Running Big Trials in the District and Supreme Courts, written by Craig James Caldicott

The first role as a Solicitor that you need to undertake is to identify a big matter from a small matter. Namely, matters that are to proceed to a higher Court, such as District and Supreme Court.

You should work from the premise that your client is not guilty and prepare the case from that premise until such time someone causes you to change your mind.
You should make certain that you have all the initial documents, they being as follows;

1. Copy of the initial report/victim report given to the police.
2. Copy of the bail documents.
3. Copy of the Summons/Information.
4. Copy of the Criminal Antecedent History of your client.

At the initial consultation I obtain client’s instructions in detail and either obtain a statement or ask the client to write out what happened in as much detail as possible, including what clothing was being worn, amount of alcohol or drugs consumed and conversations that took place in a ‘he said’, ‘I said’ manner.
I advise the client to write on the top of each page “Draft Instructions for Lawyer” and to number each page.
If your client is in custody, you should be aware that the Correctional Services Department is monitoring your calls and can intercept all correspondence. Whether they do or they don’t, you really have to work on the premise that is occurring.

Whether they are in custody or on bail, I always make certain that a copy of the declarations are given to the client.
I ask them to go through each paragraph and advise me as to what they agree to or what they don’t agree to.
Once I have the declarations, I then proceed to identify what additional material I need for preparation.
I usually request copies of all Police Officers notes that attended at the scene.

Whilst at committal stage, I am not adverse to issuing Subpoena’s to have documents produced to me, that for some reason, the police do not wish to hand over.
I should point out that on Saturday, 7 March 2015 the Attorney General has indicated that the issuing of Subpoena’s will be curtailed. I suspect that if it is just simply fishing, the Subpoena will not be issued, however if you can justify that the material requested is important, then you should be entitled to receive that material.
I do request copies of the original working notes from the Forensic Science Unit. This is important for handwriting, analysis of drugs and the DNA. In respect to the crime scene personnel, I ask for copies of all photographs plus the working notes. If a matter is a fingerprint case, I would also ask for the fingerprints that have been analysed, but not the accused.

If at all possible, I seek to view the scene of where the events took place.
In cases involving murder, I seek to meet with the Pathologist and ask to obtain a copy of the original file.
In some drug cases I have met with the Forensic Science Unit to discuss the development of the new designer drugs.
Throughout this entire process, I make an assessment of whether a Private Investigator is required. If it is a cause death by dangerous driving matter, I do not hesitate to utilise the services of either Chris Hall or Graham England.

If it is important to obtain statements from independent civilians, then I engage the services of private investigators who will interview civilian witnesses, go to the scene, take photographs and basically attain information which may be utilised for the purpose of cross examination.
Obtain CV of Practitioners to determine expertise “make sure they are legit”.
I have found that very useful over the years.
Whilst the matter is still in the committal process, I have asked for further and better particulars prior to committal. This enables the defence to ascertain exactly what the case is that it has to meet.

If particulars are not forthcoming, or are not adequate, then the matter can be listed for No Case Submissions.
It is imperative that you obtain written instructions. It is often the case, when files are taken over from other practitioners that has not occurred.
It is imperative from day one that you send to the client the early benefit of a guilty plea so that they can make an informed decision prior to arraignment. You as solicitor also need to ensure you have obtained the following instructions:

1. Use of Queens Counsel for Trial or Plea,
2. Whether the client is pleading guilty or not guilty,
3. Whether they wish to have a trial by Judge alone,
4. Application for stay as the proceedings are an abuse of process,
5. Application for particulars to be supplied by the prosecution prior to the commencement of the plea.

Once the matter has been transferred to the District Court, you need to check the following:

1. Make sure that declaration delivery certificates have arrived. They are usually numbered so that you can ascertain that you have been in sequence.
2. I break up the brief into the following headings:
a. Civilian Witnesses,
b. Police Witnesses,
c. Forensic Witnesses.

I would sometimes then develop subheadings under those particular witnesses.
3. I would then check that I have received everything from the Prosecution.
4. I ask for criminal antecedent history of all civilian witnesses.
5. Closer to trial I ask for a witness list and in what order the witnesses are to be called.
6. I ask whether the charge in which the person has been arraigned on or laid in the District Court is the charge that will be proceeded with.
7. I also ask for the case management files/running sheets. In large matters that material will be available.
8. It is also important to think about what there is and what should be there. You should make an assessment of whether there should be a Special Directions Hearing. There are advantages and disadvantages. Sometimes, I have been able to use a Special Directions Hearing to have a judge inform the prosecution that the case is inherently weak and that they should get some instructions on whether they wish to proceed with the matter.
9. Sometimes it’s an advantage to ask for early allocation of the Judge so that any Pre-Trial return of Subpoena’s/ Pre-Trial Arguments may be had, prior to the commencement of the trial.
10. If at all possible, ask for a copy of the Crown Opening prior to the actual opening taking place.
11. A decision must be made at some stage on the following:
a. Whether there is to be a defence opening,
b. Whether your client is to give evidence,
c. What witnesses are to be called and whether there are to be separate trial applications.
12. As the trial progresses the transcript will need to be summarised as you go. There needs to be a separate exhibit folder if at all possible.

Polyukhovich v Commonwealth [1991]

This matter was very well thought out. There was a case conference a year out from trial. A decision was made to reduce the trial and reduce the number of witnesses to be called. Michael David QC and Lindy Powell QC put a lot of thought into how the trial was to be run. There were a large number of civilian witnesses who were to be called to prove the holocaust. It was decided by defence that we would agree that the holocaust had occurred and as a result a large number of very emotional witnesses were not needed to be called by the prosecution.

I was requested to take over this matter in a short period of time, prior to the matter being retried. To a large extent that matter was won by obtaining experts who I would spend a large amount of time talking to in order to obtain information and material to use for the purpose of cross examination. The use of Professor Ouveret from NSW was pivotal in that case, notwithstanding, we did not call him.

Again, this was a matter that we took over for the appeal and then the re-trial. On the retrial we asked for particulars which the prosecution had difficulties supplying and a decision was made for an application for separate trials which we were successful in. We thereafter made a decision to enter a plea of guilty to Manslaughter which was accepted by the DPP and Mr Ly had time served.

I spent a lot of time proofing my client and in the end, his evidence had significantly improved. I was able to get him to answer the question without going off on tangents. You cannot underestimate the necessity to help your client give cogent evidence. They have to give their story. A colleague of mine interstate video tapes the examination and cross examination and then shows the video tape to the client so that they have a real appreciation of how they sound and how they look.

There is no excuse not to read the brief, listen to the telephone calls, read the transcripts.
There is no excuse not to interview witnesses and that includes the accused.
There is no excuse not to ask for and obtain all original materials and to adequately prepare for trial.
Trials are won or lost in the preparation and unless you spend an appropriate and adequate time undertaking preparation, then you are not being professional.

By Craig Caldicott.

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