Advocacy in practice [6th edition.] 9780409342291, 0409342297

Table of contents :
Full Title
Dedication
Copyright
Preface
Table of Cases
Table of Statutes
Table of Contents
1 Basic techniques of advocacy
Strategy
Order of proceedings
Summary of order of proceedings
Written advocacy
Pleadings in civil cases
Affidavits/witness statements
Agreed statement of facts (criminal)
Short minutes of order
Written submissions
Uniform Civil Procedure Rules
Tactics
The number of witnesses
Which witness not to call
Prima facie case
Courtroom technology
AVL applications
Tactical considerations for AVL applications
General techniques
Notes
Manner and manners
Voice
Command of language
Confidence
Persistence
Mileage
2 Preparation and case analysis
Introduction
The mechanics of preparation
The tools of preparation
Organisation of the brief
Marking the brief
Trial notebooks
The law and authorities
The checklist, or ‘ready reckoner’
Identifying the issues
Chronologies
Witness and exhibit summaries
Conferences
Preparing witnesses
Advice on evidence
Case analysis
Performance preparation
3 Opening
Introduction
Clarity and conciseness
The key attributes of an opening statement
Open the case broadly
Brevity
Logicality
Do not open high
Open the evidence, not the argument
Open your case, not that of your opponent
Use of aids in opening
Opening for the defendant
Criminal
Civil
Duties of counsel
Preparation for performance
4 Examination
Introduction
The aim of evidence-in-chief
Witness preparation
Modern witness preparation
Order of witnesses
Legal limits of examination
Leading questions
Rationale
Exceptions to non-leading questions
The rule against impeachment
The rules against self-serving or prior consistent statements
Techniques of examination
Affidavits
Witness statements
Examination from proof
Manner
Remain in control
Style
Lead like a layperson
Form
Content
Communication
How to recognise a leading question
Avoiding leading questions
Witnesses in trouble
Nervous witness
Losing the place
Omission
Miscellaneous witnesses
Calling on a subpoena to produce
Good character witnesses
5 Cross-examination
Introduction
Aims of cross-examination
No cross-examination
Constructive cross-examination
Destructive cross-examination
Case analysis and theory
Affirmative cross-examination
Repetition
Omitted topic
Misleading context
Alternative explanations
The curate’s egg
Advancing case theory
Legal framework
Relevance
Who may be cross-examined
Minor exceptions
The extent of cross-examination
Collateral issues
Unfair cross-examination
Ethical restrictions
Putting divergences in evidence to the witness
General techniques
Style
Content
Control
Fields of destruction
Challenge
Hostility
Prior inconsistent conduct
Bad character, prior convictions and reputation
Attacking the qualifications of an expert
Particular techniques
Introduction
Confrontation or attack
Probing
Insinuation
Undermining
Leading on
Creating an absurdity
Closing the gates
The deadly sins of cross-examination
Rushing in
Beating around the bush
Big noting
Looking for trouble
Going for the jugular
Going fishing
Dropping your guard
Going over the top
Worrying about the next question
Going back for your hat
Slanging the witness
Jumping the gun
Being willing to wound but afraid to strike
Cross-examination on documents
6 Re-examination, rebuttal and reply
Re-examination defined
Right to re-examine and its limits
Object of re-examination
Scope of re-examination
How to re-examine
Rebuttal and reply
Civil cases
Criminal cases
Recent invention
Preparation for re-examination
Tactics of re-examination
Don’t mend holes, mend fences
7 Objections
Whether to object
When to object
What is objectionable?
Objections to the question
Objections as to the evidence (or answer)
Objectionable questions
Leading questions
General or unspecific questions
Unintelligible questions
Duplicitous questions
Argumentative questions
Questions which call for a conclusion by a witness
Oppressive questions
Irrelevant questions
Questions which assume facts not in evidence
Erroneous questions
Speculative questions
Objections to the evidence
Privilege
Hearsay
Unresponsive or volunteered answers
Prejudice
Opinion evidence
The best evidence rule
Parol evidence rule
Improper re-examination
Proving exhibits
Objection to matter contained in speeches
Improper or unethical objections
8 Closing address
Introduction
The object of the closing address
The structure and parameters of address
The introduction
The statement
The proof
The peroration or summary
The importance of the address
An example analysed
Statement
Proof
Style
General techniques
Some rules for final address
Address the issues
Address the facts, good and bad
Address the evidence
Avoid the law wherever possible
Keep it short
Do not read
The logical address
What you do not say
9 Appeals
Introduction
Preparation
Notice of appeal
Written submissions
What to argue
Presentation
The beginning
Questions from the bench
Flexibility and tact
Flexibility
Tact
Watch the bench
Expedition
Pre-emptive argument
10 Etiquette and ethics
Rules of conduct
Formal rules of etiquette
Behaviour
Dress and personal appearance
At the bar table
Stay behind the bar table or party table
Do not approach the witness box
Dress the court — do not leave the judge in an empty court
Courtesy to other counsel
The judge’s chambers
Behaviour in court
Interruptions
Language
Beginning
‘Learned’ friend
Addressing the bench
Never address a judge in the second person
Catchphrases
Argue to, not with, the judge
Semantic abominations
Citation of case law
Citing other judges
Ethical principles
Dealing with self-represented litigants
11 Elements
12 Sample cross examinations
Introduction
Oscar Wilde cross-examined by Carson
W A Cadbury cross-examined by Carson
W S Gilbert cross-examined by Carson
Vaquier cross-examined by Hastings
Richard Seary cross-examined by Adams
Sir Robert Askin cross-examined by Evatt
13 Extra-curial advocacy
Introduction
Tribunals generally
Mediations
Arbitrations
Inquests
Site hearings
Bibliography
Index

Citation preview

Advocacy in Practice 6th Edition

J L Glissan QC Adjunct Professor of Law (Advocacy), University of Canberra

LexisNexis Butterworths Australia 2015

The several editions of this book have seen many changes in law and life. The constancy and support to sustain those changes have come from my wife, Kimberley — to whom I dedicate this sixth edition: if my slight muse do please these curious days, the pain be mine, but thine shall be the praise.

AUSTRALIA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: ISBN: Notes: Subjects: Dewey Number:

Glissan, James Lindsay. Advocacy in practice. 6th edition. 9780409342284 (hbk). 9780409342291 (ebk). Includes bibliographical references and index. Cross–examination — Australia Trial practice — Australia. 347.94075.

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 1985; Second edition, 1991; Third edition, 1998; Fourth edition 2005; Fifth edition 2011. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Palatino and Frutiger. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

JUSTICE Blind blindfolded and forbidding Stands erect and difficult to move LAW Wide awake and willing Soft and flexible will ever be my love (James Glissan, Lex Caelestis)

PREFACE This book had its inception, not in an epiphany, but in a request. The then publisher, Legal Books asked me to write ‘a book on crossexamination’. I asserted that there was not a book in crossexamination, but there was a need for an Australian book on advocacy. At that time, now 30 years ago, no Australian text existed and outside the United States there was little attention to the techniques of advocacy, which was then largely considered a natural gift rather than a skill to be acquired, other than by bitter experience. I remain in part of that view. I do not believe advocacy beyond certain basic skills can be taught, however I do believe that it can be learned, and that while great advocates, like great athletes, derive from innate ability, even they benefit from coaching, from analysis of techniques and from adherence to certain fundamental underlying principles, which can at least be identified. The book therefore remains, in part a primer, aimed at the beginning barrister, in part a text intended to identify and provide an analysis of the principles and in part at least, a reflection of my now 40 years of practice at the Bar, in NSW and throughout Australasia. I benefited greatly from a short time with NITA at the University of Notre Dame in South Bend Indiana, and in its court system, where I was more impressed by the commonality of the practice of law with Australia than overawed by the differences. There the standard of jury advocacy was high — with a more immediate connection with the jury than I have commonly seen here. That time led to some significant changes in the more recent editions of this book, especially from the fourth edition onwards. I reprint here my earlier comic piece, the Five Ages of the Bar. I am told this has been asked for since its appearance in the 1985 edition. I hope it remains an amusing, if slightly cynical view of practice at what is possibly the last truly free and independent profession.

That independence in this, the 800th year after Magna Carta, remains the strength of the Bar and makes it the fundamental bulwark against oppression and the basic defender of the rule of law. We must always be astute to defend that independence against erosion or incursion.

The Five Ages of the Bar Shakespeare gave us seven ages of man, and Humphrey Tilling six ages of cricket. Now the law is, of necessity, shorter than life and neither so important nor so noble as a game of cricket but I reasoned there were at least five ages of the Bar. They are not necessarily chronological, and they are not gender specific. The first is the age of wantage — this is the age at which the aspiring barrister wants everything, and wants for everything. Your wig is white and your gown is black. The age when you can only open your diary in subdued light or wearing sunglasses because of the risk of snowblindness. The age when you rush to greet a solicitor who, six months before your call, you cheerfully crossed the street to avoid. The age when you keep a full set of double entry account books which remain totally virgin on the credit side. The age when you look forward to the end of the financial year in the confident expectation that the Commissioner will pay you money. The age when you go to the common room, listen to the war stories of senior members and actually find them interesting. The age when you take the day off to celebrate your spouse’s birthday and nobody notices. The age when a brief to appear in the motion list of the District Court on an extension of time application is more terrifying in prospect than a brief to appear in the Full Court of the High Court because it is so much more likely to happen. The age when you take a solicitor you don’t like to a lunch you can’t afford in the hope of getting a brief to appear before a judge you don’t know. The age when all judges seem intelligent or at least learned and all opponents seem intimidating. The next age is the age of usage. The age of the coming advocate. You have begun to acquire a practice. Your wig is less white, your gown is crumpled. You receive briefs from solicitors — who practice out of the boots of cars — old cars. This is the age when it is safe to open your diary, even in full daylight. The age when you become busy enough that you cast aside the double entry account books and move to a more traditional method of barristerial accounting — you buy a shoe box. The age when your anticipation of the end of the financial year is coloured more by apprehension than by expectation. The age when you only go to the common room for a quick coffee and then only when you are sure it is otherwise empty. The age when you forget your partner’s birthday, but you at least remember his or her name. The age when brief is not the word that you would use to refer to the time it takes to do the advice for which you are asked. The age when you take a solicitor you don’t need to a lunch you don’t enjoy by way of thanks for a brief you didn’t do. The age when judges have become fallible, and sententious, but remain unreceptive to your quick intellect. The third age is the age of bondage. This is the age in which you are really established. Your wig and gown are now a daily part of your life, and all three are

grey. The age when you receive a constant flow of work from solicitors who have offices, and staff. Some of them even have practicing certificates. This is the age when your accounting system has become so complicated you need a second shoebox. The age when you know that at the end of the financial year you have to file a partnership return, acknowledging your silent partner, the Deputy Commissioner of Taxation. The age when you no longer remember where the common room is located. In this age your practice develops in a new direction. You begin to go to the Family Court, but alas, only as a consumer. The age when brief is no longer an appropriate word for material which arrives, not in multiple volumes, but in multiple boxes. The age when a solicitor you don’t know takes you to a lunch you don’t need in the hope of getting you to accept a brief you don’t want. The age when you recognise with contempt the truth of the definition that a judge is merely a lawyer who once knew a politician. The fourth and fifth ages are somewhat alike. The fourth age is that of adage — the age of seniority. This is the age at which you have made enough mistakes to justify putting them on paper. The age when you get a new gown but not a new wig. The age at which your diary has become an annoying irrelevance forced on you by your clerk. The age when solicitors come to you either by force of habit or through the force majeure of juniors. The age when your accounting system has entirely been taken over either by your accountant or by your trustee. The age when your new silent partners, the banks, have replaced the Deputy Commissioner of Taxation. The age when you have reached your present position in poverty, because every 10 years you give a house to someone you hate. The age when the Family Court has ceased to be a threat and has become an old friend. The age at which you have rediscovered the common room and tell younger members, at every opportunity, how clever you were, hoping they will not notice the tense. The age when a solicitor you don’t remember takes you to a lunch you can’t eat because of a brief you can’t find. The age when you are kind and considerate towards judges, because most of them used to be your juniors. And now the fifth and final age — the age of anecdotage. This is the age when your wig, your gown and your diary have become utterly irrelevant. The age when, an Honorary Member of Chambers, you walk in perpetual circles looking for your name on the door of the room you have sold. The age when, again, you have the expectation of receiving money from the Commissioner of Taxation. The age when your stories in the common room suffer from two defects: first, they are wrong, tedious and no longer funny and secondly, no one mentioned in them is still alive. The age when a brief to appear in the motion list of the District Court is an unlooked for pleasure. The age when lunch is a thing of the past and judges all treat you with exaggerated and pitying courtesy.

TABLE OF CASES References are to paragraphs

A Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 …. 5.19 Alister v R (1984) 154 CLR 404; (1983) 50 ALR 41 …. 5.20 Allied Pastoral Holdings Pty Ltd v Commissioner for Taxation (Cth) [1983] 1 NSWLR 1 …. 5.21 Annetts v McCann (1990) 170 CLR 596 …. 13.5 Attorney-General v Hitchcock (1847) 1 Exch 91; 154 ER 38 …. 5.18, 5.39

B Bank of Australia v Palmer [1897] AC 540 …. 7.23 Beavis v Dawson [1957] 1 QB 195 …. 10.8 Bottomley, Ex parte [1909] 2 KB 14 …. 4.9 Bracegirdle v Bailey (1859) 175 ER 842 …. 5.17 Browne v Dunn (1894) 6 R (HL) 67 …. 5.21, 5.65, 6.7 Buckley v Cook (1854) 1 K & J 29; 69 ER 356 …. 4.10 Bugg v Day (1949) 79 CLR 442 …. 5.42

C Cadbury v Standard Newspapers …. 12.3 Challinor v Douglas [1983] 2 NSWLR 405 …. 4.20

Clark v Ryan (1960) 103 CLR 486 …. 7.11, 7.21 Clyne v NSW Bar Association (1960) 104 CLR 186 …. 3.14 Cobbett v Hudson (1850) 15 QB 988; 117 ER 731 …. 4.5 Commonwealth Bank of Australia v Walker (2012) 289 ALR 674 …. 1.8 Cooper v R (1961) 105 CLR 177 …. 5.19, 5.27 Croll v McRae (1930) 30 SR (NSW) 137 …. 10.1

D Dairy Farmers Co-Operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 …. 4.53 Das Reef v Hawchar [2011] HCA 21 …. 1.3 Davies and Cody v R (1937) 57 CLR 170 …. 4.9 Dilosa v Latec Finance Pty Ltd (No 2) (1966) 84 WN (Pt 1) NSW 557 …. 1.13, 4.5 Driscoll v R (1977) 137 CLR 517 …. 4.55 Duff v R (1979) 28 ALR 663 …. 8.10 Dyers v R (2002) 210 CLR 285 …. 1.13

E Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 …. 13.5 Edmonds v Walter (1819) 3 Stark 7 …. 4.88 Ewer v Ambrose (1825) 107 ER 910 …. 4.9

F F, Re; Litigants in Person Guidelines (2000) 27 FamLR 517 …. 10.22 Field v Commissioner for Railways (NSW) (1955) 99 CLR 285 …. 13.3 Folkes v Chadd (1782) 3 Doug 157 …. 1.3

Foote v Dixon (2013) 8 ACTLR 65 …. 1.8 Fox v General Medical Council [1960] 3 All ER 225 …. 6.8 Fox v Percy …. 9.7

H Hobbs v Tinling & Co Ltd [1929] 2 KB 1 …. 5.17, 5.18

J Johnson v Johnson (1997) FLC 92-764 …. 10.22 Jones v Dunkel (1959) 101 CLR 298 …. 1.13, 4.5

K Kabadanis v Panagiotou (1980) 30 ALR 374 …. 4.10 Killick v R (1981) 147 CLR 565 …. 1.14, 6.7 Kozul v R (1981) 147 CLR 221 …. 4.34 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 …. 1.3

L Liversy v NSW Bar Association (1983) 151 CLR 288 …. 10.22

M Makita (Australia) Ltd v Spowles (2001) 52 NSWLR 705 …. 1.3, 5.37 Maxwell v Director of Public Prosecutions (1934) 24 Cr App R 152 …. 8.17 Mechanical & General Inventions Co Ltd v Austin & Austin Motor Co Ltd [1935] AC 346 …. 5.17, 5.19

Mooney v James [1949] VLR 22 …. 4.7 Moor v Moor [1954] 1 WLR 927 …. 4.8 Mraz v R (1955) 93 CLR 493 …. 8.10 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 …. 3.7 Murray v Figge (1974) 4 ALR 612 …. 6.6

N Natta v Canham (1992) 104 ALR 143 …. 5.18 Nominal Defendant v Clements (1960) 104 CLR 476 …. 5.41, 6.3, 6.8

P People v Wells (1893) 34 P 1078 (USA) …. 5.27 Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 …. 5.18, 5.42, 5.45 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 …. 5.21 Prince v Samo (1838) 7 A & E 627; 112 ER 606 …. 6.3

Q Queen’s case, Re (1820) 2 Brod & Bing 284; 129 ER 976 …. 6.2, 6.3

R R v Baffigo [1957] VR 303 …. 4.53 R v Baldwin (1925) 18 Cr App R 175 …. 5.27 R v Briggs (1839) 2 M & Rob 199 …. 6.3 R v Brown and Hedley (1867) 171 ER 591 …. 5.42 R v Buckland (1977) 2 NSWLR 452 …. 1.13

R v Canning …. 5.9 R v Chambers (1848) 3 Cox CC 92 …. 6.3 R v Chin (1985) 157 CLR 671 …. 1.14, 6.7 R v Domican (1992) 173 CLR 555 …. 4.9 R v Doogan; Ex parte Lucas Smith (2005) 158 ACTR 1 …. 13.5 R v Duell [1984] Qd R 451 …. 4.9 R v Frost (1839) 4 St Tr (NS) 86 …. 6.7 R v Gibson [2002] NSWCA 401 …. 1.13 R v Hardy (1794) 24 How St Tr 199 …. 4.8 R v Hodgson (1924) 18 Cr App R 7 …. 4.9 R v Hunter [1956] VLR 31 …. 4.54 R v J W Laurie …. 8.7 R v Killick (1980) 24 SASR 137 …. 6.7 R v Lavery (No 2) (1979) 20 SASR 430 …. 6.3 R v McHardie (Woolworth’s Bombing case) [1983] 2 NSWLR 773 …. 5.27 R v Mills [1962] 3 All ER 298 …. 4.53 R v Nation [1954] SASR 189 …. 6.3 R v Neal [1947] ALR (CN) 616 …. 4.9, 4.53, R v Puddick (1865) 4 F & F 497; 176 ER 662 …. 8.17 R v Pullman [1942] SASR 262 …. 6.3 R v Richardson [1971] 2 QB 484 …. 4.53 R v Rowton (1865) 169 ER 1497 …. 4.56, 5.42 R v Smith [1968] 1 WLR 636 …. 4.5 R v St George (1840) 9 C & P 483; 173 ER 921 …. 6.3 R v Szach (1980) 23 SASR 504 …. 6.3 R v Thynne [1977] VR 98 …. 4.8, 4.9, 4.10, 4.54

R v Watson (1817) 2 Stark 116; 171 ER 591 …. 4.9 R v Wilson (1913) 9 Cr App R 124 …. 4.8 Ready v Brown (1968) 118 CLR 165 …. 5.41, 6.7 Reekie v McKinven [1921] SC 733 …. 10.1

S Scott v Sampson (1882) 8 QBD 491 …. 5.17 Seymour v ABC (1977 unreported) …. 5.21 Shaw v R (1952) 85 CLR 365 …. 1.14, 6.7 Sprowles v Makita (2002) 23(11) Leg Rep SL4 …. 1.3 Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) [2015] NSWLEC 39 …. 1.14

T Tichborne case, Re …. 4.21, 5.46 Tomlinson v Tomlinson [1980] 1 All ER 593 …. 4.5 Toohey v Metropolitan Police Commissioner [1965] AC 595 …. 5.18, 5.42 Topham v McGregor (1844) 1 C & K320; 1874 ER 829 …. 4.53 Transport and General Insurance Co Ltd v Edmondson (1961) 106 CLR 23 …. 6.8

V Vakauta v Kelly (1989) 167 CLR 568 … 10.22 Valeriani v Gibson [1963] NSWR 1430 …. 3.7

W

Waterways Authority v Fitzgibbon [2004] HCA Trans 543 …. 3.15 Wojcic v Incorporated Nominal Defendant [1967] VR 263 …. 6.8 Wood v Mackinson (1840) 2 Mo & R 273; 174 ER 286 …. 5.16 Wood v R [2012] NSWCCA 21 …. 1.3 Wright v Hearson [1916] WN 215 …. 10.1

TABLE OF STATUTES References are to paragraphs

COMMONWEALTH Uniform Evidence Acts 1995 …. 4.6, 5.16, 6.3 Pt 3.10 …. 7.17 s 29 …. 4.11 s 32 …. 4.50 s 37(1) …. 4.6 s 37(2) …. 4.6 s 38 …. 4.51 s 39 …. 6.2 s 43 …. 5.40 ss 59–75 …. 7.18 s 75A …. 9.7 s 102 …. 5.18 s 103 …. 5.18 s 110 …. 4.53 Uniform Civil Procedures Rules 2005 …. 1.4, 1.10 r 4.3 …. 1.10 r 4.4(4) …. 1.8

NEW SOUTH WALES Uniform Evidence Act 1995

s 42(2) …. 5.17

CONTENTS Preface Table of Cases Table of Statutes

1

Basic techniques of advocacy Strategy Order of proceedings Summary of order of proceedings Written advocacy Pleadings in civil cases Affidavits/witness statements Agreed statement of facts (criminal) Short minutes of order Written submissions Uniform Civil Procedure Rules Tactics The number of witnesses Which witness not to call Prima facie case Courtroom technology AVL applications Tactical considerations for AVL applications General techniques Notes

Manner and manners Voice Command of language Confidence Persistence Mileage

2

Preparation and case analysis Introduction The mechanics of preparation The tools of preparation Organisation of the brief Marking the brief Trial notebooks The law and authorities The checklist, or ‘ready reckoner’ Identifying the issues Chronologies Witness and exhibit summaries Conferences Preparing witnesses Advice on evidence Case analysis Performance preparation

3

Opening Introduction Clarity and conciseness

The key attributes of an opening statement Open the case broadly Brevity Logicality Do not open high Open the evidence, not the argument Open your case, not that of your opponent Use of aids in opening Opening for the defendant Criminal Civil Duties of counsel Preparation for performance

4

Examination Introduction The aim of evidence-in-chief Witness preparation Modern witness preparation Order of witnesses Legal limits of examination Leading questions Rationale Exceptions to non-leading questions The rule against impeachment The rules against self-serving or prior consistent statements Techniques of examination

Affidavits Witness statements Examination from proof Manner Remain in control Style Lead like a layperson Form Content Communication How to recognise a leading question Avoiding leading questions Witnesses in trouble Nervous witness Losing the place Omission Miscellaneous witnesses Calling on a subpoena to produce Good character witnesses

5

Cross-examination Introduction Aims of cross-examination No cross-examination Constructive cross-examination Destructive cross-examination Case analysis and theory

Affirmative cross-examination Repetition Omitted topic Misleading context Alternative explanations The curate’s egg Advancing case theory Legal framework Relevance Who may be cross-examined Minor exceptions The extent of cross-examination Collateral issues Unfair cross-examination Ethical restrictions Putting divergences in evidence to the witness General techniques Style Content Control Fields of destruction Challenge Hostility Prior inconsistent conduct Bad character, prior convictions and reputation Attacking the qualifications of an expert Particular techniques

Introduction Confrontation or attack Probing Insinuation Undermining Leading on Creating an absurdity Closing the gates The deadly sins of cross-examination Rushing in Beating around the bush Big noting Looking for trouble Going for the jugular Going fishing Dropping your guard Going over the top Worrying about the next question Going back for your hat Slanging the witness Jumping the gun Being willing to wound but afraid to strike Cross-examination on documents

6

Re-examination, rebuttal and reply Re-examination defined Right to re-examine and its limits

Object of re-examination Scope of re-examination How to re-examine Rebuttal and reply Civil cases Criminal cases Recent invention Preparation for re-examination Tactics of re-examination Don’t mend holes, mend fences

7

Objections Whether to object When to object What is objectionable? Objections to the question Objections as to the evidence (or answer) Objectionable questions Leading questions General or unspecific questions Unintelligible questions Duplicitous questions Argumentative questions Questions which call for a conclusion by a witness Oppressive questions Irrelevant questions Questions which assume facts not in evidence

Erroneous questions Speculative questions Objections to the evidence Privilege Hearsay Unresponsive or volunteered answers Prejudice Opinion evidence The best evidence rule Parol evidence rule Improper re-examination Proving exhibits Objection to matter contained in speeches Improper or unethical objections

8

Closing address Introduction The object of the closing address The structure and parameters of address The introduction The statement The proof The peroration or summary The importance of the address An example analysed Statement Proof

Style General techniques Some rules for final address Address the issues Address the facts, good and bad Address the evidence Avoid the law wherever possible Keep it short Do not read The logical address What you do not say

9

Appeals Introduction Preparation Notice of appeal Written submissions What to argue Presentation The beginning Questions from the bench Flexibility and tact Flexibility Tact Watch the bench Expedition Pre-emptive argument

10 Etiquette and ethics Rules of conduct Formal rules of etiquette Behaviour Dress and personal appearance At the bar table Stay behind the bar table or party table Do not approach the witness box Dress the court — do not leave the judge in an empty court Courtesy to other counsel The judge’s chambers Behaviour in court Interruptions Language Beginning ‘Learned’ friend Addressing the bench Never address a judge in the second person Catchphrases Argue to, not with, the judge Semantic abominations Citation of case law Citing other judges Ethical principles Dealing with self-represented litigants

11 Elements

12 Sample cross examinations Introduction Oscar Wilde cross-examined by Carson W A Cadbury cross-examined by Carson W S Gilbert cross-examined by Carson Vaquier cross-examined by Hastings Richard Seary cross-examined by Adams Sir Robert Askin cross-examined by Evatt

13 Extra-curial advocacy Introduction Tribunals generally Mediations Arbitrations Inquests Site hearings Bibliography Index

[page 1]

1

BASIC TECHNIQUES OF ADVOCACY Strategy Order of proceedings Summary of order of proceedings Written advocacy Pleadings in civil cases Affidavits/witness statements Agreed statement of facts (criminal) Short minutes of order Written submissions Uniform Civil Procedures Rules Tactics The number of witnesses Which witness not to call Prima facie case Courtroom technology AVL applications Tactical considerations for AVL applications General techniques Notes Manner and manners Voice Command of language Confidence

1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23

Persistence Mileage

1.24 1.25

[page 2]

STRATEGY 1.1 There is no more important part of preparation of a case than strategy, and the means of choosing the best strategy is through case analysis. The preparation of vital questions of fact and law by topic and sub-topic as a component of trial preparation ensures that no essential element is overlooked, but identification and analysis of the issues will not serve if they are not fitted to an overall strategic plan. The development of that plan is only possible as knowledge of the brief is acquired. Cases may turn on fact or law or both, and a case bad on the facts may be salvageable by the law. Not every case may be won, or is even capable of settlement, and some may necessitate a strategic plan that is no more than damage control. Even at first instance, some, albeit not many, cases will involve no factual issues at all, and will be argued purely as questions of law. Decisions of this type lead to the creation of the strategic plan. That overall plan will determine what witnesses you call in chief, how and whom you crossexamine, and what is contained in your final submissions. Development of this plan must precede the commencement of the trial. By the time you go into court you will have the entire case analysed by fact and law and prepared according to a plan which you have spent days, perhaps weeks, developing. That plan should be altered only if a situation develops which makes alteration imperative. Certainly, you must be able to vary or modify it and to improvise, but before you do, be certain that you are deciding on that variation for sound reasons and after proper consideration of the consequences; not on impulse or in one of those moments of panic which come to us all. It is at such times that the general techniques of conducting trials are of the greatest assistance, and will best serve to guard you against

impulsive error, or unexpected or unforeseen occurrences in the courtroom. Experienced but cliché-ridden trial lawyers in the United States have described out of court pre-trial work as ‘preparation, preparation, preparation’ — which occupies considerably more time than that actually spent in court, at trial. Witness testimony that is central or persuasive for the fact-finder must be carefully and painstakingly prepared and then presented in a clear, cogent and convincing fashion. That just does not happen by itself: it takes long hours of careful planning and organisation. More and more we are coming to appreciate that cases are most likely to be won in the layers of preparation that take place out of court than they are to be won in court by means traditionally believed to be more influential. As one great barrister of the past is reputed to have said: ‘Of every hundred cases, ninety win themselves; of the remaining ten, seven are lost by advocacy and three are won by it’ (F E Smith, quoted by Sir Theobold Matthew LJ). I would add that nearly all of the 90 cases are won by preparation. Indeed, the harder I work the luckier I get. After the advocate has conducted a thorough case analysis to determine whether the witness’ testimony is needed and on what issues, the advocate must work with the witness — to a greater or lesser degree, depending on the importance of the witness — in order to prepare the case for trial. The analytical framework [page 3] should assist the lawyer in the preparation process and may also encourage the experienced lawyer to develop and refine issues and perhaps add new categories. This continuing process is essential for all the critical witnesses in the case. Most good and effective cross-examinations are not those which destroy the witness. Rarely, if you have the ammunition, you may do

so. In the majority of cases, the best results come from thorough preparation and careful adherence to the aims revealed by the case theory and by patient use of the techniques of probing, insinuation, or leading the witness on. In summary, your approach to the cross-examination of each witness will be governed by both strategic and tactical factors. It requires that you have a clear picture both of the case as a whole and of the place which the witness whose cross-examination you are contemplating occupies in it. By fitting the witness’ evidence-in-chief to your overall strategic plan or case theory as it unfolds, you will immediately understand: (1) how much of the evidence can be admitted (or ignored) as undamaging to your case; (2) where and in what detail it must be challenged; and (3) how far the witness can be used to assist you to build up your own case, by drawing out fresh evidence from him or her. This last matter (3) is the most important, as it will have a substantial effect on the tactics (manner and style) of your crossexamination. If you want to gain something from the witness, it is unhelpful to begin the cross-examination by attacking him or her. Remember the aims of cross-examination — get what you can and destroy the rest — and carry them out in that order. If you want nothing affirmative from the witness, the next question to be asked is: do you want to cross-examine at all? What damage will be done to your case if you do cross-examine?

ORDER OF PROCEEDINGS 1.2 Throughout the editions of this book, I have counselled that you should conduct every case from beginning to end as a logically constructed entity. Every case should have a logically planned beginning, middle and end. Every case should be conducted from the outset upon an overall strategic plan. As the address is your case in

miniature, your final summary is of what you have attempted to do in conducting it. It too should be logical, prepared, and reflect and perfect that overall strategic plan, demonstrating that you have been able to bring it into full effect. It therefore follows that the address is not something which has just grown in the last 10 minutes before you get to your feet, but is something that, like the verdict, you have been working towards from the outset. Your address should have commenced in preparation as you analysed the issues in your advice on evidence. It is that early stage of proceedings which should have crystallised in your mind the issues on which you decided to fight and led you to isolate those issues. Do not expect that you will be given an adjournment [page 4] or time to prepare argument by way of address in other than the longest and most complicated of cases. Therefore, not only must preparation for the address begin at the beginning, but your trial technique must be designed to facilitate the address. Note-taking and the techniques used for picking up points for cross-examination can also be used for the purpose of modifying the address. This, of course, is difficult to do during your own cross-examination, but a system of making quick notes as points arise without disrupting the flow of cross-examination is invaluable in this regard, particularly as you can never be confident of having a transcript before you are called upon to address. Preparation, like everything else in a trial, is simplified by having a logical framework into which your case fits (the strategic plan) before you commence. Into that framework you will now have to fit not only facts and argument but the comments that you wish to make on the witnesses who testify to the issues: where they should be accepted, where rejected, what use can be made of their demeanour, and how the evidence of different witnesses fits together. Bear in mind that the

comparison process is one which is of great assistance, so long as you limit your address to real discrepancies rather than apparent or minor ones which do not take the matter any further.

Summary of order of proceedings 1.3 A summary of the order of proceedings is outlined in Table 1.1 below. Table 1.1: Summary of order of proceedings Topic

Issues

Housekeeping matters typically dealt with prior to opening address/submissions

Courtbook issues (civil) Issues relating to police brief (criminal) Order of witnesses and witness issues AVL or other courtroom technology arrangements Arrangements for interpreters Return of subpoenas or notices to produce at hearing Urgent applications seeking leave in relation to pleadings Applications claiming privilege or opposing production of documents at hearing Applications seeking leave to rely on further evidence Pleas or other issues in respect of the charges (criminal)

Opening address or submissions

Summary of the case — identify the parties Identify issues in contention — refer to pleadings if necessary

[page 5]

Topic

Issues Identify issues of fact or law which the court must decide Identify witnesses and a short précis of their evidence Outline the claimed result

Opponent’s opening address Evidence-in-chief

Witness oath or affirmation Examination-in-chief Tender of documents — affidavits and any other documents Documents marked for identification — may be tendered at a later stage, through another witness

Cross examination Re-examination

Further clarification of issues arising in cross-examination Damage control

Closing argument or final submissions

As lawyers we consider advocacy as a curial or at least normatively bilateral construct. It is accordingly comprised of analysis, intellectual rigour and tactics. The Americans have two great sayings — ‘The older I get the better I was’; and perhaps more relevantly to this discussion, ‘The harder I work the luckier I get’. All of analysis, rigour and tactics are informed by — and predicated upon — labour. What evidence and which witness, is answered by what cause of action, which elements and what case theory. But, even before you get to that, you need to bring to the table the appropriate jurisprudence — for present purposes it begins with an understanding of what is evidence and what is argument.

In any curial proceeding in a common law country, matters in issue are resolved by the assessment of material received into evidence. This is ordinarily done in two ways — by the reception of the testimony of witnesses as oral statements of observed fact or in certain circumstances of opinion; or by the admission of documents (however defined), artefacts or observations after the event; — together — evidence. In one sense evidence may be defined as any material which tends to persuade the court of the truth or probability of the facts necessary to sustain the case asserted by the party presenting it. It must be both relevant and admissible judged by reference to the legal rules of evidence obtaining in the jurisdiction to which it is proffered. The management of evidence is the essence of the skill of advocacy. However, the above outline is not a sufficient analysis for a definition of evidence that will set its place in the scheme of litigation or distinguish evidence from argument. As will be immediately apparent, the latter failure is important in the advanced consideration of pleading a cause of action, of taking statements and of ‘preparing’ witnesses. [page 6] Wigmore, in his seminal work on evidence, identifies five steps which together make up the general process of vindication or enforcing both public and private jural rights and duties: (1) process; (2) pleading; (3) trial; (4) verdict; and (5) execution. It will be seen that evidence belongs somewhere in the third stage of

this analysis. It will also be recognised that it is necessary to distinguish law and fact so that to answer any claim it is necessary to demonstrate that certain facts or groups of facts exist and that to the contingency of their existence attaches the legal consequence asserted by the claimant. Accordingly it must be shown that both the facts and the legal consequences exist. It is the area of establishing the existence of the required state of facts which is the area of evidence. However, within this two separate processes remain — the presentation of the elemental facts and piecing of them together to reach the conclusion. The former is evidence, the latter argument. Evidence is thus strictly definable as any ‘knowable fact or group of facts, not a legal or logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or logic, on which the determination of the tribunal is sought’: Wigmore, The Philosophy of Law: An Encyclopedia, p 272. More simply, evidence is any matter of fact furnished to a legal tribunal otherwise than by reasoning or by reference to what is noticed without proof as the basis for inference in ascertaining some other matter of fact. It follows that evidence is always a relative term, signifying the relationship between two facts, the factum probandum and the factum probans — the proposition to be established and the material evidencing the proposition. No correct or certain understanding of the nature of any question of evidence can be postulated unless this relative aspect is addressed — what is the proposition to be proven; what is the evidentiary fact offered to prove? Next, where does each evidentiary fact lie in this loose and flexible dichotomy? Is it a fact or a proposition to be proved? Does it require the marshalling of new evidentiary facts? As Wigmore points out, each specific matter may be evidentiary fact

or proposition according to the point of view. Permitting a fact to become a proposition is not, however, an evidentiary process, thus the distinction between materiality and admissibility — the former defining the status of the proposition in the case as a whole, the latter the relation of an evidentiary fact to a proposition. A ruling of substantive law or pleading is thus distinct from a ruling on evidence. [page 7] The question thus becomes, of what propositions may evidence be advanced? The answer is: of propositions which are material, are raised by the pleadings, are admissible and which are effective. This is the advocate’s test for evidence. Cases were once run on oral evidence — word against word, witnesses tested by cross-examination, direct or on collateral matters, on documents and the like. However, increasingly the new evidence is by artefact or by ‘real’ evidence; the testing more on chain of custody or evaluation. Both civilly and criminally the witness is less often an eyewitness, more often an expert. Proof is frequently about chain of custody, provenance, causation or technical circumstance. The evidence itself is often electronic, as email, iPhoto, or web-based in some way. Its provenance must be established to be legitimate and uncorrupted and as well actually probative. The predominant use of SMS texting and of WeChat or similar photograph transmitting Apps provides an objective alternative to subjective witness statements. Consequently, there has been a renewed focus on hearsay, opinion, expertise and the reliability of artefactual evidence in evidence law. This has been a change of kind, not merely of degree — one need only refer to such cases as Das Reef, Wood, Makita, Kyluk, or the recent Western Australian case of Coates. The question of admissibility in this sense is now not amenable in any sensible way to voire dire. This change requires a new advocacy — and a new view of evidence and argument.

Just because there is ‘real’ evidence in the sense I am using the term, does not mean it is admissible or persuasive for that reason, although it might be contemporary and relevant. The expert witness rules can form an important impediment to the reception of opinion evidence. As well, evidence is not always received for all purposes. Where it is admitted on a limited basis the advocate must ensure the court keeps the limitation in mind and is not prejudiced about issues to which the evidence does not go, is not admissible or has not been admitted. Further, the limitation on numbers of witnesses is elevated — evidence is assessed by quality not quantity — as the days of compurgators are long gone. Finally, it is not uncommon that the relevance of the evidence you wish to call is not immediately apparent at the time it is adduced. It may require some further evidence not yet available or depend on a future witness or raise an issue not yet clear in order to be admissible. This is not a bar to its admission de bene esse — on the condition that the admissibility of the evidence is later demonstrated — but make sure you satisfy the condition of admission and keep it clearly in view. As long ago as 1782, Lord Mansfield set the bar for the admission of opinion evidence when he said (in Folkes v Chadd (1782) 3 Dougl 157) ‘the opinion of men of science upon proven facts might be given by scientific men within their own science’ — thus establishing the admissibility and limits of expert evidence. Although more complex, the rules now are not so very different. Proof of the underlying facts is still required as is the proof of expertise and special knowledge encompassed by [page 8] the short phrase set out above. In refusing special leave in Sprowles v Makita (2002) 23(11) Leg Rep SL4, Gleeson CJ said: ‘I am not sure, Mr Gross, I have to say, whether this case shows anything more than the

nasty things that can happen to an expert’s report if somebody decides to take to it’. True as this was, the manner in which advocates are now ‘taking to’ expert evidence has changed, as a review of Das Reef or of Kyluk or Wood makes clear. No longer is the attack primarily focused on expertise or even on the expert but commonly on the compliance with the code and especially reliance on external sources not themselves confirmed. This is really no more than Lord Mansfield’s requirement of ‘proven facts’, but it is vital for the preparation of your expert if the report is to go into evidence or be relied upon. In this way the preparation of expert evidence needs careful attention to more than the obvious elements of admissibility.

WRITTEN ADVOCACY 1.4 In the areas of pleadings, affidavits and statements, short minutes of order, written submissions and some new requirements in the Uniform Civil Procedure Rules (UCPR), the place of written advocacy requires consideration. For the advocate, the written word can provide a complementary platform to set the scene, steer the facts and persuade the reader in a way that is both powerful and controlled. In his paper ‘The Purpose of Pleadings’ (2004) 25 Aust Bar Rev 116, Campbell JA observed of pleadings: Because a pleading is used in … various ways by a judge, repeatedly and at all stages of the litigation process, it operates, in some respects, as a piece of advocacy. A statement of claim is a document which should be able to provide an answer to the judge’s ultimate question to the advocate for a party, ‘why should your client win?’. Likewise, a statement of defence should provide an answer to the judge’s ultimate question to the advocate for a defendant ‘why should your client win?’, or ‘why should the other side’s win be limited?’. In preparing the pleading, the same qualities are needed as are needed for good advocacy — a clear understanding of legal principle is needed so that all the material facts necessary to justify a remedy are pleaded, and only those facts. Clarity of expression in English is needed to make it clearly understood. Making the pleading as brief as the nature of the case permits also assists in it being

understood and being persuasive. For these reasons, among others, it is not an accident that pleading has traditionally been performed by advocates. [Footnotes omitted].

Some general points for consideration are listed below.

Pleadings in civil cases 1.5 The following points should be considered when dealing with pleadings in civil cases: First check the rules applicable to the relevant court and the UCPR requirements. [page 9] Pleadings must contain all material facts in sufficient detail to put the other party on notice of the case it must meet. Always remember that particulars are not pleadings and pleadings are not particulars. Defences are not merely reactive pleadings — some cases will warrant the pleading of a positive defence which sets the table with a new version of events free from the confines of the plaintiff’s story as set out in the statement of claim or application. In relation to pleadings issues generally, the article by the Hon J C Campbell quoted above, is highly recommended reading.

Affidavits/witness statements 1.6 Below are some points to consider when dealing with affidavits/witness statements: Before the taking of a proof of evidence from a witness, the very first place to start is the pleadings themselves — it is essential to identify all issues in dispute or contention before evidence is considered. Written evidence should address all issues that may arise in cross-

examination of the witness and any aspects of their version of events which may come under attack. A well-drafted affidavit or statement is an important tool which, if drafted cleverly, will anticipate and deal with potential pitfalls by neutralising any areas where crossexamination may cause the witness to come unstuck. Each paragraph must be relevant and admissible. The evidence must not only provide a logical account — it must be persuasive. Avoid the use of pointless jargon such as ‘I verily believe’, etc. Always be conscious of hearsay objections. If dealing with more than one witness in respect of the same event/s, each statement must be in the witness’ own words — be conscious of the appearance of collusion.

Agreed statement of facts (criminal) 1.7 When dealing with agreed statements of facts, consider the points below. It is essential that they be agreed and that the limit of agreement is precise. Areas of issue or disagreement should be carefully articulated. The client must agree to the exact factual matter stated. Ensure that the agreed facts support and are limited to the matter pleaded to in fact and law. Do not permit the statement of facts to incorporate material irrelevant to the charge or supportive of another charge. [page 10]

Short minutes of order 1.8

Drafting short minutes of order should involve consideration of

the following. There is no art or science to drafting short minutes — except, perhaps, that they be short and to the point. They should be drafted in as efficient a manner as possible and must present an attractive package to which your opponent and the court will want to consent. Note that UCPR r 4.4(4) now allows barristers to sign orders on behalf of a party. Think carefully before granting your consent. Although there may be scope to appeal the making of consent orders, the court must be satisfied there was an arguable error in the court below — such appeals are notoriously difficult to win. See: Commonwealth Bank of Australia v Walker (2012) 289 ALR 674; Andrew Foote v Dixon (2013) 8 ACTLR 65.

Written submissions 1.9 When drafting written submission, it is important to consider the points below. As a starting point, imagine you are drafting your submissions for the purpose of providing them to the judge as a ‘template’ from which the judgment will ultimately be written. In many cases it is useful (and often appreciated) to email the judge’s associate a copy of your submissions in Word format — this will make it easier for the judge to cut and paste! Use sub-headings and numbered paragraphs. The introduction should set out the cause of action, the relief sought and why you ought obtain such relief. Next set out the legal basis for seeking relief — refer to the rules or legislation which enlivens the court’s power to give you that which you seek. Outline the issues in a logical order — this may not always require a

sequential setting out of events, but must always follow a logical structure appropriate to the case at hand. Set out the facts in short form in a manner that is both compelling and persuasive — only refer to those facts that are relevant to the court’s determination (avoid extraneous details). Avoid being too verbose — be precise and be economical in language and length. Be precise and efficient with case authorities — if quotations are to be included, only use the portion that is directly relevant to the point you wish to make. Conclude with a short summary pointing to the reasons why the relief ought be granted and (if necessary) the orders the court ought make. [page 11]

Uniform Civil Procedure Rules 1.10 It is important to familiarise yourself with the UCPR and consider the points below. Part 4 of the UCPR is often overlooked by solicitors and advocates alike, but is quoted by exasperated judges from time to time — these rules apply generally in respect of documents handed up or intended to be filed by the advocate in court. An example is r 4.3 ‘Paper and writing’ — this rule sets out rules for the size and print quality of written documents, the precise placement of staples or other fastening devices, margin sizes and even font choices. Although easily dismissed as mundane, an increasing number of courts now appear to be enforcing these administrative requirements, with some even refusing the reception of documents that do not adhere to the rules. To avoid time wasted, advocates

ought be aware of the existence of these rules and do their best to adhere to them.

TACTICS 1.11 Wikipedia defines a tactic (from the Ancient Greek τακτική taktike meaning ‘art of arrangement’) as a conceptual action implemented as one or more specific tasks. Applied to the legal process, ‘tactics’ may be described as the actual means employed to obtain the result, in contrast to ‘strategy’ which is the overall campaign plan, and may involve complex operational patterns, activity and decision making that lead to tactical execution. I have employed the terms in this way, with the ‘case theory’ providing the strategic plan, and the ‘preparation’ providing the tactics for its achievement. The case theory will have established the narrative, or story, it is intended to present and ultimately prove. The brief, or file, and subsequent conferences will have identified what witnesses are available. The tactical question, ‘Who to call?’, then arises. Decisions must be made whether all or only some of the available witnesses are to be called, and whether there are sound reasons to exclude any particular witness. Additional tactical questions include the order of witnesses, the manner and selection of documentary and/or real evidence, whether or not a view is desirable, likely to work to your advantage or that of your opponent, whether to cross-examine, and the like. These are the subject of particular attention in later chapters of the book, placed where they properly belong, in the context of execution of the strategic whole.

The number of witnesses 1.12 How many witnesses, then, ought one to call? It has been said that justice is not determined by counting heads, and indeed the old Latin maxim ‘proof is weight not number’ remains good law, as well

as common sense. It would be unduly cynical to say that not every witness is a further nail in the coffin of the opposing party; still, it must be realised that one witness may contradict himself [page 12] or herself, two can contradict each other and here (as well as other places) three is a crowd. It is important to bear in mind that while you must call witnesses necessary to provide the evidence supporting the case theory and to discharge the evidentiary onus or occasionally to rebut an adverse inference that may arise from the mere failure to call an apparently material witness, it is generally both unnecessary and counterproductive to call more than one witness (and no more than one corroborative witness) to prove any point, however important. To do so runs the risk of confusion, or of causing the tribunal to think there may be some reason to doubt the primary witness when there is not. It is a generally accurate adage to say that in litigation less is more. This is true not merely of witnesses, but of cross-examination, of argument of law and of length of address. In summary, as long as the primary witness to the point is a good witness and not likely to be unduly damaged in cross-examination, the fewer the better. One good witness is better than three poor witnesses.

Which witness not to call 1.13 The danger of multiple witnesses disagreeing or at least proving inconsistent, and the attendant difficulties that brings to examination-in-chief, provides the one great reason for tactical manoeuvring to force the opposition to call somebody as a witness and thus gain the benefit of cross-examining rather than examiningin-chief. While it is true that failure to call a witness who is available and relevant leads naturally to an inference that the party fears that

such evidence will expose unfavourable facts, the inference can only arise where the evidence is available and will elucidate the facts. Consciously declining to call a witness whose evidence appears to be relevant, on the basis of a tactical decision that the other side will be forced to call him or her, involves taking the risk that such an inference may properly be drawn. Before such an inference is available, one question that must be answered is, ‘Which party would normally have been expected to call the witness?’. This is often a question to which the answer is equivocal. In such a case, failure to call involves no real risk. However, where the question can only be answered one way, a failure to call is a matter of grave significance. Street J (as he then was) said in Dilosa v Latec Finance Pty Ltd (No 2) (1966) 84 WN (Pt 1) NSW 557 at 582: The inference which a court can properly draw in the absence of a witness where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness. The significance of this inference differs according to the closeness of the relationship of the absent witness with the party against whom the inference is sought to be propounded … At its highest however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness.

See also Jones v Dunkel (1959) 101 CLR 298. The same principles apply subject to the presumption of innocence and the criminal burden of proof in criminal trials: R v Buckland (1977) 2 NSWLR 452; see also Dyers v The Queen [2002] HCA 45 at [9]–[10]. [page 13] There is, in addition, an overriding consideration which governs the calling of witnesses: counsel is only entitled to call a witness if putting that witness forward as a witness of truth. If that decision cannot be made, the witness must not be called: R v Gibson [2002] NSWCCA 401 at [46]–[59].

Prima facie case

1.14 Again, it is necessary to consider, albeit briefly, the tactical consideration of how much of your case is dependent on your evidence-in-chief. In civil trials the position is summarised by Wrottesley, Principles of Advocacy, p 13: It becomes necessary sometimes for the plaintiff only to put in enough of his evidence to make out a prima facie case, and it is occasionally best to keep back the strongest testimony until the testimony of his opponent has been heard, and then offered by way of rebuttal to the case which is being made against him. After the jurors have [heard] the testimony for the defence they are better prepared than they were before to appreciate the remaining testimony of the plaintiff.

Two caveats should be placed on Wrottesley’s advice, given as it was over 130 years ago. The first is that today, when so few actions at law are heard by juries, the tactical advantage of keeping that material back from the tribunal of fact in order to adduce it in rebuttal or reexamination can be very limited and even more risky. Second, one must be extremely careful not to infringe the rule against splitting the case. The balance of Wrottesley’s advice in this matter remains sound, however: The advocate will find that it is a plan also to save one of his best witnesses for the close of his case. It is as important to end well as to begin well and as a general rule the same order should be observed in the introduction of testimony as in the arrangements or arguments in the speech. Some of the best witnesses should be examined first and the others last, while the weak or foolish witnesses should be placed between. Sometimes, however, the adversary’s case should be anticipated and the jury prepared for it. This is the case where there is anything suspicious in appearance which can be fully explained, and the opportunity which the plaintiff may have to tell his story first … is not to be lost.

Even in the modern world of litigation there can be tremendous tactical advantages in holding back part of the evidence of a witness for re-examination, if you can be absolutely certain that your opponent will be unable to resist the temptation to cross-examine on the topic withheld. This is, of course, the risk referred to above. That risk is even greater if a witness is withheld for the case in reply,

although in a civil case the pleadings will generally define the risk, as long as you call prima facie evidence in your case in chief. If you appear for the prosecution in criminal trials the position is different. The general rule, which has very narrowly confined exceptions, is that all available evidence on which the prosecution intends to rely in proof of guilt of the accused should be presented before the close of the case for the prosecution, a rule which is not merely a technical rule but an important rule of fairness: R v Chin (1985) [page 14] 157 CLR 671 at 676 and 684–5; Shaw v R (1952) 85 CLR 365; Killick v R (1981) 147 CLR 565 at 569; and also Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) [2015] NSWLEC 39.

COURTROOM TECHNOLOGY 1.15 When the first edition of this book was written, computers were rarely encountered outside physics laboratories. They were huge, cumbersome and primitive. Indeed it is since the most recent edition that smartphones and tablets have, with Wi-Fi and e-research, revolutionised legal practice in and out of court. The profound change this has created has been troubling for some older practitioners, but not for the many who have readily embraced the ease and speed of research and access to legal materials, legislation, texts and case law. As recently as 10 years ago it was cheaper to send solicitor senior and junior counsel to England to take evidence on commission than to conduct a hearing of the evidence by video link or bring the witnesses to Australia. No one would consider such a course now. Many aspects of trial are conducted by Skype or by video hearing and submissions are commonly provided to courts by email instead of hard copy.

Nobody could now deny that a sound understanding of technology and appreciation of its uses and limitations are fundamental to conducting a trial effectively. Much evidence that previously was based on letters and formal documents is now only found online, in cloud storage or in emails, and business is predominantly conducted electronically. Real evidence is becoming more common with photographic and instantaneous video recording often being available for the consideration of courts. This has had the effect of reducing the importance of some aspects of oral evidence, especially in establishing identification and descriptive testimony. There has been a concomitant increase in the use of expert evaluation of that electronic evidence and the collateral issues of integrity and interference with the evidence are developing areas of legal endeavour. This has changed the very nature of advocacy.

AVL applications 1.16 In applying for an audio or audio-visual link (AVL) in court, one must consider the following points outlined below: Every advocate at some point will need to make an application for evidence given via audio or audio-visual link in court. Two examples are witnesses who may be overseas and the cost to have them appear in person is not viable; or witnesses who are incarcerated and cannot appear in person. An advocate’s involvement may arise when an AVL application has been made and is opposed — in such cases there may be a need to file a motion with evidence supporting the justification for its use. [page 15] Each court will have developed its own procedural requirements for

applications of this kind — in most cases, these can be found on the court’s website. In some cases, the very process of obtaining an AVL order can be complicated and protracted, particularly if the witness is incarcerated and the prison authority operates according its own rules relating to inmate schedules. This may require alteration of the order of witnesses at hearing or trial. Other matters to be considered by the advocate are any documents to which the witness must refer while giving evidence — if dealing with one’s own witness, he/she must have access to his/her affidavit or statement and any other documents to which he/she will be taken. It is also helpful to ascertain whether your opponent wishes to put their own documents to your witness and agree as to the arrangements in relation to those. When it comes to non-AVL requirements (for example, use of incourt audio playback equipment, computer screens, etc), enquiries should always be made to the judge’s associate well ahead of the hearing or trial so that appropriate arrangements can be made and a suitable courtroom allocated by the list clerk.

Tactical considerations for AVL applications 1.17 Where AVL is being canvassed during preparations for hearing or trial there are a number of questions the advocate ought to consider when it comes to one’s own witness appearing via AVL: this is a judgment call which will ideally be based on your impression of the witness in conference. Is there a sound basis for the application for AVL which will satisfy the tribunal of fact? Based on their personal characteristics, will the witness come across more favourably or sympathetically if appearing in person? Is there likely to be resistance to the evidence of witnesses given by AVL where the other witnesses appear in person? Is your opponent’s ability to cross-examine likely to be impaired by

the evidence being given by AVL? Should the witness be a prisoner, will he/she be less likely to be accepted in prison greens (most relevant if a jury trial)?

GENERAL TECHNIQUES 1.18 Many of the techniques described below are dealt with in more detail in the specific chapters on trial conduct. Some discussion is relevant, though, to provide both a context and a focus, as the general techniques apply to all advocacy, curial or other, and highlight the essential truth that advocacy is ‘the art of persuasion’, which in turn depends on the communication skills of the advocate, not merely on the justice of the cause. [page 16]

Notes 1.19 You should work to limit or eliminate the use of notes. Horace Avory KC, an early twentieth century silk, deserves inclusion in any book on or concerned with advocacy, not only as a cross-examiner, but for this injunction, given to the young Patrick Hastings: ‘No one but a fool,’ he said, ‘ever makes a note on his own briefs, so why should he want someone else to do it for him?’ (Hastings, Autobiography, p 95). This does not extend to flags, or other means of identifying safe, troubling or unsafe matter contained in the brief, nor to note making to identify topics for exploration in preparation. It is intended to avoid the extensive ‘noting up’ of a brief to cover and exhaust all issues, and to encourage the use of mind and memory as the primary tool of the advocate. This is partly a function of preparation and partly one of memory training. In any event it is essential to the development of advocacy skills that you do without notes wherever possible, and that you learn

to use such notes as you cannot do without as hints, rather than as a script. To this end, it is desirable to work towards the development and use of mind maps, or some similar representational tool. These are graphic representations of your strategic or tactical objectives and can be prepared for each section of the case. They are idiosyncratic and stylised notes which list points and issues rather than questions or narratives and operate to allow flexibility, while ensuring that important matters are not forgotten. The great dangers presented by detailed notes and scripts are that they hold the attention of the advocate and distract from the vital tasks of communication and observation. There is a double penalty in this. First, by concentrating on the notes you are focused on the notes, not on the people (judge jury or witness) before you. Thus, you look at the lectern or the bar table and not at the consumer of your advocacy. This deprives you of the ability to assess reaction, or even attentiveness. As well, you prevent the audience from communicating with you. It is remarkable how much a look or a gesture can convey. You ignore it at your peril. The second penalty is as bad: when your concentration is focused on the documents before you, and on the prepared questions, there is a real tendency to fail to listen to the answers the witness gives. It is these which are the evidence, not the questions.

Manner and manners 1.20 Manner and manners go in tandem. A pleasant and polite manner will assure a number of essentials for you — the continued attention of judge and jury and the attention of your witness to your questions (and settling your witness’ nerves). This politeness of manner should extend to ensuring that you address witnesses by their correct name and title. As will be noted later, good manners will also ensure the co-operation and assistance of the court staff. One rule that should never be violated is that under all circumstances the advocate should keep cool, and not lose his or her temper on any account. No matter how stupid the witness, how

unexpectedly damaging the testimony, how exasperating the conduct of opposing counsel, or how erroneous you may think the rulings of the court, show no sign of discomposure. Aside from the fact that juries (and in the writer’s experience, judges) attach importance to the effect [page 17] damaging testimony apparently has upon lawyers engaged in the trial of the case, by loss of temper you may say or do something fatal to the case, and to your reputation as an advocate. There are times when indignation should be expressed, but kept within bounds. The preservation of imperturbable good temper is a golden rule for good advocates. Never be moved to anger by anything, however provoking it may be, and however much you may appear to be in a passion. Absolute dignified self-command is the greatest virtue.

Voice 1.21 A clear, distinct and interesting voice is more than an asset to an advocate: it is essential. You must be understood by the witness and the tribunal. They must therefore hear you clearly and distinctly. Good diction and a carrying (though not necessarily loud) voice is of the essence, as is variation of pitch and tone effective to highlight certain aspects of the testimony. The loud, braying monotone may be understood, but it loses the attention of judge and jury very quickly. Speed of delivery is also an important consideration. You must be attentive to the audience to ensure that you are going slowly enough to drive your point home and yet not so slowly as to be tedious. At the same time, changes in tone at key stages, altering voice by volume or modulation for emphasis and effect — and perhaps to break the tedium — are all acceptable tools of efficient advocacy.

Command of language

1.22 More is needed than vocabulary — the only good advocate is an interesting one. For your speeches you will need sufficient general knowledge to enable you to enliven and illustrate them without relying on clichés. They must in addition be couched in unambiguous and grammatical English so as to convey precisely what you mean. Humpty Dumpty may have satisfied Alice but he would certainly have found a jury of 12 unsympathetic, and any judge in living memory would have rejected his assertion that ‘When I use a word … it means just what I choose it to mean — neither more nor less’. ‘The question is’, said Alice, ‘whether you can make words mean different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master — that’s all’. Moreover, the language you use, whether to judge or jury, should be simple, clear and direct. Simple language should be used to express ideas and to frame questions, which should never be complex or convoluted — a good rule is ‘one one one’ — one idea, one question, one sentence. Evidence to be usable must be clear and comprehensible. Such evidence only comes from clear and comprehensible questions.

Confidence 1.23 Of confidence, Munkman says: ‘no quality carries an advocate further than this; it played an incalculable part, for instance, in the success of the first Earl of Birkenhead, even allowing for his brilliance in other directions. Confidence can be cultivated’ (Munkman, Techniques of Advocacy, p 5). [page 18] True though this is, a warning is required. Confidence can be overcultivated and over-valued. True confidence comes of sound preparation, a belief in one’s self — combined with experience — and it is of enormous assistance. Munkman says:

[T]he ideal state to start a case is one of alert relaxation. There is however nothing worse than over confidence and its handmaiden pomposity and nothing more rapidly alienates the jury. No advocate should be apologetic certainly. An awareness of one’s position and a readiness to stand up for one’s rights as an advocate and for the client’s rights is at the forefront of the traditions of the Bar. This does not however involve talking down to juries or condescension to judges. Confidence should always be accompanied by courtesy and unpretentiousness. Confidence should not be easily abandoned. (Munkman, Techniques of Advocacy.)

Persistence 1.24 Like confidence, persistence is a virtue in moderation. Again, let me cite Munkman: ‘Persistence is a marked characteristic of the average successful junior; it enables him to fight cases to the end in spite of unexpected difficulties and is a most valuable asset in crossexamining’. It is certainly true that persistence is essential. Cases may be lost but they should not be abandoned, and the courage to persist in a difficult cause is important. But again, a note of warning must be sounded — persistence must be distinguished from doggedness. Endless repetition brings no reward but loss of interest and then loss of temper in the hearer. The function of persistence is to fight your case until the end but not to prolong it needlessly only to delay an inevitable defeat.

Mileage 1.25 To become a really effective advocate you will need to exercise both practical judgment and technique. Both of these come only with experience, practice and application. Nothing can take the place of experience in running cases, but the difficulties involved in gaining that experience can be mitigated by sound preparation of the whole case — witnesses, law, tactics and overall strategy.

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2

PREPARATION AND CASE ANALYSIS When I went to the Bar as a very young man said I to myself, said I I’ll work to a new and original plan said I to myself, said I … Ere I go into court I will read my brief through said I to myself, said I and I’ll never take work I’m unable to do said I to myself, said I

Introduction The mechanics of preparation The tools of preparation Organisation of the brief Marking the brief Trial notebooks The law and authorities The checklist, or ‘ready reckoner’ Identifying the issues Chronologies Witness and exhibit summaries Conferences Preparing witnesses

2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13

Advice on evidence Case analysis Performance preparation

2.14 2.15 2.16

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INTRODUCTION 2.1 Every advocate is familiar with the sinking feeling that accompanies the receipt of a brief or file which is either in an unfamiliar area of practice or of an unforgiving size. Adequate techniques of preparation and analysis provide the cure for those problems. If you wish to be successful there is no alternative to the hard grind of simply sitting and reading the whole of the material. What the advocacy manuals emphasise are the glamorous jobs. Yet every successful examination, cross-examination or trial speech is based on the underlying lonely task of extensive preparation. Your reading of the material must be structured, thoughtful, and above all done with a mind free from bias or prejudgment of the outcome. Whenever a brief is received, the advocate’s immediate inquiry is invariably, ‘For whom do I act?’. The answer to that apparently neutral question in truth does much to condition the attitude, manner and frame of mind with which the advocate commences and undertakes the task of preparing the case. This must be guarded against, by careful analysis and preparation. Human nature and advocates being what they are, preparing the case from the narrow perspective of the party represented is both inhibiting and dangerous. If the first step in preparation is undertaken from the perspective of the party for whom the lawyer acts, this confines the width of analysis and scope for independent and freeranging assessment of the case. A common fault of the adversary system and the mindset it engenders is too close an identification between the advocate and the cause of the party represented. The first step is to recognise this fundamental fact. All too often an overconfidence in our own case,

and too little attention to the opposing case, leads to a kind of pre-trial psychosis, which can be fatal in an adversary system. One of the most important and difficult attributes to acquire is the ability to see the case in proper perspective, or as it is sometimes said, ‘to see the big picture’. An integral part of correcting the imbalance described above involves paying due regard to the weaknesses of the client’s case. This is for two fundamental reasons. The first is that the recognition of the weaknesses of the case will lead to adequate planning to deal with them. The second is that the weaknesses of your own case may mirror the strengths of your opponent’s case. One means of achieving this end derives from a critical reading of the whole of the material. Omit nothing. Reading should include correspondence, particulars, original and amended pleadings and so on. One should read with two aims: to assimilate and consider what is there and to identify what is missing, or should be there. That reading should, however, always take place in the legal context of the matter. If the brief is delivered ‘on hearing’, begin by identifying the cause(s) of action and elaborate the elements of each, whether you are for the plaintiff or the defendant, the Crown or the accused. If you are to advise on whether a cause of action exists, establish in a summary way the essential facts about which the advice is to be given, and then proceed in the same way. The point is your reading must be intelligent and focused to be of value to you or to the client. [page 21] Until this process is automatic, advocates should begin the preparation by preparing not their own case, but their opponent’s. This, of course, assumes a case beyond the advising stage. The earlier task is to review the facts to identify and deal with likely defences to your position. This may involve conference or requests for further material to complete the brief. It is not always safe to assume

that the material is complete when it is received, and it is better to take a little extra time than to provide a flawed advice or one that is completely wrong. It will always remain essential to prepare the opponent’s case at the early stage in one’s own preparation: a most important step in the process of preparation is to consciously deal with the case from the opponent’s point of view. As John Stuart Mill wrote in On Liberty, p 46: The greatest orator, save one, of antiquity, has left it on record that he always studied his adversary’s case with as great, if not with still greater intensity than even his own. What Cicero practised as the means of forensic success, requires to be imitated by all who study any subject in order to arrive at the truth. He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.

THE MECHANICS OF PREPARATION 2.2 All useful preparation requires a methodical system which is essentially a mechanical process. The most experienced advocates all employ a systematic means of organising the case materials. This begins with a method of recording the issues; of relating the evidence and the witnesses to those issues; of establishing a chronology of relevant events; and of relating the issues to the law applicable to the case. A first step in any good preparation is in my opinion a good chronology. In all but the very simplest of cases it may be said that there is no case which is not improved by a chronology, as long as it is intelligently directed. Many courts require one as part of the practice, but in any event knowing the order of events and their interrelationship is central to their understanding. (See section on Chronologies below.) Analytical, intelligent preparation involves more than just reading

the brief or file. At the same time, the advocate will be isolating the issues and organising the materials into a logical sequence. While the methodology of this is subjective, any successful system will have at least the following common attributes.

The tools of preparation 2.3 The physical organisation of the case is a conscious and deliberative task, but one too often the result of accident or habit rather than design. At some point the advocate must, as a separate step in the preparation process, determine how [page 22] the brief is to be organised to ensure maximum ease of access in court. There are a number of tools readily available to assist in this purpose.

Organisation of the brief 2.4

The brief may be organised in the following ways:

alphabetical (witness or subject matter); chronological; exhibits/advices/memos; court documents (critical documents); expert reports; or a combination of the above. However it is resolved to organise the brief, convenient access to each section suggests the sections should be clearly separated, either in different folders (in the case of a large brief) or by dividers (coloured or numbered), indexed at the front and conveniently labelled. Sometimes the categories might overlap or the relevant material may be recorded in more than one place when reorganised.

Multiple copies of such material to ensure the desired ease of access is a useful way of avoiding extensive and clumsy cross-referencing. A fresh index to the brief must be arranged once this process of reorganisation is completed.

Marking the brief 2.5 Marking the brief is very subjective. For central material, highlighting key references (by colour, underlining or removable flags) ensures easy accessibility. Colour coding to identify subject matter, important or ‘dangerous’ material or exhibits is easily done and effective; for example, flagging admissions of the opposing party, critical documents to be tendered (although these should be separately listed to ensure they are not overlooked), or highlighting a central passage in the expert’s opinion, or a prior inconsistent statement which is to be relied on or cross-examined on.

Trial notebooks 2.6 Conscious organisation is as important once in court as it is beforehand. It is necessary to devise a system which enables both accurate note-taking and keeping a close eye on the witness. The precise method is individual, but must be deliberate, whether it involves a notebook, a looseleaf pad, a laptop computer or tablet. It must be something that achieves accuracy while allowing for your own preferences and style. Notes are best confined to the relevant. Not all that is said by any witness is relevant. Much of what is said by most witnesses can be disregarded. The notes you take should accurately and completely record only two things — that which you wish to rely on and that which you wish to attack or have rejected. [page 23]

Properly kept notes are essential. An accurate note is necessary for cross-examination and for address, especially in cases where there is no running transcript. Additionally, most people will keep a note with the aim of stimulus to the memory. If, for example, you keep the note taken in conjunction with a witness summary or checklist (see below), to know not only what has been said, but what has not yet been said or is omitted altogether, you can turn the note into a tactical weapon that is of far more use than the transcript can ever be. Methods of keeping notes vary greatly and there is probably little to choose between thorough systems. If you use a book, it is a good idea to use the back for quick notes of important passages of evidence that can later form the basis of the final address. The brevity or otherwise of your notes of evidence will depend on the quality of your memory, the complexity of the case and the need of the moment. But in all cases you should take notes for one reason only — certainly not to occupy yourself at the bar table — with the aim of making them useful. There is no use simply duplicating what will be provided by the court reporter or the sound recording system; too much attention to recording unimportant details will distract your attention from the non-verbal dynamics of the courtroom. Moreover, a useful technique is to identify the passages of interest as you go. Often a word, a phrase or a piece of evidence in tension, or even in conflict, with the general tenor of the witness’ evidence will strike you as it is given. It must be noted then — it will be nigh on impossible to find otherwise. Similarly, noting the timing of the introduction of exhibits and MFIs is usefully tied to the time of the giving of the relevant evidence. I have used a system of three columns to achieve this result, organised in this way: Witness/Exhibit/MFI number

Summary of relevant evidence

Note of XX issue, or nature of striking evidence

XB

I picked up a copy of the …

XX re incons with statement — cp par 7

The law and authorities 2.7 In every case, it will be necessary to relate the factual issues to legal principle, and in most to argue some law. This will involve identifying the principal authorities to be relied upon and dealing with those which do not support the case. In the first place, it is necessary to organise the authorities systematically. This may be done alphabetically; according to subject matter (for example, liability, damages, causation etc); or by hierarchy (by level of court, in reverse chronological order (most recent case first)). The cases must be read, noted, and allocated to the subject matter(s) to which they belong. It is an essential part of preparation in the common law system which depends so heavily upon the doctrines of precedent and stare decisis that the authorities be cross-referenced. It is important to identify those cases which have been followed, applied, distinguished, or overruled. Obviously, it is necessary to check recent unreported decisions of the higher courts. At the hearing, it will be necessary to separate the cases from which it is proposed to read from those for reference only; most rules of court now require the [page 24] provision of lists of authorities divided in that manner to be filed in advance. It will also be necessary to have crystallised, in succinct form, the legal propositions to be advanced. This should be typewritten, if possible, for submission to the court as a summary of argument at the tactically appropriate moment. By crystallising the legal principles involved you will ensure that you understand precisely what the cases you have selected stand for, and avoid reciting long passages or quotations from those cases when the time comes to make submissions as to the law. The latter is never good advocacy.

The checklist, or ‘ready reckoner’ 2.8 As an aid to coordinating the above material, many advocates, as a matter of standard practice, maintain a précis or summary of the salient features of the case, on no more than a page or two, always ready at hand. This checklist of the entire brief is organised so it can be used as an index or ‘ready reckoner’. Usually included are the essential matters of proof so as not to be forgotten or overlooked. Many a case has been won for the defendant by the inadvertent failure of counsel for the plaintiff to prove one essential element before closing a case; for example, in a culpable driving trial, otherwise fought on the single issue of excessive speed, the Crown failing to prove that there was no mechanical defect in the accused’s motor vehicle. Notes should be made relating the essential facts of the case, not only in some kind of accessible chronological sequence, but which are issue based and which also contain cross-references to the witnesses or modes of proof to be employed. Such a document is invaluable when the presiding judge asks, ‘Where is the evidence for that?’ or ‘Where can I find that statement?’. This proposition also applies to the preparation of argument of law, to avoid questions like ‘Where in the authorities is the passage which supports that proposition?’.

IDENTIFYING THE ISSUES 2.9 In the first place, to identify the issues it will probably be desirable to go to the formal court documents: in a civil case, the pleadings; in a criminal proceeding, the summons or indictment. These, however narrowly, identify the basic elements of the crime or cause of action. Next, in a civil case, usually the formal particulars and interrogatories or discovery contain vital references to key issues. In a criminal case, the deposition or police brief and/or records of interview will provide the core material in the case. From there it is

useful to proceed to witness statements or proofs, expert reports for both sides, and the exhibits. In the process of reading (and noting) these materials, the advocate ought to be identifying, separating and distilling the issues and crossnoting the evidence/witnesses/exhibits which bear upon them. At the conclusion of this preparatory stage, the trial lawyer will have an organised summary of the case broken down into the constituent elements or the issues. This is a continuing process during the reading phase. The advocate will be constantly revising and re-defining the [page 25] issues. Some will become apparent later rather than sooner, while others which appeared to be matters in issue at the outset will disappear or assume only minor significance.

CHRONOLOGIES 2.10 A central function of preparation is to record the sequence of events in a clear and concise way. This is best achieved by compiling, as an integral part of the preparation process, a chronology of events. However, there are chronologies and chronologies. In order to be valuable, a chronology needs to contain the precise date(s) (and perhaps the precise time) of key events and usually of other subsidiary or secondary events likely to be material to the case. Yet, a chronology containing every date is often too long and overbearing and the relevant or more important events are lost in the mass, or the morass. Equally, a too abbreviated chronology is usually so cryptic as to be of little value. By the end of the reading phase, the trial lawyer will have an exhaustive chronology of all the events, including references to the witnesses, documents, or other proved or admitted facts which relate

to the events in issue. This will be ideal for forensic purposes but too unwieldy to present to the trial court. At this stage, it is helpful to have the chronology in table form, containing columns for date, event, evidence and comment. For trial purposes, the advocate will need to edit out matters which are irrelevant or ‘for one’s eyes only’ and marginal events, and prepare a concise chronology in brief but informative terms. This should be confined to a plain English version of material events. Such a chronology might be submitted during the opening as an aide memoire and can be revised for tender at the conclusion of the trial by including references to transcript pages and exhibits vouching its content. It is often useful to prepare, in addition, a separate short chronology of key or critical events in the case. Another alternative is to present an agreed chronology of central events. Additionally, in personal injury cases, a separate chronology of medical treatment is often more appropriate than a general chronology of dates upon which key witnesses were first interviewed about the facts.

