Trials are stressful. The mantra that “you have to look after yourself” is often told to us while we work long hours worrying over trial preparation. While we are told that a lot, it is not necessarily advice we are very good at following.

As barristers and solicitors practicing in criminal law we often find ourselves dealing with challenging situations. Clients, complainants and witnesses often present with mental health difficulties, social disadvantage, impairments and other vulnerabilities. Layer onto those difficulties the unpleasant subject matter we find ourselves dealing with, whether it be sexual violence, domestic and family violence, homicide or offences against children. This is before you factor in the usual chaos of last-minute issues that usually attach to trials, late instructions, witness issues, court requests or disclosure issues. In addition to those issues criminal law practitioners often deal with a variety of ethical issues that arise during the course of a trial. 

It is entirely natural to be nervous and/or stressed about running a criminal trial. Even the most organised or experienced advocate cannot prepare for everything. From a rogue juror, an uncooperative witness or an unhelpful client, trials involve people and they do not follow scripts. It does not matter which side of the bar table you are sitting at, whether it is a two-day trial or a two-month trial, they can take a toll on your wellbeing, both physically and psychologically.  

That stress will never entirely go away. Stress may be an important driver to some, it may even enhance your performance. Inevitably,  stress can become counterproductive – causing rumination and anxiety without any corresponding progress of or advantage to your case. So, what are some of the things you can do, or try to, during a trial to maintain your wellbeing.  

1. Your client or complainant’s predicament is not yoursIt can be easy to find yourself completely immersed in the case you are working on. The contents of it come home with you, both literally and metaphorically. You need to maintain your sense of self. The crimes alleged against your client, or committed against your complainant, fortunately are not happening to you.  You have an important job to do in advocating their interests, or those of the community. They are heavy obligations that rest on your shoulders, but only in so far as your obligation to do your job thoroughly.  You can not control the outcome. With all your best work, ultimately your case or client’s fate is in the hands of the jury.
2. Time management and preparation That leads into the need to manage your time and prepare your brief properly.  Keeping a well organised diary and forward planning are critical in this regard.  This simple step can tamp down the anxiety that builds in anticipation of the trial. Even the most voluminous briefs can be broken into bite pieces.
3. If you have a routine, to the extent you can, try to maintain itIf it’s exercising – exercise. If it’s a hobby you indulge in – do it. If you usually walk early in the morning before work, do not skip it. There is nothing more important than maintaining those matters that are important to your health, whether it be physically or mentally, including while you are in a trial.  Do not change your eating or drinking habits. Each of these things are easier said than done, and it’s easy to give yourself the excuse of ‘just while I’m in trial’ but we all know that disruption of a routine always makes things feel worse. The time you spend on those routines is never going to be fatal to your preparation for the next day of trial. It can always be made up, in fact the time away from trial tasks, often leads to greater efficiency when you take up the tasks again.
4. Have a ‘day off’It is not feasible to work all the time. Take a day off each weekend, or at least the morning.  It is important to maintain some distance between yourself and your work.  One of the biggest complaints is a lack of work / life balance but we each take some responsibility for achieving it ourselves. When you get in the trial and another lawyer asks: ‘How are you?’, we respond ‘busy’. Its almost like a badge of honour, a stereotype that the busier we are the more successful or important we must be.  Rest is an important part of maintaining your own wellbeing.
5. Talk to your colleaguesOne of our greatest supports is talking to each other. The bond between our community is our greatest strength. The ability to debrief on a lunch break or after court each day is invaluable. It helps remove little doubts that have arisen about your conduct and get some perspective that can sometimes be lost when you are invested in a trial. Frankly, they might just have some ideas that you have not thought of yourself, or alternatively it can just be cathartic to vent some of your frustrations.

The cumulative trauma and stress you experience in your role can lead to a lack of patience, including with those who instruct you and assist you in chambers. As justifiable as you may perceive your frustration to be, there can be no excuse for incivility or bullying in our workplace, whether that is in Chambers or the courtroom. The pressure on an advocate during a trial is significant but it can not become an excuse to speak poorly to others. It is unprofessional and has an impact on others, who are already experiencing their own levels of stress. 

If you are aware of any of your colleagues struggling, support them. There is a perception that to ask for help is a weakness. As a group we have a duty to help dispel that perception. The strength of the criminal law fraternity is the support and empathy we share with one another. Know that there is always someone you can talk to and advocate to your peers the benefit of looking after themselves.    

Further to the above, the Chief Justice has presented the two attached speeches on this subject matter, providing invaluable insight from her experience as a practitioner and from the bench. 

