Court of Appeal practical seminars

PRESIDENT MAXWELL:   Good afternoon, everyone, and welcome to the Court of Appeal.  It’s my pleasurable duty to say just a few words of welcome to this beautiful Green Court, and then I will hand over to Julia Munster, who will be chairing the session, and we will introduce the speakers.  Before I go any further, I want to acknowledge the traditional owners of the land on which we assemble this afternoon, the Wurundjeri people of the Kulin Nations, who, as you know, have occupied this land since time immemorial.  And we pay our respects to their elders, past, present and future.  That acknowledgement is particularly significant in this week, National Reconciliation Week, and for reasons which will become apparent, I just want to spend a moment dwelling on the significance of that. 

 

You may not know, and I didn’t know until this afternoon, that National Reconciliation Week falls upon the same dates every year.  It starts on 27 May, which is the anniversary of the 1967 referendum which resulted in Aboriginal and Torres Strait Islander peoples being counted in the census for the first time and gave the Commonwealth legislative power to make laws with respect to Aboriginal and Torres Strait Islander people.  The end of National Reconciliation Week is 3 May, and that, I’ve learnt is Mabo Day.  That’s tomorrow. 

 

I said 3 May;  I meant 3 June.  And that’s the day on which the High Court, in 1992, handed down the Mabo decision, paving the way for native title.  Now, that’s 30 years tomorrow.  It’s of particular significance and sadness that, as you may have heard, Sir Gerard Brennan, who wrote the leading judgment in Mabo, died yesterday at 94.  And those, I thought, were particular reasons why we should pause before we embark on this important training exercise to reflect on the week that it is and the day that it is tomorrow and the life of Sir Gerard Brennan, one of the greatest leaders in our legal history.   

 

Now, just a couple of quick things about these sessions.  Some of you will know it has been the ambition of the Court of Appeal for a while to encourage newcomers for criminal appeals.  We really like to see new faces arguing appeals.  For the well-prepared counsel, appearing in the Court of Appeal should be a really rewarding, stimulating experience, win or lose;  certainly, no more difficult than appearing at the first instance.  Some of you may recall the sessions we held in the William Cooper Centre in 2018 entitled Getting Started in Criminal Appeals, and Georgina Costello, who is one of our presenters tonight, was a participant then, and my colleague, Justice Forrest, was on the mock bench on that occasion.  And we’re also very pleased to have Elizabeth Ruddle.  It’s wonderful to have busy practitioners and judges who will take the time to help us invite and encourage you to think about criminal appeals. 

 

But there’s a really renewed energy about this kind of introduction to the Court of Appeal since the appointment of our new judicial registrar, Deirdre McCann, last September, and this series of three sessions, of which tonight’s is the first, was entirely Deirdre’s initiative, and we’re most grateful to her for that.  But there are a number of other people I would like to thank before I stop.  A number of other 

groups have helped us get this ready:  from Victoria Legal Aid, Luke Muller, the program manager of appeals;  Julia Munster, chief counsel and the professional legal education team at VLA;  from the Bar, Paul Smallwood, a regular appellate counsel;  from the OPP, Liz Ruddle;  and our own people;  Deirdre’s associate, Ches Campbell-Juresko;  and Adelle Abdelahad, who is the IT wizard who enables us to be doing this for many more people remotely than we have in the courtroom.  But you’re all very welcome.  It’s now my pleasure to hand over to Julia. 

 

MS MUNSTER:   Thank you, President Maxwell.  And thank you for your leadership of this court for many years.  Welcome, everyone, to this session, A Practical Guide to Identifying Grounds of Appeal.  It’s the first of three sessions.  We’re all very excited about it.  Just a little housekeeping before we continue;  just a reminder that this session is being recorded.  There is a process for asking questions.  If you’re watching online, all 158 of you, please put your questions in the chat function.  If you’re here in the room with us, we will try and get a microphone to you, but just be aware that audio is not terrific. 

 

We’re really delighted to have a fantastic panel today.  I’ve been in court unexpectedly all day, and one of my tasks was to google the three of my fellow panellists to find out a little more information about them.  But I was in court much longer than I thought, and I didn’t do that.  They told me all that that was unnecessary because, of course, they are very well known to you.  Justice Terry Forrest is, of course, very well known to you as both a justice of this court but also as a former very impressive trial advocate. 

 

Next to him is Georgina Connelly, barrister at the Victorian Bar, a former colleague of mine at Victoria Legal Aid where she was – her career was further developed by the remarkable John McLaughlin.  And then on the far left – our far left – is Liz Ruddle QC, who is a senior Crown prosecutor who has appeared for both defence and prosecution over a very long time, both a trial and appellate advocate, as is Georgina.  So without further ado, we might start our discussion, and we’re going to start with Georgina really talking about giving us an overview first and with special comments from Justice Forrest – he has instructed me to call him Terry, but I find that very difficult – and from Liz.  So over to you, Georgina. 

 

MS CONNELLY:   Thanks, Julia.  I feel like Mark Howard now.  Although this is a practical guide to conducting appeals, we have to start with a little theory, and you might sometimes ask yourself, “Look, why do I have to have grounds of appeal?  Why can’t I just write an impressive, persuasive piece in my written case and let the Court of Appeal do what they can with it?”  And the answer to that question is that the Court of Appeal – or there’s no common law right of appeal.  The Court of Appeal’s jurisdiction to get involved at all has a statutory foundation.   And so it’s that foundation that must be established for the appeal to be undertaken and to be determined. 

 

So the rights of – or the statutory foundation is contained in part 6.3 of the Criminal Procedure Act, and it’s necessary that everybody becomes very familiar with that 

part.  The appeals for both conviction and sentence are formally only by leave of the court.  So for convictions, that’s section 274, and for sentence appeals, at section 278.  And what follows from that is that leave is granted or refused in respect of the ground that you have put before the court, and the court has jurisdiction to quell the argument raised by your ground of appeal and no other argument.  And that’s – and so its jurisdiction is error-based and error-determining, and that’s the reason you have to come up with a ground of appeal that accurately reflects what went wrong in the trial or in the sentence to give the Court of Appeal the parameters of its jurisdiction. 

 

Now, don’t let that be debilitating.  We will address grounds of appeal and how to prepare them.  But should you have a substantial point and just make a slight error of expression or something of that kind in your ground of appeal, I’ve never known the Court of Appeal to say, “Great argument, but, ha, ha, you lose because there was a problem with your ground of appeal.”  And nor have I ever know the Crown to take issue with an application to amend that’s properly based.  So these aren’t here and nor are they used to trip you up or to avoid something – determining something on its merits.  But it is necessary to attend to your ground and to get it right so that you can properly put an issue before the Court of Appeal.   

 

Now, that’s the statute.  The other form of law, if you like, is the practice note put out by the Court of Appeal.  So it’s Supreme Court, Court of Appeal Practice Note Number 1 – Criminal Appeal (Second Revision), which is on the Supreme Court website, so just follow the prompts and find it there and go to paragraph 8, which deals specifically with grounds of appeal.  Now, if you go – I won’t go through the paragraphs because that’s something you can do in your own time, and you’ve probably got some more important things to hear about tonight.  But it’s necessary to realise that your ground of appeal is for the registry as well as for the judges ultimately determining your appeal. 

 

Now, I’m not entirely sure of every use the registry makes of them, and perhaps someone else will address that, but, at least, they would look to whether two judges or three judges are required, and they may look to your ground of appeal in terms of prioritising for listing or so forth.  So bear in mind that your audience – the practice notes requires that your grounds be specific and precise, so try, as far as possible, to articulate that – and perhaps we will deal with that in greater depth later – and that they must be sufficiently particularised to identify the matters that are relied upon. 

 

So this is the first look at your appeal.  People will look first to your ground of appeal or judges will look first to your ground of appeal.  So make sure they know what your appeal is about just from reading that one thing alone.  The practice note specifically provides that claims that there was not enough weight attributed to something in a sentence appeal are particulars of manifest excess or aspects of your argument in support of a ground of manifest excess and are not grounds in their own right. 

So the relevant distinction is if your complaint is that a judge gave no weight to something or wrongly approached the evaluation of weight, that might be a ground of specific error.  But if it’s just about how much weight was attributed, you need to make that part of an argument of manifest excess.  Then finally and importantly, all your grounds must be reasonably arguable.  You’re not permitted to sign off on a written case or support grounds of appeal unless you’ve come to the view yourself that they’re reasonably arguable. 

 

Now, I will just go, to complete this statutory sort of framework exercise, just identify the relevant tests.  And these are important not because today is about what the law is to succeed in appeals but, really, because if you’re thinking about, “How am I going to identify a ground of appeal?” you really must know what it is you need to prove at the end of the day.   So for conviction appeals, a conviction appeal is determined by reference to the paragraphs of section 276 of the Criminal Procedure Act, and there are three bases on which you might succeed on a conviction appeal, and otherwise, you must lose.  So the first of these is an unreasonable verdict ground, so the verdict of the jury is unreasonable or cannot be supported, having regard to the evidence.  And perhaps a bit later in this session, we will look to some further detail of that.   

 

The second is that as a result of an error or irregularity in or in relation to the trial, there has been a substantial miscarriage of justice, so there’s two things that must be established:  error and substantial miscarriage of justice.  And the third, a sort of catch-all:  for any other reason, that is, not error, but any other reason, there has been a substantial miscarriage of justice.  So that’s for conviction appeals.   

 

And for determination of the sentence appeals, we go section 281 of the Criminal Procedure Act, and there, the court must just determine that there has been an error in the sentence imposed and a different sentence should be imposed.  So that’s that test.   

 

Now, in terms of practicalities, you have 28 days to file your appeal;  try to adhere to that time line.  If you’re appealing from a decision that was handed down in one of your own cases – conviction or sentence – there’s probably less likely to be much of an excuse to apply for an extension of time.  So adhere to that. 

 

In the past, I’ve heard it said that it was desirable to include transcript references in a ground of appeal, and I’m not sure if Justice Forrest still finds that.  But bear in mind that, as an applicant, you won’t have the parts of transcript that are most important, usually in determining .....  often the sentencing remarks, always the charge, the closing addresses and rulings.  And so – and you will only have a transcript which, ultimately, is highly likely to be revised.  So it may be that, today, the practice is better to put the transcript references in your written case and omit them from the ground itself.  Bear in mind that once you do get – sorry. 

 

FORREST J:   If I can just add, Georgina – I see the president nodding and I agree with him – it’s much better to have the transcript references in the written case, I think.  Often we end up having two and three iterations of the transcript, and, very 

frequently, we have a transcript that doesn’t coincide with the transcript that the applicant is referring to or the respondent.  And so you’ve got to be a little bit agile and work on ancient algebra and X plus 5 or Y minus 3.  You know, that the applicant’s page 285 is your 276, and line 23, it might be minus 10 on that score.  So that keeps us on our toes.  It’s very important, I think, you do refer to transcript, but it’s also important that we’re working off the same document, and it is better to include references in the written case.  

 

Bear in mind, as well, that it is best to get your written case in within time.  It’s – time is very important ..... but you can always put in a supplementary written case or an amended written case.  So it’s not the end of the world if you miss something in your original written case.  There has been a tendency, I think, to take on too much work, but certain counsel, who are popular for a very good reason, and counsel really should try and resist that if they can because, ultimately, it isn’t productive of an efficient day in court.  I will go back to you, Georgina. 

 

MS CONNELLY:   So perhaps developing what Justice Forrest said is that you do get an opportunity to revise your written case when provided with the official transcript, the official revised transcript.  So because there’s that capacity to amend, perhaps, as Justice Forrest said, bear that in mind, because once you’ve got the full transcript, you might need to seek – to add a ground or you can – the transcript references are more easily addressed through that revision than they are through seeking amendment to the grounds of appeal.  Now, I will just throw to Liz for the next part of this presentation. 

 

MS RUDDLE:   Thank you.  So obviously, you might have multiple grounds of appeal, and if I can indicate, as Georgina said, it may be, on review of the transcript, that you either want to re-work your grounds, remove a ground, add a ground.  You will rarely get any pushback, particularly from the Crown, if you do that in timely manner, and I would not expect you to get any pushback from the court.  It’s certainly the case that I have redrafted or reworked grounds many times having worked up the case over time.  It’s best to not do that in the days before court.  If you can do it, you know, in the weeks after you’ve initially done the written case or when you do the written case, then that’s the best time. 

 

If you’ve got multiple grounds obviously there’s no particular magic to the order of those grounds.  You can look at them from a number of different ways.  Usually, my approach would be to do them in the order of the outcome if successful.  So if you’ve got conviction appeal and you’ve got a ground that would lead to an acquittal, well, then that’s obviously the ground you want to focus on first, and then if you’ve got subsequent grounds that might lead to a retrial, I would probably put them afterwards.  But another approach is obviously by merit.  If you’ve got a really strong ground that you’re very confident in, I would lead with that;  lead with your front foot at all times.  Obviously, all of your grounds have to have reasonable merit before you sign off on them, so that’s usually less of a problem.  But that’s the way that I would go. 

And the third option, and this is what I – how I would do it if there was a number of errors in the trial, which you can often see in lengthy trials where there might be a series of rulings or a series of witnesses – is just chronologically, how they came up in the trial.  And that can be a really easy way to lead the court through the argument, both in the written case and then orally.  But there’s no magic to it.  There may be some other logical way in your particular case.  The important thing, I think, is to approach each written case or each – sorry;  I know we’re talking about grounds – but each set of grounds and written case on ..... own merits.  Every case is different.  And just because you’ve run an unsafe and unsatisfactory one way in the past or you saw it run that way by somebody you think is impressive, there are million ways to skin a cat, and just thinking clearly and logically about it is probably the best way to go. 

 

FORREST J:   That’s called the skinning-the-cat technique.  Can I just add I can’t emphasise enough the importance of being selective in your grounds of appeal.  In order to be selective, if you did the trial, you will know the issues and the transcript already;  if you didn’t, you must – and this is not easy to do – completely familiarise yourself with the transcript and the exhibits and the arguments.  If you did the trial, you will have made a note and be aware of potential appeal points.  But once you’ve done that, and if you have identified errors that you wish to pursue, you need to decide whether it was an error of a fact of law or an error of discretion.  If the error is such that it constitutes a substantial miscarriage of justice or that it is reasonably arguable, then that’s a justifiable ground. 

 

Lead with your best ground.  As Liz says, there’s no point in hiding it behind a bushel or inside a cat.  What I do say, though, is that don’t put grounds in simply because you think it’s safe to do so.  Be confident enough to pick your best grounds and run with them.  And particularly, don’t include an unsafe ground as a sort of a catch-all.  Unsafe grounds are really hard to prove.  They’re – it’s not so hard to get up if you are arguing an insufficiency.  But if you are arguing a credibility ..... remember that the court is obliged to take the Crown case, including issues of credibility, at its highest for the respondent.  And so if you include an unmeritorious, unsafe ground, what it does mean, there’s a great deal more work for you, a great deal more work for the court, and it can camouflage or hide the glittering ground that otherwise would shine in isolation, so bear that in mind. 

 

MS RUDDLE:   And if I can just highlight what Terry said, if you do do that, you will spend the whole day on your feet, arguing the unsafe ground, trawling through the evidence, and you will get to spend much less time on your sparkling gem of a ground.  So I can say having written cases as a particularly junior barrister, the urge to put every potential error in as a substantial miscarriage of justice can be hard to resist.  But certainly, my experience taught me that it was not the way to go. 

 

MS MUNSTER:   So what you’re really talking about is being disciplined and allowing enough time for thinking.  And sometimes, of course, there’s a lot of – there’s anxiety about time ..... is we really need to allow time to just let it wash over you while you consider, “What are our – what’s our best case?” 

MS RUDDLE:   Yes. 

 

MS MUNSTER:   And, “Am I going to go with that or am I” – yes – “How am I going to” – How am I sorting through all that decision-making. 

 

MS RUDDLE:   And that’s again another – one of those things that you might end up withdrawing a ground as you prepare it because      

 

FORREST J:   Sorry. 

 

MS RUDDLE:   But if you don’t – but it’s really, really best to do that early on rather than after the judges have spent days reading it and you send the email the night before. 