WITNESS AND EXHIBIT SUMMARIES 2.11 In addition to all of the above, it is more than useful (desirable in almost every case, and essential in long cases) to prepare a separate document which contains, in alphabetical order by witness name, a short summary of the principal aspects of the evidence of each witness on both sides, so far as they are known. This should identify both favourable and unfavourable aspects of the evidence. This document provides a quick overview of the real means of proof. It is especially useful for cross-examination and in preparing the outlines for opening and closing addresses. A document index duly cross-referenced can also be used to the same effect. Prepare charts or spread-sheets if necessary to best summarise, collate or marshal the brief.

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CONFERENCES 2.12 As indicated above, to succeed in any case, one needs sound preparation based on detailed knowledge and understanding of the case. A properly prepared and conducted pre-trial conference fulfils a number of important functions. First, it enables (and if you are busy, compels) a critical examination of the issues and the evidence. Secondly, it enables you, when seeing the witnesses, to review the strengths and weaknesses of the case ‘in the flesh’ as it were, in context rather than merely from the written word. Thirdly, it should also serve to permit an assessment of the witness. Sometimes a good proof might come from a poorly presenting witness and vice versa. Lastly, it provides an opportunity to give the witnesses some information as to what is required of them, and an understanding of court procedure. All witnesses, including the client, should be treated alike in conference. Each witness must, of course, be conferred with separately. First, even where a proof has been supplied by a solicitor, the witness should be taken through the narrative of evidence and that narrative should be noted (preferably the notes should be chronological even if the narrative is not). Secondly, the narrative should be explored by question and answer. How this is done will depend on the individual witness — some witnesses may need to be searchingly cross-examined, especially where they appear to be hedging or embellishing, or to prepare them for anticipated attacks. From this you should build your own proof of evidence. The ideal proof of evidence was described by Munkman, Techniques of Advocacy, pp 39–40, in the following terms: The ideal proof contains all the facts in the right order. It also contains complete details, some of which counsel may not wish to bring out, but they should be there so that he can use his discretion. The ideal proof contains, besides, explanations in simple language of anything which might be obscured to the average man, such as the lay-out

of a street or house, or the working of a machine, or technical terms used in particular trades. Such explanations ought not to be left to the end as footnotes so to speak, but ought to be introduced side by side with the part of the evidence which they are intended to clarify. Each stage in the evidence should be rounded off and completed before going on to the next.

Thirdly, it should be discovered whether the witness has previously given evidence and the procedures of the court explained in detail. It is also useful to explain to witnesses, experienced or not, how to give evidence — not what they should say, but the mechanics of giving evidence. This advice will include where to sit, where to look, how to address the court, appropriate clothes to wear, and so on: see [4.3]. It is essential to find out whether there is any matter, such as convictions for criminal offences, or prior inconsistent statements, which might adversely affect the witness’ credit. Fourthly, where a witness is likely to come under a strong attack, it is best to recognise this in advance. You should safeguard the case the witness is being called to support, and, where possible, anticipate and shield him or her from unpleasant shocks and surprises. [page 27] Finally, the detailed proof of the evidence of each witness should relate to the law and the issue (or issues) in the case. That is, the evidence of each witness should be broken down into the elements of the action upon which the witness can give evidence, and strengths and weaknesses identified and noted. It is vital for this to be done as part of the preparation and not left to the spur of the moment at the trial. It is at this stage that the decision whether or not to call the witness at all must be made, or at least considered: see [1.13]. The nature of any prior conviction or other credit issue will be one factor bearing on that decision. Another might be that after seeing and speaking to the witness, you form the view that he or she is not credible or will present as a dreadful witness. Yet another may be that the witness

may give evidence of a fact essential to your case but also reveal another important fact that is contrary to your client’s interest. If in this latter case his or hers is the only evidence of that essential fact, you must call him or her, dangerous or not. In either of these cases proper preparation and use of the conference will enable you to plan your strategy so as to take into account the dangers revealed. Failure to explore, identify and note the strengths and weaknesses of the witness and allow for these will leave you on the day of trial vulnerable and unprepared for attack.

PREPARING WITNESSES 2.13 The detail of the techniques for the preparation of witnesses is dealt with in detail in Chapter 4, where the alternative methods of presenting evidence in chief are discussed. Only a general consideration of preparation is relevant here. The first step in the preparation of any witness or witness statement is prepare yourself. Read every word in the material. Omit nothing. No exceptions. Then order it into a logical frame reflecting the elements of the action. Then prepare a chronology. Not a short one to hand up to the court or provide to the other side — a real chronology, warts and all: strengths, weaknesses, source material, lacunae, omissions, who says what, which witness, what documents, photos, conclusions and arguments. This is the essential road map for your witness statements. It will inform you as to who can or might provide the evidence you need. It will reveal the gaps and weaknesses. It is THE fundamental tool of preparation of the case — of the evidence. Neglect it at your peril. It will sometimes happen that a brief arrives late and witness statements or affidavits have already been (inadequately) prepared, leaving out vital evidence which must be drawn from the witness in oral examination. The ordinary rules about preparation and case theory apply to such a situation, but the pressure of time will prevent a complete reconsideration or redrafting of the evidence of those

witnesses and you will commonly be out of time to file and serve amended statements. Two issues must be addressed as quickly as possible: putting the court and the other parties on notice of your intention to introduce supplementary material; and preparing each affected witness for the consequences of the late introduction of the omitted matter. [page 28] The first requires formal notice by letter to the court and the parties setting out the additional evidence and an explanation and reasons for the failure. A draft of the new statement or amended affidavit should accompany the letter. Time limitations may mean that this may be no more than a summary of the evidence or dot points of the topics to be addressed. However embarrassing this course may be, it is better than merely trying to introduce the material without notice. The latter course may lead to a result varying from refusal to permit the evidence to be adduced, to adjournment of the hearing with attendant costs and penalties. In any event you will need to anticipate that the new evidence will be the subject of objection and be prepared to argue the issue of its reception into evidence. The formal notice having been given, it is then necessary to prepare the witness to give evidence about these important issues and prepare for being cross-examined about them. In addition to the evidence itself, the witness will need to provide an explanation for failure to include the material in the original statement or affidavit. The witness may also need to be prepared to deal with an allegation of recent invention and where possible any contemporaneous document or record to rebut such a suggestion should be included in the proof and led as part of the explanation for the late provision of the new evidence. The importance of supporting documentation for material that has been omitted, whether by inadvertence or as the result of poor

preparation, cannot be overstated. It is only by complete frankness with both the court and your opponent that you are likely to overcome the otherwise available inference of recent invention in relation to such omissions.

ADVICE ON EVIDENCE 2.14 Except in an emergency, a written advice on evidence is essential. In an emergency, an oral advice on evidence should be obtained. It is the practical means of identifying and implementing the strategic plan of the trial. An advice on evidence should indicate the elements of the case to be fought, the evidence available to prove each such element, what areas are not or do not appear to be in dispute and the issues selected on which the case is to be fought. The advice on evidence should be used to record those strengths, weaknesses and limitations of each witness and thus the means of proving the facts and appropriate contingency planning in each event. Initially, an advice on evidence should serve the purpose of identifying the elements of the cause of action or of the charge, and each defence available. Thus, any gaps in the evidence on any issue will be identified and lead to advice as to the steps to be undertaken to remedy those gaps. The following checklist, while not exhaustive, provides a useful starting point for the advice on evidence. [page 29]

ADVICE ON EVIDENCE CHECKLIST Jurisdiction (1) action in correct jurisdiction; (2) correct court/venue; (3) application of cross-vesting legislation;

(4) has the defendant submitted to jurisdiction?; (5) correct parties identified. Pre-trial issues (1) amend the pleading or the charge/strike out applications or summary judgment; (2) adding or discontinuing against parties; (3) seeking further particulars; (4) seeking (further) discovery or inspection, notices to admit; (5) seeking any medical or psychiatric examination; (6) any expert reports required; (7) taking evidence on commission; (8) settlement offers or Calderbank letters; and (9) security for costs. Trial issues (1) elements of the cause or charge; (2) available defences; (3) analysis of law relating to (1) and (2) above; (4) incidence of the burden and onus of proof, including any reverse or evidentiary onus; (5) analysis of the means of proof: (a) admitted/disputed facts/state of issues; (b) estoppel; (c) notices to admit; (d) notices to produce; (e) exchange of expert reports; (f) tender of statements or affidavits; (g) use of business records; (h) tender of interrogatories; [page 30] (6) witnesses to be called/subpoenaed/competence and compellability; (7) tender of documents to be proved — plans, photographs and diagrams; (8) expert evidence; (9) view/inspection and demonstration; and

(10) other evidentiary issues, for example: (a) admissibility; (b) similar facts; (c) circumstantial. Criminal cases (1) joinder or duplicity of counts/accused; (2) abuse of process and stays; (3) confessions — admissibility/exclusion; (4) exclusion of evidence — unfairness/illegality. Conclusion (1) prospects of success; (2) costs implications; and (3) prospect of a plea to a lesser charge/settlement arbitration or mediation.

CASE ANALYSIS 2.15 Having completed the mechanical preparation of the case as detailed above, the real ‘engine room’ of the preparation process — analysing the case in detail and preparing the case concept or ‘case theory’ — commences. The case theory, in its simplest form, is the case summary: a short, concise summary of the theme lying behind the case, accommodating all the relevant facts and evidence in a way which produces the winning conclusion. Producing the concept begins with an objective, logical analysis of the issues. This analysis can often be effectually carried out by the comparative method; that is, analysing the evidence in the context of the cases advanced by the respective parties. It requires rigorous testing of competing hypotheses, both to exclude the irrelevant and to demonstrate the likely course of events. In a mechanical sense, the tools used in this exercise may include visualising the entire case, as on a whiteboard or butcher’s paper, or

using file or index cards etc. The case is conceptualised as if on a chess board in which every step and the consequence of every potential move is anticipated. [page 31] At a more practical level it involves having an overall strategic plan and asking questions akin to the following: What are the important issues? What is the central issue(s) on which I will fight this case? What are the strengths of this case? What are the weaknesses of this case? How are the weaknesses in the case to be overcome? What happened? Why did it happen? What will be the opposition’s case theory? How is the opponent’s case to be met? A successful case theory has the following attributes: (1) It will be a simple, logical narrative which tells a persuasive story. (2) It addresses the precise facts of the case consistently with one’s instructions. (3) It explains the motives of the chief actors in the case and accounts for or explains their actions. (4) It arises from facts which are undeniable, facts which can be proved or from evidence which is likely to be believed or accepted (that is, it is realistic). (5) It should consist of more than mere assertion, and must contain hypotheses reasonably supported by the objective facts and circumstances, or inferences which are at least inherently plausible.

(6) It must appeal to the intelligence and commonsense of the tribunal and to its inherent sense of justice; that is, it will appeal to the heart and mind of the tribunal. (7) It is based on facts which should be consistent and must not be contradictory. (8) It must be one which allows the tribunal the easy way out — it must not be predicated on implausible explanations, or involve findings which will be unpalatable, if that is avoidable. (9) It must be one which accommodates, explains or destroys the opponent’s case. (10) It must be one which reconciles all the known circumstances in the case. The trial lawyer’s task is to develop a case theory which satisfies as many of the above criteria as the evidence permits. If a theory is developed which is contradicted by, or inconsistent with, a certain or provable fact, it is the wrong case theory. In such a case it will be necessary to undertake the analysis again. Once a case theory has been articulated consistent with both provable facts and one’s instructions, it then provides a road map for the conduct of the entire proceedings. It will necessarily provide the basis for the opening and closing addresses, and as well identify the evidence to be led in chief and the subject matter for crossexamination. You are now in a position to prepare the final address, a draft of which must be undertaken at this stage: see Chapter 8. With this plan [page 32] already settled before you enter the courtroom, not only do you know precisely where you are going, but you will also find it easier to assess your tactical position as the need arises. By the time you go into court, you will have the entire case analysed

by fact and law and prepared according to a plan which you have spent days, perhaps weeks, developing. That plan should be altered only when an unanticipated situation develops which makes changes imperative. It must always be remembered that case theory may be factually or legally based. The consequences of failing to develop an adequate case theory are that the advocate has no basis for discriminating between the relevant and the irrelevant, the helpful and the harmful. The case must not be left to the mercy of unfolding events in the courtroom. The case theory must be one which directs and anticipates events; it is not merely reactive to them. Without a case theory, it is impossible to decide, for example, whether to cross-examine an adverse witness on the basis that the witness is lying, or merely mistaken. A witness called by your opponent may have an extensive record for dishonesty, and yet give evidence which is consistent with your case theory. Without a case theory, but armed with that record, the advocate may destroy the credit of the witness — and the helpful evidence into the bargain. In his book The Advocate’s Deskbook, encapsulated the importance of case theory:

pp

175–7,

Younger

Every lawsuit involves a story of human beings in conflict. Sometimes the story is obvious; sometimes it is hidden and needs to be brought out. All stories, however, have certain properties in common. Every good story, be it a novel, short story, epic, or play, has a unifying theme. When we pull the theme out and state it separately, it is always absurdly simple in comparison with the complexity of the finished work … Exactly the same is true of a trial. The trial must have a theme — a central idea that gives unity to the drama we shall unfold before the jury. Like the literary artist, the trial lawyer must let the theme do its job. Every witness, every exhibit, every bit of testimony must share a relationship to the theme. If a witness’ testimony seems helpful in some abstract sense, but is not related to the theme, we do not put that witness on … in everything that comes to mind — failing to discriminate between what is relevant to the theme and what is not — shows a lack of self-confidence on the lawyer’s part. To the extent that everything we do for the jury has an articulable relationship to the theme, we enhance the likelihood of achieving the aesthetic effect that we want, namely, persuasion of the jury … The only evidence we will put in is evidence that bears upon that theme … There is no one way to present the theme. There are only foul lines, and within those, room for

a great deal of creativity. We must think about what is possible, what will make the best impression, how we can make best use of the witnesses, and so on. Once we have the theme, it operates as a principle of exclusion. It tells us what not to put in, namely, anything not related to that theme.

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PERFORMANCE PREPARATION 2.16 This involves not what to do, but how to do it. It requires the advocate to consider how the case will actually be conducted in the courtroom. It involves a wide range of skills and techniques, and choosing among options available for presentation in court. These encompass the six qualities described by Munkman as essential to the advocate: good voice, command of words, confidence, persistence, practical judgment and experience. It also entails giving thought to such things as organisation and presence, and manner at the bar table (for example, use and misuse of the lectern), which are always planned, and not matters of accident or habit. All are legitimately part of the advocate’s preparation techniques.

ELEMENTS OF PREPARATION AND ANALYSIS There is no substitute for preparation, preparation, preparation. Preparation must be systematic, organised, exhaustive and thoughtful. Preparation involves mastering the factual and legal issues. Undertake a case analysis to produce a strategic, thorough case theory. The case theory must provide a theme which accounts for all the relevant facts in a logical and persuasive way which leads to the successful conduct of the case. The case theory is the road map for the conduct of the whole proceedings. Performance preparation is the means by which you propose to present the case theory in the courtroom. Develop the framework of the closing address before the case begins.

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3

OPENING The indictment had never been clearly expressed, And it seemed that the Snark had begun, And had spoken three hours before anyone guessed What the pig was supposed to have done (Lewis Carroll, The Hunting of the Snark)

Introduction Clarity and conciseness The key attributes of an opening statement Open the case broadly Brevity Logicality Do not open high Open the evidence, not the argument Open your case, not that of your opponent Use of aids in opening Opening for the defendant Criminal Civil Duties of counsel Preparation for performance

3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 3.12 3.13 3.14 3.15

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INTRODUCTION 3.1 The quotation at the beginning of this chapter is entirely apposite. Many counsel and almost all judges have heard openings almost precisely like that of the Snark. Like evidence-in-chief, the opening is much neglected, both by advocates and writers on advocacy alike; yet it has an important place in any case. In Techniques of Advocacy, p 154, Munkman placed it even higher when he said: The opening of a case has the same key position as the evidence-in-chief; the case pivots around it, and the opening must be prepared thoroughly … Narrative is also a leading factor in the opening, to ensure that the court or jury has a firm grasp of the essential background of the case.

Some lawyers fail to appreciate the importance of the opening statement. They open pro forma with less energy than they bring to bear later in the proceedings. The opening statement is difficult to do well, yet it is of enormous consequence. It offers a once only opportunity in the case to make a first and lasting impression on the tribunal. The opening, then, forms a unique part of a case. It is the first time the court or jury will hear anything about the case beyond what it has been able to read in the court list. It gives you the priceless opportunity to have the first word and this must not be wasted. Too often the tremendous advantage of opening is squandered by the advocate. Instead of presenting a short, clear, concise, colourful story, the tribunal is often forced to hear a long, boring recital which fails to paint a mental picture or account which brings the case alive. The opening must, of course, be more than fact. It must enliven the issues, not merely identify them and make clear the area, fact and/or law for the contest. Everything that is said below should be read in the context and

subject to the colour of this: an opening is the first act in the courtroom drama. It requires warmth, colour, texture and thought. Do not for one moment believe this to be any less important before a judge sitting alone, or a professional tribunal, than before a jury. I do not mean histrionics, or an over-emotional presentation, but a clear and compelling telling of the story — even in equity. The opening should weave the evidence into a narrative.

CLARITY AND CONCISENESS 3.2 There are two rules for opening a case to ensure that the advantage you have by going first is most effectively used: clarity and conciseness. They are capable of subdivision and explanation. Put at their simplest, they mean no more than this: speaking at a time when the court knows nothing or almost nothing of the action enables you, by a clear and logically presented summary of the facts which you will proceed to prove, to capture the jury’s interest and the ‘sympathy’ of the court and thereby incline it or them towards your client or your case from the outset. That task is aided by brevity. It is easier to keep attention and interest for a shorter time. As well, you gain respect for efficiency and competence. Nothing alienates a tribunal or jury more quickly or more effectively than giving the indication that [page 36] you are not sure what you are doing or where you are going, and that you do not care how long it takes to get there. It was Dickens who used the simile of throwing ink on blotting paper for opening to a jury. He said that a given piece of blotting paper could hold only so much ink. The opening was used to ensure that the blotting paper (the jury) was saturated with ink (your case) before your opponent had an opportunity of throwing ink for his or her client. Before an opening, the jury is a blank sheet of blotting

paper. If it is to absorb the ink, you must provide it with facts and issues simply stated so that they can be easily understood. Failure to understand or appreciate one simple but crucial fact may mean the loss of the case. You must therefore have a sufficient depth of understanding and objectivity about your case to enable you to state the issues clearly and simply so that a listener hearing your opening will not be confused by it but enlightened. Rather than give witness’ summaries, the opening should weave the evidence into a narrative. The case theory will have furnished a narrative which will appeal to the common sense and intelligence of the tribunal. The beginning and end of the opening should focus on the reasons identified in the case analysis which lead to a finding in your client’s favour. The central aim of opening is certainly to outline the case and to tell what it is all about, but it is also to create the right atmosphere from the start in a way which is alive, not sterile. While the opening was traditionally called a speech, it is best to say here and now, you should never make a ‘speech’ to a jury or tribunal. Talk to them. Don’t talk down to them — engender an understanding of the case, engage their sympathies, or rouse their distaste if that assists, but if you wish to succeed as an advocate it is essential that you treat the tribunal from the beginning of the case as participants in it and not merely as a captive audience unable to escape. This is as true of juries as judges, of judges as juries and of judges of appeal as anyone. As a useful contrast of the different roles occupied by each address, the opening may be better called ‘the statement’ and the closing or final address ‘the argument’.

THE KEY ATTRIBUTES OF AN OPENING STATEMENT 3.3 In order to open effectively, there are also a number of attributes which must obtain and which are outlined in the following sections.

You must understand your case. This may seem self-evident, but remember, every case is ultimately reducible to one or a few issues or points which can be stated simply and which will have been thoroughly tested by the case analysis. It is the case analysis, the case theory, which must be opened, together with an outline of the way it is to be proved. This must be done in a ‘user friendly’ way — communicative and compelling. Thus, you will need to identify the issues — the matters requiring, and those susceptible of, proof. Where a fact is admitted or is not in issue, that fact should be highlighted for both tactical reasons and to ensure it is ‘ticked off’; for example: ‘One of the matters the plaintiff must prove is the existence of a duty of care. That duty is not in issue. The defendant has admitted that it owed a duty to the plaintiff to …’. [page 37]

Open the case broadly 3.4 Open with the broadest possible statement of the case, rather than immediately launching into the facts upon which the charge is based. Very often this will be a simple outline of the cause of action and its elements. This provides a framework on which to hang the next step — the facts which go to make up the case. If you commence the opening with such an introduction and then provide a wide statement of the one central issue, and so proceed logically and carefully to open the material upon which you rely to prove the case, you not only explain each of the issues which the jury or judge must consider in a logical sequence, but also provide that framework into which the evidence is to be led — what you need to prove, and the evidence by which you will prove it.

Brevity 3.5

The opening is something which must be done concisely and

simply. Most trials require explanation of both fact and law in the opening in order to marshall the issues in the case. Once again, these would already have been identified with clarity at the preparation stage. A concise statement of each of those matters, together with the facts relied on as fulfilling the legal requirements, takes the listener immediately to the essence of the case — the issues. This is not the occasion to be repetitive. The object of your opening is an outline to present the framework into which the facts will be fitted by the evidence. As Evans states in Golden Rules of Advocacy, p 42: It is one of the surest signs of the inept advocate that he loads down his fact finder with far too much detail. It’s probably got something to do with the fact that when we learn to draft pleadings and indictments we are taught to include all necessary particulars. We are brainwashed into feeling guilty if we don’t give sufficient detail: we are frightened of leaving out some essential element. We have also been trained to have an authority ready at our fingertips, a justification, to back up every utterance we make in court. Our trained professional instincts urge us to volunteer chapter and verse for just about everything.

Such a rule of pleading is quite inconsistent with the effective use of an opening address.

Logicality 3.6 In order to promote both clarity and conciseness, you should conduct your analysis of the anticipated evidence in a systematic and logical way in the opening. Where possible, openings ought properly to fit the narrative. Thus, the opening should present to the tribunal the developed case theory: not in name of course, but in substance. Compare, for example, this sample plaintiff’s opening from Lyons, Winning Strategies and Techniques for Civil Litigation, p 107: This is a case about security violations under United States securities laws. I represent Mr and Mrs Robert Jones, who owned a rail store and invested in the

[page 38]

ABC Widget Company. They bought 300 shares of the stock and lost money due to the conduct of the defendants. The evidence will show defendants are liable for the loss.

with this better one: This is a case about manipulation and fraud in the stock market. I represent Bob and Jane Jones, a couple who put most of their life savings from a little store into 300 shares of the ABC Widget Company. Unfortunately, the evidence will show that the defendants used devices to defraud these innocent people out of their life savings.

Lyons adds: Whilst just a snippet, the second opening is not only a better road map for the jurors to follow to a plaintiff’s verdict, but gives them some reasons to find for the plaintiff. Note that the words ‘manipulation’, ‘fraud’, and ‘devices to defraud’ come right out of statutes and regulations. The same can be done when defending a case. Humanise the defendant corporation from the beginning.

The case theory might be best developed in opening around a chronology, as most stories are easier to follow when they follow the sequence of time. This is not to suggest that time is the only sensible sequence that can be followed or that your opening must be chronological. But before you abandon time in favour of some other organisation ask yourself: is it as easy to understand by someone who has never heard anything of this case before?

Do not open high 3.7 Do not put facts in your opening that you are not in a position to prove. It has traditionally been said that openings should be pitched moderately, and indeed failure to make good an opening address can rebound on you with fatal effect, so be conservative in your statement of the evidence. Again, in your statement of the evidence, brevity is the touchstone. Remember, the opening is an outline of evidence: it does not require you to read the statements of the witnesses. You are not bound by all that is said in the opening unless it is couched in terms that amount to an abandonment of other issues of fact or law: see Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110–11 and Valeriani v Gibson [1963] NSWR 1430, which states at 1435: There may be exceptional cases in which counsel in his opening address specifically

limits his case to a narrow issue or issues and undertakes not to rely upon other and different issues of fact or of law. But these cases in our experience are rare … It should not be thought we are offering any encouragement to counsel to refrain from opening matters upon which he proposes to rely, or, indeed, opening matters which he does not propose to prove at all. If counsel should refrain from opening an important and material part of the plaintiff’s case, his client, of course, becomes subject to serious criticism by counsel for the defendant in his address to the jury and if counsel for the defendant can satisfy the judge that the course pursued by the plaintiff’s counsel has placed his client in a position of prejudice, the judge may well order that the jury be discharged and that the plaintiff pay the costs.

Beyond what has already been said, there are substantial and sound reasons for not opening high or at length. First, the more detail you give of a witness’ expected [page 39] evidence, the likelier it is that it will not accord with the opening when the witness comes to give that evidence. Secondly, where your evidence fails to come up to the opening, you may be certain that that failure will be the subject of comment at the end of the case. Such a failure, however minor it may seem in the overall tapestry of the case, may be quite significant. It may be interpreted as meaning that the evidence, if given, would have been adverse or at least unhelpful or that there has been a significant change in the witness’ statement or in your instructions. In sum, when opening, you should always err on the side of caution. It should be remembered that despite what was said in Mummery v Irvings Pty Ltd and the cases that followed it, the courts have always resolutely set their faces against matters being opened to a jury which are not the subject of evidence or to be the subject of evidence. Indeed, ‘improper reference’ of this kind has been held sufficient to warrant a new trial, although the point must be taken at the proper time (‘the earliest opportunity’) so that appropriate directions may be given.

Open the evidence, not the argument

3.8 This is really another way of saying that in opening it is indeed always best to avoid both comment and argument. As has already been pointed out, the object of the opening is to present a framework upon which the evidence will be hung. It is the function of the closing address to use argument to lead the jury to the conclusion for which you contend. To attempt to do so before the jury has heard the evidence misconceives the aim of the opening and is attended by the same dangers as were discussed at [3.7]. Younger, in The Advocate’s Deskbook, p 69, states: The beginning of the opening statement is especially important. Every case involves an enormous amount of information for the jury to absorb. The jury has not been through the pleadings and discovery; they have not lived the case as the lawyers have. At the trial, they hear it all for the first time. In order to understand the line of the case as it develops, the jury needs a fair amount of information quite early. They must know the who, what, where, when and why. That is the office of the beginning of the opening statement: to give the jury the preliminary information they need in such a way that they can understand and absorb the rest of the case.

Open your case, not that of your opponent 3.9 The precept ‘open your case, not that of your opponent’ does not mean that you do not open the issues either as pleaded, or as they appear from your preparation. As well as a compelling narrative of fact, the opening, at least in my opinion, should reveal the ground on which the case is to be fought. This is especially so where the tribunal of fact is a judge alone. You should make clear what issues of fact and law arise, and what need not be at the front of the judge’s mind as he or she listens to the evidence. However, as a general rule, where you are the beginning party, you will not allude in any detail to your opponent’s case or try to refute it. If there is some weakness in your case or some issue which is essential to deal with in the opening, [page 40]

the terms in which that will be done will have been predetermined in the case analysis, more especially in that part of the analysis where you have identified your opponent’s theory and developed a strategy to deal with it. Even then it is essential that you open the issue, and not the case for your opponent. When appearing for the opposing party, the rule remains the same: develop your own case theory first and destroy later. If the rules of court permit you to open your case at the outset, you should do so if possible in even more concise terms than the beginning party, but with a focus on the issues and the contentious facts.

Use of aids in opening 3.10 In very complicated cases, or where there are photographs and charts which explain your case, it may be of great assistance to open by using those. It is truly said that a picture is worth a thousand words, and the same is true of maps and diagrams in complex factual cases. Before doing so, however, you should have either your opponent’s concurrence in that course or be absolutely sure that you can prove the charts or photographs to which you will refer. Some judges also prefer that such items should be strictly proved first before they may be shown, so raise the propriety of what you wish to do in your opening with the tribunal in advance if there is any doubt about the procedural requirements.

OPENING FOR THE DEFENDANT 3.11 The questions arise whether and when to open if appearing for a party who is not the moving party. In most courts the rules now provide for the defendant to offer an opening statement to the court, jury or non-jury, immediately upon the conclusion of the plaintiff’s opening. The answers to those questions depend in part on tactical considerations and in part on the nature of the case. Quite different

approaches are required in civil and in criminal proceedings. The plaintiff/prosecutor will already have used the opportunity to put the best case before the tribunal. The ink has already been thrown. You must decide whether it is worthwhile to add more or to let what is there fade or be obliterated by the evidence. In all cases it is desirable where the moving party has not done so to inform the tribunal of areas of agreement or matters not in issue and to limit the scope of the dispute. In a negligence case there might, for example, be no issue as to breach per se, but a lively dispute as to causation or damage. If the plaintiff has not made this clear in opening, much time can be saved and a great deal of judicial approval acquired by a defendant opening and indicating the precise limits of the matters in issue. Similarly, areas of dispute in relation to damage and damages can be restricted and concessions made or issues joined, thus enabling the judge to focus on the real dispute. This is essentially good advocacy. Once it has been determined that an opening is desirable, the further question of how to open must be addressed. [page 41]

Criminal 3.12 In criminal proceedings with a jury it is usually worth a brief opening in general terms to ensure the jury is made aware from the outset of its obligations and the approach to evidence you propose it should take. In such a case an opening with the following elements may be considered: a brief revisiting of onus and standard of proof; the elements of the offence; the broad nature of the defence — such as alibi, intent or identification; identifying which of the elements is in issue and requires the

decision of the jury and which elements are not in issue, and why that is the case; the suggested approach the jury ought to take to its task of weighing the evidence. This might include: – to invite the jury to be both analytical and critical in its approach to the evidence of the witnesses; –

to consider the effect of the cross-examination on the present witness and the evidence of other witnesses;

–

to consider the consistency of the evidence advanced by the prosecution and its effect on the allegations;

–

to ask the jury constantly to test the evidence as it proceeds by reference to the allegations and the evidence of other witnesses in the case;

–

to invite the jury to contrast the oral evidence with the documentary material if there is any;

–

to constantly refer to evidence to the presumption of innocence and the burden of proof; and

–

to suspend final judgement until it has had the opportunity to hear the case for the defence unless it is not satisfied before that point arrives.

In my experience unless a positive defence is to be advanced where the prosecution is already on notice of the evidence supporting that defence and you are certain of the evidence you are to call, it is better to limit the opening to the brief general outline suggested above. The defence, like the prosecution is bound by the opening and to open too widely can have serious, if not fatal, consequences if the witnesses do not come up to proof. It is often unnecessary — indeed unwise — to embark on a discussion of the evidence at all, beyond a limited identification of the most important witnesses and the central issues of fact to be determined. Areas of agreement or of no contest should be made clear so that the jury understands that the failure of the defence to put such matters in issue does not amount to an admission of the

offence and in that context the limits of the issue between the prosecution and defence can be made clear.

Civil 3.13 In civil cases the position is quite different. Juries are now a rarity and a judge is a much more reliable and appreciative audience. As well, the case is already set [page 42] out in detail in the pleadings and particulars. It is therefore always desirable to inform the court of the limits of the dispute, any areas of agreement or common ground and any issues of law or evidence that will need to be determined during the hearing of the proceedings. Similarly any matters likely to interfere with the smooth conduct of the hearing can be raised so that the court’s time may be used to full advantage. These may include witness availability and timing, any dispute as to admissibility of expert or other evidence and any issue as to joint expert reports. A defendant should always ensure that the court is made fully aware of these matters before the evidence is embarked upon.

DUTIES OF COUNSEL 3.14 These were clearly articulated, in so far as opening addresses are concerned, in Clyne v NSW Bar Association (1960) 104 CLR 186 at 199: It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side.

Although what has been said here applies equally to prosecutors in criminal trials, there is further necessary qualification, for there are special obligations imposed on those who would prosecute, including a duty of fairness. It has always been said that the obligation of the prosecutor is to present the evidence fully and fairly. The prosecutor’s duty is to outline the facts on which the Crown intends to rely. It is desirable that counsel for the Crown warn the jury during the opening that neither sympathy nor prejudice should be allowed to influence its approach to the evidence of the witnesses, and to keep an open mind until after the summing-up: see generally Wells, Evidence and Advocacy, pp 124–5. None of this is to say that a prosecutor may not open forcefully, but it must be balanced and fair.

PREPARATION FOR PERFORMANCE 3.15 Like everything else in the trial process, the opening must be prepared and rehearsed, or pre-performed in some way to ensure that it will achieve its aims of brevity, logicality and persuasiveness. Performance preparation will also include such elements as manner and tone of delivery, careful word choice and plain English used and designed to engender trust. It should be prepared thoroughly in a way which allows the advocate to be free from notes and to maximise eye contact and communication with the tribunal. The style of opening must be confident and engaging. The process of opening, like the witness evidence which is shortly to follow, involves recounting past events which have not been seen by the tribunal, who will receive those events not visually, but aurally. It must engage not only the listener’s attention, but his or her imagination, so that the events described are converted to a vivid mental picture. Remember, Churchill said that ‘the ear is one tenth the organ of the eye’. [page 43]

In order to achieve this visuality, it is essential to use the beginning of the opening effectively. Avoid formalities, trivialities and platitudes. Attention may well be won or lost by the first words to the tribunal; for example, a favourite of Hampel J: Ladies and Gentlemen, before the date of the accident, the plaintiff had two arms and two legs.

Or, in a Special Leave application to the High Court (in Waterways Authority v Fitzgibbon [2004] HCA Trans 543): Mr Glissan: It is difficult to know precisely what to say in the beginning, your Honours. One is tempted to say it is infrequent but not impossible to be ambushed during the course of argument in the Court of Appeal, but rarely in the judgment. What happened in this case, and which we say … Kirby J: Is this a procedural fairness argument?

ELEMENTS OF OPENING The opening is a unique opportunity for effective advocacy and it provides you with the first chance to make a lasting impression on the tribunal which should never be wasted. It should be clear, concise, and present to the tribunal the essence of the case theory in a convincing and descriptive manner. The preconditions to a good opening are thorough preparation (both content and performance), logic, brevity and breadth. It should be moderately pitched and not argumentative and yet paint a vivid and lasting mental picture of the events it describes; and open the issues — not the argument. It will be tailored to the needs of a first time listener who must absorb the information aurally. It should clearly and accurately identify and articulate the issues, both fact and law, which need to be determined.

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4

EXAMINATION I’ll never assume that a rogue or a thief Is a gentleman worthy implicit belief Because his attorney has sent me a brief said I to myself, said I.

Introduction The aim of evidence-in-chief Witness preparation Modern witness preparation Order of witnesses Legal limits of examination Leading questions Rationale Exceptions to non-leading questions The rule against impeachment The rules against self-serving or prior consistent statements Techniques of examination Affidavits Witness statements Examination from proof Manner Remain in control Style

4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 4.11 4.12 4.12 4.13 4.14 4.15–4.16 4.17 4.18–4.19

Lead like a layperson Form Content Communication How to recognise a leading question Avoiding leading questions

4.20 4.21–4.23 4.24–4.30 4.31–4.34 4.35 4.36–4.42

[page 45] Witnesses in trouble Nervous witness Losing the place Omission Miscellaneous witnesses Calling on a subpoena to produce Good character witnesses

4.43 4.44 4.45 4.46–4.54 4.55 4.55 4.56

[page 46]

INTRODUCTION 4.1 Examination-in-chief is one of the most difficult and most underestimated of all the advocate’s tasks. It is underestimated probably because when well done it appears so effortless. It is well worthwhile learning the few techniques required to achieve that appearance. The principal difficulty faced by most beginner advocates lies in the avoidance of leading questions. It is a problem which developments have exacerbated, with the demise of the common law method of oral examination in many areas of practice. The aim of examination-in-chief, or direct testimony, is to adduce the whole of the material that witnesses can proffer about the case which is relevant and material; the aim of cross-examination is to test or attack that evidence, to correct error and supply omission, and the object of re-examination is to explain, rectify, and put in order. While it is a subject to which little time is commonly given when preparing for a trial, the correct method of examining witnesses-inchief is of vital importance to the proper and effective conduct of cases. Error, or inability to elicit the necessary evidence has more irreversible consequences than failure in cross-examination, because the witness’ evidence-in-chief is that upon which so much usually depends. It therefore follows that acquiring skill in adducing evidence-in-chief is more important than acquiring skill in crossexamination. Moreover, because of the stricter limitations imposed by the law of evidence on the manner in which evidence-in-chief may be led, it must be understood that a skilled examination is more difficult than a skilled cross-examination. The reasons for this have been memorably demonstrated by Lyons, Winning Strategies and Techniques for Civil Litigation, pp 127–8:

The British author, Somerset Maugham, in his book, A Writer’s Notebook, cites a law professor who instructed his students: ‘If you have the facts on your side, hammer them into your jury. If you have the law on your side, hammer it into the judge. If you have neither, hammer on the table.’ Without question, the trial lawyer’s greatest opportunity to ‘hammer’ the facts to the jury comes during direct examination. It is then that the trial lawyer is able to converse with a friendly — or at least neutral — witness; it is then he should have greatest control of the organisation and pace of the interrogation; and it is then he should be confident of what the answers will be. Why, then, is direct examination so difficult? Even more to the point, why is direct examination so frequently boring, both to counsel and to the jury? Scratch the surface of any experienced trial lawyer, and you are likely to find someone who will tell you he plods reluctantly through the direct examination of his own witnesses only because it allows him to get to the greater excitement and challenge of cross-examining his adversary’s witnesses. Excitement is one thing; effectiveness is another. A slashing cross-examination may lend spark and fire to the courtroom, but it will rarely win a case in which the lawyer has failed to put in his own version of the facts through effective direct examination. If, in Maugham’s words, one is to be saved from hammering on the table, a coherent, logical statement of the facts is essential, without it a jury is unlikely to accept your client’s position in preference to the alternative.

[page 47] Yet the pitfalls are formidable. The lawyer himself cannot put his carefully crafted story into evidence. He can develop the account only through other people — the witnesses — who may not always be of his choosing; they may be inept, nervous, unintelligent, naive, unattractive, inarticulate, arrogant, or a combination of the above. The story must be developed through the artificial device of questions and answers. The rules of evidence governing the kinds of questions that can be asked are complicated and often inconsistent. The story may be fragmented by repeated hostile objections that distract both witness and jury. No wonder young advocates are frequently driven to use the forbidden leading question, and anything else short of a TelePrompter, in an attempt to control the witness and get the story told. For all who have endured the frightened, difficult, or inept witness — and that is most of us — it is understandable, if not excusable, that direct examination is often so poorly done.

Having demonstrated that leading evidence-in-chief is at least as important and as difficult as cross-examination, it is not, surprisingly, usually accorded anywhere near the same kudos in legal circles: one often hears it said that so-and-so is a good cross-examiner, or made a mess of the cross-examination of a witness. It is only rarely, if ever,

that one hears it said that X can obtain evidence from a witness-inchief with consummate skill. Nevertheless: It is at least clear that examination-in-chief plays a central role. No civil claim, and no prosecution, can succeed unless it is sustained by the evidence. It is the role of examination-in-chief to present this evidence in a complete and convincing form, and the evidence-in-chief is therefore the pivot of the whole case. Sometimes, especially in country courts and the justices’ courts, there are no speeches; sometimes, too, there is no cross-examination; but no ordinary case can be conducted without evidence-inchief. Exceptionally, the defence may submit that there is no case to answer, in which event success depends on the speech making the submission. In the higher courts, also, where points of law are argued, the speeches stand alone. For the average advocate, however, these exceptional cases are only a small percentage of his practice. It follows from these remarks that the first branch of his art which an advocate must learn is examination-in-chief. (Munkman, Techniques of Advocacy, p 38.)

Sir Frank Lockwood, a turn of the century law officer in England, believed that: The examination of a witness in chief was very much under-rated in its significance and its importance. If they have to examine a witness, what they have got to do, was to induce him to tell his story in the most dramatic fashion without exaggeration; got to get him, not to make a mere parrot-like repetition of proof, but to tell his own story as though he were telling it for the first time — not as though it were words learned by heart — but if it were a plaintiff’s story plaintiffly telling it. And they have got to assist him in the difficult work. They have got to attract him to the performance of his duty but woe to them if they suggested to him the terms in which it was to be put. They must avoid any suspicion of leading the witness while all the time they were doing it. They knew perfectly well the story he was going to tell; that they destroyed absolutely the effect if every minute they were looking down at the paper on which his proof was written. It should appear to be a kind of spontaneous conversation between the counsel on the one hand and the witness on the other, the witness telling artlessly his tale, the counsel almost appalled to hear of the iniquity under which his client had suffered. It was in this way and in this way alone that they could effectively examine a witness.

[page 48] Making allowance for the colour of the language which seems perhaps a little inappropriate to advocacy in the case-flow ethos that pervades the early twenty-first century, this is a clear exposition of the importance, and of some more obvious difficulties, of leading evidence from a witness.

In recent years in many courts and tribunals there has been a relaxation of the strict rules of getting evidence-in-chief. In many civil and administrative tribunals, statements of affidavits have replaced examination. In some even the rules of evidence themselves have been abandoned. Nonetheless, evidence in statements or affidavits can be the subject of objection, with permission to ‘supplement by oral evidence’. As well, there remains the truth that evidence given by a witness is more compelling than evidence to the same effect given by the advocate. Nothing in trial advocacy is more powerful than a properly conducted examination-in-chief. It is therefore essential that any practitioner who wants to be a successful and effective advocate learns to take the evidence of a witness-in-chief in a way that gets out his or her case and avoids objection.

THE AIM OF EVIDENCE-IN-CHIEF 4.2 The pivot around which examination proceeds is that its purpose is to prove the various elements of your case. If you fail to do this, it is only rarely that your opponent will do it for you in crossexamination. The major problem is that you cannot put leading questions, while the witness often proves quite incapable of understanding anything else. No practising advocate can succeed in the real sense without mastery of the difficult (and almost lost) art of examining witnesses. Cox said it required a greater combination of qualities than almost any other branch of advocacy, the most important of which are patience, coolness, courage and tact. All of these are very true requirements. The general view still seems to be that examination-in-chief is an easy task that anyone can undertake, and demands neither ability nor experience. To take this view is a serious error and the difficulty of examination-in-chief will readily be discovered the first time you meet a reluctant, timid, stupid, or overeager witness, or a difficult, objecting and clever opponent, aided by a carping judge.

While there are rules and techniques for cross-examining witnesses well, and while many people show a more natural facility towards cross-examination, a natural talent for conducting an examination-inchief is extremely rare. If you think about it for just a moment, it is fairly obvious that examining must be harder than cross-examining. To cross-examine, one may conduct a ‘testing conversation’ with the witness, not constrained by rules against leading or making suggestions, and taking advantage of a generally more relaxed attitude to the rules of evidence. Opposed to this are the strictures which hedge around taking evidence-in-chief. It is extremely difficult to lay down rules for the performance of this onerous task. Before turning to such guidelines as may be gleaned from the writers on advocacy and experience in the task, it is worth looking at the object and scope of examination-in-chief (as set forth in Munkman, Techniques of Advocacy, p 41): [page 49] The aim of examination-in-chief is to elicit from the witness a complete, orderly story, told by the witness in his own natural way, with the minimum of prompting. The story should be in the right order, usually the order of time: if there are several distinct topics, they should be introduced one by one, according to their importance, each topic being exhausted before turning to the next. The story should be complete in detail, so far as is necessary for the proof of the case or to carry conviction, but this does not mean that it is necessary to go into minute details which have no substantial relevance: selection may be necessary.

The value of the case concept providing the road map and plan for all that follows in the case has been demonstrated above. This holds good for examination-in-chief. The case theory will dictate the elements to be proved, the issues to be addressed and identify the witnesses to be called and what matters need to be covered in their own evidence-in-chief. The importance of formulating a strategy and choosing the tactics to implement it has also been considered. The examination-in-chief will have its own strategic plan, and the witness will provide you with the tactical means of achieving your objective.

Keep that objective always in view; do not be side-tracked or confused, and limit the evidence that you adduce to what is relevant. No question should be asked without a definite object in mind. When an advocate, in order to show himself or herself wise or witty, spins out an examination to an unnecessary length, the time of the court is taken up, and the tribunal becomes bored and impatient. Besides, it is dangerous to ask questions which are aimless, as the answer of the witness is as likely to be unfavourable, as favourable. It is a safe rule not to ask a question unless there is good reason to believe the answer will be favourable. Your examination and the individual question alike should be as short as the case permits. Any more potentially provides fertile material for cross-examination. The object of leading evidence is to prove those facts which are material to your case, and nothing further. The witness’ motives and reasons are generally not relevant to the case. Any non-essential matter in chief serves only to present your opponent with more material on which to cross-examine. It is enough for the witness to be cross-examined about the issues: it is pure folly to provide your opponent with irrelevant material to use for counterattack.

WITNESS PREPARATION 4.3 As indicated above, to succeed in any case one needs sound preparation based on detailed knowledge and understanding of the case. In that process, the pre-trial conference fulfils a number of important functions. At the least, you should ensure that the witnesses understand the following: (1) where to go, where to stand and where to face in court; (2) how to address the tribunal; and (3) that the answers to questions are the evidence. It is a good practice to tell the witness the following: ‘If you do not hear the question, ask to have it repeated. If you do not understand the question, say so, do not guess. Your answer is the evidence — if

you guess wrongly you may be thought to be lying or unwilling to help’. [page 50] It is also useful to distinguish between the witnesses’ examination and cross-examination, and to instruct them in answering questions. The precepts are: (1) The shortest truthful answer is best. Do not add anything or volunteer anything to the cross-examiner. (2) Listen to the question and answer that question. If a completely truthful answer can be given by ‘yes’ or ‘no’ or ‘I don’t know’ or ‘I don’t remember’, that should be the answer made. (3) Do not guess at an answer and do not reconstruct. The witness should be given anecdotal or hypothetical examples of the pitfalls that attend failure to follow these ‘rules’ — unrelated, of course, to the facts of the case. Where a witness is likely to come under a strong attack, this should have been catered for in the preparation stage. We have dealt with the methods in Chapter 1, and see also [4.27]. When preparing a witness it is important to listen to the witness, and to listen like a layperson, not like a lawyer. This is because the witness will speak like a layperson, and in jury trials, be speaking to lay observers. Witnesses are likewise not necessarily able to give their evidence in the logical ways lawyers would ideally wish for, and allowances must be made for that kind of contingency as well. If the examination-in-chief is to be effective, there must be a significant proportion of time spent out of court preparing the witness. As in the case of the advocate, a portion of this will be performance preparation.

MODERN WITNESS PREPARATION 4.4 Recent American writing has highlighted an issue with the practice, commonly encountered, of a witness being prepared for cross-examination in the way outlined above, but to such a degree that the witness is made reluctant to give any but the four suggested answers — ‘yes’, ‘no’, ‘don’t recall’, ‘don’t know’ — and never to offer an explanation under any circumstances. It is suggested that by drumming the ‘rules’ for answering questions into the witness the result is to have the effect of stifling the witness’ responses into a series of unbelievable and non-responsive answers, with the consequence that he or she is deprived of credibility. No doubt this may be true and one need only look at media reports of witnesses whose continual recitation of ‘I don’t recall’ is made the object of legitimate ridicule to see it in operation. While all witnesses should be made aware of the general precepts set out above, it is important to make all witnesses aware that the evidence they are to give must be truthful, accurate and complete, while remaining limited to the relevant issues. The responsibility for confining the evidence to the relevant is not that of the witness. That is the responsibility of the advocate to ensure. Part of witness preparation is the assessment of the witness. Where you are confident that a witness is well prepared, intelligent and truthful, the restrictions set out as precepts may be less rigidly adhered to. The extent to which that confidence is soundly based may be tested in preparation by asking some difficult, even hostile, questions and assessing the responses. [page 51]

ORDER OF WITNESSES 4.5 The considerations which govern the order in which witnesses should be called may be subsumed under two headings. The first

relates to the facts and elements of the case sought to be proven; it is generally accepted that good practice requires a roughly chronological ordering of evidence so that it may easily be understood. The second relates to ordering witnesses according to their strength, and is based on your observations of the witnesses. This is not a subject which generally looms large in counsel’s mind. Nevertheless, it is one which repays some consideration at least. It has perhaps been most clearly put by Wrottesley in his collection of Principles of Advocacy, p 12. The advocate should pay great attention to the order in which he puts in his evidence. It is difficult to lay down general rules upon this subject, and much must depend upon the sound judgment of the advocate himself … The manner of putting in this testimony is of great importance, and will often tax the advocate to the utmost of his skill and sagacity. The arrangement of his testimony and the order in which he calls his witnesses will also demand much care and attention. The advocate should, in nearly every case, put his most intelligent and most honest witness in the box first. It is necessary that a good impression should be made upon the court and jury at the earliest possible moment. The first witness generally has to run the gauntlet of a sharp cross-examination, and if the first witness passes this creditably, he encourages the other witnesses on the same side, and makes a favourable impression upon the court and jury which his adversary will find it difficult to eradicate. If he pursues another course, and is imprudent enough to place a weak, foolish, or timid witness in the box first, the witness may do incalculable harm to the case of the party who introduced him.

The question of the conjunction of witnesses must also be considered. This is not simply a question of the order of calling witnesses, but as Wrottesley says (p 13): It is highly important for the advocate to call, in immediate connection with each other, all the witnesses to the same subject matter so as to prevent the attention of the jury from being distracted by the introduction of different portions of the case which constitute new subjects, between the parts of what are properly related to each other.

It is sometimes unavoidable that this should occur although, where possible, it is better to avoid it. The most frequent place in which you will find the distracting effect referred to above is where one witness gives evidence out of sequence, on different and quite disparate parts of the case. Here it is essential, even if it involves repetition of parts of the evidence, to separate the evidence so that the witness gives

evidence completely as to one part of the transaction before being taken to another. Of course, these remarks must be read subject to the discussion of Jones v Dunkel (1959) 101 CLR 298 and Dilosa v Latec Finance Pty Ltd (No 2) (1966) 84 WN (Pt 1) NSW 557: see [1.13]. Subject to these considerations, courts will not readily fetter the discretion of counsel to call one or more witnesses to prove a point even though only two or three might have been called. To the advice given above — put your best witness first — I would add: save your next best until last. [page 52] As has been said repeatedly, the aim of examination-in-chief is to prove via the witness the various elements of the case. If the court, especially the jury, is to follow the evidence, the story must be recounted methodically. The court will already have a framework (the opening address) into which to fit the evidence. The evidence should as far as possible follow the same order as the opening; that is, it should in general proceed logically and sequentially according to the case analysis. Each topic or element ought, where possible, to be fully dealt with before going on to the next, not only in respect of each witness, but taking in conjunction the witnesses about each topic. In a simple armed robbery case, for example, the order might be: (1) witnesses to the fact of the robbery, and amount stolen; (2) witnesses to identify the ‘getaway’ car; (3) police evidence of investigation and forensic examination; (4) evidence of arrest; and (5) evidence of confession and charge. The witnesses to each aspect would be called in conjunction with each other. There are, of course, some areas (especially expert medical or

scientific evidence) where some order other than time is appropriate. The important thing is that there be order: cold, logical, sensible order which everyone in court, especially those who do not have your intimate knowledge of the case, can immediately understand. The handmaiden of order in examination-in-chief is thoroughness — of preparation, of summary and of the actual task of examining. Observing this means ensuring that all material evidence has been elicited topic by topic (using the covert checklist method if possible). There is the additional matter of ensuring that documents, maps, plans, etc, are identified or proved through the witness. They will need to be explained by the witness, too, if there is any risk that they may be obscure to an outsider. Sometimes, the order in which witnesses are called might be affected by a need for a witness to remain in court after that witness’ evidence is completed. It is important that before being called to testify, witnesses in a case remain out of hearing of the witness giving evidence and that they be examined (and indeed seen) separately. The purpose of such a separate interview and examination of witnesses is to prevent the opportunities that sometimes present of a concerted story, or to influence an account given by one upon another. At the commencement of the hearing on the application of either counsel (although very often of his or her own motion), the judge will order the witnesses on both sides to leave the court and the hearing of the court until they are called upon to give their evidence. Parties to the proceedings, who will usually also be witnesses, have a right to remain in court throughout the entire trial. If the judge is not inclined to make such an order, it is strongly recommended that such an application be made. Indeed, this is the ordinary practice of the courts for the reasons set out in R v Smith [1968] 1 WLR 636 at 637: [page 53] The reason for this is obvious. It is that if they are permitted to hear the evidence of other witnesses they may be tempted to trim their own evidence. It is certainly the

general practice in the experience of all the members of this court that where an accused person is to give evidence he gives evidence before other witnesses who may be called on his behalf. There are, of course, rare exceptions, such as when a formal witness and expert witness in the case, or a witness about whom there is no controversy, is interposed before the accused person with the consent of the court in the special circumstances then prevailing.

This gives rise to the question of what happens if any of the witnesses ordered to leave then remains in court. The old rule was that such witnesses may be fined for contempt (Cobbett v Hudson (1850) 15 QB 988), but it seems the judge may not refuse to admit the evidence of a witness given under these circumstances. It was said that the judge may fine or commit the witness for contempt, and the fact that the witness remained in court could be the subject of comment by counsel in address, but that the witness was entitled to give evidence. In this regard, see Tomlinson v Tomlinson [1980] 1 All ER 593 at 596, where it was held that a judge sitting alone had a discretion whether to admit the evidence (per Sir John Arnold P and Wood J).

LEGAL LIMITS OF EXAMINATION 4.6 In order to maintain and indeed promote these substantive principles of law, strict limitations have been erected upon the way in which questions can be asked. The rules of evidence that govern the nature and scope of examination-in-chief may be summarised as: The witness must be competent. The evidence must be relevant, credible and admissible. The evidence must not (as a general rule) be hearsay. The evidence must be the evidence of the witness, not the examiner (that is, it must not be led). The examiner may not impeach his or her own witness.

Leading questions

4.7 There is a paramount rule that witnesses may not be asked leading questions during examination-in-chief or re-examination, although answers to such questions if given before objection are admissible. The philosophical justification for the prohibition was clearly expressed by Sir John Barry in his judgment in Mooney v James [1949] VLR 22 at 27, where he said: [The witness] has a bias in favour of the party calling him, and is adverse or hostile to the other party; and … the party calling the witness has had the advantage of knowing previously what the witness can prove, and could, if permitted, frame his questions so as to put a gloss on the testimony of the witness …

The rule is deceptively simple to state, but very difficult to apply. A leading question may be defined as one which either suggests the answer which the examiner seeks, or assumes the existence of disputed facts about which the [page 54] witness is yet to give evidence. Asking questions which are nonleading in form and substance can only be learned by training and practice. The Dictionary to the Uniform Evidence Acts 1995 defines leading questions in much the same way: leading question means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.

Such questions are generally prohibited by s 37(1) of the Acts, although there are exceptions both under the Acts (s 37(2)) and at common law.

Rationale 4.8 There are both practical and ethical reasons for the prohibition on leading questions. The ethics of evidence-in-chief are based on the

rule that the advocate may not be the witness — he or she is neither competent to take the oath, nor present at any relevant stage of the events to be related. More colloquially put, you can’t give evidence from the bar table or put words in the witness’ mouth. Further, it is absolutely unethical to be party to the presentation of false evidence to the court. The more the lawyer leads, the more likely the suspicion or appearance of collusion. Practically, it is wiser and safer to obtain evidence which could on any view be contentious by the use of non-leading questions. Accordingly, it is customary for the witness to be led only until the matter in issue is reached — but even so it is good practice to inform your opponent and the court of your intention to adopt this method. Immediately the matter in issue is approached, cease leading. This will both save you the embarrassment of an objection and gain the benefit of the witness giving direct testimony, not merely repetition or acceptance of your words. In fact, if you commence the non-leading approach some little time before the contentious point is reached, a healthy pattern should be established by then which will serve to insulate it from legitimate objection. In the words of Sir Raymond Evershed MR in Moor v Moor [1954] 1 WLR 927: The case of irregular leading questions, which every experienced advocate knows to be irregular, is to have the effect of making the answer either not at all impressive or far less impressive than they otherwise would be.

From this it may be concluded that a tribunal of fact, judge or jury is likely to attach less weight to evidence which comes as the result of leading: R v Wilson (1913) 9 Cr App R 124. Part of this rationale was described by the Full Court of Victoria in R v Thynne [1977] VR 98 at 103, where it said: The prohibition of leading questions in examination-in-chief is intended to prevent the examination from being conducted unfairly. There is a risk that a witness who is asked a leading question may assent to the suggestion made to him instead of answering from his own memory.

Thus, leading not only offends the rules, it is poor advocacy. Another practical reason for avoiding leading questions is simply, but

importantly, that the conduct of the examination will quickly degenerate into a boring, repetitive routine which [page 55] equally quickly will lose the attention of the tribunal of fact and hence the capacity to communicate (impart) the evidence. Your questions must always be intended to point the way, not to lead the witness by the nose, not only because the rules of evidence do not allow it, but, as Eyre CJ said as long ago as 1794 in R v Hardy (1794) 24 How St Tr 199 at 660: I think if you will examine the witness, so as that we may have his own answers, instead of echoing your words, it will have ten times more effect with the jury.

You will find that judges 200 years younger than Eyre CJ have the same view. This does not mean you put the witness in the box, get his or her name and address and ask, ‘Tell us what happened in your own words’. Except for some professional witnesses — experts and police officers, who either learn their evidence by rote or read from a statement — a witness cannot ordinarily be allowed simply to ‘tell the story’, for two good reasons. First, he or she is almost certain to stray into irrelevancies. Secondly, he or she is equally likely to forget important details if asked merely to give an unassisted or unprompted narrative.

Exceptions to non-leading questions 4.9 There are numerous exceptions to the prohibition on leading during examination-in-chief (and re-examination). The main exceptions are: (1) A witness may be (and should be) led on the formal and introductory parts of his or her evidence. This is common sense, saves time and allows easy establishment of background detail.

(2) Leading is permitted to establish undisputed or non-contentious matters. This ordinarily requires the consent of your opponent, or an understanding of the precise extent of the agreement. Even so, there may be sound tactical reasons for not using leading questions to adduce non-contentious matters. (3) Matters already given in evidence by the witness may be led. This exception is very important and useful for techniques of presentation where problems occur, such as building from ‘fortresses’, piggy-backing and bringing the witness back to the issue. (4) Leading questions may be asked to direct a witness’ mind to a particular point or issue, such as the identification of a person or thing in court (R v Watson (1817) 2 Stark 116) or details of a letter or members of a partnership. (For the dangers in identification cases, see Davies and Cody v R (1937) 57 CLR 170; R v Domican (1992) 173 CLR 555.) (5) A question may be asked which is leading in form for the purpose of directing the attention of the witness to a particular topic, but such a question must not suggest the answer required. (6) Counsel is always entitled to lead a witness to a denial or to evidence in contradiction of another witness. The evidence to be denied may be put clearly and fully: Edmonds v Walter (1819) 3 Stark 7. [page 56] (7) Leading questions may be employed where it is desired to direct the witness’ mind to particular points which are vague in the testimony of that witness when given in response to non-leading questions: R v Hodgson (1924) 18 Cr App R 7; R v Duell [1984] Qd R 451 (CCA). (8) Leading questions have been allowed ‘to expedite trial without

injustice’ — sometimes to an extraordinary extent. In the bizarre case of Ex parte Bottomley [1909] 2 KB 14, a magistrate in a partheard case became ill. Each witness was recalled before a new bench, and his or her previous evidence read over in the form of a long leading question. This was approved on the above principle by Phillimore J, who said (at 22): … it will be for him to consider whether he thinks it desirable that some particular witness should be called and examined in some particular manner; whether the reading of the cross-examination of any particular witness should be postponed till after his examination is taken viva voce; or whether the whole or any part of the evidence of any particular witness should be taken orally de novo.

This confirms a very broad judicial discretion as to leading; see Bryne and Heydon, Cross on Evidence, [17145]: Probably witnesses who are frightened, ignorant, very young, mentally feeble, or not fluent in English may more readily be led than others. Wigmore stated a wider exception: ‘Where the witness is unable without extraneous aid to revive his memory on the desired point — ie, where he understands what he is desired to speak about, but cannot recollect what he knows — here his recollection, being exhausted, may be aided by a question suggesting the answer. The trial judge’s discretion must be relied upon to prevent imposition’. (Wigmore V3 para 777)

There seems to be no leading case suggesting that the law goes so far, although the technique is often employed in practice, and this illustrates the width of the judge’s general discretion to control the form of questions. (9) A further exception more commonly met in practice is what has become known as the rule in Thynne’s case (see [4.8]) which arises from the decision of Sir Owen Dixon in R v Neal [1947] ALR (CN) 616. The thrust of the rule is that a judge may give limited leave to counsel to cross-examine a witness without declaring that witness hostile.

The rule against impeachment 4.10

There is a general rule that a party having called a witness may

not subsequently call other witnesses to discredit him or her. There is an even more fundamental rule that you may not cross-examine your own witness. The main argument for the existence of such a rule is that in calling a witness a party puts him or her forward as worthy of belief and should not be allowed to blow ‘hot and cold’ by reverting to impeachment if unsatisfactory evidence is given. Page Wood VC said: ‘no man calls a witness blindly, without knowing generally what will be the nature of his evidence’ (see Buckley v Cook (1854) 1 K & J 29 at 33). However, this does not always mean that a party cannot contradict the evidence given by such a [page 57] witness where it is unfavourable to the case. In the words of Littlewood J in Ewer v Ambrose (1825) 107 ER 910 at 912: It would be a great hardship if the rule were otherwise, for if a party had four witnesses upon whom he relied to prove his case, it would be very hard, that by calling first the one who happened to disprove it he should be deprived of the testimony of the other three.

As it sometimes happens, a witness not otherwise ‘adverse’, and certainly not hostile, may relate facts contrary to the interest of the party calling him or her. Evidence as to those facts may be led to contradict the witness, but the party who called will not be allowed to attack the witness’ credit as if an opponent had called them, nor will that party be allowed to cross-examine the witness (subject to the rule in Thynne’s case [4.8]): see Kabadanis v Panagiotou (1980) 30 ALR 374.

The rules against self-serving or prior consistent statements 4.11 These are generally inadmissible as evidence of the truth. They should not in any event be led from a witness. The reason is that this would allow witnesses to pull themselves up by their own bootstraps. There are narrow exceptions, dealt with in Chapter 5.

TECHNIQUES OF EXAMINATION Affidavits 4.12 Leading evidence from affidavits is necessarily limited to proof of the making of the affidavit, and a series of subsequent questions intended to disclose any alteration, amendment or correction. These must be in non-leading form but may direct the attention of the witness to a particular topic or paragraph the subject of the alteration amendment or correction. Should any part of the affidavit have been the subject of objection, it may, in a proper case and where leave has been obtained, be open to the examiner to revisit the area of evidence and obtain supplementary evidence from the witness by non-leading questions. Where the objection has been taken to an annexure or exhibit to the affidavit, the document annexed or exhibited will need to be proved by evidence from the witness making it admissible. This should be prepared in advance, as objections to affidavit evidence, including annexures, will have been notified prior to the hearing commencing. Should any new matter have arisen since the affidavit was sworn, that, too, may be led from the witness by way of explanation or addition. Otherwise the evidence-in-chief of the witness is confined to that contained in the affidavit and no examination-in-chief is permitted. [page 58]

Witness statements 4.13 It has become the practice in many courts to permit evidencein-chief to be by way of unsworn witness statements which have been ordered by the court and duly filed and served on the opposing parties in accordance with the rules. These are subject to broadly the

same rules and restrictions as affidavit evidence although they will need to be adopted as truth by the witness before being admitted into evidence.

EXAMINATION FROM PROOF 4.14 The first step in examination is that the evidence should be presented according to a logical plan derived from the case theory and according to a perceptible structure and sequence. It must not be an order which arises other than deliberately — certainly not by accident. The evidence must therefore be controlled by the question and answer format. The reason for this in the adversary system is explained in Byrne and Heydon, Cross on Evidence, [17145]: It may be noted that the evidence of witnesses in chief is elicited by means of questions and answers, not by the delivery of a speech. ‘The purpose of examination in chief is to enable the party who has called a witness to put his evidence before the court, the method adopted being that of oral questionand-answer. This is a characteristic feature of the English trial which is made essential by the exclusionary rules of evidence. If a witness were allowed to say what he wished, as in the continental practice, a rule such as the exclusion of hearsay would be impossible to operate. The question-and-answer method gives counsel control of what the witness says, which makes for order and relevance but places upon counsel a considerable responsibility to present the evidence in a fair and complete manner.’ (Hoffmann, The South African Law of Evidence, 2nd ed, 1970, p 311) The question-and-answer system has the drawback of upsetting witnesses by preventing them from telling their stories in their own way: it may tend to undermine their composure, their powers of memory and of convincing and clear narration. On the other hand a witness given free rein to his tongue may waste a lot of time in irrelevancies. And proper questioning may give a proper lift to the timid or forgetful, or a proper check to the biased.

The best sequences are either chronological or topical. While it is true that events usually unfold chronologically and a narrative is often best understood that way, there will be occasions where topical organisation is to be preferred. Either way it is generally better to keep the evidence of a particular circumstance together; for example, all eye-witnesses should be called one after the other. Another basic rule is to take advantage of undisputed or admitted

facts by adducing them early as part of a witness’ testimony in order to build from them: the appearance of a strong case at the outset; a sound basis for trusting the reliability and credibility of the witness; and an enhanced probability of disputed facts being resolved in your favour. Another rule of thumb is to arrange the sequence of proof so that the components of the case not only arise logically and sequentially from the order of the evidence, but so that each new fact is reinforced by those already proved. [page 59] For the tribunal to be most receptive to the narrative of evidence, it must be allowed to flow naturally. For that reason it is bad practice to interrupt a witness during a critical emotional or spontaneous passage of evidence in order to elicit some matter of unnecessary detail. It is either necessary to set the scene and then colour in the dramatic crucial events, or alternately set the dramatic scene and then go back to draw in the details — never mix the two, because to do so will destroy the rhythm and impetus of the unfolding events. In cases where circumstantial evidence is relied on or required to make good a case, it is a wise course to prove all of the component circumstances consecutively in order to maximise the impact of the united force of that evidence. That impact will be far less if the circumstances are scattered throughout the proceedings — it is much better to draw the strands together. As to giving evidence by a witness narrative, see the Uniform Evidence Acts 1995 s 29.

Manner Be polite but firm 4.15 Having concluded the opening speech you will have both gained attention and prepared the way for the introduction and reception of your evidence-in-chief. The method of confirming and of consolidating the opening depends on your technique of leading the first witness. As with all else in a court of law, your politeness and courtesy to the witnesses during examination-in-chief remains important and is an essential ‘technique’ of examination. The witness will also respond to the role model you provide, and is then likely to exhibit good manners correspondingly. Remain good-tempered 4.16 Politeness extends to being good-tempered with your witnesses. A calm, courteous demeanour is best in all cases; and you should bear in mind that witnesses are entitled to more consideration than they sometimes receive or perhaps even deserve. As witnesses are judged by their demeanour, so are counsel. If you never lose your temper and invariably treat all witnesses you examine with courtesy, you will obtain more favourable testimony than would be obtained in any other way. Of course, there are times when you may safely appear to depart from this general rule, but they are of comparatively rare occurrence, and almost never arise in evidence-in-chief. You will sometimes (more often than you imagine) receive an answer from a witness that will startle or shock you — the so-called ‘bombshell’. It is vital at such times that you show no emotion whatever. Do not allow your surprise to be reflected by your manner. Especially, do not lose your coolness and self-control. Any abnormal behaviour will operate as a signal to everyone in the court, especially the other side, that disaster has struck and that the wheels are falling off your case, if they were not already aware of it. It will instantly raise questions in the minds of

[page 60] the jurors about you or the witness or both — worst of all it will also be apparent to the witness and destroy his or her delicately balanced equilibrium. Always remember that giving evidence is likely to be new, foreign to and difficult for the witness. The ‘bombshell’ may mean no more than that he or she misunderstood the question. Do not throw the witness off balance, or lose your own. Ask yourself why he or she gave that answer. Determine if, when and how to rectify it. If you show no surprise or betray no displeasure, it may well be that your opponent will fail to see any importance in the answer, even if you do. It might be evident to you because of material available to you, which might not be available to the other party.

Remain in control 4.17 As well as remaining in control of yourself, you must obtain and retain control over your witness. In examination, you are trying to draw out from the witness clearly and accurately all he or she can say that helps you and is relevant. Above all, his or her evidence must be clear. Your aim should be to act as a sort of ‘catalyst’ or prompt to bring the narrative out clearly. Remaining in control of the flow of proceedings involves deflecting the witness from irrelevancies and, at the same time, keeping the evidence admissible and headed in the right direction. A witness cannot be allowed simply to tell his or her story. The examination, skilfully conducted, creates the atmosphere of spontaneity and conviction. The witness should appear to be telling a story, not giving answers merely reactive to carefully prepared questions. There can be no doubt, especially in jury trials, that counsel who can appear to be conversing with a witness and obtain a living presentation of evidence, rather than appearing to interrogate, obtains enormous benefit. There are further problems in permitting a witness to proffer his or

her evidence unassisted — can you depend on yourself and the witness not to forget anything essential? Even if you are sure of yourself it will be an unusual witness whose recollection is clear and complete. Usually you will start off well, but soon have to intervene and jog the memory — at the end of the day you may be worse off than if you had begun by interrogation — any semblance of a naturally occurring conversation will have vanished, you will have upset the witness and given a poor impression to the jury. It is far safer to remain in control and guide the witness as unobtrusively as possible. There is, however, a middle course you can steer to gain the benefit of control and as well the benefit of spontaneity. For it you will need to choose your witness with care, but it can be very effective. Lead the witness to the central issue, taking care to use the techniques of ‘background’ and ‘orientation’ (see [4.26] and [4.25]) to shore up his or her confidence along the way, and then as the issue is approached ask, ‘Tell us about it in your own words’. Such a question should not be put in blank, but limited to a specific instance or area — for example, ‘Tell us in your own words what you saw at the moment of impact’ — and the way to it should be [page 61] prepared. If any difficulty arises it is then easy to go back to the technique of short, open-ended questions while still keeping the appearance of a narrative flow. The technique of directive questions can be used to control a witness who wants to run ahead in his or her evidence: Q — I know you are anxious to explain what happened when the man came out of the bank with the gun. I’ll come to that in a moment. Before I do, can I just bring you back to what he looked like. How tall was he?

Style

Examine from memory, not proof 4.18 As part of the ‘spontaneous conversation’ style, it is desirable to examine from memory; that is, without referring to the brief at all. Sir Edward Clarke KC, (The Story of My Life, p 439) said: One of the most useful pieces of advice I ever received was when Hawkins, quite early in my acquaintance with him, said ‘Never examine or cross-examine from your brief. Know your brief and examine from your head’.

This remains sound advice for any practitioner. It is essential in jury courts. The idea is, of course, not that you leave your brief in chambers and run the whole case on memory. Rather, it requires a sufficient intelligence and knowledge of the case for you to take one witness at a time through the evidence by speaking to the witness, rather than giving the appearance of having him or her repeat a catechism he or she has learned and which you are testing as you hold his or her proof up before you. The aim of the exercise is twofold at least, and is an exercise in control. It improves the appearance and therefore the impact of the evidence on judge and jury alike, keeping the attention of the court on the witness (where it should be) rather than on you. Additionally, it enables you to assess that impact as the evidence is given, by keeping an eye on the court, which you cannot do if you are reading from the proof of evidence. You will be able to pace the evidence, ensure anything not immediately clear to the jury is repeated, and that the significance of the evidence makes its mark. Moreover, you will be more flexible in how you obtain the evidence. If you take your questions from the proof, you will find it very difficult to depart from the order, or the terms, there set out. Witnesses don’t always divulge their account in the order and sequence revealed in the proof. By working from memory assisted by a brief synopsis, it is easier to adapt your questions to the way the evidence falls out. Let us say again: a trial, especially a criminal trial, is a set piece — experience and skill in staging and directing it will not only give you confidence, it will ultimately advance your case. It is easy to give this advice — but how do you do it? Experience

helps, but there are aids which you can use to good effect. First, you must know the brief: not in general, but in detail, and you must know what evidence you want from each witness. You should have this before you on the bar table in a one page synopsis, or checklist, by topic (one for each witness). You can glance down at this and mentally, although not overtly, ‘tick off’ each area as you cover it. The vital questions should [page 62] already have been prepared originally as part of the advice on evidence and finally in performance preparation. Although this topic has been subsumed under the general heading ‘Style’, its significance as a tool of advocacy in advancing the orderly and effective progress of the case is more substantial than that would suggest. A common, perhaps nearly universal, fault is that advocates insist on leading the proof rather than the witness. That this is so is demonstrated by the fact that one sees counsel, even very experienced counsel, continue to put a tick against the proof as each matter is dealt with in chief or respond when answers are completed with ‘yes’ or ‘OK’, sometimes quite unconsciously. This is poor advocacy indeed. It not only commits the faults described above, but where the witness does not ‘come up to proof’, that fact is immediately and embarrassingly obvious to all in the court. One suggestion is to prepare on no more than one sheet or at the end of the proof a checklist of the topics through which it is necessary to take the witness. At the end of the examination-in-chief, and not before, a cross check can be made to ensure you have omitted nothing. For this purpose there is no harm and probably a great deal of good if there is to be any more than a momentary pause in openly asking the judge, ‘Would your Honour pardon me for a moment while I make sure I’ve covered all the matters I wish to?’. Listen to the answers

4.19 Effective advocacy requires you to pay attention to the answers of all the witnesses. The attention of the jury will often be focused on you, so it is essential that you not only appear interested and receptive to the witness’ answers, but are in fact interested. Maintain eye contact with the witness and indicate that interest by appropriate body language, such as by nodding. You can hardly expect the jury to respond if you don’t or are too busy checking the evidence against the proof to do so. The essence of this recommendation is management and proof. The question might lead to a portion of evidence you have obtained from this very witness a dozen times in conference. If, however, in the stress of the moment the witness does not give it from the witness box, you will only know if you are listening. Concentrating on the next question, and ignoring the answer, you move on, and the evidence is never given. Listening to the witness and the answers, you observe the failure and use one of the many techniques available to obtain the evidence you both want and need. It is the answers, not the questions, that are the evidence. Also, being interested carries over to, and infects, the witness. It helps eliminate the assumption that the examination-in-chief is a purely formal exercise.

