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McKenzie Friend Info

The authorities on the matter of "McKenzie Friends"

England:
See R v Bow County Court [1999] 4 All ER751 and the authorities referred to and cited therein at 752

Australia:
Vincent John Burke [1991] 56 ACRIMR 242
EJ Smith [1982] 2 NSWLR 608 see also [1985] 159 CLR 532 [at 534]
Dodd (No2) [1985] 2 QDR 282
NSW Bar Association v Livesey [1982] NSWLR 231[at 237]
High Court decision that says self representation is a fundamental right-
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; (1994) 120 ALR 385; (1994) 68 ALJR 374 (13 April 1994)
www.austlii.edu.au/cases/cth/HCA/1994/14.html
However see http://www.austlii.edu.au/au/other/hca/transcripts/2002/B98/1.html for an example of the High Courts short memory , or alternatively a class based approach.

Article: Commentary on the law relating to McKenzie's Friends, Chesterman J , [2001] Qld Lawyer Reports 187. This article is strongly in favour of discretion allowing McKenzie Friends .

Current information and case material may be found by conducting a key word search of the http://www.austlii.edu.au site , by looking for cases or articles, written either by lawyers, litigants or speeches of judges.

The State and territory legal websites should also be searched along with a general internet search for info .

I wrote this article a few years back , however an internet search on the McKenzie friend issue will turn up more recent articles that you can refer justices to pursuant to the Acts Interpretation Acts Qld and CTH.
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Legislation and rules

The legal issue and the court the litigation is conducted in -will determine the legislation to be looked at -to find any provisions that either specifically allow McKenzie Friends or disallow them. If legislation or court/litigation rules are silent, provisions that state that a court has a discretion to do anything that will achieve the ends of justice or to conduct its proceedings in accordance with the rules of natural justice or to achieve a fair trial of the matter in issue should suffice to imply a discretion to allow a McKenzie Friend.

Under International Law, the International Covenant on Civil and Political Rights, articles 11(3)(2) and 11(3)(4) provide that you should have adequate time and facilities to prepare your defence, and have the right to have legal assistance of your own choosing.

Some civil and criminal provisions allow for proceedings to be begun by a guardian or "next friend" but searches should be conducted to find out the position of the authorities on the matter of how far the right of "advocacy" goes in that respect.

Justice legislation in either state, territory of federal jurisdiction should also be looked at to find provisions that state a person has the right of self representation (for instance the Justices Act Qld). There is high court authority in the case of Cachia v Haines that self representation is a fundamental right.
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Authority in favour of McKenzie Friends and the limitations

It is not authority to say that a request to exercise the discretion in favour of allowing McKenzie friends in any proceedings should always be refused (See EJ Smith [1985] 159 CLR 532 at 534 per Gibbs CJ, Burke [1992] 56 ACRIMR 242 at 243, 244, 255, 259, Liecester City Justices [1991] 3 WLR 368 at 380, Commentary on the law relating to McKenzie's Friends, Chesterman J , [2001] Qld Lawyer Reports 187)

The commentary of Chesterman J is good authority and legal opinion that a friend should be allowed unless representation has been refused or hasn't been applied for.

One of the leading Australian authorities on the question- Burke was argued by the litigant in person. This person did not even know of the term "McKenzie Friend" when arguing his appeal and could not then provide nor address any authorities on point to obtain a precedent in his favour ( see Burke at 250, 256). Applying the case of Dodd, the court there was applying an authority in which a ruling may have been sought that a person have a right to be an advocate as apposed to being an adviser and note taker. Burke then, could be said not to have been adequately argued and the rules in Australia and Qld have not been fully settled.

The majority in Burke was skeptical of McKenzie friends in criminal proceedings, but recognized the discretion to allow one.

There are certain matters that must be taken into account and dealt with in any submission to a court in regards to a McKenzie Friend , these should be presented as "special circumstances" (Burke at 255) :

You should make every effort to get legal assistance and if you cant you should provide evidence of your inability to obtain it, whether it has been refused or you are unable to pay. A criminal proceeding may be stayed if you cannot get representation (Dietrich v R [1992] 177 CLR 292). You should seek advice before proceeding from a community legal centre or other advisers. If you must proceed yourself, you must do everything to appraise yourself of the case you are mounting, or the case against you or you may be given short shrift by the court when you make your request because you may then delay or prolong proceedings. Remember, even if you are successful in your case, if it is your fault the proceedings have been delayed or prolonged, costs may be awarded against you to that extent.

If you have refused or have not applied for representation, aid or advice, the court may rule against a friend. Your only recourse then is to argue international law under article 14 of the ICCPR, this was applied in Dietrich and you should obtain a copy of that judgment and refer to the page. You should say that you should be allowed assistance of your choice. If you trust no one else you should not be made to be represented by people you don�t trust. However, legal advice and representation should always be sought unless you are so appraised of the issues and the law that you can do it. But remember you have to justify (mostly in criminal matters) why your friend should be there helping you if it is advice that the friend is there for.

