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FUNDAMENTALS OF TRIAL TECHNIQUE

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] http://​legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

INTERNATIONAL AGENTS & DISTRIBUTORS

NORTH AMERICA Thomson Reuters Eagan United States of America

ASIA PACIFIC Thomson Reuters Sydney Australia

LATIN AMERICA Thomson Reuters São Paulo Brazil

EUROPE Thomson Reuters London United Kingdom

FUNDAMENTALS OF TRIAL TECHNIQUE

THOMAS A MAUET Milton O Riepe Professor of Law University of Arizona, USA

LES A MCCRIMMON Professor of Law Charles Darwin University, Australia Fellow of the Australian Academy of Law

FOURTH AUSTRALIAN EDITION

LAWBOOK CO. 2018

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW 2009 ISBN 9780455241135 First Australian edition................................................................................................................... 1993 2nd impression................................................................................................................................. 1996 3rd impression ................................................................................................................................. 1997 4th impression.................................................................................................................................. 2000 Second Australian edition .............................................................................................................. 2001 2nd impression................................................................................................................................. 2004 3rd impression ................................................................................................................................. 2007 Third Australian edition ................................................................................................................ 2011 Fourth Australian edition............................................................................................................... 2018

© 2018 Thomas A Mauet This is an adaptation of Trail Techniques and Trials, 10th Edition, by Thomas A. Mauet, adapted from its original edition, published and sold by Thomson Reuters (Professional) Australia Limited, with permission of CCH INCORPORATED, New York, NY, USA. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at http://www. ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Product Developer: Elizabeth Gandy Edited and Typeset by Newgen KnowledgeWorks Pvt. Ltd., Chennai, India Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://​www.pefc.org

FOREWORD TO THE FIRST AUSTRALIAN EDITION The Hon Mr Justice George Hampel Chairman Australian Advocacy Institute Advocacy is the art of persuasion in court. To what extent talent contributes to performance by good advocates, and whether great advocates are born or made are interesting questions, the answers to which may not be helpful to those seeking to develop their advocacy skills. The fact remains that at the foundation of every advocacy performance, whether merely competent or brilliant, there are well-​developed skills of analysis, preparation and performance which are essential. As Thomas Mauet rightly asserts, artistry becomes possible only after the basic skills have been mastered. The development of those basic skills requires commitment and experience. I mention commitment first because I do not think that without it it is possible to sustain the input of time and energy which is required of a competent professional advocate. Experience is essential in the learning of skills. However, experience can be a poor teacher unless the learner has the facility to learn from it. There are, unfortunately, many experienced but bad advocates who have perpetuated errors usually because they have not taken the time to analyse what they do and to learn how to make their performance more effective. After twenty-​five years as a barrister, ten years as a judge and consumer of advocacy, and twenty years as a committed teacher of advocacy in Australia, the United States and New Zealand at every level from undergraduate to advanced, I have come to accept a number of truths about advocacy and its teaching, three of which I think should be referred to in a foreword to this excellent work. The first, and I think the most important, is that in addition to acquiring preparation and technical performance skills, a good advocate must be a good communicator. After all, to be persuasive, the advocate must be able to affect and influence the tribunal’s perceptions, and to do that he or she must be able to get through to the tribunal. The ability to communicate also consists of a number of developed skills performed with such degree of natural ability as the individual possesses. The second truth is that, at last, the myth that advocacy cannot be taught has been finally put to rest. The last fifteen years have seen great developments in the United States, Canada, Australia and New Zealand in the attempts to analyse what makes good persuasive advocacy and how it can

v

Fundamentals of Trial Technique

be taught. The emphasis has been on the development of skills by a teaching method which involves performance under instruction. Once the basic skills are acquired and the advocate has the facility to understand and analyse his or her own performance, further development of skills, enhanced by the individual’s talent, can take place. Finally, there is the realisation that the teaching of advocacy involves the teaching of skills. It involves learning by doing with coaching rather than learning principles or simple acquiring information about such skills. This is best achieved by the workshop method where instructors who are competent advocates can teach by imparting their own skills of analysis and performance and by demonstrating those skills. Thomas Mauet recognised these features of advocacy and advocacy teaching when he produced his American Edition in the early eighties. It is a practical and clear work which for a long time now has been an important adjunct to the workshop method of learning advocacy skills. Its approach of making the point then illustrating that point by examples in a practical way helps those learning at workshops or performing in court to understand what their aims should be and how they may achieve those aims. The Australian Edition is timely. The adaptation will make this book more relevant and provide greater assistance to Australian lawyers than other editions. It will particularly help those lawyers in Australia who realise that the acquisition of basic skills is essential, and that the pursuit of excellence in advocacy is an important professional goal. 1993

vi

FOREWORD TO THE SECOND AUSTRALIAN EDITION The Hon Professor George Hampel QC Professor of Advocacy, Trial Practice and Forensic Studies Former Justice of the Supreme Court of Victoria Chairman Australian Advocacy Institution I wrote the foreword to the first Australian edition published in 1993. That was an excellent adaptation for the Australian setting by Les McCrimmon of Thomas Mauet’s work. Since then we have all continued teaching and learning. I stressed then and do now that advocacy, as the art of persuasion, involves good preparation and analytical skills as well as performance skills in argument, examination and cross-​examination. In addition an advocate must be a good communicator. As skills these must be taught by the workshop method which involves coaching. Knowing what to do is essential but the advocate must also learn how to do it. The practical nature of this book with its explanations and illustrations makes it a more useful adjunct than any I have seen to workshop learning. The new edition rightfully places more emphasis on persuasion and therefore communication. It emphasises the need to look at communication from the listener’s perspective. It has some additional useful check lists for example in the chapter on preparation. In all it is a more complete and developed work by the authors who gain their knowledge and skills in a practical way by continuing their teaching and research. No advocate interested in developing advocacy skills should be without this book. The book is on the list of books recommended by the Australian Advocacy Institute. 2001

vii

FOREWORD TO THE THIRD AUSTRALIAN EDITION Her Honour Justice Ann Ainslie-​Wallace Appeals Division of the Family Court of Australia If you wish to persuade me, you must think my thoughts, feel my feelings, and speak my words. Marcus Tullius Cicero Often has it been said that advocacy is the “art of persuasion” but until relatively recently little has been written that guided the willing learner about how to persuade in court.  What is it and how does one acquire the skill of being a persuasive advocate? The law student, the newly admitted advocate, the seasoned advocate often strive without success to be persuasive, not for want of enthusiasm for the task, but for want of practical information about what to do. It used to be thought that by watching seasoned advocates perform in court, the inexperienced could acquire the necessary skills to persuade, but no longer. It is now well accepted that persuasive advocacy is a skill that, like any other skill, can be learned and honed (perhaps perfected) through knowledge, practise and critical self-​analysis. However, before that journey can begin, one must know and understand the fundamental theory and concepts that underpin good, persuasive advocacy. This is the third edition of this important trial advocacy book in which the authors provide that fundamental knowledge through perceptive analysis accompanied by helpful illustrative examples. From proper organisation of documents, the development of the case theory to preparation and performance of the trial components, the authors give clear and insightful guidance. Ethics and etiquette, critical to an advocate’s success, are comprehensively discussed in a chapter that considers and analyses many of the dilemmas and questions often encountered by an advocate. I commend this book to all who are committed to learning or improving their advocacy skills. May 2011

ix

TABLE OF CONTENTS Foreword to the First Australian Edition...............................................................  v Foreword to the Second Australian Edition.........................................................  vii Foreword to the Third Australian Edition ............................................................  ix Bibliography.........................................................................................................  xiii 1 Preparation for Trial......................................................................................... 1 2 The Jury: Selection and Persuasion.............................................................. 31 3 Opening Addresses.........................................................................................  47 4 Examination-​in-​Chief..................................................................................... 79 5 Exhibits and Visual Aids..............................................................................  163 6 Cross-​Examination.......................................................................................  207 7 Closing Arguments......................................................................................  255 8 Objections.....................................................................................................  283 9 Trial Ethics and Etiquette...........................................................................  307

Index.................................................................................................................... 323

xi

BIBLIOGRAPHY “An English Judge’s Dress” (1904) 3 Can L Rev 321 Blake, M, Ashworth, A, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167 Brown, R A, Documentary Evidence: The Laws of Australia (2nd ed, Thomson Reuters, 2013) Bungay, M, “Jury Selection” (in Mauet’s Fundamentals of Trial Techniques, T Eichelbaum, ed, Oxford University Press, Auckland, 1989), 31 Collins Australian Dictionary (11th ed, HarperCollins Publishers, 2011), 310 Dal Pont, G E, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017) Frieberg, A, “Jury Selection in Trials in Commonwealth Offences” (in The Jury Under Attack, M Findlay and P Duff, eds, Butterworths, 1988), 120 Glissan, J, Advocacy in Practice (6th ed, LexisNexis Butterworths, 2015) Hemming, A, Layton, R, Evidence Law in Qld, SA and WA (Thomson Reuters, 2017) Heydon, J D, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017) Jablon, A, “ ‘God Mail’: Authentication and Admissibility of Electronic Mail in Federal Courts” (1997) 34 Am Crim Law Rev 1387 “Lawyers Wigs and Gowns” (1946-​1948) 7 N Ir Legal Q 225 Ligertwood, A, Edmond, G, Australian Evidence: A Principled Approach to the Common Law and Uniform Acts (6th ed, LexisNexis Butterworths, 2017) Luntz, H, Assessment of Damages for Personal Injury and Death (4th ed, Butterworths, 2002) Lord Macmillan, Law and Other Things (London, 1937), 185 McCrimmon, L, “Trial Advocacy Training in Law School” (1994) 5 Legal Ed Rev 1 McCrimmon, L, “Challenging a Potential Juror for Cause: Resuscitation or Requiem?” (2000) 23 UNSWLJ 127 McCrimmon, L, Maxwell, I, “Teaching Trial Advocacy: Inviting the Thespian into Blackstone’s Tower” (1999) 33 Law Teacher 31

xiii

Fundamentals of Trial Technique

McDonald, L, Tait, D, Gelb, K, Rossner, M, McKimmie, B, “Digital Evidence in the Jury Room: The Impact of Mobile Technology on the Jury” (2015) 27 Current Issues Crim Just 179 McEldowney, J, “Stand by for the Crown: An Historical Analysis” (1979) Crim L Rev 272 McNamara, B, “Forensic Photography” (in Expert Evidence, I Freckelton, H Selby, eds, Thomson Reuters Subscription Service) (looseleaf) McQueen, R, “Of Wigs and Gowns: A Short History of Legal Dress in Australia” (in Misplaced Traditions: British lawyers and colonial peoples, R McQueen, W Wesley Pue, eds, The Federation Press, 1999), 32 Odgers, S, Uniform Evidence Law (12th ed, Thomson Reuters, 2016) Reed, C, “Authenticating Electronic Mail Messages –​Some Evidential Problems” (1989) 52 MLR 649 Tanford, J A, “The Law and Psychology of Jury Instructions” (1990) 69 Nebraska Law Rev 71 Lord Templeton, “The Advocate and the Judge” (1999) 2 Legal Ethics 11 The Concise Oxford Dictionary of Current English (9th ed, D Thompson ed, 1995), 472 The Jury in a Criminal Trial: Empirical Studies (New South Wales Law Reform Commission, RR1, 1986), 109 Weems, P, “A Comparison of Jury Selection Procedures for Criminal Trials in New South Wales and California” (1984) 10 Syd Law Rev 330 Williams, N, Anderson, J, Marychurch, J, Roy, J, Uniform Evidence Law in Australia (LexisNexis Butterworths, 2018) Young, P, “Practical Evidence: Re-​examination” (1991) 65 ALJ 282 Younger, I, “The Ten Commandments of Cross-​examination” (Videotape, Basic Concepts in the Law of Evidence Series, National Institute for Trial Advocacy, 1975)

xiv

CHAPTER 1

Preparation for Trial

1.1 INTRODUCTION........................................................................................... 1 1.2 LOCAL PRACTICES AND PROCEDURES......................................................... 2 1.3 ORGANISATION OF LITIGATION FILES.......................................................... 2 1.4 TRIAL NOTEBOOK........................................................................................ 4 1.5 PRINCIPLES OF EFFECTIVE TRIAL PREPARATION............................................ 9 1.6 PREPARATION OF OPENING ADDRESS AND CLOSING ARGUMENT............ 15 1.7 WITNESS SELECTION, ORDER AND PREPARATION...................................... 17 1.8 PREPARATION FOR CROSS-​EXAMINATION................................................. 24 1.9 EXHIBIT SELECTION AND PREPARATION.................................................... 27 1.10 CONDUCT DURING THE TRIAL................................................................... 27 1.11 ADVOCATE’S SELF-​EVALUATION GUIDE...................................................... 28

1.1 INTRODUCTION Trials are the principal adjudicatory method used to settle legal disputes. Alternative methods such as mediation are becoming increasingly important in the resolution of civil disputes; however, trials remain the paramount dispute resolving method employed in Australia. In the trial of the most serious criminal cases, the jury continues to be of particular importance. Our adversary system is premised on the belief that pitting two adversaries against each other, with each presenting his or her version of the truth, is the best way for the trier of fact to ascertain the probable truth. The facts must be shaped by the advocates’ four “tools”: substantive law, procedural law, evidence law and persuasion “law”. The first three, principally legal, can be learned in a few years. The last, the art of persuasion, is what fascinates true trial lawyers. Trial lawyers spend a lifetime learning about, and learning how to apply, the art of persuasion in the courtroom. In the context of the trial, what you do, how you do it, and why you do it, is what this book is all about. Chapter 1 provides a comprehensive approach to trial preparation and strategy. Chapters 2–​8 address the specific stages of a trial, including jury selection and persuasion, opening address, examination-​in-​chief and cross-​examination of witnesses, closing argument, entry of exhibits and making objections. Chapter 9 discusses trial ethics and courtroom etiquette. 1

Fundamentals of Trial Technique

The examples used in the book focus primarily, but not exclusively, on the presentation of a case before a jury. Advocates who can properly present a case to a jury also will be competent in the presentation of a case before a judge alone. The converse does not necessarily hold true. Those instances where a particular technique needs to be modified when employed before a judge alone are noted in the text.

1.2  LOCAL PRACTICES AND PROCEDURES The conduct of trials differs from jurisdiction to jurisdiction, and from court to court. First, the substantive law pertaining to the matters in issue in the trial may differ. A salient example is criminal law. Secondly, procedural rules may differ depending on whether you are in a federal court or a state or territory court. The rules governing the presentation of a case in a Supreme Court will not be identical to the rules governing the presentation of a case in a District or County Court or a Local or Magistrates Court. Thirdly, evidentiary rules also may differ. For example, in the federal courts, and the courts in the Australian Capital Territory, Northern Territory, New South Wales, Victoria, Tasmania and Norfolk Island, the uniform Evidence Act applies.1 In the remaining jurisdictions, specific, non-​uniform, evidence statutes govern.2 It is not surprising, therefore, that the advocate’s first task is to ascertain and master all the substantive, procedural and evidentiary rules that apply to the upcoming trial.

1.3  ORGANISATION OF LITIGATION FILES This is the age of records, in particular, electronic records. Everything is routinely recorded, archived and duplicated. Even a simple case can, and invariably will by the time it approaches trial, generate an extensive amount of paperwork and electronic communications. Consequently, all files must be organised effectively and efficiently. How this is done will depend on the resources available to you. The object of the exercise, however, is to provide immediate and accurate access to the contents of your file –​whether organised electronically or in hard copy –​at any time during the trial. Counsel who are organised will appear prepared, confident and professional to both the court and the jury. When organising a litigation file the important point to remember is that the system must be logical and clearly indexed. The system should be in place when litigation starts, not simply when a trial appears likely. Many

1

2 2

Evidence Act 1995 (Cth) (applies in federal courts); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic); Evidence Act 2004 (NI). Evidence Act 1977 (Qld); Evidence Act 1929 (SA); Evidence Act 1906 (WA).

Preparation for Trial

|  CH  1

experienced advocates prepare a chronology. Used in this context chronology means “the determination of the proper sequence of past events”.3 Often, such a chronology will consist of the arrangement of relevant documents, dates or events in order of occurrence; however, the method used should be tailored to the particular case and your way of remembering detail. Finally, it is important to note that organising a litigation file is part of your trial preparation. Presentation at trial is grounded in a logical and clearly indexed litigation file, but involves additional considerations discussed in this book. Litigation files are usually divided into several categories. For example, the following file organisation and categories may be used. 1  Folder categories Files should usually include the following indexed folder categories.

a  Court documents Generally, these should be indexed in the order filed or entered: 1

pleadings;

2

particulars and reply to particulars;

3

interrogatories and answers to interrogatories;

4

discovery and inspection;

5

motions;

6

orders;  and

7

subpoenas and affidavits of service.

b Evidence Exhibits and potential exhibits should be placed, if they are documents, in clear plastic document protectors, inserted in your exhibit binder and indexed. Copies for the court, opposing counsel and the jury (if there is one) should be included. This index will constitute your exhibits register, which will set out: 1

the proposed exhibit reference (“1” or “A for identification”, etc);

2

who is to produce the exhibit;

3

a brief description of the exhibit; and

4

a reference back to the pleadings.

The exhibits register should be placed in your trial notebook, which is discussed in Section 1.4. Other exhibits, such as physical objects, large diagrams and models, should be protected and safeguarded in a secure location.

3

Collins Australian Dictionary (11th ed, HarperCollins Publishers, 2011) at 310. 3

Fundamentals of Trial Technique

c  Counsel’s records These include: 1

solicitor’s brief to counsel;

2

legal costs agreement, bills and costs;

3

relevant correspondence;

4

legal research;

5

the case history, including a log of counsel’s activities in the case;

6

notepaper to record other miscellaneous items; and

7

counsel’s chronology.

1.4  TRIAL NOTEBOOK Trial material should be organised in the most useful and efficient way. This is different from the organisation of litigation files discussed in Section 1.3. The organisation of litigation files is designed to be all-​inclusive. By contrast, trial materials include only those materials which actually will be used during the trial, and the organisation parallels the use that will be made of the material at trial. All parts of a trial –​jury selection, opening address, examinations-​in-​chief and cross-​examinations, closing argument –​ require separate organisation and preparation. Accordingly, the documents necessarily generated during each phase of the trial should be organised in a logical, easily retrievable way. The compilation of a trial notebook is a recommended way of organising trial materials. Under the manual method, all of the necessary materials for each part of the trial are placed in a two-​ring binder (preferably with an inside pocket on the front and back cover for “to do” lists) in appropriately tabbed and indexed sections. The advantage of this method is that, once placed in the notebook, the material is less likely to be lost or misplaced, and can be located immediately by turning to the appropriate section. Increasingly, advocates are using portable laptop computers, or tablets and iPads, for the storage of information required during the trial. Further, litigation software continues to improve, and substantial parts of a trial notebook can be computerised. Whether the material is stored electronically or manually, the following sections should be considered for inclusion. It is important to keep in mind, however, that the organisation of the trial notebook should reflect the needs of the advocate trying the case. In other words, organise your trial notebook to be useful to you. The following is a commonly used system of organisation: 1

facts

2

pleadings

4

Preparation for Trial

  3

discovery

  4

motions and advance rulings

  5

jury  chart

  6

witness  chart

  7

trial  chart

  8

exhibit  chart

  9

opening address

10

examinations-​in-​chief

11

cross-​examinations

12

closing argument

13

instructions and warnings

14

legal research

|  CH  1

1 Facts This section should contain: a

all reports, witness statements and other fact summaries;

b

chronology of the relevant events; and

c

a summary sheet which contains the name of the parties, counsel for the other side and his or her instructing solicitor, together with postal and email addresses, telephone and fax numbers.

2 Pleadings This section should contain: a

the pleading that initiates the proceedings (a writ or statement of claim, a plaint, originating notice of motion or indictment) and any amended pleadings;

b

the demand for particulars and the reply, together with the statement of defence or answer, and the reply of each party to the action; and

c

the relevant statutory provisions if the claim or charge is based on a statute.

The documents in this section, like those in the Sections 3 and 4, should be in chronological order. Each of these sections should be prefaced with a table of contents that: a

identifies the document;

b

identifies the solicitors’ firm that filed the document (if relevant);

c

states on whose behalf the document was filed; and

d

notes the date the document was filed.