Mental Health and Wellbeing within the legal profession

Acknowledging and dealing with the cumulative trauma and stress of your role as Prosecutors

The purpose of examination in chief is to elicit from the witness admissible evidence that satisfies your case theory. It should be done in a logical and structured manner, while simultaneously being engaging and memorable for a jury.  

Rudyard Kipling in ‘The Elephant’s Child’ said “I keep six honest serving men, they taught me all I knew. Their names are what, and why and when, and how and where and who.” The premise of beginning a question with any of these words is that a witness will give, hopefully, a detailed answer as a result.  That may be easier said than done. You cannot pick your witnesses.

Preparing examination in chief is an important reminder that you should already have in mind a case theory and know what you wish to say in your closing address. The evidence in chief of each witness will lay the foundation for those submissions. There is no worse feeling than thinking of a great argument to make to the jury, only to realise you did not ask the necessary questions of that witness to obtain the evidence required.

That reinforces the need to meet your witnesses in advance and confer with them.  Explain who you are and why they are there. Apart from professional witnesses, no one wants to find themselves having to give evidence in a criminal trial. The courtroom is a daunting and unfamiliar place.  If logistics allow, introduce your witness to the courtroom they will give evidence in prior to them doing so. Let them know the nature of your questions, what you need them to focus on, any inadmissible evidence they should not give, and what cross examination involves.  Make sure they have a copy of any previous statements they have made and an opportunity to refresh their memories from those statements.   During your conference you might show the witness other exhibits, such as any contemporaneous notes they made, or allow them to listen to any recordings where they have given a version. 

Non-professional witnesses will inevitably be apprehensive to some extent. The courtroom is unfamiliar to most. The witness will have their own interests and ego to serve. The better you know the witness the easier it will be to develop questions that are most effective in eliciting the evidence you need despite the unfamiliarity. The more comfortable and familiar your witness is with the process, the better they will be in giving their evidence.

In settling how you will present the evidence in chief of each witness review your witness statement and identify:

a) What evidence you need.

b) What evidence you do not want or is inadmissible.

c) How you are going to ensure the witness gives the evidence you need, and not the evidence you do not.

d) How you put it in the context of your case as a whole.

Every question you ask should have a purpose. That means your role is more than just prompting a witness to parrot what is in their statement. You should not seek to elicit an answer from your witness unless the evidence is relevant and admissible.  If the evidence is objected to, and you do not have a reasonable answer as to why it is relevant, then you should not have sought to lead it.  

As a prosecutor, your most important, and often first witness, will be the victim. You should utilise the opportunity of evidence in chief to develop their story in a way which logically and convincingly supports the allegations.  Stories have a beginning, a middle and an end. Having regard to the same will generally provide a good grounding for how you might lead their account. 

Ordinarily, a chronological order for calling witnesses might be the most beneficial course, but not always. Take for example, a domestically violent relationship that ends with a significant act of violence that represents the indicted charge. After establishing who’s who, you might start with the matter that brings you before the court, before asking “was that the only time he was violent to you?” Hopefully that prompts relevant relationship evidence that preceded the event and breakdown of the relationship. Remember, you want to take the jury on the journey with you and not drift off before you get to the evidence that is critical to their considerations. 

The questions you ask should be short and simple. Do not include police jargon or legalese. Sometimes you might wish to use piggyback where your question commences with a repetition of the preceding answer, but the instances of that should be infrequent. Plan how you might introduce relevant exhibits into the narrative. Nothing is worse than interrupting a witness who is eloquently recounting an event, to show them a photo of an innocuous location or item. 

Having said that, while you should allow your witness some flexibility to tell their story uninterrupted, it is also important to control them. Consider the pitch and style of the questions you ask and use them as a tool in achieving this. Letting your witness go off on tangents, give irrelevant evidence or worse still give inadmissible evidence will cause your jury to be frustrated or lose focus. Or worse, finding yourself facing a mistrial argument that has arisen because your witness said something objectionable and potentially incurable by judicial directions. 

For those witnesses who are hesitant, nervous or reluctant, be prepared to prompt them to expand on their evidence. The start of their evidence can provide an opportunity to make them feel more comfortable. A lot of the preliminary matters tend to be uncontroversial – “What is your name? Where were you living (at the relevant time)? Do you know the accused?”- and have the additional effect of allowing the witness to ease into their evidence. 

There can sometimes be pressure to rush through evidence in chief for the sake of efficiency and getting to the end line.  Once you have ticked all the necessary boxes, then your ‘job’ is done, and you can sit down.  But remember, context matters. The nature or type of a disclosure for example, might depend upon the relationship those people have with each other, the location of the conversation, the circumstances that prompted it and if there were time pressures around it.  Those things that surround the key piece of evidence can be just as important.   Such details, as would be expected, can add to the veracity of that witness’s testimony.

