Putting up the argument

Prominent defence counsel (from left) Nigel Hampton QC, Michael Reed QC, Judith Ablett-Kerr QC...
Prominent defence counsel (from left) Nigel Hampton QC, Michael Reed QC, Judith Ablett-Kerr QC and Greg King. Main image by Getty Images, Montage by Hayden Smith.
Guilt or innocence can sometimes seem the furthest thing from the minds of the country's defence lawyers. Debbie Porteous asks whether this is a problem.

RSA triple-killer William Bell, child killer Bruce Howse, and double murderer Graeme Burton, all have at least one thing in common.

They share it with the recently convicted murderer Clayton Weatherston.

The list can also include the recently acquitted David Bain, David Dougherty, who was acquitted of rape after three years in prison, and Arthur Allan Thomas.

It is this: whatever they had done, or were accused of doing, they were all represented at their trials. In some way, shape or form, their case was argued, their actions explained, or defended.

Even in the worst of circumstances, their defence counsel found something to say for their clients that might at least mean less time served in prison.

It can stretch credulity. Counsel for convicted killer and rapist Liam Reid argued that the prosecution case was "by no means overwhelming - it creaks and groans and comes apart at the seams".

The jury was not convinced, but his defence team later succeeded in having Reid's sentence of preventive detention reduced three years to 23 years - to howls of outrage.

Was his lawyer defending the indefensible? Reid was found guilty of murdering deaf woman Emma Agnew, and of raping another woman, after she identified him and his DNA was found under her fingernails.

Whatever the answer to the question, there is a considerable degree of indifference, if not downright hostility, expressed by the public about the job done by defence lawyers - particularly during and after high-profile trials.

But those putting forward the potentially unpopular courtroom arguments say this is simply the result of the public's lack of understanding of defence counsels' role and obligations.

Queen's Counsel Michael Reed, who represented murder-accused David Bain, was the subject of considerable comment for "getting him off".

In the case of Weatherston, questions have been raised about his lawyers using provocation as a defence, to the extent that it reignited calls for the Government to remove that particular defence from the statute books. Prime Minister John Key is backing the change.

On the street, by the watercooler, and nowadays in the much more accessible forums of the internet and talkback radio, many made up their minds early in the courtroom dramas that the accused were guilty and that their lawyers, acting in their defence, were somehow using the legal processes inappropriately, trying to help them escape criminal liability.

Dunedin barrister Len Andersen says defence lawyers can become unpopular, especially when acting for certain unsavoury individuals, and are frequently asked, even sometimes by their own families, how they can defend some people.

"It requires a thick skin in terms of the issues you are prepared to raise because people [sometimes] don't like it."

The backlash sometimes experienced by defence lawyers was a result of a widespread lack of understanding of the job, and in the main came from people, including those with the strongest feelings, who had never had to face court action themselves, or had a family member in that position.

Those in the thick of it can also struggle with the hard-nosed reality of a trial.

It was widely reported that Sophie Elliott's father, Gil Elliott, walked out of the courtroom when defence counsel Judith Ablett-Kerr questioned the reliability of his wife's testimony in the Weatherston trial.

The lawyer herself has declined to make any comment on the case until after Weatherston's sentencing, set down for September, but made a point of hugging members of the Elliott family following the verdict this week.

Her co-counsel was also seen shaking hands with Mr Elliott.


In a broad sense, the defence lawyer is a watchdog for people's civil and legal rights, Mr Andersen, who teaches a course in advocacy at the University of Otago's law school, says.

In doing that they performed a valuable service for society by standing between an accused person, the police and the State.

"No-one gets to defend themselves in a dictatorship," he says.

While they could experience criticism from their communities, defence lawyers were also at times unpopular with the Government.

Two examples were when lawyer George Barton successfully argued Samoans had a right to New Zealand citizenship and when lawyer Tony Ellis took a case that established the way the Court of Appeal had been processing legal aid for years was unfair and a new system was required.

There was also a general lack of knowledge of defence lawyers' obligations.

They could not pick and choose who they represented, but were obliged to represent those who came to them.

It was a policy known as the "cab-rank" rule.