A submission on the matter of a McKenzie Friend should only be made to seek to allow a person to sit beside the litigant or accused at the bar table, taking notes and giving quiet "Sotto Voce" prompts or advice (see generally the dissenting judgment of Dowsett J in Burke and pp 244, 255, Leicester Justices at 380 and the article by Chesterman J). You will get nowhere seeking to obtain an advocate who is not a lawyer (meaning a person who speaks on your behalf and cross examines the other side) and should make it clear to the justice that is not what you are seeking. However, it remains to be seen, whether a justice will refuse to allow a friend to be used in a particular respect- to be a sort of advocate during the proceeding (Burke at 253 discussing Jackson). A situation may present itself where a litigant or accused is in the witness box and has no one to question him or her to elicit his or her evidence properly and must rely on memory alone. It should be tested whether a friend can be used to ask questions that the litigant has written to elicit such evidence, but leave the questioning of the opponents witnesses to the litigant.

The justice will be concerned with matters relating to the control of the proceedings , whether having a friend at your side will disrupt, prolong or delay proceedings or cause the matter to miscarry (see Burke at 244 -5 , 252-3). But these concerns fall within existing powers of the court to bar persons from the court for disruption (ibid 259). Any concern of that sort must have foundation in fact and there must be a demonstrated need for that to occur.

A concern of justices is that a non lawyer is not a member of the "profession" and is not subject to the sanctions of the law society, bar association or laws relating to negligent advice (Burke at 253).

In the case of criminal matters, it is not even certain that an accused person has the right to sit at the bar table, Ambrose J in Burke, said that there was little doubt there was a discretion but was of the opinion that all people accused are generally guilty (at 252), the bar is the exclusive preserve of the legal profession and the community expects that accused people should not bother to plead innocent until proven guilty. Derrington J was of the opinion that this was a matter of discretion and the bar was just a piece of furniture and not the exclusive preserve of the legal profession , so too Dowsett J at 259. In many cases however, in magistrates courts, unless you are coming directly from the cells , generally there is only a bar table and no dock and the matter will not come up.

However, unless you are a prisoner, you should take up a position at the bar unless told otherwise (if it is your turn in the court).

The court will want to know how not having such a friend beside you- will disadvantage you (Burke at 244) . You should submit how it will advantage you (ibid). In a criminal court the justice may ask you whether or not your friend could take notes from the public gallery (Burke at 246-7) but you should say that the friend attempting to give you quiet advice from the gallery will no doubt disrupt proceedings trying to get your attention for instance , and it would be far easier considering the amount of papers used and other matters of convenience (Burke at 247) for your friend to be there- that as a matter of fairness your friend should be given priority over other members of the public (Liecester at 379, Burke at 257). Your friend should not be a witness in your proceeding. You however, have the advantage if you represent your self to hear all the evidence of all witnesses and submit accordingly.

You should state that your friend will help to expedite your defence, or case, through their assistance and will not disrupt it. The justice will want to know how much experience you have in legal matters, and whether or not the proceeding is so simple that you need no-one. Also whether, if it is not simple, you are sufficiently appraised of the issues (Burke at 244-5), and whether you have applied for, or have refused representation. If you have refused you must argue that you have a fundamental or statutory right to self representation and that you are ready to proceed if your proceeding has reached that stage. If it is a criminal proceeding and you are convicted you might not then be able to appeal on the grounds of unfairness unless there are provisions to the contrary or you have been surprised by some issue you have not been informed about previously.

The justice may also want to know how much experience your friend has in legal matters of the kind in issue- if your friend is there to give advice as well as take notes (Burke at 249), and whether the presence then, of 2 untrained people at the bar table will disrupt or prolong proceedings unnecessarily (ibid 255). If your friend is a law student or has experience in such matters it will assist greatly if you explain this, or get your friend to explain this to the justice.

What sort of proceeding is it , criminal , civil , family law or otherwise administrative?

You should read the authorities (cases and articles) and understand the differences suggested by justices, on the application of the issue of McKenzie Friends in different courts, and be aware that you may be tested in your submissions by the court. Be ready to argue that in your particular case your request should be allowed. In all legal matters you should have prepared written submissions on points you think may come up and have cases ready to give to the court.

Liecester Justices is good enough authority that the discretion will readily be exercised in civil proceedings and this was not doubted by the court in Burke. Both you and your friend should get to sit at the bar table and your friend can take notes and give you quite advice.

In family law there may be express provisions of the act that allow friends to assist, but otherwise , the public are not normally allowed into proceedings and a friend wont be able to take notes from the gallery. Similarly in the case of administrative matters. Thus, this mitigates in favour of a friend at the table.

An issue also arises in the case of note taking, you should find out whether the court will provide you with a free copy of the transcripts prior to final submissions, or access to them. In most cases you cannot get access or a copy unless you pay exorbitant fees which are increased regularly to make it more difficult for people to fight the state unless they have money. Generally, if they are going to be provided, they won�t be available for weeks or months unless you can pay on a day by day basis. The justice may say that if they are available, you can do without your friend (Burke at 245-6). You must also argue then, that you need advice from your friend (if necessary).

There has also been a case where a self represented person has had an appeal against convictions allowed and has been granted a new trial , because of the number of charges ,the complexity of the matter, and the length of the trial -on the grounds of unfairness. This was because he wasn�t given access to transcripts to appraise the evidence in order to have a fair trial (see Khalifeh v District Court Judge Job [1996] 85 ACRIMR 68).An analogy can be drawn from this -to say that (in whatever proceeding involving complexity from your perspective) unless you can have a note taker -you may not be able to get your head around all of the evidence and rulings of the court to prepare your submissions, and this would be unfair to you.

The issue of a McKenzie friend is a fairness issue. However, it might not give rise to an appeal point if you have been denied a friend. This has yet to be properly argued and tested.