Write about the Legal Process for Customs Act 1901.
Dietrich v The Queen 17 CLR 292
Facts of the case
The accused, Dietrich, was charged with importing heroine in violation of the statutory provisions laid down under the Customs Act 1901 (Cth) on 17 December 1986. In 1988, the accused was tried in the County Court of Victoria for committing trafficking under the Customs Act 1901 (Cth). During his trial, the accused did not have legal counsel to defend his case. Although he made an application before the Legal Aid Commission of Victoria praying for legal assistance, he was said that legal assistance shall only be provided if he pleads guilty, which was refused by the accused. He further applied before the Supreme Court of Victoria for legal assistance but he was turned down.
The trial judge refused the adjournment application made by the accused on the grounds that he was not likely to be entitled to legal representation with or without an adjournment. After his conviction for contravening the Customs Act 1901 (Cth), Dietrich sought and obtained a leave to appeal before the High Court of Australia on the ground that there was a ‘miscarriage of justice’ during his trial due to the absence of legal representation.
Whether the applicant have a right to have a counsel at public expense
Whether the trial was a miscarriage of justice in the absence of legal representation
Dietrich contended that since he was not provided with legal assistance, his trial was a miscarriage of justice and that having regard to the gravity of the crime with which he was charged; he should have been assisted with a legal counsel at public expense. Dietrich based his contentions on three different sources with respect to his right to counsel. The first source he referred to was section 397 of Victorian Crimes Act 1958 (repealed) that stated that an accused must have a counsel to defend the accused against the prosecution.
However, the court held that this section implied that the accused is required to pay for the counsel themselves and state shall not provide counsel. The second source was the country’s obligations under Article 14(3) of the ICCPR to which Australia is a state party, which provides every accused person with legal assistance in the interest of justice. The third source included certain cases in US where the Sixth Amendment to the United States Constitution which states that all accused, in all criminal proceedings, shall be entitled to legal counsel for their defense.
As per the contention of the accused, the court observed that firstly, the sources cited by the accused does not precisely states that the accused persons shall be provided with legal counsel at the expense of the state. further, the court stated that although it is common for the Australian courts to recognize any legal developments in other countries that are governed by the Common law including the US, the law related to the right to counsel was incorporated into their Constitutions as the right was stipulated in the Bill of rights of the countries. On the other hand, Australia still does not have any such rights incorporated in its Constitution or in any other legislation. The court further asserted that since there is no comparable constitutional foundation, the Australian courts are not empowered to translate the powers declared by the other Common law countries into the municipal law of Australia.
The accused made contention relating to exercise of the discretionary power of the court to adjourn the trial proceeding until the accused was able to arrange counsel himself, which led to injustice. The High Court confirmed that any person who is charge with criminal offense is not entitled to claim a counsel at the expense of the state for trial. However, the right to fair trial being an essential feature of the Criminal Justice System, any person charged with serious offence, appears before the court and wishes to be represented, the court must adjourn to stay the proceedings until the accused arranges a legal counsel, except under exceptional circumstances, where the trial must be proceeded. The court set aside the conviction and allowed the appeal with an order to commence a new trial.
The court explained the majority’s view by asserting that if an indigent person charged with serious offence, makes an application for adjournment before the trial judge, and such person is unable to arrange for a legal counsel, the trial should be adjourned until the accused obtains legal representation. Under such circumstances, if the application for adjournment is refused, due to lack of legal representation available to the accused shall be set aside by any appellate court as such trial would constitute miscarriage of justice, the accused being convicted without any fair trial.
The court had made reference to the legal authorities to explain how the Australian courts are empowered to translate or interpret the laws of other countries such as USA and Canada that are governed by Common law, into the Australian municipal laws.
Justice Brennan and Dawson JJ dissented from the judgment and argued that merely because the court was not empowered to appoint counsel for the accused it shall adjourn the proceedings to prevent unfairness, would amount to refusal of the courts to exercise their jurisdiction and would also stop the progress of the criminal law until public funds were available to hire a legal counsel for the accused. The grant of indefinite adjournment of the trial proceeding would further amount to inconsistency of the courts with their constitutional duty that it is bound to discharge.
Application of the Dietrich judgment
In response to the decision in the Dietrich’s case, Victoria is the only jurisdiction to legislate and incorporate the legislation under section 360A (2) of the Crimes Act 1958 (Vic). The statutory provision empowers the court to direct Victoria Legal Aid to grant legal assistance to an indigent accused person subject to conditions, specified by the court. The court must opine that such direction is necessary in ensuring a fair trial. The subsection of the Act empowers the court to adjourn the proceeding until legal assistance has been granted to the accused person.
Gillers, Stephen. Regulation of Lawyers: Problems of Law and Ethics. Wolters Kluwer Law & Business, 2014.
Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." (2017).
Piper, Alana, and Mark Finnane. "Access to legal representation by criminal defendants in Victoria, 1861-1961." UNSWLJ 40 (2017): 638.
Agan, A., Freedman, M. and Owens, E., 2016. Counsel Quality and Client Match Effects in Indigent Defense.
Flynn, Asher, and Jacqueline Hodgson. "Access to Justice and Legal Aid Cuts: A Mismatch of Concepts in the Contemporary Australian and British Legal Landscapes." (2017).
Dioso-Villa, Rachel, et al. "Investigation to exoneration: A systemic review of wrongful conviction in Australia." Current Issues Crim. Just. 28 (2016): 157.
Tanner, Chantal. "Would Constitutional Entrenchment of the Right to Legal Representation Result in a More Effective Realisation of Legal Aid?." Browser Download This Paper (2016).
Murphy, Bernard, and Camille Cameron. "Access to justice and the evolution of class action litigation in Australia." (2015).