(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)
Judge(s) sitting Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ
Dietrich v The Queen is an important legal case that was decided in
High Court of Australia
1 Background to the case 2 Arguments
2.1 The right to a fair trial 2.2 Miscarriage of justice
3 Judgment 4 Consequences
4.1 Olaf Dietrich
5 See also 6 Notes 7 References 8 External links
Background to the case
On 17 December 1986, the accused, a career criminal named Olaf
Dietrich (born 1952), 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 excreted the remaining condoms during the night at the hospital in
Pentridge Prison. Dietrich alleged that the drugs had been planted by
Dietrich was tried in the
County Court of Victoria
Mugshot of Hugo Rich, formerly known as Olaf Dietrich, on his arrest on 12 May 2005
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Victorian Crimes Act 1958, (now repealed), which provided that "every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, particularly under the United Nations
International Covenant on Civil and Political Rights
"In this respect, our constitutional law differs from the constitutional law of some of the great common law countries which, by incorporating a Bill of Rights in their Constitutions, have empowered their Courts to construe broadly expressed guarantees of individual rights to include a right to counsel. Having no comparable constitutional foundation, the Courts of this country cannot translate the rights declared by the Courts of those other countries into the municipal law of Australia."
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 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. 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:
"Central to this conclusion is the not guilty verdict returned by the jury on count four. The evidence against the applicant appears strong on all counts but, in circumstances where the jury found him not guilty on one count, how can this Court conclude that, even with the benefit of counsel, the applicant did not have any prospect of acquittal on count one, of which he was then deprived by being forced to trial unrepresented?"
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.
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
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.
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 Senate 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 Australian 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
Gideon v. Wainwright, analogous case in U.S. constitutional law
^ a b c d e f g h i j k l m n o p q r s
Dietrich v The Queen
Anderson, Paul; Buttler, Mark (16 August 2001). "Robber's life a charade: Crime cash paid for rich transformation". Herald Sun. p. 4. Anderson, Paul; Buttler, Mark (17 August 2001). "Your Verdict: No Way". Herald Sun. p. 1. Butcher, Steve (12 June 2009). "Notorious criminal Hugo Rich found guilty of security guard's murder". The Age. Retrieved 23 June 2010. Doyle, John; Wells, Belinda (1999). "Can the Common Law Protect Human Rights?". In Alston, Phillip. Promoting Human Rights Through Bills of Rights: Comparative Perspectives. Oxford University Press. pp. 17–74. ISBN 0-19-825822-4. Fairall, Paul Ames (1992). "Trial Without Counsel: Dietrich v the Queen" (PDF). Bond Law Review. 4 (2): 235–241. Retrieved 23 June 2010. Fife-Yeomans, Janet (12 November 1998). "Family law pays to defend criminals". The Australian. p. 3. Gibson, Frances (2003). "Legal Aid: A decade after Dietrich". Law Society Journal. 41 (4). Grace, David (2001). "Civil Liberties Under Threat". University of Western Sydney Law Review. 5 (1). Retrieved 20 March 2009. Hunt, Elissa (13 November 2009). "Hugo Rich gets life sentence for Kastenberger murder". Herald Sun. Archived from the original on 15 November 2009. Retrieved 13 November 2009. Kemp, Miles (16 September 1998). "Move on court costs 'overkill'". The Advertiser. p. 11. Kinley, David (1998). Human rights in Australian law: principles, practice and potential. Federation Press. ISBN 1-86287-306-2. Silvester, John (10 June 2005). "Hugo Rich chose the low road". The Age. Retrieved 8 October 2007. Wilkinson, Geoff (6 March 2009). "Bandits fled in seconds". Herald Sun. p. 33. Zines, Leslie (2008). The High Court and the Constitution. Federation Press (5 ed.). Annandale, NSW: Federation Press. ISBN 1-86287-691-6.
"National hunt for murder suspect". Herald Sun. 1