Witness Preparation is a critical component of your clients trial preparation and an area that is very much overlooked. 

 

You've prepared the brief and sent it off to counsel but have you considered how to prepare the client for giving evidence?

 

How much preparation can you ethically do before you are perhaps crossing the line into coaching?

 

Griffiths J, in his presentation to the College of Law 5 March 2014 described that line thusly:

 

(b) Witness preparation

 

(i) When does ethical preparation become unethical coaching?

 

17. 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.

 

18. In Re Equiticorp Finance Ltd (1992) 27 NSWLR 391, 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, 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).

 

19. 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.

 

20. 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 at [32]:

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.

 

21. 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’ 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!

 

 

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