By Hallie Warnock
In the article “Defending the Unpopular”, Abbe Smith, professor of law at Georgetown University, discusses the importance of the right to legal representation, no matter what the crime. Through comparing experiences in the United States and Australia, Smith explores the negativity surrounding advocacy in the criminal justice system. Ultimately, Smith finds that Australia’s primary duty to the court, in conjunction with the ‘cab rank’ rule, creates a fairer legal environment for the accused than exists in the U.S.
As an American interested in criminal law who recently completed a law degree in Australia, I agree with Smith. I find the Australian criminal legal system, though not without its faults, is more respectful of the law and its values as a whole. This comes partially from the high quality of solicitors working in community legal centres but also from the attitude that cases are not about “winning” but about upholding the interests of justice.
To gain further insight into the challenges and rewards of ‘defending the unpopular’, I recently spoke with the inspiring, driven, and charismatic Chrissa Loukas SC of the NSW Public Defenders.
HW: Could you start off by telling us a bit about yourself, who you are, and what you do?
CL: I am a barrister and Public Defender with the Public Defenders Chambers.
Public Defenders are salaried barristers independent of government who appear in serious criminal matters for clients who have been granted Legal Aid. We are briefed by the Legal Aid Commission, Aboriginal Legal Service, private solicitors and Community Legal Centres.
HW: How did you come to be a public defender, and how has your career matched up with what you thought the job would be?
CL: When I was at law school my best subject was Company Law. I remember one of my lecturers at Sydney University saying he assumed I would be heading off to one of the big commercial firms. I said “no, I want to work for the Aboriginal Legal Service and the Legal Aid Commission.” He stated “you have a degree from Sydney University you don’t have to do that sort of thing!”
Despite what he said I still worked for the Aboriginal Legal Service and the Legal Aid Commission as a solicitor and then I went to the Bar.
I was at the private bar for about 5 years when I was appointed a Public Defender. I also spent a year as an acting Crown Prosecutor as I consider it important to be able to argue both sides of any case.
As a law student I hoped my work would be in the criminal law area and fortunately it was. I was also fortunate to work in International Criminal Law as a barrister, in the Hague and had the honour of serving as the Vice President of the Association of Defence Counsel, ICTY, while I was working in the Hague.
HW: In “Defending the Unpopular” Abbe Smith describes “The Question” that all criminal lawyers get asked, which is “How can you represent the guilty?”
Have you ever been asked “The Question?” If so, what is your favourite response to people who ask this?
CL: I often turn “the question” back on the person asking me “the question”.
I say, “You have been charged with an offence. Everybody thinks you are guilty. You are innocent. Do you want someone who will do their job and defend you and perform their professional duty in the criminal justice system or do you want someone who pre-judges you and doesn’t do their job?”
HW: Nevertheless the notion of a “duty to the client” can be controversial, particularly to those who feel the guilty should be afforded nothing and that defending the guilty is at odds with the interests of justice. What does the “duty to the client” and “the duty to the court” mean to you and how do you reconcile the two?
CL: Robust and upright advocacy is what I believe in. My duty to the Court is paramount as well as my duty to the law. Not only can one be both robust and upright, one should be.
HW: Smith attempts to explain why lawyers undertake unpopular cases and, ultimately, what sustains them. What would you say “sustains” you to undertake what some people might describe as “unpopular cases”?
CL: Ensuring the proper application of correct legal principle in every case. Knowing that I have done my part in ensuring that legal principle is applied correctly in every case I appear in is what motivates me and sustains me.
HW: On the topic of unpopular cases, do you believe that everyone, guilty people especially, have a right to legal representation, “no matter how unpleasant the case”?
CL: The right to legal representation across the board equally, whether popular or unpopular, whether pleading guilty or not guilty, is critical to equality before the law. Equality before the law is basic to our system of justice. The same basic rights apply to everyone whatever crime they are accused of.
HW: Abbe Smith highlights the cab rank rule as a fundamental difference in practice between US criminal law and Australian criminal law. Could you briefly describe the cab rank rule and the role it plays in your day to day work as a public defender?
CL: Under the “cab rank” rule all barristers must take a case if it is within their area of expertise and they are available; in the same way that taxi drivers must serve the next person in line. Because of my seniority I tend to be offered briefs in the Supreme Court, Court of Criminal Appeal and High Court. By definition obviously all the people I am briefed to appear for are “unpopular” as they are charged with serious criminal offences.
HW: Like Abbe Smith I am American, so I’m interested firstly your thoughts on the American criminal legal system, and secondly your opinion on the recent election and what effect it may have on the criminal justice system?
CL: The point was made by Smith that lawyers at the top of the profession in Australia often take on the “lowest clients”. This was contrasted with indigent criminal defence in the United States where studies have shown that legal representation in serious criminal cases is deficient. One American lawyer has put it that death row is populated not necessarily by the worst criminals but by those who had the “worst lawyers”. I prefer the Australian system for this reason.
As for the President elect, I would not presume to speculate on what President Trump would be capable of in any area including the criminal justice system!
HW: Finally, since I am writing for the Young Criminal Lawyers’ newsletter – Amicus, do you have any advice for new criminal lawyers or aspiring criminal lawyers?
CL: My life advice to young lawyers is always about the importance of persistence, perseverance and resilience.
I like this quote from Barack Obama “Making your mark on the world is hard. If it were easy, everybody would do it. But it’s not. It takes patience, it takes commitment, and it comes with plenty of failure along the way. The real test is not whether you avoid this failure, because you won’t. It’s whether you let it harden or shame you into inaction, or whether you learn from it; whether you choose to persevere.”
Special thanks to Chrissa Loukas SC who took time out of her very busy schedule to answer my questions.
 Abbe Smith, ‘Defending the unpopular down-under’ (2006) 30(2) Melbourne University Law Review 495.