In my first year at law school I remember agonising over what electives I should take over the coming years. By way of career guidance, I was invited to chat with the many graduates who flooded our corridors with giant banners of their respective top-tier firms. Sadly, the only practical advice I took away about a career in criminal law was that I would be destined to a life of pauperism. The hackneyed phrase of ‘crime doesn’t pay’, according to my Armani-suit-wearing peers, evidently also applied to lawyers.
For the past eight months I have been employed as a criminal para-legal and I’ve had the pleasure of shadowing brilliant defence advocates at all levels of the criminal justice process – from pre-interview advice, bail applications, pleas, all the way through to jury empanelments, trials, and appeals. And I feel I should share my preliminary understandings of the elusive defence advocate role so that unlike myself, junior criminal law aficionados can make an informed decision about the electives they would like to pursue.
Humanising the Dehumanised:
The first realisation a defence apprentice encounters is the profound course of dehumanisation an accused person receives from the moment of contact with the criminal justice system. Within my first week at the Magistrates’ Court, a police informant approached us at a bail hearing and boldly asked, ‘are you guys representing my crook?’. That’s right, ‘my crook’. Our client had been branded as a criminal even prior to standing trial and had ostensibly become the officer’s personal chattel.
My induction into the courts taught me that the defence advocate is not only charged with the duty of holding prosecution to its burden of proving criminality beyond reasonable doubt, but equally, if not more importantly, the duty of presenting the individual behind the thick stain of criminality to the court. In other words, humanising the dehumanised.
Many people have queried me about the morality, or rather the perceived immorality of defending those who have committed particularly heinous crimes – with murder, rape, and paedophilia topping the abhorrence scale. I’m often asked ‘how can you not feel for the victim?’. There’s a common public misconception that defence advocacy somehow dictates an empathic disconnect from the victim. But what the public doesn’t understand is that any person who has the interpersonal capacity to empathise with a defendant, by necessary implication, also cannot help but position themselves in the shoes of the victim.
What I’ve come to understand and respect is that it is a fundamental tenet of criminal law that the assessment of guilt or innocence of the accused remains with the court – not the advocate. As expounded in the joint judgement of Duffy CJ, Dixon, Evatt and McTiernan JJ, in the High Court back in 1934:
‘Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.’
Thus, the defence advocate undertakes the moral position of ensuring that the conviction of the accused is secured by due process, and not on the evidence of mere suspicion or guesswork by the police or prosecutors. In doing so, the defence advocate not only preserves the protection of the defendant’s rights, but the rights of the unsuspecting public who, dare I say, may also find themselves in the shoes of the accused.
Following Your Passion:
I had the privilege of talking to an esteemed former judge of the Victorian Court of Appeal, Justice Frank Vincent, after he delivered a moving presentation to us at work about the perils of Centrelink’s Income Management scheme. Justice Vincent, who currently sits as a board member of the Victorian Law Reform Commission, had represented over 200 defendants in murder trials before his appointment to the Supreme Court bench in 1985.
I asked Justice Vincent about what he attributed his successful career in law to, and his response was that he always followed his passion for criminal law. He explained that a career in law was incredibly demanding, and his only source of motivation was that he genuinely loved his work as a criminal solicitor, barrister, and judge.
Justice Vincent taught me that a successful career in law was in fact a by-product of a genuine desire and passion for a specific field of law. And this is the advice I ought to have received from my graduate peers at law school.
If there are any criminal lawyers who want to share their experiences, please do so below.
 Tuckiar v R (1934) 52 CLR 335 at 346.