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How the rule changes for sexual violence cases affect barristers

8 Sep 2023

| Author: Michael Bott

I recently received a call from the police. Someone had been arrested and charged with significant sexual offending. I felt the weight on my chest, knowing the enormous stress and long hours that lay ahead if I were to represent him – the pressure that would rest on my shoulders as he placed his future in my hands.

I went down to the cells at the station to see him. As he spoke, I realised I could not act. I was potentially conflicted as I might know a witness. I approached 12 other defence lawyers before finding one prepared to take the case on. The message was almost the same: “I have had enough of doing this. It is not worth it. I want my life back.”

How the state views lawyers who undertake legal aid work is clear from the fact that legal aid rates have been effectively frozen for close on 15 years. There was a recent small incremental increase, but the gulf between what lawyers receive for private work compared with legal aid rates grows wider and wider.

Successive governments have no interest in closing the gap. Car mechanics are now billing their labour at between $100 and $140 an hour. Further, when they finish work it does not follow them home and keep them awake. The Crown solicitor’s terms of office sets a senior prosecutor’s rate at $260 an hour. The hourly rate for senior legal aid trial lawyers is $146 and up to $178 for serious cases. A principal Crown prosecutor’s pay rate is $309 per hour. There is no equivalent legal aid rate.

It is as if the state believes criminal trial lawyers’ sense of professional obligation and social conscience mean they will keep some skin in the legal aid scheme. This view is corrosive of the wellbeing of practitioners, who have to work longer hours to meet the burgeoning demands of increased compliance, with recent rules and changes to trial process. All lawyers recall the sensible remarks of English jurist Blackstone,”[B]etter that ten guilty persons escape than one innocent suffer.”

One of the most painful parts of a defence lawyer’s job is that despite doing your best in trial, the jury comes back and finds guilty a client you believe to be innocent. Imprisonment follows and a life is ruined. Lying awake, you wonder if you could have done something better.

Unconcerned about possibly innocent people being banged up for things they did not do, Parliament has made a concerted effort to water down Blackstone’s sound caution, enacting laws that make it easier to convict people by shifting the goal posts.


No understanding

The new rules in relation to fast-tracking pre-recorded evidence from complainants in sexual violence cases and the increasing burdens placed on defence lawyers, combined with the low rates of remuneration, mean senior lawyers are leaving criminal defence work

I was reminded of this when attending a sexual violence legislation forum. A judge and an academic gave prepared talks about the changes and how they would help victims. Bullet points and graphs were displayed. But despite providing several questions during the forum about the impact upon fair trial rights, my questions went unanswered.

Parliament has foisted changes upon the criminal trial process with no understanding of their impacts on defendants (people presumed innocent). These changes will see criminal barristers who represent defendants in sexual violence cases doing significantly extra work.

Experienced practitioners told the select committee the proposals would be corrosive to fair trial rights. Still, it was as if the MPs were conducting open heart surgery on the failing body of justice, keeping their ears blocked and eyes shut as to the reality of how fair trial rights would be impacted. You can’t keep introducing extra processes with extra work for barristers without proper funding.

Starting with the loss of depositions, the delays from arrest to the laying of charges to the trial have ballooned and have become even worse post-covid. A person be charged today will have to wait well over a year before his or her case comes to trial.

To avoid the stress to complainants in sexual violence cases, their evidence must be pre-recorded, often a year in advance and very early in proceedings. While the case itself might be listed for trial in a year’s time, the barrister will have to prepare to cross examine the complainant at the outset and then, close to actual trial, review and sharpen the preparation again.

Another sign of the corrosive effects upon fair trial rights: complainants are now referred to as “victims” from the outset. Legally, the presumption of innocence means there is no victim until a court returns a verdict.

Worse, before recording the evidence, barristers must attend a ground-rules hearing and submit questions for the complainant to a judge, for vetting in advance. But at the start of a case, full disclosure is not available. Often, the Crown or police are providing disclosure – the evidence that informs the case – right up until the night before the trial gets underway.


Defence eroded

Not only does the Crown – with its larger resources, such as staff, police and forensic evidence – face off against a defendant and a sole lawyer, but the defence must now flag its defence at the start of the process.

This gives the Crown, with its greater resources and rates of remuneration, time to plug the holes, eroding a defendant’s right to silence and the traditional right to keep their defence under wraps until the trial gets underway in front of a jury.

Nobody wants to cause undue stress to complainants in sexual offending cases. But why are complainants in these cases effectively regarded as being inherently more truthful than complainants in other cases? And so much so that their evidence must be pre-recorded months or a year in advance?

Juries will now no longer see a complainant present his or her evidence live in court. They will receive advice about stress to victims and see a recording of their evidence and crossexamination. Behind all this, fair trial rights are being poorly served as a political agenda trumps the reality of how courts actually work.

Lawyers are now expected to lock in their trial strategy for defending a client presumed innocent before receiving the disclosure and before they have had the opportunity to read, reflect and consider all the evidence in totality before the trial commences.

Trial lawyers know the stress of jury trial work. The long hours, sleepless nights; the reading of often thousands of pages of evidence, including photographic exhibits, search warrants and call logs. Not to mention pre-trial appearances, preparing of pre-trial memoranda, visits to crime scenes and the occasional autopsy.

Then the day of trial, appearing often before a testy judge for a client who has placed his or her fate in your hands. You proceed to tell your client’s story before 12 men and women, trying to get to the answer through cross-examination. Endlessly concentrating, often for days, in a stuffy courtroom while trying to appear fresh, yet in reality knackered from reviewing the evidence and drafting your closing argument into the early hours. After the verdict – whatever it is – you are unable to work for the next few days because you are exhausted. Legal aid never compensates for the human toll our job exacts.

If your client has been in custody awaiting trial, it may be impossible for them to talk to their family. So they will ring you. You explain the options: if they plead guilty, what they can expect as a sentence, along with possible defence strategies. If the case goes to trial and there is a guilty verdict, often the defendant and his or her family will be shocked, then aggrieved. If a stiff sentence is handed down, there is often nothing to lose by blaming the lawyer.


Fixed fees

I once had a legal aid case where a mentally unwell client rejected my advice and went to trial. When convicted, he appealed. To answer his bizarre claims took me 50 hours. While I was vindicated on appeal, that was more time spent on top of the hours it took to defend a vulnerable client that would never be covered through fixed legal aid fees. His previous private lawyer had estimated a fee of around $25000 for the trial. On legal aid, I received under $6000.

I had another client, a gang member, who attempted to intimidate me. While granted leave to withdraw as his lawyer, one night while I was leaving my office a car with mirrored glass and a broken headlight tried to run me down. There was a contract on me.

In my time at the bar, I have seen colleagues burn through their lives as they tirelessly represent clients. I have had friends suicide, drop dead with heart attacks or have breakdowns. Our professional organisations talk about “practising well” while the pressures of criminal defence work, in terms of compliance measures, timetabling and process obligations, increase almost proportionally to the erosion of fair trial rights.

Our criminal defence bar deserves gratitude, not condemnation. The lawyers who represent accused people, without regard to economic status or racial or ethnic background, render a vital service to us all.

Unfortunately, we often lose sight of the burdens criminal lawyers have to bear. Without such people, we would have a justice system where fair trial rights become increasingly elusive concepts, meriting lip-service while ‘justice’ becomes atrophied. No wonder so many senior practitioners are voting with their feet. ■


Michael Bott was called to the bar in 2002 having previously worked in the construction industry. He represents people in cases as diverse as administrative law, appeals, jury trials, military courts martial and human rights cases ranging from the right to hunger strike to cycling in the nude ■

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