Thursday, 29 March 2012

The Queen v Getachew [2012] HCA 10: belief in consent not in issue

This case was handed down by the High Court yesterday. It's a sequel to the Victorian Court of Appeal's decision in Getachew v R [2011] VSCA 164 last year.

The judgment will be studied carefully by lawyers involved in penetrative sex trials. It's a (rare) unanimous judgment by French CJ, Hayne, Crennan, Keiffel and Bell JJ. Like the decision it reverses, it is extremely brief.

At risk of over-simplification, the general take-homes are these:

  • Consideration of any question about the law of rape in Victoria begins and ends in consideration of the relevant statutory provisions. Reference to decisions about the common law of rape is useful only if such reference assists in construing the applicable statutory provisions.

  • An accused's belief in consent is relevant at a trial for rape only if evidence is led or an assertion is made that the accused did believe that the complainant was consenting to the sexual act: s 37AA Crimes Act 1958. The reference to an assertion being made is important. It encompasses an accused's out of court statement, such as an record of interview with police, tendered in evidence and contains an assertion that the accused believed that the complainant was consenting, and by other forms of evidence. The High Court didn't provide further guidance on what these are (or aren't).

  • In considering any question about an accused's asserted belief in consent it is necessary to keep at the forefront of consideration that s 38(2) prescribes the relevant mental element for the offence of rape as awareness that the complainant was not or might not be consenting or, after the 2007 amendments, not giving any thought to whether the complainant was not or might not be consenting. Belief in consent is not the controlling concept. It is relevant only so far as it sheds light on the accused's awareness that the complainant was not or might not be consenting.

  • If evidence is led or an assertion is made that the accused believed that the complainant was consenting, the directions required by s 37AA would oblige the jury to consider whether the belief was reasonable (and any evidence of that belief). But neither s 37AA nor any other relevant provision of the Crimes Act provide that an accused must be taken to be aware that the complainant might not be consenting unless the accused reasonably believed that the complainant was consenting.

The High Court noted that no assertion or evidence had been led at the trial that the accused believed that the complainant consented to the penetration. The Court of Appeal had earlier decided that an available inference should have been enough to necessitate directions to the jury about a belief in consent. The High Court disagreed. In the absence of that assertion or evidence, knowledge of the accused that the complainant was or might be asleep necessarily demonstrated that he was aware that she might not be consenting.

French CJ, Hayne, Crennan, Keiffel and Bell JJ concluded [at 35]:

No other possibility was open. Absent an assertion or evidence that the accused believed that the complainant had in fact consented to the act of penetration, there was no other possibility – that the accused may have positively believed that the complainant was in fact consenting – open and raised for consideration by the evidence. The jury were not required to exclude a possibility of that kind before returning a verdict of guilt.

Wednesday, 28 March 2012

LexisNexis eBooks 2

After my sooking on the weekend about having to wait for my eBook to arrive, it lobbed into my inbox in the middle of this morning. (My excuse is that online purchasing has conditioned me to instant gratification...)

I had a chance to play around with the eBook version of Bourke's Criminal Law. I've been learning how to use some screen-capture software, and bought a USB condenser microphone to complement it, and so I decided the best way to review this is to show you.

So, without further ado, see and judge for yourself. (Click on the gear symbol in the video frame to select a higher resolution for better detail.)

Monday, 26 March 2012

Changes to the site; check for strangeness

I finally got some time to make some changes to the blog over the weekend.

Originally, I installed a fair few hacks and tweaks to make it work they way I wanted. But all that tinkering was causing problems, with a long load-time for the site, and even occasional freezes for no apparent reason.

Plus, I was hosting a lot of the javascripts on Apple's MobileMe service, which is due to close soon, so I really needed to overhaul the whole kit and caboodle.

In the last 12 months Blogger has introduced most of the features that previously required hacks, widgets or additional coding. So I spent some time on the weekend removing them all and reverting to a standard template.

It now seems to run much faster, and has the added benefit of being friendly to mobile devices too.

I found it still loaded a bit slower on Internet Explorer — especially when opening the new table of contents page.

I've installed a new search function, table-of-contents, and contact widget, all located in the Pages widget at the top right.

