BEEN CHARGED BY POLICE? DO I NEED A LAWYER?
Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of criminal and/or human rights law before acting or relying on any of its content.
A question that those charged with criminal offences ask lawyers frequently is “do I need a criminal lawyer?”. It may seem a little odd for a client to ask a lawyer whether they need his or her services. Indeed, some may say that there is bound to be an element of bias in any answer that the lawyer gives. Nonetheless, it is an important question and what follows is my attempt to answer the question objectively and dispassionately.
The answer to this question is “it depends”. It really depends upon:
The nature of the charge you are facing. As a general proposition, the more serious the charge the more inclined I would be to recommend that you retain the services of a barrister or solicitor (and where a particularly serious charge or charges: both!).
Whether you retain an effective criminal defence lawyer. It is trite to say but if the criminal lawyer you engage lacks professionalism – and provides substandard advice and advocacy – it may well be the case that you will be better placed representing yourself.
In my view an effective criminal lawyer can bring a number of benefits as well as disadvantages. However, in the overwhelming amount of cases I believe that the decision to retain a lawyer is justified.
For the reasons why, it is important to look at the pros and cons of engaging a barrister or solicitor.
Benefits of having a criminal lawyer
(1) An effective criminal lawyer knows, and fights vigorously for, your legal rights. Our legal system is an adversarial system in which the court has a passive role. It is the role or responsibility of the parties or their lawyers to argue their case. Self-represented persons are therefore met with the difficult tasks of understanding and presenting all material relevant to their criminal case to the court. Lack of knowledge of the legislation such as the Crimes Act 1900 (NSW) and case law can be a substantial first hurdle for a self-represented person to overcome. The complexity of the law and the legal language employed can be difficult to grasp. Moreover, once the relevant law has been understood, there is the challenge of communicating it effectively to the court. It must be communicated in a clear and concise manner and, importantly, in a way that complies with the rules of evidence. The difficulties for self-represented persons are compounded by the fact that the Prosecution will have had prior experience running cases and will have professional legal advocacy skills. This tends to create an uneven playing field and the court’s ability to assist a self-represented accused person can be limited as the magistrate or judge must maintain neutrality.
(2) An effective criminal lawyer is discrete. While media comments can be appropriate in certain cases, it should always be in the client’s best interest and not simply to enhance the lawyer’s public profile.
(3) An effective criminal lawyer can concentrate on the issues the court is interested in rather than those that are likely to unnecessarily elongate proceedings or aggravate the judge or magistrate. He or she can also save you time and money by not mounting arguments which are destined to fail.
(4) An effective criminal lawyer understands the theory and the practice of law and knows how to customise it to your case. The law can be convoluted, complex and ever changing. A lawyer is able to identify the elements of an offence and assess:
(a) Whether police have enough evidence to bring the charge against you;
(b) Whether any technical defences are available to you. These are sometimes – and erroneously – called loopholes but in actual fact it may simply be a case where police are incapable of proving their case because they cannot show, beyond reasonable doubt, that you are responsible for the conduct in question; and
(c) Whether the charge is appropriate. In my experience, it is not unusual for police to “over charge”; i.e. lay a serious charge when a lesser one will do. In these circumstances an experienced criminal defence lawyer can negotiate a more satisfactory outcome for you.
(5) An effective criminal lawyer readily understands the Evidence Act, which governs the admissibility of things like documents and exhibits. There is no good having a brilliant piece of evidence if the court will not let you tender it!
(6) An effective lawyer is adept at distinguishing your matter from the many others that are likely to be before a court – whether Local, District or Supreme – on any given day.
(7) An effective criminal lawyer will assist you in collating character references and other material to put before the court. While it is not appropriate for a criminal defence lawyer to assist in writing the reference, an experienced criminal lawyer can discuss with you the sorts of issues that your referees should concentrate on, and which the court see as most relevant.
(8) An effective criminal lawyer regularly works with other service providers and experts, including employment agencies, drug and alcohol rehabilitation facilities, medical professionals, social workers, expert witnesses etc. The best sentencing results, for example, generally involve holistic outcomes.
