Some Ethical Issues for Legal Practitioners

The College of Law
Professional Skills Development Programs
The Banco Court
19 November 2015

RTF version - 200 kb

1. I propose to deal with the following topics:

(a) some ethical issues presented by the Federal Court's docket system;
(b) preparation of witnesses for the giving of evidence; and
(c) explaining a loss to a witness or a client.

2. When a judge gives a paper on a topic like this there is a real danger that it will be perceived as a finger-wagging exercise. That is not my aim. Many of the issues which I will raise present challenges not only for practitioners but also for the Court. It is important that this is understood and that we work together to avoid the problems which can arise.

(a) The Federal Court docket system

3. The Federal Court docket system can give rise to important ethical issues for legal practitioners. The issues are not necessarily unique to the Federal Court. They have potential relevance to dealings with the chambers of any judge (see, for example, R v Fisher [2009] VSCA 100; (2009) 22 VR 343), but they are probably more likely to arise in the Federal Court because of the Court's docket system.

4. Since 1998 the Federal Court has conducted what could be described as an innovative case management system. When a proceeding is filed in the Court in which the relief sought will follow a trial, the proceeding is assigned to a judge for the management of the proceedings and for the hearing of the trial. Thus, the judge to whom the proceeding is assigned bears responsibility for managing the proceeding from start to finish.

5. Other key elements of the individual docket system are:

• there is a model time frame for key case events to occur, encouraging minimum appearances with maximum returns;
• there is an emphasis on active judicial management, including the monitoring of parties' compliance with directions and maintaining regular contact with parties regarding the progress of the case; and
• there is also an emphasis on the earlier and more effective identification of cases suitable for alternative dispute resolution.

6. Earlier this year some significant changes were made to the Court's operation under the rubric of the National Court Framework (NCF). The Court has been divided into eight national practice areas (NPAs) which will operate across all registries. National co-ordinating judges have been appointed to lead each of those areas and there are also registry co-ordinating judges. The NPAs are as follows:

• Administrative and Constitutional Law and Human Rights;
• Admiralty and Maritime;
• Commercial and Corporations;
• Criminal Cartel Trials;
• Employment and Industrial Relations;
• Intellectual Property;
• Native Title; and
• Taxation.

7. The docket system has not been replaced by the NCF, but there have been some modifications. Cases will now be allocated to docket judges under a nationally consistent regime which is overseen by the Chief Justice. Each new filing will be reviewed by the National Operations Registrar and allocated to the relevant NPA or sub-area depending upon the character of the matter. Cases will be allocated to individual judges in the relevant NPA or sub-area, taking into account judicial workload and other relevant considerations.

8. As was previously the case, a matter having been allocated to an individual judge, that docket judge will have responsibility for the matter from the time of its allocation through to its disposal. More active case management by a docket judge can create a risk that contact between the judge's chambers and the parties' legal representatives provides a foundation for an allegation of apprehended bias and an application for recusal.

9. The docket system allows the parties, with the leave of the Court, to contact the associate to the docket judge. It is evident that this opportunity is sometimes misunderstood by practitioners and used inappropriately to circumvent obligations to obtain leave or abridge time (see, for example, FWR Enterprises Pty Ltd v Hawkins [2005] FCA 579 at [31]-[34]). There have also been cases where contact with a judge's chambers has led to applications being made to have a docket judge recused for apprehended bias (see, for example, Perre v Apand Pty Ltd [2004] FCA 1116). These matters highlight the need for practitioners to understand and adhere to the following core ethical requirements in communicating directly with the chambers of a docket judge.

10. First, while noting that such contact will usually relate to matters of practice and procedure, in the absence of exceptional circumstances (such as the proposed making of an ex parte application), any such contact should only occur with the knowledge of the other parties to the litigation. If the communication occurs in writing, such as by way of email, it should be copied to the other parties simultaneously (see Porter v APRA [2009] FCA 1148 at [20]).

11. Secondly, unless the other parties have given their express prior consent, written communications should not include information or allegations which are material to the substantive issues in the litigation.

