New legislation has been introduced in the New South Wales Parliament that gives defense lawyers similar protections as prosecutors, judges, complainants, witnesses and juries in our state.
The Crimes Amendment (Protection of Criminal Defense Lawyers) Bill 2022, tabled in Parliament on October 19, 2022, will amend two offenses against public justice contained in Crimes Act 1900 – “threatening or intimidating any judge, witness, jury or officer of the public justice” under section 322 and engaging in “reprisals against a judge, bailiff, jury or public justice officer” under section 326 – to also make it a criminal offense to engage in such conduct against an Australian legal practitioner acting on behalf of a Defendant in or in connection with a criminal matter acts with a criminal proceeding when doing so without good cause.
The proposed changes come 18 months after an investigation by the state’s law enforcement agency, the Law Enforcement Conduct Commission, found that New South Wales police officers harassed and intimidated a lawyer to the point that he was unable to represent his client to the best of his ability.
Police threaten, harass and intimidate lawyer
The LECC’s 62-page report, titled “Operation Monza,” was submitted to the New South Wales Parliament on March 26, 2021, and details Strike Force Raptor’s action officers involved in the deliberate targeting, harassment and intimidation of a practicing New South Wales barrister South Wales with the aim of undermining his ability to properly represent his client in court.
The report details the behavior of professionals in a regional town in northern New South Wales on May 28-29, 2019.
May 28, 2019 was the first day of a scheduled hearing for attorney’s client on criminal charges.
Police officers had requested that their officers appear at the regional courthouse via audiovisual link, but the attorney refused the request and the court eventually required the officers to be present in person.
On the night of May 27, 2019, a group of Raptor officers were staying at a hotel ahead of the next day’s court visit when their commanding officer ordered a police officer and senior police officer to target the attorney the following morning to do so do make sure he doesn’t “make it in court.”
The attorney first saw the two officers drive past his home at 6:30 a.m. the next morning.
The pair then followed the lawyer’s car to a tire shop, where they accosted him for allegedly not pointing out of his driveway into the street. Officials found that the attorney had left his driver’s license at home.
The officers then followed him to his place of residence, stopped him again to check the roadworthiness of his suitcase and issued him with a notice of defects.
The lawyer then decided to take a taxi to work but noticed that officers had tailed him in the taxi again.
He arrived at his office and his client arrived there a short time later. The client told his attorney that the police were making laps outside in the parking lot. The lawyer went to check and saw that the officers were sitting on the hood of their car staring at him.
The lawyer called the local police, who informed him that there was nothing they could do about the behavior.
The lawyer was then in court as required and advised the judge on the conduct. The judge found the lawyer apparently “shaken” and ordered the matter adjourned until the following morning.
The attorney then attempted to leave the courthouse, only to see a large group of Raptor officers gathered outside the door.
He re-entered the courthouse and the judge allowed him to exit through a discreet exit.
Can’t defend the case
Well aware of Strike Force Raptor’s appalling track record of threats, harassment, abuse and even brutality towards those they have chosen, the attorney met his client at his office the next morning, where he informed him of his intention to date himself to withdraw from the case.
He left the office to go to court to inform the judge of his intentions, only to see officers attach a noise shield to his motorcycle in the parking lot.
At the time the LECC findings were released, Integrity Commissioner Lea Drake condemned the officers’ behavior, noting that a senior Strike Force Raptor officer had ordered two subordinates to “target, interact and harass” the attorney, causing him could not make court.
“They bullied and intimidated [the lawyer] to such an extent that he could not represent [his client] to the best of our ability,” the Commissioner declared, which would amount to “serious misconduct”.
Also at the time, a NSW Police spokesman responded to the LECC’s findings and said that was the case “Noted” and that the content of the report will be “taken into account”.
Lack of police accountability
As we have seen time and time again in New South Wales, police are rarely held accountable for their actions, even in situations of clear misconduct.
In the case of Strike Force Raptor, there have long been concerns in the community about the way this particular entity operates and has operated with impunity for many years.
Strike Force Raptor is a specialized police force created in 2009 to specifically focus on the criminal activities of motorcycle gangs. She has built a reputation for her aggressive and sometimes unorthodox policing strategies, but the officers’ actions that morning actually amounted to an attempt to distort the course of justice, especially given the fact that the attorney felt so intimidated that he resigned the case, leaving it to his client to find alternative representation.
The incident highlighted a significant legal loophole that previously did not offer criminal defense lawyers the same protections as witnesses, juries, police officers and prosecutors.
The new laws will change that, clarifying that behavior amounting to harassment, bullying or intimidation can be considered a criminal offence.
The role of the criminal defense attorney
Criminal defense attorneys play a crucial role in the justice system.
In Australia, the basic rule of law is that a person is innocent of any charge against him until and unless proven guilty in court.
Criminal defense attorneys stand as a protection and counterbalance to the power of the state – which has almost unlimited resources to prosecute criminal cases.
These attorneys represent the interests of the accused – advising them on the law, their options and best course of action, protecting them from unscrupulous behavior by police and prosecutors, reviewing the prosecution’s “evidence”, formulating and implementing defense strategies, and carrying out the prosecution to examine and work within the limits of the law to ensure optimal results for their clients.
Everyone is entitled to legal representation whatever they are accused of and representation unaffected by bullying and harassment by armed thugs like the officers of Strike Force Raptors, who have been allowed to stand above the law with impunity for far too long.