial at which the accused is found guilty by an
independent court of the offence charged
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 (15
Dietrich v The Queen (1992) 177 CLR 292Director of Public Prosecutions v Shirvanian
A right to a fair trial according to law is a fundamental element of the criminal justice system ( Jago:
Dietrich v The Queen (1992) 177 CLR 292)
and as an “overriding requirement”: Dietrich at 330
as a “fundamental element” or a “fundamental prescript”: Dietrich v The Queen (1992) 177 CLR 292
at 299, 326
Al-Kateb v Godwin [2004] HCA 37 (06 August 2004) (Gleeson CJ,McHugh, Gummow, Kirby, Hayne,
Callinan and Heydon JJ)
than were the many decisions of this Court, in which McHugh J participated, where the process of
interpretation produced a significant change to earlier understandings of that document[267]
Rivera v United States of America [2004] FCAFC 154 (16 June 2004) (Heerey, Sundberg and Crennan JJ)
Dietrich v Queen (1992) 177 CLR 292 referred to
19. Counsel for the respondent relied on the High Court’s restatement of the Dietrich principle
in Canellis , in particular the exclusion of the principle from any application in committal
proceedings or civil proceedings and also relied on subsequent and unsuccessful
applications to extend the Dietrich principle to the administrative law field. For example,
Nicholson J in Commissioner of Taxation v La Rosa (2002) 196 ALR 139 said at [120] :
“[120] Dietrich decided that the common law of Australia does not recognise the right of
an accused person to be provided with counsel at the public expense but the courts have
power to stay criminal proceedings that will result in an unfair trial. In Nguyen v
Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 the Full
Court of the Federal Court held that the Dietrich principle had no application in the
circumstances of a decision of a tribunal in deportation proceedings: see [17] and [18] of N
guyen . … The Full Court in Nguyen considered it was clear the High Court did not
favour the extension of the Dietrich principle into the field of administrative review.
…
[122] …there is no requirement of procedural fairness that the taxpayer have legal or
other representation at the tribunal hearing. The authorities referred to above are
against it. The case for the taxpayer relies on an extension of the Dietrich principle
which is only open to be made by the ultimate court itself.”
…
…
…
23. In repeating submissions made before the primary judge on this appeal, based on the Dietrich
principle, the appellant argued that “any time there is a risk of selfincrimination and a
conviction, Dietrich applies automatically regardless of what type of proceedings it may be
and Canellis reenforces (sic) that view.” The appellant also relied on Holt, H.P. v Hogan, D. (19
93) 44 FCR 572 at 584, in support of a submission that a person facing extradition is entitled to
contest the application if so minded. He also relied on the observations of Kirby P (as he then
was) in Canellis v Slattery as follows:
“It is the duty of courts in proper cases, to ensure justice and to protect against
unfairness . . . these consequences are achieved not by creating a new right at common
law, but by utilising the long established powers of supervisory courts, by judicial
review, to prevent the processes of the law themselves becoming an instrument of
oppression or unfairness.”
He also submitted that the United States authorities:
“. . . intend to renege . . . there would be avenues available to the (Californian) District
Attorney to amend these charges once I’m sent back.”
He also sought to rely on the Dietrich principle on the basis that he needed legal
representation to apply to the High Court for special leave as “in order to apply to the High
Court you have to seek leave in person.”


There is nothing in the facts of this case which would support the application of the principle in
Dietrich to these extradition proceedings as contended for by the appellant in reliance upon the
observations of Kirby P in
Accordingly, we reject the submission that the Dietrich principle can be invoked in these
extradition proceedings on the basis contended because no risk of conviction or selfincrimination
can arise in these proceedings
In addition to relying on the Dietrich principle, the appellant relied on Art 14 of the ICCPR which
was considered in Dietrich’s case
The matters relied on in the substantive appeal, other than the ground of appeal based on the
Dietrich principle, were set out in one set of written submissions from the appellant as “grounds
upon which the applicant
In the proceedings before the primary judge the appellant first relied on the majority decision of
the High Court in Dietrich v Queen (1992) 177 CLR 292 (“Dietrich”), the High Court decision in
the exclusion of the principle from any application in committal proceedings or civil proceedings
and also relied on subsequent and unsuccessful applications to extend the Dietrich principle to the
administrative law field
“[120] Dietrich decided that the common law of Australia does not recognise the right of an accused
person to be provided with counsel at the public expense but the courts have power to stay
criminal proceedings that will
With respect to Dietrich, the primary judge noted that the case established that a court has
jurisdiction either to adjourn, or to order a stay of a criminal trial upon indictment, until such time
as an indigent person charged
has confirmed that the principle in Dietrich derives from an accused person’s right to a fair trial
Furthermore, and this is of decisive importance in the present case, the principle in Dietrich is
concerned with the right to a fair trial of a party to criminal proceedings
Ribot-Cabrera v The Queen [2004] WASCA 101 (18 May 2004) (Steytler J, EM Heenan J, LE Miere J)
Green v Sommerville
Green v Sommerville
because a treaty, in part or in whole, was included in the schedule to an Act did not incorporate the
treaty into municipal law - Dietrich v The Queen (1992) 177 CLR 292 at 305, 321 and 361 and that it is
plainly the case that
Carley v Sheppard [2004] WASCA 80 (23 April 2004) (Johnson J)
Carley v Sheppard [2004] WASCA 80 (23 April 2004) (Johnson J)

Elliott v ASIC [2004] VSCA 54 (07 April 2004) (Warren, C.J., Charles, J.A. and O'Bryan, A.J.A.)
Mr Jones argued that the decision of the High Court in Dietrich v. The Queen[63] should apply to a
‘quasi-criminal proceeding’
Mr Jones accepted that since Dietrich was decided, the principles enunciated have not yet been
applied to civil proceedings
the High Court considered whether the Dietrich principles applied to an inquiry established
pursuant to s
The High Court affirmed the principle in Dietrich, but held that the principle does not apply to
civil proceedings, committal proceedings or in relation to indigent persons charged with criminal
offences which are not serious
Mr Jones’s submission that the Dietrich principle should be applied by a trial judge to a civil
penalty proceeding brought by ASIC pursuant to the
Faced with the possibility that the Court might reject the submission based upon Dietrich, Mr
Jones disclaimed any suggestion that the trial had been conducted unfairly by the judge
Mr Jones argued that the decision of the High Court in Dietrich v. The Queen[63] should apply to a
‘quasi-criminal proceeding’
Regina v Promizio [2004] NSWCCA 75 (31 March 2004) (Sully J at 1; James J at 2; Hulme J at 76)
Regina v Promizio [2004] NSWCCA 75 (31 March 2004) (Sully J at 1; James J at 2; Hulme J at 76)
31 The letter, including the appellant’s application for a permanent stay of proceedings based on
the principles in Dietrich v the Queen (1992) 177 CLR 292 came before Judge Williams in the District
Court on 4 July 2002
Donnachy v Riegert [2004] WASCA 48 (18 March 2004) (Roberts-Smith J)

Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994

Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994

51 The fact that a defendant is unrepresented by a lawyer cannot of itself amount to a miscarriage
of justice (Dietrich v The Queen (1992) 177 CLR 292 per Brennan J at 325, Deane J at 335-6 and
Dawson J at 343)

52 The question which must be asked is whether it was fair to proceed in the circumstances
(Dietrich, supra)
55 As a general proposition the Dietrich principle does apply to summary proceedings in a Court of
Petty Sessions (

56 Although Dietrich and
Milat v The Queen [2004] HCA 17 (24 February 2004) (McHugh J)

His Honour also thought that Dietrich v The Queen[6] was based on this wide foundation

That decision made it plain that the decision of this Court in Dietrich, to which Kirby J referred,
was not based on any right to public funding of legal representation

"if Dietrich rests

His Honour also thought that Dietrich v The Queen[6] was based on this wide foundation
WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 (18
February 2004) (French, Lee and Hill JJ)
legally represented before a Court, although as the judgment of Mason CJ and McHugh J in
Dietrich v The Queen (1992) 177 CLR 292 at 301 observes, this rule, which dated back to a time
beyond legal memory had been relaxed
, discussed in Dietrich) has led to the rule that every accused person has a right to a fair trial and
that, depending upon all the circumstances, including factual matters and the background of the
accused, lack of
El Hajje v Chief Executive Officer of Customs [2003] VSCA 217 (17 December 2003) (Phillips, Batt and
Buchanan, JJ.A.)
acknowledged in Dietrich v. R.[2] in the context of a criminal trial, whether an adjournment is to be
granted to an unrepresented accused to enable him to obtain representation calls for the exercise
of a discretion having regard
El Hajje v Chief Executive Officer of Customs [2003] VSCA 217 (17 December 2003) (Phillips, Batt and
Buchanan, JJ.A.)
acknowledged in Dietrich v. R.[2] in the context of a criminal trial, whether an adjournment is to be
granted to an unrepresented accused to enable him to obtain representation calls for the exercise
of a discretion having regard
McCreed v R [2003] WASCA 275 (14 November 2003) (Malcolm CJ, Steytler J, Miller J)
Duff v R
McCreed v R [2003] WASCA 275 (14 November 2003) (Malcolm CJ, Steytler J, Miller J)
Duff v R
R v White [2003] VSCA 174 (13 November 2003) (Charles, Chernov and Eames, JJ.A.)
An accused has a right not to be tried unfairly[1]
Regina v Joyce [2003] NSWCCA 280 (29 September 2003) (Tobias JA at 36; Howie J at 37; Shaw J at 1)
The basis of that decision is in reliance upon principles explained by the High Court of Australia in
We were asked to allow the appeal on this basis, applying the principles in Dietrich v The Queen
(1992) 177 CLR 292
Further, it is for an applicant to put his or herself within the circumstances envisaged by the High
Court in Dietrich v The Queen to be granted a permanent stay on that basis
19 In Dietrich the judgments of the High Court give some elaboration of those circumstances in
which a trial judge should consider a stay of proceedings on the basis that the accused person is
unrepresented by counsel
20 From the judgments in Dietrich it is clearly correct to say that, in Australia, a trial judge has a
power to order a permanent stay of proceedings against an indigent accused on serious criminal
charges when, through no fault
that he did, namely, that the applicant could not bring himself within the circumstances
considered in Dietrich as necessary for a permanent stay to be ordered, that is, the applicant could
not demonstrate that his trial
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49 (05 September
2003) (Gleeson CJ,McHugh, Gummow, Kirby and Hayne JJ)
By this issue, the respondents sought to invoke what they described as a "general guarantee of due
process" contained in Ch III of the Constitution[28]
Re Pinkstone's applications [2003] HCA 46 (27 August 2003) (Kirby J)

So far, the principle in Dietrich v The Queen[13] does not, in terms, apply to appeals but only to
trials
Re Pinkstone's applications [2003] HCA 46 (27 August 2003) (Kirby J)

So far, the principle in Dietrich v The Queen[13] does not, in terms, apply to appeals but only to
trials
Gonzales v Claridades [2003] NSWCA 227 (18 August 2003) (Mason P at 1; Beazley JA at 54; Foster AJA at
55)
Dietrich v The Queen (1992) 177 CLR 292New South Wales v Canellis
Gonzales v Claridades [2003] NSWCA 227 (18 August 2003) (Mason P at 1; Beazley JA at 54; Foster AJA at
55)
However, it is not suggested that a stage has been reached where his right to a fair trial will be
compromised (cf Dietrich v The Queen (1992) 177 CLR 292
DPP v Moore [2003] VSCA 90 (29 July 2003) (Batt, Chernov and Eames, JJ.A.)
[88] In the circumstances, I consider that it would be appropriate to uphold the magistrate’s
decision on this alternative basis
simply because the conduct of police has been illegal or improper because “that issue would not
properly arise for trial and determination, being a matter for police discipline, criminal charges or
civil liberties”[135]
Patterson v Foord [2003] WASCA 157 (18 July 2003) (Miller J)

Driscoll v R
Patterson v Foord [2003] WASCA 157 (18 July 2003) (Miller J)

Driscoll v R
Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146 (20 June 2003) (Spigelman CJ at 1;
Handley JA at 2; Ipp JA at 3)
Coco v The Queen (1994) 177 CLR 292Collier v Hicks
Dietrich v The Queen (1992) 177 CLR 292Esso Australia Resources Limited v Commissioner of
Taxation
91 In Dietrich v The Queen (1992) 177 CLR 292 at 301-2 Mason CJ and McHugh J observed at 301 to
302:
93 Dietrich is therefore not authority for the proposition that under the common law there is an
absolute right to legal representation
KRIJNEN v Conti [2003] WASCA 114 (06 June 2003) (Barker J)

KRIJNEN v Conti [2003] WASCA 114 (06 June 2003) (Barker J)

is well established that the right of an accused person to receive a fair trial according to law is a
fundamental element of our criminal justice system: Dietrich v The Queen (1992) 177 CLR 292 at 297
per Mason CJ and McHugh J
R v Joyce [2003] NSWCCA 84 (08 April 2003) (Dunford J at 1; Simpson J at 2; Hidden J at 3)

