Peter Daniels Clarke v Director of Public Prosecutions (Commonwealth) [1998] ACTSC 107 (24 September 1998)

Last Updated: 13 October 1999

PETER DANIELS CLARKE v DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) [1998] SCACT 107 (24 September 1998)

CATCHWORDS

CRIMINAL PRACTICE AND PROCEDURE - committal proceedings - application to stay committal proceedings - unrepresented indigent defendant - Dietrich principle does not apply to committal proceedings - lack of legal representation in committal proceedings does not preclude fair trial.

CRIMINAL PRACTICE AND PROCEDURE - committal proceedings - application to stay committal proceedings - abuse of process - complex prosecution case - voluminous evidence - unrepresented defendant - need to prepare for committal hearing - inattentive to prosecution material already served - undesirability of fragmenting criminal proceedings.

Crimes Act 1900 (NSW), s475

Mutual Assistance in Criminal Matters Act 1987 (Cth)

Foreign Evidence Act 1994 (Cth)

International Covenant on Civil and Political Rights

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

The State of New South Wales v Canellis and Others [1994] HCA 51; (1994) 181 CLR 309

Jago v District Court of New South Wales (1989) 168 CLR 23ered

Fuller and Another v Field and State of South Australia (Intervening) [1994] SASC 4586; (1994) 62 SASR 112

Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321

Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75

Greer (1992) 62 A Crim R 442

No. SC 633 of 1998

Coram: Miles CJ

Supreme Court of the ACT

Date: 24 September 1998

IN THE SUPREME COURT OF THE )

) No. SC 633 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PETER DANIELS CLARKE

Applicant

AND: DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

Respondent

ORDER

Judge Making Order: Miles CJ

Where Made: Canberra

Date of Order: 24 September 1998

THE COURT ORDERS THAT:

1. The application be refused.

1. No order as to costs.

3. The second respondent be dismissed from the suit.

1. The applicant, who appears for himself, seeks an order on originating motion that certain committal proceedings against him in the Australian Capital Territory Magistrates Court be stayed until 4 January 1999 or thereafter.

2. The applicant has been charged on information with 82 offences under the Corporations Law of the Commonwealth and 13 offences of a similar nature under the law of the Australian Capital Territory. Warrants were issued on those informations and he was arrested on 28 August 1997 in New York by US marshals executing those warrants. He was held in custody and, according to his affidavit of 18 September 1998, it was not until 28 January 1998 that he was brought before a US magistrate for a hearing on the question of his extradition. The magistrate issued a certificate on that date but there was further delay until 18 March 1998 when he was extradited.

3. On 18 March 1998 the applicant appeared before the Australian Capital Territory Magistrates Court and was formally charged. He was remanded in custody to 24 April 1998. On that date (or on the previous occasion on 18 March) the Chief Magistrate set 1 September 1998 as the date on which the committal proceedings were to commence and further remanded the applicant in custody. On 28 August 1998 the Chief Magistrate commenced to hear an application by the applicant to vacate the date for commencement of the committal proceedings and to postpone the commencement. After four days of hearing during the period 28 August to 7 September 1998 the Chief Magistrate on 7 September 1998 fixed 28 September 1998 as the date on which the committal proceedings should commence. The applicant was further remanded in custody until that date.

4. On 14 September 1998 the applicant was granted bail by this Court. One of the conditions was that third parties give security, in effect as sureties. That condition has not yet been met and the applicant remains in custody at the Belconnen Remand Centre.

5. In his affidavit (as I understand par39) the applicant states or submits that it is in the interests of justice that the commencement of the committal proceedings be postponed until an application for legal aid has been finally determined. He says that if legal aid is refused he will apply for a permanent stay on the principle in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. In the meantime he says that he does not have sufficient time or opportunity in which to prepare himself for the committal proceedings owing to the complexity of the charges and the volume of the evidence to be presented against him. Thus he seeks a temporary stay of the commencement of the committal proceedings to 4 January 1999 or thereafter.

Application of the Dietrich principle

6. The first leg of the applicant's case is that he should be given time in one way or another to enable him to obtain a stay of proceedings until granted legal representation in accordance with the principle in Dietrich. In that respect the application must fail. In The State of New South Wales v Canellis and Others [1994] HCA 51; (1994) 181 CLR 309, the majority of the High Court said at 328:

"......the principle established by [Dietrich] is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation. As the majority judgments made clear, that principle is based on, and derives from, the accused's right to a fair trial.

