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Bourke Street killer James Gargasoulas found guilty

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A Victorian Supreme Court jury has found Bourke Street driver James Gargasoulas guilty of murder.  

Gargasoulas

The facts

On 20 January 2017 James Gargasoulas accelerated a car he was driving down a footpath in Bourke Street Melbourne, deliberately targeting pedestrians. He killed 6 people and injured many others during his rampage.

Gargasoulas was suffering from paranoid schizophrenia and drug induced psychosis at the time of the offences.

Relevant law

Section 3 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:

“offence” includes conduct that would, but for the perpetrator’s mental impairment or unfitness to be tried, have constituted an offence.

Section 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides: 

Defence of mental impairment

    (1)     The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—

        (a)     he or she did not know the nature and quality of the conduct; or

        (b)     he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

    (2)     If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

Victorian Supreme Court trial

At the trial, the jury listened three days of evidence and watched harrowing CCTV footage of the rampage.

Gargasoulas gave evidence about his state of mind at the time of the offences:

“I had a premonition and I followed my instinct to do what I did… I wasn’t intending to kill anyone as I was driving to the city.”

Gargasoulas apologised for his actions but said saying sorry or a lengthy sentence would not “fix what I have done”.

His barrister Dr Theo Alexander started his three minute closing submission with a quote from Hamlet:

“Our wills and fates do so contrary run

That our devices still are overthrown

Our thoughts are ours

their ends none of our own.”

In her closing, Director of Public Prosecutions Kerri Judd QC said it was a clear case of criminal liability:

“There’s no issue of identity, the conduct itself is captured on the CCTV. The CCTV really in this case says it all.”

The jury were sent away this morning at 11.43am to deliberate.

Jury’s decision

In less than an hour, the jury found Gargasoulas guilty of 6 counts of murder and 27 counts of reckless conduct endangering life.

Gargasoulas displayed no emotion as the verdicts were announced while family members of the victims who were in the court wiped their eyes. Later, Gargasoulas appeared to be twitching his leg and rocking slightly in his seat.

Conclusion

The jury’s verdict should not have come as a surprise given there was no dispute that Gargasoulas was the driver of the car and had intended to kill or injure, and a jury had earlier found that he was fit to stand trial.

There is no doubt that Gargasoulas’ mental illness was a cause or contributing factor to the crimes he perpetrated on 20 January 2017. This case shows that even when someone is suffering from a mental illness and/or a drug induced psychosis, they ordinarily still are held criminally responsible for their actions. The legal question for a jury or judge is whether they knew what they were actually doing, or whether they knew that what they were doing was wrong. The jury’s answer to both questions was in the affirmative.

Judge Sandy Street denounced by Federal Court

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Sandy Street

Litigation is very tough on litigants. They find themselves in an environment where in spite of their strong feelings about their case, their emotions carry no weight and are seldom acknowledged by the court. Furthermore, their fate at trial is the hands of a third party who may rule against them, with disastrous consequences. Adverse findings can be made against them. There is an incredible amount of stress associated with such risks. And of course, there is the massive amount of money they have to pay towards their own legal costs.

In return, the least litigants are entitled to expect is a judge who properly hears their case and considers it in a fair minded way.

Unfortunately, this is not what has been happening for many cases before Judge Sandy Street:

A federal judge who has had at least 61 judgments overturned on appeal since his appointment 3½ years ago has been found in ­recent cases to have repeatedly failed to fulfil the basic judicial task of properly trying cases and giving adequate reasons for his decisions.

In a scathing appeal judgment two weeks ago, Federal Circuit Court judge Sandy Street was found to have “manifestly failed to give adequate reasons, and in places reached conclusions that were plainly wrong”, when he threw out a claim brought by a teacher who had been denied a termination payment promised by the Sydney Catholic school system.

Judge Street — whose father, Sir Laurence, grandfather and great grandfather were all former NSW chief justices — had delivered his decision “ex tempore”, or on the spot, without retiring from the bench for consideration.

He has been repeatedly criticised on appeal, including in at least seven recent cases uncovered by The Weekend Australian, for failing to give proper reasons when delivering judgments in this way.

