Choose one of the following cases to read and summarise.
1.A Solicitor v Law Society of New South Wales (2004) 216 CLR 253
2.Dietrich v The Queen (1992) 177 CLR 292
3.Roach v Electoral Commissioner (2007) 233 CLR 162
Briefly outline the procedural history, material facts, legal issues and judgment/s (reasons for the decision and dissenting judgments if there are any). Is the case still current law? If so, give an example of how has it been applied since.
Facts and Procedural Background
A habitual offender Olaf Dietrich was apprehended by Authorities at Melbourne, Australia. He was travelling from Thailand and was transporting a total of 70g of Heroin by swallowing the same while the substance was concealed by condoms. The agency that apprehended him was the Australian Federal Police who were the federal government’s law enforcement body. The substances were found at his residence and he was subsequently taken into custody where he excreted the same. The rebuttal offered by Olaf Dietrich was that the controlled substances had been planted by the authorities. Due to this Olaf Dietrich refused to enter a guilty plea and was denied legal representation by various legal agencies that provided people with legal representation. Thus Olaf Dietrich would be defending himself.
Olaf Dietrich was first brought before the County Court of Australia where he was acquitted of the fourth charge. He was charged under the Customs Act, 1901. He was found guilty of all other charges her. Olaf Dietrich subsequently applied to the Supreme Court of Victoria where he sought adequate legal representation but the same was denied as he refused to enter into a guilty plea. Thus following this rejection of legal representation he appealed to the High Court of Australia.
In this case, the primary issue before the High Court of Australia was the determination of the extent of the right to a fair trial. Olaf Dietrich who has been applying for adequate representation from the first instance that he was produced before court. However at every stage of the trial he was denied sufficient representation because of his constant refusal to enter a guilty plea and enter into plea bargaining. However, in case of the High Court of Australia he received representation from one David Grace, who argued that Olaf Dietrich had not received a fair trial. David Grace stated that the judgment delivered by the trial and subsequent courts in Olaf Dietrich’s case was that he had not been provided adequate representation at the expense of the court which he was entitled to due to the gravity of the charges brought against him. Thus it was ultimately a gross miscarriage of justice and the same would not be applicable as every offender is entitled to a fair trial. Due to the fact that Olaf Dietrich had not received legal representation at the court’s expense the judgments against him would not stand as a judgment delivered without a fair trial amounts to a miscarriage of justice. This contention was founded on a common law principle that states that every offender has the right to a fair trial.
In support of his contentions, David Grace first cited Section 397 of the Victorian Crimes Act 1958 which provided that an offender would be entitled to legal representation. However this contention was rejected by the court stating that this provision only provided that the offender had the right to paid legal representation. This representation could be paid by the offender or another person or any other entity. However, the same would not mean that the state would have to provide paid legal representation for the offender. David Grace then provided for the obligations of Australia under international conventions which must be observed by them. In reference to this, he cited Article 14 (3) of the International Covenant on Civil and Political Rights (ICCPR). This states that in the interest of justice where it is required to provide the defendant with adequate legal representation the same should be borne by the state when required. Following this obligation the state would have to provide legal representation for the offender and in the absence of the same it would be considered that the offender had not been given his right to a fair trial and thus eventually it would lead to the judgment being a miscarriage of justice and hence would amount to an absolute travesty of justice. This means that the trial would not stand in court and thus it would mean that the offender would be made to serve a sentence that he is not entitled to. This ultimately means that the entire process of judicial determination has failed to aid the most important legal principle which is equality before the law. However, Australia does not incorporate International Covenant on Civil and Political Rights (ICCPR).
The determination of the court was that under Australian laws and under common law principles offenders do not have the right to a state sponsored attorney in anyway. He has the right to legal representation but the same does not necessarily have to be provided by the state that is prosecuting him. However it was determined that in the interests of justice it may be inferred that adequate legal counsel is a right of the offender and thus in cases where it is necessary in the court would have to adjourn the trial and thus would have to wait till a legal aid agency to provide sufficient legal representation to the offender. In this sense, the appeal was thus allowed by the court and all charges against the defendant were quashed.
This is a landmark judgment dealing with the right to a fair trial and the right of an offender to gain adequate representation. Thus, in this case it was laid down that if in the interests of justice the accused needs special legal representation the court would have to adjourn the case till the same is provided by a legal aid agency. This principle is similar to the judgment laud down in Gideon v. Wainwright and this principle is also followed in the same case. Thus this lays down an individual’s right to a fair trial and to obtain adequate representation in order to rebut the charges brought against him.
Brooks, Thom. "The right to trial by jury." The Right to a Fair Trial. Routledge, 2017. 83-98.
Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." Melb. UL Rev. 40 (2016): 207.
Giannnoulopoulos, Dimitrios. "Fair trial rights in the UK post Brexit: out with the Charter and EU law, in with the ECHR?." New Journal of European Criminal Law 7.4 (2016): 387-396.
Namakula, Catherine S. "Language rights in the minimum guarantees of fair criminal trial." Language and the Right to Fair Hearing in International Criminal Trials. Springer, Cham, 2014. 71-99.
Naylor, Bronwyn. "Protecting the human rights of prisoners in Australia." (2013).
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