Discussing the Concept of Fair Trial with Reference to Dietrich and Subsequent - Case Study Example

Running head: Dietrich v R (1992) Name xxxxxxxxxxxx Course xxxxxxxxxxxx Lecturer xxxxxxxxxxxx Date xxxxxxxxxxx Introduction In Dietrich v R (1992), Justice Toohey addressed the concern over the state providing legal representation for those who cannot afford it. In the ruling, the judge questioned the fairness of the legal process in the state’s provision of representation. According to the Charter of Human Rights, s24 (1), there is a provision that any person charged with an offence or involved in legal proceedings- criminal or civil has a right to be subjected to a fair process. Part of this fair legal process involves a right to representation or counsel. However, there are questions that have arisen in courts over circumstances in which the accused cannot afford legal representation, especially in serious offences such as murder or rape. In Ljupco Slaveski v Paul Smith, the County Court Judge Gullaci referred questions to the Appeal Court regarding the extent of legal aid to be provided to the defendant. The referral questioned “Does the right to a fair trial trial pursuant to s24 (1) of the Charter operate to include the right to be legally represented?” (Ljupco Slaveski v Paul Smith and Victoria Legal Aid, 2012, 1). The fairness and legality of state provision has continually been a controversial issue in the legal literature and practice. This paper seeks to address J. Toohey’s question in this regard. It is of the opinion that every one has a right to representation in a fair trial. As such, the state is obligated to provide legal aid to the accused who cannot afford and are in need. The Charter The Charter makes provisions for a right to fair trial for all persons. In the definition of what constitutes a fair trial, the Charter in s24 delineates three aspects: appearance before a competent and impartial court, discretion of the court in deciding who attends a hearing and that all judgements are made public. With respect to the rights of an individual in criminal proceedings, fair trial theme is extended by the Charter indicating that there should be representation. Subsection 2d of section 25 states that a person has a right to be to ”Be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978” This underlines that whatever the financial circumstances, no one who is undergoing litigation process may stand before a court defenseless. The Charter further provides that the defendant has a right to be informed on representation alternatives available and compulsory state-provided representation in case the process of justice requires so. The Charter’s provision are based on the tenets of the Legal Aid Act 1978 under which the legal aid office is constituted. In section 24 of the Act, the Victoria Legal Aid (VLA) is guided on the circumstances in which it has discretion and in those it is by law obliged (s25) to provide legal assistance. O'Neill et al, (2004) indicate the the right to individual discretion in choosing a lawyer is only available to those who can afford. In promoting fairness between those who can afford and those who cannot, the intervention of legal aid gives the poor an equal chance of choosing and paying lawyers they would wish to represent them. Further on, it is in the provisions of the Human Rights Act 2004 section 22 and the International Covenant on Civil and Political Rights (Article 14) giving the accused a right to representation (ACT Legislative Assembly, 2008). There is a need for adherence to the right of state-provided counsel given the disadvantage of going through the judicial system unrepresented, especially in serious crimes and civil cases. If the system will dispense services in a way that is fair and in accordance to natural justice, then it is vital that one is fairly represented. For instance, this was demonstrated in McInnes v R (1979) in which Murphy J noted that in any case having counsel has two importances: protection of the accused and value of this to the administration of the justice system. He observed that having and unrepresented accused has implications on the adequacy of defense and that even lawyer with ample experience in criminal cases would be foolish to stand alone in serious crime litigation (Craigie, 2005). However, the case went on with the High Court holding that McInnes’ requirement to go on to defence unrepresented was not in any way amounting to justice miscarriage (O'Neill et al., 2004). This ended up in what literature refers to as the problem or disadvantage of unrepresented accused (Craigie, 2005; O'Neill et al., 2004). Noted in Dietrich, Craigie (2005) registers that it is realistic for lack of representation to be construed as a disadvantage. The process of a criminal case: from indictment, trial, jury, judgement and probable appeal requires that one is knowledgeable on criminal laws as well court processes. It is also vital that there is ample skill in cross examining evidence and witnesses. With regard to evidence, it is vital that the accused has an understanding of what is or not admissible, what evidence is relevant, the kind of inquiries required to validate evidence, what evidence to call when and what defences are appropriate (O'Neill et al, 2004). In Dietrich, the previous requirement that an accused must attend a case even without representation as described in Fairall (1992) was faulted on the bases of knowledge and skills with regard to dealing with critical issues such as evidence, oaths and witnesses. Dealing with such aspects requires competence which largely depends on training and experience (Craigie, 2005). Taking such an approach overruled the decision in McInnes (O'Neill et al, 2004). Serious crimes attract tough judgements. In Dietrich v The Queen, Dietrich was accused of importing a traffickable amount of heroin and was unrepresented at trial. In such cases, the state-equipped prosecutor stands against a defenceless accused. This implies that in case one has been brought to answer to charges the accused will face the justice system without