Dietrich v The Queen
High Court of Australia
Date decided	November 13, 1992
Full case name	Dietrich v The Queen
Citations	(1992) 177 CLR 292, [1992] HCA 57
Judges sitting	Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ
Case history
Prior actions:	R v Dietrich [1988] VCCA 152 – appeal in the Supreme Court of Victoria
Subsequent actions:	none
Case opinions
(5:2) where an accused charged with a serious offence is (through no fault of their own) unable to obtain legal representation, any application for an adjournment or stay should be granted (unless there are exceptional circumstances) and the trial delayed until legal representation is available (per Mason CJ, Deane, Toohey, Gaudron & McHugh JJ) (5:2) if in such circumstances an application for an adjournment or stay is refused, and as a result the trial is an unfair one, the conviction must be overturned (per Mason CJ, Deane, Toohey, Gaudron & McHugh JJ) High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ... Image File history File links Australia_coa. ... November 13 is the 317th day of the year (318th in leap years) in the Gregorian Calendar, with 48 days remaining. ... 1992 (MCMXCII) was a leap year starting on Wednesday. ... This page is about the Australian Chief Justice. ... Sir Gerard Brennan, was born in Rockhampton, Queensland, on 22 May 1928. ... Sir William Deane The Honourable Sir William Patrick Deane AC KBE (born 4 January 1931), Australian judge and 22nd Governor-General of Australia, was born in Melbourne, Victoria. ... Sir Daryl Dawson AC KBE CB (born 1933), Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997. ... John Leslie Toohey - Wikipedia /**/ @import /skins/monobook/IE50Fixes. ... Mary Genevieve Gaudron (born 5 January 1943) was the first female judge of the High Court of Australia. ... Justice Michael Hudson McHugh (1935- ) QC AC a former justice of the High Court of Australia; the highest court in the Australian court hierarchy. ... The Supreme Court of Victoria is located on the corner of Lonsdale and William Streets, Melbourne - the same intersection as the Melbourne Magistrates Court and the County Court of Victoria. ...

Dietrich v The Queen was an important case decided in the High Court of Australia on November 13, 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. High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ... November 13 is the 317th day of the year (318th in leap years) in the Gregorian Calendar, with 48 days remaining. ... 1992 (MCMXCII) was a leap year starting on Wednesday. ... The Right to a fair trial is an essential right in all countries respecting the rule of law. ... Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. ... Australian criminal law is originally based on English common law, and from there is adapted depending on the results from important cases, and from legislation in parliament. ... Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Australian Constitution. ... Human rights are rights which some hold to be inalienable and belonging to all humans. ... The Commonwealth of Australia Constitution Act 1900 (in full, An Act to constitute the Commonwealth of Australia) is the primary constitutional text of the Commonwealth of Australia. ...

Background to the case

On 17 December 1986, the accused, a career criminal named Olaf Dietrich, flew from Bangkok, Thailand to Melbourne Airport. He had imported at least seventy grams of heroin, which he concealed within condoms 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.^[1] December 17 is the 351st day of the year (352nd in leap years) in the Gregorian Calendar. ... 1986 (MCMLXXXVI) was a common year starting on Wednesday of the Gregorian calendar. ... Bangkok from the Chao Phraya River at sunset, July 2004 The Wat Phra Kaew temple Bangkok, known in Thai as Krung Thep ( ), or Krung Thep Maha Nakhon (Krung Thep Maha Nakhon is the abbreviation of its full ceremonial name Krung Thep Mahanakhon Amon Rattanakosin Mahinthara Ayuthaya Mahadilok Phop Noppharat Ratchathani... Melbourne Airport (IATA: MEL, ICAO: YMML) is located to the north of the city, adjacent to the suburb of Tullamarine, Victoria, Australia. ... Heroin or diacetylmorphine (INN) is a semi-synthetic opioid. ... A condom sealed in typical packaging A condom is a device, usually made of latex or more recently polyurethane, that is used during sexual intercourse to reduce the risk of pregnancy and/or some sexually transmitted diseases (STDs) such as gonorrhea, syphilis and HIV. Condoms are also often used to... The Australian Federal Police (AFP) is the federal or Commonwealth police force of Australia. ... HM Prison Pentridge was an Australian prison built in 1850 and located in Coburg, Victoria. ...

