HIS HONOUR: Before the Court is a motion by which the appellant, Robert Klewer, seeks leave "to be represented by his mother, Lucy Klewer." It is supported by an affidavit from the appellant together with one from his mother. The latter annexes numerous documents.
The substantive proceedings are an appeal brought by the appellant against his convictions in the Local Court arising out of incidents which took place, as I understand it, when certain eviction activities were being carried out.
The two charges which the appellant was convicted of were resisting an officer and assaulting a police officer in the execution of his duty. The relevant appeal is brought pursuant to the provisions of the Crimes (Appeal and Review) Act 2001 (NSW). His mother was also convicted of three counts of throwing missiles arising out of the same events. The appellant's hearing in the Local Court was a joint hearing with that of his mother. Whilst he has appealed his convictions, his mother has not.
The substantive matter was called over at the start of these criminal sittings last Monday. At that time, the appellant's mother made an oral application to represent her son. Upon questioning, she agreed that she had been declared a vexatious litigant and that she herself had been convicted in the same set of proceedings from which her son has appealed. She also agreed that she is not a qualified lawyer admitted to practice in this State.
In those circumstances, I declined to permit her to represent her son. I then stood the matter over to today to fix a date for the matter to be heard during these sittings. On Thursday last, my Associate received through the Registry the motion and affidavits that are currently before the Court which had been filed at this Court the day before.
Today I asked the appellant who it was that actually handed the motion across in the Registry and he told me that it was his mother, although he was apparently with her at the time.
Klewer v R [2016] NSWDC 224 | Case summary | Zoe
In declaring the appellant's mother a vexatious litigant in February 2010, Harrison J ordered that she not without the leave of the Court institute any legal proceedings in any Court: see Attorney General for New South Wales v Klewer (No 3) [2010] NSWSC 9.
Section 4 of the Vexatious Proceedings Act 2008 (NSW) (the Act) defines, "proceedings", to include:
"(a) any cause, matter, action, suit, proceedings, trial, complaint or enquiry of any kind within the jurisdiction of any Court or tribunal, and
(b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a Court or tribunal, and
(c) any calling into question of a decision, whether or not a final decision, of a Court or tribunal, and whether by appeal, challenge, review or in another way."
Section 5(1)(d) of the Act defines, "institute", to include:
"For civil or criminal proceedings or proceedings before a tribunal - the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings."
Section 5(2) of the Act provides that a reference to, "instituting proceedings", includes a reference to:
"(a) (proceedings generally), and
(b) proceedings in relation to a particular matter, and
(c) proceedings against or in relation to a particular person, and
(d) (proceedings in a particular Court or tribunal)"
Section 13(1) of the Act provides that where a Court has made a vexatious proceedings order prohibiting a person from instituting proceedings, that person, or another person acting in concert with that person, may not institute proceedings without leave of an appropriate authorised Court.
Further, pursuant to s 13(2), if such proceedings are instituted without such leave, they are to be stayed until they are dismissed or taken to be dismissed under subs (3) or (4). In this regard, this Court, which would be the Court in which the proceedings were instituted if they fall within the Act, may dismiss the proceedings of its own motion: see s 13(5).
In my view, it is strongly arguable that the filing of the subject motion constitutes the institution of proceedings within the meaning of the Act, either by the appellant's mother or by him acting in concert with her and where the necessary leave was neither sought nor obtained. If that is the case the motion is thereby stayed and this Court should dismiss it forthwith of its own motion.
However, as it is not entirely clear on the information available to the Court that the filing of the subject motion should be so construed, I intend to deal with it on its merits.
In this regard, the first question that needs to be answered is whether the Court has any power to, as the motion seeks, allow an unqualified person to represent an appellant in criminal proceedings.
Section 36(1) of the Criminal Procedure Act 1986 (NSW), provides that an accused person may appear personally or by an Australian legal practitioner or other person empowered by an Act or other law to do so.
