Can you have a free consultation?

Yes. A quick telephone appraisal in the first instance is appropriate with, receipt by me of critical documents to review before we meet.

Do you need a solicitor to brief me?

That depends on the complexity of the matter. Preliminary advice may be given without an instructor (solicitor), as with simple applications, and minor to medium criminal matters.

Corporations, accounting firms, government departments et al. may brief me initially. After that, the rules require ethical dispensation to act without a solicitor.

Can you find me a solicitor?

Yes. I can direct you to the full variety of solicitors from larger firms to small dedicated practices. These are people I have worked with and whose work practices are known to me.

Can you work “no-win no fee”?

Yes. If I make an assessment of the merits of your matter. I will explain the terms and conditions of such an approach. Such terms can be extremely beneficial to a client protecting them from fees for the duration of the litigation which may be over a year. There are trade-offs - such as the triggering of fee obligations in certain circumstances, such as the refusal to accept a reasonable offer from the other side.

There are more cases than Judges/Magistrates.

There are more cases than Judges/Magistrates because roughly 80% of all matters settle before being called on.

It takes time for parties to decide to settle, however, so there is normally a queue first thing in the morning before the list “clears”. Your matter may not be heard immediately and sometimes not at all on the day it is set down for. You may have to sit for some hours. Be prepared to utilise the time in other ways after you are satisfied you have memorised your evidence.

The Magistrate (Magistrates’ Court) is addressed as “Your Honour”.

The Magistrate (Magistrates’ Court) is addressed as “Your Honour” and a Judge(County Court and above) as “Your Honour”.

After you have used this expression a few times it is not improper to use “Sir” as a short form for a male Judge. Female Judges should simply be called Your Honour. A Magistrate and a Judge are both Judges. The words Judge and Magistrate are simply a reflection of rank in the Court hierarchy.

Who oral evidence you give from the witness box should be addressed to?

Oral evidence you give from the witness box should be addressed to the Judge/Magistrate personally. Look at him/her.

He/she may not be looking at you all the time as he/she will be taking copious notes. However, when he/she does look at you it may be that he/she wants to size you up on your answer to what might be a critical question. Take the opportunity to look he/she in the eye and show by your manner, and demeanour that you are a truthful witness.

You cannot take cues on what type of answer you should give.

You cannot take cues on what type of answer you should give to a question from signals given by friends or your barrister. If you are spotted doing so the credibility of your evidence will suffer significantly.

The whole truth is not just the law - it is the safest course.

The whole truth is not just the law - it is the safest course.

Proceedings are tape-recorded. If you lie on oath and the lie is discovered later the Court may refer the lie to the Office of Public Prosecutions for the laying of perjury charges. Perjury is a crime of dishonesty and such offences are regarded seriously by the Courts. Telling the truth is the safest course because every fact is surrounded by supporting circumstances.

If you tell an untruth or half-truth about a fact, you have to also bend the truth about surrounding circumstances so the half-truth you have told seems credible. It may not be in your power to bend the truth about surrounding circumstances because there may be independent evidence.

Where documentary or physical evidence is slim Judges must rely on their experience to determine whether to believe the oral evidence of a witness. If they decide you have told a half-truth on an important matter it is a simple and justifiable approach for a Judge to question the truthfulness of all your evidence.

Have you signed a witness statement?

If you have, read it at least twice before you come to court. You shouldn’t be scratching your head for answers in the witness box nor contradicting a document that the other side might have seen. Think about the evidence you will give and why it should be believed. Have you told your barrister everything that could be used to help him make the Judge believe you?

The course of evidence is that the Plaintiff leads its witnesses first.

They are then, each in turn, cross-examined. If something arises in cross-examination that wasn’t questioned in evidence in chief, the Plaintiff’s barrister can re-examine at the end of the cross-examination. At the conclusion of the Plaintiff’s witnesses, the Plaintiff announces the closure of its case. Defendant then leads its witnesses which are cross-examined and re-examined where appropriate. At the end of the case, the Barristers in the Magistrates Court are meant to sum up questions of law only but often they can make submissions on the facts as well.

What is the best way to give evidence?

