Regina v Michael Kanaan

[2003] NSWCCA 190

CITATION:	REGINA v Michael KANAAN [2003] NSWCCA 190
HEARING DATE(S):	4 July 2003
JUDGMENT DATE:	4 July 2003
JUDGMENT OF:	Mason P at 1; Dowd J at 5; Adams J at 6
DECISION:	Application refused.
CATCHWORDS:	Criminal law - appeal - application for leave to appeal - refusal of permission to have McKenzie friend - applicant with legal aid dismissed barrister and solicitor who were retained and available - proposed McKenzie friend a fellow prisoner - application refused. (ND)
PARTIES :	REGINA v Michael KANAAN
FILE NUMBER(S):	CCA 60216/2003
COUNSEL:	Crown: D Frearson Applicant: In person
SOLICITORS:	Crown: J E O'Connor Applicant: No representation

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 70008/2000
LOWER COURT JUDICIAL OFFICER :	Barr J

CCA 60216/2003

MASON P
DOWD J
ADAMS J

Friday 4 July 2003

REGINA v Michael KANAAN

Judgment

1 MASON P: This is an application for leave to appeal against a ruling made by Barr J. The applicant, Mr Kanaan, is due to be tried on serious offences commencing on 7 July next. Barr J is not the trial judge but he was the judge that heard and determined an application made by Mr Kanaan for permission to use as a McKenzie friend at the trial the services of a Mr Simpson. Mr Simpson is, we have been informed, presently on remand. He has a number of other convictions for criminal offences.

2 Barr J refused the application having ascertained from Mr Kanaan and from his former legal representatives that Mr Kanaan had a grant of legal aid; that with that grant he had retained solicitor and counsel but that he had decided to dispense with their services and to represent himself with the assistance, subject to the permission of the Court, of a McKenzie friend. Mr Kanaan gave Barr J his reasons for wanting to proceed that way.

3 It is not necessary to consider whether the ruling made by Barr J amounts to an order that is subject to a right to seek leave to appeal under s 5 F of the Criminal Appeal Act. Assuming it is, nothing that has been put to us in the written and oral submissions on behalf of the applicant indicates any basis for doubting the correctness of his Honour's conclusion or otherwise considering that it is appropriate for a grant of leave to appeal.

4 Accordingly, I propose that leave to appeal be refused.

5 DOWD J: I agree.

6 ADAMS J: I agree but I wish to add that this observation, in light of the possibility that the application might be renewed at trial. It seems to me that it would only be in extremely exceptional circumstances that the Court would give leave to a person to act as a McKenzie friend who had convictions for serious offences or was serving a sentence or in custody on remand for a serious criminal offence.

7 MASON P: I agree with the additional remarks of Adams J.

8 DOWD J: As do I.

9 MASON P: The application for leave is refused.

**********

Last Modified: 10/01/2003