5

Fundamentals of Trial Technique

3 Discovery This section should contain: a

interrogatories and answers to interrogatories;

b

any relevant affidavits which have been filed; and

c

other discovery (notices to admit and produce, for example).

4  Motions and advance rulings This section should contain all the pre-​trial motions, orders and advance rulings which have been made, together with any motions or applications for advance rulings4 that you anticipate will be presented before, or during, the trial. 5 Jury chart This section should contain information from the jury list obtained from the Sheriff’s Office (if available5). From this list a chart should be prepared on which you can record: a

each potential juror’s name;

b

the challenges exercised by each party; and

c

the names of the jurors sworn in.

If the jury list is not available before trial, the jury chart will contain only the challenges exercised by each party, and the names, or juror identification numbers if names are not stated, of the jurors sworn in. 6 Witness chart This section should contain a chart that sets out: a

each witness’s name, home and work postal and email address, home and work telephone and fax numbers, mobile phone number;

b

a short synopsis of his or her evidence; and

c

any other information that will assist in the locating and scheduling of the witness during the trial.

The witnesses can be listed in alphabetical order, or in the order in which the witnesses are expected to testify at trial.

4

5 6

For example, advance rulings and findings on matters of evidence can be made under s 192A of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For example, see Juries Act (NT) s 34; Jury Act 1995 (Qld) s 29; Juries Act 1957 (WA) s 30.

Preparation for Trial

|  CH  1

Example 1.1 Witness chart Sharon Jones

9/​22 Chelsea Ave Broadbeach Qld 4018 Ph: 07 5595 2011(h)07 5570 2113(w)

Accountant who prepared defendant’s tax return

Fax: 07 5570 2111(w) Email: [email protected] Mobile: 0418627658 Frank Miller

8/​29 Duet Drive

Book-​keeper at defendant’s company

Mermaid Waters Qld 4020 Ph: 07 5575 3840 (h)same (w) Fax: 07 5575 3844 Email: [email protected] Mobile: 0418736598

7 Trial chart This section should contain a chart that sets out: a

each charge or cause of action;

b

the elements of each charge or cause of action; and

c

the witness and exhibits that will prove each required element. Example 1.2 Trial chart –​plaintiff Cause of Action

Elements

Witness and Exhibits

Breach of contract

Contract made

Contract (exh 1)  

–​  Pltf’s evidence  

–​ Def’s answer to interrogatories (8.12.17)

Terms of contract

Contract (exh 1)

Pltf performed

Pltf’s evidence

Def’s breach

Pltf’s evidence

Damages

Pltf’s evidence  

–​  Pltf’s evidence  

–​ Jack Wong, contractor who completed job –​ invoice 20986 (exh 4)

7

Fundamentals of Trial Technique

8 Exhibit chart The exhibit chart should include: a

a column for entry of the exhibit number or letter;

b

a description of the exhibit;

c

the party through whom the exhibit will be produced; and

d

whether the exhibit was admitted, refused or marked for identification.

As much as possible, the exhibit chart should be prepared in advance of the trial. Space should be allocated to record the exhibits tendered at trial by the other side. Example 1.3 Exhibit chart Exhibit

Exhibit

Produced

No

Plaintiff Defendant

Admitted

Marked for

Refused

Identification

Contract

1





Invoice 23476

2





Final payment cheque

A





9  Opening address This section will contain an outline of the opening address, together with a list of the exhibits and demonstrative aids that you intend to use in the opening address. Counsel for the plaintiff in a civil matter, or for the prosecution in a criminal matter, usually opens their case first, therefore, no exhibits will yet have been entered into evidence. If you are acting for these parties, it will be necessary to secure the consent of counsel for the other side, or the judge, before relying on such exhibits in the opening (see Chapter 3). 10 

Examination-​in-​chief

This section should begin with a table of contents identifying each witness you intend to call in your case. This is followed by a series of subsections, one for each witness. Each of these subsections will contain: a

a witness sheet detailing:



i



ii the elements of the cause of action or charge the witness is being produced to prove (or, if they are a defence witness, to rebut); and

8

the exhibits the witness will qualify;

Preparation for Trial



iii

|  CH  1

the location of all prior statements.

(see Section 1.7 for an example); and b

11 

an outline of the matters about which you intend to question the witness. Cross-​examination

This section begins with a table of contents identifying each witness you anticipate the other side will call, followed by subsections for each witness. Each subsection will consist of an outline of the cross-​examination you intend to conduct (see Chapter 6). The outline should contain a space for you to make brief notes during the examination-​in-​chief of the witness (see Section 1.8 for an example). 12  Closing arguments This section will contain an outline of the closing argument prepared before trial, together with several blank sheets of paper. During the course of the trial you should note any oral evidence, exhibits or other material that you may wish to include in your closing argument. These notes can then be incorporated into your closing argument before it is delivered. 13  Instructions and warnings This section should contain any instructions or warnings you intend to request the trial judge to include in his or her summing up to the jury. If possible, these instructions and warnings should be drafted before the commencement of the trial. 14  Legal research This section should contain a copy of trial memoranda, trial briefs or other legal research material on issues that are likely to arise during the trial. It should also contain photocopies of the cases on which you intend to rely in your closing argument. Careful and thorough preparation of a trial notebook will enable you to access immediately any necessary information, and will greatly assist you in presenting the case.

1.5  PRINCIPLES OF EFFECTIVE TRIAL PREPARATION 1  Develop a theory of the case Your trial preparation to date has included organising the case files, preparing the trial notebook, reviewing the elements of each cause of action or charge, marshalling exhibits and assessing their admissibility, and reviewing the probable evidence of all anticipated witnesses. In conjunction 9

Fundamentals of Trial Technique

with these preparations, you should formulate and finalise your theory of the case. What is a “theory of the case”? A theory of the case is a logical, persuasive story of “what really happened”. It is your position and approach to all the undisputed and disputed evidence that you anticipate will be presented at trial. “Developing a theory of the case” is the process of integrating the undisputed facts with your version of the disputed facts to create a cohesive, logical position which illuminates the evidence in the light most favourable to your client. This position must remain consistent through each phase of the trial. When, at the conclusion of the trial, the trier of fact is faced with the question “what really happened?”, your position must constitute the most plausible explanation. When do you develop your theory of the case? You should begin to develop your theory of the case the moment you open the file. When discovery is completed in a civil case, or the witness statements are received in a criminal case, you should have a good grasp of the undisputed evidence, where the evidence is in dispute and what are the key factual disputes. At this stage you should be in a position to discard any case theories that lack factual merit. Once you have reviewed the applicable law, you will be in a position to discard case theories that lack legal merit. You can now focus on developing a theory of the case which, if accepted by the trier of fact, will result in a verdict in your client’s favour. Given that your approach to each phase of the trial is dependent on your theory of the case, you must finalise your case theory as soon as possible before the commencement of the trial. Developing a theory of the case requires several analytical steps: 1

review the elements of each cause of action or charge;

2

analyse how you intend to prove each of the required elements through the available witnesses and exhibits;

3

ascertain what facts are in dispute. This will require an analysis of the contradictory facts available to the other side, and an assessment of the witnesses and exhibits the other side is likely to present to put these facts in issue. You should have completed this analysis by the time your trial chart is finished;

4

anticipate the evidentiary problems that may arise. A familiarity with the law pertaining to these evidentiary issues before the commencement of the trial will enable you to present a forceful argument for or against the admissibility of the evidence in question, and demonstrates to the judge and the jury that you are thoroughly prepared and conversant with the issues in the case; and

5

identify the strengths and weaknesses of your case and those of the other side. The juxtaposition of the admissible evidence available to each side and each element of the cause of action or charge will highlight the relative strengths and weaknesses of each side’s case.

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Completing these steps will highlight those areas where the admissible evidence is in dispute and will foreshadow the critical contests that will take place during the trial. You must then marshal as much additional evidence as you require, circumstantial and direct, both to shore up weaknesses and to attack the other side’s version of the disputed facts. The evidence presented, particularly in the weak, disputed areas, must be internally consistent and corroborative. In addition, the attack on the other side’s version of the disputed facts must be consistent with the position you have taken concerning them. If you fail to develop a theory of the case, your addresses, objections and examination of witnesses, during both examination-​in-​chief and cross-​ examination, will lack logical and consistent direction. Further, you will have provided the other side with the ammunition they need to shoot holes in your case. Example 1.4 In a motor vehicle negligence case, the plaintiff pedestrian was struck by the defendant’s car at an intersection. One eyewitness will testify that the plaintiff was within the pedestrian crossing at the time of the accident and that the walk light was green. Another eyewitness will testify that the plaintiff was just outside the pedestrian crossing and was crossing against the walk light when the accident occurred. As plaintiff’s counsel, is it your theory of the case that: 1 the plaintiff was on the pedestrian crossing and had the right of way; or 2 the plaintiff was not on the pedestrian crossing and was crossing against the light, but this is irrelevant. If the defendant had been exercising due care, she could have stopped her car in time to avoid the accident; or 3 both the plaintiff and the defendant may have been negligent, but the defendant bears most of the fault because she was not driving with due care and attention.  

Example 1.5 In a murder case, the prosecution’s evidence will show that, following an altercation, the victim was shot in a dark alley by a man some witnesses will identify as the accused. As defence counsel, is it your theory of the case that the accused: 1 did not fire the shot (identification);  2 fired the shot, but was exercising reasonable force in his own defence (self-​defence);  or 3 fired the shot, but, in the circumstances, the killing was manslaughter, not murder.  

Once you have developed your theory of the case, your analysis can be applied to the other side’s case to ascertain what will be their probable position on the disputed facts. This will be of valuable assistance when preparing your witnesses for examination-​in-​chief and cross-​examination, 11

Fundamentals of Trial Technique

structuring your cross-​examination of the other side’s witnesses and preparing your opening address and closing argument. When the issues are evenly balanced, the determination of fact on one or two pivotal points will often decide the case. The pivotal point may involve the admissibility of a crucial exhibit, or the permissible scope of cross-​ examination. The identification of such issues, combined with an analysis of when and how these issues will be dealt with at trial, is a critical component of thorough trial preparation. Your job as an advocate is to locate these areas of contest, and prepare thoroughly for and convincingly argue these issues so that they will be resolved in your client’s favour. 2  Develop themes and labels

a Themes Jurors cannot absorb all of the information produced during the course of a trial. They will subconsciously employ strategies, such as the use of psychological anchors, to deal with sensory overload. An advocate can capitalise on this process by identifying key themes that help jurors to process information faster. While judges have a greater capacity to absorb information, that capacity is not infinite. In a judge alone trial, the use of themes also will assist the judge to understand and categorise information. A theme is simply a memorable word or phrase that summarises your position on a critical issue. It must be consistent with your theory of the case, and be emotionally compelling. A theme should be simple, create memorable images and focus on people. In short, themes must translate legalise into simple, compelling, human propositions that are consistent with the attitudes jurors are likely to hold about people, events and life in general. The advocate’s goal is to have jurors and judges process the contested facts and resolve the disputed issues using your themes. Example 1.6 1 2

3  

In a breach of contract case, the plaintiff alleges that the defendant defrauded her. A theme used by the plaintiff might be, “this is a case about trust”. In a personal injury case, the plaintiff alleges that the defendant ran a red light. A theme used by the plaintiff might be, “people who take chances hurt others”. The theme for damages might be, “Mary Smith’s only companion is her pain”. If the defendant maintains that the light was green, a theme used by the defendant might be, “people have to take responsibility for their own safety”. In an arson case, the Crown alleges that the defendant, who was in financial difficulty, set fire to his own car to claim on the insurance. A theme used by the prosecution might be, “desperate people take desperate measures”.

To maintain persuasive impact, themes should relate to the central issues in the case, and be repeated throughout the trial. In a civil case, themes 12

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should be developed for the key issues on both liability and damages. If properly chosen and expressed, themes will become focal points for the jurors’ thinking. If jurors use your themes as a reference point during deliberations your chances of receiving a favourable verdict will be enhanced. When deciding on your themes, an advocate needs to take into account the themes the other side is likely to use. Your themes should not only summarise your position, but also be an effective antidote to the themes you anticipate will be used by the other side.

b Labels Labels are the tags you put on people and events during the trial. Labels convey meanings, values and images. How we characterise things influences the way others perceive them. Calling someone “the plaintiff” or “my client” conveys a different image than “Mrs Singh”. Calling a truck a “vehicle” conveys a different image than an “18-​wheeler”. Calling an accident an “incident” or “event” is different from calling it a “collision” or a “crash”. Be careful when using pejorative labels. For example, use of labels such as “victim” or “rape” will be inappropriate if there is a factual dispute about whether a person was a victim (as in a case of self-​defence) or whether a rape occurred (as in a case where consent is a fact in issue). Part of your pre-​trial preparation involves a consideration of how you will label the parties, witnesses and events to convey the emotional images you want the jury to visualise and accept. Once selected, those labels should be used consistently throughout each stage of the trial. 3  Use storytelling techniques People instinctively use storytelling to communicate with others, and use the story framework to organise, understand and remember information. Jurors do the same thing during trials. If advocates do not organise the evidence into a clear, simple story, jurors will do so on their own. It is human nature. The same principle applies to the presentation of a case to a judge alone. The lesson for advocates is obvious and involves the following propositions: 1

Search for interesting and dramatic ways to present your case. When relaying an event in opening address and closing argument, try to recreate what happened through the use of sensory language and vivid, visceral and visual images. Work with your witnesses to accomplish the same objective. Ethically, you can never tell witnesses what to say, but you have an obligation to assist them to convey what they have to say in the most persuasive way. You should strive to put the judge and the jury in the picture. They should not only hear what happened, but also feel and see the event. 13

Fundamentals of Trial Technique

2

Focus on the people, not just the events. People do things for a reason. In addition to wanting to know “what” happened judges and jurors want to know “why” it happened.

3

Use visual aids as much as possible. Observe how news programs integrate visuals with narration. Notice how highway billboards attract attention and convey simple messages quickly. These techniques work, so why not employ them in the courtroom? Exhibits prepared carefully can summarise persuasively your case for liability and damages, and can be referred to by the jury or judge during deliberations.

4

Do it simply and quickly. Jurors expect information in five-​to ten-​ minute segments. Focus on your themes and key facts and repeat them throughout the trial.

Trials involve much more than simply putting your client’s version of the facts into evidence. Those facts must be organised and presented as part of a memorable, and hopefully persuasive, story. Effective storytelling forms the basis of much of what occurs during a trial. Small wonder, then, that effective advocates are invariably good storytellers. 4  Focus on the key disputed facts and issues To prepare effectively, an advocate must make a realistic assessment of what facts are in dispute. In most trials, many of the relevant facts are not in dispute, which means that the remaining disputed facts on relevant issues are critical. Inexperienced advocates often spend too much time belabouring undisputed facts, thereby boring the jury, and too little time proving their version of the disputed facts, thereby failing to persuade the jury. Focus on the disputed facts, and marshal witnesses and exhibits which support your client’s version of the disputed facts. Remember, wars are often won or lost because of the outcome of a key battle. The same holds true for trials. 5  Prepare from the jury’s perspective The only reality that counts in the courtroom is the jury’s reality, or the judge’s reality if there is no jury. The jury’s perception of reality is the reality. All courtroom communication, therefore, must be juror centred. It must be planned and executed from the juror’s perspective. How this can be accomplished is discussed in detail in Chapter 2. Suffice to say here that if, at the conclusion of a case, an unsuccessful advocate is heard to say, “the jury just didn’t understand the case”, that is the advocate’s, not the jury’s, problem. An advocate has a duty to ensure that the jury understands the case, and that obligation can be fulfilled only if the case is presented from the jury’s point of view. 14

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1.6  PREPARATION OF OPENING ADDRESS AND CLOSING ARGUMENT You have organised the file, prepared a trial notebook and analysed the case in accordance with the principles of effective trial preparation. You are now ready to tackle what you are going to say in your opening address and closing argument, and ask in your examination of witnesses. Where do you start? The answer: closing argument. While this may appear to be counterintuitive, you should always plan your closing argument first. Preparing what you are going to say to the trier of fact, be it a judge or a jury, in closing argument forces you to think about the elements of the claims and defences, your theory of the case, your themes and labels, the undisputed evidence, and the key areas where relevant evidence is in dispute. It forces you to consider how you are going to integrate these concerns into a persuasive address –​your closing argument. It forces you to distinguish between what is important and what is merely interesting or peripheral. Your closing argument must persuade the judge or jury that your theory of the case should be accepted and, in so doing, win the war over the disputed facts. If your version of the disputed facts is accepted, you win. In short, planning the closing argument first highlights those matters that need to be emphasised and those that need to be covered lightly, if at all, in the other stages of the trial. If it is not important enough to mention in closing argument, it is likely not important enough to cover in the other stages of the trial. Having planned your closing argument, you will know what needs to be included in your opening address. Your opening address serves a number of functions. It introduces your theory of the case, and your case themes, usually in the first few minutes. It provides a clear roadmap of your case so that, when you present the evidence, the judge and the jury can follow it easily. It describes in storytelling form what happened from the perspective of your witnesses and the uncontested facts. It emphasises the strengths and anticipates the weaknesses in your case by weaving both into your storytelling. It incorporates visual aids and, with the consent of the other side or leave of the court, exhibits that supplement your storytelling and help the jurors and judge visualise key events. Finally, it provides you with the first opportunity to communicate directly with the jury. It is necessary, therefore, to deliver the opening address forcefully, with few or no notes. When preparing your opening address you should not write out what you are going to say and then use it verbatim. People tend to write differently from the way they speak, therefore a rehearsed written speech, even if delivered without reading, will not be persuasive. If you feel more comfortable writing out the opening address, take the time to reduce what you have written to an outline and, with the exception of the first two or three sentences, do not memorise what you have written. 15

Fundamentals of Trial Technique

Consider how you prefer to learn, and structure your outline accordingly. For example, if you learn best through the use of diagrams, use a diagram as the basis of your opening address. If you prefer headings and subheadings, use this form. You may wish to include key dates, names and events as a protection against memory block. Generally, an opening address can be distilled to no more than one page, which can be put on the lectern or bar table for reference. When you deliver the opening address, however, it is essential that you maintain eye contact with the jury and not rely on notes. Example 1.7 –​Opening address Plaintiff in a medical negligence case

 

1

This is a case about:

–​  failing to take time to explain

 

 

 

2

Rita Dixon’s background:

–​  successful professional

   

   

   

3

Consultation:

–​  told operation “routine”

   

   

   

4

Complications from operation:

–​  endothelial arteritis

   

   

   

5

Aftermath:

–​  severe phantom pain

   

   

   

6

Today:

–​  learning to cope

     

     

     

7

Verdict:

–​ seeking compensation for pain and suffering, loss of amenities and financial loss

–​  putting billings before people

–​  devoted mother –​  love of the outdoors

–​  not told of complications –​  witness –​Mary Johnson

–​  untreatable complication –​  amputate just below knee –  witness –​Dr Louise Gaul

–​  painful ulcers on stump –​  artificial leg

–​  completely unemployable –​  can’t bushwalk with children –​ can’t perform in theatrical productions

The comments relating to the preparation of an opening address outline apply equally to the preparation of the closing argument outline. A persuasive argument comes from the heart and cannot be read. It may be necessary to read from an exhibit or from key witness testimony but, generally, you should have a conversation (admittedly one-​sided) with, not read to, the jury. Your outline, therefore, should consist of one or two pages of notes 16

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containing the key points you want to argue in the order you intend to address them, together with references to your themes, exhibits and witness testimony. If your closing is to a judge alone, be prepared for questions from the bench, and be prepared to move to the matters of interest to the judge. The latter cannot be done if you are tied to a script. The closing argument you deliver will be an amalgam of the argument prepared before the trial started, and the points noted during the course of the trial. You should reserve several blank pages at the front of the closing argument section of your trial notebook. As the trial progresses, note key witness testimony, relevant comments of counsel and the judge, key exhibits and your periodic flashes of inspiration. In your final preparation for closing argument, select from these points those you decide should be included in your closing argument outline.

