ADVOCACY
PREPARING FOR CRIMINAL TRIAL ADVOCACY 101 EDWARD JOLLY, BARRISTER, LEN KING CHAMBERS
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his paper was originally prepared as “how to prepare” guide for the Advocacy Committee’s practical Advocacy Workshops that are run for practitioners in their first five years of practice. These CPD sessions are run by the Advocacy Committee throughout the year and are a great place to “try before you buy”. The difference between a criminal advocate in Court and a criminal solicitor sitting in an office is the decisions you repeatedly make whilst on your feet at the Bar table and under pressure. The CCA refer to this as “a forensic decision made by counsel at trial”. This is a polite way of referring to how you deal with a witness who has not come up to proof (gone “off script”); evidence that you thought was admissible but was ruled inadmissible (and vice versa!); and, objecting to a question but not being able to articulate why you have objected to the question. It also encompasses those occasions where your opposing counsel is suffering from FITHS (syndrome proposed for inclusion in DSM VI). These are just few examples of what can happen during a criminal trial; there are many, many more… The goal of the Advocacy Committee’s Advocacy Workshops is to engage and trigger a budding advocate’s ‘forensic decision making’ skills. The goal of this paper is to get you to sign up for an Advocacy Workshop. Failing that, it attempts to provide some guidance on how you might prepare for a criminal trial.
PREPARING FOR THE TRIAL Prior preparation is the only way to deal with the forensic decisions that are guaranteed to arise in criminal trials. Once you are 100% prepared, do some additional preparation, and then a little bit
more preparation. There is nothing else required. If someone tells you that there is an alternative approach, they are lying and/or they are grossly intoxicated. Preparation for a criminal trial starts with the chronology. The process of completing the chronology forces you to order (sequence) and then retain events the subject of the charge(s). In doing so, it can reveal holes in the evidence and the case narrative. It also provides you with an overview of the case. Consider the following: when a witness gives evidence with the correct sequence of events coupled with a consistent narrative (ie, the same details each time), it allows for the submission that the witness is reliable and credible, and thus truthful. The converse is the submission that when the evidence lacks reliability and credibility, a doubt may arise. You can only confidently identify the significance of the sequence and details of the actual events after having placed them in chronological order. This helps to identify irrelevant evidence that might have seemed important when simply reading the statements. Once complete, the chronology should identify the elements of the offence that have sufficient evidence, or insufficient evidence, or that there is no evidence to meet an element. The chronology also allows you to categorise and qualify the evidence; is it direct or circumstantial? What is its probative value? For example,
a good ratio result with DNA evidence would be highly probative, as opposed to a photo board identification that might have a low probative value. Is the evidence corroborated? Particularly in a complex or large trial, a chronology can rapidly identify if there is corroborative evidence. In circumstantial cases, the chronology can also identify, for a prosecutor, any potential “explanations” consistent with innocence that will need to be excluded on the prosecution case. This is also helpful for defence counsel. The chronology will also help you identify any evidence that might require, if prosecuting, the filing of a Discreditable Conduct Notice (section 34P Evidence Act); and for defence counsel, any evidence that needs to be challenged and potentially excluded via a pre-trial application under rule 49 (voir dire). Once the chronology is complete, the next step in effective preparation is drafting your closing address. This helps you identify the relevant evidence and thus the critical evidence. Importantly, it allows you to speak with authority on what is the real issue for trial. Judges love it when this occurs!
EXAMINATION IN CHIEF (XN) If you are nervous about conducting an effective examination in chief; fear not, you are in good company. An effective examination in chief is often more difficult than cross examination.
Chronology Example: CHRONOLOGY – R V KNOBB DATE TIME
EVENT
June 2010 Complainant purchases house in Halcion Drive June 2014 Argument in hull of boat
WITNESS REFERENCE Drivell Drivell
Pg 1, para 3 Pg 2, para 18
May 2020 THE BULLETIN
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