The History of the Role of Criminal Defence Lawyer in New South Wales

09/06/2023

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Like many other aspects of the legal system, the role of the criminal defence lawyer has a long and interesting history both in our own nation and in times that predate colonisation.

Here’s an outline of the origins of the role of the defence advocate – now variously known as the solicitor, barrister or criminal lawyer, the early stages of the role in New South Wales and the development of the right to a legal defence in the twentieth century.

Ancient origins of modern lawyers

Historians trace the beginnings of the modern ‘lawyer’ to the orators of ancient Athens – men who were hired for their capacity to articulate and convince others of a position. Those accused of violating the law would call upon an orator to state their case (often under the necessary pretence they were a “friend” helping them, rather than a rhetorician for hire).

Emperor Claudius of Ancient Rome formally legalised and recognised the role of advocate, creating the first generation of “lawyers” – although this was far from a regulated profession.

The origin of the modern legal profession can be traced to Medieval society, where a series of legal changes required advocates within early courts to be admitted into a profession of lawyering. The legal profession was properly formalised amongst all civil courts in England by the 13th century .

Although the role of lawyer has a lengthy history, the origins of the criminal defence lawyer are much more recent. Traditionally under English law, people charged with felonies were denied the right to legal representation. It was only in the early 18th century that defence counsel were gradually allowed to take part in trials for serious crimes.

This is because the adversarial model of criminal trials, where prosecution and defence battle it out before a jury – did not become common practice in England until at least the mid 19th century. There was an expectation at the time that the judge would act as the advocate for the defendant in both fact and law, and would also assist in the questioning of witnesses.

Early defence counsel were often limited to helping clients charged with felonies on points of law and were prohibited from assisting with facts in issue.

This still evolving system was exported to Australia during colonisation.

Advocates amongst the NSW colony

Following the discovery of NSW by James Cook in 1770,a settlement of former convicts was established in 1788.

The passed of the New South Wales Court Act 1787 in England established the first New South Wales Courts of Criminal and Civil Jurisdiction amongst the newly formed colony.

Early attempts to run trials in the NSW colony, soon came into a problem that the only legally training professionals were also former criminals. Being convicted of a crime barred a person from the legal profession under English law, so these men often acted as ‘agents’ not lawyers in legal matters in NSW.

From 1788 to 1815 the only legal practitioners in New South Wales were two former convicts, George Crossley and Edward Eagan. Both men had been struck off in England but owing to the lack of lawyers in the colony, they were allowed to practice there.

The first non-convict lawyers to establish themselves in NSW were William Henry Moore and Frederick Garling, both induced over by the Colonial Office in the United Kingdom to try to establish a qualified legal representation in the colony.

The early colonial legal profession followed the model of ‘attorneys’ rather than the split between solicitors and barristers which is established today (and was in practice in England at the time).

In 1836, legislation was enacted in England that guaranteed the right of all criminal defendants to employ legal counsel, and expanded the role of said counsel to include the right to state the defendant’s case to the jury in summation. This law was not immediately adopted in NSW, but following a number of court challenges, became part of local law, firmly establishing the adversarial criminal model in the colony.

Gradually, the belief that every person accused of a serious crime should hire a lawyer became widespread. However, it’s important to note that there was no substantial ‘right to a lawyer’ in the colony should a person be unable to afford the relevant fee.

Just before Federation in 1901, a formal professional association for lawyers, The Incorporated Law Institute of New South Wales, was established in 1842. The NSW Bar Association was established in 1936.

Expanding access to defence lawyers

No formal scheme existed to expand access to lawyers amongst criminal defendants in NSW until well into the 20th century.

At the turn of the century, poor prisoners defence schemes were established to allow legal aid to a prisoner of insufficient means if “desirable in the interest of justice”.

The Poor Persons Legal Remedies Act 1918 (NSW) provided a benefit to any person who could satisfy a judge “that he is not worth fifty pounds”. In 1941, the Public Defenders Office was established to represent disadvantaged people in serious criminal cases.

Modern legal aid schemes were established across the Australia in the 1960s and 70s, seeking to offer people of insufficient means access to legal representation provided by private lawyers. The precursor organisation that would eventually become Legal Aid NSW was established in 1979.

The High Court of Australia made clear in the 1992 case of Dietrich v The Queen that those charged with serious criminal offences – such as those prosecuted by way of a jury trial in the higher courts – have a right to competent legal representation unless there are exceptional circumstances which prevent this.

Although there are still ongoing, structural problems with access to justice in Australia – our modern system of criminal defence lawyers, ensures all those who are accused of wrongdoing can put their best case forward.