Criminal trial advocacy competencies

Members of the Criminal Trial Preferred Barrister List are expected to be competent to conduct legally aided trials in an effective, economic and efficient manner consistent with these criminal trial advocacy competencies.

Knowledge of the law

Standards

1. Understands and correctly applies key criminal law legislation, case law, rules, practice and procedure
2. Understands and correctly applies the rules of evidence by:

• identifying evidentiary issues
• taking and responding to objections
• questioning witnesses in appropriate form and manner

3. Knowledgeable of relevant authorities regarding jury directions.
4. Familiar with current sentencing practices

Preparation and analysis

Standards

1. Thoroughly analyses the case and develops a clear, written case strategy that is logically and realistically built on the evidence and applicable law
2. Takes detailed instructions early in the case, ethically tests these instructions, and uses forensic judgement to incorporate instructions into the case strategy
3. Identifies and narrow the factual and legal issues in dispute
4. Thoroughly prepares and organises case materials
5. Confers with all potential defence witnesses

Standards

1. Communicates clearly, promptly and thoroughly with instructors about nature of preparation tasks and who is accountable for each task
2. Completes a Victoria Legal Aid Committal report and trial preparation plan within seven days of a contested committal
3. Takes and acts on detailed instructions at appropriate stages and as matters arise, consistent with ethical obligations
4. Provides detailed and clear advice to clients about likely outcomes
5. Engages with clients’ family and/or supporters consistent with clients’ instructions

Standards

1. Prepares written and oral submissions of fact and law which:

• are consistent with case theory
• are directed to issues in dispute
• state relevant legal principles and factual propositions
• are structured as a logical argument
• include references to legislation and leading authorities
• comply with procedures and deadlines

2. Proactively negotiates with the prosecution to settle matter or narrow issues in dispute, including by seeking discontinuance, at the earliest stage possible consistent with clients’ interests and instructions
3. Efficiently and actively manages the case, working with the judge, court and prosecution to avoid unnecessary delays or adjournments, including by managing own schedule to advise instructors and court early of the need to return a brief
4. Prepares and organises for use in court:

• prompt notes
• schedules and other documents
• exhibits
• visual aids

5. Provides detailed written advice on the merits of a conviction and/or sentence appeal to the client and Victoria Legal Aid within seven days of conviction and/or sentence, utilising Victoria Legal Aid’s merits advice checklist and/or template

Communication and advocacy skills

Standards

1. Presents oral submissions in an audible, clear, concise and structured manner
2. Uses appropriate language, pace, eye contact and body language, adapted to witness responses as required
3. Delivers an opening address that:

• is based on defence case theory
• identifies the relevant issues between the parties
• makes appropriate concessions
• where possible is positive
• is not argumentative
• is engaging

4. Conducts focused questioning that is purposive, efficient, effective and responsive to witness responses
5. Conducts effective cross examination which:

• is structured, relevant and admissible
• is consistent with the case theory
• is usually controlled by short, leading propositional questions
• is the foundation for final argument
• elicits favourable evidence and discredits unfavourable evidence or witnesses
• emphasises or places a different complexion on evidence
• complies with the rule in Browne v Dunn
• does not use improper questions per section 41 of the Evidence Act 2008

6. Conducts effective examination in chief which:

• is structured, relevant and admissible
• is consistent with the case theory
• tells a detailed, clear and cohesive story
• is controlled by simple non-leading questions
• is couched in language appropriate to the witness

7. Conducts effective re-examination where appropriate
8. Takes a flexible approach in exercising forensic judgements and responding to unexpected developments
9. Critically analyses new material and replies or rebuts prosecution submissions appropriately
10. Delivers a cohesive closing argument as to the factual and legal issues in the case that:

• is persuasive, cohesive, rational, logical, balanced, credible, empathetic and engaging
• states conclusions first followed by supporting argument
• avoids argument by assertion
• effectively uses prompt notes, schedules and other documents

11. Appropriately tenders and uses exhibits
12. Prepares a written case on appeal which:

• is concise
• identifies grounds of appeal which are reasonably arguable
• is appropriate to the appellate court’s jurisdiction

Standards

1. Deals appropriately with vulnerable clients and witnesses to ensure that all communication is appropriate to their age, maturity, education, literacy, past experiences and cultural and social circumstances.
2. Uses interpreters or translators when required and only uses those who are accredited
3. Provides clients with sufficient information to enable them to effectively understand the process, participate in the proceedings, make informed decisions and provide instructions
4. Provides clients with sound and robust advice about the merits of each available course, including settling a case, and acts on their instructions accordingly
5. Advises clients and instructors about the practical effect of the sentence or any other orders of the court in a clear, succinct and timely manner
6. Advises clients and instructors about merits of appeal in a clear, succinct and timely manner in line with Supreme Court Practice Note 2 of 2011
7. Maintains regular contact with instructors in order to keep them up-to-date with the progress of the matter, including

• outcomes of any appearances
• barrister’s overall conduct of the matter
• any matters which may affect the grant or the client’s eligibility for legal assistance
• any concerns expressed by the court about the conduct of a legally aided matter

8. Keeps the court informed of any timing problems, delays or changes to the previously communicated approach

Professional duties, behaviours and ethics

Standards

1. Complies with relevant legislation, procedural rules and judicial directions
2. Observes professional etiquette and is courteous at all times
3. Obtains and appropriately acts on the client’s instructions at each stage of a matter, consistent with ethical obligations
4. Immediately advises instructor if barrister considers they do not possess necessary skill, expertise and competence to represent the client in the matter and in any potential appeal
5. Adheres to all ethical and professional practice rules and duties including duties to the court and client as captured in the Victoria Bar Practice Rules and Legal Profession Uniform Law Application Act 2014
6. Notifies Victoria Legal Aid immediately of any complaint made against them to the Legal Services Board and Commissioner, the Victorian Bar (including the Indictable Crime Certificate Committee), or any equivalent body in any jurisdiction, state or federal police, or Victorian Civil and Administrative Tribunal or any privately constituted body to discipline its members, or of any investigation commenced by the Legal Services Board and Commissioner or other regulatory bodies
7. Notifies Victoria Legal Aid immediately of any claim made against them for professional negligence
8. Assists Victoria Legal Aid to resolve any complaint by providing all relevant information to Victoria Legal Aid with the given timeframe

Standards

1. Has up-to-date knowledge and understanding of legal aid obligations and processes, including the need to provide written advice on prospects of appeal within seven days of conviction and/or sentence.
2. Communicates with instructor to ensure that a grant of legal assistance or an extension of assistance is in place before:

• undertaking any work
• engaging, or undertaking to engage, third party providers, for example, experts or interpreters

3. Communicates with instructor to advise of any opportunities to seek costs, including Appeals Cost Fund Certificates, or costs orders where appropriate.
4. Immediately advises instructor if they do not accept the relevant terms of the grant of legal assistance including the fees payable, before accepting a brief
5. Ensures that dealings with clients, other legal professionals, service providers, the judiciary and other relevant parties are professional and appropriate
6. Treats Victoria Legal Aid staff with respect and courtesy
7. Does not denigrate or misrepresent Victoria Legal Aid