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Hand on the Bible and testify

A question that defendants often ask their lawyer is: will I have to testify in court?

The simple answer is no, you never have to go on the witness stand if you have been charged with a criminal offence and are going to court.

The exception to this rule is where you are going to certain tribunals – such as at the Crime Commission or Independent Commission Against Corruption – where you may be under an obligation to answer questions.

But if you are a defendant in court, you have a right to silence and cannot be forced to testify on the witness stand.

Right to Silence in Court

Witnesses who are subpoenaed to attend court are under an obligation to answer questions. However, the right to silence means that defendants cannot be forced onto the witness stand.

But this ‘right to silence’ has been undermined to an extent by section 20 of the NSW Evidence Act, which says that a judge “may comment on a failure of the defendant to give evidence” as long as that “comment” does not suggest that the defendant is guilty.

So while you do not have to testify, the question of whether you should take the witness stand is an entirely different matter – and one which should be carefully considered by your lawyer.

The Pros of Testifying

The prosecution’s case will always go first. For that reason, the final decision about whether the defendant should testify is often left until after the prosecution case has finished. If, after all of the prosecution witnesses have given evidence, the prosecution case is weak, then it may be against a defendant’s interests to risk taking the witness stand and being exposed to questioning by the prosecution (called ‘cross-examination’).

On the other hand, if the prosecution case is relatively strong and the defendant’s evidence will rebut that case, then it may be in the defendant’s interests to take the stand.

A defendant who is credible and convincing can be the turning point in a case. It could be the thing that makes a favourable impression upon the jury and convinces them to acquit.

While the prosecution must prove the accused’s guilt beyond reasonable doubt, a defendant who comes across as honest and sincere can help establish the necessary doubt to get them over the line. And testifying is often the only way to introduce evidence of an alternative explanation of the events when there is no other way to get that material before the jury.

The Cons of Testifying

While putting the defendant on the stand could win a trial, it also comes with considerable risks – even for an innocent person.

A defendant who comes across as implausible due to nerves, anxiety, presentation or personality type, can have a disastrous effect on their case.

Some might think that an innocent person has nothing to worry about, but the courtroom is a daunting place that can cause extreme anxiety – imagine facing a courtroom full of people – including lawyers, the judge, jury, court staff, complainant, families and the public – and having to accurately answer questions when you are facing the prospect of many years in prison..

Anxiety can cause all sorts of problems –from hesitating before answering questions, to giving inconsistent answers, to making mistake or failing to recall times and dates – all of which can undermine a person’s credibility.

For that reason, the question of whether a defendant will take the witness stand is one of the most important call that a defendant (in consultation with their lawyer) can make.

Case study:

I was recently instructing in a case where our client and a co-accused both pleaded guilty and were both put on the stand during sentencing. Our client gave evidence of his remorse and regret for his actions, as well as the positive steps that he had taken since committing the offence in order to turn his life around.

While our client came across as genuine, remorseful and credible (and got a significant penalty reduction), the co-accused gave exactly the opposite impression.

The look on the judge’s face during the questioning said it all – he was clearly not impressed. I did not get to see the sentence that the judge ultimately imposed on him, but my guess is that the co-accused’s testimony only harmed, not helped, him.

Under pressure, it is very difficult to predict how a person will act, and despite all of the preparation in the lead up to court, a lawyer will never know for certain how their client will perform on the witness stand in a busy courtroom. Because of this, many lawyers will often advise their client not to give evidence, unless there is a compelling reason for them to do so.

Woman accusing a man

What’s the worst thing that could happen to you – or your loved one?

Being falsely accused of a serious crime and facing the prospect of spending years in prison for something that you didn’t commit might rank pretty highly.

In recent years, certain media personalities and news outlets have tried to convince us that those accused of serious crimes should be assumed guilty.

But as I discovered whilst assisting our Senior Criminal Lawyers in a trial at Downing Centre District Court last week, nothing could be further from the truth.

The Case

The case concerned a complaint of aggravated sexual assault which allegedly took place at a Sydney beach in April last year.

Our client, along with a friend, had been having a few drinks at a local pub in the early hours of the morning.

