A number of recent decisions canvass the ethical obligations of, and constraints upon, lawyers who find themselves assisting an expert – sometimes at their request and sometimes by necessity to get the job done – draft their report for delivery in litigation.

In Landel Pty Ltd v Insurance Australia Limited [2021] QSC 247 (Landel),Dalton J (now Dalton JA) addressed the issue squarely with an adjuration that lawyers avoid “coaching” but otherwise be ready to assist in producing an intelligible, and admissible, report. 

In New Aim Pty Ltd v Leung [2023] FCAFC 67  (New Aim), the Full Court of the Federal Court – overturning the trial judge’s decision excluding an expert report for want of disclosure of lawyer involvement in drafting – observed that lawyer assistance may be acceptable in order to sensibly and reasonably achieve the outcome but ordinarily ought be disclosed on the face of the report or otherwise to the opposing party.

In Andrews v Kronospan Limited [2022] EWHC 479 (Andrews), Senior Master Fontaine of the UK Queen’s Bench Division – upon interlocutory application in a class action for injunctive relief and damages on account of alleged nuisance – ordered that the plaintiff class members be precluded from relying at trial upon evidence from their longstanding liability expert on account of the plaintiffs’ solicitors illicitly conferring with such expert in and about the drafting of the “joint statement” by the respective experts (referred to in Australia as a “conclave report”) in contravention of the procedural rules precluding expert – lawyer contact in that space.

In Landel, the court wrote concerning a poorly drafted report (at [19]-[20]:

…[W]hile lawyers must not coach expert witnesses, or influence the substance of an expert report so that it favours their client, it is permissible, and usually desirable, that lawyers do become involved in the editing of expert reports so that they present material in a way which is accessible and comprehensible, and do not contain irrelevant material. … In this case, Dr Macintosh’s reports are prolix and disorganised. There ought to have been conferences between Dr Macintosh and the plaintiffs’ lawyers before they were filed to see what could be done to improve these types of problems. Conferences like this are a proper, necessary part of preparing a case. In a proceeding like this I would expect that attention to have come from both the solicitors and counsel briefed in the matter.

(emphasis added)

In New Aim, the five member appellate court wrote of the lawyer’s assistance afforded the expert in drafting the report:

[120]  There is not one rule or practice which covers all experts or all situations. For example, in the typical case where medical opinion evidence is required, the medical expert would ordinarily draft his or her own report. The same is generally true of an expert valuer preparing a valuation or an accountant preparing a report about economic loss. There may be discussion in relation to drafts of the report, but one would ordinarily expect the report to be drafted by the expert rather than the legal practitioner. Nevertheless, a number of situations might arise where legal practitioners are involved in the process of recording an expert’s evidence, including by preparing or drafting the report. For example, there may be physical, language or resource difficulties. Where these situations arise, care must be taken to ensure that the legal practitioner does not suggest what the expert’s evidence should be and that the report is drafted from what the expert has communicated to the legal practitioner as fact or what the expert has assumed or what the expert’s opinion is. Leaving aside formal matters or instructions or assumptions the expert is required to make, it is difficult to conceive of a situation in which a legal practitioner, acting appropriately and ethically, could draft an expert’s report otherwise than on the basis of what the expert had communicated to the legal practitioner to be his or her evidence.

[121]  The primary judge observed at [76] that, if legal practitioners are involved in the drafting of an expert report that fact must be disclosed in the expert report. This may well be desirable, forensically or otherwise, but there is no legal obligation as such to do so. Whether there is an ethical obligation to do so depends on the particular circumstances.

[122]  The primary judge also observed at [76] that all correspondence relating to the preparation of the report must be disclosed. Again, this might be desirable, but there is no legal obligation as such to do so. Again, whether there is an ethical obligation to do so depends on the particular circumstances.

[123]  As to the primary judge’s observation that any oral advice conveyed by a legal practitioner to the expert should be documented and disclosed in the expert’s report, the legal or ethical necessity of this depends on all of the circumstances, including the nature of the advice conveyed to the expert and the relevance of it, if any, to the report or opinions expressed.

(emphasis added)

In Andrews, despite the expert having been engaged by the party for three years and at great expense, the court – confronted with clear evidence that the expert, Dr Gibson, had closely liaised with his briefing solicitors concerning the proposed content of a conclave report, in breach of the UK Practice Rules – ordered that the briefing party be precluded from reliance on Dr Gibson’s opinion.

The Uniform Civil Procedure Rules 1999 (Qld) – like their interstate analogues – similarly proscribe the conclaving expert and the original briefing solicitor or counsel conferring apropos of drafting of the experts’ joint conclave report:  r 429A(2).

The court wrote:

[17]  The Claimants having accepted that there have been “serious transgressions” of the relevant rules and practice directions, the issue for me to determine in this case is the sanction, if any, to be imposed, in accordance with guidance given in the authorities. I draw on the authorities for some assistance.

[18]  The most recent decisions are those in BDW (see Paragraph 12 above)and Dana UK Axle Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC). In BDW the defendant’s expert in geotechnical engineering revealed in cross examination at trial that he had sent a first draft of the joint statement to the defendant’s solicitors and having received feedback, had made some changes to that draft as a result. The judge concluded (at [18]), that this was “a serious transgression” of CPR 35PD paragraph 9. The judge upheld the complaint that it was quite inappropriate for independent experts to seek input from their client’s solicitors into the substantive content of their joint statement or, for that matter, for the solicitors either to ask an expert to do so or to provide input if asked, save in the limited circumstances referred to in paragraph 13.6.3 of the TCC Guide. However he concluded that the expert was genuinely unaware that his conduct in this respect was inappropriate, and that there was no basis for considering that he had modified in any significant way the substance of his opinion as discussed with the other party’s expert. Accordingly no sanction was imposed on the expert.

[19]  The judge stated at [18]:

“… it is important that all experts and all legal advisers should understand what is and what is not permissible as regards the preparation of joint statements. To be clear, it appears to me that the TCC Guide envisages that an expert may if necessary provide a copy of the draft joint statement to the solicitors, otherwise it would not be possible for them to intervene in the exceptional circumstances identified. However, the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide. That is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be so bound (see Part 35.12 (5)). There may be cases, which should be exceptional, where a party or its legal representatives are concerned, having seen the statement, that the experts’ views as stated in the joint statement may have been infected by some material misunderstanding of law or fact. If so, then there is no reason in my view why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial. That however will be done in the open so that everyone, including the trial judge if the case proceeds to trial, can see what has happened and, if appropriate, firmly discourage any attempt by a party dissatisfied with the content of the joint statement to seek to reopen the discussion by this means.”

…

[22]  Dana concerned very serious breach of the rules by the defendant’s three technical experts, which was not revealed in full until part way through the trial. This case involved the most serious behaviour by those experts, some of which had previously been the subject of an order granting relief from sanction subject to certain conditions. Not only did the judge find that the experts had not complied with those conditions, so that the defendant no longer had the court’s permission to rely on those experts, but she considered that the experts’ breaches of Part 35, 35PD and the CJC Guidance were so serious that they would be sufficient in themselves, without the breach of the conditions imposed by the previous order, to justify the refusal of the court to allow the defendant to rely on its technical experts (at [87]).

