Self-represented parties

10.1 Some information[1]

  • Right to self-represent — Common law provides that everyone has the right to represent themselves in court[2] in both civil and criminal matters — unless they have been ruled as vexatious.[3] Note, s 294A of the Criminal Procedure Act 1986 (NSW) prevents a self-represented person who is the accused in a prescribed sexual offence proceeding, or where a witness in the proceedings is vulnerable (s 306ZL(2)) from personally cross-examining the complainant.[4]

  • Duty of the court — The court has a duty, in both civil and criminal matters, to give persons who represent themselves a fair hearing, and it may be appropriate for the court to give some assistance to such persons in order to fulfill that duty. The court hearing a case between an unrepresented litigant and another party, however, cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.[5]

  • Numbers of self-represented parties — Data about the number of self-represented parties (SRP) is collected inconsistently across jurisdictions. In the 2009 Access to Justice Report,[6] the committee urged that the federal, State and territory courts report publicly on the numbers of SRPs and their matters.[7] Since the NSW Court of Appeal commenced keeping statistics on representation status in 2014, an average of about 20% of matters commenced in that court have at least one party who is unrepresented, or about seven a month.[8] A SRP may be the applicant, respondent or the accused.

  • Why people choose to represent themselves — There are many reasons why people choose to represent themselves. For example, they:

    • may have been refused legal aid or presume they are ineligible

    • may not be able to afford legal representation[9]

    • may have been told by lawyers that their case had no merit, but believe that it does have merit

    • may have been perceived by lawyers as in some way too “difficult” (for example, they are unable to speak English or to communicate well or sufficiently logically)

    • may not trust lawyers

    • may believe they are the best person to put their case across

    • may have withdrawn instructions from their lawyer relatively recently and not had time to find alternative representation

    • may represent themselves for part of the court proceedings and engage a lawyer only for the part they consider (or have been advised) to be most important or critical.

  • Difficulties faced by self-represented parties — People who represent themselves — whether in potentially winnable cases or in cases that were hopeless from the start — come from all types of socio-economic and educational backgrounds. Whatever their literacy or educational level, whatever the type of matter, and to some extent however informal the court is supposed to be, they are likely to face considerable barriers in presenting their case — particularly if they are the accused or the other party is represented. For example, they:

    • may not understand the complexities of relevant legislation and case law

    • may not fully understand legal language

    • may not be able to accurately assess the merits of their case

    • may not fully understand the purpose of the proceedings and/or the interlocutory steps in the proceedings

    • may not fully understand and/or be able to properly apply the court rules — for example, what they must file when, the rules of evidence and cross-examination

    • may not have emotional objectivity or distance, and be overly passionate about their case

    • may not be skilled in advocacy and able to adequately test an opponent’s evidence, or cross-examine effectively

    • may, as a result of many or all of these issues, be feeling anxious, frightened, frustrated, and/or bewildered. The case may have an impact, or start to impact, on their emotional and/or physical health.

Comprehensive data is lacking but it has been noted that outcomes for SRPs are not as good as for those with representation.[10] For example, a SRP may lose the opportunity for diversion and early intervention programs for first offenders and young people.[11]

10.2 The impact of self-represented parties on the court

The difficulties faced by self-represented parties in turn lead to difficulties for the court. For example:

  • The proper processes are unlikely to have been followed.

  • It may be much harder (and might take longer than usual) to get to the essence of what the case is about.

  • The required evidence may not be presented at all, or may be presented inadequately.

  • It will almost always be necessary for the judicial officer to intervene much more than usual.

  • Finding the appropriate balance between intervention and neutrality can be difficult.

  • It is more difficult for the other party and/or the prosecution to deal with an unrepresented party than a represented party.

  • Some unrepresented parties will be querulant.[12]

These difficulties are likely to be compounded if both parties are self-represented.

Self-represented parties must be given the chance to present their case as positively as they can, in the same way as represented parties are given that chance.

Unless ways are found to minimise the difficulties that self-represented parties face and the consequential difficulties faced by the court, self-represented parties are likely to:

  • feel overwhelmed

  • feel uncomfortable, resentful or offended by what occurs in court

  • not understand what is happening or be able to get their point of view across and/or be adequately understood

  • feel that an injustice has occurred

  • in some cases be treated unfairly and/or unjustly.