12. Failure to abide by these basic requirements can have serious consequences. They are well illustrated in litigation between Comcare and John Holland Rail Pty Limited. At first instance, an application was made for the docket judge to disqualify himself for apprehended bias (see Comcare v John Holland Rail Pty Ltd (No. 3) [2011] FCA 164). The application was made following certain communications between the judge's associate and the applicant's solicitor, which occurred without the prior knowledge or consent of the respondents. The communications involved the applicant's solicitor seeking to have the matter listed for mention. The associate passed on the applicant's request to the judge, who determined to convene a mention. Neither the judge nor his associate was aware that the respondents opposed the matter being listed for mention. The respondents sought the judge's recusal on the basis that it was alleged that the judge knew that there had been a communication between his associate and the applicant's solicitor without the prior knowledge or consent of the respondents. This was said to give rise to a reasonable apprehension of bias. It was also asserted that the docket judge had become a witness in his own cause because of a statement his Honour made at the commencement of the hearing of the application for his recusal in which he described the events which had occurred and the nature of his and his associate's involvement and knowledge.

13. The docket judge refused to recuse himself and the matter was taken on appeal (see John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34; 276 ALR 221 (John Holland). The Full Court's decision contains a helpful summary of the relevant principles guiding contact by practitioners with a docket judge's chambers. It also deals with the circumstances in which such conduct might give rise to a reasonable apprehension of bias on the part of the docket judge. The principles and guidance may be summarised as follows:

• there is no general rule that any unilateral communication by a party with a judge's chambers is a serious impropriety which, if acquiesced in by an associate, could give rise to a reasonable apprehension of bias on the part of the judge;
• whether or not a unilateral communication with a judge's chambers by a party or practitioner is improper depends on all the circumstances, including principally "its nature, subject matter and perhaps its sequence and extent" (at [22]);
• there is no impropriety in a party's unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason;
• save in unusual circumstances warranting an ex parte application, it is clearly improper for parties or their practitioners to attempt to communicate unilaterally with a judge's chambers in relation to the substantive issues in the litigation. All such communications of this kind have to be circulated to, or be made in the presence of, the other parties unless those parties have previously consented to such a unilateral communication being made to the judge;
• breach of the principles stated immediately above would amount not only to an impropriety on the part of the party making the communication but may, in certain circumstances, be relevant to whether there is a reasonable apprehension of bias on the part of the judge;
• the mere making of a unilateral communication which gives rise to a presumption of impropriety does not give rise to any onus to prove the contrary by means of affidavit or some other similar level of proof;
• for there to be a reasonable apprehension of bias, it would ordinarily be necessary to establish that the impugned material was received by the judge personally;
• merely because an associate has received an improper unilateral communication in the course of the operation of the docket system does not of itself give rise to any impropriety or breach of duty on the part of that associate, but that could change if the improper unilateral communication is transmitted to the judge. Chambers staff are expected to assess communications forwarded to chambers and to manage the transmission or, where necessary, interception, of material and information which is directed to the judge, to avoid compromising the judge's impartiality; and
• a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case.

14. The Full Court also indicated that:

• the unilateral communication of objectionable material to chambers staff is not tantamount to its receipt by the judge;
• such contact is unavoidable and involves no necessary impropriety on the part of the judge's chambers staff; and
• such conduct is not, in itself, the basis for a reasonable apprehension of bias on the part of the judge.

15. The appeal in John Holland was dismissed with the Full Court concluding that, having regard to all the relevant circumstances, the test for apprehended bias had not been established.

16. The principles established by the case law above are generally reflected in those parts of the Bar and Solicitors' Rules which deal with the topic of communication with Chambers (see rules 53 to 55 and rules 22.5 to 22.7 respectively).

17. The topic of communicating with a judge's Chambers is discussed in articles such as Ulman and Southwell, "Professional Practice: Judicial impartiality and communications with the court" (2014) 52(2) 36 Law Society Journal 46; Lilley and Carter, "Communications with the court" (2013) 87(2) Australian Law Journal 121 and Groves, "Emailing judges and their staff" (2013) 37 Australian Bar Review 69 and see also the paper by Bathurst CJ, "Duties of Bar and Bench: Some reflections on case management and judicial bias", NSW Bar Association CPD Conference, 29 March 2014.

(i) Some particular issues with litigants in person

18. The operation of the docket system presents particular challenges where proceedings involve a litigant in person. Unlike legal practitioners, such persons cannot be expected fully to appreciate the limitations applying to direct contact with chambers. I have found that the safest course is to require that, in all proceedings involving a litigant in person, communications by all parties must be made in the first instance to the Registry and not to my chambers. It is then a matter for the Registry to decide whether or not to pass on any particular communication to my associate, who then determines whether it needs to be transmitted to me.

