Reflections of a criminal trial advocate

Reflections of a criminal trial advocate

Tuesday, 6 August 2019

Image of Lawyer Jo Swiney
Barrister Jo Swiney

A commitment t​o social justice

A hard-working member of our Criminal Trial Preferred Barrister List, barrister Jo Swiney has always had a strong social conscience and commitment to social justice.

‘I completed my articles at Victoria Legal Aid, worked at VLA for a number of years and managed the Preston legal aid office before heading to the bar.

‘Representing legal aid clients is what I do and who I am.

‘I don’t prosecute, not that there is anything wrong with that.

‘However, I’m a dyed-in-the-wool defence lawyer, so applying for the Criminal Trial Preferred Barrister List was an obvious way to continue to represent legal aid clients as trial counsel.

‘Also, I enjoy working in the social justice area, and the law seems to be the best place to have the most impact on both individual rights and policy’, said Jo.

Like many lawyers, Jo’s day is often hectic.

‘I'm a member of Star Chambers, so there is usually a casual catch up to see what everyone is up to before we head off to court.

‘Gerry Nash QC is our informal head of chambers, enjoys knowing what everyone is up to and is often up for a chat on evidence or strategy. He also sends us off to court with a cheery, ‘Go kill’.

‘From there, we deal with whatever the courts direct our way, including trials, after the inevitable round of directions hearings and appeals.

‘Depending how busy the day is, lunch is always a nice place to gather in our chambers, discuss the morning’s events in court, seek alternative viewpoints and compete to make each other laugh.

‘Afternoons usually entail heading back to court, holding client conferences and debriefing in chambers as Gerry likes dissecting the day in detail.

‘I then try and cycle home or catch a yoga class.

‘I find the meditation aspect of yoga the perfect time to think about how I’m going to cross examine a witness, reflect on court strategies or make hard forensic decisions. And yes, I appreciate that thinking about work is not the purpose of meditation!

Learnings from Victoria Legal Aid

Whilst lawyers have many memorable experiences acting for legal aid clients, one in particular stands out for Jo.

‘This particular client was my first as a duty lawyer, and he went from the community to jail, as opposed to having been already remanded and receiving a custodial sentence.

‘I tried to encourage him to adjourn as I thought with more time I could add additional material to his plea, and possibly help him avoid avoid imprisonment.

‘However, he wished to serve his time while his parents were away, and requested that I proceed with his plea that day.

‘He was very grateful and I later heard that he did his time and got out of jail OK.

‘I've done plenty of far more complex and serious matters since, but I can remember everything about that day, and I think it stands out for a number of reasons.

‘First, I was genuinely fearful for my client. He was only young, slight and very good looking, and I was worried about what would happen to him in custody.

‘Second, it’s the day I learnt about giving advice and taking instructions, and proceeding as per instructions from your client.

‘Finally, it was one of many things that cemented my friendship with Emma who was then a clerk, and later an articled clerk at Victoria Legal Aid.

‘Debriefing your day with your colleagues is still an important part of an advocate’s day, and we both still remember this day clearly, even though it occurred more than 14 years ago.’

As for the most interesting charge she has defended a client against, Jo harks back to her days at Victoria Legal Aid.

‘I once conducted a plea for a client charged with ‘aggravated littering’ after he got drunk at The Geebung Hotel in Hawthorn and decided to place potplants on the footpath and the road.

‘The Magistrate asked the prosecutor and I, ‘What was the aggravating feature of the charge?’, to which the prosecutor and I looked at each other quizzically, and I replied, ‘I think it’s because he’s offended in Hawthorn.’

‘There was much laughter from everyone, except my client, before he was sent away with his charge proven and dismissed, despite the grave circumstances of his offending.’

Career highlight

Like many trial counsel, Jo’s career has featured many ups and downs, but she is particularly proud of her performance in one case.

‘I recently took judgment in the Court of Appeal in relation to an interlocutory stay application. It had failed, and the essence of the decision was summed up as ‘an accused cannot expect a fair trial, just a trial that is not unreasonably unfair.’ The result was not unexpected, but I felt deflated.  The thought of running that trial in a few months, which seemed to me to be impossibly unfair and beyond my capabilities, was weighing heavily on me as I walked across LaTrobe Street.

‘After receiving judgment, I was in pre-trial argument in the County Court. The Crown was opposing my application to use tendency evidence against their complainant. His Honour turned to me and asked what I had to say about whether my application was fair to the Crown.

‘I picked up my case, fresh off the press and said, ‘as I’ve been reminded again this morning, one cannot expect a fair trial, just one that is not unreasonably unfair – the principle applies to the Crown equally and this is not unreasonably unfair.’

‘The argument was successful, and my loss in the Court of Appeal against the Crown became a small win in a trial.

‘It was one of my truly satisfying moments in court, and poetic justice was done.’

Advice for aspiring criminal law advocates

Asked about what personal attributes make a successful barrister, Jo doesn’t hesitate.

‘This line of work requires robust resilience, an ability to be prepared for the unforeseen and the skill to be flexible enough to accommodate the unexpected.

‘For defence counsel, the capacity to keep your mouth shut, listen, think and then talk also proves helpful.’

‘My advice to aspiring criminal law advocates is to also not be afraid to find your own voice.

‘Older and more experienced advocates will often tell you that you must take control, own the bar table, and be loud and aggressive.

‘They’ll also regale you with stories about what geniuses they are before a jury or what power and influence they exert over judges.

‘And that’s OK for them, assuming it’s not even slightly exaggerated.

‘However, if it’s not your personality, it’s not going to be effective for you.

‘Instead, find your own voice, be confident to use it, and you will find it is your most powerful tool.

‘Through diligence and integrity, you will have a Bench’s attention.

‘A jury will also listen to you when your passion is seen through your own personality, rather than trying to wear someone else’s robes,’ said Jo.

Quizzed on what the criminal justice system would look like in a perfect world, Jo is unequivocal.

‘A perfect justice system will exist when defence and prosecution are resourced equally and all people facing the loss of their liberty have access to representation,’ she said.

More information

Find out who is on the Criminal Trial Preferred Barrister List and how to apply

What are the entry requirements and assessment guidelines

Was this helpful?