Subject to rule 1A and subject to Part 63 rules 2 and 3 (which relate to disability), any person may enter an appearance and may defend proceedings by a solicitor or in person."
19 The magistrate stated that she did not mind if Mr White sat at the bar table and assisted Mr Portelli but that Mr Portelli would have to do his own representation. That is, she gave Mr White permission to appear as a "McKenzie" friend.
20 In O'Toole v Scott [1965] AC 939 the Privy Council considered the right of unqualified representation under s 70(2) of the Justices Act 1902 (NSW). Reid, Morris, Pearce, Donovan and Pearson LJJ at 598 stated:
"There remains for consideration the appellant's alternative contention to the effect that, if the magistrate has a discretionary power to permit some person, not being the informant or his counsel or attorney, to conduct the case for the informant, such power is properly exercisable only on the facts of a particular case where for some special reason it is necessary for the administration of justice that such permission be given. There are two points involved, namely (1) that the discretionary power must be exercised specially in a particular case and not by way of a general practice and (2) that the discretionary power is properly exercisable only when its exercise is necessary for the administration of justice, and not when it is merely desirable for convenience and expedition and efficiency in the administration of justice. There is, however, no sound basis for either point. There is no statutory limitation of the discretion. The discretion is not conferred by statute but is an element or consequence of the inherent right of a judge or magistrate to regulate the proceedings in his court. There is no reason in principle for limiting the discretion as suggested. It can be exercised either on general grounds common to many cases or on special grounds arising in a particular case. Its exercise should not be confined to cases where there is a strict necessity. It should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition and efficiency in the administration of justice."
21 In McKenzie v McKenzie (1970) 3 All ER 1034 the Court of Appeal approved the statement by Lord Tenderden CJ in Collier v Hicks (1831) 2 B & Ad 663 at 669 where he said:
"Any person whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices."
22 In McKenzie, the "friend" was Mr Hangar who was a qualified member of the bar in Australia who sat quietly beside one of the parties at the bar table and gave him quiet advice or prompting.
23 Mr Goh referred to Smith v R (1985) 159 CLR 532 where the High Court stated:
"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 be 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. However, when the accused has been offered legal aid but has refused it, and nevertheless desires to have a barrister appear as a "McKenzie friend", it would be understandable if the judge regarded his application with some scepticism."
24 However as previously stated, it is not the "McKenzie" friend issue that was in dispute, rather it was whether Mr White could appear in the role of an advocate for Mr Portelli. Mr Goh also referred to Horbelt v Elliott & Turner (1995) 184 LSJS 31 where Olsson J stated:
"15. A perusal of the judgments of their Lordships in McKenzie v McKenzie (1970) 3 All ER 1034 and in R v Leicester City Justices, ex parte Barrow and Anor (1991) 3 All ER 935 readily reveals that the concept of a "McKenzie friend" envisages permitting a lay person to attend the trial and take notes, quietly make suggestions to the litigant in person and give advice to that litigant. It certainly does not extend to acting as a lay advocate and/or speaking on behalf of the litigant. Moreover, it is a matter of discretion of the Court, in the particular case, as to whether it is appropriate for a "McKenzie friend" to be involved at all (Smith v R (1987) 71 ALR 631).
16. It is to be noted, by way of contrast, that section 38(4) of the Magistrates Court Act, 1991 expressly confers a right in a litigant in the Minor Civil Actions jurisdiction "to be assisted by a person who is not a legal practitioner" on an honorary basis. However, in the other jurisdictions of the Magistrates Court, the situation rests on the authorities above referred to.