Public Defenders

Unrepresented Litigants : The Criminal Justice Perspective


by Chris Craigie SC
Deputy Senior Public Defender

For some years the annual review of the High Court of Australia has noted a troubling growth in the number of unrepresented litigants filing process in the Court. In the period 1997/98 25% of all applicants for special leave were unrepresented. The 2004 Annual Review noted that 48% of applications for leave or special leave to appeal and 68% of applications for constitutional writs filed in the court in 2003/2004 were filed by self represented litigants. 46% of matters the matters to be heard by a single Justice involved self represented litigants.

At the intermediate levels of criminal jurisdiction accurate statistics as to how many persons eventually appear unrepresented for trial or sentence are elusive. The reasons for this appear to relate largely to the difficulty in tracking persons who lodge appeals from the Local Court, are committed for trial or sentence and either appear initially unrepresented or become unrepresented at some stage before or during trial or sentence proceedings.

The Bureau Crime Statistics and Research (BOCSAR) statistics for the Local Court in each of the years 2000-2004 reveals that a figure oscillating around or slightly under 50% are not represented in the summary proceedings of that court. Anecdotally and based on experience one may be fairly comfortable that this figure is very much greater than in the District and Supreme Court's criminal jurisdictions, which is not to say that the relatively small numbers of unrepresented accused in those courts represent a substantial difficulty for themselves and the system.

There are, no doubt, certain proceedings, particularly in the Local Court, that present no great peril to members of the wider community who may wish to represent themselves, typically for instance in entering a plea to a traffic matter or representing themselves in matters that are of a relatively minor and regulatory character. Once matters progress to the level where criminal convictions or consequent custodial penalties are a possible outcome, the unrepresented status of a litigant in the criminal context becomes a problem for both the defendant or accused person and for the perception of fairly administered criminal justice. The degree of risk to both is obviously heightened at each succeeding jurisdictional level.

A Right To Be Unrepresented

In Dietrich v The Queen (1992) 177 CLR 292 the High Court confirmed that representation in a criminal matter, when absent, may be an indication of an unfair trial process that it is within the power of a trial or appellate court to stay, pending a satisfactory remedy. Whilst representation is an indicator of fairness, Dietrich does not propound any right to representation at public expense. Moreover, there is authority that, whilst the accused must be given every reasonable opportunity to afford himself or herself of state-funded representation, there is no entitlement to insist upon aid that will only be accepted on the accused's terms, for instance requiring that the Legal Aid Commission assign or brief to a lawyer of the accused's choice, see Attorney General v Milat (1995) NSWLR 370 per Hunt CJ at CL at 374.

It is perhaps paradoxical that, although there is no right per se to be represented that there is a right, albeit qualified, to be unrepresented should one chose. Initially, one notes that S.78 of the Judiciary Act 1903 (Cth) entitles litigants to appear in person before all courts that may exercise federal jurisdiction. This replicates the common law, which may be summarised as providing that:

'In the ordinary course of litigation, criminal or civil, it is considered that a party to proceedings should have the right to represent his own case': Collins (aka Hass) v R (1975) 133 CLR 120, per Barwick CJ, Stephen, Mason and Jacobs JJ at 122.

The administration of criminal justice under the state and common law is consistent with these principles: In R v Zorad (1990) NSWLR 91 at 95 the Court of Criminal Appeal, per Hunt, Enderby and Sharp JJ, in considering the difficulties that an unrepresented accused presented accepted as a fundamental proposition that the election not to be represented "is a fundamental right which should not be interfered with." Notwithstanding an apparently entrenched right to be unrepresented, doubts have been expressed from time to time as to whether this right may be qualified. In R v Varley [1973] 2 NSWLR 427 AT 431 the Court of Criminal Appeal considered the problems created by an accused, who may be using the mid-trial dismissal of legal representatives as a tactic ' to make capital before the jury'. An interesting obiter dicta observation was made as to whether ' ......there may be some cases in which the Court should refuse permission to a prisoner or an appellant to dismiss his legal adviser, e.g. in a case where the mental health of a prisoner is in doubt, it would appear that
, in the case of a person who is suffering from no mental disability, he has the right to appear in person and to dismiss his legal advisers, who must of necessity retire from the case after they have been dismissed. It follows that the court is bound to hear the unrepresented person, even though the court knows that this is part of a tactic engineered by him'.

