- Legal defence tactics called into question
- By Michael Pelly
- 12/03/2005 Make a Comment (1)
- Contributed by: Rambo ( 3 articles in 2005 )
The Premier, Bob Carr, yesterday backed comments by a Crown prosecutor that lawyers are resorting to ambush and trickery in defending their clients.
Margaret Cunneen, who conducted most of Sydney's notorious gang rape trials, said some advocates have "a kind of misplaced altruism that it is somehow a noble thing to assist a criminal to evade conviction".
Her comments drew a sharp response from the NSW Bar Association, Law Society and the Senior Public Defender, Peter Zahra, SC, who said she had "chosen to perpetuate stereotypical and false images of defence lawyers".
"Defending those charged with criminal matters is a heavy burden," Mr Zahra said.
Mrs Cunneen told first-year Newcastle University law students on Thursday night it was important for practitioners to exercise "honesty and balance".
"Justice isn't achieved by ambush, trickery, dragging proceedings out in a war of attrition with witnesses."
She also said "many criminal trials result in orders for retrials due to very minor matters which seem most unlikely to have made any difference to the jury - the tribunal of fact - which does, after all, have the advantage of seeing the witnesses give their evidence in person".
The Premier said he would be happy to talk to rape victim Ms C, whom Ms Cunneen said had refused to see doctors out of fear that her medical records could be used at the retrial ordered by the Court of Criminal Appeal.
He said the Government was working hard to reform the law to make it easier for rape victims.
"Frankly, I'm on [Ms Cunneen's] side," Mr Carr said. "There is a problem with defence lawyers using every trick in the book to string things out for their clients."
However, the Attorney-General Bob Debus, said it was important to strike a balance "between the rights of victims and the right for everyone to a fair trial".
The president of the Law Society, John McIntyre, urged Ms Cunneen to report any misconduct and assured her the society would investigate.
He said it would be better if she named particular instances "rather than making generalised statements about people that reflect on everyone in the process".
Robert Toner, SC, of the NSW Bar Association, said Ms Cunneen had taken "the perspective of a Crown prosecutor".
"A barrister ... represents a client. If the law allows an accused to adopt a particular position it would be negligent not to pursue that.
"There was an element of frustration in what she had to say. But it's not as if the law is making it harder for the Crown to prove its case."
Mr Zahra, who represented the Skaf brothers at one of their successful appeals, said Ms Cunneen's comments were "regrettable".
"It is of concern that her comments will damage and erode public confidence in the criminal justice system," he said.
Margaret Cunneen, who conducted most of Sydney's notorious gang rape trials, said some advocates have "a kind of misplaced altruism that it is somehow a noble thing to assist a criminal to evade conviction".
Her comments drew a sharp response from the NSW Bar Association, Law Society and the Senior Public Defender, Peter Zahra, SC, who said she had "chosen to perpetuate stereotypical and false images of defence lawyers".
"Defending those charged with criminal matters is a heavy burden," Mr Zahra said.
Mrs Cunneen told first-year Newcastle University law students on Thursday night it was important for practitioners to exercise "honesty and balance".
"Justice isn't achieved by ambush, trickery, dragging proceedings out in a war of attrition with witnesses."
She also said "many criminal trials result in orders for retrials due to very minor matters which seem most unlikely to have made any difference to the jury - the tribunal of fact - which does, after all, have the advantage of seeing the witnesses give their evidence in person".
The Premier said he would be happy to talk to rape victim Ms C, whom Ms Cunneen said had refused to see doctors out of fear that her medical records could be used at the retrial ordered by the Court of Criminal Appeal.
He said the Government was working hard to reform the law to make it easier for rape victims.
"Frankly, I'm on [Ms Cunneen's] side," Mr Carr said. "There is a problem with defence lawyers using every trick in the book to string things out for their clients."
However, the Attorney-General Bob Debus, said it was important to strike a balance "between the rights of victims and the right for everyone to a fair trial".
The president of the Law Society, John McIntyre, urged Ms Cunneen to report any misconduct and assured her the society would investigate.
He said it would be better if she named particular instances "rather than making generalised statements about people that reflect on everyone in the process".
Robert Toner, SC, of the NSW Bar Association, said Ms Cunneen had taken "the perspective of a Crown prosecutor".
"A barrister ... represents a client. If the law allows an accused to adopt a particular position it would be negligent not to pursue that.
"There was an element of frustration in what she had to say. But it's not as if the law is making it harder for the Crown to prove its case."
Mr Zahra, who represented the Skaf brothers at one of their successful appeals, said Ms Cunneen's comments were "regrettable".
"It is of concern that her comments will damage and erode public confidence in the criminal justice system," he said.
Source: https://www.smh.com.au/news/legal/legal-defence-tactics-called-into-question/2005/03/11/1110417690911.html
This article maybe 9yrs old but it's even more relevant today as our legal system crashes and so do many of the rights and protections people should be afforded under the law.
One simple answer to delays and injustice is to keep courts for proper crimes, not have business and corporations use courts to enforce their unlawful revenue raising failures and issuance of unjust fines and sloppy contracts and business practices.
But hey, who could argue these days that law is more synonymous with money, than it is with common sense, fairness or what's just.
While money is the engine that drives the train, victims and justice will have to take a back seat in the caboose.
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