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Session 1

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M H

on 25 July 2017

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Transcript of Session 1

OH&S
Advocate's sources
Learning Objectives
Outline of the Criminal Process
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Arrest Bail Court Attendance Notice

Police Brief
Appeal

Sentence Hearing Plea/Remand
Relevant Facts
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Criminal Proceedings in Summary Jurisdiction

Subject Assessment Tasks
Assessment 1: Class participation
Assessment 2: Written submissions
Assessment 3: Court Appearance
Tutors
Advocacy Rules - Solicitors
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Session 1
LLB140 Advocacy Skills

SUBJECT COORDINATOR
Melissa Humphreys - Thursday classes
- humphreys@hargravechambers.com.au
- 42288977 Chambers phone (emergency only)
TUTOR
Sam Schier - Monday classes
Criminal Procedure Act 1986 (NSW)


Crimes Act 1900 (NSW)


Bail Act 2013 (NSW)

DPP Guidelines

Police Guidelines (NSW Police Force Code of Practice)


NSW Public Defenders

Law Society site - Advocacy rules

NSW Bar site - Barristers rules

Legal Aid NSW
Websites
Legislation
Guidelines
Arrest
Bail
Court Attendance Notice
Police Brief
Plea - Guilty or Not Guilty?
Hearing
Sentence/Appeal
Police Arrest Powers
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002
Police questioning
s11 Identity may be required to be disclosed
s19 Power of police officer to request proof of identity
Stop and Search
s21 Power to search persons and seize and detain things without warrant
Arrest
s99 Power of police officers to arrest without warrant
s100 Power of other persons to arrest without warrant
s101 Power to arrest with warrant

Flow chart-key features
of bail decision
s 16 Bail Act 2013 (NSW)
Client
Charge
Witnesses
Statements
Certificates
Further investigations - Subpoenas, investigator

17.1 A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece

of the client or of the instructing solicitor (if any) and
must exercise the forensic judgments
called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.
17.2 A solicitor will not have breached the solicitor’s duty to the client
,
and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s instructions,
simply by choosing, contrary to those instructions, to exercise the forensic judgments
called for during the case so as to:
17.2.1 confine any hearing to those issues which the solicitor believes to be the real issues;
17.2.2 present the client’s case as quickly and simply as may be consistent with its robust advancement; or
17.2.3 inform the court of any persuasive authority against the client’s case.
17.3 A solicitor must not make submissions
or express views to a court on any material evidence or issue in the case in terms
which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue.
17.4 A solicitor must not become the
surety
for the client’s bail.


18.1 A solicitor must not
, in the presence of any of the parties or solicitors,
deal with a court on terms of

informal personal familiarity
which may reasonably give the appearance that the solicitor has special favour with the court.
19.1
A solicitor
must not deceive or knowingly or recklessly mislead the court
.

19.2 A solicitor must take all necessary steps to
correct any misleading statement
made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.

19.3 A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.

19.6 A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter,
inform the court of:
19.6.1
any binding authority;
19.6.2 where there is no binding authority,
any authority decided by an Australian appellate court
; and
19.6.3
any applicable legislation
, known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client's case.

19.8 A solicitor who
becomes aware of matters within Rule 19.6
after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:
19.8.1
a letter to the court
, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or
19.8.2
requesting the court to relist the case
for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.

19.10 A solicitor who knows or suspects that the
prosecution is unaware of the client's previous conviction
must not ask a prosecution witness whether there are
previous convictions
, in the hope of a negative answer.

19.11 A solicitor
must inform the court of any misapprehension by the court
as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension.

19.12 A solicitor must
alert the opponent
and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake.

20.1 A solicitor who, as a result of information
provided by the client or a witness
called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client
20.1.1

has lied
in a material particular to the court or has procured another person to lie to the court
20.1.2
has falsified or procured another person to falsify
in any way a document which has been tendered;
20.1.3
has suppressed or procured another person to suppress material evidence
upon a topic where there was a positive duty to make disclosure to the court;must
20.1.4 advise the client that the
court should be informed of the lie, falsification or suppression
and request authority so to inform the court; and
20.1.5
refuse
to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.