1.7  WITNESS SELECTION, ORDER AND PREPARATION 1  Witness selection Your case-​in-​chief will be presented principally through the witnesses you call and the exhibits you introduce. While you must call the witnesses you know will establish your case, you will often have choices. For example, of the several occurrence witnesses available, which ones will you call? Which witnesses will you call to introduce and explain business records? Which of the police officers that attended at the scene of the crime should you call? When making such decisions, consider the following points: 1

Do not over-​prove your case. If you call too many witnesses you will bore the jury and, more importantly, you will convey the impression that you do not have confidence in your own witnesses. In general, one witness and not more than one corroborative witness is all that is required to prove a point. Otherwise, the jury will legitimately wonder why four or five witnesses were called to establish one point. The general rule is: keep it simple, make it fast and quit while you are ahead.

2

Having prepared your trial notebook, you will have ascertained the requisite elements of the cause of action or charge which must be proved. Call only those witnesses that will provide the evidence necessary to prove or refute these elements (depending on which side you are representing). Avoid calling witnesses merely because they have something interesting to say. You run the risk of confusing the jury and unnecessarily opening your case up to attack from the other side.

3

Call strong, likeable, witnesses. Avoid marginal or weak witnesses whose evidence can be damaged by cross-​examination, unless such witnesses are necessary to establish an essential element of your case. 17

Fundamentals of Trial Technique

2 Witness order Your aim is to arrange and call your witnesses in an order that will present your evidence logically and forcefully to the jury. The following general rules will help you achieve this aim and apply equally to a judge alone trial. 1

Your case, viewed from the jury’s perspective, should progress logically –​for example, in chronological order. We are all used to a chronological sequence in storytelling. Unless there is a compelling reason to do otherwise –​for example, the expectation that a defendant in a criminal trial, if called, will be the first witness called by the defence –​ you should order your witnesses chronologically. This is particularly true when the evidence pertains to the occurrence of an event.

2

Remember the psychological principles of primacy and recency. Start with a strong, important witness to give the jury a favourable initial impression of your case, and finish with another strong, important witness. In addition, if possible, you should begin each morning and afternoon session with a strong, interesting witness. Jurors are most alert at the beginning of court sessions and retain information better at those times.

3

If you must call an adverse witness during your case-​in-​chief, any damage they occasion may be minimised if they are called in the middle of your case.

4

In general, a corroborative witness should be called immediately after the primary witness to the facts has given evidence. This highlights immediately and positively important facts you want the jury to accept as true. Be aware, however, that jurors are easily bored. Calling several witnesses to prove the same point usually adds nothing. Ascertain the minimum number of witnesses required to prove a point, and avoid overkill.

5

Most people understand and retain what they see much better than what they hear, and jurors are no exception. Therefore, you should maximise your use of demonstrative evidence such as photographs, slides, diagrams, models, charts and digital recordings. The earlier you can put such evidence before the jury the better. Carefully analyse the nature of your evidence and ascertain the most effective way in which that evidence can be communicated to the jury. For example, enlarge key documents, such as specific contractual terms, and display them on a screen, or have a witness mark a diagram to highlight action evidence.

6

If an expert witness can summarise effectively the key factual elements of your case, consider putting that witness on at the conclusion of your case-​in-​chief. If you have a number of expert witnesses, consider alternating lay and expert witnesses to keep the jury’s attention.

18

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A trial, no matter how carefully scripted, never proceeds exactly according to plan. Witnesses’ schedules, particularly those of expert witnesses, must be accommodated. Time estimates are rarely, if ever, met. Your order of proof, therefore, must remain flexible. Further, the considerations described above often will be in competition, so there will not be one obvious way in which to order your proof. You must weigh the advantages and disadvantages of each possible approach and ascertain which order is the most logical given the strengths and weaknesses of your case. Remember, your primary aim is to call your witnesses in an order that will logically and forcefully present your case to the jury.

3  Witness preparation Preparing a witness for trial is not the time to learn what the case is all about, or to obtain interesting information. This ground should have been covered well in advance of the preparation of the case for trial. Witness preparation involves a review of the facts about which, having formulated your theory of the case, you know each favourable witness can testify, together with the identification of exhibits that will be introduced into evidence through that witness. This section will deal primarily with the preparation of the lay witness. The preparation of expert witnesses is discussed in Chapter 4. Witnesses, having affirmed or taken the oath, are under an obligation to tell the truth. Any attempt to persuade a witness to adopt a view that does not accord with that witness’s recollection of the facts is unethical, and will adversely affect your case. This does not preclude you, however, from assisting witnesses to express themselves in a way that accords with their true understanding of the facts. You may help witnesses to minimise the possibility that their testimony might be misunderstood. But counsel must always ensure that they do not coach witnesses. A transgression into the latter constitutes unethical conduct.6 Witness preparation involves both the selection of evidence and the preparation of testimony. The following steps ensure that both purposes are achieved: a

6

Prepare witnesses individually and personally. Prepare witnesses for trial individually, as this is the only way in which you can realistically expect each witness to be adequately prepared for his or her particular role in the trial. In addition, you should personally prepare each witness. Do not rely on an associate or an instructing solicitor to prepare your witness. Clear, effective and convincing elicitation of evidence at trial can be achieved only when you have personally reviewed with your witness the facts that he or she will relate to the jury or judge. Personal preparation of a witness will also allow See Chapter 9. 19

Fundamentals of Trial Technique

you to know precisely the nature of the witness’s evidence, obtain an understanding of the likely impact the witness will have on the jury or judge, and assess how the witness will perform under both examination-​in-​chief and cross-​examination. b

Review earlier evidence. Review with the witness all of their answers to interrogatories, written or oral statements (whether or not given under oath), and any other material that may be used to refresh the witness’s memory at trial, or by the other side to contradict the witness. Have the witness read these materials, or read them to the witness. If the witness’s present recollection differs in any way from statements previously made, and the witness insists that the present recollection, not the earlier statement, is accurate, explain that counsel for the other side can, and very likely will, cross-​examine on the earlier statement. Ensure that the witness is prepared to respond to such cross-​examination.

c

Review exhibits. Review with the witness all exhibits he or she will identify or authenticate. Explain to the witness the method you will use to tender the exhibit to the court, the reason for tendering the exhibit and the use you will make of the exhibit at trial.

d

Review the evidence of other witnesses. Review the anticipated evidence of other witnesses and identify any inconsistencies between that evidence and the evidence of the witness. If there are inconsistencies, explore with the witness whether there are any explanations that can be referred to should the other side raise the inconsistencies during cross-​examination.

e

Prepare the examination-​in-​chief. Ideally, the brief to counsel will contain a proof of evidence for each witness you intend to call at trial. This, coupled with your personal preparation of the witness, will assist you in preparing each witness’s examination-​in-​chief. Review with the witness his or her testimony to ensure that it corresponds with your understanding of the evidence, and that it will establish the necessary foundation for the exhibits that will be tendered through that witness. Let the witness know that you are not permitted to ask leading questions on matters in dispute. Explain that the term refers to a question which is framed in such a way as to directly or indirectly suggest the answer, or assumes the existence of a fact the existence of which is in dispute and as to the existence of which the witness has not given evidence before the question is asked.7

f

Review the anticipated cross-​ examination. After the examination-​ in-​ chief has been prepared, review with the witness the areas that you

7

20

See, for example, the definition of a leading question found in the Dictionary, Pt 1 of the uniform Evidence Acts.

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anticipate the other side will cover in cross-​examination. In particular, review with the witness how the other side may use any prior inconsistent statements. Explain the different evidentiary and ethical rules that apply to cross-​examination (for example, opposing counsel’s freedom to ask leading questions and your inability to talk to the witness once cross-​examination has commenced without the consent of opposing counsel) and the purposes of the examination. Advise the witness that he or she should attempt to maintain the same demeanour during cross-​examination that he or she had during examination-​in-​chief. g

Prepare the witness for the courtroom. It is essential to prepare the witness for his or her courtroom appearance. The formality and procedures of the courtroom are foreign and intimidating to most witnesses. The more comfortable your witness feels while giving evidence, the more effective will be his or her delivery of that evidence. To prepare your witness properly for the courtroom you should:



i

explain that he or she should wear neat, conservative clothes appropriate to his or her background. For witnesses who wear uniforms, such work attire may be appropriate for the witness to wear in court;



ii

outline the physical layout of the courtroom and explain where the judge, judge's associate, jury (if any), clerk, counsel, instructing solicitor, court-​reporter and spectators sit;



iii

explain where, when and how the witness will enter and leave the courtroom and affirm or take the oath, and where he or she will sit when giving evidence. If witnesses are excluded from the courtroom before giving their evidence, show the witness where he or she can wait pending his or her summons into the courtroom; and



iv

if the witness is a party that will sit with you at the bar table, remind the witness that the judge and the jury will be assessing his or her demeanour even when he or she is not testifying. Tell the witness not to whisper or interrupt you when court is in session. Tell the witness to write on a notepad anything he or she wants to bring to your attention when you are not occupied with another witness’s testimony or other critical matters.

h

Prepare the witness to testify. Explain to the witness that there are certain guidelines witnesses should follow when giving evidence. Take the witness through the following checklist.

When giving evidence you should: i

listen carefully to the question and only respond to the question being asked. Do not ramble on or volunteer information that is extraneous to the question posed. Ensure, however, that the answer fairly 21

Fundamentals of Trial Technique

and accurately addresses the question. Failure to do so will make the answer appear limited and evasive; ii

look at the jury and judge when answering questions, but avoid staring at a particular juror or the judge;

iii

concentrate on what is being asked, rather than on the perceived reason for counsel asking the question;

iv

speak clearly and loudly so that the judge and the furthest juror can hear you clearly and easily. The testimony must be recorded, so do not speak too quickly;

v

say if you do not understand a question, and counsel will rephrase it. If you cannot recall the facts that will enable you to respond to the question, say: “I cannot recall” or “l cannot remember”. If you made notes at, or immediately after, the incident to which your evidence relates, you may, with leave of the court, be able to refer to these notes to refresh your memory. If you do not know an answer, say, “I do not know”.

vi

give your best approximation and advise that it is only an approximation if you can only give approximate dates, times and distances. If you are being pressed by counsel to give a “yes” or “no” answer which, by itself, would not answer the question, say so and explain your answer. Keep in mind, however, the first point above –​do not ramble on or volunteer information that is extraneous to the question posed;

vii

answer questions using the words you normally employ and feel comfortable with. Avoid the use of professional jargon (such as medical, legal and police jargon) or other stilted speech;

viii

be serious, polite and courteous at all times. Do not exaggerate or understate the facts. Do not give cute or clever answers. Never argue with counsel or the judge and never lose your temper. Counsel for the other side, in the course of cross-​examination, may attempt to bait you, confuse you, draw you into an argument and make you lose your temper. It is very important to make every effort to resist these temptations;

ix

recognise the limits of your testimony. You will be allowed to give evidence only about what you personally saw, heard and did. As a general rule, you will not be permitted to give evidence about what others know, or proffer your opinions, conclusions or speculations;

x

stop immediately and wait for the judge to make a ruling if an objection is made to a question or answer. If the objection is overruled, answer the question. If the objection is upheld, wait for the next question. Never attempt to “squeeze” in an answer once an objection has been made, and do not talk while the judge is talking;

22

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xi

be aware that following the cross-​ examination, counsel for the party who called you may ask more questions. This is called “re-​ examination”. Generally, leading questions are not permitted on examination-​in-​chief or re-​examination;  and

xii

always tell the complete truth according to your recollection of the facts and events.

Tell the witness that adherence to these guidelines will have a favourable impact on the way in which the judge and the jury evaluate the witness’s credibility and evidence. If the witness is sympathetic to your client’s case, but does not want to appear to be taking sides or anticipates difficulty in taking time off work to give evidence, suggest to the witness that a subpoena be taken out and served on him or her to alleviate these concerns. You will find that most witnesses in this situation are amenable to this procedure. i

Enter the examination-​in-​chief into your trial notebook. The method of preparation of your examination-​in-​chief for inclusion in your trial notebook is largely a matter of personal preference; however, the following two methods are worthy of consideration:

i The Q and A method. Every question that you intend to ask the witness, and a summary of the witness’s anticipated response, is written out in full. This method is particularly useful for inexperienced counsel who may, during their first few trials, lack the confidence to rely only on the witness narrative method discussed below. It allows counsel to evaluate whether their questions on matters in issue are phrased in a non-​leading form (discussed in detail in Chapter 4), and forces counsel to think through the entire examination-​in-​chief of a witness.   While writing out the questions and anticipated responses is a useful stage in your pre-​trial preparation, you need to distil what you have prepared into a more usable form. The disadvantage of the Q and A method is that it may wed you to the script which will hinder your flexibility and create an impression in the mind of the jury that your examination-​in-​chief has been choreographed and rehearsed. Further, at trial, witnesses rarely give their evidence-​in-​chief in the exact way counsel anticipates. This can render the scripted Q and A almost useless very quickly. It is a useful starting point, but for the trial the witness narrative method, or a variant thereof, should be employed. ii The witness narrative method. Essentially this method consists of an outline of the witness’s examination-​in-​chief. It incorporates the witness’s anticipated responses and identifies the exhibits which will be entered through the witness. The advantage of 23

Fundamentals of Trial Technique

this method is that it engenders spontaneity and allows you to retain flexibility during the course of the examination to ask follow-​up and clarification questions. A convenient way to organise the examination-​in-​chief under this approach is to note at the top of the page the exhibits the witness will discuss or qualify, and the witness’s earlier statements. The remainder of the page is divided into three columns: dates and times, witness testimony and exhibits. Example 1.8 Sangit Singh  –​ examination-​in-​chief Witness will discuss/​ qualify:  

1  handgun (exhibit 7) 2  photo of scene 3 wallet

Earlier evidence:

police statement dated 26.7.17

Dates and Times

Witness Testimony

Exhibits

Background

name, age, address (if relevant), how long there, work, education

 

23.7.17

where living, describe building, describe unit, doors, layout, lights

Authenticate photo

2.00 am –​23.7.17

in unit, beer, TV movie, name of movie, lights

 

What happened

man burst in –​describe, pointed handgun –​describe gun, took wallet, threats, ran out

ID accused ID handgun Authenticate wallet

Aftermath

called police, arrived, time

 

ID Parade

police station –​which

 

9.00 am –​26.7.17

ID of accused at ID Parade, identified wallet at station, gave statement

 

1.8  PREPARATION FOR CROSS-​EXAMINATION Effective cross-​examination of the other side’s witnesses requires careful pre-​trial preparation. This may appear to be self-​evident, but it is often overlooked by inexperienced counsel. Pre-​trial discovery, such as that contained in answers to interrogatories and affidavits in a civil case, or witness statements in a criminal case, gives some insight into what the witnesses for the other side might say at trial. The foundation of your pre-​trial preparation for cross-​examination, however, will be derived largely from the evidence adduced from your own 24

Preparation for Trial

|  CH  1

witnesses, a review of the pleadings and affidavits filed, police reports, exhibits, correspondence with the other side and, most importantly, your own assessment of the probable evidence. In preparing for cross-​ examination you should: a

review the evidence that you anticipate will be elicited from a witness in examination-​in-​chief, including the exhibits that you anticipate will be identified and produced through that witness;

b

review the pleadings, interrogatories, affidavits, discovered documents and the proofs of evidence of your own witnesses who will be dealing with the same issues;

c

ask yourself, “What will I say about this witness in closing argument?”. Your cross-​examination should elicit only enough information to support the propositions contained in your closing argument;

d

consider what evidence favourable to your position can be elicited from the witness. Also consider what exhibits can be authenticated and produced through the witness, and whether the witness is likely to be hostile or sympathetic to your case. Consider whether the witness has made previous statements that help your case from which the witness will not be able to resile;

e

ensure that your cross-​examination falls into one of three categories: favourable testimony; likely admissions; and impeachment of either the witness or the witness’s evidence (for example, through the use of prior inconsistent statements). Arrange the points you have decided to cover in a logical order. For example, obtain favourable admissions before you attempt to highlight inconsistencies in the witness’s evidence through the use of a prior inconsistent statement;

f

consider the areas in which you anticipate the witness can be successfully cross-​examined. Determine where the witness’s evidence will appear improbable, and where it will conflict with the evidence adduced through your own witnesses;

g

consider the basis upon which the witness’s evidence may be impeached. Determine whether the witness’s evidence conflicts with the pleadings, answers to interrogatories, affidavits, documentary evidence or his or her own prior statements;

h

avoid trying to cover too many points. A few good points are more likely to be remembered by the jury;

i

arrange your cross-​examination so that you begin on a good point and conclude on your best point. If you anticipate that the witness will provide evidence favourable to your case, cover these areas before you challenge the witness. Once you have antagonised the witness, the possibility of eliciting favourable evidence is significantly reduced; and 25

Fundamentals of Trial Technique

j

prepare a witness sheet for each anticipated witness for insertion into your trial notebook. The content and structure of the witness sheet is largely a matter of individual preference, but a common method is to:



i

summarise the witness’s anticipated evidence-​in-​chief at the top of the page; and



ii

divide the remainder of the page into two columns. One side will contain an outline of the topics you intend to cover in your cross-​examination, cross-​referenced with material you intend to use for the purpose of challenging the witness. The other side will have room for notes made during the witness’s examination-​in-​chief. This method allows you to correlate the witness’s evidence-​in-​chief with the topics you intend to cover in cross-​examination.

Example 1.9 Ann Smith –​cross-​examination Evidence-​in-​chief: Prosecution witness will likely testify that she was walking down the street late at night, was accosted by the accused who claimed that he had a gun and was robbed of $35. The witness identified the accused in an identification parade. Earlier evidence. Transcript of committal hearing 30.5.17. Cross-​examination

Examination-​in-​chief

1

Late at night, lighting poor (committal hearing transcript, p 10)

 

2

Happened suddenly –​trouble not   expected (committal hearing transcript, p 37)

3

Worried about being hurt, kept looking   at man’s coat pocket for gun (committal hearing transcript, p 39)

4

Never saw gun (committal hearing transcript, p 40)

 

In addition to the above, consider interviewing the witnesses the other side intends to produce at the trial. In a civil case there is no “property” in a witness. Assuming that the witness is not a party and is prepared to co-​ operate, you are entitled to interview, and take a statement from, him or her. In a criminal case all witnesses, with the exception of the accused, generally may be interviewed by either side. In summary, an analysis of the preliminary material, combined with the identification of fruitful areas for cross-​examination, will lay the foundation for an effective cross-​ examination at trial. Cross-​ examination, like all components of the trial process, requires thorough pre-​ trial preparation. 26

Preparation for Trial

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1.9  EXHIBIT SELECTION AND PREPARATION Once you have prepared your witness examinations, you will know what exhibits you intend to use during the trial. Go one step further and ask yourself, “What additional exhibits or demonstrative evidence relevant to the issues in dispute in the case would be persuasive?”. In other words, develop a visual strategy (which is discussed in Chapter 5). Lateral thinking at this stage of trial preparation can produce good ideas. Plan how your exhibits can be prepared and presented in court so that they can be seen easily by the witness, the jury and the judge. Bigger is better. Enlargements of photographs and documents are more effective than A4 originals. Colour attracts more attention than black and white. Putting important documents and records on stiff-​backed poster boards, or projecting such documents onto a screen, will draw more attention than loose sheets of paper. Ascertain what witness you will use to authenticate the exhibit, and at what point in that witness’s examination you will have the witness lay the foundation for the entry of the exhibit into evidence. If the exhibit can be marked or highlighted (for example, a diagram of the crime scene), plan how this can be done most effectively and go over the procedure with the witness. Finally, ascertain how you are going to keep track of the entry and numbering/​lettering of exhibits. An exhibit chart, described in detail in Section 1.4, is recommended for this purpose.

1.10  CONDUCT DURING THE TRIAL There are some basic rules governing counsel’s conduct during trials which all advocates should keep in mind. These “rules” should be borne in mind each time you prepare a case for trial, and are considered in greater detail in Chapter 9. 1

Remember that counsel, as well as the parties, are on trial. That trial begins when you first enter the courtroom, and does not end until the court has ruled on the last matter in issue. Your conduct as an advocate is constantly being assessed by everyone in the courtroom.

2

Show respect for the judge and for the jury. Always maintain the proper degree of respect, formality and courtesy, regardless of how familiar you are with the judge or counsel for the other side. If you feel the urge to inject a degree of levity into the proceedings, be certain that it will be well received by the judge and the jury. Jurors treat their obligations seriously and expect the trial process to be governed by a certain degree of formality.

