Wednesday, March 13, 2013

Attorney General Chaos

Most criminal lawyers in NSW (yours truly included) expected that the Coalition government would be a good for the Laura Norda debate.

There were comments in the lead-up to the election that the Coalition would not be engaging in the traditional auction as to who could appear toughest on criminals. Lawyers rejoiced, talk-back hosts gnashed their teeth, and all was well.

Since the election, with a few notable exceptions, the government has refrained from simplistic attempts to appear tough on criminals. What it has done instead is attack some of the fundamental tenants of the criminal justice system. Not because of some demonstrated, fundamental flaw with the system, and not because the lawyers (on either side) have petitioned the government to fix some flaw.

Rather, thanks to pressures that remain concealed from the public, the government has unilaterally changed things, pretty clearly for the worse.

The first example was life sentences for people who murder police officers. Now, naturally, anyone who murders a police officer deserves an incredibly harsh penalty. Murder is of the the most serious offences on the books, and the where the victim of any offence is a police officer the penalty is, by operation of law, more serious.

My complaint is this: was there any evidence that offenders who had murdered police officers were not getting heavy enough sentences? Or had there perhaps been an outbreak of such offences? Was there even a skerrick of evidence that a harsher maximum sentence would save a single life? The answer to all those questions was a resounding "No."

The last person convicted of murdering a police officer was, if memory serves, Sione Penisini, who killed Glenn McEnallay in 2002. Almost ten years ago. Penisini was sentenced to between 36 and 25 years in gaol. 

Next was the consorting legislation - introduced to make it a crime to consort with a person who has a serious matter on their criminal record. A person could be warned by police to stay away from someone, and if they did not comply they could be prosecuted.

What does such a law accomplish? There must be, at an absolute minimum, tens of thousands of people with a criminal record sufficient to make their friends, work-mates, associates and acquaintances liable to such a warning. Why on earth are we giving police the power to make spending time with someone like that an offence? How does it possibly make NSW a safer place to be?

Of course it does not. But it gave the impression of action, and gave police a new tool to harass people who hadn't actually done anything other than hang out with their mates.

The proposals that have most recently captured attention have been the right to silence legislation and the requirement for the defence to state their case before trial.

The right to silence legislation has been knocking around for a while, and was the subject of heavy criticism when it was first proposed. What was suggested was that, where a person provides an explanation or account at trial that was not provided at arrest, the jury can be instructed, essentially, to be suspicious about whether it was a recent invention.

That goes against the ancient principle that an accused person has a right to silence, and cannot later be suspected for employing that right.

The problem with this law is that it gives police another tool to cajole/force/intimidate an accused person into giving an interview. It should be remembered that accused persons being questioned by police have none of the advantages that their questioners have. I've written about this before - here and here.

Police have spoken to the alleged victim and/or witnesses. Odds are they have sat down, compared all the statements, decided who was credible or not, and have drawn conclusions about what they believe happened.

When a person is arrested, they are typically told the offence that they are accused of having committed. Then they are left in a holding cell for hours to stew and, in short, panic. They are told that they will soon have the chance to tell their side of the story, the (false) implication being that they may be able to talk their way out of the situation in which they find themselves.

They are then taken into a room, reminded of their rights, and asked hundreds (if not over a thousand) questions about the alleged offence. Every single answer is taped and later replayed for a jury. In the most part, people do all this without having had the benefit of legal advice.

Given the above, my universal advice to anyone who will listen has been that the should not give an interview. The problem with the these proposed changes is that they would have allowed a jury or a magistrate to take into account the fact that a person did not immediately provide an explanation when they had not had the opportunity to even speak to a lawyer, let along find out exactly what they were accused of.

The justification offered by the government was the United Kingdom, where similar changes came in some years ago. The fundamental difference never acknowledged was that in the UK the government funds their Legal Aid such that most police stations have a lawyer either on duty to advise accused persons, or otherwise available at a nearby station. The government was not prepared to fund Legal Aid to do this, and given that Legal Aid is (inevitably) strapped for cash, there is no way it could fund such a service from current allocations.