Lead like a layperson 4.20 This is in one sense an aspect of control but in another it is one of communication. Too often lawyers lapse into ‘legalese’ and jargon. This tendency must be constantly checked and corrected. The tribunal, judge or jury is a first time hearer of the evidence. The simpler and clearer the language used, the greater [page 63] the likelihood of reception and retention. The clearer and simpler the language and construct of the question, the more likely the witness

will give a clear and responsive answer. The less technical the language, the more likely the witness is to use his or her own terms rather than pick up on yours. The clear, precise framing of unambiguous questions requires a sound knowledge of grammar as well as of vocabulary. Indeed, for the advocate generally, a picturesque vocabulary is more desirable than one that is extensive. It is easier for a jury to understand a phrase such as ‘learning acquired late in life’ than ‘opsimathy’; but they may well be amused and persuaded by an allusion: ‘You can’t put an old head on young shoulders’. Simple, clear language is the vehicle for persuasion, enhanced occasionally by the picturesque; for example: ‘To me that argument is like the lagoon at Venice — bright, colourful, at times even dazzling, wide to the horizons in its breadth, but a few feet deep; while the fundamental principle lies full fathom five — damage is damage’ (Cross J in Challinor v Douglas [1983] 2 NSWLR 405 at 408). Another similar fault is that we tend to pick up and use the jargon of expert, forensic or police witnesses. We must resist the habit of conducting an esoteric conversation with the witness which excludes the tribunal of fact. The way to deal with this is to plan in advance, perhaps by choosing an equivalent lay word for any technical or ‘in-house’ expression likely to crop up during a trial. This will both ensure uniformity of understanding and with juries in a jury trial give them more empathy with you — because it is more likely that you will be ‘speaking their language’ or at least speaking at their level.

Form One question, one idea, one sentence 4.21 In the cross-examination of the Tichborne claimant (Regina v Castro [1873–74] LR 9 QB 350) at one point the Solicitor-General asked, ‘What is your notion of mathematics? What do you mean by mathematics? You say you learnt them. What did you learn?’. One

might have expected an objection: ‘Which of those questions does my learned friend want answered?’. Although the form will be different, your examination-in-chief should always bear the hallmark characteristic of one question at a time. Giving the ‘right’ cue involves more than asking a question about the right topic. It involves asking a single, clear and unambiguous question. Clarity of phraseology is the most important part of the interrogation. Asking an ambiguous question invites disaster — a vague or confused question will certainly confuse someone. In a court there are a large number of individuals who will hear and consider your question and respond to it; the witness, the judge, perhaps the jurors and your opponent — up to 15 in all. Even if your question is clear and precise there is a risk of misunderstanding. If the question is ambiguous, misunderstanding is certain. If the judge misunderstands, he or she may draw it to your attention and embarrass you. If the jury misunderstands, it may damage your case. If the witness misunderstands, the answer may ruin your case. If your opponent sees the ambiguity where you do not, he or she may seize on it and turn it against you. [page 64] If you deal with one point only in each question the risk diminishes and you will find the confidence of the witness grows. Simple language should be used to express ideas and to frame questions, and any document, object or plan shown to the witness should be clearly identified, either by date, description of exhibit, or MFI (marked for identification) number. You must leave no room for misunderstanding. Avoid negative questions 4.22 Negative questions are the product of a bygone age. Worse,

they are simply bad English. Lubet, Modern Trial Advocacy, pp 42–3, notes: For reasons unknown and unknowable, many lawyers think that it makes them sound more professional when they phrase questions in the negative: QUESTION: Did you then not go to the telephone? No advocate, judge, juror, witness, English teacher, or speaker of our common language can possibly understand the meaning of that question. Even harder to understand are the two potential answers. What would ‘yes’ mean? ‘Yes, I did not then go to the telephone?’ Or, ‘Yes, I did.’ What would ‘no’ mean? ‘No, I did then go to the telephone?’ Or, ‘No, I didn’t’.

Furthermore, on direct examination your goal typically is to establish an affirmative case. It is therefore beneficial to phrase your questions so that your witnesses can answer them affirmatively. Do not use negative questions. Pace 4.23 The speed of an examination-in-chief depends upon two factors. The first is the extent to which you and your opponent have been able, by talking to each other before you begin, to limit the issues and contentious areas, and so expand the area of permissible leading. Complaint is often made by judges that examinations are too long and too formal, especially in areas that are not really in dispute. The case concept approach advocated in this book proceeds on the assumption that all cases are ultimately reducible to relatively few central issues, and that the more quickly you can get to those issues the better. Informal agreements between counsel prior to proceedings beginning help this process and all benefit — the client, for costs are lower; the jury, as they are free to go about their business sooner; and the administration of justice. You will also benefit. No solicitor, or client for that matter, likes time-wasting and expensive counsel, and if he or she can get the same job (or probably a better job) done in half the time he or she will. On the other hand, do not be overly hurried because you will either omit something outright, or deal with an important topic too sparingly. You must be satisfied when you resume your seat that you

have on the record the evidence that you set out to obtain. You will also recall from interviewing the witness how often one proposition in the synopsis took half a dozen (leading) questions and two or three explanations to produce. Now you must elicit the same proposition, this time without leading. You have an advantage here: you know the answers — use them to frame the questions. Do not be rushed. If you fail to obtain what you want, do not panic. Try again — but remember, do not be rushed. Try to keep an even pace, and continuity in your questioning. [page 65] Recent experience has shown that where transcript is audiorecorded, problems arise with the speed of examination. Wells, in Evidence and Advocacy, p 136, summarised the problems: Because there are no court reporters using typewriters or shorthand (written or machine), counsel tend to speak more quickly and think less. Witnesses, as a result, tend to hear and understand less. The question and answer technique then degenerates into a quick-fire comedian routine, which looks asinine in print and leaves the judge (and jury) in a state of bewilderment and frustration. Once again, counsel should discipline themselves to speak at no more than a moderate speed, to formulate their questions in a manner that does credit to their professional skill, and to remember that they and the witnesses are talking, not to a machine, but to human beings who are trying, sometimes desperately to follow them.

Content Settle the witness down 4.24 Gaining the confidence of the witness is equally important; a confident witness is a good witness. To impart confidence to each witness requires time as well as example. The older texts suggest that with a ‘timid’ or ‘difficult’ witness, counsel ought not to go straight to the heart of the case, but rather delve into a few unimportant areas. Unless you are particularly gifted you will find that witnesses are considerably harder to classify than the nineteenth century writers suggest and it is a better course to assume that every witness (except

perhaps professional experts and police officers who are trained to give evidence confidently) needs some time to settle down. Further, judges are not terribly keen to have valuable court time wasted by irrelevant and unimportant questioning about the witness’ personal history solely for the purposes of forensic advantage. In any case, there are always some questions which can properly be put as introductory matters. This will afford an opportunity to settle, and in any event it is good tactical sense to approach the matter at issue gradually rather than plunge in. The best course is to begin by taking the witness by preliminary questions to the surrounding circumstances. This has the advantage of not exhausting judicial good humour too quickly, and additionally places before the jury evidence relevant to the issue. At the same time, it takes the witness back to the events about which he or she is about to give evidence. This in particular is an area where you must not allow yourself to be hurried. Only go to the matter at issue when you are fully confident that the witness is settled and ready. Orientation 4.25 It is important to let the tribunal know early what it is the witness will say. In a long case this may be done by a short statement immediately after calling the witness and before he or she reaches the witness box: Your Honour may recall from the opening that this witness ‘saw the getaway car’ or ‘was on the other side of the road when the accident happened’.

However, be careful that anything said is utterly non-contentious and cannot possibly lead to any objection. [page 66] In some cases, the same object may be achieved by bringing the witness immediately to the point and then going back to fill in the detail. For example:

Q — Constable, on the 5th day of June 1994, you attended at the scene of a bank robbery at … A — I did. Q — You went inside the bank and later prepared a plan of the interior. A — That’s correct. Q — Before I take you to the plan, I want to deal now with your qualifications and experience. You are a police officer in the Forensic Examination Unit? (etc)

Once again, this will be done only where what is being asked is not contentious and therefore capable of being led for that reason. This technique means everybody is immediately aware of the nature of the witness’ evidence, rather than being left to wonder how the witness fits into the total picture, whereas in other cases it might be more effective to set the scene and then unfold the action. Remember that while a judge may have a note of the opening it is unlikely that a jury will have, and they may not remember this particular witness from the opening, if identified in the opening at all. Witness’ background 4.26 Any tribunal of fact, judge or jury, is interested in having some material about the background of a witness, for simply human reasons, and because that information will provide some basis for assessing credibility. Some background evidence should be adduced from every witness in order to present the witness to the tribunal as a real person and not merely as a device for presenting part of the narrative, as well as for the purpose of settling the witness. It is something which should be developed in greater detail where the witness is more important to the case. This has two benefits — it helps focus attention on the witness rather than the examiner, and it enables the tribunal to appreciate the witness as a person with some experience of life, thus encouraging acceptance of the evidence. Of course, there may be dangers in too much detail both as a matter of tactics and of substance. The former will be determined by keeping a close eye on the tribunal, and the latter by delving into background particulars of the witness during a pre-trial conference.

Defensive examination 4.27 It frequently occurs that you are obliged to call a witness who has relevant previous convictions or the like. This presents a serious tactical difficulty: do you bring this out yourself in examination-inchief or leave it to the cross-examiner to raise it? It may be said that strictly the rules of evidence do not necessarily permit such evidence to be led; but it would be rare for your opponent to be so tactically naive as to object to material to the discredit of one of your witnesses, and it would be hypocritical for your opponent to object when proposing to raise it in cross-examination. Opinion as to the soundest tactical course is sharply divided. One school of thought is that it is far better to expose the adverse material and provide the explanation in chief, as it can be dealt with in a sympathetic manner and has the effect of ‘defusing’ any attempt at cross-examination on the topic. Munkman is of this school, and gives the example of the Mr A case in which Sir John Simon KC (later [page 67] Viscount Simon) was in the awkward position of having to call a convicted man as the main witness for the defence. This is how he endeavoured to discount the fact: I am sorry to have to ask you, Mr Newton, but I had better ask it here. Q — Have you been convicted of forgery? — Yes, I have, Sir John … Q — In the year 1907? — I suppose that would be the year. Q — And you served a sentence in respect of it? — I did, yes.

Notice the sympathetic atmosphere created, and the inference conveyed in the sentence ‘having been served’ that it was a matter of irrelevant history by then. The other, and it may be the wiser approach to the problem, favours silence wherever possible. It is possible that your opponent may overlook or even be unaware of the discrediting material. Moreover, it offends the precept that you should confine your examination to the

issues. Evidence such as this which goes to credit is not a matter for evidence-in-chief. Additionally, an explanation offered in chief may itself provide unintended ammunition for cross-examination, and there is a strong possibility that the explanation when repeated in cross-examination will differ from that given in chief. The former option also presents the occasion for the damaging evidence to be repeated twice, once in chief and again in cross-examination, perhaps then reinforcing the damage as opposed to defusing it. Finally, but by no means least, if the explanation is good, or the convictions old enough, then you will have an opportunity to re-examine and correct the wrong impression for which you may well find the jury more sympathetic. If you determine that you must bring out the bad, there are two techniques which will help to minimise the deleterious impact. The first is to lead positive material about the witness first, or as is sometimes said, let the tribunal ‘make friends’ (see ‘Witness’ background’ at [4.26]) with the witness, before the damaging material is elicited. Second, lead those facts in the middle of the witness’ evidence, not at the beginning or end, for it is the evidence at the beginning and at the end which has most impact and is best remembered. The difficult question of whether to elicit this material should largely have been answered by the case analysis. In the end result the decision depends on the likelihood of your opponent exploiting it in cross-examination. Conversations 4.28 Introducing evidence of conversations is often regarded as requiring particular skill and care. If the basic rules are observed it should not do so; here the temptation to lead is at its peak. In all cases the basis for admissibility of the conversation should be laid; namely, when, where and who. That is, after establishing the witness was in a position to hear the conversation, ask: When did the conversation occur?

Where did it take place? Who was present? The answers to these questions will determine admissibility. The conversation can then be led in terms. [page 68] Very often lay witnesses are prone to relate conversations in summary form, rather than sequentially in the first person, as is required in a court. Initially, the witness performance preparation should have anticipated and resolved the problem. It won’t always do so. If a reminder of the requirements of correctly giving evidence becomes necessary, you might ask: Q — Would you please tell the court what was said, using the actual words, as best you can, what he said, and then what you said.

You will then lead the conversation one exchange at a time. If the witness is unable to comply, or lapses after a time into summary, ask the witness to give the substance of the words to the best of his or her recollection. If that does not work try: Q — Would you tell the court as best you can what was said.

You may then try to piece it together by proceeding as follows: Q — You have just told the court that X was said. Who said that? Q — Was anything said in reply? Q — Who said that? Q — Was that said before or after X was said?

Sometimes a witness will irritatingly overlook or omit a material part of a conversation. This presents its own special problems. The one certain rule is, never ask: Q — Was anything else said?

despite the overbearing temptation to do so. In the first place it is a leading question, but an astute opposing counsel is likely to let it go, as the answer is almost certain to be a fatal: A — No.

The better technique is to return the witness to the beginning and, by seeking repetition of the conversation to the critical point, attempt to make the connection with the omitted portion. Another approach is to ask: Q — Now you have told the court that the plaintiff said ‘X’. A — Yes.

and then proceed to ask questions designed to prompt the desired response: Q — Who spoke next? Q — What did they say? Q — What was the plaintiff’s response? Q — What did Mr Y say after that was said?

Avoid yes or no answers 4.29 We have already pointed out that questions which invite a ‘yes’ or ‘no’ answer ([4.7]) are likely to provoke an objection whether or not they are leading. They are therefore best avoided altogether. There is the additional reason that the ‘yes’ or ‘no’ answer also has the capacity to be seen as one in which there is an uncomfortable degree of suggestion in the examination. [page 69] Open well, close well 4.30 A tribunal of fact is most receptive at the beginning and most likely to remember the end of any examination; the same is as true of the examination as the cross-examination. The Americans call this ‘the

rule of primacy and recency’. Indeed, a tribunal of fact is likely to have formed preliminary views about a witness before any evidence is given, from mere appearance and mannerisms, which it begins to observe as the witness walks from the courtroom door to the witness box. A good, strong, memorable beginning is therefore one which immediately establishes reliability and rapport (background), identifies the witness’ place in the case (orientation) or elicits early the critical information and then provides supporting detail. Similarly, a noteworthy conclusion might emphasise the critical aspects of the witness’ evidence (see ‘Repeating the evidence’ at [4.32]). Both the strong beginning and the strong finish must fit the overall case strategy and the narrative flow of the evidence. The examination should always be structured to have a connected beginning, middle and end.

Communication The communication triangle 4.31 It is a regrettable habit of the legal profession that in the process of eliciting the evidence-in-chief a closed or exclusive line of communication develops between the questioner and the witness. By this we mean that the examiner is so intent on asking the question, and the witness so determined to answer, that in the process both forget that there is a judge and/or a jury in the courtroom. This arises because counsel is too intent on leading the proof rather than the witness (see ‘Techniques of examination’ [4.12]) and because the witness naturally tends to look and turn towards the person questioning them. The result is that the flow of communication is between advocate and witness to the exclusion of the ‘consumer’ of the evidence. This is bad advocacy, results in very poor communication and must therefore be corrected at all costs. The essence of the art of advocacy is persuasion; on this example if there is

no communication with the consumer — the judge/jury — there is no capacity for persuasion. The first place for overcoming this is at the pre-trial witness preparation stage and in your own performance preparation. You will both acknowledge the problem, and resolve to avoid it. Once in court, the advocate will attend to the techniques outlined above, and the witness will hopefully remember your advice to look away from you and engage the attention of the judge and/or jury at appropriate times when giving answers, especially when the more important evidence is unfolding. But witnesses will tend to forget such advice and lapse into fixing their attention upon you once again. This can be rectified by asking questions beginning: Q — Tell his Honour … Q — Tell the members of the jury. Q — Could you show the jury/judge.

[page 70] If this does not work, or does not endure for very long, your own movements might help to reinforce the desire on your part for the witness to re-engage the attention of the tribunal. As you ask, ‘Tell his Honour, etc’ you might at the same time look towards him or the jury and you might then, or later if that does not instantly succeed, actually turn, motion or gesture towards the judge or jury to reinforce the point at the same time as you ask the question. In an extreme case it is possible for counsel to use the technique of actually turning away from the witness so that eye contact between them is broken. The witness must then seek somewhere else to look. Since there are not too many alternatives, chances are that the witness will then seize upon the judge or jury and make (and maintain) eye contact in that more communicating direction. Above all, whatever means are used, it is imperative that the

advocate ensures that the witness’ focus is upon the tribunal, for it is the tribunal that must be persuaded, not the questioner. You need only enter the public gallery of any court to see exactly how the failure to do this operates as a major barrier to effectively conducting evidence-in-chief. Before long you will assuredly see what amounts to a private conversation taking place between examining counsel and the unsuspecting victim in the witness box. Worse, to one side and completely forgotten, will be the judge and jury obviously feeling utterly left out. This ingrained habit is regrettably very common. This is probably because it goes largely unrecognised in the profession generally. It must be eliminated because while it remains, regardless of the technical excellence of examination, it will be less effective than it could be. At all times the idea which must be at the forefront of the advocate’s mind is this: advocacy is the art of persuasion. In order to persuade, one must first be sure that the evidence produced is being received and understood; that is, communicated to the tribunal intended. Repeating the evidence 4.32 One sound method by which the message may be reinforced is repetition. As we shall see later, one near absolute command of crossexamination is that you should never allow the witness to repeat under cross-examination damaging evidence given in chief. This is because the more a tribunal hears evidence on a particular point, the more it is likely to accept it. As the Bellman says in ‘The Hunting of the Snark’: Just the place for a Snark I have said it twice; that alone should encourage the crew; Just the place for a Snark I have said it thrice — What I tell you three times is true.

Younger adds his voice in The Advocate’s Deskbook, p 298:

Never allow the witness to repeat on cross-examination what he said on direct examination. If the jurors hear the testimony once, they may or may not believe it. If they hear it twice, they will probably believe it. If they hear it three times, they will certainly believe it.

[page 71] It is for precisely this reason that the reverse is true when one conducts examination-in-chief. In all examinations of important witnesses there will be crucial stages. An example is when a witness actually identifies a defendant or accused in the courtroom as the offender. A most effective examination-in-chief might conclude: Q — Can I take you back to the moment when you indicated the defendant. Do you remember doing that before the morning tea break? A — Yes, of course I do. [At this point a powerful visual image of that very moment will again spring into the mind of the judge and the jury.] Q — Why were you so confident when doing that?

When employing this technique you must bear in mind that a bare question seeking only repetition, for repetition’s sake, may provoke a sound objection. The questioning must add something such as the confidence factor in the example given above. Exhibits 4.33 Exhibits, properly used, are an important aid to effective communication during evidence-in-chief. Not only are they received into evidence in documentary form or as ‘real’ evidence, and therefore available for consideration by judge or jury in a way different to the oral evidence, they can be triggers for vividly recreating the events to which they relate at the moment at which they were introduced into evidence. Maps or photographs can be part of the evidence describing or setting a scene and assisting to tell a story or paint a picture. Properly used they can add to the tribunal’s understanding of the evidence, the

witness’ position in the events, or even add emotional impact otherwise difficult to obtain through oral evidence. Remember, a picture is worth a thousand words — but only if it is seen. When a photograph or a plan is introduced through a witness to the events or places which it depicts, it is essential that the tribunal of fact sees it, and hears the witness’ description at the same time. To do this a number of steps are involved. The first is — do not approach. To do so is a serious tactical, procedural and evidentiary error. The spectacle of two or three counsel crossing the floor of the court to ‘climb into the witness box’ to have a private conversation with the witness adds nothing to the proceedings. There are penalties involved as are pointed out below. Your ‘intervening’ will distract the attention of the tribunal from the witness, and disrupt the flow of the evidence. What is being discussed is not immediately clear. It is virtually impossible to ensure an accurate transcript of what transpires between counsel and the witness huddled together in the witness box. Moreover, the clear flow of question and answer is readily lost in discussion as you and the witness huddle over the document. You exclude the jury and in all probability the judge, from sharing immediately the revelations you are obtaining and wish to communicate to them. You will then at some later stage have to return to the bar table, taking the document with you, and ask for it to be shown to the jury. This will then happen without elaboration or explanation by the witness. All of those ‘penalties’ are inescapable if you approach the witness. If you keep to the [page 72] forefront of your mind that your aim is clarity and not confusion, you will see that approaching is counterproductive. Here again, allow plenty of time for unhurried examination. That being done you have the document returned to the witness and ask

your next question or questions. At this stage, you might also introduce copies for the court and/or the jury so that they may then understand precisely the evidence to follow. This carries with it the advantage that they are directly involved in every step: they see every mark on the document as it is made; they understand each of them instantly. Even where there is no jury it is as important for the judge to be involved in the evidence as it is given, and to understand it. The exhibits should not be allowed to impede the action. Sometimes they will be an adjunct to it. At others they will be explanatory. This is particularly so in the case of maps and plans. Where this is the case, extract the action first — then come back to introduce the exhibits and build up detail. Whichever is done, use the exhibits to enhance the examination-in-chief, and make sure the tribunal is involved. Where possible, a copy or copies should be provided for the judge or jury for marking by them. This is a rule of general application and one which is mandatory in some jurisdictions. Demonstrative evidence 4.34 By ‘demonstrative’ evidence I do not mean the kind of inadmissible reconstruction referred to in Kozul v R (1981) 147 CLR 221 at 228 and 242. In the context of communicative advocacy something far more important than mere legal technicalities of this kind is intended. It is often difficult for witnesses to explain adequately in so many words what they saw or heard, and yet it may come very naturally for them to show what happened. Accordingly, such questions as: Q — Could you show us how the person held the gun after coming out of the bank? Q — Could you stand up and show us how the defendant raised his arm above his head before hitting you as you have told us? Q — Would you mind repeating those words that you just related, adding the exact tone of voice used by the person?

This will set the scene and permit the witness to paint the same kind of picture that a photograph might, and like the photograph this will

be worth a thousand words. These occasions, when used correctly, will be among the most memorable in the trial, and correspondingly provide the opportunity for the most powerful and enduring communication. Such moments are inherently more likely to be retained by the tribunal and therefore more likely to influence the final decision-making process. As with all else, the case analysis will identify which topics are of crucial significance in the trial, and if these can be illuminated by admissible demonstrations, obviously so much the better. The pretrial witness and performance preparation will identify the best witness and the moment at which a demonstration may be introduced and the manner for most effective impact. [page 73]

HOW TO RECOGNISE A LEADING QUESTION 4.35 A leading question is a question that suggests the desired answer. It is often but quite wrongly suggested that where a question is asked to which the answer is ‘yes’ or ‘no’, that is an automatically conclusive test of whether it is leading. This is not so, for the question may be bringing to mind something already advanced in the evidence, may be general or non-specific in content or may deal with minor details or matters not really in dispute. Whilst it is true that a leading question can always be answered with yes or no, so can some non-leading questions. By contrast, a question capable of being answered in some other way than yes or no might clearly infringe the non-leading prohibition if it contains or suggests details not yet recounted by the witness. The possible answers to a question,

therefore, do not identify it as a leading question. A leading question is one that in essence puts the answer in the witness’ mouth. In the courtroom it is sometimes very difficult to determine whether a question is leading or not. There are questions which are plainly leading and those plainly non-leading. However, in the middle lies a grey area. Some questions might be either leading or non-leading in the sense that minds might reasonably differ. Such factors as tone of voice or even the view or mood of the judge may affect the ruling one way or the other. Another will be whether the objection comes at a highly contentious place in the evidence.

Avoiding leading questions 4.36 Because there is both a need and a desire to avoid using leading questions, even experienced advocates get into difficulty by being too oblique. You will find the ordinary run of witness will not understand what you are asking when your questions are either oversubtle or amount to no more than a general invitation to ‘tell the court what happened next’. The uses and limitations of the ‘general question’ are discussed at length earlier in this chapter. There is no doubt that a good witness who can respond to the general question by giving a clear narrative is of enormous value to your case. Equally there is no doubt that such a witness is very rarely met. You need to develop a facility to ask ‘direct’ questions; that is, questions which draw the witness’ attention to the precise matter about which you wish him or her to give evidence, but fall short of suggesting the answer. It is such questions which guide the witness without leading. The direct question 4.37 Morris, who coined this use of the phrase ‘direct question’, provides in The Technique of Litigation a clear example of what is meant by it, using the facts of a slipping case. The plaintiff fell leaving a lift, and sustained injury. Proving the fact of falling presented no difficulty in the passage that follows. The very proper, but too subtle, invitation to describe her fall was misunderstood or unavailing. Her case was

based on negligence. Negligence included the difference in floor levels and a fall in consequence. Her evidence had to establish this. Counsel had to avoid [page 74] suggestion. So the ‘direct question’ which focused her attention on the cause of the fall or on to the floor of the lift was the proper technique to employ. The relevant evidence ran: Q — And do you remember entering the lift? — No, I just remember falling on the floor. Q — Can you describe how you fell? — Well, I don’t know. I went across, flat down, I can’t describe it … Q — Flat across? — Yes, it was very sudden, I couldn’t describe it. Q — Yes, then what happened? Do you remember anything more? — I lay on the floor and thought to myself whether the lift goes up or down, I didn’t quite know, and then I heard footsteps.

This evidence was insufficient to connect the plaintiff’s fall with any negligence on the part of the defendant, and the plaintiff lost her case. It is suggested that when the plaintiff did not respond to the question, ‘Can you describe how you fell?’, counsel should have appreciated his dangerous position. Had he asked the direct question, ‘What made you fall?’, we doubt whether any witness would have failed to respond, ‘My foot caught against the floor of the lift’. It will require a very deft touch to be able to elicit what you want without telling the witness what to say. Often you will be able to ask, ‘Was anything said about such-and-such a point?’. This is the ‘direct’ question, very close to the ‘leading’ question, but sufficiently different to be permissible. The answer may be ‘yes’ or ‘no’, but that is meaningless and of itself contains no probative content without the next explanation: ‘What was said?’. From this example you can work out your own questions for special circumstances.

Short open questions 4.38 The primary aim of evidence-in-chief is to have the witness give the evidence which is persuasive. A sound means of achieving that result and of avoiding leading is to ask short, open questions that invite the witness to present a narrative. Such questions as, ‘What did you do?’, ‘Where did you go?’, ‘Tell the jury/court where you were?’ provide the witness with the maximum opportunity to respond, and ensure that it is the version of the witness, not the advocate, which is placed before the court. Directional or transitional questions 4.39 A transitional question signals to the court when an examination is about to move from one topic to the next. This enables the tribunal to follow the planned order of events and indicates to the witness the matter to which attention is about to be directed. Lubet, in Modern Trial Advocacy, p 34, provides clear guidance: You cannot use open questions to begin an examination, or to move from one area of the examination to another. To do so you would have to start with ‘when were you born’, and proceed to ask ‘what happened next’ in almost endless repetition. A better approach is to use directive and transitional questions. Directive questions, quite simply, direct the witness’ attention to the topic that you want to cover. Suppose that you want the witness to address the issue of damages. As: QUESTION: Were you in any pain after the accident?

[page 75] Having directed the witness’ attention, you can now revert to your short open questions: QUESTION: Please describe how you felt. QUESTION: Where else did you hurt? QUESTION: How has this affected your life? You may need to use more than one directive question during any particular line of testimony. To fill out the subject of damages, for example, you may need to ask additional questions such as, QUESTION: Do you currently suffer any physical disabilities?

Or, QUESTION: Did you ever have such pains before the accident?

This comprises summarising what has happened so far, and announcing what is to happen next. Six honest serving men 4.40 Until it becomes second nature to ask non-leading questions, the advocate can gain real help from remembering the old nursery rhyme in moments of difficulty: I keep six honest serving men They taught me all I knew Their names are What and Why and When And How and Where and Who. (Rudyard Kipling, The Elephant’s Child.)

It is a good rule of thumb to ask questions which begin with one of these six words, as such a question will almost always be regarded as non-leading, as long as it does not assume any unproven fact. Equally, avoid questions which begin, ‘Do you remember’, ‘Did you see’, ‘Did …?’. These always have the capacity to bring trouble for leading. Incremental questions 4.41 The answer to an open question such as ‘What did the person look like?’ might occasion either objection or a vague answer or both. One way of avoiding this problem without leading is to break the general question into its component parts — by a series of incremental questions to obtain the final description; for example: Q — What did you see? A — I saw a man run out of the bank with a bag. Q — Where were you when you saw him? A — On the other side of the road. Q — What distance was there between you? A — About from here to the wall of the court [distance agreed]. Q — What time was it?

A — About 2.30 pm. Q — And the weather? A — Overcast but fine. Q — What was he wearing? A — Overalls and a Balaklava. Q — How tall was he?

[page 76] A — Medium height. Q — What do you call medium height? A — 5′8″ or 9 [and so on].

If in the preparation stage you analyse what it is you ultimately want to extract, that will very often be a complex fact capable of being subdivided into short incremental components and hence questions. These will have more cumulative impact than a single question, because as each attribute emerges the more likely the tribunal is to make the identification sought. Piggy-backing questions 4.42 The rule against leading prohibits questions which assume unproven facts. Once a witness has given evidence of a fact, the fact may be included in a question and built upon for the next or later line of questioning. This is the technique of ‘piggy-backing’. To take the above example further: Q — When the person came out of the bank did he have anything with him? A — Yes. Q — What was that? A — A gun and a bag. Q — When he came out of the bank with the bag and the gun what did the gun look like? A — A small handgun. Q — What did he do with the handgun? A — Pointed the gun back towards the bank.

Q — When the gun was pointed back towards the bank could you hear anything? A — Yes. Q — What did you hear? A — He shouted but I could not hear the words.

WITNESSES IN TROUBLE 4.43

Witnesses may find themselves in trouble in these situations:

nervousness; losing one’s place; by omission.

Nervous witness 4.44 The nervous witness is a matter ordinarily identified in advance during witness preparation and dealt with accordingly. For most witnesses unable to contain early nervousness in the rarefied atmosphere of the courtroom the problem should be solved by more extensive use of the ‘background’, ‘orientation’ and ‘settling down’ techniques mentioned above. Sometimes these techniques will not overcome the tension the courtroom engenders. Once in the witness box, the witness will be most helped to settle if the advocate is calm, composed and relaxed. An appearance of confidence and reassurance is likely to be reflected in the witness. The worst thing you can do is to openly reveal [page 77] that you apprehend the witness is nervous by signs of irritation or illtempered frustration. In a rare case it may be necessary to deal with the problem more directly, as by: Q — Mr X, we understand that this is a difficult matter for you. Just take your time,

and tell His Honour [the question],

or Q — The court has already heard evidence which indicates you were present when your son was killed. We all understand this is a very emotional time for you. I wonder if you can just help us with this [the question].

One must always remember that judges are familiar with and not unsympathetic to a witness who is nervous not by reason of something to be feared, but because of the formality and unfamiliarity of the courtroom, or difficult issues which must be faced. It is always desirable to take a nervous witness at a deliberate, even leisurely pace, to enhance the air of calmness. Never hurry such a witness.

Losing the place 4.45 When a witness loses his or her place, the first technique is to retain the place in the narrative; that is, to remember the point which has been reached. The difficulty is that the witness, as much as counsel, must recall what has gone before to decide what is to come next. The best technique for overcoming this problem is to prevent it arising. You should be alert to help the witness by frequently summarising what has been the evidence to that stage at which difficulty arises. This summary need not be long and can be done by way of a short preamble to a question. A second technique to be used in tandem with the summary is that of indicating what is to come; that is, informing the witness of the area or topic to which counsel now wishes to turn. This is useful as a link between separate areas of evidence, after you have exhausted the witness’ recollection of one area. These techniques are discussed further under the concepts of ‘fortresses’ and ‘bracketing’ at [4.46].

Omission 4.46 Another common problem is that the witness forgets or omits some matter important to your case. The first rule when this occurs is,

as ever, do not panic and allow the omission to become apparent. How you handle this problem will depend on what has been forgotten — it may be a small detail or a whole transaction. Generally speaking, the more that has been left out, the easier is the solution. The technique of summarising the narrative already given in evidence by the witness and close in time to the portion omitted is the first step. If you are examining in a logical order, topic by topic, this should provide a portion of evidence to which you can then go and which you may use to ‘trigger’ the witness’ memory of what went before and has been omitted. If these techniques fail, and they sometimes will, you can do more by falling back on the technique suggested by Wrottesley as ‘efficacious’. It has the disadvantage [page 78] of also being tedious, and is: to make the witness repeat his or her account of the interview, or whatever it may be. It will not infrequently happen, as we have already observed, that he or she will remember and repeat the passage you require, and omit something else which he or she had previously stated. But this, of course, does not matter; your object has been achieved. If the story is a long one, you will be better to avoid inflicting this repetition of it until other expedients have been tried and exhausted. It may be added that a single word is often enough to suggest the whole sentence; if you have a quick wit, you may sometimes bring out the matter you want by so framing a question that it contains part of, or some other trigger for or connection with, the forgotten sentence. You ought never supply any omission or jog a witness’ memory by leading — if the matter is important, an attempt to lead will never survive your opponent’s objection; worse, the effect of leading on such a matter will render the answer you receive of little value and indeed may adversely affect your whole case. It will also become very

apparent that something important is missing. You are better to do without the evidence than to try to ‘slip in’ a leading question to obtain it. If what has been forgotten is part of a conversation, never ask the general question, ‘Was anything else said?’. If answered ‘No’, there are no avenues left for you to explore. This is a case for a direct nonleading question about the conversation and a summary of what has already been given, as explained at [4.28]. It is here that the general techniques of leading evidence (as explained at [4.12]) provide a basis for a more refined technique described by former Supreme Court of South Australia Justice Wells as ‘fortressing’ and ‘bracketing’. This is a more advanced form of what we have described earlier as ‘piggy-backing’. In Evidence and Advocacy, Wells explains his exceedingly useful theory thus (pp 135–6): In every witness’s proof, unless the circumstances are exceptional, there are clearly identifiable sections, incidents, or topics about which a witness is certain, and which he has no difficulty in recounting and is unlikely to depart from. I shall refer to these as ‘fortresses’. A fortress may be ‘internal’ because it forms part of the account the witness is being called to establish; or it may be ‘external’ because it is something quite foreign or collateral to that account. If a clear association exists between the external fortress and a relevant fact, the witness may be asked to testify about the fortress first, and to move from it to the fact with which it is associated in his mind. Thus a witness’s proof may read: ‘I remember that I first met Mr X on the Thursday evening before the long Easter weekend of 1975. I particularly remember the date because just before dinner I had cut the index finger of my right hand when opening a tin of stewed fruit; and, when I shook hands with Mr S, on being introduced later in the evening, my finger hurt badly. I went camping over the Easter weekend and was greatly inconvenienced by the injured hand.’ Examining counsel would ask about the injury and the camping first, and move from those to the date of the meeting. Examining counsel should, therefore, either after consultation with his instructing solicitor, if time permits, or by using his own judgment, identify and carefully note all fortresses in the witness’ proof. It is impossible to furnish an exhaustive list of the various species of fortresses. A fortress may appear as an unforgettable incident or conversation, a document, a piece of real evidence, or a plan. The distinguishing

[page 79]

feature of the fortress is that it may be used as a secure base from which to extend an examination backwards, forwards or sideways into surrounding areas of connected details or events. In particular, a fortress may be used in a technique that I have always referred to, in my own mind, as ‘bracketing’. This technique is especially useful if a witness breaks down in the middle of his testimony through nervousness, embarrassment, or other inhibiting cause. Counsel immediately without registering dismay, should drop the line of examination then being followed, and move straight to the next fortress. From there the witness may be led back to the point where he or she broke down, and the gap is closed. Bracketing is also useful where counsel is not sure whether the witness is capable of giving a straightforward account of certain events or transactions: counsel simply moves from one fortress to another, and conducts examining forays from each until the whole area of testimony has been covered. This may very well happen when counsel is forced to call a witness on very short notice who has not, or who has barely, been proofed by the instructing solicitor. Fortresses are handy to overcome ‘danger points’.

The talkative or run-away witness 4.47 The situation of the talkative or run-away witness occurs more frequently than those unfamiliar with courtroom contingencies might think. There are various causes. Some witnesses are simply born that way and constitutionally can’t help themselves, whereas others literally like the sound of their own voices. In other cases, garrulousness is the product of nervousness, with which I have just dealt. In any case it is necessary to ascertain the cause for the condition so that the appropriate cure might be applied to it. The cause will normally be diagnosed in a conference with the witness and the cure applied there to prepare the witness to check the in-built tendency to talk and embellish. Explaining the requirements of the rules of evidence and procedure might also act as a restraint. (See ‘Witness preparation’ at [4.3].) Once in court, there may, and with intractable personalities probably will be, lapses if not wholesale reversions to this bad trait. Even so, there are ways to deal with it. Initially, rigorous adherence to the ‘short question, one subject’ format will provide less opportunity to enlarge than more complex questions will. If the witness continues to offend, you might try some slightly more overt suggestions:

Q — In a few words tell us what you did then. Q — What was the very first, and only the very first, thing he said? Q — Precisely what was it he did just then? [etc.]

If these fail, you might then try some deft but discrete interruptions: Q — Just pause there, you said the witness said ‘X’. What was the response? Q — Just interrupting you at that point so that we may understand more clearly, could you go back to … and tell us exactly what happened.

If these remedies fail, you may need to be more blunt and overtly signal: put your hand up, and begin: Q — Could you please stop there, all this must be taken down by shorthand [be recorded]. Could you just slow down and try and answer one question at a time?

[page 80] In the end, a combination of these techniques will almost always succeed. If they do not, the judge is certain to intervene sooner or later, but by then it might be too late to restore the damage done. The over-helpful witness 4.48 The over-helpful witness is in many respects like the run-away or talkative witness, but wishes to assist your case so much that it becomes embarrassingly counterproductive. In such cases it is very necessary to keep tight control on the witness and, at the same time, strive for as much spontaneity in the delivery as can be achieved in the circumstances without surrendering control. Given that the witness is too favourable, it is best to limit the examination-in-chief to the bare minimum, by exploring only essential subjects (such as those necessary to establish a case to answer) and then only the necessary and not the fine detail. Cut the evidence right down to the bare essentials in both respects. Another device is to remain detached from the witness. Whereas normally the relationship would be one of friendly receptiveness, in these cases an exception to the general rule is called for. Keep your

distance, perhaps by — exceptionally — using the proof as a prop, or by attracting the attention of the witness to avoid him or her becoming over-familiar with the judge or jury. The argumentative, boorish, difficult or cantankerous witness 4.49 Some mitigation of the likely damage that the argumentative witness may cause should be tried at the performance preparation phase. This may include making a decision not to call the witness at all. This witness is dealt with best by displaying ‘icy calm, civility and formality’ (Wells, Evidence and Advocacy). Fortunately, such witnesses are relatively rare. When encountered they can only be accommodated by asking very short, very precise questions which give little scope for the display of bad manners or to the inclination to argue. There is no room here to try to preserve spontaneity or flow. If you are to obtain the evidence strict control is the best option. This is a witness, whom if you must call, you want to be as brief as possible — then turn the problem over to the cross-examiner and hope he or she has less luck or control than you do. Other unusual witnesses 4.50 There are many other categories of witness for whom special allowance must be made or special care taken. These include witnesses with intellectual difficulties, brain damaged plaintiffs, witnesses with physical impairments such as deafness, and sometimes children. Careful application and sensitive modification of the general rules will usually enable the desired evidence to be obtained. In such cases, the court should be informed, either in the opening or at the time the witness is called, of the relevant impairment so that any inappropriate response, or difficulty, will be appreciated by the tribunal for what it is, and not misunderstood. Very often a trained person will be available to remain present in the court when such disadvantaged witnesses take the stand. [page 81]

Objections to the witness’ evidence 4.51 One’s opponent may, from time to time, take objection to questions asked or to the witness’ capacity to give the evidence sought. Not infrequently the objection might be tactical — designed to throw the witness off the line of evidence. Whatever the reason for the objection, it may have the effect of disturbing, unsettling, distracting or even offending the witness. Objections when taken should be dealt with immediately. Often, whether they are good or not, it is easier and more settling for the witness if the question is rephrased immediately in a clearly unobjectionable way, or the question withdrawn and the witness taken back to an earlier part of the evidence and brought forward again in some other way. You might say, ‘To save time, I will rephrase the question, your Honour’ or, ‘With respect, the objection really is technical but in order to avoid any possible criticism I will withdraw the question and come at it another way’. By doing this you will instantly remove the procedural interruption and return to the real focus of the case — the witness. If your opponent persists with the line of objection, unless it is very soundly based, it will quickly become damaging to him or her rather than you. Your task is to keep the interest and attention of the tribunal squarely focused on the witness, and not allow the rhythm you have carefully constructed to be disturbed by irrelevancies or deliberate tactics designed purely to throw the witness off balance. Of course, you cannot overcome well-made substantial objections. But you can reduce the chances of a successful objection being made by sticking resolutely to the rules and techniques of examination-in-chief we have developed. When an objection is made that just might produce disruption at a critical point, defuse it immediately; don’t surrender the agenda to your opponent. Difficulties with the bench 4.52 From time to time you will be unfortunate enough to have to

deal with this issue. Wells, who speaks with authority, having been a Supreme Court judge, gave this advice in relation to this issue: Counsel may be unfortunate enough to appear before a judge or magistrate who shows an antipathy to a witness … unchecked it can have a disastrous effect on the witness. In such circumstances, counsel must exhibit oriental imperturbability, combined with respectful firmness. It is best to keep the examination moving; nothing tempts a judge or magistrate to intervene suo motu so much as long drawn-out pauses between questions. A direct confrontation with the bench should be regarded as absolutely the last resort. If it cannot be avoided, counsel must act courageously, but at all times politely, and if a witness is upset by an exchange between bench and bar it may be advisable to ask for a short adjournment. (Evidence and Advocacy, p 138)

Refreshing memory 4.53 During examination-in-chief a witness may refresh his or her recollection in the witness box by referring to a document, subject to a number of preconditions being satisfied. For each of these you will need to be prepared before proceeding to take the witness’ evidence in this way. [page 82] They are as follows: (1) The document must have been made contemporaneously with the events about which the witness is giving evidence. This definition provides ‘a measure of elasticity and should not be taken to confine witnesses to an over-short period’: R v Richardson [1971] 2 QB 484 at 489. (2) The document used to refresh recollection must have been made or verified by the witness; and the term may include a joint compilation and, semble, a tape recording: see R v Mills [1962] 3 All ER 298. (3) The document used to refresh memory must be produced to opposing counsel for inspection if requested. The document does not thereby become admissible, but in certain circumstances the

jury may be permitted to see it: Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458. (4) If the witness cannot swear to the facts to which evidence is directed except on the basis of believing it to be true because it is in the document, the original must be produced: Topham v McGregor (1844) 1 C & K 320; 174 ER 829. Where recollection is refreshed, see R v Baffigo [1957] VR 303. Generally, refreshing recollection means precisely that. The document is not to be merely read aloud as a substitute for the evidence of the witness: see Driscoll v R (1977) 137 CLR 517. For the position under the Uniform Evidence Acts, see s 32. The manner of bringing the witness to the point at which these preconditions are satisfied might be as follows: Q — After hanging up the telephone did you make a note of what was said between you and the person? A — Yes. Q — When did you make that note? A — About an hour and a quarter later. Q — Is there any reason why you didn’t do it any sooner? A — I had to dash over to the school to pick up the children. Q — Where did you make the notes? A — At home, in the quiet of the den. Q — When you made the notes were the terms of the phone call still first in your memory? A — They were, I couldn’t get it out of my mind. Q — How did you make these notes? A — In my diary, which I have kept. Q — Did the notes accurately record your recollection at the time? A — Yes. Q — Of course that was eighteen months ago now? A — You’re telling me. Q — Are you now able to recall (in accurate sequence and detail) what was said on the phone at that time? A — Not now, not after so long. Q — Are you able to produce those notes?

A — Yes, right here in my handbag. Q — Do you seek leave of the court to refer to those notes to refresh your memory as to what was said? A — Yes, I would like to look at my diary, yes.

[page 83] Hostile or adverse witness 4.54 Where witnesses are deliberately withholding material because they are unwilling to tell the truth or the whole truth, or they are unwilling to volunteer the information other than by leading questions, the remedy is to have them declared hostile or adverse, if the facts support such a ruling. Where the witness falls short of hostility in the legal sense, a limited right to cross-examine may be allowed. This is what has become known as the rule in Thynne’s case and arises from the decision of Sir Owen Dixon in R v Neal [1947] ALR (CN) 616. The thrust of the rule is that a judge may give limited leave to counsel to cross-examine a witness whom he or she had called, without declaring the witness hostile. The Full Court of the Supreme Court of Victoria (Young CJ, McInerney and Newton JJ), in a joint judgment in R v Thynne [1977] VR 98 at 101, approved that course: [This] should not be taken as authorising the cross-examination of a party’s own witness simply because the witness has strayed from his proof. The procedure adopted by Dixon J will generally be appropriate only where a witness is in effect adverse or hostile but the judge decides to allow limited cross-examination without the necessity of declaring that the witness is hostile.

The Victorian decision of R v Hunter [1956] VLR 31 considered what limits were appropriate to the cross-examination of a hostile witness and is said to be authority for the proposition that a hostile witness may not be cross-examined about his or her character, means of knowledge, memory and perception, or bias. It follows that the crossexamination must be confined to the inconsistent statements. The real effect is to permit the prior inconsistent statements to be proved. When is a witness hostile or adverse? This is a matter of judicial

discretion and judgment. A hostile witness has been described as one not desirous of telling the truth, and as ‘bearing a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the court’ (Buzzard, May and Howard, Phipson on Evidence, [464]). For the position under the Uniform Evidence Acts, see s 38. If such an order is made it allows you, by leading questions, to prove past statements by the witness inconsistent with his or her current testimony. In that circumstance, those previous statements are not evidence of the facts contained in them unless the truth is expressly adopted by the witness during evidence at the trial. When so proved, such matters may only be used to affect the credibility and reliability of the witness’ evidence.

MISCELLANEOUS WITNESSES Calling on a subpoena to produce 4.55 The method of calling on a subpoena, although simple, is often misunderstood or misapplied by the novice advocate. The rule is essentially the same for all courts and all jurisdictions and is described below. Supposing a subpoena has been issued to the Commissioner of Police to produce documents, the procedure is as follows: [page 84] Counsel: Call on subpoena duces tecum the Commissioner of Police. The officer producing the documents sought is brought into court. The examination continues (without the officer being sworn, and from the body of the court): Counsel: What is your full name? Witness: John Smith.

Counsel: Do you appear in answer to a subpoena directed to the Commissioner of Police to produce certain documents? Witness: Yes. Counsel: Do you produce the subpoena? Witness: Yes. Counsel: Do you produce documents in answer to the subpoena?

The witness will depose whether the whole or a part only of the documents sought are produced. If all documents sought are produced, they are then handed to the court attendant and taken into the custody of the court. If not, the witness should be sworn and examined as to what other material has not been produced which was sought in the subpoena. At the conclusion, the witness producing material should be excused, and if counsel seeks to see the documents an application for access by all counsel should be made to the court.

Good character witnesses 4.56 Evidence of good character of a party or an accused/defendant is admissible only under very strict limitations. Because of these limitations, when admitted it is vital that the examination be such that the character evidence remains strictly within permissible bounds. The rule is that character witnesses may only attest to general reputation: R v Rowton (1865) 169 ER 1497. It is not the witness’ personal view of the party which is admissible. So that the evidence to be led complies with these strictures it has long been the practice to allow leading questions in order to keep witnesses within them. The form which has evolved is along the following lines. Q — You know the defendant/accused/party? A — Yes. Q — For how long have you known him? A — Ten years. Q — And over that time have you come to know people who know him? A — I have, yes. Q — How many such people do you know who know him? A — Several dozen.

Q — And what is his reputation amongst these people? A — Very good. He is regarded as honest, reliable and a very decent person.

And if applicable where allowed in some jurisdictions: Q — And you know that the matters now before the court involve allegations of fraud/dishonesty/improper dealings against him? A — Yes I do, his solicitors have explained all that to me. Q — And would you say that these allegations are in character or out of character for him? A — Totally out of character. I was very surprised when I heard them.

For the position under the Uniform Evidence Acts 1995, see s 110. [page 85]

ELEMENTS OF EXAMINATION Plan and present a persuasive story logically according to the case theory. Witness preparation — conference, performance preparation. Tactical decisions — Who?, How many? In what order? Only non-leading questions: subject to exceptions and exclusions; recognise and avoid leading questions. Apply techniques: introduce and settle witnesses; manner; simple, single, positive questions in plain English; control flow, pace and content; style; form; content. Communicate: break down the barriers to persuasion; lead the witness not the proof; develop relationship between the witnesses and the tribunal;

repeat strengths; exploit demonstrative evidence. Identify leading questions. Avoid leading, and ask: direct questions; short, open questions; directional, transitional questions; when, what, why, where, how and who questions; incremental questions; piggy-back questions. Assisting witness out of trouble — be prepared for: the nervous witness; witnesses losing their place in the narrative; witnesses omitting important evidence; talkative or run-away witnesses; [page 86] over-helpful witnesses; difficult witnesses; interruptive objections; difficult judges; witnesses needing to refresh memory; adverse witnesses; subpoenas to produce; character witnesses.

[page 87]

5

CROSS-EXAMINATION Or assume that the witnesses summon’d in force In Exchequer, Queen’s Bench, Common Pleas, or Divorce Have perjured themselves as a matter of course said I to myself, said I.

Introduction Aims of cross-examination No cross-examination Constructive cross-examination Destructive cross-examination Case analysis and theory Affirmative cross-examination Repetition Omitted topic Misleading context Alternative explanations The curate’s egg Advancing case theory Legal framework Relevance Who may be cross-examined Minor exceptions The extent of cross-examination Collateral issues

5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 5.13 5.14 5.14 5.15 5.16 5.17 5.18

Unfair cross-examination Ethical restrictions Putting divergences in evidence to the witness General techniques Style Content Control

5.19 5.20 5.21 5.22 5.23–5.27 5.28–5.32 5.33–5.34

[page 88] Fields of destruction Challenge Hostility Prior inconsistent conduct Bad character, prior convictions and reputation Attacking the qualifications of an expert Particular techniques Introduction Confrontation or attack Probing Insinuation Undermining Leading on Creating an absurdity Closing the gates The deadly sins of cross-examination Rushing in Beating around the bush Big noting Looking for trouble Going for the jugular Going fishing

5.35 5.36–5.38 5.39–5.40 5.41 5.42 5.43 5.44 5.44 5.45 5.46 5.47 5.48 5.49 5.50 5.51 5.52 5.53 5.54 5.55 5.56 5.57 5.58

Dropping your guard Going over the top Worrying about the next question Going back for your hat Slanging the witness Jumping the gun Being willing to wound but afraid to strike Cross-examination on documents

5.59 5.60 5.61 5.62 5.63 5.64 5.65 5.66

[page 89]

INTRODUCTION 5.1 Chapter 4, on examination-in-chief, should have demonstrated that it is a misconception to think cases will be solely won or lost on the basis of a successful or effective cross-examination. It is certain that cases can be and have been lost by unnecessary, unplanned or undisciplined cross-examination. In fact, where examination-in-chief affords the best opportunity to win the case, cross-examination provides an unequalled opportunity to lose it. As a general rule, there must be a very good reason for asking each and every question. The way to decide whether to cross-examine at all is to isolate the reasons for asking each question, and weigh the likely gain against the risk. If there is any substantial risk, the better course is, almost always, don’t. Where there is any risk at all, be as brief as possible. The reason to challenge the evidence or the witness will have been demonstrated and exposed by the case analysis. The necessity of cross-examination will be revealed by testing that reason against the aims of cross-examination. The risk must then be weighed against the aim sought and the probable gain to be achieved.

AIMS OF CROSS-EXAMINATION 5.2 The aim of cross-examination is not the discovery of new facts or of truth. Neither is it for testing a rope of evidence inch by inch and strand by strand. Harris, in Hints on Advocacy, said: It should be borne in mind that the objects of cross-examination are three, the first positive, and the other two negative. They are to obtain evidence favourable to the client, to weaken evidence that has been given against your client, and finally, if

nothing of value which is favourable can be obtained, to weaken or destroy the value of the evidence by attacking the credibility of the witness.

Morris, in The Technique of Litigation, describes the objectives of cross-examination: Your objectives in cross-examination should be: (i)

To elicit facts favourable to your case.

(ii) To elicit facts which may be used to cross-examine other witnesses. (iii) To show that adverse evidence is unacceptable. (iv) To show that the witness himself is not worthy of credence. (v) To put your case to the witness so that it may be known and commented upon.

Munkman, in Techniques of Advocacy, refers to four specific aims: In greater detail, the aims of cross-examination are these: (i)

To destroy the material parts of the evidence-in-chief;

(ii) To weaken the evidence, where it cannot be destroyed; (iii) To elicit new evidence, helpful to the party cross-examining; and (iv) To undermine the witness (or shake his credit, as it is commonly expressed) by showing that he cannot be trusted to speak the truth, or that he is deposing (however honestly) to matters of which he has no real knowledge.

[page 90] Wrottesley, in Principles of Advocacy, says this: The objects of cross-examination are three in number. The first is to elicit something in your favour; the second is to weaken the force of what the witness has said against you; and the third is to show that from his present demeanour or from his past life he is unworthy of belief, and thus weaken or destroy the force of his testimony.

Ultimately, you will find that all the versions come down to this: first, so far as the witness being cross-examined is concerned, there are two principal aims only — extract any benefit you can and destroy, undermine or explain everything else; second, if you are defending, it is the first opportunity you have of getting the case for the defence before the tribunal — use it.

No cross-examination 5.3 In practical terms, the above considerations mean that before cross-examining, the advocate needs to be satisfied that the questions below can be answered positively. Cross-examination is inherently risky. You are dealing with an adverse witness. Such a witness is not only likely to be unhelpful, but also resistant to suggestion. Despite these obstacles, advocates almost invariably feel compelled, at the end of evidence-in-chief, to embrace the risk. Often, this is because one is reluctant to let the evidence of an opposing witness stand unchallenged. However, this view is often wrong. To ignore evidence minimises its impact. Cross-examination of a non-important witness calls attention to the evidence and is likely to lead to damaging repetition, and elevate the importance of the evidence in the eyes of the tribunal. Conversely, to respond to the witness with a dismissive ‘I have no questions for this witness’ can often have the effect of diminishing the importance of the evidence in the proceedings, by conveying the impression that it is either irrelevant or of no value. Wells, in Evidence and Advocacy, p 167, draws attention to the danger inherent in the myth of the case-winning cross-examination: Many, even most lawyers, think that unless a cross-examination leads to dramatic denunciation of a witness, or to comprehensive destruction of his credibility, it is practically worthless. Inexperienced practitioners are sometimes allowed — even encouraged — to share that view, and biographers of famous counsel who cite, exclusively, spectacularly successful cross-examinations conducted by their subjects tend to reinforce it.

As noted at the outset, many more cases are lost by such an attack, sometimes even if made good, than are ever won by it. The decision to cross-examine thus involves no mere determination that the witness is vulnerable to a credit attack, or to proof of prior inconsistency, or other weakness — it requires weighing the gain against any possible negative result. To determine whether or not to cross-examine, you must be thoroughly prepared, not only for the particular witness, but in

relation to every other witness, fact or document that may bear on that witness’ evidence. [page 91] Because of the risks, the question must always be: ‘Is my crossexamination really necessary?’. Before that question is answered ‘yes’, there must be matters, gaps or omissions that must be covered; the witness must have given some evidence which needs to be dealt with (see [5.4]); or there must be some realisable gain to be had. Even then, before proceeding to cross-examine, a further level of analysis is required along the following lines: (1) Are there other ways of proving the facts? (2) Can the information sought be obtained only by crossexamination of this witness? (3) Will the evidence to be elicited be credible or sufficiently probative to warrant the exercise? (4) How certain am I that I can compel the witness to agree? Younger, in The Advocate’s Deskbook, p 290, advised an even more rigorous approach: It seems to be part of the young lawyer’s personality that he is afraid to say, ‘No questions on cross-examination’. He thinks that his client will feel that he is not earning his fee, or that the judge will look down at him and say, ‘You are afraid. You can’t be a trial lawyer if you are afraid. You’ve got to do something’. Not at all. The mark of the master is to do as little as possible. The courage to stand up and say ‘No questions’, when there is nothing to be gained by cross-examination is the mark of supreme mastery.

To sum up, the first rule of cross-examination is: do not without very good reason. I repeat, many more cases are lost by crossexamination, particularly aggressive cross-examination, than are won by it. If you must cross-examine, be brief and, most importantly of all, be careful. In cross-examination as in much of trial advocacy, the defining principle is ‘less is more’.

Constructive cross-examination 5.4

The second rule is to build before destroying:

(1) Did the witness give evidence favourable to your case which needs to be repeated, reinforced or elaborated? (2) Is there some evidence favourable to your case which the witness can give additional to the evidence-in-chief? (3) Is there some document, material or evidence this witness can give which will reflect adversely on another witness for the opposing party? Again, the application of this rule must be attended by caution — do not cross-examine in the hope or expectation of positive material. Do so only if you are certain of its existence and equally sure of your ability to compel the witness to reveal it. Again, only ask for what you are sure of getting, and once you possess it do not try to improve on it. [page 92]

Destructive cross-examination 5.5 Before embarking upon what is intended to be a destructive cross-examination, you should consider the following questions: (1) Can the evidence be explained, qualified, repaired or minimised without cross-examination? (2) Can circumstances be demonstrated that undermine the evidence without cross-examination? (3) Can the evidence be doubted or discredited without crossexamination? (a) Are there inconsistencies between opponent’s case that can be exploited?

witnesses

in

the

(b) Are there internal inconsistencies within a single witness’

evidence? (c) Are there other objective facts or circumstances which cast doubt on the evidence? (d) Does the evidence have weight? (i)

Is the witness credible?

(ii) Is the witness’ veracity or demeanour such that the evidence will carry conviction? (e) Is the evidence reliable? (i)

Was there opportunity to see or hear, etc?

(ii) Recollection, reconstruction or recent invention. (f)

Are there other reasons to doubt the witness? (i)

prior inconsistent statements;

(ii) prior convictions or discreditable conduct; and/or (iii) interest, partiality or bias.

CASE ANALYSIS AND THEORY 5.6 When dealing with preparation and case analysis, it was suggested that case theory not only provides a ‘road map’ for the conduct of the entire proceedings; it also identifies the subject matter for cross-examination. The case analysis provides the content for the questions it has been decided to ask. It is counter-productive to cross-examine to destroy the credit of a witness if, later, one will do no more than suggest the evidence was mistaken, or where, on balance, the evidence is more helpful than not. The cross-examination should be thoughtful and structured. When you are on your feet and tempted to ask a question, the safest course is to adhere to the line of questioning which is prepared and flows from the case analysis. This is the technique which Lubet (Modern Trial Advocacy, pp 57–9) calls the ‘risk averse’

method of preparation, although it is really no more than a label for the application of the case theory to cross-examination: [page 93] Risk averse preparation for cross-examination begins with consideration of your anticipated final argument. What do you want to be able to say about this particular witness when you address the jury at the end of the case? How much of that information do you expect to be included in the direct examination? The balance is what you will need to cover on cross. Next, write out the portion of a final argument that you would devote to discussing the facts presented by this particular witness. This will at most serve as a draft for your actual closing, and you should limit this text to the facts contained in the witness’ testimony. You need not include the characterisations, inferences, arguments, comments and thematic references that will also be part of your real final argument. Depending upon the importance of the witness, the length of this argument segment can range from a short paragraph to a full page or more. An effective paragraph will include the facts that underlie your theory of the case. It should now be a simple matter to convert the text into a cross-examination plan. You merely need to take each sentence and rephrase it into a second-person question … This technique is useful for developing the content of your cross-examination. The organisation of the examination and the structure of your individual questions will depend upon additional analysis.

AFFIRMATIVE CROSS-EXAMINATION 5.7 It has always been said in the texts on advocacy (as the selections above indicate) that one of the main purposes of crossexamination is to elicit material favourable to your case, yet advocates continue to perceive cross-examination as exclusively attacking or confrontational. In truth, affirmative technique, while less spectacular than attack, is more readily achievable and much more frequently successful. It is necessary to closely examine whether a witness can be turned to advantage without the need to resort to destructive techniques. There are a number of alternatives which can be explored to

implement this often effective method, whether or not the witness is later to be attacked.

Repetition 5.8 Having counselled against repetition which reinforces rather than diminishes the evidence, an exception is where the evidence is to be deliberately reinforced by cross-examination because it significantly advances your case. Just as the examiner-in-chief might strengthen the force of evidence by repetition, so can the crossexaminer. It is therefore legitimate and permissible to ask a witness to confirm the critical passages of evidence. However, this is not done by rising and asking, ‘Would you please repeat what you said about X’. To do so invites disaster. The advocate must still control the witness and here especially ask only short, leading questions. Such a cross-examination might run (counsel being careful to use the precise words of the witness-in-chief): Q — You said, in your evidence-in-chief, ‘X’. A — Yes. Q — You also said ‘Y’. A — Yes.

[page 94] Q — That was true and correct? A — Yes.

In a trial heard many years ago before Justice Roma Mitchell (as she then was), a witness on the other side gave a surprisingly helpful and unexpected answer in evidence-in-chief. The cross-examination was as follows: Counsel: Mr Jones, did I understand you to say ‘X’? Her Honour: Mr Waye, you know perfectly well that is what the witness said. Counsel: Yes, your Honour, I just wanted to hear it again.

There was no further cross-examination, but no one in the case, for a moment after, ever forgot what ‘X’ was.

Omitted topic 5.9 Often a witness does not give evidence about a certain subject matter or event. This may be either for deliberate tactical reasons or because the witness was in trouble for one of a number of the reasons discussed above. The advocate must determine whether to cross-examine on the omitted material. Where the omission was anticipated, the case theory will have already made that determination. Where the omission is unexpected, a choice must be made, often quickly and in pressing circumstances. Generally, prudence would dictate that it be left alone on the sound basis that it is best to ‘let sleeping dogs lie’. But sometimes, other information available to the advocate, whether from evidence given, or expected from documents and/or instructions, may dictate a different course. The material must be sufficiently important to the case theory, and the answer likely to be favourable. For example, the charge is larceny of a purse belonging to the defendant’s secretary. She gave evidence that the defendant said to her shortly afterwards, ‘Good luck, I hope that you find the $300’. The Crown case was that this indicated a guilty mind, because the defendant’s statement relating to the stolen purse could only have come from the actual thief, since he knew the amount of money in the purse. It showed ‘esoteric knowledge’ of the precise amount taken. When interviewed by the police shortly afterwards, the secretary in fact told them (and a contemporaneous note was made) that the defendant said, ‘Good luck and I hope you find the money’. She was asked: Q — You spoke to the police within half an hour of your purse being stolen? A — I thought it was less than that. Q — They made a note in their notebook which you signed.

A — Correct. Q — In fact, you said then that the defendant said to you, ‘Good luck, I hope you find the money’. (Adapted from the case example of R v Canning, with the kind permission of the Australian Advocacy Institute.)

The answer does not matter because either it will be admitted, in which case you have achieved your purpose, or it will be denied, in which case you can [page 95] prove the statement by calling the police officer. This example of the omission of a very important piece of evidence illustrates a method of putting an alternative explanation.

Misleading context 5.10 The cross-examiner is entitled to explain ambiguities and to put evidence in its proper and complete context in much the same way as may be done in re-examination. Where evidence has been led of a fact, circumstance or event which is incomplete or which may mislead the tribunal of fact, effective cross-examination may involve completing the picture favourably to the cross-examiner’s case. This is better done by short, courteous propositions without challenging the witness, than by confrontation. A brief example illustrates the concept. In a domestic violence order case of alleged harassment, the witness has alleged that your client telephoned her on four occasions after the relationship broke down, despite her repeated requests that he not do so, and despite a solicitor’s letter directing him to stop on 6 June: Q — He in fact called you on four occasions only after 6 June? A — Yes. Q — The first of these was in relation to obtaining some toys belonging to his six-yearold son, which had been left at the house?

A — Yes. Q — You arranged their return? A — Yes. Q — Nothing else was spoken of? A — No. Q — The second time was to return your telephone call on [date]. A — Yes. Q — That related to your having lost your purse? A — Yes. Q — He called to tell you it was safe? A — Yes. Q — The third was to tell you after his aunt had died, the date and time of the funeral? A — Yes. Q — She had been a close friend of yours? A — Yes. Q — You thanked him for that call? A — Yes. [and so on]

Alternative explanations 5.11 There are occasions when a witness called by your opponent will give evidence as expected which is adverse, but who can, by affirmative questioning, be encouraged to give an entirely new emphasis or meaning. This will require a carefully structured series of short leading questions which gradually bring the witness to the desired point. [page 96] For example, the charge is murder. The defendant, who spoke Mandarin, relied on defences of lack of intent, accident and selfdefence. The defendant told an acquaintance shortly after the shooting, ‘I didn’t mean this to happen, I just lost control’.

It was the prosecution’s case theory that ‘I lost control’ meant he lost his self-control. The defence endeavoured to explain the admission by asserting that it applied to control over the gun. The cross-examination was: Q — The defendant told you that: ‘I didn’t mean this to happen, I just lost control’. Didn’t he? A — He did. Q — You took the first bit to mean he didn’t intend to shoot or to kill? A — If you put it that way I would have to agree. Q — In fact, you spoke to him about this in your first language, Mandarin? A — True. Q — And when he said to you in Mandarin, ‘I just lost control’ he related that to the gun? A — I agree with that; the connection with the gun is lost in the translation.

The curate’s egg 5.12 The evidence-in-chief will frequently be, like the curate’s egg, good in parts. Such evidence from a witness who may be crossexamined presents the advocate with a dilemma. In this area, if the bad portion has not been led in chief, no attempt should be made to elicit the helpful matter. The risk is usually too great. Where, however, the damaging evidence has come out in chief, the resolution of the difficult issue will depend on the benefit to be obtained — how good is the good part? If the benefit is not great, to bring it out is likely only to reinforce the credit of the witness overall, and so enhance the adverse matter. On the other hand, if there is substantial benefit to be obtained, or the evidence is essential to the case theory, one must take the good with the bad — or rather, the bad with the good.

Advancing case theory 5.13 It is good advocacy to disclose your case to the tribunal at the earliest opportunity, where your instructions permit this. This allows

the tribunal to begin to think along the lines you ultimately wish it to accept, and avoids any suggestion of recent invention. A witness will sometimes be called in your opponent’s case who will furnish the opportunity early on. You are, in any event, required to put so much of your case as touches the witness directly: see [5.21] and [5.65]. However, in this context, there may be witnesses whose evidence, while not wholly favourable, nonetheless supplies the foundation on which your case will be erected. For example, this frequently occurs in cases of homicide where the defence will later be intoxication, provocation or self-defence. At this stage, even a slight reference by the witness to one of those matters might provide the tactical opportunity to implant the foundation of your case in the tribunal’s mind. The disclosure of your case [page 97] through such a witness will require teasing out the positive facts by affirmative cross-examination. As well, positive support for your case from your opponent’s witnesses is often more telling, and has more impact with the tribunal of fact than evidence in your own case. In any event, it will provide corroboration for it.

LEGAL FRAMEWORK Relevance 5.14 Adversary systems, with the possible exception of the United States of America, only as a general rule provide that the scope of cross-examination is not confined to, or limited by, the subject matter of the evidence-in-chief. Even in the United States the modern trend is towards broadening the limits of cross-examination. It is a universal rule that credibility is always in issue, and in all jurisdictions cross-

examination as to credit is permitted. There remain, nevertheless, some restrictions on the breadth of cross-examination. As for evidence-in-chief, the first of these restrictions is relevance. All questioning must pass the fundamental test of relevance.

Who may be cross-examined 5.15 Prima facie any witness may be cross-examined by any party against whom he or she has testified, or, it may be, by any party to the proceedings other than the party calling him or her. There are, however, some exceptions to this general rule.

Minor exceptions 5.16 A person called for the sole purpose of producing documents and who is not examined on the issues cannot be cross-examined. A person called by mistake and not examined in chief may not be crossexamined. The authority for both these propositions is Wood v Mackinson (1840) 2 Mo & R 273; 174 ER 286, a decision of Coleridge J. It is to be noted that the judge drew a distinction between two types of mistake at ER 287: Here the learned counsel explains that there has been a mistake, which consists in this, that the witness is found not to be able to speak at all as to the transaction which was supposed to be within his knowledge. This is, I think, such a mistake as entitles the party calling the witness to withdraw him without his being subject to crossexamination. If, indeed, the witness had been able to give evidence of the transaction which he was called to prove, but the counsel had discovered that the witness, besides that transaction, knew other matters inconvenient to be disclosed, and therefore attempted to withdraw him. That would be a different case.

The latter exception now has statutory force: see Uniform Evidence Acts 1995.

The extent of cross-examination 5.17

Whereas generally a cross-examiner may use leading

questions, a party is not entitled as of right to ask leading questions of a witness where the party who [page 98] called the witness has the same interest as the cross-examiner. This is a discretionary matter, to be resolved by the trial judge: see Uniform Evidence Act 1995 (NSW) s 42(2). A witness who has been made available for cross-examination, but has given no evidence-in-chief, may not be cross-examined as to credit. This is known as the rule in Scott v Sampson (1882) 8 QBD 491, summarised by Scrutton LJ in Hobbs v Tinling & Co Ltd [1929] 2 KB 1 at 12, in the following terms: He might have put the plaintiff in the box for cross-examination, relying, in order to limit the cross-examination, on the rule in Scott v Sampson and the decision in Bracegirdle v Bailey (1859) 175 ER 842 that if the plaintiff said nothing you could not cross-examine him to credit, for there was nothing to credit or discredit.

The trial judge has a very wide common law and statutory discretion to stop cross-examination where it is excessively repetitive or irrelevant, or bullying or hectoring. In his speech in Mechanical and General Inventions Co Ltd v Austin and Austin Motor Co Ltd [1935] AC 346, Viscount Sankey said at 360: A protracted and irrelevant cross-examination not only adds to the cost of litigation, but is a waste of public time. Such a cross-examination becomes indefensible where it is conducted … without restraint and without the courtesy and consideration which a witness is entitled to expect in a court of law.

Collateral issues 5.18 Answers given by a witness to cross-examination about collateral fact are said to be final. This means that although they may be pursued by further questioning and may indeed be disbelieved by the fact-finder, they cannot be contradicted by the cross-examiner calling other evidence for that purpose. A witness may, of course, be

contradicted on matters relevant to the issue. What is or is not a collateral matter is often difficult to resolve, as Pollock CB said in Attorney-General v Hitchcock (1847) 1 Exch 91 at 99: … if the answer of a witness is a matter which you would be allowed your part to prove in evidence — if it have such a connection with the issue, that you would be allowed to give it in evidence — then it is a matter on which you may contradict him.

Younger distinguishes collateral from non-collateral matters by a more practical (and amusing) test. Referring to Attorney-General v Hitchcock (1847) 1 Exch 91, he says: You may not recall it because you may not have understood it. If you went back and read it today, you would not understand it; there is no meaning to it. The case is important only because it states what seems to be the prevailing rule with respect to the collateral/not collateral distinction: if the witness denies the prior inconsistent statement, the issue may or may not be collateral. Sometimes you may call another witness to prove the prior statement; sometimes you will not be able to do so. The real question is, when will it be collateral, and when will it not be collateral? The answer is simple: when it is important it is not collateral. When it is unimportant, it is collateral. Ten thousand cases add up to that.

