Dealing with unrepresented litigants in lengthy and complex trials

Dealing with unrepresented litigants in lengthy and complex trials¹

Her Honour Judge Flannery SC²

This paper, authored by her Honour Judge Flannery SC, outlines key considerations when faced with an unrepresented litigant including Dietrich applications and the McKenzie friend, as well as outlining the role of the trial judge in these circumstances and providing tips on how to handle various aspects of the trial.

Introduction

The starting point is that an accused person may conduct his or her own trial³ and the court cannot force him or her to have a lawyer.

However, it is rare for an accused not to be disadvantaged in such a case and so it is critical to ask the accused if it is his or her decision or whether there is another reason for his or her lack of legal representation.

As the Equality Before the Law Bench Book “Self-represented parties” at [10.1] points out, there are many reasons why a person may be unrepresented, for example:

being refused legal aid or presuming he or she was ineligible
not being able to afford legal representation
being told by lawyers that their case had no merit, but believe that it does have merit
being perceived by lawyers as in some way too “difficult” (for example, they are unable to speak English or to communicate well or sufficiently logically)
not trusting lawyers
believing he or she is the best person to put his or her case across
withdrawing instructions from their lawyer relatively recently and not had time to find alternative representation,
representing themselves for part of the court proceedings and engaging a lawyer only for the part they consider (or have been advised) to be most important or critical.

If you consider the accused may be able to get representation, and is not unwilling to do so, it is in everyone’s interest to facilitate this happening.

It is likely that attempts will have been made before the matter is set down to try and ensure the accused is represented, however it not infrequently occurs that instructions are withdrawn late, or funding has not been forthcoming and so there is an application by counsel to withdraw.

If that is the situation, I would generally adjourn the matter for a few days to give the accused an opportunity to find new lawyers or apply for legal aid etc, or to reconsider his or position about his or her lawyers.⁴

Dietrich⁵

However, if every avenue has been explored, and the accused remains unrepresented, you should then consider whether the trial is likely to be unfair if the accused is forced to proceed unrepresented. You would only get to this point if you were satisfied that the accused was indigent,⁶ and that his or her failure to obtain legal representation was not caused by any unreasonable behaviour on his or her part.

To determine these things you would first need to know something about:

the prosecution case, and
the accused’s situation.

The prosecution case

To find out something about the prosecution case, you should read the Crown case statement which will be on the file.

If there is no Crown case statement, or you do not consider it is sufficient, you should ask the Crown prosecutor to tell you something about the case, including what evidence he or she perceives may be the subject of objection.

I find Crown prosecutors are generally helpful in this situation, no doubt conscious of their obligations under ODPP Guideline 2.3.⁷

The accused’s situation

You should ask the accused what he or she has done to try to get legal representation.

If he or she does not have legal representation because he or she has failed or refused to take the appropriate steps to obtain it, or has refused to comply with all reasonable and proper requirements of the Legal Aid Commission, it has been held that it cannot be said that he or she is deprived of a fair trial.⁸

However, the High Court in Craig v State of SA⁹ made it clear that in determining whether or not to grant a stay, the trial judge must consider the reasonableness of the conduct of the accused in all of the circumstances and the fact that there was fault on his or her part does not mean that a stay cannot be granted.

If legal aid has been refused, you should find out why and whether an appeal against that refusal has been pursued. The Legal Aid Commission will often attach conditions to a grant of aid that an accused is unwilling to meet and you may need to consider whether the accused’s unwillingness to comply with those conditions is unreasonable.

For example, in the case of R v Warwick (No 64)¹⁰ the accused, who faced 24 charges, including four of murder, was confronted with a circumstantial case which relied on coincidence and tendency reasoning.

After 103 hearing days, he made an application for a stay of proceedings, on the basis that he could no longer afford his legal representation. He had applied for a grant of legal aid but the Legal Aid Commission made the grant conditional on his wife signing a charge over a property held in her name.

