FAHEY v R [2017] NZCA 596

FAHEY v R [2017] NZCA 596 [14 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA709/2015[2017] NZCA 596BETWEEN GRENVILLE HENARE FAHEYAppellantAND THE QUEENRespondentHearing: 31 May and 1 June 2017Court: Miller, Cooper and Clifford JJCounsel: J A Kincade and J Oliver-Hood for AppellantB J Horsley and A B Richards for RespondentJHM Eaton QC for New Zealand Law Society and NewZealand Bar Association (intervening with leave)K H Cook and F E Guy Kidd for New Zealand Criminal BarAssociation (intervening with leave)Judgment: 14 December 2017 at 4.00 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)TABLE OF CONTENTSThe facts [4]The course of proceedings in the High Court [8]Pretrial proceedings [8]The trial [18]Closing addresses [28]The summing-up [32]The grounds of appeal [36]The rights to fair trial and self-representation [40]The right to fair trial [41]The right to self-represent [42]Waiver of counsel affects but does not preclude appeal [46]What should a trial court do to ensure a self-represented defendant's trialis fair? [50]Court-appointed counsel: existing practice [53]A court may appoint counsel to assist the defendant, in its discretion [53]Appointments ought to be rare [55]The pattern of recent appointments [56]Appointments are increasing in number [56]Former counsel may be appointed [58]The terms of appointment [60]Terminology [64]Surveying the options [65]The views of the Bar and the Crown [65]Practice in other jurisdictions [69]Trial courts' power to appoint standby counsel [75]The power exists [75]Difficulties addressed by better role definition [79]Appointments ought to be exceptional [85]Constructive waiver of counsel [86]Former counsel should not ordinarily be appointed standby counsel, or amicus[90]May a court assign control of the defence to court-appointed defencecounsel? [97]Summary [105]Was Mr Fahey denied the right to represent himself? [106]Should the Court have inquired into Mr Fahey's capacity to representhimself? [107]Did counsel's intervention compromise Mr Fahey's defence? [108]Should Mr Fahey have been permitted to lead propensity evidence aboutMr Harris? [111]Result [114][1] Mr Fahey appeals his conviction for the murder of Steven Harris at Aucklandon 4 September 2013. He alleges that the trial judge forced counsel upon him althoughhe had elected to represent himself and complains that counsel did not advance hispreferred defence, causation, instead urging lack of murderous intent upon the jury.[2] The appeal raises important questions about the role of counsel appointed bycourts to assist in criminal trials in which the defendant is self-represented. We heardfrom counsel for the New Zealand Law Society, the New Zealand Bar Association andthe New Zealand Criminal Bar Association. All agree, as does the Crown, that the roleof court-appointed counsel wants closer definition. This judgment is intended to guidetrial judges in the exercise of their discretion to appoint counsel who serve as amicuscuriae to assist the court, or as standby counsel to assist the self-represented defendantas and when the defendant requests.[3] Mr Fahey's notice of appeal was filed out of time. We grant the necessaryextension.The facts[4] Mr Fahey and Mr Harris were friends who were unemployed and frequentlyhomeless, sometimes living on the streets of central Auckland. The two were seenarguing early on the evening of 4 September 2013. Later, shortly before 11pm, CCTVcameras captured them walking down Albert Street and into Victoria Street West. MrFahey procured a free meal from Domino's Pizza in Elliott Street and shared it withMr Harris. They walked under the Mayoral Driver overpass and entered Myers Park.By this stage, Mr Fahey was walking ahead of Mr Harris, who was carrying the pizzabox. The Crown case was that Mr Fahey stopped, removed his backpack and took aknife from it, and attacked Mr Harris, who fell to the ground. Mr Fahey left the scene.The incident was observed by eyewitnesses and captured in part on CCTV.[5] Mr Harris was taken by ambulance to hospital but died from his injuries.He had been stabbed four times, once in the arm and thrice in the chest. A policeofficer who attended the scene formed the opinion that Mr Harris was already dead,as did the ambulance staff, who found no pulse and no breathing but detected someelectrical activity. Medical intervention at the hospital included a thoracotomy and athoracostomy, in which a large incision was made across the body to relieve pressurefrom internal bleeding. The opinion of the Crown pathologist was that death resultedfrom multiple sharp force injuries.[6] There was evidence that Mr Fahey changed his clothes before going to arelative's home in Avondale, where he disclosed that he had pulled out his knife andstabbed a man. On the following day he told an acquaintance that he had stabbed hisfriend three times.[7] On 6 September 2013 Mr Fahey went to the police with his then lawyer,Mr Mansfield, and acknowledged that he had been in a fight with Mr Harris and itinvolved a knife. He took the police to areas where he had left the knife he apparentlyused and various discarded items of clothing.1 He otherwise exercised his right tosilence.The course of proceedings in the High CourtPretrial proceedings[8] At a callover on 27 November 2013 Brewer J recorded that Mr Fahey haddispensed with the services of Mr Mansfield and elected to represent himself.Mr Fahey put his decision down to a conflict of personalities. The Judge encouragedhim to seek alternative counsel but made case management directions that envisagedhe would self-represent. Mr Fahey set about doing so, corresponding with the Crownand raising questions of admissibility and disclosure. An application for an order thatpropensity evidence was admissible was made by the Crown and set down for hearingin May 2014.[9] At another callover, on 26 February 2014, Lang J raised the possibility ofamicus being appointed "to assist the Court". Mr Fahey consented. The Judge thoughtcounsel would assist in the pretrial process and directed that the Registrar inquire ofMr Dacre QC whether he would be willing to accept appointment.[10] The appointment was made, and with Mr Dacre's assistance Mr Fahey wasable to receive and view disclosed materials including the CCTV footage. He was1 He did not concede at trial that it was the same weapon. See [33] below.also given stationery and Mr Dacre arranged for legal research that Mr Fahey wanted.In a minute of 12 March, the Judge recorded that Mr Dacre was also to assist Mr Faheyin making a decision about whether to challenge the admissibility of his own statementto the police.[11] Admissibility of the Crown's propensity evidence was argued on 28 Maybefore Venning J, who allowed evidence of Mr Fahey's behaviour on several occasionsbut excluded others as unduly prejudicial.2[12] In a minute of 24 July Lang J expressed his wish that Mr Dacre continue to actas amicus for the trial, which was to begin on 29 September 2014. He asked that MrDacre consult Mr Fahey and file a memorandum recommending how his role ought tobe defined, having regard to Mr Fahey's requirements and the likely complexity of thetrial. Mr Dacre complied. His memorandum explained that while Mr Fahey had beenconscientious in his preparation, he lacked resources and had "little in the way offorensic skills or legal insight". He had not established a clear theory of the case orgiven attention to the addresses, to cross-examination, or to defence evidence. MrDacre recommended that he assist Mr Fahey to establish a theory of the case, preparea statement that would form the basis of cross-examination and a brief, should MrFahey give evidence, tabulate the disclosure and prepare statements for defencewitnesses, prepare cross-examination, and draft addresses. There was also an urgentneed to address issues that Mr Fahey had with the pathologist's report.[13] In response the Judge authorised Mr Dacre to carry out the tasks he hadnominated and asked that he then consult Mr Fahey to see how counsel could bestassist the Court during the trial, filing a further memorandum so the Judge could makeany directions thought appropriate. The Judge confirmed on 12 September that MrDacre would continue as counsel to assist the Court.[14] Minutes of 12 and 19 September deal with numerous trial management issues,including for example a list of witnesses whom the Crown was to call at Mr Fahey'srequest, the content of the photo booklet, further disclosure, questions of the ESR andthe Crown pathologist, Dr Garavan, a memorandum of agreed facts, and access to a2 R v Fahey [2014] NZHC 1274.computer for Mr Fahey. It is apparent that Mr Fahey was self-representing but takingassistance and advice from Mr Dacre as he saw fit. Lang J recorded that he hadencouraged Mr Fahey to get practical guidance from Mr Dacre about how he shouldpresent his case at trial.[15] Mr Dacre wrote to Mr Fahey on 18 September. He recorded that Mr Faheywas conducting his own trial and explained certain matters, notably: the elements ofthe offence of murder, the defence of self-defence, witnesses, Mr Fahey's evidenceshould he choose to give it, and the trial process. Mr Dacre evidently envisaged thatMr Fahey would offer any challenges to jurors and make any opening address, but thathe might deliver the closing address.[16] Mr Dacre's letter included advice on a theory of the case, suggesting that onhis understanding of Mr Fahey's position there were two obvious defences,self-defence and lack of murderous intent. He drew attention to s 166 of theCrimes Act 1961 and explained that it would be no defence if death resulted fromgood-faith medical treatment of Mr Harris's injuries. He attached a list of questionsthat could form the basis of a brief of evidence for Mr Fahey.[17] The trial began on 29 September but it was aborted on 2 October forunavailability of a key witness. A voir dire was held on 5 November 2014 to hear theevidence of Dr Garavan about cause of death. Mr Fahey cross-examined him,apparently in an attempt to show that medical intervention may have causedMr Harris's death.The trial[18] The second trial began on 24 November 2014. The Crown called 43 witnesses,including eyewitnesses and two people to whom Mr Fahey made admissions. MrFahey questioned some witnesses, Mr Dacre others. A few were questioned by both.The questions suggest the Crown was being put to proof and that Mr Fahey wasexploring identity, causation and self-defence. With respect to causation, Mr Dacrequestioned Dr Garavan about the effects of medical intervention.[19] On the second day of trial, Mr Fahey complained in a chambers discussion thatMr Dacre had given bad advice, causing Mr Fahey to fail to put some questions to theambulance officers who attended Mr Harris. It appears that Mr Fahey wanted to askthem about how many stab wounds Mr Harris suffered, presumably in an attempt toshow that some of the four stab wounds seen by the pathologist were inflicted later.The Judge advised that "no doubt Mr Dacre has your best interests at heart, but at theend of the day, you do whatever you feel you have to do". He asked whether Mr Faheyhad a clear vision of what his defence was. Mr Fahey responded that he had notexplored it "definitely". Lang J reminded him that the Court had been trying formonths to get him to focus on his defence and suggested that his choices were self-defence or lack of murderous intent.[20] The chambers discussion followed Mr Fahey's unsuccessful cross-examinationof one of the ambulance officers, a Mr MacCauley. It led the Judge to explore whatMr Fahey was trying to achieve with hiscross-examination. Identity was not in issue, as Mr Fahey confirmed, and Mr Dacresuggested that "technical issues" with the medical evidence were "getting himnowhere in terms of a defence". Counsel explained that there were no questions hewould have asked of the witness himself, and to do so could be "to see my neutralitywasted with the jury". He noted for Mr Fahey's benefit that the medical evidence didnot exclude lack of murderous intent as an available defence.