Dietrich v The Queen Case Analysis

This assignment requires a detailed analysis of the case *Dietrich v The Queen*. Students must examine the key legal issues raised, the arguments presented by both sides, the court's judgment, and the implications of this decision for access to legal representation in Australia. The analysis should include discussion of the *ratio decidendi*, *obiter dicta*, dissenting opinions, and the subsequent legislative response in Victoria.

Running head: LEGAL PROCESS
Legal Process
Name of the Student
Name of the University
Author Note

1LEGAL PROCESS
Table of Contents
Dietrich v The Queen 17 CLR 292..................................................................................................2
Facts of the case...............................................................................................................................2
Legal issues......................................................................................................................................2
Arguments........................................................................................................................................2
Judgment..........................................................................................................................................3
Ratio decidendi................................................................................................................................4
Obiter dicta......................................................................................................................................4
Dissent judgments............................................................................................................................5
Application of the Dietrich judgment..............................................................................................5
Reference list...................................................................................................................................6

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Dietrich v The Queen 17 CLR 292
Facts of the case
The accused, Dietrich, was charged with importing heroine in violation of the statutory
provisions laid down under the Customs Act 1901 (Cth) on 17 December 1986. In 1988, the
accused was tried in the County Court of Victoria for committing trafficking under the Customs
Act 1901 (Cth). During his trial, the accused did not have legal counsel to defend his case.
Although he made an application before the Legal Aid Commission of Victoria praying for legal
assistance, he was said that legal assistance shall only be provided if he pleads guilty, which was
refused by the accused. He further applied before the Supreme Court of Victoria for legal
assistance but he was turned down1.
The trial judge refused the adjournment application made by the accused on the grounds
that he was not likely to be entitled to legal representation with or without an adjournment. After
his conviction for contravening the Customs Act 1901 (Cth), Dietrich sought and obtained a
leave to appeal before the High Court of Australia on the ground that there was a ‘miscarriage
of justice’ during his trial due to the absence of legal representation2.
Legal issues
Whether the applicant have a right to have a counsel at public expense
Whether the trial was a miscarriage of justice in the absence of legal representation
1 Gillers, Stephen. Regulation of Lawyers: Problems of Law and Ethics. Wolters Kluwer Law & Business, 2014.
2 Murphy, Bernard, and Camille Cameron. "Access to justice and the evolution of class action litigation in
Australia." (2015).

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Arguments
Dietrich contended that since he was not provided with legal assistance, his trial was a
miscarriage of justice and that having regard to the gravity of the crime with which he was
charged; he should have been assisted with a legal counsel at public expense. Dietrich based his
contentions on three different sources with respect to his right to counsel3. The first source he
referred to was section 397 of Victorian Crimes Act 1958 (repealed) that stated that an accused
must have a counsel to defend the accused against the prosecution.
However, the court held that this section implied that the accused is required to pay for
the counsel themselves and state shall not provide counsel. The second source was the country’s
obligations under Article 14(3) of the ICCPR to which Australia is a state party, which provides
every accused person with legal assistance in the interest of justice. The third source included
certain cases in US where the Sixth Amendment to the United States Constitution which states
that all accused, in all criminal proceedings, shall be entitled to legal counsel for their defense.
Judgment
As per the contention of the accused, the court observed that firstly, the sources cited by
the accused does not precisely states that the accused persons shall be provided with legal
counsel at the expense of the state. further, the court stated that although it is common for the
Australian courts to recognize any legal developments in other countries that are governed by the
Common law including the US, the law related to the right to counsel was incorporated into their
Constitutions as the right was stipulated in the Bill of rights of the countries. On the other hand,
Australia still does not have any such rights incorporated in its Constitution or in any other
3 Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair trial." (2017).

