Some of my clients have been accused of minor infractions, others of truly awful offences.
All are facing State Prosecuting Agencies and have their own vulnerabilities. My role is to ensure that they are treated fairly, decently and are defended competently. That is what a criminal lawyer does.
I don’t need to subscribe to my clients’ views, nor do I even need to empathise with them. My role is to ensure they receive a fair go — it’s as simple as that. But, given the hand many of my clients have been dealt, it’s a truism that you give a little bit of your heart and soul in every case.
You do this knowing that, rather than improving our mental health system or putting resources into drug and alcohol rehabilitation and other areas of social need, waves of populist governments, both at the federal and state levels, have waged crude law-and-order campaigns over the last decade or so, in order to achieve the short-term political gains. That means an emphasis on incarceration and as a consequence, an actual increase in crime rates. Being ‘tough on crime’, history has shown, is ultimately to the long detriment of all Australians.
So as our politicians continue to wage their law and order campaigns — this year’s Victorian election is seemingly no exception — I’d like to offer an insight into what it’s like to have spent a career defending the unpopular — the clients the media so often misrepresent, the police so often mishandle, those clients who are so often at the mercy of the State, and what drives me to do so.
Many attribute it to my political leanings. Naturally, when you’re a lawyer and as open about your political and ideological beliefs as I’ve been, you’re often asked which comes first — the politics or the job? For me, it’s always been about the Rule of Law and how politics might impact on that principle.
My interest in criminal law began when I was still in secondary school. My father had studied law in Hungary and his father was a former Hungarian Crown prosecutor. I’ve no doubt their involvement in the profession had an influence on me.
But what started as an interest transformed into a passion as I became involved in social justice issues and my political interests began to take shape. It wasn’t long before there was nothing I could see myself doing besides criminal law.
In a broad sense, I am politically and ideologically driven, but at the end of the day, that simply means ensuring that those accused of crimes, even those repugnant to the wider community, are properly represented.
And what is it like defending the ‘unpopular’? It’s a tremendous challenge to protect accused people — those that are marginalised and powerless, and those from cultural and ethnic minorities in particular — from intolerance, scepticism and prejudice, so often stemming from the ways they might be depicted in the media.
Frustration comes not from difficult cases or recidivist offenders — though they certainly contribute — but mainly from a populist environment that has seen the steady erosion of the presumption of innocence as a cornerstone of our justice system and the rise of a punitive approach to sentencing.
In high profile cases, we routinely see sensitive information being leaked to the media by Policing Agencies. Briefings to the press, often by Police Command, with a Politician invariably standing to the side, are also becoming increasingly common in such cases. And after all the leaking and grandstanding, the suspect is finally brought to Court and charged.
It is only at this point that the suspect becomes the accused and comment is shut down as the rules of sub judice take effect. The damage, however, is done.
I find solace and reward in giving a voice to the marginalised and oppressed. Beyond that, there is also a wonderful collegiate atmosphere amongst those who practice criminal law.
There are professional rivalries, to be sure, but overwhelmingly, we are supportive of one another because we all believe in an equitable justice system.
We also believe in redemption and forgiveness. Very few of our clients are completely beyond redemption and in doing this job we are often privileged to witness people reform and rehabilitate and become worthwhile citizens.
In the end, it is quite simple: our society is better off if people are given the opportunity to properly put their case to the Court and receive a fair hearing. That way justice is served and it’s not a popularity contest.
Robert Stary is the principal of Stary Norton Halphen, one of Victoria’s most prominent criminal law firms, and has over 30 years’ experience as a criminal defence lawyer.