[21] The Judge and Mr Dacre both expressed concern that Mr Fahey had to decidewhether to admit possessing the knife because propensity evidence would be led if hedid not. The Judge also invited Mr Fahey to consider having Mr Dacrecross-examine witnesses who talked about what Mr Fahey had said and also invitedhim to think twice about challenging the pathologist unless he had a realisticalternative explanation that could be backed by his own expert. He remindedMr Fahey that while he could not give advice, Mr Dacre could do so to the extent hewas able in his "limited retainer", and emphasised that Mr Fahey must make thesedecisions. To this Mr Fahey responded that he would do so.[22] The Judge had the chambers discussion typed back and given to Mr Fahey.This brief interlude in the trial was plainly an attempt by the Judge and Mr Dacre toencourage Mr Fahey to focus on his defence and to recognise risks inherent in somedefences he might pursue.[23] As Ms Kincade (who appeared for Mr Fahey) observed before us, it is fair tosay that Mr Fahey did not follow the advice he had been given. He persisted in hischallenge to the medical evidence, focusing on the number of wounds seen whenambulance officers first arrived. He also cross-examined admission and propensitywitnesses in an attempt to elicit evidence that he was not a violent person.[24] The Crown called its propensity evidence, which addressed two incidents inwhich Mr Fahey was found to be carrying a knife, once threatening a person withwhom he was having an argument, and a third incident in which he made threats ofviolence when his mother refused to give him money. Admissibility of this evidenceis not in issue on appeal, but its presence is said to support the argument that Mr Faheyought to have been permitted to call propensity evidence about Mr Harris.[25] Mr Fahey elected not to give evidence, signing instructions to Mr Dacre to thateffect. He does not complain on appeal that that was a mistake. And while it appearshe had taken advice from a pathologist, none was called. He did seek to put MrHarris's mental state and propensity for violence in issue, calling a psychiatrist whohad reviewed Mr Harris's mental health history. The substance of that evidence wasMr Harris was bipolar, had antisocial personality traits and was impulsive, but thepsychiatrist naturally could not say what was his mental state at the time of his death.[26] Mr Fahey also sought to call two propensity witnesses, members of Mr Harris'sfamily. The gist of their evidence was that Mr Harris had a history of violence andthreats against family members. In a short ruling Lang J refused Mr Dacre's requestto admit this evidence, reasoning that evidence of Mr Harris's prior relationship withMr Fahey would be relevant to the circumstances of Mr Harris's death, but not soevidence of his relationship with other persons. This ruling is in issue on appeal.[27] After the Crown closed its case Mr Dacre advised the Judge that he woulddeliver a defence closing address but would not say anything about causation.The Judge asked Mr Fahey whether he proposed to address the jury himself on thequestion whether fatal injuries may have been caused by medical intervention(presumably putting it in that way because no other alternative cause had beensuggested). Mr Fahey said he would not do so and stated that he had never contendedthe injuries were caused through medical intervention. The Judge took an adjournmentto allow Mr Fahey and Mr Dacre to confer about whether Mr Fahey wanted to sayanything more to the jury in closing, and Mr Fahey duly confirmed that he did not.Closing addresses[28] The Crown's closing address focused on the CCTV footage. Crown counselsuggested that it showed the two men entering the park, with Mr Harris carrying thepizza box and Mr Fahey a backpack which he put down and took the knife from. Hethen attacked Mr Harris and left the scene, recovering his backpack as he did so. Therewas evidence that Mr Fahey tried to disguise his appearance by putting a hood on hishead and that he swapped his shoes for another man's when he reached the house inAvondale, where he told a witness that he had hurt and stabbed a man who may nothave survived. Another witness deposed that on the following day Mr Fahey admittedstabbing his friend three times. Mr Fahey had taken the police to the knife, andalthough the Crown could not prove that it was the murder weapon, it could have been.The medical evidence was unequivocal as to cause of death, and it was immaterial ifmedical staff had inflicted further injuries in treatment since Mr Harris was dying inany event.[29] Crown counsel suggested that Mr Fahey was a man known to blow up at theslightest provocation, and the sort of man known to carry a knife. Mr Harris bycontrast was someone who would harp on, who didn't know when to leave wellenough alone, but was quirky, flamboyant and not "terribly aggressive".[30] Mr Dacre began the defence closing by explaining that he was there to assistthe jury and was not acting for Mr Fahey:[2] My role is to assist you. I'm appointed by the Court to assist you.That is to assist you by bringing out issues which may be important to you andmay be important to support the case for Mr Fahey. That is a different rolefrom acting for Mr Fahey. If I acted for Mr Fahey, I would be doing what heinstructed me to do and we would be discussing the tactics and the cross-examination and all those matters. He is in fact his own advocate, so he hasbeen in charge of tactics, cross-examination and various issues. So, I for anexample, can't bind him — I can't say well "put aside this issue because itdoesn't matter" because I haven't got those sorts of instructions. I haven't gotany instructions. I can simply sit here as an informed observer and then try toput together some issues for you to consider. So I want you to be clear aboutthis.[3] When I talk about issues which I think are important, which I thinkyou will think are important, it doesn't necessarily mean Mr Fahey agrees withme, and when I say "Don't spend too much time on this issue", again that'snot a reflection necessarily of what Mr Fahey says. It's a reflection of what Ithink is useful. So to that extent, we are in different situations.[31] Mr Dacre emphasised the burden and standard of proof, and cautioned the juryagainst speculation and prejudice. He explained the difference between murder andmanslaughter and suggested "on behalf of Mr Fahey" that the Crown had not provedmurderous intent, focusing on absence of motive for attacking a friend, the very briefduration of the incident, and whether Mr Fahey was really the aggressor. The CCTVfootage showed snippets only. He invited the jury to discount the propensity evidenceand suggested that Mr Fahey had not tried to minimise his involvement at all but ratherhad gone to the police. He dealt with the medical evidence by noting that, surprisingly,it could not identify the knife used, by emphasising that the wounds did not necessarilyprove murderous intent, because they would have required little force, and by pointingout that the wounds did not match cuts in the clothing. These points left the jury withthe propositions that perhaps the Crown had not proved all of the wounds wereinflicted by Mr Fahey and that the depth and severity of the wounds did not necessarilysignify murderous intent. Counsel took what he could from the admissions, suggestingthat one of the witnesses was unreliable and neither established murderous intent.The summing-up[32] Summing up, Lang J reminded the jury that Mr Fahey was self-representing:[15] The second is that Mr Fahey has exercised his right to representhimself. Every citizen in New Zealand has that right to represent him orherself. A lot of people get lawyers because they feel it meets their bestinterests, but Mr Fahey has not chosen to do that. You take no adverseinference whatsoever from that. You will see, and have seen, that Mr Dacrehas been appointed to assist you and to assist the Court to ensure that there isa fair trial, but please draw no adverse inference from the fact that Mr Faheyhas chosen to represent himself.[33] He directed the jury that Mr Fahey had not conceded causation, or admitted itin his police interview:[27] I need to spend a little bit of time on this issue. Mr Fahey does notappear to have contested the issue, namely that he was the person that inflictedthe stab wounds, but neither has he conceded it, so you must determine thatissue based on the evidence. And I say he hasn't conceded it, because whenyou read the written statement that he gave at the police station on the 6thSeptember 2013, you will see that he accepts that he was involved in a fightin which the deceased was injured, and that he removed from the scene a knifeand that he told the police he would show them where he had put it. Now thatdoesn't go as far as a concession that he inflicted the stab wounds that causedMr Harris' death, so the Crown needs to satisfy you beyond reasonable doubtregarding that issue.[34] He summarised the medical evidence about Mr Harris's condition on arrival atthe hospital:[28] Perhaps if I just take a moment to go over the medical evidence thatreally, I don't think at the end of the day, is largely in dispute. You heard fromtwo sources about the injuries, or three really including the ambulanceofficers, but the important evidence about the injuries that caused Mr Harris'death came from the intensivist, Dr Nicholls, and from the pathologist,Dr Garavan. And Dr Nicholls' evidence matching that of the ambulanceofficers is that when Mr Harris arrived at the hospital he was in a state ofpulseless electrical activity. This meant that although there was electricalactivity around the heart, there was no pulse. Although the heart was pumping,no blood was being pumped around the body, and as you heard from both DrNicholls and Dr Garavan, that is a very serious state of affairs from which,unless there is immediate intervention, and even then, the chance of survivalis slim.[35] He addressed the evidence about medical intervention, which essentiallyshowed that Mr Harris bled out internally from stab wounds to the heart and lung. Theevidence identified four stab wounds. The Judge summarised the evidence aboutwhether Mr Fahey inflicted these wounds, drawing attention to uncertainty about theknife. He gave an orthodox propensity direction, explaining that the evidence went tothe questions whether Mr Fahey brought the knife to the scene and used violence there.He recorded fairly and at some length what counsel had to say about intent.The grounds of appeal[36] Mr Fahey advanced the following principal grounds of appeal:(a) when he elected to represent himself the Court ought to have obtaineda psychological report to ensure that he was capable of doing so;(b) amicus was briefed to assist him, but he did not want help; and(c) in the resulting confusion he did not adequately present his own case.The second of these grounds raises issues of general application which were addressedby the interveners and the Crown.[37] Mr Fahey also contended that he was denied the opportunity to call propensityevidence about Mr Harris, although the prosecutor was allowed to suggest in closingthat he was not an aggressive man and evidence of Mr Fahey's own propensity forviolence was led as part of the Crown case.[38] Ms Kincade abandoned a further ground of appeal: namely, that the Courtought to have ordered an inquiry under the Criminal Procedure (Mentally ImpairedPersons) Act 2003 into Mr Fahey's fitness to stand trial. There was no evidence thathe was unfit, and none has been adduced on appeal. It is not Mr Fahey's case that hewas unfit, merely that an inquiry ought to have been held. We recognise that beforewithdrawing Mr Mansfield suggested that reports be obtained, but nothing was doneto pursue that suggestion, and while Lang J was clearly concerned that Mr Fahey wasrepresenting himself badly, nothing in the record suggests that the Judge had concernsabout fitness.