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September 18, 2015

Guest Lecture: The Role of the Defence Lawyer in Ensuring a Fair Trial

by dankrogers

I was pleased to present a guest lecture to an audience of law students at the University of Queensland last Friday. The lecture formed part of the Criminal Law and Procedure course for second and third year students at a point where the students were learning about the concept of a ‘fair trial’. In the hour that I had, I spoke about my experiences as a practising criminal defence lawyer and why I chose to practise in this area of law.

I chose criminal law for many reasons. I like representing the rights and interests of vulnerable individuals in crisis. I also like the idea of levelling the playing field when a client faces a prosecution by the State with all its might and resources. I love court rooms, advocacy and fair outcomes.

I could not imagine myself stuck behind a desk all day reviewing contracts or acquisitions. My day’s activities are rarely planned. People get arrested, warrants get executed, bail applications need to be made and new and interesting cases cross my desk. The variety of personal backgrounds of my clients is always interesting. All prosecutions are serious. A defendant’s liberty and reputation is at stake. My role, in ensuring a fair trial, assumes great importance for clients.

For criminal trials, the starting point is the presumption of innocence and secondly, that the Crown bears the onus of proof. Defence lawyers have a vital role to play in ensuring a fair trial because of the imbalance that exists between a State and its citizens. This imbalance is most evident in relation to the State’s powers of investigation. Police have board powers in their investigations. They have the right to obtain a warrant and seize documents and other evidence. They can take someone’s fingerprints or other bodily samples and can force an accused to participate in a line-up procedure. In addition to these powers, the State has financial and other resources not available to the individual.

Generally, a trial is considered fair when it is conducted according to law. This is not enough in some scenarios and Judges have the ability to recognise the significance of entirely lawful unfairness. This may occur because of pre-trial publicity, jury irregularity, delay or some other abuse of the court process. In these instances, defence lawyers have a duty to their clients to ensure they make the appropriate applications to the Court. Our system of law is an adversarial one. It is sometimes described as a contest between opposing sides. This means that there is a great dependence on good criminal defence to ensure a trial is conducted fairly.

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