This work continues as an invaluable practical reference and theoretical analysis. It shows the right way to proceed – and what can go wrong – and how the criminal justice system can prepare for and deal with that.
From the Foreword by Nicholas Cowdery AO, QC, FAAL
Criminal jury trials occur in an increasingly complex justice environment. The Trial distils and explains the criminal trial’s complexities in terms of the daily pre-trial and trial challenges facing courts and practitioners. It draws links to the potential impact of lawyers’ advocacy on courts’ decision-making and the important context of juries, and explicitly recognises that courts’ processes and decisions require not only an appreciation of the uniform Evidence Acts, but also an understanding of human emotion and psychology.
Written by leading evidence law scholars and a criminal law practitioner, this second edition of The Trial:
- contextualises evidence law within pre-trial processes such as police questioning, pleadings and disclosure;
- connects law reform, fair trial norms and lawyers’ ethical obligations to promote justice;
- considers frailties in Australia’s justice system through its pressure points. These include unchecked cross-examination, disclosure, reliance on forensic science, identification evidence and evidence of defendants’ criminal history; and
- has been thoroughly updated and remains an essential tool for students, scholars and practitioners alike.
1. Accusatorial Justice
2. Prosecutors, Pleadings and Proof
3. Client Legal Privilege
4. Introducing the Law of Evidence: Relevance, Discretions and Mandatory Exclusions
5. The Witness in the Box
6. Cross-examination, Witness Credibility and Related Challenges
7. Police Questioning and The Accused: Silence and Admissions
8. Hearsay – The Rule
9. Hearsay – The Exceptions to the Rule
10. Character Evidence
11. Tendency and Coincidence Evidence
12. Opinion Evidence
13. Identification Evidence
14. The Rise and Rise of Judicial Instructions, Directions & Warnings
The Trial does stand apart from other similar books because of its interdisciplinary approach to the analysis of the trial and associated processes. … this text will be a useful companion to a drier, yet perhaps more comprehensive evidence law text. The Trial will also no doubt be a particularly useful text for students critically approaching evidence law. Read full review…
Adam V Chernok, InPrint, Law Institute Journal Victoria, June 2016
This is an engaging text book that ably delivers all that is expected from the title. It is difficult to make text books engaging and entertaining, but this is certainly one area of law where that is possible, and this book does not fail to be enjoyable.
… the text is one which can easily be used by any practitioner who has a trial — be it a criminal
or civil matter. This text manages to find the balance between being comprehensive and authoritative as it explores the principles and processes associated with trials, without overwhelming the reader, to the point of being redundant. …
This book is an easy read, made all the more interesting by the succinct summaries of fascinating criminal matters before each relevant judgment passage. It will likely be well-received by both students and practitioners. This should be a go-to text for many practitioners who see inside the courtroom enough to be aware of these processes, without being expert trial practitioners or advocates. Read full review…
Jillian Flinders, Ethos, ACT Law Society, March 2016
… [The] book offers something for every student of the law, not just for undergraduates. And aren’t we all students of the law?
As a barrister, I found it interesting to read how our workplace is seen from the academic perspective. I suspect that I was prepared to think that academic lawyers would have little understanding of the “how” as distinct from the “why” we carry out our work in Courts. But this book does not suffer in that way. Rather, it contains intriguing, disciplined, well researched analyses of a large number of cases, in a way which enables the reader to gain a greater understanding of both the “how” and the “why”, whilst demonstrating a detailed understanding of the practical side of the “why”.
As Cowdery QC says, “it is a book which lay people would benefit from reading”. For that, might I add journalists who cover the Courts as it is a source of nightly frustration to me to hear their disjointed and unenlightened commentaries on the latest court trial sensation. Read full review…
Brian Morgan, Hearsay, December 2015, 74
This new book by a number of prominent evidence law scholars provides a learned and critical account of the hallmarks of the criminal jury trial process in Australia. In doing so, the authors engage with the principles informing the key aspects of that process, as well as the particular rules in which they are manifest. The particular topics canvassed range from the overarching framework of the criminal trial and the key role of adversarialism in that framework, to the more particular topics of the treatment of the witness in the witness box, the rules of evidence, client legal privilege, the role of the accused (both in court and under police questioning) and the evolving role of the judge, including in giving directions to the jury.
Queensland Law Reporter – 16 October 2015 –  40 QLR
[The authors] take us on an epic journey through the detail of the process that has built up and adapted over centuries in our common law based legal system – the accusatorial, adversarial criminal trial of indictable offences as we know it in 2015 in Australia.
… this is not just a book of sound analysis and discussion of what is and synthesis of what might be (as one would expect from this team). This is a book that goes beyond theory, crammed as it is with practical description, legal references and ideas for dealing with the stages and aspects of the criminal trial that criminal practitioners (for whom this should be an ever-present handbook) encounter every day. Even to experienced practitioners there will be something new or something tacitly recognised for which a thorough explanation is now given.
… It should be a compulsory reference for the media and any politicians venturing into the area.
From the Foreword, Nicholas Cowdery AM, QC, Director of Public Prosecutions, New South Wales (1994-2011)
Brett Whiteley (Australia; England, b.1939, d.1992)
Hyena: no. 6 from the series My relationship between screen printing and Regents Park Zoo between June and August 1965 (detail)
two-colour screenprint, printed on paper, 76.1 x 60 cm
Art Gallery of New South Wales
© Wendy Whiteley