The Crimes Amendment (Protection of Criminal Defence Lawyers) Bill 2022, introduced to Parliament on 19 October, has amended the Crimes Act 1900, extending offences to protect judges, criminal defence lawyers and persons connected with judicial proceedings from threat, intimidation, and reprise.

Defence Lawyers NSW (DLNSW) proposed these amendments in correspondence to the Attorney-General in 2021, in light of the Law Enforcement Conduct Commission’s report in relation to its investigation — “Operation Monza” — into the conduct of certain police.

“The investigation found that three NSW Police Force officers from Strike Force Raptor were involved in the targeting of a practising solicitor in NSW, engaging in conduct [that] harassed and intimidated the solicitor,” Emmanuel Kerkyasharian, president of DLNSW, told Lawyers Weekly.

“The bill provides recognition of the important role that defence lawyers play in the criminal justice system as well as protection for them in that role. 

“The bill makes clear that such conduct can amount to a crime and should serve to deter it in the future.” 

Until now, there has been an obvious gap in the law in that defence lawyers did not receive the same protection as witnesses, jurors, police, and prosecutors, said Andrew Tiedt, criminal law director at J Sutton Associates.

“These changes ensure that the justice system can continue to operate without the fear of participants in the system threatening lawyers in relation to their involvement in the process,” he stated.

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“From an outside perspective, it might seem absurd that lawyers will need protection from clients,” commented Jahan Kalantar, partner at the Executive Law Group.

“However, unfortunately, through lived experiences, this is a reality that many lawyers, particularly those of us who work with people who have poor coping skills and may not have access to proper support, have experienced to some extent or another.” 

“It is a much-awaited move, and I am thankful of the progress of this necessary legislation,” said Yashvi Shah, partner at Jackson John Defence Lawyers. 

“Criminal defence lawyers too often become scapegoats to shift the blame on when the outcome of a case is not as expected to a certain party.”

She explained that lawyers have been expected to put up with slander, torments, discrimination, direct and indirect threats relating to their in-court performances.

“Criminal defence lawyers deserve to remain protected from threats, intimidation, and reprisals when we act in the interests of our client as officers of the court,” she said, “without being adversely impacted by dissatisfied clients in their matter and/or law enforcement officers investigating the case”.

“For example, intimidation or conduct amounting to harassment can eventually influence, distract, side-track or cause backlash to both the client’s retainer as well as the case result.

“[It] negatively affects the minds of criminal defence lawyers, especially those who may be less experienced and younger in age, who may have suffered intimidation in silence in the profession, who have no means of holding the client and or police officer accountable for their actions.

“The bill is crucial to safeguard criminal defence lawyers. 

“Criminal defence lawyers have a duty in ensuring that their clients are afforded due process in the criminal justice system, and this reform is critical in ensuring that they are not subject to undue influence due to fear of harm or personal safety,” she added. 

“While admirable, it would also require lawyers to overcome a sense of shame at being unable to deal with clients who behave in an unruly and inappropriate manner,” Mr Kalantar posited. 

“It will also require ethical training to explain how this legal protection interacts with a lawyer’s other obligations. 

“Problems as complex as this one require a multitude of tools,” he mused. “It will be interesting to see whether in practice, this legislation will achieve its aim or be utilised to the extent that it is envisaged.”