The
Little Red Book
of Advocacy
Second Edition
Trevor Riley
Little Red Book of Advocacy, second edition, 2016
© Law Society Northern Territory, 2016
Except as permitted under Copyright Act 1968 (Cth), no part
of this publication may be reproduced without prior written
permission of the Law Society Northern Territory.
Published by the Law Society Northern Territory, 2016
Darwin, Northern Territory, Australia
ISBN: 978-0-9942878-2-3
“Funding provided by the Law Society Public Purpose Trust is
gratefully acknowledged.”
Contents
Foreword To Second Edition
5
Introduction7
From the Author
8
About the Author
9
About the Cartoonist
10
Preparation is the Key
12
The Case Strategy
16
Presentation of the Case
19
The Opening
22
Evidence in Chief
25
Cross-Examination29
Preparing for Cross-Examination
31
Some Limitations on Cross-Examination
34
Your Approach to Cross-Examination
37
Prior Inconsistent Statements
40
The Rule in Browne v Dunn43
Cross-Examining the Expert
46
Cross-Examining through an Interpreter
49
Re-Examination – Part 1
51
Re-Examination – Part 2
53
The Unfavourable Witness
56
The Child Witness
59
The Aboriginal Witness – Part 1
62
The Aboriginal Witness – Part 2
65
Objections to Evidence
68
Unnecessary Objections to Evidence
70
Exhibits73
Visual Aids
76
The Conduct of Counsel
78
Jury Selection
81
Relating to the Jury
84
Experts and the Jury
87
Addressing the Jury – Part 1
90
Addressing the Jury – Part 2
92
Organise the Address
94
Follow the Path of Least Resistance
96
Presenting the Address
99
The Judge’s Address to the Jury
102
Addressing the Judge
105
Questions from the Bench
107
Advocacy: the Appeal
110
Presenting the Appeal
113
The Decision to Plead
116
Preparing the Plea
118
Presenting the Plea
120
The Application for Bail
122
Interlocutory Applications
125
Written Submissions
128
The Urgent Interlocutory Injunction
130
Written Submissions After Trial
132
The Litigant in Person – Part 1
134
The Litigant in Person – Part 2
137
The Sensitive Question
139
Communication141
Nervousness143
Objective Counsel
145
Observing the Customs
147
Developing the Skills
150
Bibliography152
Foreword To Second Edition
The first edition of this wonderful handbook on advocacy had one major
drawback: it failed to include the second half of the series of short pieces on
advocacy which Justice Riley had produced for Balance in the many months
following the publication of the first edition of the Little Red Book. This edition
effectively doubles the material available for the assistance of the young, in
particular, advocate.
Balance was published more frequently, as I recall, in the early part of the
century and it was necessary for the Chief Justice (as he has since become)
to write his short essays on the separate issues arising for advocates on an
almost monthly basis. That he enjoyed doing it, no doubt, does not release
the recipients of his experience and wisdom from the great debt of gratitude
owed to him.
A quick glance at the Table of Contents will demonstrate the breadth of topics
covered. Young and experienced practitioners will find something in these
pages to assist them prepare for court and participate successfully in the
litigation process. Each essay deals with a discrete topic (illustrated by Chips,
with his usual wit and insight) in a straightforward manner, containing good
common-sense. Quite simply, the practitioner is miles ahead of the game
if he or she absorbs half of it. I wish something similar had been available
in my early years. In my view, it is not just a useful work: it is an essential
companion to the advocate.
Before the publication of the first edition, it was obvious the whole series
should be collected and published for the benefit of the Territory profession.
Steps were taken to ensure advocates employed by the Northern Territory
Office of the Director of Public Prosecutions (ODPP) received each article
when it was published, and this continued to the end of the series. That is,
a permanent record of the contents of this second edition has been in the
hands of the ODPP practitioners (or should be), to their great advantage, for
many years.
By 1993, Trevor Riley QC and Graham Hiley QC had been conducting the
Northern Territory University (NTU) undergraduate course on advocacy for
some years. I think they discovered I had taught advocacy over a long period
at the Leo Cussen Institute in Victoria. In any event, I was asked to help
them that year and, at the end of the course, I was invited to take over
the management of the course. Trevor promised to assist me when time
permitted. I did and he did. For most of the next 20 years, I conducted the
course at NTU and then Charles Darwin University with the assistance of
Trevor Riley QC/J/CJ. From the time the first articles started appearing, I
insisted all students had access to Balance and then to the Little Red Book;
it was essential reading. I told them then, and other graduate practitioners
The Little Red Book of Advocacy – Second Edition
5
at different times, that it could do a young advocate no harm to have the
publication on the Bar table when Riley J/CJ presided!
The judge and I had also conducted the courses, now run by the Law Society,
for the benefit of young and more senior legal practitioners, for many years.
They are now used for Compulsory Professional Development, of course,
but were once designed for and by the Young Lawyers of the Society. The
Little Red Book has again been an important reference for the registrants. I
had pointed out to them that they had been getting only half the benefit,
unfortunately. This publication remedies that misfortune.
His Honour is a pleasure with whom to teach, and we have enjoyed this
teaching association now for a long time. He brings to his teaching the same
excellent, but clear, presentation and advice you will find in the Little Red Book.
I have mentioned my own involvement in teaching advocacy over many years
in order that I can, with no modesty and a little bit of authority, properly
assess the value of the product of which I now write. From time to time, I am
asked to speak to Law Society practitioners on topics of interests on advocacy.
I never do so without reference to the Little Red Book. I heartily recommend it
to anyone fortunate enough to have read this foreword; that is, they have the
book in their hands!
Rex Wild QC
Darwin, NT
2016
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The Little Red Book of Advocacy – Second Edition
Introduction
When the first edition of Chief Justice Riley’s book appeared, it came with a
ringing endorsement from the then President of the Law Society Northern
Territory Mr Ian Morris. As Mr Morris said at the time:
Justice Riley has the happy knack of reducing sometimes complex difficult
propositions of advocacy into an easy to understand and easy to follow program
for the budding advocate.
The instruction in his article is equally at home as a refresher for those somewhat
more practised in the field of advocacy or as a handy guide for solicitors who are
considering the manner in which evidence can best be brought to the court in a
matter they are preparing for trial.
It seemed to the Law Society of the Northern Territory that to permit Justice
Riley’s articles to remain gathering dust in back issues of our magazine, Balance,
was a great waste.
Happily the idea was born to combine all of his Honour’s articles in a book so as
to ensure that they can be readily at hand for all those who need them.
The vibrant colour of the cover of his Honour’s book will demonstrate to any
Bench that they are the recipient of well considered and puissant submissions.
If you knew Ian you would expect the glowing recommendation to be sincere,
short and appropriately deferential. In anticipation of its publication Ian
noted to readers of the Society’s magazine “One reason this will be such
a successful book, apart from the writing, is every advocate ought to have
a copy ready at hand and to recollect that His Honour is not known as a
vindictive judge.” Clearly Ian was proud of what he described as “one of
the most important legal texts of our time”– no doubt having the first book
published by the Society occurring on his watch played some part. This text
is an enduring work, pearls of wisdom that ought not be overlooked, nodoubt the red cover will be easily spied on the bar table. We are pleased to
see it updated and reissued and recommend the text to all those seeking to
advance their advocacy in this jurisdiction.
Megan Lawton
Chief Executive Officer
Law Society Northern Territory
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7
From the Author
Upon my appointment to the Supreme Court of the Northern Territory, the
president of the Law Society, Steve Southwood QC (now Southwood J), took
advantage of the warm inner glow I was then feeling and asked me to write
some articles on advocacy for the Law Society magazine, Balance. I have a
keen interest in advocacy and was pleased to agree.
I commenced with the first article in February 1999 and have been writing
them ever since. The idea to publish the articles in booklet form came from
the former president of the Law Society, Ian Morris. I thank him and the Law
Society for the opportunity. Mr Morris accepted responsibility for the title.
The articles reflect a confluence of many streams of information. They are
informed by my own experience as an advocate, much reading and by my
participation in workshops conducted by the Australian Advocacy Institute
and by the Northern Territory Bar Association for the Young Lawyers
Association.
Trevor Riley
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About the Author
Chief Justice Trevor John Riley was born at Bruce Rock, Western Australia, in
January 1948, and obtained his Bachelor of Laws degree at the University of
Western Australia in 1969. The Judge has lengthy experience in law dating
from 1972, predominantly in commercial litigation. He practised as a partner
in a Perth law firm before arriving in the Northern Territory in 1974.
The Judge was employed as a solicitor with the firm of Withnall and Barker
before taking up a position in 1975 with Ward Keller, where he practised until
1985, first as an employee solicitor and subsequently as a partner. In April
1985, he joined the Independent Bar, and was appointed as Queen’s Counsel
for the Northern Territory in April 1989. He was admitted to practise in
South Australia and Queensland, and was appointed as Queen’s Counsel for
Western Australia in September 1992.
He was appointed a judge of the Supreme Court of the Northern Territory in
1999 and Chief Justice on 27 September 2010.
His Honour has a keen interest in advocacy. He has for many years been an
instructor with the Australian Advocacy Institute and has conducted advocacy
workshops for young lawyers in the NT since 1994. He has also instructed in
intensive advocacy workshops conducted by the Bangladesh Bar Council in
Dhaka, Bangladesh.
The Chief Justice has held a number of senior appointments both in the legal
and community areas, including the President of the Northern Territory Bar
Association, 1993-97; Junior Vice President of the Australian Bar Association,
1993-94; Vice President of the Law Society NT in 1989; and, Member of the
Supreme Court Admission Board.
His extensive community involvement has included positions with the
Marriage Guidance Council, St John Ambulance, NT Football League, Northern
Territory University (as lecturer and member of the Faculty Board), and the
Darwin Community Legal Service.
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9
About the Cartoonist
Chips Mackinolty is a Darwin-based writer and graphic artist with a vicarious
interest in the law.
Having decided gap years were wasted on the young, Chips Mackinolty
presently resides in Palermo, Sicily, in the second year of his gap year.
Chips was a member of the Earthworks Posters Collective at the Sydney
University Art Workshop in the 1970s when posters began to be used as a
political tool. He has been very active in the field ever since.
In the 1980s he worked as an art adviser to Aboriginal art centres in Katherine
and Mutijulu in the Northern Territory before joining the Northern Land
Council, where he filled various roles including as a communications officer,
journalist, designer and field officer. He has at various times worked as
a correspondent for newspapers including the Sydney Morning Herald, The
Age and The Australian. Between 1991 and 2002 he was a Director of Green
Ant Research Arts and Publishing and from 2002 until 2009 an adviser
and speechwriter to various ministers of the Northern Territory Labor
Government. Before heading off on his extended gap year, Chips worked as
the Manager, Research Advocacy Policy, with the Aboriginal Medical Services
Alliance of the Northern Territory.
Chips has held, and been represented in, many exhibitions throughout
Australia and in Italy. He has been a winner of the Fremantle Print Award,
the Australian Macworld Expo Art Award for tabloid newspapers, Northern
Territory Print Journalist of the Year Award and the Togart Contemporary Art
Prize. His works are held in numerous galleries in Australia, including the
National Gallery of Australia, and overseas.
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For Jan
Preparation is the Key
“Preparation is the be-all of good trial work.
Everything else—felicity of expression, improvisational
brilliance— is a satellite around the sun.
Thorough preparation is that sun.”
Louis Nizer
Advocacy, as we all know, is the art of persuasion. As with genius, effective
advocacy is 99 per cent perspiration and one per cent inspiration.
In my experience, the best advocates in Australia are also the hardest
working. They are at ease on their feet because they know the content of
each brief thoroughly and have mastered all of the relevant law.
What you see in court when such an advocate appears is the tip of the
preparation iceberg. Much of what has been read, considered and researched
will not emerge during the course of the hearing but, should the opportunity
or requirement present itself, the advocate can address competently on any
issue of fact or law.
The first rule of advocacy is simply stated: be prepared.
In order for an advocate to be adequately prepared, it is necessary that he or
she has a complete understanding of the case and a plan for the presentation
of the case designed to ensure the best available outcome for the client. This
means, prior to the commencement of any hearing, the advocate must:
1. Be thoroughly familiar with all of the relevant facts;
2. Have identified the issues which will or may be raised;
3. Have a clear understanding of how those issues are to be approached
and resolved to serve the best interests of the client; and
4. Have a knowledge of, and ready familiarity with, the applicable
principles of law and the relevant case law.
To commence a hearing without having satisfied these pre-requisites is to
do a disservice to the client, yourself and the system of justice within which
we work.
Mastering the Facts
By the time you are in a position to commence final preparation for trial
you should have available to you the complete and detailed statements of all
relevant and available witnesses, whether those witnesses are to be called or
not. These statements will generally provide you with all, or almost all, of
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The Little Red Book of Advocacy – Second Edition
the information necessary to enable you to prepare your case. If you do not
have the necessary statements you should obtain them yourself or insist they
be provided.
The statements of all witnesses should be presented in an orderly and logical
form. This will often involve a chronological recounting of the history but, in
some cases, other approaches may appeal.
The statements of the various witnesses should cover all matters related
to the proceedings. They will go beyond the information necessary for the
proceedings and cover matters that are not only clearly relevant but also
those that are marginally or peripherally relevant.
This broad approach is necessary to ensure you have a complete picture of
events and to ensure you are prepared should a witness, at the hearing, digress
or be taken into an area you had not anticipated would be touched upon.
Familiarity with the facts often goes beyond a consideration of what the
witnesses have to say. For example, in many cases there will be exhibits
which have to be read and understood. Similarly, in cases which turn on
matters of fact, it will often be an appropriate precaution to visit the scene
in order to obtain a complete understanding of the information provided
through the witnesses.
In all but the simplest of factual disputes the use of a chronology will prove
invaluable. The chronology should be sparse in the detail it records but
complete in that all incidents and events are recorded. It should also identify
the source of the information it contains so this may be readily located at
any future time. The style of chronology adopted is a matter of personal
preference but a useful example may be as follows:
DATE
FACTS
SOURCE
10 January 1999
Deceased arrive in Darwin
(Smith par42)
11 January 1999
Deceased purchased vehicle
(Smith par43, receipt)
12 January 1999
10.00 am: Deceased left home address
(Jones par14)
(Adams par23)
(Jones para16)
10.15 am: Deceased entered Casuarina Square
10.30 am: Deceased entered Casuarina Square
A chronology is an important part of the process of preparation. It permits
you to see the events and incidents in their correct sequence. It enables
you to identify conflicts between the versions of events given by different
witnesses (e.g. the evidence of Jones and Adams in the example above) and
also assists in identifying inconsistencies within the evidence of individual
witnesses.
When you are in court a chronology is a ready source of information. Whilst
you are on your feet you can quickly locate the source of any fact you may
wish to use for the purposes of cross-examination or in responding to
questions from the Bench.
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13
Even though you have detailed and complete statements, it is important
the advocate personally meet with each witness to be called prior to the
witness entering the witness box. It may be that the meeting can only be
by telephone. However it is important you make some assessment of the
witness and you give the witness the opportunity to become familiar with
you. What appears in a witness statement lacks colour and depth. It is only
by communicating with the witness that a proper assessment of the strength
or weakness of what is being said, how it is being said and the true flavour
of that information can be ascertained.
Identifying the Issues
In theory at least, the issues should be identified by the pleadings. In many
cases this will be not so and it will be necessary for a reconsideration of the
pleadings to take place at this time.
The factual issues will be identified by matters which become obvious during
the course of considering the witness statements, the interrogatories, the
exhibits, the pleadings and what you are able to glean of your opponent’s
case from all other available sources. In determining what will be in issue
in proceedings (both factually and as a matter of law) it is vital that you
consider the case from the point of view of your opponent.
What is the case for the opponent? What matters are important to the
presentation of his or her case? What are the strengths of that case and what
are the weaknesses of that case? You will at some time have to deal with
the strong points of your opponent’s case; likewise you will wish to exploit
the weaknesses of that case and it is during this early preparation that such
matters need to be identified and addressed.
Similarly, of course, you will need to consider the strengths and weaknesses
of your own case.
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The Brief
In the process of preparation you should organise your brief into an order
with which you can become familiar and which will enable you to quickly
identify and locate material within your brief at any time. The physical
organisation of the brief is a matter for personal preference but one method,
which may appeal, is to have a series of folders or, alternatively, a series of
divisions within one folder, for different categories of documents.
The divisions or folders may include:
•
Pleadings, interrogatories and answers thereto, lists of discovery and
other court documents;
•
the witness statements in alphabetical order;
•
expert reports, separated into areas of expertise, then placed
in alphabetical order and, for each individual expert, arranged
chronologically accompanied by the letter of request;
•
important, or what are sometimes described as “critical”, documents
e.g. relevant contracts or correspondence and the like;
•
discovered documents and other relevant but not vital documents.
In each division the separate items may be tagged for ease of identification
and location. The chronology should be kept in a prominent and accessible
location e.g. at the beginning of the division containing the witness statements
or in front of the court documents.
When you are familiar with the facts and the law and have identified the
issues to be resolved, you are then in a position to undertake what is referred
to in the workshops conducted by the Australian Advocacy Institute as “Case
Analysis”.
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15
The Case Strategy
“First settle what the case is, before you argue it.”
Lord Chief Justice Howe, Trial of the Seven Bishops (1688)
When all the necessary information has been gathered, the relevant law
identified and researched and the issues ascertained, it is time for the advocate
to embark upon a crucial step in the preparation for trial. I have called this
the case strategy but it has been variously described by writers on the subject
of advocacy as “the case analysis”, “developing the case concept”, “the case
summary” and “identifying the case theory”. However it may be described,
it is the process of developing a blueprint for the presentation of the case.
Glissan and Tilmouth in their work Advocacy in Practice succinctly describe
the process as a “short concise summary of the theme lying behind the
case, accommodating all the facts and evidence in a way which produces the
winning conclusion.”
The process involves identifying where you are at the moment having
undertaken all of the preliminary information gathering processes available,
then looking at where you realistically wish to be at the conclusion of the case
and finally determining how you move from the first point to the second.
It may be likened to travelling from one side of a large city to another.
You know your starting point and your destination and it is necessary to
determine how best to get from one to the other. It may be that you will
simply barrel along a freeway and get there quickly; however, if you are
aware of a roadblock or some other impediment, you may wish to take a
less direct route to achieve the same end. Whatever approach you take you
will not wish to find yourself part way along your journey driving into dead
end streets, or being confronted by one-way roads heading in the wrong
direction. It is vital you plan ahead to ensure the journey is completed in the
most effective manner available.
In order to achieve a workable case strategy you need to address each and
every issue (both legal and factual) you previously identified in the course
of preparation. It is essential for you to devise a plan as to how each is to be
approached and resolved.
When developing your case strategy you will ask many questions of yourself:
What are the strengths of the case? What are the weaknesses? How do I
deal with the strengths and the weaknesses? What are the strengths of the
case for the other side? What is the inter-relationship between the relevant
facts and the relevant law? What is a consistent and intellectually satisfying
presentation of the matter that encompasses my instructions, anticipates the
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The Little Red Book of Advocacy – Second Edition
evidence and argument of the other side, places emphasis on the strengths
of the case and avoids or nullifies the weaknesses? When you have answered
those questions you will have your case strategy.
In considering each issue, and prior to settling upon a strategy, it will be
necessary for you to look at the matter through the eyes of your opponent.
This will assist you to identify weaknesses in your own case and devise
methods for dealing with them; it will also enable you to fully appreciate
the strengths of your own case and to devise methods for the presentation
of those strengths in a way which makes them secure from effective attack
by your opponent.
Once you have developed the broad strategy for your case, you will follow
that strategy unless confronted by the dramatically unexpected. The
witnesses you call, the evidence you introduce and the areas in which you
propose to attack the opposition case will be governed by the case strategy
you have developed and should not detract from it. It is by reference to the
case strategy that you will determine what is necessary and relevant for the
proper presentation of your case.
In most cases the best case strategy will involve following the path of least
resistance and not taking on any unnecessary disputes or obligations. For
example, if you are easily able to establish that a witness is mistaken in
relation to a fact, why take on the added burden of endeavouring to show
that the witness is untruthful? If a finding of dishonesty against a witness
does not add to the strength of the case being presented on behalf of your
client, leave it alone. It may be satisfying to your own ego to successfully
confront the witness in that way but in doing so you take on an unnecessary
additional burden. There is the risk that, notwithstanding your confidence in
your own superb skills, you may not succeed. If you convert the issue from
one of mistake on the part of the witness to whether the witness is a liar, you
may find the tribunal of fact unwilling to take that extra step.
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17
This also applies to issues. If you have determined it is unnecessary for the
proper presentation of your case to address a particular issue do not attempt
to do so. You have already decided attacking that issue is not a necessary
part of your case. If you attack it and lose the argument the consequence
is likely to be that you have harmed your case in some way. If you have a
case strategy you will have predetermined what is necessary and what is not
necessary and you will avoid adding to your burden and risk by addressing
the unnecessary.
The effective advocate will develop a strategy designed to achieve the
best result available for the client and will follow that strategy and not be
distracted by irrelevancies.
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Presentation of the Case
“The picture cannot be painted if the significant
and the insignificant are given equal prominence.
One must know how to select.”
Benjamin Cardozo
When you have completed your preparation and settled your case strategy it
is necessary to determine how you will actually present the case. You know
what evidence is available to you and what it is you need to establish; you
now have to determine how that is most effectively attended to.
Which witnesses do you wish to call? Which witnesses do you have to call?
Which witnesses should you avoid calling? What evidence should you lead
from each of the witnesses called? In what order will you call the witnesses?
To effectively present your case it is not simply a matter of looking at your
list of available witnesses and saying: “Well, you can go first, followed by
you, followed by you and we’ll finish up with you.” It is essential you give
careful thought to who is to be called and the order of presentation. The
question you need to pose for yourself is: “How can I achieve the most
favourable impact in presenting the evidence in this case?”
In the ordinary course you would wish to commence your case and conclude
your case with witnesses who you know will be impressive and leave a positive
impact upon the court. You may wish to call the less impressive evidence and
the less vital evidence at another time – perhaps deep within the case.
A vital and compelling witness called early in the hearing may set the scene
for the entire case. This will be the witness first called upon to meet the brunt
of the attack of the other side. If the witness is strong and confident in his or
her evidence then some issues, which may have been a problem with a less
confident witness, may disappear before the less confident witness gets into
the witness box. For example, take a case where there is an issue with the
time an event occurred on a certain day. If witness A is firm and confident
that events occurred in a certain order and the particular event occurred at a
certain time, and witness X is of the same view but easily confused, then it
would be prudent to call witness A before witness X.
The evidence of witness A will (hopefully) ensure the order of events and
the time of the particular event is firmly established. The matter will no
longer be an issue when counsel eventually rises to cross-examine witness
X. Indeed opposing counsel may never become aware of the difficulty you
had. In this way the threat the issue posed may be defused and, equally
importantly, an area which may have led to a discrediting of witness X may
be avoided.
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19
Unfortunately witnesses do not come from central casting; you cannot send
them back and ask for another. Over time you will find you are confronted by
the whole spectrum of personalities and personal characteristics known to
the world. Witnesses can be nervous, over-confident, over-helpful, biased,
prejudiced, hostile, argumentative, suggestible, boorish, taciturn, garrulous
or of any one or more of innumerable other dispositions.
In order to make an assessment of each witness and to determine firstly
whether to call the witness, and then where the witness should appear in the
batting order, and then how you should handle the witness, it is necessary
for you to meet with the witness either directly or, at least, by telephone.
What may appear as a clear, confident and firm statement of fact in print,
may receive a wholly different assessment when you discuss the matter in
person with the witness.
The witness may be over-confident, too ready to make assertions which
assist the case or, simply, prepared to make statements without thinking the
matter through. Such a person is a dangerous witness. On the other hand
the witness may be totally lacking in confidence in the facts which appear in
the statement and may be quick to resile from that position when tested. It
is therefore essential that you have a “feel” for your witnesses so you may
properly allow for and prepare for any failing which he or she may have.
Having identified the witnesses you intend to call and the order in which you
intend to call them, it is necessary to consider the best way in which to lead
their evidence. A witness will feel more comfortable with the process if he or
she has some familiarity with it prior to first entering the witness box. It is
helpful to take the witness to the court room and point out where he or she
will sit; explain the processes to the witness; determine in advance whether
an oath is to be taken or an affirmation; explain the order of events, i.e.
evidence in chief, cross-examination and re-examination and inform them
how they should address the various people who make up the court. In this
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way the witness will be able to focus on giving evidence rather than worrying
as to matters of form and sequence. For most people giving evidence is a
nerve racking experience, the more comfortable you can make the witness
the more likely you are to be able to lead from the witness the evidence which
you anticipate will be given.
If the witness is nervous then familiarity with the court and procedures will
reduce one area that may be a cause of apprehension. It is important that
you let the witness know that most (if not all) courts understand that giving
evidence is a difficult experience and will make allowance for nervousness
engendered by the process. You will assist such witnesses by yourself being
(at least on the surface) cool and calm and confident.
There is no harm in giving witnesses some idea of how to handle themselves
generally in the witness box. For example, they should be told such things
as: the importance of speaking clearly; to keep their answers as short as
possible whilst providing a proper answer to a question; if they do not hear
or understand a question they should ask to have it repeated; they should
never guess at what a question means but rather seek clarification if they are
unsure; they should listen to the question and answer the question and so on.
Be sensitive to the strengths and weaknesses of your witnesses when
determining how best to present your case.
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21
The Opening
“If you want to win a case, paint the Judge a
picture and keep it simple.”
John W Davis
Your first opportunity to present your case to the court is in the opening;
this is not an opportunity to be wasted. It will provide you with the occasion
to set the scene and create a favourable framework for the proceedings. It
enables you to describe in the most compelling way the case which is to be
presented on behalf of your client. It follows that the opening should not
be a matter of simply getting to your feet and presenting an unrehearsed or
mechanical summary of the case to the court.
Preparation is again the key. You need to carefully consider what should
be said in the course of your opening. You should craft the presentation of
that information in order to have the greatest impact. You should carefully
select the words to be used and the order in which your thoughts are to be
presented. You will, of course, open in a manner which reflects your predetermined case strategy.
There is no formula to be applied in presenting an opening. What can and
should be said will vary with the circumstances of each case. However there
are some observations which will apply to most cases.
The first suggestion I would make is when considering what you will say and
how you will say it, you put yourself in the position of the court. In most
cases the court will have limited familiarity with the matter. The pleadings
will have been considered and the judge will therefore have some idea what
the case is about but he or she will have only the barest of information. A jury
will have even less information. Bearing that in mind it will be your role to
put some flesh on the bones. You should keep in the forefront of your mind
the fact that, because of your detailed preparation, you will have a thorough
knowledge of the whole of the matter whereas the court will not. The court
is unlikely to be familiar with the identities of the players in the proceedings,
or with the sequence of events, or with the differing versions of events which
may come from various witnesses.
It is necessary to deliver a succinct and, so far as is possible, instructive and
engaging account of the case to be presented on behalf of your client.
In a civil case of any complexity I suggest you use a chronology as an aid
in your opening. I have previously discussed the use of a chronology for the
purposes of preparation and I suggest that document be adapted to make it
suitable for the purpose of presenting it to the court to assist in your opening.
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You should show your opponent the document prior to presenting it to the
court and you should obtain the approval of the court for its use. Obviously
you should not include in the chronology any reference which you are not in
a position to prove or, alternatively, has not been agreed by your opponent.
The chronology will enable the court to obtain a ready understanding of the
sequence of events and will provide a convenient method of reminding itself
of the history.
If numerous witnesses are to be called it would be also prudent to provide
a “list of players”. By this I mean a list of people who may be referred to,
whether witnesses or not, setting out their names and a limited amount of
information which will serve to identify them. Descriptions should be noncontroversial and should be shown to your opponent before being presented
to the court.
When those persons are referred to in the course of your opening and in
the course of evidence, the court will have available to it a ready means of
reminding itself who that person is and where he or she fits into the overall
picture.
The use of a chronology and a list of players will also assist in overcoming the
difficulty which arises from the fact that the information you are providing
to the court is received aurally which, of course, is a less than satisfactory
way of conveying information.
In presenting the factual background to the matter you should do so in a
logical (and that generally will mean chronological) manner. You should be
as interesting and as concise as possible. This will make your opening easier
to follow. It is not necessary to present the background first. The order in
which you present matters will be dependent upon the nature of the case and
your determination of the most effective approach.
At this time it will be necessary for you to determine whether you should
The Little Red Book of Advocacy – Second Edition
23
confront all issues in the opening. Obviously you will present your own case
in a convincing way. Whether you should address your opponent’s case will
be a matter for judgment in the particular circumstances of the matter. It
may be preferable to address difficulties with which you are sure you will
be confronted in order to resolve some of the impact of those problems. Of
course you may wish to leave those issues to see what your opponent makes
of them. It is all a matter of judgment and anticipation. In the event that
you choose to address your opponent’s case you should only do so if it can
be dealt with simply and you should not descend into argument at this time.
It is a mistake to open your case at a higher level than necessary. You may be
confident you can establish your case at that high level but why should you
take on the unnecessary burden? If you fail to achieve the higher standard
you have adopted for your client you can be sure it will be the subject of
embarrassing comment by your opponent. It can only reflect adversely upon
your client’s case. However, if you set your opening at a moderate level and,
at the end of the day, you achieve a higher level, then obviously your client’s
case is enhanced.
The opening is an opportunity to provide a favourable direction to the
proceedings and to make a first and telling impact on the court. You should
ensure you make full use of that opportunity.
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The Little Red Book of Advocacy – Second Edition
Evidence in Chief
“Most lawyers who win a case advise their
clients ‘we have won’, and when justice has frowned
upon their cause …‛you have lost’.”
Louis Nizer
It is easy to overlook the importance of the presentation of the evidence in
chief of your client and your client’s witnesses. Whilst the cross-examination
of your opponent’s witnesses may be the most exhilarating or frustrating
part of a case and whilst, on some occasions, you may achieve a telling
result through that process, more often than not your case will be won or
lost on the basis of the evidence presented in chief. It is obviously vital the
presentation of that evidence occurs in a thoughtful and effective manner.