Dietrich v The Queen (1992) 177 CLR 292Jago v District Court of NSW
R v Joyce [2003] NSWCCA 84 (08 April 2003) (Dunford J at 1; Simpson J at 2; Hidden J at 3)

We were asked to allow the appeal on this basis, applying the principles in Dietrich v The Queen
(1992) 177 CLR 292
R v Ngo [2003] NSWCCA 82 (03 April 2003)

and Dietrich v R (1992) 177 CLR 292
Easterday v The Queen [2003] WASCA 69 (28 March 2003) (Scott J, Steytler J, Roberts-Smith J)
Easterday v The Queen [2003] WASCA 69 (28 March 2003) (Scott J, Steytler J, Roberts-Smith J)
R v Fisher [2003] NSWCCA 41 (07 March 2003) (Santow JA at 1; Simpson J at 8; Smart AJ at 50)
application for leave to appeal - District Court Judge's refusal to stay proceedings - Dietrich v The
Queen (1992) 177 CLR 292 - R v Mosely
Dietrich v The Queen (1992) 177 CLR 292Jago v The District Court of New South Wales
He referred to a well-known passage in the decision of the High Court in Dietrich v The Queen
(1992) 177 CLR 292 in which Mason J (as he then was) and McHugh J referred to the power to stay
criminal proceedings which would result
Austin v The Commonwealth [2003] HCA 3 (05 February 2003) (Gleeson CJ,Gaudron, McHugh,
Gummow, Kirby and Hayne JJ)
of the common law or ambiguous Australian statutes, a decision-maker may take into account, as
relevant, the consideration that one interpretation will conform to the international law of human
rights and another will not[331]
Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2003] FCAFC 3 (03

February 2003) (Black CJ, Beaumont and Hill JJ)
Dietrich v The Queen (1992) 177 CLR 292 cited

In my opinion, as a majority of Justices held in the Seas and Submerged Lands Case, it did not (see
also, in analogous contexts Dietrich v The Queen (1992) 177 CLR 292

In consequence, the ICCPR does not of itself operate to give rights to or impose duties on members
of the Australian community: see, for example Dietrich v The Queen (1992) 177 CLR 292, at 305-306,
321, 348, 359-360
R v Pearson [2002] NSWCCA 429 (24 December 2002) (Giles JA at 1; Bell J at 2; Smart AJ at 94)
Dietrich (1992) 177 CLR 292 at 337
Dow Jones & Co Inc v Gutnick [2002] HCA 56 (10 December 2002) (Gleeson CJ,Gaudron, McHugh,
Gummow, Kirby, Hayne and Callinan JJ)
the existence of significant economic implications of any change[84]
R v Adams, Murray Herbert [2002] VSCA 208 (28 November 2002) (Phillips, C.J., Phillips and Buchanan,
JJ.A.)
[1], counsel mounted an argument that any
TKWJ v The Queen [2002] HCA 46 (10 October 2002) (Gleeson CJ,Gaudron, McHugh, Gummow and
Hayne JJ)
TKWJ v The Queen [2002] HCA 46 (10 October 2002) (Gleeson CJ,Gaudron, McHugh, Gummow and
Hayne JJ)
R v Osborne [2002] VSCA 156 (03 October 2002) (Phillips, C.J., Chernov and Vincent, JJ.A.)
The basis of the decision in Dietrich was, as Brooking J
Moreover, as has already been mentioned, unlike the situation in Dietrich, the application for an
adjournment here was made after the critical Crown witnesses had been cross-examined by the
applicant’s counsel in relation to
in Dietrich
to the present case where the issues and circumstances were not only materially different from
those that prevailed in Dietrich, but the matters which the jury had to resolve in relation to counts
15 and 19 were relatively simple
”[16] His Honour went on to explain the conclusion in that case “that the trial of an indigent
accused charged with a serious offence who without fault is unable to obtain legal representation
should be adjourned or stayed
at the whole of the relevant material, I am not persuaded that the verdicts are unsafe and
unsatisfactory[39], or that, because the applicant was denied the adjournment, he suffered an
unfair trial in the sense that he
Ahmad v The Queen [2002] WASCA 266 (12 September 2002) (Scott J)
Mullally v The Queen
Mullally v The Queen
The principle established by this court in Dietrich v R (1992) 177 CLR 292 in respect of criminal trials
does not, in its terms, apply to appeals or applications for leave or special leave to appeal to this
court
Yet if Dietrich rests, as I think it does, on a broader, and possibly a constitutional, foundation,
whether generally or at least in cases within federal jurisdiction, improved arrangement for the
presentation of applications by
R v Nguyen [2002] NSWCCA 342 (21 August 2002)

The distinction between a miscarriage and a substantial miscarriage has been maintained (Dietrich
(1992) 177 CLR 292 at 337
NAAV v Minister for Immigration & Multicultural Affairs [2002] FCAFC 228 (15 August 2002) (Black CJ,
Beaumont, Wilcox, French and, von Doussa JJ)
It was contended that the stay was based upon a misunderstanding of High Court authority in
Western Australia v Ward [2002] HCA 28 (08 August 2002) (Gleeson CJ,Gaudron, McHugh, Gummow,
It has repeatedly been held that the separation of the legislative and executive arms of government
necessitates that treaties be implemented domestically under statute[1051]
Regina v Roger William Mitton [2002] NSWCCA 124 (30 July 2002) (Beazley JA at 1; Bell J at 2; Smart AJ
at 52)
Dietrich (1992) 177 CLR 292 at 337
Pasini v United Mexican States [2002] HCA 3 (14 February 2002) (Gleeson CJ,Gaudron, McHugh,
Gummow and Kirby JJ)
It was necessary that it should be available to any federal court that exercised the judicial power of
the Commonwealth or indeed to any Australian court in the integrated hierarchy of courts
envisaged by the Constitution[105]
Cameron v the Queen [2002] HCA 6 (14 February 2002) (Gaudron, McHugh, Gummow, Kirby and
Callinan JJ)
The principle established by this Court in Dietrich v The Queen[101] in respect of criminal trials
Court
Callinan JJ)
Yet if Dietrich rests, as I think it does, on a broader, and possibly a constitutional, foundation
Callinan JJ)
The principle established by this Court in Dietrich v The Queen[101] in respect of criminal trials
Court
R v BKK [2001] NSWCCA 525 (14 December 2001)

In written submissions on behalf of the appellant reference is made to Dietrich v The Queen 1992
177 CLR 292 and it was submitted that “the fundamental prescript of the criminal law of this
country is that no person shall be
R v Togias [2001] NSWCCA 522 (14 December 2001)