 

FORREST J:   That’s about what I was going to say.  Don’t send it at 5 to 5 on the night before, because judges tend to become a little subjective if that happens.  The other thing could I respectfully suggest is that if you are feeling unsure whether to jettison grounds or not to argue them, workshop it.  Go and speak to your colleagues.  Go and speak to a senior barrister if you’re only starting out or even if you’re a senior barrister yourself.  There is nothing better than the collegiality of the Bar except, perhaps, the collegiality of the bench.  We workshop things all the time, and you should too.  And if you are in doubt, go and see someone.  That’s my strong advice. 

 

MS MUNSTER:   We’re still thinking about the overview, but we’re coming now, really, to identifying what are grounds.  And I might hand back to Georgina for particular – when you’re thinking about the grounds, what are particular grounds that you might have in a conviction appeal?   

 

MS CONNELLY:   Yes.  So again – no.  We might abridge this just a little so it doesn’t become too dry and just touch these points.  So we’ve identified that there were three grounds on which a conviction appeal could succeed, and one was to do with the finding that the verdict was unreasonable.  Now, if you’re seeking to advance this ground, you need to be familiar with M v The Queen (1994) 181 CLR 487 and look to the test there expounded at pages 493 and 494. 

 

So importantly, this sort of ground is a ground to do with facts.  It’s not to do with law.  And there might be innumerable reasons a verdict is unreasonable.  And let’s go back to our previous observation that the registry ..... particularise some of these.  Now, for drafting these, I see very many – and I regret to admit that I’ve drafted them myself – that say the verdict – just use the terms of the legislation, and just – the ground – the verdict on charge 1 is unreasonable or cannot be supported having regard to the evidence.  I have done that.  And it seems that many people have done that, judging from the decisions.  But there are other examples, and I will just give you those so you get a sense of the way people are pleading this particular ground.   

So for example, in Pell v The Queen1  in this court, in the Court of Appeal: 

Ground 1: The verdicts are unreasonable and cannot be supported, having regard to the evidence because on the whole of the evidence, including unchallenged exculpatory evidence from more than 20 Crown witnesses, it was not open to the jury to be satisfied beyond reasonable doubt on the word of [the complainant] alone. 

 

So that clearly foreshadowed to the Court of Appeal that the complainant’s credit for the purposes of the appeal was not in issue and it was what was the consequence of the remaining evidence. 

 

And there are some other examples I’ve seen that have – for example, where a particular of manifest excess – sorry, a particular of unreasonable verdict has been to do with inconsistency between verdicts.  So that itself is a form of unreasonableness that might be particularised.   

 

So these are the sorts of things you could particularise usefully in your appeal if that was the basis of unreasonableness.  But very, very commonly, the unreasonableness is to do with the whole of the evidence and ..... that to a particular of the ground.  It may be that in some cases, it’s hard, almost impossible, to particularise that ground. 

 

But perhaps that’s enough said about that particular ground.  The next basis is to do with error causing substantial miscarriage of justice.  And here you will be concerned with legal error, like misdirections as to elements of offences or misdirections as to burdens of proof or admission of inadmissible evidence.  So they’re legal errors.  You just plead the error and identify or assert the miscarriage of justice, and then you develop that in your written case.   

 

The other form of error can be an error in exercise of a discretion, and there you will be looking to whether or not the discretion has been properly exercised, and you will need to be familiar with the case of House v The King [1936] 55 CLR 499, and there go specifically to page 505, which lists bases of specific error, but then also directs attention to whether the result was reasonably open, and the bases of your ground of appeal will need to plead the judge erred in doing this and this when it was not reasonably open so to do, or something of that nature.   

 

Then in terms of substantial miscarriage of justice, to identify whether or not you can establish that before you draft your appeal, go to the case of Baini v The Queen in the High Court [2012] 246 CLR 469, and look from paragraphs 29 on to decide whether or not that’s something you can establish.  Now, paragraph (c) is commonly used for assertions of fundamental error, where the error that you allege is such that the decision before is such that it was just – such as it almost doesn’t exist, it’s so lawfully flawed, and things of this nature are errors in the authority or empanelment of a jury.  If it’s a fundamental error of that kind, then identify it as a fundamental error in your ground of appeal.  And – sorry. 

 

FORREST J:   I might just add, if I could, before we move off 276, that that type of fundamental error has also been pleaded under subsection (b) of section 276(1). 

Baini contemplates two types of error.  An error or irregularity can constitute a substantial miscarriage of justice if it could have made a difference to the outcome of the trial.  So there is an issue there if you establish an error or irregularity, you will need to demonstrate that it was not – it must have made some difference – or – that’s not right.  It could have made a difference to the outcome of the trial.  If you do that, you will establish the point.   

 

The second way is similar to the way that sometimes is argued under subsection (c):  if there is such a fundamental or egregious irregularity as to the amount – as to amount to a substantial miscarriage of justice, you don’t need, then, if that’s type of error or irregularity, to recourse to the difference to the outcome analysis;  you have established a substantial miscarriage of justice by itself.   

 

A case recently in which that occurred was the case of Carson,2 in which a juror was behaving oddly for about a week or 10 days.  He thought he was being followed.  He thought that there were all sorts of things happening to him.  And that information didn’t find its way to counsel for nearly a fortnight, and that was considered to be a fundamental irregularity in the trial.  There was no balance as to whether the verdict was inevitable or otherwise.  It was considered to be a straight miscarriage of justice.  So that’s – they’re the ways through that you can – and you should – if you have that type of ground, you should particularise it in your ground, rather than putting it in your written case for the first time, I think. 

 

MS CONNELLY:   And you will see an example of that ground in Panozzo and Iaria,3 which is about at volume 8 of the Victoria Reports or something, but I will give you that – 8 VR 548, and you will see how the ground is set out there.  The only final thing I wanted to address specifically is grounds alleging incompetence of counsel, where we call them conduct of counsel grounds.  Now, these should be rarely pleaded.  If you have other winning grounds, plead them.   

 

If you don’t and you must resort to that ground, well, then, so be it, that’s what your case requires, but just to remind people that it has always been a practice, and a good one, I think, that in a legally aided matter, if it’s necessary to allege a conduct of counsel ground, you can apply for the extension of assistance for senior counsel to be retained, and that is a mark of the seriousness of that ground and a mark of respect to the court to determine it and to the counsel who appeared at first instance, and I hope that Legal Aid continues the practice of extending aid in such circumstances, so that that ground only properly falls to be determined in this court where it has to be. 

 

MS MUNSTER:   Georgina, I might interrupt you, because there are a couple of questions from the audience that touch on this issue, because I think this issue is one that a lot of us fear.  One of the questions is what barriers do the panel see that stand in the way of trial counsel drafting the grounds of appeal and appearing, and allied to that is a second question from the audience, how could trial counsel approach a ground of appeal that potentially exposes they contributed to or didn’t spot the specific error in the trial?

MS CONNELLY:   Well, can I say this, firstly, as a member of counsel.  If you feel embarrassed by a ground of appeal you consider must be raised in your client’s interest, you cannot write that written case, because you have a conflict of interest.  Now, there may be something less than embarrassment where you don’t have a formal conflict of interest and you think the client’s cause will be advanced by you candidly admitting why you didn’t seek discharge of the jury, for example, or something, but that would be – if you find yourself asking the question, you’re likely to have a conflict, but you shouldn’t proceed to write the appeal without consulting your colleagues, and it has been the practice, Julia, correct me if I’m wrong, but if there is a proper basis for counsel at first instance being unable to appear on the appeal, Legal Aid will fund differently the appeal or might     

 

MS MUNSTER:   That’s right. 

 

MS CONNELLY:      allow a judicial preparation rate for somebody else to do it.  So you shouldn’t feel that you’re leaving your client in the lurch, and I would like to think that if in an affidavit for extension of time there was reference to, you know, it being inappropriate for counsel at first instance to conduct the appeal for certain proper reasons, then that would be understood and the additional time required for new counsel to come to terms with the appeal would be recognised. 

 

MS MUNSTER:   Any other – yes. 

 

FORREST J:   Yes, I think the practice note requirement that – or strong recommendation that barristers who conduct the trial draw up the grounds of the appeal and the written case is – it has merit, but there are – it cuts both ways.  Barristers can get too close to a case.  They can – in fact, when I was a barrister, I hardly can remember a final address that I did where I didn’t end up believing it, and it wasn’t always the case that the jury shared my view, I might add.   

 

You can get too close, and at the end of a criminal trial, if you have to draw a written case – if you’re lucky you don’t have to, because you’ve got a good verdict – but if you do have to draw a written case, you’re tired, you’re depressed, and you don’t – the last thing you want to see is the transcript of the case that you’ve just managed to lose for your client, but it’s got to be done, and the advantage of it is that you’re completely across the transcript, you’re across the issues, you will have made a note of appeal points on the way through, and I think on balance the advantages outweigh the disadvantages, but we are aware on the court that it is not easy to do for practitioners who are troubled by the outcome and perhaps ..... maybe troubled that they might be too close to the case, and I think we take that into account.  If trial counsel has made a big forensic decision that could be the subject of an appeal as to his conduct of the trial, well, of course counsel should not draw up the ground of appeal, but he should assist – he or she should assist whoever is drawing up the ground of appeal with other grounds. 

 

MS MUNSTER:   President Maxwell. 

MS RUDDLE:   And if I can say it is as the now – always appearing for the crown, it’s very hard to be opposed to be somebody who ran the trial.  Like, they know it, and I’m usually coming into it as an appellate lawyer for the first time, and you will never be able to beat them on that sort of straight to the answer, particularly on their feet.  So I know some people who run a lot of trials think that the Court of Appeal is somehow scarier, it’s not, and if you ran the trial and you’re opposed to an appellate lawyer, you will run rings around them every day of the week. 

 

PRESIDENT MAXWELL:   That was the point I     

 

MS RUDDLE:   Sorry. 

 

PRESIDENT MAXWELL:   No, no, no, you’ve put it beautifully.  I just thought it would be useful, particularly since we’re talking to would-be criminal appellate lawyers, the reason we put in the practice note the preference for trial counsel was really just what Liz has said, because it’s much the best for us to be engaging with a person who was there at the trial.  It’s not because anyone is wanting to say, “But you didn’t do this or that”.  No, it’s because we need to deal with grounds of appeal by trying to understand what went on at the trial, and we find having trial counsel really helpful.  And, as Liz says, trial counsel knows it better than anyone else, certainly better than the bench and often better than counsel for the Crown.  But it’s not an iron rule;  it’s just a preference.   

 

We also think that having trial counsel appeal in the Court of Appeal is good for counsel, because it’s a different way of looking at trials, when you think of it through the prism of grounds of appeal.  That’s helpful when you next address a jury or you deal with a judge on jury directions, to understand some of the questions which might arise at the next level.   

 

Two other points:  incompetence of counsel is not a ground in itself.  We don’t make rulings on counsel’s conduct.  That’s not a ground of appeal.  The only question is was there a miscarriage of justice, and the High Court decisions Nudd4 and others make that very clear.   

 

The last thing is to say is that we have a very well-established practice that if a ground of appeal which asserts miscarriage contends that a serious error was made by trial counsel, we make sure that that counsel gets notice that the ground has been pleaded and is given an opportunity to say anything he or she might want to say, whether by submission or affidavit.  There’s a fundamental procedural fairness issue there, which we address. 

 

MS CONNELLY:   Carrying on from this same sort of theme, when evaluating whether you have a viable or reasonably arguable ground of appeal or not, it’s worth remembering that the Jury Directions Act 2015 section 12 places an obligation on counsel to make requests for certain directions and so forth, and that there are interpretive consequences that arise from counsel not requesting a particular direction or redirection or correction, and they’re identified in the case of Arico v The Queen [2018] 272 A Crim R 450 at paragraph 132, so have a look at that, but the importance of it is ordinarily – and speaking compendiously – the court will assume that counsel asked for the things they perceived necessary by reference to the issues arising in their case, and if it wasn’t asked for, it wasn’t perceived to be necessary, and therefore it likely wasn’t necessary.   

 

So if that’s not – if that doesn’t reflect the decision-making, you might want to come along and tell the Court of Appeal that that’s so, and that the reason you didn’t seek that direction is that you thought it would make it worse or some other explanation or something of that kind.  But, anyway, just in bear mind when evaluating whether you have a reasonably arguable ground of appeal the consequences of departing from the forensic choices of counsel at first instance and that you really have to overcome a hurdle before you succeed there.  Should we     

 

MS MUNSTER:   We’re running out of time, so we might try and quickly just look at sentence appeals very quickly, if we could, and then perhaps some further advice from our special experts just generally on – generally on any of the matters that – because I don’t think we’re going to get through the things that we wanted to get through, but particularly about preparation further, but maybe, Georgina, on     

 

MS CONNELLY:   All right.  Just very quickly, you’ve got to read the decisions emanating from this court.  You have to read them.  You don’t have to read them, all the terrible factual details, but you’ve got to read them, and you’ve got to read the decisions bearing on criminal or emanating from the High Court.  You really won’t be able to be in a good position unless you’re keeping up to date with the law.  Also, that will inform your drafting of grounds, because you will see the grounds, how they’re frequently drafted, if not how they’re drafted well.  There’s no copywriting grounds:  you can go back to other cases, if you’re wondering, and copy somebody else’s grounds and use them in your own case. 

 

MS RUDDLE:   Particularly when you see Ms Connelly for the applicant.  

 

MS CONNELLY:   Do you want to say something about     

 

MS MUNSTER:   Just very quickly on sentence appeals     

 

MS CONNELLY:   Okay, sentence appeals     

 

MS MUNSTER:   Particularly, people might be interested in just quickly thinking about fresh evidence. 

 

FORREST J:   I can talk about that, if you like. 

 

MS MUNSTER:   Yes. 

 

FORREST J:   Fresh evidence usually will only – usually will arise where we get to the stage of resentencing, and it would then be relevant to our disposition, having 

found error and having opened up the resentencing area.  It can also be introduced on the appeal itself, but it has got to be genuinely fresh evidence.  If it was something that was known to counsel or should have been known to counsel at the time of the plea, it probably wouldn’t be received by us, unless it were of a substantial nature and the judge really should have been made aware of it, for instance, if someone was serving their time in protection in very onerous conditions and that wasn’t brought to the judge’s attention and it clearly made a difference, well, while it mightn’t be truly fresh, I don’t think you would have too much difficulty persuading us that we could treat it as especially fresh just for this week. 

 

MS RUDDLE:   What fresh evidence probably doesn’t constitute is that your client has done a number of courses in custody.  We seem to get that a lot of fresh evidence     

 

FORREST J:   None of which are available at the moment. 

 

MS RUDDLE:   Indeed.   

 

MS MUNSTER:   Liz, you’ve got a long history of appearing for both defence and prosecution.  Do you have any comments to add to what Georgina or Justice Forrest have said about the ways of identifying grounds of appeal? 

 

MS RUDDLE:   Well, my first trick, if I’m reading through a case that was not mine, would be to look at any objections that defence counsel have taken, any discharge applications that were made, any rulings that didn’t go in their favour.  Obviously, you need to read the entirety of the case, because you need to understand, but those are the real triggers to look at.  In terms of if you’re then preparing the grounds and trying to get to a substantial miscarriage of justice, as Terry said, you do need to identify to the court that it could have made a difference, so you need to really think to yourself, what am I going to say to the court about the difference this piece of evidence or this ruling would have made before you sign off on that ground satisfying yourself that there’s a substantial – an argument supporting a substantial miscarriage of justice.  Those are probably my two little tricks that are of use.   

 

The other thing is to be very careful with sentence appeals is that what you are seeking to appeal is a sentence.  We often see “the total effective sentence was manifestly excessive”, but that’s not appealable ground.  You’re not going to get much pushback from the Crown when you seek to amend it when we point that error out, but just be careful.  I’ve fallen foul of it many a time, so this is very much do as I say, not as I did.   

 

MS CONNELLY:   So the sentencing orders are the individual sentences, the orders of cumulation, the non-parole period and any of the other allied sentencing orders, so often the total effective sentence is pleaded just as a shorthand way of talking about the orders of accumulation.  I think everyone understands what that is, but formally it’s the sentencing orders. 

I just direct you – so you’ve got errors of law, which you might plead usually by reference to House principles in a sentence appeal, because .....  if you want to plead an error of fact, a case that’s useful in determining whether that error was material to the sentence and it wouldn’t be – it wouldn’t lead to a different sentence being imposed if it were not material, is the case of The Queen v Beary [2004] 11 VR 151 at paragraph 21.  So that will help you identify which factual errors might lead you to draft a ground of appeal alleging them. 