Section 28 of the Criminal Procedure Act provides that pt 3 of that Act which includes s 36, applies to the extent that it is capable of being applied to all offences however arising, whether under an Act or at common law, wherever committed and in whatever Court dealt with.
As mentioned, the appellant's mother is not legally qualified nor is she an admitted Australian legal practitioner. In saying this, I note that one of the annexures to her affidavit is a Diploma of Legal Studies obtained by her in 2002 from the Southern Cross University. As I understand it, this qualification is not a law degree but a qualification offered to persons whose career paths may be assisted by some basic knowledge of the law.
Accordingly, it would seem that I have no power to permit the appellant's mother to represent him as sought. However, it may be that what the appellant is really seeking is that I allow his mother to operate as a "McKenzie friend" in the subject appeal.
The use of McKenzie friends in criminal proceedings was discussed at some length by the Court of Criminal Appeal in R v EJ Smith [1982] 2 NSWLR 608. Special leave was sought from this decision but refused: see Smith v R (1985) 159 CLR 532; [1985] HCA 62. As to this issue, the Court of Criminal Appeal constituted by Street CJ, Nagle CJ at CL and Maxwell J, unanimously held that an accused person has no right at law or in practice to be permitted to avail himself of a McKenzie friend and that it, "is a matter of indulgence available only in extraordinary circumstances." Street CJ went on to discuss the dangers of permitting the use of a McKenzie's friend.
Whilst Street CJ was primarily talking about actual criminal trials, his comments, in my view, apply to proceedings such as those at hand. Street CJ commenced by pointing out that the practice of permitting a McKenzie's friend had only then recently arisen and that it "often threw up great procedural complications and difficulties." Street CJ went on to approve the comments made by the trial judge in the case then under appeal, Goran DCJ, which were as follows:
"...I feel that the main consideration should be that consistent with a fairer and proper trial of the issues between the Crown and the accused. The trial Judge should stand in no danger of losing control of that trial. The real danger of the way in which the new practice has developed is that such proper and firm control may be lost."
Street CJ then approved the remarks of Cross J made in R v Jackson (Court of Criminal Appeal (NSW) 2 December 1980, unrep) which were as follows:
"I am of the opinion that this practice is quite undesirable. If the accused is granted Legal Aid, then his professional advocate should have the conduct of the case. Such a course results in a fairer trial and in a trial with reasonable expedition. The alternative, experience has shown, is time consuming and liable to cause irregularities."
After setting out these remarks, Street CJ continued as follows:
"I agree with these views. They represent the substantial body of opinion held by Judges presiding at criminal trials in relation to this practice. Permitting assistance of this nature is fraught with the prospect of abuse, as well as the prospect of leading to undue prolongation, irregularities and possible perversion in the fair and proper conduct of criminal trials. The practice was the subject of unfavourable comments in the judgments in the Court of Appeal in the Supreme Court of this State in Re B [1981] 2 NSWLR 372. It was described by Helsom CJ in Eq at (p 105) as "an abhorrent forensic device permitted for a while to operate here in some criminal courts." Moffat P also referred to the practice with disfavour and (at pp 385, 386) exposed some of the reasons for it being fraught with potentially disruptive consequences. The task of a trial Judge to ensure there is a fair trial is a heavy one. The path to be followed by him is well chartered. The introduction of new and undisciplined approaches such as are inevitably involved in the concept of a "McKenzie's friend" presents to a trial Judge the prospects of difficulties which would in many cases render it almost impossible for him to discharge his duty of ensuring a fair trial. The discharge of that duty requires that he should have full control over the course of proceedings before him. That control can readily be exercised in respect of legal representatives who as such have obligations to the court and are subject to the control and discipline of their professional obligations.
The trial Judge's control can also be exercised where an accused appears for himself or herself although, admittedly with a greater degree of difficulty in such cases, the circumstance that the accused person has chosen to represent himself or herself brings him or her in direct personal contact with a whole trial process. In consequence, what that person says or does can be subjected to the control of the trial judge.