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. The trial lasted about 40 days, during which the accused had no legal representation and was forced to represent himself. 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 since he had waited more than fourteen days to apply. Although Dietrich proved surprisingly adept in conducting his own trial - and in fact secured an acquittal on some 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.^[1] The County Court of Victoria is located in the legal precinct of Melbournes central business district, opposite the Supreme Court and Melbourne Magistrates Court. ... The Supreme Court of Victoria is located on the corner of Lonsdale and William Streets, Melbourne - the same intersection as the Melbourne Magistrates Court and the County Court of Victoria. ... The County Court of Victoria is located in the legal precinct of Melbournes central business district, opposite the Supreme Court and Melbourne Magistrates Court. ... High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ...

Arguments

In his High Court appeal Dietrich was represented by David Grace, Q.C., on a pro bono basis. 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. High Court entrance The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. ... The official portrait of former Canadian Prime Minister Kim Campbell, who was made Queens Counsel as Justice Minister in 1992. ... Pro bono is a phrase derived from Latin meaning for the good. The complete phrase is pro bono publico, for the public good. It is used to designate legal or other professional work undertaken voluntarily and without payment, as a public service. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ...

Mugshot of Hugo Rich, formerly known as Olaf Dietrich, on his arrest on May 12, 2005.

May 12 is the 132nd day of the year in the Gregorian Calendar (133rd in leap years). ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ...

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, which provides 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".^[2] 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, 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".^[3] 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".^[4] This article or section does not cite its references or sources. ... United Nations - Wikipedia, the free encyclopedia /**/ @import /skins-1. ... The International Covenant on Civil and Political Rights is a United Nations treaty based on the Universal Declaration of Human Rights, created in 1966. ... The European Convention on Human Rights (1950) was adopted under the auspices of the Council of Europe† to protect human rights and fundamental freedoms. ...

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."^[1] Site #86: Memphis and its Necropolis, including the Pyramids of Giza (Egypt). ... Commonwealth v Tasmania (popularly known as the Tasmanian Dams Case) was a significant Australian court case, decided in the High Court of Australia on July 1, 1983. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... European Court of Human Rights building in Strasbourg The European Court of Human Rights, often referred to informally as the Strasbourg Court, was created to systematise the hearing of human rights complaints from Council of Europe member states. ...

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."^[5] However, this did not necessarily mean that counsel had to be provided by the state. Amendment VI (the Sixth Amendment) of the United States Constitution guarantees rights related to criminal prosecutions in federal courts. ... Image of the United States Bill of Rights from the U.S. National Archives and Records Administration. ...

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-ups (United States v. Wade).^[6] Powell v. ... The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... // Capital Punishment, or the death penalty, is the most severe punishment that can be imposed by the State for crimes known as capital crimes or capital offenses. ... Gideon v. ... The Fourteenth Amendment to the United States Constitution is one of the post-Civil War amendments and includes the Due Process and Equal Protection Clauses. ... Holding The fifth Amendment privilege against self-incrimination requires law enforcement officials to advise a suspect interrogated in custody of his rights to remain silent and to obtain an attorney. ... A police lineup is a process by which a crime victim or witnesss putative identification of a suspect is confirmed to a level that can count as evidence at trial. ...

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",^[7] and Canadian case law has found that as a corollary of this right, there is a right to legal aid. 10. ... The Charter, signed by Prime Minister Pierre Trudeau in 1981. ... Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. ...

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.

The High Court also 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. 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? Moreover, 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 adjournment 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. In chess, adjournment of a game involves suspending it and postponing it until later, typically the following day. ...

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. A jury is a sworn body of persons convened to render a rational, impartial verdict and a finding of fact on a legal question officially submitted to them, or to set a penalty or judgment in a jury trial of a court of law. ...

Judgment

By a majority of five to two, 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 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 establishes the separation of powers, and vests judicial power exclusively in the courts, requires that judicial process and fairness be observed. Sir William Deane The Honourable Sir William Patrick Deane AC KBE (born 4 January 1931), Australian judge and 22nd Governor-General of Australia, was born in Melbourne, Victoria. ... Mary Genevieve Gaudron (born 5 January 1943) was the first female judge of the High Court of Australia. ... The separation of powers(or trias politica, a term coined by French political thinker Montesquieu) is a model for the governance of the state. ...

Another two judges, Justice Brennan and Justice Dawson, dissented, arguing that it would not be proper for judges to use their power to adjourn trials in order to put pressure on the various legal aid agencies to change their decisions. Moreover, the trial judges had explicitly told the jury on several occasions to take into account the fact that Dietrich was unrepresented. Sir Gerard Brennan, was born in Rockhampton, Queensland, on 22 May 1928. ... Sir Daryl Dawson AC KBE CB (born 1933), Australian judge and naval officer, was a Justice of the High Court of Australia from 1982 to 1997. ...