The recent comments widget now works properly, the blog list has been trimmed and updated, and the link-tabs moved under the blog title and made a bit more visible.

And we now have a favicon in the address bar, of Lady Justice!

I still have a few more things to fix under the hood — relocating where some graphic files are hosted, changing post labels so they play nice with the table of contents widget, and add a couple of the frequently-visited-tables into pages — but the visually obvious stuff is done.

There may be a few broken links in some posts, strange formatting or malfunctioning pictures. If you find any, please use the contact form to let me know and I'll try to repair it.

And of course, let me know if you find it works better and if you like the new layout!

Saturday, 24 March 2012

LexisNexis eBooks

When I was in Victoria Police, prosecutors got their own copy of the paperback abridgements of Bourke's Criminal Law Victoria and Motor and Traffic Law Victoria. LexisNexis sold (and still sells) the same edition of Bourke's, with a different cover, to the public, but not the other text.

That changed this year, and right now the Motor and Traffic Law abridgement is on sale. Much as I like having access to stuff electronically for its portability, it's handy at times to have a paper copy as well.

So, I decided to order a copy today, and also get the Bourke's Criminal Law bundle of paperback and eBook.

This is my first legal eBook purchase, so I'm keen to see how it goes. The promise is good, but from what I've seen, the reality isn't quite up to the promise. You can read a frank and not exactly glowing review at the Law Geek Down Under blog here — and I recommend you do.

My automated order and payment went through easily enough, and I got an email confirming the order.

Right. So how do I download my eBook?

Surely the email will tell me how? No. That's okay: there's a link at the bottom of the email to support on the website.

Except the link is broken and goes to a dead page.

Okay, then the site map will show me.

Except that also goes to the same dead page.

Okay, the main page will surely have some information?

Nothing I can find there.

But Google leads me to this.

So I download the PDF instructions — which seems odd, when they could be on the webpage, complete with hyperlinks to BlueFire Reader, the eBook reader LexisNexis chose for its service.

Right. Install BlueFire. Enter Adobe ID (I already have one) to authorise my iPad.

The instructions say:

3. Forward this email to an email address that can be accessed on your iPad.
4. Click on the link you received in your email.
5. Click on ‘Open in BlueFire Reader’.
6. The book will then be downloaded in BlueFire Reader.

The email I have doesn't have a link that opens anything in BlueFire Reader.

Surely I don't have to wait till a person sends the paper copy to also get the email to download my eBook? Surely? Every eBook I've bought from Amazon is available for download seconds after clicking "purchase".

So I ring the help desk. Which is unhelpfully closed on weekends.

Please call back Monday to Friday chirps the helpful recording before it hangs up. Or send an email. Which I've done, and had a very nice form reply telling me they'll get back to me, or I can call them between 8 AM and 8 PM.

Except, I now know, not on the weekends.

I'll post a review of the actual experience of using an eBook from LexisNexis when I can actually get it. It shouldn't be this hard.

In the meantime, I suggest you don't buy yours out of business hours unless you want to wait for delivery in the same time frame as you do for physical books.

Sunday, 18 March 2012

Charter to stay?

Before the last election it seemed likely that a Baillieu government would repeal parts of the Charter of Human Rights and Responsibilities Act 2006, if not scrap it entirely. Recent media coverage suggests neither of those is going to happen.

The reform the government wants to talk about is a requirement that proposed amendments to bills, as well as proposed bills themselves, have Statements of Compatibility. Small beer, when compared with other options that were on the table. The removal of the jurisdiction of the courts to interpret and apply the Charter in their judgments seems to have fallen out of fashion.

The SARC Final Report can be found here.

The Government's response (released last Thursday) is here.

Edit: If you feel strongly that the Charter should be preserved, modified or repealed then please leave a comment explaining why. Several readers already have.

Thursday, 15 March 2012

GA, MM & PJ v The Queen [2012] VSCA 44: Acting without warrant

Where a specific power exists, that power ought be preferred. But where a specific power exists, that doesn't (without more) invalidate the existence of a more general power.

G A, MM & P J v The Queen provides a simple demonstration of the principle. There is a specific warrant to search a vehicle for drugs available to law enforcement officials under s 81 of the Drugs, Poisons & Controlled Substances Act 1981. But where the criteria for a search under s 82 of that same Act is met, the ability to apply for a warrant doesn't invalidate the police's power to act without a warrant.

