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Fact of the Case

Discuss about the Legal Process for Australian Federal Police.

It is important case of High Court of it Australia where it concerns with the nature of the right to a fair trial and provided with Legal Aid by the state for the indigent defendant who is not able to afford the legal representation[1]. The fact of the case is the accused who is known as a criminal named Dietrich has came to Melbourne from Bangkok Thailand he also carrot 70 grams of heroin which was cancelled with condoms and swallowed it[2].

After arriving in mailbox along with those things the Australian Federal police have arrested him from his flat where they found one of the condoms and some heroine in a plastic bag. Immediately he was taken into the custody and remain of the condoms has been passed on that night at the hospital in vintage prison[3]. However the accused also alleged to the police that they have planted the drugs[4]. The accused was tried in the county Court of Victoria where the court has alleged crimes for the trafficking offence under the Customs Act 1901[5]. At the moment of trial process he has no legal represent. Therefore he had applied for assistance under the Legal Aid commission of Victoria[6]. However the assistance has ask him that if he pleaded for guilty then they will help him but he refused to have the guilty and again apply to the Supreme Court of Victoria but again he was refused. However he was again charged with position of a quantity of heroin and convicted of the principal church in the county Court[7]. Dietrich applied for an appeal in the Supreme Court where the court has denied accepting his appeal and then he was applied for the leave to appeal on the high court of Australia[8].

In this case the accused work represented by David Grace, in the High Court where he has argued about the trial which was miscarriage of Justice due to not having any legal representation[9]. He also added that the accused is charged with 4 offences which were given the seriousness of the crime. Therefore until he being able to obtain any Council for himself a court must adjourned the trial[10].

Dietrich has been added with section 397 of the Victorian crimes Act 1958 where it defined that the accused person must admitted after the close of the case of the prosecution to make public expense and defense should be processed by the legal practitioner[11].

Legal Issues

Dietrich was also again stated with international law which is described under the United Nations International Convenient on Civil and Political Rights where the Article 14(3) has stated that accused must be served with legal assistance as per the interest of the justice and in the third source he also suggested about some similar cases of the common law of United States and Canada in United States the 6 amendment to the United States constitution provide the statement that in the criminal prosecution the accused must obtain the right to have the assistance of counsel for the defense purposes but that doesn’t establishes the meaning where the Council is bound to provide it by the state[12]. In Canada the Section 10 of the Canadian Charter of Rights and Freedoms stated that where it was written and instruct Council without any delay and to be informed of that right however it is a right to Legal Aid[13].

Dietrich also stated about the miscarriage of justice where he mentioned about the use of discretionary powers and granted an adjournment due to the unavailability of the Council himself which has occurred for the miscarriage of Justice[14]. In that matter the High Court has mentioned that the trial judge may not be able to know about the authority to add legal assistance the trial which make the case was more complicated. The Jury has also not able to find about the charges of the accused[15]. He may guilty of importing the heroine in the condoms but if they did not found any guilty then there will be an uncertainty and it will be possible that the accused may also acquitted of the other charges[16].

However regarding this case majority of High Court and decided that the common law has no right to provide any legal assistance to all the cases but there are some exceptions face the assistant is needed for the sitting of appropriate ensure of a fair trial. Though the judges has not provides any legal assistance for the accused due to not having any power to opponent council. However it has been added that for the special cases where the accused is not went to obtain general resistance then it will provide the assistance on the above the accused Dietrich who has mentioned about the right to obtain the legal assistance but in some cases the consequences in the constitution say that the Dietrich's other argument was that the trial judge should have used discretionary powers and granted an adjournment until Dietrich was able to provide counsel himself, and that the failure to do so caused a miscarriage of justice and the judicial power should be processed with judicial application and as per the best interest it must be observed[17].

Judgment

However due to the majority decisions finally the court has granted the appeal for the fair trial where the conviction must be washed and start a new trial[18].

After the conversation after the conviction the accused husband charged with the illegal conducts where he was released after sometime then he changed his name by deed poll to Hugo Rich and again he was charged with three armed robberies and jailed for 13 years.  Later he was released and once again he arrested for firearm charges and murder of security guard Erwin Kastenberger at the time of arms robbery in Victoria. Now he has in jail for lifetime imprisonment of 30 years[19].

According to the case study the issue has identified whether Kate and Karim has liable for any nuisance? Whether the issued infringement notice is applicable for them for having smoking and other nuisance?

According to the case study, the Apartment and Unit Obligation Act 2017 defines the statues for the tenants and residential purposes where the owner or the tenants are bound to follow the rules[20]. This act defines the objects for the prohibition of the offensive and other dangerous conducts which affected the apartment and the unit resident[21].

As per the Part 2 of the Apartment and Unit Obligation Act 2017 stated the facts in the sec-3 about the offenses when any nuisance has caused due to the failure of the obligations by the tenants or the unit residents[22]. If any resident of the apartments has create any nuisance which cause any undue noise or offensive odours or annoyance which affect other apartment residents between 10 pm or Before 6 am then it will be grated as offence to cause a nuisance[23].

