Guide to a McKenzie Friend.

  1. McKenzie Friend

  2. Traditionally, a "McKenzie friend" is an adviser who assists a self-represented accused by prompting him or her, taking notes and quietly making suggestions. This person does not need to be legally trained and may not take part in the proceedings as an advocate (McKenzie v McKenzie [1970] 3 All ER 1034; Collier v Hicks (1831) 109 ER 1290).
  3. The concept has, however, been extended in appropriate cases to allow the "McKenzie friend" to make oral submissions on behalf of the person (Li v So [2021] VSCA 32, [20]; Nepal v Minister for Immigration and Border Protection [2015] FCA 366, [13]-[16]).
  4. An accused may only use the assistance of a "McKenzie friend" with the leave of the court. The choice of whether to allow a "McKenzie friend" is a matter of practice and procedure for the court and there is no absolute rule that a court must permit or refuse such assistance (Smith v R (1985) 159 CLR 532; [1985] HCA 62; c.f. Macartney v R (2006) 31 WAR 416; [2006] WASCA 29).
  5. When determining whether to permit the accused to have the assistance of a "McKenzie friend", the court should consider the following factors:
    • the complexity of the evidence and the issues;
    • the accused’s ability to understand the evidence and the course of proceedings;
    • the accused’s ability to express him or herself in the court setting;
    • whether the accused can receive the same benefits by conferring with his friend or lay adviser during adjournments (R v Burke [1993] 1 Qd R 166).
  6. In criminal trials, judges are very reluctant to grant leave for a "McKenzie friend", as experience has shown that the practice is fraught with danger. Proceedings are more likely to become protracted, or miscarry. The adviser is not an officer of the court and is not subject to the professional disciplinary rules that govern lawyers. The accused may attempt to use the adviser as a convenient excuse for any improper or disruptive behaviour by the accused and deflect the risk of censure in the eyes of a jury. Finally, the presence of a third party may impede the judge’s efforts to control proceedings and ensure a fair trial (R v EJ Smith [1982] 2 NSWLR 608; R v Dodd (No 2) [1985] 2 Qd R 282; R v Burke [1993] 1 Qd R 166; Re B [1981] 2 NSWLR 372).
  7. The accused’s decision to refuse legal aid is a relevant factor when a court is deciding whether to allow a "McKenzie friend". While the accused is entitled to conduct the case him or herself, this right must not be exercised at the expense of unnecessary disruption to the court or delay of future hearings. A court is entitled to be very sceptical when the accused refuses legal aid and seeks to have a barrister provide support as a "McKenzie friend" (R v Burke [1993] 1 Qd R 166; Smith v R (1985) 159 CLR 532; [1985] HCA 62).
  8. Limiting representation to qualified and accredited lawyers is designed to promote the interests of justice, rather than to protect a lawyer’s monopoly. The presence of an unqualified adviser may harm the interests of the accused, cause delays to proceedings and impair the administration of justice (Mihaka v Police [1981] 1 NZLR 54; Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230; Skrijel v Mengler [2004] VSC 128).

 

 

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