As an adjunct to what is stated above, make sure witnesses do not relate conversations in summary form. A good example of this is preliminary complaint evidence “What did X tell you, using the words said as best as you can remember them. That is, what X said and what you said.”   

You should consider how you intend on concluding the witness’s evidence.  Consider what message you want to leave the tribunal of fact with, and do not let the evidence just taper off.  Sometimes too, less is more.  The importance of a witness’s evidence should not be diluted by leading marginal or trivial detail.

The guiding rule in evidence in chief is “Don’t lead”. [1]   But like most things, that is not an absolute. Frequently there will be several parts to a witness’s evidence that are not in contest and in such cases opposing counsel will often consent to you leading a witness in respect of such matters.  

Further, if you have a particularly difficult witness, or one likely to volunteer prejudicial inadmissible evidence, it might be appropriate to agree with the opposition that portions of their evidence will be ‘led’ to avoid such an event. It is prudent to resolve such matters, if there is doubt, with opposing counsel prior to calling the witness.  If it cannot be resolved by agreement, you might consider raising such a course with the Judge in advance, particularly if it surrounds matters in contest at the trial. 

Final advice – a script of prepared questions and answers does not work. Why not? Only you have the script. Your witness does not, and they will inevitably go off script.  You will end up staring at your now useless question (and answer) trail, panicking about where to go and what to ask next. It demonstrates the most important tool when eliciting evidence in chief.  Just as you expect the arbiter of fact – the jury – to do, you too ought to listen carefully to each answer the witness provides.  A particular and perhaps unexpected answer may require you to engage in a further line of questioning, with a failure to do so potentially having significant adverse consequences. Also, if you are not interested in your witness’s answers, why would they be?

[1] A leading question is a question asked of a witness that directly or indirectly suggests a particular answer to a question or assumes the existence of a fact, the existence of which is in dispute in the proceeding, and the witness has not given evidence of the existence of that fact prior to the question asked.

The following is the first in a course of articles to be published by Hearsay on tips for the criminal bar. The author kindly acknowledges the contributions of his colleagues and fellow BAQ members – Craig Eberhardt KC, Ruth O’Gorman KC, Bruce Mumford, Angus Edwards, Elizabeth Kelso and Gavin Webber.  

This article is first in a series aimed assisting barristers practising criminal law and focusses on the first phase of the briefing process, namely whether or not you should accept a brief, and what you should do once the brief is received.

Should you take the Brief?

The cab rank rule provides that a barrister must take a brief:[1]

1. If it is within the barrister’s capacity, skill and experience;[2]
2. The offered fee on the brief is acceptable to the barrister;[3]
3. The brief will not conflict with the barrister’s other commitments;[4]
4. The barrister is not otherwise entitled to refuse the brief.[5] (emphasis added)

When starting out at the Bar it is normal to be concerned that refusing a brief may have significant consequences to your relationship with the solicitor offering it to you, your reputation generally and your cash flow. None of these reasons are a good reason to take a brief in a matter that is too hard for you or you do not have enough time to prepare for it.

The question as to whether a matter is beyond your skill and experience is a subjective one. Obviously, you need to start somewhere, and it will be necessary to take on harder cases as you progress.  The key is to learn to walk before you try to run. Taking on a case that is significantly beyond your skill is a recipe for disaster; you will not be able to discharge your obligations to your client or the court and you may cause a miscarriage of justice.  Being cross examined in the Court of Appeal about your conduct of a trial is a lot more embarrassing than refusing a brief in the first place!

If you have any doubt, you are entitled to refuse the brief.[6]  If you need assistance in making that decision, speak to a senior colleague.

What should you do first?

Read the brief as soon as possible.  

You need to identify what needs to be done so that you don’t run out of time.  This is especially important if you have been given a last-minute brief in a trial starting on Monday!

Cross-reference the material in your brief with the police index.  You will be amazed how often material in the police index to brief is missing from your brief.

Request the QPRIME report.  It contains a summary of every investigative step in the investigation.  Compare the witnesses named in the QPRIME report to see if any other witnesses exist.

Larger briefs may have a summary of statements and evidence which has been prepared by the police. They are useful only as an overview. They are not always complete or accurate; do not rely upon them.

Read the statements and exhibits carefully and ensure that other material referred to in the statements and exhibits (such as body worn camera footage and digital recordings) is contained within your brief. You will be amazed how often this sort of material exists but is not mentioned in the police index and/or your brief.  Ask for material that is missing immediately so that it can be obtained while you read the rest of the material.

If part of the brief is provided in an electronic form (USB or DVD) ensure that you can access that material. As an example, some surveillance footage utilises an executable file that will require a Microsoft operating system to be viewed.