20.2 A solicitor whose client in criminal proceedings
confesses guilt to the solicitor but maintains a plea of not guilty:
20.2.1
may cease to act
,
if there is enough time for another solicitor to take over
the case properly before the hearing, and the client does not insist on the solicitor continuing to appear for the client;
20.2.2 in cases where the solicitor continues to act for the client:
(i)
must not falsely suggest that some other person committed the offence charged;
(ii)
must not set up an affirmative case

inconsistent with the confession;
(iii) may argue that the
evidence as a whole does not prove that the client is guilty
of the offence charged;
(iv) may argue that for some reason of law the client is not guilty of the offence charged; and
(v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged;
20.2.3
must not continue to act if the client insists on giving evidence denying guilt
or requires the making of a statement asserting the client's innocence.

20.3 A solicitor whose client informs the solicitor that the
client intends to disobey a court's order
must:
20.3.1
advise the client against that course
and warn the client of its dangers;
20.3.2 not advise the client
how to carry out or conceal that course
; and
20.3.3 not inform the court or the opponent of the client's intention unless:
(i) the client has
authorised
the solicitor to do so beforehand; or
(ii) the solicitor believes
on reasonable grounds
that the client's conduct constitutes a threat to any person's safety.
21.1 A solicitor must take care to ensure that the solicitor's advice to invoke the coercive powers of a court:
21.1.1
is reasonably justified
by the material then available to the solicitor;
21.1.2 is
appropriate
for the robust advancement of the client's case on its merits;
21.1.3 is not made principally in order to
harass or embarrass a person
; and
21.1.4 is not made principally in order to
gain some collateral advantage
for the client or the solicitor or the instructing solicitor out of court.

21.2 A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person:
21.2.1 are
reasonably justified
by the material then available to the solicitor;
21.2.2 are
appropriate
for the robust advancement of the client's case on its merits; and
21.2.3 are not made principally in order to
harass or embarrass a person.

21.3 A solicitor
must not allege any matter of fact in:
21.3.1 any court document settled by the solicitor;
21.3.2 any submission during any hearing;
21.3.3 the course of an opening address; or
21.3.4 the course of a closing address or submission on the evidence,
unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.

21.4 A solicitor must not allege any
matter of fact amounting to criminality, fraud or other serious misconduct against any person
unless the solicitor believes
on reasonable grounds
that:
21.4.1 available material by which the allegation could be supported provides a
proper basis
for it; and
21.4.2 the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

21.5 A solicitor must not make a suggestion in
cross-examination on credit
unless the solicitor believes on reasonable grounds that
acceptance of the suggestion would diminish the credibility of the evidence of the witness.

21.6 A solicitor may regard the opinion of an instructing solicitor that material which is available to the instructing solicitor is credible, being material which appears to the solicitor from its nature to support an allegation to which Rules 21.1, 21.2, 21.3 and 21.4 apply as a reasonable ground for holding the belief required by those Rules (except in the case of a closing address or submission on the evidence).

21.7 A solicitor who has instructions which
justify submissions for the client in mitigation of the client's criminality
which involve allegations of serious misconduct against any other person not able to answer the allegations in the case
must seek to avoid disclosing the other person's identity directly
or indirectly unless the solicitor believes on reasonable grounds that such disclosure is necessary for the proper conduct of the client's case.

21.8 Without limiting the generality of Rule 21.2, in proceedings in which an
allegation of sexual assault,
indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence:
21.8.1 a solicitor
must not ask that witness a question or pursue a line of questioning of that witness which is intended:
(i) to mislead or confuse the witness; or
(ii) to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; and
21.8.2 a solicitor must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks.
22.1 A solicitor must not knowingly make a
false statement
to an opponent in relation to the case (including its compromise).

22.2 A solicitor must take all necessary steps to
correct any false statement
made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false.

22.3 A solicitor will not have made a false statement to the opponent
simply by failing to correct an error
on any matter stated to the solicitor by the opponent.

22.4 A solicitor must not confer or deal with any party represented by or to the knowledge of the solicitor indemnified by an
insurer
, unless the party and the insurer have signified willingness to that course.

22.5 A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless:
22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

22.6
A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication
referred to in Rule 22.5.

22.7 A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent's consent.

22.8 A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent's consent, to inform the court of that application promptly.
27.1 In a case in which it is known, or becomes apparent, that a
solicitor will be required to give evidence material
to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.�

27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the
determination of contested issues
before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member
may act or continue to act for the client unless doing so would prejudice the administration of justice.
20 Delinquent or guilty clients
17 Independence – avoidance of personal bias
18 Formality before the Court
19 Frankness in court
21 Responsible use of court process and privilege
23.1 A solicitor must not take any step to
prevent or discourage a prospective witness
or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.