The Court of Appeal appeared almost dismayed at the lack of thought given to the scope of the search that led the Victoria Police to apply for a warrant to search a vehicle seized on a public road and delivered to the Fawkner Police Station (and later, the Forensic Science Centre) for examination.

Neave, Redlich and Harper JJA [beginning at 16]:

Both the prosecution and defence have since conducted this case on the basis that the removal of the Toyota to the Fawkner Police Station was illegal. That conclusion is not necessarily correct. Section 82 of the Act applies not only to a vehicle in a public place, but also – and equally – to (among other things) a ‘vessel, underway or not’, where a police officer has reasonable grounds for suspecting that there is on that vessel ‘a drug of dependence in respect of which an offence has been committed, or is reasonably suspected to have been committed’. Those preconditions having been met, the officer ‘may with such assistance as he thinks necessary’ search the vessel.

It may well be necessary, in order to give effect to this power, to move the vessel to a harbour safe from rough seas and bad weather, and where the assistance of men and facilities to carry out a search – which might otherwise be impossible either at sea or on land – may be available. If this is so with vessels, it may also be the same with vehicles, since the section provides no obvious reason to differentiate between them. With vehicles, as with vessels, the officer may conduct the search with such assistance as he or she thinks necessary.

There is another consideration supporting the conclusion that no warrant was necessary. There is nothing in the legislation, or in the prescribed form of the warrant, which would cover the issue of a warrant for the removal of a vehicle from a public road to a site at which an appropriately thorough search might be carried out. The applicants did not in their submissions put forward any answer to the proposition (which, it must be added, the Crown never advanced) that it is by no means certain at what point the warrant, assumed by the parties to be necessary, became so. In other words, the point at which the authority of s 82 was assumed to expire, and the need for the authority of a warrant was assumed to arise, was not explored.

Finally, the parties did not advert to the fact that the prescribed form of warrant makes no ready provision for the giving of authority to search a vehicle which is not on public land and which is thought to contain something which might afford evidence of the commission of an offence. That, however, is precisely the position of the Toyota once it arrived at the Fawkner Police Station. Were the prescribed form to be used as authority to search that vehicle, as then situated, the prescribed form would require careful modification so as to remain ‘to the effect of the form of Schedule Ten’ while identifying with specificity the authority which it conferred.

The failure to address these issues is regrettable. It is at least arguable that everything which followed the interception of the Toyota on the Hume Highway near Benalla was covered by the authority, conferred by s 82, to search that vehicle ‘with such assistance as ... necessary’. Were that argument made good, so much of the case of the applicants as relies on the illegality of the warrant which the Fawkner police eventually obtained, would fail.

The Court of Appeal went on to find that the procedural irregularities involved in the seizure and search of the suspect vehicle should not give rise to the exclusion of the discovery of one kilogram of methylamphetamine from a concealed compartment in the dashboard - or if it will, not for the rulings made thus far by the trial judge.

(A collateral issue regarding the swearing of affidavits has recently also been dealt with at length in R v Mokbel (Change of Pleas) [2012] VSC 86).

The interlocutory application for leave was dismissed, and the matter returned for trial.

Sunday, 11 March 2012

DPP v Kirtley [2012] VSC 78: the two essential elements of speeding

There are two essential ingredients to a charge of speeding in Victoria (and, therefore, probably across Australia):

    (1) the driving of a motor vehicle; and (2) in excess of the speed limit.

More information might be nice, but it's not essential. There are more things that the prosecution are required to prove an offence under Road Rule 20, obviously. But not everything that has to be proved needs to be alleged in the charge, as the Supreme Court found in Ciorra v Cole (2004) 150 A Crim RJ 189 [at 80].

In DPP v Kirtley [2012] VSC 78 the respondent successfully defended a speeding charge in the Magistrates' Court. His counsel persuaded the Court that the charge information disclosed no offence at law.

The charge read,

The defendant at Rupanyup on 15/06/09 being the driver of vehicle on the length named Wimmera Highway did drive at speed over the speed limit applying for the length of road to which a speed limit sign of 100km/h applied between Marnoo and Rupanyup. Detected speed 158km/h. Alleged speed 156km/h kph.

