Norah Jones – born 30 March 1979 – is an American singer-songwriter. Instrumentally, she is a pianist and plays acoustic and lead guitar. Billboard Magazine named her the top jazz artist of the first decade of this millennium. She launched her solo career in 2002 with the release of the album ‘Come Away With Me’. Such release earned Jones five Grammy Awards, including ‘Album of the Year’ and ‘Best New Artist’.
Jones released a raft of fine albums after 2002. Her most recent is ‘Visions’, released in 2024.
Born Geethli Norah Jones Shankar, Jones is the daughter of the noted Indian sitarist and composer Ravi Shankar. She has long enjoyed a particular affinity with the music of jazz and swing singer Billie Holiday. Her music and performance are redolent of same, but fashioned by contemporary influence and instrumentation.
‘Staring at the Wall’ – part of the ‘Visions’ album – is a collaboration by Jones with music producer and instrumentalist Leon Michels. It was co-written by Jones and Michels and features Jones on vocals, guitar and piano and Michels on bass, drums and tambourine.
I am a fan of Norah Jones, but for most people ‘Staring at the Wall’ will prove easy listening music. If you play it once, you will play it again! The piano and percussion, in particular, are euphonious. The lyrics also are an attractive reflection of life experience.
The YouTube link is here:
Jimmy Buffett – born James William Buffett on Christmas Day 1946 – died about a year ago on 1 September 2023, at age 76. He was an American singer-songwriter and was known for his “tropical rock sound”, which – according to Wikipedia – “portrayed a lifestyle described as ‘island escapism’ and promoted enjoying life and following passions”.
While a prolific songwriter – the writer’s favourite is “Margaritaville”, released in 1977 – he continued during his long life to release many songs. He was a fine musician, lyricist and singer.
In August 2013 Buffett released “Songs from Saint Somewhere”. The featured song “Oldest Surfer on the Beach” – in fact – was written by Mark Knopfler (of Dire Straits fame, and only 4 years younger than Buffett), and he plays guitar in the released version.
The song title will appeal to the large number of surfers at the Queensland Bar.
The YouTube version of the song – with a very attractive album cover – is to be found below.
There is a short list of collective nouns for barristers:
A “boast” of barristers.
A “wiggery” of barristers
A “bar” of barristers.
A “chamber” of barristers.
Each has a plain origin, alluding to the practices and trappings of counsel. The first two, undoubtedly, are redundant. The last two are part of modern idiom.
For barristers of the rank of silk, the collective noun is a “purse” of silks. This was derived, apparently, from expensive women’s purses – in the late nineteen century – being manufactured from silk.
Barristers are known to gossip. The germane collective noun is a “gaggle” (also a “dish”) of gossips. This has its genesis in the Harley Manuscript of the early fifteenth century, the allusion being to cackling geese.
As to barristers involved in criminal prosecution, “An Exaltation of Larks; the Ultimate Edition” by James Lipton (Penguin, 1993) identifies – at page 240 – the collective noun as a “presumption” of prosecutors.
There is a raft of collective nouns for lawyers:
An “eloquence” of lawyers.
An “argument” of lawyers.
A “disputation” of lawyers.
A “greed” of lawyers.
A “huddle” of lawyers.
A “quarrel” of lawyers.
An “escheat” of lawyers.
The first of these harbours the strongest historical foundation, albeit now – like the others – is redundant. It has its genesis in the 1486 “The Book of St Albans”. In “An Unkindness of Ravens – the Book of Collective Nouns” by Chloe Rhodes (Michael O’Mara Books Limited, 2014) a further explanation of such origin – referable, plainly, to lawyer advocates – is furnished:
By the fourteenth century the four Inns of Court – the Inner and Middle Temples, Lincoln’s Inn and Gray’s Inn – had been founded in London to provide formalised training for lawyers. By the end of the fifteenth century pleaders had come to be called barristers and a structured system of education in the law was in place. Students would spend 7 years at the Inns of Court, studying, attending lectures and watching established pleaders at work, absorbing both the ethos of their profession and the discursive arguing style it is known for to this day. With the success of their career depending entirely upon their ability to convince a judge of their point, eloquence was the most important attribute a lawyer could have.
Mediation is a modern sphere of practice for lawyers. The germane collective noun – harbouring plain origin – is a “compromise” or a “caucus” of mediators.
Ms Rhodes goes on to refer to the collective noun of a “sentence” of judges. She attributes that – at pages 42-43 – to the the appointment of assize judges in the twelfth century, such judges perceived as being harsh in the sentences they delivered, ranging from a stint in the stocks to public execution. The modern noun is a “bench” of judges.
The Book of St Albans is also identified by Ms Rhodes – at pages 23-24 – as the genesis of the collective noun for jurors: a “damning”. Such Book identifies same by the language “a dampnying of jourrouris”. A “damning” verdict by a jury was one that found the person charged guilty of the crimes the subject of charge. The word comes from the old French word “dampner”, in turn from the Latin “damnare”, meaning to injure or condemn. Ms Rhodes writes:
… [I]n the God-fearing Middle Ages, it implied that your crimes made you worthy [only] of eternal damnation.