There is no suggestion in the majority judgments that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings ......"

7. Although Canellis was not a case directly concerned with committal proceedings but with the rights of a person called as a witness in an inquiry under s475 of the Crimes Act 1900 (NSW) and the passage quoted may be considered obiter so far as it relates to committal proceedings, the words and meaning are clear. The right to a fair trial is not denied by the fact that a person facing committal proceedings is unable to afford legal representation for those proceedings.

8. The applicant relied upon a statement by the Chief Magistrate in September that "a government should not expend the enormous resources in extraditing a foreign national without providing adequate resources for his defence". He submitted that that statement should be taken into account in the light of the general proposition enunciated by Deane J in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 57 that:

"... default or impropriety on the part of the prosecution in pre-trial procedures can, depending upon the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one."

9. However, in my view, neither of these statements, or the two combined, lead to the further proposition that the Dietrich principle in itself applies to committal proceedings and Canellis is direct authority to the contrary.

10. Shortly before Canellis a decision to similar effect was made by the Full Court of the Supreme Court of South Australia in Fuller and Another v Field and State of South Australia (Intervening) [1994] SASC 4586; (1994) 62 SASR 112, although the Full Court recognized the wider power to stay committal proceedings as an abuse of process. That decision is consistent also with Jago. I turn to that aspect.

Opportunity to consider prosecution case

11. In his oral evidence and submissions, the applicant made it clear that, on the assumption that the Dietrich principle did not apply, he sought an order from this Court to stay the hearing of the committal proceedings until he had been given a proper opportunity to consider the case which the prosecution proposes to bring against him. It is necessary to consider the factual background in greater detail.

12. I assume that most if not all charges in the committal proceedings had been laid by the time of the arrest on 28 August 1997 and that at some time between then and the date of the certificate for extradition on 28 January 1998 the applicant had been served with papers which indicated sufficiently for the purposes of the extradition proceedings the nature of the case against him. I note that, according to his oral evidence, the applicant spent US$25,000 to US$50,000 on US lawyers' fees, although it is not clear whether this was spent entirely on their services for the extradition proceedings or whether some of it was directed towards bankruptcy proceedings also in the United States.

13. In September 1997 the applicant, although still incarcerated in the United States, retained a firm of Sydney solicitors (HDY) to act on his behalf.

14. On 24 March 1998, some six days after his extradition, the Commonwealth Director of Public Prosecutions (DPP) served on HDY some 20 (or possibly 22) lever arch files containing material to be used in the committal proceedings on behalf of the prosecution. These files are referred to in the evidence in the present application as Part I of the prosecution brief. At about the same time HDY gave the applicant an estimate of their costs and disbursements in an anticipated bail application, committal hearing and trial, namely $900,000. The applicant withdrew his instructions for those matters but continued to retain HDY for matters "outside the core criminal proceeding".

15. On 24 April 1998 when before the Chief Magistrate for the fixing or confirming of the date of commencement of the committal hearing, the applicant opposed 1 September 1998 as "unrealistic" in view of the conditions of his confinement. The date was fixed after hearing representations by the applicant and also by counsel on behalf of a co-accused person. The applicant repeated his concern about the date for commencement of the hearing on subsequent occasions before the Chief Magistrate.

16. In the meantime the applicant located Canberra solicitors who were prepared to act for him in the committal if he was granted legal aid. He completed a legal aid application form and handed it to his solicitors on about 13 May 1998 and instructed them to file it. However, apparently because of negotiations between the solicitors and the ACT Legal Aid Office, the application was not lodged with the Legal Aid Commission until 17 July 1998.

17. On 24 July 1998 the applicant was notified that his application for legal aid was refused. Although it appears the main reason was the lack of Commonwealth legal aid funds to finance representation at both committal and trial, it seems that the ACT Legal Aid Commission was not entirely satisfied that the applicant lacks funds for representation at the committal. At some stage he informed the DPP that he had access to US$45,000. He also claimed a right to a share in his late father's substantial estate. There was a good deal of evidence of an insubstantial nature before me on these aspects, but in the end it permits of no useful conclusions.

