Television and movies often portray criminal practice as the most glamorous speciality within the legal profession. In fact, for many lawyers it is not an attractive option, probably because defending accused criminals can be seen as confronting and mostly low paying. Yet it is for these very reasons that the criminal defence advocate is usually taken as the paradigmatic example of why adversarial advocacy is necessary, is ethically justified and is fully deserving of our admiration. As one senior barrister put it:
The quality of the system is tested by how it treats the worst … The worst, most revolting criminal or terrorist or whoever it happens to be, if you can get a fair trial for them then everyone else is guaranteed a good run. But if the system starts taking short cuts because somebody is so bad, then it’s the system that’s coming apart.1 Lex Lasry QC quoted in Abbe Smith, ‘Defending the Unpopular Down-Under’ (2006) 30(2) Melbourne University Law Review 495, 508. Lasry was later appointed to the Supreme Court of Victoria and is now a reserve judge of that court.
Because the potential sanctions for criminal offences, such as deprivation of liberty, are so serious and the resources and capacity of the state to investigate and prosecute crimes so vast, our system insists that an accused should always have the opportunity to ‘put the Crown to proof’ of any charges brought against the accused. This effectively holds the state (including the police) accountable by making sure that the prosecution has strong enough evidence to justify a court/jury deciding to convict. It also maintains the integrity of the criminal justice system by making sure that the accused is treated fairly.
While there are unfortunately a few examples of dodgy lawyers in this area of the law, and this chapter includes reference to the cases that highlight these issues, we are completely convinced by examples set by the notable advocates who represent ‘undesirable’ or high-profile defendants in the interests of public confidence in the justice of the overall system. The lawyers who represent, for example, alleged terrorists, or alleged paedophiles, or those whom the media consider have protected these defendants, receive only limited support from the general public.2 For example, in 2021 New South Wales police officers targeted a small-town solicitor who was acting for a bikie gang member: Naomi Neilson, ‘Defence Lawyers Call on A-G to Protect Lawyers from Further Police Harassment’, Lawyers Weekly (13 April 2021) <https://www.lawyersweekly.com.au/biglaw/31122-defence-lawyers-call-on-a-g-to-protect-lawyers-from-further-police-harassment>. It is for this reason that they deserve the complete support of the wider legal profession. They are at the apex of a system that must insist on fairness to ‘the worst’ as much as to anyone, because who is sufficiently good or sufficiently bad can never be definitively known in advance.
The defence lawyer’s task is to represent the interests of their client. If a client pleads not guilty, defence counsel’s role is to ensure that their client is not convicted ‘except by a competent tribunal and upon admissible evidence sufficient to support the offence charged’.3 Róisín Annesley and Victorian Bar Council, Good Conduct Guide: Professional Standards for Australian Barristers (2019) 136 [9.41]. To advocate effectively, it is often argued that the defence lawyer must argue passionately, as if they really believe in their client’s case.4 On the other hand, the prosecutor in the criminal trial is probably the clearest example of lawyers being required to act as responsible lawyers – as ‘ministers of justice’ – rather than adversarial advocates:
[T]he role of the prosecution is by evidence to prove all relevant facts to the court and (if appropriate) by moderately presented and reasoned steps to argue that by application of the law to those facts, the rational conclusion beyond reasonable doubt must be that the accused is guilty … The prosecution must assist the court to arrive at the truth. It is probably the only role that an advocate can perform that is dedicated to the ascertainment of the truth.5 Nicholas Cowdery, Ethics and the Role of a Prosecutor (1997) 32.
Prosecutors have special duties of fairness because the prosecutor is an agent of the state, and it is not appropriate for a prosecutor to be adversarial in pressing for conviction. We discuss prosecutors’ ethical position in greater detail later in this chapter, but for now it is enough to recognise that as a state agent, the prosecutor generally has greater capacity and resources for investigating and prosecuting their case than has the defence.
The prosecution often has greater credibility with the jury. As representative of the state, it is the prosecutor’s job to present a fair case for conviction based on good evidence, not to argue for conviction (and a high sentence) with adversarial zeal.6 ASCR rr 29.1–29.3; Barristers’ Conduct Rules rr 83–95. Indeed the prosecutor could be expected to have a role in checking the misconduct of the police or other state agents, by making sure that their own assertions are reasonably capable of supporting a finding of guilt and carry weight (ASCR r 29.4; Barristers’ Conduct Rules r 86). Prosecutors also have various duties to share the evidence collected by the state with the accused in order to assist the accused and their lawyer to prepare a defence to the charges (ASCR rr 29.5–29.6, 29.8; Barristers’ Conduct Rules rr 87–89).
Thus the prosecution and the defence have essentially complementary roles as ‘officers of the court’ in criminal trials – the prosecution’s role is to present a fair case while the defence’s role is to test and probe it adversarially. The prosecution must demonstrate judgement and the defence must have courage. It is the combination of these virtues that make for a fair trial and a fair justice system more generally.
It is important to remember, however, that both prosecutors and defence lawyers work within a very imperfect system that is still addressing historical racism and sexism, is subject to political pressures and is constrained by limited resources.7 See, eg, Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 120, 121–5, 167–170, 700–2, 720, 767, 957, 1034–7; Andrew Boe, The Truth Hurts (Hachette Australia, 2021). See also ‘The Long-Term Costs of Underfunding Legal Aid’, Law Council of Australia (Web Page, 3 December 2021) <https://www.lawcouncil.asn.au/media/media-releases/the-long-term-costs-of-underfunding-legal-aid>. Further, a large number of criminal accused are afflicted by mental health and drug and alcohol problems; their actions reflect wider social problems as well as any criminal responsibility.8 Luke McNamara et al, ‘Homelessness and Contact with the Criminal Justice System: Insights from Specialist Lawyers and Allied Professionals in Australia’ (2020) 9(3) International Journal for Crime, Justice and Social Democracy 120–1. Some consider that criminal prosecution and defence are often better conceived as a matter of care as much as a matter of justice, and that our courts should, in many cases, adopt a more ‘therapeutic jurisprudence’.9 Liz Richardson, Pauline Spencer and David Wexler, ‘The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing’ (2016) 25(3) Journal of Judicial Administration 148; Wayne Martin, Reflecting on the Practice of Non-Adversarial Justice (Judicial Commission of New South Wales, 2018). In addition, the victims of crime have only relatively recently been recognised as having a particular and legitimate interest in ensuring the system works fairly and treats all participants with dignity; more reform is necessary.
These challenges arguably make the ethics of the individual lawyer more important: the under-resourced criminal justice system and the high stakes of criminal trials will sometimes encourage the cutting of ethical corners. At other times the system will clearly work an injustice, and criminal lawyers will need to be involved in advocating for reform.10 An example is Australia’s shocking record of First Nations deaths in custody: see, eg, ‘Joint Council Agrees to Accelerate Collective Efforts to Reduce Over-incarceration of Indigenous peoples … ’, Coalition of Peaks (Web Page, 16 April 2021) <https://coalitionofpeaks.org.au/joint-council-agrees-to-accelerate-collective-efforts-to-reduce-over-incarceration-of-indigenous-peoples-as-first-annual-partnership-health-check-acknowledges-successes-and-challenges-of-historic-part/>; Law Council of Australia, ‘Indigenous Justice Announcements Welcome, but Funding for Multi-faceted Response Needed’ (Media Release, 15 April 2021) <https://lawcouncil.asn.au/media/media-releases/indigenous-justice-announcements-welcome-but-funding-for-multi-faceted-response-needed>. Even when the system works as it should, criminal law work sometimes involves dealing with extremely disturbing material, and/or traumatised clients/victims, and this can lead to the lawyers involved experiencing ‘vicarious trauma’.11 Also known as ‘secondary trauma’. To remain competent and alert to ethical challenges, it is imperative that criminal lawyers (defence, prosecution and the judiciary) look after their mental health. Defence lawyers will also need to practise good client care, learning the skills of ‘trauma-informed practice’.12 Colin James, ‘Towards Trauma-Informed Legal Practice: A Review’ (2020) 27(2) Psychiatry, Psychology and Law 275. See also ‘Is Practising Criminal Law Bad for Your Mental Health?’, Law Report (ABC Radio National, 11 July 2017) <https://www.abc.net.au/radionational/programs/lawreport/is-practicing-criminal-law-bad-for-your-mental-health/8697446>. There is an obligation on the organisations for which lawyers work to provide appropriate systems of work and support for employees exposed to traumatic material in their work: Anna Verney, In Focus: Lessons on Vicarious Trauma and Wellbeing from a Royal Commission (Law Society of New South Wales, 2018).
A key task of defence counsel is to advise a client on the strength of the prosecution case against them. If counsel considers that case to be strong, they will advise their client accordingly, including advising on the sentencing discount available if the client pleads guilty early in the process.13 This is required under r 40 of the Barristers’ Conduct Rules. If a client is minded to plead guilty, prosecution and defence will often engage in a process of ‘plea bargaining’, more aptly described as ‘charge bargaining’ or ‘charge resolution’, in which they negotiate the charges to which a defendant will agree to plead. Often, the prosecution will agree to less serious and/or fewer charges in return for a guilty plea. A guilty plea leads to a sentencing hearing before a court.
Unlike in the United States, where prosecution, defence and the court ‘negotiate’ a sentence on plea, in Australia the sentence remains solely a matter for the court.14 Barbaro v The Queen (2014) 253 CLR 58. It is now a requirement in most jurisdictions that courts give some sort of sentencing discounts for early guilty pleas.15 See, eg, Penalties and Sentencing Act 1992 (Qld) s 13(2). In fact, the criminal justice system would likely collapse if all cases went to trial, or if defendants intending to plead guilty did so only at the door of the court after significant prosecution and defence/Legal Aid resources have been expended in preparation for trial.
Some have questioned the increasing move to ‘managing justice’ in this way. There are legitimate ethical concerns that sentencing discounts pressure a defendant into pleading guilty.16 See Editorial, ‘Sentence Discounts for Pleas of Guilty’ (2005) 29 Criminal Law Journal 69; Kathy Mack and Sharyn Roach Anleu, ‘Guilty Pleas: Discussions and Agreements’ (1996) 6 Journal of Judicial Administration 8. Some legal ethicists in the United Kingdom have characterised the criminal justice system reforms in that jurisdiction as undermining the adversarial process by unduly pressuring the accused to plead guilty and co-opting defence lawyers as partners in the quest for efficiency at the expense of zealous advocacy on behalf of accused: Mike McConville and Luke Marsh, ‘Adversarialism Goes West: Case Management in Criminal Courts’ (2015) 19(3) The International Journal of Evidence and Proof 172; Ed Johnston, ‘The Adversarial Defence Lawyer: Myths, Disclosure and Efficiency – A Contemporary Analysis of the Role in the Era of the Criminal Procedure Rules’ (2020) 24(1) The International Journal of Evidence and Proof 35. Further, why should a sentence be reduced merely because the defendant pleads guilty early? Why should the defendant be able to plead to a lesser charge (and so receive a lighter sentence) when the crime was horrendous? Over the past few decades in Australia these concerns have given way to (or, depending on your point of view, been balanced by) other competing concerns, explained by the guidelines for prosecutors in the NSW Office of the Director of Public Prosecutions (‘ODPP NSW’)17 ‘Prosecution Guidelines’, ODPP NSW (Web Page, 2021) <https://www.odpp.nsw.gov.au/prosecution-guidelines>. in this way:
4.2. Why charge resolution is important
The option of charge resolution in appropriate cases is necessary for the effective and efficient conduct of prosecutions. It relieves victims and other witnesses of the burden of having to give evidence, provides certainty of outcome and saves the community the cost of running trials. However, charge resolution must be based on principle and reason, not on expedience alone.
