Painting located in the Gibbs Room at the Bar Association of Queensland.

On 5 November 2023 the Honourable Susan Kiefel AC KC retired as Chief Justice of the High Court of Australia. In a Ceremonial Sitting on 16 October 2023, the High Court honoured such retirement.

Official video recording of the ceremony.

Official transcript of the ceremony.

On 27 October 2023 her Honour’s career was celebrated at a function conducted by the Bar Association of Queensland. The Bar Association President, Damien O’Brien KC, and in turn her Honour, gave the following speeches:

Speech by the Bar Association of Queensland President, Damien O’Brien

Speech by the Honourable Susan Kiefel AC KC

On Thursday the 23rd of November 2023, the David F Jackson Memorial Mooting Dinner was held at the University of Queensland. The dinner has been held annually since 2012, and is the “awards night” for students who participate in the University’s wide-ranging mooting program. In previous years, the Hon David Jackson KC has attended the dinner, to present the David Jackson trophy (purchased by David himself) for ‘Outstanding Advocacy’. This year – on account of David’s recent demise – his sister in law, Anne Frisby, attended with her husband Mr Tom Frisby to present the trophy on behalf of David’s family, to Elliot Perkins, the 2023 winner of the trophy. The Honourable Glen Williams AO KC – long-time friend to and colleague of David – delivered a speech about David’s career at the bar, especially his early and later years.

Elliott Perkins, Anne Frisby and Tom Frisby

It is very fitting that a trophy for advocacy has been donated by and is named after David Jackson AM, KC. If any proof was needed it was provided by the Hon Susan Kiefel, then Chief Justice of the High Court, in her eulogy delivered at the memorial service for David on 25 May 2023. Therein she said:

“David learned and honed the skills of an advocate long ago. He set a standard. His style was elegant, his tone soft, his language simple and his argument succinct. He was composed under pressure.”

The Chief Justice went on to record that on hearing of David’s pending retirement the High Court decided to invite him to a luncheon to mark the occasion. Unfortunately, he died on 15 May 2023 before that function could be held. But it is significant that no other advocate in the history of the High Court has been offered such an honour. It really was a reflection of the fact that records show he appeared in 296 cases in the High Court.

It is instructive to look at what lay behind that achievement.

David was born in Ipswich on 8 May 1941. He was the youngest of seven children; his nearest sibling was almost a generation older. His father died when David was seven years old. He did well at school and won scholarships to attend secondary schools in Brisbane. He lived with an aunt in Brisbane so he could attend Marist Ashgrove as a day boy.

After a year of engineering at the University of Queensland he switched to law. He obtained an Arts degree in 1963 and a law degree in 1964. He won prizes but did not get honours as in those days one had to do an extra year’s work to attain that.

Probably the most significant influence on David’s development as a lawyer was the two years 1963 and 1964 he spent as associate to Sir Harry Gibbs, then a judge of the Queensland Supreme Court. Sir Harry was a meticulous black letter lawyer. Anyone who had the fortune to work with him soon appreciated the importance of preparation. A detailed knowledge of relevant facts was essential to the proper application of legal principles. David was a good learner and preparation was a hallmark of David’s career and in no small way the reason he was so successful.

Glen Williams AO KC

David was called to the bar in 1964 and started practice in chambers above a fruit shop at 26 Queen Street in 1965. The walls did not go to the ceiling – not the best for a barrister wanting to have a confidential conference with a client. Early in 1966 he moved to the Inns of Court at 107 North Quay, the converted boot factory – but more of that in a moment.

At this time I would like to move to the last week in August 1968, a significant week in David’s career.

On the Monday a rape trial began in No, 1 Criminal Court in the old Supreme Court. It was a marvellous courtroom. High ceiling, cedar furnishings, large bar table and elevated bench. It reeked history.  Many historical trials had taken place there, including, for example, bushrangers like Kenniff. I was for the first accused, David the second, and there were others. It was not surprising David was in a criminal trial. In those days all junior barristers cut their teeth in the higher courts in criminal trials. It was also a critical part of extending one’s experience as an advocate. Addressing a jury was an art in itself. Also having to explain to a jury concepts such as provocation and self-defence, difficult concepts even for lawyers. required a skill in advocacy. It was a good training ground for David.