They were approached by a young woman who began chatting to them. Our client and his friend had never met this woman before – but she seemed friendly, so they decided to have a couple of drinks with her.

The three engaged in conversation at the hotel for around an hour and a half, during which they discussed going somewhere more private to take part in sexual activity.

The group eventually left the hotel. The following day, the woman claimed that our client and his friend had committed non-consensual sexual acts on her at a beach.

Our client and friend were charged with sexual assault in ‘circumstances of aggravation’.

The ‘aggravating circumstances’ were that they were in the company of each other at the time of the alleged incident.

The maximum penalty for the offence is life imprisonment.

People Lie About Being Sexual Assaulted

At first glance, this might seem like a terrible act upon a young woman, and some readers might believe that our client and his friend should be sent to prison.

But do a bit of digging and the truth comes to the surface.

A proper analysis of the case, including material that we obtained by way of subpoena, revealed numerous problems with the complainant’s version of the events.

For one, she had given conflicting accounts to police and medical practitioners about the events of the night. This was the first major ‘red flag’.

And the more material we subpoenaed and got our hands on, the more issues we found.

For example, CCTV footage of the group at the bar showed that, contrary to the complainant’s statement, there was touching of a sexual nature prior to the alleged assault.

And while the complainant claimed that she decided to go along with the pair of young men because there were no cabs, footage of the group leaving the bar showed them walking past several empty taxis.

And when the time came for the complainant to give her evidence in court, she gave yet another version of events which conflicted with the statements she had provided to the police and doctors. This put us in an extremely strong position when it came to cross-examination.

With a little pressure under questioning, the complainant finally relented and admitted to consenting to some of the sexual activity on the night.

Significantly, she was put in a position where she was forced to admit lying under oath while giving her previous testimony.

Following this significant development, the court took an adjournment mid-way through her cross examination.

The End Result

Obviously, the complainant’s admission to lying under oath, together with the numerous inconsistencies in her versions of events, put the prosecution in a very difficult position. After some deliberation, the prosecution’s lawyers were forced to withdraw all of the complainant’s evidence.

With no evidence to support the prosecution case, the trial judge was obliged to follow case law and direct the jury to return a verdict of not guilty, because the evidence was so defective that, even taken at its highest, it could not sustain a verdict of guilty.

Our client was therefore found to be not guilty.

Finally, our client and his family were able to breathe a sigh of relief and focus on getting their lives back on track. But not after they had spent several months worrying about the prospect of going to prison for a crime he did not commit.

A Word of Warning

While the complainant’s lies eventually caught up with her in this case, the experience has taught me a somewhat sinister truth – that there are people out there who are prepared to fabricate stories with the potential to destroy the lives of others.

It is for this very reason that we should not be so quick to jump to conclusions when we hear reports that someone has been accused of a criminal offence – no matter how serious the allegations may be.

As the saying goes, in the eyes of the law, all are innocent until proven guilty beyond a reasonable doubt.

Prosecution Policy

The public should be aware that the general policy of the prosecution in certain types of cases – such as domestic violence and sexual assault cases – is to prosecute even if the evidence is weak – partly for fear of being criticised by the media and public if they fail to do so.

Perhaps it should also be known that the prosecution’s general practice is not to prosecute complainants in sexual assault and domestic violence cases even if they are found to have given false evidence – which is gravely unjust considering the potentially devastating consequences of their lies.

In fact, the complainant in the mentioned case was flown back to Australia from overseas, put up in a hotel and paid a daily witness allowance to participate in the trial – an all expenses paid trip to Australia, funded by the Australian taxpayer. She was then flown back out, again at taxpayer’s expense.

Enter Downing Centre Court

As a recent law graduate keen to work in the criminal law field, I was thrilled when I was recently presented with the exciting opportunity of instructing in my very first trial in Downing Centre District Court.

Instructing lawyers have a very important role in trial proceedings. While they usually do not perform any advocacy work in court (this is generally left to the barrister or senior lawyer) they are expected to liaise with the client and the barrister, make sure that the client has an in-depth understanding of what is going on in the trial, take extensive notes of all conferences and court proceedings, and maintain a list of exhibits that are presented during the trial.

