Citation: Klewer v R [2016] NSWDC 224
Court: District Court of New South Wales
Date: 1 August 2016
Judge: Letherbarrow SC DCJ
Background
The appellant was convicted in the Local Court of resisting an officer and assaulting a police officer in the execution of his duty, offences arising from an eviction incident. His mother was convicted in the same joint hearing of three counts of throwing missiles arising from the same events. The appellant appealed his convictions to the District Court; his mother did not appeal hers.
When the appeal came before the District Court, the appellant's mother applied orally to represent her son. The judge declined that oral application. The appellant's mother then filed a formal motion seeking leave for her to represent the appellant, which was the subject of this judgment.
Two significant facts attended the mother's involvement. She had been declared a vexatious litigant by the Supreme Court in 2010, with orders preventing her from instituting proceedings without leave. She also held only a Diploma of Legal Studies, not an admitted law degree, and was not a qualified Australian legal practitioner.
Legal Issues
- Whether the filing of the motion by, or with the involvement of, a declared vexatious litigant constituted the "institution of proceedings" under the Vexatious Proceedings Act 2008 (NSW), rendering the motion stayed or liable to dismissal.
- Whether the Court had any power under the Criminal Procedure Act 1986 (NSW) to permit an unqualified person to represent an appellant in criminal proceedings.
- Whether, if formal representation was unavailable, the mother could instead assist as a "McKenzie friend" (an assistant who sits with a self-represented litigant to offer quiet guidance but does not speak for them).
- Whether any "extraordinary circumstances" existed to justify permitting McKenzie friend assistance.
Decision
On the vexatious proceedings issue, the Court found it strongly arguable that the filing of the motion constituted the institution of proceedings within the meaning of the Vexatious Proceedings Act 2008, either by the mother directly or by the appellant acting in concert with her, without the required leave. Because the point was not entirely clear on the material before the Court, Letherbarrow SC DCJ elected to address the motion on its merits rather than dismissing it on that ground alone.
On the power to allow an unqualified representative, the Court held that section 36(1) of the Criminal Procedure Act 1986 permits an accused person to appear personally, by an Australian legal practitioner, or by another person empowered by an Act or other law. The appellant's mother satisfied none of those categories. Her Diploma of Legal Studies from 2002 did not constitute admission as a legal practitioner. The Court therefore concluded it had no power to allow her to represent the appellant in the formal sense.
On the McKenzie friend question, the Court applied the Court of Criminal Appeal's decision in R v EJ Smith [1982] 2 NSWLR 608, which established that there is no right to a McKenzie friend in criminal proceedings and that such assistance is a matter of indulgence available only in extraordinary circumstances. Letherbarrow SC DCJ found that no extraordinary circumstances existed here. To the contrary, the transcript of the Local Court proceedings revealed the mother had engaged in highly disruptive conduct, including abusing the Magistrate in derogatory terms and leaving before sentencing.
On broader discretionary grounds, the Court found it contrary to the interests of justice to permit a declared vexatious litigant to act for or assist a close relative in criminal proceedings, particularly where that person was convicted of offences arising from the same series of events. The fact that a different judge had permitted the mother to appear on an earlier interlocutory application, and that the Magistrate below had allowed her to conduct both defences, did not bind the Court to do likewise.
Orders Made
- The motion seeking leave for the appellant's mother to represent the appellant was dismissed.
Key Takeaways
- Under section 36(1) of the Criminal Procedure Act 1986 (NSW), the only persons who may represent an accused are the accused personally, an admitted Australian legal practitioner, or a person empowered by another Act or law. A diploma-level legal qualification does not satisfy this threshold.
- The Court of Criminal Appeal confirmed in R v EJ Smith that a McKenzie friend in criminal proceedings is not a right but an indulgence, available only in extraordinary circumstances. The District Court applied that principle to a criminal appeal as well as to trials.
- Where a proposed McKenzie friend has been declared a vexatious litigant and has been convicted of offences arising from the same incident as the appellant, those factors weigh heavily against the grant of any such indulgence.
- Filing a motion in a court proceeding may constitute the "institution of proceedings" under the Vexatious Proceedings Act 2008 (NSW), engaging the stay and dismissal provisions in section 13, even where the motion is filed by a person acting in concert with a declared vexatious litigant rather than by that litigant directly.
- A procedural concession made by a different judge at an earlier stage of the same appeal does not bind a subsequent judge dealing with the same question, nor does the approach taken by the court below in a joint hearing.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 28, 36
- Vexatious Proceedings Act 2008 (NSW), ss 4, 5, 13
Cases
- Attorney General for New South Wales v Klewer (No 3) [2010] NSWSC 9
- R v EJ Smith [1982] 2 NSWLR 608
- Smith v R (1985) 159 CLR 532; [1985] HCA 62
- R v Jackson (Court of Criminal Appeal (NSW), 2 December 1980, unreported)
- McKenzie v McKenzie [1971] P 33
- North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595; [1996] HCA 2