The traditional common law attitude to the accused choosing to be unrepresented, even if for tactical advantage, is now in interesting contrast to at least one other jurisdiction, being the International War Crimes Tribunal in the Hague. The Tribunal has appointed counsel to represent former President Milosevic, over his objection, creating a somewhat curious spectacle of the accused representing himself and also being represented by lawyers with whom he appears not to communicate.

The Conundrum of the Accused Person Unfit to Stand Trial

The mechanism whereby a person found unfit to stand trial and implicitly incapable of instructing the counsel who represents him or her at the trial is a process conducted before a judge or judge and jury. The finding of unfitness raises potentially acute issues as to subsequent representation and whether, if representation is rejected, it can in this exceptional setting be continued, whether the accused person accepts representation or not. The implications of two decisions are of interest in examining this question:

In R v Williams [2004] NSWCCA 224, per Studdert J at [20], the Court of Criminal Appeal described as entirely 'responsible', the decision of instructing solicitors and counsel in a Special Hearing who raised the issue of mental illness, contrary to the wishes of the appellant. The appeal was not determined on this point but the judicial response is consistent with the notion that whilst a Special Hearing is to be conducted as nearly as possible to a trial, somewhat broader discretion than usual resides in counsel, to the extent that what might otherwise be regarded as instructions can be overridden.

R v Paul Thomas Smith [1999] NSWCCA 126, was another appeal arising from an appellant's complaint that counsel at a Special Hearing acted contrary to the appellant-client's wishes, in that case to give evidence as opposed to a dock statement, which the accused was still able to do given the age of the matter. James J, although dismissing the appeal, was of the opinion that (at [48]) the 'right' to give evidence was so 'fundamental' and not to be interfered with, absent clear legislative intention to permit some limitation or qualification of such rights.

No implication of the above judicial pronouncements seems to permit counsel to ignore a plainly unfit client who, irrationally, seeks to dismiss counsel. This is unfortunate. There is no power in the Court to appoint counsel over the unfit, even palpably psychotic, accused's objection. One may well be in respectful agreement with James J in accepting this to be reality, absent clear legislative sanction for limiting a right, whilst asking whether parliament should now consider whether a 'right' exercised by a person who has been judicially determined to be incapable of participating in an ordinary trial process is merely something be way of a choice or a whim. The exercise of this kind of notional right may well undermine or destroy an underpinning right to a fair process. As I suggest later, the particular problem of the mentally unfit and unrepresented accused may well be deserving of response by the mechanism of statute law reform.

The Problem of the Unrepresented Accused

The difficulties that the unrepresented accused represents, both for himself or herself and for the proper administration of justice are not to be underestimated. In McInnis v R (1979) 143 CLR 575 at 589 Murphy J observed:

The notion that an unrepresented accused can defend himself adequately goes against experience in all but the rarest cases. Even an experienced lawyer would be regarded as foolish to represent himself if accused of a serious crime.

The substance of this prevailing view were examined further by Dawson J in Dietrich at 352:

It is only realistic to recognise that an accused who is unrepresented is ordinarily at a disadvantage because of his lack of representation. If there are some cases in which lack of representation is not a disadvantage or may even be turned to advantage, they must be exceptional. Commencing with a consideration of the form of the presentment or indictment and ending with the making of any necessary objection to the trial judge's charge to the Jury, the proper conduct of an accused's defence calls for a knowledge not only of the criminal law but also of the rules of procedure and evidence. Skill is required in both the examination in chief and the cross-examination of witnesses if the evidence is to emerge in the best light for the defence. The evidence to be called on behalf of the accused, if any, must be marshalled so as to avoid raising issues which will be damaging to the case for the Defence. A decision must be made whether the accused is to give evidence on oath, is to make an unsworn statement or is to remain mute. Competence in dealing with these matters depends to a large extent upon training and experience. And, as Murphy J pointed out in McInnes, an accused in person cannot effectively put some arguments that Counsel can, such as an argument that, although on the evidence the accused is probably guilty, he is not guilty beyond reasonable doubt."

