(This is my volunteering task to assist with 2022 South Australia Bar Readers’ Course. To know more about SA Bar Readers’ Course, you are welcome to check out their website: Link)

Day 1 – 3 Dec 2022 / Elliott Johnston Chambers

(Image source: Elliott Johnston Chambers, Copyright of this image belongs to Elliott Johnston Chambers)

It was an interesting experience to attend the briefing session hosted by Grant Algie QC at Elliott Johnston Chambers this morning. Elliott Johnston Chambers is certainly a classic environment for legal talk. The subject is how to assist with the Criminal Trial component of the 2022 SA Bar Readers’ course (for new Barristers) as the witness in a hypothetical criminal case.

It’s a great opportunity for law students to participate in criminal trial advocacy as volunteers. The trial exercise will be held on Monday 5 December and Wednesday 7 December in the Roma Mitchell Commonwealth Law Courts Building, 3 Angas Street, Adelaide, SA.

My role is to play the accused and the other two Defence witnesses during both Examination-in-Chief and Cross-Examination. ‘’Judges’’ will review each barrister’s performance accordingly.  

** Here is the link to the layout of a typical court in case you are curious about this.

Day 2 – 5 Dec 2022 / Commonwealth Law Courts Building

Each day, the full program usually runs from 9 am to 4:45 pm. On Day 2, I stayed in courtroom 7 to watch the entire process in the morning until the barristers started to question us lay witnesses in the afternoon. The major sessions include:

  • Opening Addresses by Advocates
    • After each round of opening addresses by both prosecution counsel and defence counsel, His Honour Grant Algie QC will leave his bench and sit next to the counsel, he may ask them why you say this and that, etc., then he will deliver a more effective opening statement as an example.
  • Principal Lay Witness to give evidence to Barristers in ”proofing”
    • ‘’proofing’’ can be conducted in a casual way like chatting in the nearby café where the barristers might be asking some questions privately about various details in the witness’s statement. As this is an exercise, we are allowed to make up some additional details provided that it is consistent with the original statements.
  • Examination-in-Chief and Cross-Examination of the applicant (the plaintiff)
  • Examination-in-Chief and Cross-Examination of the respondent (the defendant)
    • When the court orders a witness to sit in the witness box to be questioned by both prosecution counsel and defence counsel in a criminal trial, something interesting happens. In the game of discovering the truth, barristers in the cross-examination may ‘’frame’’ a question in favour of his client’s position as a biased answer is already hidden inside that question. A barrister in the cross-examination will find his or her way to ‘’attack’’ a witness so long as a logical loophole is found. This can be both spontaneous and planned.
  • Plenary Discussion on Expert Witness
    • SA Bar invited some experts to deliver a speech on how to examine the expert witness. In this hypothetical criminal case, two expert witnesses will attend the moot court: a psychiatrist Dr. Stern and a psychologist Dr. Pink (fictional names).

Takeaway:

Opening addresses are not for argument – The defence counsel usually cannot go too far to defend his or her client at this stage, a more appropriate opening address is to present the fact in front of the jury.

Extended Reading (Sunny’s List):

Day 3 – 6 Dec 2022 / Commonwealth Law Courts Building

On Day 3, I stayed in courtroom 7 in the morning to watch the examination-in-chief and cross-examination of Dr. Pink (psychologist), then I moved to courtroom 8 in the afternoon to learn about the examination of Dr. Stern (psychiatrist). The major sessions include:

  • Plenary Discussion
  • Conferences – Expert Witnesses
  • Examination-in-Chief and Cross-Examination of Dr Pink
  • Plenary Discussion – Documents & Prior Inconsistent Statements
    • For inconsistent statement, it’s important to identify the occasion.
    • When asking some preliminary question, the better rhetoric employed by the barristers is to ”invite the witness to refresh the memory”, instead of just ”referring to xxx page”.
    • What kind of documents can be admitted as evidence is critical.
  • Lunch Break
  • Examination-in-Chief and Cross-Examination of Dr Stern
  • Plenary Discussion – The Closing Address / Reflections

Takeaway:

  • Law can be creative – On Day 3, I had a quick chat with an energetic and passionate Barrister about what she’s been doing, because her perspective as a defence counsel was unique during the cross-examination of the expert witness. She then told me that she liked to think out of box because prior to be a lawyer she wanted to be an artist. ‘’Law needs logic thinking, but for some Laws such as employment law, there is room for creativity, because a scenario of employment which was illegal 50 years ago might be legal today.’’ She said. Indeed, I couldn’t agree more. My personal observation is that Law also needs ‘’imagination’’, or in the legal field, ‘’imagination’’ is better replaced by ‘’assumption’’. When examining a scenario, how would you ‘’connect the dots’’?

Extended Reading (Sunny’s List):

  • “Evidence law in Australia” (Link)
  • “Rules of evidence’’ (Link)
  • “What are the rules of evidence?” (Link) (different jurisdiction)

Day 4 – 7 Dec 2022 / Commonwealth Law Courts Building

In the morning on Day 4, I stayed in courtroom 9 to give evidence as any one of the second lay witnesses (defence). Then I ran between different courtrooms after the lunch break to appreciate various closing addresses by those barristers. Barristers have their very own style to deliver closing statements. Similar sessions include:

  • Conferences – Second Lay Witnesses
  • Examination-in-Chief and Cross-Examination of Second Lay Witnesses / Prosecution
  • Examination-in-Chief and Cross-Examination of Second Lay Witnesses / Defence
    • It’s interesting that witnesses, at least me, might become quite defensive and start to argue with the barrister in the cross-examination. In fact, to most leading questions, the straight answer is YES or NO.
  • Lunch Break
  • Closing Addresses by Advocates

Takeaway:

  • To ask leading questions is a way to control the narrative of the witness, yet posing open-ended questions will give every opportunity to the witness (or the defendant) to persuade the jury that there is nothing wrong on his or her side. Barristers employ these different techniques to question a witness or a witness whose position is opposite respectively.

Extended Reading (Sunny’s List):

  • “Is There a Difference Between Leading Questions and Open-Ended Questions at Trial?” (Link)

Final Note

From the perspective of a law student, four days of sessions present real teaching & learning.

Reading 77 pages of a hypothetical criminal case is much like reading Agatha Christie’s detective fiction. But the ‘’role-playing’’ would help create an engaging vibe for every party to dig for the truth buried in the plausible details.

The rationale behind such ‘’role-playing’’ teaching, whatever you may call it, is that both parties (prosecution and defence) can maximize the benefits by engaging in every process of a litigation because the ‘’adversary simulation’’ model naturally fits into the legal setting or legal education. I personally think many text-based teaching would not achieve the same result, although it’s necessary to lay the foundation of legal study in theory. Ultimately, knowledgeable professionals are expected to experiment many ways to convey the knowledge as well as stimulate the thinking.

‘’Adversary Simulation’’ is a word I borrow from Information Security or Cybersecurity, but ‘’adversarial system’’ is indeed rooted in a common law setting. Justice can be served through different approaches, ‘’adversarial system’’ certainly is one of the legal topics worth to be discovered in a deeper way.

In conclusion, this legal volunteering task has provided a nonliteral understanding of the courtroom procedure and valuable insight into the actual work of the barrister when practicing criminal prosecution and advocacy. It also consolidates my comprehension of the complex legal culture in our democratic society.

(** For a quick understanding of ‘’adversarial system’’, see wiki article here)

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