 

MS MUNSTER:   And can I jump in about style.  Liz, or any of you, do you have any suggestions about the style when you’re thinking about your appeal and you’re identifying your grounds and then you start to write – and, of course, next week is about writing written cases, but have you got any very brief suggestions? 

 

FORREST J:   Yes, could I answer – have a go at that? 

 

MS MUNSTER:   Yes. 

 

FORREST J:   Written submissions are terribly important.  They are our first impression of the merits of the appeal.  First impressions are often good impressions.  They’re often the best impressions.  The written submissions should be brief, they should be clear, and they should be accurate.   You should, in my view, begin by stating the issues that are to be decided, preferably in a question form.  I prefer it that way, but that’s just a personal preference.  You should then roll out a step-by-step argument.  I prefer bullet points;  again, personal preference.  Don’t just dictate a written case.  You end up with a stream of consciousness rant about the vibe, basically.  Prepare an outline and stick to it.   

 

As I’ve said, workshop your arguments with your colleagues.  If you didn’t do the trial, speak to the barrister who did.  Do not include vast slabs of transcript or evidence.  That, I think, applies not just to the written case, but to the oral presentation as well.  State the effects – what you say the effects of the transcript that you rely upon or the evidence that – or the law that you rely upon, and work them into your argument.  We will have plenty of time to – or the judges will have plenty of time to read the cases that you take them to in their chambers, and we do do that, believe it or not.  Avoid overtly critical or sarcastic comments about the judge at trial or the prosecutor or other personalities in the case.  That often doesn’t find too much favour with the court.   

 

Associated with that – and I think this is terribly important – don’t overstate your case.  We had an example a while ago, I think it was when I was in the trial division, but I was sitting up here, and it commenced something like, “To dismiss this appeal would be to compound one of the greatest travesties in recent Australian legal history.”  It wasn’t a bad appeal, but it wasn’t that good, and the maker of that rather bold opening had a lot to live up to, and his case could only fizzle from there.   

 

On the other hand, if you’re well known as a conservative, understated, sensible person, a statement – a big statement, a bold statement, if justified, can have a 

startling effect.  So it’s a question of, I guess, understanding the temperature of the room and who’s in there, which leads me to know your bench.  We’re all different.  We have different likes, and I’m sure some of you go back and discuss us in great detail, but it’s reasonable, I think, to be able to apply some knowledge of the bench to the way you present your argument.  It won’t affect the substance of your argument at all.   

 

There’s a very good paper, which you should all read, Preparing – it’s called Preparing and Arguing an Appeal, and it’s by the great Honourable Michael McHugh.5  It’s available easily enough online and it is full of useful tips, most of which ..... this afternoon.  I might have added a little bit of something to them.  It can be picked up easily.  It was originally published in the Sydney Bar News, I think, in 2010, and it can be easily tracked down on Google, and I recommend it to all of you.  So that’s what I wanted to say by way of written cases. 

 

MS RUDDLE:   If I could     

 

MS MUNSTER:   Thank you, yes, yes. 

 

MS RUDDLE:   The Court of Appeal is a place of precision, so just be careful with your written case, your written grounds and the submissions that you make, but if you are properly prepared, it is actually a lot of fun.  So don’t be afraid to give it a go.  And as Terry said, the biggest resource you will ever have are other barristers and other practitioners.  People who appear in the Court of Appeal are, yes, kind of nerdy, but we’re always very happy to share our knowledge and our experience of coming up here, so give it a crack. 

 

FORREST J:   You’re making it sound like Luna Park. 

 

MS MUNSTER:   So this is a question for the nerds and the non-nerds:  what would you say to counsel who are anxious and nervous and perhaps even terrified about coming here? 

 

FORREST J:   I     

 

MS MUNSTER:   Liz has already answered that, I think. 

 

MS RUDDLE:   Yes. 

 

FORREST J:   That’s exactly how I felt the first time I came up into the old Full Court in the other building with Sir John McIntosh Young and Bill Crockett, and they absolutely terrified me, and they were so kind and so supportive that I have been forever grateful to them.  Their model has been a model to me and other members of this bench, and I think that we have done a pretty reasonable job in living up to the – what they – the example they set for us.  Don’t be terrified.  We were all there once, and we know how it feels.  And you still will be terrified, but it’s 

MS RUDDLE:   I’ve been doing it for years and I’m still terrified, but it’s still fun.  Scary can be fun. 

 

MS MUNSTER:   And that you would encourage all practitioners, properly prepared practitioners, to come here and not to think, “I don’t have the experience.  No, I don’t belong there.”  Properly prepared, if they’ve appeared at first instance, you would encourage them to come. 

 

FORREST J:   Even if they haven’t appeared at first instance.  No one is ready to do their first Court of Appeal appearance.  No one is ready to do their first committal or their first criminal trial, but you do them and you end up, when you finally get around to finishing, thinking, “Hey, that wasn’t so bad”, and this is the same up here.  You will, I hope, enjoy it, and it’s very fulfilling.  I think that we’re going to get another contribution from the president     

 

PRESIDENT MAXWELL:   To endorse what’s been said.  As I said at the beginning, we really like seeing new faces, and we are encouraging, supportive and keen to be – keen to get you help.  It is a collaboration.  Of course, it’s adversarial, but in this court we’re trying hard to find the right answer, and we look to you for help, and we want to tease out the questions, and that can be really interesting, especially if you’ve thought hard about them.  If you are uncertain, come and watch some sentence appeals.  You will quickly get the sense of how it goes and the kind of exchanges that take place, and I hope you will think, as Liz said, “That looks like fun”. 

 

FORREST J:   And the other thing is don’t be intimidated by the amount of questions we ask.  It’s actually often a sign that you’re going all right, that the appeal is going well, we want to understand the ground that you’ve put, and if we ask questions about it, it’s a whole lot better than if the court sits there like the Sphinx of Egypt, saying and doing nothing.  That can be – we don’t often do that, I might add, but     

 

MS RUDDLE:   When they do, it’s terrifying.  You think, “What’s gone wrong?” 

 

FORREST J:   It’s very – sometimes     

 

MS MUNSTER:   Although we’ve gone overtime, our panelist are happy to take some more questions, and there are a couple of questions in the chat which I might put.  One was for Georgina about repeating the case about material error, which I think was Beary.  And, alternatively, I could just – we could just do that offline with the person who has asked that question. 

 

MS CONNELLY:   Yes. 

 

MS MUNSTER:   We will make available. 

 

MS CONNELLY:   Emailed to the participants, yes. 

MS MUNSTER:   We will make available.  And another question, which is to his Honour, when his Honour says the submissions should be brief, how long are we talking length-wise, and this connects to another question, which was earlier, which is probably more for next week, which is how long should the written case be?   

 

UNIDENTIFIED MALE:   ..... page limit. 

 

MS MUNSTER:   There is a page limit, that’s right, so     

 

FORREST J:   20, isn’t it? 

 

MS MUNSTER:   10 pages.  10 pages. 

 

MS RUDDLE:   Less than 10 pages.  Maximum. 

 

FORREST J:   Less than 10 pages.   

 

MS MUNSTER:   One and a half or double spacing.  But that will certainly, I’m sure, be articulated next week.  Do we have any other questions either online or in the room? 

 

MS RUDDLE:   It’s radio silence. 

 

FORREST J:   We haven’t had one from in the room, have we, yet? 

 

MS RUDDLE:   There we go. 

 

MS MUNSTER:   And how do we do this?  We just – I will repeat it into the – yes.   

 

UNIDENTIFIED MALE:   ..... David ..... I have a question for Justice Forrest.  So with regard to written cases .....  the amount of information going into those written cases now, how often is it that your mind changes or that you are persuaded .....  something different in the course of oral argument than the position that initially developed after reading that written case – those first impressions .....  

 

MS MUNSTER:   And I will just repeat that for the people online.  So in relation – it’s a question for Justice Forrest:  how often are you persuaded after hearing oral advocacy to a different view than you may have had when you first read the written case?   

 

FORREST J:   I haven’t kept statistics, but it happens.  Written cases, by their nature, are condensed, and the maximum is 10 pages.  I think we regularly get written cases that exceed that slightly, and we often – applications are made and we usually are sympathetic to them, if it’s justified.  And because of their attenuated nature, not everything is necessarily referred to in the written case, and there might be some relevant factors that either emerge more clearly in oral argument or in the respondent’s reply. 

So in answer to your question, first impressions are best impressions, and if you have a good ground and it is well-crafted in the written case, it will resonate with us, but that doesn’t mean we will have a concluded view, by any means.  I’ve never walked into court thinking my mind is made up absolutely.  We need – oral argument is still the best communication that we have, but a really high quality written case is a great start to an appeal.  We do change our mind sometimes – our unconcluded view, I hasten to add, and we – but we are assisted by written cases very greatly.  I’m conscious I haven’t answered your question, David, but     

 

UNIDENTIFIED MALE:   ..... picked up that your mind is still open .....  

 

FORREST J:   It has to be.  That’s our job. 

 

MS MUNSTER:   Any other questions online or in the room?  Well, apologies for starting late.  That was due to a couple of us who arrived here late from another venue, court, but thank you very much, everyone, for your attendance today.  Thank you very much to JR McCann and her associate, Chesley, for organising this and to our terrific panellists, who have been – who are very experienced and very generous with their advice for us all.  Just for those of you who don’t know, you can claim CPD points for today and, of course, for next week.  We would encourage you all to register for all sessions, if you haven’t yet.  You will be receiving a request for feedback with a voluntary survey, so that all of those of us who have been involved in putting this series together can think about how we could improve it.   

 

And then, finally, this is a really – been a terrific discussion, which sort of prepares the ground nicely for next week, which is session 2, how to draft a written case and covering the practice direction.  It will be again from 5 to 6 pm.  I’m sure it will start on time, because it will be chaired by Judicial Registrar McCann and her – the panellists will be Felicity Fox from the Victorian Bar and O.P. Holdenson and Angelique Renieris, who’s with us today, who is the managing lawyer of the appeals and strategic litigation team at Legal Aid.  And then they will then lead from them the following week onto a session on oral advocacy in the court.  But thank you very much, Justice Forrest, Georgina and Liz, and thank you all for coming today.

MS D. McCANN:   Where’s the camera.  Where’s the camera.  Okay.  Good evening and welcome back to the Court of Appeal and the Green Court for the second of our sessions on criminal appeals brought to you from the Green Court and a collaboration between the Court of Appeal, Victoria Legal Aid and the Criminal Bar Association, and before I introduce the speakers and a little bit of the structure for today to the people who are here in the court, and we are seeing a number of people who have been able to join us today in person and I know that we are seeing quite a lot of people out there, at home, online, and so before I do that I would like to acknowledge the traditional custodians of the lands from which we are coming to you, but also the traditional lands wherever you are, and here, they – I’m paying my respects to Wurundjeri people of the Kulin Nation, and to their elders past, present and emerging, and I would like to acknowledge that this land was never ceded.   

 

So today’s session, the second in a series of three, is in relation to the drafting of a written case, and we have three speakers – sorry – three speakers in addition to myself to speak to you in respect of that.  We have – sorry.  I would like to introduce them now and give you a little bit of detail as to their background.  We have from VLA Angelique Renieris.  Ange is managing lawyer of the appeals team at VLA and has predominantly practised in criminal law and worked in the appeals divisions, both at the OPP and VLA, and she will be speaking to you today in relation to the application process for funding for a criminal appeal with Victoria Legal Aid.   

 

I would also like to introduce – sitting next to Ange is O Paul Holdenson QC, who is probably a familiar name and face to many of you.  He came to the bar in 1989 and since has practised extensively in the Victorian Court of Criminal Appeal, as well as now in this court, the Victorian Court of Appeal, and has appeared in numerous criminal appeals.   

 

And at the far end of the table this evening is Felicity Fox.  Felicity came to the bar in May of 2019.  She practises predominantly in criminal and quasi criminal jurisdictions at both the trial and appellate level.  In between 2015/2016 Felicity was an associate here at the court to the Honourable Justice Redlich and has also had a stint as a solicitor in the OPP appeals division.   

 

For those of you who don’t know me, my name’s Deirdre McCann and I’m the Judicial Registrar here at the Court of Appeal.  So as I’ve mentioned, this is the second in a series of three sessions about criminal appeals, and those who tuned in last week will have heard from his Honour Justice Forrest, Georgina Connelly, and Liz Ruddle QC in relation to developing grounds of appeal, and one of the things that arose during that session was a question about the role the registry plays in the management of a criminal appeal and what assessment and decisions are made at the registry level in relation to grounds and a written case, and so I propose to address that for a short period of time this morning.   

 

As I’ve indicated, Angelique will be talking about the process for obtaining funding, which is relevant to many people who are wanting to bring criminal appeals and is 

relevant in terms of the short timeframe that you’re allowed in order to file an appeal in relation to a matter in crime.  I understand that Felicity will be speaking to you about the technical details associated with a practice note in more detail.  I wouldn’t necessarily touch on the practice note in relation to dealing with registry.  And then Paul will be taking us through the process of drafting.   

 

So my other role today is to moderate the session, and there is the possibility to ask questions, and there’s a – an opportunity to ask questions and a period of time allocated for that during the session today, but there’s also the opportunity to ask questions online in the chat function and that is being managed at the moment by my associate, and so if you think of questions as we’re going along, there at home or indeed here in the room, please let us know in the chat function or put up your hand.   

 

So I wanted to start in relation to the introduction to the criminal law – Court of Appeal criminal registry by letting you know what the setup is in registry.  It’s a team of – there are five lawyers in the team with a senior lawyer who looks over all of the new filings, and once these are accepted, they would be assigned to a registry lawyer for the whole of the process.  We’re also assisted by five registry officers, and all of that is overseen by a Judicial Registrar.  Filing in the Court of Appeal, you probably know, is via RedCrest, and that is for most matters, in fact, almost the entirety of matters, and in order to be able to do that you simply sign up for an email address.   

 

I say that it’s almost all of them.  If there are matters with some sensitivity, it may be necessary – or may be appropriate to file via an email address.  But if you have any concerns in that regard, the best thing to do is to contact registry.   

 

Now, acceptance for filing.  So you’ve got it through RedCrest.  What happens at that stage?  Well, it is reviewed by lawyers at – in registry, and what we’re looking for, first up, is compliance with the relevant practice note.  Now, there are three relevant practice notes for criminal appellate practice, but we’re looking at the first of those, primarily, today, but there are practice notes in relation to interlocutory appeals, and also second and subsequent appeals that may be relevant to a matter that you would be filing.   

 

The registry lawyer will assess the grounds of appeal and, for the most part, they’re picking up situations where the ground falls foul of section 8 of the practice note pleading weight given to factors in a sentence appeal.  That’s a matter that I anticipate is going to be covered by my colleagues later on in the presentation.   

 

Transcript.  Now, transcript can be a little bit of a bugbear in terms of being able to comply with timelines, but transcript and amendments to transcript are also things that are considered throughout the process of a – the case management of a criminal appeal, and you may recall Justice Forrest was referring to the trickiness that can arise for the Bench in relation to references to transcript.  But in terms of the management within the criminal registry, on a conviction appeal, we would usually wait for a response to invite a revision of the grounds, as well as references to 

transcript or other documents from the trial.  In sentence appeals, we would invite revision after the provision of transcript, and so where transcript is sourced in the case, we would wait on the revision before seeking a response.   

 

Now, the criminal registry and the judges of the Court of Appeal operate slightly difficultly to judges in other courts in that communication should take place through registry rather than through judges’ associates.  You can be satisfied that the judges will be communicated with, and perhaps this is a moment to note, in respect of communication between the registry and the bench, that that occurs on a number of occasions during the course of the life of a case that’s managed through registry, and one of the ways that that occurs is in relation to a listing recommendation.  So a registry lawyer will engage in the process of considering what sort of listing a matter should have, and that is really the numeric composition of the bench and whether or not it’s listed for a leave hearing or on the papers, or it’s listed for consideration of both leave and the appeal proper, and so a collapsed hearing.   