19. The problems which can arise under the Federal Court docket system where self represented litigants are involved are well illustrated by a case in Chief Justice Allsop's docket when his Honour commenced his judicial career as a judge of the Federal Court. Justice Allsop was the docket judge in a matter involving a self represented applicant. The applicant telephoned Allsop J's chambers and spoke to his associate about the need for an extension of time in which to file and serve his written submissions. He said he had been sick and needed five more days. The matter was due to be heard ten days later. His Honour decided to accede to the request and he asked his associate to notify the respondent's solicitors to ascertain whether there was any difficulty. The associate rang the respondent's solicitors and spoke to a junior solicitor who responded by saying that she did not think there would be any difficulty with the extension, but that she would talk to her supervising solicitor. The supervising solicitor then contacted the associate by telephone and indicated that the extension would not be a problem. Later in the day, however, the supervising solicitor rang back and told Allsop J's associate that she was now concerned that there would be insufficient time between receipt of the applicant's submissions and the hearing date. She asked that the hearing date be vacated and set down later in the week. At that point the associate advised the solicitor that if the hearing was to be vacated and another date sought the request would have to be put in writing. The solicitor became angry and rude and said something along the following lines: "So [the applicant] can get what he asks by phoning, but I have to put it in writing".

20. The associate notified the judge of the conversation. Justice Allsop listed the matter for mention the next day to provide an opportunity for the respondent to apply for the discharge of his order extending time to the applicant for filing submissions and to seek any further orders. His Honour also explained that the mention would allow the supervising solicitor to explain her behaviour.

21. The solicitor apologised to the Court and to the judge's associate. The judge accepted that apology but then said the following:

To have my associate spoken to like this by an experienced solicitor is simply intolerable. I have said in other contexts, also dealing with the behaviour of practitioners, that, of its own nature, litigation is a costly and stressful, but necessary, evil. No doubt the growing pressure of litigants in person, makes litigation practice more burdensome and more stressful. It does so for the bench as well.

Those circumstances, however, make it all the more necessary that practitioners display a level and degree of courtesy and civility in their conduct of litigation. Courtesy and civility are not bourgeois affectations. They are not the mark of the effete or inept litigator. They are part of a practitioner's overriding duty to the court, indeed to the standards of the profession and to the public.

22. On the topic of ethical principles applying to practitioners' dealings with unrepresented litigants, you might also like to note the following summary of some additional requirements identified by the Full Court of the Supreme Court of South Australia in Kenny v Ritter [2009] SASC 139:

• as officers of the court, counsel representing a party should not take any inappropriate advantage of an unrepresented litigant;
• in such a case counsel is expected to assist the judge in ensuring that the topics that are necessary to be covered for the purpose of the case are appropriately identified in the interests of a fair trial;
• there may be times when counsel in such proceedings may need to modify the manner and form of objections to evidence and possibly defer the making of such objections to a point where the trial process is not interrupted;
• pedantic objections are to be avoided where possible as they may be unnecessarily disruptive to the trial process and highly unsettling for unrepresented litigants; and
• the Court also acknowledged, however, that counsel for a represented party has an obligation to put their client's case in the most favourable manner and that there may on occasions be a tension between the various duties. By the same token, however, the overall interests of justice and the judicial process must always prevail.

23. The Federal Court is currently drafting a proposed Practice Note which will address many of the issues and concerns of litigants in person. Furthermore, Practice Notes for some individual NPAs will also contain information which is designed to assist litigants in person to conduct their litigation efficiently and appropriately.

(b) Witness preparation

(i) When does ethical preparation become unethical coaching?

24. There is a fine line between legitimate witness preparation and unethical coaching of a witness. Despite the difficulty of drawing that line, the courts insist upon its maintenance. Whether or not preparation amounts to unethical coaching is necessarily fact specific and involves matters of degree.

