Dietrich v The Queen
Encyclopedia
Dietrich v The Queen was an important case decided in the High Court of Australia
on 13 November 1992. It concerned the nature of the right to a fair trial
, and under what circumstances indigent defendants (defendants who cannot afford legal representation) should be provided with legal aid
by the state. The case determined that although there is no absolute right to have publicly funded counsel, in most circumstances a judge should grant any request for an adjournment or stay when an accused is unrepresented. It is an important case in Australian criminal law
, and also in Australian constitutional law
, since it is one of a number of cases in which some members of the High Court have found implied human rights
in the Australian Constitution.
, Thailand
to Melbourne Airport
. He had imported at least seventy grams of heroin, which he concealed within condom
s that he had swallowed. He was arrested the next morning by the Australian Federal Police
, who searched his flat and found one of the condoms in the kitchen, and some heroin in a plastic bag under a rug in another room. He was taken into custody, and passed the remainder of the condoms during the night at the hospital in Pentridge Prison. Dietrich alleged that the drugs had been planted by the police.
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. During the lengthy trial the accused had no legal representation. Although he had applied to the Legal Aid Commission of Victoria for assistance, they said that they would only help him if he pleaded guilty, an option which Dietrich did not want to take. He applied to the Supreme Court of Victoria
for legal assistance, but was again turned down. Although Dietrich was acquitted of the fourth charge—regarding the possession of a quantity of heroin separate to that which was involved in the first three charges—he was convicted of the principal charge in the County Court
. Dietrich brought an appeal in the Supreme Court, but that court refused to hear his appeal. He then sought leave to appeal to the High Court of Australia
.
appeal Dietrich was represented by David Grace, QC
. The main argument advanced on Dietrich's behalf was that his trial was a miscarriage of justice, since he did not have legal representation. He argued that he should have been provided with counsel at public expense, given the seriousness of the crime
with which he was charged. Alternatively, he argued that the judge should have stayed or adjourned the trial until he was able to obtain counsel himself. His argument was based on the common law
tradition that an accused is entitled to a fair trial.
The second source that Dietrich proposed was Australia's obligations under international law
, particularly under the United Nations
International Covenant on Civil and Political Rights
(ICCPR), to which Australia is a signatory. Article 14(3) of the Covenant provides that an accused should have legal assistance provided for them "in any case where the interests of justice so require". Article 6 of the European Convention of Human Rights, to which Australia is not a party, also guarantees that defendants should be provided with legal aid "when the interests of justice so require".
Australia has not incorporated the ICCPR into its domestic law with any specific legislation, unlike some other international treaties, such as World Heritage
treaties (see Commonwealth v Tasmania
). However, Dietrich argued that the common law
of Australia should be developed in accordance with the principles in the ICCPR, as well as other international treaties to which Australia is a party. This is the approach used in the United Kingdom, in relation to decisions of the European Court of Human Rights
, for example. But the court pointed out that this practice was usually done in relation to interpreting legislation, and in this case the court was being asked "to declare that a right which has hitherto never been recognised should now be taken to exist."
The third source that Dietrich suggested was a group of similar cases in other common law countries such as the United States and Canada. In the United States, the right to counsel was guaranteed in the Sixth Amendment to the United States Constitution
, part of the United States Bill of Rights
. The Amendment says that "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." However, this did not necessarily mean that counsel had to be provided by the state.
In the case of Powell v. Alabama
in 1932, the United States Supreme Court held that the court must provide counsel to defendants in capital trials, that is trials where capital punishment
was a possible sentence, if the defendants were too poor to afford their own counsel. In Johnson v. Zerbst
(1938), the Supreme Court expanded this principle to cover all federal trials, and in Gideon v. Wainwright
(1963) the Court held that under the Fourteenth Amendment
, the principle also applied to State courts. More recently, the Supreme Court has recognised the right of people to have counsel at other stages of criminal investigations. For example, the court has affirmed the right of indigent defendants to have counsel provided for them in interrogation after they have been arrested (Miranda v. Arizona
), and for line-up
s (United States v. Wade
).
In Canada, Section Ten
of the Canadian Charter of Rights and Freedoms
guarantees the right "to retain and instruct counsel without delay and to be informed of that right", and Canadian case law has found that as a corollary of this right, there is a right to legal aid
.