The prosecution case closed just after lunch on the Friday. David wanted to make a no-case submission, but I did not initially support that as the trial judge had recently held in another case that such a submission was not appropriate where consent was the issue.  David was adamant and I eventually agreed with him. I got from the library a number of relevant law reports. To cut a long story short, the trial judge sat until well after 5pm and ruled in our favour. As the library had closed by then we left the law reports on the bar table.

As we walked back to chambers David confessed to me why he had been so adamant about making a no-case submission. He had his first High Court brief on for hearing the next Wednesday and he would have had to throw the brief if the trial had gone on.

Move now to just after 11pm on Saturday night. David was in his chambers working on his High Court brief. When one thinks of David’s chambers most people today think of his chambers in the top floor of the building at the corner of Hunter and Macquarie Streets with a view all the way down the harbour to the Heads. But that was not the case in 1968. As I said earlier David had moved into the Inns of Court but his chambers were virtually below street level. There was a small window just below the nine foot ceiling. David’s attention was drawn to some glow flashing in that window. He went to the front of the building to investigate. Diagonally opposite the Inns of Court, the O’Connor boat house was on fire. The upper floor was used as a dance hall on Saturday nights but that function had ceased at 11pm. David was surprised there was no fire brigade in attendance at the fierce blaze. For some reason he turned around and saw flames leaping through the roof of the Supreme Court. An arsonist had set fire to the court and the boathouse. The fire had been set at the bar table we had left on the Friday afternoon. The law reports we left on the bar table were probably used in starting the fire. So far as is known David was the only lawyer to see the court on fire at its peak; others arrived shortly after.

Reproduced with permission from the collection of the Queensland Supreme Court Library. 

The High Court matter on the Wednesday settled. We jokingly ribbed David that the Sydney silk opposing him panicked on hearing David had been working on his brief at 11pm on a Saturday night.

So in that week David had appeared in a criminal trial, in fact the last trial in the historic No 1 criminal court, had seen the Court on fire, and dealt successfully with his first brief in the High Court. What emerges so far as his future success is concerned is his persistence in submitting for a no case notwithstanding some precedents against him, and his willingness to spend a Saturday night working on preparation.

Moving on. In 1976 at the age of 34, David took silk and his High Court practice grew quickly. He appeared on a number of occasions before the Privy Council. In 1985 he was appointed a judge of the Federal Court based in Sydney. He decided with some regret to leave the Court in 1987 and return to private practice in Sydney. He quickly became regarded as one of the leading constitutional lawyers in Australia. He was in constant demand to appear before the High Court. In 2007 David was made a Member of the Order of Australia. He had a number of interests outside the law. He was a devoted family man. For many years he held officer rank in the Army Reserve. He was a Knight of the Order of Malta and was heavily involved in charitable works.

In the September issue of Hearsay, a US Federal Judge – his Honour Judge Michael Ponsor – identified the shortcomings associated with the US Supreme Court not having adopted, like other US federal courts, a Code of Judicial Conduct.  His Honour expressed concern as to reports of judges of the Supreme Court receiving gifts including free travel: https://www.hearsay.org.au/a-federal-judge-asks-does-the-supreme-court-realize-how-bad-it-smells/

On 13 November 2023 the Supreme Court adopted such a Code. That is linked below.

For several decades there has existed in Australia a “Guide to Judicial Conduct”, published by the Australasian Institute of Judicial Administration Incorporated. The third, and revised, edition thereof was published in December 2022. The link to that guide – which is comprehensive – is to be found here: https://aija.org.au/publications-introduction/guidelines/guide-to-judicial-conduct/. On page 9 thereof, in Chapter Two – ‘Guiding Principles’, the following appears (the sentence in bold was added to the third edition following the resolution of the Council of the Chief Justices of Australia and New Zealand of November 2020):

Judges must conform to the standard of conduct required by law and expected by the community.  They must treat others with civility and respect of their public life, social life and working relationship.  It goes without saying that Judges must not engage in discrimination or harassment (including sexual harassment) or bullying.  In relation to these matters, Judges must be particularly conscious of the effect of the imbalance of power as between themselves and others, especially their Chambers staff, Court staff and junior lawyers.

The newly adopted US Supreme Court Code of Conduct can be viewed here.

