• Publication Date: July 28, 2015
  • EAN: 9781760020262
  • 784 pages; 6" x 8⅝"
Filed Under: Criminal Procedure

The Trial

Principles, Process and Evidence


Product Description

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)(1965)two-colour screenprint, printed on paper, 76.1 x 60 cmArt Gallery of New South WalesPurchased 1965Photo: AGNSW© Wendy Whiteley______________________________________

Written by leading evidence law scholars, combined with practitioner contribution, The Trial examines procedural and evidentiary law under the uniform Evidence Acts. This is a book for evidence law students, scholars and for practising lawyers.

The Trial challenges mainstream approaches to teaching evidence law by:

contextualising the trial within key pre-trial processes, including police questioning, disclosure obligations and pleadings;

connecting law reform, lawyers’ roles and their ethical obligations to promote justice in a broad rather than a narrow, anodyne or legalistic fashion;

acknowledging 21st century lawyers’ need for literacy across human rights fair trial norms and their common law equivalents; and

its interdisciplinary emphasis.

The Trial focuses its study on the important functions of adversarialism and the oral tradition, as well as the consequential price exacted through diminishing access to justice for the vulnerable, particularly those with mental illness or cognitive impairment, children and sexual assault complainant witnesses. Regarding Indigenous Australians, The Trial also shows how such challenges compound the pre-existing harshness of criminal justice processes. In Australia, no comprehensive evidence book presents doctrinal analysis so comprehensively within a humanising context.

The Trial places the criminal jury trial centre-stage. This is where the law of evidence and procedure is commonly hotly contested, where major defining evidentiary case law arises and where the cut and thrust of advocacy, crucially shaping the trial, are classically on show. It is also where rapid change has an impact on expertise and, through law reform, creates pressures on fundamental accusatorial principles in an increasingly complex justice environment.

Foreword by Nicholas Cowdery AM, QC
Table of Cases
Table of Statutes

Shaping the Criminal Trial: Principle, Pleadings and Prosecuting
Adversarialism, Advocacy, Proof and the Jury
Client Legal Privilege
Framing the Criminal Trial
Introducing the Law of Evidence: Relevance, Discretions and Fairness
The Witness in the Box
Cross-examination, Witness Credibility and Related Challenges
Hearsay – The Rule
Hearsay – The Exceptions to the Rule
The Accused in Court
Character Evidence
Tendency, Coincidence and Character Evidence
The Character Battle
Police Questioning and The Accused: Silence and Admissions
Opinion Evidence
Identification Evidence
The Rise and Rise of Judicial 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 – [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)

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