The ALS’s Dubbo office last year commissioned a study of hundreds of convictions of ALS clients for driving while disqualified, which revealed Aboriginal defendants were being sentenced to prison more often and for longer periods than their non-indigenous counterparts.
The ALS’s principal solicitor (western zone), Stephen Lawrence, had also been vocal in his criticism of sentences handed to Aboriginal boys in the region, including one case in which a 17-year-old with virtually no criminal history was given a 12-month head sentence for stealing $70 of hamburger buns.
In responding, Mr Clisdell blamed parental alcohol abuse, domestic violence and family breakdown for youth offending, but also took the opportunity to take aim at what he characterised as aggressive tactics by the ALS in defending their clients.
In an interview with The Australian, Mr Clisdell spoke of his frustration with the high rate of not-guilty pleas entered in the Bourke and Brewarrina jurisdictions, in particular for domestic violence matters and particularly relating to ALS clients.
“Where the ALS do a disservice to their clients is the constant inability to enter an early plea of guilty to charges where there clearly should have been a plea entered. The not guilty plea rate at Bourke and Brewarrina was close to 90 per cent,” he said.
Mr Clisdell suggested that defendants or their lawyers were aware victims would often fail to appear in court to testify, meaning that those who had pleaded not guilty would get off scot-free.
“It’s called the Bourke defence,” Mr Clisdell said.
“I don’t know whether the client is not prepared to acknowledge guilt, or whether there is an underlying idea that let’s make the police prove every single point. But it doesn’t do the clients much good if they get convicted after a hearing, and any discount that would have applied to a plea of guilty is forfeited.
“When you’ve got a rate of not guilties that is as high as it was in Bourke and Brewarrina, you have to wonder whether there is some campaign to take on the police absolutely every time and clog the court lists. Because inevitably what happened is that the victim wouldn’t turn up and the matter would be dismissed.”
Mr Clisdell suggested the ALS had “declared war” on the magistracy in the northwest.
He said Mr Lawrence’s comments were “a direct attack on the magistracy. Allegations of idiosyncratic sentencing, overly harsh sentencing, social engineering – if that’s not an attack on us I don’t know what is. And I reject each and every one of those contentions so far as they apply to me.”
ALS NSW/ACT chief legal officer John McKenzie vigorously defended the “fearless advocacy” displayed by ALS solicitors.
Mr McKenzie said there was “no place in our justice system for anyone to publicly question the privileged communications between a client and their lawyer”.
“One of the major reasons why the ALS was established in 1970 was to combat the widespread practice in magistrates’ courts of Aboriginal people being pressed into entering pleas of guilty in the absence of legal representation.”
“In most courts at the time, it was a very rare occurrence for an Aboriginal accused to plead not guilty, regardless as to whether they believed they had committed the crime.”