The modern noun is a ”panel” of jurors.
A group of court witnesses is a “legion”, “stare”, “stand”, “oath” or “blessing” of witnesses.
There is but one collective noun for lawyers’ clients that the writer’s research can locate: a “moan” of clients. The less said about that the better!
The collective noun for those in court custody, or criminally convicted, is a “pity” of prisoners. So much is derived from the book “The Hors, Shepe and the Ghoos”: Mr Lipton at page 83. In modern mores, it would be a “dock” or “cell” of prisoners.
Mr Lipton – at page 240 – identifies the collective noun for acquittals is a “deliverance” of acquittals. This was founded, he writes, in bygone UK criminal practice exchange between court clerk and prisoner, whereby in response to the prisoner formally declaring they wished to be tried “By God and country”, the clerk responded “God give you a good deliverance”.
Finally, as to those involved in the service of legal process, Mr Lipton – at page 83 – identifies a “shadow” of process servers.
In the premises, the writer ventures that the collective noun for legal practice collective nouns ought be a “judgment”.
In the fine tradition of “10 Things I Hate About You”, it occurred to me that – perhaps to the chagrin of some – I ought ventilate the misconceptions of some newly practising barristers that I have discerned, and which I too, in part, harboured when a young counsel.
Practice as counsel is an unusual vocation. It entails self-employment as a subcontractor advocate in the competitive adversarial justice system, bound by a “cab rank “ rule, owing a duty to the client but a prevailing duty to the system of justice and ordinarily practising as a member of chambers sharing common practice expenses but not fees.
Misconceptions about practice abound. One finds that within 3 to 5 – but sometime more – years of practice, such misconceptions fall away. Reality intervenes.
In no particular order, I canvass below some of those misconceptions. I challenge the barrister reader to declare that they never held any of them.
1. “I am a young professional with a law degree, and a graduate of the Bar Practice Course, so solicitors should brief me without hesitation”
Our challenge when acting as counsel is to, fearlessly and comprehensively, advise clients on their prospects and to appear at court before judges who (on occasions) seem determined to skin us alive.
The newly admitted barrister may pose the proposition: having completed studies –involving two tertiary degrees – and working for a firm of solicitors for several years, and completing the Bar Practice Course, why would solicitors not be falling over themselves to brief me?
There is a succinct answer to this: the lack of experience of counsel.
Reality dictates that acting as counsel is a task which one cannot learn merely by legal study, prior legal experience as a solicitor, reading advocacy books and listening to the war stories of the senior bar, but rather requires the blood, sweat and tears of undertaking practice for a number of years.
Even the cut and thrust of practice as a solicitor for several years, or longer, will not adequately equip a freshly admitted, or even slightly dented, barrister with the ability to fully and consistently cope with the rigours of practice.
Conducting efficiently the adducing of and objection (or not) to evidence and cross-examination, making persuasive oral submissions and responding sensibly on one’s feet to judicial inquiry about evidence, law and submissions made, are critical learned tasks.
One needs to do it, and often, in order to put oneself in the best position to undertake the task to a reasonable, and ever higher, standard. Self – confidence, while an essential character trait for counsel, is not sufficient to cut the mustard.
2. “My chambers owes me a living; my chamber members should recommend me as their junior or to brief if they are unavailable”
To be a member of a good set of chambers is the desire of most barristers. At the base of that desire is the company of colleagues with whom you will mix as counsel – and often socially – on a daily basis. In addition, one might piously hope that silk members of chambers, and other barristers who are jammed or unavailable, would recommend to their solicitors that their chamber colleagues be briefed.
But this hope does not routinely ensue, or if so does not inexorably accrue such briefing. So much is a function of many things.
In part, so much is founded in solicitors having their own stable of counsel, which does not align with the complement of the barristers within any chambers. Furthermore – as noted above under misconception 1 – counsel may be insufficiently experienced per se, or in the brief practice area, to attract such recommendation, or attract it successfully.
Ultimately, it is up to the individual barrister to carve their own niche at the bar. Undoubtedly, from time to time, junior and other briefs will be spawned by recommendations from other members of chambers. But they are not for the asking, nor will suffice to sustain practice. You need paddle your own canoe!
3. “I am already at work for 10 hours a day, 6 days a week, so I am not available outside of hours to solicitors, by email or telephone”
While I concede that the view of barristers may differ on this topic, I find it extraordinary that counsel – who often, as they hope, would be briefed frequently in court such that they are not always available from about 9 am (with preparation) until about 5 pm (when they return from court) – would not make themselves available outside of hours to respond to necessary enquiry.
A barrister is a self-employed independent advocacy sub-contractor professional. Out of hours requests for urgent advice, clarification of an important issue in an existing brief or availability to be briefed often need be addressed promptly. Tradies do it, so why not barristers? It is an occasional, not persistent, occurrence, so why resist?
Nothing is more irritating to a solicitor when they cannot contact counsel promptly and are left hanging. Apart from any other consideration, it tends to portray lack of interest in being briefed on an ongoing basis.