25. In Re Equiticorp Finance Ltd; Ex parte Brock (No 2) (1992) 27 NSWLR 391 (Equiticorp), Young J emphasised that the interests of justice require "very severe limits" being placed on legal practitioners in preparing a witness to give evidence. There is no difficulty with a witness conferring with his or her lawyer, or the lawyer or the party calling the witness, and receiving proper advice regarding preparation for and the giving of evidence. Indeed, that practice is to be encouraged because, if it works properly, it will assist in the due administration of justice by limiting evidence to issues which are genuinely in dispute and save court time. Young J said at 395 of Equiticorp that such advice may include:

• advice that the witness should refresh his or her memory from contemporaneous documents;
• calling the witness' attention to points which might arise in cross examination;
• describing the court layout and likely procedure;
• directing the witness' attention to points in his or her evidence which appear to be contradictory or incredulous;
• reminding the witness to bring all relevant documents to court;
• advising witnesses as to the manner of answering questions, along the lines of advising that, in cross examination, the witness should listen carefully to the question, be directly responsive to the question and try to be as concise as possible; and
• giving advice as to appropriate dress and grooming (apparently matters of particular concern to his Honour).

26. Young J correctly emphasised the core requirement that solicitors should not advise a witness as to how particular questions should be answered (other than that the question should be answered truthfully) or suggest words which the witness should use.

27. In a case decided on the other side of Australia, Martin CJ described the difference between legitimate proofing a witness and impermissible coaching in the following terms in Majinski v State of Western Australia [2013] WASCA 10 (Majinski) at [32] (footnotes omitted):

Questioning of the witness moves beyond "proofing" to impermissible "coaching" when the witness' true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness… A solicitor or counsel should not advise a witness as to how to answer a question… By way of example, in Day v Perisher Blue Pty Ltd the defendant's solicitors prepared an extensive document for the defendant outlining "possible areas of questioning (to be passed onto the prospective witnesses)" and included suggestions as to appropriate responses which would be in line with the defendant's case. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and "tainted" the defendant's case.

28. Similar principles were applied by the Court of Appeal of Hong Kong in HKSAR v Tse Tat Fung [2010] HKCA 156. Allegations of improper coaching of witnesses were made against ICAC in respect of its dealings with various prosecution witnesses, all but one of whom gave evidence under immunity. In the case of one of the witnesses, he met with ICAC staff some fifteen times and for more 23 hours in what were described by ICAC as "memory refreshing exercises". The witness had made two lengthy witness statements, comprising several hundred pages and dealing with 900 exhibits. Another prosecution witness had made 6 witness statements totalling over 200 pages and dealing with more than 600 exhibits. This witness made 6 visits to ICAC's premises for the purposes of "memory refreshing", occupying more than 10 hours.

29. Under cross-examination, one of the ICAC investigators who had carried out the "memory refreshing exercises" was asked whether he had done so because he wanted "to ensure that they had memorised their statements", to which he answered: "Yes, of course". But he denied that this amounted to coaching and was essentially an evidence rehearsal exercise.

30, The Hong Kong Court described the relevant principle as follows (at [73]):

… the danger in discussing with a witness his evidence prior to trial is that the witness's recollection of events will either consciously or unconsciously alter so as to accommodate what the witness perceives as a better, for whatever reason, version of events. Obviously this is a matter of degree. A brief discussion with a witness of his proposed evidence to clarify some point of ambiguity or uncertainty may be perfectly sensible and desirable in promoting the integrity and accuracy of the trial process. On the other hand the repetitive "drilling" of a witness to a degree where his true recollection of events is supplanted by another version suggested to him by an interviewer or other party may be of a sort which justifies the judge giving the witness's evidence no weight or in extreme cases exercising his discretion to exclude that evidence on the basis that it is more prejudicial than probative, or is, in some other way, such as to preclude the defendant from receiving a fair trial.

31. While accepting that investigators were entitled to review a witness's statement and exhibits referred to with that witness for the purpose of allowing the witness to refresh his own recollection of events, the Court emphasised that it would amount to "coaching" if the investigator went further and put words into the witness's mouth or subverted the witness's true recollection with another version of events, whether by repetitive reading of the statement to the witness or by otherwise influencing the witness so as to attempt to ensure that the witness would, in evidence, simply regurgitate the contents of the witness statement. The Court criticised the ICAC investigator for summarising the contents of the witness statements to the witness. However, having regard to all the evidence, the Court declined to find that the trial judge had erred in accepting the evidence of these prosecution witnesses. In doing so, the Court emphasised how each case is necessarily fact specific and will depend on what was said to, or done with, the witness and the danger of the witness's true recollection of events being substituted by some other version of those events.

