Citation: R v Eriksen (No 4) [2025] NSWSC 738
Court: Supreme Court of New South Wales
Date: 17 June 2025
Judge(s): Coleman J
Background
The accused faced trial for murder and chose to appear self-represented. He had previously engaged several sets of lawyers, each retainer terminated at his initiative. Legal Aid was available to him but his grant was eventually withdrawn after he failed to cooperate with his legal representatives, and he declined to have it reinstated.
Before closing addresses, the lead Crown Prosecutor raised a procedural question: whether he was entitled to address the jury at all, given that the accused was unrepresented. The usual practice in New South Wales is for the Crown not to make a closing address where the accused has no legal representation.
Coleman J heard submissions on the point and delivered this judgment resolving the question before closing addresses were given.
Legal Issues
- Whether the Crown Prosecutor should be permitted to make a closing address to the jury where the accused is unrepresented
- How the trial judge's discretion on that question should be exercised in the circumstances of this case
Decision
Coleman J confirmed that the usual practice of the Crown not making a closing address where the accused is unrepresented is neither a rule of practice nor a rule of law. It is, instead, a matter for the trial judge's discretion, exercised to ensure overall fairness to both the accused and the Crown. The court drew on R v EJ Smith [1982] 2 NSWLR 608 and R v Zorad (1990) 19 NSWLR 91 in establishing that proposition.
The court accepted that the accused was not unrepresented for tactical advantage, and that he had no particular experience of the criminal justice system. Those factors were noted but did not determine the outcome. His choice to remain unrepresented was nonetheless a relevant consideration: an accused who makes that choice should not thereby gain an advantage unavailable to a represented accused.
Coleman J also gave weight to reasoning endorsed by the Court of Criminal Appeal in TS v R [2022] NSWCCA 222, where Basten AJA referred to observations by Judge Norrish QC. If the trial judge, rather than the Crown Prosecutor, carries the burden of presenting and summarising the prosecution case, there is a real risk that the jury will treat that account with heightened authority simply because it comes from the judge. That outcome could itself produce unfairness.
Although this was not a factually complex trial, the court found no unfairness to the accused in permitting the Crown to address. The Crown Prosecutors had conducted themselves throughout the trial in a manner that ensured the unrepresented accused received a fair trial, and there was no reason to anticipate any departure from proper obligations in the closing address. Coleman J concluded that permitting the Crown Prosecutor to address the jury was more appropriate, and fairer to both parties, than leaving that function to the judge.
Orders Made
No formal orders were made in this decision. The judgment records the court's ruling that the Crown Prosecutor would be permitted to make a closing address to the jury.
Key Takeaways
- The usual practice in New South Wales is for the Crown not to make a closing address where the accused is unrepresented, but that practice is neither a rule of practice nor a rule of law.
- A trial judge holds a discretion to depart from the usual practice where doing so is necessary to ensure fairness to both the accused and the Crown.
- Fairness under the EJ Smith line of authority is a dual concept: it encompasses fairness to the accused and fairness to the public through the prosecution.
- Where an accused is unrepresented by choice rather than by financial necessity, the Supreme Court held that the election to be unrepresented is a relevant factor against which the discretion falls to be exercised.
- Requiring the trial judge to summarise and present the prosecution case in the absence of a Crown address carries its own risk of unfairness, as the jury may give that account greater weight by reason of the judge's authority.
Legislation and Cases Referenced
Legislation
- Legal Aid Commission Act 1979 (NSW), s 25(4)(l)
Cases
- R v EJ Smith [1982] 2 NSWLR 608
- R v Zorad (1990) 19 NSWLR 91
- TS v R [2022] NSWCCA 222