 

Now, consideration of the bench will be determined by legislative requirements, as well as the requirements set out in the Supreme Court Rules, Chapter 4.  So three judges for a conviction appeal, or an appeal from a decision of the Supreme Court, and two judges for a sentence appeal for a county, as well as the refusals of appeal by a single judge.   

 

The starting point for any consideration of a listing recommendation is that the appeal process that’s outlined in the Criminal Procedure Act is really very much a leave process.  So that’s the starting point.  Additional considerations as to whether or not it’s listed to a bench of more than one judge will be the complexity of the matter or whether or not it has an extensive volume of material.  So it’s worth noting that process allows for – obviously – election to renew and consideration by a bench of two or more on a refusal of a leave by a single judge or on the papers.   

 

Extension of time, and this would really be the substantive – last substantive matter that I will be looking at today, but a matter of some concern.  So where an extension of time is required, the paperwork that’s required is a general application along with an affidavit, and the process within registry is to accept that application for an extension of time for filing.  The remainder of your documents, which should also be filed at the same time, would not be accepted for filing at that stage, but would be held in abeyance until such time as the extension of time application is considered.  Now, some extension of time applications are considered in registry and would be granted, but there are also extension of time applications where they are potentially more controversial, in terms of things that are pleaded in the affidavit, that would be referred to a bench along with the substantive application.   

 

The important thing to consider in relation to an extension of time application, and will be looked at in registry, is the detail that’s contained in your affidavit.  It’s important – and this will be apparent from recent and not so recent decisions of the court, it’s important to detail each of the steps that have been taken in relation to your appeal or in relation to your client’s appeal that have taken place that have prevented 

the matter coming to a registry on time, and it’s important to ensure that gaps are filled within the chronology or the narrative that you draw out in your affidavit.  That’s both for the purposes of it being considered in registry and potentially granted, as well as obviously – and this will be apparent from judgments from the court – they are considered by the court if the extension of time is referred to them for consideration.   

 

Now, obviously, there are some common causes for delay.  So there are common things that appear in affidavits that we see at the court.  One is in relation to the provision of the transcript, and the – we just would like to draw your attention to the option of obtaining audio of the relevant parts of the hearing.  I appreciate, having done that myself, that that necessarily involves a larger proportion of your time taken up having a look at the hearing that took place.  The court does have a longstanding arrangement with the VGRS to turnaround requests made to VGRS for audio within 24 hours.  This is all set out in the practice note.   

 

The other thing that – or the other matter that is frequently pleaded in affidavits in support of extension of time is funding, and either seeking funding through VLA or securing funding through other means, and that’s why it’s really important that we have got Ange with us today to talk through the steps that you’re going to need to – or you should anticipate you will need to take in order to secure funding through VLA.  So before I throw to Ange, though, I did want to just touch upon another matter that is considered in registry in terms of listing, and that’s the urgency of the matter, and it will be apparent on the paperwork, usually, that a matter has some urgency because of a short early release date, or another matter or factor that would influence the registry in terms of listing a matter urgently would be if there was an applicant who was very young.  So those are the matters that I wanted to reveal to you about what it is that we do in registry and, without further ado, in relation to the steps that you would need to take in order to secure funding for your appeal, I’m going to introduce and throw to Angelique.   

 

MS A. RENIERIS:   Thanks very much, Deirdre.  I would also like to acknowledge the traditional owners and custodians of the lands on which we’re all meeting and pay my respects to elders past and present.  As was mentioned, I will provide a brief overview of the Legal Aid process relating to funding for appeals to the Court of Appeal before handing over to the rest of the panel members to speak to the more substantive aspects of preparing a written case.   

 

So as we all know, criminal appeals are governed by the Criminal Procedure Act, the Supreme Court Court of Appeal practice notes, and the Legal Aid guidelines if the matter is legally aided.  The VLA guidelines interact with the CPA and the practice note.  However, the guidelines and the CPA provisions are not the same.  For example, Legal Aid requires that someone is sentenced to a term of imprisonment before considering funding.   

 

So the first thing to note is that all the steps towards and up to getting a funding decision from VLA are, as was already mentioned, time critical, and there are a 

number of steps to ensure that funding is hopefully granted where that has been sought.  So the counsel who appeared is first required to provide a written advice on the merits of an appeal against conviction and/or sentence as relevant to VLA within seven days from the date of sentence.  What’s required in the first instance is a new application be submitted to Legal Aid along with the written merits’ advice.  Legal Aid then considers the advice and determines whether it’s sufficient and reliable, and if it is, ordinarily, funding will be granted for the preparation of the written submissions.   

 

If not, if it’s determined that the advice isn’t sufficient to assess merit, then a further advice might be required and, obviously, if that’s the case, that impacts the efficiency of the decision-making process, bearing in mind the ever-looming 28-day timetable for the filing of written case.  So all applications for funding for an appeal to the Court of Appeal are assessed for merit at that initial stage and, in fact, at every stage of the appeal proceedings, which hasn’t always been the case.  But what that means in practice is that all applications are reviewed by my team – the appeals team – who provide advice to grants on merit and, of course, if funding is refused, reconsideration and independent review can be sought within certain timeframes.   

 

There are a number of VLA resources that have been developed to assist practitioners in drafting their merits advices.  There’s a merits advice template which covers both sentence and conviction.  It’s entirely optional, but it’s available on the VLA website and it’s there to assist anyone, but perhaps particularly those who might be less familiar with preparing written advices, whereas others might prefer to not be constrained by that template.  So the template is an electronic document that can be prepopulated, for those who prefer that approach, and it directs consideration to common grounds of appeal, parity, manifest excess, double punishment, etcetera.  It also incorporates and links back to the CPA and Legal Aid guidelines.   

 

There are also separate sentence and conviction guidance notes available on the VLA website as well that reproduce the applicable legal aid guidelines and provide some guidance in terms of what to include in an advice.  But what – what’s crucial, what really matters is that the advice doesn’t merely or simply state a conclusion but provides the reasoning behind the expressed opinion or conclusion.  So, ideally, what the advice should include is – well, it should be clearly set out.  Outline matters such as the charges, sentences, orders for cumulation, provide a brief description of the context and background of the offending, and, importantly, it should include the consideration and analysis.  Make reference to supporting principles and authorities, and state clear conclusions about merit, and, where appropriate, address any difficulties and problematic authorities relating to a particular ground of appeal.   

 

So sometimes we do receive advices that are equivocal and it’s not clear on their face whether counsel actually considers there’s merit in an appeal or whether the purported identified grounds are reasonably – are thought to be reasonably arguable.  Occasionally, an advice will have one line asserting that the sentence is manifestly excessive without any additional justification, which, unfortunately, doesn’t satisfy the VLA guidelines and really what’s required is a more developed argument.  So if 

you consider the sentence is manifestly excessive, for example, provide the reasons and justification, and that could be by reference to a particular mitigating factor, a combination of mitigating factors, current sentencing practices, whatever it is that you think or that you say go towards establishing ground of manifest excess.   

 

We do, of course, the advises that are – advices that are cogent, and it makes it that much easier for us to turnaround very quickly.  So it really boils down to the quality of the advice which is fundamental to getting a prompt funding decision from the VLA.  The written advice, which we consider a document of persuasion, when it’s well considered and persuasive and addresses the Legal Aid guidelines, that’s really what allows for timely funding decision-making.  It’s obviously not equivalent to a written case, but a well-prepared advice can form the basis, or at least the framework, for the grounds and submissions of the written case that’s ultimately developed on appeal, which is particularly important where we’re all trying to face these deadlines for filing, and on that note I will hand over to Felicity and Paul.   

 

MS F. FOX:   Thank you, Angelique.  Just to follow on from Judicial Registrar McCann’s outline of the practice note, I just want to briefly touch on a few practical tips and tricks when it comes to actually sitting down and drafting in line with the practice note, and Paul is going to cover in much more detail really the substance of what should be going in your written case.  The first thing I just wanted to discuss was just being aware of the actual documents that need to be filed and prepared by counsel when you are drafting a written case.  It might sound quite simple but there are different documents that need to be filed.  So, for example, when you’re coming to writing a conviction appeal you obviously need your written case as well as a list of authorities, and Paul will talk in a lot more detail about how to come to think about what goes in your part A and what goes in your part B.   

 

It’s also a good idea, though, to remember that if you’re pleading a ground of appeal that’s unsafe and unsatisfactory, you also need to draft a schedule of evidence.  It’s a requirement under the practice note.  I think one practical thing to think about when you’re drafting a unsafe, unsatisfactory ground is that, as you’re going through and reviewing the brief providing your advices to merits of appeal, start drafting that schedule of evidence.  That’s what is going to shape how you draft and plead your ground, and it will just simply save a lot of time when it comes to drafting your schedule of evidence rather than doing your grounds, trying to find your citations and then coming back to doing your schedule of evidence.  So I think it’s a good idea, as you’re doing your advice, to do it.  I think as well, from a funding perspective, it probably will make it easier to really articulate why you think there is merit. 

 

When you come to your sentence appeal, of course, you just need your written case and your list of authorities.  One thing just to be aware of is when you come to drafting a written case – or it’s not a written case in an interlocutory appeal – there is just a slightly different order of things.  The most important thing in relation to your interlocutory appeal is that the first thing that has to happen is that there’s your notice of appeal that just contains the grounds.  Registry will then be in touch about your statement of contentions.  And a big difference between a statement of contentions 

and your written case is the length.  A written case is limited to 10 pages.  A statement of contentions, only five, and one of the big differences is that, in the interlocutory appeal, there is no requirement of a summary of facts, so that’s where a lot of fat can be trimmed.   

 

Just a couple of tricks and tips, I suppose, in terms of structurally complying with the practice note.  The best – if you’re drafting a conviction or a sentence appeal and you’re referring to the practice note, I find that paragraph 9 and section 9 of that practice note is really what should be guiding how you structure your written case.  The first requirement that I think is most important is at 9.5 and it really sets out the structure that you need to follow when you’re drafting your written case.  The easiest thing I find to do, and I think that the general practice of the court, is that you will have a separate heading for each of those points that is outlined at 9.4.   

 

That is, start with conviction and sentence from which leave to appeal is sought, and you can – you will find as you go along there will be a nice succinct way in which you can pinpoint for the court, eventually, what it is you’re seeking to appeal from.  You really want to just set out in brief compass an answer to all of those things in 9.4.  Think about different ways you can structure this.  For example, if it’s a sentence appeal, the practice note has the table annexed to the practice note, which sets out the most simple way, I think, of setting out what it is that – what the sentence is that you’re appealing from.  You need to, when you are drafting a written case for a sentence appeal, it’s a requirement that you set out what the maximum penalty is, and if you follow the table that’s set out in the practice note, you really can’t go too wrong.   

 

The second requirement under 9.4, paragraph (b), is that you need to provide a summary of relevant facts.  Now, I’m sure Paul will talk about this in a bit more detail, but there’s no need to rehash all of the facts of the case.  This is a really – this is the first thing that the court’s going to read about your case.  Set out the facts that are relevant to the appeal and the ones that you want to rely on for the purposes of your case.  Remember, when you’re drafting things, you only have 10 pages.  So the facts, unless they’re particularly relevant to your appeal, is not where you want to have the substance of your 10 pages going.   

 

A couple of other requirements, make sure you comply with the AGLC.  There’s really no excuse not to comply with the AGLC.  It’s for free on a PDF on the internet, and it really does have almost everything that you need to cover.  And I think Judicial Registrar McCann touched on transcript.  It’s a good idea just at the conclusion of your written case, if you anticipate that the provision of transcript is going to require you to make amendments, just pop in a one-liner that says, “Will seek to amend this written case once transcript is provided”.  So those are just some very, very basic tips that I’m sure everyone’s across, but I’m looking forward to hearing from Paul.   

 

MR O.P. HOLDENSON QC:   Let me tell you by way of giving you the practical tips in drafting a written case and how to advance your prospects of persuading the 

Court of Appeal to accede to your submissions and allow an appeal in your favour.  The first thing to do is to comply with the requirements of the practice note or the practice notes.  I say that for the simple reason there’s nothing more embarrassing than having the registry reject your written case.  I’ve certainly been in that position in the past.  Failing to comply with some requirement of the written case, it’s embarrassing, and it holds things up.  Now, the remainder of what I have to say really comes under the heading of use common sense.   

 

The guiding principle, as with all advocacy, both written and oral, is make the judges happy.  Don’t upset them.  So in an appellate context, what that translates down to is make it as easy as possible for the judges to decide the issue and thereby determine the ground, or grounds, of appeal, and thereby decide the appeal.  So the guiding principle is to largely facilitate the court’s resolution of each and every ground of appeal.  So in drafting the written case, put yourself in the shoes of the judges, as the receivers of your document, and ask yourself at each stage how you would like to have, if you were the judge, the written case presented to you.  Keep in mind judges are busy.  Judges have limited time to prepare, and so make your document, for a start, readily digestible.   

 

Remember, as a matter of advocacy, if you’re preparing an applicant’s written case, it’s your opportunity to get the court on board with your case.  It’s an opportunity – because the first document they will read in preparing the appeal is your written case.  It’s an opportunity to get them on board by persuading them of the merit or merits of your case, starting with the drafting of a ground of appeal.  Now, I must say, as I read the cases that come through this court, not just generally, but usually, grounds of appeal are very well drafted.  But be clear, be precise, don’t waffle, no padding.  Identify that which is the subject of complaint and why it’s the subject of complaint.  If you say some evidence is inadmissible, within the ground explain why.  Inadmissible second-hand hearsay, for example.   

 

If you’re complaining about a direction given by the trial judge to the jury, explain within the ground what’s wrong with the direction.  For example – and I’m just – just grabbed a law report off the shelf before I came over – the learned trial judge erred in his directions to the jury concerning the separate consideration of each charge and, in particular, (1) he failed to isolate sufficiently, or at all, the evidence which was admissible, and that which was inadmissible on each charge;  and (2) he failed to direct the jury on something else.  If you’ve got a ground about the inadmissibility of evidence, don’t be averse to going through a couple of cases and finding a well-drafted ground – it will be apparent to you – on that very topic, inadmissible second-hand hearsay, erroneous directions about whatever it is I just read to you.   

 

As Felicity said, on an appeal against conviction where the ground is that the verdict of guilty of the jury is unreasonable and/or cannot be supported having regard – by the evidence, having regard to the evidence, you’ve got to go a bit more than say that.  If it’s a – if there’s multiple convictions returned by the jury, make sure you identify which convictions on which charges you’re talking about, but you must particularise the ground.  In other words, like a statement of claim, have underneath 

it the word “Particulars”, and then paragraph (a), (b), (c), or Roman numeral (i), (ii), (iii) in which you say how it is that the verdict is unreasonable.  For example, another recently reported decision from our court, particular 1, it was not open to the jury to find beyond reasonable doubt that the applicant had X, Y, Z.   

 

Put a different way, Roman numeral (ii), it was not open to the jury to reject or exclude beyond reasonable doubt a reasonable hypothesis consistent with the innocence of the applicant, namely – whatever the reasonable hypothesis was.  Obviously, a circumstantial case.  And so you are explaining, in clear language to the judges, what it is you’re complaining about and what it is that they should be looking for, thereby facilitating their work on the case.  Don’t make them do the hunting.  Now, again as Felicity said, there has to be a schedule of evidence.  It’s dealt with in the practice note.  Sophisticated Title 4, in the form of a table, you’ve got to have a summary of the evidence with transcript references. 

 

Now, it’s my experience that that document is often very poorly drafted.  I have had briefs for the respondent Crown in cases and it’s amazing the gaps in it.  It is by no means a full summary.  That’s a bad start, in my view, for an applicant because the judge, in his or her preparation of the case, is going to read the ground and has got to – he or she has then got to get on top of the evidence.  They’re not going to read an 800 or 1000 or 1500 page transcript straightaway.  They will be assisted by the schedule.  It has got to be complete.  All the evidence relevant to the ground.   

 

Another thing to do within a written case – and the points I’m now making are in no particular order – if no objection was taken at the trial to what you complain about on appeal – on an appeal against conviction, you better consider and deal with, in some way, the requirements of the Jury Directions Act, because there are obligations imposed upon trial counsel by that Act and if counsel, at trial, is in breach of those obligations, there’s an awful consequence, these days, by reason of the 2015 Jury Directions Act on appeal.  So you’re going to have to deal with that in your written case.  No good hiding it.  No good concealing it.  Be upfront about it.   