[39] It is convenient to address the issues in the following way:(a) we review existing law and practice on the rights to fair trial and to self-representation;(b) we identify an increase in the numbers of court-appointed counsel;(c) we examine the bar's calls for change and briefly survey practice inother jurisdictions;(d) we confirm trial courts' jurisdiction to appoint counsel to assist thedefendant as and when required, and we offer guidance about suchappointments and the role of counsel;(e) we examine a submission that trial courts may appoint counsel toconduct the defence where a defendant is fit to stand trial but incapableof self-representation;(f) in light of our conclusions about the proper role of court-appointedcounsel, we assess Mr Fahey's complaint that he was denied the rightto self-represent;(g) we examine Mr Fahey's alternative argument that he ought to have beenassessed for capacity to conduct his own defence; and(h) we address the propensity issue, which stands apart from the othergrounds of appeal.The rights to fair trial and self-representation[40] We preface our survey of existing law by observing that New Zealandauthorities normally use the term amicus curiae for counsel appointed by the courtwhether counsel is to assist the court independently of any party or to present the casefor an unrepresented defendant, or both. When discussing existing law and practicewe follow the same approach. Because we consider that there are importantdifferences between the two roles, we adopt different terminology at [64] below, whenaddressing future practice.The right to fair trial[41] Under s 25 of the New Zealand Bill of Rights Act 1990 (BORA) everyonecharged with an offence possesses certain rights to minimum standards of process inconnection with its determination. They include, relevantly, the rights to be present,to challenge prosecution witnesses, to present a defence, to call evidence, and to beproved guilty according to law. We make several points about these protected rights:(a) They confer on the defendant a power of decision over central rights:how to plead, what defence to present, how to challenge the prosecutionwitnesses, and what evidence to call.(b) The right to a fair trial is often described as absolute or inalienable, suchthat if it is so compromised that the trial as a whole is adjudged unfairthe conviction cannot stand.3 To describe the right as absolute is to saythat there exists no interest that justifies the state in overriding it. Whilethis proposition is undoubtedly true of the trial as a whole, it must beborne in mind that the fair trial right comprises a number of distinctrights,4 that to compromise one is not always to make the entire trialunfair,5 and that all BORA-protected rights are subject to suchlimitations as are demonstrably justified in a free and democraticsociety.6(c) Although it is not listed among the s 25 rights, the right to appear attrial by counsel is undoubtedly a protected right; it is recognised ins 11(a) of the Criminal Procedure Act 2011, s 30(2) of theSentencing Act 2002, the express BORA rights to counsel on arrest andwhen charged,7 and art 14 of the International Covenant on Civil andPolitical Rights, which states that the defendant "may defend himselfin person or through legal assistance of his own choosing".8 It isconsidered fundamental because it allows a defendant to makeinformed decisions about the exercise of other rights.93 Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681 (HL) at 704 per Lord Bingham.In that case there was no question of an informed waiver of rights. CompareR v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [80]: even where there is an informed waiver"the right to a fair trial cannot be compromised — an accused is not validly convicted if the trialis for any reason unfair".4 Brown v Stott (Procurator Fiscal, Dunfermline), above n 3, at 704 per Lord Bingham.5 R v Howse [2005] UKPC 30, [2006] 1 NZLR 433 at [33]–[36] per Lord Hutton, Lord Caswell andSir Swinton Thomas; and Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].6 New Zealand Bill of Rights Act 1990, s 5.7 Sections 23(1)(b) and 24(c).8 International Covenant on Civil and Political Rights 999 UNTS 14668 (opened for signature16 December 1966, entered into force 11 November 1976), art 14(3)(b).9 Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 279–280 per Richardson J; andR v Barlow (1995) 14 CRNZ 9 (CA) at 38 per Richardson J. For completeness, we noteRichardson J's point in Barlow that BORA is not an exhaustive list of the fundamental rights adefendant has in a criminal trial: at 32.The right to self-represent[42] New Zealand law permits defendants to represent themselves. The right to doso is found in s 11 of the Criminal Procedure Act, which provides that the defendant'scase may be conducted by a lawyer or by the defendant personally. The right can betraced to the Criminal Code 1893, s 391 of which was headed "right to be defended".10The right to advance a defence is absolute but the right to do so in person may yieldto the interests of justice in several ways. For example, a court may proceed in theabsence of a defendant who has absconded11 or is disruptive,12 whether or not self-represented, and it may prohibit a defendant from personally cross-examining anywitness in the interests of justice.13 As a matter of trial process, courts also insist thatself-representation be preceded by an informed waiver of the BORA-protected rightto counsel.14[43] Although long recognised in legislation the concept of a right to representoneself has shallow roots in the common law, which originally denied defendants theright to appear by counsel and so left them no choice in the matter.15 English courtsseemingly did not articulate a clear right to self-representation until 1944,16 and thenwithout examining its origins and justification.17 The search for a normativefoundation leads to the 1975 judgment of the United States Supreme Court inFaretta v California, in which the majority surveyed English common law tradition,concluding that only in the Star Chamber was counsel forced upon the defendant.18The majority held that on its true construction the Sixth Amendment to theUnited States Constitution, which guarantees the right to counsel, includes acorrelative right to self-represent.19 Three members of the Court dissented,10 See also Crimes Act 1908, s 415; and Crimes Act 1961, s 354.11 Criminal Procedure Act 2011, s 124(1).12 Sections 117(2) and 118(2)(b).13 Evidence Act 2006, s 95(2).14 See Sentencing Act 2002, s 30; and R v Condon, above n 3, at [79]–[80].15 William Blackstone Commentaries on the Laws of England (A Strahan, London, 1809) vol 4 at355–356; and William Holdsworth A History of English Law (3rd ed, Sweet & Maxwell, London,1945) vol 5 at 192.16 Rabeeba Assy Injustice in Person: The Right to Self-Representation (Oxford University Press,Oxford, 2015) at 28–29 and 32–33.17 In R v Woodward [1944] KB 118 (CA) at 119 the Court allowed an appeal on the ground that "noperson charged with a criminal offence can have counsel forced upon him against his will".18 Faretta v California (1975) 422 US 806 at 821–824 per Douglas, Brennan, Stewart, White,Marshall and Powell JJ.19 At 819–821 per Douglas, Brennan, Stewart, White, Marshall and Powell JJ.emphasising the absence of any express right of self-representation and the harm thatself-representation can do to the defendant, and finding English legal historyinconclusive.20 The rationale appearing from Faretta and subsequent cases is that theright protects personal dignity and autonomy, that self-representation allowsdefendants to present their cases in their own way, and that defendants aloneexperience the consequences of conviction.21[44] This Court adopted this rationale, citing Faretta, in R v Cumming:22[42] The right to be self-represented when defending charges at a criminaltrial reflects the principle that accused persons are entitled to choose theirdefences to the charges that they face, to determine the content of thosedefences and to present them in the manner they choose to the Courtdetermining the charges. The purpose of the right to self-representation hasbeen described by the Supreme Court of the United States as being "to affirmthe dignity and autonomy" of the accused person in addressing criminalcharges (McKaskle v Wiggins 456 US 168 (1984) per O'Connor J). Indelivering the majority opinion of the Supreme Court in its leading decisionon the right to self-representation in Faretta — an opinion which Douglas,Brennan, White, Marshall and Powell JJ all joined — Stewart J at p820 saidthat the right is:" given directly to the accused; for it is he that suffers theconsequences if the defence fails."Later, at p834, citing Brennan J in a concurring judgment in Illinois v Allen397 US 337 (1970) at pp 350–351, Stewart J added:"The right to defend is personal. The defendant, and not his lawyeror the State, will bear the personal consequences of a conviction.It is the defendant, therefore, who must be free personally to decidewhether in his particular case counsel is to his advantage. Andalthough he may conduct his own ultimately to his own detriment,his choice must be honored out of 'that respect of the individualwhich is the lifeblood of the law'."The decision of the Supreme Court of Canada in R v Swain (1991) 63 CCC(3d) 481 at p504 per Lamer CJC is to the same effect.[45] As that passage suggests, self-representation is usually associated with anincreased risk of conviction, for the right is not limited to defendants who are well20 At 838–840 and 843–845 per Burger CJ and Blackmun and Rehnquist JJ (dissenting). We notethat Faretta remains controversial in the United States. See for example John F Decker "The SixthAmendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee ofSelf-Representation Twenty Years After Faretta" (1996) 6 Constitutional Law Journal 484.21 Faretta v California, above n 18, at 834–835; and McKaskle v Wiggins 465 US 176 (1984) at 173–176 per Burger CJ, Powell, Rehnquist, Stevens and O'Connor JJ.22 R v Cumming [2006] 2 NZLR 597 (CA).equipped by ability, education and temperament, nor is it denied to those whose trialsare serious or complex. This does not of itself make the trial unfair, as the Court wenton to hold in Cumming:23[43] The exercise by accused persons of their right to conduct the defencepersonally accordingly is not premised on an expectation that they will do soin a skilful or effective manner. The context of intended self-representationdoes not permit the Court, when considering if ss 24 and 25 rights areinfringed, to take into account whether the decision to dispense with counselis in accordance with the accused's best interests.[44] A self-represented lay defendant lacks the knowledge of rules ofprocedure and evidence, and experience and skill in their application in thetrial context. Litigants in person do not often give evidence orcross-examine in an orderly way that focuses on what is relevant and avoidsrepetition. Nor do they generally have the advantage of the detachment ofcounsel in conducting the defence. The right to self-representation existsdespite these features, and they cannot be advanced to gainsay it. AsRichardson P said in R v Power (Court of Appeal, CA 187/96, 22 October1996) at pp7–8:"A high threshold of fitness, including a best interestscomponent, would derogate from the fundamental principlethat accused persons are entitled to choose their own defencesand to present them as they choose."[45] The right to self-representation is upheld when the trial process allowsaccused persons a fair chance to present the defence case in their own way,with a Court respecting their strategic choices and avoiding misplacedsolicitude over whether what is advanced to the jury is in the best interests ofthe accused.Waiver of counsel affects but does not preclude appeal[46] A first appeal court must allow an appeal against conviction if satisfied thatthere has been a miscarriage of justice, which means "any error, irregularity, oroccurrence" in or affecting the trial that created a "real risk" that the outcome wasaffected or resulted in an unfair trial or a trial that was a nullity.24 Although defendantsmust ordinarily live with decisions made at trial — the decisions to plead and to giveevidence are the paradigm examples — an appeal will be allowed if the appellate courtis persuaded that there has been a miscarriage, however occasioned.2523 R v Cumming, above n 22.24 Criminal Procedure Act, s 232(4).25 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [67].