Paper delivered to the Sunshine Coast Bar Association Conference, Alexandra Headland Surf Lifesaving Club, 7 October 2023.

The Honourable George Brandis KC is a barrister of the Supreme Court of Queensland and the High Court of Australia, and a former Commonwealth Attorney General and High Commissioner to the United Kingdom.

Mr Brandis studied law at the University of Queensland and Magdalen College Oxford. He worked for Morris Fletcher & Cross (now Minter Ellison) and commenced practice at the Queensland Bar in 1985.

He was a highly regarded commercial barrister, with his specialised area of practice being trade practices and equity. As junior counsel he appeared in a raft of significant cases, including in the High Court of Australia, including Warman v Dwyer (1995) 182 CLR 544. One of his final appearances was in the Queensland Court of Appeal – appearing unled by senior counsel – is Equuscorp Pty Ltd v Short Punch & Greatorix [2001] 2 QdR 580.

Mr Brandis was elevated to the rank of senior counsel in 2006.

Mr Brandis served as a senator in the federal parliament from 2000 until 2018. In January  2007 he was appointed to the Howard Ministry, as Minister for the Arts and Sport.   After the change of government later that year, he was appointed Shadow Attorney General in the Coalition Opposition.

In May 2010, he was elected Deputy Leader of the Opposition in the Senate – the first Queenslander to be a member of the Federal Liberal Party’s leadership group since Sir Neil O’Sullivan in 1958.  On 18 September 2013, he was appointed Attorney General, Minister for the Arts and Vice-President of the Executive Council in the incoming Coalition Government.  He was also Deputy Leader and subsequently Leader of the Government in the Senate.  In 2018, Mr Brandis was appointed Australian High Commissioner to the United Kingdom. His term concluded in 2022.

Subsequently, Mr Brandis was appointed Professor in the Practice of National Security at the Australian National University, in a joint appointment to the National Security College and the College of Law.  He continues to be involved in international affairs, travelling frequently to the United Kingdom.  Among other roles, he is a member of the Advisory Board of the Council on Geostrategy, one of the leading London international relations think tanks.

Mr Brandis has at all times remained a member of the Bar Association of Queensland, and maintained his practising certificate as a barrister.

Mr Brandis chatted with the Editor:

Paper presented at Clayton Utz on Wednesday 22 November 2023, at the Hellenic Association of Lawyers QLD Chapter Freeleagus Oration by the Honourable Justice David Boddice.

When I was first asked to present this oration, I have to confess that I found the topic intellectually stimulating, but privately queried its ability to be something of a drawcard. To many, I feared it would be too philosophical.

After all, stoic philosophy was founded in Greece, around 304 BC, by Zeno, a merchant who underwent changed circumstances.

However, as I commenced my research, I found that rather than being philosophical, stoic virtues are the essence of the ethical legal practitioner. I thought the topic should read, “How stoic values frame modern lawyers’ ethical obligations”.

Further into my research, I realised that the topic is a little broader than my re-framing would allow. That arises because stoic virtues involve not only courage, temperance, wisdom and justice. They embrace a mindset, to prevent the onset of negative emotions, a resilience to deal with adversity in our daily lives and a commitment to serving in and for the public good.

Those three matters are important for the modern legal practitioner. The sheer size of the profession and the fast pace at which laws change, mean the practice of the law, by the ethical legal practitioner, requires vigilance. Vigilance to the observation of the stoic virtues, vigilance in maintaining their own mental health and vigilance in reminding themselves of the all-important public good.

“The overriding duty to the court, and the need to act with independence and in the interests of the administration of justice, encapsulate the stoic virtue of justice”

Looking after the mental health of the modern day legal practitioner has become a particular priority as the profession becomes bigger and less personal. Many practitioners do not know, either professionally or personally, the legal practitioner acting for the other parties; a very different scenario to the professional world Alex Freeleagus entered when he was admitted as a solicitor 70 years ago. Then, the profession was small. Professional engagement occurred in the context of practitioners personally knowing each other, often from their university days. Contact was also more personal, rather than the impersonal email communication of today. Practitioners could look after each other. They knew the individual practitioner and could detect when they were struggling, personally or professionally.

It is for that reason that mindfulness, a concept deeply intrenched in stoicism, is so important. Its importance is recognised by it being a feature in most Continuing Education programs for practitioners and judicial officers.

