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In 1992, the landmark judgment by the High Court of Australia in Dietrich (Dietrich v The Queen (1992) 177 CLR 292) extended the common law right to a fair trial, more accurately stated as the right not to be tried unfairly, to require trial judges, subject to the below considerations, to adjourn, postpone or stay a trial to allow an unrepresented accused to obtain legal representation. The High Court ruling did not, however, go so far as to provide a clear right to legal representation.
Olaf Dietrich was forced to represent himself in the Victorian County Court on serious drug offences, including importing a trafficable quantity of heroin and possession of heroin. Legal aid was denied on the ground that Mr Dietrich had no real prospects of acquittal.
During the trial, Mr Dietrich repeatedly complained about having to represent himself. One interesting exchange between Mr Dietrich and the judge during trial was exemplified in the High Court ruling as follows:
His Honour: I want you to understand this, Mr Dietrich – if you will listen to me – that I have no power to give you legal representation.
Accused: You have the power to adjourn the matter, sir.
His Honour: I don’t propose to adjourn the matter. The matter is an alleged offence, which occurred the year before last, and it is desirable that the matter proceed to trial.
Accused: Desire by whose side?
His Honour: Desirable to the community.
Accused: The community has got no interest in it. If the community is aware that they’re putting people in front of a court without representation, the community would be aghast.
His Honour: Yes. Well, I don’t propose to engage in this type of matter; this debate can get us nowhere.
The trial lasted approximately 40 days. Without formal legal training, Mr Dietrich was successful in defending one charge of possession, although found guilty of trafficking.
Mr Dietrich’s appeal of conviction ultimately went to the High Court. The acquittal on one charge was central to the decision of the High Court, with the High Court noting that the acquittal disproved any claim that Mr Dietrich had no real prospect of acquittal.
The rule in Dietrich applies where (1) the offence charged is a “serious” offence; (2) the accused is unable to obtain legal representation through no fault of their own; and (3) the accused wishes to be represented.
While the term “serious offence” was not defined in Dietrich, the term is generally accepted to mean indictable offences. The South Australian Supreme Court found, generally, that ‘offences carrying a penalty of imprisonment should be regarded as “serious”’ (Weinel v Fedcheshen (1995) 65 SASR 156).
Ultimately, whether a case is stayed on the Dietrich principle will depend on the circumstances of the case and any risk of a substantial miscarriage of justice. Legislation in many jurisdictions now provides for an accused to be represented through legal assistance schemes. See, for example: s 197 Criminal Procedure Act 2009 (VIC), s 6 Criminal Law (Legal Representation) Act 2001 (SA).
In 1992, the landmark judgment by the High Court of Australia in Dietrich (Dietrich v The Queen (1992) 177 CLR 292) extended the common law right to a fair trial, more accurately stated as the right not to be tried unfairly, to require trial judges, subject to the below considerations, to adjourn, postpone or stay a trial to allow an unrepresented accused to obtain legal representation. The High Court ruling did not, however, go so far as to provide a clear right to legal representation.
Olaf Dietrich was forced to represent himself in the Victorian County Court on serious drug offences, including importing a trafficable quantity of heroin and possession of heroin. Legal aid was denied on the ground that Mr Dietrich had no real prospects of acquittal.
During the trial, Mr Dietrich repeatedly complained about having to represent himself. One interesting exchange between Mr Dietrich and the judge during trial was exemplified in the High Court ruling as follows:
His Honour: I want you to understand this, Mr Dietrich – if you will listen to me – that I have no power to give you legal representation.
Accused: You have the power to adjourn the matter, sir.
His Honour: I don’t propose to adjourn the matter. The matter is an alleged offence, which occurred the year before last, and it is desirable that the matter proceed to trial.
Accused: Desire by whose side?
His Honour: Desirable to the community.
Accused: The community has got no interest in it. If the community is aware that they’re putting people in front of a court without representation, the community would be aghast.
