QLD What constitutes negligence in a Lawyers Duty of care to client

[cakeforbreakfast]

I recently had a legal issue and was charged with drug possession.

I hired a criminal lawyer to defend my rights.

The pressing issue in my case was the lawfulness of the actions of the police when they used their powers to stop and search . This was the question before the court. If the actions were found to be unlawful the court should use its discretion not to admit evidence.

The advice from my lawyer was it appears that there is no authority under the law as the evidence does not show the officer had reasonable suspicion to stop and search. This was the consistent message throughout my case.

Come the day of court my lawyer suddenly tells me she doesn’t have high hopes due to the particular Magistrate on the day.

The prosecution put to the court I was intercepted for drug enforcement purposes.

The judge was asked to restrict the evidence he considered to that available to the officer when he made the decision to authorise drug enforcement act and intercept me for this purpose.

On the officers pretrial statement the officer states he formed a reasonable suspicion for a prescribed offence (drugs offence) after he stoped me and asked me questions to which I declined to answer. In addition he calls on my demeanour and behaviours and observations I was nervous and eager to leave police presence.

In his testimony to the court the officer tells a different version of events and relies on different circumstances to form his reasonable suspicion. In this version he said I was using my phone in a suspicious manner, this was identified from his knowledge acquired from an online course on criminal suspect behaviour (was not mentioned pretrial) Additionally he observed me talking to another man and he believes the other man spotted him in his unmarked police car and warned me of his presence (was not mention pretrial) . Along with a few generalised facts about the neighbourhood.

The only video evidence shown to the judge was the BWC on the interception (evidence not disclosed pretrial) where my first words spoken are “why am I being stoped officer”?. The officer replies “I was stoped under the traffic management act for running a red light.

As you can see there seems to be three different versions of events presented as evidence by the same officer.

My opinion is the judge took all these different versions of events under consideration as one event and claims the authority to stop and search lawful.

I feel my lawyer mishandled my case in court. He failed to effectively cross examine the witness (police officer). He also failed to identify to the court the varied versions of events that the officer has presented which at best only one version could have been the truth.

Was I given the wrong advice in my matter or has my Lawyer not been diligent in his representation?

Would the circumstances be considered negligent?

I’m mostly shocked how the advice was in his view there was no lawful authority to search (which I agreed with) and felt my case was strong in comparison to the prosecution to on the day lack of confidence in securing the desired outcome which seen me with a guilty plea, down 10k in legal fees and with the ruling as it stands have no avenue to submit complaints about police conduct.

 

[Rod]

I do not think you have much of an argument.

I suspect you have been watching too much TV about American crime shows. Australia does not have the doctrine of the fruit of the poisoned tree, and our stop and search laws are different.

I cannot comment on a cross-examination I have not heard. And it may be the different versions had no bearing on other overwhelming evidence.

 

[cakeforbreakfast]

Hi Rod,

Thanks for your comments,

Perhaps I am guilty of watching TV shows based on the American Law. I note there is a difference in the two systems and make no claim of being an expert on Australian law. This is why I engaged in an Australian criminal lawyer.

The specific rule in question before the court was the lawfulness of the stop and search. The requirements of section 29 of the PPRA is that an officer must have the reasonable suspicion as a pre-condition to the exercise of the power.

Over the last six months the legal advice was consistent. The officer did not have lawful authority to stop and search based on the evidence presented.
However On the day of the trial however my lawyer approached me and has said that he doesn’t have high hopes of succeeding due to the magistrate on the day.

So I guess the first question im asking is was I given bad advice?

If it was a case that the advice was I had no chance of succeeding and everything was by the book I would not have spent close to 10K arguing the issue in court. The advice was based on evidence that was disclosed pretrial so does having a different magistrate effect the the question of law at hand?

My other concern is then manner in which my case was handled.

There was clear inconstancy with the evidence the officer has presented in court. The problem with this inconsistency is rather than the officer forming his reasonable suspicion as a pre-condition to excersise of the power it appears the officer has exercised the power and then fabricated the version of events to which his suspicion was based.

The final version that was presented to the court in testimony was based of a different set of facts in a different point in time than previously given in his written statement. The written and verbal statements given as evidence can’t both be matter of fact if the position put to the court was a precondition was me due to one particular set of facts available to the officer at the time.

Additionally the set of facts he was releying on in his testimony were not even mentioned in his written statement let alone being relied upon as the critical fact to which his reasonible suspicion was based.

Hopefully this has helped in explaining the issue.

 

[Rod]

my lawyer approached me and has said that he doesn’t have high hopes of succeeding due to the magistrate on the day.

Yep, it happens. Magistrates have a large amount of discretion in cases.

There was clear inconstancy with the evidence the officer has presented in court. The problem with this inconsistency is rather than the officer forming his reasonable suspicion as a pre-condition to excersise of the power it appears the officer has exercised the power and then fabricated the version of events to which his suspicion was based.

Possible grounds for appeal here.

everything was by the book I would not have spent close to 10K arguing the issue in court.

Easy to argue in hindsight. A different Magistrate may well have ruled in your favour.

The final version that was presented to the court in testimony was based of a different set of facts in a different point in time than previously given in his written statement. The written and verbal statements given as evidence can’t both be matter of fact if the position put to the court was a precondition was me due to one particular set of facts available to the officer at the time.

How much weight this is given is for the Magistrate to decide.

A breach of s.29 of the PPR Act is likely grounds for a complaint against the police officer. Looks like the court preferred the later testimony - which is unusual. The closer to the event evidence is normally more reliable as witnesses haven't thought through all the implications of their statements.

 

[cakeforbreakfast]

I understand what you are pointing out about the magistrate having a large amount of discretion. But they are also bound by the rule of law and decisions made by higher courts. The are also suppose to be impartial.

For my lawyer to loose all confidence in the case due to a particular magistrate would suggest the magistrate may be bias on a particular issue placed before him. If this was the case it would be reasonable to entertain the idea that one may not receive a fair hearing

everything was by the book I would not have spent close to 10K arguing the issue in court.

Easy to argue in hindsight. A different Magistrate may well have ruled in your favour.

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Yes i understand your point but with this but i will put into context. The advice from the onset was that there is no lawful authority to stop and search based on the evidence (Court brief, officers written statement, Body worn Camera video, Vehicle dash cam video). For a case like mine I would think there is little discretion in the hands of the Magistrate due to the power an officer has to stop and search being well established in legislation and countless cases that have appeared before higher courts that have set a precedent. The discretion the Magistrate held was limited to deciding if he believed the officer held a reasonable suspicion at the time. The Magistrates decision should be based on the evidence and the law with consideration to both the prosecutions and defence lawyers arguments. If my lawyer did not question why the officers version of events in his testimony relied upon a different set of facts than what was in his written statement it would be fair to say he did not test the evidence in the prosecutions case effectively.

By not testing the weakness in the prosecutions case the Magistrate (who already had a predisposition to side with the prosecution) is not in a position to consider how much weight would be placed upon the evidence at hand when considering the outcome of the case.

So this brings me back to my original question.

A lawyers duty of care to a client is to deliver legal services competently and diligently. Would a failure to test the evidence in the prosecutions case be something that would be considered negligent?

 

[Rod]

Possibly, though negligence is a reasonably high barrier to overcome.

A review of the circumstances is needed and someone will need access to the material, brief and court transcript to form an opinion.