Dietrich v The Queen (1992) 177 CLR 292 at 360 per Toohey J
R v Spathis [2001] NSWCCA 476 (29 November 2001) (Heydon JA at 1; Carruthers AJ at 201; Smart AJ at
446)
the interests of the Crown acting on behalf of the community as well as to the interests of the
accused’, per Deane J in Dietrich v The Queen (1992) 177 CLR 292 at 206 quoting Gibbs ACJ and
Mason J in Barton v The Queen
Wong v the Queen [2001] HCA 64 (15 November 2001) (Gleeson CJ,Gaudron, Gummow, Kirby, Hayne
and Callinan JJ)
That this is so, can be seen in many instances where this Court has, in the context of a particular
case, propounded broad principles[214] or condoned judicial guidelines as compatible with law
King v Lankford [2001] WASCA 301 (28 September 2001) (Wheeler J)
Dietrich v R (1992) 177 CLR 292
Hall v Fonceca
King v Lankford [2001] WASCA 301 (28 September 2001) (Wheeler J)

Hall v Fonceca
Smith v Hope [2001] WASCA 287 (17 September 2001) (McLure J)

Duffield v The Queen, unreported; SCt of WA; SCL No 950065; 14 February 1995
Smith v Hope [2001] WASCA 287 (17 September 2001) (McLure J)

Duffield v The Queen, unreported; SCt of WA; SCL No 950065; 14 February 1995
Re Sinanovic's Application [2001] HCA 40 (11 July 2001) (Kirby J)

The rule in Dietrich v The Queen[12], as presently expressed, applies only to the trial of serious
criminal offences
Re Sinanovic's Application [2001] HCA 40 (11 July 2001) (Kirby J)

The rule in Dietrich v The Queen[12], as presently expressed, applies only to the trial of serious
criminal offences
Samin v State of Queensland & Ors [2001] QCA 259 (04 July 2001) (Davies, Thomas and Williams JJA,
Samin v State of Queensland & Ors [2001] QCA 259 (04 July 2001) (Davies, Thomas and Williams JJA,
The appellant submitted that a Dietrich issue was involved[1]
Azzopardi v the Queen [2001] HCA 25 (03 May 2001) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby,
In Dietrich v The Queen[188], Mason CJ and I pointed out that "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
Azzopardi v the Queen [2001] HCA 25 (03 May 2001) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby,
In Dietrich v The Queen[188], Mason CJ and I pointed out that "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
Wong v The Queen [2001] WASCA 32 (16 February 2001) (Kennedy J, Pidgeon J, Murray J)
DPP v Doot
DPP v Doot
This was not the situation referred to in Dietrich v The Queen (1992) 177 CLR 292 where an indigent
accused charged with a serious offence, who is through no fault of his own, unable to obtain legal
representation, is required to
On the other hand, the circumstances of the case are materially different from those in Dietrich
and are closer to those in
was unrepresented, resulting, as it did, substantially from his own rejection of the legal advice and
representation that was provided to him at public expense, does not of itself amount to unfairness:
cf Dietrich (at 335-336
Furtak v Timmers [2001] WASCA 65 (13 February 2001) (Roberts-Smith J)

Haysdale Nominees Pty Ltd v Shepherd
Furtak v Timmers [2001] WASCA 65 (13 February 2001) (Roberts-Smith J)

Haysdale Nominees Pty Ltd v Shepherd
R v Sinanovic [2000] NSWCCA 395 (11 December 2000) (Wood CJ at CL at 1; Hulme J at 2; Greg James J
at 57)
that he was not ready to proceed was calculated, particularly in light of the decision in Deitrich v R
(1992) 177 CLR 292, to raise the question of whether the matter should be adjourned but some of the
other matters to which
R v Sinanovic [2000] NSWCCA 396 (11 December 2000) (Wood CJ at CL at 1; Hulme J at 2; Greg James J
at 105)
8 His Honour adopted as indicating the law to be applied various statements of members of the
High Court in Deitrich v R (1992) 177 CLR 292
Crampton v The Queen [2000] HCA 60 (23 November 2000) (Gleeson CJ,Gaudron, McHugh, Gummow,
The logic of the Court's holding in Dietrich v The Queen[175] has not, so far, been extended to
criminal appeals, assuming that to be possible
Dietrich has no application to non-criminal matters
The logic of the Court's holding in Dietrich v The Queen[175] has not, so far, been extended to
criminal appeals, assuming that to be possible
Fernando v The Queen [2000] WASCA 289 (11 October 2000) (Murray J, Parker J, Heenan J)
King v Lankford [2000] WASCA 214 (18 August 2000) (Wheeler J)

King v Lankford [2000] WASCA 214 (18 August 2000) (Wheeler J)

He was relying, in that respect, upon both the Dietrich v R (1992) 177 CLR 292 ("the Dietrich
principle") and upon the ordinary principles governing applications for adjournments
R v Stringer [2000] NSWCCA 293 (10 August 2000) (Grove J at 1; Adams J at 28; Smart AJ at 120)
Dietrich v The Queen 1992 177 CLR 293House v The King 1936
74 In Dietrich v The Queen (1992) 177 CLR 293, Brennan J said (at 318) - “I do not doubt that the
Courts of this country, and especially this Court as the ultimate court of appeal, acting within their
respective
see also Dietrich, supra, per Mason CJ and McHugh JJ, Brennan J, who said that Art 14(3)(d) of the
International Covenant On Civil and Political Rights “is a legitimate influence on the development
of the common law”, and
CJ and McHugh JJ, Brennan J, who said that Art 14(3)(d) of the International Covenant On Civil and
Political Rights “is a legitimate influence on the development of the common law”, and Toohey J at
177 CLR at 306, 321, 360
Attorney-General (NSW) v X [2000] NSWCA 199 (02 August 2000)

Attorney-General (NSW) v X [2000] NSWCA 199 (02 August 2000)