Although it is common for Australian courts to acknowledge developments in other common law countries, including the United States and Canada, the law in those countries on the right to counsel were based on particular provisions of the Constitutions or Bills of Rights
of those countries. Australia did not, and still does not, have any such provisions of rights in either the Constitution or in legislation. In taking this into account, it was argued by the court that:
The High Court also examined a number of related propositions. In particular, they pointed out that when interpreting the legislation which established legal aid services, Australian courts did not recognise an absolute right to counsel in all circumstances, and thus the State does not need to provide counsel for the duration of the trial. The court also raised the question of what a right to counsel would actually mean in practice: that is, would a right to counsel at public expense entitle a person to counsel of a certain degree of experience? Furthermore, the court suggested that having a right to representation would necessarily imply that a trial conducted without the accused being legally represented would necessarily be unfair, an idea which has been rejected by the Australian courts. The accused must have lost a "real chance of acquittal" before a trial can be regarded as unfair. Essentially, Australian common law recognised a right to a fair trial, but the question of whether the lack of representation caused an unfair trial had to be based on the particular circumstances of each case.
until Dietrich was able to provide counsel himself, and that the failure to do so caused a miscarriage of justice. Dietrich had asked the trial judge for an adjournment during the trial, but the judge said that since more than a year had passed since the offence occurred, it was in the interests of the community that the matter be dealt with promptly.
The High Court said that the trial judge did not seem to be aware that he had the authority to adjourn the trial. Another factor which complicated the case was that although the jury
found Dietrich guilty of importing the heroin in the condoms, they found him not guilty of owning the heroin which had been hidden in a plastic bag. For the High Court, this uncertainty meant that it was possible that Dietrich could also have been acquitted of the other charges, if he had been legally represented:
Significantly, the possibility that Dietrich may have been acquitted differentiates this case from the unsuccessful 1979 McInnis v R. appeal. McInnis, like Dietrich, had appealed to the High Court against his conviction, arguing that the failure to adjourn the proceedings while McInnis sought legal representation resulted in a miscarriage of justice. However, the majority in the McInnis appeal found that McInnis was very unlikely to have been acquitted, even with full representation. This was clearly not the case with Dietrich.
Two of the judges, Justice Deane
and Justice Gaudron
, went further and suggested that the right to representation in some circumstances is founded in the Constitution. They said that Chapter Three of the Constitution, which represents the Judicature with the notion of separation of powers
, and vests judicial power exclusively in the courts, requires that judicial process and fairness be observed.
Another two judges, Justice Brennan
and Justice Dawson
, dissented, Justice Brennan arguing that it would not be proper for judges to use their power to adjourn trials to put pressure on the various legal aid agencies to change their decisions.
As a result of the majority decision, the court ordered that the application to appeal be granted, that the conviction be quashed, and that there be a new trial.
inquiry agreed that the decision had the potential to divert legal aid funding towards criminal cases at the expense of civil or family law matters. Among the solutions to these problems were proposals for the state legal aid commissions to maintain "emergency funds" that could be used in major criminal cases; the South Australia
n Criminal Law (Legal Representation) Act 2002, which was designed to allow the courts to seize a defendant's assets to prevent false claims under the Dietrich principle; and the introduction of legislation in the Parliament of Victoria
amending the Crimes Act 1958 to allow judges to directly order that legal aid funding be granted, rather than to simply order a stay.
in July 1990, and he subsequently changed his name by deed poll to Hugo Rich.
In 1995 he was convicted of three armed robberies and jailed for 13 years. Upon appeal two of those convictions were quashed and retrials were ordered, while a third was upheld. Only one of these counts was retried, and once again a guilty verdict was returned. In 2001 he was eligible for day leave, and he gained media attention by leaving the decision as to whether or not he should be allowed to do so up to the readers of the Herald Sun
. A poll conducted by that newspaper returned a convincing "no".
After his release in October 2004, he once again faced court for firearms charges and, later, for the murder
of security guard Erwin Kastenberger during an armed robbery in Blackburn North, Victoria
on 8 March 2005. He was found guilty of the murder of Erwin Kastenberger in the Supreme Court of Victoria on 12 June 2009, and he was subsequently jailed for life with a non-parole period of 30 years.
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
on 13 November 1992. It concerned the nature of the right to a fair trial
Right to a fair trial
The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
, and under what circumstances indigent defendants (defendants who cannot afford legal representation) should be provided with legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
by the state. The case determined that although there is no absolute right to have publicly funded counsel, in most circumstances a judge should grant any request for an adjournment or stay when an accused is unrepresented. It is an important case in Australian criminal law
Australian criminal law
The criminal law of Australia generally administered by individual jurisdictions in the Commonwealth of Australia. These jurisdictions include the six states, the Commonwealth, and the self-governing territories...