The challenges facing, even an intelligent and well-educated unrepresented accused are complex and not easily met, if at all, by judicial assistance. Occasionally one has heard judges off the bench wonder at the skill with which such a person has conducted his or her own case. More often, to adapt a Wildeism, is the wonder is that they have done it at all, rather than done it well. Sometimes the eventual outcome of self-representation is reluctant judicial recognition that matters have so far miscarried that a trial must be aborted, representing a loss to the community as much as to the accused.

The burdens that matters with unrepresented persons impose upon a judicial officer are immense, whether in a sentence or trial matter, with or without a jury. The greatest of all the burdens is the need to avoid being drawn unwillingly, perhaps subtly and unconsciously, beyond the role of informing and advising in a general sense into the a role of advising the accused as to the particularities. The High Court confirmed in Dietrich long-standing principle to the effect that it is not part of the function of either the trial judge or prosecutor to advise the accused on legal issues before trial or, indeed, to advise on the conduct of the case for the defence at trial.

The proper restriction upon the judge as arbiter but not advocate or adviser is to be reconciled with the trial Judge's obligation to make it known to an accused person what procedural choices are available (for instance to give evidence or not give evidence), but to refrain from advising as to which option is to be adopted or which particular tactical decision is to be made. By way of illustration, it is entirely proper for a trial judge to explain the form of questions to be asked, ie illustrating what is a leading question. The judge may not, however, put the questions into the appropriate form for the accused, see McPherson v R (1981) 147 CLR 512 at 525; R v Gidley [1994] 3 NSWLR 168.

The theory that a fair trial, from the viewpoint of both the accused and the Crown can always be obtained with a trial judge neutrally conducting proceedings, whilst also satisfying a complex range of explicit and implied obligations to the accused is an ideal not easily achieved.

In practice, the absence of legal representation in an adversary system has the potential for grave mischief to all interests. The following are but a few non-exhaustive examples as to how this may come about:

* The most obvious examples relate to the uneducated, inarticulate, unattractive, intellectually limited mentally ill or disabled accused. At best, such an accused is incapable of making any real contribution to his or her own case and may for reasons of personal characteristics, rather than the strength of the evidence, be in peril of conviction and dire penalties.
* There is, as contemplated in Varley, the occasional potential for manipulation of the trial process by some accused persons. This tends to apply particularly to that small category of highly intelligent accused, amongst whom those charged with corporate offences are sometimes to be included. * There is the potential for undue advantage to be taken of the accused by counsel for the Crown.

* Counsel for a represented co-accused may take on the de facto role of a second Crown Prosecutor, distracting the jury from his or her own client's real role in the enterprise, alleged by the Crown and in which the accused may or may not be found criminally culpable, but for the accident of being attacked by the co-accused's counsel.

* An unrepresented accused is, more often than not, the greatest menace to his or her co-accused. A classic example is the clearly guilty and malicious accused who seeks, for reasons of spite, to prejudice the fair trial prospects of an estranged spouse or partner whose role in an alleged criminal enterprise is in fact marginal or entirely innocent. This can amount to trial by lottery, smear and ambush, well beyond what may be intended or fairly pursued by the Crown. * The controversial category of the unrepresented accused in facing trial for alleged serious sexual offences and who is now (by operation of s.294A of the Criminal Procedure Act 1986 barred from exercising formerly held rights to cross examine a complainant in person.

Pro Bono Representation

Both the Bar Association and the Law Society conduct valuable pro bono programs for the assistance of persons who, for one reason or another, have not sought or obtained legal representation. In addition to the Bar's own service, focused on the local court duty barrister scheme in the Downing Centre the Bar participates in the complementary schemes of Legal Assistance conducted through each of the Federal, Supreme and District Courts. The scale of these initiatives are necessarily limited, although invaluable to the persons that they do assist. By way of comparison, the Bar Legal Assistance Scheme in 2004-2005 represented 13 persons in the District Court's Criminal matters and 19 persons in Local Court Criminal matters. In the same period the Legal Aid Commission gave aid in 86,537 Local Court Criminal Matters.

The Legal Representation Office

The Legal Representation Office, is best known for the work that it does in arranging advice and representation for parties and witnesses, principally in the Police Integrity Commission and before the Independent Commission Against Corruption. My inquiries indicate that the Office receives and grants an average of about 140 applications per year. There have been no refusals in recent years. In a very small number of matters persons who are not eligible for legal aid have been also granted assistance, in the two instances that I am aware of a Public Defender was briefed and matters long delayed in District Court were able to be resolved.

