Peter Daniels Clarke v Commonwealth Director of Public Prosecutions [1999] ACTSC 42 (10 May 1999)

Last Updated: 17 June 1999

PETER DANIELS CLARKE v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [1999] ACTSC 42 (10 May 1999)

CATCHWORDS

CRIMINAL PROCEDURE - committal for trial - application for permanent stay of complex committal proceedings - whether Dietrich principle applicable to committal proceedings - unrepresented indigent defendant - refusal of Legal Aid assistance - lack of representation at committal potentially prejudicial to fair trial - defendant subject to serious medical condition - prejudicial effect of delay in finalizing legal proceedings - Dietrich principle not applicable to committal proceedings.

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

The Queen v Gakhar [1999] ACTSC 31 (21 April 1999), considered

Fuller v Field [1994] SASC 4586; (1994) 62 SASR 112, applied

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

Wilson and Grimwade (1994) 73 A Crim R 190, referred to

No. SC 861 of 1998

Judge: Higgins J

Supreme Court of the ACT

Date: 10 May 1999

IN THE SUPREME COURT OF THE )

) No. SC 861 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PETER DANIELS CLARKE

Plaintiff

AND: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Defendant

ORDER

Judge: Higgins J

Date: 10 May 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The application be refused.

1. The applicant, Peter Daniels Clarke, is a business man without previous criminal record. He is presently the subject of committal proceedings in the ACT Magistrates Court. The charges arise out of the liquidation of Burns Philp Trustee Company (Canberra) Limited ("Burns Philp").

2. The applicant has applied before me for a stay of those proceedings. This is, I accept, a different application from that decided by Miles CJ on 24 September 1998. That had sought a temporary stay, until at least 4 January 1999.

3. It was foreshadowed, at that stage, that an application for legal aid made by the applicant would, by then, be determined by the Legal Aid Office (ACT).

4. It has now been determined that legal aid for the committal proceedings will not be given. Indeed, it is by no means certain that legal aid for the trial, if there is one, will be forthcoming.

5. The history of the matter up until 24 September 1998 is detailed in the Chief Justice's judgment of that date.

6. Some things have not changed since then. So far as can be ascertained, the applicant remains the subject of committal proceedings. No end to them is yet in sight, though estimates vary. I consider none of them to be reliable. That should not be taken as a criticism of either party. It is a difficulty compounded by the fact that the applicant is self-represented.

7. I note that the applicant was taken into custody to be extradited to this country from the United States on 28 August 1997. He appeared in the ACT Magistrates Court on 18 March 1998. He was not given bail until 14 September 1998.

8. That, in itself, has created a further anomaly. That anomaly was highlighted by the Chief Justice in a subsequent decision of 5 March 1999. As an extradited person, the applicant is not eligible for social security benefits. He may not seek employment. The DPP has undertaken to pay the applicant reasonable living and medical expenses. The conflict of interest inherent in that relationship was adversely commented on by His Honour in that decision.

9. The Director of Public Prosecutions (Cth) ("DPP") has attempted to distance himself from the arrangement by interposing another agency. That agency, however, acknowledges itself bound to conform to guidelines imposed by the DPP.

10. As Crispin J noted on 25 September 1998 in the course of granting a variation of the applicant's bail conditions, there has also been evidence of at least, "unwise" attempts by the DPP's responsible officer, Mr Taggart, to intimidate possible sureties of the applicant who may also be witnesses.

11. The applicant, not unreasonably, fears that those persons and, perhaps, others may be reluctant to come to Australia to testify if the DPP intends to explore the option of prosecuting them if they do so. Such fears are compounded by the fact that, to date, the applicant has been denied effective legal counsel, a right considered enshrined in the Bill of Rights, part of the United States Constitution.

12. It may well be that, had the extraditing authorities been aware that the applicant would be forced in this country, on complex committal proceedings (not less than seventy lever arch folders of documents and seventy witnesses - one witness statement being 322 pages) to proceed without a lawyer, extradition might have been denied. The applicant complains that he is even denied a daily transcript. The prosecution does not dispute that.

13. There are difficult legal issues involving evidence which may be unlawfully or improperly obtained or subject to client/lawyer privilege. I do not purport to express any view about that, save to say that I accept that the issues are complex and very risky for a non-lawyer to attempt to deal with. The applicant might well find he has inadvertently waived privilege or made an admission against interest merely by cross-examination, quite apart from so-called "without prejudice" conferences with the DPP's representatives.

14. The applicant complains that lack of representation at committal, which is indisputably not of his seeking, could prejudice the fair trial of whatever counts against him may be found to warrant committal for trial.

15. It must be acknowledged that, in a case of this length and complexity, such a fear cannot be regarded as fanciful. The point must be made, however, that whether any deficiency in the trial process can be cured by a trial judge cannot now be known with any certainty.

16. To take but one example. The applicant has been told, he says, by the Crown, that it intends to tender at trial the depositions of witnesses from outside Australia who have given evidence at committal. However, it should not be assumed, if that course would deny an opportunity to properly cross-examine those witnesses, that a trial judge would permit that course.

17. It may well be that lack of resources will prevent the applicant from following up favourable leads arising from testimony at committal. Again, the impact of that circumstance on a trial cannot presently be known.

18. There was, or perhaps still is, a proposal by the Crown to take evidence from overseas witnesses in the United States. The Crown would oppose the applicant's bail being extended to enable him to be present at the examination of such witnesses. He would have to engage counsel yet would, even if counsel was provided, be unable adequately to brief that counsel.

