This is a guest post by legal commentator Hector Lung
On Monday 9 July 2018, in the Alice Springs Supreme Court, Bayden Flash pleaded not guilty to the murder of his wife. By early afternoon of Friday 13 July, a jury of twelve had returned a verdict of guilty. A relatively straightforward murder trial by Territory standards both in terms of the tragic facts and the outcome.
Flash, a 34 year old Aboriginal male, beat his 33 year old Aboriginal wife to death with a brick in a house in Tennant Creek in January of 2017.
Flash was sentenced by the presiding Judge this week to life imprisonment, the mandatory sentence under NT law. His Honour fixed the mandatory minimum non-parole period of 20 years. With Mum dead and Flash to remain in goal or on parole for the rest of his life, the three children of the relationship are effectively orphaned. The eldest of these children was the child subject to the heavily criticised remarks by Judge Borchers in the Tennant Creek Youth Court only a couple of months after his mother’s murder.
Mandatory life imprisonment? Minimum non-parole period of 20 years? The charge of murder is the most serious in the Criminal Code and the attendant punishments the most severe. If you are charged with murder you want that lawyer Tex Perkins sang about, you know, the good one, “the reeeaaaal good one”.
Flash was represented by the Central Australian Aboriginal Legal Aid Service (CAALAS) upon being charged in January 2017. CAALAS lawyers often acted for people charged with murder and swung into doing the work demanded of them by the adversarial system. The CAALAS template for defending a client charged with murder was to ensure the DPP made full disclosure of the evidence amassed against their client with a view to briefing a senior barrister (often a QC or SC) experienced in defending accused in murder trials.
The barrister would sometimes appear at the committal proceedings or at least guide the CAALAS lawyers how to best run the committal proceedings with a view to maximising the defence case to be run at the eventual jury trial. The barrister would then lead the defence team at the trial, giving the accused the best possible opportunity to obtain an acquittal or a reduction of the charge from murder to manslaughter. A conviction for manslaughter does not attract life imprisonment and there is no set minimum non-parole period (although the non-parole period cannot be less than 50% of the head sentence). Typically a person found guilty of manslaughter receives a head sentence in the range of 8 to 12 years and non-parole periods in the range of 5 to 9 years.
CAALAS did not get the opportunity to give Flash the defence he was entitled to. And I repeat entitled to. In a nation as affluent as ours, a nation committed to a properly functioning adversarial criminal justice system, Flash was entitled to an experienced murder trial advocate to defend him. The Crown always wheels out its most competent and experienced prosecutors in murder trials as it must, to ensure the interests of the community are best represented. To ensure the adversarial system works as well as it can, the accused must have counsel at least on par with that of the Crown. Mismatches of lawyers at trial is the stuff of Deep South murder trials in the USA. There some accused, unable to afford sufficiently experienced lawyers in an environment of little or token legal aid, can be represented by law students or destitute lawyers willing to appear for all in fees of a thousand bucks to defend an alleged killer heading to the electric chair.
CAALAS was taken over by the North Australian Aboriginal Justice Agency (NAAJA) on 1 January 2018. Amongst other dubious calls that can be discussed elsewhere, NAAJA decided not to stick to the tried and true formula of briefing an experienced murder trial advocate to defend Flash. In a move not seen for over 25 years in the NT for clients represented by an Aboriginal Legal Service, NAAJA decided that Flash’s counsel at trial would be drawn from the “in-house” lawyers at the Alice Springs office of NAAJA.
NAAJA, already guilty of cutting its criminal lawyer numbers in Alice Springs, immediately heaping more work and attendant stress on those lawyers remaining, thought two of their more experienced “in-house” lawyers, neither who had led a defence team in a murder trial, could take on this most onerous of legal cases. Both of the lawyers who ended up sharing this poisoned gig had groaning caseloads and were predicted to have very little time to properly prepare for trial. Those predictions proved to be accurate.
I want to make it clear that both of the lawyers who acted for Flash are competent practitioners. However it is equally clear that neither of them had the requisite experience to tackle this job and that that dearth of experience was magnified by the lack of time they had to prepare for the trial given their other workloads.
In defending an accused at a murder trial, even a relatively straightforward one, an experienced murder trial defence advocate would set aside at least a full week to prepare the case and that week coming after other preparatory work at committal stage or just after committal. In Flash, one lawyer close to the case remarked that the preparation of defence counsel was “about what one would expect in preparation of a summary hearing” (a summary hearing being a half to one day contested matter before a Local Court judge or magistrate).