[23]  Mrs Justice Joanna Smith referred in her judgment to two previous authorities at [66]-[68]:

“66.… I should reiterate what was said by Fraser J in Imperial Chemical Industries Ltd v Merit Merrill Technology Ltd [2018] EWHC 1577 at [237];

“The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts are unaware of these principles, they must have them explain[ed] to them by their instructing solicitors. This applies regardless of the amounts in stake in any particular case, and is a foundation stone of expert evidence. There is a lengthy practice direction to CPR part 35, practice direction 35. Every expert should read it.”

67. Fraser J went on to set out some examples of the application of the well known principles in The Ikarian Reefer [1993] 2 Lloyds LR 68…. For present purposes, I note the first duty of an expert witness in a civil case as identified by Creswell J (at page 81) in The Ikarian Reefer:

“Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan [1981] 1 WLR 246 at 256, per Lord Wilberforce)”

[24]  In my judgment the breaches of Rule 35, Practice Direction 35 and the CJC Guidance by both the Claimants’ solicitors and Dr Gibson in respect of appropriate conduct relating to the period of joint discussions preparatory to a joint statement being produced by experts, were more serious than in BDW, where there was only a single communication between the expert and the solicitors. Here there has been continuous contact, soliciting and provision of comments on the various progressive drafts of the joint statement, and provision of information on the joint discussions.

[25]  The facts in Dana concerned a particularly egregious example of the most flagrant breaches by the experts concerned, where technical input was sought and provided to the experts by the party by whom they were instructed at every stage of the process, without the knowledge of the other party. The judge would clearly have had no other option but to refuse the defendant permission to rely on those experts. The facts in this case are not comparable to those in Dana, but the principles applied are equally relevant.

[26]  In this case there were continuing discussions either by telephone or email or by written commentary on the draft joint statement in its various progressions from 26 May 2021 to June 2021 and recommencing in November 2021. Although the majority of the total of 68 comments noted on the draft joint statements relate to typographical and formatting issues, it is accepted by the Claimants there were at least 16 comments relating to “advice and suggestions as to content” in respect of the joint discussions/draft joint statement….

….

[32]  The other factors which I consider should be taken into account in determining what the sanction should be are as follows:

i) The Claimants’ solicitors failure in November 2021 to reveal the full extent of their communications with Dr Gibson, the correspondence suggesting that the first contact had been on 17 November 2021, and their reluctance to do so until the persistence of the Defendant’s solicitors made it apparent that they would not let the issue go.

ii)  The Claimants’ solicitors informed the Defendant’s solicitors that the only reason for that contact by Dr Gibson on 17 November was “to notify us that Dr Gibson/Dr Datson’s communications regarding their joint statement were being resumed” which was clearly only part of the picture. It is apparent, having seen Dr Gibson’s email of 18 November 2021 sending the next version of the draft joint statement [1/66] and the telephone attendance notes of 17 and 18 November 2021 [1/65, 67], that Dr Gibson was intending to resume his previous conduct in providing information about the joint discussions and soliciting assistance from the Claimant’s solicitors. I therefore do not consider that Ms Eedy’s [the Claimant’s solicitor’s] explanation as to why there was no disclosure of the previous discussions with Dr Gibson in May and June 2021 is satisfactory…

iii)  Dr Gibson has not informed the court of the reason for his conduct, i.e. whether he was unaware of his obligations as an expert, and if so, why, or whether he was aware, in which case his reasons why he thought it appropriate to transgress those obligations.

iv)  Dr Gibson produced his addendum report in July 2021 at a time when Dr Datson was unaware of his prior discussions with the Claimants’ solicitors.

[33] The factors in favour of permitting the Claimants to retain Dr Gibson as their expert are as follows:

i)  Dr Gibson has been involved for over 3 years, and I am informed that some £255,000 have been spent on his fees.

ii)  If permission to rely on Dr Gibson is revoked that would be a severe blow to the Claimants, a total of 159 households, all likely to be of modest means, who will be adversely affected by a decision to revoke permission.

iii)  Even if the Claimants are permitted to rely on alternative expert evidence it will involve them in considerable additional costs and cause further delay to an already long running case.

iv)  The Defendant is now aware of the extent of the discussions with Dr Gibson, so that the Defendant can cross examine Dr Gibson at trial in relation to whether he has changed his opinion as a result of those communications.

Conclusion

[34] Taking all the above factors into account, and applying the overriding objective, I have concluded that the serious transgressions by the Claimants’ solicitors and Dr Gibson are such that the court has no confidence in Dr Gibson’s ability to act in accordance with his obligations as an expert witness. The basis upon which the Claimants received permission to rely upon Dr Gibson as an expert witness, namely his duties under CPR 35.3, 35PD paras. 2.1 and 2.2, has been undermined. Accordingly I consider that it is appropriate, and not disproportionate, to revoke the Claimants’ permission to rely on his evidence. I consider that it must follow that permission to rely on Dr Gibson as a dust modelling expert is also revoked. The fact that this is group litigation does not dissuade me from that course. It is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective expert evidence. This is particularly important where, as here, the expert evidence is of a very technical nature so that the court is heavily reliant on the expert evidence being untainted by subjective considerations.

…

(emphasis and square brackets added)

The ethical lesson evident in these cases is that lawyers – counsel and solicitors – need be thoughtful and exercise clear appreciation of where the lines are drawn – by the ethics and procedural rules concerning expert witnesses – such that they do not approach, let alone cross such metaphorical lines.  The price of not  doing so could be either preclusion of their client being able to rely upon the elicited expert opinion, regulatory censure, or both.

Thanks to all who have contributed to this issue of your online journal Hearsay.

The Hon George Brandis KC makes apt comments concerning the stellar careers of the soon to retire Chief Justice Susan Kiefel AC, and her successor Justice Stephen Gageler AC.

Hon Justice Martin Burns compliments the recent content of Hearsay in my “10 minutes with …” interview with him.  His Honour was the first editor – for five years – of this online journal, so it is no faint praise.  Thanks also to Justice Burns for furnishing tips concerning counsel needing to “listen” in cross-examination, and not unduly wasting court time, each for effective advocacy.

We could not resist leading this issue with the stunning painting of “HMS Beagle in the Galapagos” by maritime artist John Chancellor. We thank the UK based Chancellor family for permission to publish the same. The detail is extraordinary to behold, and you can click to obtain a larger version to fully appreciate the skill entailed.

The painting is a fitting companion to the article by Craig Coulsen, the featured article concerning the talented John Wickham, who successfully navigated the terrifying southern ocean for many years, and then a legal career as police magistrate at the Moreton Bay colony.

Chief Justice Helen Bowskill affords readers a practical summary of the law of contempt. So much is compulsory reading. Also featured is the first in a series of articles by Andrew Hoare for the assistance of the criminal bar. This starts with the basics, and while intended for a junior cohort, might we suggest that even those with more experience would profit from reading same.

US Federal Judge Michael Ponsor, of Massachusetts, has given us permission to publish his recent opinion piece in the New York Times concerning the US Supreme Court. This article too is compulsory reading for all interested in ensuring impartiality and integrity in the courts of a democratic society.

Hon Justice John Bond informs us of everything we need to know about civil appeals but were afraid to ask. Hon Justice Jim Henry provides a “how to” for advocates in summary criminal trials.

His Honour Judge Ken Barlow KC responds to an article about witness training and familiarisation contained in the last Hearsay issue. We encourage members and judges to write to Hearsay as his Honour has done. Topical discussion of critical issues of practice mitigates against complacency and sharpens our professional tools. The above interview with Justice Burns points this up.