The quality of the witnesses who will present the evidence on behalf of your
client is something largely beyond your control. Generally speaking you must
take your witnesses as you find them. Important parts of the case you are
to present will be in the hands of individuals who may be nervous, prone to
exaggeration, prone to underestimation, argumentative, taciturn, garrulous,
shifty in appearance, evasive in manner and possessing any one or more of a
whole range of other unhelpful characteristics.
I recommend you interview each of your witnesses in order to assess their
qualities and frailties and to determine how best to present your evidence
through them. Having undertaken this process you should be in a position to
assess what you can expect of the witness in the witness box and how best to
lead the evidence from that witness.
In most cases it will be desirable to allow the witness to present his or her
own story in his or her own words. You will be able to lead the witness
through the evidence by asking questions such as: “What happened next?”,
“What did you do then?” and the like. If your witness is capable of recounting
the history in intelligible terms, questions of that kind may be all that is
required of you. On the other hand it may be necessary for you to exercise a
greater degree of control over your witness or, alternatively, for you to prise
the evidence from the witness.
If you have a garrulous or excitable witness it would be prudent to diplomatically
alert the witness to that part of their nature and to invite him or her to present
the evidence in a calm and concise manner. When the witness is in the witness
box and strays into emotional, lengthy or irrelevant responses to your guiding
questions, a reminder that the answers should be limited to responding to
the questions asked is likely to remind the witness of the warning previously
The Little Red Book of Advocacy – Second Edition
25
given. If this fails you may have to resort to questions of a narrow focus and
take the witness through the evidence in a controlled way.
If your witness is reticent or, for whatever reason, not forthcoming with
information, it will be necessary for you to structure your examination in
order to lead the evidence bit by bit. Short questions building one upon the
other and in a logical progression through the story is likely to be the most
productive approach to adopt.
However, in most cases your role will be to direct the delivery of evidence by
asking appropriate broadly based questions. Those questions will generally
be short and simple and will commence with words such as “what”, “when”,
“where”, “how” and the like. Insofar as is possible you should let the witness
tell the story rather than conducting a question and answer session.
In order to ensure the witness remains on track, or to emphasise some
aspect of the evidence, you may wish, on occasions, to summarise the earlier
evidence. For example, you may say: “You have told us that you attended at
the hotel, that you had four beers, that you entered a conversation with Joe
Bloggs where he mentioned your mother-in-law, now please tell us what
happened next.”
You may also wish to control the direction of the evidence by identifying
the areas into which you intend to take the witness. For example, you may
introduce a topic by saying: “I now wish to ask you some questions about
what happened at the hospital.” You then proceed to ask questions with
regard to that topic. When the topic has been exhausted you will open the
next topic in the same manner.
These techniques should not be used continuously in the course of
examination in chief because to do so reduces their impact and will become
a source of irritation to the tribunal. Rather they should be used at intervals
in the course of the taking of the evidence.
It is of assistance to most, if not all, witnesses that you proceed in a logical
order of presentation. The logical order will almost always be that which
appeals to your witness and this will generally involve dealing with the
matter on a chronological basis. If, in the course of giving evidence, the
witness is recounting events and omits to mention a matter of importance,
do not interrupt the witness. Rather allow him or her to complete their
account of the matter under discussion then return to the matter which has
been overlooked.
Similarly, if the witness has a mental block or is unable to appreciate what it
is you are endeavouring to extract from them, leave the area and address a
fresh topic. To press the witness at that time is likely to increase the pressure
on the witness and lead to confusion. You should return to the problem area
at a later time and, if possible, from a different direction.
It is important you listen to the answers given by your witness and show
interest in what is being said. If you do not do this you will contribute to any
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The Little Red Book of Advocacy – Second Edition
discomfort your witness may be feeling. Put yourself in the position of the
witness who is asked a question by a person who seems to have no interest
in the answer. What does the witness do? Who does he or she respond to?
Further, you may miss a vital answer that is inconsistent with what was to be
expected from the proof of evidence you have before you.
In the event your witness does provide you with an answer inconsistent with
your instructions, you should not demonstrate surprise or exasperation or
any kind of displeasure. To do so emphasises to all in court the fact that you
have received a “wrong answer”. It will also contribute to any concern the
witness may be feeling. If the matter is sufficiently important you may wish
to come back to it in another way at a later time, but you should be wary of
an objection based upon you endeavouring to cross-examine your witness.
If the “wrong answer” is not of overwhelming importance to your case you
may be better advised to leave it alone. This will be a matter for the exercise
of your judgment at the time.
You can assist your witness in the presentation of evidence by yourself being
calm, confident, concise and seeking information in a logical order.
It will help your witnesses if you refer to them by name. It must be offputting, dehumanising and aggravating for a person in the witness box to
be addressed as “witness” rather than by name. Further, you should use any
title to which that person is entitled, e.g. Constable Smith, Doctor Jones,
Professor Adams. This is a matter of simple courtesy.
I recommend you endeavour to ensure each of your witnesses is both familiar
and comfortable with the process which they are about to undertake and they
understand what is expected of them.
Whilst it is necessary to avoid asking leading questions in evidence in chief,
The Little Red Book of Advocacy – Second Edition
27
common sense requires you be permitted to do so in some areas and on
some occasions. The court is likely to become frustrated if non-leading
questions are asked in relation to peripheral and non-contentious matters.
It should be possible for you to agree with your opponent that you will lead
the witness in areas that are not controversial but that you will apply the
rules when appropriate.
Your strategy in leading your evidence in chief is likely to be to obtain
the necessary information from your witness in an orderly fashion, a
comprehensible manner and in a way most likely to lead to that testimony
being accepted. In order to achieve this end careful preparation is required.
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The Little Red Book of Advocacy – Second Edition
Cross-Examination
“More cross-examinations are suicidal than homicidal.”
F L Wellman: The Art of Cross-Examination
When your opponent resumes his or her seat after leading a witness through
the evidence in chief the first question you should ask is not of that witness
but of yourself: “Should I cross-examine this witness?”
There is an understandable pressure to cross-examine each and every
witness called by your opponent. There is a natural reluctance to allow any
evidence called by the other side to go unchallenged. Further, there is often
an expectation on the part of your client that you will cleverly undermine or,
preferably, destroy the credibility of any witness who has given evidence for
another party. Generally the expectation is that you will challenge all or at
least some of what has been said.
However, you should not feel compelled to cross-examine. It is harder to
make the considered decision not to ask questions than it is to launch into
an ill-considered cross-examination.
If there is no good reason to cross-examine the witness then you should
avoid the temptation to do so. In such a case you are unlikely to improve
your client’s position and you are most likely to damage it.
In the many texts dealing with the topic of advocacy the objects or aims of
cross-examination have been identified in a variety of ways.
However, a consideration of those writings reveals the authors are expressing
similar views. The aims of cross-examination include the following:
1. to obtain evidence favourable to your client;
2. to destroy and/or weaken evidence unfavourable to your client. This
may involve an attack upon the credibility of the witness;
3. to put your case to the witness in order to satisfy the requirements of
fairness commonly referred to as the rule in Browne v Dunn.
In considering whether to cross-examine a particular witness you will return
to your case strategy and by reference to that strategy determine whether
anything is to be gained by proceeding to ask questions. Ask yourself whether
any of the aims of cross-examination will be achieved in light of your case
strategy if you ask this particular witness any questions.
In determining whether to cross-examine that witness you should also
bear in mind that in most cases the position of the witness is likely to be
adverse to your client’s interest. The witness is being called on behalf of your
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29
opponent. In the majority of cases you cannot be confident of the responses
the witness will make to your questions. In those circumstances the asking
of questions will always be a dangerous undertaking.
Having considered the matters discussed above and determined you do need
to cross-examine you should apply the same scrutiny to each and every
question you propose to ask. You should limit yourself to what is absolutely
necessary to achieve your purpose and resist any temptation to undertake a
fishing expedition. Whilst an ill thought out or random cross-examination
will, on occasion, produce a favourable result, that result will be achieved by
accident and incredible good luck.
The more likely result is that unfortunate and irreparable damage will be
done to your client’s case.
If you are to cross-examine, it should be in accordance with a clearly thought
out plan based upon your case strategy and with definite aims in mind. Your
goals should be clear and identified. You should be sure of what you are
doing and why you are doing it.
In the event you decide not to cross-examine, it may be prudent for you to
keep your client informed as to why you did not do so. In many cases the
client will be expecting cross-examination to occur and he or she will be
concerned when you announce you have no questions for the witness.
In their work Advocacy and Practice, Glissan and Tilmouth describe the
first rule of cross-examination as: “do not without very good reason.” That
sentiment echoes the observations of authors expressed in many works over
many years.
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The Little Red Book of Advocacy – Second Edition
Preparing for CrossExamination
“…answers are not obtained by putting the wrong question
and thereby begging the real one.”
Felix Frankfurter, Priebe & Sons v United States
Having determined you will cross-examine a particular witness it becomes
necessary for you to plan that cross-examination. You will need to determine
in advance the topics or areas in relation to which you will ask questions,
the topics or areas you will avoid, the nature of your approach and the order
in which you will deal with the matters you wish to raise.
In most cases it will be possible to determine in advance of the hearing
whether it will be necessary to cross-examine a particular witness.
Prior to the commencement of the hearing you will be aware of the nature of
your case, the nature of your opponent’s case and the likely content of the
evidence to be led from most witnesses. You will therefore have the opportunity
to prepare much of your cross-examination by anticipating the evidence.
Having prepared the substance of your cross-examination in advance you
will be able to add to or delete from what you have proposed by reference to
the performance of the witness in actually giving the evidence.
In your preparation, the first matter to be considered is the identification
of the areas to be addressed and, conversely, those you propose to avoid. As
I have previously observed you should only enter into cross-examination
where it is necessary to achieve an identified purpose. Before asking your
first question you should clearly identify the goals of your cross-examination
and how those goals are to be achieved.
In considering how you will achieve your goals it will be necessary to
determine the nature of your approach to the cross-examination. Broadly
speaking there are two approaches to cross-examination. The first is the
indirect, probing approach where the witness is not attacked but rather
information is led (or extracted) from him or her in an indirect, courteous
and non-combative way. The other approach is a confrontational one in
which the witness is directly challenged, possibly vigorously, in relation to
the evidence that has been given.
In many instances you will, at different stages of your cross-examination,
employ both approaches. There will be matters you will wish to lead from the
witness as being favourable to your client’s case or reflecting adversely upon
the case to be presented by your opponent.
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31
In relation to other matters it will be necessary for you to directly challenge
what the witness has said. You will be required to put matters to the witness
to provide a basis for a submission that the court should not accept the
evidence of the witness because the witness is untruthful or is, for some
other reason, unreliable.
If your cross-examination is to involve a combination of approaches then,
generally speaking, it is prudent to endeavour to extract the favourable
information from the witness before launching into any challenge to the
witness.
You should bear in mind that the great majority of witnesses endeavour to
tell the truth as they recall events. They may be mistaken but they are not
setting out to deliberately deceive.
You may be able to undermine the impact of the evidence of such a witness by
drawing further information from them or qualifying information previously
given in evidence.
It would be imprudent to deal with issues in relation to which you propose
to directly challenge the witness prior to dealing with those other matters
because, as we all know, once you attack a witness such an approach is likely
to result in the witness becoming decidedly uncooperative.
It is therefore necessary to predetermine the nature of the approach you will
adopt regarding each topic to be addressed and then to deal with those topics
in an order which is likely to achieve the best results.
Further, in determining the approach you will adopt, it will be necessary
to take into account the personality of the witness. This may involve some
preliminary and testing questions in the early part of your cross-examination.
For example, a witness who is tentative in evidence and hesitant about his
or her answers may be most productively dealt with by short firm positive
propositions being confidently placed before them.
On the other hand a witness who is quick to adopt a position and is
immediately firm in that position may be better dealt with by a series of
less direct questions leading ultimately to a necessary acceptance of the
proposition which you wish to be adopted. The approach will depend upon
many factors including the matter to be addressed and the nature of the
witness. In most cases the most productive approach is likely to be to adopt
the non-combative, probing approach initially and only resort to a directly
challenging approach at a later time. It will be a matter for your judgment
on each occasion.
When dealing with topics that are sensitive in a personal sense to the
witness or vital to the outcome of the case, you should take great care in
formulating your questions. Think about the precise formulation in advance
and determine a form of words most likely to achieve your desired result.
This does not mean you should script the whole of your cross-examination.
You should not. It should follow a form dictated by the dynamics of the
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The Little Red Book of Advocacy – Second Edition
occasion. However for those few pivotal questions it is prudent to have a
clear and considered plan of attack in place.
Having determined your goals and the method by which you propose to
achieve those goals it is important to remember that when you have achieved
the desired result you should stop. Do not ask further questions designed to
drive home any point you have made or are able to make in your address.
Do not allow yourself to be carried away by the triumph of the moment and
seek to prolong it by asking further questions. The risk of asking further
questions is that you will undo all of your good work.
1.
See generally Stone: Proof of Fact in Criminal Trials (W. Grant & Son)
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Some Limitations on CrossExamination
“Cross-examination is ‘the greatest legal engine ever invented
for the discovery of truth’.”
Wigmore on Evidence (Vol. V, Para. 1367)
Strictly speaking there is no “right” of cross-examination. The only actual
“right” is the right to a fair trial. 1 In practice the right to a fair trial almost
always ensures a party is permitted to cross-examine witnesses who have
provided evidence for another party.
Where cross-examination is permitted, and this is in almost every case,
the exercise of that right is not unfettered. The Evidence (National Uniform
Legislation) Act 2011 (NT) (“Uniform Evidence Act”) is but one source of
limitations upon the scope of cross-examination. By reference to the Uniform
Evidence Act you will find that:
1. a witness can object to answering a question on the basis that the
evidence would tend to incriminate the witness or make him or her
liable to a civil penalty (s 128);
2. the court may disallow questions that are irrelevant (s 56);
3. generally, a credibility evidence about a witness is not admissible (s
102), unless such evidence adduced during cross-examination could
substantially affect the assessment of the credibility of the witness (s
103(1));
4. in criminal proceedings, the defendant must not be cross-examined
by the prosecutor on issues of credibility unless the court grants leave
and particular circumstances exist (s 104);
5. the court may grant leave for a party to cross-examine its own witness
on credibility, where the witness is found to have given unfavourable
evidence (s 38);2
6. the court may disallow questions that are improper (s 41). Improper
means a question that:
34
•
is misleading or confusing;
•
is unduly annoying, harassing, intimidating, offensive, oppressive,
humiliating or repetitive;
•
is being put to the witness in a manner or tone that is belittling,
insulting or otherwise inappropriate;
The Little Red Book of Advocacy – Second Edition
•
has no basis other than a stereotype (e.g. based on witness’s sex,
race, culture, ethnicity, age or mental, intellectual or physical
disability).
Other limitations are to be found in the rules of evidence, in the special
obligations imposed upon prosecutors and in legislation such as that dealing
with sexual offences.
Of course cross-examination is not limited to matters addressed in evidence
in chief. However, by virtue of the Uniform Evidence Act, the scope of
cross-examination is limited by reference to the requirement that it deal
with matters which are relevant or concerned with credit. What is or is not
relevant may not be readily apparent at the commencement of a crossexamination or when a new topic is raised. As a matter of practice the court
will allow significant leeway to counsel to develop the cross-examination in
an area which, at first, may seem to be irrelevant.3 This will particularly be so
if counsel assures the court the matter will be made relevant in due course.
Some of the more historically famous cross-examinations have originated
from a series of questions dealing with matters apparently not in issue. It
will only be where counsel’s discretion is not being properly exercised that
a judge will intervene.
The court has the power to prevent cross-examination being used for a
collateral purpose. To use cross-examination for such a purpose may amount
to an abuse of process of the court. In Re Mundell; Fenton v Cumberlege (1883)
52 LJ Ch N.S. 756 at 758 it was said that the “Court has a right to protect Her
Majesty’s subjects from the practice and process of this Court being simply
used to torture them and not for the purpose of justice.”
You should bear in mind that the court is entitled to assume that questions
asked of a witness in cross-examination are asked in accordance with
instructions. What those instructions are may be inferred from the questions
asked. Any misconduct on your part in the process of cross-examination
may, therefore, be visited upon your client. You may also find, in addresses,
your opponent draws upon the questions you have asked to invite the court
to act upon the basis that they were your instructions.4
In cases where there are a number of parties with the same interests the
judge may not permit any more than one counsel to cross-examine the same
witness. Of course in most cases the interests of the various parties will be
sufficiently different to enable counsel for each party to cross-examine. The
normal situation is that each counsel will be provided the opportunity to crossexamine each witness. Where there is an overlap of interests the judge may
interfere to prevent any unfairness arising through repetitive questioning.
In reading about advocacy you will have been informed that it is desirable
for you to ask leading questions in cross-examination. Whilst that may be
so, you should not assume there is an absolute right to ask such questions.
Again the concern centres upon the need for fairness. If it is the view of the
judge that a witness is merely agreeing to propositions put to him or her by
The Little Red Book of Advocacy – Second Edition
35
way of leading questions, then the asking of those questions and the receipt
of the answers may not help the court. They may be of no probative value.
This can be a particular problem in the Northern Territory when dealing
with some Aboriginal witnesses. In Anunga (1976) 11 ALR 412 at 415 it was
observed, in relation to Police questioning of Aboriginal suspects, great care
should be taken in formulating questions so that as far as possible “the
answer which is wanted or expected is not suggested in any way.” The court
said “anything in the nature of cross-examination should be scrupulously
avoided as answers to it have no probative value.” The same observations
may be made when such an Aboriginal witness is cross-examined in the
course of a trial. In a paper published in the Criminal Law Journal,5 Mildren
J discussed the problem of what he termed “gratuitous concurrence” and
highlighted the need to “warn counsel for the accused about the need for
leave before putting leading questions in cross-examination.”
A further limitation on cross-examination centres upon how one approaches
the witness who gives evidence which is contrary to that of another witness.
It is clear a witness ought not be asked whether another witness is telling
lies or has invented something. The witness can be asked if he knows any
reason why the other witness may be hostile to him, or should tell a false
story about him, but he should not be asked to enter into the other witness’s
mind to express an opinion as to whether he thinks “the inaccuracy is due to
invention, malice, mistake or any other cause.”6
It can be seen that the right of cross-examination is far from unfettered. The
restrictions on what can be done in cross-examination are not limited and
the matters I have discussed are simply examples of some of the restrictions
applicable. In preparing your cross-examination you will need to bear in mind
that restrictions apply and to structure your cross-examination accordingly.
36
1.
GPI Leisure v Herdsman Investments (No.3) (1990) 20 NSWLR 15 at 22; NMFM Property Pty
Ltd v Citibank Ltd (1999) 161 ALR 581.
2.
Refer to chapter on unfavourable witness.
3.
Wakeley v The Queen (1990) 64 ALJR 321 at 325.
4.
R v Sadaraka (1981) 4 A Crim R 221 at 226-227; see also R v Christopher Roy Bean (1999) (25
May 1999 CCA Qld).
5.
Redressing the Imbalance Against Aboriginal in the Criminal Justice System (1997) at 21
CLJ at 7.
The Little Red Book of Advocacy – Second Edition
Your Approach to CrossExamination
“Never, never, never, on cross-examination ask a witness
a question you don’t already know the answer to was a tenet
I absorbed with my baby food.”
Harper Lee, To Kill a Mockingbird
We have discussed the need for careful preparation for cross-examination
and the fact that part of that preparation will involve a consideration of the
nature and characteristics of your witness and how best to approach that
witness. You need also bear in mind your own personal characteristics. We
each have different personalities with different strengths and weaknesses.
Some of us are naturally forceful whilst others may be less so. Some may
be loud and others quiet and so on. In determining your approach to a
particular witness, indeed to a case, you should bear in mind your strengths
and weaknesses and your limitations. You may need to modify your natural
inclinations in your dealings with different witnesses.
There are many general rules of advocacy you should obey in the presentation
of your case and, in particular, in your cross-examination. I discuss some of
these below.
You should never become angry. An angry advocate is one not fully in control
of the situation and one who is likely to make mistakes. An angry advocate is
also likely to alienate the court and particularly members of a jury. There is
no reason why you should not be firm or forceful as the occasion requires but
never angry. You should always be courteous. Descent into discourtesy reflects
upon you, and probably upon your client, rather than upon the witness. The
courteous but firm and persistent pursuit of an issue is likely to obtain better
results than any other approach. If the witness is being evasive or sarcastic or
in some other way obstructive, a courteous, but persistent and firm, pursuit
of the issue will highlight that. Discourtesy on the part of the advocate serves
to focus attention upon the advocate rather than upon the witness.
An aspect of being courteous to the witness is that you should be fair to the
witness. If you are unfair to the witness, for example by misrepresenting the
evidence or browbeating the witness or becoming angry with the witness, you
will find this will not assist your cause. The court will be likely to interfere
and will, at least, feel sympathy for the witness.
You should never argue with a witness. The witness is there to answer
questions, you are not. If the witness seeks to engage you in argument you
should clearly and firmly avoid the invitation. You should be in control of the
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37
situation and you will lose that control as soon as you enter into debate with
the witness. You should always bear in mind that you will have the last word.
When all of the evidence is complete and the witness has left the court you
will have the opportunity to address the court on the evidence of that witness.
Your questions should invariably be clear and concise. If your question is
not clear and not concise you risk not obtaining an answer to your question
or, alternatively, losing the impact of a clear answer to the question. If the
meaning of the question is not clear then what was meant by the answer
becomes a matter of interpretation. Such questions also permit a witness to
avoid answering directly and frankly. The witness can seize the opportunity
to “misunderstand” the question and answer another question. However if
your question is clear and concise it will quickly become obvious if the witness
chooses to misunderstand the question or not respond to the question.
When asking questions you should formulate the question in a manner which
will allow the witness to comprehend it. Generally speaking you should use
plain language readily understood by all. There is no point in using language
which is beyond the comprehension of the witness; confusion will follow.
Similarly if you have a witness who has some expertise in an area there is
little point asking questions which demonstrate your thorough preparation
in the area by the use of unfamiliar words if the judge or jury will not
understand those words. You may feel clever in discussing with a medical
expert a subarachnoid haemorrhage but there will be little advantage to your
case if that expression is not fully understood by the tribunal.
When you ask any question ensure you listen to the answer. Your question is
not the evidence, the answer is the evidence. If you do not listen carefully to
what the witness says you may miss the fact that the witness has provided
you with a non-responsive answer or has provided you with information
worthy of further pursuit.
In the event you receive an answer to a question that is unexpected or, worse
still, devastating to your case, you should endeavour not to show surprise.
An unexpected answer will be unduly emphasised by your reactions. Rather
you should proceed as if nothing untoward had happened whilst you plan the
best way to counter the unfortunate turn of events.
At the commencement of this article there is a quote from ‘To Kill a
Mockingbird’. The quote reflects a rule which is often repeated to young
advocates: you should never ask a question to which you do not know the
answer. That is probably to express the rule in terms that are too broad and
rigid. There will be questions you will ask which will have either answer (a)
or answer (b), either of which you will be happy. In those circumstances you
may wish to ask the question without knowing the answer. There will also
be those questions where you are not concerned by the answer because the
questions and answers form part of a building process undertaken with a
view to asking a later and more important question. However in relation to
those questions which are crucial to the outcome of the case the rule holds
true; you should not ask a question to which you do not know the answer.
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In a similar vein you should not ask questions which permit the witness
to explain. Again this rule is subject to exceptions and a question seeking
explanation may be particularly effective if there cannot be an explanation
and the witness is left to flounder. However as a general proposition you
should not permit the witness to explain any matter in his or her evidence.
If you wish to have an answer explained you should do so by suggesting
the explanation rather than simply calling for an explanation. To call for
an explanation gives the witness the opportunity to be expansive regarding
matters which may be detrimental to your case.
There are many rules of advocacy and I have discussed some of these above.
In relation to each such rule there will be exceptions. I suggest that departure
from the rules should be left to the exceptional circumstance and to the very
experienced advocate.
The Little Red Book of Advocacy – Second Edition
39
Prior Inconsistent Statements
“It took man thousands of years to put words down on paper,
and his lawyers still wish he wouldn’t.”
Mignon McLaughlin
A common and effective method of attacking the credibility of a witness is
to do so with the use of prior inconsistent statements made by the witness.
Such statements are likely to be found in evidence given in committal
proceedings, statements made to police, answers to interrogatories, in
written witness statements produced in the course of preparation for trial and
in correspondence passing between the parties prior to the commencement
of proceedings.
Before deciding to use such a statement you must first ensure what appears
in the document is inconsistent with what is being said by the witness in
the course of his or her evidence. It must be clear that there is in fact a
substantial inconsistency.
It may not be sufficient if there is a mere discrepancy in the expressions used
by the witness to describe an event. For example, there may not be a sufficient
difference where a knife is described as a “kitchen knife” in one statement
and as a “table knife” in another. However, if the description varies between
a “flick knife” and a “table knife” the position will be different.
When you have determined there is a substantial inconsistency between
the evidence given in court and that in a prior statement, you will need to
proceed with care. You should first lock the witness in to the statement made
in court and under oath before seeking to contradict the witness.
This may involve taking the witness back over the evidence already given to
confirm with the witness that he or she is very clear as to what was said. You
may do this by questions that draw the attention of the witness to the oath
they have taken, the importance of truth and accuracy in the giving of their
evidence and so on.
The process may end with questions such as: “You told us X, that is
something you clearly remember?” Your questions should leave no room
for the witness to subsequently claim he or she was misunderstood or had
employed imprecise language or acted in any other way that would permit
the witness to subsequently explain away the inconsistency.
When you are satisfied the witness is locked into a clear and concrete position
in the evidence before the court you may then move to the evidence of the
prior inconsistent statement which is to be used to contradict him.
You are not required to tender the document after merely showing it to a
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witness,1 however the court may require you to do so under other provisions
of the Uniform Evidence Act.
The first matter to establish is that the statements in the document are
those of the witness. In the event the witness does not admit he made the
statement, you may need to prove he did. Section 43(2) of the Uniform
Evidence Act is in the following terms:
(2) if, in cross-examination, a witness does not admit that he or she has made a
prior inconsistent statement, the cross-examiner is not to adduce evidence of the
statement otherwise than from the witness unless, in the cross-examination,
the cross-examiner:
•
informed the witness of enough of the circumstances of the making of the
statement to enable the witness to identify the statement; and
•
drew the witness’s attention to so much of the statement as is inconsistent
with the witness’s evidence.
In relation to a signed document, proof may be achieved by first showing the
witness the signature and having him admit it is his signature.
Before taking the witness to the contents of the statement it is desirable
to obtain from the witness some evidence that the witness is a truthful
and careful person. You may wish to ask questions along the lines of: “You
are an honest person?”, “You would not sign a document knowing it to be
false?”, “You are careful to ensure that documents you sign are truthful
and accurate?”, “You would not sign a document without reading it?” and
further questions in that vein varying to suit the circumstances.
The witness may then be asked whether he recalls the occasion of making
the statement and to confirm on that occasion he was not departing from his
normal practice of truthfully and accurately recording events.
In circumstances where a document is not signed, for example transcript
from a committal proceeding, you should take the witness to the time and
place the statement was made and have him acknowledge he gave evidence
on that occasion and he did so truthfully, being under oath. You will again
employ questions designed to establish that the witness was an accurate and
truthful witness on that occasion.
In a very useful article entitled Cross-Examination on Documents 2 Hon.
Michael McHugh QC (later McHugh J of the High Court) outlined a useful
technique for cross-examining on documents. He recommended advocates
first “close the gates” before taking the witness to the contradictory material.
This involves eliminating possible explanations before using the document
to contradict the witness.
Before going to the contents of the document, you will ensure you clarify
with the witness anything that may be ambiguous or provide an escape route
for the witness. For example, if an unusual word is used to describe an event
then you may wish to clarify the meaning of the word before you go to it in
the document.
The Little Red Book of Advocacy – Second Edition
41
You should carefully consider the circumstances surrounding the making of
the document and make sure you deal with, and close, all avenues for the
witness to explain away the inconsistencies between the two statements.
McHugh QC expressed the approach in this way:
Every document creates its own problems; it is up to you to think how can this
witness explain this away; and long before you obtain the admission, cut off
those gateways and explanations. In practice you will find a witness will say that
he has changed his view since the time that letter was written, he did not have
all the information in his possession at that time, he relied on other persons, and
so on. They are common explanations, and you have to frame your questions so
that you cut off those explanations, until finally when you put that particular
part of the document to him there is no way out.
Another way a witness will sometimes seek to avoid the effect of documents
is to say, “Oh, somebody told me to write it”, or “I really didn’t know what
was in it”, or “I was seeking to get some advantage” or something of that
nature. You need to get his admission that when he wrote the document he
was not setting out to deceive anybody.
When you have locked the witness into his evidence under oath before the
court and you have closed the gates in relation to the earlier statement, it is
then time to put the contradictory material to the witness. In so doing you
will maintain control of the situation by putting to the witness only that
material upon which you wish to rely and you will do so item by item.
When the contradictory material is placed before the witness he should be
invited to acknowledge that it is inconsistent with what he told the court
under oath.
Depending upon the circumstances you may wish to pursue him by enquiring
which version of events is untrue, what he said under oath on this occasion
or in his carefully prepared statement on the earlier occasion.
Alternatively, you may wish to leave the contradiction unexplained. However,
you must remember that reexamination on this topic may
follow. Much will depend upon
the circumstances of the case.
If you use a document to
contradict a witness in this way
you must be conscious of the
fact that you may be required
to produce the document to the
opponent and to the court. I
refer you to section 45 of the
Uniform Evidence Act.
42
1.
Australian Competition & Consumer Commission v CFMEU [2008] FCA 678 (Finn J) at [119].
2.
MH McHugh QC (1985) 1 ABR 51.
The Little Red Book of Advocacy – Second Edition
The Rule in Browne v Dunn
“Willing to wound and yet afraid to strike.”