4. “I’m a busy person so I will answer emails or telephone calls from solicitors or other counsel only when able”
This misconception is related to misconception 3 above.
Suffice it to say it is irritating for a solicitor – or a counsel who is briefed with you or against you in a matter – not to receive a response, in a reasonable time, to an enquiring email or telephone call made during working hours.
Sure, the matter in which counsel is briefed and engaged in on any particular day ought be the subject of their principal focus, but that does not give them a licence to ignore the fact that the nature of the profession of a barrister is to service the requirements of others who seek your responsive attention.
The issue is capable of ready management.
First, if a receptionist or group personal assistant will be answering your phone in your absence, arm them with information pertaining to your current court (or other) commitment so that the inquiring solicitor can enjoy some idea as to by when a response is likely. Also give such person access to your electronic diary so that availability enquiries by phone can be addressed, even if tentatively.
Second, unanswered emails (in particular) or telephone messages can be responded to before and after court hours, with apt priority, and those to whom a response is made can if necessary be the subject of polite advice that you are otherwise engaged, but you are happy to briefly respond until better able to do so at length.
Apart from any other consideration, it is discourteous to do otherwise.
5. “I am happy to work 7 days a week, and only take 2 weeks holiday a year”
The barrister who works 12 hours a day, 7 days a week and takes 2 weeks holiday a year is heading for early burnout.
No doubt solicitors are looking for a barrister who is industrious and keen, but the usual consequence of excessive hours of work is that the barrister cannot keep it up – either because they acquire too much work which they cannot service, or or suffer consequent ill-health or relationship breakdown – and their lives and practice turn to dust.
In my experience – as long as they receive adequate notification that counsel will be taking time off in a few months to go on holidays or leave, in particular with loved ones – solicitors appreciate that they are briefing a young barrister who has their work/life balance sorted, and will be in it for the long term. Solicitors who are of a different view are best to be avoided; by parity of reasoning, their continuing in practice is a doubtful prospect.
6. “I cannot understand why my solicitor and my client do not accept my advice about settlement (or procedure)”
The incidence of non-acceptance of advice of counsel, broadly speaking, is inversely proportional to their experience; the more experienced counsel is, the more likely their advice routinely will be accepted. So much is understandable.
More importantly, however, counsel need remember that they are merely providing advice in respect of the litigated cause or dispute, not dictating the course of action the client must adopt.
In our legal system, the role of counsel – informed by their ethical obligations (see misconception 7 below) – includes giving advice to clients, through our briefing solicitors, when requested, and sometimes proactively if circumstances require. There is no obligation to accept that advice, as the solicitor or client may harbour a contrary view. Indeed, that contrary view may prove correct, but that is not the point because it is the client only who is directly impacted by the ultimate outcome.
All counsel, however experienced, will feel some irritation at advice proffered not being accepted, but that is just part of the game. For counsel to take it to heart is – purely and simply – hubris. Get on with what you have to do!
7. “I have to argue every point because my solicitor and client want me to, and they are paying my fees”
Counsel ought be respectful of, but avoid being slavish to, the argument and evidence dictates and preferences of the briefing solicitor and client. A barrister is an officer of the court, owing a higher duty to the system of justice, notwithstanding the concomitant duty owed to the briefing solicitor and client.
The Barristers Rule 2011 expressly provide, in effect, that not only may counsel not argue a point which they consider to be unarguable, but also that they ought not argue weak points that they consider will be wasting the court’s time.
Certainly counsel should always sit down and explain carefully to solicitor and client why it is that the point or points in question are unarguable, or that to argue same (or lead certain evidence) would be a waste of the court’s time and only attract unnecessary judicial irritation. Usually that will mollify solicitor and client, but not always. The solicitor, if experienced, may well persuade counsel to the contrary.
Importantly, a barrister need scrupulously discharge their ethical obligations, and not attract a reputation with the judiciary as an poor, unreliable or unethical practitioner. Do otherwise, and you best take up a different calling.
8. “I am a busy barrister, so Continuing Professional Development is a waste of time and effort for me; I only do it to keep my practising certificate”
How many times have I heard the shallow at our bar declare this, and some of those had more than the said 3 to 5 years’ experience.
To be busy as a barrister does not mean necessarily that you are going about your craft in the right way in every respect.
To the contrary, you may be cultivating and persisting in erroneous or out-dated substantive law, procedural or ethical practices, notwithstanding that you are not corrected by your peers or the judiciary. There will be new practices and law afoot which you need master before they permeate through to daily court practice. Why would you not want to get ahead of the game?
CPD is a critical part of any professional’s practice. Indeed, the 10 CPD points – with some compulsory subjects as part of that – which barristers are obliged to accumulate annually in order to renew a practising certificate is much less than what is required in almost all other professions.
Every barrister – in the writer’s view – ought attend regular CPD sessions in their practice and the compulsory spheres, even if to do so results in a surfeit of CPD points. Offer, too, to present or assist in CPD sessions, as that affords even better learning.
