Finally, the evidence has been heard and the end of the trial is in sight, yet this tends to be when the nerves really start to kick in. You have ‘one shot’ or ‘one opportunity’ to finally persuade those twelve jurors, or potentially a judge, to reach the conclusion of guilty or not guilty. Although it comes as the last part of the trial, the best and most experienced advocates will tell you it is the part of the trial that you should prepare first. Why? If you have not done the groundwork and laid the foundations for your closing during the trial then you will find yourself in a conundrum where your arguments no longer have an evidential basis.
Iain Morley QC in The Devils Advocate describes the closing address as ‘the reason advocates exist. It is their weapon, their art, it is the moment for persuasion’. You have developed your case theory, and you feel passionately about your argument. Everything you did during the trial should be relevant, keeping in mind what it is you want to say to the jury at the end. There are twelve, hopefully still awake and tentative jurors, waiting to hear your argument. So, what are some of the things you should not do, or cannot do, in persuading them to your side of the argument.
1. Your personal opinions do not matter
As barristers, we quite like to hear our own voices and think that our views on a topic are always the correct one. Counsel however should not express their personal opinion about the evidence of a witness or the case itself. It is the jury’s role to assess the credibility and reliability of the evidence given by each witness. Perhaps an obvious example of what you would not say is “I did not believe the complainant, so neither would you.” A better approach would be outlining “there are several matters which would cause you to reject that witness’ evidence…” before leading to your reasons and the evidence that supports your point.
That is not to say you cannot rely on common knowledge to make your address more relatable. Analogies to the jury’s own experience and knowledge is acceptable and helps them relate to what, particularly in a criminal trial, might otherwise feel like the unrelatable. You need to structure your closing argument in a way that tells them what their opinion should be, but expressing it as though it is their own, not yours.
2. There is no place for emotional submissions
It was observed by Thomas JA in R v Day (2000) 115 A Crim R 80 at [28] that considerable care is necessary to ensure that jury verdicts are not based upon prejudice, sympathy, fear or irrelevant emotion, and numerous statements may be found in the cases about the undesirability of emotion.
This is particularly so for a prosecutor. For example, there is a line of authority that a prosecutor should not refer to a complainant being ‘a victim’ during their closing addresses. To do so can have the capacity to suggest that the alleged offences did occur or reverse the onus of proof. The use of that term by the Crown is inappropriate and should be disavowed.
In R v Wheatley [2012] QCA 55 the prosecutor referred to the complainant’s situation as ‘calling for sympathy with and protection of the weak and vulnerable’. At [52] Muir JA said “In my view, the prosecutor did not act with the degree of detachment, fairness and professional restraint expected of a person fulfilling the role of Crown Prosecutor. The first part of the address criticised, that referring to the protection of the weak, was, I think, a flight of rhetoric intended, perhaps, to engender some sympathy for the complainant. As such it was ill advised. The implicit exhortation to the jury to be sympathetic towards and to protect the “weak and vulnerable” complainant was inconsistent with the jury’s duty to consider the evidence and arrive at their verdict dispassionately uninfluenced by sympathy for, prejudice against, or like or dislike of the appellant, the complainant or any other person.”
Equally, in defending a client, it would be inappropriate to refer to the likely penalty to be involved on a conviction or the impact it might have on an accused and/or his family. For example “Before you consider your final verdict, have a look at the accused’s family. You hold their future and my client’s future in your hands.” Imploring a jury in such a way would be found a submission on emotion.
Submissions such as these would clearly be in defiance of the directions later given to the jury by the trial Judge that “You should dismiss all feelings of sympathy or prejudice, whether it be sympathy for or prejudice against the Defendant or anyone else. No such emotion has any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence.”
3. Attacking your opponent personally
Consider the way your arguments are phrased such that you do not attack your opponent personally. For example it would be inappropriate to allege or suggest in argument that there has been deception on the part of your opposing counsel in presenting or defending the case.[1] In R v BDI (2020) 3 QR 348 comments were considered as disparaging of defence counsel for their approach to cross-examination of the complainant, which may have aroused feelings of sympathy for the complainant. Even viewed in isolation, they were potentially prejudicial to the accused. That last thing you want to do is cause a mistrial in the final hours of the trial by concentrating on your opponent, rather than the case at hand.
Think about how you might address your opponent’s arguments carefully. In doing so, you will also want to avoid repeating their good points before addressing it. Concentrate on the things that work in your favour, highlighting those and drawing attention to the inherent weaknesses in your opponent’s case theory. Those will be supported by evidence (or lack of evidence as the case may be) and that is your strongest tool.
