Criminal Law

Every person charged with a serious offence needs to be selective when they choose the criminal lawyer that will represent them in the Supreme Court or the District Court in Queensland.  Making the wrong choice could have disastrous long term consequences, not only in relation to the costs incurred but also for the ultimate outcome. Care needs to be taken in the selection of the legal team which, in the superior courts, is almost always a team comprised of a solicitor and a criminal law barrister.

It is not uncommon for an accused person to select their lawyer based upon public perception of which law firm is the best. Scratch a little deeper and make some enquiries of your own.  Those reputations may have been earned a long time ago by people that have since died, retired, moved on to other firms, moved into management or moved onto more lucrative clients, leaving their inexperienced juniors to handle new clients.  Find out which individual lawyer will have carriage of your matter and ask for details of that individual’s experience in criminal law jury trials.

Once the legal team has been selected, monitor their work and reconsider your position if changes occur to the defence team. Solicitors move from one firm to another, sometimes the barrister that was briefed has a conflict.  When a member of the legal team changes, re-evaluate the skills and experience of the lawyers you are left with.

At the Police Station

If you have been arrested, then the chances are that you will need to secure the services of a lawyer quickly.  Most lawyers will tell you not to give a police interview – ever.  Unfortunately, its not that simple.

If the offence is one that you are ultimately going to plead guilty to, then co-operating by taking part in a police interview goes a long way to mitigate or lessen the punishment that will be imposed. It is usually the case that if you have not participated in a record of interview at the beginning of the criminal law process, you will probably never be asked to do so at a  later time.  As well as the benefits that come from making confessions or admissions during an interview, special sentencing discounts can be attracted where a person makes a confession or admission about an offence not otherwise known to police or where they provide evidence against another person that is likely to lead to their conviction.

Even if you intend to plead not guilty and go to trial, participation in a record might of long term benefit to you.  If it is played at the trial, and they usually are, they provide an opportunity for the jury to see and hear your version of events without you having to get into the witness box and give evidence which has some serious downfalls.

Sometimes, a record of interview should simply not be given.

One answer does not fit all.  Your criminal law team should apply their minds to your factual scenario, to you personality, education and experience and to the likely course of your matter before they give you advice to act either way.

Alibi and Experts

If you intend to lead evidence of an alibi, that you were somewhere else for example, then you are required to give notice in writing to the Director of Public Prosecutions of the name and contact details of the alibi witness (section 590A of the Criminal Code).  That notice has to be given not later than 14 days after the committal.  If it is not given, then you can be prevented from calling the alibi witness at your trial.

Section 590B of the Criminal Code requires you to give notice of the name of any expert you intend to call to give evidence as well as details of any finding or opinion the expert proposes to give evidence about.  This notice has to be given in writing as soon as it is practicable to do so.

Disclosure

As soon as the committal brief is delivered, an assessment should be made of the disclosure that has been provided.

The brief will contain the written statements of the witnesses that the prosecution intend to rely upon to prove their case.  It should also include a copy of each exhibit intended to be relied upon, such as photographs, reports, analysis certificates etc.

The question for the defence team to determine at that point in time is often what has not been provided.  If something fundamental is missing, then it might justify a submission being made against the committal of one or more charges.  If it is not so fundamental, then it is a matter that would warrant a request being made for further disclosure.

Some often fruitful areas for further disclosure by the prosecution include:

·     Police notebooks and official diaries;

·     Applications for search warrants or for post search approval orders;

·     Digital recordings (hand held);

·     Criminal history of a prosecution witness;

·     Copies of statements that the prosecution took but do not intend to rely upon;

·     The brief given to a prosecution expert;

Subpoenas

There are limits on the disclosure that must be given by the prosecution, beyond which it is necessary to conduct your own investigations.  Thinking about the nature of the case, it is sometimes fruitful to have a subpoena issued requiring a person to produce documents, such as:

• ·     Queensland police for material not directly relevant to the charge;
• ·     Queensland Health
• ·     Child Safety;
• ·     Telephone companies;
• ·     Organizations holding CCTV footage

The list of possible recipients is almost endless and depends upon the nature of the case against you and the nature of your defence.

In the District Court, subpoenas to produce documents require an Order from the court before they can be issued.  An order is not required in the Supreme Court, unless the Registrar refuses to issue it for some reason.

Keep in mind that if you want to use any of the documents produced on subpoena, then you have to be able to “prove” them. Usually that means that one of the witnesses has created or at least written upon the document, or they might be the keeper of the document.  If not, then you may need to subpoena an appropriate person to attend and to give evidence about the documents you want to enter into evidence.

You might also need a subpoena to attend to give evidence for a witness that you want to come along and give evidence on your behalf, just to make sure that they attend.

Subpoenas to attend usually do not need an Order in either court, unless the Registrar refuses to issue it for some reason.

Character Evidence

Obtaining the criminal history of a prosecution witness was mentioned earlier and their most obvious use is to attack the credit of the witness so that the jury are less likely to believe them.  Again, thought needs to be given to the nature of the case to be answered, but often the kind of criminal history that will have the most impact is the kind that goes to their honesty – so look for fraud, stealing and other dishonesty offences.  If it is intended to suggest that a prosecution witness is in fact the perpetrator, then perhaps convictions for similar offences might be relevant.

Subpoenas were also mentioned earlier and often they are issued to secure information that goes to the credit of a prosecution witness.  Similar considerations would then apply.

Keep in mind that if the character of a prosecution witness is attacked, then the character of the accused is open for similar scrutiny if he or she gives evidence.  The usual rule that an accused’s criminal convictions or past bad behaviour cannot be disclosed will not apply.

It is a balancing act and careful consideration needs to be given before you launch an attack on a prosecution witness’s chartacter.

Pre-Trial Issues

A pre-trial hearing may be required for many different reasons including applications:

• ·     to exclude evidence which is inadmissible, or which is admissible but should be excluded in the judge’s discretion;
• ·     to stay the prosecution either temporarily or permanently;
• ·     for further disclosure;
• ·     for particulars of the charge/s;
• ·     for the issue of subpoenas;
• ·     for leave to adduce certain evidence at the trial, such as sexual history, the identity of a notifier to Child Safety etc;
• ·     for directions on the conduct of the trial;
• ·     and the list goes on…..

Picking the Right Lawyer

The selection of the right lawyer from the outset can have a big impact upon how successful you are at the trial.  If the lawyer that you select does not do the necessary ground work, or does not know the many rules of practice and evidence that can affect the trial, it could have disastrous long term consequences for you, not only in relation to the costs incurred but also for the ultimate outcome.

Getting to a verdict of not guilty usually takes a lot of preparation and a lot of knowledge about criminal law, practice and evidence.

Our Brisbane lawyers can represent you in in any criminal law matter including bail applications, summary offences, committals, trials in the District and Supreme Courts, as well as appeals in the District Court and Court of Appeal.

Legal Aid may be available.