client continues to proceed is ultimately a matter for them.22 HOW STRONG CAN THE ADVICE BE TO PLEAD GUILTY?
" ... in the face of compelling evidence to the contrary, the practitioner's obligation is to point out ... the disadvantages that might flow from maintaining that position. However, a practitioner's ethical obligation in this situation will be discharged upon the giving of this frank advice." many will elect to do so. Alternatively, a client can be referred to another the practitioner who may be prepared to act upon this basis.17 A client who simply wants to get the matter 'over and done with' can often be persuaded from taking this course by being advised that, as stressful as a trial is, it might be very little compared to the stress of imprisonment or the ongoing, often lifetime, effects of a criminal conviction. At this initial interview (or as soon as possible thereafter), a practitioner should obtain from the client their account of the alleged offence. Most people suspected or charged with committing a criminal offence are only too keen to tell you what happened from their perspective. However, some clients (I think small in number) do not wish to inform a practitioner of their version of events until either, or both, of two things occur: firstly, the lawyer informs them of the possible defences to the charge; secondly, the prosecution discloses its case. A client who adopts these positions could simply be reticent; however, they could also be contemplating tailoring their version of events for the purpose of misleading the practitioner, and consequently, the court. In my opinion, a practitioner faced with such a client must encourage him or her, from the outset, to provide a full and truthful account of events as far as they are able to do so.18 Where counsel takes the view that a client is deliberately
16 | BRIEF MARCH 2016
withholding an account of events from a practitioner for the purpose of crafting a false defence, it is, in my view, sufficient justification for the termination of the engagement.19 WHAT ABOUT WHEN A CLIENT PROVIDES AN ACCOUNT OF EVENTS WHICH DEFENCE COUNSEL STRONGLY SUSPECTS IS UNTRUE? There is no obligation upon a practitioner to become a detective and to investigate a client's account of events. However, where information is obtained which contradicts, or places in serious doubt, a client's account of events, defence counsel must bring those matters to the client's attention and seek instructions.20 As a result, the account might change. At other times, the client will maintain his or her position. In most cases where the former arises, I do not think a practitioner is obliged to withdraw. However, I do recognise that there are some cases where the practitioner might have been misled to such a degree so as to justify the engagement being terminated.21 Where a client maintains their position in the face of compelling evidence to the contrary, the practitioner's obligation is to point out, if necessary in blunt terms, the position and the disadvantages that might flow from maintaining that position. However, a practitioner's ethical obligation in this situation will be discharged upon the giving of this frank advice. At the end of the day, how a
It is defence counsel's duty to advise their client about the plea to a criminal charge. Defence counsel's advice should never be couched in terms which expressly or by implication give a client the impression that they have no choice but to plead guilty. Nor should defence counsel say or suggest that they will refuse to act if the client refuses to accept their advice to plead guilty. How advice to plead guilty is understood by the client depends very much upon the particular client. However, a practitioner must, at all times, be careful not to overbear his or her client's will. When a practitioner advises a client to plead guilty, they must clearly set out the reasons why such a course is appropriate. This usually involves an analysis of the evidence, having regard to what the prosecution needs to prove in order to sustain the charge, and the advantages which may flow from a plea of guilty.23 This process also requires pointing out to the client that a plea of guilty may attract a discounted sentence, and may save both the client and the victim the trauma of proceeding to trial. A practitioner should inform the client of the effect of s9AA of the Sentencing Act 1995 (WA); in particular, that the earlier in the proceedings the plea is made, the greater the reduction in the sentence may be, and that the maximum discount (25%) is reserved for cases where the plea is indicated as having been made at the first reasonable opportunity. Where possible, all of this advice should be in writing.24 However, ultimately, defence counsel must always respect a client's right to proceed to trial, even where, in their view, a conviction is inevitable. Despite defence counsel's firm view that a plea of not guilty will be futile, every person has the right to have their case judged by a court according to law. If a client wishes to proceed to trial contrary to defence counsel's advice, that fact alone is not generally a sufficient reason for a practitioner to cease to represent that client.25 Be cautious of a client who, upon receiving advice to plead guilty, responds along the lines of "I'll plead guilty if you want me to". If this occurs, defence counsel must very clearly convey to the client that the decision to plead guilty is the client's decision and not the practitioner's.