Australian Criminal Law System

Part 2: critical legal analysis: You must critically analyze and discuss the question. You must support each of your agreements with authority. If there is no case law to support your argument, you may use any academic or other literature or commentary that supports your argument. Q4:The common law of Australia does not recognize that an accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Further, that as a matter of constitutional duty, the court cannot indefinitely adjourn a trial to force the provision of legal aid (Dietrich v The Queen (1992) 177 CLR 292). Do you agree or disagree? Why? The defendant was a man named Olaf Dietrich who was arrested in Melbourne Airport with importing a lot of heroin. Dietrich was tried in the County Court of Victoria in 1988 for a trafficking offence under the Customs Act 1901 and certain less serious charges.[1] During the lengthy trial the accused had no legal representation.[2] Although he had applied to the Legal Aid Commission of Victoria for assistance, the commission rejected his request and said there was no public expense in court if you were an indigent accused. Finally, the judge made a decision that supported the defendant to have legal aid in order to making sure he got a fair trial. Dietrich v The Queen was an important case decided in the High Court of Australia in the year of 1992. It concerned the nature of the right to a fair trial, and under what circumstances indigent defendants should be provided with legal aid by the state. The case determined that although there is no absolute right for the accused to have public fund for the counsel in court by state, a judge should concern the request for an adjournment or stay when an accused has no representation. It is a significant case in criminal law as well as in constitutional law in Australia, since it is one of a number of cases which have found human rights in the Australian Constitution. The majority in the High Court decided that although there was no right at common law to have publicly provided legal representation, in some cases representation is appropriate to ensure a fair trial.[3] Although judges no longer have the power to appoint counsel for an accused, since that function has been largely taken over by legal aid agencies, a trial judge should use their power to adjourn a case if it is in the interests of fairness that an accused have representation, which would encourage the legal aid agencies to provide counsel.[4] In my point of view, I do not agree with the first issue. I think though there is no provision of counsel at public expense, it is necessary for Australia common law to recognize a serious criminal offence having the right to gain a legal aid for the reason of a trial. Furthermore, though I am not for the first issue whereas I think the second issue is correct. It is reasonable for the court that not to indefinitely adjourns a trial to force the provision of legal aid.

1. Since the defendant should have the right to gain legal aid at public expense though there is no provision for that in common law in Australia, some questions should be discussed at follows: (a) the right to a fair trial (b) Miscarriage of justice (c) the role for the international treaties in Australian common law.

1. the right to a fair trial

To receive a fair trial according to law for the defendant is not only a fundamental element of the common law but of criminal justice system as well.[5] The right is manifested in rules of law designed to regulate the trial.[6] Also, the jurisdiction of courts extends to a power to stay proceedings in order to avoid the criminal proceeding which will result in unfair trial.[7] The defendant claimed that the interest of justice require that an indigent accused who wishes to have legal representation should be paid at public expense because the central essence of the trial is to make sure the accused have the right to have his own counsel and the absence of representation for the defendant who cannot afford the legal representation means that the proceeding is unfair and the conviction should be quashed.[8] Since it is for a long time the legislation was enacted to provide that all accused will be permitted to be represented by counsel, that principle has been regarded as the basic prescript of the trial especially for the felony. Furthermore, the rule of the criminal system provides the securing justice for administration power to guarantee the fairness and particularly requires the contemporary values for Australia for reducing the possibility of the unfair proceedings especially for the felony charge. Australia legal system is a kind of adversary system which requires the justice of the criminals should be consistent with the fundamental virtue of the common law. That means that the judge in the court do not have more work but mainly rely on the lawyers’ intelligence which is unlike the inquisitorial system, it is the judge’s duty to guide the proceeding in the court.[9] Thus to avoid the unfairness during the legal proceeding result from the unbalanced and in appropriate situation, I do think it may be a good thing for the trial judge to lend assistance to point the counsel for the accused.[10] Most of the accused do not have the specific knowledge to support them during the court so that they need the professional lawyers for legal representing by using them sufficient and accurate intelligence. Although it is not inevitable for the want of counsel to lead the unfairness in the court,[11] it could increase the possibility to result in an unfair criminal trial.[12]

2. Miscarriage of justice

As we all know, the justice is include not only procedural justice but substantive justice as well though the word ‘justice’ is hard to elaborate for a long time. Therefore, ensuring the justice process means a lot to the fair trial. It has been shown that in some cases the judges think the accused especially for the people with felony may be trialed unfairly if he failed to gain the defense counsel even though the judged were deemed to conduct in strict accordance with the law,[13] So it is vital for the accused to be represented by counsel in a proceeding of criminal trial.[14] If there is lack of legal representation, it will result in the proceedings for the accused to be dealt with not fairly and justly. It is in the best interests both of the accused and of the administration of justice that an accused be represented, especially when the he is under a serious charged offence.[15] At the commencement of the trial, the applicant had exhausted all avenues for legal assistance which means there was no other ways for him if the public expense were not provided. Due to the unsuccessful application for legal aid, no judicial attempt to list attributes of fair trial but every accused entitled to counsel. In this case, the failure of the trail judge to appoint counsel for the applicant was a miscarriage of justice and it is said that the Appeal Court usually determines miscarriage of justice.