It is the time of year when we exchange robes for tuxedos and gowns to attend the Annual Bar Dinner.  Everyone looked fabulous; Hearsay has the photos to prove it and they are there for all to see. No-one ended up in the Brisbane River! The speech by the President, Damien O’Brien KC, is a good read for our collegiate profession.

The book and film reviews, as usual, are outstanding.

If there is some legal issue the reader thinks Hearsay ought highlight, please let us know. We are always open to suggestions.

Please forward to us, by Friday 17 November at the latest, contributions for issue 94, due for publication in mid-December 2023.

Enjoy!

Richard Douglas KC
Editor

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I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com). The deputy editors are John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au). The sub-editors are Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book reviews and Margaret Forrest (T: 3333 9940; M: 0422 542 706; E: mforrest@qldbar.asn.au) who looks after podcast reviews.

The Prize

The Archibald Prize (Prize) is the most prestigious portrait prize in Australia.  Since 2015 the Prize award has been $100,000.

The Prize was first awarded in 1921, upon a trust bequest under the will of JF Archibald, former editor of the Bulletin.  It is administered by the Trustees of the Art Gallery of New South Wales, and is awarded for “the best portrait, preferentially of some man or woman distinguished in Art, Letters, Science or Politics, painted by an artist resident in Australia during the 12 months preceding the date fixed by the Trustees”.  In addition to the selected winner, more recently there was inaugurated prizes for the “People’s Choice Award” and also the “Packing Room Prize”.

In 2021 the Prize celebrated its 100^th anniversary.  An exhibition of 100 artworks – Archie 100:  A Century of the Archibald Prize – was curated by the Art Gallery of New South Wales and since has been travelling Australia, albeit shown (only) in regional galleries.

The exhibition is presently on show at the Home of the Arts (HOTA), at Bundall on the Gold Coast, which showing will conclude on 2 October 2023.  It then moves for its final showing at the National Portrait Gallery, Canberra, from 20 October 2023 to 28 January 2024.

The Litigation

The Prize has not been without controversy, attracting litigation.

The most prominent of those was in 1944 concerning the 1943 winning portrait by William Dobell (later Sir William Dobell) titled “Mr Joshua Smith”, a portrait of a fellow artist. The Prize award was challenged by other artists upon an allegation it was a caricature rather than a portrait.

At the trial the claim was dismissed, but it is said that Dobell was so shattered by the challenge and the litigation, he retreated to painting landscapes.

The decision is Attorney-General (NSW) v Trustees of the Art Gallery of New South Wales and Dobell (1944) 62 WN(NSW) 212.

In his reasons, the trial judge, Justice Ernest Roper – construing the word “portrait” as used in Archibald’s will and applying such construction – wrote (at 215):

The picture in question is characterised by some startling exaggeration and distortion clearly intended by the artist, his technique being too brilliant to admit of any other conclusion.  It bears, nevertheless, a strong degree of likeness to the subject and is, I think, undoubtedly, a pictorial representation of him.  I find it a fact that it is a portrait within the meaning of the words in the will and consequently the trustees did not err in admitting it to the competition.

Whether as a work of art or a portrait it is good or bad, and whether limits of good taste imposed by the relationship of artist and sitter have been exceeded, are questions which I am not called upon to decide and as the expression of my opinions upon them could serve no useful purpose I refrain from expressing them.  I mention those matters, however, because I think that the witnesses for the informant, whose competency to express opinions in the realm of art is very great, were led into expressing their opinions that the work was not a portrait because they held strong views against it upon those questions.  They excluded the work from portraiture, in my opinion, because they have come to regard as essential to a portrait characteristics which, on a proper analysis of their opinions, are really only essential to what they consider to be good portraiture.

Garfield Barwick KC – as the later High Court of Australia Chief Justice then was – appeared as Senior Counsel, nominally for the plaintiff Attorney-General for the State of New South Wales, but in substance for the informant challenging artists, Edwards and Wolinski.  Frank Kitto KC – also later to grace the High Court – led for the defendant trustees.  Dwyer KC led for Dobell.

In his 1995 memoir – “A Radical Tory – Reflections and Recollections”, 1995, at page 48 – Barwick described the case among the top three of his public failures as an advocate, the top being his unsuccessful defence of the constitutional challenge to the Communist Party Dissolution Act 1950 (Cth):  The Australian Communist Party v The Commonwealth (1951) 83 CLR 1.

The Exhibition

The writer attended the exhibition’s opening day at HOTA at 10.00am and was expecting – according to his usual swift passage through any art exhibition – to be away by 10.30am. So captivating was it, he stayed until midday.

The arrangement of the exhibition and the extensive narrative accompanying each artwork – artist and subject – is impressive. Dobell’s controversial portrait of Joshua Smith is not part of the exhibition but included is the 1944 Archibald Prize winning portrait by Smith himself, of the politician, JS Rosevear.  Brett Whiteley‘s 1978 Prize winning work “Art, Life and the other thing” – also on show – comprises a stunning self-portrait of Whiteley holding a copy of Dobell’s “Joshua Smith”. Whiteley’s work is far more a caricature than Dobell’s work, no doubt reflecting modern art mores.

This exhibition is not to be missed.

The writer attended on a Saturday.  It is advisable to book online but HOTA regulates entry to avoid over-crowding.  Complimentary carparking for 3 hours is available but remember to enter your vehicle details in the parking machine nonetheless or you risk a fine.

The HOTA complex itself is an architecturally interesting building.  It harbours different precincts which add to the emerging arts and cultural scene on the Gold Coast.  In addition, Palette Restaurant, The Exhibitionist Bar and HOTA Café are excellent dining options. The viewing area on the top floor – providing expansive views of the Gold Coast coastal skyline to the north and east – is worth enjoying while attending. 

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Links and Further Reading

The Art Gallery of New South Wales link to the touring exhibition – including links to the artwork on show – may be found here:  https://www.artgallery.nsw.gov.au/whats-on/touring-exhibitions/archie-100-tour/

For further reading on the 1944 litigation see Peter Edwell “The Case that Stopped a Nation”, 2021, Halstead Press.

As to another unsuccessful challenge, namely to the 2004 Prize winner – and applying Justice Roper’s 1944 reasoning – see Johansen v Art Gallery of NSW Trust [2006] NSWSC 577 per Hamilton J:  https://www.caselaw.nsw.gov.au/decision/549fcf8e3004262463bdbb8c

Music diva, Tina Turner, died on 24 May 2023, aged 83. It is reported she had a stroke in recent years and was struggling with kidney disease and other illnesses. Prior to her death, she had lived in Küsnacht, Switzerland – near Zurich – for more than a decade, with her second husband, Erwin Bach, who she married in 2013. She became a Swiss citizen the same year.

But for those who have been living in a cave, it would be surprising if any person did not know of, and for the most part loved the music of Tina Turner. Writing an obituary in the “New York Times”, William Grimes aptly described her as:

…the earth-shaking singer whose rasping vocals, sexual magnetism and explosive energy made her an unforgettable live performer and one of the most successful recording artists of all time.

Even more importantly she was a survivor of spousal domestic violence and exploitation. She never sought to hide this, being a shining example of triumph over such utterly deplorable conduct.

Turner embarked on her over 60 year career while still at high school. She initially forged a performing – and ultimately personal – relationship with musician Ike Turner. Their ensemble was “The Ike and Tina Turner Review”, and they enjoyed their first top ten hit in 1971 with Turner’s vibrant version of the Credence Clearwater Revival piece “Proud Mary”. That won them a Grammy Award.