Dietrich saw the High Court declaring this negative right to be a matter of substance, not mere
form. In Gaudron J's words (at 362):
Conley v Commonwealth Bank of Australia [2000] NSWCA 172 (26 June 2000) (Heydon JA at 1)
An example is Dietrich v R (1992) 177 CLR 292, where special leave was granted to an applicant who
complained of an inability to secure proper representation because of a lack of funds
Eastman v The Queen [2000] HCA 29 (25 May 2000) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby,
These involve the very integrity of the trial (and subsequently of the appellate) process[307]
Eastman v The Queen [2000] HCA 29 (25 May 2000) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby,
or because he or she does not have any legal representation[370]
Regina v Adler [2000] NSWCCA 152 (08 May 2000) (Grove J at 1; Hidden J at 74; Greg James J at 75)
Browne v Dunn 1894 6R 67Dietrich v The Queen 1992 177 CLR 292Doney v The Queen 1990
Regina v Adler [2000] NSWCCA 152 (08 May 2000) (Grove J at 1; Hidden J at 74; Greg James J at 75)
The test was correct and in conformity with Dietrich v The Queen 1992 177 CLR 292
R v Hughes [2000] HCA 22 (03 May 2000) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby, Hayne and
Callinan JJ)
, and particularly the provisions in Ch III[128]
R v O'Connor [2000] NSWCCA 124 (14 April 2000) (Priestley JA at 1; Simpson J at 2; Foster AJ at 19)
Dietrich v R (1992) 177 CLR 292House v R
R v O'Connor [2000] NSWCCA 124 (14 April 2000) (Priestley JA at 1; Simpson J at 2; Foster AJ at 19)
10 The alternative basis for his application for a stay was based on the principles stated by the High
Court in Dietrich v R (1992) 177CLR 292
R v BK [2000] NSWCCA 4 (08 February 2000) (Sully J at 1; Carruthers AJ at 26; Smart AJ at 38)
Dietrich v The Queen (1992) 177 CLR 292Craig v The State of South Australia
were established, initially, by the decision of the High Court of Australia in Dietrich v The Queen
(1992) 177 CLR 292. The following well-known passage, at 177 CLR 315, sets out the basic
considerations:
” 22 The correct application of the Dietrich and
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”: see per Deane J in Dietrich v The Queen,
(1992) 177 CLR 292 at 335
177 CLR 292 at 335 - 336
“The decision of this Court in Dietrich v The Queen established that, in a criminal case where an
unrepresented accused is facing trial for serious offences, a trial judge has power to make an order
staying the proceedings
Lewis v The Queen [2000] WASCA 9 (03 February 2000) (Kennedy J, Wallwork J, Murray J)
DPP v McConnell, unreported; DCt of WA; Library No 4466; 12 June 1995
Lewis v The Queen [2000] WASCA 9 (03 February 2000) (Kennedy J, Wallwork J, Murray J)
DPP v McConnell, unreported; DCt of WA; Library No 4466; 12 June 1995
Regina v Nguyen [1999] NSWCCA 441 (10 December 1999) (Beazley JA at 1; Newman J at 22; Greg James J
at 23)
and the trial will be unfair if an interpreter is not provided: Dietrich (1992) 177 CLR 292 … Equally, it
will be unfair if the interpreter lacks the skill and ability to translate accurately the questions asked
by counsel and
Lipohar v The Queen [1999] HCA 65 (09 December 1999) (Gleeson CJ,Gaudron, Gummow, Kirby, Hayne
and Callinan JJ)
, the absence of a right of accused persons to the provision of counsel at public expense[50] and
native title
Roberts v The Queen [1999] WASCA 273 (02 December 1999) (Ipp J, Wallwork J, White J)
Fazari v R, unreported; CCA SCt of WA; Library No 960651; 14 November 1996
Fazari v R, unreported; CCA SCt of WA; Library No 960651; 14 November 1996
"28 It is to be noted that during the 15-month period to which counsel referred Arthur and Andrew
made a number of applications to stay the prosecution on the basis of the principles in Dietrich v
The Queen (1992) 177 CLR 292
The learned Judge followed this comment with the question, "Why go to the length of seeking a
Dietrich hearing if you know you are guilty?" His Honour then
The several attempts by Arthur to stave off the prosecution by resorting to Dietrich applications to
enable him to defend the case against him are not consistent with sincere contrition
A major cause of the delay was Arthur's inability to finance his legal representation and the
Dietrich applications that he made
R v Phung [1999] VSCA 195 (01 December 1999) (Brooking, Charles and Buchanan, JJ.A.)
((1992) 177 C.L.R. 292) both Deane, J. at 326 and Gaudron, J
See Dietrich v. R. (1992) 177 C.L.R. 292 at 302 per Mason, C
a stay or adjournment the subject matter of Dietrich v. R. being grounded in a constitutional
principle rather than in common law. Although Deane, J. (at 326) and Gaudron, J.(at 362) said that
the principle that no person
in Dietrich v. R. at 335 said:
Azaddin v The Queen [1999] WASCA 265 (23 November 1999) (Kennedy J, Pidgeon J, Murray J)
Gavin v The Queen
Gavin v The Queen
As Mason CJ and McHugh J indicated in Dietrich v The Queen (1992) 177 CLR 292, at 304 - 307, this
Covenant does not form part of the domestic law of Australia and it will not do so "unless and until
specific legislation is passed
R v NRC [1999] VSCA 184 (19 November 1999) (Winneke, P., Charles and Chernov, JJ.A.)
In Dietrich, Gaudron, J. at 363 said that evidence might be excluded –
R v NRC [1999] VSCA 184 (19 November 1999) (Winneke, P., Charles and Chernov, JJ.A.)
Dietrich v. The Queen (1992) 177 C.L.R. 292, at 299, 326, 353 and 362
Crutch v The Queen [1999] WASCA 187 (30 September 1999) (Ipp J, Wallwork J, Parker J)
Dietrich v The Queen (1992) 177 CLR 299Johns v R, unreported
: In personRespondent : Mr K M TavenerSolicitors: Applicant : In personRespondent : State
Director of Public ProsecutionsCase(s) referred to in judgment(s): Dietrich v The Queen (1992) 177
CLR 299Johns v R, unreported
10 The applicant also seeks to raise that he has been refused legal aid to conduct his appeal and he
asked that this Court assign him counsel, relying on the decision of the High Court in Dietrich v
The Queen (1992) 177 CLR 299
Insofar as the applicant seeks to rely on the decision in Dietrich v The Queen (supra), the principle
enunciated in that case does not extend to legal representation for appeals or for applications for
leave to appeal
Haydon v Chivell [1999] HCA 39 (20 August 1999) (Gaudron J)