The surprise came today in the media release from the Attorney General:
On one level, it is a entirely sensible amendment. Who can think less of a defendant who refuses to give a statement in the absence of legal advice? People should have the opportunity to have someone who is actually on their side explain the situation and consequences before the make decisions that may make a material difference to their trial that will take place years later.

There is, however, a significant practical impediment. Obviously I have not seen the final bill - but the media release indicates that the warning must be given "in the presence of a lawyer".

Do you think there is any chance at all that any lawyer with half a brain will be caught near a police station where such a warning might given? It is rare that accused persons have a lawyer at the police station anyway (just for cost reasons) - the only reason I would usually attend would be to just essentially hold a client's hand through the process, or where I was concerned that my strident warnings about not giving an interview may not be heeded.

What will inevitably happen in that, where a person seeks legal advice before or upon arrest, the lawyer will say in as many ways as they can that the client must not, under any circumstances, not matter what, ever ever ever give an interview - and then hope they remember. There is no way the lawyer will possibly attend a police station - thus eliminating the risk that a warning complying with the section would ever be given.

It's better than the alternative - but it confirms that the amendment is being made as a public relations measure - nothing more. Lawyers know this stuff, and only an amateur is going to be caught out.

As for the amendment to make trials more "efficient" - well, here we have more problems.
This is a great idea, in theory.

The problem is that, as a matter meanders its way to trial, it is usually managed by a less senior lawyer. A Crown Prosecutor or a private barrister appearing for the Crown is usually not assigned until shortly before the trial - once it becomes clear that the trial is going to run.

Once that happens, the Crown Prosecutor notices problems, deficiencies in the evidence, or other issues they want remedied - and then instructs police as to what needs to be done to plug the holes.

That is inconvenient for defence lawyers, but hardly unexpected. I can assure you that six weeks out from a trial the Crown case can still be, to say the least, opaque.

Consequently, rather than improving efficiency, this change is going to require far greater funding for the Director of Public Prosecutions, because if the case has to be settled a month before the trial, there is going to have to be high level attention paid to every single case that is still live a month out. Otherwise there will be utter chaos as Crown Prosecutors seek leave to change everything and serve new evidence in the final week or two before the trial, and defence lawyers quite rightly object.

There are burdens for defence lawyers too:
There are two obvious problems with the above.

The first is that it is completely unfair to expect the defence to lay its cards on the table unless the Crown case is set in stone. The difficulties with that are set out above.

Moreover, my experience of trial work is that the Crown often (if not usually) shifts during the trial. It is infuriating, but in some ways it cannot be avoided. The Crown cannot always predict what will happen.

Witnesses will not turn up for court. Witnesses will unexpectedly concede that they could not see what happened. A witness might suddenly admit they have a vested interest that you suspected bud did not know.

The Crown will often (quite appropriately) have to change course as a result. That is fair - but to then tie the defence to their previous position is obviously unreasonable.

Seem fanciful? Let's imagine an example. Say you have a client who is accused of robbing a Service Station. Your client says he didn't do it, but the attendant says he did. You don't get to cross-examine the attendant until he gets into the witness box during the trial. The following are all entirely possible:

  • The attendant doesn't turn up
  • The attendant admits he didn't see the defendant because he was distracted
  • The attendant was actually out back when the incident happened
  • The attendant was drunk
  • The attendant stole the money and is blaming someone else
  • The attendant knows the defendant and hates him because he stole his girlfriend
Those may sound a little fanciful, but before the trial starts how can the defendant or his lawyer know which of those explanations may be possible?

So what is every single defence lawyer going to do? Plead every single scenario they can possibly imagine. And this makes trials more efficient how?

It's ridiculous - and anyone who thinks it will make trials more "efficient" has clearly never spent any time running a criminal trial.

Hopefully there will be the opportunity for interested parties to make submissions on the stated case amendment before it becomes law. And hopefully it will be listened to.

Not the AG's finest work, this.


  1. And the perennial question with this portfolio arises again: how can someone who is a silk and was a Crown Prosecutor countenance this madness?

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