Posted: July 25th, 2023

Ethical Dilemmas in Criminal Defense: A Case Study in New South Wales

Question 1 (20 marks)
The following occurs in New South Wales.
Maddie is a barrister who practises in criminal law. Maddie is retained by Stefan, a solicitor, to
represent Ollie in a murder trial. The prosecution alleged that Ollie intentionally stabbed Lydia, his
long-term girlfriend, and that she died from the stab wound. Ollie pleaded not guilty and maintained
that the death was an accident.
The agreed facts were that Ollie and, the now deceased, Lydia, were talking together on the patio
of Ollie’s house and started drinking in the afternoon of 2 June 2022. Ollie told Lydia that she needed
to move out if she didn’t get help for her alcoholism. Lydia became upset, went into the house, and
came out holding two beer bottles in one hand and a knife in the other. Lydia sat down and held
onto the knife, waving it around and pointing it towards Ollie and then towards herself. At some
stage, Ollie grabbed Lydia’s wrist and tried to get the knife from her. Lydia resisted and the knife cut
her fingers. Ollie got the knife from Lydia and bandaged her wound. They continued talking and
drinking on the patio. Lydia, who drank heavily, started raving and punching Ollie. She went inside
to the kitchen; Ollie followed her.
Here the prosecution alleged that Ollie intentionally stabbed Lydia once in the chest, with the result
that Lydia died from the single wound.
Conversely, Ollie told police that, once in the kitchen, Lydia again got the knife and was pointing the
end of the knife alternately at herself and at Ollie. Ollie wrenched the knife out of her hand, while
using his body to push her back. Ollie stepped back against the refrigerator. Lydia suddenly lunged
herself at Ollie and impaled herself on the knife he was holding. Ollie pulled out the knife and called
000.
Maddie and Ollie discussed the manner in which Lydia was injured. Maddie suggested that it was
the result of an unwilled act rather than self-defence, and Ollie agreed. In the course of this
discussion, Ollie reiterated what he had told the police, namely that he did not intend to stab Lydia.
Maddie conducted Ollie’s defence in accordance with those instructions.
Unbeknownst to Maddie, Ollie had confided in Stefan at the start of the trial, that while he had told
the police that Lydia’s death was an accident: “I could have stopped the knife from entering Lydia’s
chest, but I was sick of all the arguing and so when she lunged towards me I held onto it even tighter,
so as to teach her a lesson.” Stefan told Ollie that it would not be helpful to raise that in the trial and
for Ollie to keep it to himself.
At Ollie’s trial, the prosecutor, Renata, a solicitor from the Office of the Director of Public
Prosecutions, did not call a witness named Enea. Enea was a long-term neighbour of Ollie and
Lydia. Renata did not call Enea because in her view Enea was an unreliable witness. According to
Renata, when interviewed by police the next day, Enea had said:
“That Lydia was a crazy woman. Ollie was always getting beaten up by her. I heard her yelling
obscenities at Ollie on the patio before the ambulance turned up.”
Maddie asked the judge to force Renata to call Enea. The judge refused Maddie’s request.
During the trial Maddie called Ollie to give evidence. In his evidence Ollie stated:
“I never intended to hurt Lydia. She was a great woman who lost her temper when she drank
alcohol. I knew she was feeling upset about our conversation that evening, but I never
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expected her to lunge towards me like that. I was not worried for my safety, so I tried to drop
the knife, but I was pinned against the fridge and could not stop it entering her body. There
was nothing I could do.”
During her closing address Maddie said:
“Ollie is a victim of circumstance. Lydia was solely responsible for her fatal injury. As soon as
the injury occurred Ollie called 000 and requested an ambulance. He then tried to staunch
Lydia’s wound. Ollie is an innocent man and should be found not guilty.”
Because of the forensic evidence in the kitchen, which indicated a different version of events, the
jury found Ollie guilty of murder and he was sentenced to 15 years in gaol.
Ollie believed he was wrongly convicted and lodged an appeal. Specifically, Ollie submits that he
suffered two material irregularities that affected the outcome of his trial. Ollie argued that:
1. Maddie was incompetent in that she failed to request that the trial judge direct the jury on
self-defence, and
2. Renata had a positive obligation to call Enea.
In addition, Ollie lodged complaints with the Office of the Legal Services Commissioner (OLSC)
against Maddie and Renata. The OLSC referred the complaints to the Bar Association of New South
Wales and the Law Society of New South Wales to investigate the behaviour of Maddie, Renata
and Stefan.
Consider the problem above and advise as to: what complaints could possibly be lodged
against each of Maddie, Renata and Stefan, what the outcomes of such complaints could be
(against each of them), and whether Ollie’s appeal grounds could result in a finding of a
miscarriage of justice (you are limited to discussing the law of professional responsibility
and ethics as covered in this subject and not some broader analysis of the criminal law and
evidence).
For LAWS7066 (JD) students only – please answer the following as an extra component of your
answer to Question 1
After the trial, Renata spoke to the waiting media. Part of her comments included the following
statement:
“I am very pleased about this conviction. The evidence clearly showed that Ollie stabbed
the victim. He had clearly terrorised Lydia for hours beforehand.”
In the trial, no evidence was led or admitted indicating that the victim was in a state of fear in the
hours leading up to her death.
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Question 2 (15 marks)
Answer all of Question 2(A), 2(B) and 2(C)
Consider the following scenario and answer the three sub-questions that follow.
You are a lawyer in New South Wales. As such, you are an officer of the Supreme Court of New
South Wales. You are extremely concerned about the current scientific reporting about
anthropogenic climate change. You know that your local division of the Extinction Rebellion
