The Little Red Book of Advocacy

154 Pages·2015·3.07 MB·English

The
Little Red Book
of Advocacy
Second Edition
Trevor Riley
Little Red Book of Advocacy, second edition, 2016
© Law Society Northern Territory, 2016
Except as permitted under Copyright Act 1968 (Cth), no part
of this publication may be reproduced without prior written
permission of the Law Society Northern Territory.
Published by the Law Society Northern Territory, 2016
Darwin, Northern Territory, Australia
ISBN: 978-0-9942878-2-3
“Funding provided by the Law Society Public Purpose Trust is
gratefully acknowledged.”
Contents
Foreword To Second Edition 5
Introduction 7
From the Author 8
About the Author 9
About the Cartoonist 10
Preparation is the Key 12
The Case Strategy 16
Presentation of the Case 19
The Opening 22
Evidence in Chief 25
Cross-Examination 29
Preparing for Cross-Examination 31
Some Limitations on Cross-Examination 34
Your Approach to Cross-Examination 37
Prior Inconsistent Statements 40
The Rule in Browne v Dunn 43
Cross-Examining the Expert 46
Cross-Examining through an Interpreter 49
Re-Examination – Part 1 51
Re-Examination – Part 2 53
The Unfavourable Witness 56
The Child Witness 59
The Aboriginal Witness – Part 1 62
The Aboriginal Witness – Part 2 65
Objections to Evidence 68
Unnecessary Objections to Evidence 70
Exhibits 73
Visual Aids 76
The Conduct of Counsel 78
Jury Selection 81
Relating to the Jury 84
Experts and the Jury 87
Addressing the Jury – Part 1 90
Addressing the Jury – Part 2 92
Organise the Address 94
Follow the Path of Least Resistance 96
Presenting the Address 99
The Judge’s Address to the Jury 102
Addressing the Judge 105
Questions from the Bench 107
Advocacy: the Appeal 110
Presenting the Appeal 113
The Decision to Plead 116
Preparing the Plea 118
Presenting the Plea 120
The Application for Bail 122
Interlocutory Applications 125
Written Submissions 128
The Urgent Interlocutory Injunction 130
Written Submissions After Trial 132
The Litigant in Person – Part 1 134
The Litigant in Person – Part 2 137
The Sensitive Question 139
Communication 141
Nervousness 143
Objective Counsel 145
Observing the Customs 147
Developing the Skills 150
Bibliography 152
Foreword To Second Edition
The first edition of this wonderful handbook on advocacy had one major
drawback: it failed to include the second half of the series of short pieces on
advocacy which Justice Riley had produced for Balance in the many months
following the publication of the first edition of the Little Red Book. This edition
effectively doubles the material available for the assistance of the young, in
particular, advocate.
Balance was published more frequently, as I recall, in the early part of the
century and it was necessary for the Chief Justice (as he has since become)
to write his short essays on the separate issues arising for advocates on an
almost monthly basis. That he enjoyed doing it, no doubt, does not release
the recipients of his experience and wisdom from the great debt of gratitude
owed to him.
A quick glance at the Table of Contents will demonstrate the breadth of topics
covered. Young and experienced practitioners will find something in these
pages to assist them prepare for court and participate successfully in the
litigation process. Each essay deals with a discrete topic (illustrated by Chips,
with his usual wit and insight) in a straightforward manner, containing good
common-sense. Quite simply, the practitioner is miles ahead of the game
if he or she absorbs half of it. I wish something similar had been available
in my early years. In my view, it is not just a useful work: it is an essential
companion to the advocate.
Before the publication of the first edition, it was obvious the whole series
should be collected and published for the benefit of the Territory profession.
Steps were taken to ensure advocates employed by the Northern Territory
Office of the Director of Public Prosecutions (ODPP) received each article
when it was published, and this continued to the end of the series. That is,
a permanent record of the contents of this second edition has been in the
hands of the ODPP practitioners (or should be), to their great advantage, for
many years.