Once they have taken on a client they had to present that person with every option available to them and were required to act on the client's instructions dispassionately.

It was then their duty to do absolutely everything they could on their client's behalf, without fear or favour.

Everyone was legally entitled to defend themselves against an allegation of crime, but because the system was lengthy, difficult and intimidating to many people, those accused needed someone specially trained in the legal process.

A person defending themselves, for example, would generally try to establish their innocence, whereas a lawyer was trying to have them found not guilty.

"It is more than just a subtle distinction. It affects the whole way you run [a defence]," Mr Anderson says.

Decisions such as whether an accused person gave evidence or not were "really important" and part of the challenge of doing the job.

Much of the satisfaction from the job comes from applying skills and knowledge learned over years of training, Mr Andersen says.

Auckland barrister and Criminal Bar Association president Anthony Rodgers says part of the defence lawyer's responsibility is to ensure the credibility and correctness of the judicial process.

There is, for example, a tendency for police to charge people with something more serious than is appropriate in the hope the accused will plead to a lesser offence, with which they should have been charged in the first place, he says.

Defence lawyers must also make sure all mitigating factors are taken into account.

Not every crime was committed because a person had intended to break the law.

"Just because someone walked out of the supermarket without paying for a block of cheese does not mean they committed a crime. They have to have the criminal intention."

People who got upset with defence lawyers generally did not have a full picture of what went on at trial and could not know from the bits of information they read in media reports.

"People may say they don't like it when a person has competent defence counsel, but if they were charged with an offence, they would get one."

Mr Andersen said there had to be some validity in the criticism that the system was a competition, as much as there was some validity in the criticism that resources available to the Crown were far greater than those of the defence.

The Crown had to prove its charge, but even in cases where a client had told their lawyer they did something there was the opportunity to defend them on the basis that it could not be proved because there was no evidence against them.

For example, there might be no valid identification of the accused or there might be a confession that was illegally obtained.

"Some would say the interests of justice can get lost in the competition," Mr Anderson says.

But so far it had not been established that any other justice system would have any better outcomes than the one used in New Zealand.

"People can see failings with this system, but actually finding a system that is better is a major headache."


Following the Bain retrial, it was not only the defence argument, but the behaviour of at least one of the lawyers in presenting the defence that became the subject of wide debate in the legal profession.

Hamilton lawyer Warren Scotter, also the chairman of the Waikato branch of the Law Society's standards committee, described Michael Reed QC's performance as "extraordinary" during a discussion on Radio New Zealand's Insight programme.

Mr Reed was arrogant and rude to professional witnesses and to the judge, he said.

He described the performance as making Alan Shaw's treatment of judges in the television show Boston Legal look like something from an Enid Blyton story.

Mr Scotter hypothesised it could have been a deliberate tactic to provoke Justice Panckhurst into losing his temper, something that then might have been used to suggest Mr Bain was not getting a fair trial.

Mr Andersen says in the legal world it is impolitic for one lawyer to comment on another's behaviour.

"I will not comment on [Mr Reed]. But some of the things you say are this ... a lawyer has to respect the institution of the court and you can't intentionally mislead the court."

Otago University law dean Prof Mark Henaghan said he did not think behaviour such as Mr Reed's, whatever his strategy was, would become more common, because of the risk of alienating the jury.

"Juries tend to see through bullying tactics."

There was a code of conduct for lawyers, written into the Lawyers and Conveyancers Act, which said lawyers were not allowed to ask rude and inordinate questions and must behave respectfully towards colleagues and judges.

The whole ethos of the profession is meant to be courtesy, good manners and respect, Prof Henaghan says.

Bullying and intimidation are not acceptable. Taking that tack was a high-risk strategy because of the risk of alienating the jury.

"The good defence lawyers will have the juries respect them."

There is no general process for reviewing a case if there were concerns aspects of it lowered the tone of the profession, other than laying a complaint with the Law Society and lawyers were reluctant to lay complaints against other lawyers, Prof Henaghan says.

Courtesy and respect are keys to the legal system functioning well, he says.

When you get disrespect between lawyers and judges they become part of the problem rather than part of the solution, he says.

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