How to Prepare for Your Defence

General principles

As a general rule, you should not talk to people about your case. You can ask for help from the few people in prison who are known to assist others with legal matters. If you’re seen to be helping yourself, making an effort to work on your case, and educating yourself, then people will help you – but no one, including your lawyer, is going to do it all for you.

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Use the phone as little as possible. Even if you think you won’t say anything inappropriate, all calls are recorded.

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If you’re placed in a security or management unit rather than mainstream, you need to complain about this every day and push your lawyer about it. Your ability to defend yourself from these units is limited. Your priority at this point must be dealing with your defence – which means no drug use and no playing up.

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Don’t trust your lawyer too much; your case is ultimately your own responsibility. You must drive your defence by giving written instructions and keeping copies. Lawyers do not automatically do everything that is needed. A lawyer is like a taxi for hire – if you get in and say nothing, the meter runs, but you go nowhere. If you give poor instructions, you’ll be taken the long way around.

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You must understand that you, the client, own the work done by your lawyer on your behalf. All documents and communication between you and your lawyer are confidential and remain your property unless you sign away that right. This is called Legal Professional Privilege, and it belongs to you, not the lawyer.

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Where to start

First, write a detailed personal history so your lawyer understands you as a real person and not just a defendant. Include:

• Your family
• Your background and upbringing
• Your schooling
• Your work history
• Your relationships with your partner, friends, and others
• Your community ties, activities, and social lifestyle
• Your physical and mental health (including any substance use issues)

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Secondly, write a detailed account of the events that are the subject of the criminal charges against you.

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When preparing these documents:

• Number each page
• Leave space around the margins
• Write on every second line
• Keep a copy for yourself
• Type it if possible

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Send a copy to your lawyer labelled “draft copy” and ask for their thoughts. They may suggest removing some details or expanding others. It’s normal to go through multiple versions.

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Reading and writing skills

If your reading or writing skills are not strong, ask for help. In prison you can buy a dictionary and do a TAFE English course. Ask a friend to help, or let your lawyer interpret your writing. Do not let literacy issues stop you from defending yourself.

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Understanding lawyers

Part of a lawyer’s job is to comfort and reassure clients by saying things like “you have a good chance,” or “we’ll have to wait and see.” The legal process takes time, and as the case develops – if your chances worsen – lawyers try to let you down gradually. They do this because clients can become distressed, lose control, or even harm themselves. They want to keep you stable.

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You might hear things like:

• “We did very well at the committal; they probably won’t take it to trial.”
• “Don’t worry, a jury will never convict on this evidence.”
• “We have strong grounds of appeal.”
• If you’re pleading guilty, you may hear:
• “Don’t worry, this is a good judge.”
• “The Crown is not going too hard.”
• “We’ll look at an appeal – I’ll see you next week.”

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If you are going to plead guilty, do it sooner rather than later.

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Being realistic about your case

You must focus on the problems with your case, not the good points. Concentrate on what work needs to be done and how to do it – whether you’re fighting the charges or pleading guilty.

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Don’t rely on “good chances.” Don’t sit back and “wait and see” – that is the worst thing you can do.

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Work out your real chances. If they are not good, recognise that the earlier you plead guilty, the larger the sentencing discount. At the same time, leave nothing undone. You have only one chance. If you do not raise an issue at trial or at the plea hearing, you cannot raise it on appeal.

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Never hold anything in reserve. If you have evidence, use it at the earliest opportunity.

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Obtaining the evidence

Write to your lawyer and ask for the Hand-up Brief.

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You can also make a Freedom of Information (FOI) request for the police brief. Refer your lawyer to Sobh v Police Force of Victoria [1994] 1 VR 41. If making an FOI request, do it early.

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Working with the hand-up brief

Once you have the brief:

• Read all the documents
• Make notes on every witness statement

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Use the page numbers in the brief as reference points. For example:

• “On page 45, witness Brian Smith says, ‘I saw him run down the street.’ This cannot be true because…”
• “On page 56, witness Jenny Smith says she asked Brian what he saw out the window, and he said he could see nothing at all.”

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Continue like this for all witnesses.

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Conclusion

The criminal justice system deals with proof, not truth. The police and Crown present allegations; the defence rebuts them; the jury decides whether the Crown has met the required standard of proof. “Truth” and “innocence” are not part of the legal equation.

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The system is not concerned with abstract truth in jury reasoning. Many people wrongly believe “truth” matters in court, but it doesn’t. Juries determine facts as proven or not proven based on the law and required standards of proof.

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It is therefore your job to deal with the situation responsibly and obtain the best possible outcome for yourself.