… The law recognises the benefits to the criminal justice system of appropriate early guilty pleas, and sentencing discounts are available in most cases to reflect their utilitarian value. The earlier an appropriate plea is offered, the greater the benefits to the offender and the community in general.
4.3. When is it appropriate that charge resolution occur
A matter may only be dealt with by way of charge resolution if it is in the public interest to do so. In determining whether a charge resolution is in the public interest, the following factors are to be considered, in addition to the public interest factors outlined in Chapter 118 Chapter 1.4 includes a non-exhaustive list of factors to be considered including ‘Offence-related factors’, ‘Accused-related factors’, ‘Victim-related factors’, ‘Sentencing factors’ and ‘Other factors’. [of the Prosecution Guidelines]:
1. the charge or charges to proceed appropriately reflect the essential criminality of the criminal conduct capable of being proven beyond a reasonable doubt and provide an adequate basis for sentencing
2. the evidence available to support the prosecution case is weak in a material way, even though it cannot be said that there is no reasonable prospect of conviction, and the public interest will be satisfied with an acknowledgment of guilt to certain lesser criminal conduct
3. the cost saving to the community is significant when weighed against the likely outcome of the matter if it went to trial
4. charge resolution will save a witness from having to give evidence in court proceedings, where the desirability of this is a particularly compelling factor in the case
…
…, the victim and the officer-in-charge must be consulted and their views properly considered, although the public interest is the overriding consideration.
Rule 40 of the Barristers’ Conduct Rules endorses barristers advising a client ‘in strong terms that the client is unlikely to escape conviction and that a plea of guilty is generally regarded by the court as a mitigating factor to the extent that the client is viewed by the court as co-operating in the criminal justice process’.
1. Can you envisage a situation where an overworked defence lawyer puts the case for pleading guilty too strongly, so as to avoid having to prepare for a contested trial?
2. What ethical approach do you think is most likely to avoid this situation?
3. In most jurisdictions a sentencing discount is available on the grounds of administrative convenience (although courts retain a discretion as to whether to apply the discount).19 LexisAdvance, Halsbury’s Laws of Australia (online at 6 July 2022) 130 Criminal Law, ‘Remorse and Plea of Guilty ’ [130-17130]. Is pressure to plead guilty applied for utilitarian concerns about public resources acceptable?
4. Are you convinced that the system (as reflected in the NSW ODPP Prosecution Guidelines) has struck the right balance between the competing interests of a defendant, the community and the victim in relation to its practice of charge resolution?
5. What might undermine this balance in practice? Consider, for example, the view expressed when, in 2005, New South Wales moved to further encourage sentencing discounts for early guilty pleas: ‘It is understandable that the NSW Government is keen to reduce the [high] number of pleas of guilty entered on the eve of trial … However, great care should be taken in introducing a system which may put unconscionable pressure on accused persons to plead guilty before they receive proper legal assistance and fully appreciate the nature of the case against them.’20 Editorial, ‘Sentence Discounts for Pleas of Guilty’ (2005) 29 Criminal Law Journal 69.
Sometimes a client will maintain their innocence but insist on pleading guilty, to ‘get the matter over with’ or for some other reason important to them. Reflecting on his work as a barrister instructed by the Aboriginal Legal Service (‘ALS’), Peter Hidden wrote in 1991:
Many older Aborigines [sic], especially from rural areas, have a long history of appearing without representation in magistrates’ courts, and their experience of the criminal justice system taught them that conviction follows arrest as the night follows the day. Even with legal representation, they cannot break the pattern of pleading guilty ‘and getting it over with’, regardless of the merits of their case; and it [is] understandable that they have no stomach for a fight which they are convinced they cannot win.21 Peter Hidden, ‘Plead Guilty and Get It Over With?’ (1991) Bar News reproduced in Appendix 1 to Peter Hidden, ‘Some Ethical Problems for the Criminal Advocate’ (2003) 27(4) Criminal Law Journal 191.
‘Convenience pleas’ as they are known are not an uncommon occurrence in some areas of practice.22 Benjamin Bickford confirmed in 2011 that the circumstances described by Hidden were often faced by ALS lawyers in regional practice: ‘Convenience Pleas’, Hunter Street Chambers (Web Page, 18 February 2016) <https://www.hunterstreetchambers.com.au/convenience-pleas/>. In 1995 the High Court held:
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. … A Court will act on a plea of guilty when it is entered in open Court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of free choice in the interests of the person entering the plea. There is no miscarriage of justice if a Court does act on such a plea, even if the person entering it is not in truth guilty of the offence.23 Meissner v The Queen (1995) 184 CLR 132 [141].
The NSW Court of Criminal Appeal explains that
the accused person’s exercise of free choice may ‘extend beyond that person’s belief in his guilt’ and includes situations such as the avoidance of worry or inconvenience, the protection of one’s family and even ‘the hope of obtaining a more lenient sentence than [the accused] would if convicted after a plea of not guilty …24 Loury v The Queen [2010] NSWCCA 158.
The responsibilities of the defence barristers in this situation are now clearly set out in Barristers’ Conduct Rules r 41:
41 Where a barrister is informed that the client denies committing the offence charged but insists on pleading guilty to the charge, the barrister:
(a) must advise the client to the effect that by pleading guilty, the client will be admitting guilt to all the world in respect of all the elements of the charge,
(b) must advise the client that matters submitted in mitigation after a plea of guilty must be consistent with admitting guilt in respect of all of the elements of the offence,
Some ethicists argue that it is sometimes naïve to characterise a defendant’s choice as ‘free and informed’ in light of the institutional pressure (for example, in the form of sentencing discounts) to plead guilty.25 In relation to guilty pleas by innocent people in the United States, the United Kingdom and Wales, see Rebecca Helm, ‘False Guilty Pleas and the Post Office Scandal’, Evidence-Based Justice Lab, University of Exeter Law School (Blog Post, 28 April 2021) <https://evidencebasedjustice.exeter.ac.uk/false-guilty-pleas-and-the-post-office-scandal>. Lee Bridges suggests that a defence lawyer should in some cases consider whether withdrawal of representation is necessary ‘to avoid implication in a perversion of the course of justice or substantial risk of a miscarriage of justice’.26 Lee Bridges, ‘The Ethics of Representation on Guilty Pleas’ (2006) 9(1) Legal Ethics 80, 100. Bridges recognises that withdrawal may negate the principle of client autonomy, deny the client legal representation and also place the client at risk of a harsher sentence if the matter goes to trial. He thus emphasises the need for the lawyer to ‘carefully … exercise professional judgement depending on the circumstances of each case’.27
Do you agree with Bridges’s concern about guilty pleas? How workable is Bridges’s suggested solution?
How does a lawyer defend the guilty client? Public incredulity over this issue usually points to a narrower question: can a lawyer ethically argue a ‘not guilty’ plea for a ‘guilty’ client? The profession says ‘yes’ on the basis that (1) in very few circumstances will a defence lawyer, faced with their client’s denial, be able to be absolutely certain of the client’s guilt and (2) guilt or otherwise is for the court to determine; it is the defence lawyer’s task to challenge aspects of the prosecution’s case with a view to uncovering any gaps in the evidence presented. One criminal defence lawyer described it this way:
[T]he role is to go into bat for your clients. You’re acting for them, you’re acting in their best interest, and you leave it to other people to make decisions as to guilt or innocence … We’re there for the accused people and to put their best case forward as best we can.28 ‘The Ethics of Criminal Lawyers’, Law Report (ABC Radio National, 12 November 2002) <http://www.abc.net.au/radionational/programs/lawreport/the-ethics-of-criminal-lawyers/3527274>. See also the discussion in Chapter 2 on the philosophical/ethical approaches to this issue.
In our system, a lawyer’s view of their client’s guilt or otherwise is not relevant to their role as defence advocate, unless the client admits guilt but still elects to plead not guilty – and in such a case, it is still possible to play a limited, legitimate role (discussed in more detail below) designed to put the prosecution to its proof beyond reasonable doubt. Where a client does not admit guilt and pleads not guilty, the lawyer is under a duty to defend the client irrespective of their opinion about the client’s guilt or otherwise.29 Annesley and Victorian Bar Council (n 3) 136 [9.41]. So, what is it like to represent a client who is pleading not guilty when you believe them to be guilty? Peter McGrath SC, who has worked as both defence and prosecution lawyer, answered this question as follows in a discussion on criminal practice and mental health on ABC Radio National’s Law Report:
You take the case that you’re given and you do your professional, ethical best in that particular case … You do have your own belief about whether you think someone did it or not, it’s impossible not to.
Often it’s easier in a way to represent someone who you think may be guilty, even if you are representing them and they are denying guilt. It is easier in that circumstance than to have the dreadful worry that, gosh … I really think this person didn’t do it, and the consequences … for the conviction of a person that you think may be innocent are of course truly horrible. … Everyone has strategies [to help them cope], you think, okay, at the end of the day these are my instructions, this is the evidence, I’ll do the best I can with it, and you take that professional step back and present things that way. But that too takes [its mental toll].30 ‘Is Practising Criminal Law Bad for Your Mental Health?’ (n 12). McGrath was New South Wales Deputy Senior Public Defender at the time of the interview. He was appointed New South Wales Deputy DPP in 2018.
There will be cases in which the role a defence lawyer plays sits very heavily with them. As we noted in Chapter 1, adversarial advocacy sees the suppression of one’s own individual moral opinions and consideration of general ethical concerns as a moral act in itself. The lawyer must sometimes turn off these other ethical considerations in order to fulfill their proper moral role as advocate for their client. But continued suppression of one’s own individual moral opinion comes at a personal cost. In the same Law Report discussion, psychiatrist Greg de Moore counselled lawyers to keep a broad perspective on the importance of the work they do when individual cases are particularly challenging.31 ‘Is Practising Criminal Law Bad for Your Mental Health?’ (n 12).
1. How might a criminal lawyer/prosecutor keep in mind the larger ethical or social justifications for their work when working on challenging cases?
2. How else might the lawyer look after their mental health?
Overriding the defence lawyer’s duty to their client is their primary duty to the court. A lawyer must not mislead the court, make up facts to assist a client’s case or allow their client to deceive the court. The following rules make this clear.
ASCR r 19. Duty to the court
19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.
19.2 A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.
ASCR r 20. Delinquent or guilty clients
20.1 A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
20.1.1 has lied in a material particular to the court or has procured another person to lie to the court;
20.1.2 has falsified or procured another person to falsify in any way a document which has been tendered; or
20.1.3 has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;
must –
20.1.4 (repealed)
20.1.5 refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.
If a client refuses to authorise their lawyer to inform the court of a deceit in the circumstances envisaged by these rules, do all advocates simply depart from the case and keep silent? The answer is unknown, but, should an advocate pretend they know nothing after learning from their client of falsified evidence, they would leave themselves vulnerable to future blackmail by that client. The reputation of a criminal advocate within criminal circles is too important to leave to chance. The concern not addressed by this rule is that, by refusing to continue to act in the absence of instructions to inform the court of a deceit, the lawyer effectively schools a deceitful client about what not to reveal to their next lawyer.
There are precise restrictions in ASCR r 20.2 on what an advocate can and cannot do if their client actually confesses guilt to them before or during a trial.
20.2 A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty:
20.2.1 may, subject to the client accepting the constraints set out in Rules 20.2.2–20.2.8, but not otherwise, continue to act in the client’s defence,
20.2.2 must not falsely suggest that some other person committed the offence charged,
20.2.3 must not set up an affirmative case inconsistent with the confession,
20.2.4 must ensure that the prosecution is put to proof on its case,
20.2.5 may argue that the evidence as a whole does not prove that the client is guilty of the offence charged,
20.2.6 may argue that for some reason of law the client is not guilty of the offence charged,
20.2.7 may argue that for another reason not prohibited by Rule 20.2.2 or 20.2.3 the client should not be convicted of the offence charged, and
20.2.8 must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.