to a fair trial may require a trial judge to take steps in addition to those ordinarily required by law,
including to stay proceedings, if those steps are necessary to prevent the perceptible risk of a
miscarriage of justice[4]
Regina v Cox [1999] NSWCCA 229 (10 August 1999) (Sperling J at 2; Levine J at 15; McInerney AJ at 16)
, Carter (CCA (NSW), 5 September 1995, unreported), Dietrich (1992-93) 177 CLR 292, Matovski
Regina v Cox [1999] NSWCCA 229 (10 August 1999) (Sperling J at 2; Levine J at 15; McInerney AJ at 16)
of Ainslie-Wallace DCJ refusing to grant a permanent stay of proceedings pursuant to the decision
in Dietrich (1992-93) 177 CLR 292 or, alternatively, an adjournment of the proceedings for longer
than was in fact granted
R v Pritchard [1999] NSWCCA 182 (14 July 1999) (Grove J at 1; Abadee J at 24; Barr J at 68)
44 It was said that s 55(2) reflected a principle contained in Article 15 of the International Covenant
on Civil and Political Rights. Mr Byrne correctly accepted that Article 15 forms no part of the
domestic or municipal law of Australia: Dietrich (1992) 177 CLR 292 referred to by Hunt CJ at CL in
Kalajzich (1997) 94 A Crim R 41 at 48 ; Minister for Immigration v Teoh (1995) 183 CLR 273 ; Civil
Aviation Authority v ABC (1995) 39 NSWLR 540 at 558 . 45 It was however submitted that s 30 of the
Interpretation Act had no relevant application, nor was this provision to be considered in this case.
Section 30 provides, relevantly:
R v Young [1999] NSWCCA 166 (07 July 1999) (Spigelman CJ at 1; Beazley JA at 124; Abadee J at 217; James
J at 232; Barr J at 217)
It has not been demonstrated that the privilege has attained the requisite level of community
acceptance. Wilkinson v Osborne (1915) 21 CLR 89; In Re Jacob Morris (1943) 43 SR(NSW) 352; Dietrich v
R (1992) 177 CLR 292 ; Breen v Williams (1995-96) 186 CLR 71.
R v Young [1999] NSWCCA 166 (07 July 1999) (Spigelman CJ at 1; Beazley JA at 124; Abadee J at 217; James
J at 232; Barr J at 217)
99 In Dietrich v R (1992) 177 CLR 292 , Brennan J said:
AMS v AIF [1999] HCA 26 (17 June 1999) (Gleeson CJ,Gaudron, McHugh, Gummow, Kirby, Hayne and
Callinan JJ)
also affected the rights of other members of the child's family, it was permissible to have recourse
to applicable principles of international law for the purpose of determining how the statutory
powers should be exercised[200]
Re East; Ex parte Nguyen [1998] HCA 73 (03 December 1998) (Gleeson CJ,Gaudron, McHugh, Gummow,
or of constitutional due process applicable to the proceedings affecting him[53]
Re East; Ex parte Nguyen [1998] HCA 73 (03 December 1998) (Gleeson CJ,Gaudron, McHugh, Gummow,
and in the development of the common law[69]
Victoria Legal Aid v Beljajev [1998] VSCA 56 (05 October 1998) (Winneke P, Callaway JA and Vincent
AJA)
(1992) 177 C.L.R. 292 considered
AJA)
(1992) 177 C.L.R. 292
AJA)
in Dietrich’s case where their Honours said ((1992) 177 C.L.R. 292 at 315):
AJA)
(1992) 177 C.L.R. 292, with a statutory scheme
Re JJT; Ex Parte Victoria Legal Aid [1998] HCA 44 (25 June 1998) (Gaudron, Gummow, Kirby, Hayne and
Callinan JJ)
was preserved by the Parliament out of recognition of the need to respect the control of the
executive government over the expenditure of legal aid funds raised, for the most part, from
taxation levied on the people[96]
Sinanovic v The Queen [1998] HCA 40 (11 June 1998) (Kirby J)

to legal counsel at public expense - Prisoner claims severe difficulties of communication - Whether
proceedings should have been adjourned - Applicability to appeals against conviction of Dietrich v
The Queen (1992) 177 CLR 292

Dietrich and appeals

In Dietrich v The Queen[2] this Court held that the right to a fair trial which exists in Australian
courts may authorise or require a judge to stay the trial of an indigent accused on serious criminal
charges who, through no

One day the significance of Dietrich for appeals against conviction may need to be considered by
this Court

Accordingly, this would not be the case in which to consider the ambit of the Dietrich principle as
it may be thought to apply to appeals

In Dietrich v The Queen[2] this Court held that the right to a fair trial which exists in Australian
courts may authorise or require a judge to stay the trial of an indigent accused on serious criminal
charges who, through no

It might be argued that it is a matter for the legislatures of Australia and not for the courts[3]
Kartinyeri v The Commonwealth [1998] HCA 22 (01 April 1998) (Brennan CJ,Gaudron, McHugh,
Gummow, Kirby and Hayne JJ)
Where there is ambiguity in the common law or a statute, it is legitimate to have regard to
international law[304]
Pyrenees Shire Council v Day [1998] HCA 3 (23 January 1998) (Brennan CJ,Toohey, McHugh, Gummow
and Kirby JJ)
of resource allocation and diversion, and budgetary imperatives should fall for consideration along
with other factual matters to be "balanced out"[210] when determining what should have been done
to discharge a duty of care
R v Wilson [1997] QCA 423 (28 November 1997) (Pincus JA. Davies JA. Lee J.)
(1992) 177 C.L.R. 292
R v Yanner [1997] QCA 416 (21 November 1997)

In Dietrich (1992) 177 C.L.R. 292, the issue raised was whether the trial judge should have proceeded
with the trial or put it off on the ground that Dietrich was not legally represented
Frugtniet v Victoria [1997] HCA 44 (17 September 1997) (Kirby J)

(1992) 177 CLR 292

without legal representation and in those circumstances stay the further proceedings until such
time as legal representation is available based on the principles as set out by this Court in Dietrich
v The Queen (1992) 177 CLR 292
However, it signals the contention of the plaintiff that, without competent legal representation in
her pending criminal trial, she will be denied her right to have a fair trial in conformity with the
holding in Dietrich

was apparently a response by the Parliament of Victoria to the decision of this Court in Dietrich

(1) The suggestion in Dietrich that all persons in Australia facing serious criminal charges on
indictment have a right to a fair trial enforceable by orders of trial judges to stay or adjourn
proceedings where a person is

In particular, the plaintiff relied on the remarks of Deane J and Gaudron J in Dietrich that a
constitutional foundation exists for that principle

(1) The holding of this Court in Dietrich does not, at least as I now understand it, appear to be
grounded in a constitutional principle

Dietrich v The Queen (1992) 177 CLR 292 at 326 per Deane J, 362 per Gaudron J

Boas, "Dietrich, the High Court and Unfair Trials Legislation: A Constitutional Guarantee?" (1993)
19 Monash University Law Review 256
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39 (14 August 1997) (Brennan CJ, Dawson, Toohey,
Gaudron, McHugh, Gummow and Kirby JJ)
cf Dietrich v The Queen (1992) 177 CLR 292 at 320 per Brennan J (dissenting) citing Lord Devlin, The
Judge (1979) at 12
R v Wilson [1997] QCA 244 (12 August 1997)

[84] (1992) 177 C.L.R. 292
R v Smith [1997] QCA 109 (09 May 1997) (Davies JA. Ambrose J. White J.)
To the extent that Dietrich v R (1992) 177 CLR 292 extends the traditional grounds upon which a
stay may be ordered to ensure that for reasons of fairness an unrepresented accused person
charged with a serious offence is not
R v Davidson [1996] QCA 531 -

