Case Note: Counsel’s Duty in Cross-Examination — “Willing to wound, and yet afraid to strike”

In Green v Emergency Services Telecommunications Authority [2014] VSCA 207 (judgment delivered 10 September 2014) the Victorian Court of Appeal ordered a new trial where judgment had been entered for the respondent in a claim by the appellant for personal injuries. The Court found that the jury’s verdict may have been infected by the misconduct of counsel for the respondent.

The court found that counsel for the respondent, in cross-examination of the appellant and in submissions, had improperly insinuated that the plaintiff and her present solicitor had colluded to concoct a history of the appellant’s injuries as having arisen from her duties during the Black Saturday bushfires.

At [57] the Court said:

[Footnotes omitted; emphasis added]

The court explained counsel’s duty at [60]:

To allege that the appellant and her solicitor had connived to manufacture a false history — in effect, to attempt to pervert the course of justice — was a very serious accusation to advance. In ordinary practice, the occasions upon which counsel would be justified in making such an allegation would rarely present themselves. Of course, such an allegation could never be made without solid justification, and could not properly be made without very firm foundation. Counsel enjoy a considerable and unique privilege in the presentation of a client’s case in court. The right of audience carries with it complete immunity from liability for defamation. It need hardly be expressed, but that privilege should not be abused. With the privilege goes a concomitant responsibility. Serious allegations of misconduct — as was the case here — must not be made by counsel unless such allegations are reasonably justified by the material available to him or her.

[Footnotes omitted]

During the trial, once it became apparent that the respondent was mounting an attack on the appellant on the basis that she had recently invented the connection between her alleged injuries and the Black Saturday events, the solicitor for the appellant had written to his opponent and provided copies of file notes made by him and by previous solicitors that demonstrated that she had not recently invented the connection, but had more or less consistently instructed to that effect. These materials were provided to counsel for the respondent. The court said, at [63]:

Once it must have become obvious to respondent’s trial counsel that an allegation of concoction and collusion — express or implied — could not properly be maintained, he should have unequivocally and unreservedly retracted it (as embarrassing as that might have been to counsel personally, or to his client’s case). He did not do so.

Criticism was not reserved for the respondent’s counsel. The Court was also critical of the failure by trial counsel for the appellant to take steps to try to ameliorate the effect of the improper cross-examination, including by seeking to call the solicitor to give evidence refuting the suggestion of collusion and recent invention. At [72] the court said:

We acknowledge the force of the notion that, generally speaking, a litigant is bound by the conduct of his or her counsel; and that, again generally speaking, the failure of a litigant’s counsel to adopt a readily available strategy at trial so as to endeavour to remedy or ameliorate wrongful prejudice to his or her client ought tell against the litigant on appeal. Certainly it cannot be gainsaid that the failure of counsel in this case either to call the appellant’s solicitor to rebut the concoction allegation, or to seek discharge of the jury, are formidable obstacles in the way of the appellant. They are not, however, insurmountable.

Notwithstanding this criticism, the Court found that irreparable damage had been caused. At [73] the court said:

In our opinion the appellant is entitled to succeed on the grounds now under discussion despite the actions — perhaps inaction — of her counsel. Although the failure of her trial counsel to endeavour to remedy what had occurred at trial is a significant factor in determining whether the jury’s verdict should be set aside, it is not necessarily fatal. The appellant must persuade the Court that, notwithstanding the failures of her counsel, there has nonetheless been a substantial miscarriage of justice. In the long run, this Court’s jurisdiction to order a new trial must depend on the demands of justice. We are persuaded that there has been a substantial miscarriage of justice, and that the demands of justice warrant an order for a retrial. In our opinion, the allegation of collusion to concoct a false history was so insidious that it was not readily curable — at least putting an application to discharge the jury, the fate of which is speculative, to one side — by any of the forensic strategies that we have earlier discussed. The well had been poisoned. In our view, the conduct of respondent’s trial counsel caused irreparable damage to the appellant’s case. The impressions that would have been generated by the assertions that he had made concerning the conduct of the appellant and her solicitor would have been impossible to erase.

[Emphasis added]

The court also noted that in order to convince a court that the trial had been unfair, it was not necessary for a party to demonstrate that had the improper conduct not occurred, the disadvantaged party was likely to have succeeded.²

In Queensland, the 2011 Barristers Rule provides:

27.  A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.

59.  A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court:

(a)  is reasonably justified by the material then available to the barrister;
(b)  is appropriate for the robust advancement of the client’s case on its merits;
(c)  is not made principally in order to harass or embarrass a person; and
(d) is not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court.

60.  A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person:

(a)  are reasonably justified by the material then available to the barrister;
(b)  are appropriate for the robust advancement of the client’s case on its merits; and
(c)  are not made principally in order to harass or embarrass a person.

63.  A barrister must not allege any matter of fact in:

(a)  any court document settled by the barrister;
(b)  any submission during any hearing;
(c)  the course of an opening address; or
(d)  the course of a closing address or submission on the evidence;

unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.

64.  A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:

(a)  available material by which the allegation could be supported provides a proper basis for it; and
(b)  the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

Contravention of the rules may sound in disciplinary action, as well as affording grounds for disruption of proceedings or appeal, as is demonstrated by the above decision. There may also be implications for costs orders against counsel. The Court of Appeal was to hear the parties on costs. It is not known at present whether any application for costs against legal representatives was or is to be made.

Adrian Duffy

Footnotes

1. Alexander Pope, An Epistle to Dr Arbuthnot (1735)
2. at [74] referring to Rees v Bailey Aluminium Products Pty Ltd (2009) 21 VR 478