Resilience is especially important in the impersonal world. The long hours tend to deny many the benefit of life balance, and a grateful client is often hard to find, even after the legal practitioner has given their all.

The need for practitioners to remind themselves of their obligation to work in and for the public good, also arises because of the pressures of daily practice. The meeting of budgets means a legal practitioner can quickly lose sight of the fact that the ethical practice of a legal practitioner involves a meeting of the public good.

That can be seen in our ethical obligations. It is why legal practitioners are not mere mouthpieces for their clients; it is why there exists the overriding obligation of the duty to the court. It is for the public good of society in general that legal practitioners do not positively mislead a court in the pursuit of a client’s case. It is for the public good that a court is not to be misled by legal practitioners not referring relevant authority, even though it is contrary to the client’s wishes or eventual outcome.

“Resilience is especially important in the impersonal world”

Stoicism should be a guiding light for the modern legal practitioner. Its focus on excellence in all you do, on dealing with that which you control, rather than focusing on that over which you have no control, and on recognising that our days are naturally in constant flux. It provides a blueprint for handling the professional responsibilities of a legal practitioner.

Marcus Aurelius, the great emperor and arguably the most influential stoic philosopher, even had a summary for the daily legal grind. He wrote, “Today I shall be meeting with interference, ingratitude, insolence, disloyalty, ill-will and selfishness. All of them due to the offender’s ignorance of what is good or evil.”

Many could relate with that summary (although it is somewhat scary to think that even the most powerful man in the world started each day with that thought).

I did not have the fortune of personally knowing Alex Freeleagus. I did, however, know him by reputation. When I commenced my career in the law, almost 40 years ago, Alex had been a partner in major commercial solicitors’ firms for approaching 30 years. Although he was in the latter part of his career, Alex was rightly seen as one of Queensland’s foremost solicitors and a leader of the profession.

His reputation was that of a legal practitioner who gave wise advice, who was courageous in the pursuit of his client’s interests, who was unfailingly measured in his dealings with others and whose goal was the pursuit of justice, in the best traditions of the ethical legal practitioner.

That reputation represented stoic virtues; wisdom, courage, temperance and justice.

When Alex Freeleagus first practiced, a written Code of Conduct did not exist in the form now governing barristers and solicitors in this State and nationally. There was no need, because it was the mark of a professional to show not only competence, but to also practice ethically.

At that time, a legal practitioner, as an officer of the court, had well-known and well-defined ethical obligations, although they had not been reduced to the more formal Code of Conduct of today.

Those ethical obligations now appear in the Codes of Conduct under rules providing for the duty to the court, the duty to the client, the duty to your opponent, the need for independence, the responsible use of court processes and privileges, the integrity of evidence and the efficient administration of justice.

The overriding duty to the court, and the need to act with independence and in the interests of the administration of justice, encapsulate the stoic virtue of justice. For stoics, justice is our duty to our fellow man and to our society. Marcus Aurelius, in Meditations 9.31, described it as thought and action resulting in the common good. Justice, above all other virtues, guides the ethical legal practitioner. It is the moral compass. It is about upholding our responsibilities to our fellow humans. As Marcus Aurelius wrote, “that which is not good for the beehive cannot be good for the bees.”

On occasions, compliance with these obligations requires courage. It can be very difficult for the younger practitioner, and sometimes for the even more experienced practitioner, to explain to the lay client, obsessed with all the emotional baggage which attends being a litigant and believing that their good money is being paid so that they may win their cause, come what may, that your overriding duty is to the court. Courage is standing up for what is right, even when it is difficult or unpopular and especially when it is contrary to your own interests.

The duty to your opponent and the duty to responsibly use court processes and the privileges attaching to a legal practitioner, encapsulate the stoic virtue of temperance. For stoics, actions are guided by reason, not emotion. The ethical legal practitioner must not allow emotion or rashness to interfere with the ethical practice of the law. A “win at all costs” approach, or indeed, a “them and us” approach to one’s opponent, is contrary to a practitioner’s ethical obligations. Civility in communications is crucial, as is the ability to keep emotions under control. Each day, we come across the difficult and the self-obsessed. Some days we do so more than once. The ethical legal practitioner has the obligation to respond calmly and rationally. As Aristotle said, temperance is doing the right thing, in the right amount, at the right time.