adequate preparedness and will be ineffective. There is an imbalance in the process with one side of the side represented. As such there is a likelihood that the legal process procedures and formalities obscures the oppression against which the accused is exposed in spite of the judge’s efforts (O'Neill et al., 2004). Essentially, judges’ decisions in a case or even the jury are based on evidence presented and the implications of interpreted law with regard to the evidence. A system focused on justice will thus ensure that no individual represents themselves in a court of law especially for serious criminal offences. Since Justice Toohey’s ruling in Dietrich’s appeal, the right to representation in serious criminal offences has been effectively introduced by judges as more than just a component of a fair trial. Additionally, this practice has become part of the Australian Law, although it has not yet been entrenched in the constitution. There are various factors that have informed the paradigm shift in treatment of an accused. In Dietrich Justice Toohey’s only consideration was the seriousness of the offence. Other relevant factors one may consider including probable sentence severity, case complexity and the situation of the accused. With regard to the situation of the accused, one may make application to the VLA. Prior to awarding such an assitance, the VLA ascertains the need of the accused. Section 24 provides that such an award is only allowable with need ascertainment and knowledge that one cannot afford the full cost of seeking private legal services. Factors to be considered as provided include income, available cash, extent of financial liabilities, cost of private legal representation and the cost of living (Legal Aid Act 1978). However, there are indications that there has been gradual erosion to on legal right to representation with literature citing an issue to do with funding of state and territoral legal aid offices (Law Council of Australia, 2004). In the 2004 report by the Council of Australia, there was evidence of increased self representation owing to the issue of funding, inequity in access to state-funded representation and increased withdrawal of state counsels from the state-funded practice. As such, there were far reaching implications on the justice system both on courts and the accused. Essentially, this was reflected in extensive unfairness in rulings, and the process. For instance, the report indicated that the accused were forced to plead guilty to charges and at times to abandon cases for lack of representation. This is due to frustrations or for the safety from incurring the very expensive legal fees. In other situations, individuals could not pursue their legal right in courts seeking to sought out issues with legal connotation in other avenues such as the police (Law Council of Australia, 2004). As such, those represented have a greater chance of reaching a more consensual decision compare to the unrepresented who make uninformed decisions and sometimes lead to prolonging of proceedings (Australian Law Reform Commission, 2000). The latter implies additional expenses. The former was linked to the lack of advice on legal matters. Corroborating Craigie (2005), the Council also reported an increased tendency for cases that are inadequately prepared. Due to such tendencies self-represented litigants are unlikely to have best possible outcomes in cases. The inability to be adequately articulate in cross examination during criminal and family law cases often demands the help of the bench. However, in order to stress the need for representation, in Dietrich it was indicated that the prosecution and bench have a duty of care in ensuring a fair trial. However, the bench ruled out that the judges and prosection should not advice the accused. This is linked to the indication that their function does not accommodate advising the accused before litigation starts, in the process and at the end (O'Neill et al, 2004). An attempt to advise the accused through the litigation process contradicts the functions. Conclusions The decision of Justice Toohey in Dietrich v R in 1992 set a precedence for the practice of common law in Australia with regard to representation. Fair trial, as provided for in the Charter must include representation in an independent court. However, there are situations in which the accused may not afford legal fees. Previously the justice system demanded that the accused go on with the litigation process. This was demonstrated in McInnes v R (1979). However, this paper supports Toohey’s judgement that self-representation is unfair and is likely to yield to unfavorable outcomes. This is so especially in serious cases where there is complexity of issues in the process and likelihood of a serious punishment. That notwithstanding, reviewed literature has indicated that there has been erosion of public-funded representation owing to increased need amidst scarce resources in legal aid offices such VLA. References ACT Legislative Assembly. (2008). Sexual and Violent Offences Legislation Ammendment Bill 2008: Explanatory Statement . ACT Parliamentary Council. Australian Law Reform Commission. (2000). Managing Justice: A review of the Federal Civil Justice System, Report No. 89. Canberra : AGPS. Craigie, C. (2005). Unrepresented Litigants : The Criminal Justice Perspective. Sydney : Public Defenders office . Fairall, P. (1992). Trial Without Counsel: Dietrich v the Queen . Bond Law Review, 4(2) , 235- 241. Law Council of Australia. (2004). Erosion of Legal Representation in the Australian Justice System . Canberra: Law Council of Australia. Ljupco Slaveski v Paul Smith and Victoria Legal Aid , 2012 VSCA 25 (Supreme Court of Victoria February 29, 2012). McInnes v R (1979) Legal Aid Act 1978, available at http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt6.nsf/DDE300B846EED9C7CA257616000A3571/F1DCCEF6C2FF4762CA2579A4000F2BDF/$FILE/78-9245a054bookmarked.pdf O'Neill, N., Rice, S., & Douglas, R. (2004). Retreat from injustice : human rights law in Australia 2nd Ed. Annandale: Federation Press. Read More