23.2 A solicitor will not have breached Rule 23.1 simply by telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed or by advising about relevant obligations of confidentiality.
23 Opposition access to witnesses
22 Communication with opponents
28.1 A solicitor
must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.
28 Public comment during current proceedings
27 Solicitor as material witness in client’s case
Find these rules at:
http://www.lawsociety.com.au/ForSolictors/professionalstandards/Ruleslegislation/

Click on link: "Law Australian Solicitors' Conduct Rules 2015"
Written Submissions
("no bill applications")
Court etiquette

Stand up when addressing the bench
The plaintiff's representative or prosecutor sits closest to the jury or to the left of the bar table
Seating at the bar table is governed by seniority
The opponent is referred to as 'my learned friend' or 'my friend'
Silence and stillness is observed when a witness is being sworn
Judges and Magistrates are addressed as 'Your Honour', Registrars are addressed as 'Registrar'

Advocacy Rules - Barristers
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35
A barrister
must promote and protect fearlessly and by all proper and lawful means the client’s best interests

to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.

36
A barrister must inform the client or the instructing solicitor about the
alternatives to fully contested adjudication of the case

which are reasonably available to the client, unless the barrister believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation.

37

A barrister must seek to
assist the client to understand the issues in the case and the client’s possible rights and obligations
, sufficiently to permit the client to give proper instructions, including instructions in connection with any compromise of the case.

38
A barrister must (unless circumstances warrant otherwise in the barrister’s considered opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of
some advantage (including diminution of penalty), if the client pleads guilty
or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.

42
A barrister
must not act as the mere mouthpiece
of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s wishes where practicable.

43
A barrister does not breach the barrister’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s wishes, simply by choosing, contrary to those wishes, to
exercise the forensic judgments
called for during the case so as to:
(a) confine any hearing to those issues which the barrister believes to be the real issues,
(b) present the client’s case as quickly and simply as may be consistent with its robust advancement, or
(c) inform the court of any persuasive authority against the client’s case.

44
A barrister must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the barrister’s
personal opinion on the merits of that evidence or issue.
27 A barrister seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:
(a) are within the barrister’s knowledge,
(b) are not protected by legal professional privilege, and
(c) the barrister has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

28 A barrister who has knowledge of matters which are within rule 27 (c):
(a) must seek instructions for the waiver of legal professional privilege if the matters are protected by that privilege so as to permit the barrister to disclose those matters under rule 27, and
(b) if the client does not waive the privilege as sought by the barrister:
(i) must inform the client of the client’s responsibility to authorise such disclosure and the possible consequence of not doing so, and
(ii) must refuse to appear on the application.

29
A barrister must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter,
inform the court of:
(a)
any binding authority,
(b) where there is no binding authority any authority decided by an Australian appellate court, and
(c) any applicable legislation,
known to the barrister and which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.
30 A barrister need not inform the court of matters within rule 29 at a time when the opponent tells the court that the opponent’s whole case will be withdrawn or the opponent will consent to final judgment in favour of the client, unless the appropriate time for the barrister to have informed the court of such matters in the ordinary course has already arrived or passed.

31 A barrister who becomes aware of a matter within rule 29 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:
(a) a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter, or
(b) requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.

32 A barrister need not inform the court of any matter otherwise within rule 29 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.

33
A barrister who knows or suspects that the prosecution is
unaware of the client’s previous conviction
must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.

34
A barrister must inform the court of any apparent
misapprehension by the court
as to the effect of an order which the court is making, as soon as the barrister becomes aware of the misapprehension.
79
A barrister who, as a result of information provided by the client or a witness called on behalf of the client, is informed by the client or by the witness during a hearing or after judgment or decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
(a) has
lied in a material particular to the court
or has procured another person to lie to the court,
(b) has falsified or procured another person to falsify in any way a document which has been tendered, or
(c) has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court,
must refuse to take any further part in the case
unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the barrister to do so but otherwise must not inform the court of the lie, falsification or suppression.

80 A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty:
(a) should, subject to the client accepting the constraints set out in (b)–(h) but not otherwise, continue to act in the client’s defence,
(b) must not falsely suggest that some other person committed the offence charged,
(c) must not set up an affirmative case inconsistent with the confession,
(d) must ensure that the prosecution is put to proof of its case,
(e) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged,
(f) may argue that for some reason of law the client is not guilty of the offence charged,
(g) may argue that for any other reason not prohibited by (b) or (c) the client should not be convicted of the offence charged, and
(h) must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.
Duty to the Court
Independence
Frankness in Court
Frankness in Court
Delinquent or guilty clients
60

A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court:
(a) is
reasonably justified
by the material then available to the barrister,
(b) is appropriate for the robust advancement of the client’s case on its merits,
(c) is not given principally in order to harass or embarrass a person, and
(d) is not given principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor or a third party out of court.

