Soliciters in Australia--Aren't with client during interrogations?

Factual Questions
1

I just watched a movie called The Interview which depicts a police interrogation in Australia. At one point the guy being interviewed asks for a soliciter (apparently that’s Australian for “lawyer”) and just as in the States, the police immediately stop asking any questions til the lawyer (just go with me on that word choice please :slight_smile: ) arrives.

The lawyer, however, ends up just giving him some very general advice as to how to conduct himself during the interview–say “no comment” alot, don’t do an I.D. parade (Australian for “Line-up”), things like that–and leaves. The guy asks if she could please stay, but she says something like “If I stayed–which I can–they would subpoena me and I’d have to be a witness against you.”

Is that accurate?

-FrL-

2

[QUOTE=Frylock]
…“If I stayed–which I can–they would subpoena me and I’d have to be a witness against you.”…
[/QUOTE]

Um, why would the police need to question a soliciter about what he heard his client say when the police are in the room questioning the client? :dubious:

3

[QUOTE=alphaboi867]
Um, why would the police need to question a soliciter about what he heard his client say when the police are in the room questioning the client? :dubious:
[/QUOTE]

That’s part of what I was trying to figure out. All I could figure was maybe she thought she would be of no use in the interview unless she had conferred with the client about the case beforehand, and that in Australia a lawyer can be subpoenaed to testify about that meeting. (The one before the interrogation, I mean.)

-FrL-

4

I’m an Australian solicitor, though I do virtually no crim. I don’t think it’s at all accurate, it’s just necessary for the plotline. If the interviewee was accompanied by the lawyer during the interview, the whole psychological game that is the rest of the movie wouldn’t work. So reality was altered to fit.

5

[QUOTE=Princhester]
I’m an Australian solicitor, though I do virtually no crim. I don’t think it’s at all accurate, it’s just necessary for the plotline. If the interviewee was accompanied by the lawyer during the interview, the whole psychological game that is the rest of the movie wouldn’t work. So reality was altered to fit.
[/QUOTE]

Kind of a weird alteration of reality, since the whole movie is basically about criminal justice procedures.

-FrL-

6

Australian criminal lawyer here. I would be very surprised if any lawyer gave that advice in the real world. Once a person gets a lawyer, there is almost never an interview (because of the lawyer’s advice), so the lawyer is not present for an “interview” except to witness his client say he does not wish to speak.

It is possible to call a solicitor to give evidence against his client in some circumstances, but only about things that are not the subject of privilege - the private conversation between lawyer and client before the interview is not something the lawyer can be asked about.

But in principle, particularly in the bad old days before all interviews were video-taped and merely written down in notebooks, if the client confessed and later denied he had done so, his solicitor who was present before and during the confession could be called to confirm that it had occurred, or to exclude some allegation of threats or abuse. The interview with the police for which the solicitor was present is not covered by privilege (because it is not private). I have in the past called solicitors against their clients in similar circumstances, but it is exceptionally rare, for the reasons mentioned in the first paragraph.

7

Interesting. I knew you’d be the person to answer this question and I would have PM’ed you to let you know about this thread, but you don’t have PM’s turned on.

You may not be the right person to ask (I suspect you are, though) but ISTM that in these days of taped and videotaped interviews, if you decide to let your client be interviewed, you’d be better off sitting in because the risk of being called to give evidence is exceptionally low, while the risk of the client saying something adverse without you there to counsel them is very real.

What say you?

I can’t now remember whether the interview in the movie was taped or not.

8

[QUOTE=Princhester]
Interesting. I knew you’d be the person to answer this question and I would have PM’ed you to let you know about this thread, but you don’t have PM’s turned on.

You may not be the right person to ask (I suspect you are, though) but ISTM that in these days of taped and videotaped interviews, if you decide to let your client be interviewed, you’d be better off sitting in because the risk of being called to give evidence is exceptionally low, while the risk of the client saying something adverse without you there to counsel them is very real.

What say you?

I can’t now remember whether the interview in the movie was taped or not.
[/QUOTE]

It was audiotaped, and (though unbeknownst to any of the participants) videotaped.

