Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application seeking an order for amicus curiae

Macartney v The Queen [2006] WASCA 29

McKenzie v McKenzie [1971] P 33

Mikhail v The State of Western Australia [2012] WASCA 200

(This judgment was delivered extemporaneously on 23 November 2012 and has been edited from the transcript.)

1 The appellant was sentenced in the District Court to a total effective sentence of 2 years and 3 months' immediate imprisonment, with eligibility for parole backdated to commence on 31 December 2011, for offences of, going armed in public to cause fear, making threats to kill, stealing and breaching a community based order. He was sentenced to 1 year's imprisonment for going armed in public, 2 years' imprisonment for the threat to kill, 1 month's imprisonment for the stealing and 3 months' imprisonment for the offence of breaching the community based order.

2 The appellant alleges that the sentence for the threat to kill is manifestly excessive. Leave to appeal has not yet been granted and the question of leave to appeal will be the subject of a hearing listed on 3 December 2012. Up to date, the appellant has acted in person. It would, of course, be better if he was legally represented but, based on what the appellant has told me, that seems unlikely.

3 Before the court is an application filed by the appellant on 15 November 2012, seeking an order that Adam Mikhail be given leave to appear on behalf of the appellant as amicus curiae. The affidavit in support of his application is sparse. Essentially, the appellant says that his literacy skills are low and that he does not understand the court processes and procedures. He says that legal aid has been refused and that he 'requires' Adam Mikhail to help him understand what will occur in the courtroom at the hearing.

4 The proposed amicus curiae is presently serving a life sentence with a minimum non-parole period of 37 years, for the wilful murder of two people: see Mikhail v The State of Western Australia [2012] WASCA 200. At the hearing of the application, I endeavoured to clarify with the appellant whether he wished Mr Mikhail to act as amicus curiae or whether in fact he wanted Mr Mikhail to act as a McKenzie friend: see McKenzie v McKenzie [1971] P 33. It is clear enough that he wants Mr Mikhail to make oral submissions and generally act on his behalf in the nature of an amicus. The circumstances in which a court will permit a party to proceedings to be represented by a person who is not admitted to practice are exceptional. The reasons for this are not designed to protect lawyers' privilege or monopoly and must not be seen as a technicality. An admitted legal practitioner has ethical duties and responsibilities that unqualified persons do not have. It will not generally be in the interests of justice for an unqualified person to represent a party in proceedings: see Macartney v The Queen [2006] WASCA 29 [3] - [4] (Steytler P).

5 It is trite to observe, that Mr Mikhail is not admitted to practice. Regardless of this, he is not, by reason of his convictions, an appropriate person to appear as amicus curiae. Accordingly, the appellant's application must be refused.

6 It may be that in light of my decision, the appellant wishes to be assisted by a McKenzie friend. The usual role of a McKenzie friend is to take notes, quietly make suggestions and give advice. The appellant is at liberty to seek the permission of the court to use a McKenzie friend but whether the court allows a McKenzie friend will be a matter for it to decide.

7 It is relevant to note, that the appellant's case, although brief, succinctly sets out his arguments and refers to a number of cases said to be comparable to the appellant's. The invariable practice of this court is to read and be familiar with all of the material that was before the sentencing judge and the sentencing remarks. Oral submissions in applications for leave to appeal are often brief.

8 This court is well aware of the difficulties that are sometimes encountered by litigants in person and does its best to accommodate those difficulties. It is, as a matter of fact, rare that a McKenzie friend is necessary but in the end, that is something which will always be decided on the facts and circumstances of the individual case.

9 For these reasons, the order that I make is that the application filed by the appellant on 15 November 2012 is dismissed.