Attendance on CPD occasions where solicitors are present in the audience – and asking questions – will often afford an encouragement of those solicitors to brief you on account of your interest (and apparent expertise) in the legal sphere in question.
9. “That judge (or tribunal member) is a ba*tard to appear before (or does not like me or my client)”
I defy any barrister to declare they never have said or thought such a thing. But, in truth, the proposition only has to be stated in abstract to be quickly dismissed.
Personalities differ. In consequence, clashes can occur in any professional discourse. No doubt this can happen even between counsel and members of the judiciary, but infrequently.
Fortunately in our democratic society we enjoy an independent and well trained judiciary. They have an important task to discharge in any dispute that comes before them, namely to attend the prescribed procedure, evidence, substantive law and argument, make necessary interlocutory rulings and then deliver or facilitate a timely adjudication or jury verdict. Counsel are charged with assisting the court in that regard.
In the occasional clashes that do occur between counsel and the judiciary, the invariable genesis is an argument over evidence adduced or submission made which requires critical evaluation by the judge in order to properly understand the import of it, sometimes because the evidence is plainly objectionable or submission weak. So much has nothing to do with a judge being disposed against a particular counsel (or client), nor generally indisposed, but rather is part of the cut and thrust of the adversarial system.
In short, counsel should get over it, and concentrate on abiding the cardinal rules of good advocacy: prepare well, construct and advance the best possible case theory, and conduct and argue the case – persuasively and ethically – so as to make it as easy as possible for the judge to find in favour of their client. So abided, clashes with the bench will be few and far between.
10. “That barrister I appeared against is very rude (or unethical)”
Not for one moment am I suggesting that this never occurs but, ordinarily, one should engage in some reality testing and self-examination before concluding it, let alone saying it to colleagues.
Again, counsel practise in an adversarial system. Some degree of tension – if not heat – will exist between opposing counsel in some legal disputes. That need be managed. It should not be used as an excuse for enmity arising at the bar table, or from what ensues thereat.
There will often be disparate views as to the manner in which a case may be conducted within legal and ethical constraints. Be not too quick to judge or condemn others. You may soon be in the same or like position as your opponent in another matter. Be pragmatic; you cannot choose on what side of a dispute you will be briefed.
I have a particular practice which – to the best of my recollection – I have deployed in every court appearance in which I have engaged in the last 40 years. At the end of the hearing, upon the judge leaving court, I always turn to my opposing barrister (or solicitor advocate) and thank them. Invariably such salutation is reciprocated. Quite apart from common courtesy, what I find is that any tension which has, or may have, developed is dissipated by such exchange.
And, for good measure, I will add an eleventh misconception:
11. “The Bar Association does nothing for me”
Perhaps I have been too involved in the affairs of the Association over the years, and therefore this misconception piques me more than others. Some had the temerity to say it to me when I was President….how foolish of them!
The Bar Association of Queensland has been servicing barristers for over a century. For the many members who serve on the Bar Council and the various Bar committees, the task is unremunerated, involves long hours and is truly selfless in character. In addition, the Association is served by a skilled Chief Executive and staff.
In truth, the Association, over the years, has served as a professional association (or, perhaps, union) for members, without peer.
The President, Vice-President and Chief Executive are in frequent consultation with the State Attorney General of the day and their department, and the Chief Justice and other judges of the various courts, State and Federal. Maintaining a collective professional relationship with such persons is critical.
Frequently, detailed written submissions are made by the Association to Government – State and Federal – on legislation and on issues close to the interests of the bar and the public generally. These are written by experienced Association barrister members. Governments listen to the bar, for good reason. We are those who will be briefed to impugn or uphold legislation enacted. Furthermore, the Association will issue apt media releases and otherwise publicly agitate if Government overreaches.
In addition, the Association affords a raft of other services directly to member barristers.
It undertakes the legislative protocol of issuing practising certificates to barristers annually, that ensuring all barristers are fit and proper persons to practise and carry the requisite minimum insurance (for public and barristers’ reputational benefit respectively).
It provides free access to senior barristers at short notice for confidential ethical advice on issues encountered in practice. This is afforded by the Ethics’ Counsellors’ Committee which I chair.
It conducts the Bar Care Scheme, consisting of member access to free (3 sessions but sometimes more) and confidential psychological counselling.
It initiated and maintains a low cost life and disability insurance scheme for members bereft of medical qualification, one without equal among professional associations of Queensland.
It initiated and maintains a statutory liability limitation scheme in favour of barristers which caps their potential professional liability (with few exceptions) to the minimum statutory level of insurance cover.
Finally, it provides to the bar full CPD throughout the year, and at the annual conference near the close of the practising certificate year.
Enough said.
Welcome to the June Quarterly Issue of Hearsay
In this Issue the lead article – “Get Out There!” – is penned by Gareth Beacham KC, Chair of the Bar Association’s Bar Care committee. Identifying the periodic stress inherent in practice at the Bar – with its consequent effect upon health and wellbeing, particularly with the passage of the years – Gareth encourages barristers to strive to pursue interests outside practice in an endeavour to manage that stress. He presents a succinct but persuasive expose on this important issue.