The 'McKenzie Friend'

The concept of an otherwise unrepresented lay accused having the assistance of a person who may be unqualified flows from an English Court of Appeal Decision, McKenzie v McKenzie (1970) 3 All ER 1034. It has found little favour amongst Australian judges, for reasons elegantly articulated by Street CJ in R v EJ Smith (1982) 2NSWLR 608:

- a person who may well, for one reason or another, be concerned to promote the case of the person whom he is advising by fair means or foul, by legal means or illegal, or by any device whatever, a person immune from disciplinary or effective control by the trial judge — is in my view fraught with the prospect of causing serious miscarriages in the orderly and regular conduct of criminal trials in this State.

Much appellate authority since Smith is consistent with the view that the Courts should be reluctant to sanction lay representation. Although there has been somewhat less appellate concern, as to lay assistance in the Local Court, there has been a consistent pattern of decisions supporting a trial judge's discretion to refuse applications for a McKenzie friend, see for instance Damjanovic v Maley (2002) 55 NSWLR 149, R v Michael Kanaan [2003] NSWCCA 190.

Amicus Curiae

The tradition of members of the legal profession stepping in as friends of the Court is a noble one. It is to be encountered occasionally at most jurisdictional levels. Most recently, I note that Peter Hamil SC appeared in this capacity after attending to the needs of a client in the Court of Criminal Appeal. The arrangement is ad hoc and usually best suited to a brief appearance where little preparation or complexity is involved. It would be inappropriate, potentially dangerous and burdensome on the profession for there to be wide-spread reliance on the tradition as an alternative to conventionally founded lawyer-client relationships, particularly in contested matters.

Sources of General Advice for Unrepresented Persons

Both the Legal Aid Commission and Local Court web sites offer necessarily limited and general advice as to a party's right to enter a plea or defend a matter. The Commission's version is a little more detailed. Neither of these sources of advice are available in hard copy form.

The District Court offers general advice of a procedural kind to civil litigants on its website. Again there is no hard copy version for general distribution, although I should observe that pre-hearing assistance from staff is common and quite extensive.

In the Local Court the Chamber Magistrate may assist with general advice in civil matters. In minor matters, such as traffic pleas of guilty, it has long been common practice for the many unrepresented persons before the Court to be assisted by the simple mechanism of the presiding magistrate asking questions of the defendant standing in the well of the court. In some cases this may mean that the magistrate will simply ask if there is anything that the defendant wishes to say. Sometimes it means that the magistrate will go further and identify the relevant matters as to the objective features of the offence or matters ordinarily mitigating the offence.

In defended matters a magistrate is properly bound by similar restrictions upon the capacity of a judicial officer to assist, as opposed to advice in the most general sense, as indicated by the relevant parts of the Bench Book relied upon by trial judges.

The Criminal Trial Bench Book

The complexity of the challenges facing both the trial judge and an unrepresented accused can be fairly simply illustrated by reference to those parts of the trial bench book that appear under the heading of "Advice to Unrepresented Accused". The advisory directions are to be given, where appropriate, at the commencement of a trial. I might say, with respect to those who faced the difficult task of drafting them, the directions read as being quite succinct, at least if read to a person of moderate intellect and reasonable education, paying attention, and preferably taking notes.

The directions alert the accused to the significance of many matters. They include: the content of Crown Prosecutor's address, which he or she has just heard. An outline of the various procedural options and entitlements, modes of objection and the right, s.294A apart, to cross-examine. The accused person is warned of the obligation to put any suggestion at a witness is telling lies in a particular sense and the consequences of raising such allegations generally or in one's own case without prior cross-examination sufficiently to the same effect. The right to address after the Crown has completed his or her opening, before one's own case is presented and in closing is stated. The order of evidence, the order of addresses and the mode of questioning one's own witnesses is outlined. The perils of addressing matters not in evidence are indicated, as is the minefield of raising one's own character, in a variety of ways that are outlined.

