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Every criminal lawyer is familiar with these questions, whether it be at a family barbeque or a catch up at the pub, it is inevitable that at some point, someone will ask the criminal lawyer one of the following questions:
1- “How can you defend criminals, don’t you feel guilty?”. Or put differently, “How can you represent someone like that?”
2- “But why would the victim make it up?”
3- “What do you do if someone tells you they are guilty, but they want you to get them off?”
4- “Do you help your clients come up with their stories?”
5- “They all just claim mental health to get off, don’t they?”
6- “Criminal lawyers make a lot of money by ripping people off at their worst?”
Although most criminal lawyers do not mind answering these questions, we have come to realise that these questions are the product of misinformation and misconceptions that surround the role of criminal lawyers.
So, we decided to tackle the 6 most controversial questions surrounding the unknown world of criminal lawyers.
It is possibly the most common question that criminal lawyers are asked.
It stems from this idea that a person’s moral compass would be so challenged that it would render them incapable of undertaking the role of a criminal lawyer.
On a simplistic view of the criminal justice system, that proposition would make sense; this idea that all accused persons are evil and should be punished immediately, severely and for all eternity. This view is plainly wrong.
Fortunately, the criminal justice system is not so simplistic and biased towards accused persons.
It seems that most people who ask criminal lawyers this question are fortunate enough not to have ended up on the wrong side of the law.
Therefore, in many respects, this question stems from a lack of knowledge of the criminal justice system and the role that criminal lawyers play in it. This is opposed to an informed understanding.
There are several issues that this question raises, and it is important that we cover these issues thoroughly.
In Australia, we are fortunate enough to operate a criminal justice system that presumes that all accused persons are innocent until they are proven guilty.
The presumption of innocence is possibly the most important safeguard that works to protect people from malicious prosecution and the abuse of power by law enforcement agencies.
The presumption of innocence is recognised internationally, and it is contained in the International Covenant on Civil and Political Rights Treaty to which Australia and 73 other countries are signatories.
This presumption means that a person cannot be subject to ill treatment or punishment solely on the basis that they have been accused of a crime.
Imagine a world without this presumption. Or worse, imagine a world in which even a person’s own lawyer operated on the basis that they were guilty. Injustice would be thriving.
It is every criminal lawyer’s upmost duty and obligation to uphold the presumption of innocence as it is vital to the operation of justice. A criminal lawyer should approach every case with the presumption of innocence in mind.
In fact, a criminal lawyer should never allow their own instincts or feelings to guide the job that they do. It is neither a criminal lawyer’s role nor responsibility to determine if a person is guilty or not. That is the job of the jury and the court.
Unlike other professions, criminal lawyers are bound by rules and obligations that are set out in the law. A fundamental rule is that a criminal lawyer should always act in the best interests of their client.
That cannot be achieved if a criminal lawyer were to allow their own personal feelings and instincts to interfere with their work.
A criminal lawyer should always remain entirely objective about every case that they are instructed in. This is regardless of how serious the allegations are and how much public interest the case has generated.
This is vital because, no matter what a criminal lawyer’s instincts might be, their instincts might be wrong. Equally, no amount of media backlash or publicity should sway the way in which a criminal lawyer represents their client.
An accused person’s life should not be determined by the instincts of those entrusted with ensuring that they will be treated fairly. Neither should their fear of public backlash determine their guilt.
Imagine if a criminal lawyer failed to properly represent a genuinely innocent person because of their own misguided instincts about a case. It could occasion significant injustice.
Every accused person is entitled to impartial legal representation and a criminal lawyer who will act in their best interests without allowing their own personal feelings to interfere.
Being a criminal lawyer means that in many cases we are literally responsible for a person’s life or a significant aspect of it. The work that we do could have such a significant impact that it could change the person’s life forever.
It is a responsibility that we take extremely seriously and one that we will not forgo for the sake of our own feelings and instincts.
The question, “how do you defend criminals?” also automatically assumes that every person charged with a criminal offence is guilty.
What most people forget is that there are thousands of people who are wrongly charged with criminal offences each year in New South Wales. Just because a matter is on the news does not make the allegations true.