“Today I will be meeting with interference, ingratitude, insolence, disloyalty, ill-will and selfishness …”

Whilst justice is the guiding virtue, wisdom is often considered to be the primary value in the four virtues of stoicism. Justice is wisdom in social life. Courage is wisdom under pressure. Temperance is wisdom in decision-making.

It has been said that the stoics define wisdom “as the knowledge of things good and evil and of what is neither good, nor evil”. Wisdom is knowledge “of what we ought to choose, what we ought to be aware of, and what is indifferent”. With this knowledge, wisdom informs action.

Throughout my life, I have worked on the principle that you do not do anything in this world for acknowledgment. As I tell my children, if you do, you will live in a permanent state of disappointment. The practice of the ethical legal practitioner involves doing the very best you can, each and every day, with what you have. That involves using your skillset against the backdrop of factual circumstances of a particular case and the law as it presently exists. Success or failure often has very little to do with the particular attributes of the legal practitioner. It is due to the factual matrix in the context of the existing law, best presented by the competent legal practitioner, acting with wisdom, with courage, with temperance and with the overriding sense of justice.

Once it is understood that the ethical legal practitioner practices on a daily basis under the auspices of stoic virtues, we can understand how it is that that legal practitioner is able to deal with the unpredictable, moving to solve the consequences of the actions (or inactions) of others in an environment over which that legal practitioner has little control. The capacity to use reason, allows the making of the right choices. These choices improve the lives of the legal practitioner’s clients and ensure the maintenance of the central pillar of any good society. That pillar is the rule of law.

Virtue, in the stoic sense, is the highest form of excellence and the best expression of human nature. A virtuous life, in the stoic sense, helps us respond constructively to the challenges of modern day legal practice, by making wise decisions calmly, despite the unpredictable nature of the modern world.

No matter what happens, the modern ethical legal practitioner always has the capacity to reason, so that the choices involve doing the right thing in the public good.

Alex Freeleagus did not need a written Code of Conduct to behave as the ethical legal practitioner. It is to be hoped that no legal practitioner requires a Code of Conduct to behave ethically. The written Code should be seen as expressing, for the layperson, the constraints within which the competent legal practitioner can act in the pursuit of a client’s cause. It explains to the layperson why their legal practitioner cannot be their mere mouthpiece. It explains to the layperson that the efficient administration of justice and the overriding duty of the court are the frameworks within which the ethical legal practitioner must operate, if the administration of justice is to remain for the benefit of the public good.

The final word should, however, be left to Greek philosopher Epictetus’ observation of the attributes of the human being, as they may hold the key to how the modern ethical legal practitioner deals with the challenges of future professional life, where there will be much more misinformation in the public domain and the increasing use of artificial intelligence to create what is available in the public domain. Epictetus observed: “We have two ears and one mouth so that we can listen twice as much as we speak.” And since we have two eyes, we are obligated to read and observe more than we talk.

Justice Sandra Day O’Connor – the first woman appointed to the United States Supreme Court – died on 1 December 2023.

In 1981 President Ronald Reagan nominated her for appointment, fulfilling a campaign promise to appoint the first woman justice to the Supreme Court. Her Honour was then an Appeal Court judge in Arizona. She was 51 years of age.

Justice Day O’Connor served on the Supreme Court for 24 years, retiring in 2006.

Politically – she was a moderate – if not a conservative.

Her three days of nomination testimony before the Senate Judiciary Committee in 1991 were interesting. In an opening statement she said:

I happily share the honour [of nomination] with millions of American women of yesterday and today whose abilities and conduct have given me this opportunity for service.

In her testimony she was taxed by members about her views on various aspects of the law. She refused to answer, responding only ‘it is something in which I will not engage’.  In respect of abortion, however, she answered that, at the age of 51, she would not be faced with unintended pregnancy ‘so perhaps it is easy for me to speak’ and that she felt ‘an obligation to recognise that others have different views’.

The Senate approved her nomination by a vote of 99 to 0. She joined the Supreme Court, then headed by Chief Justice Warren Burger.

