Pincus, The Honourable CW --- "Advocacy, David Ross QC" [2005] UQLawJl 12; (2005) 24(1) University of Queensland Law Journal 223

• Advocacy, David Ross QC, Cambridge University Press, UK, 2005, pp 142, ISBN 052161172

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Advocacy, David Ross QC, Cambridge University Press, UK, 2005, pp 142, ISBN 052161172

THE HONOURABLE CW PINCUS^[*]

Many of the issues which interest practical advocates are perhaps difficult to deal with in a work such as this. A successful Queensland advocate was known for his skill in flattering susceptible courts — often none too subtly. He was said to believe that no amount of flattery was excessive; that the judge who protested at the attempt to flatter was in truth made happier by the attempt. Again, an impression given to me from contact with criminal advocates was that some regarded an important part of their task — sometimes the most important part — as being to get the jury to like and trust them personally. Presumably no amount of book learning would help in these areas. Then, barristers were in my time bothered by the problem of the court whose behaviour is less than perfect — one which is obviously inattentive, excessively garrulous or which displays bias or personal hostility. Means of countering these difficulties exist; it is understandable that a work on advocacy may not deal with them, but such awkward topics at least deserve some mention.

Mr Ross’ is a short and readable book that is likely to be of most use to people practising in criminal trials and in the simpler sort of civil trials. It contains much useful advice, as well as a considerable number of examples of what the author regards as good advocacy. As to the latter, it seems to me likely that studying examples of successful cross-examination is of limited value; generally speaking the counsel quoted in these instances is blessed with ample ammunition — whereas the real test is cross-examining when the magazine is empty. And it has to be said that some of the examples chosen are not especially impressive. One of the cross-examinations involves the assumption by counsel that God would know the precise time of a person's death;^[1] in these days when orthodox religious belief has become less common, questioning along these lines might seem to be indiscreet.

Considering the work more broadly, it is evident that it says little of value about appellate advocacy. This is unfortunate, at least so far as the bar is concerned; success in advocacy at the appellate level and particularly in the High Court can do wonders for counsel’s reputation. And what little is said about appellate advocacy is not necessarily complete. We are told that in such cases ‘the facts are a given’;^[2] but even in the High Court, the arguments often deal at length with factual issues.

Again considering the author’s work generally, it appears to me inclined to the making of excessively general assertions. We are told that a good advocate will rarely make a note.^[3] The practice of reputable advocates as to notetaking in truth varies widely and in some complicated cases extensive notetaking during the evidence in chief may be essential. The author tells the reader that evidence which is known or believed to be false may not be led.^[4] This is, with respect, an overstatement. Where the accused person insists that he is innocent; there is no objection to the advocate adducing evidence to that effect, whether or not the advocate believes it to be true. In the rare case where the evidence is known to be untrue, the position is of course different.

It should be noted that much of what is said is by no means universally applicable. The discussion of police taking or making statements makes no reference to the possibility of video or audio recording;^[5] and the suggestion that the police tell witnesses that the statements they make are ‘just a formality’ is surely an over-generalisation.^[6] And I think it is important for the less experienced reader to appreciate that not all the author’s advice is orthodox. We are told that the accused in criminal trials should never be called by that name; it is said, more generally, that one should ‘always use names rather than general designations.’^[7] This seems to me contrary to ordinary practice. It is common and by no means undesirable for counsel to refer the parties by their designations — ‘the plaintiff’, ‘the appellant’. Although much useful information is to be found in this work, it might have benefited from more thorough and expert editorial scrutiny.

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^[*] The Honourable CW Pincus QC, Adjunct Professor, TC Beirne School of Law, University of Queensland, and former Justice of the Queensland Court of Appeal (1991-2001), and of the Federal Court of Australia (1985-1991).

^[1] Ross, Advocacy (2005) 76.

^[2] Ibid 6.

^[3] Ibid 50-51.

^[4] Ibid 9.

^[5] Except for a very brief mention (Advocacy, 4).

^[6] Ibid 25.

^[7] Ibid 28.