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Criminal defence – four seasons in a day

14 July 2016 - By Nick Butcher

Photo of Kevin Preston
Kevin Preston

Most people have watched the classic Bill Murray movie Groundhog Day that tells the story of a man who is doomed to repeat the same day until he gets that day right.

Groundhog Day quickly became a default setting for people bored in their daily working lives.

The new Deputy Public Defender in Wellington, Kevin Preston has never suffered from such an affliction.

His work is more a four seasons in one day scenario – something he is used to it, having practised exclusively in criminal defence for over two decades.

Mr Preston attended the University of Sheffield and did his professional exams at the College of Law before obtaining a Master’s degree.

He was admitted in England and Wales in 1992. Mr Preston has been with the Public Defence Service since arriving in New Zealand in 2012.

Criminal defence is a calling, he says, and he has no plans to trade it in for another aspect of law.

Why criminal defence?

“I fell into criminal law. I was at university studying law and was advised to get some work experience, so I door knocked some local firms and ended up going to court. I was watching one of the senior lawyers present a plea in mitigation in court and he had got me involved in the early stages of the case. I was seated behind him and I thought, what would I say?

“I heard this senior lawyer coming out with points that I thought I would have made and I thought, ‘I could do this’, and that’s how I got interested in that particular area of law. I do it now because I enjoy it and I think it’s very important that people in a less privileged position than the rest of us, whether it is because of their social or financial background, it’s important they have a voice,” he says.

When dealing with his clients, Mr Preston says every situation is completely different.

“Everyone reacts differently to the pressure they’re undoubtedly under when they’re facing very serious charges. You have to assess the situation, show patience and understanding, reassurance and communication by making sure they understand what is going on in the procedure. Ultimately you are their voice,” he says.

A personal approach with clients helps defend them

Mr Preston says it’s important that he gains a sense of who his client is to effectively represent a person facing serious criminal charges.

“You can’t be sterile in your approach. I think it’s important to learn something about the person because often information from their background or life may hold the key as to why they may have done the offence they’re accused of,” he says.

Mr Preston says his job is to achieve the best possible outcome for the accused, whether his client is guilty of a crime or not.

“Sometimes the evidence is there, so you have to mitigate the situation and in other instances the evidence may appear to be there but your instructions are completely to the contrary and I have to test that evidence,” he says.

How different is practising law in New Zealand?

Procedurally the law is very different to what he is used to in his home country, Mr Preston says.

“It all evolved from English common law but the procedure did take some time to get used to and, of course, when I arrived in New Zealand in 2012, just as soon as I had learned it, it effectively changed the next year with the Criminal Procedure Act 2011 introduced, so I had to learn it all over again,” he says.

In England and Wales there haven’t been Police prosecutors in the courts since the mid-1980s.

“But the procedural difference, which is a bit quirky, is that the defence lawyers are always the first to rise to their feet in New Zealand whereas in England it’s invariably the other way around, in that the prosecution bring their case and so therefore stands up to present it.

“It took some time to adjust to jumping to my feet first. I thought he – the Police officer – is making the application to keep my client in custody so surely the officer should be jumping to his or her feet first.

“I was lucky to have supportive colleagues who would give me a little nudge, as to say, ‘get to your feet Kevin’,” he says.

Challenge to plan your day

While many might relish the idea of no single day being the same as the last, as a criminal defence lawyer, Mr Preston says it does make it difficult to plan ahead.

“You’re often having to react to what has happened overnight or during the weekend. For example when we made this appointment to talk about my work, I had planned to have a day in the office. But I’ve been notified of a serious drugs charge I have to deal with that is before the Wellington District Court and I’ve had another criminal matter set down that I’ll tend to after this interview.

“24-hours ago I did not have these two court commitments,” he says.

Recently in the 2016/17 Budget, the Government invested a further $13 million into Public Defence Service over the next four years.

And the Justice Minister, Amy Adams told LawTalk the PDS is an excellent training ground for young lawyers – something she wished was available when she was a young lawyer.

There are 16 lawyers based at the Public Defence Service in the Capital which make up a total of about 150 lawyers across 10 offices throughout New Zealand.

“Certainly prior to joining the PDS in 2012 my personal continued professional development, as it is called in England, would be last minute bookings into courses just to get the necessary number of points for the year, whereas here we have weekly training and we are very supportive in putting all of the young lawyers through training courses,” he says.

In 2015 the staff turnover throughout the country for lawyers employed by the Public Defence Service was 19.5%. That was up 3% on the previous year and over twice that of the 2012 figure.

Mr Preston says all organisations have natural attrition, and while levels were reasonably steady in the Wellington office, it was not a matter he was best placed to comment on.

“But I do know of several young lawyers in England and Wales who have contacted me with a view to working for the PDS here,” he says.

No glamour in criminal law

Practising criminal law is a far cry from a standard 9-5 job and could be described as the sleeves-rolled-up area of the profession, with little glamour attached to it.

“Criminal law is a calling. I have two brothers who are lawyers and neither of them practise criminal law. They’d basically turn their nose up at the thought of it. They don’t understand why I do the job I do. They’re both commercial lawyers and very successful in London and Manchester. As I said, criminal law is a calling and there are certainly a lot of young lawyers who’ll have that call,” he says.

And who would have thought that a criminal lawyer would receive thank you cards from clients?

Mr Preston has two recent editions showcased on a bookcase in his office.

“That is one thing about being a criminal lawyer, when you do a good job for your client, I personally find it very rewarding and that gives me the incentive and the enthusiasm to crack on into the next case.

“The hand-made card was by a person who had fallen on hard times and needed someone to present her case, and that’s what I did,” he says.

Mr Preston says often he’ll represent a person who has had what he describes as one bad moment in their life.

“You get people who benefit from the Special Circumstances Court, which because of their lack of housing, inability to sort out a benefit, it puts them in a position where they end up committing crime to survive.”

Mr Preston says if those social problems can be solved, then there is every chance he will never see them in the court system again.

Outside of work, Mr Preston says he enjoys a nice locally brewed craft beer.

“I also try to see as much of this beautiful country as I can. My colleagues and friends tell me I’ve probably seen more of it than them,” he says.

Last updated on the 13th July 2016