“On the bench during an argument session, she often asked the first question, and it was usually one to strike fear into the heart of even an experienced Supreme  Court advocate …”

In her eulogy of Justice Day O’Connor in the New York Times, the eminent and influential Linda Greenhouse – who reported on the Supreme Court for the Times form 1978 to 2008 and is a prolific writer on legal issues – wrote:

Very little could happen without Justice O’Connor’s support when it came to the polarizing issues on the court’s docket, and the law regarding affirmative action, abortion, voting rights, religion, federalism, sex discrimination and other hot-button subjects was basically what Sandra Day O’Connor thought it should be.

That the middle ground she looked for tended to be the public’s preferred place as well was no coincidence, given the close attention Justice O’Connor paid to current events and the public mood. “Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus,” she wrote in “The Majesty of the Law: Reflections of a Supreme Court Justice,” a collection of her essays published in 2003.

…

“It would be important”, she said, “to maintain a fair and just society with a strong rule of law at a time when many are more concerned with safety and a measure of vengeance.” Speaking at the groundbreaking for a new building at New York University School of Law in Manhattan, she added: “And in the years to come, it will become clear that the need for lawyers does not diminish in times of crisis; it only increases.”

…

On the bench during an argument session, she often asked the first question, and it was usually one to strike fear into the heart of even an experienced Supreme Court advocate: Is your case properly in this court? Why shouldn’t we dismiss it as moot? What gives your client standing?

“The Route to success in arguing a case before Justice Day O’Connor lay not in invoking legal doctrine or bright-line rules, but in marshalling the facts to demonstrate a decision’s potential impact”

Carter Phillips, a lawyer who argued dozens of cases before Justice O’Connor, once said that he barely bothered to prepare openings for his arguments because he knew that from the start he would be batting back questions from Justice O’Connor. In his first argument after she retired, he recalled, he was met with silence from the justices and had to scramble to think of what to say during the opening minutes of his allotted time.

The route to success in arguing a case before Justice O’Connor lay not in invoking legal doctrine or bright-line rules, but in marshaling the facts to demonstrate a decision’s potential impact. Justice Anthony M. Kennedy described her with admiration as a pragmatist, which he defined as “paying attention to real-world consequences.” Her jurisprudence, Justice Kennedy wrote in a tribute published after her retirement, was “grounded in real experience.”

Vale Sandra Day O’Connor.

For those with a subscription to the New York Times, see link to article and 2008 interview with Justice Day O’Connor – published after her death (and the writer found it inspiring).

See also below in ‘Reviews and the Arts’ the book review – by Matthew Hickey – of ‘First – Sandra Day O’Connor’.

Speech of Current Legal Issues Seminar 2 presented at Banco Court Level 3 QEII Courts of Law on 17 August 2023 hosted by the Bar Association of Queensland, the University of Queensland and the Supreme Court Library Queensland.

Overview

The criminal justice system – consisting of, to a significant extent, the conduct of criminal trials – is distinctly adversarial in character. Appearing as counsel in such a trial includes a right of objection to (inter alia) viva voce or documentary evidence sought to be adduced. As to such right, counsel need consider carefully – and, to the extent possible, proactively – whether, when, why and how such objection ought be made, or responded to.

Usually the objection arises where counsel – whether or not deliberately – is attempting to elicit inadmissible evidence from a witness, whether in evidence in chief or cross-examination, or asks an inappropriate question.  Objection may be taken, also, to non-responsive evidence provided by a witness,  evidence outside the expertise of an otherwise expert witness, an inapt intervention question asked by the trial judge or to an inaccurate or inappropriate statement made by counsel in court address.

That list is not exhaustive, but it highlights the need for counsel to be alert throughout the course of trial –  and to be ready to respond with apt immediacy –  to anything said by their client’s witnesses, the opponent’s witnesses, opposing counsel or the judge, together with the documents sought to be tendered. Thorough preparation by counsel  – with critical attention afforded to the client’s case theory and germane evidentiary principles – is the touchstone for optimal outcome.

When might you make an objection?

Do not make objections unless they are important.

For example, your opponent may ask leading questions on matters that are not in dispute. It will frustrate both your judge and the jury if you object to matters that are introductory, immaterial or uncontentious. Further, it is inappropriate to object, without a proper foundation, in an attempt to disrupt the flow of evidence.  

