National Practice Director, Armstrong Legal | Accredited Criminal Law Specialist.
You’ve managed and appeared in some of the most complex criminal matters in NSW and the ACT. What do you find are the biggest challenges for defence lawyers navigating joint co-accused hearings?
Approaching this from the perspective of a solicitor appearing as an advocate in the Local Court in these kinds of matters, the key is having an appreciation and understanding of the Evidence Act and case law as they relate to these matters. You really need to be across all the relevant provisions and be able to apply them to your case – these aren’t straightforward matters to run. You can’t just turn up, plan to cross-examine everyone, and hope for the best.
You need to be able to work out:
- What evidence is going to be admissible in respect of each co-accused’s matter, and when that might change (for example, depending on who gives evidence, or the cross-examination that is undertaken).
- Whether to make an application for a separate hearing.
- How to exclude evidence from your client’s case where possible.
- Strategic decisions about whether your client should, or should not, give evidence (which might depend on whether the co-accused does). This isn’t just about “do I need this evidence from my client,” although that might be part of it.
How do you approach balancing strategic considerations with the strict admissibility rules in joint or separate hearings?
As always, it’s a balancing act.
In my view, in order to work out the best strategy, you need to examine the evidence that would be available in each scenario, i.e.:
- If the hearings were run separately, what evidence is going to be available in the prosecution’s case for my client?
- What if it runs jointly?
- What if it runs jointly, with no one called in any defence case?
- What if it runs jointly, with one or more of the accused giving evidence?
- What if it runs jointly, and one of the accused calls other eyewitnesses to the matter, but they don’t give evidence?
You need to map out what the possible cases could look like against your client before you can work out, strategically, what the better option is.
Criminal law often intersects with highly personal issues for clients — how do you maintain both technical excellence and a compassionate approach in your advocacy?
This is a fine balance, and one that constantly requires reflection and consideration by advocates. It goes without saying that the matters we deal with often involve highly personal information and subjects, distressing content, and confronting themes.
Your professionalism is everything. Skilled and effective advocacy and cross-examination do not require you to be impolite, nasty, or distasteful when questioning witnesses. I would like to think that these practices have long been abandoned by the profession. You can be respectful and sensitive while still conducting a devastating cross-examination. Indeed, the most effective cross-examination I have seen always has one common denominator – it’s clever. Know your case, plan your cross, ensure you’re “closing each door” – it’s about preparation.
What practical skills do you think are most important for younger practitioners to develop if they want to handle serious criminal trials effectively?
Approaching this from the perspective of a solicitor instructing in a trial, or a solicitor preparing to run a hearing in the Local Court themselves:
- Know the brief. Your job isn’t to send the police brief to counsel and then wash your hands of the matter.
- Understand the Evidence Act. You need to be able to aply it if you’re running a hearing yourself, and if you’re briefing in a trial, you need to at least be in a position to flag for counsel any anticipated legal issues – and to advise your client about them accordingly.
- Prepare, prepare, prepare. This will look different for junior lawyers starting to run hearings compared to more experienced advocates, but in short:
- Get a proof of evidence from your client well in advance.
- Go back to basics: what are the elements the prosecution needs to prove, and what evidence is available on the prosecution’s case about each element?
- Map out any admissibility/evidential issues with the brief of evidence, and consider whether anything needs to be dealt with on a voir dire.
- Insofar as possible, prepare potential legal arguments that might come up. Is ID in issue? Prepare for that. Hearsay, opinion evidence, expert evidence – if you are reviewing the brief properly and anticipating the issues likely to arise, you should be able to have a scaffold of arguments mapped out in advance.
Angela Cooney
Angela Cooney is the National Practice Director of Criminal Law and is responsible for supervising and managing her Criminal Law team in addition to her own caseload. She practices in both NSW and the ACT. Angela is an Accredited Criminal Law Specialist. Angela is a confident and formidable advocate for her clients. She commonly appears in very complex and serious matters, but is able to assist clients with all kinds of criminal and traffic offences. Angela is an experienced court advocate having appeared in the Local and District Court, the Court of Criminal Appeal, as well as in federal jurisdictions in a multitude of matters, including complex strictly indictable trials. With over a decade of experience in criminal law, Angela understands the often interrelated issues that arise in criminal matters and is able to guide clients through emotional and difficult times with sensitivity. Angela is passionate about providing clients with high-quality and easy-to-understand legal advice, and her experience allows her to provide clients with a first-class service. Not only is she a technically impeccable lawyer who understands the law. She is approachable and personable and provides her clients with representation of the highest quality. LinkedIn 
