Legal columnist HUGH SELBY surmises that the earnestly mistaken views of a first-year law student were published only because he had been the accused in ‘that’ 2022 ACT trial.

I WAS surprised, then alarmed at the publication in a mid-March newspaper article of the views of a first-year law student claiming to know all about legal practice and judicial norms, and senior journalists publishing the student’s ignorant assertions as deserving attention and respect. 

I surmise, given that the views of other first-year students are generally heard only by their associates, that his earnestly mistaken views were published only because he had been the accused in that 2022 ACT trial.

Those readers who eschew the broadsheets (paper or digital) will have missed being misinformed that our chief justice might have behaved improperly at an early stage of that trial, that her conduct may have led to an “apprehension of bias”, and that a counsel was ever so wise in deciding not to share the details of these alleged misdeeds with their client until a lot, lot later. 

My head hurts: a mixture of shame (that journalistic standards have dropped so far) and fear (because some well-meaning readers might believe the published assertions).

Here’s the simple, no-reason-to-be-alarmed explanation. Trials, be they civil or criminal, are real time in which events, expected and unexpected, lead to the judge intervening.

Such intervention may be in court or in the judge’s chambers. The choice is the judge’s and it will reflect their assessment of what needs to be discussed and any sensitivities (such as keeping private the health condition of any person involved in the trial). 

A representative of each party will attend. What, and how the discussion takes place in the judge’s chambers, reflects not only the judge’s personality and experience but also their assessment of the calibre of the lawyers in the room. 

To give an example, something may happen during the trial that suggests that defence counsel and the accused should discuss entering a plea of guilty. If so, the accused is certain to ask their counsel: “If I plead guilty what is the likely sentence?” 

There are discounts on sentence if the accused pleads guilty before the trial starts. It’s possible that something happens in the trial that re-creates a discount. 

If the trial judge believes that defence counsel is both competent and trustworthy, then the trial judge can make clear their thinking – at that point in time – as to what a change of plea from “not guilty” to “guilty” might mean.

In that context, the information is wholly “neutral”. Each party will hear it in the same way. 

However, if the trial judge had concerns about any counsel’s experience, probity, or both, then the judge is likely to make remarks – but with less detail – only in open court.

Such sharing of information would be shared and discussed by all the counsel with their respective instructing lawyers and – when and as appropriate – with the client.

If the case was going badly for an accused, then some hints as to what might happen if a plea of guilty was now entered might be welcome news, to be discussed immediately.

If the case was going well for the accused, and their instructions of “not guilty” firm, then there is no need to discuss the information with the client immediately – the more so if counsel believes that their client is very stressed. Counsel can raise it over coffee: “Just sharing this… but no change to our case plan”.

“Much ado about nothing” sums up the recent misinformation. However, there are some other questions surrounding the now notorious case and its aftermath.

The first of these is who has paid and who is paying for this entertainment?

It was claimed that the accused’s trial defence last year was funded by ACT Legal Aid. If that is true, then who or what is now funding his much publicised defamation actions? If he loses, then will he be able to pay any legal costs awarded against him?

If it is not true, then why were there reports before the trial that ACT Legal Aid was contacting senior defence counsel outside the ACT and offering them a daily rate greater than the usual? 

Finally, when will the Albanese government tell us if we taxpayers have funded a financial settlement with the complainant? If so, for how much, and why?

Hugh Selby is our legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.