Mr Warwick had spent over $800,000 for his legal representation up until what was about the mid-point of his judge alone trial.

Justice Garling found that the accused had acted reasonably in seeking and obtaining a grant of legal aid, and found that the fact that he was not able to compel his wife to give a charge in favour of Legal Aid NSW over the property could not be regarded as unreasonable conduct on his part.

His Honour granted the stay. He found the accused was indigent and was unable to obtain legal representation. He found the Crown’s submission that the accused could conduct the balance of the trial without legal representation unpersuasive as:

there were a large number of witnesses still to be called
the issue of whether or not he should give evidence and what evidence might be appropriate was a complex one
the legal directions were complex, and
he would be taking over part way through the trial.

He recognised that there was a public interest in the hearing and determination of the Crown case against the accused, however was firmly of the view that without legal representation the likelihood of a fair trial being achieved was very low.

If the accused dispenses with counsel during the trial

If the accused withdraws his or her instructions during the trial, and you grant counsel leave to withdraw, you should then ask the accused in the absence of the jury whether he or she has an application for an adjournment or a discharge.

Although there is also a strong public interest in ensuring that a criminal trial, which is well advanced, proceeds to verdict, the appropriate test at this stage is the same test that applies at the outset; that is, whether it is reasonable for the accused to withdraw representation in all the circumstances.¹¹

If I considered that it was unreasonable for the accused to withdraw his or her instructions, it would only be if new lawyers could be available within a few days that I would adjourn the trial.

In R v Gilfillan¹² the Court of Criminal Appeal found that it was not unreasonable for the accused to withdraw his instructions during the trial in circumstances where the Crown indicated late in the trial that he intended to call certain witnesses with whom, it turned out, the accused’s solicitor had a conflict of interest.

Assessing the accused

During these preliminary discussions, you should take the opportunity to assess the accused’s mental health, as this may explain his or her lack of representation. He or she may say things which suggest that he or she is incapable of adequately defending himself or herself. You might find it helpful to have the Presser criteria¹³ handy to enable you to assess this.

If you are concerned about his or her fitness you should see if the prosecution is prepared to organise a fitness assessment quickly, if the accused is amenable.

Even if there is no apparent mental health issue, you should take the opportunity to assess the accused’s intelligence and his or her understanding of the case, as these things may help you decide:

whether the trial is likely to be unfair if he or she is forced to proceed unrepresented, and, if not
the level of assistance you give him or her during the trial.

Conclusion on Dietrich

If you are satisfied that the accused is

indigent, and
his or her failure to obtain legal representation was not caused by any unreasonable behaviour on his or her part,

then based upon what was said by Mason CJ and McHugh J in Dietrich, I would either stay or adjourn the proceedings to enable the accused to get legal representation:¹⁴

The decision whether to grant an adjournment or a stay is to be made in the exercise of a trial judge’s discretion by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained. While, in some jurisdictions, judges once had the power to direct the appointment of counsel for indigent accused, … this power has been largely overtaken by the development of comprehensive legal aid schemes in all States and, as such, trial judges now cannot be asked to appoint counsel in order that a trial can proceed … However, even in those cases where the accused has been refused legal assistance and has unsuccessfully exercised his or her rights to review that refusal, it is possible, perhaps probable, that the decision of a Legal Aid Commission would be reconsidered if a trial judge ordered that the trial be adjourned or stayed pending representation being found for the accused.

Preliminary matters

Make sure the accused has all of the statements

If you refuse a Dietrich application or the accused is determined to appear for himself or herself, then you must ensure that he or she has all of the material upon which the Crown relies. It is worth getting the Crown to go through the brief of evidence to confirm that the accused has a copy of each of the statements etc, or asking the Crown to provide the accused with an exact copy of the brief, preferably in a folder so that you are confident the accused can readily access the material.

I would also ask for a copy of the whole Crown brief at this stage, to enable me to acquaint myself with the Crown case and consider whether there are any obvious objections the accused should make.

