Klewer v R [2016] NSWDC 224

Klewer v R [2016] NSWDC 224

The Court dismissed the motion because the appellant's mother was not legally qualified or admitted as an Australian legal practitioner and the Court appeared to have no power under s 36 of the Criminal Procedure Act 1986 (NSW) to permit her to represent him. Treating the application alternatively as one for her to act as a McKenzie friend, the Court was bound by R v EJ Smith to regard such permission as an indulgence available only in extraordinary circumstances, which were absent. Her status as a declared vexatious litigant, her conviction from the same events, and her disruptive conduct in prior proceedings positively counted against permitting her involvement, while the appellant...

Jurisdiction
Australia
Judgment Date
01 August 2016
Procedural Posture
Criminal Conviction Appeal; Motion Seeking Leave for Representation by an Unqualified Person / Procedural Motion Before Hearing of the Appeal
Outcome
Motion dismissed.
Legal Topics
['conviction Appeal' 'resist Officer' 'assault Police in the Execution of Duty' 'unqualified Representation' 'mc Kenzie Friend' 'self Represented Litigant' 'vexatious Proceedings']
['criminal Law' 'criminal Procedure'] ['conviction Appeal' 'resist Officer' 'assault Police in the Execution of Duty' 'unqualified Representation' 'mc Kenzie Friend' 'self Represented Litigant' 'vexatious Proceedings']

Case Brief

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Procedural Posture

Criminal Conviction Appeal; Motion Seeking Leave for Representation by an Unqualified Person / Procedural Motion Before Hearing of the Appeal

Legal Issues

  1. 1 ["Whether the appellant's mother, who was not an Australian legal practitioner, could be permitted to represent him in criminal appeal proceedings." "Whether the appellant's mother should be permitted to assist as a McKenzie friend." "Whether the filing of the motion was affected by the Vexatious Proceedings Act 2008 (NSW) because the appellant's mother had been declared a vexatious litigant." 'Whether extraordinary circumstances existed to justify permitting a McKenzie friend in the criminal appeal.']

Ratio Decidendi

The Court dismissed the motion because the appellant's mother was not legally qualified or admitted as an Australian legal practitioner and the Court appeared to have no power under s 36 of the Criminal Procedure Act 1986 (NSW) to permit her to represent him. Treating the application alternatively as one for her to act as a McKenzie friend, the Court was bound by R v EJ Smith to regard such permission as an indulgence available only in extraordinary circumstances, which were absent. Her status as a declared vexatious litigant, her conviction from the same events, and her disruptive conduct in prior proceedings positively counted against permitting her involvement, while the appellant...

Court Disposition

Motion dismissed.

Orders

  • ['Motion dismissed.']