There are cogent responsible lawyering and fairness justifications for the restrictions set out in ASCR rr 20.1 and 20.2 (and Barristers’ Conduct Rules r 79), as illustrated by the 1934 Northern Territory case of Tuckiar v The King.32 (1934) 52 CLR 335. In that case an Aboriginal elder was charged with the murder of a policeman in Arnhem Land. Tuckiar, or Dhakiyarr as he was and is now known in his community, had come upon the policeman as he (the policeman) was taking Dhakiyarr’s wife away in chains, during a search for other Indigenous people who were suspected of killing some Japanese fishermen. The action of the policeman in forcibly taking the woman (very likely with the intention of committing sexual assault) was against tribal law. Dhakiyarr speared him.33 As explored in the documentary Dhakiyarr vs The King (Film Australia, 2004). See also Tom Murray, ‘Dhakiyarr vs The King’ (Study Guide, National Film and Sound Archive of Australia, 2004). The documentary makes the point that two systems of law operated in Arnhem Land at the time and that Dhakiyarr did not realise that his law was no longer dominant. See also Nicole Watson, ‘In the Matter of Djappari (Re Tuckiar): Judgement’ in Heather Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing, 2014) 442.
Dharkiyarr was captured and tried in Darwin. However, it was only during his trial that Dhakiyarr communicated to his counsel, through an interpreter, the circumstances of the spearing. Counsel reacted hastily and unwisely – the now infamous advocate got to his feet in front of the jury and stated that he was in ‘the worst predicament he had encountered in all his legal career’ (code for ‘my client did it’) and needed to speak to the judge.34 Tuckiar v The King (1934) 52 CLR 335, 341. Counsel did not argue any defence on Dhakiyarr’s behalf throughout the case, and Dhakiyarr was subsequently convicted.
On appeal, the High Court unanimously held that advocates are bound to keep silent in such circumstances and continue with fully testing the prosecution case, although they must avoid putting their clients in the witness box to give affirmative evidence of innocence. Dhakiyarr won his appeal on the basis that his advocate’s statement to the Court had produced a substantial miscarriage of justice. He was released, never to be seen again.35 Dhakiyarr’s descendants have since claimed, though been unable to prove, that he was killed shortly after his release by those unhappy with the decision of the High Court: Dhakiyarr v The King (n 33). In 2003 there was a reconciliation ceremony between the descendants of Dhakiyarr and those of policeman McColl that culminated in the installation of nine larrakitj, or ceremonial log coffins, in the Supreme Court of the Northern Territory in Darwin. As a result of the appeal, however, it is clear that the duty of confidentiality binds advocates’ actions, provided the advocate does not actively mislead the court. The irony of Dhakiyarr’s case is that his own evidence, had he been allowed to give it, might have caused a modern jury to consider him not guilty, though this result was probably most unlikely before a jury in 1930s Darwin.
As the High Court explained in the Tuckiar case, the principles set out in ASCR r 20 are designed to retain, for even the ‘guilty’ client, some representation before the court, in the interests of ensuring that the continuing prosecution is as fair as possible. ASCR r 20.2 and Barristers’ Conduct Rules r 80 (in similar terms) properly allow the lawyer to continue to act providing they confine themselves to testing the prosecution’s evidence (ASCR rr 20.2.4, 20.2.5) and avoid leading affirmative evidence of innocence (ASCR rr 20.2.2, 20.2.3, 20.2.8). Evidence (for example, DNA evidence of identity) must still be tested because it might be flawed. If such evidence is flawed, perhaps the alleged ‘confession’ was also contrived or misunderstood.36 It is important to note the possibilities of misunderstanding by advocates as to what is said to them, different cultural and religious understandings of guilt that allow a defendant to say one thing while meaning another, and the fact that what a client thinks of as guilt will occasionally be otherwise, as in the case of someone who commits a criminal act (actus reus) but has insufficient mens rea (generally because of some form of diminished mental responsibility). Advocates must not put such clients in the witness box and ask them whether they are innocent or not, knowing their assertion of innocence will be false, because that is equivalent to actively misleading the court.
While advocates must not knowingly mislead a court (ASCR r 19.1, Barristers’ Conduct Rules r 24) they may be excused from doing so ‘unknowingly’, if correction is made ‘as soon as possible’ (ASCR r 19.2, Barristers’ Conduct Rules r 25). But an advocate ‘will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person’ (ASCR r 19.3). If a prosecutor fails, usually because their information is incomplete, to mention relevant prior convictions to a judge, the judge may give a lighter sentence to a defendant as a result. In fact, in ASCR r 19.10 and Barristers’ Conduct Rules r 33 there is a specific reference to the prior conviction circumstance, which permits silence by defence counsel, providing they truly remain passive and do not specifically ask a prosecution witness whether there are relevant ‘priors’, in the expectation of receiving a negative answer. The defence lawyer must not give any indication that their client has a cleaner record than is the case.
1. If a lawyer learns, after an acquittal of murder, of the guilt of a client, what should they do?
Most (15 out of 20) lawyers in a 2003 study by Ben Clarke37 Ben Clarke, ‘An Ethics Survey of Australian Criminal Law Practitioners’ (2003) 27(3) Criminal Law Journal 142. considered they are bound to keep the confidence. Some lawyers would wisely decide not to act for the person again, so as to ensure the client could not blackmail them on the basis of this confidence.38 ‘The Ethics of Criminal Lawyers’, Law Report (ABC Radio National, 12 November 2002) <http://www.abc.net.au/radionational/programs/lawreport/the-ethics-of-criminal-lawyers/3527274#transcript>. Chapter 4 mentioned the case of Alton Logan in the United States, where a considered concern for the confidences of a confessed murderer led to the imprisonment of an innocent person for 26 years.
2. What would you do if a client confessed to a heinous crime after acquittal? What might sway your decision one way or another?
While we accept that adversarial advocacy is generally the appropriate ethical perspective for defence work, some of the tactics supposedly ‘justified’ by reference to it are highly questionable.
While counsel are ‘entitled and obliged to deploy such skill and discretion as the proper preparation of their client’s interests demands’,39 R v Wilson [1995] 1 VR 163, 180. they have a duty to the court to conduct proceedings expeditiously. In R v Wilson40 [1995] 1 VR 163.– the trial and retrial of two businessmen charged with corporate fraud – the delaying actions of counsel for the defendant Wilson were considered by the Court to be responsible for the bulk of 22 months’ court time, while the prosecution was ‘deplored’ in the retrial for reading to the jury, ‘over some 10 calendar weeks,’ the evidence of the defendants at their first trial.41 David Parsons and Mark Taft, ‘Review of Judgments’ (1994) 68(9) Law Institute Journal 863. This is surely one of the worst cases of adversarial advocacy dominating responsible lawyering in the hope of wearing down a jury. The appeal court in this case reminded counsel that ‘whether the cost of legal representation be privately or publicly borne, counsel are to understand that they are exercising a privilege as well as fulfilling a duty in appearing in a court of law’.42 R v Wilson [1995] 1 VR 163, 180.
A variation on this problem (possibly pervasive in an under-resourced system where high caseloads are the norm) is that of the incompetent or inadequate defence, where advocates, for their own reasons, and despite ASCR r 4.1.1 (‘must … act in the best interests of a client’), do not attend properly to their client’s defence. For example, in R v Kina43 R v Kina [1993] QCA 480. there was a complete failure of defence counsel to aggressively or competently represent an Aboriginal woman who had killed her de facto husband after shocking and sustained provocation. Barrister Andrew Boe recounts another example: in one of the first criminal cases he worked on, neither he (then solicitor) nor the barrister were properly prepared, and the client was convicted of a serious offence – unjustly it appears. He learnt that ‘there are no shortcuts in criminal practice. Every case has to be attacked cover to cover.’44 Boe (n 7) 80.
Critics ask why defence advocates are allowed to attack, confuse and humiliate witnesses during cross-examination in order to defend someone. This question is particularly salient in relation to sexual assault trials, where guilt or otherwise will often be determined solely on the basis of whether the jury believes the complainant’s word. Louise Milligan’s book Witness45 Louise Milligan, Witness: An Investigation into the Brutal Cost of Seeking Justice (Hachette Australia, 2020). paints a disturbing picture of the cost of this practice on complainants in such trials: many are retraumatised by their experience, surely not an acceptable outcome for a ‘justice’ system and one that discourages many victims from pursuing complaints.
There are rules of conduct, common law principles and specific provisions of uniform Evidence Acts46 Evidence Act 1995 (Cth) s 41. addressing this issue, including the following.
21.2 A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person:
21.2.1 are reasonably justified by the material then available to the solicitor;
21.2.2 are appropriate for the robust advancement of the client’s case on its merits; and
21.2.3 are not made principally in order to harass or embarrass a person.
21.8 Without limiting the generality of Rule 21.2, in proceedings in which an allegation of domestic or family violence, sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence:
21.8.1 a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended:
(i) to mislead or confuse the witness; or
(ii) to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; and
21.8.2 a solicitor must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks.
21.9 A solicitor does not infringe Rule 21.8 merely because –
21.9.1 the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of a statement made by the witness, or
21.9.2 the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.
However, it appears that prosecutors and judges are reluctant to intervene to insist on compliance with the rules, in the case of judges out of fear their intervention may give rise to an appeal.47 Russell Boyd and Anthony Hopkins, ‘Cross-Examination of Child Sexual Assault Complainants: Concerns about the Application of s 41 of the Evidence Act’ (2010) 34(3) Criminal Law Journal 149, 158–62; Milligan (n 45) 347, 354. We note that judges are in position to stop inappropriate cross-examination and should be supported by appellate courts in doing so. Milligan has proposed that sexual assault complainants be represented by their own lawyer to help them navigate the system and to object on their behalf against overly intimidatory tactics. This proposal was supported by some of Milligan’s lawyer interviewees, but others consider it would skew the trial process.48 Milligan (n 45) 362. While the solutions may not be readily apparent, it is clear that the current system is working an injustice and needs reform.49 Ben Matthews, ‘Review: Louise Milligan’s Witness Is a Devastating Critique of the Criminal Trial Process’, The Conversation (online at 27 October 2020) <https://theconversation.com/review-louise-milligans-witness-is-a-devastating-critique-of-the-criminal-trial-process-148334>; Adam V Chernov, ‘Witness’, Law Institute Journal (April 2021); Roy Williams, ‘Louise Milligan’s Witness and the High Price of Seeking Justice’, The Australian (Sydney, 11 February 2021).
Some reform has occurred in trials involving child or ‘vulnerable’ adult witnesses. It is now witness intermediaries – independent and impartial participants who are speech specialists – who are drawing the line between acceptable and unacceptable cross-examination tactics in many Australian jurisdictions. Their task is to assess the witness and inform the prosecution, defence and the court about how to communicate with the witness in a way that is developmentally appropriate and most likely to elicit reliable evidence. Evaluation of the UK witness intermediary scheme shows that it has instigated a ‘positive cultural shift’ in the legal profession and has improved access to justice for vulnerable victims.50 Natalia Anatolak-Saper and Hannah MacPherson, ‘Vulnerable Witnesses and Victoria’s Intermediary Pilot Program’ (2019) 43(5) Criminal Law Journal 325, 335. Experience in Australia of witness intermediary schemes has been positive.51
Jury nullification is used as a defence tactic – that is, juries are distracted from considering cogent prosecution evidence by focusing them on emotive issues such as personal or racial intolerance of a prosecution witness or remote possibilities of crime-scene contaminants. Case study 5.2 illustrates how this problem can occur in practice.