3

Emulating the lawyers depicted in television shows and movies is not likely to further your career as an advocate. For example, it is 27

Fundamentals of Trial Technique

unacceptable in an Australian courtroom for counsel, without the permission of the court, to move away from behind the bar table. You are not permitted to approach a witness in the witness box or to approach the jury. You may, with the permission of the court, approach a witness for certain purposes (the marking of an exhibit, for example), although in most instances documents and other objects are passed to the witness or the judge with the assistance of the court clerk or the judge’s associate. 4

Respect the intelligence of the jury. Collectively, the jury learns and understands everything. Few facts escape its collective attention. Everything you do will be noticed. You must ensure, therefore, that your arguments, objections, and examinations are logical and relevant. You must avoid cheap remarks. Maintenance of your credibility as an advocate throughout the trial is of paramount importance. Counsel who earn the respect of the court, the jury, their client and their peers are those who are strenuous advocates, who fight for their clients, yet remain within the bounds of fundamental fairness. Surveys of jurors in the United States have shown that the counsel who make the most favourable impression on the jury are those who are well prepared, knowledgeable, have effective verbal communication skills, and demonstrate a dedication to their client, all within the bounds of fairness. Lack of preparation and unnecessary theatrics, particularly where the result is a waste of trial time, are the least admired qualities.

In conclusion, it is essential that you maintain a flexible approach to every trial. Judges, juries, parties, counsel for the other side and witnesses always change. The successful advocate is the one who remembers that every trial is unique, and who alters his or her approach to adapt to the new variables.

1.11 

ADVOCATE’S SELF-​EVALUATION GUIDE

When the trial is over you will either bask in the warm glow of victory or shiver in the frigid shade of defeat. Once self-​congratulations or self-​pity are behind you, reflect on the following questions: “What did I learn from this trial? What worked and what did not work? How can I do better in the future?”. The following self-​evaluation guide may help you to review your trial performance. 1 Strategy • Did I develop a persuasive theory of the case? • Did I develop persuasive themes? • Did I develop persuasive labels for people, places and events? • Did I identify the key issues in dispute? 28

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• Did I develop the important facts on the disputed issues? • Did I pursue only what I could realistically accomplish? • Did I accurately identify the other side’s strategy? • Did I anticipate the problems and weaknesses in my case and those of

the other side? • Did I brainstorm my case with others?

2 Execution

a  Opening address • Did I present my theory of the case? • Did I present my themes? • Did I use my labels for people, places and events? • Did I use storytelling techniques to present the facts? • Did I use demonstrative evidence and exhibits persuasively? • Did I emphasise the strengths? • Did I deal effectively with the weaknesses? • Did I maintain the attention of the jury or judge? • Did I present a clear roadmap of my case? • Did I avoid argument? • Did I use an effective structure?

b Witnesses • Did my examinations serve my overall trial strategy? • Did I use simple, non-​leading questions in examination-​in-​chief? • Did I elicit “word pictures” in examination-​in-​chief? • Did I use simple, leading questions in cross-​examination? • Did I save my conclusions in cross-​examination for my closing argument?

c Exhibits • Did I prepare and use persuasive exhibits and visual aids? • Did I use exhibits in opening address, witness examinations and closing

argument? • Did I prove legally sufficient and persuasive foundations? • Did I manage my own, and the other side’s, exhibits effectively through-

out the trial? • Was my visual strategy effective?

d  Closing argument • Did I argue my theory of the case effectively? • Did I use my themes consistently? • Did I use my labels for people, places and events consistently? • Did I develop the important facts and logical inferences to support my

client’s version of the key disputed issues? 29

Fundamentals of Trial Technique • Did I use exhibits, instructions, analogies and rhetorical questions? • Did I explain propositions effectively –​why/​because? • Did I use an effective structure?

3 Delivery

a Verbal • Did I use plain English? • Did my witnesses use plain English? • Did I modulate my voice to maintain the jury’s interest? • Did I modulate my voice to emphasise key points? • Did I use pacing and pauses? • Did I have distracting verbal mannerisms such as saying “um”, “okay”,

“right”?

b  Non-​verbal • Did I avoid reliance on notes during my opening address, witness exam-

inations, and closing argument? • Did I maintain effective eye contact with the witnesses, the judge and the

jurors? • Did I use reinforcing movements and gestures? • Did I use my gestures to create mental pictures? • Did I project appropriate attitudes? • Did I have any distracting non-​verbal mannerisms?

30

CHAPTER 2

The Jury: Selection and Persuasion

2.1 INTRODUCTION......................................................................................... 31 2.2 DO YOU WANT A JURY?............................................................................. 31 2.3 SELECTING A JURY...................................................................................... 32 2.4 THE PSYCHOLOGY OF PERSUASION........................................................... 36 2.5 CONCLUSION............................................................................................ 45

2.1 INTRODUCTION Within the field of trial work, perhaps no area is the subject of more theory and speculation than jury selection. Practitioner journals are replete with explanations of the “best approach” to selecting a jury. More often than not, the various theories are contradictory. Nevertheless, anyone aspiring to become a competent advocate must be familiar with the methods by which juries are selected. This chapter will discuss the initial decision to request a jury trial, the ways in which prospective jurors may be challenged and the approaches to the selection process. The chapter concludes with an outline of the findings of behavioural science research and jury research into the way a juror processes information, makes decisions and arrives at a verdict.

2.2  DO YOU WANT A  JURY? While jury trials are used primarily in serious criminal cases, in all states and territories except South Australia,1 legislation provides for jury trials in both civil and criminal cases. Once you have ascertained that a jury trial is an available option, a threshold determination must be made: To seek a jury trial or take the case before a judge alone? When considering these alternatives, ask the question: “Does this case have jury appeal?”.

1

Juries Act 1927 (SA), s 5, abolishes the right to a jury trial in civil actions. Criminal trials are, pursuant to the provisions of s 6, and subject to the provisions of s 7, to be tried before a jury. 31

Fundamentals of Trial Technique

In a medical negligence case, plaintiff’s counsel might elect to take the trial before a jury on the theory that the case has emotional appeal and a jury is more likely to hold the defendant liable and award substantial damages. A judge who has “heard it all before” might adopt a more detached view of the evidence, the issues of liability and the assessment of damages. Commercial litigation cases, on the other hand, often involve complex issues of law and fact that must be proved through the introduction of substantial quantities of documentary evidence. This, coupled with the fact that the action may involve multiple parties –​some or all of whom are corporations or other artificial legal entities –​may prompt the parties, particularly the plaintiff, to proceed before a judge alone. In Australia it is rare for any civil case, much less a commercial litigation case, to be tried before a jury. In a criminal case where an election is available, defence counsel might advise the accused to elect a jury trial where the accused is presentable, the prosecution case appears strong, the facts will not shock a jury and a technical legal defence is not being raised. Conversely, where the prosecution case appears weak, or a substantial legal or factual defence can be developed, defence counsel might recommend a trial before a judge alone, particularly where the nature of the offence, or the aggravating facts, would be likely to shock a jury. The decision to proceed before a jury necessarily requires an in-​depth consideration of the individual case. The relevant facts, witnesses, parties and counsel, together with the costs involved, must be assessed, and all of the alternatives discussed fully with the client.

2.3 SELECTING A JURY Jury selection is governed by statute in each jurisdiction.2 Generally, the Sheriff’s office is responsible for compiling a list of prospective jurors who satisfy the criteria set out in the governing statute; namely, that the prospective juror’s name appears on the electoral role and that he or she is not otherwise disqualified from serving on a jury (for example, on the basis of age, occupation, ill-​health or because of a prior criminal record). From this list, a panel is selected and a summons is issued to each prospective juror to attend at the courthouse for the purpose of jury selection. A panel usually consists of 40–​50 potential jurors. In the presence of a judge, counsel for the parties and the accused, the names, or identification numbers,3 of the panel are read out and the judge may then invite excuses for exemption from duty. Once the applications

2 3

32

Juries Act 1967 (ACT); Jury Act 1977 (NSW); Juries Act (NT); Jury Act 1995 (Qld); Juries Act 1927 (SA); Juries Act 2003 (Tas); Juries Act 2000 (Vic); Juries Act 1957 (WA). Juries Act 1967 (ACT), s 31(1); Jury Act 1977 (NSW), s 29; Jury Act 1995 (Qld), s 41(2); Juries Act 2000 (Vic), s 31(3); Juries Act 1957 (WA), s 34B.

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for exemption are heard, either the judge’s associate or the clerk of the court draws names or numbers at random from a box. As the potential juror moves to take a seat in the jury box, either the Crown, the accused’s solicitor or barrister, or the accused personally,4 may challenge the potential juror peremptorily or for cause. In some jurisdictions the Crown also has the right to “stand aside” a potential juror.5 1  Exercising challenges There are two types of challenges that may be exercised against prospective jurors: a challenge to the array6 and a challenge to the polls. The first, a challenge to the array, involves a challenge to the way in which the jury panel was assembled by the Sheriff. Such challenges are very rare. The more common form of challenge is the challenge to the polls. A challenge to the polls is a challenge to an individual juror, not the whole panel. A challenge to the polls can be either peremptory or for cause.

a  Peremptory challenge The challenge most commonly exercised is the peremptory challenge. A peremptory challenge is a challenge without cause that can be exercised for any reason. The availability and number of peremptory challenges is governed by the applicable statute.7 In civil cases such a right may not exist. In criminal cases, the High Court decision in Johns v The Queen8 establishes clearly that the right of peremptory challenge rests with the accused, not with the accused’s counsel. The accused may authorise his or her counsel to exercise the right on his or her behalf, but counsel cannot override the accused’s express instructions.9 To facilitate communication between counsel and the accused, it is permissible for counsel to stand near the dock during the jury selection process. It would be prudent to ask for leave from the presiding judge to move from the bar table to the dock for the purposes

4 5

6 7

8 9

Murphy J noted in Johns v The Queen (1978) 141 CLR 409 at 431 that “[a]‌n accused may conduct his trial through counsel but the right to challenge is his, not counsel's”. Juries Act (NT), s 43; Juries Act 2003 (Tas), s 29(8)(a); Juries Act 2000 (Vic), s 38. This is a practice, dating back to 1305, whereby the Crown can “stand aside” a potential juror without showing cause unless and until the entire jury panel is exhausted. Generally, see J McEldowney, “Stand by for the Crown: An Historical Analysis” (1979) Crim L Rev 272. Jury Act 1977 (NSW), s 41; Juries Act (NT), s 42; Jury Act 1995 (Qld), s 40; Juries Act 2003 (Tas), s 32; Juries Act 1957 (WA), s 45 (civil). Juries Act 1967 (ACT), s 34 (criminal); Jury Act 1977 (NSW), s 42 (criminal), s 42A (civil); Juries Act (NT), s 44 (criminal); Jury Act 1995 (Qld), s 42 (civil and criminal); Juries Act 1927 (SA), s 61 (criminal); Juries Act 2003 (Tas), s 31 (civil), s 35 (criminal); Juries Act 2000 (Vic), s 35 (civil), s 39 (criminal); Criminal Procedure Act 2004 (WA), s 104 (criminal). (1978) 141 CLR 409. Johns v The Queen (1978) 141 CLR 409 at 431 (per Murphy J). 33

Fundamentals of Trial Technique

of obtaining instructions. The High Court, however, has indicated that such leave should not be denied.10

b  Challenge for cause A party to a civil or criminal proceeding can challenge a potential juror for cause on the basis, that the proposed juror does not possess the necessary qualifications or that he has some personal defects which render him incapable of discharging his duty as a juror or that he is not impartial or that he has served on another jury in respect of the same matter or that he has been convicted for an infamous crime.11

The right to challenge for cause, like a peremptory challenge, is governed by statute.12 Disqualification and ineligibility is governed largely by statute and, if proved by the challenger, presents little difficulty. Given the thorough out-​of-​court selection procedures, such challenges are relatively rare.13 What is more difficult to establish, given the paucity of relevant information on prospective jurors available to counsel, is a challenge for cause based on partiality.14 In Australia, unlike the United States and to a lesser extent Canada, the ability to vet a juror before that juror is empanelled is very limited. The parties are forced to exercise challenges for cause in the absence of any relevant information to support the challenge. While the procedure varies between jurisdictions, generally a decision to challenge for cause must be made on the basis of the prospective juror’s name (if supplied to counsel), appearance and possibly his or her occupation. The challenge usually can be made before or after the rights of peremptory challenge have been exhausted. In all jurisdictions, the challenge for cause is tried by the presiding judge.15

10 11

12

13

14

15

34

Johns v The Queen (1979) 141 CLR 409 at 421 (per Barwick CJ). R v Murphy (1989) 167 CLR 94 at 102. See also A Frieberg, “Jury Selection in Trials in Commonwealth Offences” (in The Jury Under Attack, M Findlay and P Duff, eds, Butterworths, 1988), p 120; P Weems, “A Comparison of Jury Selection Procedures for Criminal Trials in New South Wales and California” (1984) 10 Syd Law Rev 330 at 341. Juries Act 1967 (ACT), s 34; Jury Act 1977 (NSW), ss 43–​44; Juries Act (NT), s 44; Jury Act 1995 (Qld), s 43; Juries Act 1927 (SA), ss 66–​67; Juries Act 2003 (Tas), ss 30, 33; Juries Act 2000 (Vic), ss 34, 37; Criminal Procedure Act 2004 (WA), s 104(5) (criminal). However, they do occur. For example, in the Survey of Court Procedures conducted by the New South Wales Law Reform Commission, a successful challenge for cause based on the inability of a potential juror to speak English was reported: The Jury in a Criminal Trial: Empirical Studies (New South Wales Law Reform Commission Report RR 1, 1986), p 49. While rare, such challenges do occur. In the New South Wales Law Reform Commission study referred to in the preceding note, a prospective juror who was known to a witness was successfully challenged for cause: The Jury in a Criminal Trial: Empirical Studies (New South Wales Law Reform Commission Report RR 1, 1986), p 49. For a discussion of the challenge for cause procedure in Australia, see L McCrimmon, “Challenging a Potential Juror for Cause: Resuscitation or Requiem?” (2000) 23 UNSWLJ 127.

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2  Phases of the challenge process The exercise of peremptory challenges and challenges for cause involves two distinct phases: the acquisition of information and the exercise of judgment.16

a  Acquisition of information While the process varies from jurisdiction to jurisdiction, the list of prospective jurors may be available to counsel a few days before the date on which those prospective jurors are to attend for jury selection. Reference to the relevant statute in each jurisdiction will indicate the availability of such a list and the method that must be employed to obtain it. If you practise in a jurisdiction where such information is available, you should undertake a limited inquiry into the background of each of the prospective jurors. If identifying information is provided, such as a prospective juror’s name, the panel should be vetted by the client, and by the witnesses to whom you have access, to ascertain whether any of the prospective jurors may be so closely connected to a party, or to a witness, to warrant a challenge for cause. You also should refer to the electoral roll and the telephone directory, both of which may reveal valuable information, such as the prospective juror’s occupation, residential and business address, marital status and dependants. This information, combined with your personal assessment of the prospective juror on the day the jury is to be empanelled, will assist you in deciding whether a challenge for cause or a peremptory challenge should be made. Making more extensive inquiries into the background of a prospective juror than those suggested above may be unethical and is not recommended.

b  Exercise of judgment The potential jurors have been summoned, the available information on each potential juror has been acquired and the day for jury selection has arrived. You now have your first opportunity to observe the members of the jury panel. In practice, given the relatively infrequent use of the challenge for cause, judgment is exercised primarily in determining whether to challenge a potential juror peremptorily, that is, without cause. Peremptory challenges enable parties to exclude from the jury persons who may harbour a prejudice towards them, or who may be adversely disposed to the argument they will advance. The decision to exercise a peremptory challenge, therefore, will be based on the theory of the case considered in conjunction with the information acquired before the in-​court selection process. This assessment, coupled with observations of the demeanour of the potential juror while waiting to be called and his or her deportment 16

M Bungay, “Jury Selection” (in Mauet’s Fundamentals of Trial Techniques, T Eichelbaum, ed, Oxford University Press, Auckland, 1989), p 31. 35

Fundamentals of Trial Technique

while walking towards the jury box, assists in the decision whether to exercise a peremptory challenge. When considering whether a peremptory challenge should be made, keep the following points in mind: 1

if possible, at least one peremptory challenge should be saved. The cases in which a counsel used all of his or her challenges before the complete jury was chosen, only to discover that the last juror sworn was disastrous, are legion. If possible, save the last challenge for such an emergency;

2

keep track of the number of peremptory challenges that you and every other counsel have remaining. While generally, as has been noted above, the number of peremptory challenges is set out in legislation, it is prudent before the jury selection process begins to confirm with counsel for the other side and with the presiding judge, the number of peremptory challenges available to each party;

3

be aware of the jurors who have not yet been called. Consider whether it is likely that the remaining jurors will be more favourably disposed to your client’s case than the juror under consideration;

4

do not leave the exercise of your challenge until it is too late. Generally, a challenge must be exercised before the juror is sworn. If you anticipate that the other side will challenge the juror, you should delay the exercise of your challenge until you have ascertained whether your assessment of the other side’s intention is correct –​but without leaving your challenge until it is too late to exercise it. This necessitates a careful monitoring of the other side to detect any intention to challenge; and

5

always be courteous in the exercise of your challenges, regardless of whether they are challenges for cause or peremptory challenges. Your deportment in the courtroom is always subject to the scrutiny of the court and the jurors who have been sworn or are yet to be sworn.

2.4  THE PSYCHOLOGY OF PERSUASION Trials are a re-​creation of reality –​an event or transaction that happened in the past. In the adversarial system there are usually three versions of reality: your side’s reality; the other side’s reality; and the trier of fact’s reality. The only reality that ultimately matters is the trier of fact’s reality, because it is that reality which will ultimately determine the outcome. Which side’s version of reality will the trier of fact accept as its own? This depends largely on which side is most persuasive in presenting its version of reality during the course of the trial. If neither side is persuasive, the trier of fact will construct a version of reality entirely on its own. While an understanding of the psychology of persuasion is necessary when presenting a case to a judge alone, it is critical if the case is being 36

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tried before a jury. To persuade juries you need to understand juries. This section outlines the findings of behavioural science research and jury research, conducted primarily in the United States, into the way a juror processes information, makes decisions and arrives at a verdict. How this information influences an advocate’s presentation of a case to a jury is then discussed. 1  Behavioural science and jury research A view commonly held is that jurors objectively absorb the evidence presented by both sides during the course of the trial, withhold making premature judgments, dispassionately review the evidence during deliberations and ultimately reach a logical decision based on the evidence and the applicable law. In other words, lawyers often assume that jurors process information in the same way as do lawyers. Behavioural science research and jury research suggests that this view is flawed. Such research suggests that an advocate should never assume that “they”, the jurors, think like “us”, the lawyers.

a  Affective and cognitive reasoning People can be classed into two broad categories of decision making: primarily affective decision makers and primarily cognitive decision makers. Affective decision makers have several common characteristics. First, they tend to be emotionally, rather than intellectually, centred, which means that they tend to be creative and are more interested in people than in problems. They view trials as human dramas, not as legal disputes. Secondly, they use deductive reasoning, which tends to be emotional and impulsive. Cause and blame, which is based on a few premises about how life works and relatively little factual information, are attributed quickly. Thirdly, once they make a decision, it is difficult to shift their position. In an effort to remain consistent, decisions are validated by selectively accepting, rejecting and filtering later information to “fit” the decision made earlier. To avoid internal conflict and stress, affective decision makers tend to become resistant to information they see as inconsistent, and soon hear only what they want to hear and see only what they want to see. By contrast, cognitive decision makers tend to be more interested in problems than people, enjoy accumulating information, defer making decisions until they have all the facts and, like trained scientists, use inductive reasoning to reach consistent conclusions. The difference between affective reasoning and cognitive reasoning can be illustrated through the use of an example: A bus full of people comes upon an accident involving two cars. Affective decision makers will immediately ask, “Was anyone hurt?”, whereas cognitive decision makers will immediately ask, “Whose fault was it?”. In short, affective decision makers “feel”, whereas cognitive decision makers “reason”. 37

Fundamentals of Trial Technique

Most advocates, trained in legal reasoning, tend to be cognitive decision makers whereas the majority of those sitting on a jury will likely be affective decision makers. While one might quibble with the generalisation, the simple lesson is this: advocates should not assume that the approach they find most persuasive will necessarily be the approach the jury finds most persuasive. To communicate effectively with a jury, advocates must understand how jurors process information, create stories to explain how and why an event happened, and make decisions.