18. On 27 July 1998 the applicant notified the Chief Magistrate and the DPP that he would apply for an adjournment of the committal hearing.

19. On 29 July 1998 the applicant was notified that a number of lever arch files and video tapes had been received at the Belconnen Remand Centre on his behalf. These items comprise the remainder of the material to be put into evidence at the committal hearing on behalf if the prosecution. They have been described in the present application as Part II of the prosecution brief. There are some 18 volumes in Part II, two of which consist of statements by witnesses and the rest are documentary material referred to in the statements and coded for ease of identification.

20. On 25 August 1998 the Sydney solicitors, HDY, delivered Part I of the prosecution brief to the Belconnen Remand Centre. There are four volumes of statements by witnesses and the remainder documentation material as in part II.

21. During this period the applicant was active in discussions and communications with the Canberra solicitors, the Legal Aid Commission, the DPP and the Magistrates Court with regard to his application for legal aid and a foreshadowed application for an adjournment of the committal proceedings. There was a review and further refusal of legal aid on 3 September 1998 (it may have been 21 August 1998). The applicant has appealed against the further refusal and the appeal has not yet been heard by the relevant Legal Aid body.

22. As already indicated, the Chief Magistrate commenced to hear an application for an adjournment of the committal proceedings on 28 August 1998 and on 7 September 1998 effectively adjourned the date for commencement of the committal proceedings to 28 September 1998.

23. The Canberra solicitors then withdrew from the case after rendering a bill for costs and disbursements totalling nearly $10,000.

24. Whether or not contained in Part I or Part II of the prosecution brief the DPP delivered to the applicant a detailed summary of facts in relation to all charges. It was first delivered on September or October 1997 and amended or brought up to date in April 1998 and again on 26 August 1998 and the applicant's then solicitors were notified.

25. The applicant summarises the reasons for which he seeks an adjournment of the committal proceedings until January 1999 as the need for time "to read the brief; to prepare my defence; to finalise my appeal for legal aid; to prepare witnesses for my defence; to apply for government assistance and housing when I go out on bail; to seek medical attention which I need."

26. Because the applicant is not legally represented, his application to this Court should not fail for a merely procedural reason. It was submitted on behalf of the DPP that the application was a thinly disguised appeal against the Chief Magistrate's decision not to grant an adjournment beyond 28 September 1998 and that viewed as such there could be no hope of success in an appeal against a discretionary decision of that nature. There is substance in this submission, but this Court cannot overlook its inherent power, if not responsibility, to exercise supervision over proceedings in other courts and tribunals in order to prevent abuse of process. On the other hand, there is substance in the applicant's submission that, in the absence of legal representation and in the face of such a large number of charges and the huge volume of evidentiary material in Parts I and II, he is simply unable to prepare himself to face the committal proceedings on 28 September 1998.

27. The circumstances in which a court will interfere with the progress of a criminal proceeding prior to the conclusion of a trial are rare. The cases were surveyed and the principles confirmed in Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321 in which Mason CJ said at 339:

"Further, I agree that only in most exceptional circumstances would it be appropriate to grant relief in respect of a decision given by a magistrate in committal proceedings. The delays consequent upon fragmentation of the criminal process are so disadvantageous that they should be avoided unless the grant of relief by way of judicial review can clearly be seen to produce a discernible benefit: Yates v. Wilson (1989) 168 CLR 338."

28. There appears to be some tension between the principle thus stated and the emphasis on the importance to the defence of a properly conducted committal proceedings given by the High Court in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75. Nevertheless there are several factors in this case which I think confirm that the occasion for exercise of the power to stay committal proceedings does not arise. Reliance on the latest International Covenant on Civil and Political Rights does not assist the applicant for reasons given by Kirby P in Greer (1992) 62 A Crim R 442.

29. I accept the applicant's description of the inconvenience, from his point of view, of the arrangements at the Belconnen Remand Centre. He is not given access to the whole of Parts I and II at any time. He is restricted to having two or three volumes at a time. Nevertheless, he is not restricted to the hours in which he has access or otherwise as to his activities in preparation for the committal. He has the use of a computer and the DPP has indicated that he will supply the applicant with discs containing the prosecution brief when the preparation of the discs are complete in about three weeks time.

