Integrity of Evidence – Annotations to rules 68 – 74 of the Barristers’ Conduct Rules
Rule 68 – 74 of the Bar Association of Queensland – Barristers’ Conduct Rules relate to the integrity of evidence. These include such matters as the prohibition as against coaching: r.68(b), a witness can however be questioned and tested in conference: r.69, unless as provided for in r.71 (such as relating to undertakings to the court), a prohibition of conferring with more than one lay witness at a time: r.70, unless as expressly provided for (such as the prior consent of the opponent), a barrister must not confer with a witness while that witness remains in cross examination: r.72, unless as provided for in r.74 – not to prevent or discourage a witness from conferring with an opponent: r.73. The knowledge, understanding and compliance with these rules is critical in the practice of a barrister. To assist, below are some annotations with respect to rules 68 and 70.
Rule 68 provides:
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.
- Overriding guidance with respect to dealing with witnesses is provide by rule 25 – the barrister’s overriding duty is to the Court and the administration of justice, and rule 26 – a barrister must not knowingly mislead the Court on any matter.
- The text ‘Professional Responsibility and Legal Ethics in Queensland’ says with respect to r.68 BCR:[1]
The proscription extends to both giving a positive indication as to what evidence should be given and to a negative suggestion as to the undesirability of giving certain evidence, as well as to the advantages of selective forgetfulness.
That is not to say that a barrister should not prepare witnesses by, for example, simulating the giving of evidence or cross-examination. Such practices allow lay witnesses to become used to the forensic environment and enhance their ability to give evidence in a way which assists the court. Although examining the question in the civil context, Ipp J considered that there was “nothing improper in preparing witnesses this way. It is indeed desirable for lawyers to prepare witnesses, particularly those who give lengthy or complex evidence, for trial.”[2]
Indeed, a barrister would be derelict in his or her duty to the client if they failed to take advantage of the opportunity to gauge how a witness will respond in court, and to identify aspects of the evidence which require clarification.
- The concept of coaching a witness is clear enough. In an 1880 New York disciplinary case of In re Eldridge[3] the judge said:
[The lawyer’s] duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.
- When considering the permitted professional boundaries involved in lawyers conferencing with any witness, Young J (as his Honour then was) said In Re Equiticorp Finance Ltd; Ex parte Brock:[4]
It is clear that a witness might confer with his or her solicitor or counsel, or the solicitor or counsel for the party calling the witness, and that during such conference the solicitor or counsel concerned may give the witness advice. That advice may certainly include:
(1) advice that the witness should refresh his or her memory from contemporaneous documents;
(2) directing the witness’ mind to the point about which questions may be asked;
(3) giving the witness a sketch of court procedure;
(4) directing the witness’ attention to points in his or her evidence which appear to be contradictory or fantastic;
(5) reminding the witness to bring to court all relevant documents;
(6) advising the witness as to the manner of answering questions (for example, ‘In cross-examination listen to the question, just answer the question asked with as concise an answer as possible’); and
(7) giving advice as to appropriate dress and grooming.
There may be other permitted areas.
- In the text ‘Cross on Evidence’, Heydon says on the role of the legal practitioner and the preparation of expert reports:[5]
…. It is legitimate for legal practitioners to identify the real issues for the expert, to indicate when the report fails to direct itself to the real issues, to point out obscurities and gaps in the reasoning, to indicate that the report fails to distinguish between the assumed facts and the opinion which is supposed to be based on them, and to indicate that the report does not explain how the opinion is substantially based on the expert’s specialised knowledge.[6] …
- The learned author of the text ‘Expert Evidence’[7] refers to the comments of McDougall J in Thiess Pty Ltd v Dobbins Contracting Pty Ltd:[8]
- Lawyers must play an active, and important, part in the preparation of statements of expert evidence. First of all, the lawyers for a party who proposes to rely on expert evidence must inform the expert of the assumed facts on which his or her opinion is to be based. To enable the opinion to have any value, the statement of assumed facts (and of course, those facts include documents) must be comprehensive.
- Next, the lawyers should do what they can to ensure that the expert expresses his or her opinions in a way that demonstrates clearly the application of specialised knowledge to those assumed facts and the reasoning process that leads to the opinions expressed. Of course, it is a matter for the expert, and only the expert, to formulate those opinions, and to employ an appropriate reasoning process in doing so. However, if the expert’s statement of evidence is to be of any real utility, the lawyers who have retained the expert must do what they can to ensure that the reasoning process is adequately displayed. In this case, the lawyers for both the plaintiffs and Mr Bate appeared to be either ignorant of, or uncaring as to, their responsibilities in this regard.
- Coaching was also considered by Martin CJ in Majinski v State of Western Australia:[9]
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.
