Published in Overland Issue 219 Winter 2015 · The law The ethics of defence Catriona MacLennan When I was a young lawyer researching a case in the law library, I overheard two lawyers discussing strategies for a rape trial. The lawyer defending the accused said that his client wanted to use alibi evidence as his defence, and argue that he had been in a different town at the time. The lawyer told his colleague that he had advised his client to use a defence of consent. The shocking thing about this conversation is that those defences are utterly incompatible. The accused could not have been simultaneously a) in another location and b) having sexual intercourse by consent. Therefore, the defence being prepared for the court was untrue. This is completely contrary to legal ethics, which provide that lawyers owe duties to the administration of justice and to the court, as much as to their clients. In fact, it is the lawyer’s obligation to the administration of justice that is paramount, ranking above even a lawyer’s duty to a client. While aspiring criminal lawyers are taught these rules at law school, once out in the real world it is hardly surprising that they come to identify overwhelmingly with the defendant’s perspective. Young defence lawyers both in Australia and in New Zealand start off representing clients charged with minor offences such as shoplifting, drink-driving, common assault and disorderly behaviour. These cases are small and the lawyer will earn a few hundred dollars from them. In order to earn more money and progress to seniority in the profession, the lawyer must obtain experience in serious criminal cases. The most common categories of these are major drug, rape and homicide trials. Young lawyers will begin by working as juniors to more senior lawyers in such cases, before gaining enough experience to fly solo. As sexual assault trials are so common, acting for defendants charged with sexual offences is an integral part both of gaining experience and of earning income as a criminal lawyer. Further, lawyers are not permitted to pick and choose what types of cases they will do. The ‘cab-rank’ rule of legal conduct in Australia, New Zealand and other similar countries requires lawyers to act for those who approach them for assistance, subject only to expertise and time constraints. Our Australian and New Zealand legal systems are based on an adversarial approach. Trials are a contest between the prosecution and the defence, ending in a ‘win’ or a ‘loss’, both for the parties and for the lawyers. Reputation, media publicity and lucrative cases come to lawyers who are seen to obtain good outcomes for their clients. For defence lawyers, a good outcome is an acquittal. There is no similar financial reward or career advancement to be gained from advocating on behalf of rape survivors. There are no paid survivor-advocate lawyers in either Australia or New Zealand. Legal aid provided by governments in both countries pays for lawyers to defend the accused, but not for lawyers to represent the survivor. In addition, lawyers – like other members of the community – want to think well of themselves and to believe that they are contributing to society, at the same time as earning an income. Accordingly, there is every incentive for them to believe that false rape complaints are common, and that many men charged with rape are innocent victims of deceitful and vindictive women. Adhering to these myths allows defence lawyers to see themselves as gallant defenders of the freedom of the innocent. The unpalatable alternative would be for barristers to admit that they are spending a large amount of their time securing acquittals for men in sexual assault cases when the defendants are actually guilty. Who would want to accept that this is the way they spend their working life? The most public aspect of the defence lawyer’s advocacy on behalf of the rape accused is the cross-examination. This is also one of the key aspects of the prosecution process, and thus one of the main reasons why so many rape survivors are unwilling to instigate court proceedings. The right to silence protects the defendant by providing that he is not required to give evidence at the trial. On top of that, no adverse comments are allowed to be made or drawn about the defendant’s failure to give evidence. By contrast, the survivor is the key witness in the trial and is therefore subjected to lengthy, hostile and accusatory cross-examination by the defence barrister. In the course of this questioning, barristers are likely to make use of a full range of myths about rape, including: false rape complaints are common, frequently being made by lying and vindictive women as a means of punishing or getting back at men women’s behaviour or clothing are a justification for rape as men are ‘led on’ by skimpy female clothing and are unable to control their sexual urges women who consent to sex at night wake up the next morning regretting it and make false rape complaints to cover their regrets