, and also in Australian constitutional law
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....
, since it is one of a number of cases in which some members of the High Court have found implied human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
in the Australian Constitution.
Background to the case
On 17 December 1986, the accused, a career criminal named Olaf Dietrich, flew from BangkokBangkok
Bangkok is the capital and largest urban area city in Thailand. It is known in Thai as Krung Thep Maha Nakhon or simply Krung Thep , meaning "city of angels." The full name of Bangkok is Krung Thep Mahanakhon Amon Rattanakosin Mahintharayutthaya Mahadilok Phop Noppharat Ratchathani Burirom...
, Thailand
Thailand
Thailand , officially the Kingdom of Thailand , formerly known as Siam , is a country located at the centre of the Indochina peninsula and Southeast Asia. It is bordered to the north by Burma and Laos, to the east by Laos and Cambodia, to the south by the Gulf of Thailand and Malaysia, and to the...
to Melbourne Airport
Melbourne Airport
Melbourne Airport , also known as Tullamarine Airport, is the primary airport serving the city of Melbourne and the second busiest in Australia. It was opened in 1970 to replace the nearby Essendon Airport. Melbourne Airport is the sole international airport of the four airports serving the...
. He had imported at least seventy grams of heroin, which he concealed within condom
Condom
A condom is a barrier device most commonly used during sexual intercourse to reduce the probability of pregnancy and spreading sexually transmitted diseases . It is put on a man's erect penis and physically blocks ejaculated semen from entering the body of a sexual partner...
s that he had swallowed. He was arrested the next morning by the Australian Federal Police
Australian Federal Police
The Australian Federal Police is the federal police agency of the Commonwealth of Australia. Although the AFP was created by the amalgamation in 1979 of three Commonwealth law enforcement agencies, it traces its history from Commonwealth law enforcement agencies dating back to the federation of...
, who searched his flat and found one of the condoms in the kitchen, and some heroin in a plastic bag under a rug in another room. He was taken into custody, and passed the remainder of the condoms during the night at the hospital in Pentridge Prison. Dietrich alleged that the drugs had been planted by the police.
Dietrich was tried in the County Court of Victoria
County Court of Victoria
The County Court of Victoria was established in 1852 by the County Courts Act 1852. The court has jurisdiction in the State of Victoria, Australia...
in 1988 for a trafficking offence under the Customs Act 1901 and certain less serious charges. During the lengthy trial the accused had no legal representation. Although he had applied to the Legal Aid Commission of Victoria for assistance, they said that they would only help him if he pleaded guilty, an option which Dietrich did not want to take. He applied to the Supreme Court of Victoria
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...
for legal assistance, but was again turned down. Although Dietrich was acquitted of the fourth charge—regarding the possession of a quantity of heroin separate to that which was involved in the first three charges—he was convicted of the principal charge in the County Court
County Court of Victoria
The County Court of Victoria was established in 1852 by the County Courts Act 1852. The court has jurisdiction in the State of Victoria, Australia...
. Dietrich brought an appeal in the Supreme Court, but that court refused to hear his appeal. He then sought leave to appeal to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
.
Arguments
In his High CourtHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
appeal Dietrich was represented by David Grace, QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
. The main argument advanced on Dietrich's behalf was that his trial was a miscarriage of justice, since he did not have legal representation. He argued that he should have been provided with counsel at public expense, given the seriousness of the crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
with which he was charged. Alternatively, he argued that the judge should have stayed or adjourned the trial until he was able to obtain counsel himself. His argument was based on the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
tradition that an accused is entitled to a fair trial.
The right to a fair trial
Dietrich suggested three different sources in law for the right to counsel that he asserted. The first was section 397 of the Victorian Crimes Act 1958, (now repealed), which provided that "every accused person shall be admitted after the close of the case for the prosecution to make full answer and defence thereto by legal practitioner". However, the court found that this provision only means that an accused is entitled to counsel paid for by themselves or someone else, and not counsel provided by the state.The second source that Dietrich proposed was Australia's obligations under international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, particularly under the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
(ICCPR), to which Australia is a signatory. Article 14(3) of the Covenant provides that an accused should have legal assistance provided for them "in any case where the interests of justice so require". Article 6 of the European Convention of Human Rights, to which Australia is not a party, also guarantees that defendants should be provided with legal aid "when the interests of justice so require".
Australia has not incorporated the ICCPR into its domestic law with any specific legislation, unlike some other international treaties, such as World Heritage
World Heritage Site
A UNESCO World Heritage Site is a place that is listed by the UNESCO as of special cultural or physical significance...
treaties (see Commonwealth v Tasmania
Commonwealth v Tasmania
Commonwealth v Tasmania 158 CLR 1, was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia...
