Murderer's appeal to guide judges after self-representation, amicus curiae debate

Grenville Fahey's appeal raised questions about the role of counsel appointed by courts to assist in criminal trials. Photo / Brett Phibbs

An appeal over an Auckland murder has raised questions about court-appointed counsel and amicus curiae in criminal trials, and will now be used to guide New Zealand judges.

An amicus curiae is "not a party to an action, but a person appointed by the court to assist the court. Assistance is provided by offering information and submissions about a particular area of law, or by advancing legal arguments on behalf of an unrepresented party", the Ministry of Justice's definition says.

Grenville Henare (Kookie) Fahey appealed to the Court of Appeal to overturn his conviction for the murder of Steven Harris on September 4, 2013.

Fahey said the High Court trial judge, Justice Graham Lang, had forced legal counsel upon him although he had elected to represent himself. His argument at appeal on May 31 and June 1 was that counsel did not advance his preferred defence, causation, and instead argued lack of murderous intent to the jury.

Fahey and Harris were friends and both homeless living on the streets of central Auckland. The two were seen arguing early on the evening of September 4, but later shared a free pizza.

The Crown's case was that while walking through Myers Park, Fahey stopped, pulled a knife from his bag, and attacked Harris. Fahey then fled the scene, but was seen by eyewitnesses and on CCTV.

Harris, who was stabbed four times, was taken to hospital but died from his injuries.

In 2015 Fahey was sentenced to life imprisonment.

Steven Harris, 54, was murdered by Grenville Fahey. Photo / Supplied

Despite losing his appeal, Fahey, who has more than 200 previous convictions starting from when he was 17, raised issues about with self-representation in New Zealand's judicial system and an increase in amici appointed annually to criminal cases.

The appeal court also heard from counsel for the New Zealand Law Society, the New Zealand Bar Association and the New Zealand Criminal Bar Association.

"All agree, as does the Crown, that the role of court-appointed counsel wants closer definition," the judges, Justice Forrie Miller, Justice Mark Cooper and Justice Denis Clifford said in their judgement yesterday.

"This judgment is intended to guide trial judges in the exercise of their discretion to
appoint counsel who serve as amicus curiae to assist the court, or as standby counsel to assist the self-represented defendant as and when the defendant requests," they added.

Justice Denis Clifford. Photo / Stuart Munro

Before trial, at a hearing November 27, 2013, Fahey elected to represent himself and dispensed with the services of well-known defence lawyer Ron Mansfield.

Fahey said the decision was made due to a conflict of personalities, and despite the presiding judge, Justice Timothy Brewer, encouraging him to seek alternative counsel Fahey said he would self-represent.

At another hearing, on February 26, 2014, Justice Lang raised the possibility of amicus being appointed "to assist the Court", to which Fahey agreed and Paul Dacre QC was later named.

In a memorandum Dacre said that while Fahey had been conscientious in his preparation pre-trial, he lacked resources and had "little in the way of forensic skills or legal insight".

Justice Forrie Miller. Photo / Stuart Munro

There were two obvious defences, self-defence and a lack of murderous intent, the Queen's Counsel said.

A first trial began on September 29, 2014 but was aborted on October 2, 2014 due to the unavailability of a key witness.

The second trial began on November 24, 2014 and the Crown called 43 witnesses. Fahey questioned some witnesses, Dacre others, while a few were questioned by both.

A police forensics crew at the scene of the 2013 murder in Myers Park. Photo / Sarah Ivey

On the second day of trial, however, Fahey complained to the judge that Dacre had given bad advice, causing himself to fail to put some questions to the ambulance officers who treated Harris about the number of stab wounds.

The judge advised that "no doubt Mr Dacre has your best interests at heart, but at the end of the day, you do whatever you feel you have to do".

The Court of Appeal judges, while concluding that Fahey's defence was not compromised, used the case to review amicus practice in New Zealand and compare it with the jurisdictions of England and Wales, Canada and the US.

In 2001 the English courts put an end to the practice of amicus being appointed as an advocate for a self-represented defendant. Amicus, now called an advocate to
the court in England, represents no one, is not expected to lead evidence, cross-examine witnesses or investigate, but is appointed to give the court assistance on the relevant law.

Justice Mark Cooper. Photo / Stuart Munro

Canadian courts traditionally recognised that amicus might be appointed to act as standby counsel for a defendant who refuses to participate, while US courts have developed the concept of standby counsel to ensure a fair trial for self-represented defendants.

Australian practice was considered by the Court of Appeal to be too complex for comparison.

New Zealand trial courts currently possess discretionary power to appoint standby counsel in criminal proceedings when they think it necessary to ensure a fair trial.

The number of amici appointed by the courts has increased over the past decade. Graphic / Ministry of Justice

The Court of Appeal judges said the roles of amicus curiae and standby counsel must be distinguished, and defined, to avoid conflicts of duty and risk of confusion at trial.

"Amicus is appointed to assist the court itself, usually on questions of law, when it appears the parties may not do so. Standby counsel is appointed to assist a self-represented defendant to the extent he or she is willing to accept help," the judges said.

"We expect that standby counsel appointments should be exceptional."

The judges also said a defendant's decision to self-represent must be respected and in ordinary cases a fair trial should be possible without standby counsel.

Guidelines for future trials were set by the judges, including that counsel's role should be recorded and clearly explained to the defendant and the jury, and that standby counsel should take instructions from the defendant.

The judges further said rarely, if ever, should a defendant's former counsel be appointed amicus or standby counsel.