b Decision making A jury verdict is a product of two forces: individual decision making and group decision making. Decisions by individual jurors are influenced principally by affective reasoning, and the juror’s beliefs and attitudes discussed above. It is also important to understand, however, that during the course of the trial most jurors go through an emotional progression. That progression will influence how advocates present themselves, the evidence and their arguments. Advocates who understand and respond to the jurors’ emotional needs during the trial have a significant advantage. At the beginning of the trial, and particularly during jury selection, jurors experience varying levels of anxiety. They do not fully understand their role, are unsure whether they will be selected and, if selected, whether they will understand the case and reach the right verdict. For the rest of the trial, jurors will use subconscious strategies to cope with their unwanted anxiety. Following jury selection and the plaintiff’s, or prosecution’s, opening address, the uncertainty and anxiety most jurors feel begins to subside. They begin to understand courtroom procedure and their role in the trial process. They begin to construct stories to facilitate their understanding of what the case is about. These stories may ultimately prove to be accurate or inaccurate. It is important for advocates to understand, however, that such stories are being constructed. Story construction is the process by which jurors try to make sense of the information they receive. While this is not equivalent to reaching a final decision, it will influence how jurors perceive the actual evidence when it is presented at trial. As the trial progresses, jurors subconsciously accept, reject or distort the evidence they hear or see. How they process the information largely depends on whether the evidence is consistent or inconsistent with the stories they have constructed. After all of the evidence has been presented, most jurors look forward to sharing their views with others during deliberations. Closing arguments will have little impact on these jurors, as their minds are made up. If the closing argument supports their view of the case, however, it may make them stronger advocates for that view during deliberations. Closing arguments will influence those jurors who are still unsure of their 38

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decision, or do not have confidence in their decision. Closing arguments also may influence those jurors who realise, following the summing up by the judge, that their decisions are not permitted under the verdict options or the applicable law. Group decision making comes to the fore during jury deliberations. Jury research has shown that group dynamics are critical during jury deliberations, because individual decisions are often overborne by the dynamics of group decision making. Group dynamics do not involve an even exchange of views among the members of a group. Some members have more influence on the group than others, and in this context group members can be categorised as persuaders, participants and nonparticipants. Persuaders are persons who make assertive statements about the evidence, freely express their opinions and actively build coalitions to support their views. Persuaders are the opinion leaders. They have the most influence and dominate group discussions. They often have higher levels of education, and positions of authority or expertise in their workplace. They are articulate, talk readily and are comfortable in group settings. Persuaders constitute approximately 25 per cent of a group, and do more than 50 per cent of the talking in the group. In a typical 12 member jury, three jurors will be persuaders. Participants are followers, not leaders, who value social approval and acceptance by others. While they participate in group discussions, they defer to those with higher education, higher intelligence, more experience and greater career success. Participants will readily join coalitions that validate their decisions, but will not lead such coalitions. While participants will state their opinions, they will not actively try to persuade others to accept those opinions. Participants constitute approximately 50 per cent of a group –​six members of a typical jury. Nonparticipants are persons who rarely engage in group discussions, other than to express agreement with a particular view or vote. They are followers who generally will go along with the view of the majority. They may exhibit independence, however, and not be swayed by the majority view. Nonparticipants constitute approximately 25 per cent of a group –​ three members of a typical jury.

c  What influences the jury Persuasion is based on perception. It is a multidimensional dynamic involving senders (witnesses and advocates), messages (evidence and arguments), media (testimony and exhibits) and receivers (jurors). Learning, for the receivers, is also an active process. Messages must be received, processed, remembered and retrieved. Perception and learning consistent with the advocate’s approach will occur only if the messages the advocate intends to send to the jury are the same as the messages the jury actually receives and retains. 39

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i  Attributes of an effective sender

To have a positive influence on the jury, senders –​witnesses and advocates –​ must be credible sources of information. Influence is largely a function of credibility, and credibility is largely a function of the sender’s personal attributes. Three principal characteristics of credibility are trustworthiness, expertise and dynamism. Trustworthiness is inextricably linked to impartiality. It is perhaps self-​ evident that jurors prefer witnesses who have no apparent bias or interest in the outcome of the case, or motive to tailor testimony to support one side’s case. To be perceived as trustworthy, expert witnesses cannot be seen as hired guns prepared to say anything for a fee. To be perceived as trustworthy, an advocate should be candid when dealing with both good and bad facts, and should not try to “pull the wool” over the jurors’ eyes. The jury as a whole is much greater than the sum of its parts, and any attempt at deception inevitably will be exposed. Expertise refers to how knowledgeable the witnesses are about the facts and issues of the case. How well the lay witness saw, heard or knew about the relevant events and transactions, and how well they remember and recount the details, will have an impact on how knowledgeable the jury perceives a lay witness to be. The education, training and experience, particularly if it is unique, and how thoroughly the witness carried out tests and analysis, will have an impact on how knowledgeable the jury perceives an expert witness to be. The more difficult the testimony is to comprehend, the more important becomes the trustworthiness and expertise of the witness. Dynamism refers to the communication skills of the witnesses and the advocate. Jurors prefer witnesses and advocates who are attractive, both physically and personally, and are influenced by people who appear to be much like them. Jurors prefer witnesses and advocates who project energy, enthusiasm and confidence when they testify or deliver an address. All of the components of effective communication –​verbal content (spoken words), non-​verbal communication (paralinguistics, such as pace, volume, use of pauses and voice inflection) and body language (kinesics, such as posture, body, arm and hand movements, facial gestures and eye contact) –​ must be coordinated. Boredom is the enemy of effective communication, and dynamic delivery is the best antidote. Effective communication is a skill that can be taught, and is a skill that must be mastered if the advocate or witness is to be persuasive. Finally, jurors believe, erroneously, that they are good at detecting deception and rely on stereotypes to make such assessments. They often believe that mannerisms, such as lack of eye contact, hesitancy in answering questions, nervousness and using words like “honestly” or “believe me”, indicate uncertainty or deception. The impact on the jury of such mannerisms can be minimised through effective witness preparation. 40

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ii  Receiver capacities

Receivers, the jurors, represent a broad spectrum of today’s adult population. Most, regardless of the level of formal education, have limited attention spans, limited interest in learning and limited channels through which they are prepared to learn. From this premise, three interrelated touchstones of effective jury advocacy can be formulated. 1

A well-​planned, coherent delivery that engages a variety of senses facilitates receiver comprehension. Most people’s attention spans are short. The average person can maintain a high level of concentration for only 15–​20 minutes. After that, attention levels drop significantly if the method of the delivery of information is not changed. Consider why half-​hour television programs are more common than hour-​ long programs. The answer: advertisers know that viewers are likely to change channels before the hour is over. In addition, the receipt of information delivered orally occupies only a small part of the brain’s total capacity, allowing the rest of the brain to fade in and out and think of other things. Research has shown that after two or three days listeners retain approximately 10 per cent of aural messages, but retain approximately 20 per cent of visual messages. Retention is dramatically improved to about 65 per cent if both aural and visual messages are used to present the same information. To engage the receiver and to foreclose the receiver’s tendency to drift off and think about other things, the oral delivery of information must be augmented with other forms of delivery that engage a variety of senses. The two most important other forms of delivery are:



i

sight, through the use of visual aids, computer generated graphics, etc; and



ii

sight combined with touch, for example, through the handling of real evidence –​the knife used in the murder, the contract between the parties, etc.

2

Make the learning as effortless as possible. Learning new things takes effort. Most people have limited interest in learning, particularly when there is no perceived self-​interest involved. Pleasant school memories are usually not related to the time spent in the classroom. The experience of sitting on a jury parallels the formality of the classroom which, for many, dredges up unpleasant memories.   We live in a world of “sound-​bites” where information is fast, painless, interesting and visual. Most people form perceptions quickly, based on little information. Observe any television news program. Each news item is short, usually less than two minutes long. The two minutes usually start with a few seconds introduction from the newsreader, followed by a cut to visuals and background voice. The item tends to focus on the human impact of the story, and is over 41

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before boredom sets in. The news programs that attract the highest ratings contain a wealth of information about how today’s advocates should present cases. 3

Appreciate that jurors and lawyers ascribe a different meaning to the word “evidence”. To a juror, evidence is any information relevant to their decision. This may take the form of witness testimony and formally entered exhibits. In addition, it may consist of personal experiences which they believe (rightly or wrongly) to be relevant to the case, and their attitudes about how life works based on their particular belief system. Everything that jurors consider to be evidence is factored into their decision, and jury research suggests that judicial warnings to consider only the admissible evidence generally are ineffective. In fact, research suggests that judicial admonitions often tend to aggravate the harm they are designed to reduce.17 Jurors frequently spend as much time discussing the life experiences that they feel are relevant to the issues in the case –​for example, the automobile accidents they have been involved in, their experiences with doctors and hospitals, and their experience with the police –​as they do discussing the admitted testimony and exhibits. To jurors, it is all “evidence”.   While judges have a greater capacity than the average juror to absorb information, that capacity is not infinite. Like jurors, judges generally respond positively to the use of visual aids and exhibits to facilitate comprehension, provided such aids and exhibits are used effectively. Further, like jurors, judges appreciate a clear, concise and structured delivery which makes learning as effortless as possible. It follows, therefore, that the first two touchstones of effective jury advocacy discussed in Subsection 1.c(ii) of Section 2.4, and the components of effective messages discussed in Subsection 1.c(iii) of Section 2.4, should guide you when presenting a case before a judge alone. iii  Effective messages

To be persuasive, communication must come from credible sources, be attuned to the needs of today's listeners and be structured effectively. Behavioural science research and jury research help us to understand the components of effective communication. 1

The severe constraints imposed by memory should be accommodated. The average person forgets most of the details of a

17

For example, see Australian Law Reform Commission, New South Wales Law Reform Commission, Victorian Law Reform Commission, Uniform Evidence Law (ALRC 102, NSWLRC 112, VLRC FR, 2005), [18.9]-​[18.15]; J A Tanford, “The Law and Psychology of Jury Instructions” (1990) 69 Nebraska Law Rev 71 at 106; The Jury in a Criminal Trial: Empirical Studies (New South Wales Law Reform Commission, RR1, 1986), p 109.

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communication within a few hours, and after two or three days he or she retains but a small part. Advocates must recognise that memory is fleeting and employ strategies to improve jurors’ retention of key information presented during the trial. 2

People use simplification strategies to deal with sensory overload. Sensory overload is a stressful situation that people will try to avoid. Jurors will subconsciously employ simplification strategies to cope with the avalanche of information presented during the course of the trial. One such strategy is the use of psychological anchors –​mnemonic devices –​to help with the recall of the gist of what the juror has learned.   In the vocabulary of the trial, psychological anchors are referred to as a “theme”. A theme is a memorable word or short phrase that summarises and encapsulates lengthy descriptive and evaluative information. “This is a case about greed” or “If it doesn’t fit, you've got to acquit” are two examples. Seeing or hearing the word or phrase at a later time triggers some of the supporting detail. Anchoring information to a theme makes that information easier for the jury to retain and retrieve. An important aspect of pre-​trial preparation is the selection of themes that are emotionally based, catchy and memorable, and address the disputed and undisputed evidence. If done well, and used periodically, jurors will adopt your themes during deliberations. If done badly, or not done at all, jurors will instinctively create their own themes which may, or may not, accord with your theory of the case. 3

Persuasiveness and credibility are enhanced if “powerful language” is employed. Powerful language involves the use of the active voice and present tense, good pace, volume and diction, the use of plain English, and vivid and visceral descriptions. Hollow intensifiers such as “really” or “very”, unnecessary hedges such as “it is submitted” or “it should be noted”, and indications of uncertainty such as “it seemed like” or “it might be”, should be avoided. Sensory language should be used whenever possible to create a mental picture of the information being communicated.

4

Whenever the information is important, make it visual. In other words, do not just tell the jury, show them. Visual aids, such as photographs, diagrams, charts, models, enlarged documents and computer simulations, have been found to improve dramatically the retention of information. Such aids should be large enough to be seen easily by the jurors, the witness, counsel and the judge. Where appropriate, demonstrations also should be used to augment the oral delivery of information.

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5

A variety of techniques to enhance retention and recall should be employed at various stages of the trial. Such techniques include:

a repetition –​Repeating a message –​for example, a theme in opening address or closing argument –​three or four times substantially improves retention. Jurors may forget details, but the impressions that have been repeated at various stages of the trial will be retained. Care must be taken, however, to ensure that repetition is not used to such an extent that it becomes irritating or legally objectionable; b cues –​A cue is a verbal or visual warning that something important is about to happen. A cue can be direct, for example, saying “this is important”, or indirect, for example, the use of tone of voice, pauses and body language; c rhetorical questions –​Rhetorical questions –​questions asked not for information but to produce an effect –​stimulate active thinking. People tend to adhere more strongly to self-​generated conclusions. When jurors respond to rhetorical questions their conclusions have a stronger and more lasting impact; d order effects –​Order effects refer to the positioning of a message in relation to other information. People are more likely to remember what they hear first, the concept of primacy and, last, the concept of recency. It follows that it is important to begin and end with information that has an impact. When trials are short, primacy is the most important consideration. In trials lasting more than a few days, the concept of recency is probably more important.   Order effects also can be used to enhance evidence elicited from less credible sources. Over time, people tend to forget the source of information, referred to as the “sleeper effect”. It follows, therefore, that it may be prudent to place a less impressive witness in the middle of the witness order. e forewarning and inoculation –​Forewarning (the provision of advance warning of the contrary information and arguments to be presented by the other side) and inoculation (the provision of information to rebut the anticipated arguments presented by the other side) are particularly important techniques for the side first presenting its case, or its closing argument. Research indicates that the use of forewarning and inoculation lessens the impact that subsequently presented information has on listeners.

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f two-​sided argumentation –​Most cases have strengths and weaknesses. It is important to keep in mind that your weaknesses are the other side’s strengths. In your case, therefore, such weaknesses should be acknowledged, addressed and refuted. Failure to do so allows the other side to frame the argument in the light most favourable to its case.

2.5 CONCLUSION Advocates who strive to become proficient in the “art” of jury selection must be familiar with the statutory provisions and conventions governing jury selection in their jurisdiction. Further, given the paucity of information on prospective jurors available to the parties, advocates must rely on their common sense and experience, coupled with a thorough preparation of their case, when selecting a jury. Knowledge of the research into the way a juror processes information, makes a decision and arrives at a verdict will assist the advocate in the preparation and presentation of the case to a jury.

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CHAPTER 3

Opening Addresses

3.1 INTRODUCTION......................................................................................... 47 3.2 CHARACTERISTICS OF A PERSUASIVE OPENING ADDRESS.......................... 47 3.3 PROCEDURAL AND EVIDENTIARY CONSIDERATIONS................................. 55 3.4 STRUCTURE OF AN OPENING ADDRESS..................................................... 59 3.5 EXAMPLES.................................................................................................. 68

3.1 INTRODUCTION The opening address is your first opportunity to tell the jury, or the judge, what the case is about. It is a critical component of the trial and, like all aspects of your case, must be carefully planned, developed and delivered. It is, however, perhaps the most overlooked part of the trial process. Opening addresses can, and often do, play a pivotal role in the outcome of the case. Whether the case is being tried before a jury, or before a judge alone, initial impressions are often lasting impressions, and it is therefore essential that your case is launched on the right footing. This can be achieved when an opening address, which clearly and logically outlines the facts that entitle your client to a favourable verdict, is forcefully delivered. This chapter will discuss the characteristics, underlying strategy and structure of a persuasive opening address, and will present examples of its use in civil and criminal cases. The chapter focuses on the opening address in a jury trial; however, similar considerations apply when the case is being heard by a judge alone.

3.2  CHARACTERISTICS OF A PERSUASIVE OPENING ADDRESS Jury selection has been completed and the jurors are sitting in the jury box, waiting. Most judges make introductory remarks, which generally include an explanation of the duties and responsibilities of a juror, the role of the jury in the trial and an overview of the trial process. The judge then asks counsel for the Crown in a criminal case, or counsel for the plaintiff in a civil case, to open its case. 47

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What are the jurors thinking and feeling at this point? First, they are likely still anxious and worried about courtroom procedure, and their role in the trial process. Secondly, they are wondering what the case is all about. Thirdly, they want to know on whom, other than the judge and the court officer assigned to their case, they can place their trust and rely on for help. Fourthly, they have not yet decided which side should win, and they want to reach the “right” verdict. Finally, they are more receptive to information than at any other stage of the trial. An effective opening address must accomplish several goals. It must grab the jurors’ attention, show them what the case is all about from your client’s point of view and anchor the facts and issues in the case to memorable themes and labels. It also must tell an engaging story that captures and maintains the jurors’ interest, and creates a preference in the jurors’ mind for your client, your client’s story, your themes and you personally. Furthermore, it must accomplish all of these goals quickly and efficiently, without transgressing the procedural and evidential considerations discussed in Section 3.3. Rarely will such goals be achieved simply by reciting what each witness will say. Jurors must not only know what happened from your client’s perspective, they also should see what happened through the use of effective storytelling techniques. Effective advocates understand what the jurors and the judge are thinking and feeling, and use this knowledge to organise and deliver their opening addresses. Persuasive opening addresses have the following basic characteristics. 1  Themes and the first three minutes The first three minutes of your opening address should communicate three things to the jury: your themes; a summary of the facts which, if accepted by the jury, will result in a verdict in your client’s favour; and your enthusiasm about trying the case. Themes, discussed in detail in Chapters 1 and 2, are the psychological anchors that jurors instinctively create to make sense of the avalanche of information presented during the course of the trial. They turn complex facts into simple universal concepts. If the jurors accept your themes, you are well on the way to a favourable verdict. Most cases have between two and four themes: one for liability, one for damages (in civil cases) and one or two more for key issues such as credibility and motive. Themes summarise your position on the case in an engaging, easily remembered way. You must ensure, however, that the use of themes does not result in an argumentative opening, which is legally objectionable and unpersuasive at this stage of the trial. First impressions are lasting impressions. In the first few minutes of your opening address the jurors will make a preliminary assessment about you, your client and your case. The first few minutes, therefore, are critical and 48

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should not be wasted on administrative and factual detail of peripheral importance. If such detail needs to be covered in the opening, consider putting it in the middle of the address. Your first three minutes should include a summary of your case, formulated around your case themes, cast in a positive, interesting, people-​centred way. Convey the seriousness of the case, and why it is the other side’s fault. One way to grab the jury’s attention is to re-​create the central event. This is particularly effective if the central event is traumatic, as is often the case in criminal and personal injury cases. Make the re-​creation both visual and visceral, told from your client’s perspective. Example 3.1 Prosecution in a dangerous driving case On 2 June 2017, Edwina Kordus left for work as usual at 8:00 am. By 8:30 am she was in hospital, never to walk again. The defendant, while drunk, ran his car through a red light, crashed into Edwina Kordus’s car, crushing her behind the steering wheel. Members of the jury, people who take chances hurt others. This  case is the story of Edwina Kordus, who is…

Your opening address should be delivered in an interesting, energetic and dramatic way. This is not to suggest that your presentation should be histrionic. Such presentations are an anathema to both judges and juries. You should avoid melodrama and strive to create a dialogue with your audience, the jury or judge, that facilitates understanding.1 The use of storytelling will help you to achieve this objective. 2  Present your theory of the case A theory of the case is your side’s version of “what really happened”. It should incorporate all of the uncontested facts with your side’s version of the contested facts. It must be logical, fit the legal requirements of the claims, charges or defences, be easy to understand and be consistent with the jurors’ common sense and their perception of how life works. In a contract case, for example, the plaintiff’s theory of the case may be that the defendant failed to comply with the contractual terms, thereby causing consequential damage. An alternative theory may be that the defendant fraudulently breached the contract for personal gain. Which theory of the case you ultimately choose will take into account the factors discussed in Chapter 1. By the time you commence the trial you should have chosen the best theory of the case with which to run. If you decide to run with more than one theory, you must be satisfied that the theories are consistent. In other 1

For a discussion of how this might be accomplished, see L McCrimmon, I Maxwell, “Teaching Trial Advocacy: Inviting the Thespian into Blackstone’s Tower” (1999) 33 The Law Teacher 31. 49

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words, establishing the factual foundation for one theory of the case should not undermine the other. If it does, do not run with both. The opening address is the first opportunity you have to communicate your theory of the case to the jury. Seize the opportunity. If you fail to weave your theory of the case into your opening address, the jury will not understand your position. 3 Storytelling Persuasive opening addresses are usually based on good storytelling. After all, a trial is most often a contest to see which side’s version of a disputed event or events the jury will ultimately accept as true. A good story is made up of several ingredients. a

The story should focus on the people, not the legal issues. Most jurors are interested in people and what makes them do the things they do. This means that you should place emphasis on the parties, witnesses and events, not the legal issues arising from the events.   If the case is being tried before a judge alone there is greater scope for a focus on the legal issues. It is important to remember, however, that at the end of the trial the judge will be left with conflicting versions of “what really happened”. It is your version (or story), with its focus of the parties, witnesses and events, that you will be asking the judge to accept. b

You should select labels. Labels are simply the words you select to refer to the parties, events and other important things that will arise during the trial. Labels are important because they convey attitudes and messages. For example, you should personalise your client and key witnesses, because jurors are more likely to make findings in favour of someone they like and with whom they can identify. Do not refer to “my client”, but rather, refer to your client and key witnesses by name whenever possible. You should, however, avoid the use of first names only, unless you are referring to a child. Conversely, you should depersonalise the other side in an attempt to maximise the distance between them and the jury. Refer to the other side as “the plaintiff”, “the defendant”, “the defendant corporation”, “the other side”, “they” and so on.   Pick labels for the events and occurrences that are central to the trial. For example, in motor accident case, counsel for the plaintiff or the prosecutor will usually call it “crash” or “collision”, whereas the defendant’s counsel will usually call it an “accident” or “incident”.   Decide on the best labels before the trial, and be consistent in their use throughout the trial. Having said that, avoid the overuse of the labels you have selected. This can be achieved through the use of variations that convey the same meaning. For example, if the label is 50

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“big black Jaguar sports car”, a variation might be “the big Jaguar” or “that black Jag”. Example 3.2 Sexual assault At 2.00 am on 29 August 2017, Mary Smith, the victim, was sleeping alone in her house. Suddenly she was startled by a noise. At first she thought it was coming from outside, but then she heard it again and realised what it was; the creak of the wooden stairs leading to her bedroom. It was then that Mary Smith  knew that a stranger was in her house. That stranger was the defendant. …

Example 3.3 Automobile negligence case Plaintiff’s labels • Nathan Singh (plaintiff)

• Raymond Williams (defendant)

• the defendant

• the plaintiff

• defendant’s two-​ton truck

• our delivery van

• crash/​collision

• accident/​incident

  • shattered arm

c

Defendant’s labels

• the injury

Your storytelling should re-​create what happened through the use of sensory language and visual images. Vivid, dramatic storytelling is engaging and captures the jury’s attention. It “puts the jury in the picture” and lets them relive the event from your side’s perspective.