Alexander Pope
The so-called rule in Browne v Dunn is based on principles of fairness. It
requires a cross-examining counsel to direct the attention of the witness to
so much of the cross-examiner’s case as relates to that witness. The purpose
of so doing is to give the witness an opportunity to address those issues by
denial, explanation or other comment.
The rule originated in the speech of Lord Herschell LC in the case of Browne
v Dunn (1894) 6 R 60. In that case Lord Herschell said (at 70):
My Lords, I have always understood that if you intend to impeach a witness you
are bound, whilst he is in the box, to give him an opportunity of making any
explanation which is open to him; and, as it seems to me, that is not only a rule
of professional practice in the conduct of the case, but is essential to fair play and
fair dealing with the witness.
The rule was restated by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner
of Taxation (Cwth) (1983) 1 NSWLR 1 at 16 where he said:
It has in my experience always been a rule of professional practice that, unless
notice has already clearly been given by the cross-examiner of the crossexaminer’s intention to rely upon such matters, it is necessary to put to an
opponent’s witness in cross examination the nature of the case upon which it
is proposed to rely in contradiction of his evidence, particularly where that case
relies upon inferences to be drawn from other evidence in the proceedings. Such a
rule of practice is necessary both to give the witness the opportunity to deal with
the other evidence, or the inferences to be drawn from it, and to allow the other
party the opportunity to call evidence either to corroborate that explanation or
to contradict the inference sought to be drawn. That rule of practice follows from
what I have always believed to be rules of conduct which are essential to fair
play at the trial and which are generally regarded as being established by the
decision of the House of Lords in Browne v Dunn.
Hunt J went on to observe:
There are many reasons why it should be made clear, prior to final addresses
and by way of cross-examination or otherwise, not only that the evidence of the
witness is to be challenged but also how it is to be challenged. Firstly, it gives the
witness the opportunity to deny the challenge on oath, to show his mettle under
attack (so to speak), although this may often be of little value. Secondly, and far
more significantly, it gives the party calling the witness the opportunity to call
corroborative evidence which in the absence of such a challenge is unlikely to
The Little Red Book of Advocacy – Second Edition
43
have been called. Thirdly, it gives the witness the opportunity both to explain or
to qualify his own evidence in the light of the contradiction of which warning
has been given and also, if he can, to explain or to qualify the other evidence
upon which the challenge is based.
The rule applies to both criminal and civil proceedings. It applies as between
all parties, for example, if one defendant is to suggest that another is not
telling the truth then the obligation to comply with the rule arises.
Just how you comply with the rule in Browne v Dunn will be a matter for
consideration in light of the circumstances in each case. In some cases it will
be necessary to baldly confront the witness with the contradictory material.
In others you may wish to adopt a more subtle approach, taking the evidence
that has fallen from the witness and expanding upon it in order to allow
the witness to comment upon the information which you propose to use to
suggest the evidence is unworthy of credit. For example, in a case where the
witness gives evidence as to identity you may wish to examine him as to the
prevailing circumstances which would reflect upon his capacity to provide a
positive identification. You may suggest it was dark, or raining, or his vision
was obscured by passing traffic and so on. It is not necessary to confront the
witness and accuse him of being unworthy of credit or untruthful. Provided
the basis for your attack on his credit is fairly put to him you have complied
with the rule in Browne v Dunn.
The rule has no application where the challenge to the evidence of the witness
is clear from other circumstances. This may result from the pleadings or
from the evidence led by the other side in the course of the case or, indeed,
from the issues raised in the opening address. The rule will not apply where
the story told by the witness is incredible and does not warrant serious
challenge. However the rule is one relating to fairness and fairness must be
assessed in all of the circumstances. As Lord Herschell went on to say:
All I am saying is that it will not do to impeach the credibility of a witness upon
a matter on which he has not had any opportunity of giving an explanation by
reason of there having been no suggestion whatever in the course of the case
that his story is not accepted.
If the rule is not complied with various consequences may follow: the judge
may, in an appropriate case, discharge a jury; a witness may have to be
recalled; the failure may be the subject of adverse comment to the jury; in
an extreme case the Tribunal may disregard the evidence because it was not
tested by allowing the witness to comment upon it.
In summary, if a court is to be invited to disbelieve a witness then the
grounds upon which that submission is to be made should be put to the
witness in cross-examination to enable the witness to offer any comment or
explanation available to him.
In Reid v Kerr (1974) 9 SASR 367, Wells J observed that a failure to abide by
the rule in Browne v Dunn might lead to the situation where issues of fact are
not joined in the evidence. The two bodies of evidence led by the parties may
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The Little Red Book of Advocacy – Second Edition
“serenely pass one another like two trains in the night.”
In the same case, Wells J addressed the nature of the challenge that should
be made to the evidence of a witness. He referred to cases where the
contradictory material was not put fairly and squarely to the witness but
rather was hinted at and then went on to say:
Then what was sought to be done was that such answers as the witness was able
to give with respect to the hinted imputation were used as the basis for an address
to the jury inviting them to draw an inference that carried the imputation. I regard
such a course of cross-examination and address as unfair. It represents the sort
of conduct described by Alexander Pope in the well-known passage in which he
condemned those who were willing to wound, and yet afraid to strike. I do not
for one moment suggest that counsel should abandon the arts and fair devices
of cross-examination. I am well aware that there are more ways of taking a fort
than by frontal attack, but I also hold it to be a fundamental principle that, when
all arts and devices of cross-examination have been exhausted for the purpose
of testing whether a particular witness merits adverse criticism, then, at some
stage, and in some fair manner, he should be given the opportunity of meeting
the implication and answering it.
It is in complying with the rule in Browne v Dunn that you most often hear
counsel resort to the tired formula: “I put it to you” followed by a series of
propositions. This is unfortunate and unproductive advocacy. That manner
of putting a question will lead to only one response from the witness and
that is a flat denial of the proposition. In approaching the matter in that
way counsel is simply going through the motions and complying with the
formalities. It gives no prospect of obtaining an admission or a qualification
to the evidence already given. It provides no opportunity for positively
assisting the case being presented. Rather it permits, even invites, the
witness to emphatically and convincingly reject that part of the case for the
other side. Issues raised in this way should have been dealt with during the
course of the cross-examination in conjunction with other matters being
explored with the witness.
The Little Red Book of Advocacy – Second Edition
45
Cross-Examining the Expert
“There is nothing more horrible than the murder of
a beautiful theory by a brutal gang of facts.”
La Rochefoucauld (1747–1827)
One of the great challenges of advocacy is the cross-examination of an expert
witness in relation to a matter arising in his or her field. As with all other
areas of successful advocacy preparation is the key.
When dealing with expert witnesses you have available to you advantages
not always present in relation to other witnesses. In most (if not all) cases
you will have received in advance of the trial details of the basis upon which
expertise is claimed by the witness and you will also have a report or reports
detailing the evidence that is proposed to be led from the witness. The claims
to expertise will normally be in the form of detailed curriculum vitae (CV).
The report of the expert will usually set out the information made available
to the expert, followed by a description of his or her reasoning process and
then the conclusions reached as to relevant matters. With this information
available you are in a position to thoroughly prepare your cross-examination.
To my mind the most efficient method of preparing for cross-examination of
an expert witness is with the assistance of your own independent expert. That
person should be sufficiently qualified and experienced to enable you to be
informed of, and schooled in, the matters in relation to which evidence will
be given. You should sit down with such a person and work your way through
the field in relation to which expert testimony is to be called. By the time you
get to your feet for the purpose of cross-examination you should be, so far as
this be possible, sufficiently informed as to the field, and knowledgeable of
the issues arising, as to be on an equal footing with the expert who is to be
cross-examined. You will achieve this status by exhaustive preparation with
the assistance of your own expert and by reading texts, expert papers and
other relevant writings in relation to the matter.
No matter how well prepared you are it will always be a difficult undertaking
to match wits with an expert. You must therefore control the crossexamination and limit yourself and the witness to those areas where the
evidence of the expert can be successfully challenged.
In most cases there will be four areas in which you will concentrate your
efforts at preparation. The first of those will be the acceptance or rejection of
the claim to expertise. In many cases it will be obvious the person concerned
is an expert and you can readily move on to the next area of consideration.
However in some matters there may be doubt. Whilst a witness may have an
impressive academic CV, this does not mean he or she has sufficient relevant
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The Little Red Book of Advocacy – Second Edition
experience in the particular area in which opinion evidence is to be given
to qualify as an expert. You should carefully examine the claimed expertise
before making any concession that opinion evidence can be expressed.
Once you are satisfied the witness is an expert, you need to look at other
areas of potential challenge. One fruitful area is the information upon which
the expert has based his or her opinion. In other words what the expert took
to be the facts of the case. In many cases you will find that the opinion of
an expert will be uncontentious. Rather it will be the material upon which
the opinion is based that will be the source of contention. In nearly every
case the expert will be informed as to the factual basis upon which his or her
testimony is to be given. This information may be obtained from a letter of
instruction from solicitors, from an inspection of the item or area concerned
coupled with explanations provided by others at the scene, by information
provided by a plaintiff or a representative of the plaintiff direct to the expert
and so on.
You should closely examine the basis upon which the expert has proceeded
in order to draw his or her conclusions.
No matter how eminent he or she may be, the opinion of the expert will be
no better than the material upon which that opinion is based. You should
therefore pay close attention to that material in order to consider the prospect
that it may be undermined. This will involve a consideration of what has and
has not been proved in the course of the hearing. Has the expert been invited
to assume matters which are in contention or which cannot be established?
In medical matters has a complete history been provided to the expert? Are
there matters that have come out in the course of cross-examination of
which the expert was unaware at the time of reaching his or her conclusions?
The next area worthy of consideration is the reasoning process of the expert.
Having accepted the factual substratum the expert then proceeds by various
processes to reach an opinion. In this area it is likely to be essential for you
to have assistance in determining whether that has been a legitimate process
or whether some flaw can be identified. Even if no flaw can be identified or
demonstrated it may be that concessions can be obtained from the witness
to the effect that other approaches to the questions arising are open and may
lead to differing results. The witness may only have addressed his or her
pet theory. You may, by emphasising alternatives, significantly reduce the
damage that the initial opinion of the expert would have caused to the case
for your client.
This approach to the cross-examination also applies to the formulation of
the conclusions reached by the expert. It may be that different conclusions
can be reached from the same facts and thought processes. Ultimately it will
be a matter for the finder of fact as to what opinion is accepted. The tribunal
is not bound to accept expert evidence and it may accept or reject the whole
or part of that evidence in the same way as evidence of other witnesses.
It is useful to remember that expert witnesses are a special class of witness.
The Little Red Book of Advocacy – Second Edition
47
Generally speaking they are independent of the parties and they do not have
a vested interest in the outcome of the proceedings. If they are independent
in their thinking they may be of use to you in obtaining evidence which
assists your case. There may be a number of matters you would put to the
witness in order to obtain concessions that may assist your case. Obviously if
you seek to use the witness in this way you will do so at an early time in the
cross-examination and before you make any challenge to the expertise of the
witness or the opinion of the witness. You would undertake such a task by
approaching the expert “as an ally who wishes, with you, to seek the truth.”1
It will be a rare circumstance in which you would ever aggressively attack an
expert witness. Given that such witnesses are supposedly independent and
expert there will be little opportunity to suggest the witness is untruthful or
misleading or guilty of other similar shortcomings. If made, an attack of that
kind is likely to lead to feelings of sympathy for the witness. It is far better to
adopt a methodical and measured approach to the cross-examination in most
cases. Such an approach will be directed to demonstrating that the witness
was not fully informed by those who engaged him, or was provided with
misleading information, or adopted a flawed approach or did not consider or
adequately consider alternatives.
1.
48
Evidence and Advocacy, W A N Wells p188.
The Little Red Book of Advocacy – Second Edition
Cross-Examining through
an Interpreter
The requirement for counsel to cross-examine witnesses through interpreters
is an increasing one. In the not so distant past there existed an attitude of
having to “make do” without an interpreter when a witness had either no
grasp, or an inadequate grasp, of the English language. There was a tendency
to “make do” with whatever interpreting skills may have been readily
available. A graphic example of this was revealed in the re-enactment of the
trial of Tuckiar 1 in previous Law Week celebrations.
In more recent times there has been an increasing recognition of the
desirability of ensuring that the witness fully understands the proceedings
and is able to give evidence through an interpreter. This involves determining
when an interpreter is necessary and ensuring that an appropriately qualified
interpreter is available. It is no longer satisfactory to “make do”.
The need for qualified interpreters in the legal system and, indeed, in many
other areas of daily life in our community, has been the subject of much
discussion within our community in recent times. The recognition of the
importance of employing skilled interpreters has led to a wider range of
interpreters becoming available and to those interpreters demonstrating
vastly improved skills in this very important undertaking.
The conduct of a cross-examination through an interpreter is not an easy
task even where the interpreter is highly skilled. The process allows the
witness a substantially greater time to consider and formulate answers
to questions without giving the appearance of prevarication. There is
also greater opportunity to ‘misunderstand’ questions or to provide nonresponsive answers than is the case where no interpreter is employed. The
escape routes for witnesses are greater when an interpreter is used than
when there is direct cross-examination.
To effectively cross-examine such a witness it is necessary for you to
carefully prepare. You will wish to limit the ability of the witness to use
the intervention of the interpreter as an aid to defeating or reducing the
effectiveness of your cross-examination. To this end you need to have a clear
plan for the cross-examination in mind prior to commencing that process.
Your questions should be formulated in such a way as to require of the
witness direct answers. It is desirable your questions themselves be short,
sharp, clear and direct. Each question should be limited to one simple point.
The language adopted should be plain and simple. Wherever possible the
form of the question should limit the witness to a concise response.
In the event that you cannot avoid asking a lengthy question containing a
number of propositions you should break the question up into manageable
The Little Red Book of Advocacy – Second Edition
49
components. Have the interpreter
translate each part as you
proceed. When the last part of
the question is put to the witness
you will be entitled to expect an
immediate response.
Be careful to ensure that the
interpreter interprets all that
is said by the witness even if
the witness is simply seeking
clarification of the question.
It is not for the interpreter to
clarify the question; that is your
role. If the answer provided by
the witness is non-responsive then you should return to the question. One
approach is to enquire whether the witness understands the question and,
when that has been established, invite the witness to answer the question.
If there is any doubt about the understanding of the witness then you will
rephrase the question, again using simple terms, and using a form of question
that requires a straightforward answer.
In the course of your cross-examination I recommend you closely watch the
witness at all times in order to pick up any information available through
the facial expressions or body language of the witness. The reactions of the
witness may suggest an understanding of the question which is not revealed
in the answer or a discomfort with a proposition being put which leads to a
non-responsive answer. If the reactions of the witness may not have been
obvious to the Tribunal, you may wish to build your observation into following
questions. For example, your next question may start: “You showed surprise
when I asked my question…” or “You looked to where the plaintiff is seated
when I asked my question…”
When asking questions and when listening to answers to questions the
focus of your attention should always be upon the witness and not upon
the interpreter. It is from the witness that you will obtain clues as to any
discomfort likely to be of use in the continued cross-examination.
If possible, it is desirable for you to have the assistance of your own interpreter
during the course of evidence in chief and cross-examination. The choice of
words used by the interpreter in both English and the language of the witness
may be subject to differences of opinion. The adoption of slightly different
expressions by the interpreter may lead to different meanings being attributed
to the evidence of the witness. In the absence of assistance you will have no cross
check as to whether the true sense of the question or answer is being conveyed
or, indeed, whether you would be better advised to rephrase your question.
If a witness is to be cross-examined through an interpreter, it is essential
you make appropriate allowance for that in your case preparation.
1.
50
Tuckiar v The King (1934) 52 CLR 33
The Little Red Book of Advocacy – Second Edition
Re-Examination – Part 1
“Re-examination—the putting Humpty Dumpty together again.”
Sir Frank Lockward 1
The decision whether or not to re-examine will often involve you in a very
delicate balancing act. In reaching your conclusion you will need to consider
the impact of the cross-examination in the context of your case strategy.
Even though there may have been damage to your witness in the course of
cross-examination, if that damage does not have a negative impact upon
your case strategy, you should not re-examine. If damage has occurred
then you will need to determine how serious that damage is and whether
it can be rectified. If the witness has been shown to be totally unreliable or
irretrievably mistaken then you may be better advised to walk away from the
wreckage. Any attempt to retrieve the position will highlight the deficiencies
and may worsen the situation. However, if it is possible to explain apparent
flaws in significant parts of the evidence of the witness revealed in crossexamination you may wish to embark upon re-examination.
The scope of re-examination is not as limited as is sometimes thought by
advocates appearing in the courts.
The learned authors of Cross on Evidence have this to say (Looseleaf edition
par17605):
The purpose of re-examination is not merely to remove ambiguities and
uncertainties, but is allowed wherever an answer in cross-examination would,
unless supplemented or explained, leave the court with an impression of the facts,
whether facts in issue or facts relating to credibility, which is capable of being
construed unfavourably to the party calling the witness and which represents a
distortion or incomplete account of the truth as the witness is able to present it.
In considering whether a topic can be addressed in re-examination it is
open to the court to look beyond the particular question and to consider
the information conveyed by the witness in the context of the whole of the
proceedings.
The purpose of re-examination is to avoid the prospect of misunderstanding,
misinterpretation or the giving of a wrong impression. It is also worthy of
note that, whilst re-examination is limited to matters arising out of the
cross-examination, new matters may be introduced into evidence with the
leave of the court. Whether or not to allow the introduction of fresh material
will be a matter within the discretion of the court. When such leave is given
it will be usual for the court to provide the other party with the opportunity
to cross-examine upon the new material.
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In determining whether to re-examine you should consider the importance of
any successful attack in cross-examination upon the credit of your witness.
If the credit of the witness has been shaken but only in relation to minor or
peripheral matters you may think it is better to leave re-examination alone.
Any attempt to shore up the credit of the witness in those peripheral areas is
likely to serve to highlight the issues you raise and to do so to the detriment
of the overall case.
However if there has been an unfair attack upon your witness in an area that
is important to your case then providing the witness with the opportunity to
explain can lead to a restoration of the credit and/or reliability of the witness
and, depending upon the circumstances, may lead to the evidence of the
witness being accorded heightened importance.
If you are able to demonstrate the attack was unfair, this may also have a
negative impact upon the case presented by your opponent. In such a case
re-examination can be a potent weapon.
Having determined the damage done to your case in cross-examination is
sufficiently important to call for a response you then need to consider whether
you have the necessary information to provide that response. Obviously it
would be unwise to endeavour to repair damage caused to your case without
knowing the basis upon which you can proceed to do so.
If you have no idea why the witness has said a certain thing it would be
imprudent to blindly pursue the matter. You would bear the substantial risk
that things will go from terrible to devastating. To re-examine by asking
questions to which you do not know the answer or, at the very least, do not
have a confident expectation of what the answer will be, is to undertake a
dangerous exercise.
I recommend a very cautious approach to re-examination. Generally
speaking the issue of whether to re-examine only arises in the course of
cross-examination and is difficult to anticipate. It is therefore unusual for
counsel to be adequately prepared for the eventuality. This necessitates the
making of your decision on short notice and in pressured circumstances.
A thorough knowledge of the case, an understanding of the nature of your
witness and a carefully developed case strategy will assist you to make the
hurried decision that circumstances will force upon you. However, if you are
in doubt then do not re-examine. In most cases it will not be possible to
successfully put Humpty Dumpty together again.
1.
52
Quoted in Advocacy in Practice: Glissan and Tilmouth, Australian Criminal Trial
Directions, at 6.500.
The Little Red Book of Advocacy – Second Edition
Re-Examination – Part 2
“...It is always probable that something improbable will happen.”
Logan E Bleckley
In determining whether to re-examine, there may be signals from the
witness that assist you.
If, in the course of giving evidence under cross-examination, the witness
indicates that he or she may wish to say more on a particular subject,
you should be able to determine from the context whether that will be of
assistance to you.
The message may not be as clear as a remark by the witness that he or she
wishes to explain. The witness may be cut off by cross-examining counsel
or that counsel may deftly leap into a pause in the answer asking another
question directing attention away from a sensitive topic.
You will need to be paying close attention to what is said by your witness
and the body language that can be observed in your witness when he or she
is being cross-examined.
You should always be alive to the prospect the witness may have more to offer
or may be seeking to explain something further. Having made the decision
to re-examine a witness it is then necessary to determine how and to what
extent you will do so. I have already observed that the decision you make is
likely to be taken in both hurried and pressured circumstances.
In determining what to ask, and how to ask it, you will need to call upon
the fruits of your detailed preparation for trial and the case strategy which
resulted from that process. It is by reference to your case strategy that you
will determine firstly if you need to re-examine and secondly what form the
re-examination will take.
When you embark upon your re-examination you will have in mind clearly
defined areas to be covered. You should have a clearly defined purpose. The
questions you ask should be carefully formulated in order to contain the
exercise to the desired areas and the fulfilment of the identified purpose.
In proceeding to re-examine you must bear in mind the nature of your
witness. Should your witness be a person who is hesitant or uncertain
or lacking in confidence you will not want that person to feel they have
somehow failed the test of cross-examination with a consequence that they
seek to overcompensate by giving you responses which are thought to be
helpful but which may be overly helpful and therefore of limited assistance.
You do not want the witness to be providing any convenient explanation that
occurs to him or her.
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53
It follows that in the questioning process you should not demonstrate by
word or demeanour any concern or displeasure with the evidence that has
fallen from the witness in the course of cross-examination. It is better to
approach re-examination in a low key and matter of fact way.
In re-examination you are not entitled to ask leading questions. However,
you are able to take the witness to the matter that requires elaboration,
explanation or qualification. You may do this by referring the witness to the
topic to be addressed and then, as best you are able, reminding him or her
of the answer given.
Such an approach helps to focus attention on the precise area with which you
wish to deal. For example, you may say to the witness: “My learned friend
asked you some questions about the argument between yourself and Mrs
Brown. In your answer you said Mrs Brown appeared nervous. Could you
explain what it was about Mrs Brown that led to that conclusion?’”
It is important you restate the question and answer as precisely as possible.
If you need to summarise a portion of the evidence then you should do so
with great care to ensure your summary is fair and not able to be objected
to by the cross-examiner. You do not want your witness to be distracted or
upset by a heated objection from your opponent where that can be avoided.
When you have identified to the witness the topic about which you wish to
ask further questions you should ensure you avoid leading questions. The
asking of a leading question, even if it is not objected to, will result in less
weight being attached to the answer in an area likely to be sensitive and
important to your case. If you do ask a leading question and it is objected to
the effect of the poor framing of the question by you may lead to the whole
re-examination exercise being rendered ineffective because the witness
simply adopts the thrust of your inept question. This is an area in which
great care must be taken.
In the Northern Territory there has been a developing trend for counsel to
seek an adjournment at the end of cross-examination in order to obtain
instructions in relation to matters raised in the course of cross-examination.
Such an adjournment will not always be given. Before seeking such an
adjournment you should consider what the impact of such an application
may be. Obviously the taking of an adjournment will further emphasise the
negative potency of any matter that is subsequently raised in re-examination.
It may serve to expose and highlight the concern you inwardly feel about the
evidence given. If you take an adjournment and then find the instructions
you obtain do not permit you to re-visit the topic and provide clarification
or explanation from the witness then that will obviously further serve
to emphasise the problem you have with the evidence. If you do obtain
instructions that permit you to re-visit the area, the fact you have had access
to the witness and the opportunity to raise with the witness the subject that
requires clarification or explanation may lead to the tribunal of fact being
less willing to accept or accord full value to any answer the witness may give
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to your questions. It is likely the tribunal will not regard the evidence as
being the free and untutored response of the witness.
It follows that you should only seek an adjournment to obtain instructions
prior to re-examination if you regard it as absolutely necessary to do so. In
your re-examination you should exercise care to ensure you do not venture
into areas where you already have satisfactory evidence from the witness.
Should you touch upon such an area you may find the witness feels the need
to further explain or to clarify some answer already given and in so doing
undermine the favourable impact of the evidence already obtained.
The asking of questions in re-examination therefore needs to be carefully
confined to the area of concern. You will achieve that by your preliminary
questions in which you identify the context of the questions you are going to
ask and in which you will seek explanation or clarification.
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The Unfavourable Witness
“That’s not a lie, it’s a terminological inexactitude.”
Alexander Haig
What do you do if, in the course of presenting evidence in chief, you are
confronted by a witness who does not give evidence in accordance with his
or her proof? Moreover what do you do if a witness does not make a genuine
attempt to recollect a set of facts? Sometimes that will occur because the
witness has had a change of mind or now recollects matters differently.
However in some cases it will occur because the witness is not making a
genuine attempt to give reliable evidence.
Section 38 of the Uniform Evidence Act deals with circumstances in which
a party may discredit his or her own witness. Under this provision, you can
seek leave to cross-examine as to:
1. unfavourable evidence given by the witness;
2. a matter of which the witness may reasonably be supposed to have
knowledge, and about which the witness appears not to be making a
genuine attempt to give evidence in examination in chief; or
3. whether a witness made a prior inconsistent statement.
This section also allows an advocate who is questioning a witness to apply
to cross-examine the witness on matters relevant only to the credibility of
the witness. It should be noted that these provisions create a much lower
threshold than the hostile witness provisions applicable under the former
Evidence Act.
An unfavourable witness can be a very dangerous witness for your case and
such a witness will have to be treated with extreme care. If the witness is
identified as being unfavourable prior to the commencement of the hearing,
you may wish to explore avenues to avoid calling that witness and subjecting
your client’s case to the danger posed by the witness. However, in some
cases you may determine you have no choice other than to call the witness,
for example, because it is only through that witness something can be
established.
Once you have determined that a witness can and should be found
unfavourable, you should give notice of your application at the earliest
opportunity. Although this is not required, a failure to do so is a factor the
court may take into account in considering your application.1 You would only
make such an application if you considered it necessary in order to properly
present the case for your client.
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If the matter is before a jury any such application should be made in the
absence of the jury. If you are granted leave, your cross-examination of
the unfavourable witness would usually occur straight after the evidence in
chief, unless the court orders otherwise.
Leave to cross-examine will usually not be granted if the application is made
after cross-examination, especially where an advocate could have predicted
the unfavourable evidence by observing the witness’s evidence in chief.2 If
unfavourable evidence which could not have been predicted comes to light
during the course of cross-examination, the court will consider the extent to
which granting leave would be unfair to a party or a witness.3 Leave will usually
be granted where the unfavourable evidence could not have been predicted.4
If the witness does not admit he or she has made a prior inconsistent
statement, you are unable to adduce evidence of the statement other than
from the witness unless, in cross-examination, you have:
•
informed the witness of enough of the circumstances surrounding
the making of the statement to enable the witness to identify the
statement; and
•
drawn the witness’s attention to the parts of the statement that are
inconsistent with the witness’s testimony.5
This provision does not preclude you from adducing evidence of a prior
inconsistent statement in circumstances where the witness admits to making
the statement.6
If the witness denies having made a prior inconsistent statement, and you
have complied with the above requirements, then it will be necessary for
you to prove the statement. In those circumstances you should ask that the
witness be stood down whilst you call such evidence as is available to you in
order to prove the making of the prior inconsistent statement.
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If the witness adopts the statement but provides a credible explanation as
to why it was made (e.g. ”I was forced to make the statement” or ”I was
misled” etc.) and the witness maintains the evidence now being given before
the court is the truth, then you will need to consider whether your application
is worthy of pursuit.
It should be noted there is no prohibition at common law or under the
Uniform Evidence Act on the calling of evidence from subsequent witnesses
that contradicts the testimony given by an earlier witness for the party. This
will occur in many cases where witnesses have different recollections of the
order of events or the precise nature of what occurred. To do so is not to
discredit the earlier witness in the relevant sense.7
1.
R v Ashton [2003] TASSC 140 at [27]; Randall v The Queen [2004] TASSC 42 at [27].
2.
R v Mansour [1996] NSWSC (19 November 1996) (Levine J).
3.
Uniform Evidence Act, s 192.
4.
R v Pantoja (No 1) [1996] NSWSC (30 October 1996).
5.
Uniform Evidence Act, s 43(2).
6.
Aslett v The Queen [2006] NSWCCA 49 (Barr J, with Spigelman CJ and Howie J agreeing).
7.
R v M (1980) 2 NSWLR 195 at 210.
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The Child Witness
“Children are works in progress—they continue
to be works in progress even up to the age of seventeen
and eighteen.”
Dr Anne Graffam Walker
Fortunately for most of us, the need to lead evidence from a child or to
undertake the cross-examination of a child is not a common experience.
However, the need does arise on occasion. When that occurs special care is
required in preparing for the evidence of the child witness and in dealing
with the witness in the courtroom.
The approach you take to a child witness will vary depending upon the
nature of the case and, importantly, upon the age and maturity of the
child. Obviously a child of 13 or 14 years of age will require quite different
considerations from a child who is seven or eight years old. The younger the
child the greater the need for care.
It is important to bear in mind the differences between children and adults.
Depending upon the child, he or she may have an inadequate grasp of numbers
and time. If there is a course of conduct over a period of time there may be a
problem with establishing the correct sequence of events. The witness may
have a different or unusual view of what is important when giving evidence.
He or she may employ unusual descriptions of objects or everyday matters.
The use of language will be different.
If you are to lead evidence from a child there is an obligation upon you to
do all you can to ensure the evidence of the child is given in as clear and
forthright a manner as possible. You will need to take steps to ensure the
child is not overwhelmed by the circumstance of giving evidence.
This will involve doing your best to explain, at a level the child can understand,
what is to occur in the courtroom, who each of the players are, the importance
of telling the truth and, in general terms, letting the child know what is
expected of him or her. Remember the child is likely to be in a room full
of adults who are strangers or, at least, in the unusual circumstances of a
vulnerable witness. You should endeavour to ensure the child is comfortable
with you as the advocate and that you have an understanding of each other
and, if it is possible, a rapport with each other. You will need to spend time
with the child.
