From the Bench: Avoidable Pitfalls in Criminal Advocacy – A Distillation

Judicial observations from the Tasmanian Supreme Court reveal recurring deficiencies in criminal advocacy, particularly in bail applications, appeals against conviction, pleas in mitigation, and jury advocacy. The themes are consistent: counsel’s paramount duty is to the court, not to the client; forensic judgment must prevail over misplaced loyalty; and effective advocacy demands preparation, focus, and restraint.

Bail Applications
Few areas better illustrate the advocate’s duty to act contrary to client wishes than bail. McHugh J’s observation in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [113] reminds us that the common law uniquely requires advocates to subordinate client interests to the court’s integrity. Bail hearings frequently expose this conflict when counsel press hopeless applications simply because the accused insists on “giving it a run”.

Counsel must exercise professional judgment and decline to present unarguable applications. Examples abound: a defendant charged with family violence offences who seeks bail to reside near the complainant, or where the only response to a breached police family violence order is that it has since been replaced by an interim order. Such applications cannot succeed and should not be advanced.

Where an application is arguably open, advocates must ensure proper procedure. Bail must be sought in respect of all complaint numbers and files relevant to the accused’s custody, or release will be refused administratively despite the order. Counsel must also confirm that jurisdictional and timing requirements are met.

Repeated bail applications are restricted by the principle in Trotter v The Queen [1977] Tas SR 75. Green CJ held that, once bail is refused on its merits, a second application may be entertained only where circumstances have materially changed. Mere adjournment of a trial does not constitute such change unless trial proximity was decisive in the original refusal. Advocates who ignore this rule waste judicial time and risk criticism.

Sound advocacy also requires practical discipline. Do not present a surety whose record mirrors or exceeds the applicant’s. Avoid presumptuous phrasing – bail has not yet been granted. Open by recognising that the application is opposed; let the State outline its position before responding. Address the real issue – risk, violence, strength of the Crown case – rather than rehearsing personal histories.

Proposed conditions should be ready but adaptable. Email a soft-copy draft to the associate once the decision is indicated, saving court time. Above all, understand that while the presumption of innocence remains central, public interest and risk of reoffending often outweigh it. Multiple breaches and fresh offending while on bail will usually prove fatal.

Forthcoming reforms will sharpen these principles. The proposed Bail Bill 2024 introduces the concept of “unacceptable risk” as the governing test. Clause 5 defines unacceptable risk and clause 15 directs that bail must be granted unless the court is satisfied on reasonable grounds that the applicant poses such a risk. The court must consider whether conditions could mitigate that risk and weigh public interest factors, including the difficulty of preparing a defence and the likely length of pre-trial detention. The legislation is expected to make refusal more common.

Appeals Against Conviction
Counsel’s ethical independence is equally critical in criminal appeals. As Craig Colvin SC wrote in Brief (Oct 2015), clients may wish to control the running of their case, but the advocate is not a “mere mouthpiece.” Decisions about how a case is presented, both orally and in writing, belong to the lawyer, whose duty to the court overrides client instruction.

This duty governs whether to act at all. A lawyer may not advance a hopeless bail application or an unarguable appeal, however strongly the client insists. As Davies JA said in Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [24], it is improper for counsel to present a case “plainly unarguable and ought to appear so to the lawyer who presents it.” The distinction between a weak argument and a baseless one must be scrupulously observed.

Tasmania’s Court of Criminal Appeal recently reaffirmed this principle. In PAC v State of Tasmania [2024] TASCCA 12, an appeal alleging an unsafe verdict was described as “wholly unarguable.” The Court emphasised that such appeals unnecessarily tax judicial resources and reiterated that counsel must identify genuinely arguable grounds before seeking leave.

Appeals asserting that a jury verdict was unsafe or unreasonable require precise understanding of the law. Section 402(1) of the Criminal Code obliges the Court to allow an appeal where it concludes that a verdict “is unreasonable or cannot be supported having regard to the evidence.” As summarised by Pearce J in Aliano v Tasmania [2025] TASCCA 4 at [25]–[26], the test, drawn from M v The Queen (1994) 181 CLR 487 and subsequent authorities, asks whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt. The appellate court undertakes an independent review but defers to the jury’s advantage in assessing credibility.

Accordingly, pointing to minor inconsistencies, peripheral contradictions, or failures of recollection seldom suffices. Juries may legitimately reconcile discrepancies through common-sense reasoning about memory, perception, or significance. As Wood J observed in AWK v Tasmania [2024] TASCCA 5, counsel must avoid inviting appellate courts to speculate on matters of memory or psychology absent expert evidence. More than mere imperfections must be shown: there must be “other evidence” or “other inadequacy” demonstrating that the jury’s reasoning was irrational.