Turner’s abusive relationship with Ike Turner came to an end whilst she was in her thirties, and her career spiralled down.

In 1984 as a 45 year old, she revived her career, regaining her mojo, embarking upon a spectacularly successful solo career with the release of her album “Private Dancer”. That album included the classic “What’s love got to do with it”. At the 1985 Grammy Awards that song won 3 awards, for Record of the Year, Song of the Year and Best Female Pop Vocal Performance. The album went on to sell 5 million copies.

In 1998 Turner appeared at a concert before about 180,000 people at the Maracana Stadium in Rio de Janeiro, breaking a record for the largest paying audience for a solo artist. In 2021 she was inducted into the Rock and Roll Hall of Fame as a solo artist.

All this was a long way from her birth on 26 November 1939 as Anna Mae Bullock, in Brownsville, north-east of Memphis, Tennessee. Her early years were spent on the Poindexter farm in Nutbush, near Brownsville, where her father was a farm manager and she sang in the choir of the local Baptist Church.

Every reader, of whatever age,  will – or should – remember dancing to Turner’s 1960’s hit “Nutbush”.

Turner had a close professional association with Australia in the 1980s and 1990s with her performances on ABC’s “Countdown” music segment and in promotion of the National Rugby League. Most will remember the NRL promotional campaigns of the early 1990s, viz “What You Get is What You See” and “Simply the Best”, each fronted by Turner.

Photographs and web links with this article will bring back fond memories for older readers, and entertain younger readers, women and men, even if you are not an NRL or Tina Turner tragic. See in particular her performance at the 1993 Grand Final, with the crowd singing along; it will make you feel good about life.

Turner outlived her two children. Ike Turner died in 2007.

Vale Tina Turner.

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1989 NSWRL campaign – ‘What You Get is What You See’

1990 NSWRL campaign – ‘Simply the Best’

1993 NSWRL Grand Final – ‘Simply the Best’

A photo of Tina with the NSWRL Gold Coast Seagulls in 1990 at The Spit on the Gold Coast as part of the ‘Simply the Best’ campaign:

A photo of Tina with the Brisbane Broncos after their win in 1993.

The difficulty with ‘starting high’! We referred to our first edition as editorial team in June 2022 as a “bumper issue”. A year later and Hearsay is positively bursting at the seams. The editors threw around the term ‘exo’ when trying to describe this edition – there are more than 80 articles contained within. We refuse to believe we are without sufficient language skills that we cannot think of an apt adjective but rather consider there is no other word adequate. 

Thank you to the many contributors – we would be nothing without you! – but thanks also to our readers, both members of the Queensland Bar and beyond, whose encouragement spurs us on.

This edition covers important territory. 

The Honourable Michelle May AM KC allows us a peek inside professional life after retirement from the bench. I am very grateful for her frank disclosures and the assistance they will afford current serving judges and those at the bar contemplating possible judicial appointment. 

There are two contributed articles regarding the Voice referendum – one for, one against – reflecting the Association’s position the matter is one for each of us. Both are thought-provoking and, I trust, will provide clarity where required.

The Australian legal profession lost a giant with the passing of the Honourable David Jackson AM KC. Peter Dunning KC who attended his Honour’s funeral in Sydney in his role as President of the Australian Bar Association, has written a fitting tribute as a ‘Featured Article’.  

Women barristers will find her Honour Magistrate Cathy McLennan’s speech – her Honour previously practising as a barrister – holds a mirror to some of their own prior experiences. A few of those unforgivable experiences are yet to be relegated to the annals of history but her Honour’s speech celebrates the significant progress being made.

Lister Harrison KC entertainingly talks us through the silk-related consequences of the death of Elizabeth II. Michelle James informs us of the links between the State Library of Queensland and the legal profession. Stephen Lee provides a fascinating insight into the influence of Chancellor Kent on Australian jurisprudence. The extraordinary life of Benjamin Ferencz – who played a crucial role as counsel in the post-Nuremburg trials – is highlighted in an article by Bianca Stringer.

‘10 Minutes With…Danny Gore KC’ has this busy and popular senior silk share with us his insight into a long career of practice at the bar.

‘Regional Bar’ features an in depth look at the Toowoomba and Darling Downs bar by David Jones KC. He shares with us also the rich history of law practice on the Downs, including the true origin of ‘the Roma Jury.’

I draw your attention to the raft of current material in ‘Advocacy.’ Further, there are articles on the uncertainties of litigation by Glenn Newton KC and a hypothetical trusts scenario and a detailed analysis of the same by David Marks KC.

And if you have not done so already, such is its wide circulation, I strongly commend to you, in ‘Professional Practice and Conduct,’ the speech of Victorian Supreme Court judge, the Honourable Justice O’Meara delivered to the Victorian Bar Readers’ Dinner. In so doing, you are unlikely ever to treat lightly your mental health.

On that note – encouraging you to lift your head from the brief – ‘Reviews and the Arts’ has movie, podcast and book reviews (especial thanks to S Keim KC our literary Sub-Editor), songs, poems and beautiful music from the Australian Voice Ensemble and the inimitable Tina Turner who was, obviously, simply the best and particularly dear to any NRL devotees. We round out, in ‘Inter Alia’, with musings on language, bar/bench sport (including some terrific photos) and the antics of Mintie the dog.

I thank Dianne Lyndon of the Bar Association and Deputy Editors John Meredith and Megan Brooks for their industry in producing this enormous issue.

Please forward to us, by Friday 18 August at the latest, contributions for issue 93, due for publication in mid-September 2023.

Enjoy!

Until next edition,

Richard Douglas KC
Editor

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I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com). The deputy editors are John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au). The sub-editors are Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book reviews and Margaret Forrest (T: 3333 9940; M: 0422 542 706; E: mforrest@qldbar.asn.au) who looks after podcast reviews.

Introduction

My over-arching answer to the question posed by the title of this article is the occasional unsatisfactory barrister’s response:  “That depends!” 

Formal pre-trial witness familiarisation training has long been de rigueur in the United States, and has made some inroads into the United Kingdom in the last two decades.  Such services are now available in  Australia.

In the US – where jury trials are the norm – retained attorneys or external providers set up mock court rooms, with witnesses being cross-examined by attorneys before a faux judge, and on the very evidence they are going to give at trial.  On any view – under Australian and UK ethical principles – this is impermissible “coaching”.

In contrast, what of an approach – afforded in-house or externally – whereby a witness is the subject of general familiarisation training as to court processes, including how questions commonly are asked, and little more?  So much, in general terms, it is submitted, is permissible, and probably little different from the way in which witnesses are prepared for trial conventionally in the Australian legal system.

The question is where the line is to be drawn between these two positions.  So much is addressed in this article.

In sum, in my view, barristers ought be cautious when advising on, or in condoning the drawing of that metaphorical line.  So much obtains in criminal and civil (including family) law spheres.

“There is an important difference between exploration and rehearsal.”

The Queensland Ethical Rules

The Barristers Rule 2011 (Qld), relevantly, provides:

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.

73. A barrister must not take any step to prevent or discourage prospective witnesses from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.

74. A barrister will not have breached Rule 73 simply by telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed or by advising about relevant obligations of confidentiality.

(emphasis added)

In my view, a proven allegation of any breach of Rules 68 and 69, in most instances, would result in a finding of professional misconduct (cf unprofessional conduct) against the offending barrister.  Moreover, if still in practice, such barrister would lose any trust of a court before whom they appear.

