About Us
Mackenzie Mitchell Solicitors is the brainchild of Ken Mackenzie. Originally qualified in Queensland, Ken learnt his trade at crime specialists Ryan & Bosscher before emigrating to England.
In London, Ken joined one of the largest defence operations Fisher Meredith Solicitors and re-qualified as a solicitor in England & Wales.
After 2 years at Fisher Meredith, in 2005 Ken joined the best human rights and criminal defence firm in London, perhaps the best in the world, Hickman & Rose. Ken worked on some of their most difficult and serious cases of murder and major drug importation. Ken was particularly proud of his involvement with Ben Rose in the appeal that freed Andrew Adams who served 14 years after his wrongful conviction for murder.
Returning to Brisbane for family and sunshine, Ken Mackenzie established Mackenzie Mitchell Solicitors in February 2008 to offer his experience and the principles of Active Defence to Queenslanders.
Active Defence
A revolution in criminal defence practice began in England in the mid-1990s, resulting in widespread adoption of Active Defence practices.1 We are applying the lessons learned in England to set new standards of best practice in Queensland.
Traditionally, defence lawyers used passive tactics. "Let's wait for the evidence", "It's best to tell us nothing for now", "Don't ask a question if you don't already know the answer." There were good reasons for these strategies. After all, the person accused does not have to prove their innocence. The prosecution must prove guilt and prove it beyond all reasonable doubt.
All too often these strategies become an excuse for inaction and delay. Sitting back, saying nothing and waiting might seem safe, but it can also harm the defence of an innocent client. For example, a witness can disappear, or their memory fades. CCTV evidence can be wiped automatically when the tape is re-used. Such lost evidence might have helped free the accused.
The right to silence is an important protection for an accused person. But it is not always best to stay silent. A powerful statement in interview can sometimes put an end to the investigation. It may also sway a jury if the case goes to trial (and avoid any need for the accused to stand in the witness box and be cross-examined).
We believe:
1. Solicitors should be active and present at the police station and intervene in interviews when necessary.2
2. Case preparation should be early and intensive.
3. The risks and benefits of any action should be explained to the clients who always make the final decision.
4. Work should only be performed by qualified solicitors, or under their close and regular supervision. (We remember one notorious case where a solicitor delegated all the preparation work for a murder trial to his unqualified sister because the solicitor was in other Courts all day and supervision meant, "If she had a problem she could come to me." His poor client served 14 years before being freed on appeal. To this day the solicitor thinks he did nothing wrong.)3
5. A solicitor must never be a post office, simply passing paper to a barrister.
6. A solicitor must brief Counsel early; ideally as soon as the depositions are received. Counsel and the client should have met to discuss the case well before an indictment is presented.
7. No-one should ever feel bullied into pleading Guilty or Not Guilty. Lawyers are servants and advisers. Clients are their masters and deciders. A solicitor should always respect a client's final decision. 4
Call us now to find out the difference an Active Defence approach can make to your case. Call 3377 0107 for a free initial consultation.
Notes
1. "Standing Accused: The Organisation and Practices of Criminal Defence Lawyers" McConville et al, OUP, 1994; "Active Defence" Ede R., Law Society 2000.
2. In the classic case a passive lawyer at the police station was held to have contributed to a false confession, "the solicitor who sat in on the interviews seemed to have done that and little else. It seemed that his presence might have actually rendered a disservice since the officers might have taken the view that unless and until the solicitor intervened they could not be criticised for going to far." Paris, Abdullahi and Miller [1994] Crim LR 361
3. Adams [2007] EWCA Crim 1
4. It should go without saying, but unfortunately not in practice. One academic characterised the "Guilty Plea Culture" like this:
“The defence commonly trails the prosecution in adopting a strategy of case disposals through guilty pleas. In addition to those cases in which defendants voluntarily admit guilt and choose to forgo trial, guilty pleas become an achieved outcome of the intervention of defence lawyers and the way they handle clients. Defence lawyers approach their work on the basis of standardised case theories and stereotypes of the kind of people who become involved in criminal events; images of clients as feckless and dishonest are allowed to structure the way their cases are handled from the outset; the views of clients are given little weight and their accounts not investigated; and the case proceeds on the basis that the lawyer knows best in a context in which all the incentives point towards a guilty plea.” M. McConville, “Plea Bargaining: Ethics and Politics” (1998) 25 Journal of Law and Society 572
Confiscation and Proceeds of Crime
Australian governments have realised they can't make a dent in some crimes, like drug dealing, by just prosecuting people. (The police and customs seize something less than 10% of the drugs in the market. High profits encourage people to risk long jail sentences.) So the current strategy is to go after the money.
Many innocent people (and a lot of innocent money) can be caught up in the web of government suspicion. Bank accounts are frozen, vehicles seized and the sale of houses blocked.
Defending these cases requires specialist knowledge, and specialist skills. In particular, the defence lawyer must have a different mindset and strategy to criminal trial work.
What You Must Insist On From a Lawyer
Checklist
o Expert knowledge of your specialist area of law
o Respect for you and your opinions
o Integrity
o Honesty
o Confidence
o Determination
o Persistence
o Hard-headedness
o Fearlessness
o Thoroughness
o Attention to Detail
o Professionalism
o Efficiency
o Courtesy
o Articulacy
o Prompt replies
o Words you understand
o Clear communication
o Persuasive Advocacy
o Straight talk
o Confidentiality
o Discretion
o Forthrightness
o Intelligence
o Open up-front discussion of costs
Insist on a solicitor who can tick all the boxes. Better still, choose one that exceeds these minimum standards (click here to learn how we do). Call us now on 07 3236 1202 to arrange a Free Initial Consultation.
Appeals
Courts are far from perfect. They make mistakes or they decide on incomplete evidence. An appeal system exists to correct mistakes at every level of the system.
We have experience of correcting miscarriages of justice at every level of the criminal justice system. Appeals are always difficult, challenging work, like uphill battles because the "onus" has shifted. This means it is really up to the defence to show why the first decision was wrong. No stone can be left unturned.
Some common grounds of appeal are:
- The verdict was irrational
- The Judge made a mistake about the law
- New evidence casts doubt on the case
- The defence lawyers were incompetent
- The sentence was far too harsh
Strict time limits can apply to appeals so call us now on 07 3236 1202 for advice.