On the other hand, the court has to show neutrality in any measures it takes to enable the self-represented person to present their case, and for example, deal appropriately with any self-represented person who does not follow directions and/or is clearly vexatious. Otherwise, it is the other party who is likely to feel that an injustice has occurred, or in some cases be treated unfairly or unjustly.

Section 10.3, following, provides additional information and practical guidance about ways of treating a self-represented party during the court process, so as to reduce the likelihood of these problems occurring.

10.3 Practical considerations[13]

10.3.1 Before the court appearance

Many of the difficulties self-represented parties (SRP) both face and cause can be minimised with good pre-court preparation. The court may be able to assist in this at the same time as ensuring that there are no problems in relation to neutrality.

10.3.2 At the start of court proceedings

A self-represented party will not generally know how court proceedings run, who does what and in what order, and what they are allowed and not allowed to do in presenting their case or in testing the other party’s evidence. The duty to ensure a fair trial or proceeding to an unrepresented criminal defendant is greater than that owed to a civil litigant.[23]

It is therefore a good idea, at the start of the proceedings, to set the scene and the ground rules in relation to the process that will be followed, so as to help minimise delays and problems later on. If an accused in a criminal trial is determined to appear for themselves, you should ensure that they have all of the material upon which the Crown relies before the trial begins.

If the accused in a trial wishes to rely on an alibi, an enquiry should be made as to whether an alibi notice has been served.[24]

10.3.3 The trial judge’s role[28]

10.3.4 As the court proceedings progress

10.3.4.1 The self-represented party’s evidence

It is important that the SRP is able to present their evidence as effectively as they can, otherwise they may lose their case, not because they had no case, but simply because it was poorly presented and/or led to everyone being too frustrated or confused to be able to listen effectively and/or understand what the self-represented party was trying to present.[31]

In civil proceedings, s 56(3) of the Civil Procedure Act 2005 imposes a duty upon a party and its legal representatives, when opposed by an unrepresented litigant, to assist the court to understand and give full and fair consideration to the submissions of the litigant in person and to refer the court to evidence in the proceedings that is relevant to the submissions. That duty is accentuated where the party is a substantial institution accustomed to litigating cases, often against unrepresented litigants.[32]

It is therefore a good idea to explain the ground rules set out in 10.3.2 before the self-represented party starts to present their case.[33] Doing this may help ensure that the self-represented party presents only the evidence needed, adheres to the rules of evidence, and presents their case in the best possible light.

You may also need to intervene whenever they seem to be struggling, or the court is not getting what it needs to be able to determine the matter(s) before it. You will need to do this without showing any partiality and without advocating or appearing to advocate on behalf of the self-represented person. A useful list of guidelines for judges in the context of civil proceedings has been set out by the Honourable Justice TH Smith of the Supreme Court of Victoria.[34] A number of cases have also looked at the bounds of judicial intervention in both criminal and civil cases, see R v Zorad,[35] R v Mercer [36], Burwood Municipal Council v Harvey[37] and Minogue v Human Rights and Equal Opportunity Commission.[38]

10.3.4.2 Testing the other party’s evidence

A SRP is unlikely to be able to determine issues of admissibility or to be able to test the other party’s or their witnesses’ evidence via cross-examination as competently as a legal representative.

In all fairness, therefore, you may need to intervene whenever:

  • There might be an issue of admissibility — for example, to stop leading questions or questions that the witness is not qualified to answer.

  • The SRP is not picking up on an aspect of the other party’s evidence that requires testing.

  • The SRP is using cross-examination to ventilate about irrelevant matters or in an unfair manner.

You will need to do this without showing any partiality and without advocating, or appearing to advocate, on behalf of the SRP.

10.3.4.3 Final submissions

There is a discretionary practice that the Crown not give a closing address in cases where an accused is unrepresented.[45] If, however, you do decide to exercise your discretion to allow the Crown to address, you should explain the situation to the accused and read to him or her the relevant parts of the Criminal Trial Courts Bench Book at [1-820] so that they understand they can address, what they can say, what they cannot say.

A SRP has the same right to present final submissions as anyone else. However, in order to do this effectively, they may need some guidance about the process.

10.3.4.4 Guidance to the jury — points to consider

10.4 Sentencing, other decisions and judgment or decision writing — points to consider

10.5 Further information or help

For information on free sources of legal information, advice or representation, see:

  • Judicial Commission of New South Wales, Pro Bono Schemes in NSW, 2019, Sydney. This brochure is published on JIRS under the “General Resources” menu on the left-hand bar.

