To “Put” (to Sleep) or Not?
Texts and pundits tell us that an effective cross-examination advances the interests of our clients, whether by damaging the opposed case or by, and sometimes simultaneously, establishing that of the client. (See Glissan, “Cross-examination: Practice and Procedure”, 1991 at page 73ff). It seems there is another aspect of cross-examination for the advocate to consider. We are now told a boring cross-examination, aimed primarily at insurance against a Browne v Dunn submission, undermines the public confidence in the courts by assisting judges to fall asleep on the bench. (See “Sleeping Judges” (2007) 81 ALJ 435). Before any reader is carried away imagining potential legal implications of this revelation, Mr Justice Young was not suggesting that barristers owe the public, or for that matter, the judiciary, a “duty of care” to prevent snoozing in court. Thankfully one finds no support for such a suggestion in the Australian Law Journal or in the discussion of counsel’s obligation in the leading cases (consider Giannarelli v Wraith (1987) 165 CLR 543 at 555-6 and D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 at  & ).
But what his Honour’s comment might suggest is that an effective cross-examination must attract the attention of the court, and to hold the attention, not be predictably formulaic and be conducted in a way so the court can see it is directed to the advancement of the litigant’s case. So perhaps it is timely to revisit the rule in Browne v Dunn particularly some of the issues barristers planning a cross-examination might think about in light of some of the authorities both in this State and elsewhere in Australia, some of the recently reported. But my “revisit” will be brief. This is a well ploughed field, there are many cases and often too much is said about it, particularly in professional training courses.
The first matter to bear in mind is that the so-called “rule” is designed to secure a fair trial, which is its “central object” (see R v Birks (1990) 19 NSWLR 677 per Gleeson CJ at 689-690). At a trial, the “rule of professional practice” is to “put” to an opposed witness the matters relied upon by which it is intended to contradict that witness’ evidence (see again R v Birks per Gleeson CJ at 686E-F). But this “rule of practice” is flexible in its application because it concerns adversary proceedings and has as its object achieving fairness in the conduct of those proceedings (consider again R v Birks per Gleeson CJ at 688).
Thought should always be given whether to use the formula “put”. While the use of the word “put” (or for that matter “suggest”) does not carry with it any implication or consequence that evidence consistent with the proposition the barrister confronts a witness with will necessarily be led or tendered in evidence (see R v S  1 QdR 558 at 561). Nevertheless counsel should be cautious when using the word “put” when cross-examining a witness lest the inference is drawn that the client’s express instructions are identical, or in terms consistent with, the question as asked (consider R v Robinson  QdR 387 at 394 and R v S  1 QdR 558 at 561).
The flexibility of the application of the rule is demonstrated by the cases where it has been held that, in the circumstances, there was no obligation to confront a witness with the contradictory evidence (consider Townsville City Council v Chief Executive, Department of Main Roads  1 QdR 77 at - where some of the authorities are considered). In many cases conducted upon affidavits or written witness statements where the witnesses have had an opportunity to read and respond to the contradictory evidence by affidavit or statement in reply, so far as the issue of fairness is concerned, counsel will not be obliged to cross-examine upon every issue. (Consider In the Marriage of LC and TC (1998) 23 Fam LR 75 at  and ; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 at  and ; West v Mead  NSWSC 161 at  as examples.) The same may apply with respect to an expert witness, providing that witnesses had had the opportunity to consider the contradictory evidence or matters and respond to it in a report or in evidence before the court.
But in criminal trials (and those civil trials that might be conducted before a judge with a jury) the risk of unfairness by the failure to cross-examine is considerable and can create acute problems for a court in determining how to remedy the unfairness without putting at risk the integrity of the trial (the circumstances considered by the Court of Criminal Appeal in New South Wales in R v Birks (1990) 19 NSWLR 677 is an example).
In a civil trial a court will frequently be able to avoid the potential for unfairness by requiring the witness or witnesses to be recalled so that the propositions sought to be relied upon can be put to them and they be given an opportunity to respond (see the observations of Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236-237). But a court might not always proceed that way. In other circumstances the court might conclude that the issue was of such marginal relevance or minimal significance that it can be ignored without doing any unfairness to either side. In Smith v Advanced Electrics  1 QdR 65 the Court of Appeal (by majority) held that in the circumstances of the unfairness occasioned by the failure to cross-examine an expert witness (whose opinion had been rejected or discounted by the judge at first instance), the appropriate order was to reverse the decision below. The majority reasoned that, even if the expert had been confronted with the evidence and issues said to contradict that expert’s opinion, the “inevitable” consequence would have been that the expert would have maintained her opinion and the court would have accepted it and acted upon it.
When making a judgment whether to cross-examine a witness in detail by confronting that witness with all the facts or matters that might contradict the witness’ evidence, a range of matters may have to be considered in addition to the considerations suggested above depending upon the particular circumstances of the case. Two issues should always be considered. Firstly the failure to cross-examine may have the consequence that a witness’ evidence upon an important matter is relevantly, not only uncontradicted by other evidence, but also entirely unchallenged, with the consequence that, unless it is inherently improbable, no subsequent complaint can be made that the court acted upon it and gave effect to it (consider in this context Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 per Gibbs J at 370-371). Another, and perhaps more vexing issue is that of credit. This consideration is most acute if it is proposed to make an attack on the character or integrity of the witness (consider in this context Townsville City Council v Chief Executive, Department of Main Roads at -). Sometimes a legitimate forensic judgment might be made that the cross-examination in detail of a witness, who is on notice of the contradictory matters or evidence, is in the client’s interest (and possibly be of assistance to an attentive court!) because the opportunity a good cross-examination gives to discredit a witness when shown to be unreliable for whatever reason.
In adversary proceedings for as long as the considerations mentioned by Gleeson CJ in R v Birks continue to apply, it will be necessary for a barrister to keep in mind the “rule” when planning and conducting a cross-examination. But the manner and extent of the cross-examination will depend upon a range of considerations including, but not limited to, the “rule”. Notwithstanding the guidance given by the many cases and texts, I confidently predict that the opportunity to assist judges to sleep in court will often be afforded to a barrister and sometimes will be enthusiastically embraced!
David North SC