It is important to remember you are dealing with a child whose level of
experience and level of understanding is likely to be quite different from that
of yourself and all other persons in the courtroom. Indeed the younger the
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child the greater is likely to be the gulf between the position of the child and
the position of other persons in the courtroom.
Whether you are leading evidence from a child or cross-examining a child
you should be conscious of the need to formulate your questions in language
that can be readily understood by the child. It is preferable that each of your
questions deals with one issue and the question be phrased in simple terms
using ordinary words which a child of that age can readily understand. It is
necessary to choose your language carefully and to avoid convoluted questions.
When dealing with a child witness it is necessary to take special care to avoid
being at cross-purposes with the child. It is easy for confusion to arise and
for misunderstandings to occur. Dr Anne Graffam Walker gives an example
of a young child at a childcare centre complaining that a person had been
“touching my privates”. Subsequently the “privates” turned out to be toy
soldiers. You should listen carefully to the answers provided by the child
witness to ensure misunderstandings are avoided.
In cross-examining a child you should, in almost all cases, avoid direct
confrontation. You should certainly avoid expressions of anger or
exasperation and any conduct of your own which may lead the tribunal of
fact to be concerned that you are in some way unnecessarily pressuring or
intimidating the witness. Conduct that would normally be quite acceptable
in relation to an adult witness may have a quite different impact with a
child witness. A cross-examination that causes unnecessary distress to a
child witness, especially a young child witness, is likely to be an ineffective
cross-examination. Indeed it is likely to have adverse consequences for your
case. You should be patient with the witness. There is no reason why you
should not be firm with the witness but that firmness should be reflected in
questions which require an answer without a situation of open confrontation
between counsel and the witness arising.
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In cross-examination it is important to ensure the child and you understand
each other. It is of no use to you to conduct what you regard as an effective
cross-examination only to have the child explain in re-examination that he
or she understood a word used by you in a quite different sense from that
which one would expect. If there is any doubt as to the child understanding
what is being put or as to the meaning the child is seeking to convey in his
or her answers, you should explore the matter further to avoid that doubt.
Often with young witnesses there is a concern on the part of the crossexaminer that the child has been coached by an adult in preparing for the
giving of evidence. It is most unlikely any legal practitioner would undertake
such an exercise. However parents or guardians or adult friends may do so.
If you are counsel who is to lead evidence from a child witness you should
take very great care to ensure you do not influence the child in any way that
will lead the child to express him or herself in a way which misrepresents
the impact of their evidence. You should endeavour to ensure no-one else
influences the child in such a way.
Cross-examining counsel may wish to explore with the child witness the
issue of the influence of others. In many cases ideas are planted by trusted
adults. Those ideas may be deliberately planted in order to obtain some
advantage. In other cases the adult may plant the ideas without consciously
intending to do so or in the belief that something ‘must have’ happened
and in an endeavour to ensure the ‘truth’ emerges. An exploration of the
discussions a child witness has had with others may prove a fruitful source
of challenge to the reliability of the witness.
Dealing with child witnesses requires a great deal of sensitivity and care. It
is important to remember that children fall within a special class of witness
and need to be treated accordingly.
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The Aboriginal Witness – Part 1
“A client or a witness who is misunderstood through
no fault of theirs is ill-served by the legal system.”
Frank Brennan SJ AO
Aboriginal people constitute a significant part of the population of the
Northern Territory. Many Aboriginal people have English as a second or
third language. Often the English they speak is different from that spoken
by other speakers of English in Australia. They are also likely to have ties to,
and be affected by, their own cultures and traditions. Special difficulties and
special considerations apply to such people when they become involved in
litigation. It follows that careful preparation is needed for the presentation
of, or challenge to, the evidence of such a person in proceedings before a
court or tribunal. The advocate needs to be aware of linguistic and cultural
differences and accommodate them in the preparation for, and presentation
of, the case.
Mildren J formerly of the Supreme Court of the Northern Territory has
written on this topic in recent times. I commend to you his paper entitled:
Redressing the Imbalance Against Aboriginals in the Criminal Justice System.1
What follows includes reference to issues addressed in the work of Dr Diana
Eades,2 the paper of Mildren J and to the sources referred to therein.
There is a wide range of issues which impact upon Aboriginal people when
they find themselves involved in proceedings before courts and tribunals.
For present purposes I am concerned only with the narrower field of the
presentation of the evidence of Aboriginal witnesses and any challenge that
may be made to such evidence.
Obviously there are many matters which are likely to be relevant to your
preparation for a case involving Aboriginal witnesses. This will be so whether
you are to lead evidence from an Aboriginal witness or cross-examine such a
witness or perform both functions in the course of a hearing.
Whilst each witness will be different from the next there are some factors
that commonly occur in relation to Aboriginal witnesses. It follows that
these are matters of which you will need to be aware and in relation to which
appropriate consideration will need to be given to enable you to effectively
carry out your function as an advocate.
In the course of your preparation, the first matter for consideration will be
whether you require the services of an interpreter. Obviously this must be
considered at an early time. You should be aware that obtaining an appropriate
interpreter may not be an easy task. There are numerous Aboriginal languages
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in the Northern Territory and the availability of competent interpreters in
many of those languages cannot be assumed.
Even when an appropriately qualified interpreter is available difficulties may
arise. The kinship relationship between the interpreter and the witness may
inhibit or otherwise impact upon the answers given. The gender of the witness
and the interpreter may be significant. A wide variety of other cultural factors
may arise.
It is always desirable for an advocate to meet with a witness prior to the
hearing to allow the witness to become comfortable with the advocate and
also to allow the advocate to fully explain what is to occur.
It is not hard to imagine the impact of a judge and counsel in wig and gown,
in a room dominated by non-Aboriginal faces, upon a person who has not
previously been exposed to our system.
Add to that the unfamiliar and ritualistic procedures that take place in our
courts and tribunals along with the use of time-honoured, but for most
people quite unusual language (“may it please your Honour”), and the whole
experience may be quite overwhelming.
The more you are able to assist the witness to feel comfortable with the
process and to have an understanding of what is to occur, the greater the
prospect of an effective presentation of the evidence.
It is also desirable to spend time with the witness in the process of obtaining
instructions. Such witnesses are often shy and lacking in confidence in the
unusual circumstances and surroundings which confront them. It may take
some time and more than one conference before you can be assured you have
the complete information the witness is able to provide and that the witness
has an understanding of what is to occur.
In leading evidence and in cross-examining you will need to be conscious of
the language used by the witness. Ordinary English words may be used by
Aboriginal English speakers in a way which is different from what may be
described as standard English.
Further it is unwise to assume a particular Aboriginal English speaking
pattern will be applicable to any particular witness. The witnesses will come
from a wide range of backgrounds with differing levels of education, skills
with the English language, understanding of the processes involved and
acceptance of those processes.
Clearly each witness must be individually assessed. The earlier this assessment
takes place and the more thorough it is the greater is the likelihood you will
be able to anticipate difficulties and plan a way around them.
Dr Eades points out that you should not assume an Aboriginal witness is
speaking standard English. The answers “I don’t know” and “I don’t
remember” may mean what they convey or they may be a statement about
the inappropriateness of the question.
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There are many examples of how the different use of language may lead to
confusion and possibly serious error.
John Coldrey (previously Coldrey J of the Supreme Court of Victoria) gave an
example of difficulties that may arise by reference to a record of interview 3.
I set out the passage:
Policeman:
Did you want to kill Lillian?
Kennedy:
Yeah.
Policeman:
You wanted to kill her. Did you want to kill her properly or kill her a little bit?
Kennedy:
Little bit.
Policeman:
A little bit?
Kennedy:
Yeah.
Policeman:
Where did you want to kill her?
Kennedy:
Leg, leg.
Policeman: In the leg, you wanted to kill her in the leg?
Kennedy:
Yeah.
Here the expression “to kill” is used synonymously with the verb “to hit”.
This policeman, knowing that to be the case, is able to accommodate it and
fairly represent the intent of the accused person.
Had the policeman asked only the first question the true meaning of
the exchange would have been lost, possibly with significant adverse
consequences for the accused.
When the witness gives evidence it is obviously important to ensure you
pay careful attention to what is being said and that you be alert to prevent
misunderstanding from arising or continuing.
You should be alive to the prospect that an incorrect meaning or some
ambiguity may arise from the choice of words adopted either in your question
or in the answer received.
1.
Published in Foreign Linguistics; The International Journal of Speech, Language and the Law Vol 6
No.1, 1999. Another version of the paper is to be found in the Criminal Law Journal (1997) Vol
21 at p7. Both copies are available in the Supreme Court Library.
2.
Dr Eades: Aboriginal English and the Law (1992), Queensland Law Society Inc.
3.
Coldrey J (1987) Aboriginals and the Criminal Courts. In K. Hazelhurst (Ed.): Ivory Scales:
Black Australia and the Law, NSW University Press
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The Aboriginal Witness – Part 2
“Many…Aboriginal people are not biculturally competent and
as with many of the non-Aboriginal people involved, they may
not be aware of…important communication difficulties.”
Dr Diana Eades
Some areas in which problems may arise in relation to language and
communication include: the misuse of gender for pronouns; attributing
gender to inanimate objects; the omission of plural inflexions from nouns;
confusion as to tense; and imprecision, inconsistency and inaccuracy as
to distances, numbers and time.1 For example, Aboriginal witnesses are
unlikely to refer to specific numbers of people; they are more likely to refer
to a “mob” or a “big mob” or, alternatively, to list the persons present. They
are unlikely to be precise as to distances but rather refer to a “long way” or
a “little bit long way” or some other imprecise expression.
Similarly with time, the expression a “long time” may mean minutes,
months or years. It is necessary to devise mechanisms to deal with these
problems. Numbers may be established by having the witness identify the
people present. Distances may be obtained by reference to concrete examples
in the court room. Time may be established by reference to some other event,
the time of which is known. You may need to be inventive and resourceful in
order to obtain reliable information.
In addition it is important to be aware that, on occasions, communication by
the witness may be more physical than verbal, e.g. by use of small movements
of the eyes, the lips or the head. These movements may be easy to miss.
Other matters of which you should be aware include the prospect that the
witness will avoid direct eye contact—not because he or she is not being
frank, as may be the case with some witnesses, but rather because it may be
considered rude for eye contact to occur.
There may be lengthy periods of silence or a refusal to answer some questions.
There may be many reasons for this other than deliberate evasion. It may not
be possible to determine why the witness has declined to answer questions
and you will need to be in a position, so far as is possible, to anticipate areas
which may give rise to this “retreat into silence”.
You should also have strategies in place to deal with the situation if it should
arise. This may involve leaving the topic and returning to it at a later time.
If the reason for the silence is a cultural matter you may need to explore this
outside the court room and then, when you are better informed, deal with
it in a culturally sensitive way. Dr Diana Eades points out that “silence and
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waiting till people are ready to give information are also central to Aboriginal
ways of seeking any substantial information.” 1
A very important skill to develop, and this particularly applies to crossexamination, is the use of non-leading questions. In advocacy courses
and advocacy texts the desirability of asking only leading questions in
cross-examination is emphasised. However in my opinion quite different
considerations apply with many Aboriginal witnesses.
In many instances the seeking of information by the use of direct questions
will be regarded by an Aboriginal witness as quite inappropriate.
Further, the asking of a leading question is likely to be met with what has
been termed “gratuitous concurrence”. The Aboriginal witness may respond
to the leading question in a way the witness believes the questioner wants.
That generally means giving assent to the proposition put by the questioner.
Dr Eades makes the following observations in relation to gratuitous
concurrence:
Aboriginal speakers of English and traditional languages often agree with
whatever is being asked, thinking that they will get out of trouble more quickly.
The agreement is made regardless of either an understanding of the question or a
belief about the truth or falsity of the proposition being questioned. Thus, it does
not necessarily mean that the Aboriginal person agreed with the proposition.
This pattern of agreement, known as ‘gratuitous concurrence’ is particularly
common where a considerable number of ‘yes-no’ questions are being asked,
the situation with both police and courtroom questioning.
Whatever may be the reason for the response the situation is that gratuitous
concurrence is a recurring problem in relation to the evidence of Aboriginal
witnesses.
Whilst superficially concurrence may suit your client’s case, in the end result
it will not. The weight to be attached to such responses will be either nil or
negligible. Indeed it is possible the court will interfere if questions are put to
Aboriginal witnesses in a way which leads to gratuitous concurrence. This is
because such evidence will have no probative value and be of no assistance
to the court. If the questions are allowed the advocate may anticipate that
the jury will be informed that the answers are unhelpful and why. If there is
no jury present the court or tribunal may choose to ignore the answers on
the same basis.
A more skilful cross-examination will employ concise non-leading questions,
simple in form and containing only one idea. Questions should not be lengthy,
convoluted or grammatically complex. For example, they should not include
double negatives or put a series of alternatives. They should avoid using
legal or other formal language. This is not an easy approach for the advocate
to master and, of course, will often run counter to the advice contained in
text books on advocacy and delivered in advocacy workshops. However in
many cases it may be the only effective way to challenge the evidence of an
Aboriginal witness.
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None of this prevents an Aboriginal witness being challenged and challenged
vigorously. What it ensures is the product of the exercise has value and can
be used with force in the final presentation of the case at the time of the
closing address.
Whether you are to lead the evidence of an Aboriginal witness or to crossexamine that person there are many factors to consider in your preparation.
Difficulties with language abound. Cultural influences may be important.
The effective advocate will endeavour to ensure that he or she is as informed
as possible in order to identify the problem areas and to create strategies to
avoid them.
1.
Dr Eades: Aboriginal English and the Law (1992), Queensland Law Society Inc.
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Objections to Evidence
“I’m not indecisive. Am I indecisive?”
Jim Scheibel
The making of an objection to evidence may call for a difficult exercise
of judgment. The question “do I?” or “don’t I?” must be answered in an
instant. Failure to object quickly is to allow the objectionable material to
be aired and often to make any objection redundant. On the other hand an
objection made quickly and without thought for the consequences, even if
successful, may lead to an unnecessary emphasis upon the information to
which objection is taken. It must be remembered that the information may
come before the court in other ways e.g. by the rephrasing of a badly framed
question or through another witness. The fact that objection was taken may
indicate to the court a special sensitivity on your part to the disclosure of the
information and serve to highlight it.
The prospect that an objection may be tactically unsound will be greater
when the tribunal of fact is a jury rather than a judge. Whilst a judge is
trained to ignore or put to one side information that comes before the court
in an inadmissible form, it is not hard to envisage members of a jury having
difficulty in doing the same. Similarly, a judge can be expected not to speculate
as to why counsel may have been concerned to exclude inadmissible material
but counsel may have a greater concern when a jury is involved.
How a jury may react is not so predictable. Where counsel has made vigorous
objection to the introduction of some evidence the jury may wonder why. If
the objection is successful the jury may be concerned that the advocate was
seeking to keep from them information relevant to the decision that has to
be made. Whilst the judge will give the jury directions as to what may and
may not be considered, there will be a concern the jury will be left wondering
what was so important that led to the objection being made. It may be that
the speculation of the jury will be even more adverse for your client than the
information excluded. There will be no way of knowing what, if any, impact
the objection had.
It follows from the above that, in considering whether to object, it is necessary
for counsel to make a quick decision and, where that decision is to object, to
do so immediately.
One source of guidance in the making of the appropriate decision will come
from reference to the case strategy developed in your preparation. As I have
observed on many occasions, all decisions relating to your conduct of the
case should be guided by your case strategy. By reference to the case strategy
an immediate and informed assessment can be made as to the importance
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of the material to which objection is taken. If you are confident the answer
to an objectionable question will not provide information inconsistent
with your case strategy, or that a witness straying into irrelevant material
in a non-responsive answer to a question will not impact upon your case
strategy, then you may prefer to let the matter go. If you are concerned there
is no immediate problem but there may be an ongoing danger, then it may
be preferable to allow the information to be provided by the witness and for
you to then point out to the court that the question was objectionable or the
information provided was irrelevant. You may then ask that your opponent
not repeat the error or that he or she maintains control of the witness in
future. In this way you make your point without being seen to be anxious to
keep information from the jury. If further objection is called for the jury will
be more likely to understand and accept the basis for it.
However, if you are concerned the information emerging is inconsistent
with, or undermining of, your case strategy then you will quickly and firmly
object. It may be necessary for you to interrupt or, indeed, talk over the
witness to ensure the objectionable material is not introduced before you
have a chance to record and explain the objection. Of course, in many cases
the position will be less than clear and the decision whether or not to object
will be based upon your instincts rather than any fully considered assessment
of the situation. You may be quite unsure whether or not the information
called for will be inconsistent with your case strategy. A difficult exercise of
judgment on your part will be called for.
The nature of the evidence likely to be lead and what may be necessary
to exclude is something you will address in your preparation. The prospect
that the other party may wish to introduce material that is inadmissible
is something to be considered at that time. You may be able to reduce the
stress of having to make some decisions on the run by careful preparation.
Unfortunately, it is unlikely you will be able to anticipate all, or even most,
of the matters for objection which will emerge in a trial and you will be called
upon to make important decisions as to whether to object to evidence in less
than ideal circumstances.
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Unnecessary Objections
to Evidence
“I often regretted my speech, never my silence.”
Anonymous
In the course of a trial it is important you do not take unnecessary objections.
Counsel who persists in making unnecessary objections will test the patience
of the court. If a jury is present you may alienate the people you most want to
keep on side. It is likely that all present in court would rather “‘get on with
it” than deal with interminable objections to matters which, ultimately, may
be of little or no moment in the proceedings.
I have previously discussed the desirability of counsel developing a
relationship with the jury in which the jury felt trust in the advocate. I noted
it would be unhelpful to your client’s cause if the jury felt antagonistic or
distrustful towards you for whatever reason. With the making of frequent
objections, and with the consequent interruptions to the flow of evidence,
you are unlikely to enhance your relationship with the jury. If it be the case
that your objections are regularly overruled, or upheld, but with an air of
frustration by the bench, you are likely to find your relationship with the jury
deteriorating. You run the risk that the jury will regard you as deliberately
disruptive and, through you, your client may be seen as not willing to allow
the full story to be told.
In any defended case you will see many examples of objectionable questions
being allowed to pass without comment. In most cases the counsel leading
the witness in his or her evidence in chief will, for a time, be allowed to
lead the evidence by asking leading questions without objection. That will
continue until a sensitive area is reached, at which time counsel will be
expected to ask properly formulated questions and, if the witness tends to
give non-responsive answers, to better control the witness.
In my view it is prudent to object only when necessary. This may be when
your opponent continually offends against the rules of evidence or when an
objectionable question is asked, the answer to which is likely to be damaging
to your case. The advice of Glissan & Tilmouth1 is that you should “object
only when you have something to gain by objecting and then only when you
are confident you can make the objection good.” In determining whether you
have “something to gain” it is necessary to stand back from the immediate
question and the potential answer and make your decision in the context of
the whole of the case. It is not enough that the gain you may obtain is an
immediate and small victory but, rather, you need to determine whether you
have something to gain when looking at the case as a whole. You must keep
your eye on the big picture.
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If it becomes necessary to make an objection you should tailor the objection to
suit the circumstances. If the matter is proceeding before a judge alone then
an objection to the effect: “I object as the question invites a hearsay answer”
may be sufficient. If you are before a jury it may be preferable to build a
short explanation into the objection, designed to indicate you are reluctant
to object and only do so because your opponent is not obeying the rules. For
example you may object by saying: “As my learned friend is perfectly aware
the question asked is quite inappropriate. It invites a speculative response
which this witness is not able to give”.
Not all objections will create the perception you are trying to keep
something from the court; some objections are designed to assist and ensure
misunderstandings do not occur. The observations I have made as to the
dangers of objecting would not apply to objections to questions that are
unintelligible, compound questions (i.e. asking two questions in the form of
one), questions that are too general or which call for the witness to speculate
or provide an opinion. Objections to such questions are less likely to cause
you harm and, if you are correct, may avoid problems in the evidence. In
relation to such questions it is still necessary to ensure you are not seen to
be unduly interfering and you should limit your objections to those instances
in which it is really necessary.
In the event you are the counsel leading evidence from a witness and your
opponent makes an objection it is necessary to consider how you respond to
that objection. In determining your response you should bear in mind the
impact the objection may have on your witness and whether a heated debate
as to the efficacy of the objection or the quality of the question will put the
witness off his or her stride. Whilst it may be satisfying to you to defend
your question or to point out your opponent is wrong or has misunderstood
the position, it may be better from the point of view of the witness and the
overall presentation of your case, to simply rephrase the question. You may
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do so with the observation that: “Whilst I do not accept the objection is valid
I will put the matter in another way.” You will have made your point and
unproductive debate will have been avoided.
Where the objection by your opponent is to admissibility or relevance rather
than simply the form of your question you will need to determine whether the
objection is sound and, if it is not, whether it is a matter worth pursuing. You
will do this by reference to your case strategy. There is little point engaging
in lengthy debate regarding matters that are not necessary to the proper
presentation of your case in accordance with your case strategy. To enter
upon such a debate is to distract you from the presentation of your case and
to emphasise issues that may distract the court from your true argument. An
assessment needs to be made as to whether you move on or stand and fight.
1.
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Glissan & Tilmouth: Advocacy In Practice, Butterworths 1998
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Exhibits
“Exhibits have the aura of ‘real’ evidence. It is often said
of them in court that they never lie or exaggerate.”
J H Phillips CJ
As part of your pre-case preparation and the development of your case
strategy you will have to consider what exhibits are to be introduced into
evidence and the effective use of those exhibits. At that time you should also
consider the related topic of the use of visual aids
In relation to exhibits it will be necessary for you to identify those exhibits
that you must introduce into evidence and those in relation to which you
have a choice. In relation to some exhibits there will be no choice, they will
be essential to the proper presentation of your case.
In other instances the position will not be so clear. In those cases the degree
of relevance and the likely nature of the impact of the exhibit will usually be
the determining factors. Most relevant exhibits will have some impact upon
the tribunal. They are items which can be expected to become a focus of
attention. They will give meaning to the oral evidence and, generally speaking,
will enliven that evidence. Some exhibits will have an enormous impact upon
the tribunal because of what they are. It is not hard to appreciate that the
production of a dangerous looking knife, a gun or some other weapon will
have a significant impact in a criminal or civil assault trial. Such an exhibit
can be used to great effect.
On the other hand the introduction of exhibits that are of marginal relevance
or of limited impact may be counterproductive because they unnecessarily
increase the clutter of materials available to the tribunal. In some cases the
introduction of unnecessary exhibits may serve to distract the tribunal from
focusing upon the issues you have identified in your preparation as essential
to your case. Such exhibits may provide your opponent with an opportunity
that would not otherwise be available.
Having identified an exhibit you propose to introduce into evidence, you
should next consider through whom the exhibit is to be introduced and at
what point in the case that is to occur. In determining through whom the
exhibit is to be introduced, you will need to consider the nature of the exhibit
and the characteristics of your witnesses.
In many instances the exhibit will only be able to be introduced through
one witness. However, an exhibit that speaks for itself often may be
introduced through any witness and therefore at any time in the course of
the proceedings.
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An exhibit that requires explanation may have to be introduced through the
witness who is best able to carry out that task and the time at which you
introduce the exhibit will therefore be governed by the time at which that
witness is to be called.
The desirable timing for the introduction of an important exhibit may impact
upon the order in which you decide to present your case. The desire to
introduce an exhibit at a certain point in the case may lead to you re-assessing
and altering the order in which witnesses are to be called. As to the timing of
the introduction of the exhibit to the tribunal, it should be remembered that
you are not restricted to production during evidence in chief.
You may wish to first produce the exhibit to the tribunal in the course of
your opening on the basis that a subsequent witness will introduce it into
evidence. As an alternative, you may wish to save the production of the
exhibit for the cross-examination of a witness who you know must be called.
Heightened interest in the exhibit may be achieved by allowing it to be referred
to on a number of occasions before it is finally produced. You may wish to
leave it casually lying on the Bar table. You may wish to inspect it whilst your
opponent is addressing some other issue. You may wish to produce it from an
opaque bag or from below the bar table for maximum effect.
On the other hand you may wish to have the exhibit in evidence from an early
time in the trial to enable the tribunal to fully appreciate the evidence to which
it is relevant. Your approach will vary depending upon the nature of the exhibit
and the manner in which you wish to introduce the exhibit into evidence.
Once the exhibit has been admitted into evidence you will need to consider
whether it should then be shown to the jury. If it is a high impact exhibit you
may wish to ask the trial Judge to have it shown to, or circulated amongst,
the members of the jury immediately. Proceedings will stop whilst that
occurs, serving the purpose of focusing attention on the exhibit and adding
to the importance of the moment.
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If the exhibit is a document, you may wish to emphasise the importance of
the relevant passages by having the witness read them to the tribunal. You
will only do this if the passage to be read is short. The reading of a lengthy
passage is likely to mean you lose the interest of the tribunal.
If it is absolutely necessary for a lengthy passage to be read you should
provide copies to members of the jury or to the tribunal so that others may
follow the text for themselves. Special care needs to be taken in tendering
a bundle of documents or a file of documents to ensure the information
contained in any peripheral document is not adverse to your client.
You should carefully read the whole of the information contained in all of
the documents to be included in the tender before completing the tender.
An example of a situation where special care needs to be taken is in the
tendering of a hospital file, which is likely to include a substantial amount of
information regarding your client and much of that information is likely to
be in handwriting that is only decipherable with assistance.
The introduction of an exhibit need not be a simple mechanical process
devoid of impact. Whilst there will be some exhibits that must be introduced
in that way, it is necessary to consider each exhibit to ascertain the potential
it may have to further enhance your case by the manner and timing of it
being introduced into evidence.
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Visual Aids
“Reason is founded on the evidence of our senses.”
Percy Bysshe Shelley
The extent to which visual aids can be used in a case will depend upon the
nature of the case. In complex or factually convoluted matters or where the
testimony of witnesses involves concepts not part of the common experience
of the tribunal (especially if the tribunal is a jury), visual aids can become a
vital part of your presentation.
The range of visual aids available is limited only by the imaginations of
counsel and the witness. There are many forms of such aids used regularly
in the courts, including charts, flow charts, diagrammatic representations,
photographs, enlargements of extracts from written materials such as
legislation or contracts, models (e.g. of buildings, sites, machines and other
items or structures), plans or maps and computer generated graphics.
Those aids can be directed towards a variety of purposes. They may be
designed to: assist the tribunal to understand the order of events; appreciate
the physical location in which events occurred; assist in explaining the
relationship between one fact or set of facts and another; trace the path of
some evidence (e.g. a chain of custody situation); or enable an expert to better
explain some complicated concept.
Care should be taken in choosing the visual aid employed to assist you or
your witness in the presentation of the case. As technology develops more
and more options will become available. You should be careful to ensure
you are not unduly influenced by the wizardry of the available techniques.
It will be counterproductive to have the court or the members of the jury
marvelling at the techniques employed and yet totally missing the message
that is sought to be conveyed. Further, it is necessary to remember that
some forms of electronic presentation may not leave any hard copy for the
jury or the tribunal to consider quietly at a later time. Some presentations by
PowerPoint and some forms of computer generated reconstruction may be
better left alone if their product is not readily accessible to the tribunal when
it retires to consider the outcome of the proceedings.
One of the most useful aids in a civil proceeding involving convoluted factual
circumstances is the simple chronology. In most instances the development
of a chronology is important for the proper preparation for the presentation of
your case and it is easily converted to provide a reliable aid to the tribunal. It can
also be updated as the trial proceeds by the inclusion of transcript references
and references to exhibits for use in your final address. In my experience,
chronologies are extremely useful and yet are surprisingly underutilised.
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Whatever visual aid is adopted, it is essential it fairly represent the evidence
that is or will be before the tribunal. If it does not it is likely to be met by
an objection and, in any event, will not help the tribunal. If an evidentiary
matter necessary to support the visual aid has not been established or has
been misunderstood by the advocate the aid will be of limited assistance to
the case and may serve to highlight a flaw in the case. In those circumstances
it will be counter-productive.
Having determined you will use a visual aid and having identified that aid, it
will be necessary for you to consider some tactical matters.
Is the aid to be introduced at the time of your opening, in the course of
evidence or is it to be first used in final address? If it is to be used in the
opening or in the course of evidence you will have to consider whether
there can be any objection to it and to devise a response to any anticipated
objection. If it is to be used for the first time in your final address you should
ensure the visual aid is entirely consistent with the evidence that has in fact
been given and that you can point to the source of the information which the
visual aid seeks to portray or reflect.
It is important to remember the purpose of such an aid is to complement
and supplement the oral testimony. It is to, simplify, clarify and enliven
information that may otherwise be difficult to explain or convey. It is
certainly not to detract from that testimony or to complicate or confuse what
the witness has said. You must be careful not to overdo the use of visual aids.
This will lead to confusion.
Careful consideration needs to be given to the nature of visual aids used in
a case and the methods by which, and the times at which, they are to be
introduced to the tribunal. It is necessary to keep firmly in mind that visual
aids, and the technology that may constitute the visual aid, are simply tools
available to you to better present the case of your client.
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The Conduct of Counsel
“To get the sympathy of the Tribunal for himself ought always
to be one of the first objects of the advocate.”
Richard Burdon Haldane
The courts in the Northern Territory are fortunate in that examples of
misconduct by counsel are rare. Other jurisdictions have not been so
fortunate. Examples of offensive and incompetent conduct by counsel are
to be found in the law reports and are the subject of robing room discussion
throughout the nation.
There are some people who are simply not suited to the role of an advocate
before any tribunal. By their conduct, their discourtesy and their inappropriate
professional standards they do harm to the system and, more often than not,
to their clients.
An unfortunate example of inappropriate behaviour by counsel is to be found
in the law reports of recent times. In the case of McIntyre [2000] 111 A Crim R
211, an appeal was allowed because of the conduct of defence counsel.
The report of the case makes for interesting if disturbing reading. A feeling
for the attitude of counsel is to be found in the following passages from the
report.