R v Pettigrew [1996] QCA 235 (19 July 1996)
The Queen (1992) 177 C.L.R. 292
R v Johannsen and Chambers [1996] QCA 111 (30 April 1996)
to them (cf. Dietrich v. R. (1992) 177 C.L.R. 292 ; Yuill (1993) 69 A.Crim.R. 450, 452-3, O’Neill
R v Gudgeon [1995] QCA 506 (17 November 1995)
An assumption implicit in the appellant's affidavit dated 14 June 1994 in support of the application
seems to have been that the appellant was entitled to insist on being represented by a particular
senior counsel; or at least on being represented by senior counsel and perhaps also one who was a
member of the Sydney Bar. There is nothing in Dietrich to support such a conclusion. Indeed, in
rejecting the proposition that an accused has an absolute right to the provision of counsel at public
expense, Mason C.J. and McHugh J. said ( 177 C.L.R. 292, 310 ) that recognition of such a right would
create problems of its own. Their Honours expressed the matter as follows:
In refusing the application to adjourn the trial, the judge observed that the trial date was over two
weeks away, which he said was ample time to engage another counsel in place of Mr Cusack Q.C.,
and to prepare for the trial. He also noted that junior counsel Mr Gallagher had been retained.
There was nothing in the material before his Honour on that occasion to suggest that Mr Gallagher
had ceased to be available, or that, although only a junior counsel, he was not competent to
conduct the defence on behalf of the appellant at the trial. The case therefore appears to fall within
one of the exceptions, described by Deane J. in his reasons for judgment in Dietrich as "the most
obvious category of case", in which the accused "... persistently neglects or refuses to take advantage
of legal representation that is available" ( 177 C.L.R. 292, 236 ). It may be that the appellant's attitude
in the present case cannot be characterised as "persistent neglect or refusal"; but, in the absence of
an explanation why Mr Gallagher could not have conducted the defence, it is not possible to see
why it should not be treated as having the same consequence.
Miscarriage of justice . In the end, however, the question is not whether the appellant was denied an
adjournment that ought to have been granted, but whether, as a consequence, there was a
miscarriage of justice. For the Court on this appeal, the question, according to what was said by
Mason C.J. and McHugh J., in Dietrich ( 177 C.L.R. 292, 312-313 ), is:
The circumstances at the trial of the appellant differed in several respects from those that prevailed
at trial in Dietrich . There is no doubt that in both the accused was facing a serious charge. The
punishment which the appellant attracted in this case is a sufficient indication of that. However,
his personal circumstances and his conduct of the trial differed very widely from those of the
accused in Dietrich . The latter was described as having been "emotionally and psychologically
overwhelmed" by the prospect of proceeding to trial unrepresented ( 177 C.L.R. 292, 314 ). There was
evidence from a psychologist that he was an "excitable, volatile person". He gave way to "irregular
outbursts of volatile behaviour" in the course of the trial, and his defence was "so disorganised and
haphazard as to lack cogency" (at 315). A central factor in their Honours' conclusion that the
accused in that case had been deprived of a real chance of acquittal was that he had been found not
guilty of possession of some heroin which was not alleged to have been imported (at 314).
The circumstances at the trial of the appellant differed in several respects from those that prevailed
at trial in Dietrich . There is no doubt that in both the accused was facing a serious charge. The
punishment which the appellant attracted in this case is a sufficient indication of that. However,
his personal circumstances and his conduct of the trial differed very widely from those of the
accused in Dietrich . The latter was described as having been "emotionally and psychologically
overwhelmed" by the prospect of proceeding to trial unrepresented ( 177 C.L.R. 292, 314 ). There was
evidence from a psychologist that he was an "excitable, volatile person". He gave way to "irregular
outbursts of volatile behaviour" in the course of the trial, and his defence was "so disorganised and
haphazard as to lack cogency" (at 315). A central factor in their Honours' conclusion that the
accused in that case had been deprived of a real chance of acquittal was that he had been found not
guilty of possession of some heroin which was not alleged to have been imported (at 314).

(1992) 177 C.L.R. 292 and subsequently discussed in N
Unlike the accused in Dietrich, the appellant was neither excitable nor volatile

See Dietrich v. The Queen (1992) 177 C.L.R. 292, 311 (Mason C

said (177 C.L.R. 292, 310) that recognition of such a right would create problems of its own

persistently neglects or refuses to take advantage of legal representation that is available" (177 C.L.R.
292, 236)

(177 C.L.R. 292, 312-313), is:

also Dietrich, at 325 (Brennan J.); at 337-338 (Deane J.); at 343 (Dawson J

The latter was described as having been "emotionally and psychologically overwhelmed" by the
prospect of proceeding to trial unrepresented (177 C.L.R. 292, 314)
Craig v South Australia [1995] HCA 58 (24 October 1995) (Brennan, Deane, Toohey, Gaudron and
McHugh JJ)
1 (1992) 177 CLR 292
McHugh JJ)
36 (1992) 177 CLR 292
McHugh JJ)
2 See (1992) 177 CLR 292 at 315
McHugh JJ)
37 (1992) 177 CLR 292 at 315
R v Craggs [1995] QCA 405 (01 September 1995) (McPherson JA. Moynihan J. Fryberg J.)
Dietrich v. The Queen (1992) 177 C.L.R. 292, 335
Reid v Howard [1995] HCA 40 (16 August 1995) (Deane(1), Toohey(2), Gaudron(2), McHugh(2) and
Gummow(2) JJ)
R v O'Neill [1995] QCA 331 (04 August 1995)

