Crothers v The Queen [2011] HCATrans 203 (12 August 2011)

Last Updated: 15 August 2011

[2011] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B75 of 2010

B e t w e e n -

MICHAEL CROTHERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 AUGUST 2011, AT 10.38 AM

Copyright in the High Court of Australia

MR D.R. MacKENZIE: May it please the Court, I appear for the applicant. (instructed by Douglas Law)

MR M.J. COPLEY, SC: May it please the Court, I appear with MR G.P. CASH, for the respondent. (instructed by Director of Public Prosecutions (Qld)

HAYNE J: Yes, Mr MacKenzie.

MR MacKENZIE: Your Honours, the only position of Mr Crothers is that the Court of Appeal was in error, at paragraph [302] in appeal book 2, page 203, to conclude that his conduct brought him into the exceptional category of cases where a trial judge was entitled to continue with the trial with an unrepresented accused. In particular it is suggested that the sentence in paragraph [302] on page 203 where it says:

He was insistent that he be represented only by Douglas Law –

is incorrect. Mr Crothers was given a grant of legal aid. For over two years he was represented by an in-house lawyer for legal aid. There were problems with that in-house lawyer which were acknowledged by the Legal Aid Office. When they offered him another in-house Legal Aid lawyer he complained that he had only been visited for very short periods of time on about six occasions which included visiting him at courts when the matter were mentioned, and various other matters. He had a firm of lawyers, Douglas Law, who were willing and prepared to act for him, but at no time was he offered any other legal representation other than someone from the firm of lawyers, that is the in-house Legal Aid Office, an organisation with which he had no confidence. As a result, in the trial he appeared for himself on the charge of murder.

He was in a trial that went for five weeks with four co-accused. He was described in the material, which ultimately was not accepted by virtue of leave by the Court of Appeal but is referred to in the judgment, as being functionally illiterate with significant antisocial traits, and a psychologist gave an opinion that he would be incapable of understanding the issues involved in the trial. It is suggested by the respondent that this was a simple trial. In my respectful submission, that could not be the case, and in fact the trial judge in the appeal record book described the trial herself as a complex one.

There were many issues to which the applicant did not make any contribution, for example, the admission of hearsay from deceased witnesses, pursuant to the statutory regime in Queensland, statements of a Tripodi-type nature, prejudicial statements such as the endorsement on the back of a photo board by the witness, “This is the animal that killed him” and statements made by the witness that my client said, “I am not going back to gaol for this.” The inability of my client to properly represent himself, the applicant, is readily outlined in the written argument, but it resulted in, at the end of the trial, what could only be described as a rambling and incoherent, continually interrupted address, which on the record book appears to have taken 15 minutes, but given that it takes up only three pages of transcript, probably only had four or five minutes of anything that could be made to be sensible.

He failed to put his case to the critical Crown witnesses. He only cross-examined Matthew Hoghes. He did not cross-examine his brother, he did not cross-examine a woman from whom he wanted to draw evidence in his favour, and he did not cross-examine the other son of the deceased at all. There were applications to change the order of addresses. He was made to – he did not understand and it was suggested and accepted by the trial judge, in my submission, that he would go first, so that he lost the advantage of being – which is the normal case in Queensland – cross-examining down and addressing up – of going last. There was also during the trial a change in the order of cross examination, so that he went earlier than the represented counsel.

He complained at the start of the trial that he did not have all of the material and had insufficient time to prepare. He obviously has no powers or ability to organise himself and materials in such a large matter. In my respectful submission, his complaints were not to have a particular law firm but to have a lawyer. If I might just digress for a moment, and take your Honours to the application book at page 189 to 190, paragraph [249]. I just want to raise one point. It was suggested in the judgment of the Court of Appeal, that I was appearing for Mr Crothers there as the applicant:

frankly conceded that LAQ offered Crothers competent legal representation and Crothers refused it, electing instead to appear for himself.

I am unsure if the Court has this - I asked for it to be in the application book and I do not think it is there, but it is a very brief piece of transcript from the actual Court of Appeal hearing. The submission I want to develop is that that statement is taken out of context. What I said was this, at page 193, line 40, speaking to the President:

But what I am trying to articulate, it is not a cynical exercise designed to delay the trial. It is not a question of him refusing to spend his own money. It is not a case of him sacking multiple different legal representatives. It is a case of him not being satisfied with the in-house legal aid practice and wanting a private

firm to act for him. He proffered a particular private firm but there is not evidence that he insisted on just them. It is all of these difficulties.

I was interrupted by Justice of Appeal Chesterman who said this:

Does it come down to this? He was told “You can have competent legal representation given by the in-house service of Legal Aid or you can appear for yourself”. And he said, “I will appear for myself”, to which I replied “Yes, your Honour”.

It is not the case that he was refusing an offer of another lawyer, but for a lawyer from the in-house Legal Aid firm, an organisation with which he had no confidence.

I have developed, in my respectful submission, in my outline all of the problems of an unrepresented man and the clear evidence that he just did not contribute to this trial. There were times when he just simply withdrew and there were times when it was clearly beyond him. In my respectful submission, there has been a miscarriage of justice and this matter does not fall into that exceptional category, as the Court of Appeal has held. Unless I can be of any further assistance, those are my submissions, your Honour.

HAYNE J: Thank you, MacKenzie. We will not trouble you, Mr Copley.

We are not persuaded that it is arguable that the Court of Appeal erred in concluding that there had not been a miscarriage of justice because the applicant was not legally represented at his trial. Special leave to appeal is refused.

AT 10.45 AM THE MATTER WAS CONCLUDED