This article was originally published in De Minimis, Melbourne Law School’s student newspaper.
The Stary Norton Halphen office is noticeably different from the offices of its commercial law counterparts on Bourke and Collin Street. The reception area is modest and homely. The clients that come in and out wear comfortable, non-business attire. The secretary is kind and warm despite the constant stream of telephone calls and walk-ins.
Welcome to criminal law. Cue the extraordinary Jessie Smith, 4th-year criminal lawyer.
Thanks for making time for me Jessie, how have you been?
Busy, last year was insane with all the terror matters – they really escalated. We act in every terrorism and foreign fighter trial in Melbourne. We have also picked up clients in Sydney and Brisbane. This includes factions from both sides of the Syrian conflict. So yeah (she smiles wryly). Busy.
Ok jumping straight in. What’s it like representing people charged with terrorism charges? That’s a pretty politicised area…
As a defence lawyer my job is to identify any defences that may apply to my client and agitate that defence. We represent our clients without fear or favour and make sure the state is discharging the burden of proof necessary to convict.
And all the sensationalist and prejudicial media attention the area gets?
Unfortunately there’s a dearth of good reporting in criminal law. With the exception of the ABC, The Guardian and The Age, who actually attend court, familiarise themselves with the legal issues and read the legislation, a lot of media provide very superficial or plainly inaccurate descriptions and analyses of the matters I’m involved in. The logic is of course to sell papers, but it has a risk of distorting the historical narrative. For this reason I am really worried about the funding cuts at Fairfax.
What do you say to populist calls to increase sentencing, or stop persons from appealing their cases?
The problem with crusades like this is that the people driving them aren’t in the courtroom. I’d advise them to come and listen to the pleadings in the local Magistrates Court, see the volume of considerations that the judge is taking into account, their anxious deliberation, and then make an assessment of whether sentences are appropriate.
What’s also interesting is how these pushes for reform come about. You often see a push to make dramatic changes to the system when sometime happens to a white, upwardly mobile person, or when the white middle class feel threatened.
Harsher sentences aren’t the answer. There needs to be greater investment in early detection and prevention, and alternatives to jail. The intersection between different policy problems are sometimes obscured. Take domestic violence for example. A large number of domestic violence cases are precipitated by ice use, but residential rehabilitation centres are chronically underfunded and simply cannot meet demand. The waiting lists are bloated and unmanageable. These considerations need to be at the forefront of any successful policy. An extra year’s jail is not going to fix the problem.
You’ve mentioned in earlier interviews (like this one) that a criminal lawyer’s job goes beyond legal matters and often requires you to have an advocacy role in the realm of policy. Can you talk about that?
Of course. We’re on the front line, so we’re in a good place to make recommendations about law reform and rehabilitation. We are acutely aware of their individual struggles and how these are located within broader patterns of antisocial behaviour and system breakdown. A lot of criminal behaviour can be remedied or rehabilitated through the legal process. The Courts recognise this, and since the 1990s have embarked on a “justice reinvestment” strategy whereby offenders participate in programs while their court cases unfold. Justice reinvestment advances fiscally sound, data-driven policies to break the cycle of recidivism, avert prison expenditures and make communities safer
Sadly, we don’t extend the same opportunities to every category of offender. Take young people charged with terrorism offences for example. There is an absence of pre-trial rehabilitation programs that feature very heavily in more conventional crimes. This is a missed opportunity and lacks political will. Both sides of politics are flexing their muscle and don’t want to look “soft”. But it’s about being smarter, not softer. These programs don’t detract from ‘traditional’ pointy end tools.
From my experience working with terrorism offenders, I think a team encompassing a mentor, a psychologist and a sheikh would be really helpful. The pre-trial phase can span 18 months – 4 years. So much can be done in this time.
And what about facilitating the rehabilitation of your clients outside the strictly legal work you do to advance their case?
The extent that criminal lawyers seek ways that our clients can be rehabilitated is an undervalued aspect of our role. I can’t tell you how many hours we spend per week on hold to ice rehabilitation centres or anger management programs – literally tearing our hair out because there’s a nine month wait and we don’t know if our client can last that long.
I really want to keep talking to you about policy – but I know a lot of students want answers to this other question: with law schools mainly pushing career opportunities at commercial firms, what would you say to students aspiring to build a career like yours?
The first thing they should do is go to court. Go down to the Magistrates’ or County court, see the duty solicitor and ask what cases are on. Sit in and watch how trials unfold. Go to plea hearings and bail applications. See the intersections between drug abuse, homelessness and mental health. See the humans that you don’t see by reading cases.
Beyond that, applying for a volunteer position at your local community legal centre is also a good start. Asking to shadow a criminal barrister is also good – whether by email blitz or going to court and asking in person. Stary Norton Halphen also offer internships if people are interested (see their careers page here).
Best part of your job?
The best parts are definitely the constant intellectual challenges and of course the human side of the job. You have to be across so many legal areas to do your job properly. Whether it’s new legislation, conflicting case law, multi-jurisdictional issues, international law you’re always learning and you’re always growing. This is especially the case because in criminal law, in stark contrast to commercial law, all cases end up in Court.
In crime, the stakes are always high.
Hardest part of your job?
That you’re the last point of resistance to the state using its coercive power to crush these people. We’re chronically under-resourced – voters and governments simply don’t care about the proper funding of defence work. There is no equality of arms, which is a stain on our democracy. I recently worked on a terrorism trial for 9 months before it was discontinued by the Attorney General. It involved months of work, novel areas of domestic and international law, and multiple appearances in Court. We were paid $3400 from legal aid. Added to the resource deficit is the human pressure. It’s so hard because we have so many clients and we have to be so much to them. We the authority on statutory interpretation, common law and admissible evidence, but also the social worker looking to get them on a housing list or a Myki ticket to get home. It can be very mentally taxing and you need to set boundaries.
Jessie, you’re incredible. Thanks so much for taking the time out to speak with me. I’ll let you return to real work now!