Self represented accused

As such, it is necessary that a particular (and perhaps even special) degree of fairness has to be applied where the defendant is unrepresented.

A self represented accused poses particular difficulties for a court. These difficulties are multiplied in the criminal context, whether the unrepresented defendant has made the decision to defend themselves, or has been forced to that position by circumstances.

These difficulties extend beyond those inherent where a person untrained in the law is attempting to conduct a hearing or a trial. As such, it is necessary that a particular (and perhaps even special) degree of fairness has to be applied where the defendant is unrepresented.

The trial judge also bears a particular burden in ensuring that only admissible evidence is admitted, given that the trial judge will not have the assistance of a representative for the defendant. This all has to be done without giving any hint of bias for or against the accused.

The burden is also extended to the prosecutor. There is a line of authority that it is permissible to require, in general, that the prosecutor not deliver a closing argument where the defendant is unrepresented. However, the duties of the prosecutor must surely extend beyond that to ensure that the trial is a fair one, but without expecting the prosecutor to abandon their role in what remains, at its core, an adversarial process. The Prosecution Guidelines published by the Office of the Director of Public Prosecutions provides guidance in this respect (Chapter 23). Those rules require the following:

“While a prosecutor has a duty of fairness to an accused person, it is not a prosecutor's function to advise an accused person about legal issues, evidence, inquiries and investigations that might be made, possible defences or the conduct of the defence. However, the prosecutor also has a duty to ensure that the trial judge gives appropriate assistance to the unrepresented accused person”

 

E J SMITH

R v E J Smith [1982] 2 NSWLR 608

Allowing a McKenzie’s friend is “fraught with the prospect of causing serious miscarriages in the orderly and regular conduct of criminal trials”

“As Barwick CJ said, it is the usual practice for the Crown not to address where an accused is unrepresented. But it goes no further than that. It is not a rule of practice, still less is it a rule of law.”