 

Now, as to grounds of appeal.  I’ve told you how to draft them very briefly.  There’s some traps for young players.  It comes up every now again and it’s a bit embarrassing.  If on an appeal against conviction make sure what you complaint about was of consequence at the end of the day.  If you’re complaining about the admissibility of evidence and how it was that the judge erred in failing to exclude some evidence, make sure that the same evidence wasn’t adduced through another witness down the track in admissible form, because if the judge erred, it’s of absolutely no consequence.  The evidence was there anyway.   

 

If you have a case where there’s a multi-charge indictment, make sure that the evidence that you’re complaining about did not solely relate to a charge upon which you were acquitted.  It has got to infect the charges upon which you were convicted.  If you’re complaining about an erroneous direction to the jury by the trial judge, make sure that the judge didn’t subsequently correct it, because that will almost certainly have the effect of negating completely your complaint.   

Within the written case, on an appeal against conviction, make sure that all the evidence relevant to the ground of appeal is identified.  That is, all the transcript references to that piece of evidence referrable to the ground of appeal.  Identify within the written case where it was that objection was taken by defence counsel.  Identify where it is within the transcript that there was discussion.  Identify where it is that you will find the ruling.  Briefly summarise the judge’s reasoning in his or her ruling.  Identify any relevant direction to the jury, and, as the Judicial Registrar indicated, make sure you work by reference to the right version of the transcript.  I did a case here recently where I thought I was, and as Justice Forrest said, “We have to apply the X plus one theorem”, because I was out by one page for every reference, so he had to add one.   

 

Get the grounds of appeal in the correct order.  Basically, as things happened in the trial.  Don’t complain about the prosecutor’s final address to the jury first when you’ve got a complaint about the admissibility of evidence.  That would obviously come first.  You’ve got to get things in the right order.  The last ground will almost invariably be, if this is a ground of appeal, that the verdict of guilty was unreasonable or can’t be supported having regard to the evidence.   

 

On a conviction appeal, you are going to have to deal with – it’s all very well to make out an error.  That’s the easy bit.  It has got to be of consequence.  You must deal with – in your written case, there must be submissions about how it is that this has caused a substantial miscarriage of justice.   

 

Now, that probably means you will be citing some passage, or passages, from the High Court decision of Baini1 back in 2012.  It should also mean that you will be citing some other cases and explaining how it is that the evidence was relevant, important, much made of it, and in the – whatever the – in the absence of the evidence it can’t be said that the conviction was inevitable.  You must deal with it.  It can’t be left for the oral submissions.   

 

Now, I’ve just found myself referring to Baini.  The citation of cases.  It is so tempting to do what everybody else does and to work by reference to the AustLII site and just give medium neutral citations.  Not good enough.  There are still plenty of judges in this court who expect authorised citations. So we start with the CLRs, the VRs, the New South Wales Law Reports.  We don’t cite the A Crim Rs if it’s in the VRs.   

 

The cases that you cite, you’ve got to know about them.  You must positively know what it is that the case decides and how it decides it, and the facts of the case.  Moving on from the drafting of a written case to the presentation of the oral argument before the court, you’ve got to demonstrate that you can – that you are authoritative with respect to the cases.  Judges ask questions, on occasions bordering on cross-examination, about what some case decides, and if they sense blood they will go for it on occasions.  So you’ve got to know the cases.   

Be selective.  We can all cite 20 cases that apply Verdins2 on a sentence appeal.  No one wants 20 cases.  Two or three at most.  If you’ve got a High Court case, cite that.  If the High Court case has been applied here in Victoria, cite one or two cases which apply it, and make sure that if there’s cases decided to the contrary, they, too, are cited and you deal with them in some way.   

 

Now, you don’t just cite cases.  You’ve got to cite which bits of the cases upon which you rely.  You’ve got to cite the correct paragraph numbers, making certain, of course, that you’re not relying on some passage in a judgment which has since been overruled, qualified, distinguished in some way.  And then the important cases from which you might read, they go into part A in your list of materials.  The other ones, part B.  Treat that bit seriously.  Some people just have a whole lot of cases cited in their written case.  They just put them all – cut and paste – into that part A or part B.  You should carefully decide what goes where.   

 

So let me just go back to that guiding principle, making it easy for judges, facilitating their performance of their function.  What you write should be such that when the judge reads it, and upon reading it, he or she knows what the case is about and what the issue is, or the issues are.  In other words, having read through the written case, ground by ground, more or less at a glance, the judge knows what the case is about and what has to be decided.   

 

And what aids the comprehension of the judge in that regard, and in then deciding the case, is to draft a written case, short sentences.  Simple language.  Short paragraphs.  If you can, one proposition, at most, per sentence.  It makes it so much easier.  Think of the judgments that you like to read when you read the cases as they come out.  Some judges write better than others.  The judges that you will like to read are those that write in that form.  Short sentences.  Simple language.  Short paragraphs, if possible, and one proposition, at most, per sentence.  Only – I’m repeating myself – limited citation of authority.   

 

Don’t overstate the proposition.  Don’t overstate your case.  When the case is presented orally in court and it turns out you’ve overstated your case by overstating the evidentiary foundation for it, overstating the error or errors made by the trial judge, your ground of appeal very quickly gets undermined.  The integrity and credibility of your argument is undermined.  That equates to, you lose the point.  So don’t overstate your case.   

 

Don’t omit stuff that’s relevant.  Get all the evidence that relates to the point, all the directions that relate to the point you’re running.  Don’t get caught out by leaving something out.  I’m not suggesting dishonesty, but you’ve got to be careful not to be negligent or inadvertent, or sloppy, and to leave something out, whether it’s a reference to a piece of evidence, whether it’s a reference to a concession made, whether it’s a reference to a direction given by the judge.  Don’t leave out something which has the effect of, when it’s made apparent, it has the effect of putting a different complexion on your point.  And by the way, if there’s some big problem or 

hurdle in your case, be upfront about it.  Disclose it and meet it head on, and explain why it is that, at the end of the day, it’s of no consequence.   

 

So go back to where I started.  It’s about common sense.  It’s about facilitating the resolution of the grounds of appeal, plus one other thing.  It’s – and if you’re drafting a written case for an applicant, it’s the first thing that each judge reads.  Don’t squander your opportunity to get on the front foot by drafting a document – or drafting a series of paragraphs that relate to a ground of appeal.  Don’t draft it in such a way that it is – it somehow or other – whatever the opposite to facilitates is – frustrates the judge in his or her determination of the ground of appeal.  You can be persuasive and get on the front foot and be in front when the ball is bounced at the start of the case.  That should be the guiding principle, apart from complying with the requirements of the practice note, and, Felicity, I think you’ve got some more requirements of the practice note for us. 

 

MS F. FOX:   Thank you.  Thanks, Paul.  I just really briefly wanted to finish up by noting three points I think I have in relation to when you are drafting a written case for the respondent rather than for the applicant.  Generally, it might be if you’ve been briefed by the Crown to draft their written case in response.  The first thing that I think is important to think about – and this is really when you’re drafting for the applicant as well – is think about whether or not you really need to rehash all of the facts.  You’re the respondent.  The applicant has prepared a written case.  Do you agree with the facts.?  If so, just say that.  “We accept the facts as set out at paragraphs 4 to 15 of the applicant’s written case, save for we note the following”, or identify which of those facts are in dispute.  There’s no need to have two versions of what is, in essence, an agreed position as to facts.   

 

The second thing I think that’s important is you need to identify clearly what the respondent’s reply is to each individual ground of appeal.  Paul has highlighted the importance of putting your proposition.  Making sure you make out your ground of appeal.  Identifying the evidence that is taken issue with in the applicant’s case.  Equally, that applies to the respondent’s case.  Is it that – are there points of principle that are conceded?  Are there factual matters that have been conceded?  Where does the actual dispute lie from the respondent’s position?   

 

And the third tip, I suppose, I have in relation to preparing a respondent’s case as compared to an applicant’s is in relation to sentence appeals.  We’ve noticed a lot in this court that often people rely, and applicants often rely, on what might colloquially be termed “comparable cases”, and if you are the respondent and the applicant has put in some cases that say, “hey, these people were getting much, much lower”, as the respondent, do you agree that those are comparable cases?  Are there facts that you want to distinguish or are there particular points of principle or aggravating features that you, as the respondent, want to identify?  Is it that you agree that they’re comparable, but for some other reason they’re not relevant to a ground of manifest excess?  Do you say that those cases, perhaps, are comparable and it’s for that reason that they’re not manifestly excessive?  Or is it that they’re just not comparable at all?  So, really – and are there further, then, cases that you also want to rely on?   

So I think the main takeaway, when you’ve been tasked with drafting a case for the respondent, is to do exactly that.  Respond to the case.  Don’t just simply copy and paste slabs of the judge’s transcript and say, “Well, the judge said this, so that’s why”.  Respond to the actual point of contention that has been raised by the applicant.  That’s all I really wanted to cover. 

 

MS McCANN:   Thank you, Felicity.  I’m going to take the opportunity of being the person who’s in front of the microphone by first of all thanking Paul and Felicity for their amazing presentations in – you’re being very practical, from my point of view, and I wanted to make a couple of comments, capture this audience with a question before I throw to some other people for questions which I understand are out there.  I was very pleased to hear a number of points about making not only the bench happy, but registry happy, and certainly a guidance in a sentence in a written case about the fact that there is further transcript that’s anticipated and there may be a revision is certainly of assistance to registry.  So thank you for that point, Felicity.   

 

There was an awful lot of emphasis from Paul about the role that common sense has to play in relation to written advocacy and written advocacy being the first bite at advocacy in an appellate matter, and that that – not squandering your primacy, getting on the front foot and also, importantly, stating matters in a simple way.  I suppose, looking around for a word about how – what it was to frustrate a judge’s task, Paul, I like to use the word “complexify” in relation to what happens there.   

 

I have a further comment in relation to oral advocacy and a bit of a plug for next week.  Paul was talking about being sure that you’re on top of your authorities, and that if you’re not across your case and the cases that you’re relying upon, the bench will sense blood and will go for you.  It is the case – and I think it’s consistent with what Justice Forrest said last week and what I anticipate will be said next week – is that, if you’re well-prepared, you can expect to be welcomed by this court.  But I think that it’s like any job that you undertake as an advocate that you need to put some time into the preparation that you do ahead of attending.  It’s frustrating for somebody who’s hearing your case to have spent a considerable amount of time reading the material that you’ve provided and considering what questions or issues arise that you want to ask questions about, and then finding that the people who appear before you don’t have answers for those.  So those were my comments.   

 

But I did have a question that arose from some of the things that were said last week, Paul, and I understand the simplicity and the logical sequence of putting together a written case that follows the course of a trial.  But one of the things that the presenters last week talked about was primacy in respect of your grounds of appeal and maybe leading with a killer point, if you had killer point, and I wondered if you had a comment about that.  I mean, I don’t understand you to have written a set of rules that must not be broken, but I wondered about your views in respect of that. 

 

MR HOLDENSON:   Yes.  There’s no doubt that certainly the grounds of appeal ought ordinarily follow the course of the trial.  But if there is one ground of appeal which has more merit than the others, it should certainly be elevated up the batting 

order, subject to one thing.  If you had grounds of appeal about admissibility of evidence, discharge of jury, even if you had a killer ground of appeal about some awful things said by the Crown Prosecutor in his or her final address to the jury, it’s a bit hard to start with that ground when you’ve got grounds complaining about admissibility of evidence, discharge of jury and other things that might well have happened well before you get to the final address to the jury.   

 

But it may be, of course, that there’s a way around that.  Your written case can be in the correct order, but it might be that you present your oral submissions in a different order.  That’s not the sort of thing that would upset most judges, particularly if it was apparent to everybody that there was more merit in the ground of appeal complaining about the prosecutor’s final address then there was about the admissibility of evidence.  So I suppose, like all rules, it’s there to be broken on occasion. 

 

MS McCANN:   Okay.  Thank you.  I have one question online that I need to answer because it was in respect of registry and when matters go in the queue to be listed, and it is the case that we would need the documents from both the applicant and respondent to consider a listing of something, and it’s otherwise quite premature and there’s a risk that the matter would lose its spot, so to speak.  But in relation to that, if I can say – and I haven’t been able to access the statistics online just now, but it’s my understanding that the median time from filing to a hearing of a matter at the moment in this court is about 12 months.   

 

So having answered that question, I understand that there may be some other questions from the floor or, indeed, it’s still available for people to ask questions in the chat, and I will distribute them according to who is most likely to be able to answer them.  Do we have any questions from the floor?  Mr Rofe.   

 

MR ROFE:   Thank you.  I just thought I would ask ..... senior counsel, and someone perhaps who is a bit more junior     

 

MS FOX:   A lot more junior.   

 

MR ROFE:   Working with colleagues, so that’s what we’re asking about, and – so say, from a senior perspective, what do you like a see in a junior in terms of getting the appeal up and running, and then someone who maybe junior, and a senior, speaking from that point of view in terms of working with each other and becoming a good team, so to speak. 

 

MR HOLDENSON:   There’s no doubt that it has got to be – to use your word – a team.  A team requires all members to do their bit.  If you ask the junior to identify all the passages in the transcript about topic X, that you get in a timely manner all the references in the transcript to topic X. Too often, you get an incomplete set of transcript references to topic X, or you don’t get it in a timely manner.  I’m old enough to say that things have changed over the last 30-odd years in that regard.  Mark Weinberg would say to me, “I want all the references to topic X and I want them tonight”.  This was back in the days before we had emails and so on.  He had 

them by 8.30 the next morning.  These days, things are different.  Maybe not everybody is as keen and as hungry as me – or as I was – but going back to the point, it has got to be a team.  Everybody has got to do their bit, and it’s amazing how often one plus one can, at the end of the day, create something much bigger than two.   

 

MS McCANN:   So I – apologies to people who are watching online.  I might just, you know, reveal the mystery of the question that was just asked.  I had forgotten that maybe you weren’t audible from the floor.  But Mr Rofe’s question was about working as a team, junior and senior counsel, given that we have in the courtroom today a senior counsel and junior counsel who have worked together, and some comments about how that can happen, and, I suppose, just some insights about how certainly Paul sees that occurring when he’s working with a junior.  And I hope that answer, which I found very valuable, having heard the question, has some value to people now that I’ve revealed the mystery of what he was talking to.  Are there any other questions from the floor.   

 

MS FOX:   I think there was – the second part of the question was about being a junior working with leaders. 

 

MS McCANN:   Okay.   

 

MS FOX:   One thing that I find – I’m not sure if – Paul might say this is hugely unhelpful, but I find when I’m drafting, as a junior, I will put more in.  I’m not trying to create the finished product.  I think it helps perhaps if your leader can see how it is that you’ve drafted something, why you thought something was important.  Certainly, I think it’s probably easier from a drafting perspective to take things out, as a leader, than craft them.  So I find I might sort of, you know, send a 15 page or something, and I will have little comments that might say, “I think – this is what I’m trying to get at” or “this particular piece of evidence” or even – I mean, I don’t think it’s particularly good drafting to have entire slabs of transcript in your written case, but, certainly, when I will send something to a leader, it might just be easier to have everything in one place.   

 

They can see everything in the document and then they can take out what they don’t need.  So I always, as a junior, try to put more in because I feel it’s much quicker for someone to say, “No, no, no, no, no, no, don’t need that”, than to them – have them then go and search for something else.  You just have to get quite good with dealing with red pen, but I am certainly well across that.  

 

MS McCANN:   Thank you, Felicity, and sorry, I missed the second part of the question as I was trying to manage the fact that I hadn’t actually revealed the whole of the question.  So we are at 6 o’clock, which is when we were scheduled to conclude, but there would be time for one more question, if there was one.   

 

MR N. HOWARD:   Yes.  I’ve got a question. 

 

MS McCANN:   Yes.  Thanks, Nick. 

MR HOWARD:   When you’re drafting a – an applicant’s written case to what extent at that stage do you deal with any anticipated counterargument that the Crown might have? 

 

MS McCANN:   Okay.  So Mr Howard’s question is when you’re at the point of drafting an applicant’s written case to what extent do you anticipate arguments that you might expect from the Crown in relation to those arguments.  