real rape is perpetuated by strangers in dark alleys; sexual assaults on wives or girlfriends are not really rape – if a woman has consented once to sex with a man, she has consented in perpetuity women make up false complaints of rape against famous men to try and extort money women who are out alone or without men at night are foolish and it is understandable if they are raped women who are drunk or have used drugs are to blame if they are sexually violated where sexual conduct occurs at teenage parties after drinking, it is simply experimentation and a prank and not really rape if the survivor has no obvious traumatic physical injuries she has not been raped. Some recent trials in both Australia and New Zealand illustrate how these myths are employed by criminal lawyers in the courts. In Brisbane last year, defence barrister Carl Heaton told the District Court that three women who alleged they had been raped, sexually assaulted and drugged by a yachtsman might have made the claims because they regretted having sex with the man: Perhaps they regretted giving themselves away so freely to a man whose charming feature may have been limited to his apparent wealth and the opportunity they thought they might have with him. Maybe on reflection the reality didn’t live up to the talk. Maybe these women felt they were sold false hopes and maybe bitterness and resentfulness has set in. (Myths one and three.) In a Cairns trial in 2014, Mark Davidson was charged with rape and sexual assault after he picked up a woman overcome by an adverse reaction to medication. Mr Davidson promised to take the survivor to hospital but instead raped her in his car. Defence barrister Peter Feeney argued the woman had ‘grossly exaggerated what happened and invented many events’. (Myth one, again.) In New Plymouth, New Zealand, an eighteen-year-old rape complainant was accused by Susan Hughes QC of ‘trying to make this dramatic’. The lawyer asked a series of questions accusing her of dramatising and playing a role, and ridiculed her explanation that her memory was fuzzy because she had been drinking. The lawyer claimed that the young woman had alleged rape because she was angry and embarrassed that videos were placed online. ‘It seems we’ve reached a point in time when our boys are demonised and our girls canonised,’ she remarked. (That’s myths one, three, seven and eight.) Paul Keegan, another defence lawyer at the same trial, described what had occurred as an ‘inexperienced, drunk teenaged threesome’ that had ‘unfortunately’ been filmed and uploaded to social media. ‘Put teenagers like them into a twenty-first-century context, cellphones, social media, porn, alcohol, raspberry-flavoured cider and all the mistakes and risks teenagers make, the pranks they play, can become life-changing disasters.’ In another case, Wellington barrister Keith Jefferies alleged that a woman raped in an alleyway by George Pule had made a false complaint to police six days later because she regretted having consensual sex. He said that the woman could easily have prevented the attack. ‘All she would have had to do was to close her legs … it’s as simple as that. Why didn’t she do that? The reason she didn’t do that was because the sex was consensual. As easy as that.’ And so the myths continue. One of the most tragic recent examples of the impact of brutal cross-examination is the 2012 United Kingdom trial of music teacher Michael Brewer on charges of indecently assaulting violinist Frances Andrade. Brewer’s barrister, Kate Blackwell QC, repeatedly accused Andrade of fantasising and lying. Following the lengthy questioning, Andrade texted a friend to say she felt as if she had been ‘raped all over again’ by the barrister. Andrade took her own life the day after Brewer started giving evidence, and after learning that the judge had directed the jury to find the defendant not guilty on five of the indecent assault charges. He was later convicted of five counts of indecent assault, but acquitted on three further indecent assault and one rape charge. The most commonly asked question of criminal lawyers is ‘How can you defend paedophiles or rapists or murderers or drug pushers?’ But that is not a concern for those trained in the Australian and New Zealand legal system. Law students in both countries are taught ethics as part of their professional training. During classes, aspiring lawyers are told that they are simply part of a system, and their role is to represent their clients to the best of their ability. Others in the system are responsible for other aspects. In particular, law students are taught that it is not for them to decide on the guilt or innocence of their clients. That is the role of the judge or jury. The lawyer is an advocate, not a decision-maker. Lawyers can accordingly represent those charged with heinous crimes with a clear conscience because they consider that they are upholding the rule of law and the administration of justice. It does not matter how overwhelming the evidence is that