The reasons for the rule are said to be the balance of convenience and reasons of time, otherwise endless collateral issues would be produced. [page 99] The strictness of the rule, and the hardship which it may cause, is demonstrated by the case of Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533, a running down case. One of the plaintiff’s witnesses said he had been at the scene of the accident while going to a bank to do some business for a Major Jarvie. The majority of the High Court ordered a new trial because the judge, wrongly, as it was held, permitted the bank manager to give evidence to the effect that no business was done on Major Jarvie’s account that day. The result is technically correct within Pollock CB’s test in Attorney-General v Hitchcock, above, for as Dixon J said at 553–4:

The accident occurred in Phillip Street, Sydney; a little north of the intersection of that street with Martin Place. Donellan said that he was, [sic] standing on the eastern side of Phillip Street close by with his back to a fence and had a good view of the occurrence. He lived in a building, of which he was a caretaker. There was nothing surprising or unusual in his standing there and he said that he ‘stood there pretty often in order to get a bit of sun when it comes out’. Doubt was cast, however, in the course of his crossexamination upon his account of the accident and it was suggested that he had not in fact witnessed it. He was asked what he was doing and he said that he was on a message for one Major Jarvie, he was going to or coming from a bank in Hunter Street where he cashed a cheque or paid one in for Major Jarvie. In the course of the case for the defendant evidence was tendered that Major Jarvie’s account at the bank disclosed neither a payment in nor a payment out nor any other transaction on the day of the accident. The evidence was objected to but admitted. The first question is whether the evidence was admissible. The evidence was tendered as relevant to the question whether Donellan was or was not present at the scene of the accident. The evidence proved no more than that, on the day of the accident, he had not paid money in or withdrawn money from Major Jarvie’s account. In itself, this fact has no natural tendency to show that Donellan was absent from the scene of the accident. All it does is to discredit the account he gave under cross-examination of his movements before the time of the accident. The tendency to discredit him may make the question of the admissibility of the evidence important, but it does not make the evidence admissible. If the evidence that no payment in or withdrawal from Major Jarvie’s account was made is admissible as tending to prove that Donellan was not a bystander when the accident took place, it must be admissible independently of Donellan’s account of his antecedent movements. But if Donellan had never given that account, no one would dream that evidence of such a fact was relevant or bore in any way on Donellan’s presence at or absence from the scene of the accident.

This is the corollary to the principle expressed by Scrutton LJ in Hobbs v Tinling (1929) 2 KB 1 at 29, that by destroying one piece of evidence (that Donellan had been to the bank) you do not thereby prove the opposite (that he was not in Phillip Street). The rule is, however, not absolute, and is subject to four clearly defined exceptions: (1) where the witness denies a previous inconsistent statement; (2) where the witness denies a previous conviction; (3) where the witness denies matters tending to show bias, interest or partiality; and (4) where the witness denies that his or her moral or physical qualities militate against him or her telling the truth (reputation).

[page 100] In each of these cases, evidence may be introduced to contradict the witness: see [5.39] below. To these four exceptions should perhaps be added a fifth. It can be argued that it is not an exception to the rule in Attorney-General v Hitchcock as it goes to the basis of the reception of the witness’ evidence; his or her capacity to testify. In Toohey v Metropolitan Police Commissioner [1965] AC 595, it was held that a witness could be called to testify that the physical or mental condition of a witness called by an opponent was such as to diminish or destroy his or her credibility. Exceptions apart, determining whether or not an issue is collateral involves a subjective assessment, depending on how close the fact is to the central issue(s) in the case, and whether or not it might seriously affect the outcome. As the Full Court of the Federal Court said in Natta v Canham (1992) 104 ALR 143 at 161, the rule is not absolute, the exceptions are not closed, and a trial judge is not precluded from allowing contradictory evidence if it is sufficiently relevant to the credit of the witness as it bears on the issues in the case: see now Uniform Evidence Acts 1995 ss 102 and 103.

Unfair cross-examination 5.19 Both at common law and under the various evidence statutes, a measure of protection is afforded witnesses from misleading, harassing, repetitive or other intimidatory or vexatious crossexamination. In order to ensure you do not infringe these rules, where there is any doubt, err on the side of caution. This will avoid embarrassing interruptions from the bench and indignant objection from your opponent. Either is likely to have a negative impact on the tribunal of fact. In those cases where you are required to press distasteful or potentially offensive questions which do not infringe the rules or your ethical obligations, do so directly, firmly, briefly and

courteously. Be consistent with the rule set out by Sir Alexander Cockburn LJC: ‘the arms which [you] wield are to be the arms of the warrior and not the assassin’. For example, in Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542, Hope JA advised (in a footnote to his judgment): The privilege of counsel to use in court language which would not be tolerated out of court is only justified when the ends of justice require it. The cases when it is justified are not common. It is not possible to make a list of them but they do not include cases where there is nothing more than the making by a witness of inconsistent statements. If they did, offensiveness would be the ordinary language of the cross-examiner. The primary obligation to ensure that the required restraint is observed is upon the cross-examiner. As Mr Teece observed in his Lau, and Conduct of the Legal Profession in New South Wales (2nd ed, p 70), counsel should not regard himself as entitled to harass a witness until he is pulled up. Perhaps the position was best put in the well-known statement by Viscount Sankey LC in Mechanical and General Inventions Co Ltd v Austin and Austin Motor Co Ltd [1935] AC 346 at 359, when he approved this statement in the judgment of Lord Hanworth MR in his judgment in the case in the Court of Appeal — ‘Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted in

[page 101] the hands of counsel in the confidence it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness.’ If the necessary restraint is not observed, counsel for the party who called the witness may object, but the right of the witness to protection against insulting or unnecessarily offensive language does not depend upon any such objection. If the occasion arises, the presiding judge has the power and the duty to protect the witness … The administration of justice and the respect for the courts of law would indeed suffer if the standards of conduct affirmed by Viscount Sankey were not insisted upon …

Ethical restrictions 5.20 There is a general duty imposed on practitioners in all countries which share a common law tradition, to conduct crossexamination within an ethical framework. Broadly, that framework includes a duty to not cross-examine so as to suggest serious

misconduct, criminality or fraud, unless the practitioner has both a proper and reasonable basis for the allegation and the suggestion if it goes to a fact in issue will, if accepted by the witness, materially diminish the witness’ credibility. This is what is referred to in America as the ‘good faith basis’. It requires the cross-examiner to be satisfied that the allegation is reasonably justified on the basis of the material already available and not merely introduced for any of the impermissible purposes identified at [5.19]. Rumour, mere allegation or pure speculation will not provide such a reasonable basis. In addition, cross-examination which is calculated to cause prejudice is improper. The decision of the High Court in Alister v R (1984) 154 CLR 404 provides a clear example of the sort of crossexamination which is improper. The applicants were convicted of conspiracy to murder and two of them were convicted of attempted murder of police officers effecting their arrest. The Crown case relied significantly on the evidence of an informer who alleged that the applicants were carrying out the aims of the Ananda Marga. In his judgment, Gibbs CJ said (at 416): The first of the applicants to give evidence … said that the oaths taken by persons joining Ananda Marga were to do good and not to do harm, and to keep certain secrets. He said also that he had no criminal record. In his cross-examination the following occurred without objection: Q — Your leader was gaoled in India was he? A — Yes. Q — When, early ‘70s? A — 1971. Q — He had been in custody for some considerable time? A — Yes. Before he was acquitted. Yes. Q — Of course, there were incidents of pressure brought to bear all over the world by members of the Ananda Marga? A — Yes. Q — There were acts of violence all over the world which were attributed to the Ananda Marga? A — There were some which were attempted to be attributed to Ananda Marga.

[page 102] Q — There have been acts in Australia which have attempted to be attributed to Ananda Marga? A — Yes. The two questions last mentioned should not have been put: they were no more than imputations of suspicion, based on hearsay. … It appears to me as at present advised, that … it is obvious that the greatest care must be exercised in controlling the admission of evidence of this kind, lest the accused be prejudiced by evidence of association or simply innuendo.

The Chief Justice went on to say (at 419) that the cross-examination went too far: In particular, it was wrong to ask questions to suggest that other members of Ananda Marga had committed crimes of violence … I should add that I do not consider that the cross-examination can be supported on the ground that the applicants had put their character in issue. If the cross-examination had not been relevant in the way I have mentioned, it would have been designed to show no more than that the applicant were the sort of men who would resort to violence because they belonged to an organisation which advocated violence; evidence to that effect would clearly have been inadmissible (see Cooper v R (1961) 105 CLR 177 at 184).

It is wrong for the advocate by the form or manner of the question to suggest to the witness the existence of facts or evidence which he or she does not possess, in a manner designed to compel a compliant response. For this reason, questions such as, ‘Do you know that?’, or ‘Would it surprise you to learn …?’ are impermissible, as each suggests that the lawyer is aware of facts for which he or she has no ‘good faith basis’ on which to contradict the witness’ version. The better way to deal with such matters is by a short propositional question which makes the bare assertion of fact. Such a question cannot be the subject of proper objection either as to content or as to form.

Putting divergences in evidence to the witness 5.21 There is a duty in most, if not all, jurisdictions (as to which the United States of America is the most notable exception) to put to a witness so much of your own case as concerns that witness. This is

sometimes wrongly referred to as the ‘duty to put your case’. It is in principle and in practice no more than an obligation of fairness to confront a witness with material divergences between his or her evidence and evidence you propose to call. The rule, commonly misunderstood and misapplied, is of general application, and owing to the general unavailability of the report is set out in full below. The rule derives from the speech of Lord Herschell LC in Browne v Dunn (1894) 6 R (HL) 67 at 70, and applies in both civil and criminal cases: Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that

[page 103] he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with the witness. Sometimes reflections have been made upon excessive cross-examination of witnesses and it has been complained of as undue; but it seems to me that a crossexamination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

It will be seen from this that the duty extends to confront the

witness also with material which reflects adversely on his or her conduct. There are, then, two limbs or aspects of the rule: to put in issue that which will not be accepted by you, and to put in issue that which will be contradicted. The first part of the rule in Browne v Dunn is expressed by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16: I remain of the opinion that, unless notice has already clearly, been given of the crossexaminer’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Both ensure the witness has an opportunity to admit, deny or otherwise answer the attack to be made and as well permit the judge or jury to assess the creditworthiness of the answer so made.

The cross-examiner is faced with demands of confronting the witness on material differences in the evidence and his or her case impeaching the witness, while at the same time closing the doors of adverse inference and comment. In a masterpiece of judicial understatement, Hunt J in the Supreme Court of New South Wales, when dealing with one of the relevant rules, observed: ‘Reliance upon the rules said to be enshrined in that decision often seems to be attended more with ignorance than with understanding’. Essentially, the cross-examiner must bear three things constantly in mind. First, there are the dual requirements of the so-called rule in Browne v Dunn itself. Secondly, the cross-examiner must have regard to the consequences of a failure to cross-examine in a substantive sense: see, for example, Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362. Finally, faced with the necessity of cross-examination, questions must be framed in such a way as will accord with his or her instructions. [page 104]

In Seymour v ABC (NSW (CA), 3 June 1977, Glass JA (with whom Reynolds JA agreed), unreported) it was stated: Since the rule is designed to prohibit the unfair conduct of trials, it is obvious that breaches of it may occur in many different circumstances and no uniform sanction can be laid down. Depending on the nature of the infraction, the remedy is essentially a matter in the discretion of the trial judge. In extreme cases, he may feel that it is proper to discharge the jury. More often than not, however, he will conclude that the abuse is adequately dealt with, as on this occasion, by instructing the jury that the offending counsel had engaged in unfair tactics and by authorising his opponent to turn this to his forensic advantage. On appeal, as happened in Browne v Dunn, the court will be inclined to disregard a submission on the evidence which was not tested, by putting questions to the party best able to deal with it: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370. But, in my opinion, it is going altogether too far to contend that evidence which would otherwise be relevant to a conclusion for which one party contends should be disregarded …

See also Allied Pastoral Holdings Pty Ltd v Commissioner for Taxation (Cth) [1983] 1 NSWLR 1 at 26. The dilemma for the cross-examiner can, then, only be resolved by the use of caution and close attention to the dictates of fairness. From the foregoing, one may see that the obligation on the crossexaminer is to confront a witness whenever it is to be asserted either that the witness should not be accepted or that a particular construction should be placed upon the evidence of the witness or his or her conduct, or on any matter upon which it is posed to contradict the evidence. Moreover, wherever an inference is to be relied on for the purpose of impeaching the witness, implications leading to that in the evidence must be drawn to the witness’ attention specifically. In all other cases, so long as fair warning is given to the witness that his or her evidence is challenged, it is not necessary in order to satisfy the rule in Browne v Dunn that detail of the evidence to be relied on be disclosed. As Hunt J said in Allied Pastoral Holdings Pty Ltd v Commissioner for Taxation (Cth) [1983] 1 NSW LR 1 at 24: ‘There is, in my view, no obligation in fairness to put anything further in cross-examination’. In summary, where the duty is breached, the failure to crossexamine does not preclude calling evidence which should have been

put to an earlier witness but may justify a case in rebuttal or reply and any inference to be drawn cannot constitute evidence in itself: see [5.65].

GENERAL TECHNIQUES 5.22 Some general techniques of cross-examination are described at [5.23]–[5.34].

Style Fairness 5.23 In cross-examination no less than in examination-in-chief, witnesses are entitled to be treated fairly. This means with courtesy and respect. A calm and [page 105] courteous ‘more-in-sorrow-than-in-anger’ approach to crossexamination is more effective than bluster and aggression. Apart from anything else, too much aggression can lead to difficulties for you personally. Additionally, a browbeating, bullying cross-examination will frequently lead the jury to align themselves with the witness, which is the last result you want. It will likely be counter-productive, as Wrottesley says in Principles of Advocacy, p 21: There are two styles of cross-examination, which we may call the savage style and the smiling style. The aim of the savage style is to terrify the witness into telling the truth; the aim of the smiling style is to win him to a confession. The former is by far the most frequently in use, especially by young advocates, who probably imagine that a frown and a fierce voice are signs of power. Great is their mistake. The passions rouse the passions. Anger, real or assumed, kindles anger. An attack stimulates to defiance. By showing suspicion to a witness, you insult his self-love — you make him your enemy at once — you arm his resolution to resist you — to defy — to tell you no more than he is obliged to tell — to defeat you if he can.

There will also be many occasions on which you will either want to show that the witness concedes the error, or you will want to show that observation or recollection are mistaken. To do this you will need the cooperation of the witness and, if possible, his or her trust. This can only be achieved by fairness and politeness. An effective and friendly beginning to what later proves to be a fatal cross-examination to the witness’ credit is more often than not more effective than an aggressive approach. In the end result, there is really one basic method of cross-examination. It can be summarised neatly as the four Cs: clarity, conciseness, courtesy, and commonsense. If you apply all four to every witness and every question, experience suggests that you will be well-satisfied with the results.

Clarity 5.24 It is never a disadvantage for the witness to understand what you are asking him or her. First, because he or she will be able to answer; secondly, because if your question is clear and precise the answer will be recorded in an understandable way; and thirdly, there can never then be any doubt as to what the question was and you will be able to use it unchallenged and unambiguous in your address. If there is a chance that the question is unclear, or that you are at cross-purposes with the witness, stop, go back, and clarify. It is only clear evidence that is at all useful. Clarity involves precision. The ideal question is simple, clear and precise. Indeed, an unclear question may be unfair to the witness and carries with it the risk that the answer will be useless, or worse, damaging, and if not, disallowed. There is a further aspect of the need for clarity, demonstrated by Wells in Evidence and Advocacy, p 168: Witnesses fail fully to answer a question for all sorts of reasons — an inability to think or concentrate or to express themselves, a genuine misunderstanding, a partial loss of memory not reflected in the answer, to name but three. Some junior counsel appear to think that, assuming a question is suited to his purpose and properly expressed, his duty is done by asking it. Obviously that is not so. If a witness’ answer is incomplete, you must persist until every facet of the question is answered; it shows the witness that you really mean business, and serves notice on him that he must pay attention and answer comprehensively. It also saves the judge the chore of clarifying the

[page 106] answer. If you do not care whether a witness answers the entire question, you should not have asked it in the form in which it was asked.

Courtesy 5.25 A quiet manner and remaining in control is the essence of the advocate. The only person who suffers when you lose your selfcontrol and do not show courtesy to the court and to your witness, is you (and, it may be, in the short term, your immediate client). Courtesy is not a sign of weakness — rather, it is a sign of strength as well as being good tactics. The witness may be evasive, unresponsive or even unprepared to answer. Calm repetition of the question, politely insisting on an answer, will help establish control over the witness, and reveal to the fact-finder that the witness is being difficult, whereas becoming annoyed with the witness will move the focus to you and allow the witness to feel he or she has escaped your control. In dealing with examination-in-chief, I emphasised a calm, courteous demeanour is best in all cases, and that you should bear in mind that witnesses are entitled to more consideration than they sometimes receive. If you never lose your temper you will obtain more favourable testimony than might otherwise be the case. There is a psychological element to this as well. Continued politeness enables the witness to relax, and you to establish a rapport which leads to the witness being more prepared to assist you and more amenable to your control. Hostility and aggression produce the contrary result. Strict self-control is required when you receive an answer on crossexamination which is devastating. If you are well prepared and follow the rules this should happen very rarely. Such bombshells, when they do happen, must be glossed over as quickly as possible. Instantly turn to another subject matter. Do not show by response or reaction your dismay, or even that you perceive the evidence to be damaging. To all outward purposes appear the same; in control and relaxed. On no

account allow time for the evidence to sink in, be reaffirmed or emphasised. Do not attempt there and then to repair the damage. If it is possible to do so, do it later and only if you are certain of success. Otherwise let it lie. In contrast, there are occasions in the court for humour. Be human — go along with these, especially when they are at your expense. The critical exception is never laugh at your client’s expense.

Conciseness 5.26 Every case ultimately is decided on the issues. The quicker you can get to the heart of the issue in the case (and many cases are ultimately reducible to one or a few issues if they are properly prepared and properly conducted), the more chance you have of winning that issue. The more concise you are, the less additional material you allow to be adduced, the more chance you have of keeping the focus on that issue or issues. Individual questions should be as concise as they are precise, and the overall cross-examination should be as brief as possible and consistent with your obligations. Conciseness will lead to precision which will in turn promote clear answers, rather than the long discursive kind. As well, use as few questions as possible to achieve your objective. Remember, less is more. [page 107]

Common sense 5.27 Never begin a cross-examination unless you have something to gain by it, and are reasonably confident of obtaining it. Everyone has experience of the identification question that should never have been asked: the witness having been asked in chief, ‘Do you see the man in court now?’, has said, ‘No, no I don’t’. As if to drive the point home, the cross-examiner rises, and approaches the task as follows: [To the client] Stand up, please, Mr Smith.

Q — You have never seen that man before, have you? A — I … I don’t think so … I’m not sure … Q — You would not suggest that he was in the building at the [time of the crime]? A — Wait … yes, of course … now I remember … I saw him about 10 minutes before the robbery.

The damage is done, the identification has been made, forced on the witness by the one person who had most to lose by it. If you don’t believe this can happen, look at R v McHardie [1983] 2 NSW LR 773, the so-called Woolworth’s Bombing case. In cross-examination, silence is golden. If the witness has not harmed you, let him or her go. Never ask a question which is not necessary. In cases of doubt, do not invent questions on the spot or ad lib — let common sense prevail. The only results of a failed cross-examination are the enhancement of the witness’ standing or the undermining of your own case. There is a final fundamental which you should observe in crossexamination. It is this: ask questions. This sounds trite, but crossexamination is not the time for making speeches, or argument. It is even less an appropriate time for comment. Questions call for answers; comments call forth confusion. As in People v Wells (1893) 34 P 1078 (USA) at 1079, such comment may be designed to: Get before the jury a statement, in the guise of a question that would prejudice them against [the] appellant. If counsel had no reason to believe the truth of the matter insinuated by the question, then the artifice was most flagrant; but if he had any reason to believe in its truth, still he knew that it was a matter which the jury had no right to consider.

In R v Baldwin (1925) 18 Cr App R 175 at 178–9, Hewart LCI stringently criticised the improper modes of questioning by counsel, ‘which are really of the nature of an invitation to an argument’. He described as ‘mischievous’ questions such as, ‘I suggest to you that …’; ‘I put it to you that …’; ‘Is your evidence to be taken as suggesting that …?’; or ‘Do you ask the jury then to believe …?’. Leaving aside experts, the function of a witness is to answer questions of fact, not to be invited to argue or speculate or to become the vehicle for counsel’s assertions of fact or falsity. Questions which

infringe in this way should be avoided, as the High Court of Australia has said in Cooper v R (1961) 105 CLR 177 at 183: … there are few things more objectionable in a criminal case than the introduction of matter which has no probative value in relation to any issue, but is calculated to produce prejudice in the mind of the tribunal.

[page 108]

Content Only significant matters 5.28 You should never cross-examine unless the cross-examination is likely to advance your case. Cross-examining on irrelevant matters is more likely to damage your case and is fruitless. Besides, the factfinder is likely to see you as petty or nitpicking and perhaps form the impression that you have nothing more important to put to the witness. Worse still, such tactics have the capacity to obscure the good points. If you cross-examine on trivialities rather than focusing on important defects in the evidence, you risk lowering the tribunal’s ‘index of suspicion’ about the reliability of the witness, rather than enhancing your prospect of successful impeachment of the witness. This is particularly important when cross-examining on prior inconsistent statements: see [5.40] below.

Only according to plan 5.29 Tactics demand that cross-examination follow some prearranged plan: be thorough and be ordered. The principles of clarity, thoroughness and orderliness ought to permeate the whole texture of cross-examination, whatever technique is being employed. Often, as in the rest of the trial, and for the reasons already given, the best scheme for cross-examination is chronology. There will be occasions when you will want to depart from this order for particular

reasons, especially to break a train of thought, or test the recollection of a witness who has learned his or her evidence by rote (for example, police officers). Whatever method is adopted, make your crossexamination conform to an overall scheme with an end in mind. Do not cross-examine aimlessly — for the most part all you will do is reinforce the evidence-in-chief. Lord Brougham is said to have coined the phrase ‘cross-examination is not examining crossly’. It does not mean repeating the whole of the evidence-in-chief either. Always think, too, about how to conclude the cross-examination. Many a good cross-examination has been ruined by ending, to quote T S Eliot, ‘not with a bang but with a whimper’.

Notes 5.30 In the 30 years of the existence of this book, I have waged a campaign against the use of prepared detailed notes. Nowhere is this advice more important than in cross-examination. One sees counsel, not always inexperienced, with pages of prepared cross-examination; with every question they intend to ask neatly written out. There is nothing more hopeless for effective cross-examination than such a preparation. It speaks volumes for industry, and no doubt reveals a plan of attack, but it takes no account of the witness at all. Crossexamination must, at times, be flexible. Use notes as an aide memoire by all means: the briefer the better. Train your memory to recall detail and use a checklist to give you a schematic outline. Do not write it out. Know your case and cross-examine from your mind if you can. If you already have the questions written out, how will you cope with the unexpected answer so frequently encountered? This is part of performance preparation. If you must have a written plan of crossexamination (or any other aspect of advocacy), [page 109] then use a ‘mind map’, or some other outline which encourages flexibility and thought, not slavish pursuit of an agenda.

If there is something of real significance in the witness’ evidence, it is essential that you write down that matter in the precise words used by the witness. There are three basic reasons for this: (1) You are probably going to want to cross-examine on it and test it. You must have it correct to put to the witness. (2) You are not going to be able to wait for the transcript — you must have a note of it so you can read back what your note was — it is no good relying on your memory. (3) When the transcript becomes available, and if it differs from your note, you must have the record corrected. Otherwise, when you come to address or on appeal, you will be bound by the version in the transcript, whatever your recollection.

Order 5.31 A planned cross-examination is an ordered cross-examination. There are some rules of general application that assist in the important task of logically ordering or restructuring it. The first is that you should usually begin by affirming or repeating the favourable material which was elicited in chief. Indeed, you may begin by asking about non-contentious matters to establish a friendly atmosphere or a relationship of confidence with the witness. Many, if not most, witnesses expect to be attacked by the cross-examiner. Disarming this expectation will predispose the witness to assist you. After completing the affirmative cross-examination, proceed to the omitted topics and complete those favourable to your case. At this stage, your cross-examination is constructive, using the witness to complete the picture to the extent that it favours your case. This conforms to the general aims of cross-examination; that is, get what you can and destroy the rest. Generally, the next stage would be to reveal where the apparently hostile evidence of the witness is explained by context or alternative explanations. Before going to either the misleading context or the other explanation, you will need first to extract the incontrovertible, established facts or the facts you are confident you can later establish.

Having obtained the witness’ agreement to the existence of those facts, you will then be in a position to compel agreement to the proper context or alternative connotation. If the witness does not agree, the incontrovertible, proved or provable facts will later speak for themselves. It is at this stage that the cross-examination changes its character from constructive to destructive. The destructive stage begins by challenging the witness as required by the case theory or your instructions, using such techniques as confrontation, insinuation, probing or undermining. When that is complete, proceed to the openly hostile or ‘counter-attack’ stage, which usually involves putting prior inconsistent statements or conduct, bad character and reputation, bias, motive and the like. [page 110] The whole process, both constructive and destructive, also provides opportunities for you to ‘put your case’: see [5.20]. Never leave this task to the end, or to a separate and distinct section of the cross-examination, tediously putting a series of propositions which the witness will reject: see [5.65] below. At the end, if there has been a destructive cross-examination, the witness will be hostile and unprepared to agree to any proposition you may put. Scatter it throughout the cross-examination, as and where it naturally arises. If possible, much can be put and accepted in the constructive phases, or next best in the transitional or challenging stages. As little as possible should be advanced in the hostile stage, where there is least likely to be any concession. As to the latter, one notable exception is where you are putting a prior inconsistent statement which agrees with your case. This provides a perfect occasion, as it is the time at which the maximum impact will be made. There are exceptions to this general order, as when the witness is entirely hostile and there is no opportunity for any constructive cross-

examination. Where a witness is vulnerable to challenge by counterattack, you might well commence with that material. Once such a weakness has been exposed and explored, the witness may well make concessions in the challenging stage, or the weakness already exposed may satisfy the tribunal that the witness is not worthy of belief anyway. Where witnesses are not vulnerable to hostile attack, you are left to challenge them in the areas of perception, recollection and communication using the techniques below. These are the hardest witnesses of all — they may even be honest.

Circumstantial evidence 5.32 In contrast to evidence-in-chief, where the circumstantial evidence from a witness should be clustered in order to maximise its impact, in cross-examination it is a good idea to scatter such questions unless they support your case. This will disconnect the threads and disguise from the witness the cross-examiner’s ultimate aim — of showing by a web of circumstances that the witness is wrong, cannot be relied on, or is mistaken. Thus, when scattered questions have effectively closed the gate or shut the door, the witness can be forced to a concession, or an argument for final address can be made out.

Control Taking control 5.33 Remaining in control of a cross-examination is essential. To do this you must have good self-control and a plan of attack. Even so, you will find witnesses who want to answer your cross-examination by attacking you, not answering the question, or by answering your question with a question. It is said that in such a case Cassels J said to the witness: ‘No, no. This is only a one-way traffic. We cannot have it turning into a roundabout.’ You will be very lucky to find a judge who deals with a troublesome witness so readily, or so much for your benefit. In any event, you are cross-examining: you should control the situation

yourself. The first rule is — do not respond. There is nothing worse than counsel arguing with a witness. It is not much better to respond by pompously [page 111] telling the witness, ‘I advise you to answer the question’. You may not, as Sir Patrick Hastings once did, get the answer, ‘The last time I took your advice I did twelve months’, but pomposity does not help with the jury. What, then, to do? Politely ignore the question from the witness. Ask either, ‘Are you able to answer the question?’; ‘Do you understand the question?’; or simply put the same question again, in the same words. Do not be put off course, but equally, do not lose your temper. Often a witness adopting these tactics is in trouble. This is another of those signs that your cross-examination is succeeding, so make full use of it. Adams J, when at the bar, cross-examined a police officer in a civil case who had persistently refused to answer a question along the following lines: Adams: Q — Do you understand the question? A — No. Q — Well let us take it one phrase at a time. During your service as a Police Officer in 1999 — do you understand that? A — Yes. Q — You investigated my client’s role — do you understand that? A — Yes. Q — … and found nothing against him — do you understand that? A —Yes. [And so on, until the end of the question was reached, then finally:] Q — Now Officer let’s put it all together … What part of that question do you say you did not understand? A — None of it. Q — Then why did you refuse to answer it? [One of the very rare occasions when the ‘why’ question may safely be put in cross-examination.]

This can be a very effective technique for a dishonest witness who simply refuses to answer your question. Similar advice is offered by Wells in Evidence and Advocacy, p 168: [S]ome counsel react to an evasive or unresponsive answer by becoming angry, issuing the stern warning, ‘Answer the question, witness!’, or the like. Such a reaction gains nothing, and diverts the attention of the court from the witness’ defects to counsel’s annoyance. If the witness is trying to avoid giving a plain answer to a plain question, it is more effective to remain calm and pleasant — even affable, and, as clearly as before, simply to ask the question again. The witness’ shifts and prevarications will be thus allowed to tell their own story, without being clouded by counsel’s behaviour. It does not in the least matter how often you are obliged to ask a question; every repetition diminishes the witness’ credibility if, in truth, he is trying to conceal or misrepresent the facts.

How then is control best achieved? Adherence to the basic rules and techniques of cross-examination set out in this chapter will help. Fundamental to control is to ensure that the form of the crossexamination is kept to short, unambiguous questions, which can be described as ‘one question, one concept, one sentence’. Such questions permit a cross-examination in small incremental steps. The broader and less focused the question, the more the witness is given scope to argue, deny or disagree. The questions should therefore avoid ‘deadly sins’ [page 112] (see [5.52]–[5.65] below), and the areas of cross-examination should be divided into a series of single propositions, ideally in leading form. To take the bank robbery example used previously, you may wish to cross-examine to establish that your client was not the man seen coming out of the bank holding the gun. The eye-witness will never agree with the compound suggestion, ‘This man you see in the dock was not the robber’. If you break down the conclusion (that is, the identification of your client as the robber) into components or constituent parts as suggested in the section ‘Incremental questions’

(at [4.41]), you will achieve a basis for undermining the witness’ identification evidence. You can then argue later in your closing address to the tribunal without ever revisiting the damaging evidence: Q — When the man came out of the bank you were on the other side of the road? A — Yes. Q — That road is at least twenty metres wide? A — Yes. Q — In fact at least the length of this courtroom as you said in your evidence-in-chief? A — Yes. Q — The events you saw took a very short space of time? A — Yes. Q — In fact a few seconds? A — Five or six, perhaps a little more. Q — At first you were, of course, looking at the traffic in the street rather than at the door of the bank? A — Yes. Q — Not only did these events happen very quickly but you were surprised? A — Yes. Q — And confused? A — Yes, initially. Q — As the man from the bank ran to the getaway car you were walking away from him rather than moving closer? A — I didn’t want to get involved or get hurt. Q — Yes, and so you moved further away? A — That’s right, an instinctive reaction. Q — And in doing that your prime focus was on where you were going and not the man in the car? A — Yes.

Notice how these questions proceed cautiously to extract very minor concessions, step by step. They also deliberately avoid anything which the cross-examiner thinks the witness will resist or reject. The cross-examination also consciously establishes, repeats and maintains the dichotomy between ‘the man’ and ‘the client’, as if each time to sow and germinate the seeds of doubt. In the end you have established enough to argue the existence of a doubt — distance, short

time frame, focus on other things, confusion, and so on. This is a valid technique of both obtaining and regaining control.

Regaining control 5.34 Every advocate has been placed in the difficult position of having had a witness under cross-examination fail or refuse to answer, insist on giving long [page 113] prolix answers, or respond in a way that is evasive, argumentative or frankly uncooperative. In such cases you have lost control. The first step to recovery is identification of the reason. It may be personality, wilfulness or confusion. Where a witness fails to answer or is unable to respond, this is a signpost of success. What is more, a refusal or inability to answer the question will frequently be more eloquent than words. When this happens, you must make clear the fact that the witness cannot or will not answer, and make the awkward silence apparent on the face of the record: make sure the silence is recorded. When a sufficient interval has elapsed to justify the assumption that the witness is not going to answer, ask, ‘Are you unable to answer the question?’. If they are unable to, they will say so and you will be able to ask why the answer is taking so long, or better, you may simply leave it for strong comment in your address. Where a witness disagrees with a series of short, propositional leading questions, which otherwise obey the rules, it is likely that you have well and truly joined issue. If so, the best tactic is to quickly drop the line of questioning, or proceed to use any destructive material you have — but close the gates first. A witness who is being deliberately difficult will undermine the tribunal’s confidence in him or her. Where the problem is one of personality, the resolution depends on the advocate’s ability to

respond to the witness’ personality by adopting a different approach to the cross-examination. Ensure first that it is not the form of question which is causing the problem, and especially be sure that the question is not ambiguous or one containing more than one idea or topic. Avoid any unnecessary detail and reduce the question to the simplest of forms. This will reduce the chances of misunderstanding or mistake and reinforce in the tribunal’s mind that you are endeavouring to be fair. The concepts of piggy-backing a series of questions and use of directional and transitional questions have been discussed: see [4.42]. Use of these techniques can readily provide a sequence of short incremental questions in order to regain control. Properly used, such a line will bring the witness back and keep him or her within the confines of the subject matter you wish to cover. The question will, of course, be leading and designed to prevent the witness repeating damaging material. What then of the intransigent witness who will not answer the question, or answer it directly, or who always wants to elaborate or explain? Whatever you do, you must not enter into an argument with the witness. The first step is to try, politely, to have them answer the question being asked. Begin by simple repetition of the question, and if the answer remains non-responsive then further repetition of the identical question, accompanied by a change of tone. By this, we do not mean a tone of exasperation or asperity, more one that suggests both the witness is being difficult and that you intend the question to be answered: Q — The car you saw was blue? A — [long, rambling answer] Q — The car that you saw was blue wasn’t it? A — [another lengthy, non-responsive answer] Q — Mr N, the car that you saw was blue wasn’t it?

[page 114]

While there is no limit to the number of times a witness may be asked the same question in order to force a response, if after two or three pointed repetitions of the question, the witness still refuses to answer it properly, the next step is to rephrase it carefully in order to close the door on any possible suggestion of confusion or ambiguity. This may be accompanied by a direction to the witness such as: Q — Please listen carefully to the question, Mr W — was the car which you have said you saw in Smith Street blue?

If even this fails to elicit a proper response, it is time to get tougher — for example: Q — You do understand the question, Mr W, don’t you?

The answer to this must either be ‘yes’ or ‘no’. Either will help you. If ‘yes’, the next question is: Q — Then please answer it. Was the car you saw blue?

If ‘no’, you must follow this up. If your question has been clear, the witness’ assertion of lack of understanding will not be believed. You can demonstrate this. If even this achieves no proper answer, a last option is more blunt: interrupt, or stop the witness. As always, this should be as polite as possible. So, for a non-responsive witness, you might look away and/or at the jury or judge to signal that the answer is inappropriate. You might also frown at the witness or in some other discreet way signal that the answer is non-responsive. Another course is to slip a quick question in during a pause or gap — even to change the subject matter altogether. Even more drastically, when these fail, interject, as fairly as you can: Just stop there a moment, could you just say … Do you mind if I interrupt to clarify … I have forgotten the first part of your answer … Taking you back to the first part of your answer …

Further, a gesticulation by raising your hand indicating ‘stop’, again as fairly as you can, might reinforce or emphasise the point if at first the interjection does not succeed by questions alone.

There are, however, significant qualifications which attend any interruption of this kind. We have been at pains to emphasise that any course you adopt must be fair. If you unfairly cut a witness short during a genuine answer, you will immediately create sympathy for the witness. You might also invite a successful objection or even a direction from the judge to let the witness finish the answer; so be sure that when you do interrupt you are fully justified and your manner and method are beyond reproach. Even more telling, if you break these rules, an astute opponent might let your interruption go, and take advantage of the situation in re-examination: Q — You remember when counsel interrupted you at the point you told us that the man was coming out of the bank? A — Yes. Q — You remember it was at the point that you described him as … A — I do, yes he was …

[page 115] Q — And you were about to say something about his appearance I think. A — Yes, he had a beard just like the one in the photograph of the man you showed me — like he has in court now [indicating the accused].

Above all, as we said at the start of this section, do not get into an argument, a slanging match: Q — Just answer the question.

Finally, you may, as a very last resort, call in aid a ruling from the presiding judge, but this option is attended by grave risks. Normally, most judges seeing counsel trying politely, firmly but fairly to keep the witness to question, will intercede before you get to this point and suggest — even direct — the witness to answer the precise question. The judge might also direct that a non-responsive answer be struck out, and you may request such a course in a clear case, but be careful, because often you are met with the embarrassing comment, ‘Well, you

asked the question’ or, ‘That could be anticipated from the way you are dealing with the witness’.

FIELDS OF DESTRUCTION 5.35 There are eight distinct fields or areas in which destructive cross-examination may take place. Each provides an opportunity for undermining the evidence of the witness. The first three, under the rubric of challenge, relate to unreliability of occasion; the last five, under that of hostility, relate to personal unreliability of the witness. Together, they provide a checklist for planning the destructive part of any cross-examination, and as part of your preparation for the cross-examination of any witness, each must be considered and weighed.

Challenge Opportunity 5.36 The opportunity a witness had to observe any event can provide fertile material for cross-examination. Factors such as position, distance, weather or lighting conditions, the suddenness or unexpectedness of the occurrence, as well as the occupation or preoccupation of the witness at the relevant time, all bear on the likely accuracy of observation. It is not uncommon for an alleged witness to a motor car collision to agree when challenged that attention was drawn to the event by the sound of the collision, or that the presence of other traffic obscured the view. All the objective surrounding circumstances are able to affect the value of the witness’ evidence of an event. In all cases which will turn on the ability of a witness to observe key events, a view is absolutely essential. Many cases have been decided on the fact that the witness could not have seen relevant events.

Capacity 5.37 Similarly, the capacity of the witness will affect the value of the evidence. In the case of ordinary witnesses, such factors as deafness, the need to wear [page 116] spectacles and other physical features bearing on the senses are always important. Common matters as to which lay opinion evidence is always allowed, such as speed, time, distance, weight and texture are capable of ready testing, often attended by success. A witness who talks of ‘5 minutes’, or ‘20 seconds’ in evidence, and when tested is out by a factor of 10, loses credibility. Similarly, estimates of speed and distance are often widely inaccurate and critically important. Thus, the quality of both observation and opinion must be considered. The capacity of experts both as to precise qualification and opinion may be successfully challenged more often than is commonly thought. This remark has found significant judicial support: see Makita (Australia) Ltd v Sprowles (2001) 52 NSWLR 705. At the hearing of the special leave application, the following exchange was recorded between counsel and the Chief Justice: MR GROSS QC: … I am not sure the matter was ever explored as to what the situation was, subsequently, but, your Honours, the evidence is just not available to … GLEESON CJ: I am not sure, Mr Gross, I have to say, whether this case shows anything more than the nasty things that can happen to an expert’s report if somebody decides to take to it.

Special consideration must also be given to the capacity of children and the evidence of witnesses suffering mental disability.

Memory 5.38 Every action coming to trial requires witnesses to recall at the present time past events they have witnessed through one or more of their five senses. That very exercise inherently contains the capacity

for error and reconstruction. It is therefore often a fruitful source of cross-examination. The sheer passage of time is one obvious starting point; another might be when and in what terms the relevant event was first sought to be recalled or recorded: see ‘Prior inconsistent statements’, at [5.40]. Some witnesses may have good collateral reasons for recollecting an event or conversation; for example, proximity to birthday, anniversary and so on, or a strong independent reason for remembering the event: ‘I’ll never forget that day; never seen a gun pulled before [etc, etc]’. Other witnesses may well be reconstructing, or relying on a standard practice, or habit, and on testing reveal that they have no independent recollection at all. Other areas of potential exploration are the degree of confusion prevailing at the time of key events, the intrusion of compromising or distracting events, the intervention of subsequent events or discussions with other witnesses likely to taint, compromise or alter the original recollection: all matters for consideration. There are other more subjective factors, which might compromise the capacity of reliable witnesses to recall. For example: Was the witness intoxicated or affected by drugs? Was the witness tired or alert? Was the witness in a state of turmoil or calm? Was the witness frightened or shocked? [page 117]

Hostility Interest, partiality, bias and motive 5.39 It is always permissible, as a matter of law, to cross-examine a witness having an interest or partiality adverse to the cross-examining party, a bias against it or a motive to give false evidence. It is another matter altogether whether such cross-examination

should be undertaken, for if it fails it will always reflect adversely on the attacking party, if not positively offend the tribunal or jury. Hence, any attack on a witness on such personal or serious grounds must be very well founded and much more likely to succeed than it is to fail before one would consider undertaking it. Returning to legal principles for a moment, an attack on these grounds is regarded as another exception to the general rule which treats answers to questions on collateral matters as final. So much is established by Attorney-General v Hitchcock (1847) 154 ER 38. Family or filial relationships, employment or contractual ties, passengers in cars involved in accidents, witnesses or actors feeling some remorse, self justification or excuse, the possibility of greed, hate or revenge, or professional stake or interest in the action, or in rare cases, racial or ethnic prejudices must all be considered under this heading as potential sources for cross-examination and for calling contradictory evidence in a proper case.

Prior inconsistent statements 5.40 Prior inconsistent statements, too, are certainly available to the cross-examiner to destroy credit. Sometimes they can be the most effective weapon of all. They are also probably the most commonly used method of destructive cross-examination. We say ‘credit’ because, depending on local legislation, even when proved or admitted, the prior inconsistent statement may or may not go to the truth of the matter, unless truth is expressly acknowledged by the witness. In that event, their use will be much wider, for they will often go to an issue in the case — sometimes to the issue. They are of two types: out of court statements, oral or written, such as a letter, explaining a contract, or containing an admission of facts; and previous evidence. So far as the latter is concerned, cross-examination about previous evidence is most commonly encountered in criminal trials, where counsel for the accused cross-examines on depositions. If done properly, such a cross-examination can be devastating, but it

must be done correctly. This area of cross-examination is hedged around by rules. The first and simplest of them is that the matter sought to be introduced must be inconsistent. Make sure you have an inconsistency, if not a contradiction. ‘I don’t remember’ is not inconsistent with ‘Yes’ or ‘No’ in the depositions, although the reverse may be. To say something is ‘under’ a bed is not different to saying it is ‘beneath’ it. We have heard cross-examiners use both sometimes at length. This is nonsense. A true inconsistency can effectively destroy a witness, and sometimes a whole case. Cross-examination such as the above will destroy a case too: yours! The point here is not to crossexamine on minor, trivial or irrelevant inconsistencies. [page 118] To do so will be seen as a deliberately unfair tactic designed only to unsettle the witness and score ‘cheap’ points. That is more than just counterproductive, because it is likely to destroy the tribunal’s (and especially a jury’s) trust and confidence in you as an advocate. Worse, where the cross-examination fails, you will look ridiculous. The first rule then is that there must be an inconsistency, and the second is that it must be significant and/or material. The third general rule is that you must succeed in proving the contradictions by admission from the witness or contradictory proof. Evidence of the prior inconsistent statement (oral or recorded), writing or deposition, is admissible by common law and under statute: see Uniform Evidence Acts 1995 s 43. If you find a true inconsistency, then use the statement to sheet it home. But do it properly. To do so involves the following steps: either affirm the evidence from the witness in cross-examination clearly and precisely and lock him in. Closing off escape routes is vital. Alternatively, depending on the strategy and the circumstances (including the personality and demeanour of the witness) you may

choose to be more direct. As to the indirect alternative you might begin: Q — You saw the man run out of the bank? A — Yes, I did. Q — Your evidence is that he held a gun in his hand? A — Yes. Q — You are sure of that? A — Very sure. Q — There is no possibility of a mistake? A — Certainly not, I know what I saw. Q — Have you always been sure of that? A — I’ll never forget it. Q — You spoke to the police only 30 minutes after the robbery at the scene. A — Yes I did, an officer in a uniform. Q — In fact you spoke to Constable McGregor. A — Yes, I think that was his name. Q — You told him on that occasion, ‘The man I saw run out of the bank was carrying a torch!’.

Note that it is very important — vital — to put the previous statement exactly, word for word. At this point, the witness will either (1) agree, (2) disagree, or (3) say, ‘I don’t/can’t remember!’. Different consequences attend each answer, which are dealt with below. The alternative direct way of arriving at this point might be: Q — You saw the man running from the bank. A — Yes. Q — When you saw him running from the bank he was holding a torch, wasn’t he?

Again, any of the three alternative answers above are available. Now, the next step depends on which of the three options applies. As to answer (1), the best course, subject to a qualification mentioned below, is to ask no further questions, for that will provide the opportunity to explain. Leave it for the final address. If the witness answers ‘no’ ((2) above) and if the cross-examiner

[page 119] has laid the foundation by informing the witness of enough of the circumstances to enable the witness to identify the statement and draw the witness’ attention to the inconsistency, the cross-examiner is at liberty, where the inconsistency is acknowledged by the witness in writing, to show him or her the writing: Q — When you spoke to Constable McGregor he was making notes in his pocket notebook at the time? A — Yes/[or] I don’t remember. Q — You signed that note didn’t you? A — Yes/[or] I don’t remember. Q — Look at this notebook please [produced and shown to the witness by court staff]. Look at the bottom of the page, there is a signature at the bottom right hand corner. A — Yes. Q — Your signature? A — Yes. Q — Looking at the middle of the page, do you see where Constable McGregor has recorded that you said to him, ‘The man I saw run out of the bank was carrying a torch’? A — Yes. Q — That is what you told him isn’t it? A — Yes.

As to answer (3), the same general rules apply as in (2), but with a further variant. That is, where the earlier statement is acknowledged in writing by the witness you must give him or her the opportunity to look at it before you can take it any further. This may be done in a number of ways, for example: Q — Would you read this document please and indicate when you have so [produced and read]. A — Yes, I have read it. Q — Without commenting or saying anything at all about what is in the document, do you still adhere to your evidence that when the man ran out of the bank he was holding a gun?

If the answer is ‘no’, you might proceed: Q — You did in fact tell Constable McGregor that the man was holding a torch? A — Yes.

If the witness still adheres to all the evidence, you should then proceed as above, to draw attention to the signature and the relevant content. If admitted, you have achieved your purpose. If not, you are entitled to call or cross-examine McGregor to prove the note, the signature of the witness and importantly, the accuracy of the note, thus proving inconsistency. Another approach in the not unfamiliar ‘I can’t remember’ category might be: Q — You can’t remember what you said to Constable McGregor when you spoke to him shortly after these events? A — That’s right. Q — You do agree that he made notes at the time? A — I can’t remember. Q — You did sign his notebook, didn’t you? A — I can’t remember.

[page 120] Q — Look at this notebook. That’s your signature in the bottom right hand corner, isn’t it? A — Yes.

Then proceed as above. However, if the answer is, ‘I don’t know/it could be/might not be’, you can proceed to press the point and thus prove the statement through McGregor. The more the witness forgets or denies, the more incredible he or she will appear. Yet another variation of these themes sometimes occurs when a witness is being cross-examined on previous evidence or depositions. You might get to the following situation: Q — You say the man coming from the bank was holding a gun and not a torch?

A — I do, definitely. Q — You gave evidence about these matters last July in the court? A — I did. Q — You said when giving that evidence, ‘That man I saw run out of the bank was carrying a torch’. A — I don’t remember. Q — Would you mind looking at page X of the deposition I now produce? [shown to the witness]. A — Yes, I have got that page. Q — Can you see at page X, line Y that you said …? A — Yes, I see it but I still don’t remember.

You can then prove the deposition according to local practice. Another approach where the witness has said he or she doesn’t remember the earlier evidence is to challenge his or her good faith as a witness: Q — Would you like to look at what you said in that court on that occasion to refresh your memory as to what you did say?

If the answer is ‘yes’ you proceed as above, or if ‘no thanks’ proceed: Q — You understand you are here to assist the court? A — Yes. Q — You have sworn to tell the truth? A — I have. Q — Would you like to assist the court to see exactly what you did say so that it may get to the truth of the matter on this important issue?

If the answer is ‘yes’ then, again, proceed as above. If the answer is ‘no’ you can then proceed independently to prove what was said by the witness in the other court. You could proceed even further to have the witness dig the hole still deeper: Q — Do you not want to look at the evidence because you know what it says? Q — You know that what you said was … don’t you?

There is another step which can be of use, but is only infrequently successful. We have already noted that proof of a prior inconsistent

statement may go only to credit. That may be enough, of course, because in the case of a major inconsistency it becomes open not only to disbelieve the witness as to the subject matter of the inconsistency, but generally. The further step is whether you will risk proving the truth. In the bank robbery example, the question is simple enough: [page 121] Q — You told Constable McGregor the truth? Q — You realised when you spoke to Constable McGregor it was a serious occasion and you had to do your best to tell the truth?

But, the danger is that the answer might be: A — Yes, but I just had a gun pointed at me; or A — Yes, I was very confused and frightened just then, but I know it was a gun.

In these circumstances, you have given the witness the opportunity to explain away the inconsistency and to reaffirm, that is, repeat the unfavourable evidence that there was in fact a gun. The damage is therefore twofold. The rule then is not to go further and try to demonstrate the truth of the inconsistent statement unless you are pretty sure of the outcome. Experience tells us that in 99 cases out of 100, witnesses will not make the concession; rather, they will proffer an excuse for the statement. On the other hand, where you succeed, there is a considerable bonus because the adverse witness is now favourable, at least to the extent that the inconsistency has been adopted as true. Finally, there are two important procedural matters. The first is that where you are confronted with several inconsistencies or have complex components, put them one by one or stage by stage, even sentence by sentence. Reading out a large portion of the previous statement of the witness, for example, will confuse and may unfairly seek to have him or her acknowledge too much, too soon. Secondly, be very careful when cross-examining on written statements that you

do so on the whole subject matter of the contradictory material and that the portion you select is taken in proper context. You must take the good with the bad. Where you unfairly take part only, or quote or read out of context, you may well be required to tender the whole. In that event, your point could be destroyed and your credibility as an advocate irretrievably lost. Moreover, an astute opponent may also restore the credit of the witness by re-examining to prove the whole statement and thus the complete context.

Prior inconsistent conduct 5.41 Sometimes, witnesses behave in ways that are inconsistent with their evidence. A classic example was once said to be the sexual assault victim who did not complain at the first reasonable opportunity. Another is the alleged assault victim who fails to seek any medical assistance. Many other examples abound, so the question with any witness becomes: is the evidence consistent with what they actually did? Actions or omissions sometimes speak louder than words. Such inconsistent behaviour may consist of action, silence or omissions. Inconsistent action need not be established in the long, detailed way used for prior inconsistent statements. No more need be done than to identify and put it clearly to the witness in leading form: Q — You allege that the defendant refused to pay you $510,000 owing under a subcontract? A — Yes.

[page 122] Q — That was payable for work done in June? A — Yes. Q — You sought payment of that money then? A — Yes. Q — You undertook further work of the same kind in August for the defendant?

A — Yes. Q — And again in September? A — Yes. Q — You continue to accept work as a sub-contractor for the defendant? A — Yes. Q — And you continue to do so on the same terms as to payment as before July? A — Yes. Q — That is, payment only after completion of work?

Where what is challenged is prior inconsistent conduct arising from a failure to act, or the omission of important material, the position is more akin to prior inconsistent statements. To establish that a material omission or failure to act was inconsistent, two things must be established: opportunity, and obligation or expectation. If a witness has omitted material in the past, the omission must be inconsistent with the present evidence. There must also have been the opportunity to provide the omitted material. To take the bank robbery example (where silence is conduct by omission): Q — You told Constable McGregor that the man had a torch? A — Yes. Q — You did not mention that he had a gun? A — That is correct. Q — A gun would have been memorable? A — Yes. Q — Something you were likely to notice. A — Yes. Q — You did not tell the lower court there was a gun? A — No. Q — You have told no one about the gun before mentioning it in your evidence today? A — No (I wasn’t asked).

There must also have been either an obligation to disclose the matter or record the material on a prior occasion, or you must be able to cross-examine to show that ordinary human experience would lead a tribunal to expect that the witness would opt to speak about or volunteer the omitted material or statement.

Where a witness is providing a statement to a police officer, or giving evidence as in the example above, an obligation or expectation is readily apparent. Similarly, somebody charged with maintaining or completing records has a duty to ensure their accuracy. There must be an expectation that they will be complete. Should the witness attempt to explain the omission by answering, ‘I wasn’t asked’, do not under any circumstances be led into an argument with the witness. You might go on: Q — You had just seen a man run out of a bank? A — Yes.

[page 123] Q — You spoke about that to the police officer immediately afterward? A — Yes. Q — He asked what you saw? A — Yes. Q — You told him about the torch? A — Yes. Q — Were you asked about that? A — No. Q — You mentioned that, but not the gun? A — Yes. Q — And your explanation for not mentioning the gun is, ‘I wasn’t asked’, is that right?

The answer does not really matter. It should be borne in mind that there are very real dangers in any cross-examination on inconsistent conduct. It may well lead to a reexamination to establish an explanation for the act or omission, and can make the introduction of evidence of prior consistent conduct permissible. Before using this method of attack, it is important that you are confident that the inconsistency is not able to be qualified or

explained, for if it is, the cross-examination will be wasted, or even counterproductive. This area sometimes leads to allegations of reconstruction; that is, the witness has only recently thought of the relevant evidence. Indeed, the cross-examination of the witness that there was no mention of the gun to the police shortly after the robbery is such a case. It must be remembered that once the allegation is made, your opponent is entitled to rebut it, by calling evidence or re-examining, to admit a statement made to the same effect as the account given in evidence (see Nominal Defendant v Clements (1960) 104 CLR 476 at 479), but not if the issue is collateral (see Ready v Brown (1967) 118 CLR 165).

Bad character, prior convictions and reputation 5.42 Whatever the state of the law in relation to previous convictions after Bugg v Day (1949) 79 CLR 442, these are Damocletian, and generally best left alone. Even if proved, and even if your client is without sin, a previous conviction and no more is not of itself damaging to credit. Indeed, if your attack is more vigorous than wise, an allegation, even proof of prior convictions can be positively beneficial to the standing of the witness. This is certainly so where the conviction is old or for a petty offence. To be damaging, a conviction must be truly adverse to the reliability of the witness in a sense relevant to the case at bar — violence need not suggest dishonesty, nor dishonesty violence. If you embark on this dangerous sea, you need more than simply conviction to navigate it. You must lay your course so as to show that the facts of the conviction reveal a person who is prepared to lie to suit their purpose, or that the conviction has a factual nexus with the case. This presupposes that you have the facts that underpin the conviction. If you do, use them. If you do not, obtain them from the witness, by cross-examination, thus: Q — Look at this document [have the witness shown the proof of the conviction]. You were in Wollongong in 1975, weren’t you? A — Yes.

[page 124] Q — You were there in July 1975? Q — Were you charged with an offence? Q — Was it a charge of false pretences? Q — Were you convicted? Q — Tell the court what you did that led to your conviction. [Here the witness will either tell you the facts or will have ‘forgotten’.] If the latter, go on … Q — The allegation that led to your conviction in July 1975 was? Q — Yet you can remember [the evidence given]? Q — Is your conviction not important to you? Q — What was the allegation? … [and so on]

Whether you have the facts already, or must dig for them, do not waste them by simply asking, ‘You were convicted of false pretences in July 1975 in Wollongong, were you not?’, with the air of a conjurer producing a rabbit from a hat. Like that trick, such a ploy may have excited an audience in 1890. It has little impact nowadays. Should the witness deny, or not distinctly admit, the conviction, the cross-examiner may prove it. A judge has a general (statutory) discretion to disallow such cross-examination if proof would not materially affect the credibility of the witness, but Cross points out (in Cross on Evidence, [19025]) that it is rare to exercise the discretion. Bad character short of conviction may also be elicited in a proper case. In Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 545, Latham J set out the principle: Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness’ answer cannot be contradicted by other evidence except in certain exceptional cases. Exceptions to the rule at common law are that after cross-examination of his opponent’s witnesses a party may give evidence to show they are notorious liars, or have given their testimony from a corrupt or other wrong motive, or that they have previously made a statement inconsistent with their evidence.

As to this head of cross-examination, Cross sets out in Cross on Evidence, [1904] the relevant common law history:

From the very beginning of the modern law of evidence it has been possible to call a witness to swear that the opponent’s witness cannot be believed upon oath. It was established that the impugning witness must speak from personal knowledge, but could not refer to particular events to justify the belief. The general form of the question went from the general to the more particular, by asking first ‘have you, means of knowing what the general character of the witness is?’, and then ‘From such knowledge of his general character would you believe him on oath?’. It was not necessary that the witness need have personal knowledge of false testimony by the witness, and even if it existed, the witness would not be allowed to refer to it under the ban on collateral matters. The rule was reconsidered in R v Brown and Hedley in the light of the decision in R v Rowton (1865) that a witness could not express a personal opinion of the accused’s character in rebuttal of a character witness called by the accused. The reasoning of the court was not wholly satisfactory, but the outcome was to endorse the existing practice, and to condense the questioning to elicit a simple

[page 125] assertion that the impugning witness would not believe the opponent’s witness on oath: (171 ER 591 at 605). It became very rare, in practice, for this cumbersome, anomalous and unconvincing exercise to be conducted. Its continued availability was, however, endorsed by a unanimous House of Lords in Toohey v Metropolitan Police Commissioner.

Attacking the qualifications of an expert 5.43 Attacking the qualifications of an expert is at best a chancy business. Very few experts lack academic qualifications and even fewer are called who do not have wide experience in their field. Generally speaking, the best advice on how to conduct such a crossexamination is: do not. This is not to say you cannot attack the credit, but merely the conclusions, of a scientific witness. It means that a general attack on qualifications is not the way to go about it. You should be keen to see the expert properly qualified (in detail) in chief. See that the curriculum vitae, including publications, is adduced. If it is right on point you are in trouble. All too often, you will find that he or she is not specifically qualified on the particular matter at issue. Attack this more reasonable, if more limited, objective. Seek to wring concessions. Ask detailed questions about areas both at the heart of the issue and all around it. To do this effectively, you must know the

subject. If you have a thorough knowledge of the brief and the facts, you will have your own experts assisting you to learn. The witness is an expert on a wide field and will probably have refreshed their memory, to a greater or lesser extent, on the particular topics at issue. You, on the other hand, have become an expert for a day on a drastically limited branch of the subject. The following example may explain: Q — Doctor, the exercise you have just been through with my friend really relates to what bulk density is all about, doesn’t it? A — Yes. Q — When you are dealing with solids you are dealing with the mask density, the density of a solid mass or a solid object? A — When you are dealing with solid solids. Q — When you are dealing with solid solids? A — Yes. Q — And when you are dealing with pieces of that, you put pieces of it in containers, you are dealing with bulk density? A — Yes. Q — Really what your field of expertise is all about is what percentage of solids as opposed to the quantity of air you get in a given volume — or the space if you prefer, in a given volume? A — It involves both of those aspects. Q — But going back to things that start off solid and do not start off fluid and change their consistency, and sticking to scrap steel in particular, the bulk density or the mass you can get in a given volume varies tremendously, doesn’t it? A — It can do, yes. Q — It varies for a number of factors? A — Yes. Q — One of the factors is the form which the material takes? By form I mean shape? A — Yes.

[page 126] Q — If we are dealing with pieces of steel, without going into the various types of steel, if you get pieces of different shape, in containers of different shapes, you can fit different quantities?

A — Yes. Q — How they are packed and ordered, as distinct from a random packing, will make a difference to the bulk density of the material? A — Yes. Q — In a case such as the recent one where you were invited to look at particular sorts of scrap metal, whether or not the scrap that you were shown is typical as it is presented to you, will affect the validity of your examination? A — Yes. Q — I suppose there are other variables that you can point to? A — The range of size, whether it is hollow or not. Q — If you are dealing in some things like sand its moisture content would make a difference? A — Only because it is more difficult to pack, its higher moisture. Q — You do not have that trouble with steel? A — No. Q — Are there any other factors you are aware of other than the one we have discussed? A — Shape and size, hollow, solid. Q — And that is about it? A — And range of sizes, the pressure you can exert on them to pack. Q — Leaving aside atmospheric pressures as a consideration, the manner of packing assumes great importance? A — Yes. Q — And that is demonstrated by the figures you have dealt with today? A — Yes. Q — Because, in fairly crude terms, one lot of material you looked at, I think at the railway lines tracks, where you got a range of between 0.7 and 0.8? A — 0.74 through. Q — Through to the very densely packed loads that you saw at the Grange, a variation of a factor of four or five? A — Yes. Q — That would not be unusual, would it, in the sense if you get a totally random packing of all the variables to a very careful packing you get that sort of variation? A — Yes, provided you make that distinction. Q — That is what I am trying to establish? A — Yes. Q — You can get a very substantial variation? A — Yes.

Q — So that an ordered packing of size chosen material will give you a much higher density than totally randomly selected material? A — As demonstrated by the figures.

While dealing with experts, the other area in which it is said they may be attacked on credit is bias. This is even more dangerous than an attack on qualifications. It will usually drive the expert to adopt a stance which is far more trenchant than otherwise. Again, this is an area where a subtler, more sophisticated approach pays better dividends — ask not about bias; ask rather about instructions. Was the expert properly briefed? Did the expert have the full facts when he or she [page 127] gave an opinion? Are there other possibilities to be drawn from the facts? How would other (hypothetical) factors affect the conclusions? In other words — lead, encourage, probe and insinuate, rather than allege bias, when dealing with experts: see [5.46] below.

PARTICULAR TECHNIQUES Introduction 5.44 There are four particular techniques of cross-examination: confrontation; probing; insinuation; and undermining. Each uses different methodology to achieve the desired ends. It should be borne in mind that because cross-examination depends on necessity, they are often used together and the edges blur or overlap in practice. It is convenient before turning to the techniques in detail to define them as precisely as possible. Confrontation is the method of direct attack. It amounts to ‘firing’, often rapidly, damaging facts at the witness, more particularly those

inconsistent with their evidence. In order to be effectively employed, it will depend on the cross-examiner possessing the ammunition in the first place. It can, on some occasions, be employed for the total destruction of the witness. More frequently, where there is less material, it is used to damage a selected area of the evidence of the witness. Probing is described as a thorough investigation of the evidence and its background detail by detail, to detect any flaws or inconsistencies. Its aim is to expose weakness, improbabilities and internal inconsistencies. In as much as it depends in part on the use of the ‘six honest serving men’ of the nursery rhyme, it is by no means a technique which is uniformly admired or supported (compare [4.40]). By that we mean that this method is attended by the dangers associated with asking open-ended questions and allowing the witness to repeat the evidence-in-chief. It has limited application and is an advanced technique of last resort. Insinuation sounds offensive, but is the most common, successful and useful technique. In essence, it amounts to using implication and new facts to alter the emphasis of the evidence or put a more favourable gloss on it, and so turn damaging material to positive benefit. It is generally a technique of gradual development, seeking small concessions which eventually build to something more significant. Undermining is neither more nor less than cross-examination as to credit and uses aspects of the other three, but with different emphasis. It is a particularly useful technique intended by collateral attack to take away the basis of the evidence. While cross-examinations may be analysed in terms of these techniques, they are not usually planned by reference to them. Your plan will be in terms of what to get — how and if you achieve it will depend on your use of technique.

Confrontation or attack

5.45 Munkman says, in Techniques of Advocacy, p 70, that confrontation consists of firing damaging facts at the witness to break down his or her story. These facts may [page 128] have been assembled especially for use in cross-examination, but more commonly, they are taken from the general body of evidence collected to fight the case, and either have been proved already, or will be proved in due course. As a technique, confrontation offers and requires little subtlety. What it does require is facts. You must have material — preferably strong material — which the witness cannot deny What is more, it had better be in admissible form in case it is denied: see Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533. Once you have this material, and a potential clash with the witness, the technique is simple and usually successful. Here are some rules of guidance should you choose the method: (1) Put the facts one at a time. There are facts of many kinds and the directness or caution with which you seek an admission must depend on the degree of confidence you have in proving the underlying fact itself. Once you are satisfied that the fact is properly capable of proof later, or if it has already been proved by the document or another witness, it is often effective to try to secure an outright denial before putting it. (2) If you don’t get the concession or admission, but more and more ‘explanations’, two things should be said. First, you did not exercise sufficient caution in approaching the fact; secondly, all is not lost. You are cross-examining and have the right to lead. Use it to seal off escape. Even though it is time-consuming, you must eliminate (ideally in advance) all the answers you do not want. When you ultimately put the direct proposition, the witness should be in a position of having to say, ‘I concede that’, or of remaining silent. You must seal off all escape routes by pinning

the witness down precisely to a version — and when ‘locked in’, use the next fact to prove the version false, or at least show inconsistency. Once the witness is committed to a proposition, never afford the opportunity of adopting an alternative and more favourable position. (3) If possible, the attack should begin with a question from which the witness will never recover — where you have time to prepare, the opening question is one thing worth preparing. It is, however, easier to advise you to find the ‘$64,000 question’ than it is to find it. Its value is that it comes at a time when the witness does not know what is coming. If you can ‘wrong foot’ them at the beginning, before they have an opportunity to settle down, then you are well on your way to a successful confrontation. This ‘first question’ technique can of course only be used where you have nothing to hope for and nothing to gain from a witness, but must go on the attack at the outset. One advocate whose ‘attacking’ ability is legendary was Sir Edward Carson, and one of the best examples of an attacking cross-examination is that of Oscar Wilde. The first question in the cross-examination caught Wilde out in a vain lie from which he never recovered: Q — You stated that your age was thirty-nine. I think you are over forty. You were born on the 16 October 1854. A — I have no wish to pose as being young. I am thirty-nine or forty. You have my certificate and that settles the matter. Q — But being born in 1854 makes you more than forty? A — Ah! Very well.

[page 129] You need not start with the most damaging fact to be proved against the witness — for then there is a greater tendency for the witness to try to explain rather than admit. Also, a cross-examination that builds to a crescendo (as Wilde’s does) is of greater dramatic effect. Carson had the evidence of (1) Wilde’s books, some of which

might convey immoral implications; (2) personal letters; and (3) actual association with a series of young men for immoral purposes. He used his facts in that order. But by way of an opening gambit, he confronted Wilde with the true facts as to his age, which Wilde had understated, and thus at the very start caught him out in a lie and unsettled him. Had Carson commenced with the direct assertion of interest in boys, he would have failed. It is better to build up to the ultimate conclusion than start too bluntly. Finally, in confrontation never allow the witness successfully to evade the questions, or the facts, however often you must put the questions. The aim of attacking a witness using these techniques must always be to force an admission of falsity; or failing admission, to prove a contradiction.

Probing 5.46 The art of asking searching questions with the intention of drawing or leading the witness on has an advantage — and an attendant disadvantage. Its advantage is that it can be used without proven support — it consists of ‘delving into the story’ to find and reveal inherent weaknesses or improbabilities. Its disadvantage stems from the way in which this must be done — to discover that information one must fish. How? When? Where? Who? And, most often, Why? These are open-ended questions. They offend three basic rules of cross-examination: they do not ask any questions to which you don’t know the answer; they do not ask open-ended questions that give the witness an opportunity to explain; and they do not allow the witness to repeat the evidence-in-chief. By asking such questions, you take the treble risk of allowing a good point (had other techniques been chosen) to escape, allowing the witness to explain or justify or repeat what occurred, and bringing out testimony more damaging than has gone before. Probing is a technique not usually used alone, but as an auxiliary — either to

attack or, on some occasions, as a starting point of insinuation. Where it is used alone, it is a technique of destruction rather than alteration. It is, when carefully used, an ideal weapon with which to undermine expert evidence. ‘How?’ and ‘Why?’ questions rarely bring results, because few witnesses are so stupid as to give answers that do not support their version. It therefore follows that unless you know the answer to the question (which will be rarely, when you are probing) and unless you are confident that you can compel the witness to give that answer (which will be even more unusual) you will not use ‘How?’ and ‘Why?’ type questions on critical facts. For probing, if you dare take the risk, ‘Why?’ is an essential tool and one of the most useful questions, especially pursued relentlessly. According to Munkman, probing may be effective in four areas: [page 130] (1) the basis of a complex fact, such as identification or the conclusion of an expert; (2) antecedents; (3) consequences; and (4) collateral circumstances — especially time, place and person, and their descriptions. Munkman suggests that every statement of fact should be analysed to see how it rests on other underlying facts or assumptions, and to see if they can be shaken or to expose a weak link. This applies readily to identification, as can be seen from the Archer-Shee case. This was a case in which a young naval cadet, George Archer-Shee, was believed by the authorities at the Royal Naval College, Osborne, to have stolen a five shilling postal order, and to have cashed it at the local post office, having endorsed it with the name of the true owner. The case for the Crown turned upon a single issue:

Was the boy who bought the fifteen and sixpence order the same boy who cashed the stolen order? If you believe that, the supplicant’s son is necessarily guilty. What you have to determine is whether the boy or the postmistress is telling the truth.

In her evidence-in-chief, the postmistress said she was certain that the same cadet had cashed the five shilling order as had bought the one for fifteen and six. She referred to the official books which recorded the issue and cashing of postal orders on that day. The essence of Sir Edward Carson’s cross-examination was to test this vital point. An excerpt from the cross-examination by Carson illustrates effective ‘probing’ in cross-examination: Q — I may take it that as far as those books are concerned they give us no assistance at all as regards the order of issue, or the order of cashing? A — Quite right: they do not give any assistance at all. Q — Nor any assistance as to whether the same person cashed one and got one issued? A — No. Q — For that we must rely solely on your memory? A — Yes. Q — Do all these cadets look very much alike? A — Very much. Q — All about the same age … do they all wear the same uniform? A — I believe so. Q — And they are all small, good looking boys? A — Nearly all of them, I think. Q — I suppose you would agree with me that if one boy came to the counter and got something, and you had to step into the office, or go into the back office, and you found another boy there when you came back asking for something, you would notice whether he was a different boy? A — No, I certainly should not, unless he was bigger or something. Q — Now can you tell me anybody else who went in and had a transaction that day? A — No, I do not remember. Q — Come, you cannot recollect anyone else having a conversation? A — No, I certainly cannot. Q — How many went in that day? A — A good many people would have come in, but there may not have been anything …

[page 131] Q — There may, or may not, but was there? Can you recollect? A — No. I cannot. Q — Then you cannot call to mind any other persons from that day except the cadets? A — No. I could not. Q — Nor what they did? A — No. Q — Nor what they said? A — No. Q — Nor any other day? A — I did not see any cadet. I only saw two cadets, as far as I know. Q — There is no doubt that cadet servants did go in that day? A — They may or may not, I do not know. Q — When the inquiry was going on at the College were you not asked any single word about anybody else going in there? A — I do not remember that I was … Q — You paid no attention to any other transaction that day? A — No, because there is nothing to mark it specially. Q — That is the very point I put to you. That nobody from the College requested you to recall anything else as regards that day? A — No, I think not. I do not remember.

The evidence of an expert is also vulnerable to probing. In the example that follows, the witness has given evidence about the hydraulic lifting capacity of trucks, to this effect. (1) He had tested the machines in operation and found the mechanism set at between 13 megapascals (Mpa) and 24 Mpa and the trucks had tipped loads of scrap metal. (2) On a later date, he had seen the trucks demonstrate a carrying and tipping capacity which was far greater than he had seen tipped at the first occasion. (3) The pressure settings on the second occasion had been increased to in excess of 30 Mpa. The inference sought to be drawn from the evidence was that the

later carrying and tipping capacity resulted from artificially high settings in the hydraulic system. He was cross-examined about that conclusion by probing the underlying assumption on which the conclusion was based, this having been identified by the case analysis as the weakest link. Q — You have just been discussing a set of figures of two different settings with my learned friend — 22 or thereabouts when you first saw the trucks and 30 or thereabouts in June 1981? A — Yes. Q — So far as the actual operation of the system is concerned, do these settings make any difference? A — Yes. Q — What is it? A — Those pressure figures are capable of limiting the maximum load that a hydraulic system is capable of lifting. Q — Yes, provided that the demand that is made is less than the maximum settings? A — That is correct.

[page 132] Q — Provided that is the case, that the demand that is required to lift or tip a load is less than the maximum setting, the machine will work regardless of which of these settings is in operation? A — That is true. Q — And it will work equally effectively? A — Yes, it will work. Q — So that, to take a precise example, FPC 153 — you saw that vehicle on both those occasions? A — Yes. Q — On the first occasion it was set at 20 Mpa and then increased? A — Yes. Q — On the second occasion it was set at 24.6 Mpa and then increased? A — Yes. Q — On that second occasion you saw it in a bin of scrap? A — Yes. Q — Do you know what weight the bin of scrap was?

A — I’m sorry, I don’t. Q — On that occasion, it would require, to tip that bin, 13.6 Mpa of hydraulic pressure? A — That’s correct. Q — That was set at 24.6? A — That’s true. Q — Would it in your experience have required 13.6 Mpa to tip the same load had the pressure setting been 20 Mpa? A — That’s true. Q — Would it have required 13.6 Mpa to tip the same load had the pressure setting been 31 Mpa? A — Yes. Q — So that the effect is this, that these systems work on demand? A — Yes. Q — So that all that is used is what is required to perform the operation? A — Yes. Q — The only limitation arises from the maximum amount that can be lifted or tipped? A — That’s correct.

