Running an effective Judge-Alone Trial

ADLS’ recent “Judge-Alone Trial” Intensive session was aimed at practitioners seeking to learn, upskill or simply remind themselves of useful techniques and practices involved in this form of hearing.

Judge Alone

Practitioners from both defence and prosecution were well-represented in the audience, along with quite a few counsel from outside the Auckland region, including some from Dunedin. While there were formal addresses from the various speakers, there was also opportunity for a more open forum and questions to the panel. The topics covered were not simply procedural, but also more practical in terms of the duties to which practitioners need to adhere, and a reminder that we are not “legal islands” but have to work with many other people within the overall criminal justice system.

Joint Chairs of the event were their Honours Judge David Sharp and Judge Sainsbury, who both provided valuable judicial comment on the materials, presentations and questions as the seminar progressed. It was interesting to listen to Judge Sainsbury compare his time at the defence bar to his expectations from counsel now that he is on the bench. Facts rather than academic submissions were the order of the day. His Honour also repeated the following legal mantra which was relevant to all stages of a case’s progress: “Short, single topic, factual questions.” Practitioners were brought back to this fairly regularly, irrespective of the actual topic under discussion. This mantra works for case theory, pre-trial applications and hearings, witness examination and sentencing. It was clearly the message of the day.

The papers presented and discussed on the day ranged from case management and pre-trial applications, to dealing with other people working within the criminal justice system and the ethics of being legal counsel. Peter Davey presented a great practical guide on initial instructions and the importance of developing the theory of the case, as this will frame the elements of the allegations and any potential defence. This important aspect was emphasised throughout the later papers but, at the beginning, it should represent the client’s view of events and therefore frame how the case proceeds through to determination. Mr Davey’s paper covered initial instructions, disclosure, advice on the trial file and potential election pitfalls. Marie Dyhrberg QC then regaled the participants with some tales from the bar to illustrate her paper, which focussed on pre-trial applications. Again, the point was made that, without a good theory of the case, practitioners will not be sufficiently focussed to make the best of these applications.

A presentation of particular note in terms of future developments was from Senior Sergeant Tara Griffin, covering the expansion of the Victim Video Statement pilot which has been taking place in Manukau. Currently, this system is limited to family violence matters, but it appears the Police intend expanding the use of the www.evidence.com platform to other criminal matters, as well as other Auckland courts. The end-goal appears to be a national roll-out, although it is unclear how much discussion between the Police and representatives of the Bar has taken place on this at this point. The Police took the position that practitioners must register in order to use the system, and there is no getting away from this “despite the resistance shown by some counsel”.

However, barrister Heather Rogers, who appears regularly at Manukau, directed some questions to the panel on this system, primarily querying the direction to register and the expansion, when the current terms and conditions for registering for the system clearly state “it was not to be used for commercial or professional purposes”. The Police response indicated this was currently in the process of being amended. Ms Rogers felt, however, that this was an important point to make clear to practitioners, as the materials provided and the address from the Police had not addressed this point, and sole practitioners without liability insurance may be at risk. The Police also advised they had developed a policy document concerning the use of this system moving forward, and placing some boundaries on when and how it would be used. This document was not provided to practitioners, and was only very loosely discussed. There are more issues in terms of the “steamrolling-out” of this system, as practitioners had concerns about being placed in a position where they have no choice but to use it to obtain any disclosure at all from the Police.

The afternoon session was focussed on trial strategy. A substantial presentation from barrister Mark Edgar covered facets of both sides of witness examination, production of exhibits, and objections. Mr Edgar provided a wealth of information based on his experience. Again – coming back to the mantra – the comments from Mr Edgar (supported by Judge Sharp and Judge Sainsbury) were that, without a solid theory of the case, you risk the possibility of your witness examination lacking direction and strength. Belinda Sellars and Lila Tu’i addressed the often-overlooked topic of the importance of dealing with prosecutors, the court and registrars, judges, Legal Services, and Corrections with courtesy and respect at all times. One important point stressed to junior practitioners was they should never be afraid to seek advice from senior practitioners (but pick your time). It was also mentioned that the ADLS Friends Panel would be more than happy to help junior practitioners.

Ms Sellars then followed on with a discussion on sentencing, framed around 2014 Practice Note (HCPN 2014/1 (crim) | DCPN 2014/1). Topics discussed included the recent case of Solicitor-General v Heta [2018] NZHC 2453, and the decision of Whata J in respect of the discount for a section 27 cultural report. Uplifts for previous convictions were also discussed, as there was potential for “double dipping”. While previous conduct may inform culpability, the start point cannot be uplifted due to a client’s record, and then followed by an uplift for this as an aggravating factor as well. There were also some challenging views on the proper use of guideline judgments in sentencing. It was suggested that, while these judgments are useful and provide transparency and a level of consistency, they are (as their name suggests) guides. Practitioners should think creatively and use recent cases that support their position when making submissions on the start point. There was much food for thought on this subject.

Marie Dyhrberg QC closed the day with a brief discussion on the ethical obligations of counsel and some hints and tips on etiquette – both in the courtroom and outside. The overriding message was to be “uncompromisingly ethical”. A lawyer’s reputation with colleagues, the judiciary and court staff depends on this. Once lost, it is very hard – if not impossible – to regain. The all-day event finished with social time which provided the opportunity to talk through the day’s lessons with the judges, and both senior and junior practitioners.

ADLS’ much-anticipated “Running An Effective Jury Trial” Intensive will take place in mid-2019. More details are coming soon – keep an eye on LawNews and the CPD section of our website adls.org.nz/cpd.