“10 minutes with …” sees me in conversation with the newly appointed Chair of the Queensland Law Reform Commission, Fleur Kingham. Ms Kingham shares with readers her passage from student activist to high judicial office, and recent ascent to her critical role in the QLRC. She also shares with readers her interests outside the law and provides tips to the young practitioner.
Dr Cale Davis – raised on the Gold Coast but now a lecturer in international criminal law at the Hague University of Applied Sciences in the Netherlands – affords his detailed insight of the operational mechanics of the International Criminal Court. He does so against the background of the May application by the ICC prosecutor for the issue of warrants for the arrest of the leaders of the protagonists of the events of 7 October 2023 and the conflict which subsequently ensued in Gaza.
The Honourable Justice Martin Burns writes explaining the recent Practice Direction issued in the Supreme Court apropos of expert evidence adduced in criminal trials. This takes effect 15 July 2024. His Honour chairs the court’s Forensic Evidence Working Group, which produced such Practice Direction.
The Regional Bar section in this issue is contributed by the Magistracy. It presents, among other things, a colourful expose of some of the more than 100 regional courthouses located outside the state’s south-east corner. All are serviced by permanent or visiting Magistrates, providing justice services to the Queensland community.
A raft of other important articles and case reviews on topics of close interest to practising barristers, judges and other lawyers may be found in this Issue. The Reviews and the Arts section – edited by Stephen Kiem SC – contains the usual high quality cross-section of book and song reviews.
Since the last Issue there has been some change in the editorial ranks of Hearsay. We were sad to farewell Megan Brooks, who served ably with John Meredith, Stephen Kiem SC and me to produce Hearsay in the last two and a half years. I thank Megan for her significant contribution. The editorial team has been augmented by Philip O’Higgins KC, Carolyn Conway and Seraphina Noble. I am indebted to these members of our bar for accepting my invitation to assist – we are all volunteers – in our (religious) production of the four quarterly Issues of Hearsay.
I wish you “Good Reading” for this Issue.
Richard Douglas KC Editor
I do request your contributions to the deputy editor, editorial team or me (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com).
The deputy editor is John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com). The sub-editor is Stephen Kiem SC (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who edits the book and podcast reviews.
From the President – Hearsay Issue 47: February 2011
Any exhortation from me that member barristers ought extend courtesy to a judge or witness would be characterised, ordinarily and fairly, as gratuitous if not impertinent. My message here, however, is not so much a reminder of adherence to courtesy but rather a warning not to overdo it!
Common courtesy, transcending court appearance, often entails the practice of salutation eg, “Good morning Mr Smith”.
Most counsel have engaged in or received such salutation in court, and without objection, in any exchange with the judge, magistrate or tribunal member conducting the case, or occasionally in engagement of a witness. As to the latter, the taking of evidence by telephone is a good example where salutations often punctuate the early exchange.
I recall a Bar Association CPD seminar on applications’ court practice, conducted by Justice Byrne SJA several years ago, in which his Honour deprecated the practice of salutation by counsel in that jurisdiction. His Honour, as I recall, characterised it as pointless or irrelevant in disposition of the chamber business at hand.
The practice, surprisingly, was recently the subject of curial address. By reason of that I pen this note.
In Wilson v Department of Human Services — Re Anna[2010] NSWSC 1489, Palmer J, in the equity jurisdiction of the Supreme Court of New South Wales, dealt with an application under the parens patriae jurisdiction engaged in an attempt by a Ms Wilson to reverse a decision of the Children’s Court whereby her child was ordered placed in foster care.
Palmer J, in additional remarks, recorded his views, and apparently those of the Supreme Court of the New South Wales judiciary, deprecating the practice of salutation from bar to bench:
[106] The second matter calling for comment occurred in the conduct of the case in this Court but it is not peculiar to this case — it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this Court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.
[107] Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.
[108] Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this Court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.
His Honour went on to eschew like salutation, by a cross-examining counsel of the witness, on resumption after any routine adjournment:
[112] … [A] witness should never be placed in the position of having to greet politely a cross examiner who is an avowed opponent. An advocate should never use this technique to score against a witness. It is far better to avoid the perception that this technique of discrediting a witness is being used unfairly.
[113] For these reasons, the practice of salutations by advocates should be completely abandoned in all Courts in all contentious litigation.
It is noteworthy that the posited foundations of the above critique are those of apparent bias and procedural fairness respectively. Thus, by parity of reasoning, the bench ought be like constrained. The judge ought refrain from any salutation vis-a-vis any or both counsel (the latter lest he or she be observed looking at one side of the bar table), or a witness whose credit is in issue.
It does seem surprising that counsel fall to be criticised for courtesy on account of the advantage it may, or importantly may be seen to garner for his or her client. Overt, even if mild discourtesy to judge or witness surely is more deserving of censure.
Perhaps like most things in life a barrister need maintain a sensible balance in demeanour. That is often difficult in occasional heat of adversarial litigation.
I have written to all heads of jurisdiction to raise the matter for their consideration and elicit a response. I will revert to members when I have heard back.