Within the space of a dozen questions, the inference so carefully drawn from the examination-in-chief has been completely undermined. Probing is useful for eliciting facts, where there is not (or not yet) a direct attack on the witness. The question, ‘Why?’, comes into its own, because it can be followed up so easily until an ultimate cause is assigned. The truthfulness of the witness can also be seriously impaired by eliciting a version of the surrounding circumstances which are absurd, ridiculous or fail to convey the ‘ring of truth’. It is available for both mistaken and dishonest witnesses. The most obvious surrounding circumstances for any transactions are time, place and persons present — there are, of course, any number of other attendant details — the placement of the furniture, weather and the like. Probing into this sort of detail is usually safe enough and it can be extremely revealing. It will reveal details with which a true story will fit, and a false one will not. So they can be used to lead a witness to a contradiction, or simply enlarge until it becomes absurd. Wrottesley writes in Principles of Advocacy, p 129:

[page 133] Procure from him in detail, and let his word be taken down, the particulars of his story, and then question him as to associated circumstances as to which he is not likely to have prepared himself, and to answer which, therefore, he must draw on his invention of the instant. Some ingenuity will be necessary on your part, after surveying his story; to select the weakest points for your experiment, and to suggest the circumstances least likely to be prearranged. Having obtained his answers, permit him no pause, but instantly take him to a new subject; lead his thoughts altogether away from the matter of your main topic. The more irrelevant your queries the better; your purpose is to occupy his mind with a new train of ideas. Conduct him to different places and persons and events. Then, suddenly, in the very midst of your questioning, when his mind is the most remote from the subject, when he is expecting the next question to relate to the one that has gone before, suddenly return to your first point, not repeating the main story, for this, having been well learned, will probably be repeated as before, but to those circumstances associated with it upon which you have surprised him into invention on the moment, it is probable that after such a diversion of his thoughts, he will have forgotten what his answers were, what were the fictions with which he had filled up the accessories of his false narrative, and having no leisure allowed him for reflection, he will now give a different account of them, and so betray his falsehood. Of all the arts of cross-examination, there are none so efficient as this for the detection of a lie.

Effective use of this type of probing depends on fine detail and rapid fire. What you do is to test the reliability of the witness’ memory of the main fact by comparison with memory of details. In most cases, the main fact will be found to have been no more noteworthy at the time than the accompanying circumstances. When the witness fails on the accompanying circumstances, the memory of the main fact will have to be treated with some reserve. This may well be the time to disregard a few of the previous suggestions and to display some degree of forcefulness. It is in this context that questions should follow each other rapidly, giving the witness no time to improvise, invert or recant. A slightly more assertive tone in the cross-examiner will force the witness onto the defensive, force rushed or ill-considered answers, and perhaps cause him or her to manifest an uneasiness that will impress the court as indication of untruthfulness. As always, be fair in this. For example, Sir Henry Hawkins (Baron Brampton) in Hawkins:

Reminiscence, p 310, cross-examined in the Tichborne case about tattoo marks as follows: Q — How do you know Roger had no tattoo marks? A — I saw his arms on three occasions. [Hawkins then asked, in quick succession, when, where, and in what circumstances.] Q — The sleeves, how were they? A — Loose. Q — How come you came to see his naked arms? A — He was rubbing one of them like this. Q — What did he rub for? A — I thought he’d got a flea. Q — Did you see it? A — No. Of course not. Q — Where was it? A — Just there.

[page 134] Q — What time was it? A — Ten minutes past eleven. Q — That’s the first occasion; come to the second. A — Just the same. Q — Same time? A — Yes. Q — Did he always put his hand inside his sleeve to rub? A — I don’t know. Q — But I want to know. A — If your shirt was unbuttoned, Mr Hawkins, and you was rubbing your arm, you would draw up your sleeve. Q — Never mind what I would do; I want to know what you saw. A — The same as before. Q — A flea? A — I suppose. Q — But did you see him?

A — I told you, Mr Hawkins, I did not. Q — Excuse me, that was on the first occasion. A — Well, this was the same. Q — Same flea? A — I suppose. Q — Same time — ten minutes past eleven. A — Yes. Q — Then all I can say is, he must have been a very punctual old flea.

Where the intention is to destroy evidence, denial is not sufficient. The ‘mathematics of legal equilibrium’ results in the axiom that the positive is always greater than the negative. It is not merely whimsy, but very sound reasoning: an assertion receives an added quantity, being the improbability of invention; a denial suffers a deduction, being the motive to deny. If you can establish facts that will counter the improbability of invention, then the denial will receive the additional advantage instead of suffering as deduction. The difficulty is to destroy the simple allegation. A series of rapidly asked short questions have forced the witness to be committed to surrounding details which he or she ought to remember if telling the truth, but will not be if the story was invented. Leave the topic and go on to something else — later return to the topic and resume it. By that time, the witness should have forgotten what was said earlier. His or her answer is now different — and usually inconsistent — and it has become clear that the original answer was not truthful. An immediate attack on a half-truth is less effective because the witness is still concentrating on the point and how much he or she can safely concede. Evasions will be more skilful and less inconsistent; but later, the witness will be a little uncertain of what was said first time around. If this works, you have succeeded. But be warned. This is not a technique to use unless you are confident from the surrounding facts or some specific inconsistency of which you are aware that there is likely to be a later inconsistency. Should you return to the same topic and receive precisely the same series of answers, you will have done

nothing for your client, but a great deal towards proving the case for the other side, because repetition will enhance the chances of acceptance. [page 135]

Insinuation 5.47 Of the techniques of cross-examination, insinuation, the art of adapting the evidence-in-chief to one’s own case, is the most tactically significant. This is because: first, it begins from a point which is common ground; secondly, where used it will be the first technique of cross-examination that is used, for it depends on the co-operation of the witness; and last, because it enables the presentation of another version or construction of the facts, side by side with the evidence-inchief. This is particularly significant in criminal trials, where the prosecution case is usually far longer than the defence and of great weight in jury cases generally. It belongs to the area of ‘constructive’ cross-examination discussed at length at [5.4]. Insinuation has a twofold purpose: to weaken the evidence-in-chief and, at the same time, to elicit favourable evidence. This aim is achieved by either the addition of new facts or the modification of evidence given in chief, or both. If successful, it can give a new direction to the evidence without any attack on its substance or foundations. The following is an example of such a new direction: A woman was on trial for the murder of her illegitimate child, the defence being that the death was accidental. She was alleged to have asked shortly before the death: ‘How can anyone get rid of a baby?’ Marshall Hall asked the witness whether she did not really say: ‘How can anyone get rid of a baby like this!’ — as if she meant that she would never dream of getting rid of it. The witness agreed with his suggestion and by the slight change of emphasis, the phrase took on an opposite meaning. (See Marjoribanks, Life of Marshall Hall, p 1267.)

Another example is: Dr Ruxton was charged with murdering his wife and cutting up her body. One small

point in the prosecution evidence was a cut on the doctor’s hand, which he explained as having being caused in opening a tin of fruit. A Mrs Hindson had knocked at the door on the morning in question, and she said in chief: ‘The doctor … told me … that he had jammed his hand’ — the inference being that he had not had time to think out a convincing explanation for a cut caused by a surgical instrument in dissecting the body, and meant to convey that he had ‘jammed’ the hand in a door. Sir Norman Birkett asked in cross-examination: ‘Do you not think he said “jabbed” and not “jammed” when he spoke of his hand?’ — ‘No.’ Although the witness denied the suggestion, its effect would not be lost on the jury: see Munkman, Techniques of Advocacy, p 94.

Munkman divides the techniques of insinuation into two main forms. These are, he says, gentle insinuation, used where the thrust of the question is concealed and the witness impartial; and firm insinuation, where the witness is hostile. There seems to me to be little difference between them so far as general technique is concerned; they are just variations of manner or emphasis according to the exigencies. Munkman is right, however, when he says the technique is highly flexible, and among effective cross-examiners it is justly popular. That popularity stems from its combination of control, safety and logic. Let us take each of those in turn. Control of the witness and the course of the examination are made easy by the fact that the technique of insinuation is insidious. The cross-examination depends [page 136] on gaining agreement from the witness. Its starting point therefore is common ground. From that point you slowly, carefully, and step by step move to the point you wish to establish from the witness. Thus, you need never lose control of the direction or speed of the crossexamination, and build up to the critical point as the answers are obtained. The gradual approach also means you can conceal the line of attack from a witness who is clearly hostile. This gradual approach spells safety. It means you need not run the risk of asking that dangerous question. Indeed, the position you hope

to reach is to wring an admission of that critical point from the witness. There are additional safety factors built in to this technique: if you are not getting the right answers, you can stop before you are in too deep; you can change your line usually at a stage sufficiently early to mean that the ultimate purpose has not been detected either by the witness or your opponent. Moreover, insinuation can be used where you have no independent material capable of later proving the allegation. It is, unlike confrontation, not dependent on independent proof, but is in essence a testing ‘conversation’ with the witness. Of course, if you have such independent material, this can still be a good method of laying the foundations for its introduction, as forcing admissions in this way tends to increase their combined force. Remember, the weight of evidence, not just its sufficiency, is what will ultimately carry the day. The witness will decline to answer your question favourably if you put the proposition generally, but an incremental series of questions, advancing detail by detail, will often change the ultimate answer and obtain a grudging admission. Admissions of this type may be prized; they are especially valued because ultimately the witness has embraced the accuracy of what you are putting. Always remember that good cross-examinations are made stronger by logic than by emotion. Insinuation is a technique which gives full play to the logic of the situation but confines the witness to facts. Insinuation is a technique which seeks fact after fact by questions logically and remorselessly leading to only one conclusion. It has legitimately been compared to an acrostic — but the technique is to use facts and only facts or their interpretation. Having established the methodology of insinuation, it may now be asked: what is its scope? Essentially, it can be used in the following ways: to alter the interpretation of awkward facts; to investigate the possibility of error by the witness in observing or interpreting factual material; to introduce further evidence; and to build probabilities or establish probabilities. Of these, only the last is other than selfexplanatory. To suggest in the closing address that a witness’ evidence

is improbable depends for its success on a judge and jury also regarding it as improbable. As an example, a police officer being cross-examined about a conversation in which it was alleged he had admitted ‘verballing’ the accused had, unexpectedly, admitted that there was a conversation, but denied its content. He was asked: Q — Constable, you did speak to Miss Smith on the day of the committal? A — Yes. Q — And that conversation took place just at the door of the court? A — Yes.

[page 137] Q — What do you say the conversation concerned? A — We talked about the football. Q — What, in December? A — Yes. The Court: Really, Mr X, it might have been the Big Match, I find nothing improbable in that!

Undermining 5.48 Like probing, the technique of undermining is aimed at the basis of the evidence. The difference lies in the focal point of the attack. Whereas in the probing cross-examination it is the objective surrounds of the evidence which are the primary subject of attack, the technique of undermining is concerned to attack the credibility of the witness: see [5.35] above. Many writers take the view, when dealing with the techniques of cross-examination, that this is not a technique, but an application. Whether this is true or not, for most of us, cross-examining as to credit is the most common aspect of the art. In the majority of cases, there will be at least one witness whom one must attack, and in respect of whom that attack will be on the basis of credit. You will try to show from the surrounding material that their observation is not reliable

(surrounding circumstances such as opportunity, capacity and memory); that there are admissible collateral circumstances which may be put to undermine; or that, for reasons of personal association with the party calling him or her, the witness is unreliable (bias), or that because of the witness’ general reputation and character, he or she cannot be relied on. Many such cross-examinations are long. A short, sharp cross-examination on credit, especially with good material at hand, is much better.

Leading on 5.49 Another area in which probing without risk as a technique can be used is in ‘leading the witness on’. There are two methods: (1) leading to a contradiction; and (2) leading the witness to enlarge the story until it is improbable or unbelievable. An example of each will best explain them. Leading to a contradiction (see Wellman, The Art of Cross Examination, p 159): Q — I understand you to say you saw the testator sign this instrument? A — I did. Q — And you did sign it at his request, as subscribing witness? A — I did. Q — Was it sealed with red or black wax? A — With red wax. Q — Did you see him seal it with red wax? A — I did. Q — Where was the testator when he signed and sealed his will? A — In his bed. Q — Pray, how long a piece of red wax did he use? A — About three inches long.

[page 138]

Q — And who gave the testator this piece of wax? A — I did. Q — Where did you get it? A — From the drawer of his desk. Q — How did he melt that piece of wax? A — With a candle. Q — Where did the candle come from? A — I got it out of a cupboard in his room. Q — How long did you say the candle was? A — Perhaps four or five inches long. Q — Do you remember who lit the candle? A— I lit it. Q — What did you light it with? A — Why, with a match. Q — Where did you get the match? A — On the mantle shelf in the room. Q — Now, sir, upon your solemn oath, you say the testator signed this will — he signed it in his bed — at his request you signed it as subscribing witness — you saw him seal it — it was with red wax he sealed it — a piece of wax about four inches long — he lit the wax with a piece of candle which you procured from a cupboard — you lit the candle with a match which you found on a mantle shelf? A — I did. Q — Once more, sir — upon your solemn oath, you did? A — I did. Q — Counsel, My Lord, you will observe this will is sealed with a wafer.

Note the method here — short, sharp leading questions, used incrementally. Once the evidence of sealing with wax came out, it was used as the dominant matter, as counsel knew he could contradict the witness with certainty.

Creating an absurdity 5.50 Here is the cross-examination of a detective sergeant who has been escorting two handcuffed prisoners through a secure tunnel linking prison cells with a courthouse, when it was alleged they had attempted to escape. He was asked to describe in detail the

surrounding circumstances of the escape and with each answer embellished the story: Q — Did they pull away from you? A — Yes. Q — Did you give chase immediately? A — No, I was knocked against Constable Smith, and fell down. Q — Did you sustain any injury? A — I grazed my knuckles and the constable broke his watch. Q — Before the prisoners pulled away was there any conversation? A — No. Q — Did they speak to each other? A — No, but just before they ran I saw them look at each other. I thought that was a prearranged signal.

None of this detail had been given in chief. The cross-examination continued and the detail continued to grow until the following: [page 139] Q — How did you stop them? A — I tackled Brown and Constable Smith grappled Jones and we pulled them down to the ground. Q — Were they still handcuffed together? A — Yes. Q — What happened? A — Brown tried to head-butt me and I got a headlock on him. Q — Was anything said? A — Yes, Brown said, ‘You pig’. Q — Did you say anything? A — Yes, I said, ‘Why did you try to escape? I want you to understand that you need not say anything unless you wish and that anything you do say will be taken down and may later be given in evidence’.

The dynamics of this cross-examination are such that with each question the evidence is becoming more and more absurd. At the last,

the jury burst out laughing. The reason was that the evidence was inherently unbelievable.

Closing the gates 5.51 The concept of ‘closing the gates’ is simple enough: how it translates in practice is largely dependent on the facts of the case. It is therefore not a technique that is always available, but where it is, being indirect is likely to be more productive than being direct. Assume you wish a witness to embrace ‘X’. You know almost certainly that the witness will never accept ‘X’ if put directly. Suppose also that there are only three other alternatives: A, B and C. As to each of these, there will be varying degrees of probability. On one (say A), you might be able to establish its unlikelihood or improbability. As to B, you might secure an admission or by some other technique eliminate that opinion, and C should then be attacked by the best means available. The point is that you can achieve indirectly what you cannot achieve directly. The essence of the technique is to eliminate explanations or alternatives (A, B or C) or render them less likely, ultimately arriving at a point where only ‘X’ is left or is the most likely option open. This is clearly described by McHugh QC (as he then was) in ‘Cross-Examination on Documents’ [1985] 1 Aust Bar Rev 51 at 61: I think it is important when you want to use a document that you close all the gates — that you eliminate all possible explanations that a witness may have to avoid the effect of the document. Also on the question of a witness’ signature, it is always necessary to tie a witness down. It is remarkable how often that, despite your instructions that it is the witness’ signature, or your opponent’s instructions about some witness of yours, that it is his signature, the witness will deny it. So you have to obtain an admission that it is his signature. If you are super cautious you may even ask him to write his signature, go about the matter very carefully, come back to it, show him the actual signature on the document without showing him the contents, and get an admission to the signature. A favourite device of witnesses to get out of admitting the effect of the documents — particularly when it contains their signature but they have not prepared the body of the document — is to say that they were not aware of the contents. This is a frequent device used when investigators have taken their statements. It is very

[page 140] important in cross-examination to get admissions from the witness that he was aware of the contents of the document. The standard approach is on the line, ‘You are a careful person?’, ‘Yes’: ‘And you wouldn’t sign a document without reading it?’, and so on. It is also extremely important to eliminate explanations of the contents of the documents. Every document creates its own problems; it is up to you to think how can the witness explain this away; and long before you obtain the admission, cut off those gateways and explanations.

In practice, you will find that a witness has changed their view since the time the letter was written, they did not have all the information in their possession at the time, they relied on other persons, and so on. These are common explanations, and you have to frame your questions so that you minimise them, until finally, when you put that particular part of the document, there is no way out. Gate closing consists of the elimination of all possible routes of escape or alternative answers. This can only be done when the crossexaminer has considered all the possible answers a witness may give and has subtly, without adverting to the final question, made sure that all unwanted explanations are excluded as impossible, unbelievable or can be contradicted. Preferably, this should be done before the assertive cross-examination begins on matters which are close to the issue itself. If this is done successfully, then assertions can be put more safely. A gate closing exercise in a cross-examination about documents may require questions directed to: identification of handwriting and signature; reading a document at a particular time; confirmation that contents were or are true and correct; good memory of events at the time of making statements; realisation at the time of the importance of the subject matter of the document; attempt by the maker of the document to be truthful and accurate; and exhausting memory at the time the document is created

(spontaneously or by answering questions about the subject) where cross-examination is directed to what is left out of the document. This approach is often adopted in situations where a statement made by the witness reveals a glaring omission or where a statement is to be used to destroy the witness’ credit.

THE DEADLY SINS OF CROSSEXAMINATION 5.52 Every cross-examination depends for success on preparation, planning and the manner of its execution. Your objectives can only be achieved if the basic rules are obeyed and the deadly sins avoided. So far we have dealt with what to do when you cross-examine. We now turn to the area of how to perform or carry out the techniques identified — or, more accurately, how not to commit the sin of incompetence. The common experience of trial advocates leads us to conclude that there are universally acknowledged errors regularly committed in the course of cross-examination. We call them the ‘deadly sins’. We have deliberately chosen to assign catchphrases to them for ready [page 141] identification and so that they may be easily brought to mind and understood. To an extent they may overlap, but they are designed to highlight pervasive faults. They are a baker’s dozen: rushing in; beating around the bush; big noting; looking for trouble;

going for the jugular; going fishing; dropping your guard; going over the top; worrying about the next question; going back for your hat; slanging; jumping the gun; and being ‘willing to wound yet afraid to strike’. At the heart of each of these sins is this: when you have achieved what you want — stop. In ‘Cicero’s Letter Laying Down the Ten Commandments of Cross-Examination’, Younger (1988) summed it up: There, dear Titus, there is the secret of cross-examination. The advocate will crossexamine only to the extent necessary to obtain the information he needs to support the argument he has planned in advance to make in his summation about the credibility of the cross-examined witness. And once he has obtained that information, he will stop. Stop. S-t-o-p. That four letter word is the most important in the advocate’s vocabulary. When things are going well, what should he do? Stop. When things are going badly? Stop. When he doesn’t know what to do? Stop. When he is ahead? Stop. When he has blundered? Stop. Stop. Stop.

But will you stop? If you avoid these sins, you will. Otherwise, you are likely to go on and on — until you lose the point, the tribunal and probably the case. We cannot emphasise enough that when you establish what you have planned, or find you cannot, call it a day.

Rushing in No questions, if the court pleases 5.53 We have emphasised again and again that you never crossexamine except for good and sufficient purpose. We stressed at [5.1] that the first question you must ask yourself is: ‘Do I need to crossexamine at all?’. Before the answer is affirmative, you must have identified reasons on one or more of the heads enumerated there.

The prescription, ‘rushing in’, refers to the irresistible compulsion lawyers feel to ask questions. The adversary process itself carries a powerful expectation that you must do so. You should feel no such compulsion and only rise to cross-examination for specific need. A large part of preparation for cross-examination involves not [page 142] just deciding what to ask, but what not to ask. In many cases, the latter will take longer than the former. It can be very telling advocacy to rise to your feet and announce ‘No questions, your Honour’. So, ‘if fools rush in where wise men fear to tread’, poor counsel too readily rise to their feet where good counsel are not too afraid, but too wise to do so. Before ‘rushing in’ — ask yourself these six questions: Did it (the examination-in-chief) hurt? Was it credible? Was it reliable? Is something to be gained by cross-examining? Are you certain there is no serious risk? Must questions be asked of the witness in order to comply with the requirement of fairness? If the answer to all six questions is negative, the only rational course is to keep your seat.

Beating around the bush Be brief 5.54 Not only do we regularly determine to cross-examine without first considering whether it’s necessary, but even more regularly we embark upon an unnecessarily lengthy cross-examination. For some

reason, perhaps due to professional culture or received habit, there seems to be an equal compulsion to match our opponent time wise, giving more or less equal prominence to the cross-examination as to the examination-in-chief. This is simply wrong. In an area in which there are no fixed ‘rules of thumb’, we venture to suggest that in the run-of-the-mill case (if there is such), a good cross-examination should take no more than about 70 per cent of the time it took for evidence-in-chief. Of course, cases will vary widely. For some illogical reason, we continue to feel we have not done the job, we have been inadequate or incomplete, if a long cross-examination is not attempted. That myth must be discarded and we must feel completely at ease, indeed virtuous, on completing a short, polished, purpose-driven cross-examination. As Younger is reported as saying in the early 1970s, crossexamination is like a commando raid, not the invasion of Europe. There are sound and practical reasons for being brief. A tribunal, especially a jury, has a limited concentration span, so the longer you take the less will be absorbed. Most trials are truly fought on one or a very few central issues. It is a mistake and very bad tactics to run a trial on, for example, 20 points, when really there are only two or three good points, and the rest are essentially minor or peripheral. The same is true for good cross-examination. This is not to say that a crossexamination should be superficial or merely formal. Cross-examine to the minimum extent necessary to achieve your pre-planned aims, and no more. [page 143] So the first guiding principle is don’t unless you must; the second is to be as brief as possible.

Big noting

Use plain words and simple current English 5.55 We are by training and inclination inclined to use long, technical words. When expert witnesses are involved, this is even truer. We tend to pick up and use terms familiar to them, or to us, forgetting that the consumer of both evidence and advocacy, the judge(s) and the jury, must also understand it all. The sin of commission is that we all like to show that we understand these often complex terms and concepts, as we must. But it is not our understanding that matters, it is the tribunal’s. As a matter of communication, it is necessary to reduce complex technical matters to a level that may be absorbed and understood by the tribunal. We must therefore avoid the tendency and desire to show others how erudite we are generally, or how understanding we are of complex technical issues. You are not there to impress others — to big note yourself — you are there to present your case in the way most likely to be accepted. Therefore, do not use legalese, do not pick up police jargon, and do not adopt technical or scientific language; avoid what Cicero called the ‘tangled clumps of twisting polysyllables’. Use the language likely to be in vogue with the average juror, or in that particular tribunal and one that avoids commonly used familiar rhetoric. Use the language of the public bar, without the adjectives, if you must, but speak at the level of the jury or tribunal.

Looking for trouble Know the answer before asking 5.56 Never ask a question to which you do not know the answer, unless you are indifferent to it. That is, do not ask a question which may produce an unfavourable answer. Some questions can be critical — indeed, the whole case may turn on one question. If you face such a critical point, you should not ask the question unless you know the answer that the witness must give. That does not mean that you should avoid the critical point — merely that you approach it cautiously, one step at a time, until the risk is minimal. If it becomes

apparent that the answer on a critical issue will not be favourable, you can avoid asking the question. Failure to observe this rubric is indeed ‘looking for trouble’. As the countless examples show, you invariably find it. The witness you are cross-examining is adverse. If you ask a question without knowing the answer, you should assume you will receive an adverse one. The time for discovery is over. If you don’t know the answer, don’t ask. Examples of breaches of this golden rule are many. One is that of a cross-examination of a plaintiff farmer, who claimed that his crop had been destroyed by the neighbour’s cattle. The cross-examination was directed to showing there was a freak storm on the night in question. The plaintiff conceded that there was heavy rain, strong wind and even hail. Having achieved what he had set out to do, the crossexaminer went on regardless: ‘So it could have been the storm that destroyed [page 144] your crop?’. Disaster had to follow, as it always does: ‘Oh yeah, but it would not be shitting in it’. Knowing precisely when to stop in these circumstances can be difficult, but the temptation to go on must be resisted at all costs. Further examples of such questions may be found in the sins of ‘going for the jugular’ and ‘going fishing’.

Going for the jugular One question too many 5.57 It can be a real temptation when you have backed the witness into a corner, to deliver the coup de grace. Usually described as ‘one question too many’, the results will either allow the witness to explain or to wiggle out of the corner:

Q — Well then, if you couldn’t see, how do you know he bit off the victim’s nose? A — I saw him spit it out [and:] Q — Constable, you were wearing hobnailed boots on flagstones. How could you have been so close without being heard? A — I was riding my bicycle.

Where you put the conclusion that flows from the carefully constructed line, obtain only a denial, or an embarrassing answer and no more. Most advocacy books contain classic examples of such questions. In the following, counsel is trying to prove a certain residence is a house of ill repute. The woman said to rent the subject premises is in the witness box under cross-examination: Q — Madam! [pause] You say you rent this house? A — I do. Q — Can you produce a receipt for any rental agreement? A — No, I pay in cash each week. Q — Where does the cash come from? A — Out of my pay. Q — Pay for what? A — Bit of this, bit of that. Q — Quite a few bedrooms in that house? A — Yes four or five, but I have many friends who visit at times. Q — You arrive each day, middle to late afternoon. A — That’s right, varies a bit though. Q — Afterwards several other ladies come within half to an hour or so. A — Yes, I always have afternoon tea every day. Q — During every weekday as well as weekends? A — Yes, I am a very sociable person. Q — Around ‘afternoon tea time’ some men start arriving don’t they? A — Yes friends of mine, friends of the girls. Q — Not very good friends, they don’t stay too long? A — Some do, some don’t. Q — Must be a very long afternoon tea. A — Depends what you mean, I like to keep an open house.

Q — But most of the men don’t stay very long. A — Some do …

[page 145] Q — But then others come? A — Yes, open house as I said. Q — And it’s not until about three or four in the morning that your young ladyfriends begin to go home. A — Can stay all night if they want. Q — But the young men stop coming about an hour or so before them. A — We don’t turn them away, as I said, it’s an open house …

Having established a very strong basis upon which to argue that the house was set up as contended, counsel, like so many counsel, couldn’t help but take the final (fatal) step. Q — In fact you run a brothel don’t you? A — [Pause] — [looks at counsel] — [pause] — [looks at counsel again, and finally answers]: ‘I knew I’d seen your face somewhere before’.

The one question too many, the fatal final question breaks three fundamental rules of good cross-examination: never allow a witness to explain; always remain in control; and save the ultimate point for the final address.

Going fishing Probing without purpose 5.58 The time for discovering new facts about the case ceases before the hearing actually starts. Opposition witnesses will not offer any favours. It follows that any attempt to explore new matters for the first time is likely, nay inevitably, going to produce an adverse answer. You must work on this basis at all times. As we have discovered, neither ask a question you don’t know the answer to, nor go ‘probing’

without a distinct purpose in mind and without carefully assessing the chance of a hostile answer being much more likely than not. This principle, that you don’t explore new facts in cross-examining (that is, cross-examination is not a fishing expedition) flows directly from the case theory, which has already rationalised or reconciled all the known facts, and from the basic aims of cross-examination. This is to establish so much and only so much from the witness as is necessary to support the argument you have prepared for the final address. Chapter 2 emphasised that, contrary to commonly prevailing mythology, trials are won or lost more in the preparation stages than in the actual courtroom. It also referred to the modern view that you should be in a position to make the final address before the case commences. The reason for this is that everything, bar the totally unexpected or unforeseeable, should take place in court according to a well conceived plan whose ultimate resolution will fall to be determined according to the case theory. By embarking upon a fishing expedition, you will put all of this at risk and allow haphazard events to control the case, rather than you. You cannot be reactive in running a case; you must be pre-emptive. By all means, investigate the facts thoroughly before trial, but on no account do so in cross-examination, unless the outcome will be favourable. Of course, you must remain flexible and occasionally unpredictable things will take place in court [page 146] which require you to reconsider the decision not to explore. In that rare case, you begin with a strong presumption that the outcome will be adverse and so you only ask the ‘fishing’ question if it is absolutely necessary (for example, to put instructions) or only when you actually assess the chance of a favourable answer as a strong one. Going ‘fishing’ is an example of asking a question when you do not

know the answer, and even worse, the probability that whatever the answer, it is certain to be damaging. This fish will inevitably take the bait.

Dropping your guard Inviting explanations 5.59 This consists of two related propositions: always ask leading questions, and, careful probing apart, never ask ‘How?’ or ‘Why?’ questions. That is to say, do not permit, let alone invite, the witness to explain. As surely as you do, he or she will. In the same way, it is important to refuse to be enticed into filling gaps in a witness’ evidence. These have in common the deficit that they surrender control to the witness. By asking only leading questions, you can maintain control throughout the crossexamination. It is fundamental to proper examination-in-chief that you must not ask leading questions. It is equally fundamental that the reverse is true of a good cross-examination; you must only ask leading questions. Every time a ‘How?’ or ‘Why?’ question is asked in crossexamination (as opposed to examination-in-chief), you will see the witness seize the opportunity to repair, restate or revive the evidence being challenged. A common variation of this is to ask: ‘Are you sure?’. This is often asked when the counsel cannot think of anything else to ask. The answer will always be ‘yes’.

Going over the top Repeating the evidence-in-chief 5.60 It is a habit of the legal profession to preface questions with, ‘you have said …’; ‘Your evidence-in-chief was …’; ‘you say …’, and so on. This is a sure way of allowing the witness to repeat the evidence-in-chief. As we have seen in Chapter 3, the more it is repeated, the more likely it is to be accepted, which is precisely the

reverse of that which is sought to be achieved in cross-examination. Even more damaging, this form of questioning actually has the unwanted repetition being a matter of your doing and not the witness’, which is a further step along the path of reinforcement, and hence acceptance. Do not therefore ask questions which by content or anticipated answer afford the opportunity to reinforce the adverse evidence by repetition. The only exceptions are when you are embarking upon a constructive cross-examination (whether the technique of insinuation or otherwise) or where you want to reinforce and pin down the witness to the apparently damaging fact because you are about to discredit the witness on that very issue, such as: by proving a prior inconsistent statement; by showing that a witness belonging to the other party contradicts the [page 147] witness on that issue; or by calling a witness in your own case to disprove the relevant fact. ‘Going over the top’ by giving the opportunity for the witness to repeat evidence only enhances its value.

Worrying about the next question Listen to the answer 5.61 Cross-examination is too often regarded as the high point of a case and as an exercise in which the legal profession habitually harangues witnesses. As all trial lawyers know too well, this is very wide of the truth. Good cross-examination is a very demanding business and there is ever present an expectation that every time an advocate stands to cross-examine, the aim will be to beat the witness into submission. The cross-examination is also expected to continue for so long as it takes to achieve that end. It is a time when many of us

may be nervous and for all these reasons we tend to be preoccupied with the questions rather than the answers. Consequently, we miss the stage when answers are sufficiently favourable to enable us to discern when the point has come to stop. An amusing, although unlikely, example of this is given by Younger in The Advocate’s Deskbook, p 297: Q — Did you then enter the oval office? A — Yes. Q — What did you see? A — Well, I walked into the oval office and there was the president, naked as a baboon, prancing around on all fours with the Gemstone file in his mouth. Q — And when did you next see the president? [or:] Q — Officer, what did you do then? A — I went and got a list of the defendant’s previous convictions. Q — And what did you do after that?

There are other very practical reasons to listen carefully. The question may not have been understood, you may wish to crossexamine further on the precise answer or use it in closing address, so that your recall or notes need to be accurate, and it is also the essence of taking and maintaining control. All of these predicate close attention to the answer. There is a sound further reason: it is the answers that constitute the evidence, not the question!

Going back for your hat Don’t try to improve on a good answer 5.62 Never try to improve on a good answer. The injunction, ‘Don’t go back for your hat’ comes from the western front in World War I. A soldier making it safely across no-man’s land was always told to accept his safety with gratitude — the great gain against a small loss — to ‘go back for your hat’ was to invite death or mortal injury. The rule is true for cross-examination. This could be expressed as ‘do not ask an unnecessary question’. Once you have a favourable answer (or

omission, as in the identification example given above) take the benefit of it. Do not ask another [page 148] question to clinch the matter. Do not even seek to have it repeated. The additional question may result in the loss of all that has been gained.

Slanging the witness Don’t argue, ask questions 5.63 Never argue with the witness. There are no exceptions and only one loser. There is no quicker way to surrender control or lose the sympathy of the court. If a witness gives an answer which is absurd, or attempts to be personally offensive, remember — you are in control, not the witness. These are the very kind of answers you want. Ask another polite, pointed question, but do not otherwise respond — you will have the chance in address, as Carson did when he had refused to be drawn in the cross-examination of William Gilbert. (W S Gilbert had sued the Era in defamation; the matter complained of and relevant portions of the cross-examination are extracted and discussed at [12.4].) The important point to be made is — you have the last word. Do not damage its value by wrangling with, or ‘slanging’ the witness. Cross-examination does not mean examining crossly.

Jumping the gun Save the final point for the address 5.64 Save your comments and your argument for address — just as Carson did in the example given above; just as counsel should have in

the ‘brothel’ case quoted above. Not only is it important that you not be drawn into an argument with the witness, it is also essential that your cross-examination consist of asking questions, not making speeches or comments. Moreover, such questions, if properly characterised as argumentative, are objectionable: see also [7.4], 1(e). Your task is not to persuade the witness that your propositions are correct. You need only persuade the tribunal or jury of that. There is no value and a high degree of risk in trying to turn adverse witnesses around in this way. Therefore, never argue with a witness. Argue to the tribunal of fact about the contentious issue in the final address.

Being willing to wound but afraid to strike Avoid ‘puttage’ 5.65 All too often, trial lawyers proceed to put their case to a witness as a compact series of ‘I put it to you’ questions at the very conclusion of the cross-examination of the witness. This is dreadful advocacy. It has every appearance of tucking an unpleasant task away until there is no option left. It looks, for all intents and purposes, as a strange exercise in legal formalism or ritual, all for the sake of the misunderstood and equally misapplied rule in Browne v Dunn. The process always produces a string of successive denials which progressively cement the case against you. The [page 149] very nature of the question ‘I put it to you’ is often misunderstood and rebounds embarrassingly — to a lay observer, like a jury, it may seem unfair. Common retorts to this obnoxious form of question are: What, are you trying to say that …? Is that a question? I was there you weren’t.

Well that’s wrong …! And I put it to you that didn’t happen!

This form of questioning, which we call ‘puttage’ to emphasise its true connotation as outmoded and ineffective, should be dragged into the rubbish bin and deleted forever. Good advocates have never used it and nor should you. In the section dealing with fairness (see [5.23]) we provide advice for this very situation. We repeat that: There is no general obligation to ‘put’ your case; the duty is merely to put so much of your case as concerns that witness. Scatter the task and deal with each part in context. Use as much of the ‘constructive’ phrase as you can for this purpose. Never leave the process to the end of the witness’ cross-examination; at that stage the witness is more likely to be hostile and uncooperative. Only breach the rule, no ‘puttage’ questions, when you desire the witness to deny an allegation which you know that you can refute absolutely. Put ‘puttage’ away forever. ‘Put your case’ intelligently, discreetly, deftly and fairly. Otherwise, the inept formalism of putting your case like a mantra at the end of the cross-examination will be seen by the tribunal and certainly a lay jury, as merely a lame attempt to challenge the witness, yet being afraid to strike. Hence, the catchphrase for this ‘sin’ from Alexander Pope’s poem ‘The Rape of the Lock’. Questions where the cross-examiner is ‘willing to wound and yet afraid to strike’ are, in the words of Lady Macbeth, ‘Letting “I dare not” wait upon “I would”, like the poor cat i’ the adage’ (Macbeth, Act I: vii). There is another aspect to this ‘sin’. When you must put something painful, embarrassing or distasteful, do it directly. Don’t hedge. Be prepared to strike. Don’t do it in a way which conveys reticence or disbelief on your part.

CROSS-EXAMINATION ON DOCUMENTS 5.66 There are two common situations in which you may wish to cross-examine on a document or documents. They are when the document has gone in as part of the evidence-in-chief and you wish to test the witness about it, and where you have, or are aware of, a document, not yet in evidence, which contains material which you wish to use to challenge the evidence of the witness. Where the document is not yours, or not in your possession, you must first obtain it. This can be done by calling for it, with the attendant risks that creates. First, a counsel of caution rather than a ‘rule’ for cross-examining. If a conversation [page 150] or document was inadmissible in evidence-in-chief, cross-examination as to part of it may render the whole admissible with disastrous results. Moreover, mere inspection of a document may be sufficient to render it inadmissible unless it was used to refresh recollection. It seems a cross-examiner will have ‘gone into evidence’ by crossexamination on a document in any of the following four situations: if the cross-examiner places a document in the hands of a witness, identifies it and asks the witness whether he or she adheres to his or her previous testimony; if the cross-examiner shows a document to the jury or asks questions about the document, which has the effect of placing some of the contents of the document before the court; by calling for a document, inspecting it upon its production, and being required to tender the document; by obtaining a document in the possession of the other party or his or her witness and cross-examining on parts of that document which have not been used to refresh the memory of a witness.

You may be faced with the situation where you want to tender a document during the cross-examination of the opposing party’s witness. That may be done in the following way: [Produce the document to the witness.] Q — I show you the document. Would you look at it please? A — Yes. I’ve done it. Q — You recognise that document don’t you? A — Yes, part of it. Q — You do recognise your signature at the end of it? A — Yes. Q — There’s also another signature that you can see? A — Yes. Q — You saw the signature put on the document didn’t you? A — Yes. Q — That is the signature of my client? A — Yes.

If the witness denies any part of the matters put, you may have the document marked and are at liberty to prove it in your own case. An alternative way of proving the document is by using the ‘closing the gates’ method: see [5.51] above. This involves authenticating the document piece by piece and step by step. The document having been produced and identified, the ordinary rules of cross-examination apply. You should be careful to avoid cross-examination on the meaning or construction of the document, except as to the state of mind and understanding of the witness concerned. For prior inconsistent statements, see [5.40]. For maximum effect, as part of performance preparation, you should have planned how and when you are going to tender the document. There should be [page 151]

copies for the witness and each member of the tribunal, as well as the original, and you will be careful to avoid the need to approach the witness box.

ELEMENTS OF CROSS-EXAMINATION Don’t cross-examine without good reason. Cross-examine only to the extent necessary to obtain the material which will support the argument you intend to develop in the closing address as to that witness, which is predetermined by the case analysis and the case theory. Cross-examine for a specific purpose to reinforce first, then to undermine. Generally, do not cross-examine crossly. Be affirmative, and then if necessary: repetition; omitted areas; misleading context; alternative explanations; take the good with the bad, but not vice versa; alternative case. The stop stop stop rule Cross-examine within legal confines: relevance; limits on credit; collateral issues; not unfairly; always ethical. Manner and style: fairness; clarity; courtesy; conciseness; commonsense. Content:

only significant matters; according to plan; [page 152] minimal use of notes; logical order. Establish and maintain control Fields of destruction: opportunity, capacity, memory; hostile or adverse; interest, partiality, bias, motive; prior inconsistent statement; prior inconsistent conduct; bad character, prior conviction, reputation. Techniques: confrontation or attack; probing; insinuation; undermining credit; leading on; closing gates. Cross-examining on documents: calling for documents; affirmation; closing the gate; produce the document. The deadly sins: Rushing in (do I cross-examine at all?). Beating around the bush (be brief). Big noting (plain words, simple English, current usage). Looking for trouble (know the answer before asking). Going for the jugular (one question too many). Going fishing (probing without purpose). Dropping your guard (inviting explanations). Going over the top (repeating the evidence-in-chief).

[page 153] Worrying about the next question (listen to the answer). Going back for your hat (don’t try to improve on a good answer). Slanging the witness (don’t argue, ask questions). Jumping the gun (save it for the address). Being willing to wound but afraid to strike (avoid puttage).

[page 154]

6

REEXAMINATION, REBUTTAL AND REPLY You may seek it with thimbles — and seek it with care — You may hunt it with forks and hope; You may threaten its life with a railway-share; You may charm with smiles and soap — But oh, beamish nephew, beware of the day, If your Snark be a Boojum! For then You will softly and suddenly vanish away And never be met with again!

(Lewis Carroll, The Hunting of the Snark)

Re-examination defined Right to re-examine and its limits Object of re-examination Scope of re-examination How to re-examine Rebuttal and reply Civil cases

6.1 6.2 6.3 6.4 6.5 6.6 6.6

Criminal cases Recent invention Preparation for re-examination Tactics of re-examination Don’t mend holes, mend fences

6.7 6.8 6.9 6.10 6.10

[page 155]

RE-EXAMINATION DEFINED 6.1 At the conclusion of the cross-examination of a witness, the party who has called him or her is permitted to re-examine to explain any part of the cross-examination which has proved unfavourable. According to Buzzard and Howard, Phipson on Evidence [1615], this ‘explanation’ extends to explaining motives for a prior inconsistent statement and to re-examination on inadmissible matter which was introduced in cross-examination, but where there are conflicting authorities cited.

RIGHT TO RE-EXAMINE AND ITS LIMITS 6.2 Re-examination is one of the most useful tools of the trial advocate. It is also one of the least understood and least well conducted. Properly done it can, in a rare case, undo a whole crossexamination, but often can reconfirm evidence made questionable. The right to re-examine exists only when there has been crossexamination, and must be confined to explanation of matters which properly arise from that cross-examination, unless the judge gives leave to the contrary: see The Queen’s Case (1820) 2 Brod & B 284; and Uniform Evidence Acts s 39. It should be noted that, at common law, the rule does not forbid reexamination on parts of a statement necessary to explain other parts elicited in cross-examination, so as to put them in proper context, or to elicit the whole statement on the relevant subject, as was said in The Queen’s Case at 298 per Abbott CJ: … not only so much as may explain or qualify the matter introduced by the previous examination, but, even matter not properly connected with the part introduced upon

the previous examination, provided only, that it relate to the subject matter of the suit: because it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue of what he said on the same occasion.

The rule in The Queen’s Case can make a whole document admissible, although it was not admissible in chief. In this way, reexamination can become the vehicle for the introduction of new and important evidence. The advantage is attended by a concomitant disadvantage — that re-examination is subject to the same rules as examination-in-chief, including the prohibition on leading questions. The task is made doubly hard because it comes at a time when the witness has been unsettled by cross-examination.

OBJECT OF RE-EXAMINATION 6.3 The object of re-examination goes beyond explanation. The aim of the re-examiner is to explain, to complete any matter left incomplete, and to countervail the damaging effect of the crossexamination. In the picturesque passage from Sir Frank Lockwood, which appears in almost every book on advocacy: Re-examination — the putting Humpty-Dumpty together again — was by no means an unimportant portion of an advocate’s duty. Once, in the Court of Chancery, a

[page 156] witness was asked in cross-examination by an eminent Chancery leader, whether it was true that he had been convicted of perjury. The witness owned the soft impeachment, and the cross-examining counsel very properly sat down. Then it became the duty of an equally eminent Chancery QC to re-examine: ‘Yes,’ said he, ‘it is true you have been convicted of perjury. But tell me: have you not on many other occasions been accused of perjury and been acquitted?’ He recommended that as an example of the way in which it ought not to be done.

Not only that, but, with all due respect to the great nineteenth century law officer, ‘re-assembling Humpty-Dumpty’ is not a realistic aim for the re-examiner. The great reason for re-examination is to

prevent the garbling of the evidence that can always be ingeniously done by a skilful cross-examination. The scope for real restoration is very narrow, not least because re-examining counsel cannot lead. This means you must be able to frame non-leading questions which take you to the point quickly, simply and effectively; at the same time, you must frame them in a way that does not further confuse the witness. For this reason many questions in re-examination are long-winded, or introduced by a lengthy preamble. To attempt, in addition, to reestablish a witness’ credit, is unrealistic. W A Wells, former Justice of the South Australian Supreme Court and writer of one of the leading judgments on re-examination, notes that ‘some of the most effective — even dramatic — work in advocacy is done in re-examination’. He said in Evidence and Advocacy, p 196: Re-examination in practice is exciting; it calls for rapid and precise thought, and a careful choice of language. A well-entrenched rule of practice forbids the use of leading questions in re-examination; but re-examination will prove abortive unless the witness’s mind is clearly directed, not only to a specific topic, but also to the facet of the topic under scrutiny upon which, in the judgment of re-examining counsel further testimony should, in justice, be given by the witness. In short, the questions must show the witness what the purpose of the re-examination is, without improperly leading him to the answer sought. Some junior counsel, in their anxiety to avoid an injustice, or indignant at the possible misuse of the witness’s answer, stumble into asking a leading question, to which the opposing counsel immediately and vociferously objects. It is imperative that re-examination proceed smoothly; the last thing you want to happen is for the witness to be rattled by a dispute between counsel.

The leading judgment referred to above was in R v Szach (1980) 23 SASR 504 at 511–19. It clearly sets out the law, which remains unaffected by the Uniform Evidence Acts, and has been applied throughout Australia. While the following passage is long, it is very important and is an area much misunderstood: Before turning to the question objected to, it may be useful to discuss certain misconceptions of the purpose and limits of re-examination that appear, in some quarters, to be virtually ineradicable. There is no doubt that re-examination must, in general, arise out of crossexamination. If, in the judgment of the trial judge, this condition precedent is not satisfied, the question sought to be asked can be asked only by leave. Re-examination is, within its proper limits, a right, although the limits of that right and the occasion of

its exercise is subject to the close scrutiny of the trial judge, who carries a heavy responsibility. What Dixon CJ said of the trial judge’s duty in The Nominal Defendant v Clements (1960)

[page 157] 104 CLR 476 at 479 with respect to re-examination designed to rebut the suggestion of recent invention or reconstruction, applies generally, in my opinion, to re-examination of all kinds. But to say that re-examination must arise out of cross-examination is not the same as saying that all that the trial judge can look at in order to determine the limits of reexamination, is a passage in cross-examination, considered alone and artificially disengaged from the context of the witness’s evidence as a whole. The trial judge is entitled and, indeed, bound to look, not only at the passage in cross-examination that lies at the heart of the application to re-examine, but also at the evidence of the witness as a whole, for the purpose of discerning what are, or may be, the implications of that passage. (Compare Dixon CJ (supra) at 479.) The matter does not, however, rest there. An answer given in cross-examination may, read in isolation, be clear and unequivocal, and yet it may, having regard to the use that will or may be made of it by cross-examining counsel, justify extensive reexamination, in order to explain, or to place in true and fair perspective, the answer given in cross-examination. The leading case of Prince v Samo (1838) 7 A & E 627; 112 ER 606, for example, provides authority for the proposition that where a witness acknowledges in cross-examination that he made a statement with respect to a specified subject matter, counsel calling him may elicit from him the whole of the conversation relative to that subject matter. A particularly illuminating ruling was made by the great Parke B in the trial of St George for feloniously attempting to discharge loaded arms: R v St George (1840) 9 C & P 483 at 488; 173 ER 921 at 924. The victim of the alleged felony, one B E A Durant, had given evidence of the assault upon him, whereupon in cross-examination, he gave the following answers: ‘I had been on ill terms with my father, and I did say that my father was a hoary old villain; I told him my mother said she died a murdered woman, and he was starving all her children, and that he ought to be tied to a cart’s tail and flogged through the village.’ In re-examination, counsel for the prosecution proposed to ask the witness how Mr Durant, senior, had acted towards the witness before he made use of expressions that he conceded he had made. Serjeant Ludlow, for the prisoner, objected, saying, ‘I apprehend that the conduct of Mr Durant, senior, is not evidence in the case’. The report proceeds: Parke B: ‘You have made it so by your cross-examination. To discredit the witness you ask him, whether he did not use violent language towards his father, and he admits that he did; and his counsel, to explain that evidence, may ask him how his

father acted towards him, with a view of shewing that the language was not without provocation.’ The evidence was given, and the witness stated that his father had locked him up for five or six days, in a room at the top of Tonge Castle, saying that he was deranged, and after that put him to live at a small farm where he was boarded, lodged, and clothed at 10s a week. The foregoing principle is, however, found in operation even earlier than The St George case. In The Queen’s Case (1820) 2 Brod & Bing 284 at 295, 297: 129 ER 976 at 980, 981, Abbott CJ gave the answer of several Judges to the following question (asked by the House of Lords): ‘First, if upon the trial of an action brought by A (Plaintiff) against B (Defendant), a witness examined on the part of the Plaintiff, upon cross-examination by the Defendant’s counsel, had stated, in answer to a question addressed to him by such counsel, that, at a time specified in his answer, he had told a person named CD that

[page 158] he was one of the witnesses against the Defendant, and, being re-examined by the Plaintiff’s counsel, had stated what induced him to mention to CD what he had so told him, and the counsel of the Plaintiff should propose further to re-examine him as to the conversation between him and CD which passed at the time specified in his former answer, as far only as such conversation related to his being one of the witnesses; would such counsel, according to the rules and practice observed in the courts below, with respect to cross-examination and re-examination, be entitled so further to reexamine such witness; and, if so, would he be entitled so further to re-examine, as well with respect to such conversation relating to his being one of the witnesses against B as passed between him and CD at the time specified after he had told him that he was to be one of the witnesses, as with respect to such conversation as passed before he had so told him?’ The material portion of his answer reads: ‘I think the counsel has a right, upon re-examination, to ask all questions, which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and, also, of the motive, by which the witness was induced to use those expressions; but, I think, he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness.’ I would emphasise the part of that answer that authorises re-examination for the purpose of drawing forth an explanation of the motive for using the expressions deposed to in cross-examination. The decision of our own Full Court in R v Pullman [1942] SASR 262 exemplifies another application of the same broad principle. In that case, the appellant had been charged with using an instrument with intent to procure a miscarriage. A witness, to whose house the recently pregnant girl had been handed over for what may be called post-operational care, deposed that the accused had given

her money, but she was not sure whether the amount was £4 or £5. Defence counsel cross-examined the witness for the purpose of stressing the uncertainty evinced by her about the amount of money. In re-examination, the witness was asked, ‘Why are you not sure that it was £4 or £5 that Mrs Pullman gave you?’ and the answer was received, ‘Because sometimes she gave me £4, and sometimes she gave me £5’. On appeal, the Court of Criminal Appeal said of this evidence [at 265–6]: ‘If this is taken as a complaint of error in law, it is difficult to see any objection to the action of the Judge in allowing the question to be put. As the evidence stood, it was apparently intended to ask the jury whether they could believe the witness, in view of this uncertainty in her testimony. If she was able to give any explanation, the Prosecutor was prima facie entitled to elicit it, and it is for the appellant to shew that the answer — as given — was incompatible with a trial in due form of law, or alternatively that it was such as to prejudice a fair trial.’ Later, the court added [at 266]: ‘We think that evidence of this kind is admissible when, without it, the transaction — which is the proper subject of the enquiry — would be made to appear unreal or improbable. The jury are entitled to see the transaction as it was, and not as a mere skeleton. In the present case it was impossible to exclude the evidence of the accomplices, which — if it was believed — must almost necessarily have suggested to the jury that ‘this was not the only trip and not the only girl’. We adhere to the practice that evidence of this kind ought not to be tendered except — as it were — under compulsion, but it seems to us that, when the defence had shewn its hand, by stressing the uncertainty in Mrs Fitzgerald’s statement, the Prosecutor was entitled to call upon her for her explanation, and that the answer was admissible,

[page 159] notwithstanding its tendency to disclose other offences (R v Chambers (1848) 3 Cox CC 92; R v Briggs (1839) 2 M & Rob 199).’ The Full Court again considered the propriety of questions asked in re-examination in R v Nation [1954] SASR 189. Nation was charged with attempting to procure an act of gross indecency. The main evidence for the prosecution was given by a police officer who deposed that, using an assumed name, he became acquainted with Nation, who subsequently invited him to his business premises, where, after some conversation of a homosexual character, Nation made the attempt alleged. The police officer was strongly attacked in cross-examination. The Full Court summarised the effect of it as follows [at 193] (Aldridge was the name of the police officer): ‘By his cross-examination of Aldridge, Mr Pickering elicited that he had in London had cases dealing with homosexuality, but those cases were in the normal course of duties. There is no special branch of the Metropolitan Police Force assigned to such offences. Aldridge admitted that he had deliberately lied to the appellant and had done so time and again, and that he had knowingly and consciously told him untruths. Counsel administered a number of questions suggesting that Aldridge had “set himself

out from the outset to trap the appellant”, had set himself out “to lead him on to committing some offence”; that “he was there for the purpose of trapping him, with a view to trying to make an arrest”; that he was “out from the very beginning to see if he could induce the appellant to commit an offence”; that “his purpose in remaining in the appellant’s shop was to try to get the appellant to commit some offence so that he could arrest him”; that he was “deceiving him for the purpose of leading him on into commission of an offence”; that when with the appellant in his shop “he wanted to arrest him”; that he had “led the appellant on in the hope that he would commit some crime of a homosexual character”; and that he had invited the appellant to take his pants off. To all these suggestions made by way of cross-examination, Aldridge gave a denial, but as he admitted having lied to the appellant, and as his evidence about the appellant substantially related principally to homosexual conversation and homosexual conduct it was clearly open to the appellant’s counsel to suggest to the jury that Aldridge’s denials were merely further instances of his willingness and ability to lie, and that he had deliberately and consciously from the beginning set himself out to trap the appellant into the commission of some homosexual offence in order that he might make an arrest. A perusal of the transcript discloses that Aldridge’s answers in cross-examination were, in themselves, pellucidly clear and unequivocal. The Full Court judgment continues [at 194–5]: ‘At the close of the cross-examination, the Crown Prosecutor put certain questions to the witness Aldridge in re-examination, with a view to rebutting the suggestions referred to. The passage in the transcript of the evidence relating to the re-examination by the Crown Prosecutor is as follows: “From my information and instructions I believed that there was a real person named James Miller. I believed that he was associated with a negro. I believed he had been in Sydney towards the end of February of this year. I believed that he had been aboard the American ship Sonoma. “Q. What was the purpose of your contacting, meeting and talking with accused? “A. (Mr Pickering objects.) “Q. By his Honour: Was there anything in particular that you were investigating and looking for? (Mr Pickering objects to this line of questioning.) “A. Yes. “Q. Can you put it in a word?

[page 160] “A. I find it difficult to do so. (Witness instructed to write down his answer.) (Witness’s writing handed to Crown Prosecutor, Mr Pickering, and his Honour. Mr

Pickering objects to witness answering as he has written. His Honour states that he will take the answer without the last three words written by the witness. His Honour strikes out two things in witness’s written answer.) “A. (Witness reads from what he has written without words struck out by his Honour.) To investigate an alleged circle of vice in Adelaide; also the alleged traffic in drugs. That was in conformity with my instructions.” ‘Although there does not appear to have been any objection made by the appellant’s counsel at the time to the re-examination until the Crown Prosecutor asked the question, ‘What was the purpose of your contacting, meeting and talking with the accused?’ Mr Pickering now contends that the evidence quoted was all inadmissible and prejudicial to the appellant. ‘In our view, the nature of the cross-examination and the possibly damaging effect of the suggestions it contained against the police officer’s credit required some explanation of his conduct, if it was available. Almost the entire substance of his conversations with the appellant indicated that homosexuality was the only topic of investigation. It was only when the re-examination disclosed that the police officer’s instructions contained information about an existing person who had arrived in Sydney on the American ship Sonoma, and that his instructions related to investigation of the alleged traffic in drugs, that it was possible for the jury to infer that the association between Miller in Sydney and the appellant in Adelaide might have a wider and more important significance to the police than any homosexual habits the appellant might have. The re-examination also served to explain the length of time expended by Aldridge, and his apparent obtuseness, in the homosexual conversation. In the Court’s opinion, the re-examination to which objection is made was admissible to show that the police officer was acting under the instructions of his superior officer with the object of obtaining evidence about suspected drug offences.’ The most recent discussion of the topic of re-examination occurs in R v Lavery (No 2) (1979) 20 SASR 430. It is sufficient to state here that in cross-examination, a detective called by the prosecution, had given answers the effect of which were summarised thus [at 450]: ‘On the answers given in cross-examination against the background of the detective’s evidence-in-chief, it was open to Mr Abbott to invite the jury to conclude that the former was capable of deliberately misrepresenting an important fact to the appellant in order to induce an admission, and that his credibility should be marked down accordingly.’ The purpose of the re-examination was described in these terms [at 451]: ‘In the present case, the purpose of the re-examination was plain: it was to demonstrate that although the description of the alleged robber did not completely fit the appellant (and in that sense it was therefore strictly correct to assert that “none of the descriptions fitted Lavery”), it was arguable that there was a sufficient correspondence between the description held by the police, and what was actually discovered by the detective about the appellant’s height, build, name, and associate to justify the detective’s assertion — at least in part.’ It was against that background, that I endeavoured to formulate the central principle upon which re-examination operates:

‘The principles governing the purpose and bounds of re-examination have undergone some vicissitudes during the last three decades. Some twenty-five

[page 161] to thirty years ago the submission was often heard in the Courts of this State, ‘This reexamination should not be allowed because the answers given in cross-examination on which it is based admit of no ambiguity.’ Ambiguity in an answer given in crossexamination is, of course, an obvious justification for re-examination designed to resolve the doubt created, but to say that re-examination is confined to questions aimed at removing ambiguities is absurd. For re-examination is allowed for much wider and more important purposes. It is to be permitted, in my opinion, whenever an answer or answers given by a witness in cross-examination would, unless supplemented or explained in the manner proposed by the re-examiner, leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents distortion, or an incomplete account, of the truth as the witness is able to present it. Cf R v Pullman [1942] SASR 262.’ From this discussion of principle, I turn to the ruling given at the trial on the proposed re-examination objected to by the defence. An important part of the Crown case was to prove, if it could, that the prisoner was present in Stevenson’s house at 189 Greenhill Road between the hours of about 5.30 pm, or a little earlier, and 6.40 pm on 4 June 1979. With regard to the later time, a Mr Short, an accountant, who worked in a building facing onto Chinner Avenue, and opposite the Chinner Avenue frontage of 189 Greenhill Road, was called. Mr Short posed that, on the evening in question, he had arranged for his father to pick him up, after work, at 6.45 pm. With the object of keeping the appointment, he left the building where he worked at about 6.35 pm, and walked to a point technically within Stamford Street, but nearly at Greenhill Road where a cement drain block had been installed level with the pavement. From that position he was able to see up Greenhill Road to the front entrance of 189 and a short distance up Chinner Avenue towards the rear entrance of 189. While waiting there, Mr Short’s attention was caught by the movements of a young man. He first saw him walking towards the front gate to 189 at a point somewhere between that gate and the front door. Mr Short watched him as he walked west along Greenhill Road (on the southern footpath), till he reached the corner of Chinner Avenue, and as he turned into Chinner Avenue, where Mr Short soon lost sight of him. Mr Short, however, thought he ‘heard [the] back door [to 189] open or the gate open or a noise similar to a door’. Shortly after that, Mr Short heard the noise of what he believed was a car door opening, and the noise of a car starting up. He saw the tail lights of the car as it backed into Chinner Avenue and then headed away from Mr Short in a roughly south eastern direction. The car started up quickly, and moved off quickly. Mr Short, at the trial, identified the prisoner as the young man he had seen: it

was common ground that he had never seen him before 4 June 1979. He also gave a description of him, as he then remembered it, which formed the basis of a strong challenge to the identification. It should be added that, on 7 August 1979, at about 9.30 am, Mr Short was shown, on a screen, twelve colour slides of young men about the prisoner’s age, and he selected slide 7 as the man whom he had seen at 6.40 pm on 4 June 1979. It was undisputed that the slide selected was of the prisoner, though the photograph had been taken some time before 4 June. In cross-examination, Mr Short deposed that at the committal he had been asked, ‘Can you see that person in court today?’ (that is, the young man seen at 6.40 pm), and that he had replied, after looking at the accused for some ten seconds: ‘The person in the box there (indicating the prisoner) could be the person, but the hair is different.’ Needless to say, the testimony in the lower court rendered Mr Short’s identification before me open to further attack on various related grounds.

[page 162] The transcript shows the following questions to and answers from the witness, and a colloquy between counsel and me: ‘Witness H W Short, re-examination by Mr Martin. ‘Q. You agreed with Mr Borick yesterday after refreshing your memory that in the Magistrates Court you looked at the accused and said: “The person in the box there could be the person but the hair is different.” What did you mean when you said in the Magistrates Court he could be the person? ‘Objection: Objection by Mr Borick. ‘Mr Borick: I object. There is nothing equivocal about what he said there or here. ‘His Honour: That is only one infinitesimal portion of an area where re-examination is permissible. If you look at the general principles in the books you can see there is a much wider principle than that, and, in my view, that statement which you elicited from him is evidence here combined with the references to the slides that make this plainly permissible re-examination. I so rule. ‘Re-examination: ‘Q. What did you mean by the expression “could be the person”? ‘A. I meant that was the person. ‘Q. Why did you use the expression “could be”? ‘A. At that time I was being cautious. ‘No further questions. ‘Witness released.’ The reasoning that lay behind my brief observation to counsel was this. At the trial, the jury were first presented with the unqualified identification of the prisoner by Mr

Short. They next heard evidence of Mr Short’s selection of slide 7 on 7 August 1979; the twelve slides were, of course, to be viewed by them and were in fact viewed in due course. They then heard Mr Short’s answers about what had happened in the lower court. Having regard to the whole of Mr Short’s testimony, it seemed to me that his answers in cross-examination about the lower court identification formed (to use the language of Halsbury, 4th ed, para 280, p 195) ‘part of his evidence given during crossexamination which [was] capable of being construed unfavourably to his own side’, and that it was, accordingly, open to the Crown Prosecutor to re-examine him ‘for the purpose of explaining’ that part. Mr Borick objected to the re-examination upon the ground that there was nothing equivocal about what the witness said at the trial or in the committal proceedings; but he invoked no express principle and referred to no authority. It seemed to me at the trial, and still seems to me, however, that the aim of the re-examination fell fairly within the foregoing principles. I therefore allowed the reexamination.

SCOPE OF RE-EXAMINATION 6.4 The real scope of re-examination is this: where only part of the available material as to a relevant event has emerged from the crossexamination, you may re-examine to put the whole into perspective; where damaging evidence has been elicited or insinuated in crossexamination and there are facts which explain or amplify, reexamination is useful. It is absolutely necessary, in many cases, to give a witness an opportunity, after cross-examination, of explaining any statements inadvertently made during cross-examination. In order to determine whether to re-examine, you need first of all to know the case — you must be able to recognise the damage or potential damage caused to your case by cross-examination. [page 163] The other precondition is that you must have the material to repair the damage. If you have that material, you may re-examine; if you do not, you must not. A good re-examination will not only repair and restore, but will secure a repetition of the most important points of evidence and so imprint it more firmly.

Some counsel are very conservative about re-examination and will only attempt it when certain the witness has the right answers. There are others who are more adventurous, and will re-examine on the basis that they believe (from pre-trial preparation and analysis) that the witness will produce the right explanation.

HOW TO RE-EXAMINE 6.5 There are three steps involved in performing a good reexamination. The first involves giving a clear, direct signpost to the witness about to be re-examined, in a non-contentious way. To do this, you may announce your intention and alert the witness to your purpose by using directional or transitional (and even leading questions): see [4.37]. You are entitled to direct the witness to a particular topic. For example, the witness was the mother of a daughter burned badly by a stove explosion in their home the day before. Her case of damages was based on the stove being in a dangerous condition, to the knowledge of the owner. The defence case was that the child was playing with matches, a case of accident. During cross-examination, counsel put to the mother a statement she had supposedly given to a reporter from a Sunday newspaper the following day, which was to the effect that she believed the child was playing with matches. She was re-examined along the following lines: Q — You were asked in cross-examination about speaking to the reporter from the Sunday Mail. A — Yes, I remember that. Q — In answer to the questions you were asked by my learned friend yesterday, you said …

Alternatively: Q — In your evidence you said …

may be used to do this. Be accurate, in order to avoid objection.

In the example above the following took place: Q — It was suggested during the questions that you told the reporter that your daughter was playing with matches? A — Look … honestly, I don’t remember what I said to the reporter … I could have said nearly anything.

Finally, you bring the witness to the critical point. You must carefully frame non-leading questions which will obtain the explanation, or omitted feature: Q — What time was it when you spoke to the reporter? A — About 10 am. Q — Where had you been beforehand? A — At the hospital. I hadn’t slept for about twenty hours. Q — Where did you speak with him?

[page 164] A — Outside the operating theatre. Q — What operating theatre? A — My daughter was having an operation for the burns, she had been in there for over six hours. Q — How were you feeling when you spoke to the reporter? A — I hardly remember the event, I had just been told that my daughter would probably die.

REBUTTAL AND REPLY Civil cases 6.6 After the conclusion of the case for the plaintiff, it having revealed a prima facie case, and at the conclusion of any evidence called for the defendant, there arises the possibility of the plaintiff introducing evidence in reply, or rebuttal. This may be to call new

evidence rebutting the other party’s case, or the production of supplementary or confirmatory evidence in reply. One must be extremely careful, in calling a case in reply, not to infringe the rule against splitting. This rule may be expressed in a simple way: a plaintiff ordinarily is required to lead in chief the whole of the evidence on which he or she intends to rely. A plaintiff is not entitled to split the case by holding back some part of the evidence in order to obtain a tactical advantage. A complete analysis of the authorities which determine the exercise of the discretion to permit re-opening or evidence in rebuttal in civil cases is to be found in the judgment of Muirhead J in Murray v Figge (1974) 4 ALR 612. Essentially, three matters are required in civil cases for a judge to permit re-opening in order to make good a defect in the case. They are, in order of importance: (1) that the doctrines of fairness and the interests of justice require the evidence to be admitted; (2) that the evidence is important to the result; and (3) that the evidence could not by reasonable diligence have been discovered earlier. Where counsel makes an application on the ground of inadvertence, his Honour was of the view that a fourth ground, namely, that the other party is not prejudiced by reason of delayed introduction of the evidence, must also be established.

Criminal cases 6.7 The position is much clearer in criminal trials, and much more rigid. In Killick v R (1981) 147 CLR 565, reaffirming Shaw v R (1952) 85 CLR 365, the High Court held that ‘the prosecution must present its case completely before the prisoner’s answer is made … the prosecution therefore may not split its case on any issue’. Indeed, before the prosecution will be allowed to supplement its evidence, the matter that arises must be ‘one which no human ingenuity can

foresee’ (R v Frost (1839) 4 St Tr (NS) 86 at 386), and is exercised only in exceptional circumstances: R v Chin (1985) 157 CLR 671. [page 165] It is to be noted that discretion is usually, although not invariably, exercised against the Crown and in favour of the accused. It will certainly not be exercised in favour of the Crown to permit re-opening of the Crown case to prove some matter which has been omitted during the case in chief. Wells J in R v Killick (1980) 24 SASR 137 at 152–3 (in the Full Court in South Australia) set out seven propositions relating to rebuttal evidence which may be summarised as follows: (1) As a general principle, the prosecution must present the whole of its case in chief. (2) There are particular exceptions; for example, where the onus of proof is on the defence. (3) In exceptional circumstances, there is a discretion to allow rebuttal evidence. (4) Any matter raised prior to the trial or foreshadowed in the Crown case should be refuted by the Crown in chief; for example, character, alibi, and so on. (5) Rebuttal evidence will be permitted for the purpose of permitting a witness to deal directly with a breach of the rule in Browne v Dunn (1894) 6 R (HL) 67. (6) The weakening of a defence case arising out of cross-examination of the accused cannot be the occasion of the Crown calling further evidence. (7) Evidence may be permitted in rebuttal where evidence which was initially of doubtful or minimal relevance becomes evidence of clear probative force as a result of the defence which is presented. Note that it is impermissible to call rebuttal evidence to refute

collateral matters raised in cross-examination: see Ready v Brown (1967) 118 CLR 165.

RECENT INVENTION 6.8 Where there has been a charge of recent invention made by the examining counsel, evidence in rebuttal of that charge is admissible in re-examination. The question whether such an allegation has been made is one for the trial judge and not for the jury: see Transport and General Insurance Co Ltd v Edmondson (1961) 106 CLR 23. At common law, a previous consistent statement by a witness is admissible to rehabilitate his or her credit by rebutting the suggestion that his or her testimony is a recent fabrication. In the words of Dixon CJ in Nominal Defendant v Clements (1960) 104 CLR 476 at 479: If the credit of a witness is impugned as to some material fact to which he deposes on the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.

In Fox v General Medical Council [1960] 3 All ER 225 at 230, Lord Radcliffe held that the doctrine of recent fabrication: … cannot be formulated with any great precision, since its application will depend on the nature of the challenge offered by the course of cross-examination and the relative cogency of the evidence tendered to repel it. Its application must be, within

[page 166] limits, a matter of discretion, and its range can only be measured by the reported instances … in which it has been successfully invoked.

Moreover, the attack must go well beyond cross-examination to credit, however much the witness’ credibility may appear to have

been shaken. According to Windeyer J in Nominal Defendant v Clements (1960) 104 CLR 476 at 495: There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify.

An allegation of recent fabrication for the purpose of the rule is not to be found in proof of a prior inconsistent statement, as in Wojcic v Incorporated Nominal Defendant [1967] VR 263. In Nominal Defendant v Clements (1960) 104 CLR 476 at 495, Windeyer J observed: Simply because a witness is shown to have made a statement inconsistent with his testimony, evidence that he had also made consistent statements does not become admissible. And it does not become any more admissible if the inconsistent statement is not an actual utterance or writing, but is the eloquence of silence or of conduct.

Windeyer J also observed (at 494) that there were two kinds of relevant imputations: The kind of imputations and allegations that … will let in prior consistent statements are: First, that the witness’s testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated.

PREPARATION FOR RE-EXAMINATION 6.9 Unlike almost any other facet of the trial, re-examination must be prepared ‘on the run’. Preparation for it is partly to be found in the witness’ proof of evidence, as this will usually contain the additional, explanatory material which you will use to repair the damage. The rest of your preparation must be done while the cross-examination is

taking place. During cross-examination, keep a separate note of the points for re-examination and the questions you wish to ask. In particular, watch the witness to see if there are any answers in crossexamination which he or she wishes to explain or add something to which may modify their effect, and make a note accordingly. In extreme cases you may seek an adjournment for a conference at the end of cross-examination before re-examining, but that is an indulgence infrequently granted. In any event, in a jury matter it may well be a tactical error, for although it gives the witness a chance to collect his or her thoughts, and you a chance to take instructions, it carries the appearance of both collusion and consternation. [page 167]

TACTICS OF RE-EXAMINATION Don’t mend holes, mend fences 6.10 While the right to re-examine can be a powerful tactical weapon, its exercise requires sound tactical judgment. If the evidence given by your witness has not been shaken by cross-examination and there is nothing to be explained, or nothing omitted from the evidence-in-chief that has arisen in cross-examination, do not reexamine, but let the witness go. Similarly, if evidence has been brought out in the cross-examination which favours you, do not seek to repeat or to improve on it. Be content with the favourable evidence and rely on it in your final address. If you take the risk and reexamine, the witness, intending to help you, may mistake your question and recant. It follows that you should not re-examine about insignificant discrepancies or comparatively unimportant matters. Not only does such re-examination give them undue prominence with the jury, but it may disturb the case you have already made. The safe rule is don’t mend holes, mend fences: that is, re-examine only about

important matters; otherwise let well enough alone. If the witness has been completely destroyed by cross-examination as to his or her credit, and is enveloped in hopeless contradictions, the only thing to do is not to re-examine. If the attack on credit is damaging but not altogether destructive, an opportunity to explain is desirable and will likely find the jury sympathetic to the witness. The final tactical consideration is this: you should be at pains not to let in new matter inadvertently when re-examining, as to do so gives your opponent the opportunity to further cross-examine. As a matter of good advocacy, the right of re-examination should be exercised circumspectly and confined to matters of substance. A failed attempt at re-examination will considerably reinforce the points scored by your opponent; correspondingly, a successful reexamination has the twin advantage of restoring your witness and thus enhancing credit and making your opponent look foolish. Do not attempt to improve on favourable answers and do not attempt to reconcile contradictory answers unless you are sure of the outcome, because a third version might be the result.

ELEMENTS OF RE-EXAMINATION Re-examination: must generally arise out of cross-examination; is a right, in proper cases; is not confined to ambiguity in an isolated passage of evidence; its true scope is to explain or to place in true and fair perspective; is permitted whenever an answer or answers given by a witness in crossexamination would (unless supplemented or explained) [page 168] leave open an unfavourable construction which is a distortion or an incomplete account; allows a witness to give the whole of a relevant prior inconsistent statement on the subject matter concerned, and/or to put it in proper context; enables an allegation of recent invention to be refuted where there is a

sufficiently early statement inconsistent with the suggestion of recent invention; permits restoring or re-establishing credit; and cannot be undertaken on collateral issues.