By 1993, Trevor Riley QC and Graham Hiley QC had been conducting the
Northern Territory University (NTU) undergraduate course on advocacy for
some years. I think they discovered I had taught advocacy over a long period
at the Leo Cussen Institute in Victoria. In any event, I was asked to help
them that year and, at the end of the course, I was invited to take over
the management of the course. Trevor promised to assist me when time
permitted. I did and he did. For most of the next 20 years, I conducted the
course at NTU and then Charles Darwin University with the assistance of
Trevor Riley QC/J/CJ. From the time the first articles started appearing, I
insisted all students had access to Balance and then to the Little Red Book;
it was essential reading. I told them then, and other graduate practitioners
The Little Red Book of Advocacy – Second Edition 5
at different times, that it could do a young advocate no harm to have the
publication on the Bar table when Riley J/CJ presided!
The judge and I had also conducted the courses, now run by the Law Society,
for the benefit of young and more senior legal practitioners, for many years.
They are now used for Compulsory Professional Development, of course,
but were once designed for and by the Young Lawyers of the Society. The
Little Red Book has again been an important reference for the registrants. I
had pointed out to them that they had been getting only half the benefit,
unfortunately. This publication remedies that misfortune.
His Honour is a pleasure with whom to teach, and we have enjoyed this
teaching association now for a long time. He brings to his teaching the same
excellent, but clear, presentation and advice you will find in the Little Red Book.
I have mentioned my own involvement in teaching advocacy over many years
in order that I can, with no modesty and a little bit of authority, properly
assess the value of the product of which I now write. From time to time, I am
asked to speak to Law Society practitioners on topics of interests on advocacy.
I never do so without reference to the Little Red Book. I heartily recommend it
to anyone fortunate enough to have read this foreword; that is, they have the
book in their hands!
Rex Wild QC
Darwin, NT
2016
6 The Little Red Book of Advocacy – Second Edition
Introduction
When the first edition of Chief Justice Riley’s book appeared, it came with a
ringing endorsement from the then President of the Law Society Northern
Territory Mr Ian Morris. As Mr Morris said at the time:
Justice Riley has the happy knack of reducing sometimes complex difficult
propositions of advocacy into an easy to understand and easy to follow program
for the budding advocate.
The instruction in his article is equally at home as a refresher for those somewhat
more practised in the field of advocacy or as a handy guide for solicitors who are
considering the manner in which evidence can best be brought to the court in a
matter they are preparing for trial.
It seemed to the Law Society of the Northern Territory that to permit Justice
Riley’s articles to remain gathering dust in back issues of our magazine, Balance,
was a great waste.
Happily the idea was born to combine all of his Honour’s articles in a book so as
to ensure that they can be readily at hand for all those who need them.
The vibrant colour of the cover of his Honour’s book will demonstrate to any
Bench that they are the recipient of well considered and puissant submissions.
If you knew Ian you would expect the glowing recommendation to be sincere,
short and appropriately deferential. In anticipation of its publication Ian
noted to readers of the Society’s magazine “One reason this will be such
a successful book, apart from the writing, is every advocate ought to have
a copy ready at hand and to recollect that His Honour is not known as a
vindictive judge.” Clearly Ian was proud of what he described as “one of
the most important legal texts of our time”– no doubt having the first book
published by the Society occurring on his watch played some part. This text
is an enduring work, pearls of wisdom that ought not be overlooked, no-
doubt the red cover will be easily spied on the bar table. We are pleased to
see it updated and reissued and recommend the text to all those seeking to
advance their advocacy in this jurisdiction.
Megan Lawton
Chief Executive Officer
Law Society Northern Territory
The Little Red Book of Advocacy – Second Edition 7
From the Author
Upon my appointment to the Supreme Court of the Northern Territory, the
president of the Law Society, Steve Southwood QC (now Southwood J), took
advantage of the warm inner glow I was then feeling and asked me to write
some articles on advocacy for the Law Society magazine, Balance. I have a
keen interest in advocacy and was pleased to agree.
