Legal representation and self-represented litigants

NSW

  • Judicial Commission of NSW, Civil Trials Bench Book (2015).
    Section [1-0800] discusses the issues related to unrepresented litigants and lay advisers in the context of court proceeedings.
  • Judicial Commission of NSW, Criminal Trial Courts Bench Book (2016).

    [1-800]. This part details court procedure in relation to self-represented accused. It is noted that ‘[a]n accused person may appear personally, and may conduct his or her own case…While the election by an accused to appear self-represented is a fundamental right which should not be interfered with…the operation of the adversarial system ‘may be severely impaired’ by the absence of legal representation’. The bench book goes on to discuss the duty of the trial judge, suggested advice and information to be provided to the accused in the absence of the jury, and the right of the accused to challenge in empanelling the jury

    [1-845] The bench book also provides discussion of cross-examination of complainants in prescribed sexual offence proceedings and vulnerable witnesses in criminal proceedings by unrepresented litigants. Special procedures apply in these circumstances. ‘If the accused is self-represented, any cross-examination must be conducted through a court-appointed intermediary’. ‘The purpose of the provisions is to spare the witness ‘the need to answer questions directly asked by him or her by the person said to have committed the offence’ (Clark v R (2008) 185 A Crim R 1)’. A suggested procedure to follow is detailed.
  • Judicial Commission of NSW, Equality before the Law: Bench Book (2018).
    Section 10 discusses a range of issues affecting self-represented parties and their experience of court processes.
  • Judicial Commission of NSW, Sexual Assault Trials Handbook (2017).
    Section [10-500] discusses important general directions in sexual assault trials. Section [7-000] contains relevant literature, including [7-240] procedure in prescribed sexual offence cases.

QLD

  • Magistrates Court of Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2018).
    Chapter 14.9 deals with the rights of appearance and representation of parties to the proceeding, and adjournment where a child has not had a reasonable opportunity to obtain legal representation.
  • Chapter 5 discusses procedures and approaches in relation to unrepresented defendants.
  • Supreme Court of Queensland, Equal Treatment Benchbook (2nd ed, 2016).
    • Chapter 12 of the bench book considers the equal treatment of self-represented litigants in court proceedings. While all litigants have the right to appear in person, self-represented litigants both face and pose a significant challenge to the administration of justice in Queensland. Part II examines the areas of difficulty faced by self-represented litigants including: a lack of understanding of the relevant law and legal process, an inability to assess the merits of their claim accurately, and lacking the specialist skills of cross-examination and testing of evidence.
    • Part III provides a working guide for judges to assist with dealing with self-represented litigants during a hearing. The issues covered in this section include: (1) examination of the evidentiary issues that may arise for self-represented litigants (2) matters specific to criminal proceedings (3) McKenzie friends (4) pro bono assistance (5) vexatious proceedings. The bench book also provides guidance for judges on their role before and after a hearing.

Vic

  • Judicial College of Victoria, Victorian Criminal Charge Book (2017).

    2.3 discusses procedures for taking evidence in certain circumstances, including to reduce the stress of giving evidence on particular witnesses, to prevent the accused from personally cross-examining certain witnesses, and to allow evidence that has been pre-recorded to be used in certain legal proceedings.

    Note: The former Sexual Assault Manual has been replaced. The overlapped content in the Sexual Assault Manual continues to be available in the Criminal Charge Book, Victorian Sentencing Manual and Victorian Criminal Proceedings Manual.
  • Judicial College of Victoria, Victorian Criminal Proceedings Manual (2015).
    • Chapter 9 of the manual issues relating to self-represented accused persons. It notes that while representation is not compulsory, ‘[a] self-represented accused lacks the qualities of a professional skill and objective judgment that legal representatives bring to a case’.
    • In part 9.2.1, the bench book provides a discussion of the degree of assistance required for self-represented litigants. The bench book cites with approval Family Court guidelines for conducting family law hearings involving self-represented litigants. These guidelines include:
    • A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.
    • A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witnesses.
    • A judge should explain to the litigant in person any procedures relevant to the litigation.
    • A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation.
    • If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course.
    • A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise.
    • If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.
    • A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott (1994) 121 ALR 148 at 510.
    • Where the interests of justice and the circumstances of the case require it, a judge may:
    • draw attention to the law applied by the Court in determining issues before it;
    • question witnesses;
    • identify applications or submissions which ought to be put to the Court;
    • suggest procedural steps that may be taken by a party;
    • clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
    • Part 9.2.2 provides a discussion of appropriate intervention and assistance.
    • Part 9.2.3 provides a discussion of a McKenzie Friend. When determining whether to permit an accused to have the assistance of a McKenzie Friend, the court should consider the following factors: ‘the complexity of the evidence and the issues; the accused’s ability to understand the evidence and the course of proceedings; the accused’s ability to express him or herself in the court setting; whether the accused can receive the same benefits by conferring with his friend or lay adviser during adjournments’. In criminal trials, the courts are reluctant to grant leave for a McKenzie friend because ‘experience has shown that the practice is fraught with danger. Proceedings are more likely to become protracted, or miscarry’.
    Note: The former Sexual Assault Manual has been replaced. The overlapped content in the Sexual Assault Manual continues to be available in the Criminal Charge Book, Victorian Sentencing Manual and Victorian Criminal Proceedings Manual.

WA

  • Department of Justice (WA), Equal Justice Bench Book (2nd edition September 2017).

    Note: Chapter 8 Self-Represented People is currently under review. Until revision is completed, the first edition chapter 8 applies. The following text is based on the first edition chapter.

    • Chapter 8 of the bench book considers issues facing self-represented litigants in terms of equality before the law. It provides a list of the reasons why people represent themselves. These include the fact that a person may:
    • ‘be appearing in a jurisdiction where self-representation is encouraged or representation is statutorily precluded;
    • have been refused Legal Aid or presume they are ineligible;
    • not be able to afford legal representation;
    • have been told by lawyers that their case has no merit, but believe that it does have merit;
    • have been considered by lawyers to be in some way too “difficult” (for example, they are unable to speak English or to communicate well or sufficiently logically);
    • not trust lawyers;
    • believe they are the best person to put their case across;
    • have withdrawn instructions from their lawyer relatively recently and not had time to find alternative representation; and /or
    • represent themselves for part of the court proceedings and engage a lawyer only for the part they consider (or have been advised) is most important or critical’ (p 338).
    • Further, in discussing the difficulties faced by self-represented litigants, the bench book notes that self-represented people may:
    • not understand the complexities of relevant legislation and case law;
    • not fully understand legal language;
    • not fully understand the purpose of the proceedings and/or the interlocutory steps in the proceedings;
    • not fully understand and/or be able to apply properly the court rules (for example, what they must file when, the rules of evidence and cross-examination);
    • need an interpreter;
    • not be skilled in advocacy and able to test adequately an opponent’s evidence, or crossexamine effectively;
    • be intimidated by the other party or witnesses in proceedings involving family or domestic violence; and/or
    • as a result of many or all of these issues, be feeling anxious, frightened, frustrated, and/ or bewildered. The case may also be impacting, or starting to impact, on their emotional and/or physical health’ (p 340).
    • Self-represented litigants may also present difficulties for the court itself (page 344) and for the parties involved (p 346).
    • The bench book stipulates practical considerations judges may have a mind to when confronted with a self-represented litigant before a court appearance, at the start of court proceedings, as the court proceedings progress, directions to the jury, and in sentencing, other decisions and judgment writing or decision writing (pp. 348-361).