Abbe Smith quotes the following defence lawyers discussing some of the tactics they use to try to ‘get their clients off’:
One lawyer was sceptical about her fellow lawyers’ regard for the truth when it comes to advocacy:
I think lawyers are kidding themselves when they say they care about truth. If someone has a drop of Aboriginal blood, I’ll milk it in court for all it’s worth. I will play on female stuff. I will use stereotypes as part of advocacy. … I know I’m not alone in this. …
[Another lawyer], and quite a few others, indicated that, as an advocate, he ‘would do everything allowed by law’, including ‘exploit[ing] prejudice on behalf of a client’. He saw this as a ‘tactical decision’, not an ethical one:
If it was a weak, piddling point, I wouldn’t make it. But if it was a decent point I would. … If there were blacks or Asians on the jury I would exploit a point to get to them – if the facts were there. I wouldn’t make it up. It’s not my concern whether I am perpetuating prejudice or misogyny or whatever. Political correctness is not an issue for the Bar. …52 Smith (n 1) 539, 545, 545 n 338 (citations omitted).
1. Is there a difference between a ‘tactical’ decision and an ‘ethical’ one?
2. Do jury nullification tactics break any rules? Does resort to stereotypes? What principles might apply to these situations?
Note: In Chapter 1 we suggested a three-step approach to ethical decision-making: first, be aware of the ethical issues that arise in practice, and of your own values and predispositions; second, make a choice between the range of standards and values that are available to help resolve those ethical issues; and third, implement that choice in practice. In considering the above tactics, begin by considering which of your values are relevant here, and then consider whether the above tactics of advocates are fair and proper enough in the adversarial advocate’s context, or whether they exceed this measure.
3. Is there a possibility such tactics might put the jury offside?
4. How do these practices fit with the idea of being an officer of the court and responsible lawyering?
Although many of the ASCR rules (rr 17–29) and the Barristers’ Conduct Rules (rr 42–48) do not expressly refer to the prosecution or defence of criminal cases, their context and application make it clear that the obligations of defence counsel in criminal trials are a primary concern.
ASCR r 17.1 (and in virtually identical language, Barristers’ Conduct Rules r 42) refers to the need for candour in its requirement for ‘independence’: ‘A practitioner must not act as the mere mouthpiece of the client or of the instructing practitioner and must exercise the forensic judgments called for during the case independently.’
This means that it is not permissible to simply do as the client wants – for example, lead evidence of an alibi that counsel thinks is very likely to be false – if the effect of that action would be to ignore the requirement for candour with the court. This rule makes the need for integrity crystal clear and reflects the proper priority of responsible lawyering over adversarial advocacy.
17.1 A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.
Another way that integrity and independence may be compromised is when a lawyer is in a position of conflict. We discuss conflicts of interest generally in Chapter 7, but it is important here to note that conflicts between the interests of two or more defendants in the same or related criminal matters are a real possibility. There may be no apparent conflict at the outset of a matter, but conflicts can easily arise during trials, which are ‘notoriously unpredictable’,53 R v Pham [2017] QCA 43, [59]. and also in sentence proceedings.
Nicola Gobbo is an infamous example of a barrister in a different type of conflict of interest – acting for clients while at the same time providing police with information disclosed to her during ‘confidential’ conversations with those clients. As discussed in Chapter 4, in acting in this way, Ms Gobbo engaged in what the High Court described as ‘fundamental and appalling breaches’ of her duties to her clients and to the court. The Victorian Director of Public Prosecution’s (‘DPP’) submission to the Royal Commission investigating the conduct of Victorian Police and Ms Gobbo noted the need to address another conflict of interest concern – ‘key criminal figures can control those around them by providing funds for, or briefing the same, legal counsel’.54 Director of Public Prosecutions (Victoria), Submission to the Royal Commission into the Management of Police Informants: Disclosure Issues (19 December 2019) [342]. The Victorian DPP recommended several changes to the ethical conduct rules, including:
clarify that regardless of who pays the fees, instructions should only be obtained from the client (or the client’s litigation guardian);
provide that where there is a conflict between the interests of the client and the interests of those paying the fees, the practitioner should only act in the best interests of the client, and should inform both the client and the person paying the fees of this; and
require that the practitioner return the matter or cease acting where there is a real possibility of conflict between the interests of the client and the interests of the person paying the fees.55
The Royal Commission has recommended ‘that the Victorian Bar … develops ethics guidance on specific conflict of interest issues and scenarios that can arise for criminal defence barristers’56 Royal Commission into the Management of Police Informants (Final Report, 2020) recommendation 81. and that the Law Council of Australia and Australian Bar Council develop specific guidance for solicitors and barristers on maintaining appropriate professional boundaries.57
1. Would it concern you if your client (charged with serious offences) wants to pay your legal fees in cash (that is, dollar notes)?
2. Would it ever be okay to socialise with criminal law clients? Does the answer to this depend on your perspective as an adversarial advocate/officer of the court/moral activist/proponent of the ethics of care?
ASCR r 17.3 and Barristers’ Conduct Rules r 44 require a practitioner to avoid making any submissions or expressing any views to a court ‘on any material evidence or material issue … which convey … the practitioner’s personal opinion on the merits of that evidence or issue’. This rule also supports lawyer independence by prohibiting lawyers from giving personal opinions about cases. It is no surprise that such a rule is needed, since we are all familiar with the stereotypical attorney who comments ‘zealously’ on witnesses and their evidence in closing addresses to a jury. But there is a fine line between negative comment on witnesses or evidence, having regard to objective criticisms that can be made of their credibility or recollections, and reflections on witnesses or their evidence that appear to target irrelevant matters or come from the private views of the advocate. The problem arises here not from the rule itself, but from its implementation.
17.3 A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue.
It seems there is a tendency among some advocates not only to cross the line by implying a negative personal opinion of a witness but also to undermine an opposing police witness in front of a jury – ‘to play the man, not the ball’, as the (sexist) phrase goes – by repeatedly asking them to give opinions on matters of fact and then self-righteously correcting the process by insisting that they did not intend to put any opinion in front of the jury. On occasion an appeal court will comment negatively on this tendency but by then the consequences for the advocate concerned are minimal and only those with an intimate knowledge of the case are aware of the possible transgression. ASCR r 17.3 and Barristers’ Conduct Rules r 44 suffer from a lack of comprehensive enforcement. We wonder whether the Council of Chief Justices ought to consider this point, recognising that the best witness to this sort of problem, and indeed all in-court conduct, is the trial judge.
The defence counsel’s conduct in R v Neilan (Case study 5.2) is an example of giving an opinion on matters of fact.
In the late 1980s, Mark Neilan was a successful veterinary surgeon in the Victorian town of Drouin, where he lived with his wife, Kathryn, and a young daughter, Sheridan. One night, according to Neilan, intruders broke in, took him outside and, while bundling him into the boot of his car, went to the main bedroom and apparently shot Kathryn, then four months pregnant, in the head. Sheridan was left undisturbed in bed. A neighbour found Neilan locked in the boot of his car the following afternoon. As soon as he was released from the boot, he entered the house and exclaimed, ‘Oh Kathy, oh no’, when he saw her body. A search for the intruders or any physical evidence of their presence in the house revealed nothing, though a break-in at Neilan’s nearby veterinary practice in the town, which apparently occurred on the same night, resulted in some money and a small quantity of Valium disappearing.
Neilan later made various inconsistent statements about when he had first seen the intruders on the night of the murder. The police came to disbelieve his version of events, and charged him with his wife’s murder. He was bailed, and then two strange things happened. First, some weeks after his release on bail, Neilan claimed to have positively identified one of the intruders at Chadstone shopping centre, prepared a sketch of the sighting at his own expense and advertised for anyone who might know the face. Second, about nine days after the advertisement appeared, one of Neilan’s dogs, a Border Collie, was shot and killed while Neilan was apparently away from home. The bullets came from a semi-automatic .22 rifle, the same type of gun that had been used to kill Kathryn – a gun that had not then and has never since been found. Neilan asserted that his advertisement had provoked the murderers into killing his dog as a warning to him to leave the murder alone, but the police believed that the incidents were manufactured by Neilan to support his story that the intruders, looking for drugs and money in the area on the night of the offence, were responsible for the killing. The major difficulty for the police, however, was that they could not suggest, let alone prove, any motive at all for Neilan to murder his wife.
When Neilan was eventually brought to trial, he asserted through his counsel that he knew nothing more about the death of his wife than he had already indicated. He declined to give personal evidence in his own defence but did call other evidence. His counsel relied on the lack of motive, witnesses or confession, and concentrated on characterising the prosecution case as entirely circumstantial, even prejudicial and vindictive on the part of the police. Nevertheless, Neilan was convicted.
Of ethical significance in this case is the effort to which defence counsel went to criticise the police witnesses. Neilan was facing the real hurdle of persuading the jury that he was innocent, while at the same time declining to give evidence about a matter that only he could clarify: what happened on the night. A formidable task therefore lay ahead of defence counsel and a device of some sort was needed to capture, or rather divert, the jury’s attention. Counsel attempted to persuade the jury that the police, lacking a motive, had been engaged in nothing more than a series of speculations about what really happened, leaving them with the impression that no one could be certain of events on the night of the murder. In the event, however, this strategy failed – possibly because the silence of the defendant was just too much for the jury to swallow.
Neilan unsuccessfully appealed his conviction on a number of grounds and in the course of the Court of Criminal Appeal’s judgment, their Honours referred to the defence strategy of distraction or nullification:
A very strong attack was made by the defence on Noonan [a police witness]. It was suggested to him that he had shut his eyes to everything that was in favour of the applicant and assumed his guilt … that he had put forward and acted upon theories with regard to the crime which were far-fetched … It was not that Noonan sought argumentatively to support the Crown case or attempted to introduce tendentious matter: senior counsel for the applicant forced him to express opinions and in effect to debate with him a number of questions … The cross-examination was highly unusual, amounting as it did on occasions to a debate between the police officer and counsel, and moreover a debate which was of counsel’s making.59
There is a rule of evidence that witnesses, other than experts (and the police witness Noonan did not qualify as an expert in this case), must confine their evidence to factual observations of which they have personal knowledge. Knowing this rule only too well, counsel for Neilan invited the police witness to express an opinion on an issue of fact and, when the witness, after having been exposed to earlier questions of this type, duly provided that opinion, counsel immediately applied for discharge of the jury.60 See R v Neilan (Victorian Court of Criminal Appeal, Young CJ, Brooking and Marks JJ, 5 April 1991) 68. Although the request was refused by the trial judge, the seed could have been sown with the jury that, on the basis that opinion evidence had been given, there were other police theories about the crime and any of these theories, in the ‘real’ minds of the police, were all contenders. In other words, the jury was invited to reflect on the possibility that the police were not certain whether the defendant was the murderer.
The Court of Criminal Appeal considered whether the trial judge ought to have reined in defence counsel or done more to counter the effects of the cross-examination, before deciding on balance that the jury had other bases on which to determine that the defendant was guilty. However, the Court was most critical of the strategy of the defence and said so at length, because this strategy of persistent invitation to the police to give opinion evidence, knowing such evidence was arguably inadmissible, was designed only to poison the jury’s mind as to the motives of the prosecution.
As with so many other cases where counsel take an ethically suspect stance, however, appeal courts tend to confine themselves to criticism within the case context and rarely refer matters to the legal profession regulators for investigation as to whether any misconduct that may warrant disciplinary action has occurred.61 Advocates are not liable for any negligence in respect of their behaviour in court – see discussion of advocates’ immunity from suit in Chapter 6.
Imagine you were defence counsel for Neilan.
1. Given the facts set out above, what instructions do you think it is likely you would have received from your client?
2. What would have been your advice to the defendant as to the best approach to take to the defence of his case?
Assuming your client was insistent on pleading ‘not guilty’:
3. Would you think it appropriate to criticise the police for their lack of a motive for the killing?
4. Would you try to persuade the jury that the police were targeting your client unfairly or casting around for a defendant – any defendant – without any real idea as to who was responsible?