Consequences

The High Court ordered that the verdict of the original trial be overturned, and that a retrial be conducted. However, there was never any retrial since Dietrich had already served his sentence. Dietrich was released on parole in July 1990, and he quickly changed his name to Hugo Rich. He has subsequently been jailed for a range of offences including armed robbery and threatening to kill a detective. As of 2005, Rich is in Port Phillip Prison, awaiting trial on firearm charges. He is also being investigated for the murder of security guard Erwin Katsenberger during an armed robbery in Blackburn North, Victoria on March 8, 2005. Parole can have different meanings depending on the context. ... Robbery is the crime of seizing property through violence or intimidation. ... 2005 is a common year starting on Saturday of the Gregorian calendar. ... Port Phillip Correctional Centre is a maximum security prison located at Laverton, Victoria, Australia. ... Blackburn North is a suburb of Australia, in the state of Victoria. ... March 8 is the 67th day of the year in the Gregorian Calendar (68th in Leap years). ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ...

The case reinvigorated debate about who should be provided with legal aid. Although there are no precise figures about the effect of the decision on legal aid budgets, a Senate inquiry determined that the decision had the potential to divert legal aid funding towards criminal cases at the expense of civil or family law matters.^[8] However, legal aid funds across the country noted that the Dietrich principles had not yet had any significant impact on the budgets of the legal aid funds. Australian Senate chamber Entrance to the Senate The Australian Senate is the upper of the two houses of the Parliament of Australia. ...

The Government of Victoria, under Premier Jeff Kennett, suggested to the inquiry that the principle would lead to delays in trials and would undermine the credibility of the legal system. As such, the Parliament of Victoria passed legislation amending the Crimes Act 1958 to allow judges to directly order that legal aid funding be granted, rather than to simply order a stay. However, the impact of this legislation is uncertain, since Victoria Legal Aid told the Senate inquiry that in most cases where a judge ordered that funding be granted, they would have done so anyway. The form of the Government of Victoria is prescribed in its Constitution, which dates from 1855, although it has been amended many times since then. ... List of Premiers of Victoria Before the 1890s there was no formal party system in Victoria. ... Hon Jeff Kennett Jeffrey Gibb Kennett AC (born 2 March 1948), Australian politician, was Premier of Victoria from 1992 to 1999. ... The Parliament of Victoria is a bicameral legislature. ...

References

1. ^ ^a b c Dietrich v The Queen. Australasian Legal Information Institute. URL accessed on 8 December 2005.
2. ^ Crimes Act 1958 - Sect 397. Australasian Legal Information Institute. URL accessed on 8 December 2005.
3. ^ International Covenant on Civil and Political Rights. Office of the High Commissioner for Human Rights. URL accessed on 5 December 2005.
4. ^ Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe. URL accessed on 5 December 2005.
5. ^ CRS/LII Annotated Constitution Sixth Amendment. Legal Information Institute. URL accessed on 8 December 2005.
6. ^ History of Right to Counsel. National Legal Aid and Defender Association. URL accessed on 5 December 2005.
7. ^ Constitution Act, 1982. Department of Justice, Canada. URL accessed on 8 December 2005.
8. ^ Implications of the Dietrich decision. Australian Senate Inquiry into the Australian Legal Aid System. URL accessed on 8 December 2005.

December 8 is the 342nd day (343rd in leap years) of the year in the Gregorian calendar. ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ... December 8 is the 342nd day (343rd in leap years) of the year in the Gregorian calendar. ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ... December 5 is the 339th day (340th in leap years) of the year in the Gregorian calendar. ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ... December 5 is the 339th day (340th in leap years) of the year in the Gregorian calendar. ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ... December 8 is the 342nd day (343rd in leap years) of the year in the Gregorian calendar. ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ... December 5 is the 339th day (340th in leap years) of the year in the Gregorian calendar. ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ... December 8 is the 342nd day (343rd in leap years) of the year in the Gregorian calendar. ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ... December 8 is the 342nd day (343rd in leap years) of the year in the Gregorian calendar. ... 2005 (MMV) was a common year starting on Saturday of the Gregorian calendar. ...

See also

• Gideon_v._Wainwright. Analogous case in United States Constitutional law.

Gideon v. ...

External links

• "Hugo Rich chose the low road", The Age, June 10, 2005.
• "National hunt for murder suspect", Herald Sun, June 10, 2005.