The above is an incomplete sketch, only, of the general directions. One must respectfully say that all of the matters of which the accused is to be informed, expertly put as they no doubt always are, can only be as effective as the accused's capacity to understand, let alone remember them. It is to be noted that the four and a half pages of densely packed script, carefully conveying the well-honed "advice" (as indeed the bench book identifies the information imparted) represents general advice only, to be supplemented, as the bench book notes by further and more comprehensive directions during the course of the trial, as the need arises.

One does not need to be overly cynical to doubt the efficacy of the process, notwithstanding the excellence of the best efforts of the bench book's authors and the supplementary contributions of individual trial judges. When assessing the likely impact of the trial judge's directions one needs to consider the reality that much of what is said reveals aspects of the criminal justice system of which the accused has been hitherto ignorant and uncomprehending. This state is now to be remedied, as much as that is possible, by listening to advice now heard, in an inherently stressful and distracting public forum, in most instances, for the first time. In the real world criminal trial the accused person may sometimes be calm, attentive and retentive when receiving the advisory directions. The accused may also be an individual of average intelligence or better. Unfortunately, experience and most of the relevant data would suggest that many accused persons are possessed few if any of these helpful attributes.

Reasons for being Unrepresented

Lack of financial means.

In non-criminal matters lack of financial means remains a significant reason for being unrepresented. This has not commonly been the case for some considerable time in relation to criminal proceedings, where it is rare for an accused to be unrepresented for financial reasons alone. Although lack of representation is a serious obstacle for the persons concerned, I will pass across it briefly, as for the most part it has become a relatively rare phenomenon in courts of Criminal jurisdiction. Since the 1976 initiatives of the Wran government we have seen a particularly strong legal aid structure with a supportive private profession and a core of skilled salaried legal aid advocates.

In this state legal assistance is primarily means assessed. There is no merit test applied to defended criminal proceedings in relation to the granting of Legal Aid in the superior courts. Appeals to the District Court are assessed on merit. Aid is rarely if ever refused on the basis of merit in the Local Court, although the Commission reserves the right not to fund vexatious or frivolous defended matters. This is a serious obstacle for the persons concerned but I will also pass across it briefly, as for the most part it has become a relatively rare phenomenon in courts of Criminal jurisdiction.

A merit test for legal aid, is applied to appeals to the Court of Criminal Appeal and the High Court of Australia. The test for both jurisdictions is "a reasonable prospect of success" for aid extended by the Legal Aid Commission and "likely to succeed" in respect of aid directly extended by the Commonwealth.

With some rare exceptions, one may assume that most criminal accused persons can be represented if they wish, although not always by whom they wish. The unrepresented criminal accused in this context is sometimes a person with some means with a strong view that a particular lawyer should be retained, preferably at public expense. Occasionally, such a person will have refused aid for which he or she was eligible on terms requiring a financial contribution and acceptance of the Legal Aid Commissions view of appropriate representation. The latter is important, particularly for the efficient utilisation of the Legal Aid Commission's lawyers and the Public Defenders, who are to be briefed as the first option where available. Instances of the Commission's refusal and difficulties with means tests apart, it remains the case that many persons who are unrepresented in criminal matters make a choice in that regard or simply find themselves in that position through neglect or incapacity to act and obtain assistance. It is actually quite difficult to fall through the net. When individuals do, it is most often through ignorance, illness or disability.

Deliberately vs. Accidentally Unrepresented

There is an almost traditional category of persons who simply do not like lawyers. Some may say that this is an entirely reasonable position. A sub-set of this category are the persons who adopt the somewhat odd analysis that "every time I've had a lawyer I've got a sentence". This is a near relation to the analysis that one should never go to a hospital because that is where most people die. Plainly, persons who conscientiously take the view that they are best equipped, for whatever reasons of genuinely held belief or prejudice, to defend themselves may not be impeded in that course, although they are often given strong encouragement to obtain assistance when matters are called over before a list-judge of registrar.