19. Again, whether a trial judge would admit such evidence is unknown. If it was considered unjust or unfair to do so, it may be assumed that a trial judge would refuse so to do.

20. The same observation would apply to any proposal by the Crown to call at trial evidence not adduced at all at committal. It is, therefore, unnecessary to explore the nature and extent of the obligation on the prosecution not only to disclose all its evidence before trial but also to expose that evidence to scrutiny and where appropriate, cross-examination.

21. There are two matters not susceptible of remedy by a trial judge. The first is the applicant's medical condition. The evidence, not contradicted otherwise than by unsubstantiated assertion, is that the applicant suffers from cardiac arrhythmia. He has an implanted pacemaker. There was an example of a serious medical emergency arising from this condition on 12 June 1998.

22. The second matter is the lapse of time since the applicant's arrest. The applicant has already spent over twelve months in custody as a result of these proceedings. As at 28 August 1999, he will have spent two years either in custody or under virtual house arrest in exile.

23. The trial, if it should be required, could not be scheduled before next year. The Crown suggests it would take not less than six months. If the committal is any indication, that could well be an under estimate.

24. There is no evidence to contradict the applicant's assertion that he is, relevantly, indigent. His access to such assets as he might otherwise have is inhibited by parallel civil proceedings.

25. If these proceedings were a trial or if a trial was pending, a strong case might well exist for the application of Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292: see, for example, The Queen v Gakhar [1999] ACTSC 31 (21 April 1999).

26. The prosecution suggests that this application is premature. It submits that the Dietrich principle does not apply to committal proceedings.

27. I consider that I am bound to uphold that submission. Although the prosecution did not refer to it, I note that Miles CJ, in the course of his refusal of a temporary stay on 24 September 1998 held, on the authority of Fuller v Field [1994] SASC 4586; (1994) 62 SASR 112 and State of New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309, that Dietrich had no application to committal proceedings.

28. It does not end there. There was an appeal to a full Federal Court. Again, the prosecution did not consider it necessary to refer me to that decision. The applicant referred to it in passing in his affidavit of 9 December 1998. Although ex tempore, Gallop, Madgwick and Katz JJ upheld the decision of Miles CJ, though expressing no view as to whether his Honour was correct in holding that Dietrich did not apply to committal proceedings.

29. For my part, I do not consider, as a single judge of this Court, that I should depart from the view expressed in Fuller's case or in Canellis.

30. It follows that the refusal of legal aid and lack, in consequence, of the assistance of counsel at committal is not a sufficient reason to grant the relief sought, even if potential injustice to the applicant can be identified.

31. However, as Miles CJ noted, it was recognised in Fuller's case that a superior court could stay even committal proceedings if they are shown to constitute an abuse of process.

32. Miles CJ said at 7, however:

"The circumstances in which a court will interfere with the progress of a criminal proceeding prior to the conclusion of a trial are rare."

33. Since Miles CJ considered this matter, the applicant has been released on bail. His preparations for the committal hearing, though hampered by his lack of legal representation, are no longer inhibited by conditions in custody.

34. Nor are the proceedings any longer constrained by the presence of a co-accused. Thus, in terms of addressing the need for the applicant to have a fair trial, it is unnecessary to consider the right to justice without delay of any other person. The former co-accused will, however, be a potential witness for the prosecution.

35. I also note from a recent affidavit of the applicant, filed on 23 April 1999, that some pro bono legal assistance has been given to the applicant. However, that assistance cannot, in the light of the complexity and length of the matter, be extensive, nor will it provide adequate representation. Even less than usual rates of remuneration have been refused by the Legal Aid Office.

36. It is estimated by the applicant that the committal might last another ninety days. The prosecution neither confirms nor denies this estimate, though it claims its case will take only another ten days. As I have said, I feel no sense of confidence that these estimates will not be exceeded.

37. The situation whereby a US citizen is extradited to another country and is thereby deprived not only of his constitutional right to counsel but also is subject to almost indeterminate detention in a foreign country, even if not in strict custody, is disturbing indeed. I share the applicant's sense of disquiet and injustice. However, it must also be borne in mind that serious accusations are made against the applicant. The Crown has the right to expose these accusations for proper determination.

38. It may be that no committal results. If so, the applicant will have lost over two years of his life. On the other hand, given the public interest in pursuing criminal charges which are, prima facie, both reasonably arguable and serious, that is not yet so much of a burden as to be such an imposition on the applicant as to make the proceedings, as a whole, an abuse of process. Nor has the conduct of the Crown to date been such as to support a conclusion that the proceedings have become oppressive or otherwise an abuse of process.

39. Though protracted, these proceedings have not yet assumed the proportions of the Wilson and Grimwade case (1994) 73 A Crim R 190.

40. Accordingly, I do not consider that a ground currently exists to stay these proceedings permanently. That does not preclude a further application should circumstances alter materially. It does not lessen, either, the concerns that would be aroused if committal for trial ensues but no adequate representation is then afforded, or if it then appears that the conduct of the committal proceedings without the applicant having had the benefit of counsel has resulted in a denial of the applicant's right to a fair trial.

41. The application is refused.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 10 May 1999

Counsel for the Plaintiff: Plaintiff in person

Counsel for the Defendant: Mr R Maidment

Solicitor for the Defendant: Commonwealth Director of Public Prosecutions

Dates of Hearing: 14 & 16 December 1998; 18 January 1999; 20 April 1999

Date of Judgment: 10 May 1999