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]
- If it is within the barrister’s capacity, skill and experience;[2]
- The offered fee on the brief is acceptable to the barrister;[3]
- The brief will not conflict with the barrister’s other commitments;[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:
- Witness – Identify the witness, the date of the statement and an overview of its content;
- Evidence – the admissible evidence proving an element or a defence as well as evidence that may be inadmissible;
- Comments – the significance of the evidence, it’s consistency or inconsistency with other evidence, grounds for objections, significance for case plan etc;
- Matters that require further investigation;
- Pre-Trial Issues;
- 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).