A related group to those who simply do not like or trust lawyers are those who become unrepresented, having entered the lawyer-client relationship with fundamental misconceptions as to a lawyer's role. In part this can arise because there is an unfortunate expectation that a lawyer is a mere mouthpiece or, worse still, can be counted upon to either concoct or select a convenient case as the occasion might demand. At one level one cannot blame some clients for accepting much of the media-driven folk law as to what lawyers are willing to do. At another, it is incumbent upon a lawyer to dispel misconceptions as to what may be done and what cannot, indeed must not be done in the vigorous but ethical representation of a client's interests. One suspects, on the basis of long experience, that some lawyers are abandoned by clients because the lawyer has failed at an early stage to make clear the limits of the relationship. The classic instance is the client who suddenly finds himself unrepresented because he has changed his instructions in response to aspects of the Crown case, as it is revealed to him. This arises sometimes because the lawyer has obtained instructions in an and ethical vacuum from which the client then seeks to escape. Of course, it would be naive not to recognise that there are also clients who consciously want either an unethical lawyer or no lawyer and proceed unrepresented, perhaps after obtaining sufficient advice to believe that may be a tactical advantage in being able to conduct a case in a manner that no ethical lawyer would.

Disadvantaged and Unrepresented

Of great concern is a category of accused person that one suspects either are or will become unrepresented by reason of ignorance, illness or disability. The studies that have been periodically conducted in this area confirm ones personal experience and knowledge of both the notional, 'typical" indigent accused and (by extension) what we know of the prison population. In 1993 Professor Susan Hayes (of the University of Sydney's Department of Behavioural Sciences in Medicine) conducted an extensive court cohort study, investigating the prevalence of intellectual disability in a sample of people appearing before lower courts in New South Wales. The study revealed that 14.2% of persons before the lower courts achieved a standard score (similar to an IQ score) within the range that could be identified as intellectually disabled. A further 8.8% had a standard score in the borderline intellectual disability range. The implications of this study were confirmed more recently in 2003 when Tony Butler and Dr Stephen Allnutt conducted an extremely thorough and valuable large-scale survey of the prevalence of psychiatric disorders amongst prisoners in New South Wales custodial institutions. The resulting report confirmed what many of us practising in the criminal law would suspect, that the prevalence of psychiatric disorders amongst persons in contact with the criminal justice system is indeed massive. The survey revealed that, overall, 74% of the assessed prisoners had at least one psychiatric disorder (psychosis, effective disorder, anxiety disorder, substances use disorder, personality disorder or neurosthenia) in the 12 months prior to their interview assessment. 46% of reception and 38% of sentenced inmates were diagnosed as having at least one mental disorder (a psychosis effective disorder or anxiety disorder) in the 12 months prior to their interview assessment. Substance use disorder was the most common diagnostic, with 66% of the reception inmates and 38% of the sentenced inmates meeting the diagnostic criteria in the previous 12 months. These figures reveal a prevalence of psychiatric disorder well in excess of that occurring in the general community, being 22%, as against 77% in inmates.

This is consistent with the earlier reports in studies, including those of Professor Hayes and Gerard Craddock of the New South Wales Bar in 1988. The Law Reform Commissions report 80 of 1996 also accepted that something of the order of 30% of persons then appearing in a surveyed six local courts had significant intellectual deficits.

One would be surprised if, at least a large proportion, of persons who make the perilous decision to be self represented overlap the proportion of persons who are mentally ill or intellectually disabled. Some hint of the reality of this situation can be obtained by an occasional visit to the Supreme Court's criminal call-over list of in the common law division wherein a judge of the Court will be calling-over and listing homicide trials. A casual observer would be quite unsettled by the frequency with which the accused person appearing from behind the cell door is, even to a lay observer, patently psychotic. Such persons are often the subject to action by the Court or the parties to start proceedings down the path of fitness hearings, and it the accused is unfit, trial process by way of the Mental Health (Criminal Procedure) Act mechanism of a Special Hearing. Such persons from time to time will make a determination, irrationally, to exercise a right to be unrepresented, either ab initio or upon developing an obsessional view concerning the lawyers that have been previously engaged.

Culturally based rejection of representation.

In addition to the vexing issue of obtaining and maintaining representation for mentally ill persons there is another category of persons who occasioned particular anxiety and difficulty for the justice system arising from their unrepresented status. Such persons are in a thankfully small category so far. For convenience, they may be broadly categorised as seeing themselves as alienated, culturally apart and ambivalent in their interactions with the justice system, including the legal profession. For a variety of complex reason, including perhaps in some instances mistaken tactical judgements, such accused persons may simply reject the notion that our system can supply them with a fair trial. For that matter, that may reject the notion that they require any notion of a trial that is "fair", as is commonly understood by most of the community. Such persons have raised a particular concern, not least of all when one considers the way that the Legislature has responded to the challenge of unrepresented accused in sexual offence trials by way of s.294A of the Criminal Procedure Act 1986.

s.294A of the Criminal Procedure Act1986.