environmental protest group (XR) is going to engage in protest activity in Katoomba, in the Blue
Mountains, on the forthcoming weekend. Specifically, XR plan to peacefully block the entrance to
the three leading supermarkets for 15 minutes at 0900 on Saturday morning (a peak shopping period
for the supermarkets) before walking to Katoomba railway station and blocking the entrance closest
to the township. Blocking the entrance to the supermarkets will affect many hundreds of people
engaging in the weekly grocery shopping. Blocking the township side entrance to Katoomba station
will cause commuters – who flock to the upper mountains on Saturday mornings to see the autumnal
changes to the tree-leaves and go bushwalking – to be redirected out of the station via an alternative
exit and walk around the station, for over 500 metres, in order to enter the township.
You feel there is an ethical obligation to protest (not just advise anyone about the legality or illegality
of the proposed protests) and want to take part in that protest activity. You know that XR do not
have police permission to engage in the proposed protest actions. You are also aware of s 214A
Crimes Act 1900 (NSW) and the penalties that it potentially imposes. You anticipate that if you
engage in the protest, you will be arrested and charged under that section.
Section 214A provides (in part):
214A Damage or disruption to major facility
(1) A person must not enter, remain on or near, climb, jump from or otherwise trespass on
or block entry to any part of a major facility if that conduct –
(a) causes damage to the major facility, or
(b) seriously disrupts or obstructs persons attempting to use the major facility, or
(c) causes the major facility, or part of the major facility, to be closed, or
(d) causes persons attempting to use the major facility to be redirected.
Maximum penalty – 200 penalty units or imprisonment for 2 years, or both.
…
(7) In this section –
“major facility” means the following, whether publicly or privately owned –
(a) a railway station or other public transport facility prescribed by the regulations …
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Question 2(A)
Are there any legal justifications that would make it professionally acceptable for you to
directly engage in that proposed protest action? [You are not to consider different fact
scenarios, or adjustments to the above facts.]
Question 2(B)
If you were to engage in the protest actions and were charged and convicted what are your
personal professional obligations?
Question 2(C)
If you were found guilty of a charge under s 214A Crimes Act 1900 (NSW) what are the
possible disciplinary processes and sanctions that you could face?
Question 3 (10 marks)
In response to the question “What are the ethical challenges faced by lawyers who represent
Aboriginal and Torres Strait Islander peoples?” ChatGPT responded as follows:
Lawyers who represent Aboriginal and Torres Strait Islander peoples can face
various ethical challenges due to the unique social, historical, and cultural
context in which these communities operate. Some of the key ethical
challenges faced by lawyers in this context include:
• Cultural competence: Lawyers must strive to understand and respect
the diverse cultural values, traditions, and practices of Aboriginal and
Torres Strait Islander peoples. This includes being sensitive to issues
related to land rights, kinship structures, customary law, and cultural
protocols. Lawyers should ensure they engage in ongoing cultural
competency training to effectively communicate and collaborate with
their clients.
• Communication barriers: Language barriers and differences in
communication styles can present challenges in effectively
communicating with Aboriginal and Torres Strait Islander clients.
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Lawyers need to ensure they provide adequate interpretation services,
engage in active listening, and use plain language to ensure their clients
fully understand their legal rights and options.
• Trust and rapport: Historical injustices and systemic biases have eroded
trust between Aboriginal and Torres Strait Islander communities and the
legal system. Lawyers need to establish trust and build rapport with their
clients by demonstrating empathy, integrity, and a genuine commitment
to advocating for their interests.
• Access to justice: Aboriginal and Torres Strait Islander peoples often
face barriers in accessing justice, such as geographical remoteness,
limited financial resources, and lack of legal awareness. Lawyers should
actively address these barriers by providing pro bono or reduced-cost
services, engaging in community legal education, and collaborating with
community organizations to increase access to legal representation.
• Balancing cultural obligations: Aboriginal and Torres Strait Islander
clients may have cultural obligations and responsibilities that need to be
considered when developing legal strategies. Lawyers must navigate
the complexities of balancing legal obligations with cultural protocols,
ensuring they respect and integrate their clients’ cultural perspectives
into the legal process.
• Overrepresentation in the criminal justice system: Aboriginal and Torres
Strait Islander peoples are disproportionately represented in the criminal
justice system. Lawyers working in criminal law face ethical challenges
in advocating for fair treatment, challenging systemic biases, and
working towards reducing the overrepresentation of their clients in the
criminal justice system.
It is important for lawyers representing Aboriginal and Torres Strait Islander
peoples to engage in ongoing self-reflection, education, and collaboration with
Indigenous communities and organizations. This can help lawyers navigate
these ethical challenges and ensure they provide culturally appropriate and
effective representation.
Given the answer by ChatGPT (above) undertake the following:
(i) Select three (3) of the dot points above,
(ii) For each of the selected dot points choose at least one distinct primary (law) or
secondary (commentary) source that helps us understand each of the dot points
you have selected in (i) above, and
(iii) Describe and explain the ethical importance to lawyers for each of the three
sources that you have chosen in (ii) above.
END OF EXAMINATION

