Dietrich v The Queen

Dietrich v The Queen[1] is an important legal case decided in the High Court of Australia on 13 November 1992, stemming from an incident that took place on 17 December 1986. It concerned the nature of the right to a fair trial and under what circumstances indigent defendants (who cannot afford legal representation) should be provided with legal aid by the state. The case determined that although there is no absolute right to have publicly funded counsel, a judge should grant any request for an adjournment or stay in most circumstances in which an accused is unrepresented. It is an important case in Australian criminal law and in Australian constitutional law since it is one of many cases in which some members of the High Court have found implied human rights in the Australian Constitution.

Dietrich v The Queen
CourtHigh Court of Australia
Full case nameDietrich v The Queen
Decided13 November 1992
Citation(s)[1992] HCA 57, 177 CLR 292
Case history
Prior action(s)R v Dietrich Supreme Court of Victoria (Court of Criminal Appeal), (unreported O'Bryan, Gray and Vincent JJ) 1988
Subsequent action(s)none
Case opinions
(5:2) where an accused charged with a serious offence is (through no fault of their own) unable to obtain legal representation, any application for an adjournment or stay should be granted (unless there are exceptional circumstances) and the trial delayed until legal representation is available (per Mason CJ, Deane, Toohey, Gaudron & McHugh JJ) (5:2) if in such circumstances an application for an adjournment or stay is refused, and as a result the trial is an unfair one, the conviction must be overturned (per Mason CJ, Deane, Toohey, Gaudron & McHugh JJ)
Court membership
Judge(s) sittingMason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ

Background

On 17 December 1986, the accused, the career criminal Olaf Dietrich (born 1952), flew from Bangkok, Thailand, to Melbourne Airport. He had imported at least 70 g of heroin, which he concealed within condoms that he had swallowed.[1] He was arrested the next morning by the Australian Federal Police, who searched his flat and found one of the condoms in the kitchen/and some heroin in a plastic bag under a rug in another room.[1] He was taken into custody/and excreted the remaining condoms during the night at the hospital in Pentridge Prison.

Dietrich alleged that the drugs had been planted by the police.[1]

Dietrich was tried in the County Court of Victoria in 1988 for a trafficking offence under the Customs Act 1901 and certain less serious charges.[1] During the lengthy trial, the accused had no legal representation.[2] Although he had applied to the Legal Aid Commission of Victoria for assistance, it said that it would help him only if he pleaded guilty, an option that Dietrich did not want to take. He applied to the Supreme Court of Victoria for legal assistance but was again turned down.[1] Although Dietrich was acquitted of the fourth charge, the possession of a quantity of heroin separate to what was involved in the first three charges, he was convicted of the principal charge in the County Court.[3][4] Dietrich brought an appeal in the Supreme Court, which refused to hear his appeal. He then sought leave to appeal to the High Court of Australia.[4]

Arguments

In his High Court appeal, Dietrich was represented by David Grace, QC.[5] The main argument advanced on Dietrich's behalf was that his trial was a miscarriage of justice since he did not have legal representation. He argued that he should have been provided with counsel at public expense because of the seriousness of the crime with which he was charged. Alternatively, he argued that the judge should have stayed or adjourned the trial until he was able to obtain counsel himself.[6] His argument was based on the common law tradition that an accused is entitled to a fair trial.[1]

Mugshot of Hugo Rich, formerly known as Olaf Dietrich, on his arrest on 12 May 2005

The right to a fair trial

Dietrich suggested three different sources in law for the right to counsel that he asserted.[1] The first was section 397 of the Victorian Crimes Act 1958 (now repealed), which provided that "every accused person shall be admitted after the close of the case for the prosecution to make full answer and defence thereto by legal practitioner".[7] However, the court found that the provision means only that an accused is entitled to counsel paid for by that person or someone else, not counsel provided by the state.[1]

The second source that Dietrich proposed was Australia's obligations under international law, particularly under the United Nations International Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory.[1] Article 14(3) of the Covenant provides that an accused should have legal assistance provided "in any case where the interests of justice so require".[8] Article 6 of the European Convention of Human Rights to which Australia is not a party also guarantees that defendants to be provided with legal aid "when the interests of justice so require".[1][9]

Australia has not incorporated the ICCPR into its domestic law with any specific legislation, unlike some other international treaties, such as World Heritage treaties (see Commonwealth v Tasmania). However, Dietrich argued that the common law of Australia should be developed in accordance with the principles in the ICCPR, as well as other international treaties to which Australia is a party. That is the approach used in the United Kingdom, in relation to decisions of the European Court of Human Rights, for example. However, the court pointed out that the practice was usually done in relation to interpreting legislation, and in this case, the court was being asked "to declare that a right which has hitherto never been recognised should now be taken to exist."[1]

The third source that Dietrich suggested was a group of similar cases in other common law countries such as the United States and Canada.[1] In the United States, the right to counsel was guaranteed in the Sixth Amendment to the United States Constitution, part of the United States Bill of Rights. The Amendment says that "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence".[10] However, that did not necessarily mean that counsel had to be provided by the state.

