In an ideal world, protections such as this would not be required. However, defence lawyers practice in a high pressure, high stakes area of law. This exposes us to an increased risk of threats and intimidation.
By Keely McDonough -
Criminal defence lawyers in NSW will now have greater protection from threats and reprisals after new laws passed in Parliament this week, affording them the same safeguards already in place for judges, magistrates and prosecutors.
The Crimes Amendment (Protection of Criminal Defence Lawyers) Bill extends existing protections for public justice officials and is a move being hailed as long overdue by the defence community.
The reforms make it an offence for a person to threaten or cause an injury or detriment to a defence practitioner, including both solicitors and barristers in NSW, and the offence carries a maximum penalty of 10 years behind bars.
Defence Lawyers NSW (DLNSW) welcomed the changes, and DLNSW President Emmanuel Kerkyasharian told LSJ the action signifies an important recognition of the dangers practitioners face in their everyday work. DLNSW has been operating since 2018 and currently has 600 members. The organisation brings together the collective knowledge of defence lawyers and assists government with policy and legislation.
“Given the nature of the practise of defence lawyers, it is important that we get similar protections to everybody else. The Act provides recognition of the important role that defence lawyers play in the criminal justice system as well as [the importance of] protection for them in that role,” Kerkyasharian said.
“Our aim is to improve all aspects of the operation of the criminal justice system in NSW, and to protect and improve the rights of citizens accused of crime and improve the conditions of criminal defence lawyers.”
DLNSW proposed these amendments in a letter to Attorney General Mark Speakman in 2021, in response to the Law Enforcement Conduct Commission’s (LECC) report into its investigation ‘Operation Monza’, which examined the conduct of police behaviour towards a defence lawyer.
The investigation found three NSW Police Force officers from Strike Force Raptor were involved in the targeting of a practising solicitor in NSW, engaging in conduct which harassed and intimidated the solicitor.
Private hearings were conducted by the Commission from February to November in 2020. Two officers gave evidence stating they had been given instructions by their supervisor to target the solicitor on his way to court, and had carried out these instructions by inconveniencing the solicitor with minor traffic offences. The supervisor gave evidence stating that he had instructed the two officers as claimed.
“In response to that, DLNSW said something needed to change. We were looking at the legislation, and it had previously provided protections for judges and prosecutors, but there wasn’t protection for defence lawyers,” Kerkyasharian said.
Trudie Cameron, Practice director of Criminal Law at Armstrong Legal
In 2021, then President of the Law Society of NSW Juliana Warner wrote to former Police Commissioner Mick Fuller on behalf of the profession, expressing her concerns about the conduct of police uncovered by the LECC report into Operation Monza.
“The deliberate targeting of a solicitor, as uncovered by the Commission, so as to impede his or her ability to represent his or her client at court, is completely unacceptable and has raised significant concerns across the legal profession,” Warner said at the time.
“It presents a real threat to the community’s belief that the criminal justice system is operating as it should.”
Practice director of Criminal Law at Armstrong Legal Trudie Cameron told LSJ that defence lawyers should have always been included in the provision.
“In an ideal world, protections such as this would not be required,” Cameron said.
“However, defence lawyers practice in a high pressure, high stakes area of law. This exposes us to an increased risk of threats and intimidation, whether that be from persons for whom we act, other interested parties in proceedings or, as was the case with the incident that was the catalyst for Operation Monza, from police. “
Attorney General Mark Speakman said the reforms illustrate the NSW Government’s commitment to supporting frontline workers in all sectors, including the justice system and legal profession.
“Every person has the right to a fair trial, and to the presumption of innocence until found guilty beyond reasonable doubt by a court,” Speakman said.
“Defence lawyers support those key tenets of justice by putting the prosecution to proof. It is important that defence lawyers are free from threats, intimidation and reprisals, to uphold their duties to the court, the justice system and to their clients.
“These offences were carefully drafted to ensure they don’t criminalise legitimate conduct, such as making a complaint about a lawyer to a professional body or ending a retainer.
“Existing criminal offences, such as intimidation or perverting the course of justice, will continue to apply to threatening conduct against any lawyer, regardless of the type of matter or which court they are appear in.”