The difficulty of this task is illustrated in Paite v Tasmania [2019] TASCCA 5, where the majority held that despite numerous anomalies, the verdict remained open to the jury. As Hayne J explained in Libke v The Queen (2007) 230 CLR 559 at [113], the question is not whether the jury might have entertained a doubt but whether it must have done so. Advocates should therefore carefully assess whether a proposed appeal can realistically meet that threshold before proceeding.

Pleas in Mitigation
The sentencing process exposes another frequent weakness: lack of preparation and unimaginative presentation. Counsel should ensure that pleas are ready before listing. Disputed facts should be identified early, not during the reading of the Crown facts. Consider whether psychological or other reports are required, and whether sentencing should occur immediately or after reports are received. Written submissions assist the court; a clear Word version is far preferable to a diffuse transcript.

Advocacy in plea hearings demands engagement, not monotony. Counsel should face the judge, vary delivery, and lead with the strongest argument – the “hook.” A thematic headline helps focus the submission: “Too young for prison” or “Remarkable rehabilitation after isolated mistake.” Subtle reminders of the sentencing judge’s responsibility can be persuasive. Clarence Darrow’s impassioned 1924 plea for Leopold and Loeb is cited not for its length but its moral clarity: accountability for the decision rests with the judge alone.

Effective pleas identify the desired outcome and the principles engaged, without lecturing on them. Counsel should mention alternative options, including fines, where appropriate, and may refer to comparative cases despite the Crown’s limitations following Barbaro v The Queen (2014) 253 CLR 58. Sentencing data and precedents support consistency and can be responsibly used by defence advocates.

When invoking Verdins principles, accuracy is essential. R v Verdins (2007) 16 VR 269 applies only where a proven mental impairment is causally linked to the offending or to reduced moral culpability. Where no such link exists, psychological conditions may still be relevant to mitigation, but misapplication of Verdins undermines credibility. Engagement of the principles does not guarantee a lesser sentence.

Jury Trials
Even at trial, lapses in basic advocacy persist. Defence openings, though optional, should never be omitted. Jurors expect to hear from the defence; silence breeds suspicion regardless of judicial explanation. Even when the case is purely a “put to proof” defence, counsel should briefly emphasise the importance of the prosecution’s burden.

Cross-examination remains the cornerstone of trial advocacy but is too often mishandled. Drawing on Francis Wellman’s The Art of Cross-Examination (1904), the paper reminds counsel that the purpose of cross-examination is twofold: to elicit admissions favourable to the defence and to weaken the opposing witness. The first question should always be whether cross-examination is necessary at all. Has the witness truly harmed the case? If not, restraint is the better course.

Manner and tone are as vital as substance. Courtesy, composure, and brevity earn judicial and jury respect. Endless, aggressive, or unfocused questioning alienates both. As Wellman wrote, the advocate who “seems an earnest searcher after truth” aids his client far more than the one “determined to win at all hazards.” Cross-examine with purpose: target weaknesses, avoid repetition of direct evidence, and never “interview” the witness in court.

Cross-examine only for only what you need. Consider the witnesses competence and credibility.

Competence

• Lack of perception – capacity to perceive – opportunity to perceive – quality of recall of the perception.
• Lack of accurate recall.
• Lack of narrative ability.

Credibility

• Bias, interest, prejudice.
• Prior convictions.
• Moral character, disposition and mental condition.
• Previous inconsistent statements.

The assessment of a witness’s competence involves several interrelated elements: perception, recall, and narrative ability. “Lack of perception” questions the witness’s capacity and opportunity to observe the events in question – whether there were limitations arising from the five senses, positioning, visibility, time, or distance. “Lack of accurate recall” concerns not the clarity of recollection but objective factors affecting accuracy, such as the lapse of time or reliance on memory alone. “Lack of narrative ability” addresses whether the witness can genuinely articulate their own experience, rather than reciting rehearsed or coached evidence, or relying too heavily on a pre-prepared statement.

Credibility, distinct from competence, rests on broader evaluative grounds: bias, prejudice, prior convictions, character, disposition, mental condition, and inconsistencies. It asks whether the witness’s evidence can be trusted, not simply whether they were capable of giving it.

The legendary American advocate Max Steuer’s cross-examination in the 1911 Triangle Shirtwaist Factory fire litigation exemplifies the timeless principles of attentive advocacy. In that case, a devastating fire in a Manhattan factory killed 146 workers, most of them young immigrant women. When a survivor, Kate Alterman, gave her account in chief, Steuer’s quiet, methodical cross-examination revealed her repeated use of identical words and phrases, suggesting her testimony had been rehearsed.

By asking whether she had ever “studied the words” she used and inviting her to “tell the story in any other words,” Steuer exposed the artificiality of her narrative. Alterman’s hesitant admission, “Probably I can”, undercut the credibility of her evidence and, ultimately, the prosecution’s case.