To permit indirect participation in the trial process by a person to whom the Court has no direct access, in a disciplinary and controlling sense - a person who may well, for one reason or another, be concerned to promote the case of a 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.
Notwithstanding the risks in permitting access to a 'McKenzie's friend', and the absence of any right to insist upon having such assistance, I would not go to the length of holding that a trial Judge would necessarily be wrong in law, if in a particular situation he would allow an accused person to have the assistance of a McKenzie friend, he could if he chose, permit such assistance as a matter of indulgence, either in respect of the entirety of the proceedings or in respect of some particular part of the proceedings. In light of experience it seems likely that trial Judges would only consider granting such permission in extraordinary circumstances, it is important to make clear that neither the law nor the practice governing criminal trials in this State recognises any right on the part of an accused person to avail himself of a McKenzie friend. I do not assent to the absolute proposition that refusal of permission for a McKenzie friend gives right to a valid challenge in law to the course or proceedings at the trial. This ground is not made good."
In discussing the leave application in the High Court, Gibbs CJ stated at [2]:
"The question whether an accused person should be allowed to have a 'McKenzie friend' present at his trial is very much a matter of practice and procedure and within the discretion of the trial Judge to decide. It would far too absolute to say that an application to have a McKenzie friend should always be refused. All the circumstances of the case must be considered in deciding upon the application."
The said leave application was sat on by five Judges, including Gibbs CJ. Dawson J expressly agreed with Gibbs CJ and Wilson J agreed with the Chief Justice's "observations". It is rather unclear from their short remarks what Deane and Brennan JJ thought as to this issue. In these circumstances, there seems to be some degree of tension between the remarks of Gibbs CJ on the High Court leave application and those of Street CJ, with whom Nagle CJ at CL and Maxwell J agreed in the Court of Criminal Appeal. However, no binding decision is created by the refusal of the High Court to grant special leave: North Ganalanja Aboriginal Corporation & Bidanggu Aboriginal Corporation on Behalf of the Waanyi People v The State of Queensland & Ors (1996) 185 CLR 595; [1996] HCA 2 per McHugh J at [43].
Accordingly, I consider myself bound by the Court of Criminal Appeal decision on this topic, namely that permitting a McKenzie friend is "a matter of indulgence available only in extraordinary circumstances." I do not believe that such circumstances exist in the present case. Indeed, even on the somewhat broader test described by Gibbs CJ, namely upon the consideration of all the circumstances of the case, I would still not allow the appellant's mother to act in the capacity of his McKenzie friend. In fact, the present circumstances are such as to positively point against doing so. In this regard, I have read the lengthy decision of Harrison J describing the appellant's mother's behaviour in 60 separate proceedings instituted by her in a wide range of courts prior to declaring her a vexatious litigant. Such behaviour was generally disruptive and often disrespectful. On numerous occasions she would simply walk out of proceedings or fail to attend at all. Her behaviour greatly added to the length of many proceedings. Here it should be noted that the matter appealed from went over four days before the learned Magistrate and takes up close to 500 pages of transcript.
In the matters recounted by Harrison J, the appellant's mother also often delayed and prolonged proceedings for no good reason and raised many arguments which had no basis in law or in fact. His Honour described her as having scant, if any, regard for the rules and procedure of the Court and even less regard for the need to present a case supported by evidence. His Honour quotes from one Judge of appeal in one of her matters, in which that Judge states that she was "unwilling or unable to present her case in an orderly manner and answer even the simplest of questions asked of her by the Court."
In my view neither the Court, nor indeed her son, the appellant, would be in any way assisted if she was permitted to act as a McKenzie friend in the subject appeal. In fact, to do so would most likely greatly extend such appeal's hearing time for no good reason and lead to many false and confusing issues being raised.