Example 3.4 Compare On 20 January 2018, at approximately 4.00 pm, John Smith was walking along Britannia Avenue. Suddenly, a car came from behind, ran through the stop sign and crashed into John Smith’s back. The impact crushed his ribs, broke his spine in three places, and threw him into the ditch. That was the last day John Smith walked. He will never walk again. With The evidence will show that on the day in question my client was struck from behind by a car being driven by the defendant. Just prior to the impact, the defendant’s car failed to stop at a stop sign. As a consequence of the impact,  my client has suffered extensive injuries and has been rendered quadriplegic.

Both alternatives cover the same ground, yet the former is clearly more persuasive. It is explicit, forceful and uses active, sensory language.

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Example 3.5 Products liability Members of the jury, let’s walk through the defendant’s plant and watch as they manufacture the brake system that failed to work properly. The process starts at  the front of the assembly line…

d

The story must be organised in a simple, logical way. Generally, the best way to organise your story is chronologically, since jurors and judges are used to hearing stories that move from beginning to end in a chronological sequence. If the case allows for a different approach, however, consider it. For example, you might commence by describing the last event, and then “loop back” and describe the earlier events that led up to the last event. The important point to remember is that the organisation of the story must be simple, clear and easy to follow.

Example 3.6 Medical malpractice Martha Davis is always in bed. She can’t move. She can’t feed herself. She can’t talk. All she can move is her eyes. She lives with excruciating, constant pain. But she was not always like this. Two years ago, Martha Davis was an active young woman in the prime of her life. What happened to her, and how did it happen? Two years ago Martha Davis made an appointment with the defendant, Dr Smith…  

e

State the material facts clearly. Failing to state the facts clearly is an error often made by inexperienced advocates. Instead, the facts are merely alluded to in a cursory fashion. The facts you intend to prove during the course of the trial and which, you will later argue in closing, entitle your client to a verdict in his or her favour, must be set out logically and succinctly so as to be easily understood by the jury. Your sentence structure should be simple and direct and your vocabulary basic, although not so basic as to insult the intelligence of the jury.

Example 3.7 Compare You will also hear from Mary Johnson, a friend of Rita Dixon. Mary Johnson accompanied Rita Dixon to the defendant’s medical office on 8 March 2018, and sat in on the consultation. Rita Dixon appeared frightened and repeatedly asked the defendant whether she had anything to fear from the operation. At no time during the consultation did the defendant tell Rita Dixon that complications could arise from the surgery. With You will hear from Mary Johnson who will present evidence concerning the defendant’s failure to warn about the complications which could arise from the operation.  

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If you are acting for the plaintiff or the prosecution, it is important to keep in mind the jury knows very little, if anything, about the case when you present your opening address. You should identify the key facts that you will prove through your witnesses and exhibits, identify which of those facts are in dispute and put your client’s version of the facts into an engaging, well-​structured story that the jury and judge can understand easily. 4 Efficiency As has been noted in Chapter 2, jurors have limited attention spans and they have a limited capacity to retain information. To be effective, therefore, an opening address must be time efficient. Most opening addresses should take no more than 20, and at the most 30, minutes. Using more time is counterproductive. Jurors will be overwhelmed, confused by details, and will respond by refusing to listen. It is generally more effective to select memorable themes, touch on fewer details and focus on the most important facts. If you feel compelled to break the “20 minute rule”, ensure that you change the stimulus during the course of your presentation. For example, at the 20 minute mark, break up the oral delivery with reference to visual aids or demonstrative exhibits. This allows the jury to engage their other senses, and reduces the tendency to drift off and think about other things. 5  Consider using exhibits and visual aids Exhibits and visual aids, if used properly, generally will enhance the persuasiveness of an opening address. Many advocates use Powerpoint or other presentation software to make visual aids for the opening and closing addresses. Provided that such visual aids can be incorporated seamlessly into your address, and assist the trier of fact to understand the material being presented, jurors and judges appreciate and respond favourably to them. Be aware, however, that exhibits used in opening address can be a double-​edged sword. On the one hand, exhibits that are graphic and vivid can grab the jury’s attention and create an impression that words alone cannot convey. Also, as has already been noted, they provide an effective way to break up the oral delivery of information. On the other hand, exhibits can divert the jurors’ attention away from you. In addition, once seen, the exhibit, from the jurors’ perspective, will not be “new” when formally introduced in evidence later in the trial. Using exhibits in your opening, therefore, should be done only after carefully weighing up the advantages and disadvantages. If the exhibit you wish to use in your opening address has already been admitted, or you are confident that its admission will not be contentious, there should be no problem with its use in your opening. To avoid an objection, however, it is often prudent to inform the judge and counsel for the 53

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other side that you intend to use the exhibit. If the exhibit has not yet been entered in evidence, it will be necessary to secure the consent of the other side to its use. If consent is refused, ascertain whether the judge will entertain a motion allowing you to use the exhibit in your opening address. 6  Anticipate weaknesses What are the weaknesses in your case? What is the probability of the other side raising these weaknesses during the trial? Having made this assessment, you are faced with a difficult decision –​should the weaknesses be volunteered, and if so, when and how should they be volunteered. There is obviously no point in raising a weakness that will not be raised at trial. However, weaknesses in your case are the other side’s strengths. If a weakness is apparent and known to the other side, it should be volunteered as early as possible –​in the opening address. Failure to volunteer the weakness at an early date provides the other side with the opportunity to raise it first, with twice the impact. Further, failure to volunteer a weakness has a negative impact on an advocate’s credibility. Social science research in the United States suggests that “drawing the sting” by volunteering a weakness enhances an advocate’s credibility. Credibility is best maintained by being candid, which includes honestly disclosing weaknesses in your opening address and dealing with them effectively in closing argument. How should a weakness be volunteered? The key is to mention it without emphasis, present it in its least damaging light and attempt to blend it unobtrusively into the format of the story. Example 3.8 Your client is the defendant medical practitioner in a medical negligence action. He was called to the hospital to attend on the plaintiff, who was in labour. The baby died shortly after birth, and the plaintiff suffered severe haemorrhaging. Your client has been sued for medical malpractice. You are aware that your client consumed two alcoholic cocktails before attending to the plaintiff. This fact has not yet come out in evidence; however, you anticipate that plaintiff’s counsel intends to put this fact to the defendant in cross-​examination. Your opening address could include the following:



54

On Friday 17 December 2017, Dr Paul Jacobs went to work as usual at the Princess Diana Hospital, where he has been a consultant for the past eleven years. At 4.00 pm, when his shift finished, Dr Jacobs played squash with his friend and colleague, Dr Sheila Wong, and then both he and Dr Wong attended the Friends of Princess Diana Hospital Christmas party, where they each had a couple of cocktails. After approximately one hour, Dr Jacobs left the party, purchased a paper at the newsagents, and then drove home for dinner. As he walked through the door of his house he received a text on his mobile phone telling him that he was required at the hospital. He immediately turned around and drove back to the hospital. …

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7  Request a verdict Jurors want to know what you want from them. The same applies to judges in a judge alone trial. In your opening address, let them know what constitutes a favourable verdict from your point of view. Too many inexperienced advocates tell the jury what happened without ever including in the opening address a specific request for a verdict. Example 3.9 Members of the jury, at the end of the trial we will ask that you return the only verdict that the evidence supports –​a verdict that the defendant is guilty of murder.  

Example 3.10 Based on the evidence, we will ask that you find the defendant responsible for the injuries suffered by Carolyn Ridge. We also will ask that you compensate Ms Ridge –​fully and completely –​for what she has lost, for what she has suf fered and for the costs of the care she will require for the rest of her life.

3.3  PROCEDURAL AND EVIDENTIARY CONSIDERATIONS Procedural and evidentiary considerations also play a significant role in the structure and delivery of your opening address. 1  Do not be argumentative It is improper to include argument in an opening address. Avoiding argument in your opening is critical in jury trials, but applies equally to trials before a judge alone. Your credibility as an advocate is not enhanced when a judge interrupts your opening address to warn you not to cross the line between fact and argument. Including argument in the opening address also is poor advocacy because it is invariably unpersuasive. You will have an opportunity to argue your case in closing, after all of the evidence has been presented. There is no need to argue your case before the jury (or judge) has the means by which to evaluate the validity of your propositions. Build your case “brick by brick”. Further, good facts which create memorable mental pictures have a greater impact on the jury. For example, rather than describing someone as “very drunk” (argumentative), it is better to describe the person as “crawling on all fours after drinking eight pints of beer”. Rather than describing someone’s driving as “reckless” (argumentative), it is better to describe it as “driving her V8 sports car at 80 km per hour through a 40 km per hour school zone”.

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An opening address should be restricted to the facts that meet this test: if a witness you intend to call will testify to a fact, it can be included in the opening address. Closing arguments, discussed in Chapter 7, incorporate the evidence led in the trial, the conclusions you want the jury to reach and other matters such as the credibility of witnesses, inferences you want the jury to draw and so on. The scope of the closing argument, therefore, is much broader than the scope of the opening address. It is often difficult to determine whether your statement of the facts is argumentative. Judges differ in their interpretation of what constitutes argument. The safest approach is to eliminate anything from your address that may be objectionable. It is essential that your opening address is delivered smoothly, without interruption. Example 3.11 Proper

Improper

The defendant was travelling at a speed of 80 km per hour in a 40 km per hour zone.

The defendant was racing his car at a speed of 80 km per hour, endangering the lives of the children playing in the vicinity of the 40 km per hour zone.

When the defendant’s car left the road, the weather conditions were clear and dry and the stretch of road on which the defendant was driving was straight.

The defendant negligently drove off the road.

Clara Zodar wrestled the handgun away from the defendant, who weighs 95 kg.  

Clara Zodar’s evidence concerning how she took the handgun away from the defendant is convincing and credible.

2  Do not state personal opinions Advocates should not, at any stage of the trial, state their personal opinion concerning the facts, the credibility of witnesses or the legal argument. You appear in court as an advocate for your client, therefore, your personal opinions are of no interest to the judge or jury. The inclusion in your opening address of such phrases as, “I believe”, “we believe”, “I know”, “I think” or “in my opinion”, is improper, unpersuasive and objectionable. If you feel that such a preface to your statement is necessary –​which, it should be noted, it generally is not –​the phrase, “we submit”, or, “it is submitted”, should be used. 3  Do not overstate the evidence Overstating the facts in your opening address will seriously damage your case. The jury will resent your misrepresentations and the other side, in the course of its closing argument, will highlight each representation on which 56

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you failed to deliver. It is prudent, therefore, to err on the side of caution and, when in doubt, understate your case. The jury will be pleasantly surprised to learn that your case is stronger than they had anticipated. This is not to say that you should refrain from opening an important and material part of your case. On the contrary, failure to state the grounds on which you intend to rely, the general nature of the evidence you intend to adduce and the witnesses you are likely to call may, as a result of the serious prejudice occasioned to the other side, result in the discharge of the jury and an award of costs against your client.2 At the very least, it may provide the other side with an excuse for failing to comply with the rule in Browne v Dunn.3 4  Waiving the right to make an opening address In civil and criminal cases, each party has a right to make an opening address. This right can be waived with the court’s leave and the other side’s consent. It is difficult to envision a situation, other than that noted below, where an advocate –​particularly counsel for the plaintiff or Crown –​would think it advantageous to waive the right to make an opening address. An important part of the trial process is the determination of which version of a disputed set of facts should be accepted as the correct version. An effective opening address provides you with the first opportunity to persuade the jury that your client’s version of the facts and relevant issues should be accepted. You should take advantage of this opportunity. Further, the court and the counsel for the other side have a right to know the general nature of the evidence you intend to adduce and what witnesses you are likely to call. Therefore, either the court or counsel for the other side may insist that you open your case.4 Defence counsel may have reason to waive the right to make an opening address. If, at the close of the plaintiff’s or Crown’s case, a decision has been made to move for a non-​suit in a civil case, or a discharge on the basis that there is no case to answer in a criminal case, defence counsel might elect to waive the right to make an opening address. 5  Defence reply to prosecution opening In serious criminal cases, legislation in New South Wales, Victoria, South Australia, Tasmania and Western Australia allows defence counsel to make a reply to the opening address made by the prosecution.5 Such a reply is

2 3 4 5

See Valeriani v Gibson [1963] NSWLR 1430. (1893) 6 R 67. The rule in Browne v Dunn (1893) 6 R 67 is discussed in greater detail in Chapter 6. Scott Pools Pty Ltd and Scott v McCarthy (1974) 8 SASR 539. See Criminal Procedure Act 1986 (NSW) s 159(1) and (2); Criminal Procedure Act 2009 (Vic) s 225; Criminal Law Consolidation Act 1935 (SA) s 288A; Criminal Code (Tas) s 371(ab); Criminal Procedure Act 2004 (WA) s 143. 57

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made immediately after the prosecution’s opening address. In the remaining jurisdictions, whether such a reply is allowed, and its scope, is in the discretion of the trial judge.6 Whether such a reply is made is in the discretion of the accused; however, it is difficult to see why an opportunity to speak directly to the jury at an early stage of the trial would be waived. The exception may be in Western Australia where the Criminal Procedure Act 2004 (WA) s 143 requires the accused to elect either to give an opening immediately after the prosecution’s opening or after the close of the prosecution’s case. Unlike the other jurisdictions, in Western Australia, the accused is not entitled to both a reply to the prosecution’s case and an opening address after all the prosecution’s evidence has been presented. Defence counsel’s reply to the prosecution’s opening is not the same as the opening address of the defence at the close of the prosecution’s case. The purpose of the defence reply is to identify for the benefit of the jury and judge what the defence believes are the key issues in the trial, and to outline the defences on which the accused will rely. In the words of Howie J in R v MM (2004) 145 A Crim R 148 at [139]:  It is not an opportunity for defence counsel to embark upon a dissertation on the onus and standard of proof, or the functions of judge and jury, or to anticipate the directions or warnings to be given by the trial judge, or to urge upon the jury the way that they should assess the evidence of a witness to be called in the Crown case.

A reply is not an opportunity to provide a preview of the defence’s closing address. To do so will invariably be argumentative which, at this early stage of the trial, is unpersuasive. More importantly, it also is improper and may result in the discharge of the jury.7 6  Advocate’s position and delivery In Australia, unlike the United States, advocates must do their best to maximise their presence before the jury from a fixed position behind the bar table. Advocates are not accorded the privilege of positioning themselves directly in front of the jury. When making your opening address, keep in mind the general principles of delivery that apply to all phases of the trial. Guard against mannerisms that distract the jury’s attention; for example, keep your hands out of your pockets, avoid playing with coins, pens or papers, and ensure that your movement behind the bar table emphasises what you are saying. Avoid reading from notes. Adequate preparation should obviate the need to rely on notes. This, in turn, allows you to maintain eye contact with the jury. Advocates who can deliver their opening address without notes

6 7 58

For example, see R v Oulds (2014) 244 A Crim R 443 at [69]. For example, see R v Rogerson (No 8) [2015] NSWSC 1036.

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exude confidence and have a decided advantage over advocates who are forced to rely on notes. If you must use notes, reduce the outline of your opening address to one sheet of paper which contains only the key topics and ideas you need to convey to the jury.

3.4  STRUCTURE OF AN OPENING ADDRESS What follows is an outline which will assist you in organising your opening address. This outline need not, and should not, be adhered to strictly. You should always structure your opening address to fit the facts of the particular case. Following an outline, however, will force you to prepare, organise and deliver your opening address in a way that logically and clearly sets out the evidence on which you intend to rely. The suggested structure is: 1 introduction; 2

parties and witnesses;

3 scene; 4 detailing; 5 issue; 6

how it happened;

7

basis or absence of liability or guilt;

8

refutation of anticipated defences (plaintiff or Crown only);

9

damages (civil cases only); and

10

conclusion.

This outline can, and should, be modified to meet the unique facts of each case and your personality and style, as well as that of counsel for the other side. Although the checklist is advisory only, the need for preparation and organisation is not. Delivering an opening address “off the top of your head” is a disservice to your client, and is usually disastrous. 1 Introduction The beginning of your opening address is your first opportunity to speak directly with the jury. It is the first chance to impress them with the merits of your case and with your abilities as an advocate. As has been noted in Section 3.2, within the first three minutes or so you should be able to achieve three objectives: • present your themes; • present a brief summary of the facts supporting your case; and • demonstrate your enthusiasm, confidence and integrity through your

delivery and demeanour.

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Example 3.12 Plaintiff (medical negligence) On 3 June 2017 Rita Dixon went in for surgery for what the defendant told her was a “routine operation”. Three days later her left leg was amputated at the knee. My name is Doris Cheong, counsel for Mrs Dixon, and I want to take this opportunity to explain how this tragedy occurred. For a number of years Mrs Dixon had been suffering from a condition commonly referred to as varicose veins. On 8 March 2017, at the suggestion of her friend, Mary Johnson, Rita Dixon went to see the defendant. She was nervous –​so nervous that she asked Mary Johnson to come with her. When she arrived at the defendant’s surgery the waiting room was packed with patients. After waiting for more than an hour, Rita Dixon and Mary Johnson finally met with the defendant. What occurred during this brief consultation is critical. The defendant looked at Rita Dixon’s left leg, then told her that an operation known as a phlebectomy, or “vein stripping”, would take care of the problem. Both Rita Dixon and Mary Johnson will tell you that, when asked by Mrs Dixon whether there were any risks associated with the surgery, the defendant replied that such operations were “routine” and that there was nothing to worry about. Not satisfied with this explanation, Rita Dixon asked whether there was any chance that complications could arise from the surgery. The defendant repeated that such operations were routine, and then stated that he had other patients to see and that his assistant would make the necessary arrangements with the hospital. The whole consultation took no more than five minutes. When you put billings before people, mistakes happen… Defendant People hear what they want to hear and this case is no exception. You already know that the initial consultation which took place on 8 March 2017 is critical. Dr Jacks will tell you that he did tell the plaintiff that a vein stripping operation is routine. He went on to explain, however, that, as with any surgery, complications can arise. Dr Jacks stated specifically that one such complication is a condition known as endothelial arteritis, a relatively rare condition which can result in the amputation of the limb. Following this explanation the plaintiff signed the consent marked as Exhibit 2, and instructed him to proceed with the operation.  