Should the accused be in the dock?

Unless there are security concerns, I would normally allow the accused to sit at the bar table, so that

he or she has access to his material, and
his or her unrepresented status is not given undue prominence.

If you are told by Corrective Services that there are security concerns, I would ask that a senior Corrective Services officer come to court to explain to me what they were, or if I did not think that was appropriate, I would make arrangements for that person to come and see me in chambers.

McKenzie friend

It sometimes occurs that an accused will ask to be assisted by a person the law describes as a McKenzie friend, that is, someone an unrepresented person uses to assist him or her by making suggestions and taking notes.¹⁵

A trial judge has the discretion to allow an unrepresented accused to have a McKenzie friend. However, courts have been cautious about allowing this because a McKenzie friend is not bound by ethical rules, and their “assistance” can sometimes lengthen the proceedings and make the trial more complicated. It has been held that the overwhelming factor in deciding how to exercise the discretion is the interests of justice and the interest that the public has in the effective, efficient and expeditious disposal of litigation in the courts.¹⁶

I had a trial involving an elderly accused charged with a large number of historic sexual offences against a daughter and a stepdaughter. He was accompanied to court by a work colleague. Without objection from the prosecutor, he sat at the bar table with the accused throughout the trial and was of great assistance to the accused. The Court of Criminal Appeal implicitly approved of this procedure.¹⁷

Obviously McKenzie friends will not always be of this calibre and whether you exercise your discretion to allow the accused to have a McKenzie friend will very much depend on your assessment of the person.

Transcript

You should make an order that the accused be provided with transcript and recommend that the fee for it be waived. He or she will need to fill in an order form and a fee waiver form and although these forms are available online, I would get my Associate to give them to him or her and explain what he or she needs to do with them.

The fee waiver form must be provided to the Registry and the application must be approved by the Registrar. The Registrar will take the judge’s recommendation into account in deciding whether to approve the waiver of the fee.

Alibi

You should enquire early in the proceedings whether the accused wishes to rely on an alibi, and if so whether he or she has served an alibi notice or he or she needs to seek leave to rely on an alibi.¹⁸

If leave is granted, which it normally would be, the Crown may need time to investigate the alibi.

Witnesses

You should also ask the accused at an early stage whether he or she has any witnesses he or she intends to call to give evidence and what steps he or she has taken to ensure they attend court.¹⁹ If he or she needs help to arrange their attendance or to arrange the production of documents, I would ask the prosecutor to assist, without requiring the accused to explain the purpose of the evidence.²⁰

If the accused is charged with a prescribed sexual offence (or there is a witness who is vulnerable)

If the accused is charged with a prescribed sexual offence,²¹ or a witness in the proceedings is vulnerable, the accused is not permitted to cross-examine the complainant or the vulnerable person, and any cross-examination must be conducted through a court appointed intermediary.

However, the court may choose not to appoint such a person with respect to a vulnerable person if the court considers it is not in the interests of justice to do so.²²

The Equality before the Law Bench Book at [10.3.4.2] lists the steps you should take in this situation, and suggests the directions you should give to:

the accused about the procedure that will be followed
the intermediary about his or her job, and
the jury about the use of the intermediary.

In summary, you should explain to the accused that he or she is not permitted by law to cross-examine the complainant, but that any questions he or she would like to ask the complainant can be asked on his or her behalf by a person appointed by the court.

You would tell him or her that the person appointed, known as an intermediary, is only present to help him or her by asking the complainant the questions he or she has prepared and cannot give him or her legal advice, although he or she can put into other words the questions the accused has prepared.

You should encourage him or her to commence writing down the questions he or she would like the complainant to be asked, and suggest that a starting point would be for him or her to read the statements of the complainant.

Intermediary

You should also appoint the intermediary as soon as possible, as he or she needs to be appointed in sufficient time to ensure he or she can be present during the examination in chief of the complainant.