Counsel: I am instructed by my client that he feels in no way could
he receive a fair trial from you, because he feels strongly that
you are totally prejudiced and biased against him, and all of
your attitude to everything that took place yesterday. I must say
in honesty and fairness, I suppose under the credo of veritas vos
liberut (?) that I agree with my client.
My friend here thinks this is a big bloody joke, I know, everybody
here thinks it’s a joke, and I appreciate that both you and my
friend are anxious for a conviction—
His Honour:
Well I don’t think it’s a—
Counsel:
—at any cost—let me finish. I am sick of this farce of a trial.
I’ve had nothing but opposition from you and Mr Crown, and it
seems to me, I’ve mentioned it before, you are incompetent to
have heard this trial because of your open obvious prejudice and
bias against my client, and now me personally, and in favour of
the Crown...
There were many more examples of the misconduct of counsel to be found
in the report. At one point in the course of the hearing counsel sought an
adjournment for medical reasons. The trial judge required “a comprehensive
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letter from your doctor saying that you are not available on Tuesday and
why.” No doubt this requirement followed logically upon the conduct of
counsel at an earlier time in the hearing. On the Tuesday counsel attended
and said to the court:
I was not sure how I would feel today, but you ordered me in, in lieu of a
medical certificate which I wouldn’t give you for all the tea in China. Most of
my colleagues in Chambers when I told them about your request for a medical
certificate couldn’t stop from laughing and thought it was absolutely astounding
and obnoxious, as I do and did at the time.
The rudeness of counsel was not limited to the judge alone. His remarks
were also directed to the crown prosecutor and to various witnesses who
appeared to give evidence.
In allowing the appeal Hulme J (with whom Sully and Hidden JJ agreed)
observed that the conduct of counsel could be described as “gratuitous
rudeness to witnesses, to counsel appearing for the Crown and to the judge,
and the expression of personal views.”
His Honour went on to say:
In many of its aspects the conduct was repeated numerous times throughout
the trial. It is by a factor of very many, worse than anything I have experienced
or heard about in my career. Had I not read a transcript of it, I would not have
believed it possible that it would have occurred. In a word, it was appalling.
In allowing the appeal based upon the impropriety of the conduct of counsel
the court noted there was nothing in the case that suggested the appellant
himself was a participant in the activities of his counsel.
Although a party is generally bound by the way in which counsel conducts the
case, the circumstances in that case were such as to give rise to a miscarriage
of justice. The appeal was allowed because of the conduct of counsel.
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This was an extreme case. Had the conduct been less extreme the appeal may
not have been successful even though the manner in which counsel conducted
himself clearly had an adverse effect upon the interests of his client.
The effective advocate will at all times maintain a high standard of conduct
including unfailing courtesy to both the court and his or her opponent. That
standard will be maintained notwithstanding the conduct of others in the
court. You should not allow the discourtesy of others to influence you to
lower your standards.
When you respond to discourtesy by like conduct then you have allowed
yourself to be influenced by others, you will no longer be presenting your
own case on your own terms but rather on terms and in a manner dictated
by others.
Your case will suffer. Your client will suffer.
The moment the misconduct of others causes you to depart from your own
standards you allow your ego to interfere with the proper presentation of
your client’s case. You will then be acting in the shallow defence of your own
ego rather than pursuing the interests of your client.
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Jury Selection
“The jury has the power to bring in a verdict in
the teeth of both law and facts.”
Oliver Wendell Holmes
Anyone who has experienced the process of jury selection will have been
reminded of a down market TattsLotto draw.
The barrel spins, the number is drawn, and 50 or more people sweat upon
whether their number will come up this time. A juror is selected and the
process is repeated.
Once the name of a potential juror has been identified comes the decision to
be made on behalf of both the Crown and defence whether to challenge that
particular potential juror. A decision has to be made then and there. The time
available is limited to the time it takes for the selected person to move from
his or her position in the court room to the front of the jury box where he or
she will be sworn or affirmed. It is a very small period of time indeed.
In some trials it is an intriguing exercise for those not directly involved to try
to determine whether the challenges made follow some pre-determined plan
or are simply made because counsel wishes to be seen to be doing something.
An investigation conducted on behalf of the Australasian Institute of Judicial
Administration (AIJA) in 1994 found the use of the peremptory challenge was
“often arbitrary, used in a partisan manner to manufacture a jury favourable
to the interests of the challenging party, based upon crude stereotyping, and
did not afford the accused much input into the selection process.” 1 Elsewhere
it has been suggested that the whole process is of dubious utility.2
If the right to challenge is to be exercised the task that confronts the advocate
is a difficult one. Generally all that is known of the potential juror is the
name and a general description of his or her employment. The description
of the employment can be as broad as “public servant”, “manager”, “home
duties” and “unemployed”.
In many cases the description is quite unhelpful. However, something can
be learned of the potential juror by a quick physical assessment. The sex,
approximate age and the style of dress may be matters that will assist in
determining whether or not to challenge a juror.
Other signs may be more compelling. The wearing of a T-shirt emblazoned
“Legalise Marijuana” or “Bring Back the Death Penalty” may give some
guide to whether or not you would want that person on your jury. Of course
the exercise remains one of “crude stereotyping”.
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In determining whether to challenge, and if so on what basis, much will
depend upon the nature of the case you are to present.
Before you enter upon the jury selection process you will have considered
the question of the desirable composition of the jury, the type of person you
would like on the panel and, more importantly, the nature of those whom
you would wish to challenge. The nature of the case to be presented and the
nature of your client will inform your decision. The decision will always be
a difficult one.
The impact upon the outcome of the trial of your decision to challenge or not
challenge a particular person is unlikely to ever be known. You are to a large
extent required to work in the dark.
In the Northern Territory the selection of the jury is governed by the Juries Act.
The jury will normally consist of 12 jurors with up to three reserve jurors.
The Crown and the person arraigned (or “his counsel”), may each challenge
peremptorily six jurors in a normal case and 12 jurors in the case of a capital
offence.
Further challenges are allowed but they must be for cause shown. A challenge
for cause may be made at any time. In addition the court may, at the request
of the Crown, order a juror to stand aside but the number of jurors so ordered
shall not exceed six.
In relation to a challenge for cause the following is said in Bishop: Criminal
Procedure (second edition):
There is no limit to the number of potential jurors who may be challenged for
cause. A challenge for cause is generally made orally. Where a potential juror
is challenged the person issuing the challenge must lay a foundation of fact
to support the challenge before any right to cross-examine the juror arises. A
trial judge is under no duty to allow potential jurors to be “paraded for crossexamination” in the hope that grounds for challenge might emerge.
If a prima facie case can be established then the issue is tried on the voir dire.
In addition to a challenge to individual jurors there is a right contained in the
Juries Act to challenge the array. A challenge to the array may occur where the
Sheriff has proceeded in disregard of the provisions of a statute or of the law
to summon the panel which, because of that failure, is not made up in the
manner required by the law. There are other bases upon which a challenge
can be made.
An example of a successful challenge to the array in the Northern Territory
is found in R v Diack (1983) 19 NTR 13. In that case counsel for the applicant
was surprised to find a disproportionate number of females on the jury panel
and he therefore challenged the array.
Evidence was called and it appeared a system had been developed by the
Sheriff that involved identifying many more potential jurors than the Chief
Justice’s precept required.
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The Sheriff’s officers then went out and served summonses until the number
necessary to fulfil the precept had been served. The officers did not bother
to serve the rest. It was thought that this led to the imbalance in the number
of females because, at the time of service, there were more females at home
and available for service than males.
Nader J allowed the challenge noting that “there is to be no loose practice in
the summoning of persons whose names are drawn in the ballot.” He held
that there need be substantial, if not strict, compliance with the provisions
of the Juries Act for the selection of a jury.
It will be the members of the jury who make the final decision in the case.
The composition of the jury is a matter largely beyond the control of counsel.
With care and acute observation you may be able to have some small influence
upon that matter.
1.
Challenging a Potential Juror for Cause. McCrimmon 23 UNSW Law Journal 127.
2.
NSWLRC Report 48.
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Relating to the Jury
“A jury consists of twelve persons chosen to decide
who has the better lawyer.”
Robert Frost
The approach adopted by an advocate in presenting a case to a jury will differ
from that which would be employed if the tribunal were a judge sitting alone.
Generally speaking members of the jury will be embarking upon a new
experience. It is likely many will find the newness of the experience
distracting, especially in the initial stages of the proceeding.
Until the roles of the participants have been spelled out there will be a
tendency to look upon the process as an interested spectator rather than a
participant. Jurors are likely to find the conduct of legal proceedings quite
different from anything they have experienced before.
They will not be familiar with the layout of the court, the “interesting” dress
of the participants, the roles of the principal players or with the unusual use
of language that makes up the jargon of the courts.
They may have difficulty grasping legal concepts and approaches to proof that
lawyers, who appear in the courts regularly and have specialised training,
take for granted.
It follows that you should not assume the jury has greater knowledge and
comprehension of what is going on than in fact may be the case. Do not
make the mistake of assuming that members of the general public and, in
particular, members of your jury, think in the same way as do lawyers.
Be aware that different members of the jury will have different cognitive
skills. They will inevitably have different levels of intelligence and they will
gather and process information in different ways.
You should also bear in mind that the members of the jury will be hearing the
facts of the matter for the first time. They will be doing so in circumstances
where the whole process is distracting for them. They will not have a ready
familiarity with the history of the matter and therefore will not have an
immediate appreciation of the importance of facts that may be obvious to
others with a longer involvement in the action.
You should present your case in a way that is both clear to persons who are
not familiar with the courts or the particular matter and in a way which
ensures the interest and attention of the jury is maintained.
To this end there are some strategies you may wish to adopt. In cases that
are factually or legally complex you should endeavour to identify and employ
simplification strategies.
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This will include avoiding complex language and, so far as it be possible,
complex concepts. Information provided to the jury should be reduced to its
simplest and most direct form.
You should avoid jargon. You should avoid acronyms. You should employ
plain English and simple terms. In order to address and simplify complex
issues you may wish to use chronologies, charts and other visual aids.
As with most people in the community, jurors have a limited attention span.
It is essential you employ strategies to endeavour to maintain their interest
and attention. You should add variety to your presentation. You should avoid
the monotone. You should intersperse your presentation with a reference to
visual aids or to exhibits.
You may wish to introduce the occasional rhetorical question to maintain
interest and to have the members of the panel formulating answers consistent
with the case you are endeavouring to present.
If you fail to maintain the interest of the jurors then, no matter how
compelling your argument may be, it may not be given a fair chance of proper
consideration because the capacity for attention has been exceeded.
Although I suspect most juries are sufficiently sophisticated as to avoid
identifying the client with the advocate, it will be helpful to your client’s cause
if the jury is able to warm to you. It would be unfortunate if the members of
the jury felt antagonistic or distrusting towards you for whatever reason as
that may reflect upon the view they form of your client.
Displays of arrogance, insensitivity, bullying, unfairness and other displeasing
characteristics by the advocate are unlikely to help the cause of the client. Of
course if the members of the jury have a feeling of trust in the advocate that
may be beneficial for the client.
In my experience, most juries are collectively intelligent and perceptive.
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They are less likely to be swayed by a dramatic presentation than they are to
be swayed by pure, direct and simple logic.
They will be put off by sharp practice on the part of the advocate. There
should be no attempt to con them. You will be assisted in gaining the trust
of the jury if you are seen to be candid.
You should avoid any suggestion or possible perception that you are trying
to deceive them. It is better to confront bad facts and endeavour to explain
these rather than be thought to be avoiding them. The members of the jury
are told to bring their common sense and experience of the real world to bear
in making decisions.
They are unlikely to be impressed by nice distinctions or subtle arguments
that do not confront the important issues of the case.
Obviously, when appearing in the presence of a jury you should demonstrate
confidence in your own skills and confidence in your client’s case. That
confidence should not transgress into arrogance or be marred by flippancy
about the case or sarcasm regarding the case for the other side.
You must to the best of your ability make your presentation simple,
interesting and to the point. You should keep the special needs of the jury
in the forefront of your mind at all times including when you are engaged in
preparation for trial.
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Experts and the Jury
“An expert is one who knows more and more about less and less.”
L Long
In any trial before a jury the calling of evidence from an expert witness
requires special care in both preparation and presentation.
The fact that expert testimony is necessary means the subject matter to be
addressed is such that inexperienced persons are unlikely to prove capable
of forming a correct judgment on it without the assistance of a witness
possessing special knowledge or experience in the area.1
Expert evidence is likely to involve matters that members of the jury will
find are beyond their everyday experience and involve concepts and thought
processes they have not in the past had to address. In such cases it is your
task as counsel to ensure the evidence called from the expert is presented in
such a way that the jury can understand it and fully appreciate the impact
it has upon the case. If those goals are not achieved then the responsibility
for the failure does not rest with the expert witness but rather with counsel.
Prior to calling an expert witness to testify you should, wherever possible,
spend time with that person preparing for the giving of evidence. If the
expert is a person who is not frequently before the courts then he or she is
likely to need assistance in understanding their role and the nature of the
evidence they are to address. They will need to be reminded that they are not
necessarily addressing people who have any understanding of even the basic
concepts of the matters which are to be discussed.
On the other hand, they also need to appreciate that it is necessary to treat
the jury with respect. Whilst they should not talk down to the jury they
do need to explain matters in simple terms and, in particular, using plain
language and avoiding the use of acronyms and jargon. The witness should
be encouraged to adopt simplification techniques and to avoid raising
unnecessary complicating factors. The expert should be encouraged to use
visual aids and other techniques that may assist the jury to understand what
is being said. The explanations should, so far as possible, be confined to what
is necessary for the jury to be told in order to achieve an understanding and
appreciation of the evidence.
Even where the expert witness to be called is a person who has vast
experience before the courts and familiarity with the diverse possibilities for
the composition of the jury and the variables in the capacity of the individual
jurors to understand, it will still be necessary to spend time devising methods
of presenting the information to the jury to achieve the ends of understanding
and appreciation of the impact of the evidence.
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It will be necessary for you to make an assessment of the strengths and
weaknesses of your expert in the context of a jury trial. Some experts are
natural communicators and will need very little assistance. Their evidence
and approach will only need to be fine-tuned. Others are likely to be in need
of a total overhaul of their methods of communicating with people outside
of their field of expertise.
It is also necessary to assess the nature of the material to be presented to
the jury. That material will range from the extraordinarily complex to the
logical and simple. Some expert evidence is likely to be enthralling and little
difficulty will be experienced in maintaining the interest of the jury.
Other expert evidence may be interesting but complex and it will be necessary
to present it in a way that maintains the interest of the jury. Yet other
expert evidence is likely to be both boring and complex (e.g. an accountant
explaining the detailed financial transactions in a complicated fraud case)
and it will be necessary to employ all of the skills and strategies available to
you and your witness to ensure the interest and understanding of the jury is
maintained. Where the matter is complex or boring (or both) you will need
to keep in the forefront of your mind that once the interest of the jury has
been lost it will be almost impossible to regain. It is very easy for individual
jurors to be overwhelmed and simply give up.
It is desirable for your expert to keep an eye on the jury whilst presenting
his or her evidence to determine whether the explanation is being received
and understood. Whilst it is desirable for your expert to adopt that approach
it is vital that you do so. Where you see the interest of a member of the jury
waning then it is time for you to take control and to restructure the evidence
in order to maintain or regain the interest.
The approach you adopt will vary depending upon the character and skills
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of your expert and upon the nature of the evidence to be led. In some cases
a step by step approach may be appropriate. In others it may be advisable to
start with the conclusion and then go back to square one to explain to the
jury how it is the conclusion could be reached.
In preparing for and in presenting the evidence of an expert, it is prudent
to bear in mind both the expert and yourself have a familiarity with the
subject matter being discussed that is not available to the members of the
jury. Further, it is likely your expert will be highly educated and, of course,
you have also had the benefit of years of education. Members of your jury
may not have been so fortunate. The expert has spent years dealing with the
subject matter and you have spent a considerable part of your preparation
becoming familiar with it.
Your preparation and presentation should reflect an ever present awareness
of the difference between the advantages enjoyed by your witness and
yourself and the situation of the members of the jury.
1.
R v Bonython (1984) 38 SASR 45; Clark v Ryan (1960) 103 CLR 486.
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Addressing the Jury – Part 1
“One has to strike the jugular and let the rest go.”
Oliver Wendell Holmes
The final address to the jury is the point in the trial where the benefits of your
labours in preparation should be realised. It is at this time the persuasive
force of your case strategy is fully exposed. It is the culmination of the trial
and it is your last opportunity to present your client’s case to the jury: it is
obviously a crucial moment in the trial process.
What you say to the jury will be designed to have the greatest possible
impact. You will wish to leave the jury members with their minds filled
with the force of your arguments as they enter the jury room to consider
their verdict. Your address will therefore need to be logical and forceful, yet
concise and to the point.
In presenting your final address you should bear in mind the jury is likely
to be a different audience from that which filed into the jury box on day
one of the trial. At that time the individual jurors were embarking upon
something which was to them likely to be a novel experience involving all
sorts of distractions and concerning a case about which they knew nothing.
By the time of the final addresses all that will have changed.
The members of the jury will have become familiar with the trappings of the
court. They will have heard all the evidence and will have formed opinions
about the witnesses and their stories. They will have developed their own
views as to the honesty and reliability of the witnesses called and whether
they accept all or part of the evidence of each witness. They are likely to have
formed at least tentative views as to the outcome of the proceedings.
At the time of your final address the members of the jury will have before
them all of the information they are to receive and they will be looking to
counsel for assistance and guidance in the deliberations they are about to
undertake. They will be keenly interested in what you have to say. They will
have questions in their minds they will want you to answer. They will be
less interested in oratorical flourish than in hearing logical and persuasive
argument directed to the crucial issues in the case. Your challenge will be
to present such an argument. The address will need to be such that it will
shore up the views of jurors who are favourably inclined to the case you
present, will sway the undecided juror and will cause any unfavourable juror
to rethink the position they have adopted.
The content of your address will have been determined in broad outline prior
to the commencement of the trial. What you say at the end of the case will be
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informed by the case strategy developed in your early preparation. Changes
will be made to accommodate matters that developed in the course of the
hearing and which had not been anticipated. In addition you will be able to
refer to the specific evidence of individual witnesses in order to bolster the
points you make.
You will need to consider addressing points made by your opponent during
the course of the case where that is necessary. However you should not
regard it as necessary to address every issue raised in the case or every issue
raised by your opponent. You should concentrate on the core issues and not
get bogged down in unnecessary arguments on peripheral matters.
It will be necessary for you to confront the perceived weaknesses in your case
as well as emphasising the strengths.
You should not avoid issues that are matters for concern in the hope the
members of the jury will not notice. If there is a problem in your argument
you can be confident that, insofar as the jury may not already be aware of it,
either your opponent or the judge in the course of summing up will draw the
problem to their attention. You must confront those issues and provide the
jury with an acceptable approach to them consistent with your case strategy.
If it is obvious you have a problem then it may be desirable to frankly concede
that to the jury. Having done so you can then proceed to inform them why
it is that the problem is not of importance in the case or is not fatal to
your arguments and why it is that a verdict in favour of your client is still
available. If you fail to address such an issue it is likely to assume an even
greater significance in the minds of the jury. It will be an important and
negative point unanswered.
Of course you will draw the weaknesses of your opponent’s argument to the
attention of the jury thereby requiring your opponent to either address those
issues or leave the matter unexplained before the jury.
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Addressing the Jury – Part 2
“To be brief is almost a condition of being inspired.”
George Santayana
As with the rest of the community the attention span of members of jury
panels is of short duration. You should commence your address by grabbing
the attention of the jurors then proceed to present your argument in a way that
maintains their interest. You should “strip away the peripheral information,
and repeat key ideas, since repetition is important for retention” 1.
An example of an effective commencement to a closing address was that
presented by David Ross QC prosecuting in a trial in the Supreme Court of
the Northern Territory in 2000. The trial involved an allegation of rape where
consent was the issue. Without further introduction he read a paragraph
from the evidence of the alleged victim. His first words to the jury were:
Ladies and gentlemen of the jury, you remember what (Ms X) told you she did
when at last she got home. Let me remind you of what she said: “I went upstairs,
I was inside the house.” Question: “How were you feeling at that time?” Answer:
“I couldn’t stop crying. I felt hollow. Felt tainted, I guess. It was just unbelievable
empty feeling, so I had a shower—I couldn’t—I couldn’t get the smell off me—
this vile stench. I scrubbed myself. I couldn’t get rid of it”.
That opening had immediate impact regarding the vital issue in the case.
There is no point in commencing your address by reminding the jury of
pedestrian things of which they are already aware, or providing them with
information that must be obvious to them, or anticipating information with
which they will be provided in the summing up of the trial Judge.
Informing the jury they have reached the end of the trial, or advising them as
to the functions of the various people in the Court, or addressing any of those
matters which Judges are required to address, is not only a waste of time
but also a waste of your opportunity to deal effectively with the important
issues. In addition it is tedious.
It is better to avoid those matters and go directly to the heart of the case. You
can be sure the Judge will address the issues of law in accordance with the
aide memoire provided to the jury.
You can be confident those matters regularly addressed by Judges at this
stage in the trial will be dealt with and, if they are not, you will be able to
remind the Judge this is necessary before the jury commences deliberating.
Judges will almost always address such matters as the burden of proof, the
elements of the offence, definitions or explanations of relevant legal terms,
how the evidence of witnesses is to be approached and the many, many
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warnings required to be provided by a trial Judge in various instances. You
detract from the effectiveness of your time before the jury if you spend that
valuable time going over matters to be addressed in any event by the Judge.
Of course you may wish to address such an issue if it is important to the
effective presentation of your argument. Otherwise you should anticipate
what is to be said and avoid repetition.
If you are in doubt as to the matters the Judge will address then you can raise
those in the absence of the jury at a convenient time.
In the course of the trial, issues may arise that are of peripheral interest only
and do not impact negatively upon your case strategy. In order to keep your
address as succinct as possible you should avoid addressing other matters
not essential to your presentation.
Such issues should only be addressed if there is a good reason to do so. Do
not be distracted by non-essential issues. By addressing such issues in detail
you give them an importance they do not deserve. You give the jury another
issue to consider. You may need to mention some such matters in order to
inform the jury you are not going to pursue them because they lack relevance
to the issues in the case. Alternatively you may simply ignore those matters
because the argument you do present will necessarily lead to a conclusion
the issues not addressed are irrelevant. Careful assessment is required. Do
not overload the jury. Deal only with those issues that are important.
If your address must go on for a lengthy period of time then you should
develop and employ strategies to ensure the material you present and
the manner in which you present it represents the best opportunity for
maintaining the attention of the individual members of the jury. Obviously
you will not provide a detailed review of the evidence of each of the witnesses
except insofar as that evidence is necessary for the proper presentation of
your argument. Reading slabs of transcript is to be avoided. Make use of the
exhibits or any visual aids available to you in order to keep the presentation
alive and interesting.
Do not hesitate to ask rhetorical questions. At this point of the trial the
members of the jury will have the benefit of having received all of the evidence
and will be generally aware of the issues. One approach to persuading them
to your point of view and at the same time maintaining their interest is to
pose questions regarding the evidence and the issues that lead to answers
and, therefore, conclusions consistent with your argument.
It is well understood that people are more likely to become wedded to an
approach or conclusion if they arrive at that approach or conclusion through
their own logical thought processes. With skill you can stimulate and direct
those thought processes. The posing of appropriate rhetorical questions can
facilitate that process.
1.
Mauet & McCrimmon: Fundamentals of Trial Techniques, 2nd Aust. ed. 2001.
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Organise the Address
“Don’t agonise. Organise”
Florynce Kennedy
I have previously discussed the need for brevity in your final address to the
jury. Brevity may be achieved by focusing on the core issues in the case and
avoiding peripheral issues.
I suggest you construct your address so it presents an argument that is to
the point, easy to follow and intellectually satisfying, thereby making it easy
for your audience to understand and accept your conclusions. A well-ordered
address adds force to the argument you present. Careful consideration needs
to be given to how an effective order of presentation may be achieved. You
will need to pose a number of questions to guide your preparation. Your first
task will be to settle upon the content of the address. You will ask yourself:
“What issues do I need to address? What issues can I safely ignore?”
Once you have identified the matters to be addressed you will consider how
best to present the argument relating to those issues. In what order should
the identified issues be addressed? How will I start? How will I conclude?
How will I approach the strengths of the case for the opposition and the
strengths in my own case?
In dealing with counsel who was presenting a confused address Mr Justice
Maule is reputed to have said:
I know my brain is getting a little dilapidated; but I should like to stipulate for
some sort of order. There are plenty of them. There is the chronological, the
botanical, the metaphysical, the geographical, why even the alphabetical order
would be better than no order at all.
A logical process ought to be adopted. Issues should be raised and addressed
in a logical order so your audience can see how one thought process flows
into the next. Any confusion in your mind and any confusion in the approach
you adopt is likely to lead to confusion in the minds of the members of
the jury. If you jump from thought to thought and topic to topic it will be
difficult for others to follow what you are saying and the impact of your
argument may be lost as the jury struggles to keep up.
It is preferable to proceed through the material you wish to present in a
deliberate and predetermined order endeavouring to ensure the arguments
that seem appealing to you are developed in a way that makes them also
appealing to your audience. Of course in some cases confusion may be the
only hope for success that remains for you. However in most cases a clear,
concise and logical presentation is called for.
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At the conclusion of a case it is likely you will have a range of arguments to
present. Some of those arguments will be strong, others not so strong. It is not
necessary to present every argument and, indeed, it can be counterproductive
to do so. Be selective. If you have a strong argument and you present it in
company with a weak argument, you may find the overall impact of your
strong argument is reduced because of the scepticism the jury feels for the
weaker argument. You need to determine your best arguments and present
those clearly and forcefully. You should avoid the desire to address all
arguments just because they are there. Do not get stuck on peripheral issues.
Do not unnecessarily overload the jury.
Of course in the case of a prosecutor it may be necessary to address a
wider range of arguments than is the case for defence counsel because the
prosecutor must establish the Crown case beyond reasonable doubt. It may
be necessary for the prosecution to draw all the threads together to assist the
jury. What is required will vary from case to case.
One aspect of your preparation for your final address to a jury should relate
to matters of an organisational nature. It is desirable that your presentation
be smooth and free-flowing. The jury should not be distracted whilst you
pause to order your thoughts or while you find an exhibit or endeavour to
locate a passage in the transcript.
At the time you commence your address your thoughts should be in order.
You should know what you intend to say and in what order you intend to say
it. The papers and exhibits to which you may need to refer in the course of
your address should be to hand and arranged in such a way that permits you
to have ready access to them at any time.
There should be no need for you to seek forgiveness from the jury whilst you
locate a particular item. Whilst you are fumbling amongst your papers or
searching for an exhibit the minds of the jury will be focused upon matters
other than the argument you present. When you have located the missing
item you will have to regain the thread of your argument and ensure that the
jury has done likewise. If you are properly prepared such an interruption to
your presentation will not occur.
The presentation of your final address is a crucial event in the trial process.
An ordered and logical approach is called for. Careful preparation will avoid
that event being marked by unnecessary and distracting interruptions.
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Follow the Path of Least
Resistance
“The cautious seldom err.”
Confucius
In addressing a jury you should not place unnecessary obstacles in the path
of your case. If it is unnecessary to establish a particular matter for the
purposes of your argument then do not seek to do so. By doing so you divert
attention from the directly relevant issues and you undertake an obligation
that does not rest upon you.
An illustration of this proposition is that in the usual case defence counsel
should not assume the burden of seeking to establish the innocence of his or
her client, the accused person. As is well known the onus of proof in criminal
cases rests upon the Crown. All that defence counsel need do is identify the
basis for a reasonable doubt as to the guilt of the client.
Whilst counsel may wish to suggest to the jury that the innocence of the
client is clearly established, he or she should do so in a way that makes
it clear that this is not a hurdle to be overcome. The issue for the jury is
whether or not the Crown has proved the case against the client beyond
reasonable doubt. To move the focus away from that question by assuming
an additional burden will often be a dangerous way to proceed.
When making points to the jury it is desirable you do so in a way that is easy
for them to accept. Unless it cannot be avoided you should not require the jury
to reach a conclusion that is likely to be an unpalatable conclusion for them.
You should adopt, and permit the jury to travel along, the path of least
resistance. For example, there is a natural reluctance on the part of people to
conclude that another is lying or being deliberately deceitful. Human nature
is such that, generally speaking, people prefer to accept the honesty of others
until the contrary is demonstrated.
Unless there is some identified advantage to be obtained from so doing, you
should not call upon a jury to find that a particular witness has lied.
If your goal is to have the evidence of a witness rejected or, at least
doubted, you will bear in mind it is easier for a jury to reject evidence on
the basis the witness has been confused or mistaken or under some form
of misapprehension rather than that he or she has lied under oath. It may
be clear to you that the witness has lied but that is unlikely to be the only
conclusion open.
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The members of the jury may not share your view of the witness. They may
feel sympathy for the witness. If they are left with a blunt proposition from
you that the witness lied, you may find some members of the jury will not
adopt that view. Leaving alternatives to the jury enables them to agree with
your submission that the evidence ought not be accepted or relied upon
without the necessity to reach the unpalatable conclusion that the witness
has been deliberately untruthful.
You may wish to suggest to the jury, possibly in very strong terms, that
the likelihood is the witness lied and to point to the evidence that logically
leads to or supports that conclusion. This may involve comparisons with the
evidence of others, a consideration of the surrounding circumstances, an
evaluation of the internal inconsistencies within the evidence or an analysis
of the motives, prejudices or lack of objectivity displayed by the witness.
However, depending upon the circumstances, the jury may be more inclined
to accept the evidence is unreliable for reasons that do not reflect upon the
honesty of the witness.
It is preferable to allow for that prospect by leaving to them the alternative
propositions that the evidence of the witness was unreliable as the result of
mistake, confusion, faulty recollection due to the passage of time or whatever
other cause presents itself. In the absence of some compelling reason for
so doing do not saddle your client’s case with the burden of showing the
witness to be a liar. In most cases to do so is to assume an unnecessary
responsibility.