In fact, between 2018 and 2019, there were at least 6828 people were found not guilty of criminal offences that they had been charged with.
Additionally, the police withdrew 7,966 cases against people who were incorrectly charged. In total that is 14,794 potentially innocent persons who were accused of crimes in one year alone.
What if one of those innocent persons were instead found guilty because their criminal lawyer allowed their feelings and instincts to interfere with their job?
If it were a choice, we would rather one hundred guilty persons incorrectly found not guilty as opposed to having one innocent person found guilty of something that they did not do.
That is because the injustice that would occur to that one innocent person would be so great that it could not be outweighed by any other factor. That person’s life would be ruined forever.
If a guilty person managed to get themselves off an offence, the experience of going through the criminal justice system will nonetheless itself act as a punishment and a deterrent.
Criminal law matters usually take months – if not years – to resolve. The stress and anxiety surrounding criminal law proceedings and the uncertainty of the outcome is usually the most significant form of punishment for an accused person. So, one would hope that the experience would be enough to deter the person from re-offending.
On the other hand, an innocent person will not only have to live through that experience knowing that they have been wrongly accused but, additionally, they may spend a significant amount of time in prison for a crime that they did not commit.
There is no compensation for an innocent person in those circumstances, neither is there reconsideration of their case. They are forced to accept a fate that is entirely unjust to them.
The truth is that not every criminal law case is black and white. In many instances, the prosecution case is founded on ambiguous inferences, circumstantial evidence, single witness testimonies and assumptions.
In most cases, a criminal lawyer will never know the truth of the matter. However, a criminal lawyer’s role is not to depart on a search to seek out the truth. That is an investigative role assigned to the Police.
A criminal lawyer’s role is to evaluate the evidence and give advice to their clients accordingly. Most importantly, a criminal lawyer’s role is to act upon the instructions of their client, no matter how far-fetched those instructions might seem.
Because sometimes, it is those far-fetched instructions that turn out to be truth.
Take for example the case of R v Terrence Leroy:
Two men went to a man’s home in the middle of night with a machete. Their instructions to their lawyers were that they were hired by another person to engage in a rather odd sexual fantasy. Unfortunately, they turned up at the wrong address.
As absurd as their instructions sound, it was the truth and accordingly the men were found not guilty at trial.
Now just imagine if their criminal lawyers decided not to listen to their instructions because of how farfetched their instructions seemed. These men could have been sentenced to a term of imprisonment for something that they were not guilty of.
The question, “how can you defend criminals?” is also often based on the misguided understanding that criminal lawyers are only ever hired to “get people off” crimes. That is not true at all.
In fact, in most cases, accused persons plead guilty as opposed to not guilty. In New South Wales, between 2018 and 2019, only 10% of accused persons decided to plead not guilty and fight the charges laid against them.
The overwhelming majority of accused persons in fact plead guilty and owned up to their actions.
Therefore, in most cases the criminal lawyer’s role has nothing to do with trying to get people off crimes. Rather, the criminal lawyer’s role is to assist the person and the court in determining an appropriate and just sentence in the circumstances.
This role involves trying to get the person the help that they need to assist them with dealing with the underlying problems that lead to their offending.
The old age question of “but why would the victim make it up?” If you have not heard this question before you’ve probably been living under a rock.
If every accused person’s guilt were to be determined based on their answer to this question, we would have thousands of innocent persons serving prison terms for crimes they did not commit.
Fortunately, this question is prohibited in criminal law cases. That is because it reverses the onus of proof from the prosecution having to prove that the accused committed the crime to having the accused prove that the victim is lying.
In New South Wales, an accused person is not required to prove that they are innocent or that the victim is lying. An accused person does not need to prove anything at all. It is always for the prosecution to prove that the accused person is guilty of the offence.
In many cases, an accused person will not be able to explain why a person made something up and they should not be expected to either.
To some people, the logic behind this principle is not immediately apparent. However, consider this real-life example:
When Mr Kenan Basic spent two hours trying to assist Ms Gray to get her vehicle back on the road, the last thing that he thought Ms Gray would do in return was make false allegations of stalking and indecent assault against him.