[47] Accordingly, a defendant who made an informed decision to self-represent ispermitted to establish on appeal that (a) the defence could not have been putadequately without counsel's assistance and (b) in consequence, a real possibility ofacquittal was lost.26 If the trial was unfair in this substantive sense, the appellate courtwill find that there was a miscarriage of justice and order a retrial. The questionwhether the defence could not have been put without counsel is answered by carefullyconsidering the seriousness and complexity of the case and the circumstances of thedefendant.27[48] This Court's approach to appellate review accommodates in several ways aninformed decision to self-represent:28(a) The onus is on the appellant to show that the trial was unfair:29As Mr Chatha chose to represent himself, the onus was on himto show that his defence could not, in the particular case, havebeen adequately conducted without the assistance of counsel.(b) The trial is not unfair merely because counsel would have conductedthe defence more skilfully:30Where an accused has chosen to represent him or herself, it is notenough to show that he or she was defended with less skill thana professional lawyer would have shown Whether an appellant has [shown on appeal that the defencecould not be presented without counsel] must be examinedagainst the background of an accused's right to represent him orherself (even badly). This right must be respected.(c) The circumstances in which the appellant came to be self-representedmay affect the assessment of fairness:31[26] Mr Cant's own evidence satisfies us that he made aninformed choice to go to trial without a lawyer. A deliberate26 R v Condon, above n 3, at [80]; R v Sungsuwan, above n 25, at [58]; R v Scurrah CA159/06,7 August 2006 at [17]; and McKay v R [2009] NZCA 378, [2009] 1 NZLR 441 at [80]–[82].27 R v Condon, above n 3, at [82].28 Sentencing Act, s 30(2). If the waiver of counsel was not informed, the onus is on the Crown toshow that the trial was fair: R v Condon, above n 3, at [81].29 R v Chatha [2008] NZCA 547 at [123].30 At [123]–[124].31 Cant v R [2013] NZCA 513.election to be self-represented is to be respected. There must bea realistic limit to the extent to which Courts are required toprotect defendants from the consequences of their own decisions.Judicial resources are finite. So is the capacity of the legalsystem to make continual allowances for a party whosedetermination to conduct his defence according to his owndictates inevitably excludes the responsible participation ofcounsel.(Footnote omitted.)(d) Cases in which an appellant can discharge the burden of showing thatthe trial was unfair are likely to be rare:If, having been appropriately advised and given sufficient time(so that the decision is informed and deliberate), an accusedchooses self-representation, that choice must be respected, andthe accused must live with its consequences. Cases of the typediscussed by the Court in Condon at [80] are an exception to this,but they will be rare.32In Condon the Court presumably had in mind the rare type ofcase where a defendant's personal circumstances, such as anintellectual disability, leading to the election of self-representation, deprived him or her of the ability to takefundamental steps like conducting cross-examination or makingsubmissions. And the Court's statement does not appear torequire a detailed investigation into whether the actual conductof the defence was adequate; rather the inquiry is into whetherin the particular circumstances the defence could have beenadequately conducted without counsel.33[49] Cant v R is an example of the New Zealand approach. The defendant dismissedsuccessive counsel and the trial court appointed counsel to assist him. He complainedon appeal that his defence could not be conducted without counsel of his own. ThisCourt reviewed the overall fairness of the trial and held that against the backdrop of adecision to self-represent no miscarriage had resulted. The defence had been identifiedand put; perhaps not very well, but with the assistance of amicus, well enough.34McKay v R is another example.35 The defendant dismissed counsel and elected self-representation. This Court held that the defendant was reasonably capable and the trial32 R v McFarland [2007] NZCA 449 at [54].33 Cant v R, above n 31, at [31].34 At [32]–[46].35 McKay v R, above n 26.judge very helpful, the case was not difficult, and the slender defence had beenexplained adequately in the summing-up.36What should a trial court do to ensure a self-represented defendant's trial is fair?[50] A trial court owes a number of obligations to a self-represented defendant. Itmust:(a) Explain the rights to legal representation and to legal aid, satisfy itselfthat the defendant fully understands them, and provide an opportunity toexercise those rights.37(b) Explain the trial process and the rights that it affords the defendant.38(c) Explain the rules of evidence as necessary.(d) Intervene as necessary to ensure overall fairness to each side.39 This mayinclude offering the defendant a degree of guidance in, for example,articulating what the defence is or putting questions to witnesses.40(e) Put to the jury in detail appropriate to the circumstances any defenceavailable in law, whether or not the defendant has advanced it.41[51] Of course the court's power to assist is limited, for it must always be and appearimpartial. As it was put in R v Jaser:42[32] The practical difficulty that emerges is that the trial judge has aduty to assist the self-represented accused, in order to ensure a fair trial, butthe trial judge must also remain neutral and cannot intervene in the active waysthat defence counsel can intervene, such as by taking over cross-examinationsand by providing strategic advice.36 At [80]–[82].37 Sentencing Act, s 30; and R v Condon, above n 3, at [23].38 We note that the former s 364 of the Crimes Act 1961 has not been carried into the CriminalProcedure Act, perhaps because it was not a complete statement of the court's obligations.39 R v Cumming, above n 22, at [51].40 R v Brown (Milton) [1998] 2 Cr App R 364 (CA) at 369–370.41 R v Tavete [1988] 1 NZLR 428 (CA) at 431. See also Christian v R [2017] NZSC 145 at[34]–[36].42 R v Jaser 2014 ONSC 2277.[52] In Condon the Supreme Court recognised that legal assistance at or before trialmay help secure a fair trial.43 This brings us to the practice of appointing counsel toassist the defendant.Court-appointed counsel: existing practiceA court may appoint counsel to assist the defendant, in its discretion[53] In R v Hill this Court held that in criminal proceedings the trial court mayappoint amicus curiae. The decision is discretionary, and it may be made wheneverthe court considers that counsel will assist significantly.44 In R v McFarland the Courtadded that amicus may be appointed to act "in a partisan way", to present the case byleading and cross-examining witnesses, to conduct legal argument, and to deliver anaddress:45The role of an amicus varies with context. Where an amicus is appointed in acriminal case it is accepted that he or she may act in a partisan way, in thesense that he or she may present the arguments that a party would normallypresent.[54] Further, counsel's role may evolve during the trial if the defendant sorequests:46[Counsel's] role as amicus seems to have expanded during the course of thetrial, at the request of Mr McFarland. [Counsel] conducted much of the caseon Mr McFarland's behalf, including dealing with jury selection,cross-examining Crown witnesses, leading evidence from defence witnesses,and delivering the opening and closing addresses In principle, there can beno objection to an amicus acting in this way if that is what the accused wantsand no issue of conflict of interest arises We accept that there was somelack of clarity at the outset of the trial about the role that [counsel] wouldperform. While that is undesirable, it may be inevitable in this type of casewhere the role may develop over time.43 R v Condon, above n 3, at [82]. See also, for example, Goolsbee v R [2014] NZCA 148 at[69]–[70]; Cant v R, above n 31, at [32]–[35]; Dunn v Police [2014] NZHC 3334 at [19]–[20];and Brown v Police [2016] NZHC 374 at [22].44 R v Hill [2004] 2 NZLR 145 (CA) at [57], citing Levy v Victoria (1997) 189 CLR 579 at604–605 per Brennan J.45 R v McFarland, above n 32, at [55].46 At [58]–[60].Appointments ought to be rare[55] This Court has insisted that appointments to assist the defendant ought to berare, for several reasons:(a) Conflicts of duty may arise:47If appointed as amicus, [counsel's] responsibility would have been to assistthe Court and not to represent or to speak on behalf of Mr Hill. In that role,[counsel's] duty to the Court may well have conflicted with advice hemight have given Mr Hill if he were acting on his behalf as counsel in theordinary way.(b) There are risks of confusion:48There may be some role confusion — is the primary role of the amicus toassist the court or to assist the accused? If in a particular case an amicusattempts to fulfil both roles, there may be potential for conflict or, at least,misunderstanding and confusion, particularly in relation to issues such aslegal professional privilege. Further, a self-represented accused mayregard the amicus with suspicion and see the amicus as interfering with theway he or she wishes to run the case.(c) Standby counsel appointments may undermine the legal aid system.49The pattern of recent appointmentsAppointments are increasing in number[56] Mr Horsley, who appeared for the Crown, helpfully provided the Court withdata about the numbers of appointments in recent years:47 R v Hill, above n 44, at [59].48 R v McFarland, above n 32, at [52].49 At [52].Because the courts' case management system does not always record appointments,these statistics are likely to understate the numbers.[57] It will be seen that contrary to this Court's expectation, expressed most recentlyin 2007, appointments are not rare. The number of self-represented defendants is onthe increase.50 The Court has recognised that appointments have become morecommon following R v Condon, in which the Supreme Court held that a defendantwho made an informed decision to waive counsel may nonetheless show that the trialwas unfair because the defence could not be presented without counsel.51 Trial judgesmay be adopting a precautionary approach by making appointments to ensure the trialis not later found to be unfair for reasons they may not have been able to foresee ormanage.52 To appoint counsel may also be prudent in complex, long or multi-defendant trials, or those in which, as counsel for the interveners highlighted,defendants were fit to stand trial but suffered from some mental impairment that50 Reliable statistics are not available, but this is the view of the Crown, the New Zealand LawSociety, the New Zealand Bar Association and the New Zealand Criminal Bar Association.51 R v McFarland, above n 32, at [49], referring to R v Condon, above n 3, at [82].52 R v McFarland, above n 32, at [51].compromised their ability to conduct the defence,53 or otherwise demonstratedincompetence at self-representation.54Former counsel may be appointed[58] This Court recognised in R v Lee that former counsel may be appointed asamicus, while doubting whether it was wise to do so in that case, as counsel's dutiesto the court might have conflicted with those she still owed to the defendant.55 InSolicitor-General v Miss Alice the Court held that amicus may also be permitted toaccept appointment for the defendant so long as no change in function is involved:56[18] It is common in criminal cases for former counsel for an accused tobe appointed as an amicus where the accused chooses to represent himself orherself, a practice approved by this Court in R v Lee There could well beinstances where, for example, an accused may wish to re-instruct the formercounsel who has been acting as amicus. It would in our view be both wastefulof resources and unfair to an accused to require him or her to instruct totallynew counsel if the amicus was prepared to act. The same situation might arisein other situations where the amicus had effectively been taking a partisanrole. Where, as here, a change from a role as amicus to one acting for a partyinvolves no change in function, then we cannot see any reason in principlewhy this should be proscribed.