Most barristers were raised on, and many practise the proverb “All doors open to courtesy”. Suffice it to say, echoing the sentiment of Palmer J in Wilson, the door thus opened may not always lead to a place of easy repose.
As readers may appreciate from previous reviews, the writer is an aficionado of the music of the 70s and 80s. ‘Layla’ – written by Eric Clapton and Jim Gordon, and recorded in 1971 by their band ‘Derek and The Dominos’– is among my top 5 picks of the music of such period.
According to Wikipedia, the song was inspired by a Persian love story of the seventh century, being the tale of a young man who fell so hopelessly in love with a beautiful young girl he went crazy so he could not marry her. In turn it was inspired by Clapton’s secret love for Pattie Boyd, who was married to his friend and fellow musician George Harrison (of Beatles’ fame). Clapton and Boyd eventually married.
The song is unusual because of its approximate 7 minute length, with latter half comprising a non-vocal second movement with quite distinct piano and progressively guitar piece. This was composed by Gordon. In truth it makes the song. This second movement is commonly referred to as a ‘piano exit’.
The song was re-recorded by Clapton in 1992 in an acoustic ‘Unplugged’ performance, albeit without the second movement and thereby about 3 minutes shorter in duration.
The ‘Unplugged’ version won the 1993 Grammy award for ‘Best Rock Song’. In 2004, the original version was listed as number 27 of Rolling Stone Magazine’s ‘500 Greatest Songs of All Time’.
The writer greatly prefers the original version over the acoustic version, but for comparison the YouTube version of each is below. Clapton performs lead guitar and lead vocals in each.
Wikipedia quotes Clapton from 2011:
‘Layla’ is a difficult one, because it’s a difficult song to perform live. You have to have a good complement of musicians to get all the ingredients going, but when you’ve got that … its difficult to do as a quartet, for instance, because there are some parts you have to play and sing completely opposing lines, which is almost impossible to do. If you’ve got a big band, which I will have on tour, then it will be easy to do something like ‘Layla’ – and I’m very proud of it. I love to hear it. It’s almost like it’s not me. It’s like I’m listening to someone that I really like. Derek and The Dominos was a band I really liked – and it’s almost like I wasn’t in that band. It’s just a band that I’m a fan of. Sometimes, my own music can be like that. When it’s served its purpose to being good music, I don’t associate myself with it any more. It’s like someone else. It’s easy to do songs then.
Boyd is also quoted as reflecting:
I think he was amazingly raw at the time … he’s such an incredible musician that he is able to put his emotions into music in such a way that the audience can feel it instinctively. It goes right through you.
Original
Acoustic (Unplugged)
The following is adapted from a Bar Association CPD presentation by the authors on 19 March 2024.
Relevant ethical rules:
The following are the relevant provisions in the Barristers Rule 2011 (Qld) which bear upon the conduct of counsel in conducting witness conferences, both at the conference and as a result of anything said in court about the matters canvassed in conference:
A barrister must not engage in conduct which is:
a. dishonest or otherwise discreditable to a barrister;
b. prejudicial to the administration of justice; or
c. likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.
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A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.
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A barrister must not:
a. advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or
b. coach a witness by advising what answers the witness should give to questions which might be asked.
A barrister will not have breached Rule 68 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.
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A barrister must not take any step to prevent or discourage prospective witnesses from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.
A barrister will not have breached Rule 73 simply by telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed or by advising about relevant obligations of confidentiality.
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A barrister who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
a. has lied in a material particular to the court or has procured another person to lie to the court; or
b. has falsified or procured another person to falsify in any way a document which has been tendered; or
c. has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;
must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the barrister to do so but otherwise may not inform the court of the lie, falsification or suppression.
Text treatment:
Scarce is the commentary in texts as to the approach, and methodology, which ought be adopted by counsel in conferring with witnesses prior to trial.
In “Advocacy in Practice” (5th Edition, 2011, LexisNexis) J L Glissan KC wrote ( pages 17-18):
… [T]he [case] narrative should be explored by question and answer. How this is done will depend on the individual witnesses – some witnesses may need to be searchingly cross-examined, especially where they appear to be hedging or embellishing, or to prepare them for anticipated attacks. From this you should build your own proof of evidence … [It is]useful to explain to witnesses, experienced or not, how to give evidence – not what they should say, but the mechanics of giving evidence. This advice will include where to sit, where to look, how to address the court, appropriate clothes to wear and so on … [W]here the witness is likely to come under strong attack, it is best to recognise this in advance. You should safeguard the case the witness is being called to support, and where possible, anticipate and shield him or her from unpleasant shocks and surprises.
Proper approach:
In our opinion the following 10 matters encapsulate the proper approach and methodology.
First, the overarching point of a witness conference is to prepare the witness to give evidence at trial necessary to prove your client’s case theory, and to that end make it as easy as possible for the judge to accept that witness’s evidence.
Second, the conference enables you, as counsel, to finalise the proof of evidence of that witness, enabling the opening of that evidence, adducing that evidence in evidence-in-chief and addressing issues which will be raised in cross-examination.
