Dietrich v The Queen [1992] HCA 57

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Dietrich v The Queen [1992] HCA 57

ORDER Application for special leave to appeal granted. Appeal allowed. Set aside the order of the Court of Criminal Appeal of Victoria. In lieu thereof:

(i) allow the application to that Court for leave to appeal against conviction;

(ii) allow that appeal;

(iii) quash the conviction; and

(iv) order that there be a new trial.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 13 Mason C.J. and McHugh J.

This application for special leave to appeal seeks to raise the question whether the applicant's trial in the County Court at Melbourne miscarried by virtue of the fact that he was unrepresented by counsel. In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.

The applicant is entitled to succeed because his trial miscarried by virtue of the trial judge's failure to stay or adjourn the trial until arrangements were made for counsel to appear at public expense for the applicant at the trial with the consequence that, in all the circumstances of this case, he was deprived of his right to a fair trial and of a real chance of acquittal.

The applicant was found guilty by a jury of one count of importing into Australia not less than a trafficable quantity of heroin in contravention of s. 233B(1)(b) of the Customs Act 1901 Cth. The indictment on which the applicant was presented contained three further counts: two counts, which alleged possession of the heroin the subject of the importation charge, were alternatives to the more serious charge and were not considered once a verdict of guilty had been returned on the importation charge; the third additional count alleged possession of a quantity of heroin which was not the subject of the importation offence, and the applicant was found not guilty on this count. The applicant had pleaded not guilty to all counts.