(Footnotes omitted.)[59] The data do not assist, but counsel appearing before us gave us to understandthat the practice of appointing the defendant's former counsel as amicus in a partisanrole at trial is not uncommon.57 This Court has recognised that such appointments arenot appropriate where the relationship has broken down or where counsel has anethical reason to withdraw.58 In other cases counsel may have withdrawn because heor she was not being paid.59 Courts are sometimes motivated by efficiencyconsiderations or a desire not to adjourn the trial while new counsel is briefed and gets53 Hemopo v R [2016] NZCA 398 is such a case. There the need was met by appointing amicus.54 Counsel cited Watene v R [2014] NZCA 357, where the defendant insisted on pursuing asovereignty defence that was unavailable in law, and the Canadian case R v Mastronasrdi 2015BCCA 338, in which the defendant insisted on referring to prejudicial information, refused tocross-examine the complainants although their credibility was the trial issue, did not know thatitems he relied upon had to be put into evidence, and failed to present a coherent closing address.55 R v Lee [2006] 3 NZLR 42 (CA) at [111].56 Solicitor-General v Miss Alice [2007] 1 NZLR 655 (CA).57 In R v Tully HC Christchurch CRI-2014-009-8232, 16 February 2016 at [11], Mander J observedthat "it is now common practice in criminal trials for former counsel for a defendant to beappointed as counsel to assist where the defendant will be unrepresented at trial".58 Cant v R, above n 31, at [14].59 Mount v R [2015] NZCA 489 at [46]–[51].to grips with the case.60 They may think that the defendant is acting strategically,dismissing counsel at the last moment in hope of an adjournment.The terms of appointment[60] It appears that counsel is typically appointed as amicus but relieved to someextent of the traditional duty to lend neutral assistance to the court itself. Rather,counsel is expected to assist the defendant and authorised to act in a partisan way. Byso doing counsel may assist the court, but that is a consequence of the appointmentrather than its object.[61] The important distinction between the objectives of assisting the court andassisting the defendant is not always observed in the appointments. Our attention wasdrawn to examples in which the brief was both to assist the court in a neutral capacityand to assist the defendant in a partisan way, with no further detail being given about,for example, counsel's duties to advise the defendant freely and follow instructionswhether or not helpful to the court.[62] A self-represented defendant often calls increasingly on appointed counsel'sassistance as the trial goes on. Counsel have conducted jury selection and pleanegotiations, argued admissibility issues, dealt with challenges to sensitive evidenceand advised on lines of cross-examination, and counsel may eventually assumeconduct of the defence. The Court found this evolutionary tendency unobjectionablein McFarland, as noted above, but we were told that in practice the change in counsel'srole may not be made clear to the jury.[63] Appeals are now brought from time to time on the ground of error bycourt-appointed counsel. This Court has accepted that a miscarriage may result fromsomething done, or not done, by counsel so appointed.6160 Solicitor-General v Miss Alice, above n 56, at [18].61 Robertson v R [2016] NZCA 99 at [67]. This Court allowed appeals against conviction on thisbasis in Wise v R [2016] NZCA 327.Terminology[64] Having concluded our survey of existing law and practice, we now return toterminology. A distinction should be drawn between the roles of court-appointedcounsel. We use the term "amicus curiae" (or its modern equivalent, counsel assistingthe court) for counsel appointed by the court to help the court itself. We adopt the aptAmerican term "standby counsel" to describe counsel appointed by the court to assista self-represented defendant if and to the extent the defendant is willing to accept it,and to assume the conduct of the defence should the defendant decide to abandon self-representation.62Surveying the optionsThe views of the Bar and the Crown[65] Mr Horsley reviewed the practice in other jurisdictions and the history ofamicus appointments in New Zealand. So far as current practice is concerned, hehighlighted a number of problems: counsel's role is unclear and can change duringtrial without any formal direction, the right to self-represent may be undermined, thedefendant and the jury may be confused about counsel's role, and the practiceundermines the legal aid regime. Further, a trial is not unfair merely because thedefendant, having made an actual or constructive election to self-represent, turns outto be a poor advocate. For these reasons he invited us to discourage actively theroutine appointment of standby counsel for self-represented defendants. Only wherethe defendant, while fit to stand trial, suffers some form of mental impairment shoulda court intervene by appointing standby counsel, and in that case counsel may advancesuch defence as he or she thinks best.[66] Ms Kincade was content to adopt the submissions of other counsel. Mr EatonQC, for the New Zealand Law Society and the New Zealand Bar Association, arguedthat it is generally inappropriate to appoint counsel to act in a standby role. Theexisting practice causes intractable problems: the right to self-represent may becompromised, as may appeal rights, and confusion is inherent when amicus is alsoexpected to serve as standby counsel. The terms of appointment may result in counsel62 Frantz v Hazey 533 F 3d 724 (9th Cir 2008) at 739–740.acting without instructions, presenting an inconsistent defence case, feeling restrainedin his or her ability to give advice, being at risk of violating legal professional privilegewhere counsel must report to the judge, and at risk of not getting disclosure and ofundermining legal aid. Mr Eaton identified three exceptional circumstances in whicha defendant's self-representation undermines his or her fair trial so as to justifyappointing standby counsel. They are: where the defendant has mental healthproblems, where the defendant has demonstrated incompetence at self-representation,and where counsel has been dismissed on the eve of trial but can accept appointmentto assist. This last option should be available only where the defendant and counselretain mutual confidence and counsel is not expected to assist the court too.[67] Mr Cook, for the New Zealand Criminal Bar Association, also found conflictinherent in the roles of standby counsel and amicus. He submitted, though, thatstandby counsel appointments should be made whenever necessary to ensure a fairtrial. There should be a process for such appointments, involving consultation withthe defendant, to engender confidence. The right to self-represent must be qualifiedto this extent: the defendant should not be permitted to do it so badly as to cause amiscarriage of justice. When that appears likely a court should be prepared to appointstandby counsel who may advance such defence as counsel thinks best. For this lastproposition he cited Indiana v Edwards, in which a majority in the United StatesSupreme Court held that the US Constitution permits a state to limit a defendant's rightto self-represent by insisting on trial counsel whether the defendant is fit to stand trialbut lacks the mental competence to conduct his or her own defence.63 Because theNew Zealand standard for fitness to stand trial is low, there exists a class of personswho can stand trial without being competent to conduct the defence.[68] Counsel agreed that an appointment as both amicus and standby counselcreates a risk that mistrust will arise as between the defendant and counsel, a result ofcounsel's obligation to assist the court. The jury may also be left uncertain aboutcounsel's authority. This may benefit the defendant, since amicus may advance thedefence from a position of ostensible independence. By way of illustration, we note63 Indiana v Edwards 544 US 164 (2008).that Mr Dacre did so in this case (properly so, given the terms of his appointment),telling the jury that he was there not as an advocate but to assist them.64Practice in other jurisdictions[69] Counsel reviewed practice in the England and Wales, Canada, and the USA,jurisdictions which traditionally appointed amicus curiae to assist a self-representeddefendant.65[70] In 2001 English courts put an end to the practice of amicus being appointed asan advocate for a self-represented defendant. Amicus, now called an advocate to thecourt, represents no one, is appointed to give the court such assistance as counsel isable on the relevant law and its application to the facts of the case, and is not normallyexpected to lead evidence, cross-examine witnesses or investigate the facts.66 It doesnot appear that there is a practice of appointing standby counsel. In R v Holloway theCourt of Appeal held that the trial Judge lacked power to force representation on adefendant who had a long history of mental health problems but had been certified fitto plead.67 Nor is incompetent self-representation in and of itself a ground of appeal:68A defendant who is fit to stand trial cannot dismiss his legal representatives,insist on representing himself and then come to this Court claiming that heshould not have been allowed to represent himself.[71] Canadian courts traditionally recognised that amicus might be appointed to actas standby counsel for a defendant who refuses to participate.69 But in Ontario vCriminal Lawyers' Association of Ontario, the Supreme Court curtailed that practice.70The appeal involved three cases in which trial judges had appointed amicus to assistdefendants who had discharged counsel. The narrow question was whether the trialcourt had jurisdiction to determine counsel's remuneration, setting it at rates exceedingthose legal aid would pay. The Supreme Court held that amicus and defence counselplay very different roles and the two should not be combined. Appointments to assist64 See [30] above.65 Counsel did not examine Australian practice, considering it too complex for ready comparison.66 The Law Society Gazette "Advocate to the Court", 1 February 2002.67 R v Holloway (Adrian) [2016] EWCA Crim 2175, [2017] 1 WLR 1660.68 At [15]. The Court later, for completeness, considered whether a miscarriage arose in thecircumstances of the case: at [39]–[42]. Compare Cant v R, above n 31, at [28] and [45]–[46].69 R v Le Page (2006) 214 CCC (3d) 105 (ONCA).70 Ontario v Criminal Lawyers' Association of Ontario 2013 SCC 43, [2013] 3 SCR 3.the defence may conflict with the accused's right to self-representation, put counselunder conflicting obligations to the defendant and the court, affect the privilege thatwould ordinarily attach to lawyer-defendant communications, and undermine the legalaid scheme.71 The Court held that amicus cannot do more to assist a defendant thanthe court itself can do.72 The judgment accordingly appears to leave no or little rolefor standby counsel.