Consider self-representation if you are confident you can prepare and present your case in court. If not, seek legal representation.
Consider self-representation in these circumstances:
- If you feel confident with court procedure
- If there is to be a credibility battle between yourself and police
- If you've informed yourself of all the legal elements of the charges
People can represent themselves in court, provided they have standing in the court case (a defendant always has standing when facing a charge). At present, generally only solicitors and barristers can represent other people in court (although a friend of the court can sometimes be given permission to appear to assist the court). This means, unfortunately, that an articulate person cannot speak up for a friend in court (except as a character witness), and lawyers can charge very high fees.
You may consider self-representation for several reasons:
- If you are not eligible for legal aid, yet cannot afford a lawyer
- If you wish to directly confront witnesses who are not telling the truth
- If you wish to speak strongly and directly to the tribunal of fact (magistrate, judge or jury)
The magistrate or judge is legally obliged to explain to you your basic rights, and the basics of court procedure, when you are self-represented. But it's up to you to research and find out what defences you'll run, what evidence you'll call and what questions you'll ask.
For self-representation, you should have three things:
- The confidence to speak in open court, and to argue firmly and clearly against the opposing party
- The time to fully prepare your case, arrange the collection of statements and research the relevant law (issues of principle concerning the charge and possible defences)
- The ability to analyse and grasp clearly the elements of the charge, and the significance of the evidence. You should be able to stand back from the emotion of the matter, and assess the strengths and weaknesses of both sides, as if it were a sporting contest. Then you can take some advice and decide what tactics to employ
While you need to prepare and plan your case, there can be some advantages. If you have a dispute about the facts with a witness, you might be in a better position to present your view both in cross-examining and challenging the witness, as well as giving evidence or making a statement yourself. When questioning a witness about events in which you were involved, you are in control of the issues raised, and you can raise argumentative suggestions, which are not possible if and when you give evidence.
In effect, you give evidence twice when you are self-represented. It also does no harm to be able to speak directly to and with the tribunal (magistrate, judge or jury), rather than be regarded as a third party variously called the defendant (in magistrates' courts) or the accused (in a jury trial).
More and more people are forced into self-representation, because of the severely limited public funds for legal aid. So it pays to prepare for the possibility of self-representation.
You must be prepared to do your homework, both by investigating the evidence and by studying the legal issues involved. Having support to do this is important.
Self-representation is often an empowering experience which also allows you to tell the court of the political context of your arrest. You may be able to do this much better than a lawyer. Community legal centres will usually be able to provide free advice when you are representing yourself.
In Victoria the courts now have the power to order the Legal Aid Commission to fund your case if they believe it's necessary in the interest of justice. It is important, however, that you have done everything possible to arrange for your representation prior to going to court.