Delinquent or guilty clients Flashcards
What are the rules that deal with delinquent or guilty clients?
r 78 - r 81
Question: You are instructed to appear on criminal trial. You have called a number of witness. Your client tells you following the first day he told one of the witnesses to lie about what he heard the victim say before the assault. What do you do?
Applicable rule: R 25, r 77, r 79, r 99, 101 applies
Ethical course: Counsel must inform client that given he has learnt the client has precured another person to lie to the court he must refuse to take further part in the case unless the client allows counsel to inform the court of the lie, however if those instructions aren’t provided counsel must not tell the court about the lie in any event (see also r 109). r 99(g) grounds to return the brief if instructions aren’t provided, however r 101 given this is a serious criminal charge unlikely to be sufficient time for another person to take over. Must explain to client in the circumstances duty to not mislead the court present presenting the client’s case in any way which is not consistent with the known facts (frozen defence)…and r 79 governs conduct.
Reason for rule: The reason for this rule is because counsel has an overriding duty to the administration of justice and to not mislead the court r 24-25 and by continuing to act knowing the evidence was concocted would be breaching those rules.
Why do the rules about delinquent or guilt clients exist?
The rules around delinquent or guilty clients exist to assist counsel in navigating the conflict between duty to not mislead the court and administration of justice and the duty to the client and confidentiality.
Question: You are instructed to appear on a wounding trial which does not have a listing date. Whilst you are taking instructions from the client he informs you he stabbed the victim because he was looking at him funny, however he wishes to maintain his plea of not guilty because he wants to role the dice. He instructs you to suggest that his identical brother committed the offence because he was also at the same party where the offence was committed. He also explains that he will give evidence that it was his brother not him.
What do you do?
Rule: r 24, r 79, r 99, r 101
Ethical course: Explain to client given he has confessed guilt but wishes to maintain a plea of not guilty can continue to act but limitations are placed on how the case is conducted r 79…which includes putting the crown to proof but can suggest brother committed the offence….must tell client that he can not act if the client gives evidence denying guilt suggesting it was brother or requests submissions to be made about that…explain that the rules exist because of an duty to not mislead the court r 25 and to the administration of justice r 24….explain that if client does not wish to follow advice r 99(g) allows boe to be returned subject to r 101 which would be satisfied here because 79(h) is exceptional and compelling circumstances and there is enough time to brief another counsel…
Where a defendant confesses guilt…limitations are placed on how the matter is conducted otherwise known as a frozen defence. What are the rules? (Hint 7 ss)
r 79
(a) explain to client can continue to act subject to following rules
(b) that counsel cannot falsely suggest someone else committed the offence; and
(c) must not set up an affirmative case inconsistent with confession;
(d)-(e) must ensure that the crown is put to proof on every element of the offence and argue that the evidence as a whole does not support a finding of guilty
(f) or argue for some other reason of law the client is not guilty (i.e. insanity)
(g) or argue for some other reason not prohibited by the rules the client is not guilty but
(h) must not act if the client insists on giving evidence denying guilt or instructs counsel to make statements that the client is innocent
A barrister cannot conduct a case on a factual basis they KNOW to be false…true or false?
True - r 26 - Duty to not knowingly mislead the court see also r 78-81
Question: Criminal charge for computer hacking. During the client’s record of interview with police he denies ever accessing the computer. Client instructs he never access the work computer unlawfully and it was another person. Counsel will conducts the case on this basis. The Crown lead evidence which proved the other person was not at work the day of the alleged offence, and the clients record of interview was played.
Before the defendant elects to give evidence, he informs you that he wishes to changes his instructions that he remembers accessing the computer but he did so for a lawful reason. You and your instructor do not believe a word of what your client is telling you. It is your opinion he is full of shit who is now trying to invent a new story. You concerned that if you not change how the case is conducted you’ll be misleading the court.
Can you continue to act for the client? and what must you tell him?
Similar to R v Nerbas
r 26, r 39, r 68
Ethical course: Must continue to act personal thoughts about whether the client is lying regarding new version is not relevant because and I will not be knowingly misleading the court because I do not have actual knowledge that new version is a lie… no breach of r 26
r 39 explain to client that change of his version will be an issue in proceeding and r 68 must advise client he must not give false or misleading evidence to the court
What is a ‘frozen defence’?
It refers to a situation where a client has confessed guilt or has informed you that he has precured another person to give false evidence and wishes for you to continue to act or the brief can not be returned under the rules (r 101 for example)…r 79 governs how counsel can conduct the proceeding…the defence is frozen into that position.
Question: Criminal charge. Your client is charged with robbery in company at Townsville McDonalds. You attend the Townsville Watch house. Your client explains he has friends, and family who are ready to give false alibi evidence that he was at home in Charters Towers the night of the robbery…however your client tells you he was actually at the McDonalds the night of the robbery (he does not admit to robbing the place or any other element of the offence). He gets bail…months later you are preparing for trial which is in 4 weeks time, and your client instructs he wants to give and call alibi evidence…and that’s how the case should be run…and if you can’t do it he’ll find counsel with balls big enough to win the case.
What do advise the client and what should you do?
I would explain to client that as a barrister I have duty to promote and protect his interests as the client r 37 but I have a paramount duty to the court to act with independence in the interest of the administration of justice and to not knowingly or recklessly mislead the court (r 25-26) these duties are paramount to the duty to the client…I would explain that I have duty to not condone a witness giving false or misleading evidence (r 68) to preserve the integrity of the evidence…to do so would be a breach of ethical rules and may result in a mistrial…
I would explain that continue to act if the client continues to provide those instructions and I would return the brief if possible r 99(1)(g) subject to r 101 and r 104…I would explain I could conduct the matter by putting the prosecution to proof on the element of ID, however I would not run alibi argument knowing it was false.
Question: The court makes a protection order. Your client tells you that he does not give a fuck that the court had made an order that he doesn’t contact the aggrieved. He will contact her when he feels like it.
What do you do? and would your answer change if the client told he is going to breach the order and when he finds the aggrieved he is going to use an axe to chop her head off.
r 80-81r 108
Ethical course: should advice the client that against breaching the court order and warn that he will get charged, explain that can not provide advice about how to conceal offending, however explain to client that will not tell court or the prosecution unless permission
r 81 given the client has threatened the safety of the aggrieved, notwithstanding rule 108, reasonably grounds to believe that there is a risk to the aggrieved so would need to contact police.
You provide advice to your client that he has good prospects of defending the charge. The client explains that, notwithstanding, he wishes to plead guilty even though he denies committing the offence.
What are your ethical obligations?
R 39 A barrister must seek to assist the client to understand the issues in the case and the client’s right and obligations to sufficiently to permit the client to give proper instructions.
R 40 a barrister must advise the client about the advantages of pleading guilty etc
Active rule: I would explain that the accused must not plead guilty unless he or she has committed the offence, however in circumstances where this advice is rejected there is not ethical rule preventing counsel from acting.
It is nevertheless prudent that the counsel explore the clients reasons for pleading guilty (i.e. costs, get it over with).
I would explain prospects of successfully defending the charge and explore the reasons why the client wishes to maintain a plea of guilty to ensure there is no misunderstanding of the law etc
I would provide advice on the penalty range etc and obtained signed instructions from the client.
I would explain that there is no miscarriage of justice where a POG is entered (free will of the accused, no overborne by threat or promise etc) etc.
