Citation: R v Pratten (No 14) [2015] NSWSC 457
Court: Supreme Court of New South Wales
Date: 23 April 2015
Judge: Rothman J
Background
The accused faced seven charges of dishonestly obtaining a financial advantage by deception, contrary to s 134.2 of the Criminal Code Act 1995 (Cth), each relating to a separate financial year between 2003 and 2009. He had already been tried once before a jury, convicted on all charges after a 40-day trial, and then had his conviction overturned on appeal by the Court of Criminal Appeal in July 2014. A retrial was scheduled to commence on 18 May 2015.
Throughout the first trial, various appeals, and extensive collateral civil proceedings challenging the conduct of investigators and prosecutors, the accused had been represented by solicitors and two senior counsel. In February 2015, his solicitors withdrew from acting, prompting the accused to seek transfer of his Legal Aid grant to new solicitors who were not on the Legal Aid panel for serious crime.
Correspondence between the new solicitors and the Legal Aid Commission over preparation time and rates remained unresolved. The accused applied for a stay of the retrial, or alternatively for the 18 May 2015 trial date to be vacated, on the basis that he was constructively without representation due to an inadequate Legal Aid grant.
Legal Issues
- Whether the retrial should be stayed on the basis that proceeding without adequate legal representation would deny the accused a fair trial, consistent with the principles in Dietrich v The Queen (1992) 177 CLR 292
- Whether the accused was constructively unrepresented as a result of the terms and quantum of the Legal Aid grant
- Whether it was appropriate, in the circumstances, to vacate the 18 May 2015 trial date
Decision
Rothman J declined to grant a permanent or indefinite stay at this stage, and also declined to vacate the trial date outright. His Honour found it premature to assess whether the accused genuinely faced an unfair trial for want of representation, because no solicitor had yet been formally retained and no counsel instructed for the retrial. Until that occurred, the Court could not properly assess whether the Legal Aid grant was in fact inadequate for the realistic needs of the case.
His Honour noted that much of the groundwork for this case had already been laid. The evidence had been prepared twice, the brief had been thoroughly reviewed during appeal proceedings in which the reasonableness of the verdict was argued, and there was no suggestion of incompetence in any prior representation. Counsel and solicitors already familiar with the matter might well accept a brief without requiring the extensive additional preparation hours asserted by the prospective new solicitors.
Rothman J also identified an important qualification to the Dietrich principles: an accused cannot dismiss solicitors and then claim an inadequate opportunity to prepare a case that has already been prepared at least twice. Where any resulting unfairness arises from the accused's own choices, that unfairness cannot be sheeted home to the Crown or the Court. His Honour was careful to note he was not making a finding that this accused had acted unreasonably, but observed there was nothing before the Court that suggested otherwise either.
The motion was adjourned to a date that would allow new solicitors and counsel to be retained, enabling the Court to properly assess the real preparation needs of the accused before any further ruling on the Dietrich application.
Orders Made
• The motion was adjourned to a time and date that would allow the solicitors and counsel to be engaged and the Court to be aware of the real needs of the applicant/accused.
Key Takeaways
- A Dietrich application based on constructive lack of representation cannot be properly assessed until solicitors and counsel for the proceeding in question have actually been engaged, since the Court must first ascertain the realistic preparation needs of those who will run the case.
- The principle that an accused is entitled to an adequate opportunity to prepare and answer a case is qualified: once that opportunity is given, how it is used is a matter for the party, and the court cannot guarantee it will be used to best advantage (Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J).
- An accused cannot invoke Dietrich to claim inadequate preparation time for a retrial when the case has already been fully prepared in earlier proceedings, particularly where prior representation was competent and the change in representation arose from circumstances within the accused's own sphere.
- Familiarity with a large and complex brief, accumulated through earlier proceedings, is a relevant practical consideration when evaluating claims that a Legal Aid grant is insufficient for adequate preparation.
- Adjourning a Dietrich motion, rather than granting or refusing a stay outright, may be appropriate where the factual foundation necessary to evaluate the claim has not yet crystallised.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 134.2
- Proceeds of Crime Act 2002 (Cth), s 17
Cases
- Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
- R v Souter (1997) 93 A Crim R 400
- Sullivan v Department of Transport (1978) 20 ALR 323