61 A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person:
(a) are reasonably justified by the material then available to the barrister,
(b) are appropriate for the robust advancement of the client’s case on its merits, and
(c) are not made principally in order to harass or embarrass a person.

62 Without limiting the generality of rule 61, in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence:
(a) a barrister must not ask that witness a question or pursue a line of questioning of that witness which is intended:
(i) to mislead or confuse the witness, or
(ii) to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, and
(b) a barrister must take into account any particular vulnerability of the witness in the manner and tone of the questions that the barrister asks.

63 A barrister does not infringe rule 62 merely because:
(a) the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or
(b) the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.

64
A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister,
(b) any submission during any hearing,
(c) the course of an opening address, or
(d) the course of a closing address or submission on the evidence,
unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.
Duty to client
Responsible use of court process and privilege
What would you expect to be in it?

Statements of Police
Statements of civilians
Photographs
DNA - forensic
Drug analysis
CCTV footage
ERISP record
Examine the brief
Consider possible sentences
Advise the client - remember discount for early plea
Prosecution commences as they have the onus of proof
Examination in Chief
Cross-Examination
Re-Examination
Submissions
Judgment
References
Probation and parole reports
Psychologist reports
Local court to District court
28 days - 3 months with leave
All grounds (Not guilty)
Severity only
Presenting a Case
Observe the advocacy rules at all times
Do not say 'I think' or 'I believe when making submissions. The proper expression is 'I submit that...'. This is based on the advocacy rules:
43
A barrister must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the barrister’s personal opinion on the merits of that evidence or issue.
Announce your appearance clearly.
'May it please the court. My name is....I appear for the (plaintiff/defendant/cross defendant etc)'. Also spell your name if required.
The party who has the onus starts the case
A case usually commences with a short 'opening' by the plaintiff's advocate - a chronology can be handed up as an 'aide memoire' - it is not evidence
After the opening the first witness is called and sworn
If a witness if called 'out of order' then leave should be sought and the party should be asked to remain out of the court
Always be courteous to the court and your opponents
The court's time is valuable - keep your matter as short as possible (without compromising your case).
Pre-trial and out of court discussion with the opponent can often help shorten matters
If you have reached an agreement on interlocutory matters, reduce the agreement to writing in the form of 'Short minutes of Orders' signed by the representatives of all parties
When tendering a document identify it for the record - 'I tender a letter (report/plan/picture) dated... by (author)'. The document is handed to the opponent before handing it to the bench
Be prepared to assist the court. Always have copies of cases and statutes that you are referring to available for the bench and a further copy for your opponent.
When introducing evidence in chief (the evidence of your own witnesses) remember the rule against 'leading' the witness (asking questions that suggest the answer) only applies to matters that are in dispute. You can lead on matters that are not in dispute. You are entitled to 'lead' expert witnesses.
Remember the transcript. Make sure that your questions can be understood from the record.
In cross examination you must 'put your case' to an opponent's witness who gives a different version.
Use your closing address to demonstrate how the evidence supports your contention of the law. Relate the evidence to the relevant statute and cases. In criminal - prosecution closes first. In civil - defendant's counsel closes first, unless the defendant has called no evidence in which case they have the right to last address.
Local Court Process
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Opening
An Opening is:
1. a short outline of the case
2. told as a simple persuasive story
3. in narrative not argumentative form
4. painting pictures of places, people and events
5. well structured
6. not over detailed
7. optionally presented with the use of visual aids
8. related to the charges.

A Defence Opening should:
1. identify the issues
2. outline the Defence story in relation to the contested issues
3. be in narrative not argumentative form
4. be positive, not defensive
5. avoid repetition of the prosecution/plaintiff story.
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Evidence in Chief and re-examination
Evidence in chief:
1. develops in detail of the story as opened
2. is organised and structured
3. sets the scenes before the action
4. is controlled by the advocate
5. is told by the witness in answer to non-leading questions on contested issues
6. establishes facts not conclusions
7. is assisted by visual aids (and tendering exhibits)
8. involves the tribunal
9. with expert witnesses - qualifies the witness and leads the opinion.