32. Some experienced practitioners provide prospective witnesses with written guidance notes on preparing and giving evidence. I think this is a good idea. It provides the witness with a clear statement of relevant matters (which they can review at convenient times) and minimises the risks of any misunderstanding. The sorts of matters which could be covered in such a document include:

• the overarching requirement that witnesses must give truthful evidence at all times, even if they think that this could be prejudicial to themselves or the overall case. Very often a witness's perception of what is prejudicial is misguided. Few things impress a court more than a witness who candidly admits to error and does not shy away from frankly answering questions which expose seemingly adverse matters;
• the duty to provide responsive answers to questions. It should be made clear, however, that this does not preclude the witness saying, in appropriate circumstances, that he or she cannot remember or does not know. Emphasise the undesirability of the witness effectively taking over the role of counsel from the witness box by giving non-responsive answers to questions or seizing on a particular question to advance what the witness regards to be his or her case by proffering more by way of answer than is strictly required;
• the desirability of providing concise answers to questions and avoiding the danger of trying to anticipate where a cross-examination is heading: like cricket, every ball/question should be dealt with on its merits;
• encouraging the witness not to be afraid to ask the cross-examiner to repeat or rephrase a question which the witness does not understand. It is critical that the witness fully understand a question before a response is given. A brief pause before answering a question will not only provide the witness with an opportunity to assess whether they properly understand the question but will also provide counsel with an opportunity to object to the question before it is answered;
• encouraging the witness to familiarise themselves with their affidavit or witness statement before the hearing. It is also generally proper for a witness who has prepared a statement contemporaneously with, or soon after, an incident in respect of which he or she is asked to give evidence to review that statement prior to giving evidence (see, for example, R v Pachonick [1973] 2 NSWLR 86 and Majinski at [30] per Martin CJ, with whom Buss and Mazza JJA agreed);
• providing advice on the fact that the witness could be compelled to produce any documents brought into the witness box by the witness and to which he or she refers, including a copy of their affidavit or witness statement, particularly if it contains handwritten annotations or musings;
• if the witness gives an answer and subsequently considers that the answer is incomplete or requires elaboration, advise them to raise the matter with the cross-examiner and/or the Court and seek permission to give further evidence on the relevant topic. Even if leave is not granted, the witness will have conveyed the need for the issue to be raised in re-examination;
• explaining the need to give evidence in direct and not indirect speech, a practice which does not come easily to many witnesses who frequently start their answers with "I (or someone else) would have said…." or "I would have done…". A few concrete examples should highlight the distinction. By the same token if the witness is asked to say what they or someone else said on a particular occasion and they do not have a clear recollection of the precise words, they should say so and then indicate their best recollection of the thrust of what was said;
• providing a brief description of the choice between giving evidence on oath or affirmation and the layout of the court, including the location of the witness box in relation to the bench and bar table and the desirability of the witness seating themselves in a way which enables them to achieve some eye contact with the judge, bearing in mind that it is the judge to whom the evidence is primarily directed, not the cross-examiner;
• reassure the witness that if there is likely to be a lengthy cross-examination he or she should not feel inhibited about asking the judge for a brief adjournment if their concentration is suffering or for more personal reasons;
• reminding the witness of the prohibition on them discussing their evidence with other prospective witnesses in the proceeding and also describe the constraint upon any communication with legal advisers while the witness is under cross-examination;
• also remind the witness that they must never look to their legal team for any prompts or assistance by way of body language or gestures while they are giving evidence, all lawyers should remain sphinx-like during the giving of oral evidence, as well as when an oath or affirmation is being administered;
• describe the process of re-examination, which attracts many of the principles described above, while also stating that the witness should not be alarmed or draw any inference if there is no re-examination; and
• above all, urge the witness to remain as calm and collected as possible and that the potentially unpleasant experience of giving evidence will soon be over!

33. Particular issues may also arise in the case of a child witness, where the danger of suggestion is especially acute (see the discussion in Majinski at [29]-[42]).

(ii) Relevant Australian legal profession rules

34. There are professional and ethical rules relating to the integrity of evidence which bind both solicitors and barristers. Under the Professional Conduct and Practice Rules (Solicitors Rules) 2013, which commenced on 1 January 2014, there are various rules relating to the prohibition on a solicitor influencing evidence as well as other rules which are directed to maintaining the integrity of evidence.

35. The relevant Solicitors' Rules are as follows:

24. Integrity of evidence – influencing evidence

24.1 A solicitor must not:

24.1.1 advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or

24.1.2 coach a witness by advising what answers the witness should give to questions which might be asked.