 

MR HOLDENSON:   If you anticipate them, deal with them by – and the means by which you would deal with them would be to dismiss them by reason of whatever it is – the – in the case.  It’s generally possible to anticipate most of the arguments that will be put by the respondent because, on the assumption that the point has been dealt with at the trial, the starting point for the respondent’s points will be what was put by the Crown at trial, and what was otherwise within the ruling or whatever it is about which you complain.  So I think you should anticipate – if you anticipate something, you deal with it in order to knock it on the head and get rid of it.  

 

MS McCANN:   Thank you.  Well, I might draw a line under it.  I would really like to thank Paul and Felicity and Ange for coming today, and I’ve found their – the material that has been presented to be very practical, and I gather from the questions in the room that there’s – that people have found it an opportunity to get further practical information from people who are working on a daily basis in relation to criminal appeals.  I know that we are online, but I would like to acknowledge people’s contribution in the usual way.  So thank you very much, and I would just – before we pull the pin on the link, I did want to remind people that this is the second in a series of three, and there will be another session next Thursday that will focus on oral advocacy.   

 

We’ve already had some really useful tips in relation to that this evening, but next week there will be a further panel of people who are involved in criminal appeals:  Amy Brennan, Theo Kassimatis and Jeremy McWilliams will be here to talk about how to bring your written case to the court and arguing it orally at that stage.  So thank you very much to everyone for coming and we hope to see you next week for the final session.   

 

UNIDENTIFIED MALE:   Thank you, everyone. 

 

MS FOX:   Thank you.   

 

 

 

MAXWELL P:   My job is the easy one, to welcome everybody who’s with us in the Green Court and others who are participating remotely.  Welcome to the third of our three training sessions for rising criminal appeal barristers.  It’s a great pleasure to, well, be able to have this series and this third of the three, in particular, and I want to acknowledge again the work of Deirdre McCann, our judicial registrar, who initiated this program and will be taking over it from me in a moment.   

 

I also would like to acknowledge the traditional owners of the land on which we meet, the Wurundjeri People of the Kulin Nation, who have occupied this land since time immemorial, and we pay our respects to their elders, past and present.  You’ve got a star-studded line-up.  In my many years in the court, I’ve had the pleasure of having, well, of course, Justice Beach by my side, but each of these three counsel in numerous appeals and I can tell you from my own experience you couldn’t be hearing from better people.  I’ll hand over to Deirdre to do the introductions. 

 

MS McCANN:   Thank you, Chris.  Because this is our last – the last of three sessions on appellate practice, criminal appellate practice, I – and – so before I introduced the star-studded panel, I just wanted to say something about all of the speakers that you’ve heard from across the three of the sessions and the intent behind what we’ve done here, or we hoped to achieve, with these three sessions about criminal appeals.  It really was our objective to bring together a wealth of knowledge on criminal appeals, as well as a diverse range of experience and perspectives, and I think that anyone who’s tuned into the previous sessions will see that we’ve gone some way to achieving that because, at the end of the day, there are as many different approaches and backgrounds as there are practitioners and there are as many styles of advocacy as there are advocates.   

 

So our objective in bringing together a range of practitioners from a range of backgrounds is to provide a range of information from which it’s hoped that you will find some assistance for wherever you are in your career as a criminal appellate practitioner.  So without further ado, I’m going to introduce this – the panel that we have here today and, of course, directly to my left is Justice Beach, who his Honour had a wide general practice at the bar for 24 years before being appointed to the trial division in 2008, and he sat in all the divisions until he was appointed to the Court of Appeal in 2013, where he’s been since.   

 

Next to Justice Beach, we have Theo Kassimatis QC.  Theo graduated from Melbourne University in 1999 and was admitted to practice in 2001, and for a period of two years after that he was an associate to Justice Callaway of the Court of Appeal.  He signed the Roll of Counsel in November 2003 before being appointed Silk in 2016, and Theo has prepared a paper that it’s hoped you will have already, or will be coming to you shortly, in relation to the topic today, which is oral advocacy.   

 

Next to Theo is Catherine Boston.  Catherine completed her articles at the Office of Public Prosecutions in 2006 and was admitted to practice in 2007.  After completing the BCL at Oxford and an associateship with Justice Whelan in the trial division 

in the Supreme Court, she was called to the Bar in 2010.  She read with Michael Croucher and has since appeared in the Court of Appeal many times as defence counsel in conviction and sentence appeals.   

 

Last to my left is Liz Ruddle SC.  Liz joined the Victorian Bar in 2005 where she gained experience in commercial regulatory and criminal law practice, but, notably, she has extensive experience in the Court of Appeal and is a recognised leader in matters of evidence, criminal law, property and criminal asset confiscation.  She was appointed senior counsel in 2020 and is currently a senior Crown prosecutor.   

 

To my right is Luke Muller, and Luke is currently the program manager of appeals and strategic litigation at VLA, and prior to that he was a principal lawyer at the independent broad-based Anti-Corruption Commission, and prior to that a senior prosecutor in the New South Wales Director of Public Prosecutions.  I do want to make special mention about Luke and Liz as they’ve both substituted in today as some of our panel have become unwell, so I’m very grateful to them for being available and being available at short notice. 

 

I did, also, just want to recognise some other people who are attending here in person, in particular, the executive director of criminal law services at VLA, Dan Nicholson, and I did want to acknowledge that because his Honour the President has referred to my initiative in setting up this session, but the kernel for this series was very much supported by Dan Nicholson when I was working at VLA, and so I wanted to acknowledge that before we start.  But without further ado, I want to hand over to these people because they’re who you came to hear, and over to you, Luke. 

 

MR MULLER:   Thanks, Deirdre.  We will talk about nerves a bit later on in the session, but at the moment I’m feeling them, and I’m in the Green Court, so I’ll get some expert advice from the panel shortly about dealing with those, having been rung in to moderate the session this morning at about 10 o’clock.  As Deirdre mentioned, Theo prepared a paper that underpins tonight’s session and, if I may say so, it was a very helpful paper and very informative, and really aimed at the target audience for today’s session and we’ll probably throw to Theo to start a discussion in that paper.  But, beforehand, I’m receiving text messages to confirm that those following along at home should have received it in their inbox, so you can follow the paper if you go to your inbox now.  Those in the audience will have to wait to read it when they get home.  So if I could throw to you, Theo, to start with. 

 

MR KASSIMATIS:   Thanks.  I was asked to put together something earlier in the week and found myself at a loss to put anything down on paper, so what I did was I found something Justice Kirby wrote and shamelessly plagiarised it.  In 1995, Justice Kirby, as he then was, put together a list of 10 rules for appellate advocacy, which are as important today as they were then.  The focus of today’s discussion is more narrow.  We’re concerned really with only a part of that appellate advocacy theme, and that’s oral advocacy, so I’ve tried to limit what I’ve said in the paper to tips on what to do and what not to do when you’re on your feet, and then I called it the eight canons of oral advocacy.  Shameless.  

So just going through the 10 rules that Justice Kirby set out, his were – know the court, know the law, use your opening to effect, conceptualise the case and both for yourself and for the court, watch the bench, give priority to substance over form, cite authority with care, be candid, be honest, demonstrate courage, and explain the principle or policy which you rely on the most, explain it for the court.  I’ve put to one side written advocacy.  As I understand it, that was dealt with in another session.  And I’ve put aside questions of preparation and the like, which are obviously fundamental, but I’ve focused instead on, as I say, what happens when you get to your feet.   

 

So the eight canons are – know the court.  It sounds a bit silly, but it’s really important.  On the afternoon before the day that you appear in court, the registry will publish who the judges are on your court.  The more you appear in the court, the more you get to know the judges.  But even if you don’t know them, even if it’s your first time, make sure you see and you take note of who the judges are the next day.  They think differently, they behave differently, they reason differently.   

 

Two, open effectively, so don’t just get to your feet and read from your written case or written submissions.  By the time you get to your feet, you will have exchanged written submissions with your opponent.  You’ll know what they have to say.  You’ll know that the court has received your submissions and their submissions.  They will have had the opportunity to get on top of the record from the court below.  So your opening is an opportunity for you to be focused and to, as best you can, impress upon the court as early as possible in a way that advantages your client. 

 

Three, develop your argument syllogistically, which is just a sort of highfalutin way of saying be logical.  Judges pride themselves on their capacity to reason and upon their intellectual rigour.  You need to appeal to that.  Figure out what the steps are that enable you to get from A to B to C and then just take the court through it.  It’s like a straight line.  The shortest distance between two points is a straight line.   

 

Four, know the difference between a good and a bad argument.  That’s probably the hardest thing and the thing that you develop slowly over time with experience.  Some people have that kind of judgment early in their careers.  Others take some time.  But you’ve got to be able to cut away a bad argument so as to make room for good arguments, and you’ve got to be able to recognise when it is that you might be presenting an argument that won’t find favour, not just isn’t finding favour, but won’t find favour.  You’ve got to dump it and move on to something that might be successful.   

 

Read the room.  Watch the judges, watch your opponent, listen to the questions they ask.  Quite often, a judge’s mindset will be betrayed by a single question, and you need to be able to respond to that.  Be scrupulous with how you assess your opponent’s performance.  If they’re going well, make sure that – make sure you acknowledge that and then find a way around it.  Reading the room is a bit like good and bad arguments.  It’s hard to do.  For some people it’s really easy, but for most people it’s hard to do, but it is maybe the most important part of oral advocacy.   

Answer the question.  That isn’t hard to do, but I’m surprised at how difficult it is for some people to do.  It should be easy:  just answer the question.  When a judge asks you a question, answer the question even if it’s bad, even if the answer for you is bad.  It’s better to acknowledge the weakness, work your way around it and move on.  Prevarication usually breeds suspicion.  If you ask a question and the impression is from the advocate that they don’t want to answer it, the first thing you do is wonder why.  It’s the last thing you want. 

 

Okay.  Brevity, clarity, courtesy, courage.  It really says it all.  I’ve elaborated on each in the paper, but there’s not much more to say.  Be brief, be clear, don’t be discourteous, however frustrating it might get, and be brave.  You’re not there to allow yourself to be bullied.  Remain calm and present your client’s case.  Be yourself.  Don’t try to be anyone else.  It really is awful to watch an advocate who’s very able try to be someone they’re not.  It’s like trying to fit into a poorly sized suit.  It’s like watching someone run their fingernails down a blackboard.  It’s awful.  So just be yourself, be natural.  There are as many styles as there are barristers. 

 

And the last one is refute your opponent’s case, which is pretty boring.  It just means if you’re an appellant, then neither at the end nor at the beginning, but somewhere in the middle, find a way to pre-emptively undermine or refute your opponent’s case.  Make sure that you’ve done that before he or she gets to his or her feet.  If you’re a respondent, figure out where in your own advocacy of your positive case how and where it is that you’ll have most effect in refuting the appellant’s case and put it there.  If you’re the appellant and you decide to reply – and don’t just reply just because you can.  Reply because the opportunity arises.  Make it short, make it succinct, make it punchy and, ideally, what it should amount to is one last devastating blow to the respondent’s case.  So they’re the eight canons, unless someone else can say something. 

 

MS BOSTON:   Well, I wholeheartedly endorse the Kassimatis canons.  I would say that in order to comply with those canons, like many other types of appearances that we carry out as barristers, preparation is key, like with everything else, and you will have started thinking about how you’re going to present your case orally all the way back when drafting your written case.  It will factor in, for example, the order of your grounds of appeal.  I would normally be thinking how would I like to present these grounds of appeal orally, and that might factor into the order.  You will have already planned which cases you want to rely upon in your oral – at the oral hearing because you will have had to put them in part A of your list of authorities, for example.   

 

You will have researched your judges in terms of if you haven’t appeared in the court before, you’ll only find out, as Theo said, at 4 o’clock the night before, or if you’re lucky you’ve got a Monday hearing so you’ve had the weekend to find out more about them.  But that will involve calling people, calling colleagues and asking questions about, “Well, does this – do these judges have much of a background in crime?”  If not, there may be more of a need to go through the principles in detail, for example, and it’s very important to understand the judges you’re appearing before.  It will also affect the extent to which you’re given free rein to make an oral submission 

without much interruption by way of questions, or there are some judges that ask many more questions, and so it’s good to be prepared for that beforehand so as not to be thrown off your game, so to speak.  So I would only add that, really, that in order to be able to comply with those principles it is important to have prepared.   

 

There’s also quite a lag between drafting your written case and then, ultimately, presenting it in court.  It could be 12 or 18 months, even, in some cases.  So it’s always really important to go back and see whether there have been any new cases that have arisen since you’ve drafted your written case.  The easiest way to start is, obviously, to look at the Judicial College website and check whether there’s been anything important come up and it would be your first start, but just make sure that nothing significant has come up in the meantime.  So I suppose that’s what I would add in terms of preparation. 

 

MR MULLER:   I should mention, also, the panel discussion will be interactive, so if there’s questions out in the internet that want to come through, you can put those in the chat and I’m happy to ask them.  Circling back to probably the first one, knowing the court, and this is bringing the other panel members in.  Theo gave an example of, you know, the difference between a judge that’s a black-letter lawyer and a judge that has a fondness for policy, which I quite liked the example.  Could you talk about how appearing before a black-letter lawyer might be different to an appearance before a judge with a fondness for policy? 

 

MR KASSIMATIS:   Me again? 

 

MR MULLER:   Anyone that wants to. 

 

MS RUDDLE:   I can talk about that.  I think you just have to make sure that your arguments are tailored, but the reality is you’re not going to get three black-letter lawyers on a bench     

 

MR MULLER:   Exactly. 

 

MS RUDDLE:      or three policy-based lawyers.  So you’re going to need to have all of your bases covered and, as Cath said, it really comes down to preparation and it feeds into the point that Theo made about reading the room.  Sometimes you can be sort of making submissions around a policy point or a general deterrence or something like that and you can see it’s not finding favour and might think, “Okay.  Well, let’s go back to the wording of that section”, and you can see them all, “Ooh, yes”, and they all open it.  So I think that that’s really important, and it’s interesting because I always say to people who haven’t been – or haven’t done a lot of appellate advocacy that it’s – the closest other kind of advocacy is doing a plea because you’re really engaging in a discussion and you’re trying to – there’s a lot of law that everybody knows, but you’re trying to engage in a discussion where you convince the – in a plea for one person, but in this case three people of a certain position.  And so it’s not really any different except that there’s three of them and they’ve read a lot of cases. 

MR KASSIMATIS:   I should say I don’t know a single judge that would happily fit into either a black-letter category or a more of policy. 

 

BEACH J:   I’m trying to think what I am. 

 

MS McCANN:   Where are you? 

 

MR KASSIMATIS:   Yes, yes. 

 

MR MULLER:   That was my next question. 

 

MS McCANN:   The purpose is general.  It’s not     

 

MR MULLER:   I’m way ahead of you.   

 

MR KASSIMATIS:   All judges will say, “I am a black-letter lawyer and, when appropriate, I look at policy”.  They weren’t meant to be mutually exclusive, but the reality is a judge’s history will to some extent betray – there’s shades of grey.  So I guess the answer for the advocate is, don’t prepare as though you’re addressing a judge who’s one or the other.  Your arguments really should be – should appeal to all of them.  But you do know – you do need to know that there are shades of grey from one judge to the next.  It was perhaps an unwise dichotomy.  I should have used a different example, but there you go. 

 

MS RUDDLE:   Well, could I just add a very beginner’s tip on knowing your bench.  It’s very important, as people say, to, you know, do a bit of research about your judges, but I don’t think it makes, frankly, a great deal of difference, especially when you only find out the night before and you might not have the experience of knowing the individual preferences of those judges.  But the first time I came to the Court of Appeal, I looked at who was on the list and I did some research.  What I hadn’t worked out was what they all looked like and there’s three of them, and in my case they were all senior men, and so then I didn’t know what to call any of them.  So it’s a very wise tip to work out the order in which they’re going to sit because they sit in seniority order, so you know which one is which, and the first few years I used to write on the piece of paper, “President in the middle, Beach, Kaye, yes,” so then I would know because I didn’t know these eminent people and I didn’t want to give them the wrong name. 

 

MS BOSTON:   I did the same thing, so you’re not alone there. 

 

MS RUDDLE:   Yes.  It’s a mistake you make once when you’ve – “As your Honour just mentioned”.  So, yes, that’s my tip for young players. 

