R v Eriksen (No 4)

Anthony Eriksen, (“the accused”) appears self-represented at his trial where he is charged with the murder of Lisa Fenwick (“the deceased”).

Brief summary of legal principles

4. Where an accused is unrepresented at trial, it is usual practice for the Crown not to make a closing address. This is not a rule of practice, let alone a rule of law: R v E J Smith [1982] 2 NSWLR 608 (“E J Smith”) at 616; R v Zorad (1990) 19 NSWLR 91 (“Zorad*”) at 94. See also TS v R [2022] NSWCCA 222 (“TS”*) at [92]-[94].

5. In Zorad at Pp 94-95 the Court continued:

“We see no reason to depart from this Court’s decision in Smith’s Case. The practice that the Crown Prosecutor does not make a closing address where the accused is unrepresented appears originally to have arisen because it was thought to be unfair to an accused who could not afford representation that he should be pitted against a trained advocate in the final stages of the trial. With the ready availability of legal aid at the trial stage, however, there must be at least some question whether such an approach continues to be appropriate. There is an increasing tendency of accused persons with a long experience of the criminal justice system electing to dispense with legally aided professional representation in order to obtain certain tactical advantages, but in our view the practice needs to be reconsidered whatever the purpose may have been of the election to appear unrepresented.

This is not the case in which to undertake such a reconsideration. We should add, however, that nothing which we have said should be interpreted as suggesting that an accused should suffer an added disadvantage because of his election to appear unrepresented. That election is a fundamental right which should not be interfered with. What we are concerned to point out is that, with the availability of legal aid (so that the election is no longer dictated by financial considerations), an accused who nevertheless makes that election should not expect to be given an advantage which is not given to an accused who is represented.

Accepting its continued application, the practice in this State permits both the judge and the jury to have the assistance of an address from the Crown Prosecutor particularly where the factual issues are complicated. That is, as Street CJ said in R v E J Smith, a matter of fairness to the Crown and to the public on whose behalf it prosecutes. In those cases where the accused has elected to appear unrepresented (whether or not in order to obtain tactical advantages), such complication is more likely — if only because of the way in which such a trial is inevitably conducted.”

6. It is clear that the decision whether the Crown Prosecutor should address the jury where the accused is unrepresented is one for the trial judge, in the exercise of his or her discretion, to ensure that the trial is fair in all respects: E J Smith at 616; Zorad at 95. In E J Smith, Street CJ, (Nagle CJ at CL and Maxwell J agreeing), said with respect to the exercise of the discretion at 616:

“…Fairness is not a one-sided concept. It is a dual concept involving fairness to accused persons and fairness to the public through the prosecuting agency of the Crown. Where a judge thinks that the usual practice should be relaxed in a particular case, then in my view he has a discretion to give effect to that opinion.”

7. In TS at [100]-[101], (Basten AJA, Fullerton and Garling JJ agreeing) referred to a careful and thorough consideration by experienced trial judge, his Honour Judge Norrish QC, of the exercise of the discretion to allow the Crown Prosecutor to address in such circumstances. Basten AJA said:

“… Judge S Norrish QC in the District Court placed weight on the task of the trial judge required to sum up the prosecution case to the jury in circumstances where the prosecutor has not undertaken that function. Apart from the possibility of error or omission, a likely consequence of the judge undertaking that function is to give to the prosecution case the authority of the independent judicial officer, who otherwise stands above the fray. The court not infrequently hears complaints from appellants that, in failing adequately to sum up the defence case, the judge failed to give equal weight to defence and prosecution cases. Indeed, a claim that the summing up was unbalanced was raised in the present case. Relevantly for present purposes, the important consideration is that to require the judge to be the source of presentation of the prosecution case is effectively to undermine the purpose of not letting the prosecutor address, namely to avoid unfairness to the accused.

101 The prosecutor is, in any event, under an obligation not to resort to emotive appeals, and not to diminish the important function of the jury by reference to colloquialisms and loose thinking. No doubt that obligation is enhanced in circumstances where the accused is unrepresented…”

Consideration

8. As I stated, in this case, the accused is unrepresented by choice. This is not, however, a case where it could be said that he is seeking to gain some tactical advantage by appearing unrepresented. As far as the material before the Court indicates, he does not have a long experience of the criminal justice system.

9. Nevertheless, I do regard his choice to appear unrepresented as a relevant factor in the exercise of the discretion. He should not by this choice be entitled to an advantage that a represented accused would not have of the Crown Prosecutor not addressing the jury.

10. Further, I consider there is force in the observations of Judge Norrish QC, as referred to by Basten AJA, that if the judge undertakes the function of summarising and exposing the Crown case rather than the Crown Prosecutor, this may lead to the jury giving greater force to that summary and exposition by reason of the fact of it coming from the judge. Additionally, I have no reason to believe that the Crown Prosecutor will do anything other than act in accordance with his obligations in his closing address. Indeed, the Crown Prosecutors during the trial have taken all appropriate steps to ensure that the unrepresented accused has received a fair trial. They have behaved in an exemplary fashion.

11. Whilst this is not a factually complicated trial, I do not consider that there would be any unfairness to the accused if the Crown Prosecutor was permitted to make a closing address. Indeed, I have formed the view that in order to ensure fairness to both the Crown and the accused, it is more appropriate that the Crown Prosecutor make a closing address to the jury than the task be left to me.

12. It is for these reasons I decided that the Crown Prosecutor would be allowed to make a closing address to the jury.

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Endnote

On 5 March 2025 Mr Steve Doumit of Legal Aid NSW informed chambers that pursuant section 25(4)(l) of the Legal Aid Commission Act 1979 Mr Eriksen’s grant of legal aid was terminated on the grounds he had withdrawn instructions from, and failed to cooperate with, his legal representatives.