If you thought it appropriate to point out to the jury that the police had nothing absolutely ‘concrete’ on your client:
5. Would you think it acceptable to point to an ulterior motive by the police and to do so by highlighting their opinions, rather than the facts, about the evidence?
6. In representing Neilan, would you see yourself as an adversarial advocate (and obliged to make serious distracting allegations about the police in order to create doubt in the mind of the jury) or someone concerned to ensure that the jury deals only with admissible evidence in making their decision?
7. Is the second option consistent only with a responsible lawyer, or could an adversarial advocate, concerned not to overdo it with a jury, be content just to point firmly to the lack of both a motive and conclusive evidence of guilt?
8. Is it simply necessary for defence counsel (in both a consequentialist sense and in the interests of fairness when an individual is faced by state prosecution) to point to everything that might derail that prosecution?
Recognition of the social evil that would arise from undefended62 It is not uncommon for a person charged with a minor offence to not have legal representation during a hearing before a magistrate. criminal trials lies in large part behind the strength of adversarial advocacy. The paradoxical cultural reverence for the unflinching and fearless defence counsel who takes on the very unattractive or vulnerable client is cited again and again.63 See Smith (n 1). It is no surprise therefore that lawyers tend to think that adversarial advocacy is the preferred ethical type.64 In trials of the ethics self-assessment tool set out in the Appendix: Part 1, a small majority of respondents indicated a preference for adversarial advocacy over other types. See Adrian Evans and Helen Forgasz, ‘Framing Lawyers’ Choices: Factor Analysis of a Psychological Scale to Self-Assess Lawyers’ Ethical Preferences’ (2013) 16(1) Legal Ethics 134. At its core, adversarial advocacy embodies a deep professionalism and a fervent passion for fairness for which lawyers are often justly praised, as we highlighted in the introduction to this chapter. The ‘cab rank’ rule in the Barristers’ Conduct Rules that obliges barristers to defend anyone charged with a criminal offence if they are competent in the area and available, and their fee can be met,65 See Barristers’ Conduct Rules rr 17–18. is regarded as a norm of practice: full-time advocates shall accept all comers as clients in all matters (civil as well as criminal).
Significantly, there is no equivalent ‘cab rank’ rule for solicitors set out in the ASCR, and the validity of this ethical norm is perhaps not as easily justified as it used to be, even when defending alleged criminals. In practice, a barrister who finds a defendant unattractive will be tempted to pretend that they are unavailable in order to avoid the ‘cab rank’ rule. A few barristers will openly say that they find the case repulsive and simply defy the rule, risking a disciplinary prosecution, although there are few, if any, disciplinary cases alleging breach of the rule. Without consistent enforcement, the ‘cab rank’ rule is really a guideline, even if its fundamental importance remains.66 See Janie Plant, ‘The Cab Rank Rule’ (2017) 44(1) Brief 20 for differing views on whether the ‘rule’ should remain a rule.
Barristers who are compelled by their character to say that their values, ethical preferences or their mental health would not allow them to represent a particular client to the best of their ability are put in an unenviable position by the ‘cab rank’ principle. It would be psychologically and ethically healthier for the Bar and barristers to formally allow exceptions to the ‘cab rank’ rule where a barrister has a conscientious objection to representation of a particular defendant.
Prosecutors represent the Crown in criminal cases – that is, they present the case in court against an accused person.67 In Australia, cases involving minor criminal offences are prosecuted by police prosecutors (except in the Australian Capital Territory). More serious criminal offences are prosecuted by the various Commonwealth, State and Territory Directors of Public Prosecutions (‘DPP’).
It is also the prosecutor’s duty to hold the police accountable for the way they use their powers,68 Once he learnt of it, the Victorian DPP considered it his duty to disclose to several convicted persons the fact that Nicola Gobbo (their lawyer) had also been a police informant. This was opposed by the police, which led to court proceedings ruling in favour of disclosure: Royal Commission into the Management of Police Informants (n 56) 12–13. all the more so now that police and other agents of the state operate with ever-widening coercive powers of investigation.69 Rebecca Ananian-Welsh and George Williams, ‘The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia’ (2014) 38(2) Melbourne University Law Review 362. See also David Brown, ‘Breaking the Code of Silence’ (1997) 22(5) Alternative Law Journal 220, 222 (asking why prosecutors and lawyers did not speak up about massive police corruption in New South Wales during the 1980s and 1990s).
Prosecutors face choices in the exercise of the prosecutorial function and, as always, those choices are value-driven and ought to reflect the rule of law. For example, in deciding whether to prosecute, prosecutors exercise a discretion. In each case, they must be satisfied that:
1. there is sufficient evidence to prosecute the case; and
2. it is evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest.70 ‘Prosecution Policy’, CDPP (Web Page) <https://www.cdpp.gov.au/prosecution-process/prosecution-policy>. ‘Although both these elements exist in each [Australian] jurisdiction’s guidelines, there are differences in how they are structured and whether they are framed positively or negatively. Additionally, some jurisdictions provide further guidelines relating to the decision to prosecute particular offences or offenders, and all the guidelines contain a list of factors that should not influence the decision to prosecute’: Natalie Hodgson et al, ‘The Decision to Prosecute: A Comparative Analysis of Australian Prosecutorial Guidelines’ (2020) 44(3) Criminal Law Journal 155, 159.
The prosecutions of whistleblowers Richard Boyle, David McBride, Witness K and Bernard Collaery (see Chapter 4) have been critiqued for several reasons, including that they are not in the public interest. In relation to Witness K and Collaery, former NSW DPP Nicholas Cowdery publicly expressed his opinion that the prosecutors were wrong to deem prosecution to be in the public interest, and that the prosecutions harmed the public interest by undermining public trust in the justice system and encouraging people to turn a blind eye in the face of official misconduct.71 Christopher Klaus, ‘Commonwealth Prosecutors Wrong on Witness K Case, Former NSW DPP Says’, The Guardian (online at 1 April 2021) <https://www.theguardian.com/australia-news/2021/apr/01/commonwealth-prosecutors-wrong-on-witness-k-case-former-nsw-dpp-says>. Prominent human rights barrister Geoffrey Robertson has described the prosecutions as ‘disgraceful’.72 Naomi Neilson, ‘“It Is a Disgraceful Prosecution”: Geoffrey Robertson Condemns Australian Government for Secret Trials of Bernard Collaery and Witness K’, Lawyers Weekly (online at 5 May 2021) <https://www.lawyersweekly.com.au/biglaw/31299-it-is-a-disgraceful-prosecution-geoffrey-robertson-condemns-australian-government-for-secret-trials-of-bernard-collaery-and-witness-k>. Likewise, prosecutors’ decision not to drop charges against ATO whistleblower Richard Boyle has been described as ‘profoundly wrong and unjust’ and against the public interest.73 Kieran Pender, Human Rights Centre quoted in Christopher Knaus, ‘Prosecutors Refuse to Drop Case Against Tax Office Whistleblower Richard Boyle’, The Guardian (online at 29 April 2021) <https://www.theguardian.com/australia-news/2021/apr/29/prosecutors-refuse-to-drop-case-against-tax-office-whistleblower-richard-boyle>. As noted in Chapter 4, in July 2022 the newly elected Labor Commonwealth Attorney-General directed the Commonwealth Director of Public Prosecutions to drop the charges against Collaery, but as at the time of writing, the charges against Boyle and McBride remain.
1. What do you think may have influenced the Commonwealth DPP (‘Cth DPP’) to proceed with charges against Witness K and Bernard Collaery? What may have convinced the Cth DPP that the prosecution was in the public interest? What about Commonwealth prosecutors in the case of Richard Boyle?
2. The ATO must consent to a prosecution under the Intelligence Services Act 2001 (Cth).74 Section 41. Would an indication of consent by the Attorney-General be relevant to the Cth DPP’s decision to prosecute in the public interest? If so, in what way? Is the Attorney-General a more accurate arbiter of public interest than the Cth DPP?
3. Given that the prosecutions of Witness K and Collaery concerned alleged behaviour by a previous Coalition government, was the then Attorney-General, as a member of the successor Coalition Government, in a position of conflict of interest in relation to the decision to prosecute?
4. ‘Witness J’ is a former military intelligence officer who was charged with, and pleaded guilty to, the disclosure of confidential information. He was sentenced and served out a sentence in the ACT gaol ‘without any public knowledge, due to secrecy imposed by the National Security Information Act (NSI Act) and orders agreed to by commonwealth [sic] prosecutors, the [Commonwealth] attorney general and Witness J’s lawyers’.75 Christopher Knaus, ‘Secret Australian Prosecution “Unprecedented” and Must Never Happen Again, Watchdog Told’, The Guardian (online at 4 May 2021) <https://www.theguardian.com/australia-news/2021/may/04/secret-australian-trial-unprecedented-and-must-never-happen-again-watchdog-told>. The total secrecy surrounding this case, reminiscent as it is of totalitarian regimes, has shocked many observers. What ethical deliberations do you think might have persuaded the prosecutors, defence lawyers and judges involved that they should take part in this secret procedure?
5. In the United States the chief prosecutor in most states is elected in a public election. In what ways might this influence the exercise of the prosecutor’s discretion? Is this a good thing?76 Siddhartha Bandyopadhyay and Bryan C McCannon, ‘The Effect of the Election of Prosecutors on Criminal Trials’ (2014) 161(1–2) Public Choice 141.
ASCR r 29 (and Barristers’ Conduct Rules rr 83–86) deal specifically with prosecutors’ duties during a trial or sentencing hearing. ASCR rr 29.1–29.3 set out the approach that a prosecutor should take in arguing their case.
29.1 A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
29.2 A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.
29.3 A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
Some argue that the interests of the state and the safety of its citizens have never been so threatened (by organised crime, terrorism etc) and that a successful defence of almost any defendant is part of a social disease rather than a check on over-zealous state power. But we suggest there is a longer term and more significant threat to public security if the proper ethical balance between prosecution and defence is not maintained.
Whatever the current cultural push to achieve convictions at all costs, whatever the personal attraction of a successful prosecution, and regardless of popular pressure to ‘safeguard’ person and property, there is no alternative in a democratic society to a balanced prosecution process. If the prosecution function is allowed to become partisan, the burden of proof will subtly shift to the defence, and the power of the state will prove inexorably more difficult to check. Prosecutors are supposed to stop at a ‘full and firm’ presentation of the case; they must not ‘inflame or bias the court’ (including the jury) against a defendant; and they must ‘believe on reasonable grounds’ in the propriety of their arguments. All of these safeguards have been put in place because earlier generations have seen what can happen to individual autonomy and freedoms once the court system becomes just the instrument of the government of the day. Relatively successful democracies, embodying the principles of fairness, can become fragile quite quickly if these primary constraints on prosecutions are allowed to degrade.
The stereotypical pressure to get a conviction at all costs is not endorsed by the ASCR or the Barristers’ Conduct Rules and is completely unacceptable in the Australian legal system. Just how careful a prosecutor must be to remain a prosecutor and – as cultural pressure can increasingly dictate – avoid becoming a persecutor is made clear by ASCR r 29 in the context of sentencing.
29.12 A prosecutor:
29.12.1 must correct any error made by the opponent in address on sentence;
29.12.2 must inform the court of any relevant authority or legislation bearing on the appropriate sentence;
29.12.3 must assist the court to avoid appealable error on the issue of sentence; and
29.12.4 may submit that a custodial or non-custodial sentence is appropriate.