I commenced with the first article in February 1999 and have been writing
them ever since. The idea to publish the articles in booklet form came from
the former president of the Law Society, Ian Morris. I thank him and the Law
Society for the opportunity. Mr Morris accepted responsibility for the title.
The articles reflect a confluence of many streams of information. They are
informed by my own experience as an advocate, much reading and by my
participation in workshops conducted by the Australian Advocacy Institute
and by the Northern Territory Bar Association for the Young Lawyers
Association.
Trevor Riley
8 The Little Red Book of Advocacy – Second Edition
About the Author
Chief Justice Trevor John Riley was born at Bruce Rock, Western Australia, in
January 1948, and obtained his Bachelor of Laws degree at the University of
Western Australia in 1969. The Judge has lengthy experience in law dating
from 1972, predominantly in commercial litigation. He practised as a partner
in a Perth law firm before arriving in the Northern Territory in 1974.
The Judge was employed as a solicitor with the firm of Withnall and Barker
before taking up a position in 1975 with Ward Keller, where he practised until
1985, first as an employee solicitor and subsequently as a partner. In April
1985, he joined the Independent Bar, and was appointed as Queen’s Counsel
for the Northern Territory in April 1989. He was admitted to practise in
South Australia and Queensland, and was appointed as Queen’s Counsel for
Western Australia in September 1992.
He was appointed a judge of the Supreme Court of the Northern Territory in
1999 and Chief Justice on 27 September 2010.
His Honour has a keen interest in advocacy. He has for many years been an
instructor with the Australian Advocacy Institute and has conducted advocacy
workshops for young lawyers in the NT since 1994. He has also instructed in
intensive advocacy workshops conducted by the Bangladesh Bar Council in
Dhaka, Bangladesh.
The Chief Justice has held a number of senior appointments both in the legal
and community areas, including the President of the Northern Territory Bar
Association, 1993-97; Junior Vice President of the Australian Bar Association,
1993-94; Vice President of the Law Society NT in 1989; and, Member of the
Supreme Court Admission Board.
His extensive community involvement has included positions with the
Marriage Guidance Council, St John Ambulance, NT Football League, Northern
Territory University (as lecturer and member of the Faculty Board), and the
Darwin Community Legal Service.
The Little Red Book of Advocacy – Second Edition 9
About the Cartoonist
Chips Mackinolty is a Darwin-based writer and graphic artist with a vicarious
interest in the law.
Having decided gap years were wasted on the young, Chips Mackinolty
presently resides in Palermo, Sicily, in the second year of his gap year.
Chips was a member of the Earthworks Posters Collective at the Sydney
University Art Workshop in the 1970s when posters began to be used as a
political tool. He has been very active in the field ever since.
In the 1980s he worked as an art adviser to Aboriginal art centres in Katherine
and Mutijulu in the Northern Territory before joining the Northern Land
Council, where he filled various roles including as a communications officer,
journalist, designer and field officer. He has at various times worked as
a correspondent for newspapers including the Sydney Morning Herald, The
Age and The Australian. Between 1991 and 2002 he was a Director of Green
Ant Research Arts and Publishing and from 2002 until 2009 an adviser
and speechwriter to various ministers of the Northern Territory Labor
Government. Before heading off on his extended gap year, Chips worked as
the Manager, Research Advocacy Policy, with the Aboriginal Medical Services
Alliance of the Northern Territory.
Chips has held, and been represented in, many exhibitions throughout
Australia and in Italy. He has been a winner of the Fremantle Print Award,
the Australian Macworld Expo Art Award for tabloid newspapers, Northern
Territory Print Journalist of the Year Award and the Togart Contemporary Art
Prize. His works are held in numerous galleries in Australia, including the
National Gallery of Australia, and overseas.
10 The Little Red Book of Advocacy – Second Edition