Outback at the beach; defend the accused, & Julian Burnside QC

Sand, river, ocean, beach- ah it’s great to be back! I have a week off, starting today, in a very small cabin in a very small town near where I grew up. Hopefully it will give us some time to rest after the pace of the last three months.

Actually the town is not as small now as it was… I spent the morning today wandering through it and comparing the changes 1992 – 2010. It’s almost twenty years ago I used to catch the bus down with my surfboard, get told off (wrongly!) by the driver who thought I was wagging school, surf for a few hours and catch the bus back. There are lots of new shops, the pace seems a bit faster, but the beach is the same. Just beautiful.

Whilst it’s a break, I’ve found myself wondering about clients and work a bit already. Did I properly sort out that email I received? Was the advice to that other client complete? Should I ring work and check? I suppose such concerns are common to most people on holidays, and I’m no exception. By tomorrow I probably won’t be thinking about it at all.

Last week we had a plan ready to deal with appearance work in several courts across the state. We intended to drive to the first court where I would leave the senior lawyer and the practice manager, and continue alone another hundred k’s or so to the next court. As it turned out, the weather stopped us getting through. Severe flooding combined with a semi-trailer losing its load closed the road entirely, and the detour was unsealed- definitely 4WD only.

So I ended up at the first stop with the others and appearing in a matter which I had already briefed another lawyer to handle. It was satisfying; after several months of preparation work I took the defence to the final step of appearance, and we achieved a very good outcome.

Maybe this is a good point to address a common question society asks about defence lawyers. Before I get to the question I have a little story. A barrister friend appeared recently for a client who was charged with crimes which, in the eyes of many, were despicable. He was surrounded by hostile, angry and vocal people on his way out of the court. As they say, he ran the gauntlet. I found myself asking (though I knew) why this had happened.

The reason it happened, of course, is that some people do not understand what a good defence lawyer does. A good defence lawyer presents the client’s case. I don’t really think there is much more to it than that. My experience so far- and it’s limited, as you know- is that most lawyers advise their clients of the case against them, seek instructions from the client and act on those instructions. They simply assist the client by helping them navigate correctly through the law.

How does the community know if a person is guilty? Through the trial! There is no other test that I know of save the one we possess in the criminal trial. The judge doesn’t know. The defence lawyer doesn’t know. The prosecutor doesn’t know. And you can be sure the crowd outside who were mobbing my friend last week didn’t know.

It is difficult to see what alternative such protesters have in mind when they take the decision away from courts and into their loungerooms and pubs and offices. Are they are more impartial decision making body? Of course not. The courts provide the mechanism for a person accused of a crime to speak in their own defence- often, through a lawyer. It is a very important process, and while it is (and should be) subject to critique, it must also be allowed to function.

Of course, this doesn’t mean it’s easy for some of those involved. I understand that there is a lot of pain for victims and their families and friends during a criminal trial.  Friends of mine who are lawyers do a lot of work assisting victims of crime; this is another critical facet of the legal process.

Back to my holiday for a while- I picked up a copy of Julian Burnside QC’s book Watching Brief at the opp shop last week. Has anyone read it, what did you think? It looks great so far, and I plan to give some thoughts when I’ve finished.

For the vision splendid-

The Outback Lawyer.

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