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A message from the Court of Appeal: Stop with the ‘grandiloquent’ advocacy
The Court of Appeal has some words of wisdom for aspiring barristers out there: grandiose, pretentious advocacy isn’t cool.
No matter how impressed you may be by over the top, theatre-like courtroom manner, the top court thinks there is no place for “grandiloquent, rhetorical and at times almost facetious” advocacy in modern criminal trials (though we did find it ironic the court decided to illustrate this point using such pretentious language).
The man who prompted Lord Justice Davis to make these damning comments is Counsel’s Chambers barrister David Leathley, who was accused of conducting a short criminal trial in 2014 in a “wholly incompetent and misguided” way.
Though the appeal court stopped short of ruling that his eccentric behaviour jeopardised the safety of the original jury verdict, it did agree the cross-examination conducted by Leathley was “unduly prolix” and in many ways “ill-presented”.
The Lord Justice also didn’t have much nice to say about the Bedfordshire based barrister’s closing speech. He said:
It is complained that [the speech] was put in a grossly hyperbolical as well as in an unfocused and unstructured way.
[I]n the course of certain illustration which Mr Leathley had sought to make in his speech, he had made reference to the ‘Spastics Society’. That is a name which has not officially been used for over 20 years and is capable, in some quarters at least, of giving rise to offence… [I]n addition, the jury note also complained that Mr Leathley’s ‘ramblings have been a dreadful waste of court time’.
This isn’t the first time Leathley has made waves since he was called to the bar in 1980.
Described on his chambers profile as “tenacious”, the criminal defence specialist was reprimanded by the Bar Standards Board a few years back for impersonating a QC colleague of his. Not long before, he lost a long-winded appeal against a £30 parking ticket, which ultimately ended up costing him £815.
(Legal Cheek July 8, 2016)
這種刑事律師, 在香港一點也不陌生, 像做戲一樣, 很戲劇化的盤問, 隨便就可以叫出幾個名。至於浪費法庭時間, 就多不勝數了。但是, 香港的法官忍耐力強, 任問唔嬲, 可能被上訴庭「治」到好溫純, 所以很少會干預, 「窒 」幾句又被指bias, 自己問幾句又被指enter into the arena, 所以只好傻傻地坐在那裏不發一聲。上訴判辭中, 很少會見到批評辯方律師問不必要的問題浪費法庭時間的。
這種情況的表表者, 可謂無出其右的, 就是上訴庭還未判決的這一單, 只看一段已看出眉目:
4. The appellant in HCMA 685/2013 was convicted of indecent assault after trial on 30 September 2013 and was sentenced to 14 days’ imprisonment. It was alleged against the appellant that while watching a film in a picture theatre he indecently assaulted a woman who was sitting in the adjoining seat to him by touching her thigh with his hand. The trial lasted 17 days with 4 earlier appearances which included 2 pre-trial reviews. The major complaint in the appeal concerns the conduct of counsel who had the carriage of the case on behalf of the defendant. It is submitted that this was a straightforward and simple case that should have taken no more than a day to be heard. It is alleged that the length of the proceedings was created by counsel’s conduct, including his cross examination (by its prolixity and repetitiveness) and by the introduction of numerous irrelevancies.
(HCMA 685/2013 and HCMA 425/2014)
一單簡單到可以一日審完的非禮案審出17日來, 另加4堂審前預審, 被告被定罪坐監, 辯方大狀MARK RICHARD CHARLTON SUTHERLAND也被罰虛耗訟費(wasted costs)$180,000。間中都有上訴以辯獲律師失職作上訴理由, 一般涉及抗辯時犯錯, 水平太低等作為理由, 以律師拖長審案時間而至對被告不公作為上訴理由, 恕我孤陋, 甚少見到。SUTHERLAND的做法不是grandiloquent(誇張), 而是太空漫遊式的問法, 單是盤問非禮受害人已問了4天半, 那只是一宗在戲院內摸鄰座女觀眾大髀的案件。很多人都在熱切期待這件案的上訴結果。非禮案被告大條道理可以上訴得直而無需重審, 至於大狀嘛, 應該駁回上訴再加訟費, 上訴庭要發強烈訊息譴責這種使大律師專業蒙羞的可恥行為。若如此, 我就破戒為他乾一杯。咁黑心? 當然喇, 敗類歪種, 不能姑息, 以儆效尤。搵食還搵食, 也要先顧及被告的利益, 不能殘人以自肥。
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