Barrister Profile – Kelly McKay

Kelly McKayThe criminal law is a hard area to get into and a difficult area to maintain. Kelly McKay has earned her place as an impressive up and coming barrister and a original members of the new David Ross Chambers, by far the funkiest criminal law chambers in the legal precinct. The combination of their coffee making facilities, polished concrete and strange yet compelling traditions, mostly involving gavels and grand speeches, creates a unique concoction of humor and eccentric genius.

However, Kelly did not start out in the criminal law. She did her articles (a posh legal way of describing the traineeship that every lawyer must undertake) in construction law, commercial litigation and leasing. This competitive and highly lucrative area of law would have been an alluring prospect for a young lawyer, eager to make her place in the industry (and pay off considerable HECS debt). However, whilst she learned a lot and gained important experience with commercial clients, she realised that her passion was the criminal law. Anyone with any understanding of the law can appreciate that there has been a consistent demise over the last 20 years of the ‘general practitioner’. Every lawyer must choose an area. That area is undoubtedly so complex and full of legislation, regulations, common law, practice notes and procedure that it is usually impossible to practice in more than one area. To do so would be like sending a cardio-vascular surgeon in to fix a dinky hip.

However, Kelly (through hard work and a bit of luck) crossed into a completely different jurisdiction (the criminal jurisdiction) and never looked back. If Kelly’s passion for the law is not enough, she also chose to marry….another lawyer, now a barrister. Whilst he does not practice criminal law, the overwhelming impression that one gets of that household is that legal argument abounds and there is a mutual respect for the demanding nature of the work, of which both of them are hugely passionate.

She commenced working for Leann Warren and Associates, an exclusively criminal practice, and worked her way up to a Senior Associateship before leaving the firm to join the bar. Anyone who has spent any time in the Magistrates’ or County Courts in the last 8 years could not help but see and pay attention to Kelly, for a number of reasons:

1) As a keen solicitor-advocate she did a lot of appearance work, often for difficult legally aided clients facing serious charges, and presented articulately in challenging circumstances;

2) She often appeared in multiple matters per day before returning to the pile of files at her desk, which she later took home with her in order to prepare for the next day in Court; and

3) Her colourful mini-suitcase which she bundled her various files into for Court, and when leaving the office, stood out like a lone raspberry cream in a packet of licorice.

At Galbally Rolfe, we appreciate barristers like Kelly, who were solicitor-advocates before they went to the bar, because those barristers understand that a competent and hard working solicitor is an imperative part of the criminal legal framework. We work with barristers, like Kelly, as part of a team to ensure that the clients have the very best representation. Occasionally, barristers who have never practiced as solicitor-advocates cannot appreciate the importance of such a practice.

Kelly read with Justin Hannebery, an excellent advocate and evidence lawyer. When she completed her readership, she became one of the original members of David Ross Chambers, which combines young up and coming barristers with outstanding senior barristers. Kelly regularly appears in all jurisdictions, both as the only barrister representing either the prosecution or the defence, or as junior to a range of experienced and talented leaders. She has juniored the Honourable Justice Michael Croucher, her Honour Magistrate Carolene Gwynn, Justin Hannebery and Sarah Leighfield. Junioring Sarah Leighfield, she represented the unfortunate (and now famed amongst the criminal collegiate) Mr. Pringle.

The unlucky Mr. Pringle found himself in a spot of bother when he was pulled over in his ute for driving whilst his licence was suspended. He had a broken ankle and was on crutches at the time, which was presumably why he had taken a great risk in the circumstances and decided to drive when he shouldn’t have. As the police members ‘assisted’ him to retrieve his belongings before they impounded his ute, one of the police members illegally searched the car and located a small amount of ice. Pringle was arrested. If things weren’t bad enough for poor Pringle, the Police formed a suspicion that he may be carrying items on his person, as he shimmied around in the back of the “divvie” van.

They located a significant amount of ice on his person. From there, the snowball effect began. In his home, they located a commercial quantity of ice, $227,100 inside a safe hidden in a heating vent and yet more drugs and related paraphernalia in his storage unit. A year later, all of which Pringle spent in custody, presumably contemplating a decent stint in prison, Counsel argued that the search was illegal and, as “fruits from a poison tree”, everything that was found as a result of the first detection of that small amount of ice was also illegal. Judge Lawson agreed and found that the evidence was inadmissible as a result of the illegal search. To put this into perspective, trying to argue that an illegal search has occurred and, as such, evidence (including overwhelming evidence of guilt) should be deemed inadmissible, is like finding a unicorn at the Caulfield Racecourse.

As they say in the advertising world, “watch this space”!

Click on this link to view Kelly’s Victorian Bar Profile, or Clerk’s Profile for more information on her case history