Ethical Dilemmas in Criminal Defense: A Case Study in New South Wales

Introduction

In the realm of criminal law, ethical dilemmas often arise when representing defendants in complex cases. This article delves into a specific scenario that took place in New South Wales, where a barrister named Maddie found herself facing ethical challenges while defending Ollie in a murder trial. Additionally, it explores ethical considerations for lawyers representing Aboriginal and Torres Strait Islander peoples.

Question 1: Maddie, Renata, and Stefan – Ethical Complaints and Outcomes

In the case of Ollie’s murder trial, three individuals came under scrutiny for their actions – Maddie, the defense barrister; Renata, the prosecutor from the Office of the Director of Public Prosecutions; and Stefan, the solicitor retained to represent Ollie. Let us assess potential complaints against each and the potential outcomes.

Complaints against Maddie:

Maddie’s alleged incompetence: Ollie argues that Maddie was incompetent in failing to request that the trial judge direct the jury on self-defense. This complaint questions whether Maddie fulfilled her duty to provide the best possible defense for Ollie.
Outcome: If the complaint is upheld, Maddie may face disciplinary actions from the Bar Association and Law Society of New South Wales, which could include reprimand, fines, or even suspension from practicing law.

Complaints against Renata:

Failure to call a crucial witness: Ollie argues that Renata had a positive obligation to call Enea, a long-term neighbor who might have provided relevant evidence regarding Lydia’s aggressive behavior.
Outcome: If Renata’s decision not to call Enea is deemed negligent or unethical, she could also face disciplinary action from the relevant legal authorities.

Complaints against Stefan:

Concealing crucial information: Ollie reveals that Stefan advised him not to disclose potentially incriminating information during the trial, which may have influenced the outcome.
Outcome: Stefan’s alleged misconduct could lead to disciplinary measures against him, possibly affecting his standing as a solicitor.

