• Survive Law

Dietrich v The Queen (1992) 177 CLR 292

Criminal Law, The right to legal representation Facts; Olaf Dietrich accrued multiple charges before the County Court of Melbourne under the Customs Act 1901 (Cth). On multiple occasions, Dietrich tried to secure legal representation. Initially, he applied to the Legal Aid Commission of Victoria for representation, but it was denied. Upon review of that refusal, Dietrich was directed to make an application under s 69(3) of the Judiciary Act 1903 (Cth) to have counsel appointed by a judge. Subsequently, he applied for legal assistance from the Commonwealth Minister of Justice and the Attorney General. Unbelievably all of these attempts failed, and after a lengthy trial, Dietrich was convicted of importing a trafficable quantity of heroin into Australia in contravention of s 233B(1)(b) of the Customs Act. Dietrich appealed, arguing that the failure of the trial judge to appoint counsel was a grave miscarriage of justice. Leave to appeal was rejected by the Victorian Court of Criminal Appeal, and the case escalated to the High Court. Application; Dietrich argued that the trial judge has the discretion to stay or adjourn the trial to allow him to seek legal counsel and that in the absence of exceptional circumstances discretion should have been exercised in Dietrich's favour. Although the main grounds for his appeal was that he was denied the right to be provided with counsel, the High Court established such a conclusion to be unfounded. The High Court affirmed that the right was to retain counsel, not to have it provided by the state, delineating a precise difference between retaining counsel and counsel provided by the state. Holding; [It] should be accepted that Australian law does not recognise that an indigent (wow, shade) accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive a fair trial.


[A trial judge faced with an application for an adjournment or stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured...a judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented...In all other cases of serious crimes, the remedy of adjournment should be granted in order that representation can be obtained.] (Mason and McHugh J at 311).