Court of Appeal provides guidelines for appointment of amicus curiae

Increasingly, trial courts have been appointing counsel assisting to perform a wide variety of roles normally performed by defence counsel, in response to self-representation by defendants.  In May 2017, the Court of Appeal heard R v Fahey involving an appellant convicted of murder at a trial where he was self-represented with amicus appointed by the court.  The case offered the Court the opportunity to conduct a review of amicus practice in New Zealand and compare it with the jurisdictions of England and Wales, Canada and the United States.

At the invitation of the Court of Appeal, the New Zealand Bar Association, Criminal Bar Association and the New Zealand Law Society appeared as intervenors. The NZLS adopted the NZBA’s submissions, and the CBA’s submissions also supported the NZBA’s position.

The recently released decision of the Court of Appeal recognises the conflict and confusion that arises when amicus is appointed to provide a wide variety of assistance to a defendant.  It endorses the exceptional use of “standby counsel” for a self-represented defendant in cases where a fair trial will not be achieved if the defendant is self-represented.

Click here to read the decision.

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