4. Reversing the onus
Prosecutors in particular should be circumspect in the use of questions in their closing submissions in case they inadvertently overstep the mark and reverse the onus of proof.[2] For example, the Court of Appeal criticised a prosecutor’s conduct in contending that young children were naive about sexual matters before asking rhetorical questions. The address suggested that she would not have made the complaint unless it was true, effectively posing the rhetorical question “why would she lie?”. Such a question is objectionable for the reasons identified in Palmer v The Queen (1998) 193 CLR 1. The Court held it was not for the defence to establish how the complainant could have known about these matters. It goes without saying, defence counsel ought avoid that at all costs as you would only be doing your client a disservice.
5. Misquoting the evidence
Although not always as timely as counsel might hope, transcripts are prepared of trial proceedings, and you should have an instructor beside you diligently recording notes of what is transpiring during the hearing. Your closing address must be grounded on the evidence. Be careful to accurately submit to the jury about the evidence; what it was, and what it was not. Nothing will undermine your credibility before the jury more than your opponent correcting you in their address to follow, or a Judge stepping in and correcting your submissions.
In that sense you should always be prepared and practice. It is a good idea if you are referring to evidence to have the transcript references at hand in case you are challenged about any of your submissions. A good instructor can be invaluable to assisting you in that regard.
6. Reading
Despite the accuracy demanded in the point above, reading slabs of evidence or reading your closing verbatim will not be persuasive to a jury. You want to be engaging, relatable and empathetic. It is difficult to do that while you are staring at the paper on your lectern reading out slabs of prepared prose. Reading large volumes of recorded evidence can affect your pace, your tone and appear like you are engaged in a lecture rather than persuasive argument with the jury. Do not be dull, vary your voice and use some gesticulation. A Judge once offered advice not to do the latter with a pen in your hand, risking it being inadvertently flung across the courtroom. Use a conversational style that a jury can feel involved in and minimise the use of notes.
It can be very helpful to read or watch how other barrister’s deliver their closing addresses, particularly in similar matters to the one you find yourself confronted with. Having said that, it can be unhelpful to ‘copy and paste’ a colleague’s work. Not only may it not fit the case theory you have carefully developed as well as it had in their own, but it is not your work. The address is about the facts, but more importantly your commentary about what the jury should make of, or do with, those pieces of evidence need to appear genuine and relevant to your matter. Nothing is more persuasive than advocating for an outcome that you have prepared for your case.
7. Do not go behind a decision made by the Judge
If you are going to refer to the law during your closing address, make sure that you are doing so accurately. If you do, make sure you tie it into the circumstances of your case theory so that digestible for the jury. Word to the wise, do not try to define beyond reasonable doubt. You can only get yourself in trouble going down that path.
If a Judge has told you for example that evidence of a lie is for credit only, not consciousness of guilt or that mistake of fact is not available, then be careful to adapt your submissions to ensure that your submissions do not go behind that decision. This is particularly so where you have prepared your address in advance hoping to use evidence for a particular purpose that has not come to fruition. Like with misquoting the evidence, being corrected by the Judge will significantly undermine your credibility before the jury.
8. The contents of your argument
On that same topic, it only takes one moment for you to lose credit in front of the jury. If you make arguments that are not supported by the evidence or are unrealistic, if you do not make reasonable concessions, particularly where they are obvious, then the jury will stop listening to you. For example, if you made an argument that your client was not intoxicated when there was a wealth of evidence from credible witnesses and CCTV footage that he had consumed a carton of beer immediately before the offending or that a complainant has been consistent, ignoring that multiple preliminary complaint witnesses have said otherwise, then you are unlikely to have a jury placing faith in anything else you have to say.
You want the jury to consider you are calm, giving them considered and organised arguments, in a logical way that they can follow along with. If you look disorganised or lack cohesive structure you will lose your credibility in front of the jury.
Be very, repeat, very careful integrating humour into your address. Most times you will be involved in a trial that involves a serious criminal matter. Despite a penchant among the criminal bar to rely on dark humour, perhaps as a coping mechanism for the matters we are exposed to, it is likely to fall flat on a jury. A complainant and an accused are both heavily invested in the outcome given the respective impacts for both them. It is not necessarily the time for jokes and laughs.
While all of the above is a cautionary tale about matters to avoid in your addresses, as Mr Morley QC tells us, it is the reason advocates exist.
[1] R v Nuske [2024] QCA 28.
[2] R v HBN [2016] QCA 341