Since his appointment by the Coalition on January 1, 2015, Judge Street has had at least 61 cases overturned, 14 of these since early March.

Many of his judgments have been delivered ex tempore, helping him to dispose of about 1370 cases in a 26-month period, while the other eight Sydney general federal law judges combined disposed of just 2290 cases.

But in his decision, Federal Court justice Robert Bromwich said the “perceived efficiency” of this approach could be “illusory”, and cause litigants to “suffer” in some cases.

“When ex tempore judgments are used inadequately or inappropriately, the quality of justice delivered may fall below acceptable standards, perceived efficiency may be illusory … costs may be greatly increased (especially due to an appeal) and the final resolution of a dispute may be delayed, rather than accelerated,” he said.”

 

Whilst the Federal Circuit Court does have an incredible workload given the number of family law matters and the variety of other federal matters which come before it, it is important for the interests of justice that litigants are afforded a fair hearing and have their cases considered in a fair and balanced manner.

 

Interestingly, when he was at the bar Judge Street called for a fairer process with respect to the appointment of barristers to silk. The Federal Court clearly wishes for fairer processes in Judge Street’s courtroom.

What if I know that my client is guilty?

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What if a lawyer knows that their own client is guilty of the offence(s) for which they have been charged? This is a question that lawyers are often asked, although perhaps surprisingly not often by criminal clients.

In short, the answer depends on whether a lawyer’s knowledge of their client’s guilt arises from the evidence against them, or whether it’s because the client has confessed their guilt to their lawyer.

In the first scenario, the lawyer’s knowledge could perhaps be better characterised as belief if the client disputes their guilt.

On the other hand, when a client confesses to their own lawyer there is almost always no reason for them doing so other than because they are in fact guilty. Their guilt can normally be safely assumed.

This post will address each scenario.

If the evidence against the client is so strong

If the evidence against the client is extremely strong and their lawyer believes as a result of the evidence that a conviction is certain, then the lawyer should advise their client to plead guilty. In practice, this is best done after the lawyer has listened to the client’s side of the story for two reasons. Firstly, hearing what the client has to say will ensure that there are no facts that the lawyer is aware or that they have overlooked or not previously been aware of. Secondly, by listening the lawyer will have hopefully built up some rapport so that the client will be more like to take the lawyer’s advice.

When advising the client to plead guilty, the lawyer would need to explain the basis of their opinion to the client so that he or she can make a fully informed decision. It is after all their decision, not the lawyer’s. It would also be important to mention that a guilty plea leads to a reduced sentence and avoids the stress of a trial. If the client takes the advice, then the lawyer has acted in the client’s best interests even though they have been convicted on their own plea. Of course, the interests of justice will also have been furthered in that a guilty person will have been convicted and a trial will have been avoided.

However, if the client listens to the lawyer’s advice and is adamant that they will nevertheless plead not guilty, the lawyer must accept their decision. It is an accused person’s right to plead not guilty, even if they did in fact commit the offence(s) they are charged with. The lawyer must not in any way seek to interfere with that right. Criminal defendant lawyers have often represented clients who they thought were guilty but who wished to plead not guilty. There is nothing wrong with defending a client who the lawyer believes is guilty, for the reasons set out below.

1. The lawyer is not the person who determines guilt or innocence

The first reason why it is perfectly ethical to defend a client who the lawyer knows or believes is guilty is that the lawyer is not the person whose role it is to decide whether or not the client is guilty. As Johnathan Goldberg has said, “a defending advocate is not there to stand in judgment upon his own client”. That role belongs to a judge or jury, as the case may be.

Assuming that no evidence is excluded from the trial, the judge or jury reaching the verdict will have all the evidence that the lawyer has to decide for themselves whether or not the client is guilty.

If the lawyer refuses to act for a client because they believe they are guilty, the lawyer is to a degree assuming the judge or jury’s role as being the decider of guilt. As David Whitehouse QC has pointed out:

“Usually I have my own view of the merits of the defence, but even if the prosecution case is very strong, if my client tells me he’s innocent I have to act for him, because it is a cardinal rule of the profession that we are not allowed to refuse to represent someone because we don’t like them or because we don’t believe in their case. Otherwise, some people wouldn’t get a barrister to defend them at all. The system is based on the idea that there’s a barrister on each side, the jury looks at the case from both angles and makes up its mind. It only works properly if both sides are represented.”