Crucial to a trial of this type – where the jury is in essence trying to work out what the accused’s intent was while he bashed his wife – is the evidence of the forensic pathologist. The forensic pathologist gives the evidence about the cause of death and the extent of injury to the deceased. That evidence goes most of the way to providing the basis for a jury to decide whether the accused intended to kill or intended to cause serious harm to the deceased. For example, infliction of particularly serious or numerous injuries (or both) that speak of much force or sustained attack (or both) being used to inflict those injuries is the path to a finding of guilt for murder.
Proof beyond reasonable doubt that the accused held either one of these intents (to kill or to cause serious harm) means a finding of guilt for murder. Lesser intents, like recklessness or negligence, results in a finding of guilt for manslaughter. The cross-examination of the forensic pathologist by the defence is often the pivotal period of the trial for the accused.
Observers also noted the gulf in quality and power of the respective closing addresses. The Crown Prosecutor, well experienced in addressing juries in murder trials, won plaudits for a well-constructed and compelling address to the jury. The defence effort was described as “wooden” at the outset and by the time it reached some points of merit, the jury was apparently largely disinterested. Observers also noted the relative merit of the submissions made by counsel to His Honour as to questions of how His Honour should instruct the jury as to the law, in particular the question of the accused’s intoxication and how his intoxication affected his intention to kill or cause serious harm.
The jury took two hours to return its verdict and that included a lunch break.
“So what?”, some might say. “Who cares if a killer gets his just rewards and so what if his lawyers were not top notch?”. Well we should care. Even at the level of the public expense of housing an offender in goal for twice the time he or she would have served as a convicted manslaughterer than a murderer is a start. The conduct of the defence case in Flash is an alarming example of where the criminal justice system in the NT is heading if NAAJA continues to make decisions like this.
Sources have also noted the situation that developed late last year and into early this year where the mother of a young woman charged with murder arising from an incident in Katherine challenged NAAJA’s choice of defence counsel for her daughter. When NAAJA refused to brief sufficiently experienced defence counsel, her and her daughter prevailed upon the NT Legal Aid Commission (NTLAC) and after NTLAC had applied their merit and financial tests, John Lawrence QC of the Darwin bar was briefed and a full acquittal, on the basis of self-defence, followed. NAAJA had raised with this young woman whether she would give instructions to seek to plead guilty to manslaughter. It must be said that this case of Flash was never, in truth, a self-defence case or an identification case so a full acquittal was never seriously on the cards.
NAAJA has approximately 35 criminal defence lawyers in its employ who defend well over half the people who front the criminal courts in the NT. NAAJA is by far the biggest player on the defence side of the adversarial criminal justice system in the NT. This situation – that is, having an Aboriginal Legal Aid Service as the major defence player in the jurisdiction – is unparalleled in Australia.
It is a heavy burden and questions must now be asked about the approach NAAJA is taking to this task. Already NAAJA has trumpeted that it is not an “Aboriginal Legal Aid Service” but an “Aboriginal Justice Agency” that is dedicated to reducing the number of Aboriginal people in custody in the NT along with providing legal services to Aboriginal people in a whole host of non-criminal law matters (child protection, Family Law, consumer complaints, Housing issues etc).
NAAJA places considerable importance on its work in assisting prisoners make a successful return to the community. These are indeed proper goals but if they come at the expense of the core business of an ALS – provision of up to scratch defence counsel to obtain the best possible outcomes for its clients in the criminal court system – questions must be asked.
The great badge of honour of the Aboriginal Legal Services in the NT over the past 40 years is that they could secure the services of top flight criminal law barristers to defend people charged with murder as those barristers were willing to take the briefs on very much reduced rates.
NAAJA’s recent decisions to try and keep murders wholly “in-house” is not a reflection of lack of resources but a conscious allocation of resources away from these most serious of cases. Having major trials run by experienced counsel, juniored at trial by ALS lawyers was a great way to attract bright up and coming lawyers to ALS’s and lift the overall standard of “in-house” ALS lawyers.
People convicted of murder and imprisoned for life do not go away. They appeal. Trials that were not run by experienced defence lawyers are more likely to reveal appeal points when, inevitably, the trial transcript is pored over by an appeals expert.
The more appeal points, the more likely a re-trial. It is plainly a false economy probably for NAAJA, certainly for the system as a whole, to run an increased risk of not getting the defence side of the equation right the first time.
It must be said that the consensus of the observers of the Flash trial considered it a strong case for murder and it is most probable that, even in the hands of a defence counsel well experienced in murder trials, the outcome would have been the same.
However to accept that as an excuse for NAAJA is to be misled.
NAAJA has a clear responsibility to its clients in the criminal courts and pressure must come to bear on NAAJA to ensure it gets its core business right before it enters into other areas of law and broader social policy. The charge NAAJA must avoid is that is becoming a bit player in areas such as Corrections when it is the major player in the criminal courts and where it is, frankly, dropping the ball.