Friday, 7 November 2014

Look at Me

Daniel Soames was in Chambers Monday morning pondering which of the variety of matters on his desk would receive his immediate attention and therefore determine how he would commence his working week.  At about 9:25 am that decision was largely made for him when he received a telephone call from Derek Winthrop, solicitor.

Winthrop said, “Mr Soames you may be aware of the new laws that were recently introduced in relation to clothing.  More specifically that if a male was seen to be wearing his cap sideways or backwards, he faced immediate imprisonment of a month.  A similar sentence would be imposed for males who were dressed such that their underwear was showing. Further if the male in question had both of those conditions, the punishment would be six (6) months imprisonment.  If he challenged the offences in Court and lost, he would face two (2) years imprisonment.”

Winthrop continued, “I have been approached by a young man who was charged with the combined offences of:
(a) Wearing a cap backwards; and
(b) Wearing exposed underwear in public.
He wants to challenge the matter in Court and accordingly wants a bail application made in respect of him.  I hold considerable funds in trust to cover the fees of both of us for the bail application and the substantive Court challenge.  I have given him little substantive advice in relation to his position. In essence I have said he would be best placed me to consult you and then we can talk further with him as to his prospects. Is this something that interests you and are you available to take it on?”

Daniel said, “Mr Winthrop once again you have opened your bag of interesting and shared with me some of its relevant delights.  Yes, I am interested in the case of the dreaded backwards-cap wearing, underwear-flashing hooligan.  Sometimes I think it is great that we get paid to do this stuff.  I am also available to take on this matter, in fact you can enjoy my immediate attention.  Perhaps before we proceed to Court in any fashion for this chap, we should have a conference with him at the jail, with a view to obtaining very careful, specific, signed instructions from him that he understands precisely what it is he is risking in challenging these charges.  What has the Crown got in terms of evidence against this chap?”

Winthrop offered, “Mr Soames, perhaps it would be easier if I bring my file to you this afternoon, at say 2:00 pm, and we can have a more detailed conference about what we have, what we need and how we should approach this particular matter?”

“Excellent suggestion, Mr Winthrop, I will see you here at 2:00 pm.”

Just before 2:00 pm Derek Winthrop attended the Chambers of Daniel Soames and their conference commenced without delay.  As Soames was perusing the material Winthrop had provided to him, Winthrop said to Soames, “Provisionally I propose that we have a conference with the client at the jail tomorrow afternoon, Tuesday.”

Soames replied, “That is a good idea, particularly because we should probably try to get this matter listed for the bail application on Thursday or Friday of this week.”

Crown Case
Soames continued, “I see that the Crown case consists of:
Statements from two (2) uniformed police officers who followed the Accused for three (3) blocks in the Brisbane City precinct (along Adelaide Street, from Edward Street to George Street).
Closed circuit television of the Accused for several blocks clearly showing him with his cap on backwards and his trousers worn so low his underwear was clearly and significantly visible.
A report of the Public Transport Travel Card of the Accused showing that he was at Central Train Station at the time the surveillance video of him commenced.
“It looks to be a pretty strong case in the circumstances, Mr Winthrop. Are you aware of the basis upon which our client wishes to challenge this prosecution?”

Winthrop replied, “I get the impression his defence is based on how apparently unfair of all this is in his life.  Accordingly the conference at the jail tomorrow should be very useful all-round.  I will have a draft of the instructions I understand we need with me, so we can deal with that aspect of this matter tomorrow as well.”

“Excellent Mr Winthrop.  We will leave from here at 1:00 pm tomorrow.”

“Yes, Mr Soames, I will see you then.”

Tuesday - Conference at The Jail
Soames commenced the conference immediately. “Mr DeShaun, Mr Winthrop tells me you wish to challenge the Crown case in respect of the two (2) charges you are facing?”

“That is correct”, Stransky DeShaun replied.

Soames outlined the Crown case to Stransky and then said to him, “As I see it, the Crown Case is strong and almost certain to result in your conviction on both counts. On what basis do you wish to challenge this prosecution?”

“Prosecuting me and sending me to jail for what I may have done is unfair”, Mr DeShaun responded.

“We are unlikely to be successful running an ‘Unfair’ defence, Mr DeShaun. I notice you want an application for bail made, as well. We could use the bail application to test the Crown case, but you are unlikely to enjoy any success with it. Especially as you have no evidence to provide to the Court to improve your position.”

“Do you have anything to add, Mr Winthrop?”, Soames asked.

“I agree with your assessment, Mr Soames”, replied Winthrop.

“Bearing in mind our advice, what do you want to do, Mr DeShaun?”, Soames enquired.

“I want to go ahead with a bail application”, Stransky DeShaun said, confidently.

Winthrop then said, “Mr DeShaun, I have prepared some written instructions that whilst bail is unlikely to be granted to you in your circumstances, you wish to proceed with a bail application. It will enable you to test the Crown case and the attitude of the prosecution and the Court to your situation. Please read those instructions and sign them, if you agree with them.”