Barristers’ Conduct Rules r 95 has similar terms. All of these ‘informing the court’ functions are to be performed by prosecutors without inflaming the situation – that is, without becoming vindictive. Courts are not empowered by the rule of law to seek revenge but to impose proportionate punishment in a dispassionate atmosphere. Balance, judgement and proportion are required, not partisanship and retribution. Prosecutors with a clear sense of their role need to be wary of adversarial advocacy and pay consistent attention to nurturing these alternative ethical values in their advocacy. This is all the more important given that prosecutors are rarely disciplined for breaking the rules.
Courts will, however, censure prosecutors where appropriate. A case in point is Hughes v The Queen,77 Hughes v The Queen (2015) 93 NSWLR 474. See also MG v The Queen (2007) 69 NSWLR 20 where the prosecutor was enjoined by the Court of Appeal against conducting the retrial because of remarks made publicly about the former trial. an appeal against conviction on sexual assault charges. The NSW Court of Criminal Appeal dismissed the appeal but criticised the prosecutor for some comments in her closing address.78 The Court of Criminal Appeal set out 10 basic principles governing prosecutors’ conduct: (2015) 93 NSWLR 474, [265]–[275]. See also Kieran Fitzgerald, ‘Case and Comment: Appellate Authority on the Role of the Prosecutor’ (2018) 42(3) Criminal Law Journal 186. The Court was particularly critical of the prosecutor’s invitation to the jury to ‘tell that man what he did to those girls was wrong and it was criminal’:
[I]t is quite inappropriate for a Crown prosecutor to invite a jury to ‘tell that man’ that what he has done is criminal. Indeed, the delivery of verdicts in criminal trials in Australia is not a matter of juries ‘telling’ any accused – or indeed anyone else – anything; rather, it is a matter of juries, acting as unemotional and unprejudiced judges of the facts, determining whether or not the Crown has proven its case beyond reasonable doubt on the evidence placed before them, and returning verdicts accordingly.
Whilst one may accept that a Crown prosecutor, like any advocate, seeks to end his or her final address with a persuasive flourish, we consider that it was very wrong for the Crown prosecutor to conclude her address in that way. And if it happens to be the case that there is something of a practice of the final addresses of Crown prosecutors in New South Wales ending in that way, or in some similar way, it should cease immediately.79 Hughes v The Queen (2015) 93 NSWLR 474, [309]–[310].
The values of criminal advocates are probably as diverse as those of the rest of the community. There is no empirical evidence to suggest that criminal advocates are all adversarial all the time or, on the other hand, all responsible all the time, let alone inclined to take a universal morally activist approach and decline to act for any clients who refuse to ‘do the moral thing’.80 See Smith (n 1). It is more likely that experienced advocates will tend to take one ethical approach most of the time, varying their behaviour on occasion, when the complexity of the situation demands.
It is important to be aware of alternative ethical approaches to criminal trial work. Since the enforcement of rules of advocacy in Australia is more or less left by the courts to the legal professional associations, and advocates tend not to report one another, it is not unusual for their unethical behaviour to go unnoticed by the wider community – advocates are not very accountable for their ethical decisions.81 As discussed in Chapter 7, advocates are immune from civil suit (ie negligence) under the doctrine of advocates’ immunity and enjoy court privilege (ie they cannot be sued for defamation). They are still liable to professional discipline for breaches of conduct rules but this is rarely prosecuted. Further, since the dominant ethic in criminal practice is adversarial, in the interests of a necessary fairness between a powerful state and a single individual, it will often be the case that the alternatives – such as responsible lawyering and moral activism – will be invisible, unless lawyers explicitly bring ethical reflection to the foreground of their minds.
1. If you had the choice, would you prefer to be a prosecutor or a defence advocate? If the former, would you see yourself as entitled to prosecute with as much vigour and energy as an advocate for the defence?
2. Are you by nature more or less inclined to see the outcome of any contest as more important than the means used to get to that outcome? What implications does your answer have for the way in which you will tend to practise law?
3. Are you likely to have one set of values ‘at home’ and another set for ‘the office’? Could you, for example, be keen to be fair at home but go along with necessity at work? If so, will the differences make it hard to lead an emotionally integrated life?
Both defence and prosecution lawyers and those involved in drafting criminal laws and procedures play an important part in global, as well as national and local, security and justice. Their role is to make sure the law works fairly, legitimately and effectively according to the rule of law, without ignoring fundamental human rights. There are dangers when lawyers face pressures from morally corrupt regimes to be involved in legal systems that take away those rights. Lawyers have been in the past and will again be required to draft unjust laws and, as prosecutors, judges and even defence counsel, to implement those laws. This occurred in apartheid South Africa, Stalinist Eastern Europe and Nazi Germany.82 See David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Hart Publishing, 1998); David Luban, ‘Complicity and Lesser Evils: A Tale of Two Lawyers’ (2021) 34(3) Georgetown Journal of Legal Ethics 613. Even acting as defence lawyers in such a system might be seen as ‘legitimating’ a system that should only be resisted.
In liberal democracies the criminal justice system is under pressure as governments try to grapple with the threats of transnational crime, be it terrorism, drug or people trafficking, cybercrime or money laundering. Ethical challenges for lawyers in these situations are numerous.
One example is the ‘torture memos’ in the United States. In the aftermath of the 9/11 attack on the Twin Towers in Manhattan in 2001, government lawyers were instructed to provide written advice that it was legal under US law to conduct ‘interrogations’ of suspected terrorists in order to prevent further attacks. This advice was eventually disclosed83 See, eg, Clare Keefe Coleman, ‘Teaching the Torture Memos: “Making Decisions Under Conditions of Uncertainty”’ (2012) 62(1) Journal of Legal Education 81. and discredited when it became clear that the interrogators had used it to justify torture, but this episode exemplifies the pressure that government and military lawyers were under to come up with ways to justify practices that would otherwise be seen as human rights abuses.84 For a brief summary see W Bradley Wendel, ‘The Torture Memos and the Demands of Legality’ (2009) 12(1) Legal Ethics 107. See also Jane Mayer, ‘Annals of the Pentagon – The Memo: How an Internal Effort to Ban the Abuse and Torture of Detainees Was Thwarted’, The New Yorker (New York, 27 February 2006) 32; W Bradley Wendel, ‘Legal Ethics and the Separation of Law and Morals’ (2005) 91(1) Cornell Law Review 67. Many essential elements of fairness in the US criminal process were deliberately set aside, and this occurred in Australia as well.85 Ananian-Welsh and Williams (n 69). The Law Council of Australia was, to its credit, particularly critical of the Australian government’s acquiescence in arrangements by the United States to establish ‘military commissions’86 See Law Council of Australia, ‘Government Must Do More Over Mounting Criticism of Military Commissions’ (Press Release, 3 August 2005). in order to deal with non-citizens detained at Guantanamo Bay as suspected terrorists. The legislation establishing the commissions classified detainees as ‘unlawful enemy combatants’ so as to deny them the rights afforded to citizens in the US legal system (such as the right to silence, the prohibition of hearsay evidence) or the rights of ‘prisoners of war’ in the international legal system.87 See the discussion at the online Berkley Forum: see, eg, Carly Gordenstein, ‘The Efficacy of the Guantánamo Military Commissions’, Berkley Center for Religion, Peace and World Affairs (Web Page, 15 September 2020) <https://berkleycenter.georgetown.edu/responses/the-efficacy-of-the-guantanamo-military-commissions>. In 2006, despite both the Australian and US governments’ insistence that these commissions were legitimate, the US Supreme Court finally ruled them illegal.88 Hamdan v Rumsfeld, 548 US 557 (2006). However, the US Government legislated shortly afterwards to establish commissions very similar to those deemed unconstitutional by the Court89 Alissa J Kness, ‘The Military Commissions Act of 2006: An Unconstitutional Response to Hamdan v Rumsfeld’ (2007) 52(2) South Dakota Law Review 382. and the detention of ‘unlawful enemy combatants’ at Guantanamo Bay has continued into 2022.90 President Biden has indicated that he plans to close the facility, but progress is slow: Associated Press, ‘Why Half of Guantanamo Bay’s Prisoners Could Be Set Free’, 9 News (online at 20 February 2022) <https://www.9news.com.au/world/guantanamo-bay-half-prisoners-could-be-released-usa/1b1ab0a5-d438-4154-b156-86b0e9143314>. What ethical approach guided the lawyers who helped to establish the Guantanamo incarceration and who drafted the Military Commissions Act of 2006?91 Consider also the issues raised in Dana Carver Boehm, ‘Guantanamo Bay and the Conflict of Ethical Lawyering’ (2012) 117 Pennsylvania State Law Review 283.
With sporadic instances of violent extremism continuing across the globe,92 In Australia ‘nationalist, racist and misogynous violence is the fastest growing threat, according to the head of the Australian Security Intelligence Organisation: ‘“A Salad Bar of Hate”: Terrorist Attack Anticipated in the Next Year’, The Canberra Times (Canberra, 30 April 2021) 11. the issue of whether public security is enhanced or undermined by treating alleged terrorists differently to ‘normal’ criminal defendants seems likely to remain contentious in the wider community. But in ethical terms it is and will remain a dangerous path to say that one class of defendant is entitled to more rights than another, or that some individuals, though not charged with anything, are nevertheless by mere implication ‘guilty’ of something ‘bad’.93 One of the Australian detainees at Guantanamo Bay, Mamdouh Habib, was returned to Australia after being released from three years’ detention without charge. The Australian government tried to discourage, under a hastily enacted law, receipt by Habib of any payment for telling his story of incarceration and alleged torture: Michelle Grattan, ‘Canberra Shackled and Shamed by Habib’, The Sunday Age (Melbourne, 30 January 2005) 17.
The rule of law, under which everyone is supposed to be equally protected and accountable, and that underlies every piece of substantive law taught in law school, is only as good as is the will of each government and each lawyer to insist on continuing fairness in all trial processes. Without fairness the rule of law becomes a hollow edifice. Thus there may be an ethical duty upon the prosecution and the defence to protest and withdraw (as responsible lawyers and perhaps moral activists) when systemic political decisions have been taken to eliminate or limit overall fairness in the drafting of legislation or the management of a trial. Suspect processes emerge by inducing participation from the legal profession.
Consider the issue of genocide. Lawyers’ ethics may be implicated in mass killings when lawyers (often employed by government) remain silent about or condone genocides and then participate in compromised prosecutions of the alleged perpetrators. The German state in the 1930s was perhaps the first to systematically involve elements of the legal profession in what we now know as ‘ethnic cleansing’. Starting with the drafting of national legislation to progressively de-legalise ‘non-Aryans’ in the 1930s (as a precursor to the Holocaust), Germans were progressively acclimatised to categorising Polish, Jewish, Roma, homosexuals and others as less than human – that is, by degree, as ‘cockroaches’, ‘insects’ and finally, ‘nothing’.94 See Thérèse O’Donnell, ‘Law After Auschwitz: Towards a Jurisprudence of the Holocaust, by David Fraser’ (2005) 15 Law and Politics Book Review 581. The apparatus of the German criminal law was completely subverted by a relentless legislative (and cultural) program so that, eventually, the Nazi transportation and extermination program became domestic, hygienic and even banal to the populace at large.95 See Hans Guggenheim, ‘Lecture to GAJE at Auschwitz’ (Conference Paper, Worldwide Conference of the Global Alliance for Justice Education, Krakow, 22 July 2004); Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking Press, 1964). Lacking any institutional or global ethics of moral activism, and overwhelmed by the culture of obedience to National Socialist edicts, there were then many lawyers who were simply ethically overwhelmed.96 See David Luban, ‘Complicity and Lesser Evils: A Tale of Two Lawyers’ (2021) 34(3) Georgetown Journal of Legal Ethics 613 for a moral biography of two lawyers in Nazi Germany.