In the Downing Centre, the Registrar Joseph Karam is in charge of organising the intermediary. He often does the questioning himself. However, he tells me he only arrives at the court at the time he is to begin the cross-examination on behalf of the accused and at that time is introduced to the accused and given the accused’s questions. He does not assist the accused in any way.

In my view, this approach is contrary to what the Court of Criminal Appeal said in Clark v R²³ to the effect that since s 294A of the Criminal Procedure Act takes away or modifies rights which accused are ordinarily taken to possess, the section should be applied in a manner no broader than is sufficient to achieve its purpose. Specifically, the court said:

Nothing in s 294A requires the appointed person to be absent while the complainant is giving evidence in chief, and it is not easy to see how the purpose of the section may be advanced by such a requirement. On the other hand, asking the questions in cross-examination, while perfunctory, cannot have been intended to be carried out without understanding. In MSK and MAK Wood CJ at Common Law, with whom I agreed, said, at [82], that the restriction on giving legal advice does not extend to the formulation of questions. One can imagine that there will be cases in which the appointed person cannot effectively and intelligently cross-examine without having heard the evidence-in-chief. Such a cross-examiner could, if the complainant appeared not to understand a question, put it into other words, aiding the complainant's understanding and so furthering the purpose of the section and the interests of justice.

A protocol used in the Local Court headed “Questioning of vulnerable witnesses by unrepresented accused” has been brought to my attention.²⁴ I understand it may have been adopted by the District Court. The protocol provides in part:

In order to minimise the risk that a question that is offensive and/or would be otherwise disallowed is asked on behalf of the defendant, wherever possible, the defendant should be asked to submit his/her questions to the Court prior to the questions being asked. As the second reading speech (attached) also raises the possibility that the judicial officer themselves could ask the question there should be no objection to this practice.

Yet the court said in Clark:²⁵

… no reading of s 294A reveals any requirement for an unrepresented accused to inform the Court of any question it is proposed to ask the complainant, let alone write out every question, the accused having read only the complainant’s statement and not having heard the evidence-in-chief.

In my opinion, a requirement that an accused person write out all questions in advance is likely to give rise to the risk of a miscarriage of justice. It is not unknown for witnesses, particularly children, not to give evidence in accordance with statements they have made, sometimes describing events differently, sometimes omitting mention of events. A real risk would arise in such circumstances that a reference in a proposed script of questions to matters dealt with in a statement but not ultimately emerging in evidence might have the effect of restoring or even establishing the Crown case. To guard against that risk, an unrepresented accused would need the kind of exceptional vigilance that he might well lack. It might be difficult for an unrepresented accused to divert the court-appointed questioner from the script. The damage might be done before the unrepresented accused could act, particularly if the accused had the impression that he could not give any direction to the court-appointed questioner without prior reference to the trial judge.

Moreover, the requirement may ultimately be impossible to meet. To a significant degree any question to be asked of a witness in cross-examination may ride upon the answer just given. The requirement to frame all questions in advance may impart a rigidity which robs a cross-examination of its effectiveness.

In the trials I have had where the accused has been unrepresented, I have made it clear to the intermediary that he or she will be required to meet the accused at an early stage of the trial, and if necessary, assist him or her to formulate the questions, making sure though not to give him or her any legal advice. He or she would be present throughout the complainant’s evidence-in-chief and would then meet with the accused again to assist him or her to formulate any further questions that may arise from the complainant’s evidence. Following that, he or she would question the complainant on behalf of the accused, using the questions the accused has prepared.

The trial judge's role

As the Equality before the Law Bench Book says at [10.3.3] the duty of the trial judge is to give information and advice as is necessary to ensure that the unrepresented accused receives a fair trial so that “he or she is put in a position where he or she is able to make an effective choice as to the exercise of his or her rights during the course of the trial, but it is not the judge’s duty to tell the accused how to exercise those rights”.²⁶

The judge may express an opinion as to what would best serve the interests of the unrepresented accused, if it is appropriate, although there is no obligation to do so. However the trial judge must maintain the appearance of impartiality

In Dietrich,²⁷ Deane J noted that although the assistance that can be given to an unrepresented accused is limited, the trial judge should aim as far as possible to redress any imbalance in the presentation of the prosecution and defence case and ensure the procedures adopted fairly reflect the case which the accused wishes to put in his or her defence.