DeShaun read the instructions prepared by Mr Winthrop and then signed those instructions.

“There is not much more we can do here, Mr DeShaun. We will chat with you again after the bail application”, said Soames and the conference ended.

Bail Application
The Judge wasted no time in the bail application. She spoke politely to Soames, but it was clear she was in no mood to spend any more time on the case than was absolutely necessary.

“Mr Soames, as I understand the facts and circumstances of the case:
The Case is unlikely to get any better for the Accused.
The evidence against him is overwhelming.
His substantive case seems to lack anything remotely like merit.
It is hard to understand why he would unnecessarily risk a certain two (2) year jail sentence being imposed upon him, rather than the six (6) months jail sentence he is currently facing.”

“Have I missed anything?, Mr Soames”, the Judge asked.

“Nothing relevant, Your Honour”, Soames responded.

“Mr Soames, given the consequences that flow from a bail application being refused and given the extreme unlikelihood that this application will be successful, might I suggest you consider withdrawing this application and re-agitating it, only if your client is able to provide something more substantial in terms of its merits. I understand he may have wished to test the attitude of the Crown and the Court in relation to his prosecution. That has occurred today and the news is not good for him. Would you like to confer with your solicitor?”

“Thank you, Your Honour. If I may have some time to confer with my solicitor?”

“Certainly, Mr Soames. Madam Prosecutor, it seems we will not be hearing from you today.”

“Yes, Mr Soames.”

“Thank you, Your Honour. I have conferred with my solicitor. If the bail application could be adjourned to the Registry to a date to be fixed?”

“That seems a sensible approach, Mr Soames. The Order of the Court is that the bail application be adjourned to the Registry to a date to be fixed. Thank you for your appearances and your assistance Madam Prosecutor and Mr Soames. You are both excused.”

“Thank you, Your Honour”, they replied in unison and then promptly left the Court.

“Our client has his answer, Mr Soames and the news is all bad.”

“He is unlikely to be happy with that news either, Mr Winthrop.”

Post-Bail Application Conference
“The bail application did not go well, Mr DeShaun. However the Judge was not entirely unkind to you. She enabled your bail application to be adjourned to the Registry to a date to be fixed, thereby preserving your rights, such as they are, and not punishing you by refusing your bail application. Her Honour also clearly set out her view of the case against you and your likelihood of success. She saw no merit in your challenge to the Crown case whatsoever. Clearly the “Unfair” defence would not work with her.”

“What are my options, Mr Soames?”, Mr DeShaun enquired.

“You can withdraw your application to challenge your prosecution on these two offences and accept that you are guilty of them. Ultimately that will save you some aggravation and also some money. It will also save you some time in jail. At the moment you are looking at imprisonment for six (6) months. However if you unsuccessfully challenge the prosecution, the sentence will be two (2) years imprisonment and there are no reasonable prospects of you successfully challenging the prosecution.”

“Despite your reticence to withdraw your application to challenge your prosecution, ultimately you cannot deny wearing your cap backwards or having your underwear exposed, as alleged. You accept that your Public Transport Travel Card history puts you at the train station at the time when the closed circuit television surveillance of you commences. It is hard to see anything remotely like a plausible defence that you can realistically run in this case,” Soames told Mr DeShaun.

“None of that is good news”, Mr DeShaun said in response.

Winthrop added, “The legislation is drafted in such a way that mitigating circumstances effectively do not apply. Once the offence has been proved, the sentence is imposed. It seems to be designed to discourage the commission of the offences and to save time and money in court proceedings. None of which you will find comforting, I expect.”

Mr DeShaun sat silently looking at the table and shaking his head.

Soames told Mr DeShaun, “Your sentence will start from when you were first taken into custody. It will also be a straight sentence, without remissions or parole”.

Winthrop said, “Mr DeShaun, If you wish to withdraw your application to challenge your prosecution for these offences, I have prepared draft instructions for you. Please read them and, if you agree with them, sign them.”

“Seems I really do not have any other option. Losing the challenge application adds eighteen (18) months jail to my sentence”, Mr DeShaun said forlornly.

He then read and signed the instructions prepared by Winthrop.

I will formally notify the Crown and the Court of your instructions to withdraw your application to challenge your prosecution for these offences.

Soames added, “Your formal sentencing for these offences will be listed shortly and I expect the proceedings will last no more than fifteen (15) minutes. You will be arraigned, you will enter your plea of guilty and you will be sentenced to six (6) months imprisonment, commencing from the time you were taken into custody.

Returning To The City
As they made their way back to the city from the jail, Winthrop said to Soames, “Clients like Mr DeShaun would do themselves a significant service if they bothered to think before they acted, if they considered that their actions may have consequences they do not like.”

“Quite so, Mr Winthrop. But unless and until such enlightenment occurs to them, they will continue to contribute to criminal jurisprudence.”