Ms Gray and Mr Basic were not known to each other. Mr Basic was just a good Samaritan who was willing to assist Ms Gray get her vehicle back on the road. There was no obvious reason as to why she would make up the allegation.
Mr Basic maintained his innocence, despite not being able to answer the question “why would she make it up?”
Unfortunately, Caitlyn Gray did exactly that, she lied and made false allegations against him, only to later admit that she lied to police and made up the allegations.
Now imagine if Mr Basic’s criminal lawyers failed to act on his instructions. Sure, their gut instincts might have been “why would this complete stranger make up such serious allegations?”
Luckily, Mr Basics guilt was not being decided on their gut instincts and it would not have had any role to play in their representation of Mr Basic.
Unfortunately, this case is not an isolated one. False allegations are very frequently made against people.
In fact, according to the Judicial Commission of NSW, since September 2018, there have been at least 15 persons who have been sentenced for the offence of making false accusations in New South Wales alone.
In most instances, false allegations are well thought out and have a ring of truth to them. They are sometimes motivated by ulterior motives, and sometimes they are not.
That is why it is extremely important that criminal lawyers do not deviate from their task and their role.
Criminal lawyers should not determine cases based on their client’s ability to say why a person made the allegation up.
Criminal lawyers are entrusted with a responsibility to their clients and with that responsibility comes an obligation to afford their clients with the absolute best legal representation in the circumstances absent any interference of their own thoughts, feelings, or instincts.
This is another one of our favourite criminal lawyer questions.
Unfortunately, it again represents a significant misunderstanding of the role that criminal lawyers play when acting for their clients.
Although criminal lawyers are legally obliged to follow their client’s instructions, this obligation is subject to certain conditions that are set out in the Solicitors’ Rules:
– A criminal lawyer must be honest in all their dealings while representing clients.
– A solicitor must not deceive or knowingly or recklessly mislead the court; and
If a client was to admit a crime to their criminal lawyer, a criminal lawyer is not allowed to run a positive case that is inconsistent with the truth. That is because the criminal lawyer will be breaching all the above Solicitor’s Rules.
However, this does not mean that the criminal lawyer is prohibited from challenging the evidence and the prosecution case. It just cannot be done in a way that is inconsistent with the accused person’s confession that was made.
Although this might seem like semantics, it is not. There is a significant difference between challenging evidence and running a case that is inconsistent with the truth.
This is because it is for the prosecution to prove that the accused is guilty beyond reasonable doubt. The accused does not need to prove anything, an accused is not even required to give evidence.
Let us consider a hypothetical example:
John Smith is charged with stabbing Henry James. John and Henry are not known to each other. The incident occurs very quickly in a dark alley way at night. There are no other witnesses to the incident.
Henry identifies John as the perpetrator in a photo board line-up 2 weeks after the incident occurred.
John hires a criminal lawyer. John tells the criminal lawyer that he stabbed Henry but that he wants to fight the charge.
The criminal lawyer is not prohibited from representing John and saying to the jury that there is not enough evidence to find John guilty. For example, the case can be run in the following way:
1. That it was dark.
2. That Henry did not know John prior to this day.
3. That it all happened quickly.
4. That Henry did not get a good look at his perpetrators face.
5. That Henry was shocked and scared at the time of the incident.
6. That Henry picked him out from the photo board line-up two whole weeks after the incident when his memory was no longer fresh.
7. That Henry could not be certain it was John when he later identified him and that at best it was a guess; and
8. Ultimately that the jury would not be satisfied beyond reasonable doubt that it was John who stabbed Henry
In the above scenario the criminal lawyer has not breached any of the Solicitors’ Rules. The criminal lawyer challenged the cogency of the evidence without running a case that was inconsistent with the truth.
The criminal lawyer ran a case which basically suggested that there wasn’t enough evidence to be satisfied, beyond reasonable doubt, that John was guilty.
On the other hand, if the criminal lawyer ran a case in which the defence positively asserted that it was not John who stabbed Henry, that would amount to a breach of the Solicitor’s Rules.
For example, if the Criminal Lawyer called evidence in the defence case that attempted to establish that John was somewhere else at the time of the stabbing, that would be a breach because the criminal lawyer would be intentionally misleading the court and running a case that is inconsistent with the confession.
