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Supreme Court 1 May 2015

R v Pratten (No 15)

[2015] NSWSC 573

Other
CRIMINAL LAW APPLICATION FOR STAY OF PROCEEDINGS APPLICATION OF DIETRICH PRINCIPLES MOTION DISMISSED, LEAVE GRANTED TO RE

Citation: R v Pratten (No 15) [2015] NSWSC 573
Court: Supreme Court of New South Wales
Date: 1 May 2015
Judge(s): Rothman J

Background

The accused faced a serious criminal retrial listed to commence in May 2015. Legal Aid had been granted, covering a firm of solicitors and both junior and senior counsel, which Rothman J noted was itself an unusual outcome. The central dispute concerned the adequacy of that grant: the Legal Aid Commission was prepared to fund only ten days of solicitor preparation time, which the accused's representatives argued was insufficient for proper preparation of the defence case.

The accused, through solicitors retained specifically for the motion, sought a stay of proceedings. The motion built on an earlier judgment delivered on 23 April 2015 (R v Pratten (No 14) [2015] NSWSC 457), which had set out the applicable principles and adjourned the matter for relisting. The present judgment addressed two new developments: confirmation of the Legal Aid grant, and a purported appeal lodged with the Legal Aid Commission on 28 April 2015.

  • Whether the Dietrich v The Queen principles entitled the accused to a stay on the basis that Legal Aid funding was inadequate to permit proper preparation of the defence
  • Whether sections 56 and 57 of the Legal Aid Commission Act 1979 (NSW) required the court to adjourn or stay the proceedings pending an internal appeal to a Legal Aid Review Committee
  • Whether the accused's lack of confidence in the allocated solicitor and counsel provided grounds to delay the retrial

Decision

Rothman J analysed the accused's purported appeal to the Legal Aid Commission and found it raised at least three distinct problems. First, s 56(1AA) of the Legal Aid Commission Act does not permit an appeal against the identity of the private legal practitioner arranged to provide services. Second, there was no identifiable decision by the Commission refusing to increase the grant, which cast doubt on whether any appeal was properly constituted. Third, while a proper reading of s 56(1)(b) might permit an appeal against a refusal to vary a grant, none of these issues compelled the court to halt proceedings.

On the operation of s 57, Rothman J held that even accepting the section could otherwise require an adjournment, special circumstances existed that overcame that effect. The court therefore declined to decide the precise operation of ss 56 and 57 conclusively.

Turning to the Dietrich principles, Rothman J found that with a solicitor and both junior and senior counsel now retained for the retrial, the accused was not unrepresented, whether actually or constructively. A stay was therefore not warranted at this point, though the court expressly left open the possibility of the motion being re-agitated once the retained legal team had prepared to the extent permitted by the grant and could demonstrate that proceeding would risk an unfair trial.

Rothman J also noted some concern about the accused's insistence on an undertaking from the solicitor and counsel that they would prepare and present the case properly, observing that such an obligation already exists as a matter of law under the Legal Profession Act 2004 (NSW). The court declined to draw an inference at this stage that the accused was deliberately hindering proceedings, but flagged the concern.

Orders Made

  • The motion is dismissed
  • The trial date of 18 May 2015 is vacated; the matter is listed to commence by empanelment on 1 June 2015
  • Leave is granted to the parties to approach the court on three working days' notice in relation to any matters addressed in the judgment

Key Takeaways

  • The Dietrich principles require that an accused facing serious criminal charges be represented at trial, but once a solicitor and counsel are retained, the accused is not constructively unrepresented merely because the Legal Aid funding quantum is disputed.
  • Under s 56(1AA) of the Legal Aid Commission Act 1979, no right of appeal exists against the identity of the private legal practitioner arranged by the Legal Aid Commission to provide services.
  • Dismissal of a Dietrich-based stay motion does not permanently foreclose the issue; Rothman J confirmed the motion could be re-agitated once the legal team had prepared to the limit of the grant and could demonstrate a concrete risk to a fair trial.
  • Solicitors and counsel are already obliged by law to prepare and present their clients' cases properly; a demand for a personal undertaking to that effect carries no additional legal force.
  • Where special circumstances exist, a court retains the ability to override the effect of s 57 of the Legal Aid Commission Act, even where an internal appeal to a Legal Aid Review Committee has been lodged.

Legislation and Cases Referenced

Legislation
- Legal Aid Commission Act 1979 (NSW), ss 34, 38, 47, 56, 57, 69
- Legal Profession Act 2004 (NSW)

Cases
- Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
- R v Timothy Charles Pratten (No 14) [2015] NSWSC 457