24.2 A solicitor will not have breached Rules 24.1 by:

24.2.1 expressing a general admonition to tell the truth;

24.2.2 questioning and testing in conference the version of evidence to be given by a prospective witness; or

24.2.3 drawing the witness's attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.

25. Integrity of evidence – two witnesses together

25.1 A solicitor must not confer with, or condone another solicitor conferring with, more than one lay witness (including a party or client) at the same time:

25.1.1 about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing; and

25.1.2 where such conferral could affect evidence to be given by any of those witnesses, unless the solicitor believes on reasonable grounds that special circumstances require such a conference.

25.2 A solicitor will not have breached Rule 25.1 by conferring with, or condoning another solicitor conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.

26. Communication with witnesses under cross-examination

26.1 A solicitor must not confer with any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination, unless:

26.1.1 the cross-examiner has consented beforehand to the solicitor doing so; or

26.1.2 the solicitor:

(i) believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;

(ii) has, if possible, informed the cross-examiner beforehand of the solicitor's intention to do so; and

(iii) Otherwise does inform the cross-examiner as soon as possible of the solicitor having done so.

27 Solicitor as material witness in client's case

27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.

36. The comparable rules under the current NSW Bar Rules (which commenced on 6 January 2014) are as follows:

Integrity of evidence

68. A barrister must not:

(a) advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or

(b) coach a witness by advising what answers the witness should give to questions which might be asked.

69. A barrister will not have breached Rule 68 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness's attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.

70. A barrister must not confer with, or condone another legal practitioner conferring with, more than one lay witness including a party or client at the same time:

(a) about any issue which there are reasonable grounds for the barrister to believe may be contentious at a hearing, and

(b) where such conferral could affect evidence to be given by any of those witnesses,

unless the barrister believes on reasonable grounds that special circumstances require such a conference.

71. A barrister will not have breached Rule 70 by conferring with, or condoning another legal practitioner conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.

72. A barrister must not confer with any witness including a party or client called by the barrister on any matter related to the proceedings while that witness remains under cross-examination, unless:

(a) the cross-examiner has consented beforehand to the barrister doing so; or

(b) the barrister –

(i) believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;

(ii) has, if possible, informed the cross-examiner beforehand of the barrister's intention to do so; and

(iii) Otherwise does inform the cross-examiner as soon as possible of the barrister having done so.

(iii) Group witness conferences and unethical coaching

37. Apparently it is not an uncommon occurrence in the USA to conduct mock cross-examinations prior to trial. There is a distinct danger that such behaviour could be regarded in Australia as constituting unethical coaching.

38. Those dangers are highlighted by the English Court of Appeal's decision in R v Momodou [2005] 2 All ER 571. The case involved an appeal against a criminal conviction for violent disorder. A group of security staff were crucial witnesses for the prosecution and also potential witnesses in a related civil claim brought by their employer. The employer arranged training for the witnesses which involved the witnesses forming groups of 8 to discuss case studies with strong similarities to the pending proceedings; to take part in sessions explaining the theory, practice and procedure of giving evidence and to participate in mock cross-examinations on real-life experiences unconnected with the subject matter of the proceedings. The Court of Appeal made the following observations at [61]:

There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings… is not permitted.

39. The Court explained the rationale for such a distinction on the basis that it:

…reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so…the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant.

40. The Court made clear at [62] that this principle did not preclude pre-trial arrangements to familiarise the witness with the layout of the court, the likely sequence of events in giving evidence, and a balanced appraisal of the different responsibilities of the various participants. It added:

… equally, the principle does not prohibit training of expert and similar witnesses in, for example, the technique of giving comprehensive evidence of a specialist kind to a jury, both during evidence-in-chief and in cross-examination, and, for example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witness' specific expertise. The critical feature of training of this kind is that it should not be arranged in the context of law related to any forthcoming trial, and can therefore have no impact whatsoever on it.