Third, the conference also enables the identification of documents needed to be tendered through that witness, or otherwise proved, to enable acceptance by the judge of the evidence of that witness, and other witnesses.
Fourth, the conference enables you to reassure the witness about the process and their evidence – in particular if unsophisticated in giving court evidence, or if emotional or subjective – such that they are reasonably calm by the time it comes to give evidence at trial. Have them taken to court in advance to see the layout.
Fifth, and critically, the conference ought identify to the witness the propositions and documents with which they will be challenged in cross-examination, so that they can be ready to address such matters calmly, intelligently and comprehensively.
Sixth, in conference your mindset as counsel ought be to intellectually change sides, putting yourself in the position of opposing counsel cross-examining the witness. That ought include detection of witness character traits (eg irritability, arrogance) which might provide cross-examination pathways to impugn their credit – including with expert witnesses.
Seventh, in cases involving sharp issues of credit, or involving any witness of concern, inquire whether they have prior criminal or regulatory convictions, and whether they have recently – or at all – posted on social media concerning the case issues. Independently, check their SM postings.
Eighth, the purpose of witness conferences, collectively, is to detect your client’s strong and weak witnesses, and potential case theory weaknesses and evidentiary gaps, which in turn can inform inexorable settlement negotiations which will transpire before trial.
Ninth, address formal matters which will assist the witness, such as appropriate dress for court, whether they wish to take an oath or affirmation, the title of the judge if engaged in an exchange (“Your Honour”), the title of your opponent and you (“Madam”, “Sir”, “Ms Smith”), electronic hearing assistance available in the court by T-coil if required, date and time when they will be called, and court hours.
Tenth, for any witness, the ultimate issues for you as counsel are: “Will the testimony of this witness assist or detract from my client’s case theory?,” “Will the court repose confidence in the credibility, or reliability, of this witness?” and “Should – or need (eg adverse inference drawn, possibly, if not)- I call this witness?”
The mantra:
In our view counsel ought rehearse a mantra to each witness. Not only does it comprise a check-list, but it constitutes a course of practice about which evidence can be given in the event of a complaint about counsel’s conduct, and if called upon to recollect – ordinarily well after the event – how they managed the conference with a witness.
Our mantra is something along these lines:
“The purpose of me conferring with you is to discuss the detail of the matters about which you will be asked in court, in Evidence in Chief and Cross Examination. You must answer all questions.
Ethically, it would be quite wrong of me to tell you – and I will not tell you – what to say in answer to any question. I will be struck off as a barrister if I do that. But it is apt for me to discuss with you your manner of general expression in giving your necessarily truthful answers to any question asked of you by me, opposing counsel or the judge.
Truthful answers may consist of a ‘yes’, ‘no’, ‘I do not recall’, ‘I don’t know as I was not present during that discussion’, and sometimes giving a more expansive explanatory answer – in particular to an open question by me in evidence in chief or a ‘no’ answer in cross-examination.
Be succinct, not wordy, in answering. Remain calm as possible and do not anticipate questions – wait for the direct question and answer it directly. You are fully entitled for question to be repeated, or re-phased so you know what is being asked (but you are not entitled to know why a question is asked) .
If the truthful answer to a question asked of you is one you consider embarrassing for you or unhelpful to our case, answer it without hesitation. Evasion thereof will be obvious to the judge and all lawyers and others present, and you will be required to answer anyway.”
A means of underscoring same is to request the briefing solicitor pre-conference to write to the witness to the above effect. Alternatively it could be inscribed by you on a sheet and given to the witness at the outset, and spoken to.
The lessons:
The following are the overarching matters which will assist in staying within the bounds of the above rules.
First, study – and periodically re-study – the Barristers Rules. You are obliged to be familiar with and abide same. Otherwise, take up another career outside the law.
Second, make it clear at the outset of a conference with any witness that their obligation is to tell the truth to the court, irrespective of their view as to whether that makes them look foolish or is unhelpful to the client’s cause. That stated, prepare them by canvassing directly with them the matters with which they need give succinct evidence and will be challenged respectively. All that may lead to you not calling them.
Third, as counsel you are responsible for what happens in conference and court with your witnesses. Do not be dictated to by an instructing solicitor who might prefer a more expedient course to ingratiate themselves with – by “coaching” – a witness as to what they ought testify at trial.
Fourth, avoid the otherwise expedient course of keeping non-client witnesses away from conference with your opponent. Often, as counsel, you will advise that a conference with you ought be pursued with the opponent’s non-client witness. If such witness refuses to speak to you but speaks to the opponent raise that in cross-examination of them , and include a submission at close challenging their objectivity.
Fifth, remember that it is your professional reputation – with the court, and the Legal Services Commission – which is at risk should you be in any way involved in advising or condoning the illicit preparation or “coaching” of a witness, or the adducing of tainted or perjured evidence. Do not go even close to the line. Develop an “invariable conference practice” mantra, so if ever challenged much later as to your conduct, you can give admissible evidence of them.
Welcome to the March Quarterly Issue of Hearsay.