In the case of Powell v. Alabama in 1932, the US Supreme Court held that the court must provide counsel to defendants in capital trials, with capital punishment being a possible sentence, if the defendants were too poor to afford their own counsel. In Johnson v. Zerbst (1938), the Supreme Court expanded that principle to cover all federal trials, and in Gideon v. Wainwright (1963) the Court held that under the Fourteenth Amendment, the principle also applied to state courts. More recently, the Supreme Court has recognised the right of people to have counsel at other stages of criminal investigations. For example, the court has affirmed the right of indigent defendants to have counsel provided for them in interrogation after they have been arrested (Miranda v. Arizona), and for line-ups (United States v. Wade).[11]

In Canada, Section Ten of the Canadian Charter of Rights and Freedoms guarantees the right "to retain and instruct counsel without delay and to be informed of that right",[12] and Canadian case law has found that as a corollary of that right, there is a right to legal aid.

Although it is common for Australian courts to acknowledge developments in other common law countries, including the United States and Canada, the law in those countries on the right to counsel is based on particular provisions of the Constitutions or Bills of Rights of those countries. Australia had no such provisions of rights in either the Constitution or in legislation.[1] In taking that into account, it was argued by the court:

"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."[1]

The High Court also examined a number of related propositions. In particular, it pointed out that when interpreting the legislation which established legal aid services, Australian courts did not recognise an absolute right to counsel in all circumstances and so the state does not need to provide counsel for the duration of the trial. The court also raised the question of what a right to counsel would actually mean in practice: would a right to counsel at public expense entitle a person to counsel of a certain degree of experience? Furthermore, the court suggested that having a right to representation would necessarily imply that a trial conducted without the accused being legally represented would necessarily be unfair, which has been rejected by the Australian courts. The accused must have lost a "real chance of acquittal" before a trial can be regarded as unfair. Essentially, Australian common law recognised a right to a fair trial, but the question of whether the lack of representation caused an unfair trial had to be based on the particular circumstances of each case.[1]

Miscarriage of justice

Dietrich's other argument was that the trial judge should have used discretionary powers and granted an adjournment until Dietrich was able to provide counsel himself and that the failure to do so caused a miscarriage of justice. Dietrich had asked the trial judge for an adjournment during the trial, but the judge said that since more than a year had passed since the offence occurred, it was in the interests of the community for the matter to be dealt with promptly.[4]

The High Court said that the trial judge did not seem to be aware that he had the authority to adjourn the trial.[13] Another factor that complicated the case was that although the jury found Dietrich guilty of importing the heroin in the condoms, it found him not guilty of owning the heroin which had been hidden in a plastic bag. For the High Court, that uncertainty meant that it was possible that Dietrich could also have been acquitted of the other charges if he had been legally represented:

"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?"[1]

Significantly, the possibility that Dietrich may have been acquitted differentiates the case from the unsuccessful 1979 McInnis v R. appeal. McInnis, like Dietrich, had appealed to the High Court against his conviction by arguing that the failure to adjourn the proceedings while McInnis sought legal representation resulted in a miscarriage of justice. However, the majority in the McInnis appeal found that McInnis was very unlikely to have been acquitted, even with full representation. That was clearly not the case with Dietrich.[14]

Judgment

The majority in the High Court decided that although there was no right at common law to have publicly provided legal representation in all cases, some cases make representation appropriate to ensure a fair trial.[15] Although judges no longer have the power to appoint counsel for an accused since that function has been largely taken over by legal aid agencies, a trial judge should use the power to adjourn a case if it is in the interests of fairness that an accused have representation, which would encourage the legal aid agencies to provide counsel.[1][16]

Two of the judges, Deane and Gaudron JJ, went further and suggested that the right to representation in some circumstances is founded in the Constitution. They claimed that Chapter III of the Constitution, which represents the Judicature with the notion of separation of powers and vests judicial power exclusively in the courts, requires judicial process and fairness to be observed.[17] Another two judges, Brennan and Dawson JJ, dissented,[18] Brennan J argued that it would not be proper for judges to use their power to adjourn trials to put pressure on the various legal aid agencies to change their decisions.[19]