The Sec- 4 of the Apartment and Unit Obligation Act 2017 defines the offences to conducts the business activities. It also describe that the apartment residents are must not involve any conducts of business activities from the apartment in any time[24]. Therefore if someone has found to involve with any conducts of offences then that resident will be punished with penalties. Therefore according to the case study, Mrs. Granvile who is the residents of the same apartment where Kate runs her business and when she feel disturbs due to the smoking and loud discussion it maker the nuisance. Therefore according to the Apartment and Unit Obligation Act 2017 it is an offence of under the Sec- 3 of where they are charged with offences to cause a nuisance. It this matter it also included that as Kate is running the business on that apartment therefore according to the Apartment and Unit Obligation Act 2017 she also breach the terms of Apartment and Unit Obligation Act 2017 and under the Sec- 4 of this act she has made the offences of conduct business activities[25]. Now the liabilities will lies for both of Kate and Karam[26]. Now the police has also issued infringement notice to them under the Sec 3 and 4 of Apartment and Unit Obligation Act 2017[27].

Issue

According to the case study, Kate runs her business where she teaches to newly arrived migrants from 8-9 pm in every morning and on that day of the situation she was teaching one of her student Karam until 10.30pm. Now as they are smoking and discussing in loud voice their neighbor from unit 2 Mrs. Granville has been disturbed and due to the nuisance she has informed to the police ad they are charged with the offences of sec-3 and 4 of the Apartment and Unit Obligation Act 2017[28].

According to the Residential Tenancies Act the tenant are have several duties and obligation in Australia[29]. As per the application of the act the tenants are obliged under several duties where they can enjoy the possession of the property after the landlord has handover the property under some circumstances. They have the ownership or the possession of the property for a particular of time was they are allowed to enjoy the undisturbed possession of the tenant property[30]. However there is a particular limitation of the property where they are entitled to enjoy such possession under some circumstances of the tenant property. Even they can enjoy the property against the landlord according to the terms and condition of the agreement. In the case of Worrall v Commissioner of Housing for the Australian Capital Territory [2002][31] the court has found that the tenants are owned to a particular of rights where the landlord has breach the duties and interfere in the rights of the tenant and which make the breach of the tenant agreement[32].

Though the landlords are not obliged to interfere in the possession of the tenant premises but the tenants are not also obliged to cause any nuisance in the tenant property. If they make any conducts of nuisance in the tenant property then the neighbor of the said premises make the interference with tenants[33]. Even they can complain against the activities of them due to the nuisances[34]. They are allowed to create any nuisance in the tenant premises and along with the guests of the tenants are also comes under such obligation where they are must not engaged with any nuisance which cause disturbances towards the neighbors. In the nuisance they are also obliged not to smoke to high which affect the neighbors or residents who are staying the apartments or the near premises. It also consider as nuisance[35].

Rules

However according to the Apartment and Unit Obligation Act 2017 defines the resident who could be the owner, lessee or any person in charge of apartment and the business activities defines the activities where it relates with a running a commercial enterprise and customer related activities. Therefore according to the sec- 3 and 4 of the Apartment and Unit Obligation Act 2017 Kate and Karam has both make the offences where they can be charged with the penalties with $400 and $2400 for the offence to cause a nuisance and offence to conducts business activities[36].

Conclusion

Therefore both of them can use the defenses where they can use the power to enjoy of the property as the tenant who is obliged to enjoy their possession according to the agreement of tenancy[37]. Therefore they are not bound to have any obligation to enjoy the property. As they are discussing about the teaching purposes which is included as business activities therefore they can argue on this matter where teaching is important. However according to the Apartment and Unit Obligation Act 2017 they are liable for the offences of nuisance where they can be charged with the penalties[38].

Reference

Australia, Western. "smoke in NSW strata schemes, and o Assisting to align NSW strata law with the scientific evidence on the harms of." (2015).

Bell, Virginia. "Keeping the criminal law in." Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales, The. Vol. 12. No. 4. Judicial Commission of NSW, 2016.

Christensen, Sharon A. "Incentivising tenants to stay the term–will clawbacks be enforceable?." Australian Property Law Bulletin 29.10 (2014): 177-179.

Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." (2017).

Gabe, Jeremy, and Michael Rehm. "Do tenants pay energy efficiency rent premiums?." Journal of Property Investment & Finance 32.4 (2014): 333-351.

Midford, Richard, et al. "Preventing alcohol harm: Early results from a cluster randomised, controlled trial in Victoria, Australia of comprehensive harm minimisation school drug education." International Journal of Drug Policy 25.1 (2014): 142-150.

Ranieri, Stephen. "Dietrich v the queen: Affirming the right to legal representation." Bulletin (Law Society of South Australia) 39.7 (2017): 18.

Reid, Sacha, et al. "Power, Ethopolitics and Community Relations: Complexities of Living in Multi-owned Properties." Housing, Theory and Society (2017): 1-19.

Vols, Michel, and Marvin Kiehl. "Balancing tenants’ rights while addressing neighbour nuisance in Switzerland, Germany and the Netherlands." European Property Law Journal 4.2 (2015): 85-114.

Ward, Margaret, and Jill Franz. "The provision of visitable housing in Australia: Down to the detail." Social Inclusion 3.2 (2015).

Wood, Helen. "Cultural diversity: Reflections on the role of the judge in ensuring a fair trial." Judicial Officers Bulletin 28.4 (2016): 35.

Worrall v Commissioner of Housing for the Australian Capital Territory [2002] FCAFC 127

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