Dietrich v The Queen

Dietrich v The Queen
Court	High Court of Australia
Full case name	Dietrich v The Queen
Decided	13 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) sitting	Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ

Dietrich v The Queen (Dietrich)^[1] was a 1992 decision of the High Court of Australia, which established a de facto constitutional requirement that legal aid be provided to defendants in serious criminal trials. The Court ruled adjournments should be granted on an indefinite basis in serious criminal trials where an accused is unrepresented "through no fault of their own", known as the "fair trial principle" and commonly referred to as the Dietrich principle.^[2] Prior to Dietrich it was customary in Australia to force to trial a person who could not afford legal representation.^[3]

The case involved an individual named Olaf Dietrich who appeared before the County Court of Victoria to face charges of drug importation. Dietrich was unrepresented at trial due to lack of financial resources, having been refused legal aid. Dietrich applied to the High Court, where a five-to-two majority found a lack of legal representation for an accused charged with a serious offence may result in their trial of such offence being unfair.^[4] Dietrich is widely considered a landmark case in Australia, being the 69th most cited case of the High Court.^[5][6]

Background[]

On 17 December 1986, Olaf Dietrich flew from Bangkok, Thailand, to Melbourne Airport. He had imported 70 grams (2.5 oz) of heroin, concealed within swallowed condoms.^[1] He was arrested the next morning by the Australian Federal Police (AFP), after they found one of the condoms and some heroin in a plastic bag.^[1] He was taken into custody and passed the remaining condoms during the night at Pentridge Prison hospital. Dietrich alleged that the drugs had been planted by the police.^[1]

County Court trial[]

Dietrich was charged in Victoria and tried in the County Court for a trafficking offence and other charges.^[1] He sought legal aid to defend the matters without success from the Legal Aid Commission of Victoria, although it offered to assist with a guilty plea.^[7] Dietrich also applied unsuccessfully in seeking reconsideration of the Commissions's refusal pursuant to review procedures under the relevant legislation.^[8] He applied to the Supreme Court of Victoria for legal assistance but was refused.^[1] An application for legal assistance directed to the Commonwealth Minister for Justice and the Attorney-General for the Commonwealth was also unsuccessful.^[9]

He had no legal representation at trial.^[10] During his trial, Dietrich reiterated to the court the difficulties he was facing by trying to conduct his own defence, which the Crown later did not dispute were real and substantial.^[7] The trial before Judge Nixon in the County Court lasted approximately 40 days, from presentment of Dietrich on 23 May 1988 to the return of the jury on 29 July 1988. The indictment on which Dietrich was presented contained three further counts. Two counts alleged possession of the heroin subject to the charge of importation, however these were not considered once a verdict of guilty was reached. A third and final found alleged possession of heroin not subject to the importation charges, and Dietrich was found not guilty on this count. Dietrich pled not guilty to all counts, but was found guilty by a jury of one count of importing a trafficable amount of heroin into Australia, in contravention of s 233 b (1)(b) of the Customs Act 1901 (Cth).^{[citation needed]}

Conviction and appeal[]

Following the conviction, Dietrich was sentenced to a term of seven years imprisonment.^[11][12] He then brought an appeal to the Court of Criminal Appeal, where one ground of application for leave to appeal against his conviction was that every indigent charged with an indictable offence is entitled to counsel provided at the expense of the state, and that failure for a court to provide such counsel means a subsequent conviction constitutes miscarriage of justice. The Court refused to hear the appeal. He then obtained special leave at the High Court.^[12] The only real course of action Dietrich succeeded in during his succession of matters was an appeal to the High Court, which grants leave only in rare circumstances.^{[citation needed]}

High Court appeal[]

Dietrich sought special leave to appeal to the High Court on the basis that the Court of Criminal Appeal erred in law:

1. in holding he did not have the right to be provided with counsel at public expense; and/or
2. in not holding that by reason of his being unrepresented, a miscarriage of justice had occurred in the circumstance of this case and himself.^{[citation needed]}

The Court allowed the appeal, setting aside the original conviction and ordering a new trial.^{[citation needed]} At the appeal, Dietrich was represented by David Grace, QC.^[13] 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.^[14] His argument was based on the common law tradition that an accused is entitled to a fair trial.^[1]

Right to a fair trial[]

Dietrich suggested three different sources in law for the right to counsel that he asserted.^[1]

The first was domestic law, 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".^[15] 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".^[16] 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][17]

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). 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. 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, establishing international precedent.^[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."^[18] However, that did not necessarily mean that counsel had to be provided by the state.^{[citation needed]}

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).^[19]

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",^[20] and Canadian case law has found that as a corollary of that right, there is a right to legal aid.{{cn{{

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.^[12]

The High Court said that the trial judge did not seem to be aware that he had the authority to adjourn the trial.^[21] 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 The Queen 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.^[22]

Judgement[]

A Court majority decided 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.^[23] 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]

The ratio decidendi (rationale for the decision) was that 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][24]

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.^[25] Another two judges, Brennan and Dawson JJ, dissented,^[26] 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.^[27]

The obiter dictum (commentary in passing, not necessary to resolve the case) made in Dietrich was the raising of a question by the Court as to why the Australian legal system does not align with the United Nations. Murphy J commented a lack of representation may not comply with the International Covenant on Civil and Political Rights.^[1]

Consequences[]

The ruling at the time was predicted to have a profound impact on the conduct of criminal trials and provision of legal aid in Australia.^[14] The decision marked a significant departure from previous practice; it 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.^[28] 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.^[29] 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.^[30] 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;^[29] 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;^[31] 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.^[30]

Contemporary application[]

Dietrich is regularly cited in the High Court of Australia.^{[citation needed]} Australia's highest and most supreme court regularly citing a decision it made nearly three decades ago demonstrates the lasting legacy of Dietrich, as it is typical for the Court to change its perspective on an issue during such a long period of time.^{[citation needed]}

In Nguyen v the Queen, the Court cited Dietrich in stating that "the concept of a [truly] fair trial cannot comprehensively or exhaustively be defined" and the "requirements of the duty of fairness are neither rigid nor static ... 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".^[32]

In Minister for Immigration v AAM17, Dietrich was cited by the Court which noted "where an applicant is unrepresented or cannot stand English, or both, there are usually rules of court which may be deployed to ensure that a court performs its duty to give the person a fair trial and that the person is otherwise accorded procedural fairness".^[33]

Subsequent issues for Dietrich[]

Although the High Court ordered for the verdict of the conviction to be overturned and for a retrial to be conducted, there was no retrial since Dietrich had already served his sentence.^[34] He was released on parole in July 1990, and later changed his name by deed poll to Hugo Rich.^[34]

Further convictions[]

In 1995, Dietrich 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 a guilty verdict was returned.^[35] In 2001, he was eligible for day leave, and he gained media attention by leaving the decision as to whether 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".^[36]

After his release in October 2004, he 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.^[34] He was found guilty of the murder of Kastenberger in the Supreme Court of Victoria on 12 June 2009,^[37][38] and he was jailed for life with a non-parole period of 30 years.^[39] In 2014 the Court of Appeal dismissed his appeal.^[40]

See also[]

• Gideon v. Wainwright, analogous case in U.S. constitutional law

Notes[]

References[]

External links[]

• "National hunt for murder suspect". Herald Sun. 10 June 2005.