Hans Guggenheim, the Holocaust anthropologist, has written:
We have no right to forgive the suffering inflicted on others, but we can show compassion for the suffering experienced by our enemies and thus lay the foundation for a better future … The lesson of Auschwitz is that without compassion our world is doomed … that it is the only way we can control our technologies of war, our greed for gold, our lust for power and domination and above all, the only way we can administer our Laws with justice for all.97 Guggenheim (n 95).
Guggenheim considers that for justice to be possible it must be based on the virtue of compassion.98 This is why it is important to ask today’s lawyers what values they hold and whether those values are evident in their behaviour. Furthermore, lawyers should never forget that accused persons have a right to be treated humanely. The key is for law students and lawyers to see that anyone may become a defendant and experience the potential degradation of that position. Lawyers must be conscious not to regard themselves as ‘good’ and defendants as ‘bad’.
The lawyers (Indonesian and Australian) who represented Andrew Chan and Myuran Sukumaran, drug traffickers on death row in Indonesia, are an inspiring example of compassionate defence lawyers. Chan and Sukumaran were arrested in 2005 in Bali along with seven other Australians. Judged to be the ring leaders, they were sentenced in 2006 to death by firing squad, a sentence eventually carried out in 2015, despite many legal appeals and requests for clemency. Alongside the ‘magnificent’99 Lex Lasry, ‘Vale Andrew Chan and Myuran Sukumaran’ (2017) 152 Victorian Bar News 61. Indonesian criminal/human rights lawyer Todung Mulya Lubis, the Australian barrister Julian McMahon took up the case. Lex Lasry (who worked on the case before his appointment to the Victorian Supreme Court bench) describes the work McMahon and others did:
Julian McMahon assembled a team of thoroughly committed Victorian lawyers to become involved in every aspect of the case. Each of these lawyers gave everything they had to the case. They displayed a commitment to saving Andrew and Myuran’s lives that was extraordinary. In the finest traditions of the Victorian Criminal Bar, they demonstrated the force in the thesis that criminal lawyers defending clients are in every sense human rights lawyers. With Julian as the spiritual leader and inspiration of this group, they excelled in their devotion to their pro bono task.100
McMahon received the Victorian Australian of the Year Award in 2016 for his committed advocacy in this and other capital punishment cases and in opposing the death penalty. His work is a shining example of adversarial advocacy, responsible lawyering, moral activism and ethics of care.
Criminal justice in Australia is likely to retain its adversarial character, even if governments generally want to shift the goal posts in favour of greater prosecutorial power, heavier penalties and the criminalisation of more and more behaviour. The stakes for all lawyers involved in criminal justice are increasingly global and ethical: do they help draft repressive and dehumanising legislation? Do they succumb to the pressure to discard fair processes because of fear about terrorism? Do they exploit ‘confessions’ made by tired and fearful individuals after many hours of interrogation? Do they pressure defendants to simply plead ‘guilty’ and eliminate the stress of a trial on them and their families?
In fact, an ethical approach to criminal justice has never been so important for social confidence in our courts and the comprehensive security only the courts provide to society. After reviewing gross breaches of ethics in the Victorian criminal justice system, Commissioner McMurdo reminds us:
Fairness underpins and fosters public trust and confidence in, and therefore the legitimacy of, the criminal justice system. The system cannot operate effectively if it does not command the public’s trust and confidence.101 In Royal Commission into the Management of Police Informants (n 56) 63.
Fairness will only be achieved if all lawyers (and other players) in the system act ethically. This requires criminal lawyers to regularly reflect on their own motives – that is, to look at who they are and what they value – as they engage in this important work.
1 Lex Lasry QC quoted in Abbe Smith, ‘Defending the Unpopular Down-Under’ (2006) 30(2) Melbourne University Law Review 495, 508. Lasry was later appointed to the Supreme Court of Victoria and is now a reserve judge of that court.
2 For example, in 2021 New South Wales police officers targeted a small-town solicitor who was acting for a bikie gang member: Naomi Neilson, ‘Defence Lawyers Call on A-G to Protect Lawyers from Further Police Harassment’, Lawyers Weekly (13 April 2021) <https://www.lawyersweekly.com.au/biglaw/31122-defence-lawyers-call-on-a-g-to-protect-lawyers-from-further-police-harassment>.
3 Róisín Annesley and Victorian Bar Council, Good Conduct Guide: Professional Standards for Australian Barristers (2019) 136 [9.41].
5 Nicholas Cowdery, Ethics and the Role of a Prosecutor (1997) 32.
6 ASCR rr 29.1–29.3; Barristers’ Conduct Rules rr 83–95.
7 See, eg, Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 120, 121–5, 167–170, 700–2, 720, 767, 957, 1034–7; Andrew Boe, The Truth Hurts (Hachette Australia, 2021). See also ‘The Long-Term Costs of Underfunding Legal Aid’, Law Council of Australia (Web Page, 3 December 2021) <https://www.lawcouncil.asn.au/media/media-releases/the-long-term-costs-of-underfunding-legal-aid>.
8 Luke McNamara et al, ‘Homelessness and Contact with the Criminal Justice System: Insights from Specialist Lawyers and Allied Professionals in Australia’ (2020) 9(3) International Journal for Crime, Justice and Social Democracy 120–1.
9 Liz Richardson, Pauline Spencer and David Wexler, ‘The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing’ (2016) 25(3) Journal of Judicial Administration 148; Wayne Martin, Reflecting on the Practice of Non-Adversarial Justice (Judicial Commission of New South Wales, 2018).
10 An example is Australia’s shocking record of First Nations deaths in custody: see, eg, ‘Joint Council Agrees to Accelerate Collective Efforts to Reduce Over-incarceration of Indigenous peoples … ’, Coalition of Peaks (Web Page, 16 April 2021) <https://coalitionofpeaks.org.au/joint-council-agrees-to-accelerate-collective-efforts-to-reduce-over-incarceration-of-indigenous-peoples-as-first-annual-partnership-health-check-acknowledges-successes-and-challenges-of-historic-part/>; Law Council of Australia, ‘Indigenous Justice Announcements Welcome, but Funding for Multi-faceted Response Needed’ (Media Release, 15 April 2021) <https://lawcouncil.asn.au/media/media-releases/indigenous-justice-announcements-welcome-but-funding-for-multi-faceted-response-needed>.
11 Also known as ‘secondary trauma’.
12 Colin James, ‘Towards Trauma-Informed Legal Practice: A Review’ (2020) 27(2) Psychiatry, Psychology and Law 275. See also ‘Is Practising Criminal Law Bad for Your Mental Health?’, Law Report (ABC Radio National, 11 July 2017) <https://www.abc.net.au/radionational/programs/lawreport/is-practicing-criminal-law-bad-for-your-mental-health/8697446>. There is an obligation on the organisations for which lawyers work to provide appropriate systems of work and support for employees exposed to traumatic material in their work: Anna Verney, In Focus: Lessons on Vicarious Trauma and Wellbeing from a Royal Commission (Law Society of New South Wales, 2018).
13 This is required under r 40 of the Barristers’ Conduct Rules.
14 Barbaro v The Queen (2014) 253 CLR 58.
15 See, eg, Penalties and Sentencing Act 1992 (Qld) s 13(2).
16 See Editorial, ‘Sentence Discounts for Pleas of Guilty’ (2005) 29 Criminal Law Journal 69; Kathy Mack and Sharyn Roach Anleu, ‘Guilty Pleas: Discussions and Agreements’ (1996) 6 Journal of Judicial Administration 8. Some legal ethicists in the United Kingdom have characterised the criminal justice system reforms in that jurisdiction as undermining the adversarial process by unduly pressuring the accused to plead guilty and co-opting defence lawyers as partners in the quest for efficiency at the expense of zealous advocacy on behalf of accused: Mike McConville and Luke Marsh, ‘Adversarialism Goes West: Case Management in Criminal Courts’ (2015) 19(3) The International Journal of Evidence and Proof 172; Ed Johnston, ‘The Adversarial Defence Lawyer: Myths, Disclosure and Efficiency – A Contemporary Analysis of the Role in the Era of the Criminal Procedure Rules’ (2020) 24(1) The International Journal of Evidence and Proof 35.
17 ‘Prosecution Guidelines’, ODPP NSW (Web Page, 2021) <https://www.odpp.nsw.gov.au/prosecution-guidelines>.
18 Chapter 1.4 includes a non-exhaustive list of factors to be considered including ‘Offence-related factors’, ‘Accused-related factors’, ‘Victim-related factors’, ‘Sentencing factors’ and ‘Other factors’.
19 LexisAdvance, Halsbury’s Laws of Australia (online at 6 July 2022) 130 Criminal Law, ‘Remorse and Plea of Guilty ’ [130-17130].
20 Editorial, ‘Sentence Discounts for Pleas of Guilty’ (2005) 29 Criminal Law Journal 69.
21 Peter Hidden, ‘Plead Guilty and Get It Over With?’ (1991) Bar News reproduced in Appendix 1 to Peter Hidden, ‘Some Ethical Problems for the Criminal Advocate’ (2003) 27(4) Criminal Law Journal 191.
22 Benjamin Bickford confirmed in 2011 that the circumstances described by Hidden were often faced by ALS lawyers in regional practice: ‘Convenience Pleas’, Hunter Street Chambers (Web Page, 18 February 2016) <https://www.hunterstreetchambers.com.au/convenience-pleas/>.
23 Meissner v The Queen (1995) 184 CLR 132 [141].
24 Loury v The Queen [2010] NSWCCA 158.
25 In relation to guilty pleas by innocent people in the United States, the United Kingdom and Wales, see Rebecca Helm, ‘False Guilty Pleas and the Post Office Scandal’, Evidence-Based Justice Lab, University of Exeter Law School (Blog Post, 28 April 2021) <https://evidencebasedjustice.exeter.ac.uk/false-guilty-pleas-and-the-post-office-scandal>.
26 Lee Bridges, ‘The Ethics of Representation on Guilty Pleas’ (2006) 9(1) Legal Ethics 80, 100.
28 ‘The Ethics of Criminal Lawyers’, Law Report (ABC Radio National, 12 November 2002) <http://www.abc.net.au/radionational/programs/lawreport/the-ethics-of-criminal-lawyers/3527274>. See also the discussion in Chapter 2 on the philosophical/ethical approaches to this issue.
30 ‘Is Practising Criminal Law Bad for Your Mental Health?’ (n 12). McGrath was New South Wales Deputy Senior Public Defender at the time of the interview. He was appointed New South Wales Deputy DPP in 2018.
32 (1934) 52 CLR 335.
33 As explored in the documentary Dhakiyarr vs The King (Film Australia, 2004). See also Tom Murray, ‘Dhakiyarr vs The King’ (Study Guide, National Film and Sound Archive of Australia, 2004). The documentary makes the point that two systems of law operated in Arnhem Land at the time and that Dhakiyarr did not realise that his law was no longer dominant. See also Nicole Watson, ‘In the Matter of Djappari (Re Tuckiar): Judgement’ in Heather Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing, 2014) 442.
34 Tuckiar v The King (1934) 52 CLR 335, 341.
35 Dhakiyarr’s descendants have since claimed, though been unable to prove, that he was killed shortly after his release by those unhappy with the decision of the High Court: Dhakiyarr v The King (n 33). In 2003 there was a reconciliation ceremony between the descendants of Dhakiyarr and those of policeman McColl that culminated in the installation of nine larrakitj, or ceremonial log coffins, in the Supreme Court of the Northern Territory in Darwin.
36 It is important to note the possibilities of misunderstanding by advocates as to what is said to them, different cultural and religious understandings of guilt that allow a defendant to say one thing while meaning another, and the fact that what a client thinks of as guilt will occasionally be otherwise, as in the case of someone who commits a criminal act (actus reus) but has insufficient mens rea (generally because of some form of diminished mental responsibility).
