The alleged actions of a former criminal defence lawyer, dubbed ‘Lawyer X’, has received much media attention recently. Unfortunately, this has caused some people who are not involved in the law to wonder whether or not the negative stereotypes associated with criminal defence lawyers are true. Some stereo-types include that criminal defence lawyers are ‘sleazy’, ‘shift’ and ‘make deals’. To be clear, I will not speak of Lawyer X’s alleged conduct or express a view because I am not informed, and I am not prepared to add to the speculation. Instead, I will write of the work that criminal defence lawyers do to show readers that Lawyer X’s conduct, if true, is nothing like what we do. I will do this by explaining an average day for me as a criminal defence lawyer employed by Doogue + George Defence Lawyers. Part of the reason for writing this blog is that some of my personal friends, who do not work in the law, have asked me if all criminal defence lawyers make “secret deals” with the Police and are prepared to throw their clients to the wolves for their own financial gain.
Criminal Law – A Vocation
Like most criminal defence lawyers, I decided to pursue a career in criminal defence because I was guided by a strong desire to stand up for people accused of committing criminal offences against the might of the State. I also believe in the presumption of innocence and that every person who lives in our democratic State has a right to a fair trial.
I applied for a role at Doogue + George Defence Lawyers because this firm shares my values of criminal justice and providing equal and quality representation to all people regardless of their social or economic status.
I meet with my clients before their Court date to discuss the “brief of evidence” prepared by the Police. The brief normally contains witness statements, CCTV footage and photographs. I get my clients’ instructions in relation to the Police allegations, and I advise my clients of the possible outcome if they decide to either contest the charges or plead guilty.
It is important to be honest and straightforward during conferences with clients. This sometimes means saying – ‘by pleading guilty to these charges, you are facing a gaol sentence’. Such advice is never easy to give, especially to the many nice clients I have who have just made a silly mistake or bad choice.
It is also important to carefully explain the Court process to my clients because I understand that Court is stressful and foreign to most people. I find that television shows and movies, sometimes make it difficult to shift clients’ understanding of the Court system.
If my clients are charged with uncommon offences or there are obscure circumstances surrounding the alleged offending, I spend time reading legislation, case law and ask my colleagues for guidance on how to proceed with the matter. This is sometimes time consuming because the answer is not always straightforward.
Representing Clients in Court
I appear on behalf of clients charged with criminal offences in Courts across Victoria daily. This includes appearing in: bail applications, plea hearings, IVO matters, County Court appeals etc. A major part of my job is to speak with Police Informants (this is the investigating Police member), Police Prosecutors (the Police members who prosecute matters in the Magistrates’ Court) and solicitors from the Office of Public Prosecutions. During these discussions, I request evidence which may confirm my clients’ innocence such as CCTV footage or witness statements, I challenge evidence which has been gathered unlawfully or does not establish my client’s guilt beyond reasonable doubt with the aim of trying to convince Police Prosecutors or the OPP to withdraw charges that they cannot prove.
This is not a ‘negotiation’ process in the traditional sense of offering one thing for something else such as what you might expect in the sale and purchase of real estate or a car. I must use my knowledge and experience of the rules of evidence to make a forensic decision as to which charges the Police can prove and which charges they cannot prove and advise my clients accordingly. If I form a view that none of the charges can by proven, I have an obligation to my client to try to convince the Prosecution to withdraw the charges. Ultimately, I am bound to act on my clients’ instructions and I must set the matter down for a contested hearing if my client decides to contest the charges or book the matter in for a plea hearing if my client instructs me to plead guilty.
Naturally, there are times when I disagree with my clients’ instructions, but it is not my case to run. I can only advise my clients of the possible outcomes of taking one approach over another. I cannot and do not force people to enter pleas of guilty or to contest matters. Furthermore, I cannot and do not do things which conflict with my clients’ instructions.
I then appear in a Court room before a Magistrate to either present a plea in mitigation if the matter resolves or book the matter in for a contested hearing if my client elects to put the Police to their proofs.
When appearing in Court, all lawyers have an overarching obligation to not mislead the Court. Therefore, I cannot present submissions to the Court which I know are false. I also have an obligation to correct any errors that I make. For example, if I am appearing in a plea hearing and I submit to the Court that my client is 21 years old and should be sentenced as a ‘young offender’, I must correct this error if my client is in fact 26 years old. Preparation is key to reduce the risk of making errors.
After a day in Court and conferencing with clients, I dedicate some time to reading case law to stay up-to-date with any changes in the law and its application. The law is dynamic and frequently changes. For example, the Victorian Parliament introduced major changes to the bail laws in mid-2017.
This is my regular day as a criminal defence lawyer at Doogue + George Defence Lawyers. I hope this blog has given you a general insight into the role and responsibilities of a criminal defence lawyer.