Counsel are not the Mere Mouth Pieces for their Client

Although said now close to 25 years ago, the following statement by O’Keefe AJA in the New South Wales Court of Appeal decision in Spanos Enterprises v South Sydney Council [2000] NSWCA 41 continues to resonate in terms of a common misconception by the public as the role of counsel where instructed to cross-examine witnesses called by another party. In that case a party appealed on the ground that their counsel omitted to cross-examine witnesses on uncontested evidence, despite instructions being furnished by that party’s director that counsel do so. O’Keefe AJA wrote:

[13] There is, in the minds of some members of the public, a belief that counsel or other legal representatives are merely mouth pieces for the client. That is not the situation at all. Counsel appearing for a party has duties to that party which are of a very high order. Counsel also has duties that are of wider impact, duties owed to the Court. A duty is owed to the Court to properly conduct proceedings. The Court is not a forum in which persons are to be asked questions merely because a client wants that to happen.

[14] Questions may be asked that are relevant to the issues before the Court or relevant to the credit of a particular witness or witnesses, if credit is relevant at all. It will be relevant only if there is a factual issue between the parties and one has to evaluate the credit of competing witnesses in relation to that issue. That did not occur in the present case.

[15] The witnesses were in two categories. The first category consisted of local residents or lay people; the second category consisted of the council officers. The first category of witnesses gave evidence of late-night-into-early-morning dancing with many, many people present, lots of noise, lots of strobe lights and a great deal of rubbish left behind. That was not contradicted by the affidavits filed on behalf of the respondents below and when Mr Spanos gave his oral evidence he did not contradict what had been said by the local residents, indeed he conceded that, except in one instance, he had been at each of the dance parties that the local witnesses had referred to. There was thus no issue between the parties on the facts, so that there was no matter relevant to any issue about which they could be cross-examined. There being no relevant factual issue between the parties, the credit of the local residents was not in issue either. Thus there were no questions that could properly be directed to them on this matter.

[16] If one looks at the council officers as the second category: they gave evidence that they paid various sums of money on various occasions to attend the dance parties at which they were present. There was no issue about those facts either. That money was collected and that the amount varied according to the time of entry was absolutely clear, and common ground. So there was nothing left to cross-examine the council officers about.

[17] In these circumstances, a mere statement in the affidavit of Mr Anthony William Spanos sworn on 5 October 1999 that he said to counsel then appearing, “I want you to cross-examine the council witnesses”, takes the matter no further. A client who gives such an instruction without there being a proper basis for it does not give an instruction which counsel is bound to, or indeed may properly, act upon. That is because, as I have said earlier, there are duties to the Court beyond those owed to the client.

[18] This ground of appeal, in my opinion, is not merely misconceived, it is quite mischievous.

(emphasis added)