 

MR MULLER:   So we’re talking there about having a confident start to your appearance and the difference that can make.  So on an effective opening, David, what are you looking for?  Having read the written case, what are you looking searching for in the oral advocacy in that that opening bit? 

BEACH J:   I’m looking at the start – you don’t want me thinking, “Why is this person saying this at me?”  I’m looking at the start to be told what the advocate is going to do.  It’s a powerful way of opening.  “Your Honour, I’m going to do four things this morning.  On ground 1, I’m sorry I’m going to have to take you to a number of passages in the transcript to show how it is we say the case was conducted below”, and then I’m immediately at ease when they start reading transcript at me.  I know why it’s being done.  Whereas the absolute opposite and the worst thing you can do is get up and just start reading transcript at me, and I’m saying, “What ground does this go to?  Why is it being done?”   

 

So a roadmap:  tell me what you’re going to do and then do exactly what you told me you were going to do.  That is very powerful advocacy.  As Catherine says, you wrote your written case 12 months or 18 months before, or somebody else wrote it.  As part of your preparation, you will have reviewed it in the days leading up to the appeal and you’ll say to yourself, “I’m not sure about that point”.  If you’re not sure about that point, cull it, get rid of it now.  Don’t let it infect what is your good point.  So as part of the opening of your submissions, you might say, “Your Honour, I’m going to do four things.  First of all, I’m going to abandon ground 3”, or “I’m going to refine ground 2.  It’s expressed very widely, but our real point is ..... ”, and you’ve immediately got the bench listening and saying, “What’s – this is really good”.   

 

The exact opposite in a common law field – and no criminal barristers do this.  It’s a failing of some common law barristers is that they go and state a ground of appeal that says something like, “The verdict of the evidence was wrong in fact and law and/or against the evidence and/or the weight of the evidence and/or, and/or, and/or, and/or”.  Good advocacy, of course, starts with really targeted grounds of appeal, targeted precisely, and the less the better.  So I think it was Michael McHugh – Theo and I were talking about the Michael McHugh’s paper written in the New South Wales Bar News many years ago now.  It was Michael McHugh who said he used to pick up a notice of appeal and, if it had 27 grounds, he immediately thought, “There’s not much in this case”, but if it had one or two really targeted, specific grounds, he said, “There’ll be something in this case”.   

 

You’re immediately – the mindset of the judge.  So and the oral advocacy has to complement – I mean, as Theo said, it’s not our job tonight to talk about written advocacy, but it all starts with the written advocacy.  The written advocacy starts with the grounds of appeal tightly drawn, precise, as few as possible, then a written case which properly supports it, and then a prepared barrister who gets up and culls or refines it even further.   

 

The other thing I’m looking for is the barristers should know the facts better than I know them.  They might not know the law – but probably do in most cases – better than I do, but they must know the facts better than I do, and you come into some appeals with multiple lever-arched folders, and I’ve got questions.  “Where in the trial is the evidence of X?”  This used to be a favourite question of Ormiston, Tadgell.  I used to get tortured by these guys.   

MR KASSIMATIS:   “Where do I find that?” 

 

BEACH J:   Yes, yes, exactly.  We don’t seem to do it as much today.  Mainly that’s because     

 

MS RUDDLE:   I’m not sure about that, Judge. 

 

BEACH J:   Okay.  Maybe I’m not on the receiving end. 

 

MS RUDDLE:   It doesn’t feel the same when it’s coming in that direction. 

 

BEACH J:   Fair enough.  It’s a fair point.  But, you know, many of your problems will – if you know the facts better than the bench, many of your problems will evaporate.  And knowing the facts and, as Theo says, not spinning them, giving them straight – this leads me to another topic.  Somewhere we’re going to talk about what the judges – how do they prepare for the appeal, and I have to say we all do it differently, but I pick up an appeal book and I want to know immediately what the case is about and what the issue is, so I scratch around.  What do I read first?  It’s different in every case.  In civil cases, there’s an agreed summary that the parties have put in.   

 

I often go to that, but within a minute of reading the first page I see it’s not helping me, so I’ll go to the judgment or I’ll go to – you’d want your written case to be read first.  You always want your written case read first.  A really good technique – Michael Wheelahan used to do this in common law appeals for the respondent – is he would put an overview up the front of his written case.  “The trial below was about X.  The appellant complains about the following issue in substance here.  The answer to it is Y”.  And you’ve immediately – so I would always read his written case first.  Equally, I read the written case – I skip to the end of the written cases and see who signed them.  It’s a terrible thing to say, but, as Theo says, you know, if you don’t – if you get a reputation for – I won’t call it “a lack of honesty”, but spinning the facts in a way that doesn’t turn out to be entirely accurate, I’m not going to read your written case first.  I’m going to look at it and say, “These facts will be spun in the direction of this client”.  But there are plenty of barristers who I look at – see the signature and say, “I’m going to read that one because the facts will be absolutely spot on.”  So that barrister gets the advantage of I’m reading his or her submissions first off and they’re the first things to influence me. 

 

MR MULLER:   That’s a good point to just ask a question from the internet world that has come in because you’re talking about whether you read the written case first or go yourself to the evidence, and a question from the audience is – and, hopefully, you can change their mind that there is importance to this:   

 

Is there really much point to oral advocacy these days or have you actually made up your mind based on the written material? 

BEACH J:   There’s a lot of point to oral advocacy.  We change our minds all the time.  Of course, we come in with a preliminary view having read the core documents and the arguments and we think – I mean, we talk amongst ourselves before we come into court and use phrases like, “I don’t think there’s much in ground 1.”  It doesn’t mean that ground 1 won’t succeed.  It’s just at the moment I don’t think there’s much in ground 1.  But our minds are changed.   

 

I will give one story just because it amuses me.  I was sitting with Geoff Nettle some years ago and Pat Tehan was for the applicant in a sentence appeal and we had written a draft which dismissed the sentence appeal and, as we listened to the oral advocacy, we – I became more and more uncomfortable that we were entirely wrong, and we went out the back after the argument was over and Geoff said, “I think we’re wrong.”  I said, “Yes, I think we’re wrong, too.”  I said, “Why don’t we go back in and just reserve and I will rewrite the draft.”  And he said, “No, no, no.  We will go back in, just – put a ‘not’ there, cross out this.  We will go back in and we will” – so I do that.   

 

But, of course, as you would pick from reading judgments, judgments – you start to read them, you can tell which way they’re going.  So I’m reading this judgment which is really supposed to say, “appeal dismissed”, but it’s going to actually say, “appeal allowed”, and we get to it, and so the appeal will be allowed, and Geoff pronounces the orders and asks for pre-sentence detention, and Pat Tehan says, “I don’t know.  I thought I was going to lose.”   

 

Yes.  Look, there is a lot of point in oral advocacy, provided it’s not of the, “Let’s read out the written case,” and, you know, it’s – oral advocacy targets – brings together – I mean, the Bench doesn’t have the understanding of the case that you have.  I mean, you’ve prepared, you’ve lived with it.  If you were in the trial, you’ve lived with it even more.  Generally speaking, we read it three days ago or we read it in the last three days, we’ve got some views, we’ve read the core documents.  We haven’t read everything.  Here’s your opportunity to really bring it together and have us – the lightbulb moment, say, “No.  It’s – my preliminary view is not right.” 

 

UNIDENTIFIED FEMALE:   Can I just ask a question in this vein?  There ..... practice of providing an outline of oral submissions.  Are you a fan? 

 

BEACH J:   I can be a fan.  Probably not needed in criminal cases.  I’m thinking more in civil cases where there’s an appeal, a cross-appeal and cross-notices of contention in respect of each person’s appeal and cross-appeal and, often with interrelated – all of the issues are interrelated and then a set of propositions.  “Your Honour, these appeals and cross-appeals and notices of contention boil down to seven propositions which the court has to decide.  They are these and we win if we succeed on propositions 1 and 2 and any of 3 to 5 and 6,” and that’s very, very useful, but, I mean, your standard sentence appeal, I couldn’t – I wouldn’t understand why anyone would put up a further document.  It’s in your written case.  What more do you need to do?  It’s a question of common sense.  If you, as the barrister, think, “Gee, this is a bit more complex and it’s not easy to follow the threads of all of this.   

I should put up a one or two-page document which pulls it altogether,” then do it.  But, if you don’t think that, don’t do it. 

 

MR KASSIMATIS:   Not a fan in crime.  I mean, the written case is 10 pages or less.  The argumentative part of will be four or five pages in length.  I mean, do we really need to reduce that to another one or two-page document?   

 

BEACH J:   Yes.  I think that’s right. 

 

MR KASSIMATIS:   It’s just too much work.  I mean, you know, that’s what you’re on your feet for.  If you want to emphasise a certain part of your written case and draw it all together, make sure it’s persuasive.  That’s why you go to court. 

 

MR MULLER:   And just in case the microphone didn’t pick up the question from the audience, it was whether anyone was a fan of the written outline of oral submissions in addition to the written case. 

 

MS BOSTON:   I’ve never done it.  I agree with Theo.  The only circumstances in which I’ve handed up a document has been where there’s a need to, for example, set out transcript references because there might have been changes in transcript numbering or I might be going to a number of different passages in the transcript and just form a view that it’s going to be easier for everybody to follow what I’m doing if I provide a sort of one-page     

 

BEACH J:   It makes the judge’s life easy. 

 

MS BOSTON:   That’s it.  Yes. 

 

BEACH J:   Yes. 

 

MS BOSTON:   But, if you’re doing to do that, you should always give it to your opponent     

 

BEACH J:   Yes. 

 

MS BOSTON:      beforehand. 

 

MS RUDDLE:   Yes.  Anything that makes the judge’s life easier, is – and I’ve done written outlines, but, like his Honour said, only in civil matters or where there’s quite a complex statutory structure that I’ve had to talk the court through, but, yes, in your average criminal case, given – particularly in an unsafe and unsatisfactory, you’re going to have a schedule of evidence, as well as your written case.  There’s already a lot of paperwork.  You know, let’s leave us some work to do at the Bar table. 

 

BEACH J:   There might be instances – ..... sentences being imposed at different points in time, it would be 

MS RUDDLE:   Chronology. 

 

BEACH J:      a chronology is just – yes. 

 

MR KASSIMATIS:   Yes. 

 

MS RUDDLE:   Yes.  There’s an exception to every rule, but it certainly isn’t something I would be doing on a routine basis.  It’s all about whether or not you think that you will help the court understand your argument without undermining the oral advocacy, in my view. 

 

MR MULLER:   Another question: 

 

What do you do if, during your arguments –  

 

this is probably for the other end of this table –  

 

you realised you shouldn’t run a ground or a different ground should be added? 

 

MS BOSTON:   Don’t do it.  The morning of, if you can – well, I have done it.  Sometimes it has been received absolutely fine.  Other times I’ve been on the receiving end of some unhappy judges’ comments.  Really, you need to be thinking about this before the few days before your oral hearing and, wherever possible, avoid adding or abandoning a ground in the running.  That said, occasionally it happens and, if it becomes apparent you do need to add a ground of appeal, you’ve got to go to – back to the Kassimatis canon of being courageous, even if it is going to mean that you are not in – the judges aren’t particularly happy with you.  Sometimes, it is necessary to add grounds in the running. 

 

MR KASSIMATIS:   No.  That – no judge wants to prepare a certain way and they have the appeal, sort of, go a different way.  But, if the ground is there, and it’s in the interests of your client, then you’ve got to do it.  Do it really apologetically.  Say sorry a lot.  In one case, I finished my submissions and my opponent was on his feet and Justice Redlich and Justice Nettle were listening to the response and then Justice Redlich said something which at the time I took to be the foundation for a ground that wasn’t there.  So I sought leave to add a ground in reply.  It has only ever happened once.  And Justice Redlich – no, Justice Nettle turned to Justice Redlich and said, “I don’t think I’ve ever seen this done.”  And Redlich said, “I’m not sure that’s a good enough reason not to do it.”   

 

But, look, that’s why it’s really important to look at the case when you first get it, when you draft your written case and your grounds.  But, sometimes, it’s unavoidable and, again, it boils down to judgment.  When it appears to you that there should be another ground pleaded, you need to decide whether going down that path is going to do your client’s interests – ultimately, whether it’s going to be good for 

them or not.  If you think it’s a ripper ground, you’ve got to run with it.  If you’re lukewarm about it, probably best not to do it. 

 

MS RUDDLE:   Yes.  Ultimately, the real question is, you know, will your client benefit from it, but it’s not unexpected for things to change in the running and it’s not uncommon that matters would be adjourned or people get leave to add grounds.  So we’ve all been on the receiving end of unhappy judges, but judges, ultimately, are interested in doing justice between the parties.  I had a case recently where it went for a number of days because there were a number of different related matters and, over the course of the argument, it did – our position did change and I sort of had to withdraw one of the concessions that I had made in the written case and I had to do so pretty apologetically, but it became apparent that I had sort of really misunderstood something in the written case and the judges understood and my opponent understood and it was all fine and dandy because we had a couple of days.  But, I mean, in the end, if it’s the right call, you have to – yes, be courageous. 

 

MR MULLER:   That has kind of picked up, Liz, the second part of that question is what the Crown considers when that situation arises. 

 

MS RUDDLE:   Well, I mean, the Crown is always interested in justice between the parties.  I recently had a case where the court raised with the appellant that they thought the grounds were incompetent, and I still – I understood the basic structure of their argument and so, of course, we didn’t oppose an adjournment to allow them to reframe it.  Often, when I get a written case and there is a significant problem with the ground, I will flag that in the response but invite the applicant to reframe it so it isn’t incompetent or it does identify.  So we often get, you know, “total effective sentence was manifestly excessive”.  “Okay, well, that’s not actually a ground of appeal, so go away and fix it.”  So, I mean, obviously, the – you know, we have obligations to – and the victim’s charter to make sure that, you know, things are dealt with promptly, but if you’ve got a solid reason and a good argument, you’re not going to get, hopefully, unnecessary pushback from the Crown. 

 

MR MULLER:   A couple more questions have come in from the online audience.  So it’s a bit of a change in direction, but maybe, David, you can give us some words of wisdom to this one and the rest of the panel your techniques.  A question is: 

 

What techniques does the panel consider when managing nerves for a oral hearing? 

 

So, if there’s     

 

BEACH J:   Am I managing my nerves or     

 

MR MULLER:   I’m sure at this point you’re not nervous, but from your time? 

 

BEACH J:   Yes.  No.  Preparation is a great cure for nerves.  It really is.  Because everyone stands up at the start of their presentation, address, whatever, being  

nervous, and getting the first question from the Bench and realising that the preparation has paid off and you can answer the question I used to find calmed me down a lot and so you – if you – you can’t stop being nervous and, indeed, the best barristers are nervous.  Neil McPhee used to say, “If you’re not nervous, you should give the game away.”  But there is a real – I used to find a real sense of relaxing into something, once you get a start and see that your arguments are being received or you’re able to answer a question and the Bench is starting to go with you.  That’s – really, preparation is my answer to it. 

 

MR KASSIMATIS:   The first question is the best cure for nerves.   

 

BEACH J:   Yes. 

 

MR KASSIMATIS:   I hate standing at the lectern and just talking.  As soon as the first one or two questions arrive, you’re off and running. 

 

BEACH J:   Yes. 

 

MS BOSTON:   And it’s good to workshop.  Really, you should have anticipated most of the questions that you’re asked and, you know, if you – if I haven’t anticipated a question, I will have a bit of a think to myself afterwards, “What did I miss?” because that is very important and workshop with your colleagues if you don’t have a leader or a junior in the particular case or your instructing solicitor.  Workshop the questions and talk them through so that you are better able to answer them on the spot.  

 

Occasionally, a question – well, it isn’t occasionally, but, when a question comes up which you haven’t anticipated, as Theo said, do your best to answer it.  It’s really important to answer the question.  Occasionally, you won’t know the answer to the question, and don’t bluff if that happens.  Be upfront about the fact that you don’t know something and, if it’s important, seek leave to file a short written submission in relation to that matter after the oral hearing.   

 

But, in terms of nerves, really it does come down to preparation.  I always have quite comprehensive notes that I can fall back on if necessary, but, you know, it does get easier.  You just stress about different things, I think, the more appearances you have in the court.  But I think one thing that people get particularly nervous about in this court is the fact that there are three judges – up to three judges, usually, asking you questions, but, if you’re prepared, it’s absolutely fine.  And I see questions as actually advantageous.  I agree with Theo.  I don’t like it when I’m not asked questions because the questions indicate to you what the judge is thinking, what they’re concerned by.  It gives you an opportunity to respond to those concerns. 