Re-examination:
1. limited to that which arises in cross examination
2. elicited by non-leading questions
3. used sparingly and only when necessary.
[AAI Advocacy Manual, The Complete Guide to Persuasive Advocacy, Australian Advocacy Institute]
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Cross-examination
Cross Examination is:
1. a foundation for the final argument
2. organised, structured and controlled by the advocate
3. designed to discredit or accredit the evidence and/or the witness
4. conducted by a series of leading propositions
5. not argumentative
6. conducted without repetition of evidence in chief
7. organised with appropriate ‘gate closing’
If you want to force a witness to concede a point (or have the point as an inevitable conclusion, even if they do not concede it), then you will need to ask questions that close off all possible “escape routes” before seeking to press that ultimate point.
8. not unnecessarily aggressive or confrontational
9. compliant with the rule in Browne v Dunn
Essentially a rule of fairness—that a witness must not be discredited without having had a chance to comment on or counter the discrediting information.


Link to John Stratton SC article: http://www.publicdefenders.lawlink.nsw.gov.au/genPDF.aspx?url=http://www.publicdefenders.lawlink.nsw.gov.au/pdo/public_defenders_crossexamination_stratton.html?s=1001,s=1001,svPDF=Y.
[AAI Advocacy Manual, The Complete Guide to Persuasive Advocacy, Australian Advocacy Institute]
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Final Argument
Argument is:
1. logical, credible, empathetic (Aristotle)
2. a series of structured arguments
3. presented as a series of conclusions supported by facts or inferences
4. designed to persuade the tribunal
5. directed towards the desired result
6. consistent with the case theory
7. consistent with the onus of proof
8. balanced – deals with weaknesses
9. presented in a conversational style
10. prepared to be ready with answers to anticipated questions from the tribunal

[AAI Advocacy Manual, The Complete Guide to Persuasive Advocacy, Australian Advocacy Institute]
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Written advocacy
An affidavit is a written statement of relevant factual material that a party intends to rely on as evidence in court.

Just like oral advocacy, the purpose of written advocacy is to persuade and in order to be persuasive, the document must be useful for the intended reader.

Written work that is dense, impenetrable, lacking cohesion or badly structured will rarely be useful and sometimes may be counter productive.

Production
This is how the court gets to look at a document.
You normally produce documents through a witness who is in the box.
You get the witness to identify the document and to explain its relevance and significance in the case.

Tendering
Once the document has been produced, if you wish to tender it, (put into evidence and make it available for consideration), you need to establish its relevance and its admissibility.
Proving facts in Court
The specific skills that the advocate performs in Court:
1. Opening
2. Examination in Chief
3. Cross Examination
4. Re-Examination
5. Argument
23
A barrister has an
overriding duty to the court

to act with independence in the interests of the administration of justice.
Frankness in Court
24
A barrister
must not deceive or knowingly or recklessly mislead the court.

25
A barrister must take
all necessary steps to
correct any misleading statement
made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.

26 A barrister must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the barrister contrary to the true position and is believed by the barrister to have been made by mistake.
65
A barrister must not allege any matter of fact
amounting to criminality, fraud or other serious misconduct against any person
unless the barrister believes on reasonable grounds that:
(a) available material by which the allegation could be supported provides a proper basis for it, and
(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

66 A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which rules 64 and 65 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence).

67
A barrister must not make a
suggestion in cross-examination on credit
unless the barrister believes on reasonable grounds that acceptance of the suggestion would diminish the credibility of the evidence of the witness.

68
A barrister who has instructions which justify
submissions for the client in mitigation
of the client’s criminality which involve allegations of serious misconduct against any other person not able to answer the allegations in the case must seek to avoid disclosing the other person’s identity directly or indirectly unless the barrister believes on reasonable grounds that the disclosure is necessary for the proper conduct of the client’s case.
Responsible use of Court process and privilege continued...
81 A barrister whose client informs the barrister that the client intends to disobey a court’s order:
(a) must advise the client against that course and warn the client of its dangers, and
(b) must not advise the client how to carry out or conceal that course, but
(c) must not inform the court or the opponent of the client’s intention unless:
(i) the client has authorised the barrister to do so beforehand, or
(ii) the barrister believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety.

82 A barrister whose client threatens the safety of any person may, notwithstanding rule 114, if the barrister believes on reasonable grounds that there is a risk to any person’s safety, advise the police or other appropriate authorities.
Delinquent or Guilty Clients continued...
Find the Legal Profession Uniform Conduct (Barristers) Rules 2015 at:
http://www.legislation.nsw.gov.au/#/view/regulation/2015/243
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