Working with senior counsel: what to expect.

Most criminal matters in NSW are run by a solicitor alone. Matters that are serious enough to be on indictment, or summary matters that warrant the additional preparation, are run by a solicitor with a barrister briefed. For the more serious matters the barrister will be senior counsel: a Senior Counsel (SC) or King's Counsel (KC), or a senior junior with comparable experience. The relationship between solicitor, junior counsel, senior counsel, and client is one of the working features of the criminal justice system in NSW. It is also one of the parts of the process that clients find least transparent. This note explains how the relationship works in practice.

The division of work.

In NSW criminal practice, the solicitor's role is to take instructions, manage the matter end-to-end, deal with the prosecution at the working level, conduct the daily correspondence, brief any expert evidence, prepare the subjective case, manage the file, instruct counsel at court, and be the client's primary point of contact through the proceedings. The barrister's role is to specialise in advocacy: to advise on the law and the strength of the case, to prepare the cross-examinations and the addresses, to appear at the hearing or trial, and to lead the matter at the bar table.

The division is functional rather than rigid. In smaller matters the solicitor handles both roles. In larger matters the solicitor and barrister work as a two-person team across many months. In the most serious matters a senior counsel leads a junior, with the solicitor instructing both. The client's experience of the matter is shaped by the strength of the team and by how well it works together.

When senior counsel is engaged.

Senior counsel is engaged where the matter justifies the additional cost and expertise. The matters that ordinarily warrant senior counsel are these.

Strictly indictable trials. Murder, manslaughter, aggravated sexual assault, large drug supply, large fraud. The trial in the District Court or Supreme Court is fought on the law and the evidence at a level that requires a specialist trial advocate.

Defended Local Court matters on serious facts. A defended hearing in the Local Court on a matter that engages a real liberty risk (significant aggravated charges, repeat-offender exposure, professional registration consequences) often warrants senior counsel even at the summary level.

Sentence hearings in the District or Supreme Court on serious matters. A sentence hearing where full-time custody is in play, where the head sentence and non-parole period are likely to be substantial, or where the sentencing exercise is legally complex (multiple offences, accumulated terms, totality, standard non-parole periods) warrants senior counsel.

Appeals to the Court of Criminal Appeal. A CCA appeal on a question of law, sentence appeal on a manifest excess ground, or a Crown appeal almost always warrants senior counsel.

Other matters of legal complexity. Constitutional points, novel statutory interpretation, complex evidence issues, public-interest immunity claims, contested expert evidence, or any matter where the legal argument is the heart of the case.

The first conference with counsel.

The first conference is usually held at counsel's chambers. The solicitor attends. The client attends unless the conference is purely on a legal point. The conference runs for one to three hours depending on the complexity of the matter.

The conference is structured around the brief and the question counsel has been asked to address. Counsel will have read the brief in advance. The conference is not a re-telling of the facts; it is a working session on the legal strategy. Counsel will ask the client questions, sometimes uncomfortable ones, to test the strength of the defence and to identify weaknesses that the prosecution will explore at trial. The client answers as honestly as they can; honesty in conference is the foundation of an effective defence.

At the end of the conference counsel will give a view on the matter. The view is provisional; it will be updated as the brief expands, as witnesses are spoken to, and as the matter develops. The view at the first conference establishes the framework for the defence, including the legal arguments to be developed, the witnesses to be called, the cross-examinations to be prepared, and the subjective case where the matter resolves to a plea.

The brief to counsel.

The solicitor prepares the brief to counsel. The brief includes a covering memorandum setting out the issues counsel is to advise on, the prosecution brief of evidence, any defence material gathered, any expert reports, the client's instructions, any correspondence with the prosecution, the criminal history, and any other material counsel needs. The brief is delivered to counsel's chambers in advance of the conference.

The brief is the document by which the solicitor's work is most visible to counsel. A well-prepared brief, with a clear memorandum and the material organised, lets counsel use the first conference to advance the matter. A poorly prepared brief, with no memorandum and the material disorganised, costs the matter a conference's worth of preparation that has to be redone.

The fee structure.

Senior counsel charges by the day for court attendances and by the hour for preparation and conferences. The daily rate varies; for a SC or KC in NSW criminal practice the daily rate is typically in the upper four-figure range. Junior counsel is typically half to two-thirds of the senior rate. Conference and preparation hourly rates are calculated on a six-minute unit, the standard professional time unit in Australia.

Counsel's fees are quoted by the brief, by the day, or by a combined fee for a stage of the matter (committal, trial, sentence, appeal). The solicitor obtains the fee quote in advance, presents it to the client as part of the overall fee disclosure, and bills counsel's fees through the solicitor's account. The solicitor does not mark up counsel's fees; counsel's fees are passed through to the client as a disbursement.

For matters funded by Legal Aid, counsel is briefed under the Legal Aid scale. The scale rates are below the private rates; specialist counsel are sometimes prepared to accept the Legal Aid rate on particular matters where the work warrants it. Senior counsel on Legal Aid matters is allocated through Legal Aid in consultation with the assigned solicitor.

What counsel does at court.

At a hearing or trial, counsel leads the matter at the bar table. Counsel opens or responds to the prosecution opening, examines and cross-examines the witnesses, makes the legal arguments on admissibility and on directions, addresses the court on the law and on the evidence, and closes the matter. Senior counsel where briefed leads junior counsel; junior counsel takes part of the cross-examination and addresses where the case management plan provides for it.

The solicitor instructs counsel at the bar table. The instruction role is substantive. The solicitor takes notes, manages the client's needs through the day, fields questions from counsel about the brief or the witness statements, arranges for additional witnesses to attend when their evidence comes forward in the timetable, and deals with the prosecution outside the courtroom. The solicitor is also the person the client speaks to during the day for everything that is not addressed at the bar table.

One last note.

Senior counsel is not used in every matter; it is used in matters that justify the additional cost and expertise. The right senior counsel for a particular matter is selected by the solicitor on the strength of the counsel's experience with the kind of matter, their reputation at the bar, their availability for the proceedings, and the rapport with the client. Where senior counsel is engaged, the matter is run as a team: solicitor, counsel, and client working through the months between the brief and the hearing. The client experience of the team is shaped by the strength of the working relationship between solicitor and counsel; it is one of the things to ask about when selecting a firm to run a serious matter.

This note is general information about NSW criminal practice and is not legal advice for any particular case. For advice on a real matter, contact us through our contact page or phone 0421 717 019.

← Back to all insights