2. Possibility of error

Furthermore, what if the lawyer was wrong in their belief that the client was guilty, but continued to act for them and let that belief influence how well they defended the client? Then if the client was convicted, the lawyer would be at least partly responsible for a great injustice. Furthermore, whilst the client can appeal a judge or jury’s decision, if the lawyer decided their client was guilty and let that affect their performance, that would not be a ground for appeal unless that could somehow be proven (which in practice may be very hard to do). It would be extremely improper and dangerous for a lawyer to engage in such hubris.

What if my client tells me they are guilty?

In practice, a client confessing to their lawyer is almost unheard of, although it did happen in the infamous Lake Pleasant case. Nevertheless, in Australia there are clear rules for lawyers in this situation.

Client confidentiality

One important rule that applies is client confidentiality. Even if a client confesses to the lawyer, the lawyer is still bound by confidentiality to not disclose that communication to others. If the lawyer is ever called as a witness in court and asked about communications made by the client to the lawyer, the lawyer can and must claim privilege and refuse to answer the question. However, if a client confesses to someone who is not their lawyer (or an employee of a law firm), then such a confession can be disclosed and used in evidence. This is what occurred in the Max Sica trial. Sica was subsequently convicted of a triple murder.

There are sound reasons for client confidentiality. If the lawyer could or had to disclose such confidential communications, then the role of the lawyer would be closer to that of an impartial investigator (such as a police officer) than a lawyer. This could well result in clients not trusting their lawyers and not being frank to their lawyers, even when they are innocent. This in turn can seriously undermine the defence, as the lawyer is not aware of all the facts that may assist or hinder the client’s case.

There are many reasons why someone who is innocent of an offence may require confidentiality in order to have the confidence to reveal things to their lawyers which may assist his or her case. Weakening client confidentiality could result in innocent people being convicted, or mitigating facts not being raised during sentence.

Duty to not mislead the court

Notwithstanding client confidentiality, if the client admitted his or her guilt to the lawyer, the obligation to not mislead the court would still apply. However, in Australia this obligation would alter how the lawyer can defend the client.

If the client tells the lawyer they are guilty the lawyer can still defend them, although the lawyer is not obliged to if someone else can be found in proper time to represent the client and the client does not insist the lawyer represents them. However, in defending the client the lawyer is not allowed to advance a positive case which the lawyer knows to be untrue. This is dealt with in rule 20.2 of the Australian Solicitors Conduct Rules 2011. Those rules provide that in such a case, the lawyer:

(i) must not falsely suggest that some other person committed the offence charged;

(ii) must not set up an affirmative case inconsistent with the confession;

(iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;

(iv) may argue that for some reason of law the client is not guilty of the offence charged; and

(v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged

In other words, the lawyer can put the prosecution to proof (force them to prove their case) and argue that the evidence is not strong enough evidence for the client to be convicted, or argue that the client’s alleged conduct does not amount to a criminal offence for legal reasons. The lawyer can also try to weaken the evidence by cross-examining witnesses (without advancing a positive case), arguing that particular pieces of evidence prove little and so on. However, the lawyer is not permitted to submit to the court that my client has an alibi, has committed the offence in self-defence or advance some other evidence or explanation the lawyer knows to be false.

Conclusion

As this post demonstrates, the answer to the question of what s lawyer should do when they know or believe their client is guilty is somewhat complicated. And no doubt it is controversial. After-all, if a client has told the lawyer they are guilty and the lawyer’s  efforts helped them escape conviction, then the lawyer has helped a guilty person ‘get away with it’. However, the current requirements are justified when one looks beyond the circumstances of the case and looks at the broader considerations, including the lawyer’s  role as an advocate rather than an investigator or jury, and the importance of client confidentiality. However, the duty to not mislead the court is paramount. Whilst the lawyer is not permitted to disclose client confessions to the court, the lawyer is also prohibited from misleading the court by adducing evidence or making submissions that they know to be false.

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