By Wiseman Lawyers Head of Crime Special Counsel Marshall Bostock

Phone: 0420102404

Email: marshall@wisemanlawyers.com.au

Introduction

For many defendants, the first questions after being charged are practical ones: “Could I do this myself?”, “Can I get the duty lawyer?”, and, most often, “How much will it cost?”.

Those questions are understandable, particularly where cost is a genuine concern. However, decisions made early in a criminal matter can shape the outcome long before a defendant reaches a hearing or sentence. Self-representation, limited duty lawyer assistance, or unguided legal research may not reveal the procedural, evidentiary, and negotiation issues that an experienced criminal defence lawyer can identify.

The central point is simple: defendants who engage a lawyer early often give themselves the best chance of achieving a better outcome.

This article explains why early legal advice can materially affect the outcome of a criminal matter: it helps defendants understand the law, navigate procedure, negotiate with prosecutors, prepare for court, and avoid consequences they may not have anticipated.

Knowledge and A Bit More

Lawyers undergo years of tertiary education to develop the necessary legal knowledge and analytical skills. Many will also have undertaken electives specific to their practice area. All criminal defence lawyers in Queensland participate annually in continuing professional development (‘CPD’) to keep their knowledge and skills current.

Importantly, lawyers also ‘talk shop’ with one another about their experiences and the lessons they have learned. That informal learning matters because much of criminal defence practice occurs outside formal court appearances: over the telephone, in correspondence, or in negotiations with prosecutors, where courtesy, professional advocacy and reputation can help achieve better results.

Criminal Procedure

Criminal procedure is a vast subject that governs how criminal matters move through the system, from investigation and charging to disclosure, bail, pleas, hearings and sentencing. Some procedures are found in legislation, while others appear in Magistrates Courts Practice Directions or the Queensland Police Service’s Operational Procedures Manual.

For example, police powers to detect, investigate and prosecute offences are limited by legislation. If police search a vehicle, they need a lawful basis for doing so, and they must then record the search in accordance with procedure.

Likewise, once a charge has been preferred, the prosecution’s next steps and the defence response can involve decisions involving certain procedures. For example, if a defendant is charged with a serious offence, police may charge the defendant at the watch house and refuse bail if the relevant criteria are met. The police must then prepare and file objection-to-bail material in accordance with local procedures. If the defendant applies for bail but is refused, they generally cannot apply again unless there has been a material change in circumstance. Courts also have their own procedures for when and how bail applications may be heard.

Those who wish to defend themselves but do not know criminal procedure are at a serious disadvantage. Artificial intelligence is unlikely to solve that problem, because local procedures can change and busy Magistrates Courts do not have time to teach self-represented defendants the process as their matter unfolds.

Case Conferencing

Whenever a defendant is charged, many documents are created, the most important of which is the QP9 Court Brief. The QP9 sets out the charges and the facts said to support them. Before deciding whether to plead guilty or not guilty, a defendant should understand what the QP9 says and whether the alleged facts can be challenged. That assessment can be difficult for a lay person, but often not for a skilled lawyer.

The process of defence lawyers negotiating with prosecutors is called ‘case conferencing’. This usually occurs on a ‘without prejudice’ basis, meaning those discussions cannot be used in court proceedings without permission. Case conferencing can lead to charges being downgraded or withdrawn, and it can also result in the facts being amended in the defendant’s favour.

Importantly, during case conferencing your lawyer may seek early disclosure of evidence, which is usually limited to a key statement or body-worn camera footage. That disclosure can resolve central issues, e.g. who threw the first punch, and may lead to a faster and better outcome.

It is also important to note that prosecutors may be reluctant to case conference with self-represented defendants. A prosecutor is a skilled professional, and dealing directly with an unrepresented defendant can raise fairness and practical concerns.

Hearings and Sentencing

If your matter proceeds to a summary hearing, that is, a trial in the Magistrates Court, the outcome can depend on how well the case is prepared and presented. This includes identifying the strengths and weaknesses of the police case, checking whether all relevant material has been disclosed, and considering whether the prosecution has called the appropriate witnesses.

Skilled lawyers know how to prepare for a trial or sentence. In the proceeding itself, they know how to cross-examine witnesses and when to object to inadmissible or objectionable evidence.

Most importantly, lawyers know not only what to say, but what not to say. A self-represented defendant can easily say something adverse to their interests or become overwhelmed by the situation and say something that makes it worse.

Conclusion

The ramifications of a criminal charge can be devastating in both the short and long term. What may seem like a simple matter, such as drink driving, can involve unforeseen consequences, e.g. mandatory licence disqualification. Many defendants focus on the cost of retaining a lawyer but fail to see the risk of imprisonment or the significance of having a conviction recorded – that can affect where you can travel, whether you can keep a Blue Card or security clearance, and whether you can apply for a government job or contract.

Although a chatbot may seem cheaper than consulting a lawyer, it can only be useful if you know what questions to ask and where to check the answers. If you do not know where to look, you may not know what you are missing. There is also a real risk that a large language model will “hallucinate” and provide incorrect information.

Duty lawyers provide a magnificent service, but they can only represent defendants in certain situations. For example, a duty lawyer typically will not assist with traffic matters unless imprisonment is a realistic possibility. The difficulty is that many defendants will not know whether that risk exists unless they obtain legal advice.

Early engagement with your own lawyer means you can receive professional advice before the first mention. That can be vital when mitigating penalty and avoiding the recording of a conviction.

In every case that involves a court appearance, get legal advice early. If you or someone you care about has been charged with a criminal offence, call Wiseman Lawyers and speak with one of our dedicated solicitors about the steps you can take before your first court date.

If you are facing court, contact Wiseman Lawyers on 0420102404 and ask to speak with Special Counsel Marshall Bostock before doing anything else.

Alternatively, email Marshall directly at marshall@wisemanlawyers.com.au