). However, Dietrich argued that the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of Australia should be developed in accordance with the principles in the ICCPR, as well as other international treaties to which Australia is a party. This is the approach used in the United Kingdom, in relation to decisions of the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
, for example. But the court pointed out that this practice was usually done in relation to interpreting legislation, and in this case the court was being asked "to declare that a right which has hitherto never been recognised should now be taken to exist."
The third source that Dietrich suggested was a group of similar cases in other common law countries such as the United States and Canada. In the United States, the right to counsel was guaranteed in the Sixth Amendment to the United States Constitution
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
, part of the United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. The Amendment says that "In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." However, this did not necessarily mean that counsel had to be provided by the state.
In the case of Powell v. Alabama
Powell v. Alabama
Powell v. Alabama was a United States Supreme Court decision which determined that in a capital trial, the defendant must be given access to counsel upon his or her own request as part of due process.-Background of the case:...
in 1932, the United States Supreme Court held that the court must provide counsel to defendants in capital trials, that is trials where capital punishment
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
was a possible sentence, if the defendants were too poor to afford their own counsel. In Johnson v. Zerbst
Johnson v. Zerbst
Johnson v. Zerbst, 304 U.S. 458 , was a United States Supreme Court case, in which the petitioner, Johnson, had been convicted in federal court of feloniously possessing, uttering, and passing counterfeit money in a trial where he had not been represented by an attorney but instead by himself...
(1938), the Supreme Court expanded this principle to cover all federal trials, and in Gideon v. Wainwright
Gideon v. Wainwright
Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...
(1963) the Court held that under the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, the principle also applied to State courts. More recently, the Supreme Court has recognised the right of people to have counsel at other stages of criminal investigations. For example, the court has affirmed the right of indigent defendants to have counsel provided for them in interrogation after they have been arrested (Miranda v. Arizona
Miranda v. Arizona
Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...
), and for line-up
Police lineup
A police lineup or identity parade is a process by which a crime victim or witness's putative identification of a suspect is confirmed to a level that can count as evidence at trial....
s (United States v. Wade
United States v. Wade
United States v. Wade, 388 U.S. 218 was a case decided by the Supreme Court of the United States that held that a criminal defendant has a Sixth Amendment right to counsel at a lineup held after indictment.-Factual background:...
).
In Canada, Section Ten
Section Ten of the Canadian Charter of Rights and Freedoms
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
guarantees the right "to retain and instruct counsel without delay and to be informed of that right", and Canadian case law has found that as a corollary of this right, there is a right to legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
.
Although it is common for Australian courts to acknowledge developments in other common law countries, including the United States and Canada, the law in those countries on the right to counsel were based on particular provisions of the Constitutions or Bills of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
of those countries. Australia did not, and still does not, have any such provisions of rights in either the Constitution or in legislation. In taking this into account, it was argued by the court that:
The High Court also examined a number of related propositions. In particular, they pointed out that when interpreting the legislation which established legal aid services, Australian courts did not recognise an absolute right to counsel in all circumstances, and thus the State does not need to provide counsel for the duration of the trial. The court also raised the question of what a right to counsel would actually mean in practice: that is, would a right to counsel at public expense entitle a person to counsel of a certain degree of experience? Furthermore, the court suggested that having a right to representation would necessarily imply that a trial conducted without the accused being legally represented would necessarily be unfair, an idea which has been rejected by the Australian courts. The accused must have lost a "real chance of acquittal" before a trial can be regarded as unfair. Essentially, Australian common law recognised a right to a fair trial, but the question of whether the lack of representation caused an unfair trial had to be based on the particular circumstances of each case.
Miscarriage of justice
Dietrich's other argument was that the trial judge should have used discretionary powers and granted an adjournmentAdjournment
An adjournment is a suspension of proceedings to another time or place. To adjourn means to suspend until a later stated time or place.-Law:In law, to adjourn means to suspend proceedings to another time or place, or to end them....
until Dietrich was able to provide counsel himself, and that the failure to do so caused a miscarriage of justice. Dietrich had asked the trial judge for an adjournment during the trial, but the judge said that since more than a year had passed since the offence occurred, it was in the interests of the community that the matter be dealt with promptly.