It is important to keep in mind that the rights of an unrepresented accused should never be compromised for the sake of administrative convenience, and so, although it is likely that the trial will take longer than a trial in which the accused is represented, to avoid the jury getting fractious and you feeling under pressure as a result, you should ensure that the estimate given to the jury panel before the empanelling, is an overly generous one. You should also carefully explain to the jury that the accused is appearing for himself or herself, and, if appropriate, the reason why he is unrepresented, and encourage the jury to bear in mind the difficulty that that situation presents for him or her.²⁸

A publication called Self-represented parties: a trial management guide for the judiciary is referred to in our bench book.²⁹ It was prepared for the County Court in 2004. It makes reference to Judge Kelly’s charge book.³⁰

In his charge book, Judge Kelly suggests that the jury be told something like this:

The accused in this case is not represented by counsel. That imposes additional duties of fairness on the prosecutor, upon me to see that the accused’s case is fairly put before you, and upon you to consider it, and what might have been said about it by counsel on the accused’s behalf. In a sense we all have to be the accused’s counsel, whilst being careful to fulfil our own duties.

It is proper for you to make every allowance, in assessing the demeanour and personality of the accused for the fact that he has had no counsel to guide him in presenting his case and his evidence.

For suggested directions, see Criminal Trial Courts Bench Book, “Self-represented accused” at [1-820]ff.

Bench Book

The Equality before the Law Bench Book helpfully sets out at [10.3.2] what you should say to the unrepresented accused at the commencement of the proceedings and suggests you either give the accused all of the information and advice about the trial process at the commencement of the trial or at appropriate times during the proceedings.

My preference is to give the accused a copy of everything I propose to say to him or her and then to read from the document at various stages of the trial.

I would commence with the first page of the Criminal Trial Courts Bench Book directions at [1-820]ff, which includes information about:

the charges
the onus and standard of proof
the role of the judge and the jury, and
legal argument and opening addresses.

If the trial involves a prescribed sexual offence, if you haven’t done so already, I would give the accused the bench book direction about the appointment of the intermediary, etc.³¹

I would then ask the accused if he or she had any objections to any of the material in the Crown case as, by this stage, he or she should have had the opportunity to go through the brief. You will also be alive to possible objections at this stage. If there are objections, I would then deal with those.

I would then give the accused the bench book direction about the empanelling of the jury and his or her right to challenge.³²

At that stage, I would empanel the jury, and give my opening remarks to the jury.

I would then take a break.

I would then remind the accused that the Crown would then open, and then, if he or she wanted to, he or she could, although what he or she could say at that stage must be limited to the issues in dispute, and if he or she wished, the matters he or she proposed to raise in his or her defence.

I would complete the openings and take another break.

I would then read to the accused the bench book directions about:³³

the Crown case
cross-examination of Crown witnesses, other than the complainant
the availability of a no case to answer submission
his or her opportunity to present evidence, and
how he or she should ask questions of his or her witnesses.

I would enquire whether he or she was likely to suggest that he or she was of good character, and if so, give him or her that direction.

I would leave the direction about closing addresses until a little later as a question is likely to arise about whether the Crown should address.

Should the Crown Prosecutor give a closing address?

There is a practice that the Crown not give a closing address in cases where an accused is unrepresented. This practice apparently developed at a time before legal aid was readily available as it was thought that it would be unfair to an accused who could not afford legal representation to be pitted against a trained advocate in the final stages of the trial.

However in Zorad³⁴ the Court of Criminal Appeal said that:³⁵

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.

