A topic of conversation that always comes up when I mention that I’m doing a placement with a criminal barrister, one who works as both defence counsel and for the prosecution, is the idea of representing a client who is ‘guilty’. I’m asked “but what if you know that they did it?” and “wouldn’t you feel bad if they got off?” The thing is, as defence counsel – these are not your concern, for the most part. I believe that it is counterproductive and unnecessary to determine the guilt of a client prior or during your time representing them, for a number of reasons that I will outline.
Firstly, the burden of proof depends on the state. The prosecution, with the assistance of evidence gathered during police and /or forensic investigation,…show more content… It was a drug trafficking case, and C has prior convictions for similar offences. Briefly, the drug investigation branch found C at home with almost $10,000 in cash hidden in his underwear, and flushed remnants of methamphetamine in his toilet. Nick and I were convinced that C needed to plead. However, when it got to trial, * J gave the prosecutor a particularly difficult time because, as it became evident, the prosecutor had effectively no evidence: no samples had been taken from the sink that C had allegedly used to flush drugs down. A trained police dog that had run to the bathroom, and knelt down to indicate the presence of drugs. This came an enormous shock to the courtroom. I had assumed that the prosecution had had some solid evidence to go to trial with, and I believe that Nick had similarly overlooked the lack of evidence. Nick’s client was annoyed and said, “You wanted me to plead guilty!” By a stroke of luck, Nick’s client escaped unscathed. Nick jumped on Her Honour’s observations and a nolle prosequi resulted. This was a valuable lesson for me because I realized that sometimes matters that appear obvious (for example: the absence of evidence) might go unnoticed, even through a number of good hands at the DPP. It is for you, then, as a lawyer, to ensure that the state, at all stages, is held to a high standard.
The flipside of this is that it must be incredibly frustrating for a prosecutor