(1992) 177 C.L.R. 292, Mason C.J. and McHugh J. accepted at p. 299 that "[t]he right of an accused to
receive a fair trial according to law is a fundamental element of our criminal justice system", but
said at pp. 310-311:
Carter v Managing Partner, Northmore Hale Davy and Leake [1995] HCA 33 (14 June 1995) (Brennan(1),
Deane(2), Toohey(3), Gaudron(4) and McHugh(5) JJ)
The Queen (1992) 177 CLR 292 at 298
R v Gipters [1995] QCA 201 (30 May 1995) (Pincus JA. Davies JA. McPherson JA.)
One may be perhaps pardoned for noticing that, at a time when Legal Aid funds are alleged to be
short, a considerable amount of public money has been spent on a week-long trial, despite the
strength of the Crown case and the absence of any explanation whatever of incriminating
circumstances which called out for an explanation from the appellant; perhaps this expenditure
was thought to be dictated by Dietrich (1992) 177 C.L.R. 292 .
Ridgeway v the Queen [1995] HCA 66 (19 April 1995) (Mason CJ, Brennan, Deane, Dawson, Toohey,
The Queen (1992) 177 CLR 292 at 311, 332
The Queen (1992) 177 CLR 292 at 328-329, 364
The Queen (1992) 177 CLR at 299-300, 326-329, 353, 362-365 and the cases and authors there cited
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 (07 April 1995) (Mason CJ, Deane,
Toohey, Gaudron and McHugh JJ)
The Queen (1992) 177 CLR 292 at 305
The Queen (1992) 177 CLR at 321 per Brennan J, 360 per Toohey J
The Queen (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J, 359-360 per Toohey J
Dietrich (1992) 177 CLR at 321, 360
The Queen (1992) 177 CLR 292 at 305-306, 321, 348-349, 359-360
Chivers v Breinl [1994] QCA 432 (27 October 1994) (Fitzgerald P. Davies JA. Pincus JA.)
(1992) 177 C.L.R. 292
Chivers v Breinl [1994] QCA 432 (27 October 1994) (Fitzgerald P. Davies JA. Pincus JA.)
New South Wales v Canellis [1994] HCA 51 (26 October 1994) (Mason CJ, Brennan, Dawson, Toohey, and
McHugh JJ)
The Queen (1992) 177 CLR 292 at 311
New South Wales v Canellis [1994] HCA 51 (26 October 1994) (Mason CJ, Brennan, Dawson, Toohey, and
McHugh JJ)
(1992) 177 CLR 292). In that case, a majority of the Court held that a person charged with a criminal
offence has a right to a "fair trial" and that the trial of an unrepresented and indigent person
charged with a serious...
Chivers v Breinl [1994] QCA 469 (15 September 1994) (Fitzgerald P. Davies JA. Mackenzie J.)
177 C.L.R. 292
Chivers v Breinl [1994] QCA 469 (15 September 1994) (Fitzgerald P. Davies JA. Mackenzie J.)
R v Chappell [1994] QCA 295 (16 August 1994) (Pincus JA. Davies JA. Williams J.)
The Queen (1992) 177 C.L.R. 292
Webb v the Queen [1994] HCA 30 (30 June 1994) (Mason CJ, Brennan, Deane, Toohey and McHugh JJ)
The Queen (1992) 177 CLR 292 at 323
R v Bellino [1993] QCA 390 (12 October 1993) (Pincus JA. Davies JA. Thomas J.)
He relied upon a decision of the High Court in Dietrich (1992) 67 A.L.J.R. 1
R v Carr [1993] QCA 314 (27 August 1993) (Davies JA. Ambrose J. White J.)
He relied on observations in Dietrich v The Queen (1992) 67 A.L.J.R. 1

Dietrich V The Queen - (1992) HCA 57

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Dietrich v the Queen - [1992] HCA 57

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HIGH COURT OF AUSTRALIA

DIETRICH v. THE QUEEN

Criminal Law—Trial—Fair Trial—Legal Representation—Whether right to counsel at public expense—Power

KRIJNEN v Conti (06 June 2003) (Barker J)

Following paragraph cited by:

Marwan v Director of Public Prosecutions (18 July 2019) (Leeming JA at [1]; R A

R v Lodhi (04 April 2006)

Beamish v The Queen (01 April 2005) (Steytler J, Wheeler J, McLure J)

Easterday v The Queen (28 March 2003) (Scott J, Steytler J, Roberts-Smith J)

Attorney-General (NSW) v X (02 August 2000)

Crutch v The Queen (30 September 1999) (Ipp J, Wallwork J, Parker J)

Crutch v The Queen (30 September 1999) (Ipp J, Wallwork J, Parker J)

R v O'Neill (04 August 1995)

Following paragraph cited by:

R v Forbes (04 November 2005) (Spigelman CJ at 1; McClellan CJ at CL at 149; Hall J at 150)

Following paragraph cited by:

Following paragraph cited by:

R v Hoang (07 June 2007) (Maxwell P, Eames and Neave JJA)

R v Phung (01 December 1999) (Brooking, Charles and Buchanan, JJ.A.)

Mason J. stated ((24) ibid., at p 581):

Following paragraph cited by:

Ribot-Cabrera v The Queen (18 May 2004) (Steytler J, EM Heenan J, LE Miere J)

Western Australia v Ward (08 August 2002) (Gleeson CJ,Gaudron, McHugh,

Following paragraph cited by:

Following paragraph cited by:

R v Gudgeon (17 November 1995)

Following paragraph cited by:

Croke v R (10 February 2020) (Adamson J; Beech-Jones J; Ierace J)

Achanfuo-Yeboah v The Queen (23 December 2016) (Refshauge ACJ)

Gajic v Harb (06 May 2011) (Tate JA and Macaulay AJA)

R v Hoang (07 June 2007) (Maxwell P, Eames and Neave JJA)

R v Hoang (07 June 2007) (Maxwell P, Eames and Neave JJA)

R v White (13 November 2003) (Charles, Chernov and Eames, JJ.A.)

R v Gudgeon (17 November 1995)

Following paragraph cited by:

Following paragraph cited by:

ACCUSED: Desire by whose side? HIS HONOUR: Desirable to the community.

Following paragraph cited by:

Croke v R (10 February 2020) (Adamson J; Beech-Jones J; Ierace J)

R v Hoang (07 June 2007) (Maxwell P, Eames and Neave JJA)

Following paragraph cited by:

Following paragraph cited by:

R v Stringer (10 August 2000) (Grove J at 1; Adams J at 28; Smart AJ at 120)

R v Davidson (20 December 1996) (Macrossan CJ. Fitzgerald P. Pincus JA.)

Following paragraph cited by:

Following paragraph cited by:

Donnachy v Riegert (18 March 2004) (Roberts-Smith J)

Lodhi v R (20 December 2007) (Spigelman CJ at 1; Barr J at 112; Price J at 215)

R v Phung (01 December 1999) (Brooking, Charles and Buchanan, JJ.A.)

R v Phung (01 December 1999) (Brooking, Charles and Buchanan, JJ.A.)

Haydon v Chivell (20 August 1999) (Gaudron J)

"the filing of an ex officio indictment by the Attorney-General is not subject to judicial

Murphy J. said ((97) ibid., at p 107 (emphasis added)):

Following paragraph cited by:

Following paragraph cited by:

Russell v Eaton (25 September 2020) (Kyrou JA)

R v Lodhi (04 April 2006)

Following paragraph cited by:

R v Crothers (30 November 2010) (Margaret McMurdo P, Chesterman JA and Douglas J,

De La Espriella-Velasco v The Queen (10 March 2006) (Roberts-Smith JA)