The New Offence of Threatening a Criminal Defence Lawyer in New South Wales

By Paul Gregoire and Ugur Nedim

Times have certainly changed in the legal realm in terms of who needs protection from whom.

Back in the early 1990s, laws were enacted to protect judges, prosecutors, witnesses and others involved in cases against those accused of committing crimes from threats and reprisals that would obviously be perpetrated by criminal elements opposing the prosecution.

The drafters of these laws, which sit in the Crimes Act 1900 (NSW), didn’t think to include criminal defence lawyers within these protective measures, as, it can be presumed they thought it unlikely that those accused of criminal misdeeds were going to turn on their best chance of getting off.

This line of thinking may have been a bit naïve, however, as a scenario where a criminal client may threaten a lawyer about ensuring a certain outcome, or even seeking reprisals after a defence case fails, can easily be contemplated without veering into the realms of conspiracy.

But what’s surprising is decades later, once NSW ministers have come to the table with amendments designed to protect criminal defence lawyers, what sparked the consideration of these laws was not clients threatening lawyers, but rather law enforcement intimidating legal practitioners.

Indeed, it all hearkens back to the Law Enforcement Conduct Commission’s March 2021 report Operation Monza, in which it was found officers from the notorious NSW Police Strike Force Raptor followed a defence lawyer around a regional NSW town to intimidate him into dropping a case.

Maintaining rule of law

NSW attorney general Mark Speakman introduced the Crimes Amendment (Protection of Criminal Defence Lawyers) Bill 2022 on 18 October, which amends two pre-existing offences contained in the Crimes Act 1900.

Current protections for legal professionals, judicial officers, witnesses and jurors “do not presently apply to defence lawyers”, the state chief law officer said during his 19 October second reading speech on the bill.

“This is despite the fact that defence lawyers play a critical role in the operation of the criminal justice system by representing defendants in criminal trials,” the AG continued.

“Criminal defence lawyers are officers of the court who support the justice system to make fair, just decisions in criminal matters.”

The two main sections of the Crimes Act that his legislation amends were introduced by the Greiner government in the Crimes (Public Justice) Amendment Act 1990, and came into effect on 25 November that same year.

Speakman further underscored last Wednesday that it’s important that defence lawyers are kept “free from threats, intimidation and reprisals”, so they can properly conduct themselves in the required manner when dealing with the courts, their clients and the justice system in general.

The guts of the bill

Section 322 of the Crimes Act currently makes it an offence for someone to threaten “to do or cause, or who does or causes, any injury or detriment to a number of people involved in criminal prosecutions, including to act in this manner to influence a judicial officer or a public justice official.

A public justice official, as defined in section 311 of the Crimes Act, is “a public officer employed in any capacity… for the investigation, detection or prosecution of offenders”, other than a judge or a magistrate.

The section also makes it a crime to carry out these treats towards a witness to see them give false evidence, withhold true evidence, to not produce evidence or to not attend court. It further applies to threatening jurors to influence their conduct or to make sure they don’t attend court.

This offence carries up to 10 years imprisonment. And if Speakman’s bill passes, new subsection 322(1) will then apply to Australian legal practitioners acting in defence of an accused in a criminal matter or a lawyer who’s involved in criminal proceedings.

Section 322(1) will further be amended to now read that a person who threatens “without a reasonable excuse” has committed a crime.

New section 322(2) outlines that a reasonable excuse can be making or threatening to make a complaint about a person acting in an official capacity to a professional body, the NSW Judicial Commission, the NSW Legal Services Commissioner, and “ending, or threatening to end, a retainer”.

The second major amendment is to section 326(1) of the Crimes Act. It contains the offence of threatening or causing “any injury or detriment to any person on account of anything lawfully done by” a witness, juror or public justice official during judicial proceedings, as well as a judicial officer.

This also carries up to 10 years inside. And further section 326(2) covers those who threaten or cause injury or detriment to someone they consider will or might be called as a witness or serve on a jury.

Speakman’s amendments to section 326 mirror those made to section 322 in that they extend protections to legal practitioners representing a client or involved in criminal proceedings, and they provide the same reasonable excuses for making a threat in the form of a complaint.

Protections from police

After the fallout from Operation Monza, president of lawyers’ association Defence Lawyers NSW Emmanuel Kerkyasharian wrote to Speakman in April last year suggesting that these protections in the Crimes Act be extended to private lawyers.

Kerkyasharian, a barrister who is also a co-host of popular podcast The Wigs, underscored in his correspondence that for the 600-odd members of the association, who are mainly criminal defence lawyers, this matter is of grave concern.

The LECC Operation Monza inquiry found that Strike Force Raptor members were in a NSW regional town in 2019, after being summoned by a criminal defence lawyer in relation to a prosecution involving his client, rather than allowing them to appear via video link.

A Raptor commander ordered two officers to carry out coordinated harassment of the lawyer, which included following him around, pulling his car over, sitting on the bonnet of his parked car and staring at him, as well as then having a group of officers stand at the courthouse doors.

The lawyer was so rattled by the intimidation he asked the magistrate if he could leave the court via the back entrance, and he then dropped the case.

And while its certainly strange times when the NSW Coalition is legislating to protect members of the public from police intimidation and potential reprisals, but it’s hardly surprising given the law unto itself the NSW Police Force has become, especially Strike Force Raptor.