26. An aspect of defending which tends to be forgotten nowadays

Paul Quinlivan’s Snapshots

It is important that we understand that ‘defending’ someone on a criminal charge means ‘doing, for him, what he cannot do himself because he does not have your specialist knowledge’. There are three basic facts which are important here. 
The first is that it does not mean ‘getting someone off’ unless, of course, that is what the Accused would do if he was qualified. But, although we have already seen in Snapshots Nos. 4 and 21 examples of this, the chances of it happening are pretty remote, unless the prosecution has fallen down badly. There are, however, many other ways a person can be ‘defended’ and we will return to them after noting the two other facts.

Secondly, until they obtain a great deal of experience, most lawyers, despite their degree, do not have the specialist knowledge to do for their client what he needs to do for himself. And there are many people (Kiaps as well as criminals) who do have that ability, and have it in abundance. We used often talk about Horatio Bottomley in England, and Guba Guba in Port Moresby, who were famous for besting the lawyers every time they went to court.

Nowadays, if TV programmes can be believed, many lawyers tell their client to ‘clam up’. As I write, Mark Waugh’s case shows that this can, in certain cases, be the worst defence possible, second only to that other TV favourite of ‘pleading insanity’. Imagine! The maximum is a fine but, not having checked to find out what the ‘general tariff’ is, – that is, ‘what sentences are currently being handed out’, as distinct from what the law books say the penalty is – his lawyer condemns him to imprisonment for life. Some defence! In the period we are talking of, every Kiap knew the ‘general tariff’ because he sat in court every time the Court came. And he knew that, in every murder case and in many other types of cases, the Judge would write a lengthy ‘report’ based on the belief, which I mentioned in Snapshot No. 8, that he was being constantly watched to see ‘whether our system produced an inferior result – as, of course, would be obvious if we allow ourselves to convict ‘Z’ when they know, since they go into these matters with a background of knowledge we can never have, that ‘A’ is the person we are seeking.’ He also knew that, for New Guinea cases, Crown Law also considered this point of view and, if there was any doubt, they did not go ahead – Snapshot No. 4 is a case in point. In some cases, however, there is a slip-up. Such a case was The Queen against Atemba which we will look at in Snapshot No. 27.