Road Rule 20 says that,

(1) A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.

It was successfully argued at first instance that the charge information was defective because it failed to specify that the speed limit applied to the driver, rather than the road. Forrest J found that the information did disclose an offence, and returned the charge to the Magistrates' Court to be dealt with according to law.

Forrest J at 17,

It follows that in determining whether the charge contained the essential ingredients of the offence, it is necessary to look at its contents from the perspective of a reasonable defendant in the position of Mr Kirtley.

Reduced to its basics, the debate between the Director and the Respondent turned upon what were the essential elements of an offence under r 20 and whether that information was conveyed to Mr Kirtley so that he understood the charge he had to meet.

Senior Counsel for the Director contended that there were two essential ingredients of a charge laid under r 20: namely the driving of a car and exceeding the speed limit. He argued that as long as these two matters were identified in the charge then that, with the details of the alleged offending, provided sufficient information to identify the substance of the charge. He said that charge as laid did all these things and the reference to the speed limit being applicable to the reading did not obscure the fundamental elements of the charge. Accordingly, so the argument concluded, the charge, although not identifying in terms that the speed limit was applicable to the driver, was nevertheless good in law.


In my opinion, the submission made on behalf of the Director – that the two essential ingredients to a charge under r 20 are (a) the driving of a motor vehicle (b) in excess of the speed limit - should be accepted.

It's necessary for courts considering the sufficiency of charge information to strive conscientiously to read them in a sense that gives the meaning that the draughtsman intended: Smith v Van Maanen (1991) 14 MVR 365. Notwithstanding the rule of strictness required of prosecutors in drafting criminal charges, a charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context: DPP Reference No 2 of 2001 [2001] VSCA 114.

Though not necessary to decide the case, Forrest J also found that, had the charge been defective, it was still capable of being remedied by amendment, applying DPP v Kypri (2011) 207 A Crim R 566.

In that case the Court of Appeal said [at 24] that a defective charge is capable of amendment, even outside the statutory time for the laying of a charge, provided the, 'true nature of the offence is apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission'.

Sunday, 4 March 2012

Slaveski v Smith & Anor [2012] VSCA 25: the right to representation

There is a right to representation as part of an accused's overarching right to a fair criminal trial, but it's rarely going to give rise to an enforceable remedy. (And what is a right without a remedy?) When faced with the unavoidable prospect of an unfair trial, a trial court should not order unwilling representation for an accused when no one will act for them, but instead order the stay of proceedings; if necessary, permanently. That kind of circumstance will also be rare.

The Victorian Court of Appeal [Warren CJ, Nettle and Redlich JJA] made these points when answering three questions referred to it by the County Court under s 33 of the Charter of Human Rights and Responsibilities Act 2006.


The Court of Appeal held in Slaveski v Smith & Anor [2012] VSCA 25,

    1) Section 25(2)(f) of the Charter doesn't require that the word trial in s 197 of the Criminal Procedure Act 2009 be interpreted to include trials of indictable matters heard on appeal from the Magistrates’ Court. (If it did, judges would be able to order Victoria Legal Aid to provide free legal aid in those cases); and

    2) That section of the Charter doesn't create an enforceable right to the provision of legal representation to a person who fits eligibility criteria of the Legal Aid Act 1978, independent of the exercise of the discretion by Victoria Legal Aid under the Legal Aid Act 1978; and

    3) The right to a fair trial pursuant to s 24(1) of the Charter operates to include the right to be legally represented, but only if the absence of legal aid would preclude the court from reaching a just decision.

In deciding those questions the Court of Appeal considered the (divided) judgement of the High Court in Momcilovic v R [2011] HCA 34.

The 'right' to representation

The Charter isn't silent about representation in its provision of minimum basic entitlements in criminal proceedings. It creates very limited and qualified rights at ss 24 and 25:

25. Rights in criminal proceedings

(1) ...