The High Court said that the trial judge did not seem to be aware that he had the authority to adjourn the trial. Another factor which complicated the case was that although the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
found Dietrich guilty of importing the heroin in the condoms, they found him not guilty of owning the heroin which had been hidden in a plastic bag. For the High Court, this uncertainty meant that it was possible that Dietrich could also have been acquitted of the other charges, if he had been legally represented:
Significantly, the possibility that Dietrich may have been acquitted differentiates this case from the unsuccessful 1979 McInnis v R. appeal. McInnis, like Dietrich, had appealed to the High Court against his conviction, arguing that the failure to adjourn the proceedings while McInnis sought legal representation resulted in a miscarriage of justice. However, the majority in the McInnis appeal found that McInnis was very unlikely to have been acquitted, even with full representation. This was clearly not the case with Dietrich.
Judgment
The majority in the High Court decided that although there was no right at common law to have publicly provided legal representation in all cases, in some cases representation is appropriate to ensure a fair trial. 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.Two of the judges, Justice Deane
William Deane
Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in...
and Justice Gaudron
Mary Gaudron
Mary Genevieve Gaudron, AC, QC , Australian lawyer and judge, was the first female Justice of the High Court of Australia.-Youth:...
, went further and suggested that the right to representation in some circumstances is founded in the Constitution. They said that Chapter Three of the Constitution, which represents the Judicature with the notion of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, and vests judicial power exclusively in the courts, requires that judicial process and fairness be observed.
Another two judges, Justice Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank Brennan....
and Justice Dawson
Daryl Dawson
Sir Daryl Michael Dawson, AC, KBE, CB Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997.-Education:...
, dissented, Justice Brennan arguing that it would not be proper for judges to use their power to adjourn trials to put pressure on the various legal aid agencies to change their decisions.
As a result of the majority decision, the court ordered that the application to appeal be granted, that the conviction be quashed, and that there be a new trial.
Consequences
The case reinvigorated debate about who should be provided with legal aid, and raised the possibility that those charged with serious offences could escape conviction if legal aid was not provided. This placed pressure on the legal aid authorities to fund these cases, and fears emerged that they would need to pull funds from other cases to meet the new demands, especially when faced with "complex criminal cases" which may entail high costs over extended periods of time. Although there are no precise figures about the effect of the decision on legal aid budgets, a SenateAustralian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
inquiry agreed that the decision had the potential to divert legal aid funding towards criminal cases at the expense of civil or family law matters. Among the solutions to these problems were proposals for the state legal aid commissions to maintain "emergency funds" that could be used in major criminal cases; the South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
n Criminal Law (Legal Representation) Act 2002, which was designed to allow the courts to seize a defendant's assets to prevent false claims under the Dietrich principle; and the introduction of legislation in the Parliament of Victoria
Parliament of Victoria
The Parliament of Victoria is the bicameral legislature of the Australian state of Victoria. It follows a Westminster-derived parliamentary system and consists of The Queen, represented by the Governor of Victoria; the Legislative Council ; and the Legislative Assembly...
amending the Crimes Act 1958 to allow judges to directly order that legal aid funding be granted, rather than to simply order a stay.
Olaf Dietrich
Although the High Court ordered that the verdict of the original conviction be overturned and that a retrial be conducted, there was never any retrial since Dietrich had already served his sentence. Dietrich was released on paroleParole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
in July 1990, and he subsequently changed his name by deed poll to Hugo Rich.
In 1995 he was convicted of three armed robberies and jailed for 13 years. Upon appeal two of those convictions were quashed and retrials were ordered, while a third was upheld. Only one of these counts was retried, and once again a guilty verdict was returned. In 2001 he was eligible for day leave, and he gained media attention by leaving the decision as to whether or not he should be allowed to do so up to the readers of the Herald Sun
Herald Sun
The Herald Sun is a morning tabloid newspaper based in Melbourne, Australia. It is published by The Herald and Weekly Times, a subsidiary of News Limited, itself a subsidiary of News Corporation. It is available for purchase throughout Melbourne, Regional Victoria, Tasmania, the Australian Capital...
. A poll conducted by that newspaper returned a convincing "no".
After his release in October 2004, he once again faced court for firearms charges and, later, for the murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
of security guard Erwin Kastenberger during an armed robbery in Blackburn North, Victoria
Blackburn North, Victoria
Blackburn North is a suburb in Melbourne, Victoria, Australia, 17 km east from Melbourne's central business district. Its Local Government Area is the City of Whitehorse. At the 2006 Census, Blackburn North had a population of 6816....
on 8 March 2005. He was found guilty of the murder of Erwin Kastenberger in the Supreme Court of Victoria on 12 June 2009, and he was subsequently jailed for life with a non-parole period of 30 years.