In the last Issue the most significant response – in terms of hits – was to the article by Judge Morzone KC concerning “Court Etiquette: 50 tips on how to behave in and for the courtroom”. For those counsel – in particular junior counsel – who have not had an opportunity to peruse this, it does well repay reading.
In this Issue the lead article concerns Generative AI, with particular focus on use – or, more aptly, future use – by the Bar. Included in this piece is a raft of recent articles across various publications, followed by a comprehensive discussion by Adrian Duffy KC as to where the GenAI path is leading in the short and medium term.
In the “10 Minutes with …” section – I interview not a person, but rather an online platform, namely ChatGPT. Perhaps unsurprisingly, in this space, there was elicited a series of “hallucinations” by way of false case references.
Tony Morris KC has written a detailed, but illuminating article concerning the UK’s Post-Office Scandal. This involved wrongful prosecutions and gaoling of a number of innocent retail post-office operators – and suicide by some of them – by reason of the illicit product of software data.
Mal Varitimos KC writes a colourful article – in more than text – concerning Queensland barristers practising in Papua New Guinea. Charles Matthews reviews the recent inter-state and intra-state victories of the Bar Cricket team. The “Reviews and the Arts” section, edited by Stephen Kiem SC – affords a rich vein of material concerning literature, poetry, film and song.
The Advocacy and Professional Conduct and Practice sections are replete with items of practical interest to barristers, and lawyers, generally.
And there is so much more besides.
Enjoy!
Richard Douglas KC Editor
I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com).
The sub-editor is Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book and podcast reviews.
Much of this film is set in the conduct of a trial for spousal murder in the French inquisitorial (cf common law adversarial) trial procedural mode. In truth, however, it is a film about relationships and their imperfection.
The deceased husband, Samuel Maleski, is a teacher and struggling aspiring author. The accused wife, Sandra Voyter, is a successful author. An argument which ensued the day prior to the fall from their home balcony which killed Samuel – such argument illicitly taped by him – is adduced in evidence at trial and retro-viewed in the film. So much is a pivotal part of the screenplay.
Sitting as the proverbial fly on the wall, the viewer can well appreciate the merits of each side of such spousal argument, going to their perception respectively of the life they lead as a family with all its travails. In effect, they conduct their own trial of the cause that is their marriage, but with the viewer as judge and jury.
Commenting upon such exchange in her evidence at trial, Sandra muses:
Sometimes a couple is a kind of chaos and everybody is lost. Sometimes we fight together and sometimes we fight alone, and sometimes we fight against each other; that happens.
In consequence of this exchange, Sandra’s attorney, Vincent Renzi, submits to the court – more harshly – apropos of Samuel:
In his final days, this man isn’t facing a war in his marriage. He’s facing his own failures. Sandra Voyter is only guilty of succeeding where her husband failed.
Further, although the trial procedure is very different to that to which Australian criminal lawyers would be accustomed, the sentiment expressed by Sandra – as to her success or failure at her trial – resonates:
It’s just, you know, when you lose, you lose. It’s the worst thing that can happen. And if you win, you…kind of expect some reward…but there isn’t any. It’s just…It’s just over. Maybe sometimes, we expect too much…
The viewer is left in real doubt as to Sandra’s guilt or innocence.
This is an outstanding film. It’s abiding quality is its authenticity: a film set in picturesque Grenoble in alpine Western France, but bereft of beautiful country or city scenes, flash cars, beautiful people, fashionable dress, romance, sexual intimacy or sumptuous food.
To the contrary, the characters and extras are plain looking people in casual dress (even in court), going about the drudgery of their drab lives, including eating what the rest of us would whether at home or out (Chinese food, no less, in one prominent restaurant scene). Even the family home is in a state of chaotic renovation. The media coverage of the trial is shallow and lurid.
The lead character Sandra is played by Sandra Hüller, an accomplished German actor. Swann Arlaud plays the defence lawyer Vincent, running a defence case theory of suicide by the husband and constantly hounded by the judge and the prosecutor. Milo Machado Graner plays the couple’s visually impaired 11 year old son, Daniel, who engages on his own investigation of his father’s death and gives evidence (twice) at the trial. Without derogating from the quality of other cast members – the writer’s spouse was particularly impressed by the prosecutor’s performance (played by Antoine Reinartz) – those three lead actors are outstanding in their roles. Even the family dog Snoop is good, and ultimately plays a critical role in the trial outcome.
In an apparent appeal to a non-French audience, the lead performers speak often in English to accommodate Hüller’s character Sandra being a German, with diminished fluency in French, who previously lived in the United Kingdom.
The film’s director is the accomplished Justine Triet. Running time is a lengthy 152 minutes.
The writer gives the film a rating of 4.75 (out of 5).
The film was awarded the Palme d’Or at the 2023 Cannes Film Festival, and subsequently Academy Award nominations in the categories of Best Film, Best Actress in a Leading Role, Best Director, Best Film Editing and Best Original Screenplay. It is rated highest in the last category. This review was written prior to the 11 March Oscars’ Award night.*