[page 169]

7

OBJECTIONS Whether to object When to object What is objectionable? Objections to the question Objections as to the evidence (or answer) Objectionable questions Leading questions General or unspecific questions Unintelligible questions Duplicitous questions Argumentative questions Questions which call for a conclusion by a witness Oppressive questions Irrelevant questions Questions which assume facts not in evidence Erroneous questions Speculative questions Objections to the evidence Privilege Hearsay Unresponsive or volunteered answers Prejudice Opinion evidence The best evidence rule Parol evidence rule

7.1 7.2 7.3 7.4 7.5 7.6 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.13 7.14 7.15 7.16 7.17 7.17 7.18 7.19 7.20 7.21 7.22 7.23

Improper re-examination Proving exhibits Objection to matter contained in speeches Improper or unethical objections

7.24 7.25 7.26 7.27

[page 170]

WHETHER TO OBJECT 7.1 It should be said that differing views obtain as to the frequency with which objections should be taken. You are more likely to be damaged by objecting to trivial matters than by letting them pass. In other words, only object if the answer is likely to hurt you and you are on strong ground. This is not a view which is universally admired. Many practitioners take the view that counsel should keep out any evidence not strictly admissible, a course which, if diligently followed, adds greatly to the time and cost of litigation. On the other hand, such a course ensures that your obligation to your client is kept to the fore. It can be very difficult to weigh up the balance. It remains the fact, however, that whether the tribunal is a judge or a jury, an over-indulgence in objections creates an adverse impression, especially if what is objected to is insignificant. From a tactical point of view, you should be alert at all times during the examination-in-chief, but object only when you must in order to protect your client’s position. Frequent objections to trivial matters, even if well founded, annoy everyone. Certainly, they may be used tactically once in a while to unsettle your opponent — but that is rare. Juries, in our experience, are suspicious of objections — they think you have something to hide from them. The first precept is: object only when you have something to gain from objecting and then only when you are confident you can make the objection good. In this area, from the tactical point of view, you must have one eye to the Court of Appeal, because the failure to object to the reception of significant material may be fatal to raising the matter on appeal — you may well be bound by the conduct of your case at first instance. Evidence admitted when there has been no objection (or over objection which has not been maintained), however inadmissible, is unlikely to result in the granting of a fresh trial or in

the quashing of a conviction or verdict. It is therefore essential that where the material is crucial to the litigation, objections must be taken and maintained, and reasons for the judge’s decision must be sought. The objection, once taken, must be maintained. That means a clear ruling must be obtained from the bench, and if appropriate, reasons sought. Judges are not as a general rule required to give reasons for rulings on the admissibility of questions, although it is by no means uncommon for reasons to be given. It is otherwise where evidence is objected to as inadmissible, and reasons should always be sought. Also, maintaining an objection means exactly that — even if ridiculed, or if bullied, do not resile from the objection; politely but firmly demand a ruling and, if necessary, ask that the objection be recorded. If the point is not one which arises during the course of the evidence and can be prepared in advance, or if there is an adjournment which can be taken advantage of, then a submission about the admissibility of the evidence ought always be made in writing. This has the double advantage of ensuring the point is understood, and that it is preserved should there later be an appeal. The decision to object having been made, one must always be able to answer the inevitable judicial question: what is the basis? If that basis has been prepared and is in writing, the advocate’s task is much easier. [page 171]

WHEN TO OBJECT 7.2 The question of when to object may be answered in one word: instantly. Objections to improper questions ought be made before the answer is given, or in cases where there is a doubt as to the admissibility of evidence as a matter of law, the objection should be made at the time the evidence is being led, or is about to be led. Even better are pre-trial motions, or preliminary objections at the outset. An

objection may be of little value in the case of leading questions, as the question itself gives the witness the cue. Nonetheless, the objection, coupled with the witness’ subsequent response, provides the basis for powerful comment at the appropriate time and serves as a strong check against any further impermissible leading by your opponent. A clear exception to the rule that objection should be taken instantly relates to opening and closing speeches during the trial, especially where there is a jury. The speeches of counsel conventionally occupy a somewhat peculiar and special position in our law, not being regarded as evidence, but important enough for there to be a decided rule of practice that they should not be interrupted. However, there are occasions when material is discussed during an address which, if incorrect and left uncorrected, may seriously mislead the tribunal of fact. In such a case, it is better to defer any objection until the conclusion of the address or to the next intervening adjournment should that occur first. Frequently, objectionable material introduced in addresses can be raised privately with one’s opponent and corrected without any judicial interference at all. Should agreement not be reached, it is better, if there is a jury, that the discussion take place in its absence, or if the judge is sitting alone, at the conclusion of the address, so that the matter raised can be canvassed when the whole context of the speech is known.

WHAT IS OBJECTIONABLE? 7.3 In anticipation of the inevitable judicial question, ‘What is objectionable?’, one may ask: is it possible to list the several bases of objections, if not exhaustively, at least comprehensively? In relation to the course of evidence, the answer is ‘yes’. Essentially, there are two headings under which objections can be grouped: (1) objections to the question; and (2) objections to the evidence.

Objections to the question 7.4

(1) As to form: (a) leading; (b) non-specific/too general; (c) confusing, misleading, vague, etc; (d) compound/duplicitous; (e) argumentative; [page 172] (f)

calling for a conclusion;

(g) unfounded attack on credit (for inconsistent statement not proved).

example,

prior

(2) As to content: (a) relevance; (b) assuming facts not in evidence; (c) mis-stated evidence/misquoting of witness; (d) speculative.

Objections as to the evidence (or answer) 7.5

(1) Inadmissible evidence: (a) privilege; (b) hearsay; (c) unresponsive; (d) prejudicial but not probative; (e) containing inadmissible material (prior conviction, evidence of insurance, etc).

While the above list is certainly not exhaustive, it contains the basic grounds of objection to evidence in the majority of cases. It should be recognised that many of the categories set out above ought not to be regarded as discrete, but in fact overlap significantly. Relevance, for example, applies equally to question, answer and tender of any evidence, as does violation of the best evidence rule or the application of the rule against hearsay. An outline of each of the bases of objection and to what it may be directed reveals that there are 20 commonly encountered bases for objection.

OBJECTIONABLE QUESTIONS Leading questions 7.6 A leading question is one which suggests the answer to the witness. Leading questions are generally impermissible in chief or in re-examination, except for the preliminary questions, directing a witness’ attention to an area, or dealing with a hostile or adverse witness. Objections to leading questions should be limited to contentious material or to areas where it is intended to test the witness as to accuracy of recollection or credit. Otherwise, they should be permitted as a quick and efficient method of getting material not in issue. They are, in any event, bad techniques from the examiner’s viewpoint, as they deprive the witness’ evidence of weight.

General or unspecific questions 7.7 There are two further types of objectionable questions: those which call for a long narrative response; and those which are asked at too general a level. Either is [page 173]

objectionable. General questions which call for long, narrative answers deprive the opposing party of the opportunity to object, and invite uncontrolled and potentially inadmissible or unresponsive evidence from the witness. There is a broad judicial discretion to disallow such questions. General or unspecific questions may also be objectionable in cross-examination on the basis that they do not clearly direct the witness’ mind to an issue and so create an unfairness to the witness.

Unintelligible questions 7.8 Any question is objectionable as to form if it is not expressed with clarity and in terms that call for and permit a precise answer. So any question which is on its face confusing, misleading, vague or ambiguous is objectionable on that ground. Such questions are frequently encountered where several events or conversations extending over a lengthy period of time are in issue. The aim of objection is to keep the evidence clear and avoid generality.

Duplicitous questions 7.9 A duplicitous question asks two (or more) questions disguised as one. It is objectionable for the reason that a simple answer (yes/no) will be unclear or partially inaccurate. Any such question can be rephrased by asking two or more separate questions, each limited to a simple proposition. On occasion (but rarely) duplicity can be let go for tactical advantage.

Argumentative questions 7.10 A question which invites the witness not to give information but to argue with the examiner is objectionable and should always be objected to either as argumentative or as comment.

Questions which call for a conclusion by a

witness 7.11 For present purposes, a distinction is drawn between conclusions and opinion, on the premise that opinion evidence is the evidence of experts and is admissible if qualifications are established: see Clark v Ryan (1960) 103 CLR 486. In general, lay witnesses testify only as to facts observed, and should be so limited. A question which calls for the witness to deduce from a fact or series of facts some further fact, or draw a conclusion, is objectionable. There are some specific exceptions to this general rule (for example, as to the speed of motor vehicles, age, etc) but the general rule should be enforced wherever possible.

Oppressive questions 7.12 Attacks on the credit of witnesses are subject to a number of statutory and common law restrictions. There are essentially two types of oppressive questions: those associated with prior inconsistent statements; and those which are designed to be offensive or embarrassing. The latter are made inadmissible by statute; the former are admissible once the foundation for them has been properly, clearly and [page 174] fairly established. Before a witness may be attacked in relation to a prior inconsistent statement, the statement must be: materially inconsistent with his or her present evidence; it must be put verbatim to the witness, not paraphrased, summarised or taken out of context; and finally, the witness must be given an opportunity to admit or deny the statement distinctly during the cross-examination. Unless each of these steps is clearly satisfied, the ground for attacking credit on the basis of the prior inconsistent statement has not been established and objection should be taken promptly.

Irrelevant questions 7.13 In order to be admissible, evidence must be relevant to the issue or, in the extended sense, to a fact relevant to the fact in issue. Objections to relevance usually arise in a circumstantial context rather than the context of direct evidence of events which are in issue. If you are compelled to object on the basis that the question calls for an irrelevant answer, it is likely that the objection will need to be argued in a factual context to establish relevance or lack of it. Two cautionary notes should be sounded: first, it is unwise to accept, or to permit the judge to accept a simple assertion from opposing counsel that he or she will ‘link it up’; if there is a jury, the matter should be fully pursued in its absence. Secondly, if there is any prospect that the evidence is relevant, it is likely that any exercise of judicial discretion will be inclusory rather than exclusory, and it is therefore wiser to permit the evidence to be given rather than to object to it and, by objecting, to highlight it.

Questions which assume facts not in evidence 7.14 Questions which assume facts not in evidence are inadmissible unless an undertaking is given to prove the fact not in evidence at a later stage of proceedings. Should that undertaking not be satisfied, then any evidence dependent upon the assumed fact is deprived, not merely of weight, but of its admissibility. Where expert witnesses are giving opinion evidence, it is essential that particular attention be paid to ensuring that the introductory part of the question on which the opinion is based has been proved or is capable of subsequent proof. The corollary is that, in order to strengthen the opinion evidence, all material facts which are in evidence, or which it is intended to prove in evidence, should be included in the question.

Erroneous questions 7.15 A question is objectionable if it contains a mis-statement or distortion of evidence, or if it is an inaccurate repetition of a witness’

previous evidence. Any question which contains this flaw must be objected to immediately, so that the error, mis-statement or distortion is not perpetuated in the evidence of the transcript.

Speculative questions 7.16 As witnesses are not permitted to express their conclusions, neither are they permitted to speculate or guess. Questions which invite such speculation are improper [page 175] and objectionable. However, witnesses are permitted to estimate or approximate such things as distance, time and speed. One must be alive to the distinction.

OBJECTIONS TO THE EVIDENCE Privilege 7.17 Otherwise admissible evidence may be excluded, if objected to on the basis of privilege. There are essentially three forms of privilege. These are: (1) public interest immunity (Crown privilege); (2) privileged communications (for husband–wife, and so on); and

example,

solicitor–client;

(3) the privilege against self-incrimination. The first two forms of privilege may be claimed on behalf of the party asserting them by the party’s legal representative. Objections on the basis of privilege frequently involve lengthy legal arguments and ideally should be dealt with by way of separate application at an

interlocutory stage of proceedings, rather than by way of interrupting the hearing proper. The privilege against self-incrimination is peculiar to the individual witness, who must personally claim it. If objection is to be taken on behalf of the witness, that objection must take the form of asking the judge to warn the witness that in answering the questions he or she may be exposed to prosecution: see Uniform Evidence Acts 1995 Pt 3.10.

Hearsay 7.18 Subject to an ever increasing range of exceptions, hearsay evidence is inadmissible. The rule may conveniently (for practical purposes) be stated as follows: evidence (of whatever form) by a witness of what another person stated on a prior occasion is inadmissible for the purpose of proving that any fact stated by the person on the prior occasion is true. Questions which call for hearsay answers are objectionable unless they fall within one of the exceptions to the hearsay rule. Even where the question put has been perfectly proper, witnesses will frequently give answers which contain hearsay against which one should always be on guard. Finally, it is essential to recall that the hearsay rule applies to documents as well as to oral evidence: subject to Uniform Evidence Acts 1995 ss 59–75.

Unresponsive or volunteered answers 7.19 Unresponsive or volunteered answers is one of those rare categories where either counsel may object: that is to say, the questioner or the opponent may seek to keep out the proffered evidence. An answer which does not directly respond to a question is objectionable as unresponsive. Where the witness’ answer goes beyond the question, the surplusage of the answer is objectionable as volunteered. The rules of evidence and fairness to witnesses do not require the examiner, or the cross-examiner, to accept any statement the witness cares to make in answer to a question which is asked, whether responsive to the question or not.

[page 176]

Prejudice 7.20 Material, although admissible and relevant, can be of such slight probative value that that value is exceeded by the unfair prejudice or inflammatory character which it brings with it. In such circumstances, the evidence, whether documentary or oral, is objectionable and may, in the exercise of the judicial discretion, be excluded. In order to achieve this result any objection to such material must be more than immediate — it must be anticipatory, as once the evidence has been received, any withdrawal of the material is ineffective.

Opinion evidence 7.21 Evidence of opinion is only admissible if the opinion to be expressed is one calling for the special skill or knowledge of an expert, and the witness whose opinion is being sought is established to be an expert in such matters. A witness is allowed to make a statement of opinion with regard to the inferences to be drawn from facts otherwise proven, provided that he or she is an expert: Clark v Ryan (1960) 103 CLR 486 at 491. Moreover, it has always been the rule that the expert is not entitled to express opinion on the ultimate issue. The opinion evidence of experts is therefore subject to objections of two types: objections that the witness is not even properly qualified as an expert generally, or in relation to the particular question now being posed; and second, that the matter in respect of which expert testimony is sought is one where the subject under inquiry does not call for specialised knowledge, and expert opinion is irrelevant.

The best evidence rule 7.22 Secondary evidence of the contents of any document is inadmissible unless the absence of the original document has been properly explained. Accordingly, evidence which is not the best

evidence is objectionable unless satisfactory explanation has been offered (such as a document in possession of a party by notice to produce, or a document in possession of a third party by subpoena).

Parol evidence rule 7.23 The basic rule relating to the admissibility of parol evidence is still to be found in Bank of Australia v Palmer [1897] AC 540 at 545, where Lord Morris said, ‘Parol testimony cannot be received to contradict, vary, add to or subtract from the terms of the written contract’. Subject to five well-established exceptions (invalidity, agency, partially oral agreements, trade customs and the correct nature of the transaction) the rule remains substantially on foot. Where the meaning of a document is clear and interpretation unnecessary, extrinsic evidence is inadmissible. Accordingly, the parol evidence rule has two parts: the inadmissibility of evidence of contents of a document, and inadmissibility of evidence relating to its terms. Its purpose is to prevent a written agreement from being attacked and contradicted by oral testimony. [page 177]

Improper re-examination 7.24 At the conclusion of cross-examination, the examiner-in-chief is entitled to re-examine to explain matters raised in crossexamination. However, re-examination is limited to that purpose. Any attempt by the re-examiner to open up a new line of examination-inchief, or to pursue matters which do not arise from cross-examination, is objectionable and should be resisted. There is a judicial discretion in relation to the course that is to be followed in these circumstances, and cross-examination on the further examination may be allowed.

Proving exhibits

7.25 Before any document or object is receivable in evidence, a complete foundation must have been established for its reception. The type of foundation required is as unlimited as the types of objects which are sought to be put into evidence. In each case, however, if the foundation has not been laid, the object cannot be received. Objection should be made at the time of tender, although as it is sometimes said, a difficult decision is involved as to whether or not to object on the grounds of inadequate foundation. If the problem is readily solvable and the witness is still in the box and able to supply the missing elements, the objection may only force the other party to establish the missing element, whereas if the document is allowed into evidence without objection, the missing element may be raised in the closing address.

OBJECTION TO MATTER CONTAINED IN SPEECHES 7.26 There is a further area within which objection properly arises — to what is said outside the course of evidence. As we noted above, it is better to defer such objections to the end, or to an adjournment, but if there is a serious or harmful breach of the rules, objection should be taken immediately. This will be either for the purpose of immediate correction (especially if there is a jury) or to ensure that the point is preserved for any appeal. For the purposes of listing these objections, no distinction is drawn between opening or closing addresses, although they should be limited to serious or material breaches, not be the product of forgetfulness or inadvertence: mis-stating the evidence; referring to or using inadmissible or rejected evidence; expressing personal views; making an appeal based on bias, sympathy or prejudice; making a personal attack on the opponent or on counsel; and

reference to the penalty or other extraneous consequences of an adverse judgment. [page 178]

IMPROPER OR UNETHICAL OBJECTIONS 7.27 There are really only two categories of improper or unethical objections: The first is the tactical objection, taken either to unsettle the witness, or to unsettle the opposing counsel. Opinions as to the propriety of this course differ. If the objection is truly available (on one of the 20 bases above) there can be no legal criticism. In my experience, such objections are always recognised by the tribunal for what they are. Therefore, they are ultimately counter-productive. If you are the victim of such an objection, the best way to deal with it is to ignore it. Do not react or become involved. Once it has been dealt with by the judge, go on as if it never occurred. The aim is to unsettle you. If you do not lose your place or your temper, it will have failed. If persisted in, it will draw judicial rebuke. The most important thing to note by way of response to such an objection is to ensure it does not achieve its aim. Very commonly in my experience, where a legitimate objection is taken and argued, the counsel examining the witness, whether or not the objection is upheld, moves on to a different topic, or fails to complete the part of the questioning at the point at which the objection was taken. This loss of concentration by the examiner is the result of failing to follow the evidence and should never occur. The second improper objection is more serious but only rarely encountered. This is the objection designed to put before the tribunal something it is not entitled to hear. It is unethical and can never be excused. It is usually reserved for a jury trial.

If such an objection is taken, you may need to consider an application for discharge. In any event, object immediately, making clear that the matter is serious and needs correction, and if it is very clear, apply for a discharge.

ELEMENTS OF OBJECTIONS Only object when you are on strong ground. Do so immediately. Identify the precise basis of your objection. Distinguish between objections to questions and objections to evidence. Objection during addresses should be reserved for serious breaches. Never make improper objections.

[page 179]

8

CLOSING ADDRESS I’ll never throw dust in a juryman’s eyes said I to myself, said I Or hoodwink a judge who is not overwise said I to myself, said I

Introduction The object of the closing address The structure and parameters of address The introduction The statement The proof The peroration or summary The importance of the address An example analysed Statement Proof Style General techniques Some rules for final address Address the issues Address the facts, good and bad Address the evidence Avoid the law wherever possible Keep it short

8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 8.11 8.12 8.13 8.14 8.15 8.16 8.17 8.18 8.19 8.20

Do not read The logical address What you do not say

8.21 8.22

[page 180]

INTRODUCTION 8.1 In contrast to the opening address, or statement, you are permitted to (and clearly should) use the closing speech to argue the case. Indeed, the closing address could properly be called the ‘argument’. This is your best and last opportunity to influence the tribunal, particularly as in the ordinary course you can expect to proceed uninterrupted. This is certainly the case in jury trials where both convention and practice enforce that expectation. It must be remembered that while the addresses of counsel are not evidence, they are nonetheless an important part of the case. For this reason, although counsel are permitted a wide degree of latitude in the closing address, there are rules which describe the permissible limits of comment. There are also practical considerations which circumscribe the address. What I have written as general techniques about manner, voice, pace, simplicity and command of language provides a guide to address, as it does in the opening.

THE OBJECT OF THE CLOSING ADDRESS 8.2

The aims of the final speech are broadly:

(1) to summarise and collate the evidence which pertains to your case; (2) to argue the evidence in relation to the issue or each of the issues (whether of law or fact) which you seek to have resolved in your favour and lead the jury logically to that conclusion; and (3) to destroy or damage the case sought to be made out by your opponent, and to correct any adverse inferences; that is, to clarify,

exemplify and rectify. Where there is no jury the address must also be the vehicle for argument of law to the presiding judge; that is, the principles of law and the authorities relied on. As was explained in Chapter 2 ([2.15]) the time for preparing the final address is at the beginning of the case, and not at the close of the evidence. This is no anomaly. Rather, it is based on the recognition of the necessity of developing a case theory before embarking on the evidence. It is not inflexible. The whole case will be conducted on the basis of what you propose to argue in the closing address according to the case theory. If the evidence does not fall out precisely in accordance with the case theory, you must modify your preconceived closing address accordingly.

THE STRUCTURE AND PARAMETERS OF ADDRESS 8.3 Aristotle, in The Rhetoric, explained the structure of a speech in a way that remains valid and is useful in this context. There are two essential elements: the statement and the proof; that is: (1) what is sought to be established; and (2) the argument made in its support. [page 181] The second element is itself divided into two component parts: the arguments which favour the statement and the refutation of those arguments which might be advanced against the statement. Refutation may be by counter-argument or by demonstrating validity: see Munkman, Techniques of Advocacy, p 146. It is essential to preempt

and destroy your opponent’s good points, for ignoring or glossing over them could be fatal. The speech may also contain an introduction and a peroration, or summary. This last is a technique of rhetoric designed to have dramatic effect as a finishing touch. The Aristotelian model was adopted as an ideal arrangement of a legal speech by Munkman in Techniques of Advocacy, p 148: The Complete Speech A complete speech will therefore consist of: (i)

An Introduction.

(ii) The Statement of the Issues. (iii) The Proof. (iv) The Peroration or Summary.

Narrative will be spread throughout the speech. It should be observed that narrative is both more important for the plaintiff/Crown than for the defence; and that it has a greater place in any event in the opening speech than at the end. Indeed, a closing speech may, in a short case where the issues have been clearly joined on the evidence, be little more than introduction and peroration. Nevertheless, understanding the use of the model above is one of the essential weapons in the armoury of a good advocate. It is as essential as it is obvious that where narrative of the facts is used, it should always be clear and orderly. Cases should always be conducted on an issue or a small number of key issues and they should always be conducted clearly and logically. Confusion, whether as to the issues or the facts, leads to poor presentation and is the symptom of inadequate preparation. Nowhere is this more evident than in address — unless the jury understands the case you seek to make, it cannot decide it. Again, in the words of Munkman, Techniques of Advocacy, p 148: Narrative is used at every stage. Part of the story is often told to explain the issues: this consists as a rule of the facts which are common ground. The rest of the narrative is broken into stages and spread out over the arguments. As each stage of the story is

concluded, an argument is based on it, or often enough just implied, so that the facts are made to speak for themselves.

The parameters will have been set by the case theory at the outset, and the closing argument will parallel, integrate and emphasise that theory as revealed by the opening: Thus, the final argument cannot be fully successful unless the preceding stages of the trial were also successful. The opening statement’s mental image will not stay with the jury unless it is sustained by evidence from the witness stand. More to the point, the final argument cannot paint a picture that is contrary to, or unsupported by, the evidence. While final argument can and should be the capstone of a well-tried case, it is unlikely to be the saving grace of a poor one.

[page 182] In sum, the final argument must tell the whole story of the case, but it cannot tell just any story. The final argument has to complement the portrait begun during the opening statement, and, even more importantly, must reflect and encompass the evidence in the case. This goal can be best accomplished only when the case is present, according to a well-defined theory. (Lubet, Modern Trial Advocacy, pp 385–6.)

The stages of a speech, narrative aside, have, using Munkman’s model, the following purpose and effect.

The introduction 8.4 The introduction is intended to ease the speaker into the speech — to quicken the interest and gain attention. It may also be used by a good advocate to ‘get the jury on side’ at the outset, by removing prejudices, and to make the audience favourably disposed to the case. At least as importantly, if you follow the advice offered here and have prepared your speech as an entity, a good, brief, introduction will make it easier for the listeners, whether judge or jury, to follow the speech. The introduction is to the final address as the opening is to the case. It is therefore important in addressing the jury above all to remove prejudices; it is perhaps the most delicate part of the speech for the defence in a criminal case. This is dealing with so-called ‘points of prejudice’.

The statement 8.5 The statement in a legal speech is usually quite short. It certainly should be as brief as possible while still containing all the necessary information. The statement will usually contain both fact and law. The facts to be proved as well as the legal conclusions which flow from them must be pointed out. Here again the two central themes emerge: issues and clarity. Do not seek to prove more than is necessary — the corollary for the defence is do not seek to succeed on more than the necessary issue. Make points that are easy to follow and accept, not those which are tortuous or unpalatable. The argument must be believable, accord with common sense and be based on the testimony of credible witnesses or arise from inferences which may comfortably be drawn. Do not draw a long bow from a doubtful base. From time to time you will hear it said that defence advocates are better served to create as many issues as possible, on the basis that the more issues the more likely the jury will reject the plaintiff or the Crown on one of them. Rubbish! If you go to the jury with one issue on which you can succeed, your chance of success is far greater than if you raise a dozen issues in the hope that one will find favour. In the former case, you appear clear, confident, and in control. The latter looks like (and often is) a desperate attempt to confuse and obfuscate. Glanville Williams tells the story of a KC’s son who was charged by a headmaster with having broken the schoolroom window: In the first place sir, the schoolroom has no window; in the second place, the schoolroom window is not broken; in the third place, if it is broken, I did not do it; in the fourth place, it was an accident.

This has no better prospects of success with a jury than with a headmaster. [page 183]

Your aim should always be to find an issue or issues on which you can win and on which you are prepared to fight. Strategy and tactics in court, no less than in battle, call for fighting on one front at a time.

The proof 8.6 The function of the proof is not to tell the tribunal what to do; rather, it is the place to identify why they should do it. Here, you should identify the reasons or rationale for deciding in a particular way. That is to say, identify the arguments in support of your case, and in rejection of the opposing case.

The peroration or summary 8.7 This, we have seen, is the dramatic climax of the address. Once it is given, the advocate should resume his or her seat, confident of having driven home a conclusion. Examples are many. Munkman quoted Lord Darling in R v JW Laurie, from The Trial of Laurie, p 199, a classic example: Gentlemen, if you come to the conclusion that Laurie’s was the hand which inflicted the death blow, then all his subsequent conduct is explained. The character and nature of the ground and the other circumstances I have mentioned all point clearly and conclusively to the fact that Rose was killed by the accused. It is to that conclusion that I reluctantly and sorrowfully, yet distinctly and clearly, ask you to come. Gentlemen, it is beyond all reasonable doubt that the accused is guilty of this murder, and I ask your verdict accordingly.

Some writers have said that in a short speech where there are no complaints, the peroration may be ‘dispensed with’. With respect to those learned authors, I disagree. Long or short, simple or complex, a clear and climactic claim for the verdict you seek is in my view the only proper conclusion to a closing address, if the address is really to help your case. As in other stages of the trial process — opening leading evidence, cross-examining — as in closing itself, always ‘start strong and finish strong’. This is the doctrine of primacy and recency — human beings tend to

remember what is first heard and what is last heard.

The importance of the address 8.8 The influence of the final speech cannot be overestimated. As we have emphasised, the whole case is conducted according to a predetermined case theory. The closing address is the stage at which this is fully revealed and its persuasive force exposed. Experience suggests that the final address is vital. A poor address can mar a good case beyond repair — and an excellent address can salvage a bad one. If you accept that the address to a jury is ‘vital’, and that even to a judge or other professional tribunal it remains of substantial significance, you will carefully prepare it. A great closing speech is remarkable not only for its rhetoric, or its elegance, but for its organisation and internal logic. Juries are no fools. They are [page 184] drawn from a wide section of the community and show great intelligence and discrimination in their assessment of evidence and their acceptance (or otherwise) of arguments made to them. Slavish imitation of the styles of great advocates is pointless — there can be no universal rule as to style. You must utilise the style and manner of presentation best for your personality and strengths — enhance your best attributes and eradicate your worst. What remains true is that eloquence is a valuable asset and ease with language an essential tool. Personality plays a powerful part in the presentation of cases. With the exception of Munkman, the books on advocacy all agree that an appeal to the emotions is out of place in the address. This argument fails to take account of the fact that the jury advocate at least must carry his or her listeners along. Both the intellect and the will of

the juror must be engaged if the argument you propound is to carry the day. It therefore follows that you will, in your address, be urging the tribunal to draw inferences or make findings of fact from other evidence in your favour. While you may force a conclusion by inexorable logic, a tribunal is never ‘forced’ to accept a conclusion prompted by or inferred from evidence. Therefore, your appeal to logic — to the intellect — must be accompanied by an appeal to the emotions. This carries with it a caveat by way of corollary — do not overstate your position. You should limit your emotional appeal to what is naturally raised by the case — a naked and artificial plea for sympathy unsupported by logic or reason will attract only the ire of the trial judge and may well lose the jury altogether. To this extent the writers referred to above are correct; logically reasoned argument alone may win a case where an appeal to the emotions will not. However, in their union the two can be irresistible.

An example analysed 8.9 All editions of this book have concluded this section on the structure and elements of the final speech with an analysis of an address by Mr W D Hosking QC (as he then was) in the inquiry into the convictions of Alister, Dunn and Anderson, the so-called Ananda Marga Inquiry before Wood J: It was and remains a fine example of a closing address made by a powerful advocate, not to a jury, but to an intelligent and analytical judge. It nonetheless contains all the attributes of a ‘complete speech’ in Munkman’s language. Introduction Mr Hosking: Your Honour’s most important task is to answer, if your Honour is able, what sort of a man is Richard Seary on whom so much depends. We would offer this quotation: ‘Richard Seary, drug addict, informer and mentally disturbed fantasiser, must be one of the most unreliable persons ever presented as the principal prosecution witness on a charge of serious crime’. We would submit your Honour will be deeply troubled by the absence of Seary and your Honour would find that his absence is the result of what can only be described as craven cowardice. It is cowardice of what, we would submit, is a man who has been demonstrated to be a proven perjurer, and the question which must trouble your Honour is why would he hide himself overseas but nonetheless seek

[page 185] to influence a Judge of the Supreme Court by what would have been clandestine correspondence, except for the fact that your Honour directed the correspondence to be drawn to the attention of the Inquiry. We would submit that the role of Seary and the material proved in this Inquiry makes it unsafe in the administration of justice in this State for the convictions of these young men to stand. Seary was recruited not by the police going out on to the highways and byways but by offering himself to police investigating an outrage. His self-appointed task was to implicate the Ananda Marga, although first of all he implicated the Hare Krishna. For his efforts he received $6,000 plus some expenses. History reserves a special and scornful place for those who betray and receive money for it and the immorality of what can only be described as grubby work means that those who are prepared to become informers and infiltrators are usually the flotsam and jetsam of society and the material indicates that such a man was Seary.

This is an ideal introduction. It precedes any analysis of the issues joined between the parties, but immediately raises the central issue (the reliability of the main Crown witness, Richard Seary) in terms which lead the listener towards the desired view. Although couched in colourful language, the aims of an introduction — to prepare, to interest, and to dispel any antipathy to one’s client — are all fully developed here.

Statement 8.10 Using a linking paragraph the address flows effortlessly into the statement which clearly identifies the three issues in the case, the chief of which had already been referred to in the introduction. It also offers a solution which is easy to reach: We would submit that to allow these convictions to stand on the evidence before your Honour, would be an affront to the community’s sense of justice. The evidence compels these findings: first of all, that the trial miscarried because relevant and highly significant material relating to Seary was wrongly held from the petitioners. Your Honour may be unable to say whether this was deliberate or accidental. It may be that your Honour regards it as not necessary in fulfilling your Honour’s commission to seek to apportion any blame. Indeed, your Honour’s conduct of this Inquiry has been more directed to the obtaining of the truth. There has been a lot of material kept from the petitioners; Tape 6A and the Hare Krishna material are glaring examples and they

highlight the injustice which we submit was done because of its non-availability at the trial to those representing these young men. Seary was presented by the Crown as a credible witness. Fresh evidence at this Inquiry renders that presentation as untenable. Whether or not the Crown ought to have known that he was not a credible witness is another matter your Honour may not make a finding about but if your Honour finds he is not a credible witness, in accordance with the guidelines which your Honour laid down, that is an important issue which forces consideration. The third substantial matter which your Honour would find is that the crossexamination of the petitioners was ‘improper’ using that word in its legal sense, in that it exceeded the bounds of fairness. The petitioners submit that further, as the access to relevant material that they sought in subpoenas and otherwise was denied to them in circumstances which precluded any appellate challenge, the trial process

[page 186] failed for that reason. The principles, of course, as to the application of the proviso, the effect of new evidence, what is a miscarriage of justice, are well known to your Honour. Useful examples are: Duff v R (1979) 28 ALR 663 at 675, and Mraz v R (1955) 93 CLR 493 at 514.

Proof 8.11 From this point the balance of the address consists of a lengthy proof, through which there is spread a narrative of events and argument in support. An excerpt is sufficient to reveal the structure involved: This Inquiry has been notable for the number of secret documents which were produced for your Honour’s staff to consider, for counsel assisting your Honour to consider and indeed your Honour in private chambers has had a look at this material in relation to relevance. There has been the secret material from ASIO which, as a result of your Honour’s representations to the Attorney-General of Australia, leading counsel for each interest have been allowed to see. We would submit that ASIO material would certainly have been available to the petitioners for the purposes of cross-examination and would contain valuable areas of cross-examination which could have been put to Detective Krawczyk and Detective Helson in particular … we do submit that had counsel had all of the material and all of the information, the decision would have been taken in an entirely different atmosphere. If there had been no suppression, then for reasons advanced this morning it may be that it would not have been necessary to take that terrible decision which, as it turned out, had terrible consequences.

In this excerpt, the narrative is interspersed as appropriate throughout the proof. It will be seen that the proof is supported by argument intended to appeal both to the intellect, and, as well, to encourage a sympathetic response (‘terrible decision which had terrible consequences’) in the listener. The address from which we have quoted is unusual in the sense that it does not contain a final ‘dramatic’ summary, or peroration. In that context, a case which was an inquiry after conviction before a Justice of the Supreme Court sitting alone, this was no flaw. As contentious and difficult matters of fact and law had been raised in the address, the latter part of it developed into discussion between bench and bar on the authorities. As a result a conscious, tactical decision was made to conclude the address in that way, as a justifiable exception to the general rule.

STYLE 8.12 It has already been said that there can be no rules as to style and each of us must develop our own different style, whether measured, temperate and elegant, or flamboyant and emotional. These two styles perhaps represent the extremes. Each, however, requires a sound grasp of legal principle and an ability to deal incisively with the facts. A condition precedent to the development of good style is clarity. You can develop style only after you are confident of being heard and understood. To this end good diction and simple language are fundamental. They must be delivered [page 187] to the audience, not to the bar table; you must speak loudly enough to be heard both by judge and jury, but do not yell at them. A speech

delivered in a constantly loud voice, however eloquent it may look on paper, soon loses its audience — likewise an address which is delivered in a monotone. When you can speak clearly, naturally and as though you believe in the justice of what you are arguing, and ensure that you are heard and understood, you will begin developing style. Clarity depends on correct use of language and the avoidance of ambiguity. This is important for two reasons: first, you may be misunderstood; and second, you hand your opponent a stick with which to beat you — he or she will be quick to capitalise on any ambiguity, and after you have resumed your seat, it is too late to say, ‘but I didn’t mean that’. The other essential element (all too often overlooked) is manner of presentation. What you say will be affected not only by how you say it but by your appearance. The hand-in-the-pocket peripatetic shuffler does not impress. Worse, the ‘drama’ of your speech will suffer if you slouch and if you constantly look at the bar table flicking through papers. These may be the traits of nervousness but they look like incompetence. These are the classic indicia of the absence of performance preparation. This applies equally to addressing a judge sitting alone or to an appellate court. The story is told of a senior judge hearing junior counsel addressing on sentence with both hands in his pockets. To make a point, he took one hand out to make a gesture: His Honour: Both hands, Mr X. Counsel: I’m sorry, your Honour. His Honour: Both hands, Mr X; your pockets (indicating). Counsel: I’m sorry, your Honour: As I was putting to your Honour, I think the prisoner … [interrupted] His Honour: Mr X, if you imagine that the Court is remotely interested in any expression of personal opinion you wish to offer you are sadly in error. Counsel: I’m sorry, your Honour. His Honour: So you keep saying Mr X, but you continue to offend …

Both manner and manners go to make up style. With them your life as an advocate will be made easier.

GENERAL TECHNIQUES 8.13 There are some essentials for an effective closing address, use of which will maximise your communication with the tribunal. (1) Manner: always remain polite. This will ensure continued attention, engender trust and not alienate. Avoid sarcasm. (2) Voice: neither overly dramatic nor a loud, braying monotone. The aim is a sufficiently clear, well modulated delivery to gain attention and retain interest. (3) Delivery: vary the pace and the pitch. Pause for effect. Avoid the temptation to be too quick, which is a product of nerves. [page 188] (4) Language: simple, interesting, clear and well chosen language. Active personal language and colourful images which are also apt are important. (5) Gesture: emphasise and highlight points with appropriate measured and controlled gestures. Do not fidget or be overly demonstrative, or move around the courtroom more than permitted by the jurisdiction. (6) Talk at the level of the audience: by this we mean do not talk down to juries, nor grovel to judges. Avoid abstractions and clichés. Be concrete and clear. (7) Eye contact: first, make eye contact, and maintain it. This is a function of communication. In a jury trial, eye contact must be with the jury and the jurors, and be constant. Failure will alienate and convey the impression you do not believe what you are saying, and deny the chance to assess whether or not your points are being received. With eye contact you will be able to respond flexibly as your perception dictates. (8) Avoid notes: we deal with this in more detail below, but, in the

words of the Hon John Davis (1940) American Bar Association Journal 898: The eye is the window of the mind, and the speaker does not live who can long hold the attention of any audience without looking it in the face. There is something about a sheet of paper interposed between speaker and listener that walls off the mind of the latter as if it were boiler-plate. It obstructs the passage of thought as the lead plate bars the X-rays.

(9) Demeanour: this applies both to counsel and to the client. A dignified, courteous and grave presentation is more impressive. The seriousness of the occasion should be reflected by the parties as well as by counsel. The tribunal will be unimpressed by undignified conduct of either.

SOME RULES FOR FINAL ADDRESS 8.14

There are eight rules to note for the final address:

(1) Address the issues. (2) Address the facts. (3) Address (but do not recite) the evidence. (4) Avoid the law where possible. (5) Keep it as short as possible. (6) Do not read. (7) Use a logical scheme of attack. (8) Choose what not to say. Remember your tactical decisions. This is your final opportunity to return to your overall strategic plan and reveal it fully. It is your client’s final opportunity to deal with the facts.

Address the issues 8.15

You have spent the last day, or week, or month, focusing the

tribunal’s attention on the issue (or issues) on which you wish to fight this case, and no other. [page 189] Now you have the opportunity and indeed the duty to show clearly what that issue is, in a logical and precise speech, and moreover, to argue and explain why it must be resolved in your favour. Do not waste it. You will have no other chance; your opponent will give you no quarter if you fail — ‘We heard a lot of evidence about the fingerprints — Detective Smith was cross-examined for two days about it! NOT ONE WORD in the address’ he or she will say, and your failure to address the issues, however innocent, however explicable, could be damning.

Address the facts, good and bad 8.16 Palatable and unpalatable, the facts won’t go away. Some ‘facts’ are arguable — that is, not clearly established by evidence; others are equivocal, not clearly pointing to guilt or innocence, or to the resolution of an issue. Still others are, in conjunction, capable of supporting inferences that either assist or harm you. Whatever they do, they cannot be ignored. You are on your feet addressing the body of persons (or the person) who is the constitutional judge of the facts. If you do not put your case on the issues on the facts in your address, you fail in your most important task at trial — and you may be certain no one else will perform it for you. The real responsibility of being counsel comes to the fore at this time of trial — on your shoulders rests the burden of having the facts determined in your favour. It is easier for juries to understand facts where they are presented chronologically. Similarly, arguments are more readily received when they are built on a sound platform, so anchor your argument on the established facts, and then move to those supported by independent

evidence the jury is likely to accept. Address your affirmative case first, then your opponent’s.

Address the evidence 8.17 Had the evidence been insufficient to put your client at risk, you would not now be on your feet addressing. But here you are — why? Because of the evidence. So use it. It is capable of more than one construction. There are two immutable rules. The first is, do not misquote — get it right; the second is do not stretch construction or inference to absurd lengths (unless you do so satirically, for effect). As to the first rule, it is best generally not to quote the evidence but to accurately put its thrust and meaning. If you do quote, observation of the rule is obligatory and breach of it attended with consequences too horrible to contemplate. You will be stopped by your opponent or (worse) the judge and castigated before the jury. It may well be suggested or inferred that your error is not entirely innocent but a sinister attempt to mislead. Whichever of these, the trust you have built up will be lost. Used properly, an address structured on the evidence and its acceptable interpretation is a powerful weapon. If you are plaintiff or Crown, you have called your evidence in a certain order to give cogency to your case; to clearly expound the issue. Now you have the evidence to support the opening and to confirm the logic which will compel the jury to convict. Clearly, you must address on it, highlighting those strengths in accordance with the case plan. [page 190] If you are defendant or accused, you can make a shambles of your opponent’s cleverly constructed house of cards by comparing and contrasting evidence of different witnesses, in chief, in crossexamination, or in the Crown case — but whatever your approach, remember you not only should address on the evidence, you are bound to, and while it is true that your address is ‘at large’, your

address is limited to the evidence on the case. No argument — however impressive — is available unless there is evidence about it, or from which it may be inferred. When appearing for the Crown there are specific limitations and duties imposed in relation to address. As many of them do no more than re-state the general rule, it is desirable that counsel, whether prosecuting or not, be aware of them. It has often been said that the duty of prosecutors is ‘to regard themselves as ministers of justice, and not to struggle for a conviction, as in a case at Nisi Prius — nor be betrayed by feelings of professional rivalry — to regard the question at issue as one of professional superiority, and a contest for skill and pre-eminence’: R v Puddick (1865) 176 ER 662 at 663. Perhaps the best statement to be found of this principle is still in Maxwell v Director of Public Prosecutions (1934) 24 CR App R 152 at 176, where it was said: But it must be remembered that the whole policy of English criminal law has been to see that as against the prisoner every rule in his favour is observed and that no rule is broken so as to prejudice the charge of the jury fairly trying the true issues. The sanction for the observance of the rules of evidence in criminal cases is that, if they are broken in any case, the conviction may be quashed.

This subject will be elaborated on in Chapter 10. Where the evidence is circumstantial the final address must either accumulate it to highlight its cumulative force, or analyse it to try to dismantle the adverse inference. Also consider such issues as credibility, reliability, accuracy, inconsistency, motive and demeanour, and finally analogy, which Lubet defines as ‘explaining human conduct by reference to everyday human behaviour’: Modern Trial Advocacy, p 396. Finally, do not recite what witnesses have said — analyse it.

Avoid the law wherever possible 8.18 In addressing on the issues, it will usually be necessary to delimit both factual and legal issues; and in criminal cases to refer to law both as to the elements of the crime and generally as to such

issues as burden of proof, corroboration, complaint, and so on. It is suggested that you should do this as simply, clearly and succinctly as you can. There are two very sound reasons: first, the law is the province of the judge. His or her duty is to direct the jury in that regard and you should trespass on the judge’s role no further than is essential to make your address on the facts understandable. If you are too expansive on the law, you run the risk of error and being embarrassingly corrected by the judge, or inadvertently raising an issue which was otherwise not relevant. Second, you risk boring the jury and causing them to lose their concentration: remember, the jury is there as judge of the facts — they will be directed as to the law by the judge. If he or she errs [page 191] you can apply to correct the summing-up after the jury retires and, in any event, so long as you take the point, you will be protected to some extent on appeal. For you to preempt the judge’s task of summing-up the law in detail is an unnecessary discourtesy best avoided. Before moving to consider the techniques which will allow you to outline the law in a way calculated to avoid criticism, comment or interruption, there is one exception to the rule of which you need to be aware. That is raising an issue of law on which you wish the judge to sum-up — getting the law you want before the jury. You will know that some areas of law, while established principle, are not such as must be left to the jury. Others will be left only when clearly raised by the facts (intoxication, character, self-defence, and the like). It may happen in any trial that you will wish to have the jury directed as to a matter of law which falls into one or other of these categories. This should be done by raising the matter with the judge at some appropriate stage towards the end of the trial, before you address, and certainly before the summing-up commences. In a civil non-jury case the law is an integral part of the address

according to the issues. In such a case the legal aspect is likely to be a dialogue with the bench.

Keep it short 8.19 Joseph Conrad once told of the captain of a windjammer carrying all plain sail looking at a bank of black storm clouds in the south, and, as he went below, saying to the mate, ‘Don’t you bring nothin’ in’; and as an afterthought, ‘and don’t you carry nothin’ away, neither!’. The same is true of your address. You must not leave anything of significance out, but you must not go too long or say too much, or be too repetitive; that is, you must at all costs avoid boring your audience. You must establish early in the trial a rapport with the jury and the judge if possible. When you address you must be sure that you do not lose that rapport. When you address, there are two basic rules of communication: first, get their attention; second, keep it. The best advocate in the world can only hold their audience’s attention for a finite time. Anyone can go on too long. What is the optimum time is something which you determine intuitively, and which varies enormously from case to case. In a short and simple case, an address of minutes will sometimes suffice: on other occasions, particularly where a trial has gone weeks or months, you may find that to cover the areas on which you are required to address may take in excess of a day. The decision is ultimately yours and in making it you must use your own forensic common sense. Bear in mind that attention spans are limited and that the tribunal receives information aurally, and remember the Churchill maxim — the ear is one tenth the organ of the eye. Use visual aids wherever available. Where exhibits support you, reinforce your address with them. Coupled with this rule of brevity is the corollary: do not be unnecessarily repetitive. Again, this rule is not absolute. To make a point, you may need or wish to repeat evidence using it in two or three contrasting ways or contexts. As a device,

[page 192] you may take a fact and by constant repetition, using it as the centrepiece and widening the context with each repetition, demonstrate the changing inferences which may be drawn from it or highlight its unreliability. In every such case, though, remember, ‘brevity is the soul of wit’, and once you have lost attention it is the devil’s own job to get it back. Remember, it is sometimes said that those who have nothing to say contrive to spend the longest time saying it.

Do not read 8.20 This is consonant with what we have said many times about the over-use of notes. Nothing is more embarrassing or more boring than counsel who has written an address overnight and resolutely reads every word, not looking up and speaking without feeling. Reading is frequently a function of lack of confidence — but if once you start, experience suggests you will never acquire the confidence to give up the ‘prop’ of the written address. It is the worst of faults for an advocate. In simple cases, do without notes altogether if you can — if you must have them, keep them to a minimum and refer to them as little as possible. In complicated cases or long cases, it is necessary to remind of witnesses or facts as well as of principles of law, and notes will be an essential tool in your address. In this context, remember that the aim of the address is to summarise, to argue, to destroy or damage your opponent’s case. This cannot be achieved by a recitation of the evidence. To succeed, you must engage the audience’s affection, emotion and intelligence. This cannot be done by reading a prepared text. One of the early books on advocacy by Judge Donovan makes the suggestion that counsel should make a practice of addressing each juror in turn, making each one feel that the submissions are being addressed personally. Psychological motivation and personal communication are very real

factors in an address and must never under any circumstances be overlooked. In this context, we again warn against reading slabs of evidence from the transcript. When you set about your argument on the evidence, quote no more than is unavoidable, refer to no more than is necessary, but overlook nothing that is vital. Above all, do not read unless it is essential.

The logical address 8.21 Throughout this chapter, indeed throughout the book, we have counselled that you should conduct every case from beginning to end as a logically constructed entity. Every case should have a logically planned beginning, middle and end. Every case should be conducted from the outset upon an overall strategic plan. As the address is your case in miniature, your final summary is of what you have attempted to do in conducting it. It too should be logical, prepared, and reflect and perfect that overall strategic plan, demonstrating that you have been able to bring it into full effect. It therefore follows that the address is not something which has just grown in the last 10 minutes before you get to your feet, but is something which, like the verdict, you have been working towards from the outset. [page 193] Your address should have commenced in preparation as you analysed the issues in your advice on evidence. It is that early stage of proceedings which should have crystallised in your mind the issues on which you decided to fight and led you to isolate those issues. Do not expect that you will be given an adjournment or time to prepare argument by way of address in other than the longest and most complicated of cases. Therefore, not only must preparation for the address begin at the beginning, but your trial technique must be designed to facilitate the address. Note-taking and the techniques used for picking up points for cross-examination can also be used for

the purpose of modifying the address. This, of course, is difficult to do during your own cross-examination, but a system of making quick notes as points arise without disrupting the flow of cross-examination is invaluable in this regard, particularly as you can never be confident of having a transcript before your address. Preparation, like everything else in a trial, is simplified by having a logical framework into which your case fits (the strategic plan) before you commence. Into that framework you will have now to fit not only facts and argument but the comments that you wish to make on the witnesses who testify to the issues; where they should be accepted, where rejected, what use can be made of their demeanour, and how the evidence of different witnesses fits together. Bear in mind that the comparison process is one which is of great assistance so long as you limit your address to real discrepancies rather than apparent or minor ones which do not take the matter any further.

What you do not say 8.22 This does not set out to indicate to you what you must not say in order to avoid giving offence or making a faux pas in the context of an address. Rather, in the context of your tactical decisions what you choose not to address can in many cases be as important as what you do in fact use in addressing. There are few things in a case more important than judicious selection among the facts and the witnesses. Failure to address may be sufficient to allow an issue to go by and not be raised again. Eliminate dead points. Filter out minor or inconsequential issues and concentrate on those which are central or decisive. Identify the ‘red herrings’ and deal with them as such. Do not refer juries to questions of sentence, or to the consequences of a verdict, one way or the other. Do not use inflammatory language, or make appeals to the personal interests of the tribunal. This includes histrionics, overzealousness and aggression.

Do not become involved in a personal contest with your opponent; this is sometimes called ‘ankle biting’. There are good reasons for this. Juries and judges react negatively to such conduct, and by doing so you surrender the agenda to your opponent. You may also appear too defensive or signal weakness, which elevates the opponent’s case. [page 194] Do not tell the jury how to perform its task, or lecture it. Tell it why. Use ‘we’ to bridge the gap and seem to provide a common goal. No introductions, ‘thank yous’ or apologies. This may well be seen to be presumptuous or patronising, or may well be misunderstood as attempts at ingratiating. Do not read extracts from judgments or textbooks which contain propositions of law. Where you refer to law do not add comments as to the authority or source. Do not give personal opinions. Do not use such phrases such as, ‘I think’, ‘in my view/opinion’ and the like. Do not refer to the person you represent as ‘my client’. This is a variety of ‘lawyer speak’ which distances and dehumanises your client. It also detracts from your presentation by reducing you to the level of a hired gun: As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself, if he could. (Samuel Johnson.)

ELEMENTS OF CLOSING ADDRESS Keep faith with the tribunal. Close in parallel with opening. Argue in accordance with the case theory.

Mental pictures carefully created in the opening can be recreated and reinforced in address. Simple, active, persuasive language. Deal first with the affirmative case from a solid foundation and then attack the opponent’s case. Preempt and undermine the opponent’s argument. Use a structured narrative presentation. Begin and end powerfully. General techniques — performance preparation. Adhere to the rules for address. Avoid the ‘what nots’.

[page 195]

9

APPEALS

‘To my mind’, observed the Chairman of the Bench … cheerfully, ‘the only difficulty that presents itself in this otherwise very clear case is, how can we possibly make it sufficiently hot for the incorrigible rogue and hardened ruffian whom we see cowering … before us. Without, of course, giving the prisoner the benefit of the doubt, because there isn’t any.’

(Kenneth Grahame, The Wind in the Willows) Introduction Preparation Notice of appeal Written submissions What to argue Presentation The beginning Questions from the bench Flexibility and tact Flexibility Tact Watch the bench Expedition Preemptive argument

9.1 9.2 9.3 9.4 9.5 9.6 9.6–9.8 9.9 9.10 9.10 9.11 9.12 9.13 9.14

[page 196]

INTRODUCTION 9.1 Advocacy in appellate courts, particularly the ultimate court of appeal of any jurisdiction, demands skills of quite a different order from first instance trial advocacy. Although different skills are required (especially where short time limits apply, as in the High Court of Australia, Supreme Court of Canada and Supreme Court of the United States), the techniques of preparation and case analysis discussed earlier apply equally to this very specialised area of advocacy. It is in the execution that differences occur, because the tribunal now usually consists of several judges, a reasoned judgment or summing-up is being scrutinised, the use of written material is more extensive and there is likely to be greater judicial intervention. All of these present unique problems at appellate level. At all stages the central goal remains that of persuasion. The appellate task varies markedly from the trial, because in an appeal court the legal context is the reverse of that at trial. The position on appeal is that the parties, now appellant and respondent, are no longer plaintiff, accused, prosecutor or defendant. Whatever the party represented, the fact is that an appeal is from a regular verdict or judgment returned by judge or jury. For practical purposes that verdict is presumed correct until the appellant can satisfy the court that the verdict was wrong, and wrong in a material, rather than a minor, respect. Unlike the trial where at the beginning the issues are at large, in the appellate court questions of fact and contentious issues of law have been resolved in a way necessarily adverse to the appellant. This presents a formidable barrier to success. Moreover, there must be more than an error. The error must warrant reversal or setting aside the verdict or judgment. The

advocate must consider whether the consequence of the error was operative. When the appeal is to a second appeal court from a decision which has upheld the findings of a trial court this barrier will be even greater. This is sometimes expressed as the doctrine of ‘concurrent findings’. This partly explains the inordinate difficulty of obtaining leave to appeal to the highest court of the land. Further, because of its position as the ultimate court of appeal, it is a court in which questions of policy as well as questions merely of law are agitated and they form a significant part of its decision-making process. So it is that appeals to the High Court of Australia may raise points of general interest but nonetheless special leave will be refused. This will occur where the case in question is not an ‘appropriate vehicle’ for determining the point, or the facts do not raise the question in a clearcut way. There are also limitations on the scope of appellate review dictated by legal principle, particularly when challenges are made to discretionary orders, findings of credit relating to witnesses or parties, and primary fact-finding. The role of policy was explained by former Chief Justice Mason of the High Court of Australia (‘The Role of Counsel and Appellate Advocacy’ (1984) 58 ALJ 537 at 541): You will have noticed that policy considerations now play a larger part in the Court’s judgments. Accordingly, arguments need to take account of them. However, it is the

[page 197] shaping of the critical proposition of law that is all-important and the relevant policy factors, though influential in this process, have a subordinate role. Articulation of policy into a proposition or principle of law is perhaps the most challenging task confronting the advocate and judge.

At that level, the issues must transcend the interests of the parties

and involve matters of general principle or public importance. Accordingly, it is necessary to consider the wider implications. The qualities which have been earlier canvassed in this book, of clarity, conciseness and commonsense, remain pivotal to effective appellate advocacy, but the characteristics of confidence and control assume an even greater significance. At the forefront it must be remembered that with appellate courts — perhaps particularly with appellate courts — persuasion is the most important function that counsel has to perform. There are sound reasons for this. First, a heavy onus rests on the appellant to show that the decision below was wrong. Secondly, appeals, of their very nature, are conducted in a more compact manner than hearings before a judge or judge and jury, so that it is truly said that an hour is a long time in a court of appeal. Moreover, the usual practical considerations which apply at nisi prius have no place in the court of appeal — scoring points from one’s opponent does not belong here. Finally, the dynamics of a court consisting of three or more judges are very different and much more testing than an appearance before any single judge, whether friendly or hostile, pleasant or unpleasant. At this level, persuasion takes a different form — it is important that the argument advanced should be one designed to capture the interest of the court and to ‘insinuate that it has the merits as well as the law on its side’. The time spent in and, indeed, the time permitted by a court of appeal to argue and develop points of law and make submissions with respect to factual issues, is usually proportionately far less than the time available for agitating exactly the same issues at trial. An hour in an appellate court might translate to days of hearing at a trial court, and it is very unusual for an appeal to occupy more than a day, even though the appeal might follow from a trial which took a week or more.

PREPARATION 9.2 Proportionately more preparation time is necessary for an appeal than for a hearing at first instance. Although it has been emphasised earlier that there is never a situation in which too much preparation can be devoted to a case, on appeal preparation is even more critical. Even more time will be spent on ‘performance preparation’ because in the appeal court, the manner and method of preparation must accommodate three (and perhaps even five or seven) judges. This presents the practical necessity of having to prepare an approach to be taken to not one, but many judges, who may have differing approaches or emphases. [page 198] It is important to stand back from the case. As Kirby P (as he then was) put it (‘Ten Rules of Appellate Advocacy’ (1995) 69 ALJ 964 at 966): If a single item cannot be perceived, the skilful advocate will, nonetheless, try to identify the salient issues. It is the advocate who puts herself or himself into the position of the decision maker, and strives to see the problem from that perspective who is likely to have most influence on the outcome of the contest.

It is necessary to re-analyse the case, taking into account the judgment and findings being challenged. That case analysis will also factor in the new considerations identified above, and relate both to the intrinsic merits of the case and an innate sense of justice. The situation can be more difficult for the advocate who appears for the first time on appeal. There is an advantage in this, as the advocate comes to the case with a fresh mind uncluttered by trial issues. The concomitant disadvantage is that the atmosphere of the trial is not readily available to fresh counsel. In either case it is necessary to read (or reread) and master the evidence. For that purpose, counsel who comes to the appeal having

conducted the trial must undertake that exercise again, with a conscious view to generating a new outlook on the case rather than just adopting the stance taken at trial. In the end result, the time spent in preparing an appeal is likely to be much more than the time spent in actually arguing the case before the court. In an appeal court what may be termed ‘jury points’ or ‘trial points’, although legitimate tools of the trial process, are generally inapplicable to the more refined and rarefied atmosphere of the appellate court. A different technique of persuasion is required, for the further reasons identified by Aldisert, himself a Federal Court of Appeals Judge in the United States, in ‘Winning on Appeal’, pp 4–5: The trial courtroom is where the great stars of the legal galaxy shine. But trial courts and appellate courts are constellations far apart in that galaxy. The two settings demand different skills, knowledge and tools. Those lawyers who perform as both trial and appellate advocates must learn to adjust their techniques to match the demands of each court. The appellate lawyer deals primarily with law, not facts, and only with professional judges, not lay juries. A trial lawyer may take days or even weeks to persuade a trial judge or jury; an appellate lawyer has time dribbled out to the minute. In the US Courts of Appeals (and other ‘hot’ courts where the judges have studied the briefs prior to oral argument), much of the time is devoted to answering questions from members of the bench.

Another consideration is (whether you are acting for appellant or respondent) that the appellant bears the onus of persuasion but enjoys the tactical advantage of making the first impact on the minds of the judges. On the other hand, the respondent, while having the benefit of the judgment, must anticipate both the opponent’s arguments and the court’s response to the appeal. When called on, the respondent’s position is more delicate still: either the appellant has persuaded the court there is a serious basis for allowing the appeal, or the court has indicated an adverse preliminary view. To meet these contingencies the respondent needs to be very flexible and astute to focus on the issues which have apparently influenced the court’s thinking so far. [page 199]

NOTICE OF APPEAL 9.3 Given that so much appellate advocacy revolves around written materials, it is important that the materials be arranged in a way that encourages an orderly consideration of the issues to be raised on appeal. This process begins with the notice of appeal itself. A properly constructed notice of appeal, containing carefully drafted and orderly grounds, is itself an effective piece of advocacy. Hence the notice should clearly identify the error complained of, its context and perhaps contain a brief indication of the argument. The same reasoning applies to notices of contention or of cross appeal. Too often a notice of appeal is lodged in general terms simply ‘to preserve the client’s position’, or adopts the unacceptable ‘shotgun’ approach: throw in every point no matter how feeble, in the vain hope that some shot may reach the target. This is very poor advocacy indeed. An effective ground of appeal identifies the precise point of error, indicates exactly where that error occurs in the judgment or transcript, and demonstrates why it was erroneous. The grounds of appeal should be numbered sequentially and ordered logically, in the sense that those which arise first should be dealt with first. For example, matters of jurisdiction would be dealt with in advance of other grounds; grounds which would result in the quashing of a conviction before any others in a criminal trial; and in a civil case, those giving rise to setting aside the verdict before those merely likely to result in the appeal being allowed in part. A good ground of appeal will avoid generalised complaint. For example, a ground of appeal in a court of criminal appeal: The Learned Trial Judge erred in his directions to the jury as to the provocation.

is a very poor and unforgivable piece of advocacy. Properly drafted, a ground of appeal in relation to such a complaint would be better expressed as: The Learned Trial Judge erred in his directions to the jury as to provocation when he

directed the jury that ‘the test of provocation is wholly objective’ (summing-up p 54) and that the Learned Trial Judge ought to have directed that: … the provocative conduct must be addressed from the viewpoint of the particular accused and the attributes or characteristics of the accused, including but not limited to age, sex, race, physical features, personal relationships and past history, and mental instability or weakness, may be relevant to the context, the implication of his conduct and in assessing the gravity of the provocative conduct.

Another example of a badly constructed ground of appeal (this time in the civil context) would be: The Learned Trial Judge erred in finding that ‘… the seat belt fitted to the vehicle was not in good working order’.

A better approach would be to plead the ground in the following way: The Learned Trial Judge erred in ruling (judgment p 2) that he was unable to find ‘… that the seat belt available to be used by the plaintiff was in good working order’

[page 200] and that his Honour ought to have found on the whole of the evidence that the seat belt fitted to the vehicle was in good working order. Particulars His Honour’s findings that … The uncontested evidence of the witness X (which his Honour accepted at p 6) …

On reading such grounds of appeal the judges are immediately in a position to identify where the error complained of occurs well before the oral argument or even the written argument. They are in a position to check the precise passage about which complaint is made and to associate it with its wider context; that is, the directions which come before and immediately after the relevant direction, or the surrounding findings in the judgment. The first example also immediately informs the reader what the appellant will contend was the correct direction. In the latter example the evidence which supports the allegations that the finding was wrong ‘on the evidence’ is revealed.

Thus, a properly drafted ground of appeal is an effective piece of advocacy in its own right. It should be used as an instrument of persuasion, not solely as a formal compliance with the rules.

WRITTEN SUBMISSIONS 9.4 Like the notice of appeal, the requirement of lodging written submissions offers another opportunity and another vehicle for persuasion. It is well to remember that the written word endures. As Gibbs CJ observed (‘Appellate Advocacy’ (1986) 60 ALJ 496 at 497): This outline forms an important part of the argument, since if skilfully drawn it can immediately attract the attention of the Court to the strongest points of counsel’s submission. Moreover, it is an enduring part of the argument. There is a Latin phrase (platitudes often sound better in Latin) ‘literae scriptae manent’ (written words remain) and the written outline of submissions remains visible when the sound of counsels’ voices no longer vibrates in the memory …

A point that is made in writing may also be made in oral submissions, yet the manner of presentation, the words chosen and the way in which it is ‘performed’ make the two quite different. In general terms, the written submission provides the opportunity to present crisply and clearly the nature of the argument, to identify error (if for the appellant) or establish that the verdict was sound in law and fact (if for the respondent), to deal concisely with the facts and relate the law to them. It should furnish what Oliver Wendell Holmes described as the ‘implements of decision’. A written submission cannot deal with judges’ questions, advance argument as it develops or for that matter vary argument according to the exigencies. These things distinguish a written argument from an oral presentation in which the advocate must be prepared to be flexible and responsive, especially if judges express a differing view or accept a new argument for consideration other than those presented in the written submission. The oral argument is the place for well chosen, intuitive and reflective advocacy. The written argument is the

place for well chosen, predetermined and logically progressive argument. [page 201] The nature and style of written argument is something which varies very markedly from advocate to advocate and case to case, but nevertheless we think that there are a number of common factors which can be demonstrated and which distinguish the good written submission from the poor written submission. Experience suggests that the following are broad characteristics likely to annoy or alienate judges: (1) Prolixity — including irrelevancies, excessive quotation of fact or authority and failure to distil the essence of the argument. (2) Issue overload — too many issues or points; the failure to reject weak points; lack of selectivity. (3) Incoherence — lack of logical, unified concept or theme; no interrelated organisation. (4) Inaccuracies — mis statement of facts and issues; omitting or misquoting authorities, quoting out of context. (5) Mechanical defects — lack of index or adequate chronology; inaccurate references (authorities and transcript); typographical errors and poor grammar and spelling; failure to specify relief. Some of the factors which make for good submissions are: (1) Brevity — Generally speaking the written submission is the place for brief, succinct and carefully used language. Rhetoric and adjectival reference (except when absolutely necessary) should be reserved for oral argument. The touchstones are condensation and selection. (2) Propositional argument — Rather than setting out long quotations (whether from the evidence or the case law) the written outline

should shortly state the proposition of the fact or law for which the party contends, together with the appropriate (and precise) references which support the point. If critical material must be cited, this should be minimalist. Long passages should be avoided. (3) Conciseness — A relatively short written submission is effective advocacy. Marshalling a great deal of material by succinct summary and transcript references enables the judges to identify critical material in advance of argument, or between judgment reserved and judgment delivered. The point of the written argument should be to bring material together in a comprehensive, logical manner. An unduly long written submission is likely to deter judges from close and detailed reading rather than encourage it. It is easier to read and absorb a succinct argument than a discursive one. Where the nature of the case requires lengthy quotations or detailed references it is often more satisfactory to deal with these by annexure rather than incorporating them in the main submission. (4) Logic — It is equally important that the submissions be set out in a logical framework. The advocate will often wish to present argument in an order different from that in which the grounds have been pleaded, and on preparation some grounds will appear stronger than others and it may [page 202] therefore be necessary to abandon some grounds altogether. For the purposes of written argument, it is important that the strongest, most compelling argument be presented first. Any grounds which, although not as strong, relate to that ground and are capable of providing it with additional force should be placed next in the structured framework of the argument, and grounds which are to be abandoned or not argued should ideally be

identified for the judges so that the court does not waste its time reading and preparing for material in respect of which no argument is to be advanced. The logical framework will mirror the case analysis and provide a clear theme for the appellate court. (5) Formatting — Written submissions which are pleasing to the eye are for that reason more easily absorbed by the reader. Bad formatting detracts from the appearance of the document and its persuasiveness. Experimentation and layout options during the draft stages will often indicate a most effective layout. Advocates should be wary of being too rigidly attached to their own views as to format or to formats imposed by tradition or secretarial insistence. Clear design and formatting as an aid to presentation can add immeasurably to the persuasiveness of written material; for example, be wary of the overly complex numbering system. Simple progression is easiest to follow. Similarly, there is a growing tendency to use footnotes. These do little to enhance the argument and much to distract the reader and interrupt the flow of the text. Where necessary it is better to use an appendix. This will be a rare occurrence. We commonly assume that judges have limitless uninterrupted opportunities to read and digest all written submissions in peaceful quiet surroundings. In the words of an appellate judge: This assumption is wrong — the truth is that written submissions are sometimes, but not very often, read in a cloistered setting, a quiet library room where the only sound is a softly ticking clock. Briefs usually must compete with a number of other demands on the judge’s time and attention. The telephone rings. The daily mail arrives with motions and petitions clamoring for immediate review. The electronic mail spits out an urgent message or another judge’s draft opinion, the reviewing of which is given a higher priority than drafting your own opinions. The clerk’s office sends a fax with an emergency motion. The air courier arrives with an overnight delivery. The law clerks buzz you on the intercom because they have hit a snag in a case. So the deathless prose that you have been reading in the blue or red-covered brief must await another moment. Or another hour. Or another day. So the briefs are wrapped and taken home, where they are to be looked at after the evening news but before your nine o’clock favourite television program. In the meantime, your spouse wants to talk with you, or the kids clamor for attention, or friends telephone. The briefs are rewrapped and set aside for another time. Or they are

read in airport waiting rooms or aboard a plane with the person in the next seat glancing across and saying, ‘Gee, I suppose you are a lawyer. Let me tell you about the claim that I have.’ Or the briefs are read late at night in hotel rooms with poor lighting, thus inviting soporific consequences. The written brief can be an effective instrument of persuasion only if it is concise, clear, accurate and logical. Only if it is readable. (Aldisert, Winning on Appeal, p 25.)

[page 203] It is the function of the written submissions to pave the way for the oral argument. The major distinction between the two is the immediacy of oral advocacy and the opportunity it provides for interaction with the appeal court. The written material having already been delivered, the question arises: what to argue?

WHAT TO ARGUE 9.5 We begin by adopting what a former Chief Justice of the High Court of Australia stated: Fundamental to success in appellate advocacy is ability to perceive the point or points upon which the resolution of the appeal will depend and to cut a path directly to those points without meandering to explore side issues, however interesting or worse still, entangling the court in irrelevancies of fact or law. The skill lies in discerning what are the critical issues and distinguishing between what is and what is not necessary to be presented to enable the argument directed to those issues to be properly understood. (Sir Harry Gibbs, ‘Appellate Advocacy’ (1986) 60 ALJ 496 at 497.)

He went on to add that ‘effective High Court advocacy requires the tactics of Blitzkrieg rather than those of a war of attrition’. The first such tactic is mastery of materials. Two things are involved in this, the first being a complete grasp of the facts. Nothing is more inimical both to persuasive argument and to your own sense of confidence and comfort in court than floundering when faced with questions of fact from the bench. Very often in an appeal one judge at least will have worked up the factual material in the case very thoroughly, and ask questions derived from that material. Unless you

are able to respond to those questions quickly, clearly and effectively you lose your train of thought and your momentum. Even if this is not the case, it is important to make clear to the bench the facts on which you rely. These are frequently to be found, in jury trials, in the summing-up, otherwise in the transcript of the evidence. It is necessary to be able to support any statement of fact that you make by reference to the evidence without thumbing through pages hoping to find support for the proposition you advance. The next aspect of mastery of the materials is to know what legal principles apply to those facts. It is best to do this first in the abstract, as a means of formulating your approach to the case, then to follow it by determining which of the cases supporting that principle are relevant to the argument which you have determined to present. In this aspect of the task of preparing an appeal, structure is everything. It is, of course, necessary to prepare not only your arguments, but the countervailing arguments which may be advanced against you, and as well to be prepared for contingencies. Nevertheless, in the preparation of an appeal, in general establishing the legal principle is not the most daunting part of the task. It will frequently happen during the course of an appeal that more than one judge will want to raise perceived difficulties of fact and law with you. These will not always occur in a relational and/or organised way and not infrequently one finds oneself bombarded by questions from the bench. It is not possible to [page 204] answer all at once. The best course is to permit yourself to be diverted as little as possible from your structured line of argument, dealing with those questions which relate to it directly as they arise. If, however, you do ask for leave to return to a question raised by one of the judges later in argument, make sure that that is what you do.

Otherwise, the cardinal rule is: do not bypass questions from the bench, answer them. More often than not there is in every case a cardinal point around which lesser points revolve like planets around the sun, or even as dead moons around a planet; a central fortress which if strongly held will make the loss of all the outwards immaterial. The temptation is always present to ‘let no guilty point escape’ in the hope that if one hook breaks another may hold. Yielding to this temptation is pardonable perhaps in a brief, of which the court may read as much or as little as it chooses. There minor points can be inserted to form ‘a moat defensive to a wall’. But there is no time and rarely any occasion in oral argument for such diversions. (Davis, ‘The Argument of An Appeal’ (1940) ABA Journal 897.)

The opportunity to open oral argument is precious but often squandered. As Mason J said (‘The Role of Counsel and Appellate Advocacy’ (1984) 58 ALJ 537 at 542): All too often counsel fail to take advantage of the unique opportunity presented by the opening — to make an impact on the minds of the judges before they begin to move forward on their inexorable journey to a conclusion. There is no need for a ritual incantation of the history of the litigation. The Court is aware of it. Better to begin with a statement of the issues, unless the case lends itself to an exhilarating or humorous introduction.

Commenting on these remarks, Jackson QC observed ‘Appellate Advocacy’ (1992) 8 Aust Bar Rev 250): I should add two things concerning those observations. The first is that it is entirely correct to say that there is no need for a ritual incantation of the history of the litigation. There is no need to: (a) give the date of filing of the notice of appeal; (b) give the date of the judgment; or (c) give the issues decided in your favour … The second thing is that I have always found it better to eschew the exhilarating or humorous introduction. Witty observations which blossomed in chambers tend to wilt in the more acid rain of courts.

Kirby P reinforced that observation (‘Ten Rules of Appellate Advocacy’ (1995) 69 ALJ 964 at 970): Sir Anthony Mason suggested that advocates should search for an exhilarating or humorous way to catch the attention of the court at the outset. One leading advocate has, rightly in my view, cautioned against forced humour.

He added: Many judicial officers, myself included, usually commence their opinions with a sentence or two explaining the central issues at stake in the appeal: a citation from authority designed to achieve the same object; or a reference to an arresting fact which will intrigue the reader and capture attention. The advocate should seek to do likewise. The opening is generally the one moment when the advocate plunges

[page 205] straight into reading a tedious extract from legislation or a lengthy citation of authority. The opening is the headline. It is the chance to communicate the advocate’s basic point of view. It is a moment for selectivity. First impressions are often important. The good advocate will therefore give a lot of thought to the opening words of argument and to the strategy of explaining the case to the decision-makers.

PRESENTATION The beginning 9.6 A number of techniques are available to permit a brief settling in. For example, some will summarise the argument very briefly by way of commencement, although this is often dealt with in the written materials and risks being repetitive.

Indexing 9.7 A useful technique and one which I encourage is to ‘index’ the appeal; that is to say, indicate to the court which grounds are to be argued in which order and give a very brief statement of the substance of the argument. The advantage of indexing means that the advocate engages the court’s attention and is not involved in reading notes. It enables the advocate to paint the picture in a short way designed to attract the court’s immediate interest. Some recent examples of such indexing in the Full Court of the High Court are: Counsel: … Your Honours, this appeal raises two issues for determination by the

Court: … It is also a matter that was agitated in the special leave application. One is a further step on a well-trodden and well-understood path in which we say the Court of Appeal erred significantly. McHUGH J: It is a path that seems to have wound back a bit recently, is it not? Counsel: Your Honour, it is a path that seems to have slightly changed direction perhaps one can say, but I would not have said wound back — that issue of course is when and in what circumstances should a Court of Appeal overturn a trial judge in relation to an issue of fact. But really, we would say so far as this case is concerned, to encapsulate or indicate at least what we propose to argue about it, that it really matters not whether one looks at Fox v Percy or Whisprun at one end of the path, or at Dearman v Dearman at the other end of the path. In this case, the result would have and ought to have been the same — that the Court of Appeal should not have interfered. The second point is perhaps more novel, if not completely novel. When and in what circumstances when a court of appeal orders a retrial, should it operate or activate its powers under section 75A and — GLEESON CJ: Which is the particular power in question?

