O'Brien & Smith Lawyers
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Our firm’s principal, Patrick Smith, is the author of ‘It’s the Law’, a regular column in the Weekly Advertiser. Below you will find links to some of these columns.

‘It’s The Law’ – Lawyers and 'guilty'

Occasionally I am asked by friends and family, “how do you represent someone when you know they’re guilty?”.

The first point I make when responding to the above question is that I am yet to be asked to actively defend a charge for a client when I know they are guilty. However, if I was I would refuse. As a solicitor, I must act in accordance with strict ethical rules known as Solicitor Conduct Rules. One of these rules (Rule 20.2) prohibits me stating to the Court that my client did not commit an offence if a client has advised me that they have committed the offence.

Occasionally I have acted for clients that I suspect may have committed the offence despite their instructions that they are innocent. However, I remind myself that that it is not my job to judge whether a client committed the offence they have been charged with; that is a job for the decision maker (judge, magistrate or jury). The prosecutor must present the case against the defendant and the defence lawyer acts on behalf of the defendant. The system cannot ensure justice if any of these participants (defence lawyer, prosecutor or decision maker) fails to adequately fulfil their role. Historical cases provide me with evidence that I could be wrong in suspecting a client is guilty. Sometimes a person who seems to have obviously committed the offence, based on initial media reports or gossip, are later cleared of the offence and are shown to have been innocent.

In 2005 as a year 11 student at Horsham College, my legal studies teacher Mr Blakely, impressed on our class the importance of a fair trial and vital role defence lawyers play through analysis of the Lindy Chamberlain murder trial (otherwise known as “the dingo ate my baby” case). Many readers will recall that in 1982 Ms Chamberlain was found guilty of murdering her nine-week-old daughter Azaria. It would have been hard to believe her innocence when expert analysis led by the Prosecution concluded that blood was found in the Chamberlains' car. Ms Chamberlain spent more than three years in prison before new evidence was found leading to her release. It was later found that the stain believed to have been blood that was found in the Chamberlains' car was most likely a sound-deadening compound from a manufacturing over-spray.

For those who subscribe to Netflix, the documentary ‘Central Park Five’ provides a US example of how individuals who appear clearly guilty can be innocent. The documentary details the conviction of five teenagers of African-American and Hispanic descent for the rape and attempted murder of a 28-year-old white female jogger in Central Park in New York in 1989. The recorded confessions from the accused made them look obviously guilty. However, their claims that they had been intimidated into making false confessions was shown to be true when in 2002 a convicted murderer and serial rapist in prison (Matias Reyes) confessed to raping the victim, and DNA evidence confirmed his guilt.

The above cases, and others, remind me to ensure that I do not pre-judge my clients.

Competent legal advice can make a significant difference when a person’s liberty is at stake through the possibility of imprisonment. If you or a family member are charged with a criminal offence, I recommend engaging a solicitor as soon as possible to ensure that your rights are protected and that you receive the best possible outcome.

Patrick Smith