What does it take to appear as solicitor advocate in a murder trial?

I have appeared as a trial advocate in seven murder cases/trials, the first being the Dean Waters trial in 1997, which resulted in his acquittal, and the most recent matter involving a Victorian cold case dating back to 1982 which resulted in the Crown withdrawing the charge in 2025.

As an articled clerk in the late 1970s, instead of heading home after doing the rounds in Sydney’s CBD, attending upon the offices of Stamp Duties, Registrar General’s [as they were then known], filing documents in various Court jurisdictions, exchanging and settling conveyancing matters, I would sit in the District Court’s Criminal jurisdiction, then lined up in Macquarie Street, near Queens Square, watching Judge and Jury trials. It was like watching your favourite TV show or play. I was engrossed in the atmosphere. That was the start of my developing passion and interest in the criminal law.

In the early 1980’s as a young, admitted lawyer in my own practice, I quickly accepted and adopted the advice given to me by my former master solicitor, that “It’s all about preparation and knowing your brief, and the law will take care of itself”.

I also quickly learned, when on top of the brief, more was required. It was essential, to also be on top of the law, and particularly, as it applied to the facts of the case. This involved critiquing relevant judgements that were unhelpful and looking for ways to distinguish such cases from the client’s case and if possible, to point to other helpful cases that were more apposite. This enabled me to “leave no stone unturned” in preparing and conducting my client’s case. I have preached that attitude to our criminal lawyers over many years.

The passion will drive or at least enable you to spend the many hours required to present your client’s case in its best possible light, regardless of the plea.

After spending the early years briefing counsel in criminal trials, I appeared as solicitor advocate in my first trial in 1987. The counsels I briefed were likely sick of me pulling on their gowns suggesting specific questions or submissions and I was quietly confident I could do better.

My first trial was an AOABH (Assault Occasioning Actual Bodily Harm) and resulted in my client’s acquittal. A good start. My Judge and Jury trial statistics are in the vicinity of 90 per cent acquittals. Significantly less in Judge-alone trials and defended hearings in the Local Court.

There are likely many reasons for that, but in my view, largely because my strengths are in cross examination and particularly, in the art of persuasion of ordinary members of the community, jurors, to at least be sympathetic to, if not adopt my reasoning.

By the time of my first murder trial, I had appeared in many serious trials including manslaughter cases but sitting opposite someone telling me they aimed their shotgun at the victim and fired, was an entirely different experience; and I found myself unintentionally judging this person.

From there, I learned a couple of valuable career/life lessons; I have no right to judge anyone unless I have walked in their shoes; and sometimes, good people do bad things. The Dean Waters case is a truly remarkable story. About 10 years after the killing of the deceased, he came forward to admit to what he did, because he could no longer live with the guilt. Very few would do that.

To my knowledge, it was the first case in Australian criminal law where the defence argued involuntariness, due to “brainwashing”, in this case, by his father. After a nine-day trial, the Jury returned an acquittal verdict within about 30 minutes of retiring.

Contrary to the often-expressed legal principle and jury direction that emotion should not play any part in a criminal trial, during the unfolding of the evidence regarding Dean’s childhood and fear of and coercion by his father over many years, told by his siblings and others, I observed that many members of the jury and some seasoned reporters had tears in their eyes and others were clearly impacted. Over many trials since, I have learned and observed that emotion in favour of the accused may lead the jury to a verdict that that may to some, seem to be inconsistent with the evidence.

The Dean Waters trial attracted extensive media attention: 60 Minutes, CSI Australia, many TV interviews, a book about Dean’s life “Raging Waters”, and discussions underway for a feature film or documentary. What an introduction to my first murder trial!

Out of my seven murder cases/trials, two resulted in acquittals, two in the charge being withdrawn, two in guilty verdicts and one in 2022, following a four-month Judge-alone trial during the end of the COVID era, the result remains unknown because regrettably, my client suicided between the judge reserving the decision and announcing the verdict, hence the Judge’s verdict is sealed. It took some time for me to absorb the events of and surrounding that trial.

To my knowledge, I’m aware of a couple of solicitor advocates who have asked questions in cross examination in murder trials, but none who have conducted the whole of one murder trial, let alone multiple murder trials.

To balance the ledger of good results, the heaviest sentence imposed on a client of mine was in 2020 when a head sentence of 26 years with 19 years non-parole, following multiple convictions after trial for sexual assaults involving four complainants. Another lesson learned, namely, always stay humble.

Next to humility, common sense and logic loom large as understated core essentials to the advocate. Without logic, the advocate is likely to overlook important matters in analysis and assessment of the brief, and in cross examination; and there are slim to no prospects of being able to persuade a jury to a view contrary to what they were going to do.

And that is the art in advocacy, namely, the persuasion of the tribunal to a view contrary to what they were thinking.

An advocate will encounter occasions when they have a choice to be ethical and integrous, or to look the other way, when something untoward is unfolding in front of them; for example, it may flow from the client’s changing instructions or the discovery of potential important evidence that assists the client, but that evidence is tainted in one form or another, or relates to taking an important defence statement from a compromised defence witness. An integrous advocate will always choose ethics.

Penultimately, as a director of one of the largest firms on the east coast of NSW [outside Sydney’s CBD], I have no doubt that, as a business model, solicitors within the one firm instructing and appearing as advocate in Judge and Jury trials is significantly more marketable and profitable than the traditional model of solicitor and counsel.

I have over the years advocated for the Law Society to encourage and motivate young solicitors to become trial advocates; and without success, to approach the NSW Bar with a view to obtaining their approval for solicitor advocates to robe [in some form] and wig as does counsel, which is what happens at least, in Victoria. In my view, all advocates should appear as equals when advocating in the justice system. I will continue to so advocate.

Manny Conditsis is a Senior Trial Advocate at Conditsis Lawyers. He is an Accredited Specialist in Criminal Law and a member of the Law Society of New South Wales Criminal Law Committee.