Citation: R v Bryers [2022] NSWSC 1284
Court: Supreme Court of New South Wales
Date: 17 June 2022
Judge(s): Fagan J
Background
The accused was charged jointly with several others on indictment filed by the Commonwealth Director of Public Prosecutions. The charges related to conspiring to dishonestly cause a loss to the Commonwealth and conspiracy to deal with the proceeds of crime under the Criminal Code (Cth). He pleaded not guilty when arraigned in April 2022 and had been unrepresented since he was first charged in 2020.
The trial was fixed to commence on 23 January 2023, with the Crown estimating a duration of six to seven months. The accused had no legal representation and filed a notice of motion seeking, among other things, a court order that the Attorney General fund his defence, and a stay of proceedings if that funding was not provided.
The motion raised two distinct issues: a claim under the principles established in Dietrich v The Queen (1992) 177 CLR 292 (which was adjourned for later determination), and a separate application under s 69(3) of the Judiciary Act 1903 (Cth) for certification to the Commonwealth Attorney General that the accused lacked adequate means to fund his own defence.
Legal Issues
- Whether the accused was "without adequate means to provide defence for himself" within the meaning of s 69(3) of the Judiciary Act 1903 (Cth)
- Whether it was "desirable in the interests of justice" that counsel be appointed, as required by s 69(3)
- Whether the proceedings should be stayed pending resolution of the representation question (adjourned for later decision)
Decision
Issue 1: Adequacy of means under s 69(3)
The court accepted the accused's uncontested affidavit evidence that his consulting income left him with discretionary funds of only approximately $149 per week after living expenses, even at an optimistic income level of $2,200 per week (at [9]). His assets were subject to restraining orders under the Proceeds of Crime Act 2002 (Cth), and even if they were not restrained, they would contribute nothing to funding his defence given that the Act contains no mechanism for releasing restrained assets to meet legal costs (at [10]). Legal Aid NSW had refused his application, calculating his assessable income at $1,745 per week, well above the $400 per week threshold, but Fagan J noted that Legal Aid's methodology used a Sydney rental benchmark of $455 per week that the court regarded as judicially noticeable to be below realistic market rents (at [12]). On the totality of this material, the court was satisfied the accused lacked adequate means to fund his defence for a complex, multi-month trial (at [13]).
Fagan J was candid in observing that s 69(3) is "antiquated and inutile." The provision requires the court to make an assessment on prima facie material with no meaningful participation from the Crown or the Attorney General's office. The Commonwealth Solicitor did not appear, and the process of judicial certification was characterised as adding nothing that could not be achieved by the accused submitting representations directly to the Attorney General (at [13]-[14]).
Issue 2: Desirability of appointment in the interests of justice
The court found this limb of s 69(3) has been effectively overtaken by the High Court's decision in Dietrich v The Queen. Since that decision, it has been settled law that a trial judge is obliged to stay proceedings where an accused cannot afford representation through no fault of their own. No separate inquiry into "desirability" is required: representation must be funded and provided, or the proceedings must be stayed (at [15]-[16]).
Issue 3: Stay of proceedings
The Dietrich application was adjourned to 26 August 2022. The court allowed proceedings to continue in the interim because the accused was not yet required to take any step that demanded legal representation. The next phase involved the Crown completing its particularisation of the case, after which the court would reassess whether the trial or any interlocutory step should be stayed (at [17]-[18]).
Orders Made
- The Court certified to the Commonwealth Attorney General that the accused is without adequate means to provide defence for himself in respect of the charges upon which he was arraigned on 11 April 2022.
- The Court further certified that it is desirable in the interests of justice that the appointment of counsel in his defence be made.
- The balance of the notice of motion (the Dietrich stay application) was stood over to 26 August 2022.
Key Takeaways
- Section 69(3) of the Judiciary Act 1903 (Cth) empowers a Supreme Court judge to certify to the Commonwealth Attorney General that an accused person lacks adequate means to fund their own defence, with the Attorney General then having a discretion to arrange or refer funding for that defence.
- Fagan J characterised s 69(3) as "antiquated and inutile," noting that the court is required to assess financial means on unchallenged prima facie material, with neither the prosecution nor the Attorney General's office participating, rendering the certification process of limited practical value.
- Restrained assets under the Proceeds of Crime Act 2002 (Cth) cannot be used to fund an accused's legal defence, and their existence is therefore irrelevant to the assessment of whether a person has adequate means under s 69(3) (at [10]).
- The "desirable in the interests of justice" criterion in s 69(3) has been overtaken by Dietrich v The Queen: where an accused cannot afford representation without fault on their part, the trial court is obliged to stay proceedings unless representation is provided, making any separate inquiry into desirability redundant (at [15]-[16]).
- Legal Aid NSW's means-testing methodology, including standardised housing cost benchmarks, may produce assessable income figures that diverge materially from an applicant's actual financial position, a gap the court can take into account when conducting its own assessment under s 69(3) (at [12]).
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth)
- Judiciary Act 1903 (Cth)
- Proceeds of Crime Act 2002 (Cth)
Cases
- Dietrich v The Queen (1992) 177 CLR 292