In preparing your address you will be aware that the version of events that
appeals to you might not be the only version that is reasonably open. Of
course there will be the competing version presented by your opponent, but
there may be others. You should not assume the jury has limited itself to one
of the two options presented by counsel. If there are alternatives available
and they are not inconsistent with your case theory then you will tell the
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jury why that is the case. If an alternative is inconsistent with your client’s
case then you will wish to explain to the jury why it is that it should not be
accepted. It is important that none of the available alternatives is allowed to
accompany the jury into their deliberations unaddressed.
In presenting your address it is vital you do so with apparent confidence
in the force of your argument. If you are hesitant because you have not yet
thought through what you are about to say, or because your preparation has
otherwise been poor or because you don’t find the propositions you make
convincing, then it is likely the jury will not warm to the argument.
Your confidence in the argument you present should be reflected in the
language you adopt. The language chosen should convey a sense of certainty.
Propositions you invite the jury to accept as fact should be expressed in
a positive way. Generally speaking the use of expressions such as “it is
submitted” or “it may be” or “I ask you to accept” and the like suggest
hesitancy and are to be avoided. No matter what your innermost thoughts
may be a positive and confident presentation is called for.
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Presenting the Address
“If you don’t know where you are going,
you’ll end up someplace else.”
Yogi Berra
The closing address is your final opportunity to present your case directly
to the jury. At this time it is essential you exercise all your skills in an
endeavour to engage the jury. There are numerous techniques you may wish
to employ to achieve this end. Many of these have been discussed earlier.
One matter of importance is the approach you adopt to the jury. Care must
be taken to ensure you are, and are seen to be, talking to them rather than
lecturing them or in any sense talking down to them. You will be assisting
them in the task they are about to undertake and that will involve an element
of explanation of your argument and discussion of the reasons for one
approach being preferred over another. In such circumstances it is easy to
create an impression that you are being patronising or for you to sound
condescending. This is to be avoided.
It is desirable you endeavour to maintain eye contact with as many members
of the panel as possible. You are likely to lose the jury if you spend your time
reading from notes. Similarly, if you are forever flicking through your notes,
or searching for documents, or clicking your pen, or engaging in any other
distracting conduct, you will be detracting from the effectiveness of your
presentation.
There is much debate about the use of notes in the presentation of an address.
If you are one of those fortunate individuals who is able to clearly recall all
of the matters to be addressed without the assistance of notes then of course
you should address without reference to notes. However most people will
need to at least have a series of points or headings to remind them of the
order of the address they are about to present and as a check list to ensure
every point that should be addressed is addressed. Others may need to have
a more detailed outline of the address incorporating key phrases to be used
at pre-determined points, passages in the transcript to be quoted and other
matters of importance to the address.
I do not accept the view that it is necessary to do away with notes altogether.
For some people the presence of notes may act as a form of security blanket
even though the notes are not referred to. Such advocates may wish to have
notes to hand for the purposes of reminding them of matters to be addressed,
ensuring all topics have been covered and for them to resort to if struck by a
mental blank. In addition an advocate may wish to have parts of the address
recorded in a form that is carefully constructed and which identifies pre-
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determined persuasive expressions specially created for greater impact. In
those limited circumstances the advocate may wish to place greater reliance
on notes for a short time.
Personal experience will determine the extent to which you use notes in your
address.
Whatever approach you adopt, you should avoid the monotonous reading of
the final address. To simply read the address makes for dull listening and
can mean what you have to say is less persuasive than would be the case
with a natural conversational presentation of the argument. Reading from
notes removes the spontaneity from your address and is likely to reduce the
impact and appeal of what you have to say. Further, if you are reading you
cannot engage the members of the jury. You will have little idea as to how
they are reacting to what you say. You will not know whether a change of
tack is desirable.
In the course of the final address it is inadvisable to read at length from
any source including the transcript and documents that are exhibits in
the proceedings. If the jury does not have the document before them, and
therefore the ability to follow it themselves, reading a lengthy passage is
likely to lead to a loss of concentration and inattention. In most cases it
will be better to paraphrase and summarise passages for the jury. If there
are vital words that need to be directly quoted then direct quotation can be
adopted of those particular words and the paraphrasing then resumed. In the
event you have to read directly from a document you should have the precise
material to be read identified in advance. You should not be determining
what is to be read and what is not to be read whilst you are on your feet. It
is useful to highlight the passage that is to be read clearly identifying the
commencing point and the end point.
Consistent with your conduct throughout the case you should avoid the
temptation to use complex terms, technical phrases, acronyms or legal
jargon in your address. In other words, you should avoid the use of language
that might be misunderstood by your audience. As part of the process of
seeking to simplify the issues and maintain the attention and understanding
of the jury you will seek to adopt simple and direct language.
If your address is to be interrupted by a necessary adjournment you will wish to
take full advantage of that. Immediately before the adjournment you will focus
full attention upon one of the stronger arguments in your armoury. The jury
will then retire with that consideration in mind. They will have the whole of
the break to ponder it. When the hearing resumes following the adjournment
you can remind the jury you were discussing that powerful point immediately
before the adjournment and by repetition reinforce it. You may then move on
to your next point.
In most cases when you reach the end of your address it is desirable to claim
the verdict. Bring the matter to a conclusion by telling the jury exactly what
it is you want. It may be imprudent to demand a particular result because
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the jury may consider you to be intruding upon the function they have been
told is for them alone. Rather you should confidently request the result. The
conclusion of your address should be on a strong note. It should not peter
out. The address should not simply fade to black. The members of the jury
must be left with the full force of your argument uppermost in their minds
as you resume your seat.
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The Judge’s Address to the Jury
“Mistakes are the inevitable lot of mankind.”
Sir George Jessel
When you have completed your address to the jury and have triumphantly
resumed your seat you may feel a natural inclination to relax. Hopefully you
will be quietly congratulating yourself on your compelling argument and
your effective presentation.
Alternatively you may be inclined to sit and stew over things you should
have said or castigate yourself for the manner in which you presented the
argument. A post mortem should not be held at this point.
Once you have resumed your seat you should focus your attention upon what
the judge has to say. You need to pay close attention to what the judge says
in order to ensure that what falls from him or her does not, in the interests
of your client, require further explanation, correction or modification in
matters of fact or law.
In their work Australian Criminal Trial Directions, Glissan and Tilmouth
consider the proper bounds of the summing up by a judge to a jury and
identify the following five elements as being essential for the summing up
to comply with principle:
•
it should be fair and balanced;
•
where the judge expresses views, the jury must be clearly directed that
the ultimate decision on questions of fact is theirs;
•
it is dangerous and unwise for a judge to put forward a basis of liability
or explanation of factual material not advanced by either party;
•
the judge must clearly and fairly put the defence case as a recognisable
entity. This duty extends even to putting defences that have not been
relied on by counsel for the defence (or even denied by the accused) if
there is a factual basis for them in evidence;
•
the summing up should include:
-- a succinct and accurate summary of the issues;
-- a concise and correct summary of the arguments on both sides;
-- an accurate statement of the inferences the jury are entitled to draw
from the primary facts;
-- reference to the respective role of judge and jury; and
-- a concise and correct statement of the law to be applied.
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In most cases, prior to the commencement of his or her address, the judge will
have provided you with a draft aide memoire in which the applicable law is
summarised for the benefit of the jury. You should pay careful attention to this
document and ensure it fairly summarises the law and identifies the issues.
This is a most important document and will travel with the jury into the jury
room. It is likely to play an important part in the process of deliberation by
focusing the attention of the jury upon the issues identified in it as being
important.
It will be too late for you to complain once the verdict is to hand. If an error
has occurred it may only be corrected by an appeal and the Court of Criminal
Appeal may wonder why it was you failed to assist the court.
You should also pay attention to the directions provided by the judge to the
jury that are not contained in the aide memoire. You need to ensure the judge
does not present a view to the jury that is unbalanced or otherwise deficient.
This observation applies to issues of both fact and law. In addition you will
wish to ensure the judge has identified and dealt with all of the matters
discussed by Glissan and Tilmouth.
Particular attention should be paid to the defences available to the accused
whether those defences have been raised by the accused or not. If you are
counsel for the defence you may have focused your attention upon the
strongest defences available and deliberately refrained from developing
argument in relation to others.
Some defences may not have been addressed because they are inconsistent
with your case strategy or with other available defences. This often applies
where both self-defence and provocation are open to an accused. Whether
you appear to prosecute or for the defence it is necessary you ensure the
judge fairly puts all available defences to the jury.
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If you are concerned you failed to address a particular issue or to draw the
attention of the jury to a particular matter in the course of your address, you
may wish to raise that with the judge for correction in his or her address.
Whether the matter can or should be attended to in that way will depend
upon the circumstances of the case.
It is essential that both counsel maintain concentration during the course of
the summing up by the judge and take the opportunity to invite the judge
to correct any errors or omissions that are identified during the course of
that process.
Self-congratulations or self-flagellation can occur when the jury has retired.
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Addressing the Judge
“To sin by silence, when they should protest,
makes cowards of men.”
Ella Wheeler Wilcox
Much of what has been said in relation to the presentation of a closing
address to a jury has equal application to such an address presented to a
judge sitting alone. However it is obviously necessary to remember the two
are quite different exercises involving quite different tribunals. Different
approaches to the content of the address and the style of presentation will
be called for.
Some of the more obvious differences between a tribunal consisting of a
judge and jury and that constituted by a judge alone point up the need for a
different approach in some areas of your address. Whilst members of the jury
panel are not legally trained and are doomed to sit and listen to both counsel
in silence, a judge will be well trained and likely to be willing to enter into
discussion or debate with you.
The jury has the freedom to present a verdict unaccompanied by any
identification of the reasoning process undertaken. It will not be called upon
to justify the verdict it delivers. A judge must publish a reasoned basis for
reaching his or her conclusion. The jury is likely to be less concerned with
listening to debate on nice issues of law than it is with determining issues
of fact. It will not be concerned with the value of its decision as a precedent
for other matters.
As with the address to the jury, counsel making an address to a judge should
be selective in the material to be included. You should not present every
argument just because it is available. You should not address every issue
just because it is there. You should be selective in the issues you address and
only direct your attention to those necessary for the proper presentation of
your case. Sir Robert Menzies said in his book Afternoon Light:
There can be nothing more irritating to a judge than to have before him
an advocate who cannot distinguish good argument from bad, who argues
everything, who recognises and concedes no weakness in his case, who goes on
and on and finally leaves the court with a confused mess of ideas and arguments
from which the judge must endeavour to extract some relevance and some help.
There are some such advocates. Either they have not adequately mastered their
case and isolated the points upon which judgment will turn; or they are afraid
to exercise their own judgment by discarding bad arguments; or they weakly
believe that the quantity of their words will, in the ears of their client, make up
for the paucity of the quality.
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In debating an issue of law before a judge you should, insofar as you are
able, confine yourself to the principal authorities. There is no need to cite a
multitude of authorities all going to establish the same point.
If the High Court has spoken on the issue then it is sufficient to refer to what
the High Court has said. You will only need to go to other authorities if the
point or points are not adequately covered by the authority to which you
refer. Your argument is unlikely to be made stronger by reference to multiple
authorities all to the same effect.
It is undesirable to read lengthy slabs of judgments to the court. It is
preferable to identify the principle and the location at which the principle
can be found. If there is a concise enunciation of the principle then you may
wish to read that. If there is not you may wish to summarise the effect of the
authorities you have provided to the court and provide references within the
reports to where relevant passages may be found.
One approach to your final address is to place yourself in the position of the
judge and provide the information you think would be useful if you were the
one being called upon to deliver a reasoned judgment. The delivery of a wellreasoned decision can be an onerous task and the judge will appreciate any
assistance provided in attending to that task.
The provision of written submissions is, in most cases, beneficial. The beauty of
written submissions is they require counsel to identify and focus on the issues
that need to be addressed. They call for a concise and convincing presentation
of the problem and of the solution. They focus the mind of counsel upon what
is important.
Properly prepared, the submissions will identify in a clear and concise form
the issues to which the judge must turn his or her attention and provide an
intellectually satisfying method of dealing with those issues in a manner that
will lead to a favourable result for your client. You will have been successful
in this regard when you recognise the thrust of your submissions reflected
in the judgment.
The effective use of written submissions is a useful tool in achieving a
successful outcome. It is a part of the armoury of a good advocate.
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Questions from the Bench
“Law: the only game where the best players
get to sit on the bench.”
Anonymous
Questions and observations from the Bench should not be regarded as an
unwelcome distraction. As an advocate you should not regard interaction with
the judge as an interference with the smooth presentation of your address.
Rather, questions and observations from the Bench should be welcomed
because they provide you with an insight into the matters of concern to the
judge. That person is about to deliver a reasoned decision either in favour of
your client or against your client and therefore anything that concerns him
or her should be of concern to you.
It follows that when a question or topic is raised by the judge it is generally
prudent to deal with it then and there. In some limited circumstances you
may wish to inform the court you will be addressing the topic in greater detail
in the course of your submissions and to suggest it would be more practical
to deal with it in the order you had proposed rather than immediately. In
most cases, it will be preferable to deal with the matter as soon as it is raised.
The fact that difficult questions come from the Bench does not mean the court
is necessarily against your argument. If the court presents you with obstacle
after obstacle it does not follow that your case is doomed. On the contrary it
may mean the court is favourably disposed to the argument you present but
is looking to you for assistance in dealing with the difficult issues that arise.
It would be wrong for you to conclude the judge has reached a firm
conclusion against your argument. It would be wrong for you not to pursue
your argument with appropriate vigour. If you can assist the court to resolve
the issues with which the court has difficulty success is likely to follow.
Not only should you welcome questions from the judge, but you should
be concerned if the judge remains silent. Silence may mean a trouble free
address for you but, in those circumstances, you will have no idea whether
your argument is being silently accepted or silently rejected.
You will have no idea whether there are issues that are of concern to the court.
You will have no idea whether or not your treatment of various problems that
have arisen in the course of the hearing is appealing to the court. You will
not be provided with the opportunity to deal with matters that may be seen
by the court as an impediment to your client’s case. A silent court leaves you
in limbo and you will not know what (if anything) is a cause for concern or
may be regarded as a flaw or deficiency in your argument.
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When, in the course of discussion, a judge suggests a view of the case
different from your own it does not necessarily reflect an attack upon your
case. It does not, of itself, suggest the court has settled on a different view
from your own.
You may find the judge is merely suggesting an alternative way to deal with
the issues that have arisen. However, when the court suggests an answer to
a problem identified with your argument, or an alternative approach to the
argument you have presented, you should not adopt the view of the court
without proper consideration.
It may be that the judge has not fully appreciated the situation or has
overlooked some evidence or is simply wrong. You should not adopt what
falls from the Bench in an opportunistic way simply because it does fall from
the Bench.
You are there to present your own case and you must do so. If what falls from
the court is, after proper review, of assistance to you then you may wish to
adopt it. If it reflects a flawed response then you should ensure you make
that clear to the court.
In this regard you should bear in mind that it is likely you will be more
familiar with the issues and the law presented by the particular case than
is the judge. You will have had time to reflect upon your argument. In most
instances the judge will have only recently been called upon to consider the
circumstances of your case and will not have the benefit of the substantial
preparation which you have undertaken.
If you do not know the answer to a question posed by the court then you
should acknowledge that to be so. In most cases your thorough preparation
will mean you are able to deal with difficult questions then and there. If you
are caught by surprise, you may wish to deal with the issue by indicating to
the judge that you will take some instructions during the course of the next
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adjournment. At that time you will be able to properly consider the matter
and formulate an appropriate response.
If you do not know the answer it is obviously dangerous to try to wing it.
You may do more harm by proceeding in that way than frankly admitting you
need to consider the issue and taking time to consider your position.
If you do decide to wing it, it will soon become obvious you do not know the
answer.
Discussion with the Bench is something to be welcomed and treated as a
further opportunity to advance the interests of your client.
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109
Advocacy: the Appeal
“Appeal: in law, to put the dice in the box for another throw.”
Ambrose Bierce
Appellate advocacy is different from first instance advocacy. The most obvious
difference is that this is not the first time the matter has been considered by
a court. You do not start with a clean slate. Your appearance will be designed
to persuade the appellate court that another tribunal has erred in a way that
needs to be corrected. Alternatively, if you appear for the respondent, you will
be seeking to persuade the appellate court that intervention is unnecessary.
Commonly the appeal will focus upon the considered reasons of another
court recorded in a written judgment or the transcript of proceedings. The
slate has been written upon, the water has been muddied and the course of
the proceedings will be dictated by what has occurred below.
As always, thorough preparation will be the key to successful advocacy in
the appellate jurisdiction. It will be necessary for you to achieve a detailed
familiarity with the facts of the case both as revealed in the judgment and
as appears from the evidence presented to the tribunal at first instance. If
you come to the proceedings for the first time at the appellate level, an
effective way of mastering the facts may be by the use of a chronology. The
chronology should record all of the relevant facts and identify the location at
which the supporting evidence can be found. Of course you will also need to
have a familiarity with and understanding of the applicable law.
Once you are familiar with the facts and the law it is prudent to revisit the
grounds of appeal which, in many cases, will have been drawn in haste by
another. The grounds of appeal are the first opportunity you have to influence
the course of the appeal and to commence to persuade the court. All too often
the grounds of appeal which appear in the Appeal Book and have been the
basis of all pre-hearing consideration of the matter by the members of the
appellate court, will not be the grounds to be argued. At the commencement
of the appeal counsel will indicate to the court that certain identified grounds
are not to be pursued and certain other grounds are to be added. The effect
of such an announcement is to tell the court that whatever preparation has
been undertaken based upon the abandoned grounds has been a waste of
time. It is therefore prudent to ensure at an early time that the grounds of
appeal reflect the argument to be presented.
It is desirable that the grounds of appeal are set out in a logical order and,
where there are numerous grounds dealing with the one topic, those grounds
are grouped in a convenient way. It is unnecessary and unproductive to state
the same ground of appeal in numerous different ways. Similarly it is unwise
to include every possible ground of appeal no matter how weak. Be selective.
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Only pursue the grounds that have real merit. A ground of appeal when pleaded
should make clear the cause of the complaint. The reader should be aware of
the precise nature of the problem.
Your next opportunity to persuade will be in the written argument or outline
of argument presented in accordance with the rules of the court. I have
previously discussed this issue and will not repeat what I there said except
to emphasise the importance of recognising and taking full advantage of the
opportunity to persuade that arises.
Included in the written material to be placed before the court will be your list
of authorities. That list should be limited to the leading authorities. There
need only be reference to other cases if there is some compelling reason for
so doing. So far as is possible references should be to the authorised reports
and should include the page or paragraph numbers to which attention is to
be drawn. It is of little help to refer simply to the Tasmanian Dams Case or,
indeed, any substantial case without directing attention to the relevant part
of that case. Save for exceptional circumstances, it is likely you will limit
your list of authorities to those of Australian courts. This will be especially
so where the appeal is to be heard in the intermediate courts. Whilst a novel
point may call for a consideration of the position beyond Australia, this will
not be common in the intermediate courts. In the High Court there is clearly
greater scope for reference to what is happening in other jurisdictions and in
particular in England, the United States of America, Canada and New Zealand.
In preparing for an appeal you may wish to commence with what one of
Australia’s leading appellate advocates, Mr D F Jackson QC, calls the “basic
approach”. He described this as follows:
There is no special mystery about appeals. As in any litigation the secret of
success is to know what you are doing, and why. In appeals that manifests itself
in three broad issues. They are:
•
what aspect of the judgment below is being attacked?
•
why is it said to be wrong?
•
what is the consequence if it is wrong? 1
Again you will develop a case strategy and the presentation of the argument
will at all times be informed by reference to that strategy. As part of the
strategy you will consider what is and is not to be argued, the order in which
it is to be presented and the most persuasive method of presentation. In
addressing these issues in preparing for your oral presentation in court you
should bear in mind the court will have received and considered your written
submissions: There is no point in re-reading those to the court. There is no
point in presenting the same argument in exactly the same way as appears
in the written material. To do so is to waste an opportunity. A fresh approach
consistent with your written submission is called for.
As part of your preparation you should anticipate the questions likely to come
from the Bench. Such questions are likely to flag significant concerns held by
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111
the questioner and, if persuasively answered, can be decisive of the outcome
of the appeal. You should therefore anticipate such questions and, when the
question is asked, if possible, address it immediately. If you cannot do so
without laying some ground work then let the court know you will answer
the question and the method by which you propose to do so. Providing an
answer to the question should be a priority.
1.
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Appellate Advocacy D F Jackson QC (1991-1992), Vol 8 Aust Bar Rev 245.
The Little Red Book of Advocacy – Second Edition
Presenting the Appeal
“Appellate Judges “are the ones who lurk in the hills while the
battle rages; then, when the battle is over, they descend from the
hills and shoot all the wounded”.”
Ruth Bader Ginsburg
In presenting the appeal it is important to commence and finish strongly.
There is little point starting with a formal opening that recites the history of
the litigation or informs the court that this is an appeal from such and such a
court where judgment was delivered on such and such a date, and so on. The
court already knows that information. Repeating it is a waste of time and a
waste of the opportunity you have to make an immediate impact. Mason J, in
an article published in (1984) 58 ALJ 537, said of the opening in cases before
the High Court:
All too often counsel fail to take advantage of the unique opportunity presented
by the opening—to make an impact on the minds of the judges before they begin
to move forward on their inexorable journey to a conclusion. There is no need
for a ritual incantation of the history of the litigation. The court is aware of it.
Better to begin with a statement of the issues, unless the case lends itself to an
exhilarating or humorous introduction.
It should be pointed out that opportunities for an exhilarating or humorous
introduction will be rare indeed. Be careful. Such an opening has every
prospect of falling flat, leaving you feeling embarrassed and groping for a
way to get the argument back on track. The more senior you are and the more
comfortable you are with the court and the court is with you, the greater will
be the opportunity for such an opening. For the rest of us the opportunity is
probably best left for another day. Although an interesting presentation is
part of effective advocacy the court is more interested in substance than style.
The opening, and particularly the early stages of the opening, provides
an opportunity to dictate the course and content of the appeal. It is an
opportunity not to be wasted. In your opening you should endeavour to get
to your major point as soon as possible. In so doing you need to let the court
know where you are going and how you propose to get there. You should
avoid the need for the court to enquire of you: where is this submission
taking us? The direction of the argument should be clear to the court. If the
members of the court are asking themselves what the submission is all about
they will be experiencing difficulty in appreciating the impact of what you
are intending to convey.
In presenting your appeal it is important not to read lengthy passages to
the court. This prohibition includes passages from relevant case law, the
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113
transcript of the proceedings below and, most importantly, the judgment the
subject of appeal. If a lengthy passage has to be read then identify it for the
court and allow the court to read it for itself.
Throughout the presentation of your argument, bear in mind that your
familiarity with the case will necessarily be greater than that of the judge’s.
This logically follows from your detailed preparation. You will need to ensure
the elements of the case essential to your argument are clearly stated and
placed in a contextual framework for the court. It must be plain that each of
the members of the court has an appreciation of the crucial facts and issues.1
Whilst presenting your argument take care before adopting arguments
provided to you by the court. Often a judge will make suggestions as to how
you put your argument. That will often be introduced with words to the
effect of: “You put the argument this way…” or “you would say…” In many
cases this can be seen as (and may be) reflecting a measure of support for
what you have been endeavouring to say. You should carefully consider the
suggestion made by the judge and only adopt it if it accurately reflects your
argument. The danger of too readily accepting suggestions from the Bench
is, when considered in subsequent debate with the judge or other members
of the court, the argument falls flat. That may lead to a significant lessening
of the impact of the balance of your argument. Alternatively the judge may
simply be seeking to encapsulate your argument in order to ensure it is
understood or to raise an obstacle. Of course the judge may also be looking
to assist you by clarifying a particular matter.
If there is a weakness in your case or your argument it is best to acknowledge
that to be so and to confront it. Avoiding it will not make the problem go
away but rather will emphasise it when it emerges through the submissions
of other counsel or through the questions of the court. Kirby J, in an article
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written in 1995, and which will repay reading, said:
Directness in an advocate is a great strength. Candid acknowledgement of a
problem may even enlist the assistance of the court, if the merits suggest that
course.
When the court is constituted by more than one judge you should endeavour
to engage all of the judges. It is a mistake to address your remarks to one
judge rather than seeking to retain eye contact with all members of the
Bench. It is easy to become focussed upon the presiding judge or the judge
who is asking most of the questions. Endeavour to avoid doing so.
Whilst appellate advocacy is necessarily different from other advocacy, the
principles and practices you have applied elsewhere should underlay the
presentation of your argument to the appellate body.
1.
Ten Rules of Appellate Advocacy, Kirby J (1995) 69 ALJ 964 at 971.
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115
The Decision to Plead
“Justice?-You get justice in the next world.
In this one you have the law.”
William Gaddis
It is very easy for counsel to regard a plea in mitigation as “just another plea”.
This is likely to be so if the nature of your practice involves the making
of many pleas in relation to offences commonplace before the courts e.g.
for traffic offences in the Local Court. It is necessary for counsel for the
prosecution and for the accused to remember that each plea is important and
the presentation of that plea should not be a mechanical exercise following
some worn out formula.
For defence counsel the importance to your client of the plea is obvious. It
is your client who will wear the consequences of any failure on your part to
place before the court all relevant material in the most effective way.
Whilst there will be a significant difference between your preparation for, and
presentation of, material in support of a plea to a minor traffic offence when
compared with one of the more serious offences under the Criminal Code, it
is necessary to bear in mind that each involves an exercise of advocacy skills.
Effective advocacy is important at all levels of the criminal justice system.
The first matter for consideration is whether there will be a plea of guilty
and, if so, to what offence. At that time it will also be necessary to determine
whether the factual basis of the plea can be agreed.
The decision whether or not to plead guilty is one for the accused alone.
It is not for counsel. Counsel for the defence is duty bound to advise the
accused of the benefits of entering a plea including the fact that such a plea
is regarded as a mitigating factor by the courts in the sentencing process.
Where necessary the advocate is entitled to address all aspects of the case
and provide advice in strong terms that the accused is unlikely to escape
conviction and of the benefits of a plea in the particular case. However in the
end the accused must be allowed complete freedom of choice as to the plea
he or she wishes to make.
In circumstances where an accused person denies having committed the
offence charged but nonetheless insists upon pleading guilty to it, counsel
may continue to represent the accused person but only after advising the
accused of the consequences of such a course of action.
In particular, the accused should be informed that submissions in mitigation
will necessarily have to be presented on the basis that the accused is guilty
of the offence charged. It is obviously not possible to have the client plead
guilty and then present submissions inconsistent with that plea.
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If your client denies having committed the offence but insists upon entering
a plea of guilty it is prudent for you to obtain written instructions from the
client, if that be possible, that a plea of guilty is to be entered.
In the event that a plea of guilty is to be entered defence counsel should
endeavour to settle with the prosecutor the facts that are to be placed before
the court by agreement. If agreement can be reached this is to the advantage
of all and especially the accused.
It enables both counsel to have better control of the plea and to make
submissions they can confidently assume will not be contradicted by the other
side. For counsel for the defence it allows for better control and presentation
of the plea in mitigation on behalf of the client. It avoids nasty surprises.
Included in the matters that should be agreed with the prosecution prior to
the entry of a plea of guilty is the criminal history of your client, the terms
of any victim impact statement to be provided to the court and any other
information of a negative kind upon which the prosecutor proposes to rely.
In the event you are unable to wholly agree matters with the Crown you
should endeavour to identify with precision the areas of dispute and to limit
those areas so that plea in mitigation in relation to other areas may proceed
without fear of contradiction.
When agreed facts are to be presented to the court it is important both
prosecution and defence counsel take care to ensure the negotiation process
does not produce a set of facts that does not make sense or is inconsistent
with the plea to be entered. It should be remembered that the sentencing
judge is not obliged to accept and act upon the facts as agreed by the parties.
In Chow v DPP (NSW) (1992) 28 NSWLR 593, Kirby P (as he then was) observed:
The foregoing rules do not oblige a sentencing judge passively, and
unquestioningly, to accept facts as the basis for sentencing which are presented
by the prosecution and/or the accused. The judge’s sentencing discretion is to be
exercised in the public interest. Even where the prosecution and the accused are
agreed, they cannot fetter the judge’s performance of the judicial function by
their plea bargaining... A statement of agreed facts may appear to the sentencing
judge to be inadequate for sentencing purposes. The judge may feel the need
for further material, for example, by way of pre-sentence report to assist in the
performance of the sentencing function. The parties cannot forbid the judge to
seek such assistance.
If the agreed facts disclose a more serious offence than that to which the
accused has pleaded guilty then both counsel, and in particular the prosecutor,
should be in a position to justify the acceptance of the plea in fact made.
Whilst it is not for the court to determine the charge presented or the plea
thereto, it is for the court to determine the appropriate sentence.
In providing your client with advice to plead guilty it is obviously important
you do not raise unrealistic expectations as to the likely outcome of the
proceedings. If a custodial penalty is likely then the client should be aware
of that fact. If you raise unrealistic expectations in your client then the
repercussions of your actions will be visited upon you when the sentence is
handed down.
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Preparing the Plea
Wherever possible, defence counsel should take instructions at an early time.
Those instructions should be as detailed as circumstances permit and should
cover the facts and circumstances of the offending and the identification of
any mitigatory information that may be available. In taking instructions it is
important to remember your client is unlikely to be aware of what is and is
not relevant, let alone important.
It is therefore necessary for you to carefully probe to obtain the information
necessary for the proper presentation of the plea. You will wish to explore
with the client the areas of information that are likely to assist. You will need
detailed instructions both as to the offence and as to the offender.
The information you obtain at this time will be used by you in providing
advice to the client as to whether or not a plea of guilty should be entered
and, if so, as to which charge or charges.