-FrL-

9

But now I’m confused.

So if I’m in Australia, and get nicked for some crime, and ask for a lawyer, are they, or, are they not, allowed to be present for my questioning? Or do they just give me some advice before my police interview?

10

[QUOTE=Frylock]
I just watched a movie called The Interview which depicts a police interrogation in Australia. At one point the guy being interviewed asks for a soliciter (apparently that’s Australian for “lawyer”)
[/QUOTE]

A solicitor can give legal advice and conduct litigation but doesn’t plead cases in an actual courtroom- that’s what a barrister does.

In some Aussie states they’re the same thing (like in the US), in others they are different people.

11

[QUOTE=Really Not All That Bright]
A solicitor can give legal advice and conduct litigation but doesn’t plead cases in an actual courtroom- that’s what a barrister does.

In some Aussie states they’re the same thing (like in the US), in others they are different people.
[/QUOTE]

IANAAL (I am not an Australian lawyer – or indeed any other kind of lawyer) but I think that even when the profession is/was divided between barristers and solicitors, solicitors could represent their clients in lower courts, e.g., magistrates courts.

And a large part of an Australian barrister’s work is/was giving legal advice. However, when that happened in a divided profession, there needed to be a solicitor as an intermediary between the barrister and the client. So the client would go to the solicitor, and say, “I need advice on this tricky legal problem”; the solicitor would say “That one’s too tough for me” or “We really need definitive advice from an expert on that”; and the barrister would give (usually written) advice on the issue.

12

[QUOTE=elbows]
So if I’m in Australia, and get nicked for some crime, and ask for a lawyer, are they, or, are they not, allowed to be present for my questioning? Or do they just give me some advice before my police interview?
[/QUOTE]

I don’t know about Australia, but in Scotland you only have the right to have a solicitor informed that the police are questioning you. You don’t have a right to have them present during the interview.

13

[QUOTE=G. Odoreida]
I don’t know about Australia, but in Scotland you only have the right to have a solicitor informed that the police are questioning you. You don’t have a right to have them present during the interview.
[/QUOTE]

Do you have the right to speak with your solicitor before the interview?

14

[QUOTE=alphaboi867]
Do you have the right to speak with your solicitor before the interview?
[/QUOTE]

No, I don’t think that right is stated. There are other differences in Scotland; suspects are “detained” while being questioned. If they are then “arrested” the police have to charge them and questioning stops.

15

[QUOTE=elbows]
But now I’m confused.

So if I’m in Australia, and get nicked for some crime, and ask for a lawyer, are they, or, are they not, allowed to be present for my questioning? Or do they just give me some advice before my police interview?
[/QUOTE]

They are allowed to be there. It is a tactical decision as to whether they be there. See **Noel Prosequi’s ** post. I’m hoping he’ll come back and answer my question because although I don’t practice in the field, I’m curious.

16

[QUOTE=alphaboi867]
Do you have the right to speak with your solicitor before the interview?
[/QUOTE]

Yes.

I was arrested on a minor charge several years ago, and the timeline went like this:

ME (in the back of the police wagon, thinks): I’m clued up enough to KNOW to be polite but otherwise say nothing

COP (on arrival at station, all polite and convincing): Hey, you have a RIGHT to be interviewed! It’ll be a chance to tel your side of the story! We’ll video it and give you a copy of the DVD

ME (stressed, and forgetting what I already knew): Uh.. ok.

COP: Do you have a solicitor?

ME: No [I bloody well do now though]

COP: We can phone one for you.

ME: OK

SOLICITOR ON PHONE: What’s the situation?

ME: I’ve been arrested.

SOLICITOR: What do you want right now?

ME: To get out of this joint as painlessly as possible, so as I can get my head together to work out what to do next.

SOLICITOR: Right. Did they offer an interview?

ME: Yes.

SOLICITOR: Say no.

ME: I’ve already accepted.

SOLICITOR: Doesn’t matter.

ME (TO COP): On legal advice, I choose not to be interviewed.

COP: OK. Here’s your court attendance notice. I’ll see you out the door.
(it was longer than that - two hours - but that’s the gist).