- Dal Pont says in his text ‘Lawyers’ Professional Responsibility’:[10]
The lawyer’s professional responsibility to a client dictates that he or she should prepare witnesses (including the client) for the type and manner of questioning, and not put a witness on the stand without knowing in advance how he or she will respond to vital questions.[11] The level of preparation is influenced by the experience of the witness.[12] Witness preparation of this kind can serve the efficient administration of justice and save time.[13]
- The involvement of legal representatives in the preparation of expert reports was considered by Callinan J in Boland v Yates Property Corporation Pty Ltd, when his Honour said:[14]
… I do not doubt that counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method of valuation might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions. …
- Dalton J helpfully discussed the assistance that legal representatives can usefully provide in the process of the preparation of expert reports In Landel Pty v Ltd & Anor v Insurance Australia Limited [2021] QSC 247, when her Honour said:[15]
[19] First, while 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. Draft expert reports are disclosable so that the effect of any such input will be obvious to the other parties to the litigation – see r 212(2) and Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board.
[20] 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.
[21] Any disciplined and structured conferences with Dr Macintosh would have revealed that there were faults in his opinions which went beyond matters of expression and presentation. They would have revealed significant contradictions, errors and gaps in reasoning in his reports. It is permissible for matters of substance like this to be drawn to an expert’s attention in conference with lawyers, and remedied if the expert is able and willing to do so. Again, coaching is not permitted, and drafts will be disclosable.
[22] The course of this proceeding shows the importance of attention to the reports of experts by the lawyers running the case, not just to achieve a comprehensible and rational expert opinion for use at the trial, but to evaluate the strength of the case sought to be advanced by the litigant. In this case, had early attention been paid to what reasoned opinion Dr Macintosh could give, the plaintiffs’ lawyers would have understood the weaknesses in their expert case at a stage of the litigation when there might still have been alternatives open to them. Instead, it appears that the only effort the plaintiffs’ lawyers made to come to terms with Dr Macintosh’s opinions was immediately prior to trial, by which time any such avenues were very limited. …
Rule 70 provides:
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.
- In Landel, Dalton J also said with respect to the necessity to confer with witnesses separately:[16]
…. However, I am critical of the defendant’s lawyers for meeting with both experts together. Lay witnesses should never discuss their evidence with each other. Experts see each other’s reports before trial, and sometimes there are Court-ordered conferences between expert witnesses. Here, where the plan apparently was to present two independent views to the Court, meeting with both experts together, particularly before they had committed their views to writing, obviously had the potential to compromise that independence.
- In Day v Perisher Blue Pty Ltd Sheller JA observed:[17]
It has long been regarded as proper practice for legal practitioners to take proofs of evidence from law witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly with other witnesses. … In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant’s witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper.
[1] By Corones, Stobbs and Thomas, 2nd ed, 2014, says at para [12.60], pages 457 – 458.
[2] Justice D A Ipp, “Reforms to the Adversarial System in Civil Litigation – Part II” (1995) 69 Australian Law Journal790 at 799.
[3] In re Eldridge, 37 N.Y. 161, 171 (N.Y. 1880), cited at fn., 4 in Wydick R. C. ‘The Ethics of Witness Coaching’ Cardozo Law Review (1995) 1, 17, 1.
[4] (1992) 27 NSWLR 391 per Young J at 395. These comments of Young J were referred in the article by Declan Kelly SC (now Justice Kelly) and Dan Butler, “Ethical Considerations in Dealing with Experts”, BAQ Seminar 1 December 2010 and ‘Hearsay’ dated 24 February 2011. This paper also considered the Australian and UK positions with respect to the permissible limits of the involvement of lawyers in the preparation of expert reports, as did the paper by Blake SC and Gray in ‘Can Counsel Settle Reports’ (2013) 119 Precedent 16 – 20.
[5] 11th ed, 2017, paragraph [29080], page 1118.
[6] See Phosphate Co-operative Co of Australia Ltd v Shears (No 3) (Pivot case) [1989] VR 665 at 680; Vernon v Bosley (No 2) [1999] QB 18 at 56-60; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [16] and [19]-[21]; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1 at [227]-[231] R v Doogan (2005) 158 ACTR 1 at [119] …
[7] By Ian Freckleton QC, 6th ed, 2019, paragraph [5.10.360], page 316.
[8] [2016] NSWSC 265 (17 March 2016) at [21] – [22].
[9] [2013] WASCA 10 at [32].
[10] 7th ed, Law Book Co 2021, paragraph [17.165], page 602.
[11] R v Chapman (1958) 26 WWR 385 at 393 per O’Halloran JA.
[12] R v Noble (2000) 117 A Crim R 541 at [19] per Pinucs JA.
[13] See Applegate, “Witness Preparation” (1989) 68 Tex L Rev 277. It has been noted, to this end, that witness preparation is in line with the rules noted at [17.250], which require limiting evidence to issues genuinely in dispute and taking up as little as possible of the court’s time: Legg, “Preparing Witnesses Effectively” (2003) 41 (Dec) LSJ 60.
[14] [1999] HCA 64 at [279]; 74 ALJR 209; 167 ALR 575 (9 December 1999)
[15] At [19] – [22].
[16] At [26].
[17] Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 at [30].
