Criminal Law: Preparing a Defence

The Standard
In a previous article (“Watching It All Come Unstuck” (2007) 28 Qld Lawyer 11-16) I spoke of the guidelines laid down by the High Court of Australia and the Queensland Court of Appeal to which legal practitioners should adhere when defending people accused of criminal offences.

Justice Kirby turned his mind squarely to the issue in Nudd -v- R ((2006) 80 ALJR 614; 162 A Crim R 301; 225 ALR 161; [2006] HCA 9) and found that there are tasks that are ‘Rudimentary to the duties of a lawyer” (at p 636); and the “minimum standard required of attention to be given” (at p 637) to a case and an accused.  The standard then outlined by His Honour and in my submission endorsed by the remainder of the Court is as follows:

1 Research and thoroughly understand the ingredients in law of the charge brought against the accused.

2 Take proper instructions from the accused.

3 Advise the accused on the conduct of the trial, applying the law as understood to the facts as so revealed.

His Honour went further and added:
1 Researching and thoroughly understanding the ingredients in law includes properly understanding the statutory provisions under which the accused is charged; and reading the cases that have construed the statutory provisions.

2 Taking proper instructions from the accused includes taking a full and thorough proof of evidence from the accused, containing the version of the events of the accused, so far as the accused is willing to provide them.

3 Advising the accused on the conduct of the trial includes discussing and determining which available trial strategy can be adopted, with the informed instructions of the accused.

Written Instructions
Insofar as what those written instruction from the accused should include, in essence, they should contain the following three (3) constituent parts:

1 Comments on the depositions or the material provided to you by the Crown;

2 A statement of the relevant facts as they pertain to each and every charge, including appropriate background information; and

3 A statement of the relevant personal particulars of the accused, for the purposes of sentencing the accused, if that becomes necessary.

I have also prepared a slide show presentation containing all of this information, which may be of assistance to you.
(Criminal Law – Preparing a Defence)

In a subsequent post I will outline the type of advice an Accused is entitled to receive in respect of giving and / or calling evidence at his trial.