Chapter 6: Self-representation

This section deals with:

  • considerations on self-representation; and
  • some practical matters.

Consider representing yourself if:

  • you don't feel too intimidated by the courtroom or legal procedure;
  • you are prepared to put in the time to research your court case;
  • there is to be a credibility battle between yourself and police; and/or
  • you wish to speak strongly and directly to the magistrate or jury.

Any defendant can represent her or himself in court. At present, only solicitors and barristers can represent other people in court. This means that, without leave of the court, you cannot speak for a friend in court, except as a character witness. However, as it can make their job easier, many magistrates and judges will grant such 'leave'.

It is often possible to put a more powerful argument directly to the court when you represent yourself. You can then speak directly to the magistrate (or jury), question witnesses yourself, and make a speech at the end on what all the evidence means. However, you must be prepared to do some serious work to make up in research what you lack in courtroom experience.

Very rapidly, you'll need to make some decisions about:

  • whether to plead guilty or not guilty;
  • what evidence you must collect; and
  • what research you need to do.

You need to set time aside to analyse the charges against you, to collect statements and other evidence and to prepare the basics of your argument to the court.

In the criminal law, a magistrate or judge has a limited legal duty to assist an unrepresented person throughout a hearing or trial. She or he should tell you, for instance, that you now have a right to ask questions of a witness, or you may like to object to a piece of evidence. However, the magistrate or judge will not tell you how to prepare your questions or your objections, or how to conduct your case.

In preparing your case, if not in arguing it, you need to stand back from your emotional connection to the matter, and assess the strengths and weaknesses of both sides, as if it were a sporting contest. Then you can take some advice and decide what tactics to employ.

There are some advantages to self-representation. If you have a dispute about the facts with a witness, you might be in a better position to present your view both in cross-examining and challenging the witness, as well as giving evidence yourself. When questioning a witness about events in which you were involved, you are in control of the issues raised, and can raise argumentative suggestions, which are not possible if and when you give evidence. In effect, you can give 'evidence' twice when you represent yourself.

It is also valuable to be able to speak directly to and with the tribunal (magistrate, judge or jury), rather than being regarded as a silent third party, variously called 'the defendant' (in a magistrate's court) or 'the accused' (in a jury trial). Making a more human connection with your magistrate, judge or jury may be important in overcoming prejudice and allowing them to treat you humanely.

When representing yourself, you might be able to have an adviser sit next to you, quietly giving you advice. This person has been known in the legal system as a 'McKenzie friend', from the case of McKenzie v McKenzie (McKenzie v McKenzie [1970] 3 All ER 1034). Your adviser cannot, however, act as an advocate for you, without permission from ('leave of') the court.

The right to an adviser has not always been observed in Australia, and some courts are against it. If you come across a magistrate or judge who is hostile to your request, you can argue your entitlement on the grounds that:

  • you are untrained in court procedure;
  • you cannot afford a lawyer; and
  • in the interests of justice you should be allowed assistance from your adviser.

Mention the High Court decision of Dietrich (Dietrich v R (1992) 177 CLR 292), which supports the right to legal representation 'where the interests of justice so require'.

When you appear unrepresented, the trial judge or magistrate will often allow you to sit at the bar table (where the barristers sit). The judge has a duty to tell you your rights (but he or she won't give you tactical advice) including your right to object to evidence and cross-examine witnesses (MacPherson v R (1981) 147 CLR 512).