This might usefully be contrasted with the transcript of the beginning of the special leave application in the same matter, where, with time much more restricted and the need to engage the court more urgent, the following took place: McHUGH J: Yes, Mr — Counsel: It is difficult to know precisely what to say in beginning, your Honour. One is tempted to say it is infrequent but not impossible to be ambushed during the course of argument in the Court of Appeal, but rarely in the judgment. What happened in this case, and which we say —

[page 206] KIRBY J: Is this a procedural fairness argument? Counsel: Yes, your Honour, essentially … [Interest engaged — special leave granted.]

And in another recent case: Counsel: Your Honours, the appeal turns ultimately on the resolution of two issues, one of law and the other of fact. The issue of law concerns the extent to which what may be conveniently described as management fees are recoverable as part of damages in the case of an intellectually disabled plaintiff incapable of looking after that plaintiff’s affairs, and the issue of fact as whether the evidence established an

entitlement to more than the amount allowed by the primary judge under that head, some $180,000. Your Honours, may I just say a couple of things about the basic facts before moving on to the argument in relation to those matters. The basic facts are not in dispute …

As a research and learning tool, there is no better resource for an aspiring appellate advocate to find examples of the very best ways of beginning and arguing appeals than the transcript website maintained by the High Court of Australia. Both special leave and Full Court hearing transcripts are there set out, and the different techniques and skills which apply to each are demonstrated daily.

Beginning the argument 9.8 It is very necessary to begin the argument on appeal on a ground upon which the appellant is most confident. It is vitally important for the advocate to consider the case not only in its legal or factual aspects, but in the more limited sense that the appeal judge will bring to the hearing. Judges vary according to temperament, practice and the pressures of time as to the extent of material they may have read or absorbed. The advocate must be especially attuned in an appeal to adapt to judges who are clearly on top of the material or to those who are not. The advocate must also be prepared to take judges more carefully through the case if that is required, or to go to the heart of the main point or issue if the court is so minded. On this point, too, no matter to whom one speaks or what articles one reads about appellate advocacy, there seems to be universal agreement: authorities have a limited role. The High Court requires a list of the principal authorities which support any contention of law contained in the outline. This done, that court (like, indeed, all appellate courts) discourages the lengthy reading of passages from those cases. As Mason J, as he then was, observed at an Australian Bar Conference, ‘Judgments are not a substitute for argument. They should not be used as biblical texts or utterances from the Oracle of Delphi’. His Honour went on to observe that judges can and do read judgments for themselves and that the practice of reading lengthy

passages ought to be limited to occasions when the court goes off on some frolic of its own, in which case, ‘Counsel is justified in reading the relevant passages from judgments until all outward signs of heresy have been extirpated’. There is nothing more disconcerting than listening to counsel read lengthy passages in an appeal to establish trite law which is not relevant and, worse, is not in issue. [page 207] When referring to authority cannot be avoided, begin with binding authority, then look to courts of cognate jurisdiction, and use overseas authority of the higher courts of appeal sparingly and according to the strength of the arguments they contain.

Questions from the bench 9.9 It is a necessary part of the advocate’s armour to expect and know how to deal with questions from the bench. It is more likely that there will be incisive and penetrating questions on appeal than at trial. Advocates should regard these questions not as threats, but as windows of opportunity. There is a natural tendency to regard difficult questions as barriers to the development of argument but in truth an advocate who is fully prepared should have anticipated the questions in general, if not in terms, and have prepared answers to them. It should be apparent where the strengths and weaknesses of the case lie both for appellant and respondent, and if the case analysis has been properly undertaken it should not be too complex to anticipate the difficult questions and work out the most compelling available answer. When a question is asked, it is certain that the worst answer of all is, ‘I’ll come back to that later if the court pleases’. You should be aware that judges ask questions because, in the main, they are genuinely interested in the answer or are troubled by the point raised. If the

answer is not given almost immediately the judge may either lose interest, or more fatally may assume that one is not given because there is no effective answer. The best strategy is to answer the question immediately and to give the judge at the very time that the issue is raised the resolution to the query. Part of the preparation of an appeal involves the alternative contingencies that the argument will progress much as the advocate has planned; or alternatively upon the basis of questions likely to be asked which require immediate answer from the bench. Question and answer is likely to be the main way by which the critical points of an appeal are argued. Where time is extremely tight or time limits apply, any point raised in a question not immediately answered is a point lost. There must accordingly be planning to deal with questions as a major rather than an incidental aspect of preparation. Another aspect of questions relates to dealing with the idiosyncrasies of the bench. Not every helpful suggestion made by an appellate judge is a Trojan horse. Certainly, many are not intended to be, and are genuinely meant to be helpful. Nevertheless, all must be viewed in the context in which they arise. That context is the arguing of an appeal. It must be accepted that the judge in throwing out suggestions may well be working through, in his or her own mind, possible factual and legal principles and their consequences. The suggestion may not be the result of any settled view and indeed it may be merely designed to test the merits of counsel’s argument. It may, of course, be expressly designed to lead counsel astray, a form of ‘judicial advocacy’ which is by no means unknown. Whatever the reason, such suggestions, however helpful they may appear, must [page 208] not be uncritically adopted. If you need time to consider what is put to you, say so. A moment’s silence for reflection is not by any means unreasonable, and will not adversely affect either your reputation or

your prospect in the instant case. This precise point was dealt with at length by Mason J in his paper to the Bar Association Conference in 1984, where he said: It is not easy for a counsel to reject a point offered by a judge which appears to support him but it is a mistake to take up an argument which is without arguable foundations. The judge may have no commitment to the point which he raises. Counsel may then be left to carry the point on his own and the judge will have no reason to thank him if his slender support serves only to demonstrate the fragility of the judge’s contributions. In the High Court counsel need have no fear of Greek gifts. If a judge offers counsel a point it is because he then believes, perhaps mistakenly, that it will be of assistance to him. The question which is designed to test an argument is generally immediately recognisable as such. The judge who is an advocate is always a problem. He is not easily disarmed and he often enjoys confrontation and he is also a skilled tactician. He keeps back the thorny question until 4.05pm when difficulty in providing an answer will have its maximum impact. If by chance counsel embarks upon a persuasive answer he will graciously observe that counsel would be well advised to think over the answer during the adjournment. Counsel needs to remember that he may not convert the judge but may persuade others. So it is vital to present and maintain the argument notwithstanding the judge’s opposition and it may be comforting to know that the majority of appellate judges are quite immune to the wiles of the judicial advocate.

However true this may be, it serves to do no more than highlight the difficulties outlined above. Beware! Persistent or unduly difficult judges require special care. The advocate must remain polite and composed. There are some techniques for survival: Answer the question as briefly as you can and then return to your theme. Avoid getting into an argument with the judge. Above all, do not evade the question, or put it off, no matter how embarrassing it is, or how it interrupts your line of reasoning.

FLEXIBILITY AND TACT Flexibility 9.10

It follows that the second most significant element required of

successful appellate counsel is flexibility. Appeals more than any other form of advocacy have a tendency to develop a life of their own. It may be simply because the dynamics of an appeal — three or sometimes five or seven judges, all of whom have read at least the judgment below — give rise to a more principled or policy-driven approach. It may be that, because an appeal is removed from the cut and thrust of trial process and the taking of evidence, a more abstract and analytical approach develops. Whatever the reason, it is a fact. Consequently, you must be prepared at all times to be taken away from your prepared argument by a novel proposition which may be raised by the bench or a gloss on your argument which may be advanced either from the bench or elsewhere. [page 209]

Tact 9.11 Another general rule central to successful appellate advocacy seems to be agreed by all writers to be tact. This general expression really applies to a number of different things. It is one thing to make clear to the bench that you have not only the law but merit on your side, quite another thing to make a rude and vulgar appeal to emotion. Equally certainly, in appellate courts, it is reasonable to assume that the bench has a significant working knowledge of the relevant facts and principles. Lecturing is not a useful skill in advocacy. Nowhere is it less so than in appellate courts. You should structure your argument upon the basis that you are assisting the court to reach a conclusion, not lecturing it as if it comprised entirely untutored first year law students, unless this is done purely for effect. Years ago, Pappayani was conducting a special leave application before the High Court in a criminal case. He commenced in the following terms: ‘Your Honours, this is an application for special leave from a criminal trial in New South Wales. In New South Wales in criminal trials the onus of proof

is on the Crown and it is to the standard beyond reasonable doubt’. He was interrupted by the Chief Justice: ‘Really, Mr Pappayani, you don’t have to lecture us on basic legal principles as though we were school children. You can assume we know that’. Pappayani: ‘Your Honour, that was the mistake I made in the court below’. Put in the way it was, robbed of all offence, the remark brought a laugh from the bench and set the stage for an interesting, and successful, application for special leave. It is not, however, recommended for beginners.

Watch the bench 9.12 ‘Watch the bench’ is a general injunction, in all areas of advocacy. In the appellate context, I cannot improve upon Kirby P’s explanation for it (‘Ten Rules of Appellate Advocacy’ (1995) 69 ALJ 964 at 971–2): Communication is more than a skill with words. It involves the eyes and indeed the whole body of the advocate. It is vital that advocates should watch those to whom they are addressing their arguments. In this way, they will be more likely to follow the tendencies of thought which may be expressed as much by body language and attitude as by oral expression. How many advocates I have seen clutching the podium as a support, lost in their books and in their reading and ignoring the very people whose decision is vital to their client’s cause? Courtesy and tact will suggest that, in a multimember bench, the advocate will look not only at the presiding member but at all members in due turn. Otherwise, the ego of neglected participants may be bruised or their attention lost. I do not underestimate the difficulty of capturing the attention of all members of a multi-member body. Different judicial officers, for example, have different attitudes to particular tools of advocacy. Thus some dislike and even discourage the presentation of Ministerial Second Reading Speeches. Justice Meagher makes no secret of his view that they are generally worthless. Their limitations must be acknowledged. Watching the decision-makers’ reactions to arguments can help the advocate know how far to push an issue and when enough has been said. Invariably, the advocates who make the biggest impact on an appellate court are those who, at least for a time,

[page 210] stand away from their books and engage in a conversation with the bench. They have thought through their case. They can encapsulate its strengths and acknowledge its

weaknesses. They show the appellate judge the way, if possible, to reach a just and lawful conclusion. If they can embellish these skills with a sense of confidence, an understanding of the legal complexities and a touch of elegance, they will make the decision-maker’s task seem worthwhile, even perhaps enjoyable. That may not win the appeal, but they will attract sympathy for an expressed point of view that might otherwise be overlooked.

Expedition 9.13 If the foregoing are the general rules of persuasion in appellate advocacy, they must all be subject to the overall principle that expedition is at a premium. It has truly been said that an hour is a long time in a court of appeal. Ten minutes is a long time in the High Court if you are the applicant for special leave. As one ascends the judicial ladder, so time acquires a greater premium and lengthy argument becomes more and more a luxury. Two things flow directly from this: first, argument must be clear and concise with not a word wasted; second, it is absolutely critical that you recognise and get to the point of the appeal immediately and without any excursus into the irrelevant.

Pre-emptive argument 9.14 Do not ignore obvious difficulties. Deal with them as they arise and, where possible, highlight any reasonably available answer or method of resolution of such difficulties. Moreover, take the opportunity to deal with any strong arguments which may be advanced by your opponent against your appeal — it is an enormous advantage to be able to deal with those at the outset rather than to try to deal with them in reply. Indeed, if done properly and effectively it will relieve you of one of the most difficult decisions in appellate advocacy — whether or not to rise to your feet and present an argument in reply. It will also discomfort your opponent who will be relying on those very arguments to overcome your appeal. It is truly said that: Nothing can be more destructive to an argument than for a court which has viewed it with favour to discover, when opposing counsel comes to address, or when the court

retires to consider the matter, that counsel who was putting the argument has failed to refer to some fact, statutory provision or decision that seems to present an insuperable obstacle to the acceptance of his argument. On the other hand, nothing is more effective than to direct the court’s attention to what seems to be one’s opponent’s strong point and to reveal its hidden weakness before the opponent can fortify his position. It is pleasing that ethical requirements and pragmatism coincide in this respect and that virtue can be its own reward. There is no reward, however, for counsel who spends hours distinguishing authorities that have nothing to do with the case. (Gibbs CJ, ‘Appellate Advocacy’ (1986) 60 ALJ 496 at 498–9.)

[page 211]

ETIQUETTE AND ETHICS In other professions in which men engage said I to myself, said I The Army, the Navy, the Church and the stage said I to myself, said I Professional licence if carried too far One’s chance of promotion will certainly mar and I fancy this rule might apply to the Bar said I to myself, said I

10.1 Rules of conduct 10.2 Formal rules of etiquette 10.3 Behaviour 10.3 Dress and personal appearance 10.4 At the bar table 10.5 Stay behind the bar table or party table 10.6 Do not approach the witness box Dress the court — do not leave the judge in an empty 10.7 court 10.8 Courtesy to other counsel 10.9 The judge’s chambers 10.10 Behaviour in court 10.11 Interruptions 10.12 Language

10

Beginning ‘Learned’ friend Addressing the bench Never address a judge in the second person Catchphrases Argue to, not with, the judge Semantic abominations Citation of case law Citing other judges Ethical principles Dealing with self-represented litigants

10.12 10.13 10.14 10.15 10.16 10.17 10.18 10.19 10.20 10.21 10.22

[page 212]

RULES OF CONDUCT 10.1 Chief Justice Street said in Croll v McRae (1930) 30 SR (NSW) 137 at 146: I cannot impress too forcibly upon the members of the Bar the necessity for observing high standards of professional conduct and a proper sense of responsibility in the conduct of cases. If that is not done the whole profession will suffer in the estimation of the public. In Reekie v McKinven [1921] SC 733 at 735, the Lord President, in referring to an improper argument addressed to a jury, having relation to the expenses of the case, said: ‘In this matter, as in other matters germane to the fair conduct of judicial proceedings, it is the duty of everyone concerned, not merely to avoid arguments of that kind, but to eschew loose or careless statements which may — however unintentionally — insinuate such considerations into the minds of the jury. There is no safe rule except to avoid even the risk of offence. If two courses are open, one of which may pass though ambiguous while the other unmistakably maintains the highest standard of practice, the duty of everybody is, of course, to select the latter and reject the first.’ And in Wright v Hearson [1916] WN 215 Rowlatt J said: ‘It is the duty of counsel to know and observe the rules governing what they may and what they may not do in the conduct of cases; they may not disregard those rules and trust to not being checked in time. In proportion as counsel voluntarily observe those rules so will their standing and reputation grow.’

Several hundred years earlier the older Francis Bacon had said much the same in his work Maxims of the Law, albeit more succinctly: I hold everyman a debtor to his profession from which as men of course do seek to receive a countenance and profit so ought they of duty to endeavour themselves by way of amends to be a help and ornament thereunto.

FORMAL RULES OF ETIQUETTE 10.2 Re-reading the material that appears in the balance of this chapter from the perspective of 2010, and of many, many years in court, I was struck by two things. First, much of it seems to be expressed in old-fashioned, almost pompous, ways — the language is

that of years gone by and the concepts at odds with the age of the iPad at the bar table. It struck me as something that might have been written by Prince Charles, rather than an Australian barrister, with its talk of manners and dress sense, of dignity and behaviour. The second thing was how important it remains, and how unchanged in its operation both on the individual barrister and on the cases that barrister conducts. Any practitioner who disregards the courtesies of the profession does so at risk — even the character Cleaver Greene from the ABC television drama Rake (2010) is always (if not always sincerely) courteous. For that reason I have left what follows unchanged, and recommend close attention to the spirit and the letter of its message. It should be immediately pointed out that observation of the rules of etiquette makes one’s path as an advocate easier and more pleasant in every sense. The rules of etiquette are few in number and indeed they can commonly be brought down to one simple statement: always be courteous. There is no rule of court etiquette which would not be immediately apparent to a layperson with neither training [page 213] nor experience in the law who applied common sense and good manners to the problem at hand. It matters not that the judge is being rude or boorish, that your opponent displays a complete lack of manners and common sense, that your witnesses are intractable and fractious — none of these things, irritating though they may be, lessens one whit the duty that you owe to the court to maintain cool, calm courtesy: courtesy to the judge; to other counsel; to the witnesses; to the court staff. The rules of etiquette are not merely old fashioned rules of behaviour out of step with modern reality — far from it; they are in fact a system of rules which counsel should strive to emulate. The first and most important rule of etiquette is this: stand up when

you address. There would be few who are not aware of the importance of standing up when you address the tribunal. Apart from the obvious advantages that it makes you easier to hear and displays the courtesy due to the bench, it has other attendant advantages. Regardless of those advantages, it is a mandatory rule and must not be broken. Remember — it is the practice in the courts to stand not only when addressing but when being spoken to by the judge and throughout one’s examination, cross-examination and the opening and closing addresses. That rule has as a necessary corollary that when you are not speaking or being spoken to you do not stand. However, when the presiding judge addresses the bar table, generally common courtesy suggests that the most senior counsel should rise. As well, it can be used to tactical advantage both with juries and without them. At all events, the rule is this: if you wish to keep the attention of the court, the favour of the judge, and to impress the jury, the elementary courtesy of standing when you are speaking or spoken to is a prerequisite.

BEHAVIOUR Dress and personal appearance 10.3 It may seem an unnecessary comment to write that good advocacy carries with it some rules about dress. These, really, are neither more nor less than good dress sense or restrained taste and can be put simply: appropriate attire to be worn in court. If robes are worn, dark dress should accompany the robes. Regardless of one’s attitude to robing, while robes are worn they should be worn properly; both men and women, when robed for court, should ensure that neckwear is clean and uncrumpled. Apart from exhibiting lack of taste, you are there not on your own behalf to make ‘a protest’ when you appear at court — you are there appearing for your client. How you appear will reflect on your client and may

distract attention to your presentation. The impression which your attire makes on the judge and jury is a significant factor affecting the extent to which they are prepared to listen to you. ‘I always listen’, Byles J is reported to have said to the late Lord Coleridge when the latter was at the bar, ‘with little pleasure to the arguments of a counsel whose legs are encased in light grey trousers’. You are putting yourself forward as an organised, prepared professional — look like one. [page 214]

At the bar table 10.4 Many jurisdictions allocate position for legal representatives according to the party they represent. Others simply provide a bar table. In that situation it has been said by one writer that the rules of etiquette are designed to prevent the arguments that take place between counsel and the parties in court from degenerating into an unseemly brawl. Similarly, the rules that relate to precedence at the bar table are designed to prevent unseemly jostling and jockeying for places. The rule simply stated is this: you should always give way at the bar table to a practitioner senior to you.

Stay behind the bar table or party table 10.5 What we are about to advise is subject to local variations and practices, which vary greatly. Some allow you to take a more commanding position. When addressing, whether the jury or the judge, unless there is some real, clear necessity for giving physical demonstration, you should remain behind the table — remain still and do not wander about gesticulating. You are conducting a trial in a real court of justice, not on television. Similarly, do not approach the jury under any but exceptional circumstances. It is also the function of the court attendants to hand up documents and the like. It is not the function of counsel. Only exhibits and your brief should be left on the

table. Bags, jackets, umbrellas, etc must be discreetly placed elsewhere.

Do not approach the witness box 10.6 Etiquette and sound advocacy combine to suggest very strongly that you should not approach a witness, whether you are leading or cross-examining, unless there is a very compelling reason for doing so. If you need to approach a witness in the witness box, you should first seek permission from the bench to do so. Different judges take different views about that, so you should be alert to particular as well as local custom. It is a serious procedural and evidentiary error to approach the witness box without the permission of the court. Worse than the lack of dignity, there are involved penalties which, unless you are very adroit, you will find it difficult to overcome. Counsel usually only attempts to approach a witness in order to question about a document, a plan, or the like, a procedure which presents difficulties both to the court and to one’s own case. First, one needs to lean over the witness in the witness box to indicate matters on the document to him or her. There is a twofold penalty to this: what is being discussed is not immediately clear; and it is all too easy, particularly when cross-examining, to give the impression of intimidating the witness. It is virtually impossible to ensure an accurate transcript of what transpires between counsel and the witness huddled together in the witness box. The whole ugly process excludes the tribunal from participating and therefore understanding testimony taken in this way. [page 215] How much easier is it (as we emphasised before) for the jury to understand if you stand up and say:

Counsel: Your Honour, could this document be shown to the witness please by the appropriate court staff as directed by the judge [Document shown to witness]. Counsel: Have you seen that before? Witness: Yes. Counsel: What is it please? Witness: A plan of Fairfax Street, Woollahra. Counsel: Are you able to say who prepared it? Witness: I did. Counsel: Could you mark on that plan with a red X please the position in which you first saw the accused? [Witness complies.] Counsel: Your Honour, might that be shown to the jury? His Honour: Certainly, Mr Jones.

That being done, you have the document returned to the witness and ask your next question or questions. This carries with it the advantages that the jury is directly involved in every step: it sees every mark on the document as it is made; it understands what each of them is at the relevant time.

Dress the court — do not leave the judge in an empty court 10.7 Not leaving the judge in an empty court, again, is an ordinary commonsense rule of courtesy and good manners. This was once called ‘dressing the court’. When you are left as the last counsel in a court where the judge is still sitting, wait until he or she retires or gives you permission to leave. It costs little and gains much. If you really must be somewhere else, then do not simply withdraw but ask for permission to do so if there is no other counsel remaining in court. It costs you no time to say: ‘Might I have Your Honour’s permission to leave?’. It is not necessary to ask for permission to leave a court at any other time. When your case is complete, your task in court is spent and you need no one’s permission to leave. Wait until the next matter in the list is called and preferably appearances in it are announced. It is only where you leave a judge alone that manners require that you pay the bench the elementary courtesy set out above.

Courtesy to other counsel 10.8 As to the issue of courtesy to other counsel, there are no fixed rules. It is simply a case of do as you would be done by. Do not interrupt. Do not object unnecessarily. Do not make sotto voce remarks at the bar table while your opponent is on his or her feet — pay your opponent the courtesy that you would wish accorded you. Do not ‘play the man instead of the ball’. Your behaviour to your opponent should not be any different from your behaviour towards the court. Both are entitled to courtesy and respect. If you think that your opponent has forfeited that right, you will advance your case not a whit [page 216] by letting him or her know what you think. After all, the only reason you are in court is to advance the case of your client. You are there to argue to, not with, the judge; you should not quarrel with your opponent either. The judgment of Singleton LJ in Beavis v Dawson [1957] 1 QB 195 at 201 provides a clear statement of the obligations of counsel: There began, almost from the commencement of the case, a wrangling or quarrelling or bickering between counsel, and it lasted throughout the case … The training of one who is called to the Bar in this country is intended to help him to understand that a member of the Bar is a helper in the administration of justice. He is there to help the judge, and, when there is a jury, to help the jury, to arrive at a proper result in the dispute between the parties. If a case is conducted as this one was, the judge is deprived of the assistance which he is entitled to expect from counsel. Continuous bickering becomes a burden for everyone in court — for judge and for jury — and it is almost impossible for justice to be done if that goes on. It is not surprising if, in such circumstances, a judge gets tired or if the jury get tired; sometimes it leads to confusion. That may well have happened in this case. I hope it will be a long time before this kind of thing happens again. Jurors, who are called to sit in this building where disputes between litigants have to be decided, ought not to have their time wasted as it was in this case.

The judge’s chambers 10.9 The case should be conducted in open court. There will be occasions on which it is necessary for you to attend upon a judge in private chambers but they should be rare indeed. In that event, advise your opponent in advance, and even then you should not see the judge in chambers until all the parties are present. The one rule which must never be broken in a judge’s chambers is that you do not discuss with the judge any aspect of the case, unless the judge introduces some particular aspect and all counsel are then present.

Behaviour in court 10.10

Three rules apply in relation to behaviour in court:

(1) Do not speak on solemn occasions. This is a rule which must be observed in all courts and strict observance of it is required as a matter of practice. Indeed, some judges are extremely sensitive to any breach of this rule. A witness is entitled to be sworn to give evidence in absolute silence. It may be suggested that some benefit is repaid by this rule of etiquette as a close observation of a witness being sworn and the manner in which he or she takes the oath (or affirms) may give you a guide to likely demeanour. Likewise when a verdict is being taken, a defendant is being sentenced, appearances are announced and a judgment is being delivered. At other times conversation which must be had should be quiet, discreet and not such as to interrupt or disrupt. (2) When the judge comes into court remain standing until he or she has bowed and taken his or her seat, or the proclamation has been made. This is an elementary courtesy and rule of etiquette which must be observed. [page 217]

(3) Keep an eye on the court reporter. This is a rule of courtesy rather than of strict etiquette but it is vitally important if you wish to have an accurate transcript. Apart from the courtesy, the speed of the examination must be controlled so that the jury can understand what is being asked and absorb the answer. One of the disadvantages attendant upon the modern trend to mechanical recording of court proceedings is that the guide which was offered to speed by the presence of a court reporter is lost.

Interruptions 10.11 Common courtesy dictates that you ordinarily ought not interrupt your opponent. It is both rude and tactically unsound to interrupt the judge: wait until he or she completely finishes. If a reply or riposte comes to mind as the judge is speaking it is better to note it. This rule applies even where the judge has interrupted the advocate. Indeed, this rule applies with even more vigour where the judge does so continually; that is, in the case of a rude, interrupting or overbearing judge. No matter how tempting it is to respond, it is always better to wait rather than react. A cool, calm, courteous and well-considered response is likely to be more effective and less likely to get the advocate into trouble.

LANGUAGE Beginning 10.12 As with any formal conversation, the very beginning can present difficulties for the advocate. For this reason, it has long been the case that the traditional opening is used as soon as one gets to one’s feet — ‘May it please the court’. This is more than a meaningless or empty phrase or courtesy. It provides your jumping off point for

whatever you wish to put; be it an application, a submission, the commencement of an address or, indeed, the commencement of an examination of the witness. It has the added advantage, where there is a jury, of calling attention to the fact that it is to you that they must now look for the next in the series of events upon which they are called to adjudicate. The form, of course, is flexible. It can as easily be, ‘If the court please’ or ‘If it please the court’. Essentially, the aim is to provide a formal point of commencement for the advocate who is then seeking to be heard.

‘Learned’ friend 10.13 It is traditional among barristers on their feet to refer to each other as ‘my friend’ or ‘my learned friend’ rather than by name in jurisdictions having practices based upon those developed by the English Inns of Court, except in the case of Crown prosecutors who are traditionally referred to as ‘The Crown’. ‘Learned’ is a word used in law to mean no more than qualified to practise. It is traditionally reserved for members of the bar and not applied to solicitors or police prosecutors, although that distinction seems rapidly to be disappearing. Apart from this quaint practice, it is always necessary to refer to your opponent by surname. [page 218]

Addressing the bench 10.14 Addressing the bench is a matter of local practice and custom. Judges are referred to as ‘your Honour’, as are magistrates in some places or ‘your Worship’ in others. In chambers or socially, judges should not be called ‘your Honour’ but ‘Judge’. When appearing before a Full Court, the individual judge then being addressed will be referred to as, for example, ‘your Honour, the President’ or ‘your Honour, the Chief Justice’ or ‘your Honour, Justice Bloggs’. The one judge who is not referred to in private simply as ‘Judge’ is the Chief

Justice. He is always referred to socially as ‘Chief Justice’, not, however, as ‘your Honour’. Masters are referred to as ‘Master’ both in court and in private (unless local practice is otherwise) and quasi-judicial officers (such as the Prothonotary, the Registrar of a court who sits in public chambers to deal with lists and the like) should be referred to by their title as, for example, Prothonotary, Registrar, Acting Registrar, Commissioner, and so on.

Never address a judge in the second person 10.15 Never call a judge ‘you’. If you wish to address a judge directly about something said, it is quite improper to say, ‘as you said a moment ago’. The correct expression or way of expressing oneself is: ‘as your Honour said’ or ‘your Honour said’ — that is, you should use the less familiar third person, ‘your Honour’, which evinces respect for the bench and recognises the traditional distance of counsel from the judge. This preserves the impersonal impartiality of the bench and is to be encouraged and strictly observed. Consequent upon this rule, it follows that you should frame any request or question to the judge indirectly. The most familiar such request is the time-honoured way of seeking an adjournment at the usual times; namely: ‘Is that a convenient time, your Honour?’, rather than the direct question. The same indirect formal approach should be used for all other requests or questions of the bench. Some examples may best make this clear. If, for example, you wish to direct the judge’s attention to a portion of transcript, do not say: ‘Would you look at page 124 of the transcript, please?’. The correct approach is: ‘Might I invite your Honour’s attention to page 124 of the transcript?’. If you wish to approach the witness (one of those rare occasions when that course is unavoidable), rather than, ‘May I approach, your Honour?’, say, ‘Might I have your Honour’s leave to approach the witness?’.

Catchphrases 10.16 Many of those expressions used frequently in court have a currency of their own and have become the argot of the law. Avoid slang at all costs. Effective use of the law’s own catchphrases can be of great practical value in their rightful place, less so with juries of course. Slang is imprecise and frequently ambiguous — while it may be argued that it is the ‘common’ language of the ordinary person in the street, it often defies accurate or precise definition and it suffers from that. Unless you can be assured that everyone understands the same thing by an expression — [page 219] that is, judge, jury, you, the client and the witness — it is unsafe to use it. One inelegant example is the use of the term ‘knock off’. In common parlance, it has at least four contemporary and contemporaneous meanings — kill, steal, have sexual intercourse with, and finish work for the day. It may be argued that it depends on context, but as Wood J said in the Alister, Anderson and Dunn Inquiry: And what is that meaning? — Knock someone off. But what does it mean, what do you understand those words to mean? — Well, it could be anything from — Why are you hesitating? — I am trying to think … ‘knock off’ could be ‘knock unconscious’ through to ‘kill’. Is that a serious answer that you give to His Honour’s inquiry? — I would believe ‘knock off’ to mean ‘kill’, but it could go a lot beyond that, or before that rather, not beyond it. Look, there could be only one meaning in the slang of Australia in the year 1984 when you say you are going to knock someone off — His Honour: Mr Hosking, I can think of a quite different activity which is encompassed within that expression, referring to the vernacular. Mr Hosking: Yes, of course there is.

Moreover, even if meaning is clear, you will likely find a substantial

and understandable judicial resistance to slang. Anything that unnecessarily complicates your task or puts you at odds with the court should be eschewed. The one arguable exception is in criminal trials where there are certain ‘slang terms’ which are part of the argot of crime, terms such as ‘verbal’ and ‘bust’. It may be that these can be used and all present will understand them. They are not, however, as precise or as elegant as good language, which will almost always be as readily understood as slang. The following exchange demonstrates how clarity and simplicity of language is essential and that slang sometimes has its use: Counsel: Bouncers at this place are pretty keen on giving troublemakers a bit of a hiding aren’t they? His Honour: Please, Mr Bloggs, could you use the Queen’s English? Counsel: (with heavy irony) Is it your practice to offer some form of physical chastisement to those patrons of the establishment who engender in you feelings of personal antipathy? His Honour: Can we please have that in language the witness might have some chance of comprehending. His occupation is as I recall doorman not professor. Counsel: All right, why do you go the knuckle when you do the nana? I don’t.

The witness understood. So did the jury. Hopefully, so did the judge. Last, but not least, judicious use of the catchphrases gives you breathing time — time to think on your feet, of a way out of the difficulty in which you find yourself.

Argue to, not with, the judge 10.17 The phrase ‘with respect’ is a major tool in ensuring that you argue to, not with, the judge. Argument in court essentially takes two forms — advancing a proposition in support of an application where there is no indication of the thinking of the

[page 220] bench (which is really a speech on the law or relevant facts) and making the same submissions to a bench clearly not persuaded and of a rapidly hardening and different opinion. In the first case, submissions should be made clearly, concisely and decorously — if the bench is receptive, this can only help. In argument with a judge who appears to take a different view of law or fact from that which you propound, you must argue your point. You cannot — certainly ought never to — say to the judge, ‘That is wrong’, or ‘You are wrong’ or ‘No, no, no’, although it may be precisely what you wish to say. Phrase it with circumspection: ‘In my respectful submission, your Honour, the evidence is otherwise’, or ‘With respect, your Honour, it is my submission that Smith v Jones is not an authority for that proposition. I submit that it has no application to the present case at all …’. Remember also the one cardinal rule when arguing to a court is that you make submissions. You do not ‘think’ or express personal opinions. A court is neither entitled to, nor interested in, your private opinion as to the law or the facts. Your right is to be heard and to advance submissions of law for your client. These must be arguable. They certainly need not represent your own personal view. They need to be no more than arguable. Their tactical wisdom is entirely another matter. It is your duty to take any point which you believe to be fairly arguable and to make every honest endeavour to succeed. You must not knowingly mislead the court, either on the facts or on the law. You should be familiar with the need for courtesy in court to accompany courage.

Semantic abominations 10.18

Note the following six rules:

(1) Seeking to tender. Sometimes counsel present a document to the court with the words, ‘I seek to tender the contract [etc]’. It is bad

English, and it is bad law. If the document is admissible, tender it, and it will be admitted or objected to and its admissibility argued. If you do not think it is admissible, wait until it is and then tender it. When you decide it is sufficiently proved, indicate that by saying: ‘I tender the contract’ — neither more, nor less. (2) Thinking. This has been dealt with above. It is a grievous error into which to fall, leading to criticism from the bench. Worse, it is unprofessional and indicates a personal view which the court is not entitled to have and which you are not entitled to give. Such usage always irritates judges. (3) ‘Submitting’ to juries. As to this, there are different schools of thought, but we are against it for the following reasons. First, one makes suggestions of fact and submissions of law; further, one does not give the law to the jury — that is the judge’s task and he or she will not submit to them but direct them. Additionally, it must be borne in mind that it is not counsel’s position merely to submit but to argue a case propounding a proposition and setting forth a version of the facts. It would be wrong for counsel to tell the jury what he or she thinks as much as it is to tell the judge. There is, however, no reason not to invite the jury to find by such phrases as: ‘You may think’, or ‘The case which [page 221] I put forward’ and so on. The real vice in submitting to juries is that it smacks of weakness and lack of confidence in your own case. (4) I hear what you say. This is an expression often used by judges to cover their disagreement. Counsel who disagree with the judge’s point should not use it at all. Judges hate it. Answer the inquiry from the bench — do not try to ‘fob it off’ with this sort of reply. It implies: ‘I understand the point, but I am not going to deal with it’, or ‘I hear what you say but I am not listening to it’.

(5) With respect. A retired district court judge was fond of saying: ‘Whenever I hear counsel say “with respect” I prick my ears up. It usually means an insult is coming’. Certainly that is partly true. However, it may be used sparingly in ordinary dialogue with judges when no clash is occurring. Over-use is a bad habit, but it has its proper place within limits: see [10.17]. (6) ‘We’ say/submit. It is inappropriate to speak of ‘we’ as a reference to the advocate and the client. It is appropriate to use ‘we’ only when there are two or more advocates appearing. There is no royal ‘we’ in litigation. It is used far too much in some jurisdictions and like ‘with respect’ should be kept to a bare minimum.

CITATION OF CASE LAW 10.19 When you cite case law to any court you should do so carefully and precisely. An accurate, typed list of authorities should be available for the bench (with a copy for the reporter). You say: ‘Might I refer your Honour to the decision of the High Court in Tripodi and the Queen which is reported in volume 104 of the Commonwealth Law Reports at page 1?’. Unreported judgments should, in your list of authorities, be identified by court, date and bench, and cited as: ‘Smith and Jones, an unreported decision of the Court of Appeal, delivered on 15 April 1984. Your Honour, the bench on that occasion was composed of his Honour, the President, and their Honours …’. When citing authority always refer to the authorised reports whenever possible. Having properly identified the cases from the senior available source, there will be occasions where, in addition to referring to them, you will wish to read from the judgments. When you do so, do so properly according to local accepted practice. The judgment of ‘Kitto J’ is that of ‘Mr Justice Kitto’, and that of ‘Gibbs CJ’ in the report is ‘His Honour the Chief Justice’. A past Chief Justice is referred to by

name and office as, for example, ‘Chief Justice Dixon’. Judgments of judges who have been translated are also cited in this fashion as, for example, ‘Justice Brennan, as he then was’. Where a joint judgment is given, it is referred to as the judgment of the court. Additionally, it should be remembered that in the House of Lords the decisions are not judgments but speeches, and their Lordships are referred to as follows: ‘The speech of Viscount Dilhorne’ and ‘His Lordship said, at page 342 of his speech’. The Privy Council does not give judgments either, but tenders advice to Her Majesty. [page 222]

Citing other judges 10.20 Other judges should be referred to by their correct title, never as is sometimes heard ‘your brother Judge’ or as ‘your Honour’s brother —’. If speaking of a decision of another sitting judge, describe him or her as: ‘His Honour Justice Bloggs’, ‘Justice Bloggs’ or ‘Her Honour Judge Bloggs’. When appearing on appeals, the judge appealed from is sometimes referred to as ‘learned trial judge’ or ‘the learned trial judge at first instance’.

ETHICAL PRINCIPLES 10.21 The conduct of lawyers in litigation, especially in the courtroom, is subject to local practices and the formal rules promulgated by various regulatory bodies. All the same, I suggest that there are common attributes of all systems which might be expressed broadly as the following duties or obligations: to represent and continue to represent, advance and protect the client’s interests and to make every honest endeavour to succeed, to the utmost of the advocate’s ability, without fear; to do so without regard to the unpopularity of the cause or criticism

it may engender and irrespective of personal views or feelings about the matter; to protect the client’s privileges and confidences; to act consistently with the duty to the court as well as the client; not to mislead the court or permit error to persist; not to make unsubstantiated allegations or aspersions on a party or witness without a proper basis and reliable information for doing so (the ‘good faith’ requirement); not to withhold documents or authorities which detract from the client’s case; to conduct and manage litigation with economy and precision, consistent with instructions; to avoid suggestion to a witness or collusion among witnesses; to avoid intemperate remarks, unfounded submissions, overly emotive, inflammatory or prejudicial language, or appeals to the interests, prejudices or sympathies of the tribunal; to the opponent — not to make false statements or deliberately mislead; and not to deal direct with the opponent’s client. Particular duties apply to prosecutors: properly to regard themselves as ministers of justice, not advocates in a cause, and not to strive for conviction at all costs; not to use tactical manoeuvres to secure conviction; not to go outside the evidence given in the case; to call all relevant witnesses or to make witnesses and witness statements available; to disclose facts which tend to show the defendant is innocent. [page 223]

DEALING WITH SELF-REPRESENTED

LITIGANTS 10.22 Finally, I offer some short advice, based on the New South Wales Bar Association’s Guidelines for Barristers Dealing with SelfRepresented Litigants (2nd ed) (Guidelines), of the method of dealing with unrepresented (or ‘self-represented’) litigants as your opponent. There are few more difficult tasks that an advocate will face than appearing against a self-represented opponent. When appearing against an self-represented litigant, you will be expected to afford not only the usual level of courtesy and fairness to that litigant, but often the court will require you to actively engage with such an opponent in a way that almost amounts to giving advice. The court itself is likely to have specific rules or guidelines for the judge or tribunal member requiring the judicial officer to provide assistance and, as the Bar Association’s Guidelines point out, ‘often in self-represented matters, your opponent can in effect be the judge’: p 14. This can involve you in difficult issues of judgment in relation to the taking of available evidentiary points and even of raising questions of procedural fairness and apprehended bias. For this reason, a close understanding of the decisions in Johnson v Johnson (1997) FLC 92-764 and Re F: Litigants in Person Guidelines (2000) 27 Fam LR 517 as well as a review of cases earlier referred to in this chapter (for example, Vakauta v Kelly (1989) 167 CLR 568 and Liversy v NSW Bar Association (1983) 151 CLR 288) is essential whenever you are called upon to appear in a case where your opponent is not represented by counsel. In Re F, a decision of the Full Court of the Family Court, the duties of judges were discussed at length and that case in particular should be regarded as extending beyond the parameters of Family Court litigation and regarded as a general guide to the duties of trial judges in cases involving selfrepresented litigants. Taken at face value the Guidelines place an unrealistic burden on counsel appearing against a self-represented litigant, including (p 3): In each case a barrister should assess the intelligence and other personal attributes of the self-represented litigant affecting the litigant’s capacity to understand and conduct their own case. In large measure the way in which the barrister pursues their own

duties will depend upon that assessment, together with the nature of the case, the stage to which the proceedings have progressed and the implications for the barrister’s client of the course of action pursued by the litigant in person. Such factors as the intelligence and personal attributes of the particular selfrepresented litigant are appropriate matters to be taken into account by a trial judge also in their dealings with a self-represented litigant. The court will also take account of the requirements to prevent the unnecessary expenditure of public and private resources. (Footnotes omitted.)

More helpfully, the Guidelines recognise that ‘[g]enerally cases involving self-represented litigants are more difficult than other cases and require greater interpersonal skills of patience and adaptability’: p 5. At all times, as an advocate your principal duty is to the court and then to your client. Where the opponent is not legally represented, it is critically important that you ensure that there is a fair hearing and no lack of procedural fairness which arises as a consequence. [page 224] Commonly, the self-represented litigant is likely to be more emotional and may be belligerant or offensive — such a response will necessitate your taking steps to ensure that your own client is prepared and does not over-react to that behaviour. It will be recognised by the court, and must be explained to your own client, that the likely impact on the case is that it will take longer and may involve many interlocutory motions or other delays.

ELEMENTS OF ETIQUETTE AND ETHICS Be aware of and adhere to the standards required from advocates. Show courtesy under all provocations. Stand when speaking, or being spoken to. Dress in appropriate and properly worn attire. Do not approach the witness box. ‘Dress’ the court strictly according to local custom.

Behave appropriately in the courtroom. Address the court using apposite language; avoid slang and other semantic abominations. Argue to, not with, the judges. Act at all times in accordance with ethical principles.

[page 225]

ELEMENTS

11

ELEMENTS OF PREPARATION AND ANALYSIS There is no substitute for preparation, preparation, preparation. Preparation must be systematic, organised, exhaustive and thoughtful. Preparation involves mastering the factual and legal issues. Undertake a case analysis to produce a strategic, thorough-going case theory. The case theory must provide a theme which accounts for all the relevant facts in a logical and persuasive way which leads to the successful conduct of the case. The case theory is the road map for the conduct of the whole proceedings. Performance preparation is the means by which you propose to present the case theory in the courtroom. Develop the framework of the closing address before the case begins.

ELEMENTS OF OPENING The opening is a unique opportunity for effective advocacy and it provides you with the first chance to make a lasting impression on the tribunal, which should never be wasted. It should be clear, concise, and present to the tribunal the essence of the case theory in a convincing and descriptive manner. The preconditions to a good opening are thorough preparation (both content and performance), logic, brevity and width. [page 226]

It should be moderately pitched and not argumentative, and yet paint a vivid and lasting mental picture of the events it describes; and open the issues, not the argument. It will be tailored to the needs of a first time listener who must absorb the information aurally. It should clearly and accurately identify and articulate the issues, both fact and law, which need to be determined.

ELEMENTS OF EXAMINATION Plan and present a persuasive story logically according to the case theory. Witness preparation — conference; performance preparation. Tactical decisions — who, how many, and in what order. Only non-leading questions: subject to exceptions and exclusions; recognise and avoid leading questions. Apply techniques: introduce and settle witnesses; manner; simple, single, positive questions in plain English; control flow, pace and content; style; form; content. Communicate: break down the barriers to persuasion; lead the witness, not the proof; develop relationships between the witnesses and the tribunal; repeat strengths; exploit demonstrative evidence. Identify leading questions — avoid leading. Ask: direct questions; short, open questions;

[page 227] directional, transitional questions; when, what, why, where, how and who questions; incremental questions; piggy-back questions. Assisting witness out of trouble — be prepared for: the nervous witness; witnesses losing their place in the narrative; witnesses omitting important evidence; talkative or run-away witnesses; over-helpful witnesses; difficult witnesses; interruptive objections; difficult judges; witnesses needing to refresh memory; adverse witnesses; subpoenas to produce; character witnesses.

ELEMENTS OF CROSS-EXAMINATION Don’t cross-examine without good reason. Cross-examine only to the extent necessary to obtain the material which will support the argument you intend to develop in the closing address as to that witness, which is predetermined by the case analysis and the case theory. Cross-examine for a specific purpose to reinforce first, then to undermine. Generally, do not cross-examine crossly. Be affirmative, and then if necessary: repetition; omitted areas; misleading context; alternative explanations; take the good with the bad, but not vice versa; alternative case.

[page 228] The stop stop stop rule Cross-examine within legal confines: relevance; limits on credit; collateral issues; not unfairly; always ethical. Manner and style: fairness; clarity; courtesy; conciseness; common sense. Content: only significant matters; according to plan; minimal use of notes; logical order. Establish and maintain control Fields of destruction: opportunity, capacity, memory; hostile or adverse; interest, partiality, bias, motive; prior inconsistent statement; prior inconsistent conduct; bad character, prior conviction, reputation. Techniques: confrontation or attack; probing; insinuation; undermining credit; leading on; closing gates.

[page 229] Cross-examining on documents: calling for documents; affirmation; closing the gate; produce the document. The deadly sins: Rushing in (do I cross-examine at all?). Beating around the bush (be brief). Big noting (plain words, simple English, current usage). Looking for trouble (know the answer before asking). Going for the jugular (one question too many). Going fishing (probing without purpose). Dropping your guard (inviting explanations). Going over the top (repeating the evidence-in-chief). Worrying about the next question (listen to the answer). Going back for your hat (don’t try to improve on a good answer). Slanging the witness (don’t argue, ask questions). Jumping the gun (save it for the address). Being willing to wound but afraid to strike (avoid puttage).

ELEMENTS OF RE-EXAMINATION Re-examination: must generally arise out of cross-examination; is a right, in proper cases; is not confined to ambiguity in an isolated passage of evidence; its true scope is to explain or to place in true and fair perspective; is permitted whenever an answer or answers given by a witness in crossexamination would (unless supplemented or explained) leave open an unfavourable construction which is a distortion or an incomplete account; allows a witness to give the whole of a relevant prior inconsistent statement on the subject matter concerned, and/or to put it in proper context; [page 230]

enables an allegation of recent invention to be refuted where there is a sufficiently early statement inconsistent with the suggestion of recent invention; permits restoring or re-establishing credit; and cannot be undertaken on collateral issues.

ELEMENTS OF OBJECTIONS Only object when you are on strong ground. Do so immediately. Identify the precise basis of your objection. Distinguish between objections to questions and objections to evidence. Objection during addresses should be reserved for serious breaches. Never make improper objections.

ELEMENTS OF CLOSING ADDRESS Keep faith with the tribunal. Close in parallel with opening. Argue in accordance with the case theory. Mental pictures carefully created in the opening can be recreated and reinforced in address. Use simple, active, persuasive language. Deal first with the affirmative case from a solid foundation and then attack the opponent’s case. Preempt and undermine the opponent’s argument. Use a structured narrative presentation. Begin and end powerfully. General techniques — performance preparation. Adhere to the rules for address. Avoid the ‘what nots’.

[page 231]

ELEMENTS OF APPEALS Acknowledge and allow for differences with the trial process. Case analysis and preparation are essential. Advance only good arguments; eliminate bad ones. Distinguish written and oral techniques. Make the notice of appeal an instrument of persuasion. Keep written submissions brief, issue-focused, coherent, logical, concise, accurate and well presented. Oral argument should focus immediately on the central issues, be interesting, flexible, tactful and expeditious. Oral presentation: Begin strongly and interestingly. Answer questions from the bench instantly. Be flexible and tactful. Keep a close eye on the judges. Prepare pre-emptive arguments.

ELEMENTS OF ETIQUETTE AND ETHICS Be aware of and adhere to the standards required from advocates. Show courtesy under all provocations. Stand when speaking, or being spoken to. Dress in appropriate and properly worn attire. Do not approach the witness box. ‘Dress’ the court strictly according to local custom. Behave appropriately in the courtroom. Address the court using apposite language; avoid slang and other semantic abominations. Argue to, not with, the judge. Act at all times in accordance with ethical principles.

[page 232]

12

SAMPLE CROSS EXAMINATIONS Introduction Oscar Wilde cross-examined by Carson W A Cadbury cross-examined by Carson W S Gilbert cross-examined by Carson Vaquier cross-examined by Hastings Richard Seary cross-examined by Adams Sir Robert Askin cross-examined by Evatt

12.1 12.2 12.3 12.4 12.5 12.6 12.7

[page 233]

INTRODUCTION 12.1 In the first and second editions of this book I included a selection (with the kind permission of the publishers) from the work of E W Fordham, who in 1951 collected and published, from such sources as ‘Notable British Trials’, a series of Notable CrossExaminations. Cross-examination, as an art, does not vary from generation to generation. With changing fashions, address becomes more or less theatrical and counsel more or less flamboyant, but in cross-examination a good question remains a good question. Carson would be as effective today as when he conducted the crossexamination of Oscar Wilde in 1895, Robert Sievier would be as vulnerable to the leaders of the modern bar as he was to Patrick Hastings, and a latter day Robert Wood could still be confident of salvation by Marshall Hall. For these reasons, and at the request of many who complained of the want of their inclusion in the third edition, I have repeated a shorter selection of those cross-examinations, for both entertainment and instruction.

OSCAR WILDE CROSS-EXAMINED BY CARSON 12.2 The first of these ‘notable cross-examinations’ remains the cross-examination of Oscar Wilde by Sir Edward Carson. The following excerpts, from the Trials of Oscar Wilde by H Montgomery Hyde, capture the apparently effortless skill of Carson. From the first question, in which he highlights Wilde’s ‘amour-propre’, to the question about his dubious behaviour with a newspaper boy,

detailing his improper amours, each question is elegant, precise and incisive. Moreover, the questions are nearly all leading, permitting Wilde only agreement or dissent as answers, although true to his personality, he embellishes the answers quite often. Almost equally often, the addition is to Carson’s advantage. This is in my view one of the great cross-examinations of all time. Mr Carson — You stated that your age was thirty-nine, I think you are over forty. You were born on 16th October, 1854? Oscar Wilde — I have no wish to pose as being young. I am thirty-nine or forty. You have my certificate and that settles the matter. But being born in 1854 makes you more than forty? — Ah! Very well. What age is Lord Alfred Douglas? — Lord Alfred Douglas is about twenty-four, and was between twenty and twenty-one years of age when I first knew him. Down to the time of the interview in Tite Street, Lord Queensberry was friendly. I did not receive a letter on 3rd April in which Lord Queensberry desired that my acquaintance with his son should cease. After the interview I had no doubt that such was Lord Queensberry’s desire. Notwithstanding Lord Queensberry’s protest, my intimacy with Lord Alfred Douglas has continued down to the present moment. You have stayed with him at many places? — Yes. At Oxford? Brighton on several occasions? Worthing? — Yes. You never took rooms for him? — No. Were you at other places with him? — Yes, at Cromer and at Torquay. And in various hotels in London? — Yes; at one in Albemarle Street, and at the Savoy. Did you ever take rooms yourself in addition to your house in Tite Street? — Yes; at 10 and 11 St James’s Place. I kept the rooms for the month of October, 1893, to the end of March, 1894. Lord Alfred Douglas has stayed in those chambers, which are not far from

[page 234] Piccadilly. I have been abroad with him several times and even lately to Monte Carlo. With reference to the writings which have been mentioned, it was not at Brighton, in 20 King’s Road, that I wrote my article for The Chameleon. I observed that there were also contributions from Lord Alfred Douglas, but these were not written at Brighton. I have seen them. I thought them exceedingly beautiful poems. One was ‘In Praise of Shame’ and the other ‘Two Loves.’ These loves. They were two boys? — Yes. One boy calls his love ‘true love,’ and the other boy calls his love ‘shame’? — Yes. Did you think that made any improper suggestion? — No, none whatever. You read The Priest and the Acolyte? — Yes.

You have no doubt whatever that that was an improper story? — From the literary point of view it was highly improper. It is impossible for a man of literature to judge it otherwise; by literature, meaning treatment, selection of subject, and the like. I thought the treatment rotten and the subject rotten. You are of opinion, I believe, that there is no such thing as an immoral book? — Yes. May I take it that you think The Priest and the Acolyte was not immoral? — It was worse; it was badly written. Was not the story that of a priest who fell in love with a boy who served him at the altar, and was discovered by the rector in the priest’s room, and a scandal arose? — I have read it only once, in last November, and nothing will induce me to read it again. I don’t care for it. It doesn’t interest me. Do you think the story blasphemous? — I think it violated every artistic canon of beauty. That is not an answer? — It is the only one I can give. I want to see the position you pose in? — I do not think you should say that. I have said nothing out of the way. I wish to know whether you thought the story blasphemous? — The story filled me with disgust. The end was wrong. Answer the question, sir. Did you or did you not consider the story blasphemous? — I thought it disgusting. I am satisfied with that. You know that when the priest in the story administers poison to the boy, he uses the words of the sacrament of the Church of England? — That I entirely forgot. Do you consider that blasphemous? — I think it is horrible. ‘Blasphemous’ is not a word of mine. [Wilde was cross-examined about that curious book, and then, immediately after, about some of his own writings, leading into questions about The Picture of Dorian Gray:] So far as your works are concerned, you pose as not being concerned about morality or immorality? — I do not know whether you use the word ‘pose’ in any particular sense. It is a favourite word of your own? — Is it? I have no pose in this matter. In writing a play or a book, I am concerned entirely with literature — that is, with art. I aim not at doing good or evil, but in trying to make a thing that will have some quality of beauty. Listen, sir. Here is one of the Phrases and Philosophies for the Use of the Young which you contributed: ‘Wickedness is a myth invented by good people to account for the curious attractiveness of others.’ You think that true? — I rarely think that anything I write is true. Did you say ‘rarely’? — I said ‘rarely’. I might have said ‘never’ — not true in the actual sense of the word. ‘Religions die when they are proved to be true.’ Is that true? — Yes, I hold that. It is a suggestion towards a philosophy of the absorption of religions by science, but it is too big a question to go into now. Do you think that was a safe axiom to put forward for the philosophy of the young? — Most stimulating.

[page 235] ‘If one tells the truth, one is sure, sooner or later, to be found out’? — That is a pleasing paradox, but I do not set very high store on it as an axiom. Is it good for the young? — Anything is good that stimulates thought in whatever age. Whether moral or immoral? — There is no such thing as morality or immorality in thought. There is immoral emotion. ‘Pleasure is the only thing one should live for’? — I think that the realization of oneself is the prime aim of life, and to realize oneself through pleasure is finer than to do so through pain. I am, on that point, entirely on the side of the ancients — the Greeks. It is a pagan idea. ‘A truth ceases to be true when more than one person believes in it’? — Perfectly. That would be my metaphysical definition of truth; something so personal that the same truth could never be appreciated by two minds. ‘The condition of perfection is idleness: the aim of perfection is youth’? — Oh, yes, I think so. Half of it is true. The life of contemplation is the highest life, and so recognized by the philosopher. ‘There is something tragic about the enormous number of young men there are in England at the present moment who start life with perfect profiles, and end by adopting some useful profession’? — I should think that the young have enough sense of humour. You think that is humorous? — I think it is an amusing paradox, an amusing play on words. What would anybody say would be the effect of Phrases and Philosophies taken in connexion with such an article as The Priest and the Acolyte? — Undoubtedly it was the idea that might be formed that made me object so strongly to the story. I saw at once that maxims that were perfectly nonsensical, paradoxical, or anything you like, might be read in conjunction with it. After the criticisms that were passed on Dorian Gray, was it modified a good deal? — No. Additions were made. In one case it was pointed out to me — not in a newspaper or anything of that sort, but by the only critic of the century whose opinion I set high, Mr Walter Pater — that a certain passage was liable to misconstruction, and I made an addition. This is in your introduction to Dorian Gray: ‘There is no such thing as a moral or an immoral book. Books are well written, or badly written.’ That expresses your view? — My view on art, yes. Then, I take it, that no matter how immoral a book may be, if it is well written, it is, in your opinion, a good book? — Yes, if it were well written so as to produce a sense of beauty, which is the highest sense of which a human being can be capable. If it were badly written, it would produce a sense of disgust. Then a well-written book putting forward perverted moral views may be a good book? — No work of art ever puts forward views. Views belong to people who are not artists. A perverted novel might be a good book? — I don’t know what you mean by a ‘perverted’ novel. Then I will suggest Dorian Gray as open to the interpretation of being such a novel? —

That could only be to brutes and illiterates. The views of Philistines on art are incalculably stupid. An illiterate person reading Dorian Gray might consider it such a novel? — The views of illiterates on art are unaccountable. I am concerned only with my view of art. I don’t care two pence what other people think of it. The majority of persons would come under your definition of Philistines and illiterates? — I have found wonderful exceptions. Do you think that the majority of people live up to the position you are giving us? — I am afraid they are not cultivated enough. Not cultivated enough to draw the distinction between a good book and a bad book? — Certainly not.

[page 236] The affection and love of the artist of Dorian Gray might lead an ordinary individual to believe that it might have a certain tendency? — I have no knowledge of the views of ordinary individuals. You did not prevent the ordinary individual from buying your book? — I have never discouraged him. [Mr Carson then read extracts from The Picture of Dorian Gray, in which the painter Basil Hallward tells Lord Henry Wooton of his first meetings with Dorian Gray and the cross-examination continued:] Do you mean to say that that passage describes the natural feeling of one man towards another? — It would be the influence produced by a beautiful personality. A beautiful person? — I said a ‘beautiful personality’. You can describe it as you like. Dorian Gray’s was a most remarkable personality. May I take it that you, as an artist, have never known the feeling described here? — I have never allowed any personality to dominate my art. Then you have never known the feeling you described? — No, it is a work of fiction. So far as you are concerned you have no experience as to its being a natural feeling? — I think it is perfectly natural for any artist to admire intensely and love a young man. It is an incident in the life of almost every artist. But let us go over it phrase by phrase. ‘I quite admit that I adored you madly.’ What do you say to that? Have you ever adored a young man madly? — No, not madly; I prefer love — that is a higher form. Never mind about that. Let us keep down to the level we are at now? — I have never given adoration to anybody except myself. [Loud laughter.] I suppose you think that a very smart thing? — Not at all. Then you have never had that feeling? — No. The whole idea was borrowed from Shakespeare, I regret to say — yes, from Shakespeare’s sonnets.

I believe you have written an article to show that Shakespeare’s sonnets were suggestive of unnatural vice? — On the contrary. I have written an article to show that they are not. I objected to such a perversion being put upon Shakespeare. ‘I have adored you extravagantly’? — Do you mean financially? Oh, yes, financially! Do you think we are talking about finance? — I don’t know what you are talking about. Don’t you? Well, I hope I shall make myself very plain before I have done. ‘I was jealous of every one to whom you spoke.’ Have you ever been jealous of a young man? — Never in my life. ‘I wanted to have you all to myself.’ Did you ever have that feeling? — No, I should consider it an intense nuisance, an intense bore. ‘I grew afraid that the world would know of my idolatry.’ Why should he grow afraid that the world should know of it? — Because there are people in the world who cannot understand the intense devotion, affection, and admiration that an artist can feel for a wonderful and beautiful personality. These are the conditions under which we live. I regret them. These unfortunate people, that have not the high understanding that you have, might put it down to something wrong? — Undoubtedly; to any point they chose. I am not concerned with the ignorance of others. In another passage Dorian Gray receives a book. Was the book to which you refer a moral book? — Not well written, but it gave me an idea. Was not the book you have in mind of a certain tendency? — I decline to be cross examined upon the work of another artist. It is an impertinence and a vulgarity.

[page 237] [Witness admitted that the book in question was a French work, A Rebours, by J K Huysmans. Mr Carson persisted in his desire to elicit the witness’s view as to the morality of this book.] [A further portion of Dorian Gray was read, and cross-examined on as follows:] Does not this passage suggest a charge of unnatural vice? — It describes Dorian Gray as a man of very corrupt influence, though there is no statement as to the nature of the influence. But as a matter of fact I do not think that one person influences another, nor do I think there is any bad influence in the world. A man never corrupts a youth? — I think not. Nothing could corrupt him? — If you are talking of separate ages. No, sir, I am talking common sense? — I do not think one person influences another. You don’t think that flattering a young man, making love to him, in fact, would be likely to corrupt him? — No. Where was Lord Alfred Douglas staying when you wrote that letter to him? — At the

Savoy; and I was at Babbacombe, near Torquay. It was a letter in answer to something he had sent you? — Yes, a poem. Why should a man of your age address a boy nearly twenty years younger as ‘My own boy’? — I was fond of him. I have always been fond of him. Do you adore him? — No, but I have always liked him. I think it is a beautiful letter. It is a poem. I was not writing an ordinary letter. You might as well cross-examine me as to whether King Lear or a sonnet of Shakespeare was proper. Apart from art, Mr Wilde? — I cannot answer apart from art. Suppose a man who was not an artist had written this letter would you say it was a proper letter? — A man who was not an artist could not have written that letter. Why? — Because nobody but an artist could write it. He certainly could not write the language unless he were a man of letters. I can suggest, for the sake of your reputation, that there is nothing very wonderful in this ‘red rose-leaf lips of yours’? — A great deal depends on the way it is read. ‘Your slim gilt soul walks between passion and poetry.’ Is that a beautiful phrase? — Not as you read it, Mr Carson. You read it very badly. I do not profess to be an artist; and when I hear you give evidence, I am glad I am not — [Sir Edward Clarke — I don’t think my friend should talk like that. (To witness) Pray, do not criticise my friend’s reading again. Cross-examination continued:] Is that not an exceptional letter? — It is unique, I should say. Was that the ordinary way in which you carried on your correspondence? — No, but I have often written to Lord Alfred Douglas, though I never wrote to another young man in the same way. Have you often written letters in the same style as this? — I don’t repeat myself in style. Here is another letter which I believe you also wrote to Lord Alfred Douglas. Will you read it? — No; I decline, I don’t see why I should. Then I will. Savoy Hotel, Victoria Embankment, London. Dearest of all Boys, Your letter was delightful, red and yellow wine to me; but I am sad and out of sorts. Bosie, you must not make scenes with me. They kill me, they wreck the loveliness of life. I cannot see you, so Greek and gracious, distorted with passion. I cannot listen to your curved lips saying hideous things to me. I would sooner — than have you bitter, unjust, hating. … I must see you soon. You are the divine thing I want, the thing of grace and beauty; but I don’t know how to do it. Shall I come to Salisbury?

[page 238]

My bill here is £49 for a week. I have also got a new sitting-room … Why are you not here, my dear, my wonderful boy? I fear I must leave — no money, no credit, and a heart of lead. Your own Oscar. Is that an ordinary letter? — Everything I write is extraordinary. I do not pose as being ordinary, great heavens! Ask me any question you like about it. Is it the kind of letter a man writes to another? — It was a tender expression of my great admiration for Lord Alfred Douglas. It was not, like the other, a prose poem. Were you living at the Savoy? — Yes, I was there for about a month, and had also my house in Tite Street. Lord Alfred had been staying with me at the Savoy immediately before I wrote that letter. How long had you known Wood? — I think I met him at the end of January 1893. I met him at the Café Royal where he was sent to find me by Lord Alfred Douglas who telegraphed from Salisbury. Lord Alfred asked me to do what I could for Wood, who was seeking a post as a clerk. I do not know where he was living at that time. Taylor was living at 13 Little College Street, and I have been there to tea parties on many occasions. They were all men at the parties, but not all young men. I took Wood to supper at the Florence Restaurant in Rupert Street, because Lord Alfred had asked me to be kind to him. Who was Wood? — So far as I could make out he had no occupation, but was looking for a situation. He told me he had had a clerkship. At that time he was about twenty-three years of age. Then, do I understand that the first time you met Wood you took him to supper? — Yes, because I had been asked to be kind to him. Otherwise it was rather a bore. Was Taylor or anybody else there? — No. Had you a private room at the Florence? — Yes, I went there so that I could get a cheque cashed because the next day was Sunday. How much did you give Wood then? — £2. Why? — Because Lord Alfred Douglas asked me to be kind to him. I don’t care about different social positions. I suggest that you first had immoral relations with him and then gave him money? — It is perfectly untrue. Did you consider that he had come to levy blackmail? — I did; and I determined to face it. And the way you faced it was by giving him £15 to go to America? — That is an inaccurate description. I saw that the letters were of no value, and I gave him the money after he had told me the pitiful tale about himself, foolishly perhaps, but out of pure kindness. I suggest that you gave him £30. Did you give him £5 more next day? — Yes; he told me that after paying his passage to America he would be left almost penniless. I gave him £5. Had you a farewell lunch at the Florence? — Yes. It was after lunch that you gave him £5? — Yes. After Wood went to America did he ask you for money? — No. Did he call Taylor by his Christian name? — Yes. Did Wood call you ‘Oscar’? — Yes.

What did you call Wood? — His name is Alfred. Didn’t you call him ‘Alf? — No, I never use abbreviations. Did you not think it a curious thing that a man with whom you were on such intimate terms should try to blackmail you? — I thought it infamous, but Wood convinced me that such had not been his intention, though it was the intention of other people. Wood assured me that he had recovered all the letters. And then Allen came with a letter, possession of which you knew he had secured improperly? — Yes.

[page 239] What was Allen? — I am told he was a blackmailer. Was he a blackmailer? — I never heard of him except as a blackmailer. Then you began to explain to the blackmailer what a loss your beautiful manuscript was? — I described it as a beautiful work of art. May I ask why you gave this man, who you knew was a notorious blackmailer, ten shillings? — I gave it out of contempt. Then the way you show your contempt is by paying ten shillings? — Yes, very often. I suppose he was pleased with your contempt? — Yes, he was apparently pleased at my kindness. A few minutes afterwards did Cliburn come to the door? — Yes. Allen had mentioned my kindness to him. Did you know Cliburn before? — I saw him at the stage door of the Haymarket on 21st April, when he said that he wanted to speak to me about a letter which Allen had. I told him that I was rehearsing and could not be bothered, and that really I did not care two pence about it. He made no attempt to blackmail me. But you were immediately kind to him? — Yes, I gave him half-a-sovereign. And you began discussing with him what a beautiful manuscript and work of art the letter was? — Yes. Did you tell this blackmailer that the letter was to be published as a sonnet? — Yes, I told Allen but not Cliburn. I told him it was to be published in an Oxford magazine, The Spirit Lamp. That was to show my indifference. But you had got back the letter? — Yes. Did you say to him: ‘I am afraid you are leading a wonderfully wicked life’? — Yes; I meant generally in being mixed up in this attempt to blackmail me. Did you ever have any of your beautiful letters, except the one found out, turned into a sonnet? — I require to read a great deal of modern poetry before I can say. Come sir, answer the question. Can you tell me if one, except this, was ever turned into a sonnet? — Well, at the present moment I cannot recollect another.

Did you ever ask Lord Alfred Douglas to preserve that letter? — No. And therefore you never thought of turning it into a sonnet till it was discovered? — I never did turn it into a sonnet. When the copy was sent to Mr Beerbohm Tree and I saw it, I at once thought it would turn into a sonnet. Were you staying at the Albemarle Hotel about 26th of February 1892? — Yes. At that time were Messrs Elkin Mathews & John Lane, of Vigo Street, your publishers? — Yes. Did you become fond of their office boy? — I really do not think that that is the proper form for the question to be addressed to me in. I deny that that was the position held by Mr Edward Shelley, to whom you are referring. I object to your description. What age was Mr Shelley? — I should think about twenty. I first met him in October when arranging for the publication of my books. I asked him to dine with me at the Albemarle Hotel. Was that for the purpose of having an intellectual treat? — Well, for him, yes. We dined in my own sitting room, and there was one other gentleman there. [Witness wrote down the name which was handed to counsel.] On that occasion did you have a room leading into a bedroom? — Yes. Did you give him whiskies and sodas? — I suppose that he had whatever he wanted, I do not remember. He did not stay all night, nor did I embrace him. [Witness absolutely denied that any improper conduct occurred. Cross-examination continued:] I invited him to my house and he dined with myself and my wife. He expressed great admiration for my works. I took him to the Exhibition at Earl’s Court, to the Lyric Club, the Café Royal,

[page 240] and Kettner’s, and also to the first night’s performance at the Independent Theatre, and it may be he was at the Hogarth Club, of which I am not a member. Did you ever give him money? — Yes: on three occasions — the first time £4, the second time his railway fare to Cromer, where I invited him to meet my wife and family, and the third time £5. He did not go to Cromer, but kept the £3? — He did not go, and I wrote to him saying he was not to send back the money. Did you think this young man of eighteen was a proper or natural companion for you? — Certainly. Did you give him a signed copy of the first edition of Dorian Gray? — Yes. Is this your writing? [Counsel handed up a copy of The Sinner’s Comedy, which was inscribed ‘From the Author to dear Edward Shelley’.] That was purely a piece of nonsense? — I was not the author of the book.

Did you become intimate with a young lad named Alphonse Conway at Worthing? — Yes. He sold newspapers at the kiosk on the pier? — No, I never heard that up to that time his only occupation was selling newspapers. It is the first I have heard of his connexion with literature. What was he? — He led a happy, idle life. He was a loafer, in fact? How old was he? — He seemed to me to be just enjoying life. He was a youth of about eighteen. How did you make his acquaintance? — When Lord Alfred Douglas and I were at Worthing, we were accustomed to go out in a boat. One day when the fishermen were launching a boat on the high beach, Conway, with another lad, assisted in getting the craft down to the water. I said to Lord Alfred Douglas, ‘Shall we ask them to come out for a sail?’ He assented, and we took them. After that Alphonse and I became great friends, and it is true that I asked him to lunch with me. He also dined at my house, and lunched with me at the Marine Hotel. Was his conversation literary? — On the contrary, quite simple and easily understood. He had been to school where naturally he had not learned much. He was a simple country lad? — He was a nice, pleasant creature. His mother kept a lodging-house, and his desire was to go to sea. It is not true that I met him by appointment one evening and took him on the road to Lancing, kissing him and indulging in familiarities on the way. Did you give him anything? — Oh, yes, but no money. Did you give him sums amounting to £15? — Never. I gave him a cigarette case in which I placed a paper inscribed ‘Alphonse from his friend Oscar Wilde,’ I called him ‘Alphonse,’ but he did not call me ‘Oscar’. I also gave him my photograph, on which I wrote ‘Oscar Wilde to Alphonse’. I also gave him a book called The Wreck of the Grosvenor. [These presents, and also a silver-mounted crook-handled grape-vine stick, were produced.] Were you fond of this boy? — Naturally. He had been my companion for six weeks. Did you take the lad to Brighton? — Yes. And provided him with a suit of blue serge? — Yes. And a straw hat with a band of red and blue? — That, I think, was his unfortunate selection. But you paid for it? — Yes. You dressed this newsboy up to take him to Brighton? — No. I did not want him to be ashamed of his shabby clothes. He told me his father had been an electrical engineer, and had died young.

[page 241] In order that he might look more like an equal? — Oh, no! He could not look like that. No,

I promised him that before I left Worthing I would take him somewhere, to some place to which he wished to go, as a reward for his being a pleasant companion to myself and my children. He chose Portsmouth, as he was anxious to go to sea, but I told him that was too far. So we went to Brighton. We dined at a restaurant and stayed the night at the Albion Hotel, where I took a sitting-room and two bedrooms. I am not sure that the bedrooms communicated by a green baize door. We returned next day. I have never taken any other boy to the Albion. I am quite certain of that. [The cross-examination, which began with Wilde’s interest in young boys, has come full circle. During its continuance, the questioner had drawn from the witness admissions as to his morality, his behaviour with a number of young men, and his payments — ‘generosity’ — to blackmailers. In context it was a devastating display of courteous surgery, the use of innuendo, irony and confrontation. This ended the first day’s cross-examination. The early part of the examination on the second day, Thursday 4 April 1895, is unremarkable. It is literally a continuation of the previous day’s attack — unrelenting and precise, the questions carefully put and ordered, allowing no rest or respite to the unfortunate Wilde. As the morning wore on the pressure on the witness was increased:] Now, did you not know that Taylor was notorious for introducing young men to older men? — I never heard that in my life. He has introduced young men to me. How many has he introduced to you? — Do you mean of those mentioned in this case? No; young men with whom you afterwards became intimate? — About five. They were young men whom you would call by their Christian names? — Yes. Were these young men all about twenty? — Yes; twenty or twenty-two. I like the society of young men. What was their occupation? — I do not know if these particular young men had occupations. Have you given money to them? — Yes. I think to all five — money or presents. Did they give you anything? — Me? Me? No! Among these five did Taylor introduce you to Charles Parker? — Yes. Did you become friendly with him? — Yes, he was one with whom I became friendly. Did you know that Parker was a gentleman’s servant out of employment? — No. But if he were, you would still have become friendly with him? — Yes. I would become friendly with any human being I liked. How old was he? — Really, I do not keep a census. Never mind about a census. Tell me how old he was? — I should say he was about twenty. He was young, and that was one of his attractions. Was he a literary character? — Oh, no. Was he intellectual? Was he an educated man? — Culture was not his strong point. He was not an artist. Education depends on what one’s standard is. Where is he now? — I haven’t the slightest idea. I have lost sight of him. How much money did you give Parker? — During the time I have known him I should think £4 or £5.