The court made it clear that the decision was a discretionary one, however suggested if the factual issues were complicated, the jury and the judge may be assisted by an address from a Crown prosecutor.

The court made a distinction between cases where an accused has elected to appear unrepresented (whether or not in order to obtain tactical advantages) and cases where the accused is unrepresented through no fault of his or her own.

I do not know of any accused in the present day who has chosen to be unrepresented so as to obtain a tactical advantage, and frankly I would have a concern about their mental health if that was their motivation.

The people who appear unrepresented these days do so either because Legal Aid is under-resourced and so fewer people are eligible for aid, or because the accused, either reasonably, but most often unreasonably, does not feel that his or her lawyers will follow his or her instructions.

In a relatively recent case, MS v R³⁶ the Court of Criminal Appeal found that it was irregular for the Crown to give a closing address as:

there were no circumstances which rendered it appropriate to depart form the ordinary practice that the Crown does not give a closing address when the accused is unrepresented.

In order to assist you to decide how to exercise your discretion, it might be helpful to ask the Crown to give you a draft of what he or she would say in his or her closing address, if he or she was permitted to address. This can focus the mind.

Once you have decided whether or not the Crown will address, you should explain the situation to the accused and read to him or her the relevant parts of the bench book, so that he or she understands:

he or she can address, whether or not the Crown Prosecutor does,
the sorts of things he or she should say, and
those things he or she is not entitled to say.

Summing up

If the Crown does not address, your summing up will probably need to be more comprehensive than usual.

You must ensure that you give the jury directions on all matters which might be fairly said to give rise to a defence, whether or not the unrepresented accused relied upon or stressed these matters in the presentation of his or her defence.

Giving the accused the assistance you consider is required

In a very difficult trial I had involving an unrepresented accused, I took the view that it was in everyone’s interest that I conduct the examination-in-chief of the accused. I did so by taking him to the Crown allegation in respect of each of the 25 counts on the indictment, and asking him something like “is there anything you want to say about that?”

At the end of this process, I asked him if there was anything else he wished to say.

This would not be an approach I would adopt in every case, but having regard to the difficulties we had experienced up until the accused gave evidence, I considered the only way we would get to verdicts, if we did, was to adopt this approach.

Querulous litigant

As part of my research I have discovered some very good advice in a paper written by Justice Margaret Wilson.³⁷ In the paper she refers to 10 guidelines for judicial officers when they are dealing with people psychiatrists term “querulous litigants”, that is, people who have psychiatric conditions which cause them to lack perspective.

Those 10 guidelines are:

“do no harm” that is, your goals should be safety and containment rather than completion and satisfaction
recognition via the six “V”s — querulous litigants display volatile emotions, feel victimised, seek vindication, produce voluminous and vague communications, and vary their demands
maintain rigorous boundaries — querulous litigants will rapidly form attachments to those they feel are “favouring” them and feel catastrophically betrayed if the favourable treatment is not maintained
querulous litigants are responsive to hierarchy and the formality of court must be maintained
while they appear legally hyper-competent, querulous litigants have a very shallow knowledge of the law. All communication with them should be simple and repetitive, and there should be recognition that their understanding of the law is generally no deeper than that of the average citizen
it is important to clearly and repetitively maintain their focus on what the court is able to offer in terms of outcomes
more time granted will lead to more confusion — querulous litigants are disorganised and overwhelmed, and more time rarely changes this
take all threats seriously and be aware of the psychological, as well as physical, safety of self and court staff
any recommendation that a querulous litigant seek psychiatric support or evaluation will lead to extremely angry and potentially threatening responses. The role of psychiatry is generally limited. However, for those individuals who threaten self-harm or harm to others or carry out aggressive behaviour, treatment is important, and
never seek to specialise in an individual. Always seek to share the load with others.

¹District Court of NSW Twilight Seminar, Dealing with Unrepresented Litigants in Lengthy and Complex Trials, 8 May 2019.

²Judge of the District Court of NSW.