This amending section, enacted in 2003 was to designed to prevent unrepresented accused persons from directly cross-examining complainants in sexual offence proceedings. The section provides:

s. 294AArrangements for complainant in sexual offence proceedings giving evidence when accused person is unrepresented
(1) This section applies to sexual offence proceedings during which the accused person is not represented by counsel.
(2) The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court.
(3) The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant.
(4) Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice.
(5) The court does not have a discretion to decline to appoint a person under this section, despite anything to the contrary in section 28 of the Evidence (Children) Act 1997or any other Act or law.
(6) This section applies whether or not closed-circuit television facilities or other similar technology (or alternative arrangements) are used by the complainant to give evidence.
(7) If such a person is appointed in proceedings before a jury, the judge must:
(a) inform the jury that it is standard procedure in such cases to appoint the person to put the questions to the complainant, and
(b) warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because of the use of that arrangement.
(8) This section extends to proceedings instituted before the commencement of this section, including proceedings that have been partly heard.
(9) In this section:
accused person, in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a sexual offence.

complainant, in relation to any proceedings, means the person, or any of the persons, on whom a sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes:
(a) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and
(b) in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for pornographic purposes.
sexual offence means:
(a) a prescribed sexual offence, or
(b) an offence against section 73, 78A, 78B, 80D, 91A, 91B, 91D, 91E, 91F or 91G of the Crimes Act 1900, or
(c) an offence that includes the commission of, or an intention to commit, an offence referred to in paragraph (a) or (b), or
(d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).
sexual offence proceedings means proceedings in which a person stands charged with a sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.

In one sense the controversy as to whether the above provisions was a proper or excessive response to an occasional but nevertheless real problem has been resolved by the fact that , having considered the objections of various parties, including the Law Society, the Bar Association, the Legal Aid Commission and the Public Defenders Parliament has now enacted the section. The Courts, as is proper, have dutifully done their best to implement the statute. It is also to be conceded that there are similar models of restriction upon the right to cross examine in other common law jurisdictions, notably in England and also in Scotland, although the details of such models vary.

There remains a real concern as to whether the provisions can be effectively employed without injury to the rights of the accused and confidence in a fair trial being undermined. As to the challenge of avoiding such outcomes, one can only respectfully adopt the observations of Sully J (as to the inherent difficulties in s.294A) when ruling on the separate trial applications of the three represented accused of five, two being unrepresented in R v MAK, RS, MSK,MRK & MMK [2003] NSWSC 849 at [24]. It suffices to say that his Honour made a number of observations pointing to the obvious difficulty in implementing the section. They include:
The difficulty of determining how and where the trial judge is to find a suitable person to put questions on the behalf of the accused. The qualifications and training of such a person. Whether (as seems reasonable) and how supplementary questions are to be put. The probable necessity to have the jury absent whilst forms of questions are settled.

The above is but an incomplete summary of the matters of concern raised by Sully J. That the Court of Criminal Appeal was not disposed to canvass them when the matter was later before the Court (and indeed Wood CJ at CL expressed himself a uncomfortable with the 'stridency' of his Honour's implicit critique of the legislation) does not alter the reality that the section and its operation are problematic for an accused person and for the perception of a fair trial. In the event none of the unrepresented accused in MAK & anor. accepted or availed themselves of the s.294A procedures and their cases were not able to include any challenge to the complainant as a result. My inquiries reveal that, to date no other accused in either the District or Supreme Courts has employed the s.294A mechanism. One looks forward to a review of s.294A, its efficacy or otherwise in due course.

Some Suggested Measures and Initiatives:

Ideally, whilst respecting even the perversely exercised rights of accused persons, the phenomenon of the unrepresented accused is to be discouraged and the timely receipt of advice and representation is to be both encouraged and facilitated where ever that it possible. Inevitably, some persons will either be or become unrepresented. I suggest the following to both assist the determinedly unrepresented and encourage others to avoid that status.