Request transcripts of all recorded material.

Watch the audio-visual recordings and ensure that the transcripts are correct before you rely upon them to advise your client or in court in cross examination or submissions.  There are often critical errors and omissions that completely change the effect of the material.

There should also be a statement from your client and any relevant witnesses.  If there isn’t ask for them from you solicitor. 

Have you got the criminal history of all of the civilian witnesses including your client? If not ask for them as you will need them to decide how to cross examine them and whether to call your client at trial.

Once you have got all of the material you can start preparing in earnest.

Analyse the charges

A great staring point is to read the charge and annotations in Carter’s Criminal law. 

Refer to the latest edition as the law constantly changes.  It currently sells for $170 and if you are going to practise in crime it will pay for itself in the first brief!

Read the relevant sections and list out the elements and possible defences.  It is helpful to do this in a word document so that you can add information later as you read the material.

Read the brief for effect

Read the brief for overall effect making notes as you go in the charge analysis document as to what evidence there is of each element and defence and what evidence is missing.

This will help you identify what further steps will need to be taken and develop a plan for the trial.

Are you going to run a positive case or put the Crown to proof?

Does your client need to give evidence to raise available defences?

Is there a reason why you cannot call your client?

You need to have an in principal position on these issues before you start the trial.

The Witness Statements

The statements should be summarised. 

As you go make notes on your trial plan and identify objections as you go for later reference.

It is sometimes useful to group witnesses into lay, police and expert witnesses (for example eyewitnesses, police witnesses, scientific witnesses, medical witnesses).

The statements can be marked up using different coloured highlighters that distinguish between admissible evidence and inadmissible evidence.  This will help you when you consider and formulate your objections and when you are listening to the evidence during the trial.

The Form of the Summary

There is no single correct way to summarise a brief.  

A useful way to prepare a summary is to create a “working document” with the following fields:

1. Witness – Identify the witness, the date of the statement and an overview of its content;
2. Evidence – the admissible evidence proving an element or a defence as well as evidence that may be inadmissible;
3. Comments – the significance of the evidence, it’s consistency or inconsistency with other evidence, grounds for objections, significance for case plan etc;
4. Matters that require further investigation;
5. Pre-Trial Issues;
6. Objections.

Confer with your Solicitor and Client

Once you have done all of these steps you should confer with your client and solicitor. 

You will probably have a fair idea how you are going to approach the trial by this stage, but you need to make sure that your client agrees with the approach and is capable of giving evidence if you plan on going into evidence. 

Make sure you have a complete trial statement signed on every page and that your solicitor records the conference or takes comprehensive notes and obtains signed instructions from your client in relation to any significant step or decision in the preparation for trial.

Do not be afraid to seek an adjournment if the trial is not ready to proceed

If the matter is not ready for trial seek an adjournment of the trial.  

This will more commonly occur when you have received the trial at the last minute (because you have followed the abovementioned steps in briefs that arrive early in proceedings).

It is easy to miss identifying, and the subsequent interviewing of a relevant witness, subpoenaing documents to court, filing a notice of alibi or giving advance notice of expert evidence.

If the trial is not ready because you or your solicitor did not do something be honest and own your mistake.  It is easier to face the music in the trial Court on an adjournment application than in the Court of Appeal after a miscarriage of justice has occurred as a result of your mistake.

Final thoughts

There is no substitute for experience, and you will only get experience by doing trials.  Start small and work your way up.  

You don’t have learn how to do this all by yourself, barristers who practise mainly in crime are mostly a very friendly and helpful group of people who are willing to speak to junior barristers when they need help.  Lean on this resource where you can.

If you are at the junior Bar you should attend the Criminal Trial Series presentations (the next one is on openings and will occur on 21 September 2023) and other criminal law CPD’s.

The next article in this series

The next article in this series will deal with more complex issues like developing your trial plan, joinder and severance applications, pretrial applications and related issues.  Look out for it in the next issue of Hearsay.

The author also acknowledges the helpful content of the BAQ CPD Criminal Trial Series that is facilitated by Criag Eberhardt KC with the assistance of experienced criminal trial Counsel.

[1] The Cab-rank principle: Barristers’ Conduct Rules (BCR), 21.

[2] BCR, 21(b).

[3] A barrister must not set a fee that acts as a deterrent: BCR, 22.

[4] A barrister must have sufficient time to complete the work which the barrister is briefed to do: BCR, 56.

[5] See BCR, 95-98.

[6] A barrister may refuse a brief if the barrister considers on reasonable grounds that the time or effort required for the brief threatens to prejudice the barrister’s practice or other professional or personal engagements: BCR, 99(b).