  • Court-based information and assistance:

  • Schemes of Professional Bodies:

    • Law Society of New South Wales Pro Bono Scheme — The Law Society’s Pro Bono Scheme can put eligible members in contact with law firms willing to provide their legal services for free or for reduced fees. This assistance can include legal advice, help with preparing documentation and representation in court.

      Pro Bono Solicitor — Law Society of New South Wales

      170 Phillip Street
      Sydney NSW 2000
      Ph: (02) 9296 0333
      Fax: (02) 9231 5809
      www.lawsociety.com.au/for-the-public/pro-bono-scheme

  • New South Wales Bar Association Legal Assistance Referral Scheme — The NSW Bar Association has a Legal Assistance Referral Scheme. When deciding whether to provide assistance, the NSW Bar Association considers a number of factors including the applicant’s financial resources, whether they have been refused legal aid or assistance elsewhere and the prospects of success of the case. Matters relating to cases such as personal injury, medical negligence, a neighbourhood dispute or an apprehended violence matter (AVO) are not included in the scheme.

    The New South Wales Bar Association

    Selbourne Chambers
    B/174 Phillip Street
    Sydney NSW 2000
    Ph: (02) 9232 4055
    Fax: (02) 9221 1149
    www.nswbar.asn.au

  • The New South Wales Bar Association Duty Barrister Scheme — The Duty Barrister Scheme is an initiative of the NSW Bar Association. They have been introduced to particular Local Courts to help people who cannot afford a lawyer, who do not qualify for legal aid and who have a matter before the court on the day. The duty barrister can provide legal advice and argue the case in court.

    The New South Wales Bar Association

    Selbourne Chambers
    B/174 Phillip Street
    Sydney NSW 2000
    Ph: (02) 9232 4055
    Fax: (02) 9221 1149
    Email: enquiries@nswbar.asn.au 

  • LawAccess NSW — A call centre (phone toll-free 1300 888 529) run by the NSW Attorney General’s Department. It provides 24-hour access to recorded information on many legal topics and business-hour access to operators who can individually assist with enquiries on legal matters, including assessment of eligibility for pro bono assistance. Internet access to information concerning courts, tribunals and other agencies and services of the Attorney General’s Department is available at www.lawaccess.nsw.gov.au, accessed 11 September 2019.

  • Legal Aid Commission of NSW — provides free legal advice and grants legal aid for matters in specified areas of the law. Applicants are assessed on their financial means; the merits of the case; and whether they meet Legal Aid policy guidelines. Applicants must fill out a Legal Aid Application Form, available from an Legal Aid office, from duty lawyers at local courts or by phoning LawAccess NSW on 1300 888 529 or from their website at www.lawaccess.nsw.gov.au, accessed 26 August 2019.

    Legal Aid Commission of NSW

    323 Castlereagh Street
    Sydney NSW 2000
    Ph: (02) 9219 5000
    www.legalaid.nsw.gov.au/get-legal-help/applying-for-legal-aid

  • Community Legal Centres — Community Legal Centres are independent non-government organisations that provide free legal advice, information and referrals on a range of issues. Of the nearly 40 community legal centres in NSW, some provide generalist assistance and some provide specialist advice (see www.clcnsw.org.au for their locations).

    Community Legal Centres NSW

    Suite 805, Level 8
    28 Foveaux Street
    Surry Hills NSW 2010
    Ph: 02 9212 7333 
    Fax: 02 9212 7332 
    Website: http://www.clcnsw.org.au/ 
    Email: clcnsw@clc.net.au

  • State Library of New South Wales, Legal Information Access Centre, available at www.liac.sl.nsw.gov.au, accessed 26 August 2019.

10.6 Further reading

L Richardson, G Grant and J Boughey, “The impacts of self-represented litigants on civil and administrative justice: environmental scan of research, policy and practice”, Australasian Institute of Judicial Administration, 2018, at <https://aija.org.au/wp-content/uploads/2018/11/SLR-Enviro-Report.pdf>, accessed 26 August 2019.

MJ Beazley, AO, “Communicating the law: self-represented litigants in the Court of Appeal”, NCAT Annual conference, 2015.