Does the use of themes result in an opening address that crosses the line between fact and argument? The answer is “possibly” and therefore the inclusion of themes in your opening address must be approached with caution. If your themes are based on direct inferences from the evidence you intend to adduce, they usually will be allowed. However, you want to avoid interruption during your opening address. If the trial judge has a reputation for allowing very little latitude, or counsel for the other side has a reputation for making technical objections, you may have to modify, or even leave out, themes from your opening address. 2  Parties and witnesses The next part of your opening address should, to the extent appropriate given the facts and nature of your case, introduce the essential characters. As the plaintiff’s counsel in a medical negligence case, for example, your description of the plaintiff should include a pre-​ treatment and 60

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post-​treatment profile. What was the plaintiff like at work, home and play before the medical treatment? What is the plaintiff like now? Humanise the plaintiff in the mind of the jury. Exhibits, such as pre-​treatment videos of the plaintiff, can be particularly effective in this regard. In cases involving artificial entities such as corporations, consider using a chart that highlights where key witnesses “fit” within the organisation. The credibility of your witnesses is determined not only by what they say and how they say it, but also by showing who they are. In your opening address, you should illustrate to the jury that your witnesses are the type of people who can accurately and honestly relate a past event. In criminal proceedings if the witness is the defendant, this type of discussion may put in issue the defendant’s character,8 therefore, it is essential that the defendant’s background is not open to attack on character grounds. It should be noted that, if you discuss a witness’s background in your opening address, you will, during the course of the trial, have to lead evidence to support the information imparted in the course of that discussion. A discussion of a witness’s background, therefore, may commit you to calling that witness at trial. Example 3.13 Plaintiff During the course of this trial there are a number of persons whose names will be frequently mentioned. I want to tell you a little about them. First there is the plaintiff, Sally Smith. In addition to being a petroleum engineer, Sally Smith is a mother of two children aged 10 and 12. Before obtaining medical treatment, Ms Smith enjoyed life to the full. She was the president of the Robina Rotary Club, appeared in a number of amateur theatre productions produced by a local theatre group of which she was the Treasurer, and was an avid golfer. Sally Smith managed to enjoy these activities while at the same time pursuing her full-​time career as a professional engineer, mother and wife. Let’s look at Sally Smith’s life today. As a result of the medical treatment, Sally Smith is a tetraplegic, permanently confined to a wheelchair. She requires full-​time nursing care and suffers from constant pain across her shoulders and neck… Defendant The defendant, Princess Katherine Hospital, is a public hospital which has been servicing the Gold Coast and surrounding community for over 60 years. The hospital, and its staff of medical practitioners, nurses and support staff, is the  only public health care facility within a 100 km radius…

8

For example, see s 110 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 61

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3 Scene In cases where the scene of the occurrence is important, as it is in most criminal cases, your description must enable the jury to form a clear mental picture of that scene. Clarity and method are critical. If the jury is unable to visualise the scene you are describing, this part of your opening address will make little sense and might frustrate and confuse the jury. How can you achieve the required clarity? We have all been given directions to a friend’s house or a colleague’s office building. We know that complex compass directions are usually of little help. Instead, it is most effective to ask a jury to visualise a scene as best they can, assume that they are facing a given direction and then slowly “walk” them through it. Proceed slowly and provide the minimum amount of detail necessary to enable the jury to formulate an accurate mental picture. The use of exhibits, such as a diagram, may be of assistance, keeping in mind the comments in Section 3.2 on the use of exhibits in an opening address. In particular, remember that exhibits divert the jury’s focus away from what you are saying. It is necessary, therefore, to ensure that the exhibit will assist the jury to visualise the scene. Once you have finished referring to the exhibit, move it out of sight. By the time counsel for the defendant is called upon to make his or her opening address, the scene will have been discussed in the plaintiff’s opening address, in the plaintiff’s examination-​in-​chief and in the defendant’s cross-​examination of the plaintiff’s witnesses. It will usually not be necessary, therefore, for defendant’s counsel to refer to it. If an important part of the description has not yet been brought out in evidence, however, or a particular aspect of the scene is important to the defendant’s case and therefore requires emphasis, counsel for the defendant will want to include a reference to the scene in his or her opening address. Example 3.14 Plaintiff The accident occurred at the intersection of Clark Street and Division Street. Clark Street is a one-​way street consisting of three lanes. Picture yourself in a vehicle travelling, in the centre lane, towards the intersection with Division Street. The time is 3.45 pm on a Wednesday. There are parking lanes on both sides of Clark Street which, at this time of day, are always full. Clark Street is bordered on both sides by commercial buildings approximately three storeys high. Division Street is a four-​lane street that intersects at right angles with Clark Street. It carries two-​way traffic and, like Clark Street, is bordered by commercial buildings. The buildings surrounding the intersection obscure your vision so that you cannot see the traffic coming down Division Street until you  have entered the intersection.

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Example 3.15 Defendant Counsel for the plaintiff has described the scene of the accident to you, but she  failed to mention that … It is important to keep in mind that…

4 Detailing In many cases the specific details of an instrument (for example, a murder weapon or a defective product), or of the weather conditions, the date or the time of an incident, form an important part of your case. These details should be described using the same visualisation technique used to describe scenes. Example 3.16 The bus in question was 15 m long, which was approximately the length of three Toyota Landcruisers, and had a front and a rear exit located on the left hand side. Each exit had three steps, and there were handrails on both sides of each exit.  

Example 3.17 The life insurance policy has a face value of $500,000. It contains a double indemnity clause which stipulates that, in the event of the insured’s accidental death, the beneficiaries receive the sum of $1,000,000 from the defendant insur ance company.

Example 3.18 The robbery occurred at 11.45 pm on 21 January 2018. The night was clear and the moon was full. The victim, Joseph Laroque, was standing at the intersection of King Street and Hay Street when the robbery occurred. There was a street light directly overhead, and additional street lights were located every 20 m in each direction. Additional lighting was provided by the neon signs which  illuminated the shopfronts lining both sides of the street.

Example 3.19 This [holding up the lighter] is the cigarette lighter that caused the fire. Notice that the stem, which acts like a match, pulls out of the top [demonstrating]. The metal stand on the bottom unscrews [demonstrating], and here is where you  put the two batteries that power the lighter.

5 Issue In the opening address, counsel for the defendant should forcefully, directly and with conviction, put into issue any disputed material facts. Your aim is to move the jury away from an acceptance of the other side’s version of the facts, and convince them to keep an open mind or, preferably, to accept your version. 63

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6  How it happened Up to this point you have established a foundation on which to substantiate your version of how the event occurred. The stage has been set. The parties, scene, weather, date and time have all been detailed. The jury has a mental picture against which you can now place your description of how the event happened. You should now re-​create the event; make it come alive. You are competing with the other side to create a more plausible explanation of how the event occurred. Your goal is to persuade the jury that the event should be visualised according to your side’s version of the facts. If this goal is achieved, you are well on your way to a favourable verdict. To achieve this goal, your description of the event must progress logically, be simply yet forcefully stated and be paced to facilitate effortless comprehension. Example 3.20 Plaintiff What happened on the day this tragedy occurred? Derek Wiseman was travelling in the centre lane towards the intersection of Clark Street and Division Street. He was driving slowly, at about 40 kph, and was looking out for other cars and pedestrians. He could see the intersection of Division Street ahead. The light was green for the Clark Street traffic. There were no cars in the intersection. Mr Wiseman slowed down as he approached the intersection and could see no oncoming traffic or pedestrians. When Mr Wiseman was halfway through the intersection another car came from his left down Division Street without warning and slammed into the side of his car. Defendant What really happened at the intersection? Olga Dagenait was travelling on Division Street towards the intersection with Clark Street. As she approached the intersection the light was red for Division Street traffic. Ms Dagenait took her foot off of the accelerator and began to slow down. Just before she reached the intersection the light turned green. Ms Dagenait took her foot off of the brake, put it back on the accelerator and entered the intersection. Suddenly, another car shot through the intersection late, directly in front of Olga Dagenait’s car. Ms Dagenait slammed on her brakes, but it was too late. The front of her car  struck the side of the other car.

Example 3.21 Crown Suddenly the accused grabbed Mr Ritter from behind, held a knife to his throat and hissed into his ear: “If you do anything stupid I’ll slit your throat!”. The accused then demanded that Mr Ritter empty his pockets and lie face-​down on the footpath. A sharp pain to the back of his head is the last thing Roy Ritter recalls. Defendant At the time the victim was being robbed, Peter Pond was three blocks away walking home from a film. Suddenly, a police car pulled up next to him with lights flashing. Two officers jumped out of the car and, with guns drawn, ordered Mr Pond to stand facing a wall. He was told that he was under arrest for robbery. That, members of the jury, was the first time Peter Pond was aware  that a robbery had occurred. 64

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7  Basis or absence of liability or guilt This should be the emotional peak of your opening address. It should follow your recitation of the material facts. You should summarise the facts which, if your version is accepted by the jury, will inevitably lead to the conclusion that your client is entitled to a favourable verdict. Example 3.22 Plaintiff Members of the jury, the evidence will show that the defendant did not advise Mrs Dixon of the serious complications that can arise from this surgery. This failure has cost Rita Dixon her left leg. Defendant Dr Jacks gave the plaintiff a full and detailed explanation of the complications that could arise from the operation. Following this explanation, the plaintiff expressly instructed Dr Jacks to proceed with the operation, an operation he  performed properly and competently.

Example 3.23 Prosecutions The evidence will prove beyond a reasonable doubt that the accused, while armed with a knife, took $75 from the victim, Roy Ritter. Defendant The evidence will show that Peter Pond did not rob Mr Ritter. At the time the  robbery occurred Peter Pond was walking home from the Palace cinema.

A word of caution: if you intend to deny the other side’s version of the facts directly, be confident that your version of the disputed facts is likely to prevail. Further, under the rule in Browne v Dunn,9 you must put your version of the disputed facts to the witnesses whose evidence you will be attempting to impugn. Failure to comply with the rule may preclude you from leading the contradictory evidence.10 The rule in Browne v Dunn is discussed in detail in Chapter 6. 8  Refutation of anticipated defences (plaintiff or prosecution only) If you are acting for the plaintiff or the prosecution, you should weave into your opening address facts designed to rebut the defence you foresee will be raised by the other side. This must be handled carefully. The defendant in a

9 10

(1893) 6 R 67. Under s 46 of the Evidence Act 1995 (Cth), Evidence Act 2011 (ACT); Evidence Act 1995 (NSW), Evidence (National Uniform Legislation) Act 2011 (NT), Evidence Act 2001 (Tas) and Evidence Act 2008 (Vic), the preferred method to remedy a breach of the rule in Browne v Dunn (1893) 6 R 67 is to recall the witness. This provision does not abrogate the rule in uniform Evidence Act jurisdictions. It merely prescribes a preferred remedy. 65

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civil case and the accused in a criminal case generally do not have the legal burden of proof and are under no obligation to call evidence. Therefore, you cannot allude to evidence you expect the defence to produce. If you do make such a reference and the defence does not call such evidence, there may be grounds for a mistrial. You may refer, however, to evidence you will produce that will rebut the anticipated defence. Example 3.24 Civil Plaintiff Denise Wiseman was driving at a speed of 40 kph in a 50 kph zone. She kept a safe distance from the car in front of her, and was watching other traffic near her. She was also looking at the traffic light at the upcoming intersection with Bagot Road.  [This rebuts the anticipated defence of contributory negligence.]

Example 3.25 Criminal Prosecution The victim, Con Sklar, did not know the defendant and he was not armed. He was simply walking to the bar to get another beer for himself and his girlfriend when he was hit from behind by the defendant.  [This rebuts the anticipated defence of self-​defence.]

9  Damages (civil cases only) Damages are a critical component of a civil claim, yet often counsel fail to address this issue adequately. For example, in a medical negligence case you should, in your opening address, give an explanation of the damages suffered by the plaintiff. This explanation should include the symptoms, diagnosis, immediate treatment, prognosis and conclusion. It also should include the items which fall into the recoverable heads of damage; namely, special damages, pecuniary loss and non-​pecuniary loss. If your client is also seeking aggravated or exemplary damages, the factual foundation to support this claim also should be covered. Counsel for the defence should not belittle the damages suffered by the plaintiff. If the defendant is denying liability, however, or disputing the quantum of damages, this position should be advanced forcefully. Generally, a discussion of the quantum of damages being sought is best left for your closing argument. If you decide to include a discussion of the quantum in your opening address, note that it has been held that it is an undesirable practice to state a specific quantum to the jury if you are seeking non-​pecuniary damages (see Section 7.4). This view is based on the rationale that counsel’s opinion is irrelevant and may unduly influence the 66

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jury.11 Further, it has been suggested that allowing counsel to put specific figures to the jury: 1

may cause embarrassment to the judge, who may have to make a comment to the jury on the figure suggested;

2

will be unhelpful because plaintiffs invariably ask for a high figure and defendants ask for a low figure;

3

usurps the function of the jury; and

4

may give a hint of the amounts that have been offered in settlement or paid into court.12

The position is different if the case is not being tried before a jury. If the case is being heard by a judge alone, it is not objectionable for counsel to suggest to the judge a figure that should be awarded for non-​pecuniary loss.13 Example 3.26 Plaintiff –​explanation of damages

11 12 13

What injuries has Rita Dixon suffered as a result of the defendant’s failure to warn her of the risks associated with the vein-​stripping operation?

 

Approximately two days after the operation, Mrs Dixon complained of severe pain in her left foot and the attending nurse noted that her foot was pale and cold.

Symptoms

The condition was diagnosed as endothelial arteritis, which is an untreatable complication arising from the surgery. Mrs Dixon’s foot and lower leg could not be saved and her left leg was amputated just below the knee. She experiences severe phantom pain and has developed painful ulcers on her stump where her stump comes in contact with her artificial leg.

Diagnosis and immediate treatment

A vascular surgeon, Dr Louise Gaul, will tell you that Mrs Dixon will experience the phantom pain for at least two more years, and that the ulcerations on her stump will be a recurring problem.

Further treatment and prognosis

As a result of this tragedy, Rita Dixon has spent a total of six weeks in hospital. She has incurred substantial hospital bills and has been rendered completely unemployable. She can no longer participate in the activities she enjoyed before the operation, such as bushwalking with her children and performing in amateur theatrical productions.

Conclusion

See Cunningham v Australian Woollen Mills Pty Ltd (1944) 45 SR (NSW) 114 at 118; aff’d Australian Woollen Mills Pty Ltd v Cunningham (1945) 19 ALJR 23. H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, Butterworths, 2002), [11.7.1]. H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, Butterworths, 2002), [11.7.6]. 67

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Defendant –​denial of liability The loss of a limb is a terrible thing, and the plaintiff’s desire to blame the surgeon who performed the operation is understandable. The plaintiff, however, was told by Dr Jacks of the risks associated with the surgery. While Dr Jacks did tell the plaintiff that such operations are routine, he also told her that complications can arise from this type of surgery. He actually went a step further and told the plaintiff that one such complication is endothelial arteritis, which is the complication that developed in this case. At the end of the consultation, and after signing the consent form which is Exhibit 2, the plaintiff told Dr Jacks that  she wanted to have the operation.

10 Conclusion Counsel for both sides should conclude their opening addresses by simply, succinctly and forcefully advising the jury that the evidence will support a favourable verdict for their client. In a civil case, the conclusion should include a request for damages. Example 3.27 Civil Plaintiff Members of the jury, after all of the evidence has been presented we will ask you to award lawful compensation in the form of damages to Rita Dixon. We will ask that Mrs Dixon be compensated for the pain and suffering and loss of life’s amenities that she has been forced to endure, together with compensation for the financial loss she has suffered. Defendant Members of the jury, after all of the evidence has been presented we will ask  that you dismiss the plaintiff’s claim against Dr Robert Jacks.

3.5 EXAMPLES Example 3.28 Criminal case R v Sylvester Strong The accused, Sylvester Strong, has been charged with murdering John Williams on 24 January 2018. The prosecution claims that the shooting was in retaliation for an earlier incident. The defence is based on self-​defence. Opening address –​prosecution On 24 January 2018, the defendant aimed a Introduction handgun at John Williams and fired three shots. The first shot hit Mr Williams in the arm, the second shot hit him in the back and the third shot, the fatal bullet, pierced Mr Williams’s lung and heart, killing him instantly. Members of the jury, the defendant is charged with the murder of John Williams. My name is Fay Sing, and I will be prosecuting this case on behalf of the Crown. 68

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This case involves two feuding families –​the Parties and witnesses Strongs and the Williams. The members of each Consider using a chart which family you’ll be hearing about include: shows the relevant members • the defendant, Sylvester Strong, who shot of each family and killed the victim with three bullets fired from a handgun; •  Rosie Garrett, the defendant’s mother; and •  Clarence Strong, the defendant’s brother. On the Williams’ side you have:

 

• John Williams, the victim, who was 23 years old when he was killed by the defendant; and •  George Williams, the victim’s brother. Before I tell you what happened, let me set the scene. Picture Brisbane at 3:30 in the afternoon on a clear, sunny, summer’s day. The shooting took place in Bloomingdale Street, in West Brisbane. Bloomingdale Street is a typical, two-​ lane, inner-​city residential street. Queenslander houses, many in need of repair, line each side of the street. Rosie Garrett lives in one such house approximately half-​ way down the length of the street. Most of what happened on the afternoon of 24 January 2018 occurred on the street in front of Rosie Garrett’s house. The next street over is Denison Street. The victim, John Williams, and his brother George Williams live on this street. It, like Bloomingdale Street, is a residential street. Running perpendicular to both Bloomingdale Street and Denison Street is Winnebago Avenue. So, why did the defendant kill John Williams on 24 January 2018?

Scene and detailing The location of the crime is, as in most criminal cases, an important point. It should be described in sufficient detail to enable the jury to formulate a vivid mental picture of the scene so that when the action evidence is described, it will make more sense. In short, set the stage before describing the action.

To understand what happened on 24 January we have to go back to the previous day, 23 January. On that day George and John Williams were walking along Bloomingdale Street. When they reached the front of Rosie Garrett’s house they were forced to stop because two cars were blocking the footpath. Rosie Garrett was on the veranda at the front of her house. John Williams said to Rosie Garrett, “Get your stupid vehicles off the footpath you ignorant slag”. Rosie Garrett responded with an obscene gesture with her finger. John Williams responded with a similar gesture and he and George Williams moved around the cars and continued walking down the street.

How it happened The conduct of the victim on the day preceding the shooting is a weakness the defence is likely to raise. Hence, it is prudent to deal with this weakness in the opening.

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The next day, 24 January, the feud escalated. John and George Williams were again walking down Bloomingdale Street, on the other side of the street from Rosie Garrett’s house. Rosie Garrett was on her veranda with her two sons, the defendant and Clarence Strong. On seeing John and George Williams, the defendant and Clarence Strong stood up. The defendant yelled at John Williams to stay put as he wanted to talk to him. The defendant and Clarence Strong then ran across the street to where John and George Williams were standing. The defendant asked Rosie Garrett whether John Williams was the one who had sworn at her the previous day. When she indicated that it was him, the defendant told John Williams to apologise or face the consequences. To protect himself and his brother, George Williams picked up a cricket bat that was lying nearby. Clarence Strong then took a handgun from his pocket and fired two shots into the air. George Williams dived to the ground, and John Williams ran across the street. The defendant took the gun from Clarence Strong, aimed it at John Williams, and shot him once through the arm. The defendant then re-​aimed and fired a second shot that hit John Williams in the back. Williams fell to the ground face down. The defendant then walked up, stood over him, aimed, and fired a third shot into his back. This third shot pierced John Williams’s heart and lung, killing him instantly.

Note how the action is described in language designed to assist the jury to visualise the event.

