WHAT IS A DEFENCE LAWYER, AND HOW DO THEY SLEEP AT NIGHT?

By Rowan King, Principal Lawyer at RK Law


My name is Rowan King, and I am a defence lawyer.  I am often called upon to help people who are involved in criminal law matters.

I do not mind who they are or what it is alleged they have done, I put those things aside and focus specifically on the burden of proof and the evidence in each and every case.  As such, I have been involved in some of the highest profile cases in Queensland.

I passionately defend my clients in any court or tribunal in Queensland.  At times, I have been required to fearlessly take on “unpopular” cases.  I am tasked to speak up for those who cannot speak for themselves and to ensure justice for those who feel crushed, helpless and hopeless in our legal system.  You will see reading this article that I love my job and my role in the administration of justice.

How do you lawyers sleep at night?

When I tell people what I do for a living, I am often asked, “how do you lawyers sleep at night knowing you help bad people?”

In response I will often ask questions to the effect:

  • what if they are not “bad” but they just made a horrible mistake?
  • how can the government prosecute someone I know to be innocent?”; or
  • how can I sleep at night if my client is wrongly convicted?”.

The next logical question I am often asked is, “how do you represent someone you know is guilty?”.

The issue with this question is that it assumes the lawyer “knows” the defendant is guilty.   Sometimes a lawyer may “suspect” a client is guilty, but the law says that lawyers must:

  • avoid personal bias;
  • follow all lawful, proper and competent instructions; and
  • act in the best interests of a client.

The rules about fair trials and due process still apply even when the evidence may appear to be “overwhelming”.

John Grisham has some great quotes on justice.  He said this in one of his legal thrillers:

Do we really want fair trials? No … We want justice and quickly.  And Justice is whatever we deem it to be on a case-by-case basis”.

This presumption of “innocence” is easy to stomach when we speak of victimless crimes, such as possession of a small amount of cannabis, or failing to vote in an election.  However, it is something that is more difficult to stomach when a person has sustained a significant injury, acquired long term deformity from the alleged offending, or even worse if someone has died.

HUMAN RIGHTS:

As Queenslanders, we have a number of legislated human rights.  One of the rights we enjoy is the right to be presumed innocent until proven guilty, according to law.  This means that a person charged with a criminal offence is entitled, without discrimination, to the minimum guarantee that they are provided:

  • The particulars of the charges against them.
  • The nature and reason for the charges; and,
  • Time to prepare a defence.

Another basic human right in Queensland is that a defendant cannot be compelled to testify against themselves or to confess their guilt.  This means if a defendant chooses to plead “not guilty”, the Police must prove the person’s guilt beyond a reasonable doubt, by pointing to relevant and admissible evidence.

UNTIL PROVEN GUILTY – “ACCORDING TO LAW”

Despite what the Police brief says, there are many times where a client will “maintain their innocence” by instructing you that:

  • it “wasn’t them”,
  • they “didn’t do it”,
  • they “were provoked” (when the defence is available),
  • they were “acting in self-defence”, or
  • The police cannot actually prove the elements that make up a charge.

It is extremely difficult when you believe your client is innocent because one mistake by me could result in them spending a long time in prison, or ruin their chances of future employment etc. Thank goodness for the court of appeal, but at the end of the day, despite my feelings about a matter, if a client instructs they are not guilty of an offence, then I must put aside my feelings and beliefs, and advance their interests.

DO THE POLICE ALWAYS GET IT RIGHT?

It is clear that the Police Service and the other executive branches who lay charges against people often get it right.  They have the right person, and there is clear evidence they are guilty as charged.  For example, there may be CCTV footage that shows the offending, or the cumulative effect of a number of circumstances show the only possible offender was the defendant charged.

There are, unfortunately, times that the Police get it wrong due to several reasons (this is obviously not an exhaustive list):

  • The information provided to the Police by witnesses appeared compelling but was not true.
  • The police think a crime has been committed, but it has not.
  • Someone may have done something that appeared illegal, but they had a defence at law.

It is for these types of cases that defence lawyers primarily exist.  These are also the cases where we receive the most job satisfaction (when successful) or lose sleep (when unsuccessful).

Most people would agree that Police have a difficult and often dangerous job.  They are under a lot of pressure when responding to crimes.  It is clear that the common theme from the above list is un-intentional error rather than a “conspiracy” against a person charged.  Given the significant sum of charges laid each year, it is my understanding that only a minute quantity are cases of “rogue policing”.

COMPELLING BUT NOT TRUE:

A recent case we were involved in where the “evidence was compelling – but not true” was a matter where the mother alleged the father had sexually abused the child.  This allegation was made at a time when the mother was losing the family law custody battle.

The child had no injury consistent with the allegations, made no disclosures when spoken to by Police, and the mother ultimately admitted she made it up.  If he had been convicted, he would have been an innocent person, who was “proven guilty according to law”, and would then be a convicted child sex offender.

In Queensland, the default position is actual imprisonment, and it is also a relatively lengthy term of imprisonment – not to mention being a registered sex offender for a crime they did not commit.

CRIME NOT ACTUALLY COMMITTED:

A recent case we were involved in where the police thought a crime was committed when it was not, involved a woman who they caught “red-handed” in possession of syringes.

Police charged her when they located the syringes during a search.  Whilst it “looked like a crime”, the law says you may possess a syringe provided it is in an approved container and they are no risk to the safety of others.

