The monster that is advocacy in higher courts

By Osman Samin|16 June 2020
Osman Samin

It was like surfing 20-foot waves of hot molten lava on the back of an untamed dragon as the ground under me was collapsing, all while trying to gun down thousands of little violent flying aliens. At least that is what it felt like the first time I attempted advocacy in a higher court, writes Osman Samin.

As a young lawyer, I fell in love with advocacy as soon as I tried it. To me the idea of being a lawyer was standing in court and slugging it out with an equal adversary. As daunting as advocacy was initially, it was like riding a bicycle down the hill for the first time: I was terrified, but I wanted to continue doing it.

Early on in my career, I was steered towards the bar. Most of my colleagues encouraged me to pursue a career as a barrister. While the bar was attractive, as a business model it was not what I wanted. So, I found myself wondering, why couldn’t I pursue a career in advocacy as a lawyer – what was stopping me?

The answer was that there was nothing stopping me other than the limitations of a title.

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Once I put aside the title and relieved myself from its shackles, I found that I enjoyed advocacy so much more. Over the years, my advocacy progressed significantly and soon I found myself appearing regularly before the District Court and the Supreme Court.

I realised after some time that for most lawyers it was the fear of advocacy that was their biggest limitation, as opposed to their ability to undertake the task. The best example of this was late last year when I represented a single mother of three in an appeal to the Court of Criminal Appeal.

My client did not have the makeup of a seasoned criminal. She had an unblemished record and lived a law-abiding life despite the many disadvantages she had experienced. Unfortunately, at the age of 28, due to extremely pressing life circumstances, she found herself working as a delivery driver for a large drug syndicate who profited from her exploitation.

Despite her very limited mule-like role, she was sentenced to a significant term of imprisonment in the District Court. It was an excessive sentence and one that I thought should be appealed. The only problem was that my client came from a severely disadvantaged financial background and I was representing her on a pro bono basis.

I wanted to continue assisting her, however, the thought of running an appeal in the Court of Criminal Appeal without instructing a barrister was terrifying. At least that is what I had made it out to be in my mind: a monster.

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Although by this point in my career, I had appeared in the Supreme Court many times before, appearing in the Court of Criminal Appeal was substantially more complex. The court was presided over by three judges as opposed to one. Each of whom had legal careers longer than I had been alive.

The court was most frequently attended to by barristers who were either senior counsel or at the very least experienced junior counsel. It was almost unheard of for a solicitor to appear alone in the Court of Criminal Appeal.

Given that, all Court of Criminal Appeal judgements are published and discussed by the criminal law fraternity. If the appeal went horribly wrong, it could have been a significant point of professional embarrassment. It was a lot of pressure, but I couldn’t walk away.

The reason I became a lawyer was to try and help people in need. There were three children now without a mother and someone who had been imprisoned disproportionately. I could not with a good conscience walk away from that.

Over the months leading up to the appeal there was not a day that I did not think about the case. Most of my colleagues thought that I was out of my mind for even considering it. However, I soon realised that instead of worrying about how badly the appeal might go, I should focus on what I could do to make sure that it was successful.  

Very few people believed me when I tell them that at that point I had absolutely no experience in the Court of Criminal Appeal. I had not even instructed counsel in the court. However, instead of dwelling on that, I decided to make up for it by having professional excursions to the court in the weeks leading up to appeal.

Additionally, and most importantly, I read almost every case that was remotely relevant to my appeal. I cannot stress enough the importance of preparation when it comes to advocacy.

When the day finally came. I was the second matter on the list. As I sat nervously waiting for my matter, I watched barrister Grant Brady SC undertake his appeal before mine. It was like he was strolling through the park as he eloquently steered the court with his advocacy.

It was a lot of pressure to have to appear after someone of Mr Brady’s calibre. Nonetheless, before I knew it, my matter was called. As I approached the bar table, I remember looking up at the judges and I got the feeling that they were wondering what in the world I was doing. It was completely out of the ordinary for a solicitor to appear alone in the court.

As I organised myself at the bar table, I felt slightly overwhelmed, I started to second-guess myself. I remember thinking, “what in the world have I got myself into”.

I immediately stopped myself, I took a deep breath, I consciously removed all the negative thoughts, and I decided to believe in my abilities instead. Before I knew it, I was successfully arguing points of law in the highest criminal court in NSW.

I stopped thinking about how big the task was and focussed on my job instead. By the end, I received compliments from the Crown barrister and all three presiding judges on my appearance. I will never forget the parting words from the court:

“It is a difficult thing to come and face this court at the best of times, but you did well, so we congratulate you for that”.

Despite all my fears and doubts, the appeal ended up being successful. My client’s sentence was reduced to almost half of what it was, and the case made valuable authority for sentencing in drug supply syndicates.

My only regret in hindsight was that I wish I challenged my advocacy monster sooner.

Osman Samin is the principal lawyer at Australian Criminal Family Lawyers.

The monster that is advocacy in higher courts
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