Character of Services Available

In an article appearing in “Proctor” – the online magazine of the Queensland Law Society – published 10 March 2021, the following helpful description of the services available was afforded by an external provider of witness familiarisation training:

Witness familiarisation is part of the process of preparing a witness who is to provide testimony in court, or in other legal and quasi-legal settings, usually under cross examination.

Witness familiarisation is an educational process which helps a witness provide their evidence most effectively. It does this by providing theoretical and practical training in the provision of evidence. It seeks to help a witness overcome the nerves, stress and pressure of cross examination, and to deal with the nuances and hurdles frequently faced by those providing evidence.

The witness familiarisation process has a particular emphasis on practical methods of witness preparation through rigorous mock cross examination sessions. These are conducted by independent practising barristers based on a hypothetical sets of facts, completely independent of the actual facts and issues in any underlying proceedings. This gives witnesses the opportunity to practise and apply the fundamental skills learnt in a simulated, but realistic, environment.

…

Witness familiarisation is available for both expert and factual witnesses, and courses are designed for such witnesses to properly account for the differences in the type of evidence to be given. Typically, a course is for one day, structured as follows:

1. Morning session – Foundations
   – Introduction to the court/trial process
   – Role of a witness
   – The giving of evidence
   – Cross examination techniques
   – Strategies to deliver evidence effectively
2. Afternoon session – Practical
   – Mock cross examination session
   – Videoed for witness, reviewed and analysed
   – Repeat.

Courses are usually undertaken at the instructing firm’s offices. Sessions are generally conducted individually for witnesses in order to ensure ethical obligations prohibiting witness collusion are strictly observed. In some limited circumstances, group sessions can be arranged, such as for sessions to professional bodies, where no attendees are witnesses in the same proceeding.

“Whilst it may be permissible to provide very general reassurance (ie ‘you may be asked about ‘x’ incident and why you think ‘y’ should happen’) counsel should not set out in detail the issues likely to arise in cross-examination.”

Unethical witness coaching is wholly separate and distinct from witness familiarisation training.

Witness coaching is influencing a witness’s evidence – telling a witness what to say, or how to answer a question put. In other words, it is “the orchestration of the evidence given” as the court said in R v Salisbury [2005] EWCA Crim 3107.

Conversely, witness familiarisation training is conducted wholly independently of the evidence to be given and thus falls safely within the ethical boundaries demanded of practitioners. This is achieved through several crucial mechanisms:

All courses are taught by independent local barristers, who are fully aware of, and subject to, the relevant regulatory and ethical obligations.

All course materials are hypothetical, prepared completely independently of the underlying legal proceedings.

All training sessions are conducted strictly without reference to the underlying proceedings. Training organisations and the instructors do not, and cannot, know details of these proceedings.

(emphasis added)

The cost of such services is unknown to me.

UK – R v Momodou:

In R v Momodou [2005] 2 All ER 571; [2005] WLR 3442, the Court of Appeal in England and Wales considered a case in which a training provider had created practice case studies for the witnesses – in a forthcoming criminal trial – to be cross-examined on a case that – importantly – although hypothetical, had similarities with the facts of the actual case.  The witnesses were trained together and not separately.

The Court of Appeal held that this type of training crossed the boundary from mere familiarisation into coaching.  Judge LJ – later Judge CJ, and now Lord Judge – wrote for the court (at [61]-[65]):

[61] There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of the well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness: see R v Richardson [1971] 2 QB 484, R v Arif The Times, 22 June 1993, R v Skinner (1993) 99 Cr App R 212 and R v Shaw [2002] EWCA Crim 3004. The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule 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. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be “improved”. These dangers are present in one-to-one witness training. Where however the witness is jointly trained with other 3454 witnesses to the same events, the dangers dramatically increase. Recollections change. Memories are contaminated. Witnesses may bring their respective accounts into what they believe to be better alignment with others. They may be encouraged to do so, consciously or unconsciously. They may collude deliberately. They may be inadvertently contaminated. Whether deliberately or inadvertently, the evidence may no longer be their own. Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited.

[62] This principle does not preclude pre-trial arrangements to familiarise witnesses with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness’s own uncontaminated evidence. 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, another example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witnesses’ specific expertise. The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it.

[63] In the context of an anticipated criminal trial, if arrangements are made for witness familiarisation by outside agencies, not, for example, that routinely performed by or through the Witness Service, the following broad guidance should be followed. In relation to prosecution witnesses, the Crown Prosecution Service should be informed in advance of any proposal for familiarisation. If appropriate after obtaining police input, the Crown Prosecution Service should be invited to comment in advance on the proposals. If relevant information comes to the police, the police should inform the Crown Prosecution Service. The proposals for the intended familiarisation programme should be reduced into writing, rather than left to informal conversations. If, having examined them, the Crown Prosecution Service suggests that the programme may be breaching the permitted limits, it should be amended. If the defence engages in the process, it would in our judgment be extremely wise for counsel’s advice to be sought, again in advance, and again with written information about the nature and extent of the training. In any event, it is in our judgment a matter of professional duty on counsel and solicitors to ensure that the trial judge is informed of any familiarisation process organised by the defence using outside agencies, and it will follow that the Crown Prosecution Service will be made aware of what has happened.

[64] This familiarisation process should normally be supervised or conducted by a solicitor or barrister, or someone who is responsible to a solicitor or barrister with experience of the criminal justice process, and preferably by an organisation accredited for the purpose by the Bar Council and Law Society. None of those involved should have any personal knowledge of the matters in issue. Records should be maintained of all those present and the identity of those responsible for the familiarisation process, whenever it takes place. The programme should be retained, together with all the written material (or appropriate copies) used during the familiarisation sessions. None of the material should bear any similarity whatever to the issues in the criminal proceedings to be attended by the witnesses, and nothing in it should play on or trigger the witness’s recollection of events. As already indicated, the document quoted in para 41, if used, would have been utterly flawed. If discussion of the instant criminal proceedings begins, as it almost inevitably will, it must be stopped. And advice given about precisely why it is impermissible, with a warning against the danger of evidence contamination and the risk that the course of justice may be perverted. Note should be made if and when any such warning is given.

[65] All documents used in the process should be retained, and if relevant to prosecution witnesses, handed to the Crown Prosecution Service as a matter of course, and in relation to defence witnesses, produced to the court. None should be destroyed. It should be a matter of professional obligation for barristers and solicitors involved in these processes, or indeed the trial itself, to see that this guidance is followed.

(emphasis added)

“Questioning of a witness moves beyond “proofing” to impermissible “coaching” when the witness’ true recollection of events is supplanted by another version …”

UK Bar Commentary

In an article in “Counsel” – the online magazine of the Bar Council of England and Wales – published in November 2017, and written by Nicholas Goodwin KC, the following was said about amended guidelines then recently adopted:

Revised guidance

In August 2017 the Bar Council Ethics Committee published a revised guidance document on witness preparation. In practice, unheralded issues relating to witnesses are, we have found, more likely to arise in criminal or family cases. However, the document is divided into three sections – civil, crime and family – to make it more readily accessible by all practitioners facing ethical dilemmas at court.