a client is guilty; as long as the client is not naïve enough to specifically tell the lawyer that he or she is guilty, the lawyer can ethically put forward whatever defence the client wants. This is set out in lawyers’ rules both in Australia and in New Zealand. The Victorian Bar Incorporated Practice Rules state that a barrister representing a person charged with a criminal offence ‘is under a duty to defend that person irrespective of any belief or opinion which the barrister may have formed as to whether or not that person is guilty or not guilty’. The rules go on to state that, if a client confesses guilt but maintains a plea of not guilty, the barrister should continue to act and ‘do all that the barrister honourably can in the client’s defence’. The lawyer may argue that, for a reason of law, the client is not guilty of the offence charged, but the barrister may not set up an affirmative defence inconsistent with the confession. The New Zealand rules mirror their Australian counterparts. What these rules effectively mean is that lawyers are unquestioning cogs in a system, performing their part in a process but not querying the overall impact of their actions. But lawyers are not, in fact, only lawyers. They are also human beings and members of the communities in which they live. What if we started asking about their responsibilities to their communities as human beings, as well as their responsibilities as lawyers to their clients and to the administration of justice? It is not disputed that rape reporting, prosecution and conviction rates are very low. That is the case in Australia, New Zealand, the United Kingdom and many other countries. In Australia, it is calculated that only 15.5 per cent of sexual assault survivors report their attack to police and only twenty out of a hundred reported cases are prosecuted. In New Zealand, it is estimated that only seven out of a hundred sexual assaults are reported, with only three being prosecuted and only one prosecution resulting in a conviction. There are a number of reasons why sexual assault is not reported, and the traumatic trial process is clearly one of the most significant. And cross-examination by the defence lawyer is surely the most harrowing part. Is it not time we started querying the role of the defence lawyer in rape cases? Generations of television dramas over the past sixty years, ranging from Perry Mason to Harry’s Law, have given the public a picture of fearless defence lawyers fighting tooth and nail to protect innocent clients from false charges. Surely it is time to admit that this itself is a myth. The opposite, in fact, is true. The actions of defence lawyers in rape trials are dissuading survivors from reporting rape, perpetuating false myths about rape, assisting in the acquittal of guilty defendants and preventing survivors from obtaining justice from the legal system. In addition, the whole concept of cross-examination requires review if we actually want to arrive at the truth of what happened in criminal cases. There is now extensive research demonstrating that even gentle pressure to agree with a questioner’s suggestions makes witnesses susceptible to changing their evidence. In the highly intimidating courtroom environment, the likelihood of inaccurate responses is far greater. Placed under severe pressure, many people will falsely recant evidence simply to make the pressure stop. Legal cross-examination often relies on defence lawyers seeking to show that a witness is wrong about a peripheral detail – such as the rapist’s car being black rather than dark blue, or the walls of the room being cream instead of white. This small error, which has no bearing on any facts at issue in the case, is then used to undermine the witness’s credibility as a whole and suggest that the witness either has a bad memory or is a liar. In either case, the lawyer will submit, the witness cannot be believed and the judge or jury should reject all of the evidence from that person. However, research by psychologists shows that such an approach is completely divorced from the reality of how memory operates. People recall extremely well the detail of traumatic events, but have less accurate memories of peripheral matters. The defence approach of focusing on the peripheral detail to undermine the evidence as a whole is, therefore, dishonest. In addition, the way in which lawyers control witnesses under cross-examination is designed to ensure that the answers given are those the lawyer wants to receive. A common technique for achieving this is to confine the witness to ‘yes’ or ‘no’ answers. When the witness seeks to elaborate, because such a short answer might in fact give an inaccurate impression, the lawyer will refuse to let the witness say any more. Emily Henderson, a New Zealand cross-examination reform researcher, argues there is an urgent need for greater monitoring of cross-examination to ensure that manipulative, coercive and confusing behaviour is not permitted. Unfortunately, advocates