[72] The Ontario judgment has been at once commended for its doctrinal coherenceand lamented for its failure to address the problem that led trial judges to appointstandby counsel in the first place; namely, the risk that a defendant will conduct thedefence so incompetently as to cause what Canadian law recognises as a miscarriageof justice.73 The Supreme Court evidently did not hear argument directed to the latterproblem. Some lower courts have since held that amicus may be appointed to act "forthe benefit of" the defendant where the absence of counsel would otherwise result ina miscarriage of justice.74[73] US courts have developed the concept of standby counsel to ensure a fair trialfor self-represented defendants. The Federal Court of Appeals for the Ninth Circuitexplained in Frantz v Hazey that standby counsel have two purposes:75One is to "stand by" and be ready to proceed if the defendant should chooseto cease self-representation, or if there is any other reason whyself-representation cannot continue. The second purpose of a standby counselis to help a self-representing defendant if, and to the extent, assistance isrequested.The right to represent oneself is not violated when standby counsel is appointed torelieve the judge of the need to explain and enforce basic rules of courtroom protocolor assist the defendant in overcoming routine obstacles.76 It is essential, though, thatthe defendant's "actual control over the case he chooses to present to the jury" be71 At [51]–[53] per McLachlin CJ, Rothstein, Moldaver, Karakatsanis and Wagner JJ.72 At [54] per McLachlin CJ, Rothstein, Moldaver, Karakatsanis and Wagner JJ.73 R v Jaser, above n 42, at [37]; and R v Mastronardi, above n 54, at [44]–[55].74 R v Mastronardi, above n 54, at [23]. See also R v Jaser, above n 42, at [38]–[39]; R v Sutherland[2016] BCPC 45 at [5]; and R v Panagos [2014] ONSC 4580 at [23]–[24].75 Frantz v Hazey, above n 62, at 753 per Gould, O'Scannlain, Rymer, Silverman, Callahan and IkutaJJ.76 McKaskle v Wiggins, above n 21, at 176–177 per Burger CJ, Powell, Rehnquist, Stevens andO'Connor JJ.preserved, meaning that standby counsel cannot substantially interfere in significanttactical decisions, or control the questioning of witnesses, or speak instead of thedefendant on any matter of importance.77 Standby counsel's participation also shouldnot be allowed to destroy the jury's perception that the defendant is self-represented.78[74] US courts may also impose defence counsel upon a defendant who is fit tostand trial but mentally incapable of conducting his or her own case, and may confercontrol of the defence case upon counsel. The defendant in Indiana v Edwards facedcharges of violence and wanted to plead self-defence.79 He was schizophrenic and itwas apparent that he would defend himself incompetently. The state court denied himself-representation and appointed defence counsel, who opted to advance lack ofintent. The Supreme Court recognised that there exists a class of defendants who arefit to instruct counsel and stand trial but by reason of mental illness incompetent toconduct the defence themselves. A majority held that self-representation would notaffirm the dignity of such a defendant but rather would undercut the most basicobjective of the criminal law, a fair trial.80 In vigorous dissent, Justice Scalia agreedthat the right to self-representation protects individual dignity, but held that the dignityin question is that of individual choice, which should be respected even if thedefendant makes a fool of himself.81Trial courts' power to appoint standby counselThe power exists[75] We are satisfied that New Zealand trial courts possess the power to appointstandby counsel in criminal proceedings when they think it necessary to ensure a fairtrial.82 No counsel, including Mr Horsley for the Crown, suggested otherwise. Thepower is grounded in a trial court's public duty to ensure that criminal trials are fair77 At 178 per Burger CJ, Powell, Rehnquist, Stevens and O'Connor JJ.78 At 177–179 per Burger CJ, Powell, Rehnquist, Stevens and O'Connor JJ. The Court divided onthe facts, the minority concluding that standby counsel intervened excessively, disrupting thedefence and reducing the defendant's credibility in the eyes of the jury: at 195–196 per White,Brennan and Marshall JJ.79 Indiana v Edwards, above n 63.80 At 176–177 per Roberts CJ, Stevens, Kennedy, Souter, Ginsburg and Breyer JJ.81 At 186–188 per Scalia and Thomas JJ (dissenting).82 For the avoidance of doubt, this rationale is particular to criminal proceedings. We note thejudgment in Erwood v Holmes (Amicus Curiae) [2017] NZHC 1278, [2017] NZAR 971 butexpress no view about courts' power to appoint standby counsel in the civil jurisdiction.and its implied power to control its own processes to that end.83 It exists fromnecessity, since a court ordinarily cannot refuse to hold a trial where a defendant'sincompetence in advocacy brings the rights to fair trial and to self-representation intoconflict.84 It is consistent with what we have said at [47] above about appellate courts'approach to fair trial rights.[76] We observe that the role of standby counsel is compatible with statutoryprocesses under which courts must appoint counsel to cross-examine certain witnesseswhom the defendant is prohibited from questioning,85 or may order that witnesses giveevidence in such a way that the defendant cannot see or hear them.86[77] We agree with counsel that a defendant for whom such appointment is made islikely to exhibit mental illness or disability, but we think it unwise to make that arequirement of appointment. Incompetence in advocacy may have a number of causes.We also agree with Mr Eaton, as we explain below, that the defendant's actual oranticipated misconduct may supply justification for appointment.[78] The decision about whether, and who, to appoint is entirely in the court'sdiscretion, although it is prudent to consult.87 The defendant cannot veto anappointment or dismiss standby counsel. Nor, having elected self-representation, canthe defendant insist on an appointment or exercise choice of counsel.Difficulties addressed by better role definition[79] In our opinion, the problems identified by counsel (at [65]–[68] above) can bemanaged, if not always eliminated, by separating the functions of amicus curiae andstandby counsel and better defining that of standby counsel.83 Ontario v Criminal Lawyers' Association of Ontario, above n 70, at [111]–[112];Millar v Dickson [2001] UKPC 24, [2002] 1 WLR 1615 at [52] per Lord Hope; and Hinds vAttorney-General of Barbados [2001] UKPC 56, [2002] 1 AC 854 at [17]–[18]. The jurisdictionis implied rather than inherent, and it is possessed by all courts: see Rosara Joseph "InherentJurisdiction and Inherent Powers in New Zealand" (2005) 11 Cant L Rev 220.84 Ipo v R [2012] NZCA 178 at [52] and [58]. Ultimately a court might stay a prosecution where itis satisfied that a fair trial cannot be had: McKay v R, above n 26, at [69]; and R v Duval [1995]3 NZLR 202 (HC) at 205.85 Evidence Act, s 95(5)(b).86 Section 105.87 R v Hill, above n 44, at [56]: "any such appointment is entirely at the discretion of the Court".[80] We agree with counsel that courts must distinguish between appointments asamicus curiae and as standby counsel if they are to avoid potentially serious conflictsof duty for counsel and eliminate confusion about confidentiality and privilege ofcommunications.88 Amicus briefs should be confined to the traditional function ofassisting the court, usually on points of law, when it appears that the parties may notdo so.89 By way of illustration, we note that in Cumming, which was ultimatelydecided by finding the appellant unfit to stand trial, the Supreme Court appointedamicus because the appellant and the Crown agreed that he was fit and counsel wasneeded to argue the contrary position.90 In a trial setting amicus should not ordinarilyneed to address the jury or adduce evidence.[81] By contrast, a court appoints standby counsel to assist a self-representeddefendant to the extent he or she is willing to accept it, and to stand by to assumeconduct of the defence if the defendant so decides. The role is that of an advocate forthe defence and counsel accordingly takes instructions from the defendant. Counsel'srole should be recorded in a minute and explained to the defendant and the jury. Theterm amicus curiae should no longer be used to describe counsel appointed to assistthe defendant in a standby role.[82] A standby counsel brief is necessarily flexible, depending on the circumstancesof the case and the defendant, but general guidance may be given:(a) Counsel should advise the defendant on the relevant law, trial processand courtroom etiquette.(b) Counsel should assist the defendant, especially one who is in custody,with resources and access to witnesses.(c) Counsel should assist as and when the defendant requests byconducting any trial processes from plea to verdict.9188 R v McFarland, above n 32, at [52]–[59].89 We do not need to catalogue all the tasks that may be assigned to amicus. For a convenient list,see Erwood v Holmes (Amicus Curiae), above n 82, at [39].90 Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433 at [20].91 R v McFarland, above n 32, at [59]–[60].(d) Counsel should be prepared to act as defence counsel, assuming theconduct of the defence in the ordinary way, if the defendant so decides.(e) So long as the defendant remains self-represented the appearance ofself-representation should be maintained for the jury.(f) The role of standby counsel permits co-representation but the court mayinsist in the interests of fairness and economy that either the defendantor counsel, but not both, perform any specific task, such as questioninga given witness or presenting an address.92[83] The role of standby counsel undoubtedly can be difficult, but the duties owedare not in principle different from those of defence counsel, who must also elicitdecisions and follow instructions, with one exception: counsel is accountable to thecourt for expenditure. It is not inconsistent with the fair trial right to require that costsbe reasonable and expenditure authorised. In this case, for example, Mr Dacre soughtLang J's approval, in general terms, of the work he proposed to undertake.93[84] Once the role is distinguished from that of amicus most of the other difficultiesidentified in argument should fall away. For example, standby counsel should not feelconstrained by duty to the court when giving advice or presenting a defence, except tothe extent that he or she would be constrained by ethical considerations or duty to thecourt if acting as defence counsel. Privilege should attach to communications betweencounsel and defendant when and to the extent that it would do had counsel beenappointed by the defendant, subject to counsel's obligation to make such disclosure asneeded to seek the Court's approval for expenditure. The prosecution's disclosureshould be made available to counsel. There is no reason why an appeal cannot bebrought on the ground of counsel error, although a question may arise whether counselor the self-represented defendant was responsible for any failings in the defence case.92 R v Wati [1993] 3 NZLR 475 (HC) at 480.93 See [12]–[13] above.Appointments ought to be exceptional[85] We expect that appointments should be exceptional. There are several reasonswhy this ought to be so:(a) The right to self-represent must be respected, meaning that defendantsmust be given leeway to exercise it badly.94(b) Standby counsel does not relieve the trial court of its own obligationsto a self-represented defendant, though counsel may be relied upon tohelp the defendant with legal advice, the demands of protocol andaccess to resources.(c) In many cases the defence can be identified and fairly put with suchassistance as the court (and the prosecutor) may properly give.95(d) The question whether the trial was fair is ultimately answered by anappellate court under its processes. As we have explained at [48]above, the appellate standard in New Zealand takes account of aninformed decision to self-represent.