Though I’ve spent the past 6 and a half years studying the ins and outs of law at university, there is only so much that you can learn out of a textbook, and there is simply no substitute for practical experience.

Sadly, most law graduates enter the field with few practical skills, and some law firms are hesitant to let new lawyers gain courtroom experience. This effectively means that they are thrown in the deep end when they start representing clients in court.

I was lucky enough to be given the opportunity to get a grasp on courtroom procedures early on, and this first experience has taught me valuable skills and knowledge which will no doubt prove useful in my legal career.

I have shared some of the things that I have learned from this experience below.

1.    Be Prepared

As an instructing criminal defence lawyer, you are expected to have a thorough knowledge of all the evidence in the case because the barrister could ask you important questions at a moment’s notice inside the courtroom.

All the evidence in the case will be compiled in a brief, and as an instructing lawyer you are responsible for organising the brief for both yourself and the barrister. It’s important to organise and index the brief properly so that you can quickly navigate it to pull out any documents in the middle of the trial or in conference.

Instructing lawyers will also be responsible for chasing up any missing witness statements or documents. My experience taught me that the police and DPP often take their time in getting back to you with documents, so you must keep at them to make sure that all evidence is received in advance of the trial.

You’ll need to read the brief several times over and make notes of any key points in witness statements and other evidence.

I found that this serves two purposes – firstly, it really helps you familiarise yourself with the evidence at hand, and secondly – and most importantly – it can help you flag any issues which should be raised with the barrister.

An in-depth knowledge of the brief allows you to identify any possible defences or factors that may support your case at an early stage – and conversely, it will help you predict how the prosecution is going to run their case, and any arguments that they will raise.

2.    Do Your Research

Trials involve a lot of research, both legal and other – you may be required to look up relevant case law, statistics or other information which might help you prove a particular point. You may need to research a particular profession or trade, or make enquiries with bodies like the bureau of meteorology about weather, or attend the scene of the alleged crime to photograph and videotape, or attend to urgent subpoenas, or a range of other matters. Usually, the senior lawyers and barrister will let you know of the research and preparatory work which they require.

In my particular case, the barrister asked me to research therapeutic massage practices. I spent time accessing medical journals to try to find any information that could help our case, and communicated my findings to the barrister.

Our case also involved an application to exclude tendency evidence, which is evidence about a person’s character, reputation or conduct that can be used to prove that they had a tendency to act in a particular way or have a particular state of mind.

Usually, this kind of evidence is not allowed to be admitted, however in our case the prosecution made an application to have this evidence admitted, arguing that there were striking similarities which could help prove that our client had a particular state of mind in the present case. The prosecution also argued that admitting the evidence would not unfairly prejudice our client and prevent him from having a fair trial.

I had the invaluable benefit of being able to consult highly experienced lawyers at the practice for advice and insight throughout my involvement with the case.

We naturally opposed the application in our case, and the barrister handed up some previous judgments which supported our case. I took the time to read these judgments to make sure that I understood what the law said. It was a steep learning curve.

For new lawyers, instructing is a great learning experience – doing this type of research can help you the intricacies of certain areas of criminal and evidence law.

3.    Make Sure the Client Understands What is Going On

It’s no secret that lawyers can get caught up in difficult to understand legal jargon when explaining matters to clients.

After all, lawyers are used to dealing with other legal professionals in a variety of situations. They may therefore make the mistake of assuming that a layperson fully understands basic legal terms and procedures.

Of course, the danger in making these assumptions is that clients may be left in the dark about what is going on in their case. The likelihood of this occurring is increased where a client has limited English skills, or where they have mental health issues or drug and alcohol problems.

In very serious cases, a client may even end up unintentionally breaking the law, which can give rise to serious consequences. For instance, if a lawyer does not fully explain that a client is required to attend court on a particular day, the court may issue a warrant for their arrest.

Or, if a lawyer does not ensure that a client understands all of their bail conditions, the client may end up breaching their bail. If this occurs, the court may decide whether it wants to take no action for the breach, vary the bail conditions, impose more conditions, or, in serious cases, refuse bail altogether and order that the person be placed in custody.

While this did not happen in the case I was working on, this example illustrates the importance of making sure that a client understands everything that is going on in the courtroom. It is vitally important to make sure that the client understand every aspect of the case, and gives informed instructions and makes informed decisions.