There might be occasions when, strictly speaking, the evidence is not admissible yet there are reasons that you may choose not to object. Examples include:

1. The evidence given might suit your case theory or purposes.
2. The evidence is not contested.
3. The evidence, while hearsay, is not being led for the truth of its contents.

Objections should never be personal attacks on your opponent. However, it may be necessary to object to things said by them. An example might include where your opponent is adding their own personal commentary in response to, or in asking, a question of a witness.

It is important to master the rules of evidence, so you know when and what questions are permitted or disallowed under the relevant legislation. You will lose all credibility with the judge, and jury, if you object to a permissible question because you do not know the law or if you do not object to a prohibited question and a judge needs to intervene.

It will frustrate both your judge and the jury if you object to matters that are introductory, immaterial or uncontentious. Further, it is inappropriate to object, without a proper foundation, in an attempt to disrupt the flow of evidence.

Common instances where this may occur exist under the Evidence Act 1977 (Qld).  For example, questions relating to a witness’s credit may not be permitted if it is considered that the answer would not materially impair confidence in the reliability of the witness’s evidence (section 20).  

You should object to an improper question asked by counsel (section 21).  An improper question means one that uses inappropriate language or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive. In having regard to whether a question falls within one of those categories, regard should be had to any mental, intellectual, physical impairments of the witness, or in having regard to their education, age or for cultural reasons.

Prohibited questions might include;[1]

1. Seeking to cross-examine a complainant about their sexual history without leave of the court (Criminal Law (Sexual Offences) Act 1978 (Qld), section 4).
2. Seeking to introduce a witness’s criminal conviction in contravention of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld).
3. Seeking to cross-examine a defendant about a previous version, where the statement was otherwise properly admissible in the Crown case but had not been led by the Crown (see R v Soma [2003] 212 CLR 299).
4. Where a party seeks to discredit their own witness by introducing ‘bad character’ evidence (Evidence Act 1977 (Qld), section 17)

 Other examples of questions that would prompt your objection include:

1. Repetitive questions, where the witness has clearly and unequivocally answered it previously.
2. Double-barrelled questions, or questions that contain multiple propositions requiring response.
3. Seeking to have the witness to speculate.
4. If the question misquotes previous evidence, or something recorded in a statement or transcript.
5. Asking an accused why the complainant would ‘make up’ the allegation.

What if you want to object to something said by your opponent in their opening or closing address to a judge or jury?  

It is likely to be rare that you would interrupt another party’s address to object, whether it be their opening or closing statement unless it was likely to cause a mistrial and your objection might prevent that course. In most circumstances, it would be appropriate to wait until the conclusion of their address to raise your objection with the judge. Depending on the occasion, and whether a break allowed it, you might consider raising it with your opponent personally and allowing them the opportunity to correct it themselves.

You will lose all credibility with the judge, and jury, if you object to a permissible question because you do not know the law or if you do not object to a prohibited question and a Judge needs to intervene.

How do you make an objection?

You should stand up and clearly advise the court you are making an objection.

At that stage, it is preferable to outline, in brief, why you are making the objection.  Examples might include;

1. Your Honour, I object to my learned friend seeking to lead hearsay evidence.
2. Your Honour, I object to my learned friend leading the witness.
3. Your Honour, I object to the witness providing their opinion.

It may be on making the objection in that form, your opponent immediately concedes the error, or the judge rules on the matter immediately. If that does not ensue, you need to be ready to fully argue why you say the question or answer given is inappropriate or inadmissible.

It is important at this juncture to consider whether the jury, and the witness, should be excluded from the courtroom while the substance of the objection is argued.  You might simply articulate to the judge “Your Honour, given the argument I seek to make it would be appropriate that it occur in the absence of the jury.”

As the objector, you should argue your position first and then sit down while your opponent makes their response. Do not interrupt the opponent’s articulation of a response. You can reply if there is a misstatement of law or fact.

There may be circumstances where it is intimated by the judge that you should withdraw your objection, or query whether you wish to maintain it.

If you are confident in your argument, you should seek to have the judge rule on your argument. In doing so, you will preserve your position, should it be necessary, at any subsequent hearing or appeal.

How do you respond to an objection?

If your opponent objects to your question or witness’s evidence, you should sit down when the objection arises.

You should immediately be in a position to respond to the objection. As the advocate who asked the question, you should know why it was an appropriate question or why the answer was admissible. If the question was poorly framed, or the answer inadmissible, then the appropriate concession should be made.

