By Elle Belekas -
It is a common consensus amongst litigants that the performance of a witness has the power to make or break a case. However, the combination of a daunting and formal court room setting, the pressure of cross-examination, speaking in front of an audience and unfamiliarity with the court process inter alia can often render witnesses susceptible to be taken advantage of by the litigation process. Understandably, sitting in a witness box for cross-examination can be a frightening ordeal.
Effective preparation by legal practitioners can help ameliorate the inherent disadvantages posed by the aforementioned circumstances and mitigate poor witness performance. This raises a vexed enquiry as to what constitutes acceptable preparation. There is seemingly an elusive line between legitimate witness preparation and unethical “coaching”. As the exercise of preparing a witness is fraught with ethical risk, we, as practitioners, must tread carefully.
The Full Court of the Federal Court of Australia recently commented that the ethical duty of legal practitioners is “not to influence a witness’ evidence” (New Aim Pty Ltd v Leung [2023] FCAFC 67). It is this rationale that is widely understood to underpin rule 24.1.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), which cements a ban on witness coaching, in providing that a solicitor must not coach a witness by advising what answers the witness should give to the questions being asked.
However, this is not to suggest that a practitioner should not prepare their witness for a hearing. Indeed, this is something that they should do, provided they do so within appropriate parameters. It is de riguer to familiarise witnesses with the overall court process and provide generic advice about the nature of cross-examination (see, for example, Re Equiticorp Finance Ltd; Ex parte Brock (No 2) (1992) 7 ACSR 13, 17).
This could include explaining the layout of the courtroom, where the witness is supposed to sit, how they should dress, the etiquette in addressing a judge and how to avoid hearsay. Similarly, reminding witnesses to refresh their memory with their affidavit or witness statement and offering advice about the manner of responding to questions (e.g. to pause before responding and/or answer concisely) fall within the bounds of legitimate witness preparation (see Re Equiticorp Finance Ltd). Explaining to witnesses that they should be providing evidence in direct (rather than indirect) speech and encouraging them to ask the cross-examiner to repeat or rephrase a question where they do not understand, is also acceptable. Demystifying the process is integral in positioning witnesses to be able to put their best foot forward (without giving them the foot to put forward). Preparation, in this sense, is crucial in offering witnesses the confidence to answer the questions frankly and in the clearest way possible based on what they recall, preserving the integrity of their evidence and maximising the utility of the cross-examination process.
The difficulty arises where one transcends the metes and bounds of legitimate witness preparation and familiarisation and enters the realm of legal theatrics: simulated mock trials and an orchestration of evidence. This may manifest through a practitioner questioning and testing the evidence a witness proposes to present, seeking to identify and navigate possible incongruencies in their version of events and/or rehearsing responses to anticipated questions. Engaging in such exercises not only constitutes a breach of the rule that practitioners must not coach witnesses, but also departs from a solicitor’s duty to act honestly and their paramount duty to the administration of justice.
In the eyes of the courts, witness coaching is not merely troublesome in the case of a perfidious witness with an audacious, or over-zealous, lawyer. Rather, witness coaching engenders an ethical risk of distorting and corrupting evidence even in unconscious and subtle ways, such as through tarnishing memory and contaminating one’s perception or memory of events. As the UK Court of Appeal in the frequently cited case of R v Momodou [2005] EWCA Crim 177 enunciated, the exercise may lead even an honest witness to unconsciously recognise what may appear to be discrepancies in their version of events and alter their testimony in order to accommodate a seemingly more consistent or favourable narrative.
The above issues illustrate the importance of practitioners adhering to rigorous guardrails to ensure that we remain on the right side of an ostensibly fine line. Supporting a witness to feel at ease in an unfamiliar and disconcerting environment through legitimate preparation is permissible. However, regardless of how faint the line may seem, (unethical) witness coaching is an entirely separate (and forbidden) beast.