If a client insists on running a case that is inconsistent with the truth, the criminal lawyer is obligated to withdraw from the case.
In fact, in all circumstances of this kind, it is best practise that where possible the criminal lawyer withdraws from the case and allows the accused person to find a different criminal lawyer to represent them.
Absolutely not. It is not only improper, but it is again a significant breach of the Solicitors’ Rules.
Most people are surprised when they meet a criminal lawyer for the first time. Television and film make it seem as though everyone sits around a round table smoking tobacco and drinking hard liquor trying to decide what the best story to run is.
Unfortunately, that is not the case at all. Criminal lawyers can only take instructions from their clients, they cannot suggest versions or stories to their clients.
If a criminal lawyer were to be caught helping an accused person come up with a fabricated story it would result in serious professional ramifications and potentially even criminal charges.
It is not difficult to imagine a scenario in which a criminal lawyer would be caught out for such behaviour:
Prosecutor: So, why did you make that up?
Accused: Well, my lawyer told me to say that.
We doubt that any criminal lawyer would be foolish enough to undertake such behaviour.
You can scroll through the comments on any media outlets Facebook page and you are bound to find it, “they’ll just claim mental health and get off”.
Yes, criminal lawyers get this question all the time.
If only a criminal lawyer could just go to court and say, “your Honour my client is mentally ill, please withdraw all of the charges”. We would call ourselves Australian Criminal and Family Lawyers and Psychiatrists.
Unfortunately, it really is not that easy to “claim mental health”. A criminal lawyer cannot just go to court and claim “mental health” on behalf of their client.
There are generally four circumstances in which a person’s mental health can be relevant to a criminal law matter:
Fitness relates to the accused persons ability to be tried – that is, their ability to participate and provide instructions to their lawyers.
This is a complete defence which can be raised by an accused person. The court must be satisfied that the accused person suffered from a mental illness of such significant that they could not be held responsible for their actions.
A section 32 application can be made to divert a person away from the criminal justice system if a person suffers from a mental health condition. If the application is successful, the court will discharge the accused person into the care of a medical professional.
When sentencing a person for a criminal offence, a court can take into a person’s mental health as one of many factors. This is especially so if the persons mental health contributed to their offending.
However, in any of the above circumstances, an accused person will need to satisfy the court they in fact suffer with a mental health condition or illness.
The accused person will need to be assessed by a medical expert who will undertake a thorough examination of the accused and prepare a lengthy and detailed report. These examinations are extensive and extremely detailed and almost are impossible to fake.
In some cases, if the prosecution is doubtful about the defence expert’s findings, the prosecution can have the accused person re-examined by one of their own medical experts to ensure that the findings of the defence expert were accurate.
It would be near impossible for a person to successfully mislead two different medical experts into believing that they suffer with a mental condition or illness.
So, criminal lawyers do not “just claim mental health” on behalf of their clients. The law, however, does make appropriate concessions and defences for people who do suffer with mental illnesses or conditions.
If it were solely a financial a question, most criminal lawyers would wish that they took up commercial law instead.
Despite this widespread idea that all lawyers make lots of money, most criminal lawyers are an exception to that rule.
No one becomes a criminal lawyer for the purpose of making lots of money. Most of the time, criminal law clients come from financially deprived backgrounds and are unable to pay legal fees at an industry rate.
Most criminal lawyers – if not, all – spend significant amounts of their time doing unpaid work or work under a Legal Aid grant which pays lawyers at best less than a fifth of their commercial law counterparts.
At Australian Criminal and Family Lawyers we regularly undertake unpaid work, we regularly offer free legal advice sessions, we volunteer our time at community legal centres, and we operate a 24-hour emergency criminal law advice hotline for free.
Contrary to the common belief, our firm, and most criminal lawyers we know go above beyond in assisting people to obtain justice.
Our Sydney Criminal lawyers are ready to take calls 24 hours, 7 days a week. Call us now on 1300SILENT (1300-745-368) or alternatively 0448 142 113 to get immediate legal advice.
At Australian Criminal and Family Lawyers we appreciate that no matter how large or small your legal problem is, it will require a dedicated legal team to fight for you.
