Offences of Threatening or Intimidating Criminal Defence Lawyers in NSW

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Criminal defence lawyers will be provided with strengthened protection against intimidation and harassment, under a proposed government bill.

The proposed bill seeks to amend the Crimes Act 1900 (NSW) and extend offences protecting judges and persons connected with judicial proceedings from threats, intimidation, and reprisals to also protect criminal defence lawyers.

“Criminal defence lawyers are officers of the court who support the justice system to make fair, just decisions in criminal matters. It is important that they are free from threats, intimidation, and reprisals to uphold their duties to the court, the justice system and to their clients. The reforms proposed in the bill will address this gap.” explained Attorney General, Mark Speakman.

The proposed amendments will provide that lawful conduct such as making a complaint against a lawyer to a professional body or threatening to end a retainer, will not be captured by the offence.

Speakman noted that the proposed bill: “underscores the New South Wales Government’s commitment to supporting frontline workers in all sectors, including our justice system and the legal profession.”

The bill was introduced into the Legislative Assembly on 19 October 2022 to be debated, with Speakman as the member with carriage.

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The Offence of Threatening or Intimidating Judges, Witnesses or Jurors in NSW

The Offence of Threatening or Intimidating Judges, Witnesses or Jurors in NSW

Currently, as outlined in section 322 of the Act, it is an offence to cause injury or detriment, or threaten to do so, to any person, whilst intending to influence:

a person called or to be called as a witness in judicial proceeding to give false evidence, withhold true evidence, not attend as a witness, or not produce anything despite a summons or subpoena,
the person’s conduct as a juror in judicial proceedings, including to not attend (whether they have been sworn as a juror or not),
any person’s conduct as a judicial officer, or
any person’s conduct as a public justice official.

Section 326 provides that it is an offence to cause injury or detriment, or threaten to do so, to any person on account of anything lawfully done by a person as a:

witness or juror,
judicial officer, or
public justice official, in connection with any judicial proceeding.

A maximum penalty of 10 years imprisonment is applicable to both offences, where the matter is dealt with in the District Court.

Both offences are classified as ‘table 1’ offences, as per schedule 1 of the Criminal Procedure Act 1986 (NSW), which means that the prosecution or the defence may elect to have the matter dealt with on indictment in the District Court.

If no election is made, the proceedings will remain to be dealt with in the Local Court, where the court can only impose a maximum penalty of 2 years imprisonment and/or a $11,000 fine.

However, where an offence is committed under section 322 with intent to procure the conviction or acquittal of any person of a serious indictable offence, the matter is required to proceed to the District Court.

A serious indictable offence is essentially any offence punishable by imprisonment for a term of 5 years or more.

A maximum penalty of 14 years imprisonment is applicable to this aggravated version of section 322.

If the bill is passed, both offences will be extended to protect Australian legal practitioners acting for a defendant in a criminal matter or in connection with criminal proceedings.

The reform was originally suggested following findings by the Law Enforcement Conduct Commission that three police officers had engaged in deliberate harassment of a criminal defence lawyer.

The solicitor, referred to as ‘civilian MON1’ in the LECC’s report was targeted by officers, after he denied a request for a police officer on restricted duties to give evidence via an audio-visual link.

The lawyer was representing an accused person alleged to be a member of an outlaw motorcycle gang and charged by officers from Strike Force Raptor with five counts of animal cruelty.

On 28 May 2019, when the matter was first listed for hearing, officers targeted the acting solicitor at various points before and after court.

This included following him, from outside his house, prior to court and issuing him with traffic infringements for not indicating when reversing his driveway, and not carrying his licence.

Officers also issued him with defect notices for faults relating to oil leaks, seat belt defects and window tinting.

After deciding to take a taxi to work, the same officers pulled over the taxi to perform a ‘check’.

Upon arriving at his office, the solicitor was informed that a police vehicle was ‘doing laps’ outside.

At court, the solicitor informed the Magistrate what had happened to him that morning and sought an adjournment, which was granted by the Magistrate as “she could see that [he] was shaken up”.

As he left the court up to ten Strike Force Raptor officers waited outside, with the solicitor so intimidated that he went back inside the court and asked the Magistrate if he could take the rear exit.

The next day, officers defected the lawyer’s motorcycle which he was riding as his car was off the road, due to the earlier police action.

The details were not disputed by the officers involved, even stating in their own evidence that they had been taken to the town to ‘target’ the defence lawyer.

“By “target” he understood that he was to observe [the lawyer] driving and to stop and issue him with tickets if he committed any offences. This included inspecting a vehicle for defects. This is one of the tactics used in targeting a person and he was good at that” the LECC explained.

One officer had even sought to place a bet that: “he doesn’t make it to court.”

Whilst the Commission initially considered ordering the termination of the involved officers’ employment, they ultimately only faced internal discipline and were issued warnings, due to how failures by management and Strike Force Raptor’s culture had led to the “egregious misconduct” of the involved officers.

At the time, the Law Society issued a statement noting that: “the consequences of Police engaging in harassing and intimidatory behaviour are not only devastating for any individual involved, but for trust in the Police, and respect for our justice system and public institutions.”

Published on 24/10/2022