41. The potential pitfalls associated with multiple witnesses getting together before or during a trial are also highlighted by the NSW Court of Appeal's decision in Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731. It emerged during the course of the trial that the defendant's solicitors had held a pre-trial teleconference with their client's senior management and witnesses. During the conference, the evidence of each witness was discussed at some length and reviewed. Following the teleconference, one witness received a letter from the solicitors outlining the matters all the witnesses were expected to address, the sorts of questions that they could each be asked during the cross-examination and, significantly, the responses they should give. The letter was also circulated among the other witnesses but it was unclear whether that was done by the solicitors or by the first recipient of the letter. The evidence also demonstrated that the witnesses had discussed the contents of their witness statements while staying at the same hotel, both before and during the trial. That conduct drew the following observations by the Court (Sheller and McColl JJA and Windeyer J) at [30]:

It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant's witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper.

42. The Court of Appeal ordered the defendant's solicitors to show cause why the proceeding should not be referred to the Legal Services Commissioner (at [37]). In the "show cause" hearing (Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125) the two solicitors for the defendant who were responsible for the conduct of the proceeding deposed that the purpose of the teleconference was to deal with matters concerning court procedure and protocol and practical arrangements relating to the witness's attendance at court. The solicitors said that they did not recall discussing the contents of the witness statements or the likely evidence, and they did not intend that their letter be distributed to other witnesses.

43. Ultimately, the Court found that it was not dissuaded from sending the relevant papers to the Legal Services Commissioner for further investigation.

(iv) Expert witnesses

44. Related problems can occur with preparing expert witnesses. In Road Corporations v Love [2010] VSC 253 a meeting was held between the respondent, the respondent's lawyers and a number of experts engaged by the respondent for the purpose of a briefing relating to the proceeding. In cross-examination it emerged that at the meeting one of the experts strongly emphasised the quality of the stone resource on the land, a critical issue in the proceeding. There was general discussion at the meeting to "flush out any problems with an aim to get everyone in accord with the position that there was a quarry which should be valued as such" (at [16]).

45. At [38] Vickery J found that this meeting:

…fell into the species of the conduct described in Perisher Blue [at [30]] insofar as it went beyond the mere provision of factual information… Even if the meeting was confined to the provision of purely factual information for the assistance of the experts, a meeting of this kind was an inappropriate vehicle to have used to impart such information. It would run the significant risk of bringing into question the independence and credibility of the experts who may attend such a meeting and would otherwise risk compromising their duties to the court. In the circumstances of this case, the meeting of 14 March 2006 was improper.

46. However, Vickery J went on to note at [40] that "not all pre-trial meetings of witnesses will be improper in this sense". At least the following three classes of case may be acceptable:

(a) It has been common in Australia across many fields of practice for expert witnesses to prepare draft reports and for those drafts to be exchanged between experts where the opinion of one expert depends upon information to be provided by others. If this occurs, such drafts may be called for when the expert is giving evidence. Successive drafts may also be called for and examined upon.

(b) Meetings may be convened for the purposes of lawyers being provided with information which in turn is provided to a party with legal advice. Communications occurring at such a meeting may retain legal professional privilege.

(c) Where expert evidence is adduced, the Court may direct under the relevant rules of court that the experts for both or all sides confer before trial with a view to identifying areas of agreement and subjects which remain in controversy.

(c) Explaining a loss to a witness or a client

47. It is difficult to be prescriptive about this topic. Much will depend upon the nature of the loss and the personality of the witness or client. There are, however, some basic principles. As an officer of the court, it ill-behoves a legal practitioner to tell a witness or a client that the loss is inexplicable other than by reference to some personal idiosyncrasy of the judge. Judges are obliged to honour their judicial oath and, in my experience, they all seek to do justice according to law and to the best of their individual abilities. That is not to say, of course, that they are always right.

48. If a practitioner considers that a judgment or order is wrong and might involve appellable error they should provide appropriate advice to their client about seeking further advice on the prospects of an appeal. The legal practitioner will need to be alert to possible conflicts of interest. For example, a judgment may contain adverse findings about a witness but the client (who is not the witness) may have no interest in taking that aspect of the judgment any further. It would be appropriate in those circumstances to suggest to such a witness could obtain his or her own legal advice if they wished to pursue the matter.

Conclusion

49. As emphasised at the outset, my objective has not been to lecture you or scare you about these matters. It is more a case of seeking to raise your consciousness and appreciation of the significance of the issues. Fundamentally, the relevant rules and expectations are based in common sense. Adherence to them will not only assist in furthering the due administration of justice but will avoid the significant embarrassment for judges and practitioners alike when things go wrong.

50. I wish you all good luck in the successful conduct of your individual legal practices.