ADLS’ recent “Judge-Alone Trial” Intensive session was aimed at practitioners seeking to learn, upskill or simply remined themselves of useful techniques and practices involved in this form of hearing.

Practitioners from both defence and prosecution were well-represented in the audience, along with quite a few counsel from outside the Auckland region, including some from Dunedin. While there were formal addresses from the various speakers, there was also opportunity for a more open forum and questions to the panel. The topics covered were not simply procedural, but also more practical in terms of the duties to which practitioners need to adhere, and a reminder that we are not “legal islands” but have to work with many other people within the overall criminal justice system.

Joint Chairs of the event were their Honours Judge David Sharp and Judge Sainsbury, who both provided valuable judicial comment on the materials, presentations and questions as the seminar progressed. It was interesting to listen to Judge Sainsbury compare his time at the defence bar to his expectations from counsel now that he is on the bench. Facts rather than academic submissions were the order of the day. His Honour also repeated the following legal mantra which was relevant to all stages of a case’s progress: “Short, single topic, factual questions.” Practitioners were brought back to this fairly regularly, irrespective of the actual topic under discussion. This mantra works for case theory, pre-trial applications and hearings, witness examination and sentencing. It was clearly the message of the day.

The papers presented and discussed on the day ranged from case management and pre-trial applications, to dealing with other people working within the criminal justice system and the ethics of being legal counsel. Peter Davey presented a great practical guide on initial instructions and the importance of developing the theory of the case, as this will frame the elements of the allegations and any potential defence. This important aspect was emphasised throughout the later papers but, at the beginning, it should represent the client’s view of events and therefore frame how the case proceeds through to determination. Mr Davey’s paper covered initial instructions, disclosure, advice on the trial file and potential election pitfalls. Marie Dyhrberg QC then regaled the participants with some tales from the bar to illustrate her paper, which focussed on pre-trial applications. Again, the point was made that, without a good theory of the case, practitioners will not be sufficiently focussed to make the best of these applications.

A presentation of particular note in terms of future developments was from Senior Sergeant Tara Griffin, covering the expansion of the Victim Video Statement pilot which has been taking place in Manukau. Currently, this system is limited to family violence matters, but it appears the Police intend expanding the use of the www.evidence.com platform to other criminal matters, as well as other Auckland courts. The end-goal appears to be a national roll-out, although it is unclear how much discussion between the Police and representatives of the Bar has taken place on this at this point. The Police took the position that practitioners must register in order to use the system, and there is no getting away from this “despite the resistance shown by some counsel”.

However, barrister Heather Rogers, who appears regularly at Manukau, directed some questions to the panel on this system, primarily querying the direction to register and the expansion, when the current terms and conditions for registering for the system clearly state “it was not to be used for commercial or professional purposes”. The Police response indicated this was currently in the process of being amended. Ms Rogers felt, however, that this was an important point to make clear to practitioners, as the materials provided and the address from the Police had not addressed this point, and sole practitioners without liability insurance may be at risk. The Police also advised they had developed a policy document concerning the use of this system moving forward, and placing some boundaries on when and how it would be used. This document was not provided to practitioners, and was only very loosely discussed. There are more issues in terms of the “steamrolling-out” of this system, as practitioners had concerns about being placed in a position where they have no choice but to use it to obtain any disclosure at all from the Police.

The afternoon session was focussed on trial strategy. A substantial presentation from barrister Mark Edgar covered facets of both sides of witness examination, production of exhibits, and objections. Mr Edgar provided a wealth of information based on his experience. Again – coming back to the mantra – the comments from Mr Edgar (supported by Judge Sharp and Judge Sainsbury) were that, without a solid theory of the case, you risk the possibility of your witness examination lacking direction and strength. Belinda Sellars and Lila Tu’i addressed the often-overlooked topic of the importance of dealing with prosecutors, the court and registrars, judges, Legal Services, and Corrections with courtesy and respect at all times. One important point stressed to junior practitioners was they should never be afraid to seek advice from senior practitioners (but pick your time). It was also mentioned that the ADLS Friends Panel would be more than happy to help junior practitioners.

Ms Sellars then followed on with a discussion on sentencing, framed around 2014 Practice Note (HCPN 2014/1 (crim) | DCPN 2014/1). Topics discussed included the recent case of Solicitor-General v Heta [2018] NZHC 2453, and the decision of Whata J in respect of the discount for a section 27 cultural report. Uplifts for previous convictions were also discussed, as there was potential for “double dipping”. While previous conduct may inform culpability, the start point cannot be uplifted due to a client’s record, and then followed by an uplift for this as an aggravating factor as well. There were also some challenging views on the proper use of guideline judgments in sentencing. It was suggested that, while these judgments are useful and provide transparency and a level of consistency, they are (as their name suggests) guides. Practitioners should think creatively and use recent cases that support their position when making submissions on the start point. There was much food for thought on this subject.

Marie Dyhrberg QC closed the day with a brief discussion on the ethical obligations of counsel and some hints and tips on etiquette – both in the courtroom and outside. The overriding message was to be “uncompromisingly ethical”. A lawyer’s reputation with colleagues, the judiciary and court staff depends on this. Once lost, it is very hard – if not impossible – to regain. The all-day event finished with social time which provided the opportunity to talk through the day’s lessons with the judges, and both senior and junior practitioners.

ADLS’ much-anticipated “Running An Effective Jury Trial” Intensive will take place in mid-2019. More details are coming soon – keep an eye on LawNews and the CPD section of our website adls.org.nz/cpd.

 

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