Yet Steuer’s success, while brilliant, was also serendipitous. As the commentary notes, such moments cannot be planned; they arise only through deep listening. Steuer’s example reminds advocates that true skill lies not in theatricality but in attentiveness – in hearing the nuances of each answer rather than mentally drafting the next question. Effective cross-examination is, above all, a discipline of presence.

Jury Dynamics
Claire Baylis’s 2023 novel Dice, grounded in empirical research from the Trans-Tasman Jury Study, offers a rare window into the lived experience of jurors. Baylis, a former law lecturer and researcher, analysed 45 New Zealand trials before writing the novel, which captures jury deliberations from multiple perspectives. Her work reveals the profound challenges jurors face: balancing civic duty with personal obligations, processing complex evidence, and navigating emotional or traumatic testimony.

Dice underscores how jurors often struggle to grasp the procedural and evidentiary structure of trials – what constitutes evidence, why certain material is excluded, and what their precise role is. It exposes a fundamental communication gap between courtroom professionals, fluent in legal process, and jurors encountering it for the first time.

For advocates, Baylis’s insights demand greater awareness and empathy. Jurors must be guided, not presumed to understand. Simple explanations, clear signposting, and plain language are essential. Advocates should ensure jurors comprehend distinctions between examination-in-chief, cross-examination, and re-examination, and should avoid legal jargon that alienates rather than enlightens. The aim is not condescension, but inclusion. Taking jurors “with us every step of the way.”

Closing Addresses
The closing address is often the advocate’s most critical opportunity to persuade. Yet, influenced by Dice and by real-world observation, the commentary warns that many closing addresses fail through overstatement, complexity, or misplaced theatricality.

Jurors, it is noted, dislike being harangued or shouted at. They prefer calm, respectful communication delivered in a measured tone. Theatrics and emotional grandstanding are counterproductive. Advocates should speak plainly, guide the jury through their case theory step by step, and focus on clarity rather than passion.

Selective emphasis is key. The defence should not attempt a comprehensive review of the evidence, the prosecution will have done so, but should instead identify and explain a few decisive points with care. Legal exposition should be minimal; jurors rely on the judge for legal direction. The advocate’s role is to make the facts persuasive, not to deliver a lecture in law.

If, for example, self-defense is at issue, counsel need not outline the full legal test but rather persuade jurors that the accused genuinely believed they were in danger. The judge will provide the legal framing; counsel must secure the emotional and factual plausibility.

A striking insight concerns what might be termed the “infection theory” which is the idea that weak arguments contaminate strong ones. Advocates who dwell on trivial inconsistencies risk undermining their credibility with the jury. Jurors, experienced observers of human inconsistency, understand that minor discrepancies in recollection are common and often meaningless.

Instead of laboriously cataloguing every variation between a complainant’s statement and testimony, counsel should acknowledge the breadth of inconsistencies and focus only on those that truly matter. A phrase such as, “There are so many inconsistencies that I will not detain you with them all, but these, I say, are fatal,” carries far more persuasive weight.

Moreover, advocates should consider abandoning technical language such as “credibility” and “demeanour,” terms unlikely to resonate with lay jurors. Simpler formulations such as “Did the witness appear truthful?” or “Did they seem reliable?” better capture what the jury is asked to assess.

The commentary urges advocates to audit their vocabulary. Expressions like “presumption of innocence” and “reasonable doubt,” though legally essential, can sound abstract or rhetorical when overused. If referenced, they should appear at the end of the address as a final reminder rather than an opening formula.

Similarly, avoid formulaic introductions such as, “Members of the jury, this is the stage where I speak to you.” Begin instead with something immediately substantive – the core of your client’s defence. Jurors want to know the “why” of the case; they want a story they can follow.

Open with clarity. “The defence is simple: the complainant’s account did not happen”. This gives jurors a conceptual framework for everything that follows. A persuasive address, like a good story, is best built around a single coherent theory, expressed plainly and confidently.

Lessons for Modern Advocacy
Across these reflections runs a consistent theme: effective advocacy depends not on oratory or intimidation, but on clarity, credibility, and human connection. The advocate must understand the limits of witness perception, the fragility of memory, and the psychology of those deciding the case.

Listening, truly listening, to witnesses and jurors alike is a lost art that remains the advocate’s most powerful tool. Steuer’s quiet persistence, Baylis’s insights into juror confusion, and the modern advocate’s duty to communicate with empathy all point to the same conclusion: the essence of persuasion lies in understanding the listener.

The advocate’s task is to translate complexity into comprehension. To bridge the gulf between legal professionals and ordinary citizens entrusted with justice. That demands humility, discipline, and the courage to discard the trappings of performance for the power of simplicity.

This article is a distillation of a paper delivered by The Honourable Justice Stephen Estcourt AM, Supreme Court of Tasmania, at the Society’s 2025 Winter Criminal Law Conference. Read the full paper here.

October 2025