know perfectly well it is possible to use comment and innuendo to craft questions which are quite unanswerable either in cross- or in re-examination, and, if we are honest, we know that is often our intention … When we say we are justified in fudging the evidence during cross-examination because that is our duty to our clients under the adversarial system, we confuse two separate tasks. It is one thing to argue for a tenuous interpretation of the evidence in closing. It is quite another, surely, to manipulate the source material. One is proper advocacy. The other is something very much akin to evidence-tampering. We wouldn’t tolerate an expert witness wiping off a few of the more telling bloodstains: what really separates that sort of conduct from a clever piece of suggestive questioning? Over the past forty years, a number of reforms to sexual assault trial processes have been made in Australia, New Zealand and the United Kingdom. Motivated by research showing persistently low conviction and reporting rates for rape, the changes were supposed to make the system fairer and thus secure more just outcomes. But research indicates that the changes have made little difference in practice because defence lawyers, judges and others have continued to operate in much the same way as they always have. There has been no comprehensive questioning of the ethics of defence lawyers, no move to educate law students and lawyers about the realities of rape, and no major changes to the rules under which defence barristers operate. As far back as 2000, a United Kingdom study titled Prosecuting and Defending Rape: Perspectives from the Bar concluded that without further examination of the practices of advocacy in rape trials, and without training that fundamentally challenges the attitudes of barristers, it is unlikely that the experiences of survivors would be substantially improved. And in Tasmania, where the law was changed in 2004 to introduce an affirmative model of consent, research has found that lawyers are continuing to rely on old notions of consent and to tailor their cases to juries’ perceived views about rape, rape survivors and consent to sexual intercourse. If real change is to happen, a comprehensive review of the role, ethics and conduct of defence lawyers in sexual offence cases is required. Conceivably, this could include: – education of law students and lawyers about rape and rape myths – accreditation and specialist training for prosecution and defence lawyers working on sexual offence cases – paid lawyers for survivors in sexual assault cases – a complete overhaul of cross-examination, based on credible research rather than piecemeal rules of law developed over hundreds of years to suit a vastly different environment – specialist sexual offence courts – far tighter control by judges of the trial process – re-examination of the assumption that it is an integral part of the trial process to subject survivors to gruelling cross-examination while allowing defendants not to give evidence at all – an overhaul of legal ethics and the rules under which barristers operate – far more pro-active monitoring by judges of barristers’ conduct and reporting of breaches to lawyers’ oversight bodies. We should also consider moving to an inquisitorial rather than an adversarial legal system. The inquisitorial system aims to get to the truth of a matter through extensive investigation and examination of all evidence. By contrast, the adversarial system is a competition between the prosecution and the defence to make the most compelling argument. Surely the former is preferable to the latter? Australia’s Legal Profession Act 2004 is expected to be repealed in mid 2015 and replaced by a Legal Profession Uniform Law and Rules (the first step in creating a national legal profession), which will include new rules for barristers. That makes 2015 the perfect time to review the conduct and ethics of barristers so as to ensure they promote justice rather than playing a part in depriving rape survivors of legal redress. Catriona MacLennan Catriona MacLennan is a barrister and journalist. She helped establish Nga Ture Kaitiaki ki Waikato Community Law Centre in 1999. Catriona was the project director for Nga Tangata Microfinance Trust, a loan scheme to keep families out of the clutches of loan sharks. She is an advocate for rape law reform and domestic violence elimination. More by Catriona MacLennan › Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places. If you like this piece, or support Overland’s work in general, please subscribe or donate. Related articles & Essays First published in Overland Issue 228 14 February 202011 March 2020 · The law Fines: designed to crush Shifrah Blustein Fine-related offences serve only to subject a person to police interference, surveillance and, as they are drawn into the criminal justice system when they can’t pay their fines, to disciplinary control and attempts at normalisation. 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