Criminal lawyers represent people from all walks of life.
Unfortunately, movies and TV shows have portrayed criminal lawyers in a bad light, prompting members of the public asking the question criminal lawyers get asked too often, “but how can you defend a criminal?”, or “how can you defend a guilty person?”.
Too often we hear about a media coverage of either someone charged with a serious alleged offence or how a criminal lawyer has got his/her client off a charge due to a “technicality” or “loop hole” in the law.
The job of a criminal lawyer is both difficult and rewarding.
Their clients range from taxi drivers, struggling single parents, troubled children, to corporations, directors, bankers, including the rich and famous.
A criminal lawyers job is not just to defend an accused person. It goes far beyond that.
A criminal lawyer’s role is generally governed by a set of values and rules, which have been reflected in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
The Solicitors’ conduct rules provide a foundation on how lawyers should ethically conduct themselves as practicing lawyers in Australia. This includes:
- To act in the best interest of their clients in any matter which the lawyer represents the client.
- To be honest and courteous in all dealings, in the course of working as a lawyer.
- To deliver legal services competently, diligently and as promptly as reasonably possible.
- To avoid any compromise to his/her dignity and professional independence; and
- To comply with the Solicitors’ conduct rules and the law.
A lawyer also has a paramount duty to the administration of justice and the court (rule 3 Solicitors Conduct Rules).
Our criminal justice system is built on the principle that we rather have a guilty person be let free than an innocent person jailed.
To reflect this principle in practice, for an accused person to be found guilty, the prosecution is required to prove, with sufficient evidence, to the court that the accused person committed the offence “beyond reasonable doubt”.
Up until such time, the accused person is presumed innocent.
In line with the same principle, the accused person is given the benefit of the doubt.
This means, if the extent of the evidence shows that an accused person ‘possibly’ committed the crime, the court would be required to return a verdict of “not guilty”, resulting in dismissal of the charge(s) and acquittal of the accused.
What Could Happen if We Didn’t Use the Current System of Criminal Justice?
Without this way of ‘doing things’ under the law, the police who are increasingly gaining more and more power will be able to charge and successfully prosecute a person based on a ‘word of mouth’ where there is limited to no reliable evidence.
This would then cause a chain of events against an accused person through the criminal justice system- effectively changing that individual’s life.
The accused would then either remain in custody on remand until the case is finally decided down the track- which can take years, or he/she can be released on bail conditions until such time.
The court would ultimately hear the evidence in court- which may be based on one person’s words, which may be based on a mistake or confusion by the witness- as people do in reality mishear and/or inaccurately recall events.
There have been many instances where an alleged victim or witness has given evidence in court that is incorrect due to a mistake, or out of an ulterior motive of revenge. Unfortunately, these things do occur.
Nonetheless, without the current criminal justice system in place, such evidence could create at least a possibility that the accused person committed the alleged crime- but if this is the extent of the standard of proof that’s required to establish guilt, an innocent person could easily be locked up in jail, in some cases for life!
Our current criminal justice system is built on a system to get rid of the chances of a tragedy like this occurring.
In our current system, if the prosecution fail to prove the charge beyond reasonable doubt with their evidence in court, then the charge will get dismissed.
What’s the Role of Criminal Lawyers in Sydney and Across the Nation Today?
A criminal defence lawyer is required to test the police’s evidence, to assist the court in determining it’s reliability in ultimately determining whether the evidence establishes the allegations beyond reasonable doubt.
A criminal lawyers task is a difficult one- they are the ones who stand against letting the state have endless power to punish anyone it desires.
A criminal defence lawyer’s role is to prevent any unreliable police evidence from being used against their client, which could otherwise lead to an innocent person being convicted with a jail sentence.
“But How Can you Defend a Criminal?”, or “How Can you Defend a Guilty Person?”
Keeping the above principles in mind, a criminal lawyer either defends a client from criminal charge(s) or represents a client for sentence.
Criminal lawyers are meant to act on those principles of law, which guides a lawyer in his/her role.
A criminal lawyers’ job is not to decide guilt or innocence, nor is it to judge their clients- the Court’s role is to do that, namely, to hear the evidence and decide on right or wrong, guilt or innocence.
Criminal lawyers are in a way, the vehicle by which the courts rely on to assist it in efficiently reaching to that end result, in the interest of justice.
The lawyer is there to ensure that the client’s rights are protected and is fairly treated, by ensuring the principles of law that protect everyone are upheld by police and courts.
This is to ensure that those same principles of law (that keep us all protected) are never blurred, which could otherwise create a situation where an innocent person is one day convicted and jailed.
A criminal lawyer continues to fight this battle with every client he/she represents.
What Happens When a Criminal Lawyer Comes Across a Client Who Confesses Guilt but Maintains a Plea of ‘Not Guilty’? “I Did It, But I Want You to Defend Me”.
When a client confesses guilt to his/her lawyer but maintains a plea of ‘not guilty’ to the criminal charge, the lawyer has any one of the following options according to rule 20.2 Solicitors’ Conduct Rules 2015:
- The lawyer can cease to represent the client if there’s enough time for the client to get another lawyer before the hearing or trial provided the client doesn’t insist on having the same lawyer; or
- If the same lawyer continued to represent the client, the lawyer must be careful in the way he/she runs the case, for example the way the case runs will be limited in the following ways:
- The lawyer will not be able to put a case forward on the basis that it was someone else who committed the offence.
- The case cannot be run in a way of putting forward a positive case inconsistent with the client’s confession. This means, that you will not be able to put forth evidence suggesting the client did not commit the crime. The lawyer will be limited to only testing the police evidence by cross examining each police witness and asking the court to conclude that they have not established their case beyond reasonable doubt against the client.
- The lawyer is required to stop acting for the client if the client insists on giving evidence denying guilt or in any way asserts he/she is innocent.
If the Client Pleads Guilty or if Found Guilty in Court
If a criminal lawyers’ client pleads guilty or is found guilty, the court will proceed to sentence where the Judge or Magistrate will determine an appropriate penalty to impose after hearing any further evidence the offender wishes to produce that may reduce the sentence.
In that case, the prosecution may also produce further evidence relevant to the sentence which may increase the sentence.
Where the evidence used by either party is unreliable or not relevant, the court should refuse to take it into account- otherwise this could produce an unfair sentence (i.e. heavier sentence). Sometimes, such evidence is still allowed by the court if there is no objection made to it.
A good switched on criminal lawyer will be able to object to such evidence to ensure that a fair sentence is achieved, and where possible to reduce the sentence for the client.
On the other hand, the prosecution will often try to produce evidence which may increase the sentence.
This is why we call our system an adversarial criminal justice system in Australia.
The overall duty of criminal lawyers is to assist the court in reaching an appropriate and fair outcome or sentence.
When acting for a client for sentence, a good criminal lawyer should produce all important relevant evidence in their clients favour to the court, which can significantly reduce the ultimate sentence.
The court will not be able to reach a fair sentence outcome unless it is made aware of all relevant and important pieces of evidence in favour and against the offender- a switched on criminal lawyer is crucial here.
This involves a criminal lawyer informing the court as to his/her client’s side of the story, and using the right method and form of evidence for it to be taken into account to its full extent.
A lawyers’ job also involves outlining to the court any reasons that contributed to his/her client’s offending conduct, and what he/she is doing to take steps towards rehabilitation to prevent this from recurring.
Providing an explanation to the court, as opposed to a justification, for the offence provides insight that can allow a court to impose a more lenient sentence with the principles of sentencing in mind.
A sloppy criminal lawyer who doesn’t do his/her job properly can make a big difference in the end result, which can result in an unfair sentence to a client.