Regarding Ollie’s appeal grounds, whether Maddie’s failure to argue self-defense and Renata’s failure to call Enea could amount to a miscarriage of justice depends on the law of professional responsibility and ethics, rather than broader criminal law and evidence analysis.

Question 2: Legal Justifications, Professional Obligations, and Disciplinary Processes

Page 1:
Let’s analyze the scenario in which a lawyer in New South Wales contemplates participating in an Extinction Rebellion protest despite the potential legal consequences.

Question 2(A): Legal Justifications for Protest Action

The lawyer may seek legal justifications to make participating in the proposed protest professionally acceptable. For example, they could argue that the protest is justified under the principles of civil disobedience in democratic societies. Civil disobedience is a form of protest aimed at challenging unjust laws or policies while accepting legal consequences.

Primary Source:
In exploring this ethical dilemma, legal professionals may refer to renowned legal scholar John Rawls’ “A Theory of Justice.” Rawls discusses civil disobedience as a mechanism for citizens to address injustices when other avenues for change are unavailable.

Ethical Importance:
This source highlights the significance of civil disobedience as a legitimate and ethically justifiable tool for social change. It enables lawyers to comprehend the moral grounding for protest action and the responsibility to stand up against perceived injustices.

Question 2(B): Professional Obligations upon Conviction

If the lawyer decides to participate in the protest and is charged and convicted under Section 214A of the Crimes Act 1900 (NSW), they have professional obligations to uphold.

Secondary Source:
Legal commentators often refer to the “Professional Conduct and Practice Rules” issued by the Law Society of New South Wales. These rules outline the professional duties and responsibilities of lawyers, including those convicted of offenses.

Ethical Importance:
This source highlights the ethical duty of lawyers to maintain professional conduct even in the face of personal convictions. Despite the conviction, the lawyer must continue to fulfill their responsibilities to clients and the legal profession.

Question 2(C): Possible Disciplinary Processes and Sanctions

Should the lawyer be found guilty under Section 214A, they may face disciplinary consequences.

Primary Source:
The Legal Profession Uniform Law (LPUL) provides a comprehensive framework for the regulation of lawyers in New South Wales. It includes provisions for disciplinary processes and sanctions.

Ethical Importance:
This source underscores the importance of adhering to professional standards and the consequences of failing to do so. Lawyers must understand the disciplinary procedures to ensure they maintain their integrity and credibility as legal practitioners.

Question 3: Ethical Challenges Representing Aboriginal and Torres Strait Islander Peoples

Page 2:
This section examines the ethical challenges faced by lawyers representing Aboriginal and Torres Strait Islander peoples and the sources to better understand them.

Selected Dot Points:

Cultural Competence
Communication Barriers
Trust and Rapport
Source for Dot Point 1 – Cultural Competence:
In addressing cultural competence, lawyers can refer to the Australian Human Rights Commission’s “Cultural Competence Framework for Legal Practitioners.” This framework provides guidance on understanding and respecting the cultural diversity of Indigenous clients.

Ethical Importance:
This source emphasizes the ethical obligation of lawyers to acquire cultural competence, ensuring they can effectively communicate with and represent their Indigenous clients while respecting their customs and values.

Source for Dot Point 2 – Communication Barriers:
To navigate communication barriers, lawyers can refer to “Communicating with Indigenous Clients: A Practical Guide for Legal Practitioners,” published by the New South Wales Law Society. This guide offers practical strategies for overcoming language and communication challenges.

Ethical Importance:
This source highlights the ethical responsibility of lawyers to ensure their clients fully comprehend their legal rights and options, regardless of any language or communication barriers.

Source for Dot Point 3 – Trust and Rapport:
When building trust and rapport, lawyers may turn to the Australian Bar Association’s “Guidelines for Lawyers Working with Indigenous Peoples.” These guidelines provide insights into fostering trust, respecting cultural perspectives, and promoting fairness in legal representation.

Ethical Importance:
This source underscores the ethical significance of establishing strong client relationships based on trust and mutual respect. Lawyers must strive to address past injustices and biases to build meaningful connections with their Indigenous clients.

Conclusion

The case study in New South Wales and the ethical challenges in representing Aboriginal and Torres Strait Islander peoples illustrate the complexity of legal practice. By considering relevant sources and adhering to professional standards, lawyers can navigate ethical dilemmas and better serve their clients and the broader community.

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