30. It is unfortunate that the Sydney solicitors kept Part I in their possession until 25 August 1998. But there is no evidence that the delay caused the applicant sufficient concern to try to get the material from the solicitors any sooner. In any event he had had Part II available to him for nearly a month before then and could have utilised the time by directing his attention to the material contained in Part II.

31. It may also be unfortunate that both the Sydney and Canberra solicitors have concentrated their efforts on the periphery of the case, on adjournments, bail applications and the like, instead of considering the substance of the charges and the evidentiary material to support the charges. In fact the Canberra solicitors never opened one of the boxes containing the lever arch files. It is likely that the applicant has had some assistance from their advice and the advice of counsel briefed by them.

32. From reading his affidavits and from listening to the applicant in the witness box, I concluded that he has concentrated his own efforts on these peripheral matters. Whilst I do not doubt for a moment the importance of his application for bail and the need to prepare for it, the fact is that the applicant has spent so much time and attention on matters relating to legal aid and adjournments, that he appears to have underestimated the need to come to grips with the prosecution case against him. The summary of facts appears on the face of it to be a proper statement in the nature of particulars and a very useful base from which to start in order to understand the nature of the charges and the material to be put in evidence to support the charges. The applicant gave me the impression of being an intelligent and articulate person, but, as sometimes happens with pending litigation, he has tended to defer concentrating on the substantial issues in order to concentrate on other matters.

33. I take into account the evidence of the applicant and Dr Rosendahl that he is suffering from a certain type of cardiac arrhythmia. This condition causes him to lose consciousness without warning in what are called "drop attacks". He was put in hospital in New York in September 1992 as a consequence of one of those attacks. A pacemaker was implanted during surgery and he retains that pacemaker at the present time.

34. The applicant says that he has had three drop attacks at the Belconnen Remand Centre, one of them when he was under electronic surveillance. The applicant says further that he suffers from a mental condition known as "panic disorder". His overall condition is controlled by medication, but he says that the medication impairs his ability to concentrate. Dr Rosendahl says that he would have a clearer head if he was not using the medication. There is nothing to indicate, however, that he is incapable or even substantially impaired in his ability to prepare for the committal proceedings by reason of his medication. Dr Rosendahl says that if he is taken off the medication it will have a depressive and unsettling effect and that he would not advise it without the applicant's clear approval.

35. I heard a good deal of evidence about the intention of the DPP to apply to take evidence from certain witnesses abroad pursuant to the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the Foreign Evidence Act 1994 (Cth). That step, however, would not be taken unless and until the applicant is committed for trial.

36. Another factor of importance is that there is a co-accused. If the committal proceedings were to be heard separately, it would be at enormous public expense and with no apparent advantage for the administration of justice. The co-accused, I presume, is ready and willing to face the committal proceedings on 28 September 1998. To force the co-accused to wait another several months so that the applicant can have time to acquaint himself better with the case would not be in the interests of justice. The committal proceedings are expected to take several months and will no doubt be conducted in an orderly way. The DPP may well indicate a time-table or something similar for the progress of the proceedings so that the applicant will know which charges or groups of charges are likely to be dealt with at particular stages. In complex proceedings such as the present appear to be, lawyers for those charged can hardly expect to be completely familiar with everything before the hearing commences, and the unrepresented defendant can hardly expect to be placed in a stronger position. I emphasise for the applicant's benefit that what I have said applies to the committal proceedings. He is no doubt aware that the Legal Aid Office has stated repeatedly that it is unable to fund both a committal and a trial, but that if the applicant is committed for trial, a further application for legal aid for the trial itself will be entertained if made.

37. The application is refused. Unless the DPP wishes to be heard, I propose to make no order as to costs. As I indicated during the hearing, no relief is sought against the Chief Magistrate who is the second respondent and he will be dismissed from the suit.

I certify that this and the ten (10) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 24 September 1998

Counsel for the applicant: Mr. P.D. Clarke in person

Counsel for the respondent: Mr R Maidment

Solicitors for respondent: Commonwealth Director of Public Prosecutions

Dates of hearing: 18 and 23 September 1998

Date of judgment: 24 September 1998