M Castles, “Barriers to unbundled legal services in Australia: canvassing reforms to better manage self-represented litigants in courts and in practice”, (2016) 25  JJA 237.

L Flannery, “Dealing with unrepresented litigants in lengthy and complex trials”, 8 May 2019, at https://jirs.judcom.nsw.gov.au/conferences/conference.php?id=1454.

R Hunter et al, The changing face of litigation: unrepresented litigants in the Family Court of Australia, Law and Justice Foundation of New South Wales, 2002, at <www.lawfoundation.net.au/publications/research/cfl/cfl_sum.html>, accessed 7 February 2011.

Judicial Commission of NSW, Criminal Trial Courts Bench Book, “Self-represented accused”, at [1-800]ff, <www.judcom.nsw.gov.au>, accessed 26 August 2019.

Judicial Commission of NSW, Civil Trials Bench Book, Sydney, “Unrepresented litigants and law advisors”, at [1-0800]ff, <www.judcom.nsw.gov.au>, accessed 26 August 2019.

Judicial Commission of NSW, Pro bono schemes in NSW, Sydney, 2019.

Judicial Studies Board, Equal Treatment Bench Book, “Litigants in person and lay representatives”, 2018, London, Ch 1, at https://judiciary.uk/wp-content/uploads/2018/02/equal-treatment-bench-book-february2018-v5-02mar18.pdf, accessed 26 August 2019.

Law Council of Australia, “Erosion of Legal Representation in the Australian Justice System”, research project and report undertaken by Law Council of Australia in conjunction with Australian Institute of Judicial Administration, National Legal Aid and Aboriginal and Torres Strait Islander Legal Services, 2004, at <http://lca.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/fmsdownload079a.pdf>, accessed 26 August 2019.

G Lester, “The vexatious litigant”, (2005) 17(3) Judicial Officers Bulletin 17.

NSW Bar Association, “Guidelines for barristers on dealing with self-represented litigants”, October 2001, at <www.nswbar.asn.au/docs/professional/prof_dev/BPC/course_files/Self%20Represented%20Litigants.pdf>, accessed 26 August 2019.

The Law Society of NSW, “Guidelines for solicitors dealing with self-represented parties”, April 2006, at <https://www.lawsociety.com.au/sites/default/files/2018-03/Self%20represented%20parties.pdf>, accessed 26 August 2019.

JW Perry, “The Unrepresented Litigant”, paper presented at AIJA 6th Conference, September 1998.

E Richardson, et al, “Self-represented litigants: gathering useful information”, Final report — June 2012, Monash University.

T Soudin and N Wallace, “The dilemmas posed by self-represented litigants: the dark side” (2014) 24 JJA 61.

E Richardson, T Sourdin and N Wallace, “Self-Represented Litigants: Literature Review”, Australian Centre for Justice Innovation, Monash University, 2012.

B Sully, “Section 294A Criminal Procedure Act — Unrepresented Accused in Sexual Offence Proceedings”, paper presented at Judicial Commission of New South Wales, Cross-jurisdictional Seminar, 8 March 2006, Sydney.

Supreme Court of Queensland, Equal Treatment Benchbook, 2nd ed, Ch 12, at www.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf, accessed 26 August 2019.

State Library of New South Wales, Legal Information Access Centre, at <http://liac.sl.nsw.gov.au/advice/list.cfm>, accessed 26 August 2019.

D Webb, “The right not to have a lawyer” (2007) 16(3) JJA 165–178.

Faulks J, "Self-represented litigants: tackling the challenge", Paper delivered at Managing People in Court Conference, National Judicial College of Australia and the Australian National University, February 2013, at www.familylawexpress.com.au/family-law-factsheets/wp-content/uploads/2013/06/SELF-REPRESENTED-LITIGANTS-CHALLENGE.pdf, accessed 26 August 2019.

G Zdenkowski, “Magistrates’ Courts and Public Confidence” (2007) 8(3) The Judicial Review 385.

10.7 Your comments

The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.

We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.

Section 13 contains information about how to send us your feedback.



[1] Much of the information in Section 10.1 is drawn from Judicial Studies Board, Equal Treatment Bench Book, London, updated 2008, Ch 1.3, at <www.judiciary.gov.uk>, accessed 4 June 2014; and Supreme Court of Queensland, Equal Treatment Benchbook, Supreme Court of Queensland Library, Brisbane, 2005, Ch 12, at <www.courts.qld.gov.au>, accessed 4 June 2014; and E Richardson, Self-represented parties: A trial management guide for the judiciary, County Court of Victoria, Melbourne, 2004.

