Introduction
The role of lawyers, in contemporary Australia, is seen to be important not only for the pursuit of justice, but, due to the existence of an adversarial system, for its continuing efficacy. In light of my observations, lawyers representing clients in criminal matters in local courts, an evaluation of that role can be made: where does there arise a need for lawyers? How were lawyers viewed in the past and how are they viewed today? How well do lawyers fulfil their duties to the client and court? These are the main questions which I shall address in my analysis.
Where does there arise a need for lawyers?
It is clear advocacy appeared early in the development of the Common Law system, sometime in the 13th century . Since then, the lawyer has gained recognition of being more than just a mouthpiece, but “by virtue of a long tradition, in a relationship of intimate collaboration with the judges… to make successful the service of law to the community” . So essential is this relationship in the delivery of law that the need for lawyers can be illustrated by looking at the contra situation, that is, unrepresented cases.
In the judgment of Mason CJ and McHugh J in Dietrich v the Queen , their Honours noted that:
“[A]n unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown.”
In other instances, an unrepresented defendant cannot raise a defence not only due to a lack of legal skills , but also because of other obstructions such as language barriers , “class or cultural differences” .
Even if the defendant had no such barriers, their Honours recognised that “it is in the best interests… of the administration of justice that an accused be represented, particularly when the charge is serious” . An example of this could be where it is in the best interests of an alleged victim in a rape case that the witness is not subjected to the torment of cross-examination by the alleged attacker.
One final point that could be raised for the need for representation is to release the judge from acting as a “helping hand” for an unrepresented accused . Not only because (as their Honours argued) of the differences between the roles of a judge and a defence counsel but also, it can be said, should this practice become the norm, the additional duties and workload of magistrates will overload an already-stressed local court system . Represented defendants, it can be argued, accelerate the judicial process because their lawyers have professional responsibilities not to waste court time “in the pursuit of submissions which are really unarguable” .
How were lawyers viewed in the past and how are they viewed today?
It was with a “painful prejudice ” that lawyers were viewed in the past. DuCann in The Art of the Advocate outlined the various examples of vilification and persecution in his introduction. Especially notable was the quote of Jonathan Swift: “[lawyers are] a society of men bred up from their youth in the art of proving… that white is black and black is white according as they are paid”. But it can be argued that so much time has elapsed, and with the development of the standards of professional responsibility , that, as DuCann rightly pointed out, “it would be… misguided to judge the lawyer of today by the standards of the eighteenth century”.
Another view of the past was that lawyers and judges were somewhat detached and “insulated from the realities of life” . In my observations, this was not proven, especially in Case 1, where the defence lawyer, no doubt current with the nonchalance of modern day sexual relations, challenged a question with the retort, “Your Honour, I object to the question, for it assumes that people who sleep together are necessarily in a relationship”. Likewise, the magistrate showed no surprise or abhorrence to homosexual relationships . From my observations, it is clear that lawyers and magistrates are not as insulated as in the past.
Another past criticism of lawyers has been the law’s delay , : that lawyers love “scenes… which add nothing to the proceedings except to their length”. However, these were not consistent with my court experience where most matters were concluded within one day. This view is also inconsistent with the current standards of professional responsibility, “to avoid unnecessary expense and waste of the court’s time” . Indeed, certain magistrates will refuse to listen to a matter any further if they deem it a waste of the court’s time .
How well do lawyers fulfil their duties to the client and court?
Within some three hundred years since the time of Jonathan Swift and the vilification of the lawyers there has been the recognition and establishment of the lawyer’s duties to the client and the court. In contrast to Swift’s “white is black and black is white according as they are paid” , Dal Point outlines the contemporary Australian standards of a lawyer’s duties to the court: that it is paramount over all other duties, that lawyers should act independently and with candour .
The chief duty of candour can be seen in the local court by some examples which I observed: the self-represented defendant in Case 2, after the dismissal of the charge, sought costs because she had to be absent from work to attend court. The magistrate, unsure of the procedure in this case, asked the prosecutor, who read the relevant sections from the Criminal Procedure Act (NSW) . However, I note that in most instances there is limited need to cite case law and other authorities in the local court, because the statute law is well-established.
The duty of candour in the presentation of facts and documents can be seen by the witness-examining procedure: before evidence is tendered, the lawyer asks the witness to verify whether the evidence is a true document, therefore not presenting the court any evidence which “to the lawyer’s knowledge [is] false or misleading”.
But the question of candour again arises when I consider cross-examination. If, as Dal Point notes, “a practitioner must not knowingly make a misleading statement to court on any matter” , does this apply to leading questions in cross-examination? I found my view changed completely after cross-examination: surely hypothetical questions, even if they are denied by the witness, pervert and mislead the mindset of those observing ? Further, if I felt misled by cross-examination, what can be said of lay jurors in more serious criminal cases?
But generally candour was well-displayed in the cases I observed: the police prosecutor in Case 1 correcting himself because he had misled the court (if only slightly) by reversing the names of the defendant and victim in one instance of his oral submissions . From my observations, the standards of presentation as presented by Dal Point have been clearly complied with in a local court context.
But what of the fulfilment of duties to their client? DuCann generalises the situation: “[that] fully half of those who have resorted to the courts come away dissatisfied” . While it is hard to qualify client satisfaction from my observations, Zander cites a Royal Commission survey which showed an overwhelming vote of confidence, with 84 percent of clients expressing satisfaction. However, he notes that “the single exception… [to this vote of confidence is] in criminal cases”. Perhaps then, DuCann’s view is right for the criminal cases: by logic, convicted defendants will express their dissatisfaction to the lawyer and successful ones will not. On this point however, Zander argues, an “ordinary lay person cannot be expected to have a sufficient grasp of the law and practice to be able to make an informed assessment of the quality of the work done for him” . Therefore, because I agree with Zander’s opinion, I find client satisfaction as a poor indicator of the fulfilment of duties to a client.
Perhaps a better indicator is by judging the skill of advocacy, by comparing the skills of solicitors and barristers. The views of Berlins indicate a poor level of advocacy in the magistrates’ courts of London in 1979; that “many young barristers seemed incapable of forming a grammatically correct English sentence”. However, the skill of advocacy in the local courts seemed high; I felt the submissions were eloquent and cross-examination questions probing. With respect to skills of advocacy, my observations suggest a sound fulfilment of the lawyer’s duties.
Conclusions
The role of lawyers in the administration of justice is an important one: that advocacy is inextricably tied with the development of our Common Law system; that it is interest of justice and equity that no party appear unrepresented; that contemporary professional standards fortify the reputation of lawyers as independent advocates against previous centuries of vilification. In our local courts, the lawyer proves a vital catalyst for the efficacy of the justice system.
i was thinking, it's 9:30, she couldn'tve gone to sleep this early rigth?!