This new guidance confronts head on the ethical line drawn between, on one hand, the need to provide support to one’s client before giving evidence and, on the other, the need to ensure that their evidence remains, uninfluenced, their own. All counsel will seek to put their client at ease in advance of a case, particularly at the door of the court. Some witnesses will be vulnerable, have a learning difficulty, be victims of a crime or will be participating in proceedings in a foreign court in a foreign language. Some will be just plain nervous. There are, of course, no difficulties with seeking to reassure and inform such witnesses about their likely experience in court.

Staying the right side of the line

Conduct that falls the right side of the line is, principally, emotional support and encouragement designed to help the witness give their best evidence. The ethics become more complex when the witness seeks guidance in advance about cross-examination. The main rule governing counsel’s conduct is Rule C9.4 in the BSB Handbook: ‘you must not rehearse, practise with or coach a witness in respect of their evidence’. This is a subset of Core Duty 3 – the duty to act with honesty and integrity. Whilst it may be permissible to provide very general reassurance (ie ‘you may be asked about ‘x’ incident and why you think ‘y’ should happen’) counsel should not set out in detail the issues likely to arise in cross-examination. The guidance is not, of course, intended to operate as a restriction on counsel exploring in conference with a client all aspects of the case in detail, including his/her response to assertions made by other parties that may well be put in cross-examination. There is an important difference between exploration and rehearsal.

There are other rules referred to in the document which, in combination, set out the framework under which these ethical decisions should be made. For example, under Rule C9.3 counsel is prohibited from encouraging a witness to give evidence which is misleading or untruthful. Under Rule C9.2(d) counsel cannot draft any statement or affidavit containing a statement of fact other than the evidence which one reasonably believes the witness would give in oral evidence.

Momodou: coaching v familiarisation

The guidance considers again the criminal case of Momodou [2005] EWCA Crim 177, in which the Court of Appeal emphasised that witness coaching is impermissible. Witness familiarisation is, however, a slightly different beast – encompassing showing a witness the layout of the court, telling them about the likely sequence of events and giving a balanced appraisal of the participants’ different responsibilities. Although there is no specific authority on these matters in civil or family proceedings, it would be wise to apply the guidance in Momodou to all litigation and to all witnesses, whether lay or expert. There are also separate sections on expert evidence in each field of law.

In Momodou, the Court of Appeal also dealt directly with witness familiarisation and expert training programmes offered by outside agencies. Where such a programme has been organised by one side or another in the litigation, the trial judge will need to be informed and all legal representatives will be under a professional duty to ensure the Court of Appeal guidance is followed. Any ‘mock’ cross-examinations should not be based on the facts of a pending or current trial where any participant is likely to be a witness. Whilst in the field of family law I have encountered counsel being asked to provide generic training to social workers who have never given evidence before, I have not seen, in the last 22 years, any training programme specific to a case. As such, Momodou will be fairly unfamiliar territory for many family practitioners and may remain so.

Civil focus: witness statements

One focus of the civil section of the document is the proper approach to the settling of witness statements with which counsel is often instructed to assist. The courts have repeatedly emphasised that statements must, as far as possible, be in the witness’ own words – see Aquarius Financial Enterprises Inc v Certain Underwriters at Lloyds [2001] 2 Lloyd’s Rep 542 – and, in turn, the Chancery, Commercial and Admiralty and Technology and Construction Court Guides.

The Chancery Guide 2016, para 19.6 notes that ‘a professional adviser may be under an obligation to check, where practicable, the truth of facts stated in a witness statement if you are put on enquiry as to their truth’. What should counsel do if another witness’ evidence contradicts that of the witness whose statement one is drafting? First, ‘it is not for you to decide whether your client’s case is to be believed’ (see gC6 in the BSB Handbook). Second, gC7 provides that you may draw to a witness’ attention other conflicting evidence and may point out that the court might find a particular piece of evidence difficult to accept. If the witness confirms his/her own evidence is true then you will not be misleading the court if you include it. Indeed, you might well fall the wrong side of the line if you do not include it.

(emphasis added)

Australian Authority

The judicial commentary in Australia has not been extensive but, unsurprisingly, has been helpful.

The relevant authorities were collected, usefully, by the Court of Appeal of the Supreme Court of Western Australia in Majinski v Western Australia (2013) 226 A Crim R 552;  [2013] WASCA 10. Martin CJ (Buss and Mazza JJA agreeing) wrote:

(emphasis added)

The Result

I reiterate that Barristers Rules 68 and 69 proscribe a barrister proceeding to:

… advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or … coach a witness by advising what answers the witness should give to questions which might be asked.

Witness familiarisation in the form of mock trial involving the specific evidence of the dispute in question – essentially constituting witness training – inexorably entails breach of the rule by a barrister advising or acceding to such course.

If a barrister comes to know that such training has occurred – whether by another barrister or solicitor on the team, or externally – but continues to act without disclosure of same to the other party and the court, so much constitutes a contravention of Rule 68 on account of that entailing the barrister having “condoned” same.

The same outcome ensues if such training is based on evidence with distinct similarities to that dispute.

What of familiarisation training which is wholly divorced from the facts of the dispute, but involves training as to cross-examination techniques and how such techniques may be responded to by the witness? 

In respect of this great care must be taken by counsel.  If it is to ensue,  or has ensued, the barrister will need to elicit – and, indeed, be informed of in writing –  the precise metes and bounds of such training.  If refused, the barrister ought cease to act.

If such training ensues – whether or not undertaken externally from the briefing solicitor – at the least it need be so undertaken:

• one on one, not with witnesses collectively;
• under the over-arching supervision of the retained briefing solicitor;
• wholly recorded, so there is no doubt as to what has transpired (including inquiries by the witness on any issue the importance of which may not be known by the trainer who is not informed as to the underlying dispute facts);
• in addressing cross-examination techniques, be bereft of a scintilla of suggestion as to a particular answer a witness ought or may give to a generic cross-examination question.

This training content – for each witness – need be studied by counsel briefed for that party.  Such training must not transcend the various facets of proper witness preparation referred to by Justice Peter Young in the last extract above in Majinski.

Professional external service providers – including that referred to in the above Proctor article – are endeavouring, no doubt assiduously, to abide the relevant ethical touchstones.  Any innovation which may assist efficient adducing of court testimony – but, necessarily, untainted and unembroided in character – is to be commended.   In the view of the writer, however – given the risks involved for a barrister briefed – “the game is not worth the candle!”.   I summarise below my reasons.

First, I reiterate that barristers need harbour close understanding of what is entailed in the training, the barrister not being party to such training.  So much will be challenging.

Second, efficient and comprehensive preparation of a witness for trial is best undertaken, solely, by the lawyers (solicitor and barrister) engaged in the carriage of the litigation in the court or tribunal in question.  Some may characterise that view as unduly conservative, but such matters are too important to the administration of justice to be left to chance.

Third, pragmatically, if it were revealed that such formal familiarisation has ensued, so much is likely to pique a judicial response entailing (at the least) greater scrutiny of the evidence of that witness.  Perhaps, over time, such response will diminish.

Fourth, despite any permissible formal witness familiarisation training undertaken, counsel ought still engage in relevant pre-hearing preparation of the witnesses in the conventional way.  It need ensue in any event, so why not spend the time, and available litigation funds, on that endeavour.

Invariably, I request my briefing solicitor – when dealing with witnesses unfamiliar in that role, and after conferring with counsel – take each witness (separately) to the court complex for a short time so such witness can see how a trial operates, and the locations occupied in the court by the various persons who participate in a trial.  Experience dictates that settles their (initial) nerves concerning giving evidence, irrespective of their sophistication and education, by exposing them to the court environment.