³Criminal Procedure Act 1986 (NSW) ss 36(1) and 37(2).

⁴See further, Judicial Commission of NSW, Equality before the law Bench Book at [10.3.1].

⁵(1992) 177 CLR 292.

⁶Indigent, that is, the value of his or her assets and income fall “well short” of what is required to conduct a trial. In order to be regarded as indigent, however it should not be considered necessary for a person to charge their home to pay their legal expenses in a criminal trial but it would be expected that they would demonstrate they had been refused legal aid and other pro bono assistance and would make full financial disclosure to the court (Garling J in R v Warwick (No 64) [2019] NSWSC 163 at [25]–[27] quoting from R v Macdonald (No 4) [2016] NSWSC 486 at [95] and Craig v State of SA (1995) 184 CLR 163).

⁷See ODPP NSW, Prosecution Guidelines at www.odpp.nsw.gov.au/sites/default/files/attachments/f-prosecution-guidelines.pdf, accessed 30 July 2021.

⁸Karounos v R (1995) 77 A Crim R 479.

⁹(1995) 184 CLR 163.

¹⁰[2019] NSWSC 163.

¹¹R v Gilfillan (2003) 139 A Crim R 460.

¹²(2003) 139 A Crim R 460.

¹³See R v Presser [1958] VR 45; Australian Law Reform Commission, Unfitness to stand trial, 20 May 2014, at www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-dp-81/7-access-to-justice/unfitness-to-stand-trial/, accessed 30 July 2021.

¹⁴(1992) 177 CLR 292 at [31].

¹⁵See Judicial Commission of NSW, Civil Trials Bench Book at [1-0850].

¹⁶Damjanovic v Maley (2002) 55 NSWLR 149 at [162]–[164].

¹⁷JM v R [2017] NSWCCA 138 at [127].

¹⁸Criminal Procedure Act 1986 s 150.

¹⁹Equality before the Law Bench Book n 4 at [10.3.4.1].

²⁰R v Nair (Unreported, Court of Criminal Appeal Victoria, 16 April 1982).

²¹Criminal Procedure Act 1986 s 294A.

²²Criminal Procedure Act 1986 s 306ZL(5).

²³Clark v R [2008] NSWCCA 122 at [45].

²⁴CM Circular 565. See also Judicial Commission of NSW, Local Court Bench Book, at [10-120] and [12-000]ff.

²⁵Clark v R [2008] NSWCCA 122 at [46]–[48].

²⁶R v Zorad (1990) 19 NSWLR 91 at 99; R v Anastasious (1991) 21 NSWLR 394 at 399.

²⁷(1992) 177 CLR 292 at [17].

²⁸See Equality before the Law Bench Book at n 4 at [10.3.4.4] Guidance to the jury — points to consider.

²⁹E Richardson, Self-represented parties: a trial management guide for the judiciary, County Court of Victoria, Melbourne, 2004.

³⁰Please also see Judicial College of Victoria, The Victorian Criminal Charge Book, at www.judicialcollege.vic.edu.au/eManuals/CCB/19202.htm accessed 29 July 2021. The Victorian Criminal Charge Book aims to take the place of the charge book authored by His Honour Judge Michael Kelly. The publication is not, however, a new edition of that work. This new project undertakes to completely rewrite all charges, and to present wholly new explanatory material.

³¹Judicial Commission of NSW, Criminal Trial Courts Bench Book, at [1-870]ff.

³²ibid at [1-830].

³³ibid at [1-820].

³⁴R v Zorad (1990) 19 NSWLR 91.

³⁵ibid at [3]–[4].

³⁶[2017] NSWCCA 252 at [68].

³⁷M Wilson, Expert evidence, self-represented litigants and the evidence of children, Address to Queensland Industrial Relations Commission, 2 September 2005 at https://archive.sclqld.org.au/judgepub/2005/wilson020905.pdf, accessed 30 July 2021. See also G Lester, “The vexatious litigant” 17(3) JOB.