33. Unrepresented accused who requires legal advice

33. Unrepresented accused who requires legal advice

If-

(a) an accused is charged with an offence punishable by imprisonment; and

(b) the accused is unrepresented on the return date-

the court must-

(c) ask the accused whether the accused has sought legal advice; and

(d) if satisfied that the accused has not had a reasonable opportunity to
obtain legal advice, grant an adjournment if so requested by the accused; and

(e) inform the accused that the accused has the right, if eligible, to
legal aid under the Legal Aid Act 1978.

In Dietrich v R (1992) 177 CLR 292, the High Court held that the refusal of an adjournment to allow an accused to seek a legal advice amounted to a miscarriage of justice where the offence alleged was considered "serious". This term was not defined. More recently, in Hakimi v Legal Aid Commission (ACT) v The ACT (Intervener) [2009] ACTSC 48 the application of an accused to order Legal Aid to act for him or stay charges was rejected. However the position in Victoria may be different, due to the operation of s.25(2)(d) of the Charter of Human Rights and Responsibilities Act 2006.

Note that the right to counsel is unlikely to extend to the right to an unlimited right of choice of practitioner: R v Williams [2007] VSC 2.