(2) A person charged with a criminal offence is entitled without
discrimination to the following minimum guarantees-

(a) ... ; and

(b) ... ; and

(c) ... ; and

(d) to be tried in person, and to defend himself or herself personally or
through legal assistance chosen by him or her or, if eligible, through
legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and

(e) to be told, if he or she does not have legal assistance, about the
right, if eligible, to legal aid under the Legal Aid Act 1978; and

(f) to have legal aid provided if the interests of justice require it,
without any costs payable by him or her if he or she meets the
eligibility criteria set out in the Legal Aid Act 1978; and

(g) ... ;

The Legal Aid Act naturally gifts quite a lot of discretion to VLA in deciding whether or not to award a grant of aid. When enacting the Charter it wasn't intended that VLA's discretion to decide whether or not to fund was removed. While (2)(d) and (f) recognise a right to representation, it's only in a vague and conditional way.

The history

Slaveski v Smith & Anor [2012] VSCA 25 involves the same person in Slaveski v State of Victoria & Ors [2010] VSC 441 (discussed here).

The Court described the progress of the matter this way [beginning at 2]:

The plaintiff was charged with an offence of making threat to kill, which is an indictable offence, but was tried summarily in the Magistrates’ Court pursuant to s 25 of the Magistrates Court Act 1989. Following a hearing which lasted several days, he was convicted and sentenced to a term of imprisonment to be served by way of Intensive Correction Order.

From his conviction, he appealed to the County Court pursuant to s 83 of the Magistrates’ Court Act. He was granted legal aid. The appeal was first listed to be heard on 11 February 2008 but was adjourned for hearing to 26 May 2008. When the matter came on for hearing on that day, the plaintiff’s counsel withdrew and thus the matter was adjourned for hearing to 29 April 2009. When the matter came on for hearing on 29 April 2009, the plaintiff was represented by other counsel, but after a disagreement that counsel sought and was granted leave to withdraw. Thus the matter was refixed for hearing on 23 November 2009.

In the meantime, Victoria Legal Aid (VLA) revoked the plaintiff’s grant of legal aid in this and an unrelated proceeding because he refused to follow reasonable advice and was in breach of the terms of his grant of legal assistance. When the present matter came on for hearing on 23 November 2009, the plaintiff appeared unrepresented. He also objected to the judge who had been assigned to hear the case. Hence, the matter was referred for hearing to Judge Gullaci on 12 April 2010.

When the matter came before Judge Gullaci on 12 April 2010, the plaintiff again appeared unrepresented and stated that he would defend the case in person. His Honour, however, took the view that the plaintiff would be ‘seriously disadvantaged’ by his lack of legal representation, and the prosecutor stated that he agreed it was in the interests of justice that the plaintiff be represented. Then the plaintiff stated that he wished to be legally represented.

The judge invited a representative of VLA to come to court and asked if further legal aid could be provided. The representative replied that, because of the plaintiff’s repetitive behaviour in discharging previous counsel, VLA was not prepared to provide further legal aid. The judge invited VLA to reconsider its position in view of what his Honour considered to be the analogy between the circumstances of the refusal of legal aid in this case and the circumstances to which s 197 of the Criminal Procedure Act 2009 is directed.

Section 197 allows courts to order VLA to arrange representation for an accused, but relates only to trials. Because the charges had been heard and determined by the Magistrates' Court and arrived in the County Court by way of de novo appeal, the plain reading of s 197 didn't allow the presiding judge to make an order. The judge asked the Court of Appeal whether the Charter required a wider interpretation to be given to the term trial.

Charter interpretation

The Court said about Momcilovic [at 21 - 24],

The operation of ss 32(1) and 7(2) was recently considered by the High Court in Momcilovic v R (2011) 280 ALR 221. So far as s 32(1) was concerned, French CJ, Crennan and Kiefel JJ and Gummow J, Hayne J and Bell J each held in separate judgments that s 32(1) does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