37 Ben Clarke, ‘An Ethics Survey of Australian Criminal Law Practitioners’ (2003) 27(3) Criminal Law Journal 142.
38 ‘The Ethics of Criminal Lawyers’, Law Report (ABC Radio National, 12 November 2002) <http://www.abc.net.au/radionational/programs/lawreport/the-ethics-of-criminal-lawyers/3527274#transcript>.
39 R v Wilson [1995] 1 VR 163, 180.
40 [1995] 1 VR 163.
41 David Parsons and Mark Taft, ‘Review of Judgments’ (1994) 68(9) Law Institute Journal 863.
42 R v Wilson [1995] 1 VR 163, 180.
43 R v Kina [1993] QCA 480.
45 Louise Milligan, Witness: An Investigation into the Brutal Cost of Seeking Justice (Hachette Australia, 2020).
46 Evidence Act 1995 (Cth) s 41.
47 Russell Boyd and Anthony Hopkins, ‘Cross-Examination of Child Sexual Assault Complainants: Concerns about the Application of s 41 of the Evidence Act’ (2010) 34(3) Criminal Law Journal 149, 158–62; Milligan (n 45) 347, 354. We note that judges are in position to stop inappropriate cross-examination and should be supported by appellate courts in doing so.
49 Ben Matthews, ‘Review: Louise Milligan’s Witness Is a Devastating Critique of the Criminal Trial Process’, The Conversation (online at 27 October 2020) <https://theconversation.com/review-louise-milligans-witness-is-a-devastating-critique-of-the-criminal-trial-process-148334>; Adam V Chernov, ‘Witness’, Law Institute Journal (April 2021); Roy Williams, ‘Louise Milligan’s Witness and the High Price of Seeking Justice’, The Australian (Sydney, 11 February 2021).
50 Natalia Anatolak-Saper and Hannah MacPherson, ‘Vulnerable Witnesses and Victoria’s Intermediary Pilot Program’ (2019) 43(5) Criminal Law Journal 325, 335.
53 R v Pham [2017] QCA 43, [59].
54 Director of Public Prosecutions (Victoria), Submission to the Royal Commission into the Management of Police Informants: Disclosure Issues (19 December 2019) [342].
56 Royal Commission into the Management of Police Informants (Final Report, 2020) recommendation 81.
57 Ibid recommendations 82, 83. There are unfortunately cases where lawyers abandon their professional ethics and boundaries completely and become complicit in the criminal behaviour of their clients. Money laundering is one example of this. For example, New Zealand lawyer Andrew Simpson set up a scheme for laundering money for the Comanchero motorcycle gang. He was convicted and subsequently struck off the roll: National Standards Committee 1 v Simpson [2020] NZLCDT 36.
58 [1992] 1 VR 57.
59 In the reported version of R v Neilan, ibid, the comments of the Court of Criminal Appeal as to the conduct of defence counsel were edited out. However, the unreported version explains the matter fully: see R v Neilan (Victorian Court of Criminal Appeal, Young CJ, Brooking and Marks JJ, 5 April 1991) 67–8.
60 See R v Neilan (Victorian Court of Criminal Appeal, Young CJ, Brooking and Marks JJ, 5 April 1991) 68.
61 Advocates are not liable for any negligence in respect of their behaviour in court – see discussion of advocates’ immunity from suit in Chapter 6.
62 It is not uncommon for a person charged with a minor offence to not have legal representation during a hearing before a magistrate.
64 In trials of the ethics self-assessment tool set out in the Appendix: Part 1, a small majority of respondents indicated a preference for adversarial advocacy over other types. See Adrian Evans and Helen Forgasz, ‘Framing Lawyers’ Choices: Factor Analysis of a Psychological Scale to Self-Assess Lawyers’ Ethical Preferences’ (2013) 16(1) Legal Ethics 134.
65 See Barristers’ Conduct Rules rr 17–18.
66 See Janie Plant, ‘The Cab Rank Rule’ (2017) 44(1) Brief 20 for differing views on whether the ‘rule’ should remain a rule.
67 In Australia, cases involving minor criminal offences are prosecuted by police prosecutors (except in the Australian Capital Territory). More serious criminal offences are prosecuted by the various Commonwealth, State and Territory Directors of Public Prosecutions (‘DPP’).
68 Once he learnt of it, the Victorian DPP considered it his duty to disclose to several convicted persons the fact that Nicola Gobbo (their lawyer) had also been a police informant. This was opposed by the police, which led to court proceedings ruling in favour of disclosure: Royal Commission into the Management of Police Informants (n 56) 12–13.
69 Rebecca Ananian-Welsh and George Williams, ‘The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia’ (2014) 38(2) Melbourne University Law Review 362. See also David Brown, ‘Breaking the Code of Silence’ (1997) 22(5) Alternative Law Journal 220, 222 (asking why prosecutors and lawyers did not speak up about massive police corruption in New South Wales during the 1980s and 1990s).
70 ‘Prosecution Policy’, CDPP (Web Page) <https://www.cdpp.gov.au/prosecution-process/prosecution-policy>. ‘Although both these elements exist in each [Australian] jurisdiction’s guidelines, there are differences in how they are structured and whether they are framed positively or negatively. Additionally, some jurisdictions provide further guidelines relating to the decision to prosecute particular offences or offenders, and all the guidelines contain a list of factors that should not influence the decision to prosecute’: Natalie Hodgson et al, ‘The Decision to Prosecute: A Comparative Analysis of Australian Prosecutorial Guidelines’ (2020) 44(3) Criminal Law Journal 155, 159.
71 Christopher Klaus, ‘Commonwealth Prosecutors Wrong on Witness K Case, Former NSW DPP Says’, The Guardian (online at 1 April 2021) <https://www.theguardian.com/australia-news/2021/apr/01/commonwealth-prosecutors-wrong-on-witness-k-case-former-nsw-dpp-says>.
72 Naomi Neilson, ‘“It Is a Disgraceful Prosecution”: Geoffrey Robertson Condemns Australian Government for Secret Trials of Bernard Collaery and Witness K’, Lawyers Weekly (online at 5 May 2021) <https://www.lawyersweekly.com.au/biglaw/31299-it-is-a-disgraceful-prosecution-geoffrey-robertson-condemns-australian-government-for-secret-trials-of-bernard-collaery-and-witness-k>.
73 Kieran Pender, Human Rights Centre quoted in Christopher Knaus, ‘Prosecutors Refuse to Drop Case Against Tax Office Whistleblower Richard Boyle’, The Guardian (online at 29 April 2021) <https://www.theguardian.com/australia-news/2021/apr/29/prosecutors-refuse-to-drop-case-against-tax-office-whistleblower-richard-boyle>.
74 Section 41.
75 Christopher Knaus, ‘Secret Australian Prosecution “Unprecedented” and Must Never Happen Again, Watchdog Told’, The Guardian (online at 4 May 2021) <https://www.theguardian.com/australia-news/2021/may/04/secret-australian-trial-unprecedented-and-must-never-happen-again-watchdog-told>.
76 Siddhartha Bandyopadhyay and Bryan C McCannon, ‘The Effect of the Election of Prosecutors on Criminal Trials’ (2014) 161(1–2) Public Choice 141.
77 Hughes v The Queen (2015) 93 NSWLR 474. See also MG v The Queen (2007) 69 NSWLR 20 where the prosecutor was enjoined by the Court of Appeal against conducting the retrial because of remarks made publicly about the former trial.
78 The Court of Criminal Appeal set out 10 basic principles governing prosecutors’ conduct: (2015) 93 NSWLR 474, [265]–[275]. See also Kieran Fitzgerald, ‘Case and Comment: Appellate Authority on the Role of the Prosecutor’ (2018) 42(3) Criminal Law Journal 186.
79 Hughes v The Queen (2015) 93 NSWLR 474, [309]–[310].
81 As discussed in Chapter 7, advocates are immune from civil suit (ie negligence) under the doctrine of advocates’ immunity and enjoy court privilege (ie they cannot be sued for defamation). They are still liable to professional discipline for breaches of conduct rules but this is rarely prosecuted.
82 See David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Hart Publishing, 1998); David Luban, ‘Complicity and Lesser Evils: A Tale of Two Lawyers’ (2021) 34(3) Georgetown Journal of Legal Ethics 613.
83 See, eg, Clare Keefe Coleman, ‘Teaching the Torture Memos: “Making Decisions Under Conditions of Uncertainty”’ (2012) 62(1) Journal of Legal Education 81.
84 For a brief summary see W Bradley Wendel, ‘The Torture Memos and the Demands of Legality’ (2009) 12(1) Legal Ethics 107. See also Jane Mayer, ‘Annals of the Pentagon – The Memo: How an Internal Effort to Ban the Abuse and Torture of Detainees Was Thwarted’, The New Yorker (New York, 27 February 2006) 32; W Bradley Wendel, ‘Legal Ethics and the Separation of Law and Morals’ (2005) 91(1) Cornell Law Review 67.
86 See Law Council of Australia, ‘Government Must Do More Over Mounting Criticism of Military Commissions’ (Press Release, 3 August 2005).
87 See the discussion at the online Berkley Forum: see, eg, Carly Gordenstein, ‘The Efficacy of the Guantánamo Military Commissions’, Berkley Center for Religion, Peace and World Affairs (Web Page, 15 September 2020) <https://berkleycenter.georgetown.edu/responses/the-efficacy-of-the-guantanamo-military-commissions>.
88 Hamdan v Rumsfeld, 548 US 557 (2006).
89 Alissa J Kness, ‘The Military Commissions Act of 2006: An Unconstitutional Response to Hamdan v Rumsfeld’ (2007) 52(2) South Dakota Law Review 382.
90 President Biden has indicated that he plans to close the facility, but progress is slow: Associated Press, ‘Why Half of Guantanamo Bay’s Prisoners Could Be Set Free’, 9 News (online at 20 February 2022) <https://www.9news.com.au/world/guantanamo-bay-half-prisoners-could-be-released-usa/1b1ab0a5-d438-4154-b156-86b0e9143314>.
91 Consider also the issues raised in Dana Carver Boehm, ‘Guantanamo Bay and the Conflict of Ethical Lawyering’ (2012) 117 Pennsylvania State Law Review 283.
92 In Australia ‘nationalist, racist and misogynous violence is the fastest growing threat, according to the head of the Australian Security Intelligence Organisation: ‘“A Salad Bar of Hate”: Terrorist Attack Anticipated in the Next Year’, The Canberra Times (Canberra, 30 April 2021) 11.
93 One of the Australian detainees at Guantanamo Bay, Mamdouh Habib, was returned to Australia after being released from three years’ detention without charge. The Australian government tried to discourage, under a hastily enacted law, receipt by Habib of any payment for telling his story of incarceration and alleged torture: Michelle Grattan, ‘Canberra Shackled and Shamed by Habib’, The Sunday Age (Melbourne, 30 January 2005) 17.
94 See Thérèse O’Donnell, ‘Law After Auschwitz: Towards a Jurisprudence of the Holocaust, by David Fraser’ (2005) 15 Law and Politics Book Review 581.
95 See Hans Guggenheim, ‘Lecture to GAJE at Auschwitz’ (Conference Paper, Worldwide Conference of the Global Alliance for Justice Education, Krakow, 22 July 2004); Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking Press, 1964).
96 See David Luban, ‘Complicity and Lesser Evils: A Tale of Two Lawyers’ (2021) 34(3) Georgetown Journal of Legal Ethics 613 for a moral biography of two lawyers in Nazi Germany.
98 Ibid. See also Lorana Bartels and Anthony Hopkins, ‘Engaging Head and Heart: An Australian Story on the Role of Compassion in Criminal Justice Reform’ in Research Handbook on Law and Emotion (Edward Elgar Publishing, 2021) 268.
99 Lex Lasry, ‘Vale Andrew Chan and Myuran Sukumaran’ (2017) 152 Victorian Bar News 61.