3. The importance of the international treaties in Australian law

It is well established that unless a country incorporated the provision of an international treaty into its domestic law by statute, the provision will be in force in that country. Australia is a party to the international treaty named International Covenant on Civil and Political Right (the ‘ICCPR’), however, it has not been in force now because although the Executive made a ratification. It is the Parliament that has the right to make and alter the law, not the Executive. Since there is no provision related to the human right in Australia’s constitution, the right for legal representing seems not be included in the issue. Although we can find the evidence that in the ICCPR it contains that the indigent defendant can be represented by counsel at public expense,[16] no legislation in Australia has passed just the Executive signed it.[17] Although the ICCPR does not become a part of domestic law in Australia, the common law in Australia should follow the provision to the international treaty to develop a way which recognizes the existence and enforceability of rights and obligations regulated by the international instruments.[18] It is accepted that the fact that the convention has not been incorporated into Australian law does not mean that its ratification holds significance, the Australian law should regards the provision as a guidance to the common law and put something that in conformity but not in conflict with the established rules of international law. Besides, where the inherited common law is ambiguous and uncertain, Australian judges may look to an international treaty that Australia has ratified as an aid for explication.[19] In addition, the provisions of an international treaty to which Australia is a party that claims universal rights should used to help develop the common law system as well.[20]

2. The court cannot indefinitely adjourn a trial to force the provision of legal aid.

As the court do not control public purse strings, entitlement to legal aid dependent on government, not judiciary.[21] It means that the proceeding of trial is under the control of judicial power whereas the Executive is in charge of the public expense.[22] In fact, a trial judge will have discretion to stay or adjourn if the accused is too poor to afford the legal representation. It is noticeable that the judge should be in the favor of the accused under specific circumstances such as the lack of time or money shortage for him to have the counsel.[23] From my point of view, any decision made by the judges should conform the fundamental value of the common law, that is, justice and fair. Under such a circumstance, it is hard to say whether the trial judge should adjourn the proceeding or not for any decision he made would lead the case to unfairness. If the judge give the indefinitely stay in the court, it will bring the unfair trial. Therefore, the court cannot indefinitely adjourn a trial because it may occur to the executive government to provide the legal representation. To sum up, the judge should give the right to the accused due to the poverty in a reasonable time and never lead an indefinitely adjourn. Bibliography: Barton v The Queen (1980) 147 CLR 75 Blackstone, Williams and Sir, Commentaries, (N.Y. Banks & Brothers, 1899) Bradley v Commonwealth (1973) 128 CLR 557 Bunning v Cross (1978) 141 CLR 554 Dietrich v The Queen, Australasian Legal Information Institute, 25 March 2009 Dietrich v The Queen (1992) 177 CLR 292 International Covenant on Civil and Political Right, 16 December 1966, UNTS (entered into force 23 March 1976) Jago v District (1989) 168 CLR 23 Justice System in Western Australia, Consultation Drafts, 1992 Kinley, David, Human rights in Australian law: principles, practice and potential(Federation Press, 1998) Law Reform Commision of Western Australia, Review of the Criminal and Civil Paul, Ames, ‘Without Counsel: Dietrich v the Queen’ (1992) 4 (Bond Law Review, 235-241) Mclnnis v The Queen (1979) 143 CLR, 575 Powell v Alabama (1932) 287 US; Gideon v Wainwright (1963) 372 US R v Corak (1982) 30 SASR 409; Dietrich v The Queen (1992) 177 CLR 292 Reg v Sang [1980] AC 402 The State (Healy) v Donoghue [1976] IR

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[1] Dietrich v The Queen, Australasian Legal Information Institute, 25 March 2009. [2] Kinley, David, Human rights in Australian law: principles, practice and potential. (Federation Press, 1st, 1998). [3] Paul Ames, ‘Without Counsel: Dietrich v the Queen’ (1992) 4 (Bond Law Review, 235-241) . [4] Ibid. [5] See, eg, Jago v District (1989) 168 CLR 23; Dietrich v The Queen (1992) 177 CLR 292. [6] Bunning v Cross (1978) 141 CLR 554; Reg v Sang [1980] AC 402. [7] Barton v The Queen (1980) 147 CLR 75 at pp 95-96. [8] Dietrich v The Queen, (1992) 177 CLR 292. [9] Law Reform Commision of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Consultation Drafts, 1992. [10] See, generally, Powell v Alabama (1932) 287 US; Gideon v Wainwright (1963) 372 US; The State (Healy) v Donoghue [1976] IR. [11] See Barton v R (1980) 147 CLR 75. [12] Dietrich v The Queen (1992) 177 CLR 292. [13] See R v Corak (1982) 30 SASR 409; Dietrich v The Queen (1992) 177 CLR 292. [14] See, for example, Powell v Alabama (1932) 287 US 45. [15] Mclnnis v The Queen (1979) 143 CLR, 575 at 579. [16] International Covenant on Civil and Political Right, 16 December 1966, UNTS (entered into force 23 March 1976). [17] Bradley v Commonwealth (1973) 128 CLR 557. [18] Dietrich v The Queen (1992) 177 CLR 292. [19] Dietrich v The Queen (1992) 177 CLR 292. [20] Bradley v Commonwealth (1973) 128 CLR 557. [21] Dietrich v The Queen (1992) 177 CLR 292. [22] Ibid. [23] Blackstone, Williams and Sir, Commentaries, (N.Y. Banks & Brothers, 3rd ed, 1899) 49-50.

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