I commend to the barrister reader the content of the lastmentioned extract from Majinski for the germane ethical touchstones.  Strict compliance therewith will see counsel clear of any suggestion of contravention of the “coaching” rule.

Sixty years ago Canadian singer-songwriter Buffy Sainte-Marie (born 1941) wrote the anti-war song “Universal Soldier”. It was first released, as a single, by The Highwaymen in September 1963. It was released by Sainte-Marie in 1964 and then covered, famously, in 1965, by Donovan. In a Canadian Songwriters’ Hall of Fame record, Sainte-Marie said the gravamen of the lyrics was the notion that politicians, with power over the military, are elected by the people. Thus her thesis, it would appear, was that every citizen ought take responsibility for the nation’s pursuit of war (even in countries where voting is not compulsory). The issue, of course, is more complex than that but the song figured significantly in the anti-war sentiment and movement of the 1960s and 1970s. In 1965, Jan Berry released an “answer” song presenting the opposite point of view, titled “The Universal Coward”, which railed against anti-war protesters.

For further reading see R Cohen and W Kaufman “Singing for Peace: Anti-war Songs in American History” – Routledge, 2015.

Below the reader will find, first, the lyrics, and below that a YouTube link to Donovan’s cover version.

He’s five foot-two and he’s six feet-four
He fights with missiles and with spears
He’s all of 31 and he’s only 17
Been a soldier for a thousand years.

He’s a Catholic, a Hindu, an Atheist, a Jain
A Buddhist, and a Baptist, and a Jew
And he knows he shouldn’t kill
And he knows he always will
Kill you for me, my friend, and me for you.

And he’s fighting for Canada
He’s fighting for France
He’s fighting for the U.S.A
And he’s fighting for the Russians
And he’s fighting for Japan
And he thinks we’ll put an end to war this way.

And he’s fighting for Democracy
He’s fighting for the Reds
He says it’s for the peace of all
He’s the one who must decide
Who’s to live and who’s to die
And he never sees the writing on the wall.

But without him
How would Hitler have condemned them at Dachau?
Without him Caesar would have stood alone
He’s the one who gives his body as a weapon of the war
And without him all this killing can’t go on.

He’s the Universal Soldier and he really is to blame
His orders come from far away no more
They come from here and there and you and me
And brothers, can’t you see?

This is not the way we put the end to war.

Also 60 years ago, another Canadian singer-songwriter Ian Tyson (1933-2022) penned and performed “Four Strong Winds”. He wrote it in 1962 – he claimed it was the first song he wrote and that he did so in about 20 minutes – and first performed it in 1963 with his partner Silvia Tyson, performing as the duo “Ian & Silvia” (see photo). They were part of the folk music revival of the early 1960s. In 1978 – in the album “Comes a Time” – it was covered by Neil Young, another Canadian (by birth at least). The song is a lament concerning a faltering – or probably failed – relationship. So much is highlighted in the lyrics below, some, in character, affectionate (“still I wish you’d change your mind, if I ask you one more time”, and “you could meet me if I sent you down the fare”) but others insensitive, albeit in the minds of some also resilient (“but our good times are all gone, and I’m bound for moving on ..” and “all those things that don’t change come what may”):

[Chorus]
Four strong winds that blow lonely
Seven seas that run high
All those things that don’t change come what may
But our good times are all gone
And I’m bound for movin’ on
I’ll look for you if I’m ever back this way

[Verse 1]
Think I’ll go out to Alberta
Weather’s good there in the fall
I got some friends that I can go to workin’ for
Still I wish you’d change your mind
If I asked you one more time
But we’ve been through that a hundred times or more

[Chorus]
Four strong winds that blow lonely
Seven seas that run high
All those things that don’t change come what may
But our good times are all gone
And I’m bound for movin’ on
I’ll look for you if I’m ever back this way

[Verse 2]
If I get there before the snow flies
And if things are goin’ good
You could meet me if I sent you down the fare
But by then it would be winter
There ain’t too much for you to do
And those winds sure can blow cold way out there

[Chorus]
Four strong winds that blow lonely
Seven seas that run high
All those things that don’t change come what may
But our good times are all gone
And I’m bound for movin’ on
I’ll look for you if I’m ever back this way

Despite its vintage, “Four Strong Winds” has become a national ballad of Canada, and is often voted there as the most popular song of all time. Ian Tyson and another celebrated Canadian singer and songwriter, Gordon Lightfoot (“If you could read my mind”, “Sundown”, “Wreck of the Edmund Fitzgerald”), performed the song at the opening ceremony of the 1988 Winter Olympics in Calgary. In 1989 Tyson was inducted into the Canadian Country Music Hall of Fame. In 1994 he was awarded the Order of Canada. He died on 29 December 2022, aged 89.

Neil Young’s haunting 1978 cover – which he sings in a duet with Nicolette Larson, and which is linked below in a 2016 remastered version – is one of Young’s best performances, in an otherwise lengthy and impressive discography.

Even many of us who are avowed Republicans – like the writer – nonetheless revered Her Majesty Queen Elizabeth II for her intelligence, grace and steady hand as Head of State in Australia and other countries.  She was a strong supporter of the rule of law.

Whatever one’s political persuasion, none could gainsay that we are blessed to enjoy in Australia – among many other advantages – a democracy under which the rule of law prevails.

Such rule is embodied – in criminal and civil law spheres –  in court enforcement of statutory and common law obligations, by a state funded and independent judiciary, assisted by officers of the court (barristers and solicitors) also independent in the sense of being bound by an overarching duty to the interests of administration of justice under strictly enforced ethical rules.

In the United Kingdom, before 1701, judges held office at the Sovereign’s pleasure. There were then many examples of judges being removed from office for deciding cases in a manner not in accord with the wishes of the incumbent monarch.

Judicial independence commenced with the 1701 enactment of the Act of Settlement.  Security of judicial tenure – or, at least, the semblance of it – was thereby grounded. 

Act of Settlement Article 7, which is actually the 7th clause of the 3rd Article, relevantly, provided:

[J]udges’ commissions be made quamdiu se bene gesserint,¹ and their salaries ascertained and established but upon the address of both Houses of Parliament it may be lawful to remove them.

The outcome, however, was not plain sailing.  Judicial tenure was inchoate.  “Removals” continued.

Queen Anne, shortly after her accession in 1702, removed Sir John Turton (Court of Queen’s Bench) and Sir Henry Hatsell (Baron of the Exchequer). George I, upon his accession in 1714, removed  Lord Trevor (Chief Justice of the Court of Common Pleas), Sir Thomas Powys (Court of King’s Bench), and Sir William Bannisteer (Baron of the Exchequer) respectively. 

These ensued despite the patent of appointment of each being  quamdiu se bene gesserint (ie during good behaviour).  Each, it seems, was a victim of enmity directed towards perceived Jacobites and Tories.

Evan Haynes, in “Selection and Tenure of Judges”,² wrote of the uncertainty remaining after the Act of Settlement:

It was still assumed, however, that on the death of the king, their commissions ceased, and should be renewed or not at the pleasure of the new sovereign. In 1720 a statute was enacted providing that judges (and certain other officers) should continue in office for six months after the demise of the Crown.

Finally, in 1761, a further statute enacted provided that “commissions of the judges shall remain in full force and effect during good behaviour, notwithstanding the demise of His Majesty or any of his heirs or successors”.  The prospect of regal summary removal, thereby, was obviated.  Tenure was secured.