His Honour: Yes. Well, I don’t propose to engage in this type of matter; this debate can get us nowhere.
The trial lasted approximately 40 days. Without formal legal training, Mr Dietrich was successful in defending one charge of possession, although found guilty of trafficking.
Mr Dietrich’s appeal of conviction ultimately went to the High Court. The acquittal on one charge was central to the decision of the High Court, with the High Court noting that the acquittal disproved any claim that Mr Dietrich had no real prospect of acquittal.
The rule in Dietrich applies where (1) the offence charged is a “serious” offence; (2) the accused is unable to obtain legal representation through no fault of their own; and (3) the accused wishes to be represented.
While the term “serious offence” was not defined in Dietrich, the term is generally accepted to mean indictable offences. The South Australian Supreme Court found, generally, that ‘offences carrying a penalty of imprisonment should be regarded as “serious”’ (Weinel v Fedcheshen (1995) 65 SASR 156).
Ultimately, whether a case is stayed on the Dietrich principle will depend on the circumstances of the case and any risk of a substantial miscarriage of justice. Legislation in many jurisdictions now provides for an accused to be represented through legal assistance schemes. See, for example: s 197 Criminal Procedure Act 2009 (VIC), s 6 Criminal Law (Legal Representation) Act 2001 (SA).
In 1994, a NSW Court of Criminal Appeal case, R v Small (1994) 22 NSWLR 575, found that the court must still consider the interests of justice as well as the interests of the accused, even when the accused may be at fault for the absence of legal representation.
In Small, there had been some misunderstanding between Mr Small and his legal representatives which resulted in them deciding not to represent him at trial. Real attempts to secure representation at the last minute had failed. Subsequently, at trial, Mr Small complained on multiple occasions that he was not getting a fair trial due to having no legal representation. The jury also expressed concerns about the lack of legal representation in a note to the judge. The judge continued the trial and Mr Small was convicted of two counts of armed robbery.
The Court of Appeal found the trial judge should have balanced the interests of justice and the interests of Mr Small, and ‘ought very seriously to consider whether an accused should be forced on without [representation] in [a] case in which there is a reasonable possibility that he may obtain [representation] … without unbearable delay’. The convictions were quashed.
In 2006, then Justice Kirby of the High Court of Australia defended the decision in Dietrich, stating ‘Surely [a person’s] liberty should not depend upon the means of a person. Ultimately, to force an unrepresented person to defend a serious criminal charge without a lawyer is a form of cruel and unusual punishment.’
If you believe your right to a fair trial has not been provided, you should seek advice from a lawyer.
In 1994, a NSW Court of Criminal Appeal case, R v Small (1994) 22 NSWLR 575, found that the court must still consider the interests of justice as well as the interests of the accused, even when the accused may be at fault for the absence of legal representation.
In Small, there had been some misunderstanding between Mr Small and his legal representatives which resulted in them deciding not to represent him at trial. Real attempts to secure representation at the last minute had failed. Subsequently, at trial, Mr Small complained on multiple occasions that he was not getting a fair trial due to having no legal representation. The jury also expressed concerns about the lack of legal representation in a note to the judge. The judge continued the trial and Mr Small was convicted of two counts of armed robbery.
The Court of Appeal found the trial judge should have balanced the interests of justice and the interests of Mr Small, and ‘ought very seriously to consider whether an accused should be forced on without [representation] in [a] case in which there is a reasonable possibility that he may obtain [representation] … without unbearable delay’. The convictions were quashed.
In 2006, then Justice Kirby of the High Court of Australia defended the decision in Dietrich, stating ‘Surely [a person’s] liberty should not depend upon the means of a person. Ultimately, to force an unrepresented person to defend a serious criminal charge without a lawyer is a form of cruel and unusual punishment.’
If you believe your right to a fair trial has not been provided, you should seek advice from a lawyer.
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