(e) Routine appointments tend to undermine the legal aid regime, forParliament has chosen not to insist that all defendants be represented orto provide counsel for them. In Hinds v Attorney-General of Barbadosthis was characterised as a prerogative of democratic government.96 Itwould also be inappropriate to appoint counsel where the defendant canpay for legal services, or where preferred counsel wants to be paid atmore than legal aid rates.94 See [55] above.95 The prosecutor must protect the right to a fair trial as well, including by complying with disclosureobligations and assisting the trial Judge on their summing up. See Crown Law Solicitor-General'sProsecution Guidelines (1 July 2013) at [16] and [19].96 Hinds v Attorney-General of Barbados, above n 83, at [16]. See also R v Condon, above n 3, at[76].Constructive waiver of counsel[86] As the Supreme Court recognised in Condon, the defendant must sometimestake responsibility for ending up unrepresented.97 The issue does not arise in this case,but we record for completeness that the jurisdiction to appoint standby counsel extendsto such cases.[87] Counsel appearing before us acknowledged that occasionally a defendantdismisses counsel at a very late stage, acting not from any genuine loss of confidencebut in the hope that dismissal will secure an adjournment while new counsel is briefed.To dismiss counsel for that purpose is a species of obstruction which a trial court neednot abide, though it must be both careful to balance the various interests, public andprivate, affected by adjournment and conscious of the limits to its knowledge aboutdealings between client and counsel.98[88] If satisfied that the defendant has a genuine difficulty with counsel and wantslegal representation, the court will ordinarily find it necessary to adjourn so that newcounsel can be briefed. The court may proceed even in that case, but if the charge isserious and the circumstances are not exceptional, the defendant will establish onappeal that the trial was presumptively unfair, with the result that the conviction willbe quashed unless the Crown can rebut that presumption.99[89] If satisfied that the defendant is claiming problems with counsel as a pretextfor adjournment, the court may proceed, reasoning that the defendant hasconstructively waived the right to counsel. Standby counsel may be appointed ifthought appropriate. Such a defendant may have dismissed, or lost to withdrawal,more than one counsel, as happened in Cant and also in Ipo v R.100 In New Zealandprocedure, protection against error is afforded the defendant by this Court's97 R v Condon, above n 3, at [80].98 At [79].99 At [79].100 Cant v R, above n 31; and Ipo v R, above n 84.willingness on appeal to hear evidence about the trial and what passed between thedefendant and former counsel.101Former counsel should not ordinarily be appointed standby counsel, or amicus[90] As noted at [59] above, it appears that it is not uncommon for trial courts toappoint former counsel to act in a standby role. Counsel appearing before usdeprecated this practice. Mr Eaton submitted that it causes difficulties that outweighany benefits, Mr Cook that it is unlikely ever to be appropriate, and Mr Horsley that itis wholly inappropriate. The difficulties identified were that:(a) Such appointments usually follow a loss of confidence between counseland defendant.(b) The court likely does not know why counsel ceased to act, and withoutthat knowledge it should not lightly conclude that the trial process isbeing gamed and that counsel and the defendant can work together ifforced to carry on. Counsel and the defendant should not be forced toexplain why confidence has been lost.(c) The court must be mindful of the professional rules governing counsel'sconduct. Counsel must complete a retainer unless discharged by theclient or unless counsel terminates it for good cause and on reasonablenotice. If counsel seeks to withdraw the court should usually assumewithout further inquiry that good cause exists. Good cause includesinstructions that breach a professional obligation, material deception ofcounsel by the client, and the client's inability to pay counsel'sreasonable fee.102101 Counsel drew our attention to Anne Bowen Poulin "The Role of Standby Counsel in CriminalCases: In the Twilight Zone of the Criminal Justice System" (2000) 75 NYU L Rev 676, in whichthe risk of trial court error is forcefully emphasised, but it appears that the legal standard forjustifying a change of counsel and for showing that the right to counsel was not waived is lessflexible in US law than it is in New Zealand: see at 686–691.102 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 4.2. 4.2.1,4.2.2, 4.2.3 and 4.2.4.(d) Privilege of past communications may be breached if counsel is thenappointed as amicus, so acquiring a duty to assist the court.(e) Pragmatism or efficiency should not be permitted to prevail over fairtrial rights.[91] In further submissions advanced in response to questions from the Court,Mr Cook accepted that where counsel seeks to withdraw at a late stage the court mayinquire as to the reasons. He invited us to follow the Canadian Supreme Court inR v Cunningham:103[47] If counsel seeks to withdraw far enough in advance of anyscheduled proceedings and an adjournment will not be necessary, thenthe court should allow the withdrawal. In this situation, there is noneed for the court to enquire into counsel's reasons for seeking towithdraw or require counsel to continue to act.[48] Assuming that timing is an issue, the court is entitled toenquire further. Counsel may reveal that he or she seeks to withdrawfor ethical reasons, non-payment of fees, or another specific reason(e.g. workload of counsel) if solicitor-client privilege is not engaged.Counsel seeking to withdraw for ethical reasons means that an issuehas arisen in the solicitor-client relationship where it is nowimpossible for counsel to continue in good conscience to represent theaccused. Counsel may cite "ethical reasons" as the reason forwithdrawal if, for example, the accused is requesting that counsel actin violation of his or her professional obligations If the real reasonfor withdrawal is non-payment of legal fees, then counsel cannotrepresent to the court that he or she seeks to withdraw for "ethicalreasons". However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel's answer at face valueand not enquire further so as to avoid trenching on potential issues ofsolicitor-client privilege.[92] The views of the interveners must be given weight. We agree that formercounsel should not be appointed as amicus where there is an actual or reasonablyperceived conflict of duty. Such conflict will arise where counsel may be put in aposition where duty to the court could require disclosure of privileged information.Rarely if ever should a court find it necessary to appoint former counsel given thelimited and traditional role that we envisage for amicus.103 R v Cunningham [2010] SCC 10, [2010] 1 SCR 331.[93] We also accept that courts should exercise caution before appointing formercounsel in a standby capacity. We are not prepared to rule the practice out — as notedat [58] above, this Court has previously recognised that such an appointment oughtnot cause a conflict of duty — but we accept that it carries risk. The court must besatisfied that counsel it appoints in a standby capacity can discharge the responsibility.For former counsel, that decision depends in part on why counsel withdrew or wasdismissed. There is also no good reason to resist withdrawal so long as it will notdisrupt the court's business.[94] Where withdrawal may necessitate an adjournment, the court may properlyseek justification for withdrawal, though it must be appropriately circumspect, andevaluate the reasons given.104 We accept Mr Cook's submission that where counselcites ethical reasons, so signifying that he or she cannot in good conscience continueto represent the defendant, the court should not ordinarily inquire further, but shouldgive leave to withdraw.[95] The decision is more complex where the defendant dismisses counsel, allegingthat confidence has been lost. The court may inquire further, without requiringdisclosure of privileged information.105 If satisfied that the relationship has brokendown, the court should accept that counsel cannot discharge the responsibilities ofstandby counsel. If the court should find that the dismissal is a pretext for adjournmentit may decide to press on, as noted at [59] above. In that case the defendant maychoose to retain existing counsel, but if he or she elects to proceed unrepresented thecourt should hesitate before appointing former counsel in a standby role, the successof which rests on the defendant's co-operation.[96] It is sometimes apparent before trial that a defendant will likely behavedisruptively. Standby counsel can be appointed pre-trial, as happened in R v Tully,against the possibility that at trial the defendant will dismiss his or her own counsel.106This may be a sensible precaution in a long or multi-defendant trial.104 At [48].105 At [48].106 See R v Tully, above n 57, at [11]–[13].May a court assign control of the defence to court-appointed defence counsel?[97] When standby counsel is appointed the defendant retains control of thedefence, including such essential decisions as whether to plead, whether to giveevidence, and whether to advance a positive defence, and counsel's role is to offersuch assistance as the defendant requires. This preserves the defendant's right of self-representation and provides counsel with a familiar standard — the defendant'sinstructions — to guide their conduct.[98] As noted at [67] above, Mr Cook invited us to follow Indiana v Edwards byholding that defence counsel may be appointed and authorised to advance suchdefence as counsel thinks best.107 When this is done the defendant is silenced, unlesscalled as a witness. Mr Cook argued that the right to a fair trial ultimately trumps thatof self-representation because it is fundamental, not only to the defendant but also tothe community and to the moral authority of the court.108 He drew attention tostatutory incursions upon self-representation and emphasised a need for suchappointments, observing that under the current New Zealand standard a competentdefendant need only have a basic capacity to participate by communicating the defenceand questioning witnesses and need not be competent to conduct the trial in his or herbest interests.109 Mr Horsley agreed that there exists a class of defendants who are fitto stand trial but unable by reason of some mental impairment to represent themselvescompetently, and Mr Eaton recognised that there are also defendants who, while notmentally impaired, have demonstrated their incompetence.[99] We recognise that there exists such a class of defendants, and so long as theyare required to stand trial provision must be made for them.110 That was recognisedin Cumming, in which this Court suggested that a defendant who is incapable ofself-representation might be denied that right if that were the only way to secure a fair107 Indiana v Edwards, above n 63.108 Citing the judgment of the Constitutional Court of South Africa in The State v Mamabolo (2001)(3) SA 409 (ZACC).109 R v Cumming, above n 22, at [50].110 For purposes of this judgment we take as given the test set by the courts, with reference tolongstanding authority, under s 14 of the Criminal Procedure (Mentally Impaired Persons) Act2003. See R v Power CA187/96, 22 October 1996; and Solicitor-General v Dougherty [2012]NZCA 405, [2012] 3 NZLR 586 at [40].trial.111 In McKay v R the Court also held that in an extreme case a trial judge haspower to appoint counsel "to conduct the defence", citing Cumming.112[100] However, the Court also held in Cumming that such appointment could not beentertained without first considering alternatives, such as the appointment of standbycounsel.113 In practice trial courts usually manage to deliver fair trials forself-represented defendants. That being so, it is not yet evident that there exists a realneed for the extraordinary role envisaged in Indiana v Edwards.