‘The Truth Hurts’: The fault lines in the criminal justice system

By Naomi Neilson|18 August 2020
barrister Andrew Boe

From battered victims, disadvantaged clients and even a serial killer, barrister Andrew Boe has taken cues from his own career to argue that the criminal justice system was not designed to seek the truth – instead, it’s a blood sport for the unfortunate.

The criminal justice system has moved far beyond the legal scholars that designed the courtrooms, having not been designed to judge within a contemporary community that exists beyond their time. At least, that’s what barrister Mr Boe sets out to discuss in his book, The Truth Hurts”, an honest review of a flawed and stale system. 

“My book is a very small book about a very, very big conversation,” Mr Boe told me in an interview for Lawyers Weekly’s Wig and Chamber. “I wouldn’t pretend to think that I might be able to persuade the majority to take a different view of things – what I was trying to do was set out things I noticed and my reflection on how it pieced together.”

Although probably most prolific for defence of serial killer Ivan Milat, Mr Boe veers from centring his book on this particular case. He said that while it may be the most “tabloid interesting” of his career, “it’s certainly not the most important case I’ve ever done”. As it turns out, while the book provides incredible insight into why and how Mr Boe came to represent Australia’s infamous murderer, there are many more interesting cases. 

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“It’s a case captured on the internet,” Mr Boe tells me. “But it’s the cases I promoted – defence for women subjected to domestic violence, the independent investigation into deaths in custody, or taking issue with an Aboriginal man sent to prison – I regard the cases as contributing more to the social justice system within which I operate.”

There are of course the other high-profile cases, including saving One Nation’s Pauline Hanson from a prison sentence despite her rather controversial comments on the non-white Australian community (Mr Boe explains how he approaches this in one chapter). There is also the emotionally draining experience of working on the devastating Palm Island case, which almost led to the end of his legal career entirely. 

In the book, Mr Boe explains that at the outset of the case, he was committed only to being involved in the coronial proceedings, but “the more I discovered about this island and its history of disregard, the more engaged with it I became”.

Mr Boe ended his practice – which he started very young – soon after the end of Palm Island’s defence, citing it was exhausting “fighting the good fight” and having felt a loss in its conclusion: “I felt I had spent decades allocating my personal resources and that of my colleagues to a number of issues relating to Palm Island’s death in custody.” 

He felt he had lost the emotional energy to continue on practicing as a solicitor – worse still, he said that had he had it his way, “I would have stopped being a lawyer full stop”. Instead, he joined the bar and enjoyed having some distance from the day-to-day work that comes with dealing directly with clients and their array of affairs and dilemmas. 

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“When it comes to criminal law, that contact can be corrosive,” Mr Boe said. “You are engaging in human conditions that most of us would prefer to not know about; we don’t want to know about child sex, we don’t want to know about violence in relationships – it also meant, as a barrister, you’re less able to speak publicly about those cases.”

From false starts to new ventures: Lessons of a successful barrister

While Mr Boe has a really impressive career and a number of high-profile cases under his belt – some of which are detailed in his book – there are also as many lessons that were learnt along the way. In an honest move, Mr Boe exposed the fact that there are many solicitors and barristers that have their own suite of mistakes and missteps under the impressive milestones and profiles and attention-grabbing cases. 

“We would all like to have a 55-year-old head on a 29-year-old lawyer,” Mr Boe noted, walking me through what he would want to step back from one of his first cases if there were a possibility to do so: “My self-criticism was just in recognising that I am choosing to critique the policy of legal representation for the disadvantaged people.” 

At the beginning of his career, Mr Boe was tasked to a young Indigenous boy who was accused of sexually assaulting a young girl. Despite seeking an experienced barrister to assist, he was left with someone much less experienced who fumbled the case and refused to put the boy before the jury, without so much as a glance at his files. Mr Boe said he felt embarrassed and too shy to call this behaviour out or ask for advice. 

Years later, when Mr Boe saw the boy tending to the prison garden, the boy explained that the girl was actually fond of him and some of his other Indigenous friends, but her parents found out and insisted she tell the police she had been assaulted. 

“First and foremost, when it comes to defending someone, it is critical that lawyers can get past lots of issues that stand in the way of meaningful instructions coming from the client. When I was going through that experience, senior lawyers and barristers would frequently say to me, ‘we don’t need instructions, we’re just going to run the case’, noted Mr Boe. 

“Largely, [it was] because of a false assumption that the client wasn’t capable enough, intelligent enough, communicative enough to be able to be put in front of a jury.

“That assessment often came with no assessment of the client’s capacity – if there is a singular lesson, it is that lawyers, young and old and working in the criminal justice system, take instructions from the client before they choose if they can speak.”