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legislation4. The court further asserted that since there is no comparable constitutional
foundation, the Australian courts are not empowered to translate the powers declared by the
other Common law countries into the municipal law of Australia.
The accused made contention relating to exercise of the discretionary power of the court
to adjourn the trial proceeding until the accused was able to arrange counsel himself, which led
to injustice. The High Court confirmed that any person who is charge with criminal offense is
not entitled to claim a counsel at the expense of the state for trial5. However, the right to fair
trial being an essential feature of the Criminal Justice System, any person charged with serious
offence, appears before the court and wishes to be represented, the court must adjourn to stay the
proceedings until the accused arranges a legal counsel, except under exceptional circumstances,
where the trial must be proceeded. The court set aside the conviction and allowed the appeal with
an order to commence a new trial.
Ratio decidendi
The court explained the majority’s view by asserting that if an indigent person charged
with serious offence, makes an application for adjournment before the trial judge, and such
person is unable to arrange for a legal counsel, the trial should be adjourned until the accused
obtains legal representation6. Under such circumstances, if the application for adjournment is
refused, due to lack of legal representation available to the accused shall be set aside by any
4 Piper, Alana, and Mark Finnane. "Access to legal representation by criminal defendants in Victoria, 1861-
1961." UNSWLJ 40 (2017): 638.
5 Tanner, Chantal. "Would Constitutional Entrenchment of the Right to Legal Representation Result in a More
Effective Realisation of Legal Aid?." Browser Download This Paper (2016).
6 Agan, A., Freedman, M. and Owens, E., 2016. Counsel Quality and Client Match Effects in Indigent Defense.

5LEGAL PROCESS
appellate court as such trial would constitute miscarriage of justice, the accused being convicted
without any fair trial.
Obiter dicta
The court had made reference to the legal authorities to explain how the Australian courts
are empowered to translate or interpret the laws of other countries such as USA and Canada that
are governed by Common law, into the Australian municipal laws7.
Dissent judgments
Justice Brennan and Dawson JJ dissented from the judgment and argued that merely
because the court was not empowered to appoint counsel for the accused it shall adjourn the
proceedings to prevent unfairness, would amount to refusal of the courts to exercise their
jurisdiction and would also stop the progress of the criminal law until public funds were
available to hire a legal counsel for the accused8. The grant of indefinite adjournment of the trial
proceeding would further amount to inconsistency of the courts with their constitutional duty that
it is bound to discharge.
Application of the Dietrich judgment
In response to the decision in the Dietrich’s case, Victoria is the only jurisdiction to
legislate and incorporate the legislation under section 360A (2) of the Crimes Act 1958 (Vic).
The statutory provision empowers the court to direct Victoria Legal Aid to grant legal assistance
7 Dioso-Villa, Rachel, et al. "Investigation to exoneration: A systemic review of wrongful conviction in
Australia." Current Issues Crim. Just. 28 (2016): 157.
8 Flynn, Asher, and Jacqueline Hodgson. "Access to Justice and Legal Aid Cuts: A Mismatch of Concepts in the
Contemporary Australian and British Legal Landscapes." (2017).

6LEGAL PROCESS
to an indigent accused person subject to conditions, specified by the court. The court must opine
that such direction is necessary in ensuring a fair trial. The subsection of the Act empowers the
court to adjourn the proceeding until legal assistance has been granted to the accused person.

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Reference list
Gillers, Stephen. Regulation of Lawyers: Problems of Law and Ethics. Wolters Kluwer Law &
Business, 2014.
Flynn, Asher, et al. "Legal aid and access to legal representation: Redefining the right to a fair
trial." (2017).
Piper, Alana, and Mark Finnane. "Access to legal representation by criminal defendants in
Victoria, 1861-1961." UNSWLJ 40 (2017): 638.
Agan, A., Freedman, M. and Owens, E., 2016. Counsel Quality and Client Match Effects in
Indigent Defense.
Flynn, Asher, and Jacqueline Hodgson. "Access to Justice and Legal Aid Cuts: A Mismatch of
Concepts in the Contemporary Australian and British Legal Landscapes." (2017).
Dioso-Villa, Rachel, et al. "Investigation to exoneration: A systemic review of wrongful
conviction in Australia." Current Issues Crim. Just. 28 (2016): 157.
Tanner, Chantal. "Would Constitutional Entrenchment of the Right to Legal Representation
Result in a More Effective Realisation of Legal Aid?." Browser Download This Paper (2016).
Murphy, Bernard, and Camille Cameron. "Access to justice and the evolution of class action
litigation in Australia." (2015).