[101] This is not to preclude further movement, where necessity compels it, alongwhat is sensibly seen as a continuum of intervention. It is possible to think of optionsother than that of appointing defence counsel with control of the defence. Take forexample the possibility of appointing defence counsel and denying the defendant theability to co-represent. This might prove a justifiable limitation upon the right to self-represent, since the court would be compelling the defendant to exercise one protectedfair trial right — the right to counsel — with the aim of making sufficient use of theothers to avoid what would otherwise be an unfair trial and the defendant would retainthe power to decide on the defence. The defendant would lose the right to plead hisor her own case to the trier of fact, suffering a loss of autonomy to that extent.Appointed counsel could be expected competently to advance the defendant's chosendefence so far as it is available in law and open on the facts and put the Crown to proofto the extent that the defendant does not concede its case.[102] Because it removes the defendant's control of his or her defence, anappointment of the kind approved in Indiana v Edwards would require close analysisof rights jurisprudence and a range of policy considerations, and that in turn wouldnecessitate further assistance from the intervenors and the Crown. The inquiry wouldextend to the test of fitness to stand trial, because the leading authority, Solicitor-General v Dougherty, confirmed that the test does not extend to decisional competence— the ability rationally to assess and choose the best defence — and attributed this tothe value the law places placed on autonomy, citing the passage from Cumming that111 R v Cumming, above n 22, at [50].112 McKay v R, above n 26, at [69].113 R v Cumming, above n 22, at [50].we have set out at [44] above.114 For these reasons, and because this case does notrequire that we go so far — as explained below, Mr Faheyco-operated with counsel and did not refuse to allow him to advance the best defenceavailable — we think the decision is best left for another day.[103] However, some general observations about such appointment may be madenow, to guide counsel should the issue need to be revisited. We accept that, the courthaving appointed defence counsel, there may remain cases in which counsel'sinstructions create a risk of substantive unfairness, as where a delusional defendantrefuses for no rational reason to allow counsel to advance a viable defence, and thismight supply justification for such an appointment. We observe that by authorisingcounsel to advance such defence as he or she thinks fit a court might deny thedefendant the opportunity to make decisions about a number of protected fair trialrights, circumscribing autonomy in a way that the appointment of defence counselalone does not. We question whether full control could be vested in counsel, since thedefendant could not be forced into the witness box or easily dissuaded from speakinghis or her mind there. Finally, we note that the facts of Fawcett v R, the judgment inwhich is being delivered with this one, demonstrate that a court making suchappointment would be expecting much of counsel.115 In that case the defendant, a manwith some mental disabilities, represented himself but standby counsel was permittedto act in what he saw as the defendant's best interests. A conflict resulted between thedefendant's chosen defence and that advanced by counsel. On appeal we weresatisfied that the defendant's defence was viable, with the result that the appeal had tobe allowed.[104] For these reasons, we decline Mr Cook's invitation to follow Indiana vEdwards at this time. The issue may be revisited if the need arises.Summary[105] We summarise our principal conclusions:114 See Solicitor-General v Dougherty, above n 110, at [51]–[55].115 Fawcett v R [2017] NZCA 597.(a) Trial courts possess an implied power to appoint standby counsel for aself-represented defendant where necessary to ensure a fair trial. Thepower is discretionary.116(b) The roles of amicus curiae and standby counsel must be distinguished,and that of standby counsel adequately defined, to avoid conflicts ofduty and risk of confusion at trial. Amicus is appointed to assist thecourt itself, usually on questions of law, when it appears the parties maynot do so. Standby counsel is appointed to assist aself-represented defendant to the extent he or she is willing to accepthelp, and only as an incident of appointment does counsel assist thecourt itself.(c) We expect that standby counsel appointments should be exceptional.117A defendant's decision to self-represent must be respected and inordinary cases a fair trial should be possible without standby counsel.(d) The role of standby counsel is necessarily flexible and case-dependent,and it may evolve during the trial. We have provided some generalguidance.118 Counsel's role should be recorded and clearly explainedto the defendant and the jury.(e) Although appointed by the court, standby counsel takes instructionsfrom the defendant.119 The duties that counsel owes the court do notdiffer in principle from those owed by defence counsel, except thatstandby counsel must obtain the court's approval for costs andexpenses.120(f) The power to appoint standby counsel extends to cases in which thedefendant dismisses his or her own counsel to secure an adjournment116 See [75] and [78] above.117 See [85] above.118 See [82] above.119 See [81] above.120 See [83]–[84] above.or is thought likely to cause disruption by dismissing counsel at trial.121Care should be taken to balance the various interests affected whendeciding whether to adjourn, so the defendant may brief new counselof his or her own, or to press on with or without standby counsel.122(g) Rarely if ever should a defendant's former counsel be appointedamicus.(h) Former counsel should not normally be appointed standby counseleither.123 If withdrawal or dismissal as defence counsel disrupts thecourt's business, the court may inquire about the reasons forwithdrawal, without requiring disclosure of privileged information. Ifcounsel cites ethical reasons the court should not inquire further.Former counsel should not be appointed in a standby role if the courtaccepts that counsel's relationship with the defendant has broken down.Only if satisfied that there is no conflict of duty and counsel cansatisfactorily discharge the responsibilities of standby counsel shouldthe court contemplate appointing former counsel.Was Mr Fahey denied the right to represent himself?[106] We now revert to the question of whether Mr Dacre's appointment deniedMr Fahey his right to waive counsel and represent himself. We are satisfied, forreasons that may be stated shortly, that it did not have that effect:(a) Mr Dacre served as standby counsel, and we have explained that therole is compatible with self-representation.(b) Mr Dacre questioned witnesses, advanced argument and deliveredaddresses, but he did all of this with Mr Fahey's approval.121 See [86] above.122 See [87]–[88] above.123 See [93]–[94] above.(c) The record shows that Mr Fahey understood that he was in charge ofhis defence and free to conduct it. He pursued his theory of the case inhis questions of witnesses, for example.(d) Mr Fahey did not take issue with Mr Dacre's prepared closing addresswhen it was discussed in chambers, and he chose not to add anythingof his own.Should the Court have inquired into Mr Fahey's capacity to represent himself?[107] Ms Kincade's argument that although Mr Fahey was fit to stand trial the Courtshould have inquired into his capacity to conduct his defence rests on the assumptionthat the Court might have done something about it if satisfied that he would notrepresent himself competently. This is difficult to reconcile with his leading groundof appeal, that he did not want the help of counsel even on a standby basis. In anyevent we have concluded, for reasons we next go on to summarise, that the necessitydid not arise, for a fair trial was delivered with the assistance of the Court and standbycounsel.Did counsel's intervention compromise Mr Fahey's defence?[108] We have noted that while he served as standby counsel Mr Dacre was alsoappointed amicus. In that capacity he advanced a defence, lack of murderous intent,that differed from Mr Fahey's chosen defence, causation.[109] It follows from what we have said that counsel should not have been appointedin a dual capacity. However, we are not persuaded that Mr Fahey's defence wascompromised. Mr Dacre diligently advanced Mr Fahey's case during the trial, puttingthe Crown to proof on all issues including causation. His closing address mightsuggest that he put lack of intent without Mr Fahey's consent, because he explainedthat he spoke as amicus and made it clear that Mr Fahey was advancing a differentdefence. However, that would be misleading. In separating his address from MrFahey's defence, counsel was properly maintaining the appearance ofself-representation. It appears from the chambers discussion discussed at [27] abovethat Mr Fahey did not take issue with counsel's decision to advance lack of intent andleave it to Mr Fahey to address causation. The two defences were not inconsistent.Finally, Mr Fahey's defence was in fact left to the jury, the Judge summing up on it.[110] The ultimate question is whether there was a miscarriage of justice. We aresatisfied that there was not. It may be that Mr Dacre's approach detracted somewhatfrom Mr Fahey's defence. The jury may have been left with the impression thatcounsel did not think much of it. But the defence was hopeless; if medical interventioncontributed, it is no defence in law and anyway it came too late, for Mr Harris wasalready dead or dying.124Should Mr Fahey have been permitted to lead propensity evidence aboutMr Harris?[111] Ms Kincade submitted that the jury were misled about Mr Harris's temper, forthe Judge had ruled inadmissible the propensity evidence that the defence wanted tocall about Mr Harris and the prosecutor closed by suggesting he was not an aggressiveperson. Counsel submitted that the prosecutor thereby misled the jury, but there wasevidence to support what was said. The argument is we think better interpreted as achallenge to the Judge's ruling on admissibility, advanced in light of the Crown'sclosing address.[112] The defence did not need leave to adduce propensity evidence about Mr Harris,but it must show that if accepted the evidence was relevant; that is, probative ofsomething of consequence to the determination of the proceeding.125 As noted at [26]above, the Judge found the evidence irrelevant because it concerned Mr Harris'srelationship with other persons who were members of his extended family.[113] We accept that the evidence is consistent with a more general propensity forviolence, and as such it may have been admissible. But we are not persuaded thatLang J was wrong to find it irrelevant here. The parties agreed that the two men arguedat Myers Park and Crown counsel acknowledged that Mr Harris had something of apropensity to argue when he ought to have left well enough alone. Evidence of apropensity for violence would have been relevant had self-defence been in issue, or124 Crimes Act 1961, s 166.125 Evidence Act, s 7.had there been a narrative suggesting that because Mr Harris was the aggressorMr Fahey may have lacked murderous intent. There was and still is nothing of thesort. The Crown case, based on the CCTV footage and eyewitness accounts, was thatMr Fahey put down his backpack, took out the knife and attacked without warningwhile Mr Harris was carrying the pizza box. Mr Fahey put the Crown to proof, but hedid not offer any alternative account. We observe that he had already decided not togive evidence when the Judge made his ruling. To this day he has not put self-defencein issue or offered any narrative in which Mr Harris's propensity for violence mightfound a defence.Result[114] The application for an extension of time to bring the appeal is granted. Theappeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent