Letter to Editor – Witness Training/Evidence Familiarisation

His Honour Judge Barlow KC has written to the editor apropos of the article in the last issue of Hearsay “Witness Training – Ethical Preparation or Unethical Coaching?”.  His Honour’s comments are a useful addition to the procedural and ethical jurisprudence in this sphere:

Dear Editor,

Your article in Hearsay 92 on witness training was, with respect, comprehensively useful and should be studied carefully by all counsel, especially those relatively new at the bar.

One matter that I would like to draw to readers’ attention is that, in the not uncommon cases in which pre-trial orders are made for witnesses’ affidavits or statements to be exchanged and to comprise the witnesses’ evidence in chief at trial, it seems that frequently witnesses are shown, or told the contents of, the other parties’ witnesses’ statements or affidavits and are asked to comment on them. Or one witness to be called by one party is shown or told the contents of the affidavit of another witness to be called by that party and simply says that he or she agrees with aspects of the other witness’s evidence. On many occasions it is apparent that counsel have been involved in this practice.

In my view, each of these scenarios is potentially as unethical and improper as having witnesses confer together with solicitors or counsel in order to obtain proofs of evidence or statements from them, or telling a witness who is about to give evidence what another witness has said and therefore enabling that witness to prepare answers for cross-examination. Counsel should always consider carefully whether the practice is merited and permissible in each case. (Of course, this does not apply to witnesses who are individual parties or an officer of a corporate party who gives instructions for the litigation, as they are entitled to be present throughout the trial.  On the other hand, it is sometimes forensically advisable to quarantine even those witnesses from some parts of the other party’s evidence.)

I am not generally a fan of evidence in chief at trial being given by statement or affidavit, except in the simplest of cases where the pleadings reveal that there is little controversy about the facts. But, where I do allow the practice, I tend to prefer directing an exchange of statements or affidavits on the same date rather than progressively, in order to reduce the risks of a witness’s evidence in chief being influenced by what another witness has said. Allowing for statements or affidavits in reply, particularly where the facts are in serious dispute, is also fraught with the risk of evidence in reply being over-prepared, rather than the witness having to answer the opponent’s propositions of fact in the course of cross-examination. But occasionally there is merit in allowing such affidavits.

Given the unfortunate practice that has developed, I often direct that no witness for a party (other than the party itself) is to be shown or told the contents of any other witness’s statement or affidavit (or, indeed, summaries of evidence where they are ordered).

The real purpose of this letter is to draw readers’ attention to the fact that, absent a specific order of a court to the contrary in a particular case, it is likely to be contrary to the ethical and professional standards of the Bar to inform a witness of the content of any other witness’s evidence for trial. Counsel should keep this in mind – and remind their instructing solicitors – when conferring with witnesses or preparing or settling their proofs of evidence, statements or affidavits for trial.

In case it was not already clear, my comments relate particularly to evidence for trials, not for interlocutory applications.

Yours faithfully,
Ken Barlow KC, DCJ

Postscript – The opposing pleadings, and particulars thereof, ought afford the principal guidance to the lawyers for parties as to the evidentiary issues to be canvassed with and adduced from witnesses. Further, the parties to some particular causes need comply with germane Court Practice Directions eg, Family Provision applications. In paragraph 11 of the Supreme Court and District Court Practice Directions – both No. 8 of 2001 – provision is made as to when a Family Provision respondent is required to provide responsive “facts and matters” to an applicant’s affidavit.