Klewer v The Queen - [2016] NSWDC 224

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Klewer v R [2016] NSWDC 224
Hearing dates: 25 July 2016; 1 August 2016
Date of orders: 01 August 2016
Decision date: 01 August 2016
Jurisdiction: Criminal
Before: Letherbarrow SC DCJ
Decision:
Motion dismissed.

Catchwords: Conviction appeal – resist officer and assault police in the execution of duty – motion by appellant seeking leave to be represented by his mother - mother convicted in the Local Court of charges arising from the same incident –mother declared vexatious litigant – institution of proceedings – power to allow unqualified person to appear – McKenzie’s friend – whether appellant able to represent himself – self-represented litigant - whether extraordinary circumstances.
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Attorney General for New South Wales v Klewer (No 3) [2010] NSWSC 9
North Ganalanja Aboriginal Corporation & Bidanggu Aboriginal Corporation on Behalf of the Waanyi People v The State of Queensland & Ors (1996) 185 CLR 595; [1996] HCA 2
McKenzie v McKenzie [1971] P 33
R v EJ Smith [1982] 2 NSWLR 608
R v Jackson (Court of Criminal Appeal (NSW) 2 December 1980, unrep)
Smith v R (1985) 159 CLR 532; [1985] HCA 62
Category: Procedural and other rulings
Parties: Regina (Crown)
Robert Klewer (Appellant)
Representation: Crown: Ms S. Kim
Appellant: In person

File Number(s): 2015/00028147

Judgment

HIS HONOUR: Before the Court is a motion by which the appellant, Robert Klewer, seeks leave “to be represented by his mother, Lucy Klewer.” It is supported by an affidavit from the appellant together with one from his mother. The latter annexes numerous documents.
The substantive proceedings are an appeal brought by the appellant against his convictions in the Local Court arising out of incidents which took place, as I understand it, when certain eviction activities were being carried out.
The two charges which the appellant was convicted of were resisting an officer and assaulting a police officer in the execution of his duty. The relevant appeal is brought pursuant to the provisions of the Crimes (Appeal and Review) Act 2001 (NSW). His mother was also convicted of three counts of throwing missiles arising out of the same events. The appellant’s hearing in the Local Court was a joint hearing with that of his mother. Whilst he has appealed his convictions, his mother has not.
The substantive matter was called over at the start of these criminal sittings last Monday. At that time, the appellant’s mother made an oral application to represent her son. Upon questioning, she agreed that she had been declared a vexatious litigant and that she herself had been convicted in the same set of proceedings from which her son has appealed. She also agreed that she is not a qualified lawyer admitted to practice in this State.
In those circumstances, I declined to permit her to represent her son. I then stood the matter over…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Klewer v The Queen

Details

AGLC: Klewer v The Queen [2016] NSWDC 224
Case: [2016] NSWDC 224
Decision Date: 01 August 2016

CaseChat Overview and Summary

Klewer appealed against his conviction for resisting a police officer and assaulting a police officer in the execution of duty. The appellant sought leave to be represented by his mother, who had been convicted in the Local Court of charges arising from the same incident. The appellant's mother was also declared a vexatious litigant. The legal issues before the court were whether the appellant could be represented by his mother, and if not, whether the appellant could represent himself.

The court held that the appellant's mother could not represent him as she was a vexatious litigant and the appellant was unable to obtain legal representation. The court considered whether the appellant could represent himself and whether there were any extraordinary circumstances that warranted allowing an unqualified person to appear. The court found that the appellant was unable to represent himself and that there were no extraordinary circumstances that warranted allowing an unqualified person to appear.

The court dismissed the appellant's motion for leave to be represented by his mother and found that the appellant was unable to represent himself. The court held that there were no extraordinary circumstances that warranted allowing an unqualified person to appear. The court noted that the appellant had the right to be represented by a legal practitioner of his choice but that he was unable to obtain legal representation. The court also noted that the appellant had been provided with a McKenzie’s friend to assist him in preparing his case.

The orders of the court were that the appellant's motion for leave to be represented by his mother was dismissed, and that the appellant was unable to represent himself. The court held that there were no extraordinary circumstances that warranted allowing an unqualified person to appear. The court noted that the appellant had been provided with a McKenzie’s friend to assist him in preparing his case.

Orders

Orders of the court

Motion dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Klewer v R [2016] NSWDC 224
Hearing dates:	25 July 2016; 1 August 2016
Date of orders:	01 August 2016
Decision date:	01 August 2016
Jurisdiction:	Criminal
Before:	Letherbarrow SC DCJ
Decision:	Motion dismissed.
Catchwords:	Conviction appeal – resist officer and assault police in the execution of duty – motion by appellant seeking leave to be represented by his mother - mother convicted in the Local Court of charges arising from the same incident –mother declared vexatious litigant – institution of proceedings – power to allow unqualified person to appear – McKenzie’s friend – whether appellant able to represent himself – self-represented litigant - whether extraordinary circumstances.
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Attorney General for New South Wales v Klewer (No 3) [2010] NSWSC 9 North Ganalanja Aboriginal Corporation & Bidanggu Aboriginal Corporation on Behalf of the Waanyi People v The State of Queensland & Ors (1996) 185 CLR 595; [1996] HCA 2 McKenzie v McKenzie [1971] P 33 R v EJ Smith [1982] 2 NSWLR 608 R v Jackson (Court of Criminal Appeal (NSW) 2 December 1980, unrep) Smith v R (1985) 159 CLR 532; [1985] HCA 62
Category:	Procedural and other rulings
Parties:	Regina (Crown) Robert Klewer (Appellant)
Representation:	Crown: Ms S. Kim Appellant: In person
File Number(s):	2015/00028147