The information will also lead you to other avenues of investigation for
the purposes of presentation of the plea. For example, as a consequence
of your discussions with your client, you may identify matters that require
the gathering of further information such as: employment details from an
employer and the likely consequences for that employment of the plea; the
identity of referees; the need for any psychiatric or psychological assessment
of your client; further information from others regarding the family and home
circumstances of your client and so on. For defence counsel, if a psychological
or psychiatric assessment is to be made of your client that should be attended
to at an early time. When the report of the psychologist or psychiatrist is
obtained you should ensure it deals with all of the issues you regard as
necessary for the proper presentation of the plea.
You will also need to ensure you fully understand what is being said by the
expert and, if there be doubt, you should contact the expert for clarification.
Having determined that a plea of guilty will be entered to an identified
charge or charges it is necessary to prepare for the plea. As a matter of
practicality the preparation of the plea and the information provided to the
court in respect of the offence and offender will vary depending upon the
circumstances.
Obviously a plea to a minor offence will not usually require the detailed
preparation and presentation that will be involved in an offence of a more
serious kind. It is important that you tailor your plea to the circumstances of
the particular matter and that you bear in mind what is appropriate for the
nature of the offence.
When preparing for a plea, depending upon the nature of the offence, there
are likely to be many things for both the prosecutor and counsel for the
defence to consider.
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A convenient summary of some matters to be considered is to be found in
sections 5 and 6 of the Sentencing Act. You may wish to use those sections
as the source of a checklist for topics likely to be necessary to address. Each
counsel will need to determine how he or she is going to deal with these
matters in advance.
As a general proposition counsel should be conversant with the provisions
of the legislation creating the offence along with the requirements of the
Sentencing Act and other relevant principles relating to the sentencing of
offenders for offences of the kind then before the court.
Consideration should be given to the need to address the principles of
sentencing found in those locations. Issues such as the need for general and
specific deterrence, the totality principle, the need for parity in sentencing
with co-accused and the like need to be considered in each case.
It is important both counsel be familiar with the facts that are to be presented
to the court and the surrounding circumstances of the offence. Counsel
should be in a position to inform the court of relevant provisions within
the legislation creating the offence including the maximum penalty and any
provisions of the Sentencing Act or any other legislation that may have an
impact upon the capacity of the court to deal with the matter. Both counsel
should be aware of the sentencing options open to the court and be in a
position to discuss those with the court should that become necessary.
Counsel need to have in mind the dispositions they regard as appropriate
and submissions should be addressed and guided by a “case strategy”.
Defence counsel, in particular, should be aware of the likely and appropriate
disposition of the matter.
As I indicated on an earlier occasion, the accused should be made aware of
the likely disposition. In making submissions to the court it is inadvisable for
counsel to call upon the sentencing to impose what must be an inappropriate
sentence. To do so is to detract from other submissions that you make in
favour of your client because those submissions must flow from an unrealistic
assessment of the criminality or culpability involved.
If the matter is a serious matter then you should face up to it. The plea of
guilty acknowledges an offence of a particular level of seriousness has been
committed and if that offence is correctly characterised as “serious” then
you, as counsel, should acknowledge it to be so.
The court relies upon both prosecution and defence counsel at all times but
this is particularly so in the making of a plea in mitigation. The court will
accept a lot of information from the bar table based upon the unchallenged
assertions of counsel.
It follows that counsel must take great care in presenting information to the
court to ensure the court is not misled or left under a misapprehension as to
the circumstances of the offence or the offender or as to the impact of any
legislative or other authority upon the matter at hand.
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Presenting the Plea
In nearly every case the plea in mitigation and the whole sentencing process
will be an extremely stressful and daunting experience for your client.
For the sake of all concerned, including your client, one of your aims will be
to ensure the exercise proceeds as smoothly as circumstances permit. You
should assist your client to be as comfortable as possible in the circumstances
that prevail.
This will include ensuring your client knows what to expect in the course
of proceedings. It is important you explain the procedure to your client
including the roles of the various people in the court, where and when
your client should stand, what he or she will be asked and how he or she is
expected to respond.
As with other exercises in advocacy, your plea should be prepared in advance.
You will develop and follow a predetermined case strategy. You will determine
in advance those issues you propose to address and the order in which you
propose to address them for maximum effect.
When delivering the plea you should be clear in your language and you
should, so far as possible, be succinct in your presentation. You will, so
far as time and resources permit, have available to you all information
necessary to permit you to present a full and effective plea on behalf of your
client. You will have considered in advance of the presentation of the plea
problems which may arise both from the position adopted by the Crown and
from matters likely to be raised by the Bench and you will have settled upon
methods of satisfactorily resolving these.
If you are to present written character references on behalf of your client you
should endeavour to obtain those at an early time. Insofar as is possible you
will ensure each referee acknowledges in the body of the reference that he or
she is aware of the offending of your client.
Defence counsel will determine in advance whether to call evidence in the
course of the plea. You will need to consider whether to call evidence from
your client and whether to call evidence from any of the referees. In making
your decision whether to call the client to give evidence careful consideration
must be given to whether such a course will be to his or her advantage.
There will be cases where the course to be adopted will be clear. In some
cases it will be necessary to call your client in order to satisfy the court of
some particular matter. In others it may be clear the client should not be
called. In most cases it will be a matter for the careful exercise of judgment
in all the circumstances. If you propose to call character evidence you should
ensure you first speak with the witness. Do not call the witness cold.
Before the witness enters the witness box you will be conversant with what
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he or she is prepared to say and,
importantly, what the witness is
not prepared to say. I am aware
of one instance where a character
witness was asked to give
evidence as to the past honesty of
the prisoner and did so. However
counsel, without instructions,
went on to suggest to the witness
that his client was a good worker
only to be met with the response:
“no, he is a bludger.”
Both counsel should be in a
position to deal with any issues
that may arise as to the law relating to the offence, the law relating to
sentencing, the facts of the particular matter and the range of appropriate
dispositions.
Defence counsel will have informed the client of the available dispositions
and obtained instructions as to each. Counsel for the prosecution will have
considered what is and what is not within the range of appropriate dispositions
and be in a position to address those issues where necessary.
In some cases referring the court to comparative sentences will not be
necessary and in others it will. Some judicial officers do not find great
assistance in being referred to comparative sentences whilst others regard it
as an advantage. Much will depend upon the nature of the case. You should
be in a position to meet the needs of the court whatever they may be. It is
necessary to bear in mind that the appropriate sentence will always depend
upon the individual circumstances of the case.
Often a particularly difficult issue for defence counsel will be the question of
remorse.
Submissions are frequently made that the client feels remorse or is sorry for
what he or she has done. If such a submission is made as a bald assertion
from the bar table it is less likely to receive as much weight in the sentencing
process as it would if supported by reference to an objective source e.g. to the
making of restitution, to the immediate acceptance of responsibility by your
client, by information provided by others as to the impact of the offending
upon the offender and so on.
Genuine remorse is obviously an important factor in the sentencing process and
great care should be taken in identifying information regarding any remorse
that your client may feel and presenting it in the strongest possible light.
Although making a plea in mitigation or presenting the prosecution case on
a plea is something that may be done by you with great frequency you should
remind yourself of the importance of the occasion to both the community and
to your client. You should endeavour to ensure that you do not treat such an
occasion as “just another plea”.
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The Application for Bail
It sometimes appears that the application for bail is something of an
afterthought on the part of counsel. That should never be the case.
The importance of the application to your client is obvious. An unsuccessful
application means further time in custody and that is likely to be an unhappy
experience for your client and provide a poor start to your professional
relationship. It follows that careful thought must be given to the question of
bail prior to the first appearance before the court.
Of course in many cases the position regarding bail will be clear. The obtaining
of a grant of bail, in some cases, will be little more than a formality. However
in such cases you should prepare on the basis that the court will need to be
convinced a grant of bail is appropriate. In other cases it will be clear a grant
of bail is not an option. In many cases a thoroughly prepared application is
likely to be required.
As with most appearances before a court appropriate preparation is vital to
the presentation of an application for bail. It is necessary that a case strategy
appropriate to the circumstances be developed and followed.
The starting point for your preparation will be obtaining a thorough
knowledge of the workings of the Bail Act. That Act provides for “the granting
of bail to accused persons in or in connection with criminal proceedings.”
I do not propose to review the Act in detail. It provides for circumstances
where there is a presumption in favour of bail, a presumption against bail
and where there is no presumption either way i.e. the situation is neutral.
You will need to bear in mind where the onus lays as a consequence of those
provisions. Of particular relevance to your preparation for the application
will be the operation of s24 of the Act which identifies the criteria a court
must take into consideration in reaching its decision on a bail application.
The level of your preparation will obviously depend upon the time available to
you. In many cases time will be limited and you will have to do your best in
the circumstances. Where you have adequate time for preparation of the bail
application there are many things to consider. Some of those are spelled out in
s24 of the Act and you will give consideration to each matter there identified.
What is important for the application will vary according to the nature of
the offence and the nature of the offender. The fact that the offender has a
criminal history does not necessarily mean that bail will not be granted. Such
a history may indicate the client has previously honoured undertakings made
to the court and can call upon his or her history as support for the making of
a grant of bail on this occasion. The fact that the offence is serious does not
necessarily mean bail will not be granted. Bail is regularly granted in matters
as serious as murder.
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It will be necessary to obtain clear and detailed instructions from your client
on the issues likely to arise. In many cases these will include an effort to
identify an acceptable surety and the development of a plan for what will
occur in the event your client is released. For example, you will need to
know where he or she intends to live and work and what assurances can be
provided to the court as to the attendance by your client at the hearing and
that there will be no interference with witnesses.
The prospect that your client may reoffend whilst on bail is another issue to
be addressed. If bail is likely to be granted subject to conditions then it will
be necessary for you to explain to the client the impact of those conditions
and ensure the client fully understands that a breach of such a condition is
likely to result in further time in custody.
When obtaining instructions from your client as to conditions that may be
imposed, it is necessary to ensure he or she appreciates the importance of
the undertaking to be given. If the client is unlikely to be able to comply
with a condition (e.g. a reporting condition, residential condition or curfew)
you should be in a position to inform the judicial authority of that problem.
Agreeing to conditions which a client is unable or unlikely to meet is to set
the client up for failure leading to arrest and a period in custody whilst the
matter is revisited.
If acceptable sureties are identified you will need to speak with those persons
to confirm their willingness and ability to accept the responsibility. The
surety needs to be made aware of the likely consequences for the surety if
the bail conditions are breached.
It is prudent to have frank discussions with the prosecutor before the
application proceeds. It may be possible to negotiate an agreed basis for
the grant of bail which can then be put to the court as, effectively, a joint
submission. Alternatively it may be possible to reduce the area of conflict
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123
between prosecution and defence so only the matters in dispute need be
addressed.
In your discussions with the prosecutor you should obtain information
as to your client’s criminal history, the history of compliance with bail
undertakings, the submissions to be made by the prosecutor in relation to
the strength of the Crown case and the general attitude of the Crown to the
whole of the application.
Wherever possible, before making an application for bail, you should give
the prosecution notice of your intention so there is no application from the
prosecutor for an adjournment to obtain instructions or to prepare to meet
the application.
A matter of interest to the court will be the length of time your client is likely
to remain in custody prior to trial in the event that bail is not granted. You
should therefore make enquiry of the Court Registry as to when the matter
is likely to be able to be given a hearing date and you will be able to provide
that information to the court.
Any court appearance that involves the liberty of your client is clearly a serious
occasion. You should ensure your preparation permits you to effectively
present the strongest case for the relief your client seeks.
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Interlocutory Applications
“Never mistake motion for action.”
Ernest Hemingway
The Supreme Court Rules are designed to limit the need for interlocutory
applications to the court. The Rules now permit matters that once called for,
or allowed for, the intervention of the court to proceed without reference
to the court. The Rules positively discourage the making of unnecessary
applications by providing that each party shall bear its own costs of an
interlocutory application “unless the court otherwise orders” (r63.18). The
application of this rule is considered in TTE Pty Ltd v Ken Day Pty Ltd (1992) 2
NTLR 143, Yow v NT Gymnastic Association Inc. (1991) 1 NTLR 180 and Johnson v
The Northern Territory of Australia [2015] NTSC 15.
Before launching an interlocutory application you should consider all
available alternative approaches. Bear in mind that, once commenced, such
proceedings have the potential to become significant legal battles in their
own right. They have the potential to divert resources from, and to distract
you from, the preparation of the substantive proceedings. Notwithstanding
the effect of r63.18 there is also the prospect that debilitating cost orders
may follow an unsuccessful or unnecessary application. In the event you
have concluded that such an application is necessary you will then turn to a
consideration of how to proceed.
The approach of the advocate to a defended interlocutory application will
reflect the approach adopted for a substantive hearing. Preparation will be
the key. It will be necessary to formulate a case strategy relevant to the
interlocutory application and to be guided by that strategy throughout the
presentation of the application.
At an early time in the course of preparation you will clearly identify the
source of the power the court is being asked to exercise. This will usually
be by reference to an identified rule within the relevant Rules of Court or
by reference to the inherent power of the court. If you are to rely upon
the inherent power of the court, the basis of that submission should be
determined in advance. It is unlikely to be enough to merely assert that the
court has inherent power. In many cases reference to authority will also be
necessary and you should have the relevant authorities to hand.
If evidence is to be produced in support of the application you will ensure
the appropriate affidavit material is available in admissible form. You should
not permit yourself to be placed in a position where you have to seek to give
evidence from the bar table to cover a deficiency in the material you present.
The need for such an application reflects inadequate preparation on your part.
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If your opponent is not cooperative you may need an adjournment to enable
the appropriate information to be provided to the court in admissible form.
An adjournment is likely to have unnecessary and adverse cost consequences
for your client.
When evidence is to be produced on affidavit in relation to an interlocutory
matter, careful consideration should be given to the identity of the deponent.
This consideration will necessarily be in light of the proceedings as a whole
and not just by reference to the application immediately to hand. It needs
to be borne in mind that the deponent may be required to attend to be
examined before the court on the interlocutory application (r40.04). You will
need to ensure the chosen deponent is both willing and available to be crossexamined should it become necessary.
Whether you want a particular witness exposed to cross-examination at an
early stage in the proceedings may also be a matter for careful thought. If a
witness is vague or is likely to present poorly for some reason you will not
want to make that fact known to your opponent by presenting him or her
for cross-examination on a preliminary matter. It may be preferable to avoid
exposing that potential witness to attack so early in the proceedings. You
may prefer to have someone else who is familiar with the relevant material
swear the affidavit.
In choosing your deponent you should consider the use of r43.03 which
provides that, on an interlocutory application, an affidavit may contain a
statement of fact based on information and belief if the grounds of that
information or belief are set out. One option commonly adopted, often
without apparent thought for the consequences, is for the legal adviser to
become the deponent. Before you rush into making the affidavit yourself
you should remember you may thereby become the person who is required
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to attend for examination before the court. It is obviously inappropriate for
you to be both counsel and a witness in relation to the matter and you will
need to fully consider the implications of becoming the source of evidence in
relation to a particular part of the proceedings, even at an early stage.
When you appear before the court to argue an interlocutory application you
should present your argument in an ordered fashion. You will need to identify
the evidence upon which you rely and be in a position to meet any objections
to that evidence which may be made by your opponent. You should have
available to you all of the materials upon which you rely in a readily accessible
form so you can deal with any questions that may arise in discussion with
the court. If you have prepared a chronology it is often convenient to identify
the source of the information contained in the chronology by reference to the
affidavit material or to the pleadings. This will enable the court to quickly
comprehend the factual basis upon which the argument is presented and will
assist in the formulation of reasons for decision.
As with all appearances before a court or tribunal you should endeavour
to present the application in a persuasive, interesting and ordered manner
ensuring you deal with all necessary matters in an effective yet concise way.
Your case strategy will at all times guide the presentation of the argument.
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Written Submissions
“The covers of this book are too far apart.”
Ambrose Bierce
In Australia the tradition of the Bar is an oral tradition. Historically there has
been little emphasis placed on the need for the advocate to develop skills in
the presentation of written argument. That position is changing.
Over the years the call for, and the use of, written submissions has increased.
It must be anticipated that this movement will continue. The ability to
produce effective and persuasive written argument is a skill the advocate
must develop.
Written submissions may be employed in many areas of advocacy. As with
the presentation of oral argument, the presentation of written argument
must be tailored to suit the circumstances. The outline of argument that
precedes an appeal will be a quite different document from the detailed
written submissions produced at the completion of a lengthy civil trial. It is
necessary for the advocate to be conscious of the needs of the occasion and of
the audience being addressed.
In the appellate setting the potential impact of the written submission should
be understood and exploited. This is the first opportunity the advocate has
to direct, or at least influence, the thinking of the court. Not only does the
written argument have initial impact, if well-structured it should have
ongoing impact. When the hearing is at an end and the members of the court
retire to write their judgments one of the sources to which they will turn is
the written material. In 1984 Mason J of the High Court lamented that:
Written submissions tend to be either too lengthy so that the arguments are
lost in the forest of detail, or too scanty so that the points are listed seriatim like
particulars of negligence without the supporting elaboration which gives flesh
and blood to the bare bones of the proposition. In the process, persuasion which
is the object of all presentation, seems to have been overlooked.1
In preparing your written submission it should be borne in mind that it is your
opportunity to present your argument in a concise and direct manner. The
argument can be presented and considered in its entirety by your intended
audience without the interruptions or distractions that sometimes affect oral
argument. In that sense it has both an immediate and an enduring impact.
It sets the tone and directs the course for what is to follow. It may then be
revisited when the judgment is being written.
The written argument presented in advance of an appeal should be concise
and to the point. In some courts the extent and form of presentation of
the written material is governed by the rules or practice directions of the
court. For example in the High Court on the hearing of an appeal the written
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submissions are to be no more than a specified number of pages in length
except with the leave of the court. The practice directions of that court also
address the requirements as to form and content.
Whilst you must comply with the requirements of the courts it is necessary to
present the argument in a powerful yet succinct way. Careful consideration
must be given to what is to be included, what is to be omitted and the most
effective order of presentation. The structure and content of both opening
and closing submissions require particular attention. The interest of the
reader must be engaged and held throughout the document.
As with oral argument the advocate should avoid the temptation to address
all issues that may arise. It is necessary to be selective and deal only with the
issues worthy of consideration in that forum. The issues dealt with should be
addressed in a logical and persuasive way. The argument should be designed
to capture and hold the attention of the court. It should stimulate the interest
of the court.
Generally speaking it is unnecessary and unwise to include substantial
quotations or extracts from other written material in written submissions
on appeal. A short summary of such material and a clear identification of the
location of the source of the information will suffice. Where appropriate the
source material can be presented to the court in an accompanying folder.
The written submissions should be such that it is possible for the court to
take the submission and use it as the basis for the judgment to follow. It is
the sign of a well-constructed written submission that the advocate sees it
reflected in the judgment ultimately delivered.
In preparing the document it will be necessary to consider the audience to
whom it is addressed. If the matter is before a superior court it is unlikely to be
necessary to remind the members of the court of basic principles of statutory
interpretation or sentencing or whatever the topic being addressed may be.
Insofar as it is possible the document should be attractively packaged. In
longer documents the use of headings to identify what is being addressed at
a particular location is of great assistance. The use of a clear font and print of
reasonable size is obviously desirable.
In preparing written submissions it is necessary to bear in mind that your
subsequent oral submissions should match those earlier lodged in writing. In
recent times the Court of Appeal in New South Wales has delivered warnings in
this regard. It has reminded practitioners that the court may order that costs
thrown away by an adjournment be paid by the legal practitioner where the oral
submissions failed to match those lodged in writing and that, in an extreme
case, the court may decline to hear oral argument outside the parameters of
the written argument unless there has been some good explanation for the
disparity: Lake Macquarie City Council v McKellar (2002) NSWCA 90. An interesting
article dealing with written submissions in appellate matters is to be found at
(2002) 22 Australian Bar Review 149.
The importance of written submissions to the effective presentation of a case
should not be underrated by the advocate.
1.
(1984) 58 ALJ 537 at 541.
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129
The Urgent Interlocutory
Injunction
“I will prepare and someday my chance will come.”
Abraham Lincoln
If the application you are instructed to make is for an urgent interlocutory
injunction there are special considerations to bear in mind. The success or
otherwise of such an application can, in many cases, mean success or failure
in the whole action. As is noted in Injunctions: A Practical Handbook 1.
In some cases, the result of a final hearing will be purely academic after
the interlocutory result; in others, the passage of time will cause parties to
lose interest; but most importantly the determination of an application for
interlocutory injunction will often give the parties to a dispute an insight into
the approach of the court in determining matters in dispute.
The granting of an interlocutory injunction calls for the exercise of a discretion
by the court. Where there is a serious issue to be tried the court will be called
upon to consider where the balance of convenience lies. That will usually
involve a delicate act of balancing the competing interests of the parties.
Often there will be no clearly correct, or even preferable, response to the
problem that arises. In many cases one party or another will be substantially
disadvantaged by whatever decision the court reaches. In those cases the
slightest of matters may sway the court in one direction or another. In such
circumstances the skill of the advocate in presenting a persuasive argument
will be vital to the interests of the client. Any failure to present the case for
the client in a clear, compelling and forceful way may have consequences for
the client of an ongoing and significant kind. Such consequences are likely to
reach far beyond the outcome of the application immediately before the court.
Applications of this kind are often dealt with on short notice and in an
emotionally charged atmosphere. There is little time for preparation of
evidential materials to be placed before the court let alone for reviewing and
refining issues of law. Given the nature of such applications it is prudent
for the advocate to be aware, in advance, of the relevant law in relation to
applications for interlocutory injunctive relief.
In order to avoid delay and possible embarrassment when instructions are
received, preparation of a general kind for such applications should take place
in anticipation that instructions may be received on some future occasion.
In my view it is highly desirable for an advocate to have researched the topic
so he or she has a ready familiarity with the applicable law. It is prudent
for the advocate to have created and maintained a precedent file in which
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the leading general authorities relevant to such an application are stored. It
should be possible to address any aspect of the law relating to the granting
of an injunction by reference to the materials in the file. Also included in
that file should be any other information that experience suggests may be
of use in presenting or opposing an urgent application. Resort to such a
file can then be had on short notice saving precious preparation time and
avoiding the possibility that some failure on the part of the advocate will
cause embarrassment in the course of the proceedings. When instructions
to seek injunctive relief are received the advocate will be able to concentrate
upon the issues raised by the factual circumstances of the matter without the
need to research the law.
This is not an appropriate place to review the law relevant to such applications;
however, to demonstrate the desirability of anticipatory preparation, I refer
to two matters vital to such applications. First, if the application is to be
ex parte, in preparing the material for presentation to the court it must
be remembered that there is an obligation on the applicant to bring to the
attention of the court all facts material to the application. As is pointed out
by Mr Burns: “the entire facts of the case must be fairly and candidly stated.
If this is not done, the injunction will be dissolved.” The applicant must
demonstrate the utmost good faith.
Second, the need for clear instructions to provide the “usual undertaking as
to damages” should not be overlooked. The form of the usual undertaking
in the Northern Territory is to be found in Practice Direction 3 of 1992.
Your client must understand the nature of the undertaking and the possible
consequences for him or her of providing it to the court.
In a matter that is factually or legally complex, and where time permits, you
should consider the use of a chronology and an outline of submissions for
presentation to the court prior to or at the commencement of the hearing.
In an application of this kind,
where the outcome is most
likely to be directly affected by
the quality of the submissions
made by the advocate, you
will call upon your early
anticipatory
preparation
and the advocacy skills you
have developed elsewhere
to present the application in
the most persuasive manner
possible.
1.
NR Burns, Injunctions: A Practical Handbook (LBC 1988.
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131
Written Submissions
After Trial
“The pen is the tongue of the mind.”
Cervantes
The written submissions presented after a lengthy civil trial will be of a
different order from those presented in advance of an appeal or in support of
an application. The submissions in such circumstances will be an even more
direct attempt to assist the court to write the judgment. Again the more you
see of your written submissions reflected in the judgment the greater the
compliment to the work you have done.
The matters to be addressed in written submissions of this kind will be wider
in scope and more detailed in content than submissions on an appeal. Rather
than being limited to those matters that are central, the submissions will
also address topics that may be of interest to the court including those which
may or may not be addressed in the judgment. The submissions will identify
and address argument on all topics that may be considered by the court to be
relevant to the judgment to be produced. The focus will not be as narrow as
in the case of an appeal.
The length and detail of the written submissions will reflect the nature of the
case. In a simple and straightforward case the scope for the use of written
submissions will be limited. The longer the case, the more diverse and
complex the issues, the greater the need for written submissions.
At the conclusion of a lengthy civil trial the written submissions will be
directed towards drawing together the information presented to the court
over a period of time. The aim will be to present that information in a
succinct and manageable form for the judge to take away and (hopefully) use
as a platform for the judgment or, at least, parts of the judgment.
It follows that the submissions should be organised in such a way as to enable
the judge at a time distant from the hearing to quickly determine where a
particular topic is addressed and go straight to it. Where there are many
issues to be addressed in a judgment the submissions should be structured
to permit the court to focus on each individual topic rather than to have to
trawl through the whole document to discover what is submitted in regard
to a particular issue.
Similarly, if the court has formed a view that a particular matter raised in the
course of the hearing is irrelevant, or at least need not be addressed in the
reasons for decision, it should be possible for the writing on that topic to be
readily identified and put to one side.
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Generally speaking, in order to achieve this, the written submissions should,
so far as possible, be divided into discrete topics. Depending upon the volume
of material to be covered it may be prudent to have an executive summary at
the beginning of the submissions which can be quickly read and understood
by the judge. If the judge wants more information in relation to a particular
topic, or the opportunity to see how the argument is developed, then his or
her attention can be directed to an argument presented in greater detail in
an attached schedule or under a heading later in the material. However if the
judge does not need to have greater elaboration of the argument then he or
she can adopt or reject that which appears in the summary and move onto
the next topic.
Notwithstanding that submissions of this kind will be more expansive than
in the case of appeals many of the same observations and warnings continue
to apply. The volume of material presented to the court should not be offputting for the judge. Prolixity and repetition should be avoided. The language
adopted should continue to be direct and succinct rather than discursive. The
argument should be presented in a logical and persuasive way.
Where a conclusion is to be drawn from a body of evidence, or where a
figure is to be calculated based upon materials introduced during the course
of the hearing, the conclusion or figure should be identified in summary
form either in the body of the submission or in an executive summary. The
calculations or the logical argument that supports the conclusion should be
detailed in an attached summary. In effect the advocate should do the work
for the judge. The judge should not be left to flounder through voluminous
material to ascertain information and then carry out calculations or extract
conclusions. Obviously counsel should take great care in this process. An
accurate presentation of any source material must be ensured. If the court
cannot or does not feel it can rely upon counsel to accurately extract
information or carry out calculations then the court will have to undertake
the exercise itself.
When written submissions are provided to the court it is not necessary to read
them to the judge or tediously paraphrase them. You may wish to summarise
the material and develop arguments in certain areas, especially areas likely
to be significant in resolving the case. Remember the written submissions
are an aid to the presentation of the strongest case available to your client.
They are to be used in conjunction with your oral submissions in order to
persuade the tribunal to a particular point of view.
The use of written submissions as a tool of advocacy is now well recognised.
It is essential the advocate develop the skills necessary to make effective use
of this tool.
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The Litigant in Person – Part 1
“Litigation takes the place of sex at middle age.”
Gore Vidal
In cases where a litigant appears in person rather than with legal
representation, problems are usually created for the court and for any
counsel appearing in the matter.
Whilst many who choose to be litigants in person may be rational, intelligent
and thoughtful, that will not always be the case. It is not unusual to find such
people are obsessed by a grievance to the point of lacking any semblance of
balance or objectivity regarding the issue. Even in cases where it would be
unfair to characterise the litigant as obsessed, he or she may be so close to
the problem as to be unable to take an objective view of it. Dealing with such
a person requires both patience and skill.
Although a particular self-represented litigant may have a good appreciation
of the court procedures and a realistic view of what may be achieved in the
action that is often not the case. The litigant is unlikely to have any real
idea of his or her rights or obligations. They are likely to be confused by
the procedures and the language. In many cases the litigant will take the
view that all he or she need do is tell their story without regard to, or even
knowledge of, the need for an identified cause of action or compliance with
rules of evidence.
A simple statement of the grievance will suffice. The underlying assumption
of the litigant is that such matters can be left to the court to sort out and
the court can be trusted to rummage through the information provided and
deliver justice.
It is generally accepted that a person who is self-represented in proceedings
before a court is ordinarily at a disadvantage because of his or her lack of
representation.1 Litigation involving a litigant in person is usually conducted
in a less efficient manner than other litigation and tends to be prolonged and
convoluted.2 When counsel is confronted by a litigant in person, different
and sometimes awkward problems arise. Preparation for the case and
presentation of the case is likely to be markedly different from what would
be expected if the litigant was represented.
In the criminal sphere the Judge has a duty to ensure the person charged
receives a fair trial. An obligation of a similar kind arises in civil proceedings.
In order to ensure a fair trial the trial Judge is obliged to walk a line between
assisting the litigant by providing information that will enable him or her
to determine how best to conduct the case and not offering the litigant
inappropriate “advice, guidance or representation”. The Judge must be sure
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a litigant is sufficiently informed so as to ensure that he or she is able to
obtain a fair trial, but must not cross the line by creating the impression that
the neutrality of the Judge has been compromised.
In criminal proceedings where the accused is self-represented the prosecutor
is to some extent in a similar position to the Judge. As Deane J observed in
Dietrich v R the prosecutor has a duty to act fairly, however:
…it is not part of the function of a prosecutor to advise an accused before the
commencement of a trial about the legal issues which might arise in the trial,
about what evidence will or will not be admissible in relation to them, about
what inquiries should be made to ascertain what evidence is available, about
what available evidence should be called, about possible defences, about the
possible consequences of cross-examination, about the desirability or otherwise
of giving sworn evidence or about any of a multitude of other questions which
counsel appearing for an accused must consider.3
In Dietrich v R, Toohey J discussed the role of the prosecutor in such cases and
said (354):
While the prosecutor must act fairly towards the accused and can offer some
assistance, the prosecutor cannot tell the accused how to conduct his or her
defence. Indeed, a prosecutor would need to tread carefully in dealing with the
accused in order to avoid compromising the prosecutorial role.