Protection of The Unrepresented and Unfit Accused

The present position with regard to protective representation of such persons is anomalous. An accused person found, by a judge or judge and jury to unfit to stand trial cannot be obliged to accept representation at his or her trial by way of the Special Hearing mechanisms. Although this is a 'right' at law, in an effective sense the supposed right is elusory, particularly if it is merely the exercise of a perverse choice that undermines the predominant right to a fair hearing. The position of counsel appearing for an unfit accused is presently invidious. Neither Bar/ Advocate rules, common law nor statute clearly define the duties and powers of counsel and solicitor advocates, including any entitlement to ignore an irrational instruction that one is no longer retained. Consideration should be given to legislative reform, to the extent that counsel previously retained or fresh counsel may be appointed by the Court, with appropriate arrangement for the public funding of such representation.

Public Education

It is too readily assumed that most people understand that the criminal law, in particular, strives to be fair and just. This and the complexities of the law, often protective of the accused are, in fact, little understood by sections of the community, most particularly those in a position of cultural minority and disadvantaged persons who are often most a risk when coming into contact with the criminal justice system. At a basic level the simplest of concepts, taken for granted by many in the mainstream are a mystery to others.

Government and the profession should consider whether something of a basic civics element needs to be introduced into an the earlier level of formal education than optional legal studies courses, which are more complex than is required and are generally part of secondary education. Amongst some minority communities it remains the case that even persons who have been in this country for some years or were born here can still come into and through the court system, retaining basic misconceptions as to such supposed 'givens'. These include such concepts as separation of the judiciary from the executive government, the absence of judicial corruption as an entrenched expectation, the proper role of lawyers and the existence of a burden of proof upon prosecuting authorities. It would be a powerful aid to the stability of a multi-cultural society in troubled times if some basic aspects of the legal system could be made known to people who might otherwise have no confidence in or knowledge of it.

Professional Awareness

Whilst it is obvious that lawyers are be expected to know the proper extent and limit of their professional duties, it should not be assumed that all clients know, understand and accept these limits. It is sometimes the case that persons become unrepresented because of avoidable ethical conflict arising from mistaken assumptions that foredoom their relationship with any ethical lawyer. At a basic level, lawyers who instruct or appear as advocates need to clearly establish the ethical rules of engagement with clients in criminal matters at an early stage. One common area of confusion, more particularly shared by clients and some inexperienced lawyers, is that 'instructions' as to a matter do not include 'orders', or a role for the lawyer as their author. Confusion in this area can lead to disappointment and the forced option of being unrepresented.

Earlier Provision of Guidance and Information to Unrepresented Accused

Local Court
As noted above, the Legal Aid Commission offers basic advice as to the course of Local Court guilty pleas and defended matters on its web site. There is no hard-copy brochure or guide offered across the counter at Local Courts or elsewhere. There could be substantial benefit in something of this kind being made available, although I would emphasise, not above Local Court level. By way of example I have appended a document made available to unrepresented defendants appearing in Scottish District ( ie Local ) Courts.

District and Supreme Court
I make no criticism of the Bench Book's standard and general advice, referred to above. The difficulty is that it is, at its simplest, necessarily complex and is not made known to the accused person until served, as it were, in one large portion on the day of trial. If something in the way of a summary trial protocol were available to be handed to an accused at call over, the accused could be required to return after a brief period of consideration to confirm understanding of the protocol and determination to proceed unrepresented.

Apart from conveying information at an relatively early stage, the process would have a likely encouraging or deterrent impact, so far as revealing the complexity of the trial process and provoking second thoughts as to continuing unrepresented. Obviously, the form and content of the protocol would require great care and effort, as would measures to ensure its availability in various languages and with appropriate training for and support by Court personnel to be considered.


One suspects that a proportion of unrepresented persons will always be present in our courts, including those that administer criminal justice. There is a powerful community interest in ensuring that such persons obtain a process that is perceived by the community as fair, even if imperfect. Ideally, we need to pursue every measure that diminishes the occasions upon which any person appears unrepresented. To do less diminishes the invaluable asset that our present system represents when functioning at its best.

Chris Craigie SC
Deputy Senior Public Defender