Top tips on running judge-alone trials

A recent intensive on “Running an Effective Judge-Alone Trial”, organised by ADLS and held at the Stamford Plaza, attracted a large number of attendees, most of whom had completed a number of Judge-alone Trials (JAT).

Judge Along Trials

The seminar recognised that JAT account for a major percentage of defended cases in the criminal jurisdiction and provide invaluable experience for lawyers developing advocacy skills and progressing to jury trials. The programme was designed to teach attendees how to be more effective advocates, through presentations, demonstrations and commentary from highly experienced and well-regarded presenters, including his Honour Judge Collins (Executive Judge for JAT, Auckland District Court), who provided commentary throughout from a judicial perspective. Each presenter provided written papers and spoke to them, providing accounts of their own practical experiences and how they deal with problems and issues that inevitably arise in all aspects of trial preparation and conduct.

The programme included planning and running a judge-alone trial, including taking instructions, keeping a trial file and developing the theory of the case, pre-trial applications, processing files from the perspective of police prosecutors, and how to be effective in dealing with them, dealing with Judges and Legal Services, finding help and support from colleagues, structuring examination and cross-examination of witnesses, production of exhibits, making and responding to objections, and recognising and managing some common ethical problems in the context of JAT.

Barrister Simon Lance covered the introductory topics of discovery, legal aid, taking instructions from clients, election and developing the theory of the case. One important issue Mr Lance covered was electing JAT or jury trial. Judge Collins pointed out that, in JAT, judges have to provide reasons for their decisions, which would provide a more open basis for appeal where there has been a conviction. Both Mr Lance and Judge Collins also emphasised the importance of costs and time delay when deciding whether to elect JAT.

Marie Dyhrberg QC dealt with pre-trial applications, outlining the legislative procedure pursuant to the Criminal Procedure Act 2001 including, but not limited to, entering and changing a plea, adjourning a matter to a case management conference, requesting a sentence indication and ordering a pre-trial hearing as to the admissibility of evidence. Ms Dyhrberg QC emphasised that the decision to deal with pre-trial applications as a separate hearing prior to the JAT depended on how long the pretrial hearing would take, whether it would be determinative as to whether the JAT continued (in that an unsuccessful application may prompt a guilty plea or a successful one persuade Police to withdraw the charge) and whether it would significantly reduce the JAT hearing time. Nonparty disclosure and search and seizure remain the most significant pre-trial applications and Ms Dyhrberg QC talked about the importance of keeping up with cases that set out the guidelines for determining these issues. Judge Collins emphasised the need to make only genuine sentence indication applications as it wastes time for both the defendant and the court if this option is not properly pursued and intended to be honestly considered.

Barrister Mark Edgar dealt with the commonly vexed topics of examination-in-chief, cross-examination, producing exhibits and objections. Mr Edgar outlined invaluable techniques in preparing examination-in-chief and cross-examination and emphasised these skills are just as important in JAT as in a jury trial. He further said that, contrary to an advocate’s perception when first appearing in JAT, cross-examination is indeed an art and a most gratifying one. Both Judge Collins and Mr Edgar recognised that many witnesses are seemingly honest and intelligent men and women who align themselves on opposite sides of a case and testify to what appear to be absolutely contradictory statements of fact. From experience, Judge Collins and Mr Edgar advised that, throughout their years as judge and advocate respectively, it takes hard work, insight and preparation to identify the reasons for these sometimes unconscious mistakes of witnesses, so far as it is possible. This part of the intensive also highlighted that unless the advocate understands something of the sources of the fallacies of testimony, it is impossible to highlight them through cross-examination.

Sergeant Ian McMeeking provided some most helpful information on “a day in the life of a prosecutor”, including how police prosecutors evaluate a file to see if the evidence stacks up to the charge, when to withdraw or amend down a charge, and how they approach sentence indications. This presentation was informative in that it gave advocates knowledge of how this aspect of the system works so therefore how to approach prosecutors leading up to the conduct of JAT.

Barristers Belinda Sellars and Aieyah Shendi presented some helpful practical advice on dealing with prosecutors, judges and Legal Services, including support and mentoring.

They provided valuable insight into the ways to achieve the best outcome for clients by the approaches they have taken that are not written in the books. Ms Shendi stressed the importance of finding a mentor and using their experience and wisdom for dealing with the attendees’ own cases. Ms Sellars and Ms Shendi strongly stressed the obligation of taking time to know your judges and your prosecutors. They spoke about the need to develop a network of colleagues and mentors to discuss cases and the law so as to gain confidence and improve knowledge and skills as advocates. Ms Sellars also covered sentencing and reminded attendees that sentencing requires and demands consistency of outcome alongside the key requirement that there is fairness to the individual being sentenced. She quoted the great Roman jurist Cicero’s dicta “Let the punishment fit the crime”, and noted that it was the advocate’s job to assist the court in ensuring that this is what happens.

Marie Dyhrberg QC ended the seminar by speaking about ethics (issues and dilemmas) and etiquette. This far-ranging discussion covered the fundamental obligations for all advocates appearing in court, highlighting how to deal with conflicts between a client’s instructions and those ethical obligations. Ms Dyhrberg QC stressed that these dilemmas occur for every advocate and that along the way mistakes will be made, and spoke about how to deal with them, retain integrity and remain (ultimately) an honest officer of the court.

Video clips from Boston Legal and Rumpole of the Bailey (provided by Judge Collins) were an unexpected highlight throughout the intensive – while being highly entertaining, they also underscored many points raised during the day. And of course, networking was put to real practice with a social hour at the bar (the Stamford bar that is!).

A copy of the paper from the intensive is available for purchase for a limited time from the ADLS bookstore. Please visit www.adls.org.nz or contact the bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: thestore@adls.org.nz.

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