In the trial that I was instructing on, our client was from a non-English speaking background, and even with the assistance of an interpreter it was sometimes apparent that things that the barrister was saying were going over his head.

For instance, when the barrister was trying to explain complicated laws about evidence and sentencing procedures, our client was visibly confused and would ask questions about things which had just been explained to him. I learnt that part of my role was to pull up the barrister when this was occurring.

I quickly realised the value of explaining legal terminology in plain English, which made our client more responsive and willing to answer our questions. I also made sure to ask whether he understood what had been said, to explain to me what had been said just to make sure, and encouraged him to ask us any questions if he was unsure about anything.

4.    Consult Your Superiors

If any questions arise while instructing, it’s also important to consult your more experienced colleagues for their advice and opinion about the best way forward.

Unfortunately, many law firms do not have an open-door policy and may criticise young lawyers for asking questions early on in their career. I am very grateful to work in an environment where discussion and learning is encouraged, and it is always good to know that I can raise any concerns or questions with any of the lawyers on our team.

During this case, I worked closely with our Principal Ugur Nedim, as well as our experienced Senior Lawyer Jimmy Singh, both of whom have a wealth of experience representing clients in extremely complex and serious criminal trials.

I was able to ask their advice about issues such as the admissibility of tendency evidence, procedural matters, and the best ways to communicate with our client.

Their support helped me effectively assist our client and the barrister during the trial.

5.    Understanding, Explaining and Respecting a Client’s Options

Besides making sure that your client understands complex legal principles and procedures, I learned that it’s very important to make sure that he or she is fully informed of all their options and the case against them before they make any decisions – particularly when they are deciding whether to plead guilty or not guilty.

I also learned the importance of feeling comfortable to consult the senior lawyers at the firm for advice about complex law and procedure, and that a team environment is by far the most conducive to providing clients with the best advice and strongest legal representation.

At the end of the day, your client has a right to choose whether they want to plead guilty or not guilty, and as their legal representative, you must respect that decision. This means that even if there is a strong case against them, you should continue fighting for them until the very end if they maintain their innocence and wish to plead not guilty.

This is not to say that you shouldn’t advise your client of the risks of proceeding to trial. Rather, I learned that your job as their lawyer is to make sure that they understand the strengths and weaknesses of the case against them, any legal arguments that can be put forth to win their case and the prospects of succeeding based on these arguments. You should also identify and explain grounds on which their evidence can be challenged.

As your client’s legal representative, you should also carefully explain any rulings that the court has made and how those rulings may affect the case. For instance, the judge may decide to have certain evidence admitted which may damage your case, or alternatively they may rule that certain evidence will not be heard by the jury, which can give you an upper hand in winning the case.

Before your client decides upon a plea, whether guilty or not guilty, you should explain all of their options so that they can make a fully informed decision.

For instance, in some cases you can negotiate with the prosecution to have one or more of the charges downgraded provided that you enter a plea of guilty to the lesser charge. If there are multiple charges, you can try to have several charges ‘attached’ to the main charge, so that the sentencing judge will take the other charges into account when sentencing your client for the most serious (‘principal’) offence. This can help your client achieve a more lenient penalty.

Your client should also be made aware of their right to appeal, the prospects of success on appeal, and the fact that they will normally lose their right to appeal against any conviction if they plead guilty to the charges.

Finally, you should make sure that your client is aware of the impact that an adverse finding may have on their future life.

While it may sometimes appear that there is a strong case against your client, I learned that it’s important that your client understands that you have not lost hope for them, and that you will fight until the very end if they wish to proceed with the trial. This, sadly, is a point that is forgotten by many lawyers who may encourage or coerce a person to plead guilty based on the evidence against them.

Instructing in a trial is an incredibly interesting and enjoyable experience which can teach you so much about the law, court procedures, evidence and client (and colleague) communication.

It challenges you to think outside the box, to develop a relationship of trust and confidence with your client, and to do everything possible to secure the best possible outcome for your client.

Most importantly, it gives you a fantastic insight into life as a criminal defence lawyer and the kind of workload to expect in practice.