Their Honours did not achieve the same degree of consensus as to the effect of s 7(2). The Court of Appeal in Momcilovic held that the interpretative task under s 32 does not involve the application of s 7(2), which needs to be considered only for the purposes of making a declaration of inconsistent interpretation under s 36.[7] In the High Court, French CJ, Crennan and Kiefel JJ concluded that s 7(2) ‘cannot inform the interpretative process which s 32(1) mandates’ but is engaged only when and if ‘the statutory provision under consideration imposes a limit on its enjoyment’.[8] ‘[I]t cannot be interpreted into the content of the rights and freedoms set out in the Charter’. In contrast, Gummow, Hayne and Bell JJ held that s 7(2) does inform the interpretative task to the extent that it will usually be appropriate for a court first to consider whether under s 7(2) there is scope for a justified limitation of the right in issue. It followed, as Gummow J put it, that ‘[s]ection 32(1) is directed to the interpretation of statutory provisions in a way which is compatible with the human right in question, as identified and described in Part 2, including, where it has been engaged, s 7(2). Heydon J observed that, if s 7(2) were valid, it would inform the interpretative task,[12] but his Honour held that both s 7(2) and s 32(1) were invalid.

Hayne and Heydon JJ both dissented with respect to the final orders and Heydon J also dissented on the question of whether the appeal should be allowed. It is unnecessary to decide whether, in these circumstances, the Court of Appeal is bound to follow its own decision in Momcilovic unless satisfied that it is clearly wrong: Green v The Queen [2011] HCA 49, etc.

Putting aside the disparity of views as to the application of s 7(2), it nonetheless emerges from Momcilovic that the effect of s 32(1) is limited. It requires:

statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) [thus] applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application...

Consequently, if the words of a statue are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.

The court then applied this approach to the Legal Aid Act 1978.

A high threshold

On the third point, about a fair trial, the Court said [at 51],

In Perotti v Collyer-Bristow, the English Court of Appeal dealt with the question of whether art 6(1) of the Convention entitled a civil litigant to a grant of legal aid. Chadwick LJ, who delivered the principal judgment, said:

...the obligation on the state to provide legal aid arises if the fact of presenting his own case can be said to prevent him from having effective access to the courts. But a litigant who wishes to establish that without legal aid his right of effective access will have been violated has relatively high threshold to cross.

It is, in my view, important to have in mind that however much this court, and indeed any other court, would welcome the assistance that can be given by a legally qualified and competent advocate, the test is not whether (with such assistance) this court would find it easier to reach the decision which it has to reach on the facts of the case. This court, and other courts, have ample experience of cases in which the material is not presented in an ideal form; and have not found it impossible to reach just decision in such cases. The test under art 6(1), as it seems to me, is whether a court is put in a position that it really cannot do justice in the case because it has no confidence in its ability to grasp the facts and principles of the matter which it has to decide. In such a case it may well be said that a litigant is deprived of effective access; deprived of effective access because, although he can present his case in person, he cannot do so in a way which well enable the court to fulfil its paramount and over-arching function of reaching a just decision. But it is the task of courts to struggle with difficult and ill-prepared cases; and courts do so every day. It is not sufficient that the court might feel that the case could be presented better; the question for the court is whether it feels that the case is being, or will be, presented in such a way that it cannot do what it is required to do – that is to say, reach a just decision. If it cannot do that the litigant is effectively deprived of proper access to the courts.

Given the similarities between s 24(1) of the Charter and art 6(1) of the Convention, we are disposed to construe s 24(1) of the Charter in similar fashion. In that sense, it may be said that s 24(1) creates a right to legal representation in limited circumstances. It is, however, no more than reflective of the position at common law. An indigent person does not have a right at common law to be represented at the State’s expense on a serious criminal offence. He has a right to a fair trial, more accurately expressed in negative terms as a right not to be tried unfairly. Depending upon the circumstances of the particular case, including the background of the person, lack of representation may mean that the person is unable to receive a fair trial: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.

Moreover, where such circumstances exist, so that a right to representation is enlivened, it is not the sort of right which is capable of enforcement by order for the provision of legal assistance. Perforce of the conditional terms of s 25(2)(d) and (f) of the Charter, it is subject to the establishment of an entitlement to legal assistance under the Legal Aid Act. The only means of direct enforcement of such an entitlement are by way of judicial review.

Of course, a trial judge would not be powerless to prevent an infringement of the Charter right to a fair trial which results from a lack of legal representation.[27] As with a breach of the common law right to a fair trial which results from a lack of legal representation, the judge would have power to grant an adjournment or order a stay of proceedings. But a stay is an extraordinary remedy. A proceeding should only be stayed on that basis if the judge is truly satisfied that, without legal representation, the accused will not receive a fair hearing.