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Supreme Court 23 September 2022

R v Bryers (No 2)

[2022] NSWSC 1285

Public order & justice offences
CRIME DIETRICH V THE QUEEN (1992) 177 CLR 292 COMMONWEALTH LEGAL ASSISTANCE SCHEMES

Citation: R v Bryers (No 2) [2022] NSWSC 1285
Court: Supreme Court of New South Wales
Date: 23 September 2022
Judge(s): Fagan J

Background

An accused person faced Commonwealth criminal charges as one of eight co-accused in a trial listed to begin on 23 January 2023, with an estimated duration of approximately six months. The accused was indigent and ineligible for assistance from the NSW Legal Aid Commission. His assets were restrained under the Proceeds of Crime Act 2002 (Cth), which on its face prevented him from accumulating funds sufficient to privately retain legal representation.

The accused had pursued multiple avenues to obtain publicly funded legal representation: an application to Legal Aid (rejected), an appeal to Legal Aid's review committee (also rejected), and an application to the Attorney-General's Department under Commonwealth legal financial assistance schemes. He had also applied to the Supreme Court for a certificate under section 69(3) of the Judiciary Act 1903 (Cth), which Fagan J issued on 17 June 2022. Despite this, by late September 2022 his representation remained unresolved, with the trial fixture only four months away.

This judgment records Fagan J's critical assessment of the Commonwealth's handling of the accused's applications and sets directions to bring the matter to a head, with a stay application to be heard on 31 October 2022 if no firm funding arrangement was in place by then.

Legal Issues

  • Whether firm arrangements for the public funding of the accused's legal representation could be secured before the trial date.
  • Whether, if no such arrangements were made, the accused would be entitled to a stay of prosecution under the principles in Dietrich v The Queen (1992) 177 CLR 292.
  • Whether the Commonwealth legal financial assistance schemes, including the Special Circumstances Scheme administered by the Attorney-General's Department, provided any viable pathway to funding the defence of criminal charges.
  • Whether the section 69(3) Judiciary Act certificate issued by the Court had any practical effect on the accused's prospects of obtaining Commonwealth legal financial assistance.

Decision

Issue 1: Directions to resolve the representation question

The court made directions allowing four weeks for firm arrangements for the accused's representation at public expense to be put in place. If no such arrangement was established by 31 October 2022, the court would determine the stay application on that date (at [4]). The court noted that if the stay were granted and the trial date vacated for the accused, the CDPP would then need to elect immediately whether to vacate the trial for all eight co-accused or proceed against the remaining seven separately (at [5]).

Issue 2: The section 69(3) certificate and Commonwealth assistance schemes

The court concluded that the section 69(3) certificate was a merely formal document of no substance, being the outcome of Commonwealth consent or acquiescence rather than any forensic examination of the accused's affairs (at [43]). The Attorney-General's Department, after receiving the certificate, did nothing more than refer the accused back to Legal Aid for further consideration, which Legal Aid had already twice refused (at [42]-[43]). The court found that the Commonwealth legal financial assistance website's overarching statement that the Department "cannot help people facing criminal charges in Australia" appeared to exclude the accused from the Special Circumstances Scheme (at [27]-[28]).

Issue 3: The CDPP's conduct and the accused's financial position

The court found the CDPP's characterisation of the Proceeds of Crime Act restraining orders as not significant to the accused's ability to secure representation to be "unworldly," given that those orders prohibited him from accumulating or dealing with property worth more than $5,000 (at [24]-[25]). The court found that the CDPP ought not to have directed the accused towards the illusory prospect of pro bono representation for a trial estimated to cost between $706,000 and $1.5 million in legal fees (at [18]). The court also found that the Attorney-General's Department ought to have informed the CDPP from the outset that a section 69(3) certificate would have no practical consequence for Commonwealth legal financial assistance determinations (at [17]).

Issue 4: The Dietrich principles and the upcoming stay application

The court confirmed that it had already found the accused to be indigent, and that the Proceeds of Crime Act restraining orders appeared on their face to make private funding of his defence impossible (at [10]). The remaining questions for the stay hearing would be whether the accused's indigence was through no fault of his own, and whether, on all the circumstances, the trial would be rendered unfair if he were unrepresented (at [10]-[11]). The court warned of the significant public cost consequences of a misjudgement on the fairness question, given the prospect of a retrial lasting another six months (at [11]).

Orders Made

  • The accused was excused from responding to the prosecution case or making any section 143 response until further order.
  • By 26 October 2022, the Crown was to file and serve any further evidence in opposition to the stay application, including unequivocal information as to whether the accused's legal representation would be publicly funded.
  • By 28 October 2022, the accused was to file and serve any further evidence in support of the stay application.
  • The notice of motion (filed 20 December 2021) was fixed for hearing on 31 October 2022 at 10:00am for determination of the stay application.

Key Takeaways

  • A section 69(3) Judiciary Act certificate, where obtained by consent or without any Commonwealth forensic examination of the accused's financial circumstances, may amount to a merely formal document with no practical effect on the accused's access to Commonwealth legal financial assistance schemes (at [43]).

  • Commonwealth legal financial assistance schemes, including the Special Circumstances Scheme, contain an overarching statement that the Department cannot assist people facing criminal charges in Australia. This appears, on the court's analysis, to exclude indigent accused persons from accessing those schemes, regardless of the severity or complexity of the proceedings (at [27]-[28]).

  • Under Dietrich v The Queen, where an accused is indigent through no fault of their own and a serious trial cannot be conducted fairly without representation, the trial should be stayed, adjourned or postponed unless exceptional circumstances pointing the other way are established. The court emphasised the very significant costs to the public of a misjudgement on the fairness question, given the prospect of a retrial (at [11]).

  • Proceeds of Crime Act restraining orders that prohibit an accused from accumulating or dealing with property worth more than $5,000 may, on their face, make it impossible for the accused to fund legal representation privately. Characterising such orders as insignificant to the accused's ability to retain lawyers was described by the court as "unworldly" (at [24]-[25]).

  • Directing an unrepresented accused towards pro bono legal assistance is unrealistic where the trial is estimated to last six months and legal costs would range between $706,000 and $1.5 million. Prosecutorial authorities should instead direct indigent accused persons towards viable sources of public funding (at [18]).

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth)
- Judiciary Act 1903 (Cth)
- Proceeds of Crime Act 2002 (Cth)
- Customs Act 1901 (Cth)

Cases
- Craig v South Australia (1995) 184 CLR 163; [1984] HCA 58
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- R v Bryers (No 1) [2022] NSWSC 1284