If objections are made to you leading the witness on matters that are not in dispute, you might respond “I had not understood those matters were not in issue, but I’ll desist from asking leading questions.”

Avoiding unnecessary objection

Counsel should be invested in ensuring that trials are run efficiently. Any matters that can be attended to in advance of the hearing should be.

It might be that when you review the brief of evidence there are matters contained in witness statements, recordings or evidence itself that you determine are not admissible. It would be inefficient not to speak to your opponent in advance about these matters. Raising matters during the trial, that could have been dealt with or argued properly in advance will frustrate the judge and the jury who will be faced with constant interruptions in the presentation of the evidence.  

In preparing matters you might consider asking your opponent what evidence they intend to lead in their case or specifically raising your objection in advance. For example “I would object to you leading paragraph [27] of witness Jane Smith’s statement.”  Even more so if you intend on objecting to the competency of a witness or their expertise. If there is disagreement at that point, the disagreement is appropriately dealt with at a pre-trial hearing prior to the trial commencing.

Objecting to Questions by the Judge

It is a central part of a trial judge’s role to ensure that the trial is conducted fairly.  A trial judge is entitled to intervene in the questioning of a witness where the form of the questioning is such that it involves unfairness to the witness.[2]

It will be rare that a trial judge will go beyond those parameters, however, you should be aware of the principles that underpin the stated rule.

You should immediately be in a position to respond to the objection. As the advocate who asked the question, you should know why it was an appropriate question or why the answer was admissible.

In R v Matthews[3] the Victorian Court of Appeal considered the authorities and developed the following propositions apropos of judicial intervention in trials:

“(1) Whilst a large number of interruptions must put this Court on notice of the possibility of a denial of justice, mere statistics are not of themselves decisive;

(2) The critical aspect of the investigation is the quality of the interventions as they relate to the attitude of the judge as might be observed by the jury and the effect that the interventions have either on the orderly, proper and lucid deployment of the case for the defendant by his advocate or upon the efficacy of the attack to be made on the defendant’s behalf upon vital prosecution witnesses by cross-examination administered by his advocate on his behalf;

(3) In analysing the overall effect of the interventions, quantity and quality cannot be considered in isolation, but will react the one upon the other; but the question which is proposed ultimately for this court is ‘Might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing-up of the judge, be such that the jury’s verdict might be unsafe?”

In R v Brdarovski[4] Nettle JA – sitting as a member of the Court of Appeal of Victoria before appointment to the High Court – acknowledged the essentially subjective nature of any conclusion that the line has been crossed, but identified certain judicial conduct that was definitely over that line, wherever it was drawn:

Sometimes, it is a nice question whether a trial judge should ask any questions of a witness and if so how far they should go.  At such points, views are liable to differ.  But, whatever differences in views there may be at the margin, there should be no doubts about the basics.  It is not part of the functions of a trial judge to endeavour to fill gaps in a Crown case;  nor to ask questions of an accused or any other witness in order to raise an issue which the Crown and the accused have left alone;  nor to ask leading questions of an accused or any other witness in an endeavour to throw doubts upon the witness’s credit, particularly if the witness is the accused.

An objection to a question of a trial judge must be approached with appropriate circumspection.

There is nothing wrong with a trial judge asking questions designed to clear up answers that may be equivocal, uncertain, or within reason, to identify matters that may be of concern to the judge themselves.[5]

However, if the line is crossed by the trial judge, then objection should be taken.  If such an objection is taken, you should be in a position to clearly articulate both the basis of objection and the legal foundation that supports it.

[Look out for the next in this series that will deal with Openings and Leading Evidence]

[1] This should not be considered an exhaustive list.

[2] R v Clancy [2022] QCA 162 at [24].

[3] (1984) 78 Cr App R 23, p.32-33. Cited with approval in R v Clancy. Op. Cit  and R v Barker [2023] QCA 117 at [36].

[4] (2006) 166 A Crim R 366 at [25]. Cited in Nwagbo v The Queen [2021] VSCA 93 at [26].

[5] R v Esposito (1998) 45 NSWLR 442, p.472.

Paper delivered to the Central Queensland Law Association Conference, Rockhampton, 8 and 9 September 2023.