In saying this, I have taken into account the contents of the affidavit evidence. The appellant's affidavit causes me no real concern that he cannot represent himself. In fact, it shows him to have a reasonable understanding of the nature of the current proceedings, perhaps better than many self‑represented litigants. From my observations of him, the brain damage that he says he suffers from does not seem to affect his cognition or capacity to reason, but rather his speech and vision and right hand movement. Indeed, he expressly confirmed this before me today. Further, in the lower Court, his mother stated to the learned Magistrate that his intelligence was not affected: see 3.42 of the transcript of Monday, 15 February 2016.
As to the mention of his epilepsy medication making him tired, I will make sure, or any Judge who hears the appeal will undoubtedly make sure, that he has ample time to present his arguments, including having breaks if necessary.
Whist there is a short report from a neurologist annexed to his mother's affidavit stating that the appellant has epilepsy and that extreme stress can provoke epilepsy in some patients, I do not read his report as suggesting that the appellant is one of those persons. Further, this appeal is to be dealt with on the papers and the appellant, who gave evidence before the learned Magistrate without apparent incident, will not need to do so again in this Court.
His mother's affidavit is a rambling document in which she asserts that she was wrongly convicted, even though she has not appealed the relevant convictions. It contains a lot of what could loosely be described as submissions and makes various allegations against police and others, of unrelated criminal behaviour.
I have also read the transcript of evidence before the learned Magistrate. The appellant's mother's behaviour during the course of the hearing before him was extremely disruptive and abusive. She admitted to yelling at witnesses and stated to one of them that she wished to "ring his neck." She was often told by the learned Magistrate to calm down but to no avail. She called for the complainant to be "locked up". In cross-examination of one witness she remarked that "as sure as you're standing there Terry okay - now I'm not one of your associates who bullshit you all the time." She raised numerous irrelevant events and her address was very lengthy indeed and often incomprehensible. After being found guilty of the relevant charges, she abused the learned Magistrate at considerable length and in very derogatory terms, before simply leaving the Court prior to being sentenced. In all, I have seldom read a record of proceedings which involved anyone behaving in the manner in which the appellant's mother did in the lower Court.
The appellant also seeks to rely upon the fact that his mother was permitted, in effect, to run both her and his defence before the learned Magistrate as a reason for me to permit her to do so again or at least act as a McKenzie friend in relation to his appeal. I do not know whether the learned Magistrate had regard to any of the matters to which I have had regard, however, I rather suspect that he permitted this to occur because the appellant's mother was facing charges arising out of the same events and these and the charges against her son were being dealt with in the one hearing.
In any event, I am not bound to follow the procedure of the learned Magistrate, especially where the appellant's mother is not herself before the Court, having not appealed her convictions.
The appellant also seeks to rely upon the fact that another Judge of this Court, Whitford SC DCJ, permitted his mother to appear for him on an earlier application to call fresh evidence in the appeal as being a reason why I should permit it to occur again. I am unaware whether my brother Judge was aware that the appellant's mother had been declared a vexatious litigant or whether he was aware that she herself had been charged and convicted out of the same incident, nor if he had read the transcript of the Local Court proceedings. In any event, with respect, I am not bound by what his Honour did in relation to the earlier application.
Finally, in my view, it is not in the interests of justice that declared vexatious litigants should be permitted to act for or assist close relatives in criminal proceedings, especially where they have been convicted of criminal conduct arising out of the same series of events. Accordingly, the motion is dismissed.
[2]
Amendments
21 September 2016 - Catchwords - edited catchwords
[6] grammatical correction
[23] grammatical correction
[25] grammatical correction
[27] grammatical correction
[28] grammatical correction
[30] grammatical correction
[33] grammatical correction
24 September 2016 - [33] corrected second sentence to read "the appellant's mother's behaviour" in lieu of "the appellant's behaviour".
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Decision last updated: 24 September 2016