(9) Experience matters – as clichéd as it sounds, if you had a serious medical ailment you would probably go to the Doctor rather than attempting to remedy it yourself. Similarly, if you have a legal problem it is probably a good idea to seek out a lawyer.
Disadvantages or Downsides of having legal representation
(1) The chief downside cited when engaging a lawyer is the cost involved. While it is accepted that engaging a lawyer can be an expensive exercise, the costs need to be kept in perspective. For example, if you stand to lose your career, liberty or livelihood because of a criminal offence, then the financial outlay may well be warranted.
(2) Passion. Clients seem to love a passionate lawyer. Sometimes passion can be a good thing and it is likely that your lawyer may not be a passionate about your case as you are. After all, it is you as an affected party in criminal proceedings that is likely to be the one stands to lose the most from the outcome. However, too much passion – absent a strategy, legal acumen and an ability to look at your legal problem objectively – can be a serious liability
(3) It is sometimes said that by retaining a lawyer it shows the court that you are taking the matter seriously (or even more seriously). In my view this is unconvincing. The reality is legal costs are not inexpensive and speaking to colleagues in NSW, South Australia and the Northern Territory, the overwhelming view is that magistrates and judges would never hold it against an accused person because they cannot afford a lawyer.
Having said all of that, if the expense of having a lawyer is simply too much then it may be prudent to seek advice from Legal Aid or a Community Legal Centre. Universities, too, sometimes have schemes that can be accessed by those who cannot afford a lawyer.
Organisations such as Justice Net in South Australia also do an amazing job of assisting unrepresented litigants. The New South Wales Bar Association’s Duty Barrister Schemes have been introduced to particular Local Courts to help people who cannot afford a lawyer, who do not qualify for legal aid and who have a matter before the court on the day. The NSW Bar Association also has a Legal Assistance Referral Scheme (LARS) which is worth looking into.
As mentioned, Community Legal Centres can also be a great source of assistance and it is recommended that you use Google to find such a centre in your local area.
As a last resort, if your attempts to obtain Legal Aid or other reduced fee services are unsuccessful, you may wish to consider legal publications such as the Law Handbook and Legal Information Access Centre at the State Library of New South Wales, as well as LawAccess.
Still not convinced?
Studies that have demonstrated that self-represented litigants are less likely to be successful than those litigants who have engaged professional legal representation (54% dismissed compared with 31%). They are more likely to discontinue (24% compared with 20%) and are more likely to be ordered to pay costs (68% compared with 38%). See Helen Gamble and Richard Mohr, Litigants in Person in the Federal Court of Australia and the Administrative Appeals Tribunal: A Research Note, Paper presented to the Sixteenth Annual AIJA Annual Conference Melbourne, 4-6 September, 1998.
CRIMINAL CHARGES – THE NEED TO MOVE QUICKLY
Hopefully, I have made a decent enough case as to why retaining a criminal lawyer ought to be considered.
I now seek to demonstrate why moving quickly with respect to your criminal charges can be a real advantage, irrespective of whether you propose to plead guilty or not guilty.
For example, it is not unusual for police to “over charge”, and on occasion, bring a wrong charge altogether. By moving quickly, charges can sometimes be downgraded or withdrawn (often called plea bargaining in the U.S.).
Steps can be taken to preserve important evidence. For example, court orders can be sought to seize or preserve documents essential to your case.
Important witnesses can be contacted and statements taken supportive of your position and/or defence.
In some circumstances, it may be prudent for you to participate in a police record of interview (although in many cases it is not).
Private investigators can be retained to assist with your matter.
Criminal charges can also cause individuals a significant amount of stress and anxiety – or exacerbate underlying conditions that need to be addressed through psychologists, drug and alcohol counsellors, etc.
Sometimes it is possible to prevent criminal charges from being filed or laid altogether.
Like anything, preparation is vital.
By Sebastian De Brennan, Barrister, firstname.lastname@example.org