Thus, the perennial British monarchy – ergo “The Queen is dead, long live the King” – for the last circa 250 years at least, has championed the rule of law.

Such legal protocol was adopted in Australia.  While the tenure is no longer for life – rather, in most jurisdictions, being to age 70, short of earlier retirement – protections exist in the sphere of salary and pension guarantee.  So much underscores the independence enjoyed.

Finally, only admitted lawyers – and then, ordinarily, only if they have been so admitted for a particular duration – can be appointed as judges – by Cabinet of the Commonwealth, state or territory – and then (ordinarily) only upon recommendation and advice from an appointment panel.  This provides further checks and balances.

Likewise, barristers and solicitors are admitted by the court and can only lose their admission status upon order of the court adjudicated on the merits apropos of misconduct.

Queen Elizabeth II, in speeches given as Head of State, spoke underscoring the importance of the rule of law, and the maintenance of it by independent judges and lawyers engaged in its administration.

I will refer to two speeches only – delivered in the United Kingdom and Australia, respectively, 12 years apart³  – as they are representative. In each, the touchstone identified is that of the “inheritance” of the rule of law from the Regal Head of State.

Speaking in London on 10 October 1968 at the opening of the Queen’s Building Extension to the Royal Courts of Justice, Her Majesty said:

The judiciary is one of the oldest and most honourable branches of the service of The Crown. It is also one of the most vital because, as the yearbooks tell us, the law is the highest inheritance of the King, for both he and all his subjects are ruled by it. And if there were no law, there would be neither King, nor inheritance. That is as true today as it was five centuries ago. The attachment of our people to law is the foundation of our constitution and of our civilisation. As the independent custodians of the law, the judges bear a direct and personal burden of responsibility, which makes their office a lonely and difficult one. We are fortunate that our judges are worthy inheritors of the great traditions of their predecessors. As our world becomes more complex, so the task of doing justice between man and man, and man and the State becomes more difficult and even more important. Therefore, we must continue to be able to rely on the strong and peerless legal profession. The Bar’s independence is as much a safeguard to our liberties today as it has been in the past. I welcome the completion of the new court building. I am glad, my Lord Chancellor, [Lord Gardiner] to grant your request that it be called the Queen’s Building. I know that my judges, and all those who assist them so devotedly, will administer justice there in accordance with the finest traditions of their calling. ⁴  (emphasis added)

In a speech delivered on 26 May 1980 on the opening of the High Court Building in Canberra, Her Majesty said:

… the High Court of Australia is at the pinnacle of the judicial system in Australia. It has a special place under the Australian Constitution, serving both as a final court of appeal on matters of general law and as arbiter on constitutional issues. The court has a critical and sensitive role in the Federal compact that binds the Commonwealth of Australia, determining the law not only between citizen and citizen, and between citizen and executive Government, but also between the Governments that constitute the Commonwealth of Australia. We should remember today Chief Justice Griffith and Justices Barton and O’Connor, who constituted the High Court of Australia in 1903, and with their successors defined the role of the court, in accordance with the Constitution, and established for it a fundamental place in the national life.

I am pleased to pay tribute to the judiciary of Australia – including the judges present today and the justices of this court in particular – for the admirable way in which they discharge their onerous responsibilities. The law of the land is a priceless inheritance and it secures the liberties which, as individuals and as a nation, we prize. In times of social change and tensions in the world, great are the demands upon the courts and the challenges to them in reconciling competing interests and in accommodating traditional rules to new circumstances. The High Court of Australia has earned great, respect, both within Australia and beyond, and it is; recognised as a court of the highest eminence among the courts of the nations.⁵  (emphasis added)

The embolden portions of the above speeches are not pious platitudes. Rather they neatly encapsulate the importance of the roles performed by judges, barristers and solicitors.  Her Majesty – and her predecessors since the late eighteenth century – championed those legal tenets.

Finally, while we may now mourn Her Majesty, barristers were in regal mourning long before her demise.  Contrary to the “Queen Anne” theory, the barrister’s stuff gown was adopted as mourning dress, in 1685, by the royal court, including the bar, following the death of Charles II.  Thus, the Bar “went into mourning at the death [of Charles II] and have remained so ever since!”⁶

The Queen is dead – and we salute her memory – and long live the rule of law Her Majesty championed.

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¹  meaning ‘during good behaviour’.

²  National Conference of Judicial Councils, 1944, California.

³  I am indebted to Daniel Yazdani, of the New South Wales Bar, who identified the speeches and ALJ reference below in a paper he gave in the Summer 2022 Edition of “Bar News – the Journal of the NSW Bar Association”, for references to same.

⁴   ‘Royal Visit: Queen pays tribute to judiciary’ (Canberra Times, 27 May 1980, p 10) https://trove.nla.gov.au/newspaper/article/110959519.

⁵  ‘The Queen on Judges and the Rule of Law’ (Courts and Tribunals Judiciary, 2 June 2022) https://www.judiciary.uk/guidance-andresources/the-queen-on-judges-and-the-rule-of-law/.

⁶  ‘The Demise of the Crown’ (1936) 9 Australian Law Journal 353 at 354;  see generally, Prof JH Baker ‘History of Gowns worn at the English Bar’ (1975) 9 Costume 15.

This quarterly issue of Hearsay – Issue 91 – leads with an inspiring piece by the Honourable Patrick Keane AC KC, delivered as the keynote speech at the BAQ Annual Conference held on 3 and 4 March 2023 at The W.

The Honourable Ian Callinan AC KC writes a touching piece on his wartime remembrances as a child in Brisbane.

‘10 minutes with’ has me chatting with the Honourable Justice Philip McMurdo, who will retire from the Court of Appeal on 8 April 2023 after 20 years of distinguished judicial service.

Practical articles are provided with tips for better – and procedurally compliant – court pleadings, the adducing of video evidence from witnesses resident overseas and managing the burden of proof in tax appeals.

The ‘Regional Bar’ section – consists of an enjoyable and enlightening discussion of the Rockhampton Bar. 

‘Words from the Past’ comprises a piece ‘Conscience of Equity’, also delivered by the Honourable Patrick Keane but in 2009, the content of which is every bit as relevant today. 

I draw your attention, in particular, to the case note of the recent Supreme Court of the United Kingdom decision of Fearn involving nuisance. There are links at the foot of that article not only to the full decision text but also to the video recording of the Supreme Court hearing. We encourage all barristers, especially those newly in practice, to watch at least part of the hearing in order to experience the best of the best ply their trade in that top level UK jurisdiction.

The ‘Reviews and the Arts’ includes a review of the currently playing historical musical ‘Hamilton’, viewed through the lens of its relevance and application to mediation practice. The book reviews, as usual, are a must for reading, as are the film and (historical and poetic) song reviews.

I thank Dianne Lyndon of the Bar Association, deputy editors John Meredith and Megan Brooks, and sub-editors Stephen Keim SC and Margaret Forrest, for their industry in producing this issue. Thanks also to the barristers, judges and others who have contributed content.  

Please forward to us, by mid-May at the latest, contributions for publication for issue 92, due for publication in mid-June 2023.

Enjoy!                

Richard Douglas KC
14 March 2023

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I do request your contributions to the deputy editors and sub-editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com). The deputy editors are John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au). The sub-editors are Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book reviews and Margaret Forrest (T: 3333 9940; M: 0422 542 706; E: mforrest@qldbar.asn.au) who looks after podcast reviews.