Citation: REGINA v Michael KANAAN [2003] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 4 July 2003
Judge(s): Mason P, Dowd J, Adams J
Background
The applicant was facing trial in the Supreme Court on serious criminal charges, with the trial listed to commence on 7 July 2003. He had been granted legal aid and had retained both a solicitor and counsel under that grant. Shortly before trial, he dismissed those representatives and elected to appear in person.
The applicant then sought permission from Barr J (who was not the trial judge) to have a fellow prisoner assist him at trial as a McKenzie friend. A McKenzie friend is a person who, though not a lawyer, is permitted by the court to sit alongside a self-represented litigant and provide quiet assistance, such as taking notes and offering suggestions. The proposed McKenzie friend, Mr Simpson, was on remand and had a number of prior criminal convictions.
Barr J refused the application. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal.
Legal Issues
- Whether the ruling by Barr J refusing the McKenzie friend application was an order capable of attracting a right to seek leave to appeal under s 5F of the Criminal Appeal Act.
- Whether, assuming leave could be sought, any arguable basis existed for granting leave to appeal the refusal.
- In what circumstances a person in custody or with serious criminal convictions might be permitted to act as a McKenzie friend.
Decision
The Court declined to determine whether the refusal of a McKenzie friend application was the type of order that could be appealed under s 5F of the Criminal Appeal Act, because the application failed in any event. Nothing in the written or oral submissions provided any basis for doubting the correctness of Barr J's conclusion or for treating the matter as otherwise warranting a grant of leave.
The Court emphasised the significance of the applicant's circumstances: he held a current legal aid grant, and both a solicitor and counsel had been retained and were available to appear for him. His decision to dismiss those representatives and then seek assistance from a remand prisoner did not present a compelling basis for judicial intervention.
Adams J, with the agreement of Mason P and Dowd J, added a further observation directed at the possibility that a similar application might be renewed at the trial. In his Honour's view, it would only be in extremely exceptional circumstances that a court would permit someone who held serious criminal convictions, was serving a sentence, or was on remand for a serious criminal offence, to act as a McKenzie friend.
Orders Made
- Application for leave to appeal refused.
Key Takeaways
- The Court of Criminal Appeal left open whether a refusal of a McKenzie friend application constitutes an order amenable to appeal under s 5F of the Criminal Appeal Act, as the application failed on its merits regardless.
- Where a legally aided applicant voluntarily dismisses retained counsel and a solicitor who remain available, this significantly undermines any claim that the court should look favourably on alternative assistance arrangements.
- Adams J, with the full Court's agreement, stated that only extremely exceptional circumstances would justify permitting a person with serious criminal convictions, or who is in custody on remand for a serious offence, to act as a McKenzie friend.
- Refusing leave to appeal, the Court found no arguable error in the primary judge's exercise of discretion to refuse the McKenzie friend application.
- The decision does not categorically prohibit all McKenzie friend applications from persons with criminal histories, but sets a high threshold where the proposed assistant is in custody or has serious convictions.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act (NSW), s 5F (appeals against interlocutory orders)
Cases cited:
- No cases were cited in the judgment text provided.