The life of a defence lawyer. What makes us tick?
WHAT MAKES DEFENCE LAWYERS TICK
In my role as a defence lawyer I try to represent everyone equally and remain impartial. In particular, I live by the mantra that even the least respected in the community deserve professional and astute representation. The rationale behind this mantra is that without this right owing to the least respected, than it is also not available to the rest of us (or all of us for that matter). We are an egalitarian society, an equal one .
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Recently I was asked to explain how the above statement can be justified in light of the defence lawyer who has to represent an accused child sex offender in Kogarah who reportedly while on parole raped a 7-year-old girl. To read the article please click here.
Our comments were also sought in respect of a police officer who drew his gun on a disability pensioner and capsicum sprayed her dog, in what was later described by a magistrate as a “gross overreaction”. Click here to read the full article.
My response was long and delayed. I started by saying I like all decent law-abiding people but am horrified and shocked by the media reports. Moreover, if found guilty or if he pleads guilty, I must say that he as an offender is in the worst category of his type and deserving of the most severe punishment. In the meantime, however, I reject a suggestion posted on Facebook and discussed in our conversation that someone murdering or killing him would not solve anything and emphasised that we must let the course of justice do its thing. The same notion I would like to think would apply to Jayard Hayne who was released on bail in the early hours of Tuesday morning after being charged with aggravated sexual assault and will face court next month at Burwood Local Court. Needless to say, a person is innocent until proven guilty.
I was then asked:
“who (apart from sex offenders) do I consider to be the worst clients I have to represent”? This was quickly followed by the most common question I’m asked which was “how can you represent someone who you know is guilty”?
I thought about these questions for a while and pondered if I should give the long legal answer or the short human answer. The short human answer is that it can be at times challenging to be a defence lawyer, especially when representing bona fide psychopaths, narcissists, genuine murderers and rapists, those who for whatever reasons prey on our elderly and genuine robbers and thieves.
However, I then reminded myself that everyone born into this world no matter how bad has a story, mitigating issues to air and are owed at the very least certain inalienable human rights.
The long response I gave which is probably more correct is as follows:
- Everyone is innocent until proven guilty. This is a well-known concept which is why a charged person awaiting determination of their matter is referred to as the “accused” rather than the convicted;
- Guilt, and advice on guilt, requires seeing and considering all the evidence. If a person on the evidence should plead guilty, I will give my advice that this is what I recommend they do. The decision is then a forensic decision for the client to make;
- I am almost always bound by the client’s instructions and not my disgust at the alleged or actual crime. So long as there is no conflict and the defence case is not frivolous and vexations than I act according to those instructions;
- I am not the decision maker in terms of being able to punish guilt. It is not my role to usurp the Judiciary. In fact, I would fall into error if judged someone guilty based on my gut opposed to available evidence; and
- Finally, I do live by the mantra that even those who are guilty (either by way of conviction on plea or after trial) still have the right to have a lawyer put forward the best case in mitigation of sentence possible. As such even in these situations I always have the obligation to provide the best type and kind of representation and quite honestly and with peace of mind leave the decision maker/s to do their job.
THE UNKNOWN TRUTH OF A DEFENCE LAWYER
While this may come as a shock to most people, the bigger problem for me in my role as a defence lawyer is that I have clients who come to see me who seem to think they are guilty and think they should plead guilty where realistically upon an evaluation of the evidence and available defences they are in fact Not Guilty. In this sense I note Not Guilty and Innocence are two very different concepts and an accused person can be both “Not Guilty” and “Not Innocent” at the same time. Typical examples of being Not Guilty is where the elements of the charge are not made out or there is a viable defence which would suggest there is no provable guilt. For a list of all defences please click here.
In fact oftentimes I am having to point to clients if people “think” they “may” be guilty but are not sure than this is an indication that doubt exist in their own mind. If this doubt is shared by the decision maker/s in the court and its reasonable according to law then they’re actually “Not Guilty” and there need for professional legal advice is paramount .
In my view while much scrutiny comes with the practice of Criminal Law it is in fact a very honourable duty which provides a great service to the greater community. Invariably it is a matter of enforcing inalienable Human Rights and looking after the least respected. This at times may require such audacious sentencing submissions such as “Your Honour my client suffers from narcissism or is a psychopath” or it may be explaining how a certain disease makes them act in ways healthy people don’t.
Alternatively, and without excusing conduct it might be tendering a report which shows the victim of sexual abuse later went on to become an abuser and/or otherwise exposing to the Court that there are multiple layers of disadvantage to an offender which may provide some context to their offending. Sometimes having to say such things is difficult whereas not saying them may make us negligent. All the above things taken in and out of context makes us lot of Defence Lawyer “Defenders of Human Rights” and to be honest I would not ever have it any other way.