Your evidence should be firm, clear, and unshakable. “I believe so”, “probably”, and “might have” answers simply fail to establish a point when the other side says they are sure or certain about their evidence on a point.

Cross-examination - everyone’s fear.

Under cross-examination, every question posed by the other side is designed to generate an unfavourable answer to the case you are giving evidence. Why fear cross-examination if you are telling the truth?

It is an opportunity to repeat the truth you have told in evidence in chief. Under cross-examination, the questions are often put as statements that conflict with propositions being put in support of the case you are aligned with. It is inevitable that you will have to agree to some of these statements. That is not a catastrophe.

If a case was “black and white” in terms of who was right and wrong it would not get to Court. Don’t be caught out trying to deny everything put to you under cross-examination. In doing so you can appear to be not a witness of truth. Listen to the question and answer it. Short answers are best under cross-examination.

If the statement put simply is an incorrect version of your evidence you are allowed to say simply “That is not correct”. If you feel strongly that you can give a longer explanation to rebut the statement - do so. If something arises from your answer that you didn’t get to explain in examination in chief your barrister will get a chance to ask you about it in re-examination.

Cross-Examination Traps.

Some barristers will try to mock, use disbelieving body language or use expressions like “Come come Mr. X do you really expect the Court to believe that answer”. That is not a proper question. It is effectively asking the same question twice which is not allowed.

Barristers cannot ask the same question twice but if they do it is an opportunity for you to re-enforce the truth twice. It is not an opportunity to try and be creative and give new abstract reasons for believing your answer. If you go down that path you have fallen into the fishing trap where a barrister wants you to stray from your firm clear evidence into some vague unclear evidence on which he/she can attack you.

The worst case scenario is where the cross-examining barrister tricks you into believing that your evidence has been completely disbelieved by the Judge. A barrister can, by putting a witness under pressure, get him/her to blurt out something stupid or ramble on defensively.

One technique is to ask questions in quick succession and trick a witness into thinking equally quick answers are required. That is a trap that stops you from taking the proper time to think about your answer which can result in badly expressed answers which are interpreted as true answers given under pressure. Remember the Court requires decorum.

You are not allowed to be “verballed”. As an exercise imagine yourself being called a liar. Judges do not like that question as it is disrespectful and must be backed by clear evidence that a person has lied. Now realise that Barristers questions are not evidence - only your answers are evidence.

• These are Australian courts, not American courts. Do not think the conduct of the trial is like that seen in American television programs which emphasise drama. Australian courts follow the English model. Lawyers cannot walk up to the witness box lean against it and look you in the eye.

The lawyer must stay behind the bar table. Courts are very concerned with protecting their reputations as institutions that maintain the highest standards. You will not be sneered at, jeered at, laughed at or abused. You will be asked questions respectfully.

Have you already made sworn statements such as answers to interrogatories and an affidavit of documents?

These have the same weight as evidence from the witness box on oath (oral evidence). Be aware that diverging from these statements in your oral evidence will be a basis for attack on you for making inconsistent statements.

Justice is blind - help it in the sense that the Judge will decide only on the matters put before him/her.

Don’t be casual in your efforts to find evidence and witnesses to support your case. No case is ever a ‘walk over’ unless one side is badly prepared while the other is well prepared. Preparation wins cases. If there are complex matters/concepts help your barrister by creating short statements explaining them.

Is it safe to reveal tax evasion in your evidence?

No. In fact, if the evasion is serious enough the same discretion exists in a Judge as it does in relation to perjury - to report you to the relevant prosecuting authorities. In addition, your tax return is signed as a declaration. If it is revealed that your tax return is a falsehood in some way your evidence will suffer for the reasons set in paragraph 5. As a general rule, minor tax evasion can be revealed safely.

Settling: 80% of cases do settle.

Often on the day of the hearing at Court. Consider what is a commercially practical amount of money you may be prepared to concede before a hearing starts to insure against a loss at the end of a hearing your costs increase substantially if a hearing takes place. If your matter is commercial it is entirely appropriate to take a discount on the amount you are claiming and regard that discount as the price of removing the risk of loss.