 

MS RUDDLE:   Just – not to sound like a broken record, but absolutely preparation is key.  I don’t necessarily always have comprehensive notes of what I’m going to say, but I certainly did when I started, but particularly that opening that his Honour was talking about, I will have that scripted – even to this day, I have that scripted 

word for word and I can – I don’t have it – I will have it written down, but I don’t look at it, because I have memorised that.  I know exactly what I am going to say and then the rest of it is usually a bit more free-flowing, but, certainly, from when I first started, I had a pretty detailed set of notes that really – often I didn’t use, but it was a really good safety blanket and helped calm my nerves.   

 

The other thing is I always got to court quite a good way in advance because that whole stressing to get down to court or you realise you’ve left something and you don’t have enough time to run back to chambers or you get stuck in a queue because there’s 20 family members coming through.  You’re already on edge.  So get yourself there, get your notes sorted out, get your glass of water poured, check with the tippy who the judges are, you know, all of those sorts of things.  You will feel a lot better.   

 

The other thing is, if you are asked a question and it is hard – as Cath said, don’t bluff your way through it.  But take a big deep breath and have a think about, “Well, do I know the answer?”  Because, actually, a lot of the time the answer will come to you.  I recall when I was very junior doing something in – actually in the High Court and the judge asked me a question and I had no idea of the answer and I took what seemed to me to be the world’s longest breath and I was sure I had stood there mute for five minutes and my leader tells me it was approximately 10 seconds and then I realised I did know the answer and it was okay, but a big deep breath is – the silence always seems longer than it seems to them up there.  So don’t get too stressed about taking your time. 

 

MAXWELL P:   I’m just going to make an unprompted contribution     

 

MS RUDDLE:   A cameo. 

 

MAXWELL P:   No.  To say to the audience how wise the remarks you’ve heard from these barristers are.  They’ve said a number of things that I would have wanted to say myself, but the – for example, just what Liz said, take your time to answer.  I always think of exchanges with counsel in appeal as a mutual exploration.  We are wanting to try and nut out the answer with your help and, as several of you have said, a question is a good sign.  It’s not anyone trying to catch you out.  It’s, “Hang on a minute.  Just – can you explain that a bit more or what about so and so or how does that fit with this part of the argument?”  That’s all – for me, anyway, and I think for most of us, it’s about making sense of how this fits together, how we should accommodate your argument within some kind of framework of legal principle.   

 

Equally, I think, as has already been said, if you don’t know the answer, it’s – and a bit of reflection doesn’t help, say, “Look, I’m sorry.  I don’t know, your Honours.”  For me, that is a great tick for you because you’ve understood that the only kind of discourse we can have is a straight one where, as Theo said, you answer a question, you don’t try and dodge it because there’s no point in dodging it.  If the answer is uncomfortable, you need to give it, but, equally, if you don’t know, say that.  Very few of us have all of the facts or law at our fingertips all the time. 

And the other thing I wanted to say about nerves is I think on the Bench we’re well aware of that and the less experienced the practitioner, the more conscious we are of that and I’m particularly saying that because this is an audience of people who are getting started or are wanting to get started and we’ve all been at the Bar table, as David Beach said, and I was nervous whenever I appeared in court and I came to the Court of Appeal right up to the time I was appointed and felt nervous.  It’s natural, but I would have thought this is a court will be conscious of especially the early nerves.  With more experienced counsel, we – well, we know that they a ready for the cut and thrust and we might ask a question earlier or two or three more questions. 

 

MS RUDDLE:   I don’t get the elephant stamps I used to get when I was a junior.  It’s very disappointing.   

 

MAXWELL P:   Two last comments before I step back into the audience.  I think, as Theo and Catherine Boston were saying, if you come up with a better idea on the morning or in the running, you’re obliged to say it.  It’s just the discharge of your duty.  And, again, sometimes if a whole series of grounds are abandoned where that should have happened a few days earlier, well, that might be frustrating to the Bench, but I’m not surprised when someone says, “Look, preparing this overnight, I’ve realised that there’s a better way of expressing ground 1,” you know, we can accommodate that and I, again, would want to applaud counsel for giving it that – for the thinking and, of course, if you need to add a ground, you’ve got to add it and the Crown will always, and we will always, give you time to file a new document.  So – because, like the parties, we want to do justice between the parties in the courtroom.  We don’t want to say, “Well, sorry.  That’s outside the rules.  We don’t want to hear from you.”   

 

And the last thing is your touchstone in your opening remarks should be simplicity.  Give us in the first five minutes a simple account of your best point or your best points, “This is essentially about the issue of remorse and rehabilitation.  That’s what this sentence appeal is really about.  This is an applicant who took extraordinary measures between charge and sentence and then after sentence, etcetera.”  Immediately, you’ve got us focused and you’ve given us the sense that you’re able to distil with good clarity what the real issue is. 

 

MR MULLER:   I think that’s really important insight from my perspective, circling back to that question around if there’s any place for oral advocacy and the ability to put some of that colour onto the submissions .....  Did anyone else have anything? 

 

BEACH J:   Well, just on the issue of, “I need to add a ground, your Honours.”  Obviously, if it arises in running, it’s very hard to formulate the ground on your feet and we wouldn’t want you to do that.  The matter might have to be stood down.  But there is nothing calculated more to annoy a Bench than someone who has plainly been thinking about adding a ground for some time and turns up and says, “I need to add a ground about this.”  “Give us the ground.”  “I haven’t formulated it yet.”  If you’re going to do it – and, look, it does happen.   

If you’re going to do it and it’s obvious that it has occurred to you in the three or four days leading up to it, the first thing you’ve got to do, formulate it, then, you know, put the blowtorch to it and, “Is this really going to work?  Why didn’t I think of it earlier?”  And, if the answer is, “Because I’m stupid” or – you know, well, go on.  But if the answer is because it really isn’t much of a ground, forget it.  But formulate it.  Refine it, then give it to your opponent and then give notice to the court that there may be an application on the morning to add this ground so people can start thinking about it.  There really is nothing worse than someone, as I say, who turns up and says, “I’ve been thinking about this for a while, but we would like to add a ground about parity.”  “What ground about parity?”   

 

MS RUDDLE:   On the flipside of that, from the – I mean, I did say also the Crown would generally consent to people getting time and, you know, try not to take the technical point, but you do get people turn up on the morning with what has clearly been a well-prepared new ground that they open orally that’s all set out and you can see they’ve got written notes and you – this is the first time you’ve heard of it, that might be the time that the Crown’s back gets up and     

 

BEACH J:   And so it should.  I’m saying it should have been formulated, it should have been refined and it should have been given to the Crown before it’s given to the court. 

 

MR KASSIMATIS:   And even if you     

 

MS RUDDLE:   And the court can see that and     

 

MR KASSIMATIS:   Even if you haven’t formulated it in black letter, ring your opponent.  You know, ring Chris Boyce or the prosecutor you’re – and say, “Look, I haven’t got anything on paper yet, but I’m thinking about this as a potential ground.  As soon as I know more, I will tell you more.” 

 

MS RUDDLE:   Yes.  As I say, the Crown will always try and be fair, but we can see when people are being sneaky and, frankly, so can the court.  

 

BEACH J:   The one     

 

MS RUDDLE:   So you will occasionally get     

 

BEACH J:   The one new ground we’re less likely to be as receptive to is you see grounds that complain that the judge didn’t do this, didn’t direct this or didn’t do that and the Crown response is, “Well, nobody asked the judge to do that,” and you can see, reading the transcript, “Wonder if they’ve thought about a ground about counsel’s – trial counsel’s competence?” and we all know those are grounds that have – you have to give notice of a long time ahead because the court has a process of contacting trial counsel and saying, “There is this ground which suggests that there’s a miscarriage because of your competence.  Would you like to say anything about it?”   

To come along on the morning and say, “Look, been thinking about this and we want to add a ground, incompetence of counsel, and, you know, it has been floating around the written cases for 18 months,” you’re likely to get a pretty frosty reception from at least one member of the Bench. 

 

MR MULLER:   Well, I’m conscious of the time.  We have about 10 minutes left and so I wanted to throw to the audience here if they have any questions. 

 

MAXWELL P:   Can I ask a question?  Because it has been said by all of you that you like being given questions and you can – well, they help you get into your stride and show that the Bench are interested and they’ve read what you’ve written or they’re listening to what you’re saying, but it happens, and I found this as counsel myself, that the court will then get interested in that topic and you’ve lost the steps in the argument you were wanting to present.  I think younger counsel would want to know, “Well, what do you do then?  How do you re-find the main drift of your argument?  Or do you – are you flexible enough to, as it were, change the line of argument in running?” 

 

MR MULLER:   I will just repeat that question for people at home     

 

MAXWELL P:   Sorry. 

 

MR MULLER:   I will try to summarise it without butchering it.  If your line of argument gets hijacked by the Bench, how do you get it back on course? 

 

MS RUDDLE:   That was excellent advocacy just there.   

 

MS BOSTON:   I cross out what I address orally as I go in my notes.  So that I can – it’s quite apparent to me what I have missed because I’ve been taken off course and I will have flagged in my notes the different topics, the different grounds and, if there’s different sub-topics with each ground, so that I can quickly go to what appears to be the next logical step in my hijacked argument, and that way you avoid the situation of missing something important that you wanted to address before being taken off-course. 

 

BEACH J:   I think I was like Catherine as a barrister.  I loved getting questions from the Bench because, first of all, while you’re getting a question from the Bench, you can’t be mucking up the case.  Nothing you do can be mucking up the case.  So – and, in all seriousness, you know, knowing what the Bench think is an opportunity to change their thinking. 

 

MS BOSTON:   Yes. 

 

BEACH J:   And I used to have notes – speaking notes which were headings.  There were a couple of things that I – if I knew there was a dispute about a proposition, I would have that proposition word for word so that, you know, it was refined and what I wanted to say.  A bit like, you know, a case in the High Court, Brett Walker 

doing a case involving a plaintiff who went to the hotel, gave his car keys to the barman and said, “I’m going to have a few drinks.  Don’t give me the keys back,” and the obvious happened.  He got his keys back and pranged the car and the High Court says to him, “What’s the content of the duty of care owed by the barman to the car driver?”   

 

Now, that’s a horrible question to get if you’re unprepared, but Brett reeled off a mellifluous paragraph which plainly had been thought about, polished, refined.  So your speaking notes need to contain word-for-word propositions that deal with those sorts of questions, but, otherwise, they’re headings and notes and, if I get a question which – well, used to get a question which threw me off the path, I simply bookmarked where I was, dealt with the question, engaged in the debate, “Have I answered your Honour’s question?”  “Yes.”  “Back to where I was, your Honours,” and straight back onto the line. 

 

MS RUDDLE:   I do a similar – I have a dot point process, but I don’t cross it out necessarily.  Sometimes I do if there’s a lot to cover, but I don’t necessarily go back.  I often then move – continue through where I think the next logical thing is and then I will often say at the end, “Can your Honours give me a minute?  Actually, I needed to do some more submissions in relation to ground 2,” so on and so forth, because I get swept up in the discussion.  So I find going back to the point, then I’m a bit more robotic.  So there’s, again, a million ways to skin a cat.  Different advocacy for different styles, but there’s lots of – you just find the way that suits that your particular style of advocacy. 

 

But the big thing – I have noticed the big issue is that judges will often ask questions of people who have very detailed kind of plan and they will say, “I’m getting to that, your Honour.”  And the judges will always let them get to that and I’ve never seen anyone say, “No.  Get to it now.”  But they want to know now.  You should tell them then.  That’s – you know, that’s compelling.  That’s going to be the point unless there’s some really good reason not to go to it then, my tip is always go to it then, but I don’t know if the judges agreed with that. 

 

BEACH J:   No, no.  I agree entirely.  You’re right.  We never force – someone who says, “I will answer – I’m getting to that, your Honour.”  If you’re not getting to it in the next 10 seconds, I’m completely distracted and I’m not hearing all of the stuff.   

 

MR KASSIMATIS:   It’s worse.  What you see when you utter those words, “I’m getting there,” is all three judges go, “Hurry up and get there.”   

 

MS RUDDLE:   They are always – I’ve always seen the judges – “Well, no, look, don’t let us take you off your plan,” but I’m thinking, “Go off the plan.” 

 

MR KASSIMATIS:   And the point is, when you – I don’t want to use the word “hijacked”, but when you get led down a particular path by the judges, there may not be anything left to do by the time you get to the end.  So, really – and this is one of the other 

points is avoid repetition.  If you’ve done your job by answering one judge’s question and then another judge’s question and then sometimes there’s debate between the judges, you’ve just got to look and listen and see where you’re at at the end of it and, at the end of it, it may be, “That’s it.  I will go to ground 2.”  Or there might be, “Well, I need to just address this for the moment and then move onto ground 2.” 

 

MS RUDDLE:   Yes.  I find often that, after having answered all the questions, there’s actually nothing left to deal with because the judges have your written case.  They know what you’re at, they’re poking where they think the holes need to be filled.  More often than not, they’re trying to help.  It doesn’t feel like it all the time, but     

 

MR MULLER:   On the topic of sticking to a plan, I will bring us back to the agenda for tonight .....  I invite the President to wrap up the series. 

 

MAXWELL P:   Thanks very much.  And I hope that those of you watching feel comforted by those terrific answers to my question about what you do when a question takes you away from where you wanted to be and should have reassured you that well-prepared counsel have no difficulty with that and will respond in the different ways the three barristers mentioned to you.   

 

I want to thank Theo and Catherine and Liz for being such terrific exemplars – instructors and, having been in this court for a long time and having worked with them as judge to counsel, it’s a special thrill, I would have to say, to be part of a collaborative effort like this where the court and experienced counsel are working together helping to encourage the next generation of criminal appeal lawyers because, as I said earlier, I regard what we do in the Court of Appeal as essentially collaborative, even though the parties are fighting each other, they’re each working with us because finally we’ve got to try and get the right answer and this seems to me as these three sessions are consistent with that spirit.  We’re trying to learn together about what works in the Court of Appeal.  So thank you very much to you three.  I thought it was a terrific paper, Theo, beautifully succinct and full of the kind of wisdom that you’ve heard from all three of them.   

 

Thank you to my colleague, David Beach.  Of course, again, it’s important for us as judges to be part of this discussion to reduce some of the mystery which I know always attends what goes on back there.  We’re just trying to do a job, as you are, and, as I have often said, we need all the help we can get.  Just to emphasise the point about collaboration, this was a joint effort initialled by Deirdre, though I gather started at VLA as an idea, but really good input from the Crown Bar Association, OPP, Victoria Legal Aid.  Again, terrific to have all the bits in the system working together.  

 

So thanks for being with us.  I won’t be here beyond the middle of this year, but I’ve got a feeling that we might be doing something like this again in the next 12 to 18 months, given the obvious interest and the quality of the presentations.   

MR NICHOLSON:   Excuse me, Chris.  I might just –  my name is Dan Nicholson.  I’m the Executive Director of Criminal at Legal Aid and I just thought I should acknowledge that this will be the last event like this that Justice Maxwell is present for, and I thought I should just acknowledge some aspects of his leadership that are relevant to a day like – a night like tonight and the events we’ve had in the last few weeks.  And the first is the way that Chris – although he plays a very senior leadership role at a court, he views that court as a part of a system and part of a community, and I know particularly with Legal Aid, the Crown and the Bar, the rest of the profession and Government, were needed and that has been a hallmark of his leadership and something which is all too rare in the Victorian legal system.   

 

The second thing is, as is very clear from what Chris just said, his openness to trying to open up this Court of Appeal to the whole profession ..... much will be said in the next few weeks about his commitment to gender equality and more women – measuring the number of women who appear and encouraging more participation, but that’s true of junior practitioners and many others.  So thank you for that in opening up this court to participation from the whole profession.  And the last thing just your generosity of time, of insight, but also at the very many events you’ve run for VLA over the years, but also I’m sure for other parts of the sector, the praise and commitment that you have to lifting the whole profession up.  So thank you. 

 

MR MULLER:   Okay.  I think that brings it to a close.  Thank you, everyone, for joining.