Difficulties often arise for prosecutors and, in civil proceedings, counsel
appearing against the litigant in person, because the court, almost of
necessity, looks to opposing counsel for assistance in understanding the case
of the self-represented litigant. In order to gain an understanding of the case
and carry out its function the court seeks assistance from the only legally
qualified person at the Bar table.
The problems for counsel who is placed in that position by the court are
immediately apparent. How far should (or must) counsel go in identifying,
disclosing and stating clearly the case for the litigant in person? The
problem will be particularly acute if the litigant in person has not thus far
addressed or raised causes of action or defences that may be available and
which the opposing counsel would rather not meet or about which counsel
may not have sufficient information. In such circumstances, counsel will be
in danger of making submissions contrary to the best interests of the client
he or she represents.
In a criminal matter the prosecutor may be effectively (and possibly most
reluctantly) providing advice to the self-represented accused in the process
of discussing with the Judge what options may or may not be available to
the accused. The same may be the case in civil proceedings. For example,
in trying to make sense of a discursive statement of claim drawn by a selfrepresented plaintiff, counsel for the defence may identify causes of action
of which the draftsman was not aware.
In discussions with the court care is required to avoid being seen to provide
advice to the litigant in person. What happens if the advice is wrong or if the
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prosecutor or other counsel is not aware of important matters known only
to the accused or other party? What happens if the self-represented litigant
changes approach in reliance upon something said by counsel and disaster
follows?
The dangers in dealing with a litigant, who is not bound by the same rules
of conduct and who, through ignorance or lack of experience, may be misled
or, alternatively, may cynically take unfair advantage of your actions which
were designed to assist, is a problem for the advocate. Caution is required at
every step.
1.
Dietrich v R (1992) 177 CLR 292 at 344-345.
2.
Cachia v Hanes (1993-1994) 179 CLR 403 at 415.
3.
Dietrich v R (supra) at 335.
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The Litigant in Person – Part 2
“Unrepresented litigants present our courts with
significant difficulties.”
Kirby P1
I have previously discussed some of the problems that arise for counsel
because of the presence of a litigant in person. The topic is large and I offer
some further observations.
Difficulties are likely to arise long before you get to court. You can expect
problems with pleadings and especially obtaining a satisfactory definition of
the issues to be addressed at the ultimate hearing. In many cases the pleadings
will be confused and contain irrelevant and embarrassing allegations and
assertions of “fact”. The causes of action are unlikely to be clearly identified.
When a pleading is challenged the court may be expected to allow significant
leeway to the litigant to enable the pleading to be placed into an intelligible
form. It is not uncommon for the court to take a more generous view of what
is an adequate pleading simply to ensure the matter gets on for hearing and
an arguable case is not lost on a pleading point. The court may be expected to
be more forgiving of procedural and evidentiary errors made by a litigant in
person. Whether that should be so may be a matter for legitimate debate but
counsel will have to deal with the reality.
Further, difficulties may arise because of the duty owed by counsel to the
court. There is a duty of candour owed to the court in the presentation of the
facts and of the law. As is well known, that duty may at times involve counsel
acting to the disadvantage of his or her client. Counsel must not mislead the
court but that is “an amorphous obligation and one that creates a difficult
burden for counsel appearing against a litigant in person. The capacity of
silence to be characterised as misleading in a variety of circumstances is well
recognised.”2
In the Northern Territory case of Laferla v Birdon Sands Pty Ltd (1998 unreported)
Mildren J said:
It is sometimes thought that counsel owes a duty to the unrepresented litigant
to ensure that he is assisted to properly put his case to the court. In my opinion
counsel owes no duty to the unrepresented litigant. There is surprisingly little
written about this topic, as it applies to this type of situation, but the practice of
the Bar has always been to draw to the court’s attention any matter which will
assist the court to decide the case in accordance with law and to ensure a fair
trial. Thus, counsel is required to put before the court any relevant decision of
which he is aware and which he believes to be immediately in point, regardless
of whether it be for or against his contention. This is so in all cases, regardless of
whether a party is represented, but it is interesting that Sir William Boulton in his
work “Conduct and Etiquette at the Bar”, 6th edition at page 75, observed that the
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137
rule “must be observed with particular care in ex parte proceedings and where an
opposite party is appearing in person”. Similarly, if a litigant in person fails to call
evidence about some matter which is essential to his case, this would be a matter
that counsel should bring to the court’s attention so that the court can explain that
to the litigant and the option is then open to him.
The last sentence of those comments of Mildren J was doubted by Byrne and
Leggat.3 They referred to the Professional Conduct Rules and suggested his
Honour demanded too much of counsel in seeking to impose an obligation
to bring to the attention of the court the failure by a litigant to have called
evidence in relation to a matter essential to his or her case. This is not the
place to enter into a consideration of which view is correct. The extent of the
obligation falling upon counsel may have to be further considered at some
time in the future. In the meantime it would be prudent to bear in mind the
views expressed by Mildren J in Laferla on the obligations upon counsel when
appearing against a litigant in person.
A further problem that may arise for counsel opposed to a litigant in person
occurs where the trial Judge intervenes in the proceedings under an apparent
feeling of obligation to assist the party who is unrepresented and in an effort
to ensure the party is not disadvantaged. At some point the intervention of the
Judge may become excessive and lead to error occurring. It will be a matter for
judgment as to when that point is reached. There is an obligation upon counsel
to object to the Judge intervening to the point where the Judge is no longer seen
to be maintaining a position of neutrality in the litigation and is not simply
ensuring a fair trial occurs. As is pointed out by Byrne and Leggat4 failure to
object to the trial Judge’s excessive interventions may constitute a waiver or
may estop a subsequent complaint. Counsel should raise with the trial Judge the
prospect that the intervention of the Judge is such that proceedings may become
unfair to the other side or that those proceedings may, at least, no longer be
seen to be fair. If such conduct on the part of the Judge continues then counsel
should make an application to the trial Judge to disqualify him or herself.
In any private dealings counsel may have with a litigant in person outside of the
courtroom, great care should be exercised. This will be especially so if “without
prejudice” discussions are to be undertaken. The capacity for misunderstanding
and subsequent misrepresentation is obvious. It may be difficult to ascertain
the extent to which the litigant has correctly understood what is being put. Of
some concern may be the extent to which the litigant misconstrues what is
said. The repercussions for counsel of any misunderstanding may be serious
and ongoing. In my view it is prudent for any discussions between counsel and
the litigant in person to be witnessed by someone who can subsequently be
called upon to confirm what took place. Where possible, notes should be kept.
The realisation that your opponent is a litigant in person is a matter that will
cause you to revisit your approach to the case you have to prepare and present.
A fresh and different approach will be called for.
1.
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 537.
2.
Byrne and Leggat: Litigants in Person – Procedural and Ethical Issues for Barristers (1999) 19
Australian Bar Review 41 at 45.
3.
Byrne and Leggat (supra) at 46.
4.
Byrne and Leggat (supra) at 44.
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The Sensitive Question
In many trials, both civil and criminal, it is necessary to ask a witness
questions relating to matters which the witness will consider distasteful,
offensive, discomforting and, possibly, quite distressing. Such questions
may arise because they go to the heart of the case to be presented or they
may relate to matters required to be addressed in order to comply with the
rule in Browne v Dunn.
If an issue to be raised with a witness is likely to be a sensitive one in the
sense I have suggested then, obviously, forethought as to how it is to be
approached is required. Your concern will be for the impact of the questions
upon the witness and also for their impact upon the tribunal. The causing
of distress to a witness is likely to have an impact not just upon the witness
but also upon all who hear and observe the responses. Judges are human
and, even though they may understand the need for a sensitive issue to be
raised and may expect that to occur, the causing of distress, and especially
unnecessary distress, to the witness is likely to have an adverse effect. It may
create an atmosphere of sympathy around the witness. If poorly executed, it
may cause the tribunal to query the motives of counsel or of the client. The
presence of a jury will make the position even more difficult.
Your approach to such matters will depend upon the nature of the particular
issue, the nature of the case being heard, the nature of the tribunal and
whether you are raising the issue in evidence in chief or in cross-examination.
If the evidence is to come from a witness called by you, then the witness
should be forewarned that it will be necessary to address the sensitive issue.
The need to address the issue should be explained and the understanding of
the witness as to that need should be obtained. The witness should be given
some idea of how you propose to address the issue in the course of evidence.
The witness can then prepare for the raising of the issue and can have time
to consider the manner in which he or she wishes to deal with it.
The situation is more difficult when the sensitive issue is to be raised for the
first time in cross-examination. The witness may or may not be prepared
for what is about to come. In those circumstances your approach will depend
upon the nature of the witness and the nature of the material to be explored,
considered in the context of the case.
Hard decisions will have to be made as to how you proceed. Is it necessary
to brutally confront the witness with a direct allegation or is it sufficient you
simply raise the issues with the witness for comment and then move on? If other
witnesses are to give evidence on the issue then you may not need to dwell on it
with the witness most directly affected. If you need to obtain admissions from
such a witness then you may have to be more insistent and direct.
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As a general proposition you may think in many cases it is preferable to
adopt a “softly, softly” approach. You may wish to forewarn the witness you
are about to venture into matters he or she may find upsetting. You may
wish to explain to the witness it is not your intention to cause distress or
embarrassment but it is necessary for the proper presentation of the case to
raise the matters. The observations you make in this regard will, of course,
be intended to provide some comfort and understanding to the witness but,
in addition, will forewarn the tribunal of what is to come and why the raising
of such an issue is unavoidable.
If you adopt this approach you should remain courteous and, where
appropriate, sympathetic throughout. You should allow the witness ample
time to deal with the matters you raise and you should avoid the temptation
to interrupt unless absolutely necessary. The tone of your questions and the
language you use should be appropriate to the circumstances. However you
should bear in mind the need to use clear language and you should avoid the
use of euphemisms so there can be no later suggestion the responses of the
witness were ambiguous or otherwise unclear.
In some cases it will be more appropriate to bluntly confront the issue. If
your intention is to catch the witness off guard or to undermine the image
the witness has been seeking to create, a series of short, sharp and direct
questions may be preferable. Courtesy need not be abandoned but the
questions should be firm and to the point.
Venturing into such fields is both dangerous and unpleasant. However if
the evidence is material to the case of your client you must do your duty.
How you perform that duty should be the subject of careful and sensitive
preparation.
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Communication
“To express the most difficult matters clearly
and intelligently is to strike coins out of pure gold.”
Geibel
Advocacy is the art of persuasion. In order to persuade it is necessary to
communicate with your audience. The members of the audience with whom
you wish to communicate will include not only the judge but also any juror
or witness who may be present.
Effective communication comes down to the language you use. You must
tailor your language to suit the audience and you must constantly be
aware that the words used by you and any witness you may call, need to be
understood by everyone involved in the proceedings.
If, in the course of proceedings, you stray into language unfamiliar to your
audience or any member of it, you may be fortunate and find the person
directly concerned will ask you to clarify your meaning. That will permit
others in the court to benefit from the explanation you provide. However,
more often than not, where a witness is involved, the witness will wish
to hide from a display of ignorance by guessing at what is meant by your
question. The danger is obvious. Others in the room (excluding the judge)
will not have the opportunity to seek clarification.
It is especially dangerous to use other than plain language if you are
addressing a jury. The members of the jury do not have the opportunity
to point out the words you are using are not familiar to them or that they
have no idea what it is you are trying to convey. A powerful argument may
disappear in a fog of verbal confusion.
The effective advocate will use words that can be understood by all. Except
when addressing a court constituted by a judge alone or a specialist tribunal
it is prudent to use plain and simple language at all times. It is easier to ask
“where do you live?” than to risk misunderstanding by enquiring “what is
your residential address?” It is also easier to refer to cars rather than motor
vehicles, jobs rather than employment and beer or wine or spirits rather than
intoxicating liquor. The list of examples is endless.
A similar problem of misunderstanding or lack of understanding can arise
when the witness you have in the witness box uses language likely to be
unfamiliar to his or her audience. This may occur where you are dealing with
an expert or simply a person who has a wider vocabulary than most. Medical
practitioners are commonly witnesses in all kinds of proceedings. Their
vocabulary, as with their writing, can sometimes be hard to understand. Not
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141
unnaturally they use the language or jargon of their profession. They will say
that a patient was haemorrhaging rather than bleeding, or that he suffered a
contusion rather than a bruise, and so on. Many of the expressions used may
be very familiar to you but not so to others in the court. Similar observations
apply to witnesses from other professions and special interest groups.
You should encourage the witness to use terms that can be understood by all
and, where the witness fails to do so, it is necessary for you to paraphrase
the answer in terms readily understood. This will particularly be so where
your witness is prone to using acronyms and professional jargon. It is your
obligation to ensure what is said by the witness, as with everything said by
you, is understood by all present in court.
In a similar vein it is necessary for you to ensure you don’t slip into the
habit of using legal terminology, shorthand or acronyms. You may know that
“the Code” refers to the Criminal Code and what familiar expressions such
as “adjourned generally”, “stood down”, “embarrassed”, “interrogatories”,
“discovery” and so on mean in their legal context. You will be familiar with
the acronyms CSJ, DUI, DEU and so on; others may not.
In an article entitled The Ten Commandments of Evidence in Chief1 Peter Berman
SC gave the following example of the use of inappropriate language in actual
proceedings:
Q:
Do you expect your relationship to survive the trauma of your present
separation?
A:
Um?
Q:
Do you intend to live with him after he gets out of gaol?
A:
Yeah.
It is not just the terminology
that may create problems.
People in court may also
have difficulty with concepts
thoroughly familiar to you
and your expert witness. Part
of the art of communication
is ensuring the listener is able
to keep up with, and follow
the thought processes behind,
the language. One eye needs
to be kept on the witness and
the other on the listener or
listeners
1.
Available on
http://www.publicdefenders.nsw.gov.au/Pages/public_defenders_research/Papers%20by%20
Public%20Defenders/public_defenders_evidence_in_chief_ten_commandments.aspx
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Nervousness
“A degree of nervousness or performance anxiety is natural.”
Professor George Hampel AM QC
The impact of nervousness or performance anxiety on an advocate is not a
topic I have seen addressed in the textbooks on advocacy. That is surprising
because it is a condition that affects the great majority of us at some stage
of our careers and often at many stages of our careers. It may be suffered
when you are starting out and you appear before the Registrar of the Small
Claims Court for a mention for the first time. It may occur when you undertake
your first serious trial in the Local Court or when you conduct your first jury
trial or when you appear for the first time before the Court of Appeal. In my
experience, it attacks on every occasion that you appear before the High Court.
Some degree of nervousness, or at least heightened awareness, is probably
a good sign when you are appearing in a matter of importance. If you are
totally relaxed it may be that you do not have a full appreciation of the
importance of the occasion.
A feeling of nervousness or apprehension may mean you are more alive to all
that is going on and you are able to recognise and deal with problems others
may not see. However a concern arises where you are so affected by an attack
of nerves that you do not properly present your case. For example if, through
nervousness, you suffer a mental block or you are so anxious to resume your
seat you fail to deal with an issue. Nervousness may impact in many ways.
There is no magic cure for nervousness although there are ways in which
you can address it to ensure it does not have a negative impact upon your
presentation of your client’s case or the outcome for your client.
The more comfortable you are with your surroundings the less likely it is
you will feel an overwhelming sense of nervousness. If you consider yourself
prone to nervousness then you may wish to attend the venue at which you are
to appear well in advance of the appearance in order to familiarise yourself
with the layout. Whilst you are there you may be assisted by taking time to
watch others prepare and present their cases to ensure you are familiar with
the way in which matters are handled in that court or tribunal. The greater
the familiarity you have with your environment the less likely you are to be
affected by nerves.
You may find it comforting to know that many, and probably the great
majority, of your colleagues including those senior to you suffer and have
suffered the same feelings as you are suffering. A recognition that this is not
an uncommon experience but rather is closer to the norm will allow you to
become accepting of how you feel.
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Along with the need to be familiar with your surroundings is, at least for
some, a need to ensure you look the part. If you are self-conscious because
of your failure to wear appropriate clothes or if you fail to ensure your
appearance is up to scratch then you will have one further matter occupying
your mind. You should ensure you are dressed appropriately for the occasion.
Of course the greatest comfort you can achieve is to ensure you are adequately
prepared both in fact and in law for the appearance you are about to undertake.
If you have conducted a thorough preparation of the case and you have the
facts and the law at your fingertips then, after a very short time, you will
find your initial feelings of nervousness disappear as you concentrate on the
presentation of the case. On the other hand, if you feel your preparation has
been lacking and you may be confronted with problems to which you do not
know the answer, then that will be playing upon your mind as your present
your argument.
Part of your preparation should involve ensuring when you attend court you
have with you all of the materials upon which you intend to rely. Those
materials should be organised in a way that permits you to lay your hands on
appropriate items at a moment’s notice and with a minimum of fuss.
If you are prone to nervousness, as a part of your preparation you may want
to keep notes of the facts, the law and the issues likely to arise and how
you propose to address them. Those notes should be as detailed as your
circumstances demand. Once prepared, the notes should be put to one side
and not used unless and until you suffer a mental blank or feel you need a
prompt of some kind. The notes can act as a kind of security blanket for you
as you present your case. You may not need them, indeed you are unlikely to
need them, but you know they are there in the event that problems arise. If a
problem does arise, you may refer to your notes to refresh your memory. You
should resist the temptation to read at length from the notes.
In the event of nervousness occurring, it may help to concentrate on slowing
down your presentation and following with care the case strategy you have
developed before entering the court. In this way you are less likely to be
thrown off your stride by a question from the Bench or an unexpected
development of any kind. Once you get into the argument you will find your
attention becomes focused and thoughts of nervousness disappear as the
whole of your attention is subsumed by the proceedings.
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Objective Counsel
“The trouble with lawyers is they convince themselves
that their clients are right.”
Charles W Ainey
We are familiar with the proverb he who is his own lawyer has a fool for a
client. The logic behind that observation also applies to the advocate who fails
to maintain a professional distance between him or herself and the client.
The extent to which a client is dependent upon the advocate is obvious. Any
appearance in Court is likely to be important for a client.
The more serious the issue to be resolved at that hearing the greater is the
significance of the occasion to the client and the greater is the demand
upon counsel. When you appear you do so with a view to achieving the best
outcome available for the client.
The best outcome may be something less than the client would wish for and
often expect when you commence to take instructions. Counsel must be in a
position to provide clear and firm advice as to what is and is not achievable.
In a lot of cases it will be difficult not to feel sympathy for your client. In
many cases such feelings are to be expected. In most of those cases there is
no reason why you should not express your feelings of sympathy to the client.
Similarly, it is often easy to accept in its entirety the version of events
provided to you by the client. However you would only do so after a critical
appraisal of the evidence of the client and an assessment of all of the objective
evidence surrounding the matter.
Notwithstanding your feelings of compassion for your client, in order to fulfil
the obligations and responsibilities undertaken when you appear for someone
as counsel, it is necessary for you to maintain an emotional distance from
the client and the circumstances in which the client finds himself or herself.
You must do so to enable you to make informed and balanced decisions and
to provide objective advice.
If you allow yourself to become too emotionally involved in the cause of your
client, too enmeshed in the client’s troubles, too caught up in the sense of
grievance the client is experiencing, the danger will be that you are no longer
able to provide objective counsel to your client.
In the course of a trial and in the preparation leading up to a trial, the
advocate must make many difficult and important decisions. To allow an
emotional involvement in the matter to develop is likely to result in your
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145
judgment becoming clouded or affected in a way that is not in the ultimate
interests of the client. You may be less able to identify points sought to be
made, or arguments put, that are in satisfaction of some emotional need but
which, when the interests of the client are objectively assessed, should not
be raised at all.
You may be less likely to identify inconsistencies in the case you are instructed
to present. It may not be as clear to you that settlement on terms less than a
full victory to your client is desirable.
In relation to the presentation of the case and to the desirability of settlement
your client is entitled to receive objective and practical advice.
Sometimes that advice will not be welcome and will need to be put firmly
and even forcefully. An effective presentation, or a settlement in the best
interests of the client, often includes concessions the client is reluctant to
make. They may involve abandoning arguments the client wishes to air.
Settlement will mean the client does not have that desired “day in court”.
Counsel needs to be sufficiently removed from the emotional aspects of the
matter to permit the provision of appropriate advice to the client at a time
when the emotional stress on the client is at its greatest.
Joseph A. Ball, a former president of the American College of Trial Lawyers,
is reported to have said:
The more I become involved emotionally in my client’s cause the less I am able
to (do) for him.
In my view that is generally so.
What I have said above does not mean you should not feel compassion for
your client. It does not mean you should not, after proper assessment, accept
fully the version of events provided by your client and the witnesses. It does
not prevent you from conveying those impressions to the tribunal in an
appropriate way.
I do not suggest you should go so far as Marshall Hall who is reputed to have,
on occasions, allowed tears to stream down his cheeks whilst addressing a
jury. However, sometimes such emotions cannot be avoided.
I clearly recall two cases of my own where tears have welled in my eyes whilst
I have led plaintiffs through their evidence in chief. However the sadness or
injustice of the circumstances of your client and the impact those matters
have upon you as an advocate must be kept in proper check.
Your most important function is to provide your client with an objective,
unemotional and professional source of advice throughout the trial.
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Observing the Customs
“As laws are necessary that good manners may
be preserved, so good manners are necessary that laws may
be maintained.”
Machiavelli
I have always been intrigued by counsel announcing his or her appearance
to the court by saying: “If it please the court my name is Smith and I appear
for the plaintiff.” It seems to me that counsel’s name will be Smith whether
it please the court or not. Counsel would be better to re-order the statement
as follows: “My name is Smith. May it please the court I appear on behalf of
the plaintiff.”
There are innumerable conventions, rules of conduct and rules of etiquette
that govern the conduct of counsel when appearing before courts in the
Northern Territory. It is not possible to visit all of those rules and conventions
in an article such as this but I would like to mention a few that are commonly
breached.
Moments of Silence
There are times in the course of a trial when it is necessary for counsel and
all others present in court to remain silent and still. There should always be
silence when a witness takes the oath or affirmation at the commencement
of his or her evidence. The same applies whenever an oath or affirmation is
taken in the course of a hearing, for example by members of the jury and by
the jury guards.
Likewise the court should be silent and still on such solemn occasions as
when a verdict is delivered by a jury or a judgment is given by a judge. The
same will apply when a judge is summing up to a jury or when a judge
imposes sentence.
Citing Authority
In referring to authorities you should always endeavour to refer to the
authorised reports. If the matter is reported in the Commonwealth Law
Reports then that is the report to which you refer. You should avoid the
temptation to cite every authority on the point you wish to address. Wherever
possible you should limit yourself to the leading authority and only refer to
others if there is some compelling reason to do so.
When citing authority to a court the written citation Jones v Smith becomes
Jones and Smith or Jones against Smith; it is not Jones versus Smith.
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147
When identifying a case by reference to any of the law reports it is not
appropriate to refer to the report by an abbreviation such as 149 CLR 51 or 140
FLR 62. Rather the reference should be to (1981-1982) 149 Commonwealth
Law Reports at 51 and (1997) 140 Federal Law Reports at 62.
When referring to judges, although the print records Martin CJ or Mildren J,
your reference should be to “the Chief Justice” or to “Justice Mildren”. If the
reference be to a former Chief Justice then you should identify that person by
name e.g. Chief Justice Asche.
Addressing the Bench
As is well known judges are referred to as “Your Honour”. Other judicial
officers should be referred to by their title, e.g. Master, Registrar or Acting
Registrar.
As a matter of common courtesy you should never talk over a judicial officer.
If you have a desperate need to interrupt the judicial officer then you should
await a convenient interval in what is being said before doing so. When you do
address a judicial officer you should always rise to your feet prior to doing so.
If your opponent rises to his or her feet whilst you are addressing the court then
you should immediately sit down. There should not be two counsel on their
feet addressing the court, or seeking to address the court, at the same time.
This latter is not only a rule of courtesy but one which ensures a structured
debate and avoids the deterioration of the presentation of the argument into
one counsel over-talking another with both striving to be heard.
Your Learned Friend
No matter how strained relations may be you should refer to your opponent as
“my friend” or “my learned friend”. The use of the term “learned” indicates
no more than your opponent is qualified to appear as a legal practitioner. It
is no greater endorsement of the qualities of your opponent than that.
Whatever the provocation you should avoid bickering with your opponent;
when egos clash in that way the judge or the jury assumes the role of a
frustrated bystander. Such conduct is unseemly and does not advance the
case of your client.
If your opponent is interrupting you or sniping at you in a way which is
distracting you from your task then you may wish to do one or more of the
following:
1. quietly and privately invite your opponent to refrain from distracting
you;
2. in a louder and more public way invite your opponent to refrain from
distracting you;
3. if the conduct amounts to what cricketers term “sledging” and
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continues on you may wish to indicate to the court that it appears
your opponent has something to say and sit down to give him or her
the opportunity to address the court;
4. if the conduct persists invite the court to intervene to ensure you are
able to present your case free from interruption.
You will find that if misconduct of this kind by your opponent is distracting
you it will also be distracting the Bench and the jury. The Bench will not need
much persuasion before it interferes.
Submissions
It is important to remember that you appear as the representative of your
client and you are there to put submissions on behalf of your client. The
court is not concerned with your personal views and, indeed, should not be
made aware of those views. The case is not about you.
It follows that when you address the court you should not be using expressions
such as “I think” or “I believe”. Your role is to make submissions on behalf
of your client and you do this by using expressions such as “I submit” or “I
contend” or “our case is”.
The Bar Table
Often you will appear before a court when a series of matters is being dealt
with. This regularly occurs in the Local Courts and also in the Supreme Court
when interlocutory matters are being dealt with or arraignments conducted.
When you are at the bar table and come to the completion of your matter
you should not leave the bar table unless other counsel is taking your place.
If yours is the last matter in the list or if other counsel are not assuming
positions at the bar table you should remain in place.
If it is necessary for you to leave then you should seek the permission of the
court to do so. In the absence of permission it is a discourtesy to the Bench
to leave the court facing an empty bar table.
This is a grab bag of random and incomplete observations regarding this
topic. You should refer to any of the many texts on advocacy to find out more
regarding matters of etiquette and appropriate conduct in court.
The Little Red Book of Advocacy – Second Edition
149
Developing the Skills
“… in spite of all the Bar examinations and better law
schools, we are more casual about qualifying the people we
allow to act as advocates in the courtroom than we are
about licensing electricians.”
Warren E Burger
In order to enhance your effectiveness as an advocate there are many skills you
can endeavour to develop and there are many and varied ways you may do so.
A visit to the library will reveal numerous texts and articles devoted to the
subject of advocacy and a reading of these will repay the effort. In this way
you will be able to identify issues, and strategies for dealing with those
issues, that may assist you in your day-to-day practice.
There is also much to be gained from attending court as often as possible and
watching others perform. It is not enough to simply observe but rather it is
necessary to critically appraise the tactics and techniques adopted by counsel.
Consider not only the successes but also the failures that occur within the
work of the advocate. Take time to consider what was effective and what was
not. You can learn what to avoid by observing a disastrous cross-examination
in the same way you can identify and adopt successful techniques from a
good cross-examination.
The reality is that on any random visit to the courts you are likely to see
more examples of mediocre and poor cross-examination than you will of
brilliant cross-examination.
In my opinion the most effective method of improving advocacy skills is to
actually perform the tasks yourself. The most desirable forum in which to do
that is in a workshop where you are provided with the opportunity to develop
your skills in circumstances that are as close to “the real thing” as is possible.
The advantages of performing in a workshop situation are obvious.
You are not putting at risk the interests of a client. You have the benefit
of input from independent and experienced observers. You can take time
immediately after your performance to analyse for yourself what worked
and what did not work and how best you can perform the task on the next
occasion. You can learn from observing the efforts of others in dealing with
the same issues and by listening to the discussion and debate surrounding
those efforts. You have the opportunity to go back and do it again.
I strongly recommend you seize every opportunity to participate in advocacy
workshops. This observation applies to both new and experienced advocates
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and, in particular, to those advocates who think they have nothing left to
learn in the field of advocacy.
Your learning processes should not be restricted to the reading of materials,
the watching of others and participating in workshops. Every time you
appear as an advocate you should take time at the end of the day to subject
your performance to critical appraisal of the kind you might apply to others.
Of course it is at that time too late to go back and do it again but you
can learn from your mistakes and successes and determine how to avoid
repeating the mistakes in the future. In this way you will avoid becoming
one of those ever-present experienced advocates who make the same errors
of presentation and judgment over and over.
There are other things you can do in order to enhance your effectiveness as
an advocate. Developing an understanding of human nature will be of great
benefit to you. Clearly the more you know about people and how they react
to different situations, and how they respond to different approaches made to
them, the greater are your prospects for dealing effectively with individuals in
the witness box.
Knowledge of human nature comes with experience but it also comes more
quickly if one subjects the surrounding world to keen observation.
Developing an understanding of your own strengths and weaknesses is
also to be encouraged. If you are aware of your strengths and conscious of
your weaknesses you can utilise the strengths and avoid the pitfalls that
accompany or flow from your weaknesses. For example, if you are regarded
by others as being an impatient person (incorrectly of course!) you may wish
to bear that in mind whilst you are carefully probing for information from a
witness. If you are quick to make assumptions you should consciously resist
that temptation and so on.
As you gain experience as an advocate you will also develop your own style.
It is a mistake to look to other advocates and seek to copy them. What works
for one person may not work for another. You may adopt tactics you see
successfully used and you may employ approaches to problems you have
witnessed others employ but, ultimately, you will need to fit those tactics
and approaches into your own style.
All advocates can improve their performances. An ongoing commitment to
developing skills should be present in every advocate.
The Little Red Book of Advocacy – Second Edition
151
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Glissan, J L, Tilmouth, S W, Advocacy In Practice
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