Pleas of Guilty – Some Advocacy Tips

1. Pleas of Guilty – Some Advocacy Tips • The Fundamental Question • Preparation • Structure (and more structure) • Primacy • If you are asked a question answer it • Relationship with the listener • Language • Body language • Use of prompts (notes) • Story telling • Practical examples • Plea of guilty • Oral evidence on a plea of guilty • First and Last sentence • Preparation – preparation for performance

2. 1. The Fundamental Question • What do I want? • You cannot present an effective plea without knowing what it is you are actually asking for. • If you don’t know don’t stand up.

3. 2. Preparation and Preparation for Performance • Preparation • Knowing everything: law, procedure and tribunal • Preparation for performance: • What you finally say in your plea should be seen to be the product of your preparation and not the preparation itself (dot points). • When you stand up not having to refer to anything to present your plea.

4. 3. Structure • You know what you want. A structure means knowing where you are going and how you are going to get there. • A very simple structure for a plea and one that I use all the time is as follows: • Penalty – what do I want? • Objective circumstances. • Technical matters. • Subjective/personal matters. • Conclusion – one sentence to wrap it up.

5. 4. Primacy • Urgency/ priority • Directing attention • Identification of the specific result contended (when receiver is most receptive?)

6. 5. If you are asked a questionanswer it • If at any stage of your plea you’re asked a question answer it immediately. • If you don’t answer it you may as well sit down because the Magistrate or Judge will not listen to you. • If you can’t for a (very) good reason answer the question immediately (e.g. because you want to take the bench to something else) then politely tell the Magistrate or Judge that. This would be exceptional.

7. 6. Relationship with the listener Language • Cut out the use of “lawyer talk” • Short and simple words (e.g. vehicle/car, prior/before) • Use emphasis where appropriate (e.g. the use of a pause) Body Language • Engaging with the Bench • Look (head up) • Listen • Natural body movement

8. Relationship with the listener Use of prompts (notes) • Use of notes – don’t read as they should prompt memory • Use of notes and relationship to eye contact • Organisation at the Bar table • One page hopefully Story telling • Setting a scene/ describing the action • Use of diagrams/images/exhibits (where appropriate)

9. Pleas of Guilty 7. Practical examples - structure • Plea of guilty b. Evidence in Chief – sentence matter

10. Practical Examples - Structure Assume some facts • Found guilty at trial of reckless wounding • Party at a house where drinking occurring – victim (V) drunk and accused(D) drinking but not drunk • Argument occurs provoked by V (words and conduct) • V punched D once and then grabs D (bear hug) and there is a struggle • D stabs V more than 10 times (D pulled a knife from his jacket pocket).D genuinely feared for his own safety • D also suffered injuries • D has mental health issues including depression and paranoia

11. Practical Examples - Structure Plea of guilty • Objective circumstances • Technical matters • Personal matters

12. Practical Examples - Structure Plea of guilty • O/W – opening words • Excessive self-defence • Injuries to victim • Provocation • Mental health – contributing to offence • Spontaneous – little planning • Objective circumstances • Technical matters • Section 21A matters • Time in custody • Mental Health – general deterrence • Extra-curial punishment • Personal matters • 21 • Lives at home with parents – support • Not associating with same people • Mental health – custody • Future • Final submission • i.e. no full-time imprisonment Question still remains – how am I going to present this?

13. Practical Examples - Structure Evidence in Chief – sentence matters • Details • Reports • Background • Chronology – leading up to offence • Sorry • Chronology – post-offence • Future

14. Practical Examples - Structure Evidence in Chief – sentence matters • Details • Name, age, gaol/address • Reports • PSR • Psychological/psychiatric report • Letter • Background • Might not need to add anything to the reports • Something important to highlight – mental health? • Chronology – leading up to offence • Period leading up to offence • Minutes, days and months leading up to offence • Offence

15. Practical Examples - Structure Evidence in Chief – sentence matters…cont. • Sorry • Victim • Victim, family and community • Yourself? • Chronology – post-offence • Arrest and charging • Custody (e.g. protection, visits and incidents) • Future • Plans in and out of custody

16. 8. First and Last Sentence • How many of us can actually say that in the last plea that we did we knew the first sentence that we would use, and the last sentence that we would use. • The same can be said for your final words in a plea. • Do we start a plea by saying “I am instructed that”, “there is a plea of guilty and I think its matter number”or do we try and be more creative and in a few words “grab” the attention of the bench? • Write down the actual words

17. Pleas of Guilty – Some Advocacy Tips • The Fundamental Question • Preparation • Structure (and more structure) • Primacy • If you are asked a question answer it • Relationship with the listener • Language • Body language • Use of prompts (notes) • Story telling • Practical examples • Plea of guilty • Oral evidence on a plea of guilty • First and Last sentence • Preparation – preparation for performance

18. Advocacy – Some Tips… 9.Preparation – preparation for performance