Citation: R v Macdonald (No 4) [2016] NSWSC 486
Court: Supreme Court of New South Wales
Date: 21 April 2016
Judge: Adamson J
Background
The accused, a former Member of the NSW Legislative Council and former Minister of the Crown, faced two charges of misconduct in public office arising from his alleged decision to grant an Exploration Licence to a mining company. The charges followed findings made by the Independent Commission Against Corruption (ICAC) after a public inquiry in 2013.
The accused sought a stay of the criminal proceedings on the basis that he lacked sufficient funds to retain legal representation for his trial. Such an application, known as a Dietrich application, requires the court to assess whether proceeding in the circumstances would be unfair. The accused also sought an adjournment as an alternative remedy.
The accused's request for public funding through the then Attorney-General had already been refused in February 2015, on the basis that ICAC had found him to have acted corruptly. By the time of this application, his senior counsel indicated he was no longer retained due to non-payment of fees.
Legal Issues
- Whether the accused satisfied the requirements for a Dietrich stay, that is, whether he had genuinely exhausted the means available to fund his own legal representation
- Whether, in the alternative, the proceedings should be adjourned to allow the accused time to secure funding
- How to balance the interests of the accused, his co-accused, and the administration of justice more broadly
Decision
Adamson J refused both the Dietrich application and the application for an adjournment. The court found that the accused had not established that he genuinely lacked the means to fund his defence. Despite presenting a picture of financial difficulty, the accused had access to a property worth approximately $650,000 (albeit held in his wife's name), monthly superannuation payments, potential success fees from consultancy work, and unexplored superannuation commutation entitlements. The court was not satisfied these avenues had been meaningfully pursued.
The court was particularly critical of the accused's failure to provide corroborating documentation for his financial position. His decision to place property in his wife's name, while understandable on his account, was also a relevant consideration. The court noted that even if the accused were to receive further income, there was no confidence it would be applied to his legal defence.
On the adjournment application, the court acknowledged real difficulties in conducting a complex trial with an unrepresented accused and accepted this posed a genuine risk to the interests of his co-accused. However, the court found that past adjournments had simply produced further applications without any change in circumstances. An adjournment of three months, as proposed, was unlikely to produce a different outcome and would serve no practical utility.
The court drew on the approach taken in R v Yuill, where a comparable application was refused on the basis that there was no evidence that the applicant's circumstances were likely to change, and no practical distinction existed between an adjournment and a stay.
Orders Made
- The notice of motion filed by the accused on 1 April 2016 was dismissed.
- The application for an adjournment of the trial was refused.
Key Takeaways
- A Dietrich application for a stay of criminal proceedings requires an accused to demonstrate genuine and exhausted inability to fund legal representation; a superficially unfavourable financial picture is insufficient where assets or unexplored funding avenues exist.
- Under Dietrich v The Queen (1992) 177 CLR 292, the right to a fair trial does not automatically entitle an accused to publicly funded representation; the court must be satisfied the accused cannot secure funds from any reasonably available source.
- Placing assets in a spouse's name does not, without more, remove those assets from consideration when assessing whether an accused has genuinely depleted available resources.
- Refusing the adjournment, the court held that where past adjournments have produced only further unmeritorious applications, there is no utility in granting further time, even where the risks of an unrepresented accused in a complex trial are acknowledged.
- The interests of a co-accused, who may be prejudiced by the principal accused proceeding unrepresented, are a legitimate consideration, but they do not, of themselves, require the court to adjourn proceedings indefinitely where no realistic prospect of changed circumstances exists.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 128
Cases
- Dietrich v The Queen (1992) 177 CLR 292
- Craig v South Australia (1995) 184 CLR 163
- R v Joyce [2003] NSWCCA 280
- R v Marchi, Marchi and Mead (1996) 91 A Crim R 112
- R v Yuill (unreported, NSWCCA, 1 November 1995)