How do you defend a guilty person? | HerCanberra

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How do you defend a guilty person?

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There is no doubt the field of criminal law can induce some big ethical questions.

When someone is caught speeding or drink driving, it can seem quite black and white—but what about allegations of sexual assault, drug trafficking, murder, or even war crimes?

Tom Taylor and Adrian McKenna, the driving forces behind Canberra’s newest criminal law firm, McKenna Taylor Lawyers, reveal what it’s really like being a criminal defence lawyer, provide advice for those who may have found themselves in hot water with the law, and tackle the industry’s most frequently asked question…

“The first rule I never forget is that I can almost never know for sure whether someone is guilty or not. At the end of the day I wasn’t at the scene of the alleged crime and I just can’t be sure,” explains Adrian.

“If I do think it extremely likely they are guilty, the bigger picture can’t be ignored. Once a criminal defence lawyer (or a prosecutor, for that matter) starts picking and choosing who they think is guilty or not, or who deserves more or less effort and passion with representation, I think our system stops working.”

According to Tom and Adrian, everyone deserves the right to competent legal representation, no matter the circumstance.

“That is not just a throwaway line. It underpins everything we do. Our approach to every case is to try and get the best result, whether that is an acquittal or the most lenient sentence possible. Police, prosecutors and courts all have their own duties too,” says Adrian.

“As crazy as it may sound, it simply does not matter whether I think they are guilty or not. If I ever can’t agree to the rules of this game, it’s time I find a new job,” he says.

Adrian’s introduction to criminal law was, as he describes, a wild one.

After finishing university in 2009, he went on to help defend one of the world’s most high-profile war criminals—Radovan Karadzic, President of the Former Bosnian-Serb Republic, at the International Criminal Tribunal for the former Yugoslavia.

“One of my jobs was to summarise more than 100 witness statements containing some of the most horrific things I’ve ever read,” says Adrian.

“People being lined up and shot with machine guns, other mass atrocities and incredible survival stories…no matter how crazy things get these days, nothing can ever compare to the scale of that case.”

After his experience at The Hague, Adrian worked as an associate for judge in the ACT Supreme Court and then spent years as a criminal defence lawyer in private practice in Canberra.

His business partner Tom Taylor’s introduction to criminal law was quite different. Having started as a professional lifeguard,  later moving to a sports management role, it was Tom’s passion for the law that swayed him to complete the degree.

Tom says that there is one case that stands out as the most influential in driving his passion for this career.

“I was representing a young woman who had had a really rough life. Her parents had both passed away, one from suicide and one from a heroin overdose—both of which she witnessed in some form,” says Tom.

“After being caught shoplifting, she was given a curfew by the Magistrate. One night she was drugged and sexually assaulted, and subsequently she breached her curfew, so she was sent to prison.”

Tom made an emotional appeal to release the girl from prison that brought the entire courtroom in tears. Safe to say, the woman was released.

“Afterwards, she came up to me and said, ‘I’ve never ever had anyone fight for me like that before’. That’s when I realised just how privileged I was to be in this position, where I can help others who really need it.”

Since then, Tom has developed an impressive portfolio at one of Sydney’s largest criminal law firms, defending heads of drug syndicates and bikie gang members. He’s also made his mark on the Canberra scene, appearing in many high-profile cases.

Now, as business partners, Tom and Adrian want to focus on providing Canberra with exceptional criminal defence law services where client access is their number one priority.

“McKenna Taylor does not dabble in other areas of law,” explains Tom. “Criminal defence is what we specialise in, and it’s what we want to be doing every day. We give each client our direct and undivided service,” explains Tom.

“It’s so important in this area of law that no client gets left behind, forgotten or missed. Someone facing a criminal charge needs as much support as they can get throughout the often stressful and traumatic time. They need as much face-to-face time with us as possible, so they can truly understand what they are facing and get some certainty around that.”

“Panic, stress and irrational thoughts can be really damaging without someone there to explain it to you,” he adds.

As for those facing criminal law charges, Adrian and Tom have a few tips:

  1. When charged with a criminal offence, people often feel they need to prove their innocence and/or explain themselves immediately. We are all presumed innocent until proven guilty and have the right to remain silent. No negative inference can be drawn from remaining silent. If police say you are under arrest or suspicion for a criminal offence do not speak with them at all about the allegations until you have had an opportunity to seek legal advice from a criminal defence lawyer.
  2. If you can afford it or have friends or family who can help, it is almost always worth getting a lawyer for sentencing. It is a process you just won’t fully understand and you won’t know what a Magistrate or Judge needs to hear to get the most lenient sentence possible.
  3. Whilst it might not feel like it at the time, there is no need to assume you are facing hard gaol time and a destroyed career just because you have been charged by police. Sometimes the most comforting first step is to hear from an expert what you will realistically be facing.
  4. Don’t discuss the detail of any criminal charge with friends, family or anyone other than your lawyer. If you have pleaded not guilty it is perfectly fine to give a brief and general denial about the charge but literally any conversation you have with anyone could end up as evidence against you at a trial.
  5. Understand that criminal law matters, and most legal matters in fact, will take much longer than you expect. It requires a testing amount of patience and trust that your lawyer will get you there in the end.

Photography: Bel Combridge

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