Regina v Michael Kanaan

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.

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Last Modified: 10/01/2003

CaseChat Overview and Summary

In Regina v Michael Kanaan, the applicant sought leave to appeal against his conviction and sentence. The primary dispute involved the applicant's entitlement to have a McKenzie friend present during the appeal process, after he had dismissed his legal aid-appointed barrister and solicitor. The matter was heard in the High Court of Australia. The applicant proposed to have a fellow prisoner act as his McKenzie friend.

The central legal issues before the court were whether the applicant had a right to choose his own representative for the appeal, and if so, whether a fellow prisoner could qualify as a McKenzie friend. The court considered the scope of the right to legal representation in criminal appeals and the criteria for accepting a McKenzie friend. The applicant argued that the dismissal of his legal representatives was justified due to their incompetence, and the proposed McKenzie friend was knowledgeable about the appeal process.

The court concluded that the applicant did not have an absolute right to choose his own representative for the appeal. It held that the decision to appoint a McKenzie friend lies within the court's discretion, and such a friend must be independent and capable of providing appropriate assistance. The court found that a fellow prisoner was unsuitable due to potential conflicts of interest and lack of independence. Consequently, the application for leave to appeal was refused, along with the request to have the proposed McKenzie friend present during the appeal process. The court's decision underscored the importance of maintaining the integrity and fairness of the legal process in criminal appeals.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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