R v Eriksen (No 4)

Anthony Eriksen, (“the accused”) appears self-represented at his trial where he is charged with the murder of Lisa Fenwick (“the deceased”).

The accused is self-represented by choice. He chose to terminate the retainer of several sets of lawyers in the months preceding the trial. A grant of legal aid was available to him to engage lawyers, but by reason of his failure to co-operate in that process, that grant was eventually terminated. [1] Legal Aid indicated that the grant was able to be re-instated, but he chose to represent himself at trial.

The lead Crown Prosecutor in the trial, Mr Boyle, quite properly raised the question of whether he would be able to make a closing address to the jury. This judgment deals with that question. For the reasons below, I determined that the Crown Prosecutor should be able to make a closing address.

Where an accused is unrepresented at trial, it is usual practice for the Crown not to make a closing address. This is not a rule of practice, let alone a rule of law: R v E J Smith [1982] 2 NSWLR 608 (“E J Smith”) at 616; R v Zorad (1990) 19 NSWLR 91 (“Zorad”) at 94. See also TS v R [2022] NSWCCA 222 (“TS”) at [92]-[94].

In Zorad at Pp 94-95 the Court continued:

It is clear that the decision whether the Crown Prosecutor should address the jury where the accused is unrepresented is one for the trial judge, in the exercise of his or her discretion, to ensure that the trial is fair in all respects: E J Smith at 616; Zorad at 95. In E J Smith, Street CJ, (Nagle CJ at CL and Maxwell J agreeing), said with respect to the exercise of the discretion at 616:

In TS at [100]-[101], (Basten AJA, Fullerton and Garling JJ agreeing) referred to a careful and thorough consideration by experienced trial judge, his Honour Judge Norrish QC, of the exercise of the discretion to allow the Crown Prosecutor to address in such circumstances. Basten AJA said:

As I stated, in this case, the accused is unrepresented by choice. This is not, however, a case where it could be said that he is seeking to gain some tactical advantage by appearing unrepresented. As far as the material before the Court indicates, he does not have a long experience of the criminal justice system.

Nevertheless, I do regard his choice to appear unrepresented as a relevant factor in the exercise of the discretion. He should not by this choice be entitled to an advantage that a represented accused would not have of the Crown Prosecutor not addressing the jury.

Further, I consider there is force in the observations of Judge Norrish QC, as referred to by Basten AJA, that if the judge undertakes the function of summarising and exposing the Crown case rather than the Crown Prosecutor, this may lead to the jury giving greater force to that summary and exposition by reason of the fact of it coming from the judge. Additionally, I have no reason to believe that the Crown Prosecutor will do anything other than act in accordance with his obligations in his closing address. Indeed, the Crown Prosecutors during the trial have taken all appropriate steps to ensure that the unrepresented accused has received a fair trial. They have behaved in an exemplary fashion.

Whilst this is not a factually complicated trial, I do not consider that there would be any unfairness to the accused if the Crown Prosecutor was permitted to make a closing address. Indeed, I have formed the view that in order to ensure fairness to both the Crown and the accused, it is more appropriate that the Crown Prosecutor make a closing address to the jury than the task be left to me.

It is for these reasons I decided that the Crown Prosecutor would be allowed to make a closing address to the jury.