“We see people in their most vulnerable moments, and we ask them to trust us to navigate them through what is often an imperfect and bewildering justice system,” said Ms Fahd, who is the principal of Just Defence Lawyers.

“Courts can be fixed and inflexible, and indeed contribute to stress.”

Contributing to said uniqueness is the bevy of hurdles facing practitioners in this space, on the back of market and legislative changes in the past year, which will impact their work in 2023.

Social media and juror influence

Phoebe MacDougall, a solicitor at MacDougall & Hydes, said that one of the biggest challenges that criminal lawyers have faced in recent times — and will continue to grapple with — is managing the impact that social media and mainstream media coverage has on jurors in criminal trials.

“The simple fact is jurors today have access to a range of information sources, many of which purport to be legitimate news outlets but lack the safeguards put in place by regulators and courts. Although jurors are given clear instructions on the penalties for misconduct and their role as unbiased participants in the process, it is extremely difficult to enforce and often goes unreported,” she explained.

“Many lawyers are leaning towards judge-alone trials in an effort to mitigate the risks associated with juror bias, particularly where the case involves high-profile defendants. The challenge for lawyers in 2023 is navigating this without diminishing both the defendant and the victim’s right to a fair trial.”

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Inflation and its impact on legal aid

Lawyers in this space are also often faced with the prospect of defending clients with limited resources, Ms Fahd pointed out. This, she said, may bite especially hard as inflation continues to rise.

“Legal aid is increasingly unable to provide adequate funding for comprehensive representation. With the increasing cost of living and inflation, servicing clients with limited resources is likely to be a growing issue over the next year. It will be up to our profession to find innovative ways to meet this demand,” she said.

KLM Solicitors managing partner Kelli Martin agreed with this, noting that roughly 75 per cent of Legal Aid Queensland’s casework is briefed out to private law firms (preferred suppliers) but that the number of firms prepared to take on legal aid work is “dwindling”. 

“Legal aid grants were originally calculated at 80 per cent of the court scale of fees and have only increased in small increments over the past two decades, while practice costs have risen significantly,” she submitted.

“Particularly complex criminal matters, which may take years and significant resources, are becoming less attractive for firms needing to balance their financial viability.”

New legislation

In the legislative space, criminal defence lawyers have, Ms Martin went on, had to “keep up with the raft of reforms” enacted, such as domestic violence laws introduced over the past few years.

“A new ruling that makes coercive control a criminal offence will take effect in Queensland by the end of 2023. Lawyers working with respondents in domestic violence proceedings are having to invest more time in professional development to maintain their knowledge and best practice,” she listed.

“This may be a particular challenge for lawyers working across multiple jurisdictions and having to deal with inconsistencies.”

In NSW, Conditsis Lawyers director Manny Conditsis said in support, judicial interpretation and application of new laws, such as the sexual assault affirmative consent laws that recently passed in the state, will be significant.

Consent is negated, he detailed, “where the victim is found to be substantially intoxicated or where the consent was brought about by intimidatory or coercive conduct”.

“The accused will be guilty of sexual assault if he was reckless as to whether the victim was consenting or he had no reasonable grounds for believing that the victim was consenting; and in that regard, the trier of fact must have regard to all the circumstances and what if any steps taken by the accused to ascertain that the victim was consenting,” he said.

There is a real concern amongst criminal lawyers, Mr Conditsis warned, that “too strict an interpretation to these laws will result in unjust convictions”.

Moreover, he continued, there will likely be challenges to face with certain lobbied legislation, including and especially surrounding the “community debate and politicisation” of “no body, no parole” laws that are being floated.

Changing practices of courts

Astor Legal principal Avinash Singh advised that criminal defence lawyers will need to stay on top of the various changing practices of courts in 2023.

This reflects, he said, the repealing of practice notes that were in place during and after COVID-19.

“Practitioners must be mindful that many judicial officers are becoming less accepting of remote appearances and other flexible arrangements that have been in effect over the last few years,” he said.

This said, courts will need to continue making certain changes, Ms Fahd added, musing that it would be a “fresh change” if courts could better respond to the growing number of females in the workforce and make improvements accordingly.

“Breastfeeding rooms, some flexibility in allowances for maternity leave and consideration of such commitments when setting court dates and deadlines,” she argued.

“Quick justice does not fall to pieces when courts consider the real lives of those who work in the system.”

Human resourcing

Elsewhere, Ms Fahd continued, human resourcing remains a “principal” challenge.

“Specifically, attracting our brightest legal minds to an area of law that can be stressful, fast-paced, hard on family life, and remunerated less than some other areas of law,” she said.

“In recent years, there has been a much-needed focus on staff and collegiate wellbeing, which is fantastic. While this is something we can look forward to, there is still work to be done.”