Why? For what reason? — Because he was poor, and I liked him. What better reason could I have? Did you ask what his previous occupation was? — I never inquire about people’s pasts. Nor their future? — Oh, that is problematical. [Sir Edward Clarke — ‘There is no use in arguing about that.’ Cross-examination continued:] Where did you first meet him? — At Kettner’s. I was introduced by Mr Taylor. Did you become friendly with Parker’s brother? — Yes. They were my guests, and as such I became friendly with them.

[page 242] On the very first occasion that you saw them? — Yes. It was Taylor’s birthday, and I asked him to dinner, telling him to bring any of his friends. Did you know that one Parker was a gentleman’s valet, and the other a groom? — I did not know it, but if I had l should not have cared. I didn’t care twopence what they were, I like them. I have a passion to civilize the community. What enjoyment was it to you to entertain grooms and coachmen? — The pleasure to me was being with those who are young, bright, happy, careless, and free. I do not like the sensible and I do not like the old. Taylor accepted your invitation by bringing a valet and a groom to dine with you? — That is your account, not mine. Were they persons of that class? — I am surprised at your description of them. They did not seem to have the manners of that class. They seemed to me pleasant and nice. They spoke of a father at Datchet as a person of wealth — well, not of wealth but of some fortune. Charlie Parker told me that he was desirous to go on the stage. Did you call him ‘Charlie’? — Yes. What did you have for dinner? — Well, really I forget the menu. Was it a good dinner? — Kettner’s is not so gorgeous as some restaurants, but it was Kettner at his best. With the best of Kettner’s wines? — Yes, certainly. All for the valet and the groom? — No; for my friends; for Mr Taylor, whose birthday it was. You did the honours to the valet and the groom? — I entertained Taylor and his two guests. In a private room, of course? — Yes, certainly. Did you give them an intellectual treat? — They seemed deeply impressed. During the dinner did you become more intimate with Charles than the other? — I liked him better.

Did Charles Parker call you ‘Oscar’? — Yes. I like to be called ‘Oscar’ or ‘Mr Wilde.’ You had wine? — Of course. Was there plenty of champagne? — Well I did not press wine upon them. You did not stint them? — What gentleman would stint his guests? What gentleman would stint the valet and the groom? [Witness and his counsel protested against this remark.] Now, after dinner, did you say, referring to Charles Parker, in the presence of Taylor and William Parker, the brother, ‘This is the boy for me’? — Certainly not. And did you ask Charles, ‘Will you come with me’? — No. After dinner I went back to the Savoy Hotel, but I did not take Charles Parker with me. Did you not drive him to the Savoy? — No, he did not come to the Savoy at all. Did any of these men who visited you at the Savoy have whiskies and sodas and iced champagne? — I can’t say what they had. Do you drink champagne yourself? — Yes; iced champagne is a favourite drink of mine — strongly against my doctor’s orders. Never mind your doctor’s orders, sir? — I never do. About a week later Charles Parker and Taylor dined with me at Kettner’s again. The second dinner at Kettner’s was arranged by myself. [Some few questions are omitted here for reasons of space. Carson continued:] When did you see Charles Parker last? — I don’t think I have seen him since February of last year. Did you ever hear what became of him? — I heard that he had gone into the army — enlisted as a private. You saw in the papers of the arrest of Taylor and Parker? — Yes; I read that they were arrested.

[page 243] You know that they were charged with felonious practices? — I knew nothing of the charges. That when they were arrested they were in company with several men in women’s clothing? — I read of it in the newspapers that two men, in women’s clothes, music-hall artistes, drove up to the house and were arrested outside. Did you not think it a somewhat serious thing that Mr Taylor, your great friend, and Charles Parker, another great friend, should have been arrested in a police raid? — I was very much distressed at the time, and wrote to him, but the magistrates took a different view of the case, because they dismissed the charge. It made no difference to my friendship for him. Was this same Taylor lunching with you on Tuesday last? — Not lunching. He came to

my house to see me. [In this cross-examination, the coup de grâce does not come at the very end. This is unusual, for Carson had a great sense of drama. The cross-examination that follows destroyed Wilde’s credit completely and did so because it clearly took him off guard. From that point the balance of the testing amounts to a catalogue of Wilde’s ‘boy’ friends. I have not included it here. It concludes with the enigmatic question: ‘Only one question more. Would you know the waiter at the hotel in the Boulevarde des Capucines in Paris? — Yes. I think I would.’ The coup de grâce had come a few minutes earlier with these few questions and answers:] Do you know Walter Grainger? — Yes. How old is he? — He was about sixteen when I knew him. He was a servant at a certain house in High Street, Oxford, where Lord Alfred Douglas had rooms. I have stayed there several times. Grainger waited at table. I never dined with him. If it is one’s duty to serve, it is one’s duty to serve; and if it is one’s pleasure to dine, it is one’s pleasure to dine. Did you ever kiss him? — Oh, dear no. He was a peculiarly plain boy. He was, unfortunately, extremely ugly. I pitied him for it. Was that the reason why you did not kiss him? — Oh, Mr Carson, you are pertinently insolent. Did you say that in support of your statement that you never kissed him? — No. It is a childish question. Did you ever put that forward as a reason why you never kissed the boy? — Not at all. Why, sir, did you mention that this boy was extremely ugly? — For this reason. If I were asked why I did not kiss a door-mat, I should say because I do not like to kiss door-mats. I do not know why I mentioned that he was ugly, except that I was stung by the insolent question you put to me and the way you have insulted me throughout this hearing. Am I to be crossexamined because I do not like it? Why did you mention his ugliness? — It is ridiculous to imagine that any such thing could have occurred under any circumstances. Then why did you mention his ugliness, I ask you? — Perhaps you insulted me by an insulting question. Was that a reason why you should say the boy was ugly? — [Here the witness began several answers almost inarticulately, and none of them he finished. His efforts to collect his ideas were not aided by Mr Carson’s sharp staccato repetition: ‘Why? Why? Why did you add that?’ At last the witness answered:] You sting me and insult me and try to unnerve me; and at times one says things flippantly when one ought to speak more seriously. I admit it. Then you said it flippantly? — Oh, yes, it was a flippant answer.

Carson was widely regarded as the best counsel of his age, and one of the best seen in the second half of the nineteenth century. He was predominantly a

[page 244] destructive, brutal cross-examiner, but as can be seen from the Wilde example, and from the following, his attack rested on sound and thorough preparation and mastery of the materials.

W A CADBURY CROSS-EXAMINED BY CARSON 12.3 There are at least two further cross-examinations of Sir Edward Carson’s which deserve preservation and regard — the first as instructive; the second as an entertainment, and perhaps a warning. In the first, the cross-examination of W A Cadbury in the trial of Cadbury v Standard Newspapers, Carson’s cross-examination is a model of the brutal attacking style of which he was the great master. It is, of course, conducted under the advantage of good sound instructions as to the facts. It is not probing or insinuating, but simple confrontation of the witness. The last question, on which Carson sat down, is oddly omitted from Fordham’s book. I have included it. It is one of the great closing questions by an advocate. The action was a defamation suit in which the matter complained of was an article published in 1908 in The Standard referring to the plaintiff’s company buying cocoa from the Portuguese islands of San Thomé and Principe, produced by slave labour. The article read: ‘It is not called “slavery”; “contract labour” they call it now, but in most of its essentials it is that monstrous trade in human flesh and blood against which the Quaker and Radical ancestors of Mr Cadbury thundered in the better days of England’. This was written at a time when Cadbury had spent substantial sums in ascertaining the facts about conditions on the islands, and had been ‘advised’ to continue trading while the British Government applied diplomatic pressure to Portugal, on the grounds that their commercial interest in the islands would strengthen the hands of the Foreign Office in such action as they might see fit to take. Sir Edward Carson, for the defendant, cross-examined the plaintiff.

Is it a fact that San Thomé cocoa has been slave-grown to your knowledge for eight years? — Yes. Was it slavery of a very atrocious character? — Yes. Men, women and children taken forcibly from their homes against their will? — Yes. Were they marched like cattle? — I cannot answer that, quite. They were marched in forced marches down to the coast. Were they labelled when they went on board the ship? — Yes. How far had they to march? — Various distances. Some came from more than a thousand miles, some from quite near the coast. Never to return again? — Never to return. From the information which you procured did they go down in shackles? — It is the usual custom, I believe, to shackle them at night on the march. Those who could not keep up with the march were murdered? — I have seen statements to that effect. You do not doubt it? — I do not doubt that it has been so in some cases. The men, women, and children are freely bought and sold? — I do not believe, so far as I know, that there has been anything that corresponded to the open slave-market of fifty years ago. It is done now more by subtle trickery and arrangements of that kind. You do not suggest that it is better because done by subtle trickery? — No.

[page 245] The children born to the women who are taken out as slaves become the property of the owners of the slaves? — I believe that the children born on the estate do. Was it not the most cruel and atrocious form of slavery that ever existed? — I cannot distinguish between slavery and slavery. All slavery is atrocious. Knowing it was atrocious, you took the main portion of your supply of cocoa for the profit of your business from the islands conducted under this system? — Yes, for a period of some years. You do not look upon that as anything unusual? — Not under the circumstances. [Carson quoted from a report of the Board of Messrs Cadbury: ‘There seems little doubt that public opinion would condemn the existing conditions of labour if the facts could be made known.’] Does that represent your view? — Yes. There would be no difficulty about making the facts known? — There would be no difficulty. If you had made public the facts, public opinion would have condemned the conditions of labour and you would not have gone on? — I think so. Carson’s final question was:

Have you formed any estimation of the number of slaves who lost their lives in preparing your cocoa during the last eight years? — No, no, no.

W S GILBERT CROSS-EXAMINED BY CARSON 12.4 The last selection from Carson’s cross-examinations I offer as both an entertainment and a warning: no matter how great the advocate, there is always a witness who will best him or her. No matter how skilled the cross-examiner, humour is a dangerous element in evidence. W S Gilbert had sued the Era in defamation, the matter complained of being the following: ‘Mr Gilbert’s self-esteem has with advancing years developed into a malady. In his own estimation he is a kind of Grand Llama or Sacred Elephant of dramatic literature. His good nature has become obscured by the abnormal protuberance of his bump of self esteem. That this — what’s his name — Grundy should have written successful original works, while he, the Great Gilbert, has met with failure after failure in modern drama is preposterous and not to be borne’. You don’t like reading hostile criticism? — I have a horror of reading criticism at all, either good or bad … I never read favourable criticism, I prefer reading unfavourable ones. I know how good I am, but I do not know how bad I am. Do you agree that The Fortune Hunter was a very bad play? — A play that fails is for all practical purposes a bad play. [Carson then reminded the witness of what he had said about English actors in poetic drama, and asked:] Did you observe from the public press that a short time afterward Sir Henry Irving, at a dinner of the Sheffield Press Club, spoke good-humouredly but warmly about the criticisms upon himself? — I do not admit that he spoke good humouredly but warmly. I noticed that he spoke most angrily and most spitefully concerning me. He described me as a librettist who soared to write original comedy. What is the direction of current dramatic taste? — In the direction of musical comedy, in which half a dozen irresponsible comedians are turned loose on the stage to do as they please. Will you mention one of them? — Oh, there are plenty of them!

[page 246]

I wish you would mention one — Well, take the pantomime at Drury Lane Theatre with the great Dan Leno. But that only goes on for a short time in the year — It goes on for a long time in the evening. Do you really describe a pantomime as bad musical comedy? — No, but I would describe a bad musical comedy as a pantomime. That is very clever; but I would like to know what you mean by bad musical comedies. Give me the name of one. — There are 50 of them. Give me one. — I would say such a piece as ‘The Circus Girl.’ Would you call it a bad musical comedy? — I would call it bad, I believe the manager calls it musical comedy. Have they half a dozen irresponsible low comedians turned loose in ‘The Circus Girl’? — I do not know how many there are. [Mr Hesketh Pearson in his Gilbert and Sullivan (Messrs Hamish Hamilton Ltd, p 262) thus describes the ensuing cross-examination:] Varying his line of attack, Carson wanted to know what complaint Gilbert had against the critics. Gilbert declared that there were fewer original plays on the stage because the critics drew no distinction between original work and translations or adaptations. As a boy he had translated the Greek dramatists, but had never considered himself the author of their works. ‘I have always given Sophocles the credit for his share of the work,’ he added amidst laughter. Carson now tried another tack Gilbert had quarrelled with a number of people? Gilbert refused to admit that he had. ‘Was he not extremely touchy and quick tempered?’ — ‘Certainly not’. ‘Well, had he not quarrelled with, for example, Clement Scott?’ — ‘Yes, he had written to Clement Scott nine years ago complaining of a criticism.’ ‘You said, “I am determined not to expose myself again to your insulting jibes?”’ — ‘Yes, no doubt I wrote that!’ ‘You were cool and calm’? — ‘Yes, calm and deliberate. I don’t know my temperature at the time.’ (Prolonged laughter.) …

Gilbert had scored off Carson all along the line, but Carson’s turn came with his speech for the defendants, when he made it so hot for Gilbert that the latter, seething with retorts he was unable to utter, got up noisily and stamped out of court. After an absence of two-and-a-half hours the jury could not reach an agreement.

VAQUIER CROSS-EXAMINED BY

HASTINGS 12.5 One of the few examples which provides an insight into a successful cross-examination with ‘notes’ by the cross-examiner himself comes from the trial of Vaquier, who was prosecuted by Sir Patrick Hastings. In his autobiography, Hastings gave a clear assessment of the trial, and of its high point — cross-examination of the accused: As in every other case in which a prisoner is called upon to give an account of matters which would otherwise seem to be gravely suspicious, the chief interest in the crime centres around the prisoner’s cross-examination. In many ways the cross-examination of Vaquier was exceptionally dramatic. To begin with, he was a Frenchman and the services of an interpreter were required throughout. It must have been obvious to everyone who heard him that he was under a complete misapprehension as to the

[page 247] peril in which he stood. The extreme courtesy with which the cross-examination was conducted must have increased his feeling of self-confidence. He appeared almost debonair in his manner, and as the questions proceeded he was apparently the only person in the court who did not feel the horror of the rope being drawn more tightly around his neck. At some of his answers a shudder seemed almost to run from the jury-box into the gallery, and yet Vaquier appeared more than satisfied with the course of events and even delighted with the effect that he was creating. It required but little skill to cross-examine Vaquier. The cross-examination was by no means prolonged, but its effect was in its very nature devastating. After a few preliminary questions I went straight to the question of the purchase of the poisons. Quite a few questions and answers were sufficient to make the result of the case a foregone conclusion. How old are you? — Forty-five years. Do you know what strychnine is?— I knew it was a deadly poison. Has anybody ever asked you before to buy dangerous poisons for them? — Nobody. Was it only the second time that you had seen the solicitor of Mrs Jones that he asked you to buy strychnine? — Yes. So the person who asked you to buy the strychnine was somebody to whom you had never spoken before? — I had never spoken to him before. Did you know of any reason why he could not buy the poison for himself? — He told me he was very busy and had not time to buy it.

He gave you a sovereign for the purchase? — A pound note. Did that strike you as a large sum of money to buy enough strychnine for one dog? — Perhaps he had no change. Did you ever give him the change that you must have got from buying the strychnine? — No, he never asked me. ‘From that moment the absurdity of the prisoner’s suggestion became more and more pronounced. I next directed his attention to the signature upon the poison book, the book itself being handed to the prisoner.’ Is that your usual signature? — No. What is the name you have written there? — Wanker. You knew, then, that you were putting a false name to the poison book? Why did you not put your real name? — Because I had been told that when you buy poison you never sign your own name. Who told you that? — The solicitor. Did the gentleman who asked you to buy the poison tell you to sign a false name? — Yes. Did it strike you as odd that a complete stranger who wanted to poison a dog was telling you to sign a false name? — No. ‘I then left the poison book and went to the purchase of the chloroform.’ What did you want 100 grams of chloroform for? — For my personal use. Had you seen Mr Jones drunk in his hotel at times? — I carried him three times to bed. Did it ever enter your mind that if anybody wanted to kill Mr Jones that would be the most easy time to do it? — No. At the time when you carried Mr Jones up to bed would it have been easy to give him chloroform? — It was easy to give him anything you like. He was so insensible that he could easily have been suffocated with chloroform — very easy; a child could have killed him. What did you do with the chloroform? — I inhaled it, to sleep. ‘From the movement in court it might have appeared that those answers alone were enough to seal the prisoner’s fate.

[page 248] ‘I put a few more questions to the prisoner dealing with the evidence of the servants and Mrs Jones, most of which he denied, and then concluded with a reference to Vaquier’s statements to the police.’ Do you desire to put suspicion on somebody else in this case? — After what I wrote to the police, that is to be understood. What do you mean by this: ‘I will make known to-morrow who administered the

poison.’ Who is the person you intended at that time to name to the police next day? — I wish to indicate the solicitor of Mrs Jones who had asked me to buy the poison. Is there anybody else whom you intended to name except the solicitor of Mrs Jones?—I said that the solicitor of Mrs Jones could not have put the poison in the bottle since he had not been there for eight days. What did you mean by your statement in which you say this: ‘I think the second act of the drama will be the disappearance of the wife of George’? — Because George has not perhaps a clear conscience with regard to Mrs Jones because he might know something. Did you not mean by that suggestion that the next person to be murdered would be George’s wife? — Yes, since she wished to go away to France. And did you mean by this statement to suggest that the murderer would be George? — I cannot indicate anyone. You knew that Mr Jones had been murdered? — I knew that he had died from poison. You knew that the solicitor of Mrs Jones had made you buy poison? — Yes. Have you ever until to-day told the police that this solicitor ordered or asked you to buy strychnine? — No. ‘Although Sir Henry Curtis Bennett shortly re-examined the prisoner no questions could possibly remove the effect this cross-examination had created.’

RICHARD SEARY CROSS-EXAMINED BY ADAMS 12.6 The cross-examination of police informer Richard Seary by Michael Adams at the Hilton bombing inquest which took place in October 1982 is one of the truly marathon cross-examinations. It extends over 150 pages of transcript and four days. During the course of that cross-examination Seary was asked a series of questions about a diary or journal he alleged he had kept; these reflected both on his credit and the likely truth of his evidence about events, and fell into two parts. The first was designed to show that what he had told the police in a recorded interview on 22 June 1978 was in haec verba identical with what appeared in the journal, and that one must have been compiled from the other, or been learned by rote. The second was aimed at revealing either that he had suppressed vital information from police officers about the involvement of the Ananda Marga three in the Hilton bombing or that, after their arrest in June 1978 and his two interviews that month, he had invented it.

The first part of that cross-examination is reproduced below. It does not admit of subtlety or ‘concealing the attack’, consisting rather of a polite invitation to the witness to acknowledge and explain the difficulty with which he is confronted. Compared with Carson’s examination of Oscar Wilde, analysis shows the same techniques in use, nearly a century on. The first note of events, following 15th June, was the note in your journal made on or about 17th June, some time prior, at all events, to the record of interview on

[page 249] 22nd June. Is that so? — Well I don’t know about all those dates. If you can assure me of being accurate I’ll agree with you. Well I’m only quoting what you told us yesterday, Mr Seary? — Yes, well, yesterday we narrowed it down didn’t we, after some time. There was a reference in fact in your evidence that I did not remind you of yesterday. I’ll just give it to you so that you’re confident of the material. ‘How long after 15th June was it before you made a note as to the events of that day?’ Answer ‘The seventeenth’. Question ‘Two days’ after?’ Answer ‘Yes’. That was a reference that I omitted yesterday. Now do you agree that you made it then, the note that we have that indeed commences at exactly 11.00 pm on the night of Thursday 15th June, the one if you recall, that has the map of India at the back, on 17th June? — Yes it was around that time, a couple of days afterwards. I don’t think it’s important, the exact day. But it was very close, a few days. Well that evidence you gave on 26th July, 1978 when of course the events would’ve been far fresher in your mind? — Yes. Now you’ve told us that you made these notes for your own use and I want to come to the specific notes? — Yes. For your own particular use? — Yes. You certainly did not make them in order to produce them to any police officer? — No. Let alone any stranger? — That’s right. Did you learn them off by heart? — No. I mean you called for them, it was you that put them into court, I didn’t have any reason to or wish to. But at the time or shortly after you made them did you learn them off by heart? — No. You’re quite certain of that? — Yes I’m quite certain of that. They’re just notes for my own use, I mean that’s silly, it’s not like a play or something. Yes it would have been silly to learn them off by heart? — What reason would I have to do that? I show you the record of interview of 22nd June, 1978. Just look at that document

carefully please and confirm if you will, that is the record of interview that you made at that time? — Yes it is. [Records of interview dated 22nd June, 1978, 26th June, 1978 and 17th July, 1978 tendered, admitted without objection]: Now here’s your original diary entry, I’m showing the witness ‘FF1’. Now taking the first page, you’ll note there’s an interlining? — Yes. ‘Whose real name I don’t know?’ — Yes. Was that made at the same time you wrote it or upon a subsequent occasion when you reread it? — Of that I’m not sure. I know on one of them my pen ran out and I changed colour. You see there are notes at the end, A, B, and C, which are in, all in blue ink? — Yes. And there are notes, or I should say signs, at various places in blue ink. Do you see those? — Yes. Which suggest rather that you used a blue ink on the occasion when you entered it? — Yes. And indeed as I read you from your evidence that you gave at the committal proceedings, you said that you went over the document in the afternoon some time of the day that you wrote it? — Yes. You will see here page two about halfway down, and claim responsibility for the bombing on behalf of the Revolutionary Army, the words ‘One World’ have been added? — Yes. They are in red ink? — Yes.

[page 250] So they were added were they at the same time that you … were writing? — Yes I presume so. After Army there’s an asterisk with a circle, do you see that? — Yes. Can you recall what that was about? — No, perhaps it will be in the notes at the back. Have a look, I think you won’t find an asterisk marked there? — Yes I know there was, I’d made several notes … these are the only notes, when you called for them, that I collected. I don’t know what that refers to in fact. Well you gave some evidence about that material in the committal proceeding, and I’ll go back to that? — Yes. You cannot now recall it? — No. Now you see down on the third line, ‘I asked Dunn’, it appears, but you’ve crossed it out. Do you know why you did that? — Yes. Or you appeared to have crossed it out at all events? — I know why, I asked in general terms, I wasn’t specifically referring to any individual. So that was incorrect I think. That’s why that was out.

You’ll notice that on page three there is a whole lot that is excluded. ‘We were low on fuel so we drove into an alley off Upper Road, Glebe to remove the petrol cap so as to fill up with petrol. This done we drove back to Parramatta Road and,’ something was crossed out there, ‘got two dollars of petrol at the corner of Missenden Road and Parramatta Road, Camperdown’. And you see how that’s crossed out and it’s placed in square brackets — Yes. Why did you cross that out? — Just simply because I didn’t want it in there at the time, it just, I didn’t think it was relevant to the notes I was writing at the time. It did however fall in sequence, as you’ve given evidence before? — Yes. So that it was in the correct sequence but you wanted to omit it there because you felt it was irrelevant really to what this document was about? — Yes. Does that put it fairly? — Well it, well it’d be fair to say that when I wrote it, because as you know these are smaller notes which would be transposed or written up properly in the journal, I think I was going to go in more detail about that or I didn’t think that was, there was some reason for doing it, like, well I had a lot of things on there that, my own things. I didn’t think it was very relative, it was just sort of took, it was a different action on the same day or something. Something like that. The following words are ‘After we left there and’, you’ve crossed those words out? — Yes. And you, the continuation is ‘were driving west’? — Yes. You’ve crossed out ‘After we left there and’, and you’ve inserted the word ‘we’? — Yes. Was that done at the same time that you were writing this material? — Well it certainly would’ve been soon. Soon thereafter? — Yes. Or in the same two, I don’t know exactly. It’s perhaps not insignificant that when you edited it later you used a different colour ink which would rather suggest that you couldn’t find the red pen when you came to put those additions in, doesn’t it? — I just would’ve used the first pen that’s all. … On the top line you’ve got ‘I saw …’, the way you’d originally written it, ‘I saw in the rear vision mirror that Dunn was doing something’, do you see that? — Yes. And you’ve taken the ‘I saw’ and you have got an arrow and you have put it in between that and Dunn so the sentence reads as corrected ‘In the rear vision mirror that I saw Dunn was doing something to this van’? — That’s not correct, I don’t think that implies that. I see, what does that mean, the arrow placing the ‘I saw’? — Well I don’t know whether it’s simply a scrawl. It may just be a scrawl? — Yes I can’t recall that was anything.

[page 251] Then you’ve got down the page another large square bracket on the right hand side about eight or nine lines from the top, do you agree with that? Do you know what that

means? — No sometimes when I’m thinking I’ll just doodle say as I’m making notes, I don’t know whether that’s that. Could that be the explanation for your arrow? — It possibly is. ‘I shouldn’t be edgy’ and you’ve interlined ‘because he knew what he was doing’? — Yes. Then at the end of that paragraph you’ve got in blue an ‘A’ circled? — Yes. And then one refers to your footnotes and you actually have a footnote that corresponds with ‘A’? — Yes. And I suggest to you plainly that indicates that that portion of text was to be inserted here? — Yes. And you see that in the correction you’ve crossed out ‘written’ and you put ‘sent’? — Yes. Although as it happened ‘sent’ is in red ink there? — Yes. On the fourth or fifth line you’ve got ‘He told …’ something’s been written and crossed out then ‘stories of how several Margies’? — Yes I did change that from the singular to the plural. You changed from the singular to the plural? — Yes. Now on page six you’ve got a ‘B’ encircled? — Yes. And that refers does it to the ‘B’ here? — I think so, yes. On page nine? — Yes. There is another bracket after ‘situation’ on page six, bracket mark? — Yes. Do you know whether that has any significance at all? — No that’s simply a doodle, I think a round doodle where the staple was. I see and you’ve got ‘He said …’ about four lines from the bottom with another apparent square bracket marked, that could also be a doodle could it? — No that was another piece I was going to take out as irrelevant. As irrelevant? — Yes. Now on page eight we have another arrow a bit larger this time, do you know why that’s there? — That’s a purposeful one I think, I know it’s only scattered notes but it could be places where I was going to put in more conversation or anything like that really. And on that page also you have ‘C’ which refers to the note does it on page nine? — Yes. [Having highlighted the peculiarities of the journal, Adams then proceeded to a comparison of that document with the Record of Interview. Here the work of preparation shows most clearly: this was a case where there were a large number of witnesses and hundreds of documents. So familiar with the case was counsel as to recognise that a section of the record of interview was in the same words as the journal, as appears from the cross-examination.] Now Mr Seary I want you to go through this record of interview of 22nd June, 1978, at least up to anyway page three of the matter, page three of that document, there are, if I

could just briefly say it states of the record of interview between you, Mr Sheather with present Detective Inspector Perrin, Detective Sergeant Jackson at the same time? — Yes. It commenced at 8.15 pm? — Yes. And there were some introductions firstly? — Yes. You were identified and your date of birth given? — Yes. The subject matter of the interview was referred to the Inquiry into the connection with the explosion which occurred at the Hilton Hotel? — Yes.

[page 252] The first sentence, would you please read it from the record of interview? — ‘The first person to speak was Govinda.’ Yes now in the diary you say the first person to speak was Govinda? — Yes. Would you read the next two sentences in the record of interview please? — ‘He said “Is this car okay?” I pointed out where I’d crossed the wires and I said “What do you think?” ‘Yes would you stop there? You go on to say in your diary. ‘He said “Is this car okay”, I pointed to where I had crossed the wires and he said “What do you think?”’. Just read on please? — ‘He asked me if it was stolen, I said I’d borrowed it from a friend. In the diary the next sentence is ‘He asked me if it was stolen and I said I had borrowed it from a friend’. Go on? — ‘I said I’d return it and my friend would never know it was gone.’ Yes in the diary you have added the words ‘And that there wouldn’t be any hassle about it.’ It then goes on ‘I said I would return it and he would never know that it was gone.’ The next sentence in your diary is ‘Narada said “yes”.’ What’s the next sentence? — Govinda then asked Narada to tell him, Govinda then asked Narada to tell him what he was to do just so that he could see that he had everything down pat.’ In your diary the words are ‘Govinda then asked Narada to tell him what he was to do just so he could see that he had everything down pat.’ What’s the next sentence? — ‘Narada said as soon as the job was done he would get to a telephone and ring Govinda on 5162174 and if the job was successful he would say “is this 5162177”.’ In your diary ‘Narada said that as soon as the job was done he would get to a telephone and ring Govinda on 5162174 and if the job was successful he would say ‘Is this 5162177’. Now just taking it thus far, you will see that there is an almost exact duplication between the account in your diary and the account that you gave to the policeman on this occasion? — Yes. Yes, how did that come about? — Because those were the words that were said. I see, this was not a matter of having committed your diary to memory? — No. But you remembered simply because they were the words that had been told to you? — Yes. You have ‘As soon as he got the call he was to call the media and claim responsibility for the bombing on behalf of …’ you had ‘Revolutionary Army’ and interlined ‘One World.’ You then have in your diary an asterisk, do you recall that’s the asterisk I pointed out to you at page two? — Yes.

Would you please read now what is in the record of interview? — ‘There is one point I want to make here, he said “I want to contact the media within a few minutes of the bombing taking place to prevent any other groups from trying to claim responsibility for it”.’ So the asterisk that is in your record of interview happens to be at a place where the record of interview relates a conversation that is not in your diary? — Yes that’s possible. Is that pure coincidence? — I don’t know, in, I was thinking in the recess about marks and things and that could have been places where I made omissions because obviously as you know I didn’t write in certain parts of conversations in the, my own journal, well for the reasons which you already know. I see. — But I couldn’t be certain that that relates to that particular piece because here you see I make that point out of context for a start, that was a point I remembered at that point of the interview and so I put it in because it related to the claiming of responsibility to the media. The asterisk in your journal which was made before you made this record of interview in, [sic] to the police happens to be conversation which you later told the police about on 22nd June but which was not inserted in your diary at the time, is that the situation? — Yes only I have difficulty understanding your questions sometimes if you get … You see you’ve got an asterisk at that point in your diary? — Yes.

[page 253] That asterisk happens to relate to a portion of a conversation which you mentioned to the police? — Yes. But which was not in your diary notes? — Yes. Do you say that you deliberately omitted that from your diary note? — No I don’t remember if it was deliberate or not, I mean they were only sketchy notes for myself well there’s no real reason to have things in or out, I kept some things separate on purpose but I certainly wouldn’t have kept that separate on purpose, it wasn’t the, [sic] when I jotted that down I may have mentioned that particular thing somewhere else, not in the same context in the journal. Was that asterisk placed there to remind you that when you went to tell the police there was something you needed to add? — I don’t think so. By the time, this time, 17th of course you didn’t know what you were going to tell the police? — How do you mean please? Well you didn’t know that you were ever going to tell the police anything did you? — I knew I’d tell them eventually the whole thing, I wanted to see how their investigations went. Yes, what’s the next thing? — ‘We were driving west along Parramatta Road and Narada put on a black beanie and glasses and turned up his collar.’ Very well now in your diary crossed out because you said it was irrelevant or in the wrong place or should have gone somewhere else was that passage about ‘We were low on fuel so we drove into an alley off Upper Road Glebe to remove the petrol cap so as to fill up with petrol. This done we drove back to Parramatta Road and got two dollars of petrol at the corner of Missenden Road and Parramatta Road, Camperdown’, that is crossed out? — Yes.

Was it crossed out because you had decided you were not going to tell the police that fact? — No that was foolish, I knew the police were following, we passed an observation car going out of the alley way. So it is mere coincidence that is crossed out in your journal and omitted from the record of interview is it? — No obviously I made that journal entry previous to this, my memory, what I was relating then to the record of interview was as I remembered it and when you write something down it puts it in your mind more clearly. I see, so that when you crossed it out in your journal that was pure coincidence? — No I didn’t think it was relative as I told you this morning, if you have a point I wish you’d get to it. The relative, it was irrelevant, that’s what you say isn’t it and that’s why you omitted it when you told the police? — Yes I told them at some point I know. You see, you, I suggest to you that you committed this entry to memory before you went to the police station? — No that’s foolishness, I mean that’s as what was said, that was what was done, it is down there, I knew what was said and what was done, the fact that I tell them what was done, the words used and so forth, I mean as far as I can see it merely verifies this. You committed this to memory because it was false? — No that’s nonsense. And you were making it up and writing it down so that when you came to the police station you would know what to say? I put it to you what’s in your journal is pure invention? — Not at all, I mean you were the person that called for it, it wouldn’t have been produced in court unless you wanted it. I put it to you that it is an invention that you committed to memory because otherwise you would have no recollection of the events? — No. Do you say that’s the [sic] mere coincidence of words is [sic] that your recollection was so good that on 17th February you remembered them accurately and you remembered them almost identically when you gave your statement to the police on 22nd, is that what you say? — Yes.

[page 254] And that it is mere coincidence that the asterisk is at a place where material in your record of interview is added? — Yes. And that you cross out in your diary material that happens to be omitted from the record of interview, you say that is mere coincidence? — It’s not coincidence in so much as I remember what was said, I gave them what was relevant, I put what I felt was relevant in the journal and also what was relevant in here.

Adams next turned his attention to the second prong of the attack on Seary — his failure to inform the police authorities of the ‘confessions’ to the Hilton bombing at the outset of the investigation.

SIR ROBERT ASKIN CROSS-EXAMINED BY EVATT 12.7 The final offering of cross-examination is one of a great advocate in his later years. When Clive Evatt QC cross-examined Sir Robert Askin, then Premier of New South Wales, in 1974, he was 74 years of age and had been 48 years a barrister. The cause of action was a defamation alleged to have been published by Sir Robert in a political meeting at Sydney Town Hall during an election campaign, the plaintiff being Jack Mundey, a well-known union and political figure. The questioning brought with it a degree of sparring between the defendant and counsel. It remains a well-organised attack on a witness, and, although excerpts only are included, the thrust and continuity of the cross-examination has been preserved as much as is possible. When you went to the Town Hall that day you were with a Mr Redding I understand? Is that right? — Mr Redding was in our party, yes. You had furnished him with the speech you were going to deliver? — Not the speech, Mr Evatt. Guide notes. I vary a lot from my notes. I suppose you have got a copy of those guide notes? — I think so, yes. I am not sure, I think so. Do you have it on you? — No. When did you last see it? — Some time ago. I realise it is some time ago, but some time ago is a very vague term. — Yes. I cannot say for sure. It is quite some time ago. Yesterday? — My whole speech? Yes. The speech you took to the Town Hall and distributed to the press. — I cannot truthfully say just when I saw it last, your Honour. I think it was some time ago. It was a draft. You have said that. — Yes, I suppose so, yes. We will confine it to between the delivery of the speech in November 1972 and today, somewhere in that space of time? That is the best you can do? — No, it would be much later than that I have looked at it and referred to it at other times but — You followed that through for most of your speech except one or two diversions? — No, more than one or two; quite a number. The meeting was quite different to what I had expected. One of your diversions was to refer to someone, or more than one, who ‘scratch their dirty hides and they are off to the law courts for protection’? Do you remember that elegant expression? [Objected to] — It was not nearly as bad as the elegant expressions they were using against me.

[page 255] I am not worried about what people may or may not have said to you. Did you refer to people as ‘scratching their dirty hides and they are off to the law courts for protection’? — I think those were the words, yes. Who did you mean? — I meant people who attacked me and called me all sorts of names and foul names, and when they get something back, they go to the law courts. Who, for example? — I don’t have anybody particularly in mind, just generally. You must have had someone in mind when you say ‘They are off to the law courts for protection’. You meant Mr Mundey, didn’t you? — He would be one, yes. You meant him when you referred to these people ‘with dirty hides’? — That was a generalisation. You knew at that stage that he had commenced an action against you for the document you had handed out as a press statement, before this meeting? — No, I don’t think that’s right. You don’t think it’s right? — I don’t recollect that. Do you think it is wrong? — I believe it to be wrong, yes. For which particular action were you castigating Mr Mundey and his ‘dirty hide’? — I don’t follow you, Mr Evatt. You don’t? — No. Having heard those remarks from your counsel, would you please answer my questions? Was Mr Mundey one of those who — and I quote your words — ‘scratch their dirty hides and they are off to the law courts for protection’? [Objected to] His Honour: Is that the way you understand the question? — Yes. Would you please answer it? — Yes, I had Mr Mundey as one of those in mind. Mr Evatt: The litigation, or ‘off to the law courts’ to use your very phrase to which you refer arose out of a press statement you had given to the press on November 4th? — A draft — a guide, not a statement; a guide. I am referring to the document that your press secretary handed out to the press, and bearing the date November 4th? — I don’t remember that one off hand. I would have to be refreshed on that. What did you say about Mr Mundey, your feeling? — Today? [referring to the examination-in-chief] Yes, in the box? — Today? Yes, today. — I just said, as far as I remember, that I had never had any dealings with him, and only once he rang me up and spoke to me by my Christian name. That is the only dealings I have ever had with him. But you disliked his politics? — Very much so. Look, didn’t you on 8th November 1972 get a writ from Mr May, his solicitor? — I don’t know the date. I couldn’t say.

Well, within a few days of the press statement? — It would be somewhere around that time, I don’t know the exact date. Isn’t it also a fact that when you went to the Town Hall meeting on 15th November you had been served with that writ and placed it in the hands of your solicitor? — I don’t know the dates. I cannot tell I would have to — [Mr Evatt: I was going to have this press statement marked for identification, but I see it is already MFI 5.] In it did you say ‘Mr Mundey and his muscle men have created a reign of fear within the Builders Labourers Federation itself and in the building industry generally’? — I think that’s right. From memory I think that’s right. Would you like to have a copy of it? — No. Did you further go on to say ‘Thousands of migrants in the union understand little English’? — That’s right.

[page 256] Where did you glean that piece of information? — From some of the migrants themselves that had told me that at various times. That they were in the union? — Yes. Do you have any of their names? — No, I didn’t bother to take their names. ‘Half the time they don’t know what they are voting for, but they do understand if they don’t vote the way Mr Mundey wants they are liable to be bashed.’ Do you still say that the only things you disagreed with him on are his political views? [Objected to] And industrial views? [question objected to as misleading] You can add to it. Do you say you disagree with his industrial views? — It says here that I regard him as a complete enemy of the working class. That is in this statement, isn’t it? — That is there, yes. ‘The police have investigated every case brought under notice, but due to the fear complex which surrounds the building industry, up to date the police have not been able to get enough evidence.’ Is that what the police told you? — Yes, somebody in the police force, I don’t know just who it was offhand, told me that these people were reluctant to give evidence. Can you remember the policeman who told you that? — No. It was a couple of years ago. What about that thick volume of papers you had there? Would that give the policeman’s name? — This here? No, you were looking at the file before lunch. You said you had it down in your office? — They were newspaper cuttings that were handed to me by counsel. At any rate you do not know the policeman’s name. Did you say this, ‘The actions of the Federation’s so-called vigilantes in knocking over partly constructed buildings declared black and bashing workers on the job are well known’? — That is in the statement, yes.

‘For these and other good reasons known to the Government, Crown Law Officers following current investigations will recommend what action’ — [Objected to] ‘They will recommend what action is open to the Government. The public can rest assured that positive steps will be taken. Meanwhile the Labor Party should be ashamed of itself for having people like Mr Mundey and his friends co-operating with them. The thought of these people having a say in running the country, if Labor wins, should have a salutory effect on public thinking.’ That was your statement? — That was a statement just before the elections, yes. Didn’t Mr Mundey get in touch with you and invite you to have a Royal Commission? — Not to my recollection. Never heard of it? — As far as I am aware he has only spoken to me once in his life, when he rang me and called me by my first name. I am asking you did you not in this court here today, before lunch, agree that one of those who fell into that category of ‘scratching their dirty hides and running off to the law courts’ included Mr Mundey? — Yes, that would be right. And the basis for that claim that he ran off to the law courts was the writ he had issued to you on 8th November? — I have got no recollection at all of that writ. What particular litigation? — The writ came after the Town Hall meeting. What particular litigation do you say Mr Mundey had commenced that you referred to in your Town Hall speech? — There was a case, I think, The Attorney General v Mr Mundey, according to this; The Attorney General v Mr Mundey — You know that has nothing to do with my question at all. I am suggesting litigation commenced by Mr Mundey against you? — All I can say is I have got no recollection of any legal action having been served on me before the Town Hall meeting.

[page 257] Why did you swear before lunch that the people included in that phrase ‘scratch their dirty hides and they are off to the law courts for protection’ included Mr Mundey? — This is — I believe that would cover things over the years, over a period of years, not just one isolated instance. Don’t those words imply that persons you are there criticising have gone to court, they have gone to court, they have rushed to court to bring some form of action? Can you understand that question? — No, I don’t follow it. Did you say those words ‘scratch their dirty hides’, etc? — It sounds familiar. I think I did, yes. Is that one of the phrases you often use? — Sometimes, when I get worse thrown at me. That is your method of retaliation? — That is the political method. You are prone to deal in some violent language, aren’t you? — I don’t think any more or any less than the average politician. I mean you favour — what is it called — sinking in the boot, in politics, do you not? —

No, I have never used that phrase. What is the phrase you used? — I try to give as good as I get. If people are calling me a ‘fascist bastard’ and so on I try to give them some back. You did that in the Town Hall? — I say worse than that. You mean the Labor Boys were a bit more vociferous? — I wasn’t worried about the Labor Boys, I was worried about the people who I thought by the way they were were communists, a communist force. You have got a bit of a phobia about communists, have you? — No, less than most people on my side, actually. You don’t look under your bed at night? — I might have a look tonight, Mr Evatt. Is this a replica of the notes you had? — That appears to be a replica of the rough notes which my press secretary handed out, and from which I departed quite substantially. You did not depart from it almost as soon as you had started, by referring to people who ‘creep out from the woodwork’? Do you remember that expression? [Objected to, allowed] Did you talk about, in this speech — and I suggest to you early in the speech — about people ‘creeping out from the woodwork’? — I think I did say something like that. I have heard it said many times before. Did they become the vermin you subsequently referred to? — No, I don’t think so. That was some time afterwards. You are very prone to use analogies between human beings and insects, and vermin, are you not? [Objected to] — No. Didn’t you call a member of the Opposition quite recently a maggot, across the floor? [Objected to] — He didn’t object, Mr Evatt. You have, I suppose you will admit, a very choice group of epithets in dealing with people you dislike? — I don’t think any different to the ordinary Member of Parliament. Surely even ‘maggot’ is a bit unparliamentary, or has the standard deteriorated in recent years? — I think it has improved a bit since some members I know were expelled from the Labor Party. Who told you to say that? — It just came to my mind. Just to be nasty? — Friendly. [At the end of the cross-examination Evatt QC returned to the original attack, designed to show that the matter complained of was prompted not by a hot-blooded political rally, but in response to an earlier statement of claim.] I suggest to you that before the Town Hall meeting you were served with a claim by Mr Mundey? — [No answer] His Honour: Do you mean served with a writ?

[page 258]

Mr Evatt: Actually I think it would be a statement of claim at that stage. His Honour: Do you mean served personally? Mr Evatt: Yes, served personally? — To the best of my recollection no. And, carrying out her duties to the full, I suggest a young lady from the solicitor’s office actually put this writ into your hands? — I have got no recollection of that whatsoever. Wouldn’t you remember a thing like that? — I think I would, yes. [Mr Evatt: I would like a young lady called Miss Ashford to come into the court. While she is coming, I call for a copy of the statement of claim Mundey v Askin in No 2131 of 1972.] Do you remember seeing this young lady? — No, she doesn’t look familiar to me, but if it was two years ago it is possible I am wrong. Mr Hughes: In response to my friend’s call, I produce the document he asked for. Mr Evatt: I suggest to you that that lady in your office served you with that document on the date it bears? — [Shown] Is that right? — I can only say, Mr Evatt, it is possible but I have got no recollection of it whatever. You would not suggest there would be a stream of people serving you with writs? — I have had a few. What, do you keep — how many come along per day? [Objected to] — Too many. Writs? [Objected to; rejected] Since you got into the position of Premier of this State you do not suggest that more than on a very rare instance have you been served with writs? [Objected to; rejected] Or to be served with a — [Rejected] Mr Evatt: I have not finished the question. Mr Hughes: I object to it. Mr Evatt: And by a charming young lady — [Objected to] You do not remember the incident? His Honour: The witness has said that, Mr Evatt, three times, he has no recollection of it. Mr Evatt: I can test his memory; it was a bit shaky on other matters.

The cross-examinations that have been here reproduced are set out, not as precedents, but as examples of the various techniques used in cross-examination. It is hoped that they may prove instructive as well as entertaining. They have been selected to enable ready analysis, and also comparison, of advocates of the nineteenth century and of the present. They reveal that cross-examiners both of the past and of the present apply the same techniques to achieve their ends. They also reveal that good craftsmanship depends upon sound preparation

every step of the way, and sensible intelligent application, rather than genius.

[page 259]

13

EXTRA-CURIAL ADVOCACY Introduction Tribunals generally Mediations Arbitrations Inquests Site hearings

13.1 13.2 13.3 13.4 13.5 13.6

[page 260]

INTRODUCTION 13.1 While the system of judging in courts has many strengths, as long ago as 1981 at the Australian Legal Convention, Dr Wolfgang Zeidler (then president of the German Constitutional Court) observed that the Australian system was a ‘Rolls Royce system of justice’. He then proffered the question: ‘How many Australians could afford a Rolls Royce? And how many could afford a Volkswagen?’: [1981] 55 ALJ 392. The answer to that question has, in the result, been the dramatic growth of alternative dispute resolution and a similar decline in civil trials. Mediation, arbitration and tribunals play a critical role in disposing of disputes. Indeed, most disputes are now resolved outside court. Accordingly, it becomes necessary to consider advocacy in these alternative areas. Whilst the general principles of advocacy operate and remain relevant to all tribunals, recent developments in alternative dispute resolution (ADR) and the growth of specific tribunals has led to a range of novel techniques — or at least novel applications — and some modification of established techniques arising. What follows is a brief outline of the fundamental elements appearing in some of the more commonly encountered of such tribunals or ADR institutions.

TRIBUNALS GENERALLY 13.2 Most administrative tribunals in New South Wales — particularly those recently created or consolidated, such as the New South Wales Civil and Administrative Tribunal (NCAT) and Fair

Work Australia — contain provisions within their enabling legislation which deny litigants the right to representation unless leave is obtained. That leave can be difficult to obtain and the first duty of an advocate who is engaged by a client involved in such litigation is to take detailed preparation to enable argument to be put to the tribunal to obtain a grant of leave. Once leave has been obtained most tribunals operate under statutory provisions which permit them to inform themselves without being bound by the rules of evidence and must be approached accordingly. As in relation to inquests (see [13.5]), challenges to evidence based on relevance, procedural fairness and bias remain available. No good purpose is served by counsel preparing objections based on hearsay or secondary evidence. In relation to experts, however, the ordinary rules of expertise apply, and the expert witness Code of Conduct will form the basis of objecting to inappropriate expert material. Proceedings are informal with counsel often remaining seated and the tribunal is often comprised of lay members. It is important for counsel to maintain a professional demeanor and extend the usual courtesies to the bench, opponents and witnesses. [page 261] In these tribunals, where there may be alternative avenues of appeal — either by way of merit appeals or strict administrative appeals limited to questions of law — it is important for counsel to advance written submissions. This is because the integrity of the record of the tribunal may not be reliable and there may be no transcript available. Even where a special order for transcripts is available, a special order

for the transcript will be required and these are not always readily obtained.

MEDIATIONS 13.3 Mediation is intended to be the least confronting of all ADR methods. It is important when appearing in a mediation to recognise that it is not an opportunity to present an aggressive, confrontational statement of your client’s case. Indeed, the best course at most mediations is not to engage actively in a discussion or argument about the merits of the case at any joint session. It is important to recognise that the role of the mediator precludes the mediator giving advice on the merits on the case or on the law. The aim is to facilitate the resolution of the matter by agreement between the parties. Mediations are thus driven by commercial rather than purely legal imperatives. It may be that in private sessions the mediation will express a nonbinding view to the parties with the aim of facilitating resolution. I strongly urge that you view your role as counsel at a mediation to be that of advising your own client as to strengths, weaknesses and risks, and to encourage the taking of a realistic and commercial attitude to the litigation. It is, in my view, inappropriate — and usually counterproductive — to engage in arguments as to those matters with your opponent, and it may amount to unsatisfactory professional conduct to do so in the presence of your opponent’s client. Confidentiality is the touchstone in mediation. As the High Court observed in Field v Commissioner for Railways (NSW) (1955) 99 CLR 285 at 291: As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law

relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered.

ARBITRATIONS 13.4 It is difficult to provide general observations in relation to arbitration because arbitration takes many and varied forms: building arbitration, court-ordered arbitration, local arbitration, international arbitration, commercial arbitration, maritime arbitration, UNCITRAL arbitration, etc. Each is subject to its own peculiar set of rules and/or statutory guidelines. As well, there are hybrids where mediation is followed by arbitration (‘medarb’) or vice versa (‘arbmed’), or indeed a third [page 262] variant (‘ardmedarb’) where a mediation is bracketed by two arbitrations with a view to the final resolution of all matters in dispute. It is outside the scope of this book to explore these peculiar dispute resolution mechanisms. However, all arbitrations have certain features in common. Should you be required to appear at an arbitration, the following guidelines will assist. First, a significant amount of preparation and investigation is required to select the arbitrator and specify the terms upon which the arbitration is to be conducted. Secondly, the procedure to be followed at the arbitration will need to be established. In general, these will follow the normal order of proceedings in court in that parties will call witnesses, and there will be examination, cross-examination and re-examination in the usual way. Thirdly, the terms of reference need to be settled with care in order

to establish and limit the scope of matters in dispute to determine whether the arbitral award is to finally determine the rights of the parties with or without avenues of review and to settle the nature of the arbitral award to be provided by the arbitrator. As well, it will be necessary to decide whether there will be one or more arbitrators. Generally, once an arbitrator has been selected, the form of the hearing will be determined by the arbitrator, who is free to establish his or her own procedural guidelines. As in all other proceedings, the preparation of outlines of argument and of written submissions is fundamental and necessary. Subject to these matters, the general rules of advocacy apply.

INQUESTS 13.5 Inquests are conducted by coroners in New South Wales and are the subject of a wide discretion. They are not bound by the rules of evidence and are not trials. If appearing at an inquest, it is very important to determine your objective before the hearing commences. There are some peculiarities of inquests of which the advocate must be aware. These include the fact that the coroner is always assisted in the conduct of an inquest. That counsel assisting may either be a barrister or, in some cases, a police prosecutor. In any event, the coroner is entitled to confer with his counsel assisting in the absence of the parties — this is not a matter for objection. Inquests are not conducted in accordance with pleadings and the issues to be investigated will be determined by the coroner or counsel assisting, not by reference to the interests of the parties. The consequence of this is that should you wish to present evidence, this must be done by making it available to the coroner and counsel assisting who will call the evidence. Limits are not infrequently placed on cross-examination both as to time and scope. The only matters to which objection can be taken (and which are likely to be sustained) are relevance, procedural fairness and, in an

appropriate case, apprehension of bias. As to this see R v Doogan; Ex Parte Lucas Smith (2005) 158 ACTR 1; Annetts v McCann (1990) 170 CLR 596; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. [page 263] Preparing for a coroner’s hearing involves taking the following steps: Obtain a copy of the coronial brief. Obtain a current copy of the Coroner’s Act in your jurisdiction and any applicable practice notes. Make contact with counsel (or police) assisting in the matter and ascertain if there are directions or call-overs. Having identified the issue(s) in the case, identify relevant witnesses who you wish to be called and inform counsel assisting. Generally there is no right to appear at an inquest, therefore ensure you appear at the first call-over or mention to seek leave to do so.

SITE HEARINGS 13.6 On-site hearings do take place in some jurisdictions. In New South Wales they occur in the area of environmental law and are run in front of a Commissioner of the Land and Environment Court. They will occur in: cases involving the value of the property which is less than half the median mean value of other properties in the same location; residential appeals; conciliation conferences; and appeals. In the first two categories above, hearings proceed on-site to their

conclusion; statements and other documents are tendered, cross examination is conducted and submissions are delivered and the Commissioner usually delivers his or her verdict on-site. In the case of appeals, the on-site hearing takes place in the presence of experts and lay witnesses, with the usual order being that the proceeding continues the following day in court. The advocate should be aware of the following things: Bring a pair of gumboots just in case. The only ‘formal’ part of the proceeding is the beginning when the parties announce their appearances to the Commissioner. Little formality attends the remainder of on-site hearings. No rules of evidence apply. Experts are also required to attend and be prepared to answer questions. Lay people are free to attend on-site hearings and present their own evidence, all of which is recorded. The advocate must be prepared to keep his or her own handwritten notes of the evidence, with a view to exchanging these with the other party/parties — a final agreed version is then tendered to the court the following day. [page 264] Lay witnesses are limited to six in number, however in practice, there are sometimes many more. Commissioners are free to focus on any issue they think is relevant to their determination. The court will give notice of the scope of the hearing beforehand. Despite this, lay witnesses may raise any issue falling outside the scope of what has been intended. For appeals, the matter is ordinarily heard in court the day after the

on-site hearing and proceedings are run as a hearing de novo (in the style of a merits review). The key factor advocates ought keep in mind is that they should expect the unexpected. In any event, counsel ought exercise control at on-site proceedings and assist the commissioner at all times.

[page 265]

BIBLIOGRAPHY [Note: Bibliographical references are given in abbreviated form (author and title) throughout the text. Full publishing details, where available, appear below.]

Aldisert, Winning on Appeal, NITA, University of Notre Dame, Indiana, 1996 Buzzard J H, May R & Howard M N, Phipson on Evidence, Sweet & Maxwell, London, 1976 Byrne D & Heydon J D, Cross on Evidence, 5th Aust ed, Butterworths, Sydney, 1996 Clarke, Sir Edward, The Story of my Life, E P Dutton and Co, New York, 1919 Evans, Golden Rules of Advocacy, Blackstone Press, London, 1993 Harris R, Hints on Advocacy, 2nd rev ed, Rothman, Littleton, 1994 Hawkins, Sir Henry (Baron Brampton), Hawkins: Reminiscences, vol 1, T Nelson, London, 1904 Hastings, Sir Patrick, Autobiography, Heinemann, London, 1948 Lubet, Modern Trial Advocacy, NITA, University of Notre Dame, Indiana, 1994 Lyons J E, Winning Strategies and Techniques for Civil Litigation, Practising Law Institute, New York, 1992 Mill J S, On Liberty, Oxford University Press, Oxford, 1893 Morris E, The Technique of Litigation, Juta, South Africa, 1959 Munkman J, Techniques of Advocacy, Stevens & Sons Ltd, London, 1951

Phillips J, Advocacy with Honour, LBC Information Services, Sydney, 1988 Wells W A N, Evidence and Advocacy, Butterworths, Sydney, 1988 Wellman F L, The Art of Cross Examination, The Macmillan Co, New York, 1904 Wrottesley F J, Principles of Advocacy, 1894 Younger I, The Advocate’s Deskbook, National Institute of Trial Advocates, Prentice Hall Law, United States, 1992

INDEX References are to paragraphs

A Administrative tribunals extra-curial advocacy …. 13.2

Advocacy, basic techniques see also Extra-curial advocacy case analysis …. 1.1 confidence …. 1.23 courtroom technology …. 1.15 audio-visual link (AVL) applications …. 1.16, 1.17 generally …. 1.18 language, command of …. 1.22 manner and manners …. 1.20 mileage …. 1.25 notes …. 1.19 order of proceedings …. 1.2 summary …. 1.3 persistence …. 1.24 tactics …. 1.11 prima facie case …. 1.14 witnesses, not to call …. 1.13 witnesses, number of …. 1.12 voice …. 1.21 written …. 1.4 affidavits/witness statements …. 1.6 agreed statement of facts …. 1.7 civil cases, pleading …. 1.5 short minutes of order …. 1.8 submissions …. 1.9

Uniform Civil Procedures Rules …. 1.10

Affidavits …. 1.6 examination-in-chief …. 4.12

Affirmative cross-examination …. 5.7 alternative explanations …. 5.11 case theory, advancing …. 5.13 curate’s egg …. 5.12 misleading context …. 5.10 omitted topic …. 5.9 repetition …. 5.8

Agreed statement of facts …. 1.7 Appeals case analysis …. 9.1 concurrent findings …. 9.1 elements of …. Ch 11 expedition …. 9.13 flexibility …. 9.10 limitations on scope of review …. 9.1 notice of …. 9.3 preemptive argument …. 9.14 preparation …. 9.2 presentation beginning …. 9.6–9.8 questions from bench …. 9.9 tact …. 9.11 watching the bench …. 9.12 what to argue …. 9.5 written submissions …. 9.4

Arbitration extra-curial advocacy …. 13.4

Argumentative questions …. 7.10 Audio-visual link (AVL) applications …. 1.16, 1.17

B Bad character cross-examination …. 5.42

Bar table etiquette …. 10.4, 10.5

Basic techniques of advocacy see Advocacy, basic techniques Bench appeals questions from …. 9.9 watching …. 9.12 hostility to witness …. 4.52

Best evidence rule evidence …. 7.22

Brevity opening address …. 3.5

Brief alphabetical …. 2.4 chronological …. 2.4 court documents …. 2.4 exhibits …. 2.4 expert reports …. 2.4 marking of …. 2.5 organisation of …. 2.4 reading of …. 2.1

C Capacity cross-examination …. 5.37

Case analysis appeals …. 9.1 cross-examination …. 5.6

elements of …. 2.15 strategy of case …. 1.1

Case theory …. 1.11 case analysis …. 2.15 cross-examination …. 5.6

Charts opening address …. 3.10

Checklist preparation …. 2.8

Chronologies preparation …. 2.10

Circumstantial evidence cross-examination …. 5.32

Civil proceedings opening address …. 3.13 pleadings …. 1.5 rebuttal and reply …. 6.6

Clarity cross-examination …. 5.24 opening address …. 3.2

Closing address argument …. 8.1 elements of …. Ch 11 final address rules …. 8.14 avoid law wherever possible …. 8.18 do not read …. 8.20 evidence …. 8.17 facts, good or bad …. 8.16 issues …. 8.15 keeping it short …. 8.19 logical address …. 8.21 what you do not say …. 8.22 general techniques …. 8.13

object of …. 8.2 structure and parameters …. 8.3 example analysed …. 8.9 importance …. 8.8 introduction …. 8.4 peroration …. 8.7 proof …. 8.6, 8.11 statement …. 8.10 style …. 8.12

Common sense cross-examination …. 5.27

Communication demonstrative evidence …. 4.34 exhibits …. 4.33 triangle …. 4.31

Conciseness cross-examination …. 5.26 opening address …. 3.2

Conferences preparation …. 2.12

Confidence advocacy …. 1.23

Confrontation cross-examination …. 5.45

Constructive cross-examination …. 5.4 Counsel courtesies to …. 10.8 duties, opening address …. 3.14

Court behaviour see Etiquette Courtesy cross-examination …. 5.25

Courtroom technology …. 1.15

audio-visual link (AVL) applications …. 1.16, 1.17

Criminal proceedings opening address …. 3.12 rebuttal and reply …. 6.7

Cross-examination see also Evidence; Re-examination; Witnesses affirmative …. 5.7 alternative explanations …. 5.11 case theory, advancing …. 5.13 curate’s egg …. 5.12 misleading context …. 5.10 omitted topic …. 5.9 repetition …. 5.8 aims of …. 5.2 constructive …. 5.4 destructive …. 5.5 none …. 5.3 attacking qualifications of expert …. 5.43 bad character, prior convictions and reputation …. 5.42 case analysis …. 5.6 case theory …. 5.6 challenge …. 5.35 capacity …. 5.37 memory …. 5.38 opportunity …. 5.36 confrontation …. 5.44 content circumstantial evidence …. 5.32 notes …. 5.30 only according to plan …. 5.29 only significant matters …. 5.28 order …. 5.31 control regaining …. 5.34 taking …. 5.33 deadly sins …. 5.52

beating around the bush …. 5.54 big noting, using plain words …. 5.55 do not try and improve on good answer …. 5.62 dropping your guard, inviting explanations …. 5.59 going fishing, probing without purpose …. 5.58 going for the jugular, one question too many …. 5.57 going over the top, repeating evidence-in-chief …. 5.60 jumping the gun, save final point for address …. 5.64 looking for trouble, knowing answer before asking …. 5.56 rushing in …. 5.53 slanging the witness …. 5.63 willing to wound but afraid to strike, avoiding ‘puttage.’ …. 5.65 worrying about the next question …. 5.61 documents, on …. 5.66 elements of …. Ch 11 general rule …. 5.1 hostility interest, partiality, bias and motive …. 5.39 prior inconsistent statements …. 5.40 legal framework collateral issues …. 5.18 divergences in evidence to witness …. 5.21 ethical restrictions …. 5.20 extent of …. 5.17 minor exceptions …. 5.16 relevance …. 5.14 unfair …. 5.19 witnesses may be …. 5.15 particular techniques …. 5.45 closing the gates …. 5.51 confrontation …. 5.44 creating an absurdity …. 5.50 insinuation …. 5.44, 5.47 leading on …. 5.49 probing …. 5.44, 5.46 undermining …. 5.44, 5.48

prior inconsistent conduct …. 5.41 samples …. 12.1 Oscar Wilde cross-examined by Carson …. 12.2 Richard Seary cross-examined by Adams …. 12.6 Sir Robert Askin cross-examined by Evatt …. 12.7 Vaquier cross-examined by Hastings …. 12.5 W A Cadbury cross-examined by Carson …. 12.3 W S Gilbert cross-examined by Carson …. 12.4 style clarity …. 5.24 commonsense …. 5.27 conciseness …. 5.26 courtesy …. 5.25 fairness …. 5.23

D Defendant opening address …. 3.11 civil …. 3.13 criminal …. 3.12

Destructive cross-examination …. 5.5 Direct questions …. 4.37 Directional questions …. 4.39 Doctrine of precedent …. 2.7 Dress and personal appearance etiquette …. 10.3

Dressing the court etiquette …. 10.7

Duplicitous questions …. 7.9

E

Erroneous questions …. 7.15 Ethics see also Etiquette cross-examination …. 5.20 elements of …. Ch 11 principles …. 10.21 rules of conduct …. 10.1

Etiquette see also Ethics; Language; Manner and manners behaviour in court …. 10.10 at the bar table …. 10.4 courtesy to other counsel …. 10.8 dress and personal appearance …. 10.3 dress the court …. 10.7 interruptions …. 10.11 judge’s chambers …. 10.9 staying behind the bar table or party table …. 10.5 witness box, do not approach …. 10.6 citation of case law …. 10.19 citing other judges …. 10.20 elements of …. Ch 11 formal rules …. 10.2 language ‘learned’ friend …. 10.13 addressing bench …. 10.14 argue to, not with judge …. 10.17 beginning …. 10.12 catchphrases …. 10.16 do not address judge in second person …. 10.15 semantic abominations …. 10.13, 10.18 rules of conduct …. 10.1 self-represented litigants, dealing with …. 10.22

Evidence see also Cross-examination; Re-examination; Witnesses best evidence rule …. 7.22 closing address …. 8.17 definition …. 1.3

demonstrative …. 4.34 hearsay …. 7.18 improper re-examination …. 7.24 objectionable …. 7.3, 7.5 opinion evidence …. 7.21 parol evidence rule …. 7.23 prejudice …. 7.20 presented in logical plan …. 4.14 privilege …. 7.17 proving exhibits …. 7.25 self-serving or prior consistent statements …. 4.11 unresponsive or volunteered answers …. 7.19 witnesses, order of …. 4.5 written advice …. 2.14

Evidence-in-chief aim of …. 4.2 exhibits …. 4.33 leading …. 4.1 prima facie case …. 1.14

Examination-in-chief see also Witnesses aim of …. 4.1 elements of …. Ch 11 evidence-in-chief aim of …. 4.2 leading …. 4.1 leading questions …. 4.7 avoiding …. 4.36–4.42 recognising …. 4.35 legal limits …. 4.6 impeachment, rule against …. 4.10 leading questions …. 4.7 non-leading questions, exceptions to …. 4.9 rationale …. 4.8 self-serving or prior consistent statements, rules against …. 4.11 presented in logical manner …. 4.14

communication …. 4.31–4.34 content …. 4.24–4.30 form …. 4.21–4.23 leading like a layperson …. 4.20 manner …. 4.15, 4.16 remaining in control …. 4.17 style …. 4.18, 4.19 techniques affidavit …. 4.12 witness statements …. 4.13 witness in trouble …. 4.43 losing the place …. 4.45 nervous …. 4.44 omissions …. 4.46–4.54 witnesses argumentative …. 4.49 boorish …. 4.49 calling on subpoena to produce …. 4.55 cantankerous …. 4.49 difficult …. 4.49 difficulties with Bench …. 4.52 good character …. 4.56 hostile or adverse …. 4.54 not calling …. 1.13 objection to evidence …. 4.51 order of …. 4.5 over-helpful …. 4.48 preparation …. 4.3, 4.4 refreshing memory …. 4.53 talkative or run-away …. 4.47 unusual …. 4.50

Exhibit summaries preparation …. 2.11

Exhibits evidence-in-chief …. 4.33

proving …. 7.25

Expedition appeals …. 9.13

Experts cross-examination …. 5.43

Extra-curial advocacy see also Advocacy, basic techniques administrative tribunals …. 13.2 arbitration …. 13.4 inquests …. 13.5 mediation …. 13.3 on-site hearings …. 13.6 overview …. 13.1

F Factum probandum …. 1.3 Factum probans …. 1.3 Fairness cross-examination …. 5.23

Flexibility appeals …. 9.10

G General or unspecific questions …. 7.7

H Hearsay evidence …. 7.18

Hostility cross-examination

interest, partiality, bias and motive …. 5.39 prior inconsistent conduct …. 5.41 prior inconsistent statements …. 5.40

I Impeachment examination-in-chief, rule against …. 4.10

Improper re-examination …. 7.24 Incremental questions …. 4.41 Inquests extra-curial advocacy …. 13.5

Insinuation cross-examination …. 5.44, 5.47

Irrelevant questions …. 7.13

J Judges addressing bench …. 10.14 argue to, not with …. 10.17 chambers, etiquette …. 10.9 citing of …. 10.20 do not address in second person …. 10.15

L Language see also Etiquette advocacy, command of …. 1.22 etiquette ‘learned’ friend …. 10.13 addressing bench …. 10.14 argue to, not with judge …. 10.17

beginning …. 10.12 catchphrases …. 10.16 do not address judge in second person …. 10.15 semantic abominations …. 10.13, 10.18 framing questions for witnesses …. 4.20

Leading questions see also Objections avoiding …. 4.36–4.42 legal limit …. 4.7 recognising …. 4.35

Logicality opening address …. 3.6

M Manner and manners see also Etiquette advocacy …. 1.20 closing address …. 8.12 cross-examination …. 5.23 examination-in-chief …. 4.15, 4.16

Mediation extra-curial advocacy …. 13.3

Memory cross-examination …. 5.38

Mileage advocacy …. 1.25

N Negative questions …. 4.22 Non-leading questions …. 4.40 exceptions to …. 4.9

Notes advocacy …. 1.19

cross-examination …. 5.30 trial …. 2.6

O Objections see also Leading questions elements of …. Ch 11 evidence, to …. 7.3, 7.5 best evidence rule …. 7.22 hearsay …. 7.18 improper re-examination …. 7.24 opinion evidence …. 7.21 parol evidence rule …. 7.23 prejudice …. 7.20 privilege …. 7.17 proving exhibits …. 7.25 unresponsive or volunteered answers …. 7.19 frequency of …. 7.1 improper …. 7.27 leading questions …. 7.6 questions, to …. 7.4 argumentative …. 7.10 assuming facts not in evidence …. 7.14 conclusion by witness, call for …. 7.11 duplicitous …. 7.9 erroneous …. 7.15 general or unspecific …. 7.7 irrelevant …. 7.13 leading questions …. 7.6 oppressive …. 7.12 speculative …. 7.16 unintelligible …. 7.8 speeches, matter contained to …. 7.26 unethical …. 7.27 when to make …. 7.2

On-site hearings extra-curial advocacy …. 13.6

Opening address clarity and conciseness …. 3.2 counsel, duties of …. 3.14 for defendant …. 3.11 civil …. 3.13 criminal …. 3.12 elements of …. Ch 11 importance of …. 3.1 key attributes …. 3.3 aids, use of …. 3.10 brevity …. 3.5 logicality …. 3.6 not opening high …. 3.7 open case broadly …. 3.4 open case, not that of opponent …. 3.9 open evidence, not argument …. 3.8 preparation for performance …. 3.15

Opinion evidence evidence …. 7.21

Opportunity cross-examination …. 5.36

Oppressive questions …. 7.12 Order of proceedings …. 1.3 Ordered cross-examination …. 5.31

P Parol evidence rule evidence …. 7.23

Party table etiquette …. 10.5

Peroration closing address …. 8.7

Persistence advocacy …. 1.24

Photographs opening address …. 3.10

Piggy-backing questions …. 4.42 Pre-emptive arguments appeals …. 9.14

Pre-trial conference …. 2.12 examination-in-chief …. 4.3

Prejudice evidence …. 7.20

Preparation …. 2.1 appeal …. 9.2 case analysis …. 2.15 chronologies …. 2.10 conferences …. 2.12 elements of …. Ch 11 evidence, advice on …. 2.14 exhibit summaries …. 2.11 issues, identification of …. 2.9 mechanics of …. 2.2 brief, marking of …. 2.5 brief, organisation of …. 2.4 checklist or ‘ready reckoner’ …. 2.8 law and authorities …. 2.7 tools …. 2.3 trial notebooks …. 2.6 opening address …. 3.15 performance preparation …. 2.16 re-examination …. 6.9 witnesses

preparation …. 2.13 summaries …. 2.11

Prima facie case evidence-in-chief …. 1.14 rebuttal and reply …. 6.6 witness examinations …. 5.15

Prior convictions cross-examination …. 5.42

Prior inconsistent conduct …. 5.41 Prior inconsistent statements …. 5.40 Privilege evidence …. 7.17

Probing cross-examination …. 5.44, 5.46

Proof closing address …. 8.6, 8.11

Proving exhibits evidence …. 7.25

Q Questions argumentative …. 7.10 assuming facts not in evidence …. 7.14 conclusion by witness, call for …. 7.11 duplicitous …. 7.9 erroneous …. 7.15 general or unspecific …. 7.7 irrelevant …. 7.13 objections to …. 7.4, 7.5 oppressive …. 7.12 speculative …. 7.16 unintelligible …. 7.8

R Re-examination see also Cross-examination; Evidence; Witnesses definition …. 6.1 elements of …. Ch 11 improper …. 7.24 object of …. 6.3 preparation …. 6.9 recent invention …. 6.8 right to and limits of …. 6.2 scope of …. 6.4 steps involved in …. 6.5 tactics, mending fences …. 6.10

Ready reckoner preparation …. 2.8

Rebuttal and reply civil cases …. 6.6 criminal cases …. 6.7

Reputation cross-examination …. 5.42

S Sample cross-examinations see Cross-examinations Self-represented litigants dealing with …. 10.22

Short minutes of order …. 1.8 Short open questions …. 4.38 Speculative questions …. 7.16 Speeches objections to matters contained in …. 7.26

Stare decisis …. 2.7

Statements closing address …. 8.5, 8.10 prior consistent …. 4.11 prior inconsistent …. 5.40 self-serving …. 4.11

Strategy of case …. 1.1

T Tact appeals …. 9.11

Tactics …. 1.11 prima facie case …. 1.14 witnesses, not to call …. 1.13 witnesses, number of …. 1.12

Trial closing address see Closing address cross-examination see Cross-examination examination-in-chief see Examination-in-chief notebooks, preparation …. 2.6 opening address see Opening address tactics prima facie case …. 1.14 witnesses, not to call …. 1.13 witnesses, number of …. 1.12

U Undermining cross-examination …. 5.44

Unfair cross-examination …. 5.19 Uniform Civil Procedures Rules …. 1.4, 1.10 Unintelligible questions …. 7.8

Unresponsive or volunteered answers evidence …. 7.19

V Voice advocacy …. 1.21

W Witnesses see also Cross-examination; Evidence; Re-examination box, etiquette …. 10.6 cross-examination divergences in evidence …. 5.21 leading on …. 5.49 slanging …. 5.63 who can be examined …. 5.15 examination-in-chief argumentative …. 4.49 avoiding yes or no answers …. 4.29 background …. 4.26 boorish …. 4.49 calling on subpoena to produce …. 4.55 cantankerous …. 4.49 conversations …. 4.28 defensive examination …. 4.27 difficult …. 4.49 difficulties with Bench …. 4.52 form of questions …. 4.21 good character …. 4.56 hostile or adverse …. 4.54 impeachment, rule against …. 4.10 listening to answers …. 4.19 losing the place …. 4.45 negative questions …. 4.22

nervous …. 4.44 not to call …. 1.13 number of …. 1.12 objection to evidence …. 4.51 order of …. 4.5 orientation …. 4.25 over-helpful …. 4.48 pacing of questions …. 4.23 pre-trial conference …. 2.12 preparation …. 2.13, 4.3, 4.4 summaries …. 2.11 refreshing memory …. 4.53 role in case strategy …. 1.1 settling down …. 4.24 statements …. 4.13 talkative or run-away …. 4.47 in trouble …. 4.43 unusual …. 4.50 use of simple and clear language …. 4.20 statements …. 1.6

Written advocacy affidavits/witness statements …. 1.6 agreed statement of facts …. 1.7 short minutes of order …. 1.8 submissions …. 1.9 Uniform Civil Procedures Rules …. 1.10