In what was surprising to read, one of Mr Boe’s first bosses wrote to the Law Admissions Board to claim he lacked the fitness to become a lawyer. Despite this, Mr Boe kept up with his career – why? “I heard Julian Burnside say [recently] that if you give up, you’re not likely to succeed. If you keep going, there’s a possibility for success.” 

“I think it’s a false dichotomy of talking about winning and losing in terms of working in criminal law; what you hope to do is be accessible, maintain a sense of pride with how you conduct yourself as a lawyer, and hopefully get better and better. I’d like to think – although my children would like to think otherwise – that I am mid-career and I’ve got a sense now of where I think I am equipped to take on challenges in the work I do,” he said.

“For a long time, many criminal lawyers turn to distractions to cope with the stress and many don’t survive those stressful careers. In my career I have been supported by the capable colleagues and partners who have taught me. The book has been cathartic in the sense to get these things out and [others] in similar careers may find assistance.”

The criminal justice system versus Indigenous Australians

Other than of course the Palm Island case, Mr Boe’s collection of stories offered some attention to the plight of Indigenous Australians in the criminal justice system; statistics that are not casting a healthy portrayal on the current court structure. The first chapter focused on one such plight, that of an Indigenous man that killed another under a tribal law, and of which should not have been deemed a crime under a white court. 

Mr Boe explains that he and an assisting lawyer were charged with persuading a white jury that the intentional stabbing of a man in the leg and leaving him to bleed out was not a crime under Indigenous law and should not be prosecuted against under any other law. It was a very enlightening, worthwhile and honest read. 

In what was sad – but painfully truthful – to hear, Mr Boe told me he felt wary of having “too many” stories of Indigenous cases woven into his book: “It may have changed this year a little – with the transatlantic effect of the death of George Floyd – but generally speaking, my experiences [are] people roll their eyes at Indigenous injustice.” 

“There were other cases that other people might want to read about [so I thought that] I could slip in sufficient stories to give the book the capacity of persuasion; persuading non-Aboriginal Australians to engage in the real issues that apply to Indigenous people and promote greater readiness to engage on a humane level with Indigenous people,” he said.

I questioned whether Mr Boe believed the perceptions towards Indigenous Australians within the courtroom had lightened, whether there was no room for compassion and – more importantly – understanding of cultural and community contexts both at the judge and the jury level. He said that the reception from his book garnered a lot of attention on the way he critiqued fellow legal professionals – even if most have well intentions. 

“Despite the best intentions of many in the legal profession, the plight for an Indigenous defendant remains as bad, if not worse, in our system. Everything we’ve all done has not been enough and if we’re going to be honest about having a greater impact on the statistics, we have to review everything we’ve done,” Mr Boe explained. 

“We can all be better, and we can do so if we’re prepared to not just be critical but self-critical on who we are as lawyers, what we do, what pro bono work we do. Do we just do it as a flag-waving exercise on our websites or do we jump in and embrace a social responsibility as lawyers to ensure that we do practically and pragmatically contribute to the greater administration of justice, particularly towards Indigenous people?”

On the issue of whether juries have become better informed, Mr Boe said lawyers tend to underestimate the capacity of jurors to get things right. He said there is a sense that as the non-Aboriginal community embraces more of the humanity and differences of experience of Aboriginal people, the jury will begin to reflect that. 

“It’s not sufficient for there just to be protests on the street or the very strong individuals speaking their mind – all of us have got to take responsibility for the fact that few of us break bread with Indigenous people in our personal lives,” Mr Boe said. 

The ‘report card’ left behind by a stale profession

There are many takeaways from The Truth Hurts, the biggest being the criminal justice system was not designed for those who truly need it and there is still a lot of progress ahead before the courts are close to entirely fair. As a community, Mr Boe said it could be better served by a judicial decision that “focused on ensuring [the system] continues to meet contemporary community expectations and the make-up of that community”. 

Then there is another, perhaps greater takeaway: “In each of the areas that I have had some experience in, my [takeaway] is we’re far too self-congratulatory as a profession. 

“We, as lawyers, should be far more circumspect about what we do, what we charge, how accessible we are to all parts of the community and look at the way we have done things to see if we can do things better, especially when we know the statistics do not make the justice system look very healthy,” Mr Boe told Lawyers Weekly. 

He finished the interview by explaining that it was not just him or other barristers telling the stories of a broken system, it is laid bare in the statistics. Indigenous people, those from disadvantaged backgrounds and persons without financial advantages are more likely to be prosecuted and spend time behind bars than their counterparts. 

“Over two-and-a-half centuries, this is our school card, this is our report card,” Mr Boe said. “It is not just to be left to the community to address these things – we as a legal community have to accept that this happened on our watch. These things are what the people have to face in the community and in criminal trials. That is the system that we say is acceptable and I am not quite sure about that.

“I’m hoping the book starts [these] conversations.”

‘The Truth Hurts’: The fault lines in the criminal justice system
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