As a result of the majority decision, the court ordered the application to appeal to be granted, the conviction be quashed and Dietrich to be granted a new trial.[1]

Consequences

The case reinvigorated debate about who should be provided with legal aid and raised the possibility that those charged with serious offences could escape conviction if legal aid was not provided.[20] That placed pressure on the legal aid authorities to fund those cases and fears emerged that they would need to pull funds from other cases to meet the new demands, especially when faced with "complex criminal cases" that may entail high costs over extended periods of time.[21] Although there are no precise figures about the effect of the decision on legal aid budgets, a Senate inquiry agreed that the decision had the potential to divert legal aid funding towards criminal cases, at the expense of civil or family law matters.[22] Among the solutions to those problems were proposals for the state legal aid commissions to maintain "emergency funds" that could be used in major criminal cases;[21] the South Australian Criminal Law (Legal Representation) Act 2002, which was designed to allow the courts to seize a defendant's assets to prevent false claims under the Dietrich principle;[23] and the introduction of legislation in the Parliament of Victoria amending the Crimes Act 1958 to allow judges to directly order for legal aid funding to be granted, rather than simply ordering a stay.[22]

Olaf Dietrich

Although the High Court ordered for the verdict of the conviction to be overturned and for a retrial to be conducted, there was never any retrial since Dietrich had already served his sentence.[24] Dietrich was released on parole in July 1990, and he subsequently changed his name by deed poll to Hugo Rich.[24]

In 1995, he was convicted of three armed robberies and jailed for 13 years. Upon appeal, two of those convictions were quashed and retrials were ordered, and a third was upheld. Only one of these counts was retried, and once again, a guilty verdict was returned.[25] In 2001, he was eligible for day leave, and he gained media attention by leaving the decision as to whether or not he should be allowed to do so up to the readers of the Herald Sun. A poll conducted by that newspaper returned a convincing "no".[26]

After his release in October 2004, he once again faced court for firearms charges and then for the murder of security guard Erwin Kastenberger during an armed robbery in Blackburn North on 8 March 2005.[24] He was found guilty of the murder of Kastenberger in the Supreme Court of Victoria on 12 June 2009,[27][28] and he was subsequently jailed for life with a non-parole period of 30 years.[29] In 2014 the Court of Appeal dismissed his appeal.[30]

See also

Notes
  1. Dietrich v The Queen [1992] HCA 57, 177 CLR 292
  2. Kinley 1998, p. 329
  3. Dietrich v The Queen [1992] HCA 57, 177 CLR 292 per Gaudron J at [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 ... they were alternative to the first".
  4. Fairall 1992, pp. 235–236
  5. Grace 2001
  6. Fairall 1992, p. 236
  7. "Crimes Act 1958 – Sect 397". Australasian Legal Information Institute. Archived from the original on 11 April 2008. Retrieved 8 December 2005.
  8. "International Covenant on Civil and Political Rights". Office of the High Commissioner for Human Rights. Archived from the original on 3 April 2008. Retrieved 5 December 2005.
  9. "Convention for the Protection of Human Rights and Fundamental Freedoms". Council of Europe. Retrieved 5 December 2005.
  10. "CRS/LII Annotated Constitution Sixth Amendment". Legal Information Institute. Retrieved 8 December 2005.
  11. "History of Right to Counsel". National Legal Aid and Defender Association. Retrieved 5 December 2005.
  12. "Constitution Act, 1982". Department of Justice, Canada. Archived from the original on 4 December 2005. Retrieved 8 December 2005.
  13. Dietrich v The Queen [1992] HCA 57, 177 CLR 292 per Mason CJ & McHugh J at [38] "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".
  14. Doyle and Wells 1999, p. 35
  15. Fairall 1992, pp. 240–241
  16. Fairall 1992, pp. 236–237
  17. Zines 2008, p. 275
  18. Fairall 1992, p. 237
  19. Doyle and Wells 1999, p. 36
  20. Gibson 2003
  21. Fife-Yeomans & 12 November 1998
  22. "Implications of the Dietrich decision". Australian Senate Inquiry into the Australian Legal Aid System. Archived from the original on 10 February 2006. Retrieved 8 December 2005.
  23. Kemp & 16 September 1998
  24. Silvester & 10 June 2005
  25. Anderson and Buttler & 16 August 2001
  26. Anderson and Buttler & 17 August 2001
  27. Wilkinson & 6 March 2009
  28. Butcher & 12 June 2009
  29. Hunt & 13 November 2009
  30. Rich v The Queen [2014] VSCA 126.

References

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