[2] See ss 36(1) and 37(2) Criminal Procedure Act 1986 (NSW) and UCPR r 7.1.

[3] See Vexatious Proceedings Act 2008 (NSW), s 8.

[4] If the self-represented person is the accused in sexual offence proceedings, see n 42.

[5] Reisner v Bratt [2004] NSWCA 22 at [4]–[6]; Malouf v Malouf (2006) 65 NSWLR 449 at [94].

[6] Senate Legal and Constitutional Affairs References Committee, Access to Justice, Canberra, December 2009.

[7] ibid, recommendation 17.

[8] M Beazley, “Communicating the law: self-represented litigants in the Court of Appeal”, paper presented at the NCAT Annual Conference, 2015, p 4.

[9] The Productivity Commission, “Access to Justice Arrangements”, Inquiry Report No 72, 2014 at p 492 at www.pc.gov.au/inquiries/completed/access-justice/report/access-justice-volume1.pdf, accessed 10 September 2019, found that most people who self-represent in courts do so involuntarily because they cannot afford a private lawyer or are ineligible for legal assistance.

[10] E Richardson, T Sourdin and N Wallace, “Self-represented litigants: gathering useful information”, Final report, 2012, Australian Centre for Justice Innovation, Monash University, p 11.

[11] See Law Council of Australia, “The Justice Project”, People experiencing economic disadvantage (Part 1), 2018, pp 33-34, at www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Final%20Report/People%20Experiencing%20Economic%20Disadvantage%20%28Part%201%29.pdf, accessed 9 September 2019.

[12] For a definition of querulant, see G Lester, “The vexatious litigant”, (2005) 17(3) Judicial Officers’ Bulletin 17.

[13] Unless otherwise indicated, the information in Section 10.3 is drawn from Judicial Studies Board, Equal Treatment Bench Book, London, updated 2019, at www.judiciary.gov.uk, accessed 11 September 2019; Supreme Court of Queensland, Equal Treatment Benchbook, 2nd ed, Supreme Court of Queensland Library, Brisbane, 2016, Ch 12, at www.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf, accessed 11 September 2019; and the Honourable Justice TH Smith, Supreme Court of Victoria, “Possible guidelines for the trial of litigation involving unrepresented parties” in Australasian Institute of Judicial Administration Inc, Litigants in person management plans: Issues for courts and tribunals, Victoria, 2001, Appendix 2.

[14] See Vexatious Proceedings Act, Pt 2.

[15] For more information on each of these free sources of legal representation, see Judicial Commission of NSW, Pro bono schemes in NSW, Sydney, 2019, published on JIRS under “General Resources”; State Library’s Legal Information Access Centre at https://www.sl.nsw.gov.au/contact-us/legal-information-access-centre-liac, accessed 11 September 2019; and LawAccess at www.lawaccess.nsw.gov.au, accessed 11 September 2019.

[16] See also Judicial Commission, Criminal Trial Courts Bench Book, “Self-represented accused” at [1-810].

[18] A “McKenzie friend” attends the hearing and is able to sit with the self-represented party, take notes, quietly make suggestions and give advice: McKenzie v McKenzie [1971] P 33.

[19] Smith v R (1985) 159 CLR 532; Re Shaw (2001) 127 A Crim R 440.

[20] Damjanovic v Maley (2002) 55 NSWLR 149; Portelli v Goh [2002] NSWSC 997.

[21] Re B (1981) 2 NSWLR 372, R v Smith (1982) 2 NSWLR 608.

[22] Teese v State Bank of New South Wales [2002] NSWCA 219.

[23] See Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 at [56].

[24] Section 150, Criminal Procedure Act 1986.

[25] Judicial Commission of NSW, Criminal Trial Courts Bench Book, Sydney, “Self-represented accused” at [1-000]ff, accessed 8 September 2019.

[26] See also Judicial Commission of NSW, Civil Trials Bench Book, Sydney, “Unrepresented litigants and lay advisers” at [1-0800]ff, accessed 8 September 2019.

[27] See L Flannery, “Dealing with unrepresented litigants in lengthy and complex trials”, District Court twilight seminar, 8 May 2019, at /conferences/conference.php?id=1454, accessed 9 September 2019.

