DUTY OF COUNSEL

Rotorua Morning Post, Volume 1, Issue 91, 8 December 1931, Page 7

DUTY OF COUNSEL

DEFENCE OF MURDERERS WHOSE GUILT IS KNOWN. ETHICS OF THE POSITION. " 'How can you defend a murderer whom you know to be guilty ' is a question frequently asked the crimi- . nal advocate," says Judge MeCleary in an article in the Manchester Guardian. He explains that it is irrelevant if thq instructions by which an advocate is guided show that his client was not implicated in the killing. But even if his instructions indicate that the client was responsible for a death, it is necessary to remember that every killing is not necessarily a murder. It may be justifiable or excusable homicide, or, if culpable homicide, it might be reducible to manslaughter. Consequently various consideratipns may occupy counsel's mind, including Lord Bramwell's dictum: "A client is entitled to say to counsel, T want your advocacy, not your judgment. I prefer to leave the judgment to the court.' "Moreover, until evidence is given, how can a defending counsel presume his client guilty while it is the accused's right to call on the proseeution to prove the charge?" asks the judge. "Counsel's first line of defence is on the general issue — guilty or not guilty. His duty is to cross-examine witnesses, testing the prosecution's evidence, to call evidence favourable . to his client, and to point out to the jury conclusions which are proper to be drawn from the evidence. "In the last resort there is the plea of insanity, although counsel cannot ignore that its : success means his client's lifelong incarceration. Counsel's position is an unenviable one.

His client's life is largely in his hands. A mistake may be disastrous, but he must decide the line of defence justifiable in the eireumstances as his client knows them. "Then, using all his skill, knowledge and experience, he must employ all the weapons the case may legitimately wield."