It was clear that these syringes where in an approved container and capped, and it was the officer simply misunderstanding the law around possession of syringes.

A CRIME WAS COMMITTED – BUT HE HAD A DEFENCE AT LAW:

An example of “a defence at law”, was a matter where a man had been punched by the defendant causing pain and discomfort.  The criminal law does not only punish; it protects as well. It does not expect Queensland citizens to be unnaturally passive, especially when their safety is threatened by someone else.

Sometimes an attacker may come off second best, but it does not follow that the one who wins the struggle has committed a crime. The law does not punish someone for reasonably defending himself or herself.  In this case, it was a single punch.

When police arrived the “victim” was on the ground holding his face.  All the witnesses said that the victim aggressively approached the defendant in a fighting stance and the defendant took one step back and in a “swatting” like motion, struck the “victim” in the face.  The jury accepted that the defendant was acting in self-defence as:

  • it was only 1 punch,
  • the “victim” closed the gap between himself and the offender,
  • the defendant was “retreating” at the time he threw the strike, and
  • the “victim” was observed to be belligerent and aggressive for minutes leading up to the alleged “assault”.

These are examples of cases where people in the community or media may “think” someone is guilty, but they were not actually guilty “according to law”.

WHAT IF THEY TELL YOU THEY ARE GUILTY?

A defence lawyer’s first duty is to the court and the administration of justice.  A solicitor must follow a client’s lawful, proper and competent instructions.  If it is the case that a defendant has told the lawyer they are guilty, but wish to maintain a “not guilty” plea, then a solicitor must not deceive or knowingly or recklessly mislead the court.

This does not mean they do not have internal struggles from time to time with these types of matters.  The matter is then subject to a process of Trial by Jury (or Magistrate/Judge) in accordance with the law.

In these cases, the Defence Lawyer is extremely limited in how they can run the case.  But remember, it is the defendant’s human right to take the matter to trial.  The Defence Lawyer must put aside their personal feelings and beliefs, and comply with the client’s lawful instructions.  Also, there are rules that say we cannot simply stop helping a client because we do not like them.

When a defendant has told the lawyer they are guilty but wish to put the prosecution to proof, the defence lawyer cannot simply:

  • Allow the defendant to give evidence that he did not do it; nor
  • falsely suggest that some other person committed the offence charged; nor
  • set up an affirmative case inconsistent with the confession the defendant made to the lawyer.

So if Jim and Bob are seen standing over a dead body, and Jim says to the lawyer in a conference that he killed the victim by shooting him in the head while Bob stood back watching, contrary to popular belief, the defence lawyer cannot suggest (or allow Jim to give evidence) that it was Bob that killed the victim, nor can the defence lawyer suggest, for example, that Bob stabbed the victim causing death.

PROSECUTION CAN NOT PROVE ITS CASE TO THE STANDARD REQUIRED BY LAW

A situation may arise where the offence occurred, but the Police cannot prove it was the defendant.  In those cases, despite the confession in conference with the Defence Lawyer, they can still argue that the defendant should not be convicted because the evidence as a whole does not prove that the client is guilty of the offence charged.  These situations are slightly trickier to navigate.

An example of this was a case I “lost” as a prosecutor.  There was a DV Order and the wife was assaulted by the husband.  Despite the assault, the wife did not want to press charges.  The Police proceeded with a charge of Contravention of the DVO as they didn’t need her permission to proceed.

I could easily prove the defendant assaulted his ex-wife, we had photos and footage.  However, I could not prove the essential element of the crime – that he had been served with the DVO.   Even though it was clear the defendant had “committed A crime”, I could not prove he “committed THE crime” as charged.  Because I could not prove he had knowledge of the order prohibiting the violence, he was acquitted of the charge.  At the end of the day – that was justice “according to the law”.

WHAT IF THEY ARE GUILTY? (found guilty or plead guilty)

When a client is actually guilty, either due to a plea or finding of guilt, the matter proceeds to sentence.

Defence Lawyers are still important in this space.  When sentencing offenders, the legislation sets out a number of matters the court must balance when imposing a penalty for the crime.  Two relevant sentencing considerations the Defence Lawyer will often point to are the “mitigating features” and the “personal history” of the defendant.

The other function of a Defence Lawyer in this space is to assist the Magistrate or Judge by providing submissions about the law to help the judge impose a just sentence.  This may involve tendering legislation and pointing to binding or persuasive case law that sets a “range” of sentences available.

There are sometimes cases where the magistrates or judges impose a sentence that is “excessive” for the crime.  It is in these cases that the defence lawyer may file an Appeal to review the decision by a superior judge.

Just because someone did something wrong, does not mean the punishment should be disproportionate to the crime.  For example, I recently won an appeal where a woman was fined almost $80,000 for her ex-husband’s failure to lodge his tax return.  The ATO could not find him, so they prosecuted her.  She was middle-aged, on Centrelink, and it was going to take 4,000 weeks (almost 78 years) to pay off the fine for a crime that she “technically” committed, but was actually committed by her ex-husband.

Sometimes it is the case that there is nothing nice that can be said about a client.  In these cases the Defence Lawyer will often concede that the facts are horrible, the injury was significant, and the defendant has an appalling inability to comply with the law.

Each case and each defendant are very different.

CONCLUSION:

Thank you for taking the time to read this post.  If you need a defence lawyer in your corner, contact RK Law today on 07 5437 2288 or click here to submit a website enquiry.

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