[28] An excellent example of the trial judges role is set out in L Flannery, ibid at [62]–[73].

[29] “The restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented.”: Malouf v Malouf (2006) 65 NSWLR 449 at [94].

[30] Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367. See also Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) (2014) 46 VR 283, in which procedural fairness was not afforded due to the trial judge’s failure to warn the unrepresented parties that their failure to give evidence could give rise to a Jones v Dunkel inference.

[31] as occurred in JE v Secretary, Department of FaCS [2019] NSWCA 162, where the NSW Court of Appeal held at [64] the unrepresented appellant failed to identify any error in the trial judge’s decision to dismiss her damages proceedings against the respondent.

[32] Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at [41], [42].

[33] See n 35.

[34] TH Smith, Supreme Court of Victoria, “Possible guidelines for the trial of litigation involving unrepresented parties” in Judicial College of Victoria, Civil Proceedings, at www.judicialcollege.vic.edu.au/eManuals/MCBB/40262.htm, accessed 9 September 2019. See also Judicial Commission of NSW, Civil Trials Bench Book, above n 26, at [1–0820].

[35] (1990) 19 NSWLR 91.

[36] (1993) 67 A Crim R 91.

[37] (1995) 86 LGERA 389.

[38] (1999) 166 ALR 129.

[39] Section 135(b) of the Evidence Act 1995 (NSW) provides a general discretion to exclude evidence that is misleading or confusing. See also case management in s 69 of the Criminal Procedure Act 1986, and r 2.3(n) of the Uniform Civil Procedure Rules 2005.

[40] Note also that s 41 of the Evidence Act 1995 requires you to disallow improper questions (for example, misleading or confusing, or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive) questions. The section also provides that questions must not be put to a witness in a “manner or tone that is belittling, insulting or otherwise inappropriate” or “has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability)”. The duty imposed on the court under this section applies whether or not an objection is raised to a particular question: s 41(5). Sections 26 and 29(1) of the Evidence Act 1995 also enable you to control the manner and form of questioning of witnesses, and s 135(b) of the Evidence Act 1995 allows you to exclude any evidence that is misleading or confusing.

[41] Section 8(1) of the Vexatious Proceedings Act provides that a court may make a vexatious proceedings order “in relation to a person if the court is satisfied that:

(a) 

the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b) 

the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia”.

The order may be made on the court’s own motion or on application by the Attorney General (NSW), the Solicitor General, the appropriate registrar for the court, a person against or in relation to whom another person has instituted or conducted vexatious proceedings, or a person who, in the opinion of the court, has a sufficient interest in the matter: s 8(4).

Pursuant to s 13, if a vexatious proceedings order is made prohibiting a person from instituting proceedings then the person may not institute proceedings of the kind to which the order relates without the court’s leave under s 16.

[42] In prescribed sexual offences, a self-represented accused party is not allowed to personally cross-examine the complainant. Instead, the law states that the court can appoint someone else to ask the questions the accused person wants asked, who must then do this without providing any legal advice to the accused person, and as long as the judge rules that the questions are permissible. The jury must be told about this procedure, and the accused must be given an opportunity to make submissions about the proposed procedure. See Criminal Procedure Act 1986, s 294A, and the Judicial Commission of NSW, Criminal Trial Courts Bench Book, Sydney, “Self-represented Accused” at [1-800]–[1-890], accessed 11 September 2019. In the absence of legal aid or a “McKenzie friend”, you may need to seek advice from the appropriate senior member of your court about what to do. For a critical examination of s 294A, see BT Sully, “Section 294A Criminal Procedure Act — Unrepresented accused in sexual offence proceedings”, paper presented at the Cross-jurisdictional Seminar, Judicial Commission of NSW, Sydney, 8 March 2006.

[43] See, n 36.

[44] Criminal Procedure Act 1986, s 294A.

[45] See further MS v R [2017] NSWCCA 252 at [68].

[46] above, n 25.

[47] above, n 26.

[48] See also Judicial Commission of NSW, Sentencing Bench Book, 2006, Sydney; and R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [10]–[11].

[49] Vexatious Proceedings Act, s 8(6).

[50] Use simple and direct, non-legal language to do this — for information on the rules of simple, direct and non-legal language see, for example, 2.3.3.4, 3.3.5.3 or 5.4.3.3.