Is it illegal to threaten a criminal lawyer?
POLICE INTIMIDATION BACKFIRES
A new Bill has passed the Lower House of the Parliament which sees criminal defence lawyers receive the same protection from intimidation and reprisals that is currently available to judges. This is a seismic shift which amends the protective laws that were enacted just over thirty years ago.
More interestingly is the reason why the NSW Government deemed it necessary for these laws to be introduced.
What’s the current law?
Criminal proceedings consist of traditional roles that have their origins in the early days of the judicial system. Due to the recognised importance of some of these roles, they are provided additional protection. The currently Protected Roles include:
- Judges and Magistrates
- Witnesses
- Jurors
- DPP solicitors and barristers
This extra protection is partly provided by section 322 of the Crimes Act 1900. The section provides an offence for any of the following behaviour towards the Protected Roles:
- Intimidating
- Injuring
- Threatening to injury or cause detriment
To commit this offence the offender’s aim must be to influence the Protected Role’s decision making or conduct in a legal proceeding.
There is a further offence under section 326 for reprisals in relation to the lawful actions by the Protected Roles. For example, the accused threatening a DPP solicitor for investigating a large-commercial quantity drug importation.
These special offences carry a severe maximum penalty of ten years imprisonment. In addition to these offences, there are further offences under sections 323 and 325 for influencing the decision making of jurors and witnesses, including whether to attend Court or provide evidence.
What’s new
The inclusion of criminal defence lawyers as a Protected Role within the new section 322(1) and section 326(1) provides significant protection that has long be denied. These new laws recognise the exposure to intimidation and threats that lawyers experience whilst acting for clients in the justice system.
You can read the Bill here: link and access to Second Reading Speech here: link.
There is a new defence to the offence under section 322 of a ‘reasonable excuse’ for perceived threats or intimidation. There is also guidance given for the meaning of ‘reasonable excuse’, including ending or threatening to end a retainer or complaints to the following entities:
- A Professional Body
- The Judicial Commission of NSW
- The NSW Legal Services Commissioner
This will provide for legitimate complaints made against criminal lawyers to continue to be properly made without fear of being accused of criminal intimidation.
Why were criminal defence lawyers included?
These new laws were not introduced due to the conduct of clients but rather the NSW Police Force, particularly an elite group “Strike Force Raptor”. In March 2021, the Law Enforcement Conduct Commission released a report detailing the investigation in Operation Monza. This is a ground-breaking report which exposes the ‘serious misconduct’ of intimidation towards a criminal defence lawyer by NSW Police officers.
You can read the report here: link .
Operation Monza
The lawyer was representing his client in a case that required Strike Force Raptor officers as witnesses. After the lawyer refused an application by the officers to appear via AVL, the officers decided to ‘target’ the lawyer and prevent him attending Court by:
- Driving by his house at 6:30am in a quiet suburban street
- Following his car and issuing minor traffic infringements
- Conducting a roadworthiness check on his vehicle
- Issuing a vehicle defect notice relating to a non-existent oil leak and other issues
- Stopping and checking the taxi the lawyer chose to use
- Performing ‘laps’ around the lawyer’s office
- Searching the client outside of Court
- Surrounding the courtroom with five to ten officers
These actions made the lawyer feel so intimidated and shaken up the matter was adjourned. Due to the courtroom being surrounded, the lawyer decided to leave via the Magistrate’s private exit.
The lawyer subsequently stopped acting in the case and eventually a formal investigation commenced into the actions of Strike Force Raptor. It was found that an ‘atmosphere of entitlement’ was prevalent within Strike Force Raptor which allowed this behaviour to occur.
If the new offences under sections 322(1) and 326(1) were enacted at the time, members of Strike Force Raptor could of be charged and proceedings commenced against them.
Who watches the watchman?
These new laws highlight that police officers are empowered with extraordinary abilities under the Law Enforcement (Powers and Responsibilities) Act 2002. These include the ability to search, arrest and deprive individuals of their liberty. It is important for our society to monitor our police force for inappropriate behaviour. If illegal activity is allowed to continue unchecked, public confidence in our legal system will fail.
If you have a genuine complaint regarding a NSW Police Officer, you are able to submit your complaint to the:
- NSW Police Force
- Law Enforcement Conduct Commission
- State Member of Parliament
These complaints may constitute grounds for commencing legal action against the NSW Police Force for false imprisonment, intimidation and excessive force.
At Morrisons we are specialist criminal and traffic lawyers based in Wollongong and the Southern Highlands. If you require advice or representation, you can book an appointment with one of our expert criminal lawyers.