George Williams, having just seen his brother gunned down, jumped up and ran over to where the defendant was standing. He hit the defendant with the cricket bat, first in the arm in an attempt to dislodge the handgun, and then in the stomach and legs in an attempt to subdue him. It was then that the police arrived.

Refutation defences

At the end of this trial we will ask that you find Conclusion the defendant, Sylvester Strong, guilty of the crime of murder.

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anticipated

The defence theory of the case is that the defendant feared for his life when the shots were fired, and that the shooting was in self-​defence. Since the defence may not call any evidence, the prosecutor cannot comment directly on the anticipated defence.

The defendant intentionally fired three shots Basis of guilt into an unarmed victim, John Williams. The third bullet, the fatal shot, entered John Williams’s back as he lay prostrate and helpless, face down, on the footpath.

[To the judge] May it please the Court.

of

 

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Opening address at the close of the prosecution’s case –​defence Members of the jury, the issue in this case is not about whether Sylvester Strong shot John Williams, but rather it’s about why he shot him. It was a case of kill or be killed. You will hear from the defendant, Sylvester Strong, and from Rosie Garrett and Clarence Strong that, far from being the aggressor, Sylvester Strong was defending himself from the deceased.

Introduction In the circumstances of this case, a decision has been made to commence by framing the issue in the way that is most advantageous to the defendant. Your theory of the case should be communicated to the jury at the earliest opportunity.

So what really happened? On the day before the shooting Rosie Garrett, a 62-​ year-​old mother and grandmother, was sitting on her veranda drinking iced-​ tea and listening to the radio. She was startled by two large men in singlets, rugby shorts, and thongs. One of the men, the deceased, whom Rosie Garrett had never met, started yelling at her from the street. He told her to get her cars off the footpath and called her an “ignorant slag”. He then made a threatening gesture with his hand, at which point Mrs Garrett went into the house and locked the door. She was so shaken that she remained indoors until her son, Sylvester Strong, returned home approximately two hours later.

What happened You will note that the events are narrated from the defence witnesses’ perspective. Also note that in the opening address for the defence, there is usually no need for counsel to identify him/​ herself. In Australia, the defence likely would have given a reply to the prosecution’s opening (see Section 3.3), therefore, the jury should already know defence counsel’s name.

The next day, at approximately 3:30 in the afternoon, the deceased and his brother returned. Mrs Garrett saw them coming down the street and alerted her two sons, Sylvester and Clarence, who were in the house watching television. The deceased and his brother stopped across the street from Rosie Garrett’s house. The deceased, not George Williams, had a cricket bat in his hand.

Note that on this important fact the evidence of the defence witnesses differs from that of the prosecution witnesses.

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Sylvester and Clarence Strong walked across to where the deceased and his brother were standing. Sylvester Strong asked his mother whether the deceased was the person who had sworn at her the previous day. When she indicated that it was, Sylvester Strong demanded that the deceased apologise. Before Sylvester Strong could say another word the deceased swung at him with the cricket bat but missed. In an attempt to protect his brother, Clarence Strong drew a handgun and fired two shots into the air. George Williams fell to the ground, but the deceased remained standing and began to swing wildly. Both Sylvester and Clarence Strong turned to run back to the house with the deceased in pursuit. The deceased struck Sylvester, first in the legs knocking him to the ground, and then in the face. In desperation, Sylvester Strong grabbed the gun from his brother. With blood streaming down his face he repeatedly fired the weapon. Three shots struck the deceased. The evidence will show that Sylvester Strong did what any other person would have done under the circumstances. He defended himself from the deceased’s violent attack.

Basis of not guilty verdict

Sylvester Strong did shoot the deceased, but it was a case of kill or be killed. Once you have carefully weighed all of the evidence, I will be asking you to return a verdict of not guilty.

Conclusion

[To   the judge] May it please the Court.

Example 3.29 Civil case Hi-​Temp Pty Ltd v Lindberg Furnace Company Pty Ltd In February 2017, Hi-​Temp, a company that treats metal products in furnaces, purchased an industrial vacuum furnace from the defendant manufacturer. On 31 December 2017, the furnace exploded. Hi-​Temp had the furnace repaired and now claims that a design defect in the furnace was the cause of the explosion. Lindberg maintains that the furnace was safely designed and manufactured.

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Opening address –​plaintiff If you market and sell a product, the buyer has a right to expect that the product will do the job. If the design is faulty and the purchaser suffers loss, the seller has to compensate the purchaser for that loss. The plaintiff, Hi-​ Temp, purchased a vacuum furnace from the defendant, Lindberg Furnace Company Pty Ltd, which as its name suggests is a furnace manufacturer. Hi-​ Temp paid for a furnace designed specifically for its business. It did not get what it paid for. What it got was a furnace that blew up. Members of the jury, my name is Jennifer Kaplan and I represent the plaintiff in this case, Hi-​Temp Pty Ltd.

Introduction

Hi-​ Temp is an Australian company with its head office in Melbourne, and branch offices in every Australian State and the Northern Territory. Hi-​ Temp’s business is unique. It treats various metal products using high-​ temperature vacuum furnaces. The defendant designs, manufactures, and sells such furnaces. In 2016, Hi-​Temp entered into negotiations with the defendant for the purchase of a vacuum furnace designed specifically for Hi-​Temp’s needs.

Parties

During the course of this trial you are going to be hearing a lot of evidence about vacuum furnaces. Vacuum furnaces come in all shapes and sizes, but they all have the same basic components. The central part is a lined vacuum chamber. A large hatch allows materials to be placed in the chamber. The furnace works through a series of pumps, valves and heating elements. After the materials are placed inside, all the air is removed from the furnace using the pumps and valves. The heating elements then heat whatever is in the furnace to the required temperature. This process tempers the metals, making them stronger and harder.

Detail

The case theory and case theme is stated early in the address.

This case centres on a mechanical device, therefore, it should be described in some detail. This would be an appropriate place to use a diagram or photograph.

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During the course of their negotiations, Hi-​   Temp told the defendant what it required the furnace for, and the type of work for which the furnace would be used. In particular, details were given to the defendant of the kind of heat that would be needed, and the specifications and requirements that the furnace would have to meet. The defendant indicated that their standard design furnace could be adjusted to meet Hi-​Temp’s specifications. An agreement was concluded in February 2017, and the defendant manufactured a furnace for Hi-​ Temp at a cost of $540,000.00. The furnace was delivered in August 2017, and went into operation the following month.

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Hi-​Temp meticulously maintained the furnace during the entire time it was in operation. If there were any maintenance or repair problems, they were dealt with immediately. On two occasions when a problem arose, the defendant’s maintenance division was consulted.

Anticipating defences

On 31 December 2017, the furnace was in operation. During the afternoon, turbine blades and other aircraft parts were being heated. The parts were heated to the standard temperature of 2,000 degrees Celsius and then cooled, and then heated again to a temperature of 1,800 degrees Celsius and then cooled. This routine procedure was repeated six times.

Scene

That evening, after a brief routine shutdown, the furnace was again loaded with turbine blades and activated. All of the instruments were set properly, and the parts were loaded properly. At approximately 10.30 pm, an explosion ripped off the top of the furnace, severely damaging the machine and destroying the parts which were being heated. A fire erupted in the furnace room. Fortunately the fire was quickly extinguished by the furnace operators.

What happened

The defence is that the explosion was caused by misuse or by faulty maintenance. This statement helps rebut that defence.

The defence is rebutted again.

The plaintiff’s major hurdle in this case is causation –​ how the alleged design defect caused the explosion. This part of the opening is structured to meet the applicable onus of proof –​that is the balance of probabilities. There is no need to claim that the plaintiff, through its expert, will be able to explain precisely why the explosion occurred.

Opening Addresses

Hi-​ Temp immediately called in a design engineer, Dr Nina Terroux, to determine the cause of the explosion. Dr Terroux will tell you that the furnace is designed in such a way that it pumps down from atmospheric pressure to a vacuum. The pressurised portion of the furnace is separated from the vacuum portion by a valve attached to the main vacuum pump. This valve is called a foreline valve. The furnace is manufactured and designed in such a way that this foreline valve can open between the atmospheric portion and the vacuum portion without first shutting down the furnace. If the foreline valve opens, cold, atmospheric air rushes into the vacuum chamber causing the air in the chamber to expand rapidly. This creates shock waves in the furnace, and can cause an explosion. According to Dr Terroux this is likely what happened on 31 December. The malfunctioning foreline valve caused the furnace to explode. The explosion could have been prevented if the defendant had simply incorporated a safety device into its manufacture of the foreline valve.

Basis of liability

As a result of the explosion, Hi-​Temp suffered substantial damages in the sum of $368,000. These damages include the:

Damages

• cost of repairing the furnace –​$160,000.00;

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The plaintiff’s theory of the case is stated simply –​if the valve had a safety lock, the explosion would not have occurred. The diagram or photograph should be used to augment the oral description of what happened.

The real issue in this case is liability, therefore damages are only mentioned briefly.

• cost of lost production –​8 weeks –​ $200,000.00; and • cost of replacing the parts which were destroyed in the explosion –​$8,000.00. As a result of the faulty design of the foreline valve, Hi-​Temp has suffered a loss of $368,000 plus related costs. At the end of the evidence, I will be asking you to find in favour of Hi-​ Temp Pty Ltd.

Conclusion

[To the judge] May it please the Court.

 

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Opening address –​defendant If you buy a product, you have to maintain it and you have to use it properly. If you do not, it will eventually stop working. If the product is a high temperature vacuum furnace, improper use and maintenance can have drastic consequences.

Introduction

Lindberg Furnace Company has been in the business of custom designing and manufacturing high temperature vacuum furnaces since 1947. While the company was originally established in Canada, it now has manufacturing plants world-​wide, including in Australia. The Australian plant custom designs, manufactures and sells vacuum furnaces throughout the Asia-​Pacific region. In the last year alone, over 3,200 furnaces were sold.

Parties

The furnace purchased by the plaintiff is a customised version of a standard design used by Lindberg world-​wide. While certain specifications were incorporated into the design to accommodate the plaintiff’s specific needs, the two sections of the furnace, and the foreline valve that seals off the sections, are common to all of Lindberg’s vacuum furnaces. All Lindberg furnaces are subjected to stringent testing and must meet strict industry standards. The furnace purchased by the plaintiff is no exception. The defendant will be calling two witnesses. Basis of non-​liability Lester Grange, Lindberg’s Australian Vice-​ President, Customer Service, will tell you that, on two occasions during the four months the plaintiff’s furnace was in operation, Lindberg’s maintenance personnel were called to the plaintiff’s factory. On the first occasion the heat settings on the furnace were set too high, causing the automatic shutdown to activate before the heating elements overheated. On the second occasion the chamber was filled beyond the recommended capacity, again triggering the automatic safety shutdown. Dr Marvin Horwinhouser, a design engineer retained by Lindberg, was not given access to the furnace after the explosion. From his review of the maintenance log, however, and from his review of Dr Terroux’s report entered as Exhibit 8, he concluided that whatever caused the furnace to explode on 31 December 2017, had nothing to do with a faulty foreline valve.

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Opening Addresses

Vacuum furnaces are sturdy pieces of equipment, but they have to be maintained and operated properly. If, as in this case, they are maintained and operated improperly, things can go wrong. This is unfortunate, but it is not the fault of the manufacturer. At the close of all the evidence we will ask that you dismiss the plaintiff’s claim and find in favour of the Lindberg Furnace Company.

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Conclusion Brevity is often an effective technique in an opening address. A short opening has the advantage of sounding confident.

[To   the judge] May it please the Court.

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CHAPTER 4

Examination-​in-​Chief

4.1 INTRODUCTION......................................................................................... 79 4.2 ELEMENTS.................................................................................................. 80 4.3 WITNESSES TO EVENTS............................................................................ 100 4.4 CONVERSATIONS AND STATEMENTS....................................................... 120 4.5 TELEPHONE CONVERSATIONS................................................................. 122 4.6 COMPUTER-​BASED CONVERSATIONS...................................................... 126 4.7 REFRESHING MEMORY.............................................................................. 127 4.8 BUSINESS RECORDS................................................................................. 130 4.9 LAY WITNESS OPINIONS.......................................................................... 133 4.10 EXPERT WITNESSES................................................................................... 135 4.11 CHARACTER WITNESSES........................................................................... 148 4.12 HOSTILE AND UNFAVOURABLE WITNESSES.............................................. 154 4.13 USING PRE-​TRIAL EVIDENCE..................................................................... 156 4.14 JUDICIAL NOTICE AND AGREED FACTS.................................................... 156 4.15 RE-​EXAMINATION.................................................................................... 158

4.1 INTRODUCTION Most trials are won on the strength of your case-​in-​chief, not on the weaknesses of the other side’s case. An examination-​in-​chief, therefore, that presents the facts of the case clearly, logically and forcefully will usually have a decisive effect on the outcome of the trial. The primary purpose of an examination-​in-​chief is to elicit an account of a witness’s observations and actions in a clear and logical progression which maximises the potential for the jury to understand, accept and remember that witness’s evidence. It is the jury’s opportunity to relive reality from your side’s perspective. The witness should show, not tell, the jury what happened so that the event is recreated for the jury’s benefit. The examination should involve the jurors in the witness’s story. All this must be done while keeping in mind the elements of the claims or defences, your theory of the case, your themes and labels, and the ever-​present requirement of simplicity and efficiency. This is difficult –​perhaps the most difficult aspect of the trial to do well –​and requires planning and witness preparation. The witness must remain the centre of attention throughout. You must ensure that your examination-​ in-​ chief is not conducted in a way that 79

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detracts from the witness’s testimony. Whether a witness is believed and remembered will depend on who that witness is (background), the testimony of that witness (content) and how the evidence is presented (demeanour), not on the brilliance of your oratory. If the jurors remember your witness as being particularly convincing, but are not sure who conducted the examination-​in-​chief, you have done a good job. This chapter will discuss the elements of an effective examination-​in-​ chief, and will review the types of examinations-​in-​chief that are repeatedly encountered in civil and criminal trials.

4.2 ELEMENTS A good examiner-​in-​chief is like a film director. A director, although limited by script and actors, can inject his or her own approach and perspective into a production. All the variables, such as the location of the cameras, the angle of the shots and the type of lenses, can be utilised to portray a scene. Panoramic shots, close-​ups, stop-​action frames and slow motion all form part of a good director’s repertoire. When the shooting is complete, the film can be edited. The final product, while still a film of a recognisable event, is a unique product of the director. Good trial counsel approach witness testimony in a similar way. They do much more than simply “get the story out”. They decide how they want to portray a particular event or scene, then make the technical decisions necessary to achieve the desired result. Unimportant matters are omitted (edited) or glossed over. Important matters are stressed, with the testimony zooming in on details, or slowing down the action at crucial moments. Critical matters are presented in stop-​action sequences. Good advocates see trials, and particularly examination-​ in-​ chief, as a creative art. Provided you stay within ethical and professional practice guidelines, you may present the witness’s story to the jury or judge in the way that is most advantageous to your side.1 The tools necessary to achieve this creative approach are analysed in this section. When planning your examination-​ in-​ chief, remember the following principles. 1  Keep it simple Inexperienced trial counsel often make two interrelated mistakes: they elicit too much unimportant or irrelevant evidence, and they spend too little time on the critical evidence the witness has to offer. The first error results in the jury being bored or, even worse, becoming confused about what is, or is not, important. It also exposes your witness to a more extensive cross-​examination by providing the other side with more points to pursue. 1 80

Ethical guidelines are discussed in detail in Chapter 9.

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Glossing over the critical evidence, on the other hand, results in a hazy, unfocused picture that the jury will fail to understand, or will misinterpret. Always remember that the jury is labouring under two handicaps: it has never heard the evidence before and it is receiving the information aurally –​ that is, through the ear. Any person’s ability to absorb and retain aural information is limited. Without a change of stimulus, a person’s attention span drops significantly after 15–​20 minutes. Therefore, keep the examination-​ in-​chief short and focused. Do not exacerbate the jurors’ difficulties by cluttering the examination with unimportant or irrelevant information and detail. Ascertain the critical part of the witness’s evidence and get to that evidence quickly, develop it sufficiently, then leave it. In short, keep your examination-​in-​chief simple. “Brevity is the better part of wisdom” is a theme that should govern your approach to examination-​in-​chief, and to the conduct of the trial in general. 2 Organisation Once you have identified the key points to be elicited during your witness’s examination-​in-​chief, organise these points in a logical sequence. This often, but not always, results in a chronological ordering of the evidence. The jurors’ comprehension of a series of events or other information is maximised if that evidence is presented in the same chronological sequence as it occurred. Jurors are used to hearing stories told chronologically and, therefore, will be more likely to grasp and retain the evidence if it is presented in this way. A chronological ordering of evidence will usually follow this sequence: a

witness background;

b

description of the scene;

c

description of the action;

d

exhibits to highlight the scene and action;

e

aftermath, including description of damages (if any); and

f

ending. Example 4.1

The witness, the complainant in an assault case, should usually present evidence in this sequence: a background; b a description of the scene where the assault occurred; c what occurred immediately before the assault; d details of the assault itself; e what occurred immediately after the assault; f medical treatment; g continued medical treatment; h present physical and psychological condition; and  i exhibits that highlight the main points. 81

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While a chronological narrative is the preferred method of organising a witness’s evidence-​in-​chief, it is not the only way such evidence can be structured. Some advocates prefer to present the most dramatic and crucial evidence early in the witness’s examination-​in-​chief when jurors are most alert and their powers of retention are at their height. Earlier events, and the foundation for the conclusions reached, can then be elicited from the witness. Where expert evidence is being led, for example, it sometimes may be preferable to have the expert present his or her conclusions and opinions before he or she lays the foundation for that evidence. This ensures that the expert’s opinions and conclusions are presented early in the examination when the jurors are most attentive. The foundation evidence, which may be lengthy, tedious and difficult to comprehend, can then follow. The way you organise the examination-​in-​chief of your witness is not governed by any hard and fast rules. You must analyse the nature of the evidence the witness will present, together with the strengths and weaknesses of the particular witness. You should then use your best judgment in deciding what method of organisation will maximise the effect of that witness’s testimony. 3  Develop the witness’s background When a witness enters the witness box, several questions will go through a juror’s mind: “Who is this witness?”, “Why is this witness here?” and “Why should I believe this witness?”. Consequently, your first task in examination-​in-​chief is to let the jury know who the witness is, why he or she is here, and why he or she should be believed. The same considerations apply when trying the case before a judge alone. The first two purposes, showing who the witness is and why he or she is here, can be disclosed quickly. Example 4.2 Q. Your full name is Jennifer Rose Smith? A. Yes. Q. Ms Smith, you were in Otto's Tavern on 16 June 2017? A. Yes. Q. You were there at 10:30 pm? A. Yes.  

The jury, as a result of previous testimony, is aware that a robbery occurred in Otto’s Tavern at 10.30 pm on 16 June 2017. These simple questions identify the witness and tell the jury why she is being called (eyewitness to the event). Further, assuming that these matters are not in dispute, the

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questions can be leading.2 If the matters (other than the witness’s name) are in dispute, non-​leading questions should be used. Showing the jury why the witness should be believed involves a number of elements. The jurors should be told a little bit about the witness so that they have an initial basis for assessing credibility. Developing some general background information can be accomplished through the use of a few short questions. Example 4.3 Q. Ms Jackson, you live at 54 Tarringa Avenue? A. Yes. Q. How long have you lived there? A. Twenty-​seven years. Q. Does anyone live with you? A. Yes, my husband and our two teenage girls. Q. Do you work outside the home? A. Yes, I’m an accountant in the credit department of Jewel Foods. Q. How long have you worked there?  A. Eight years.

With a few simple questions counsel has shown the jury that the witness is married, has children, is a long-​term resident of the community and holds a responsible job, all of which indicate that the witness is a mature, responsible person. To calm the witness down, you may wish to lead the witness through these introductory, non-​contentious matters. As has been noted above, provided the facts are introductory and not in dispute, you are entitled to ask leading questions. Example 4.4 Q. Mrs Jackson, you live at 54 Tarringa Avenue? A. Yes. Q. You have lived there for 27 years? A. Yes. Q. You live with your husband and two teenage girls? A. Yes. Q. You are an accountant in the credit department of Jewel Foods? A. Yes. Q. You have worked there for eight years? A. Yes.  

2

For example, see s 37(1)(b) and (d) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 83

Fundamentals of Trial Technique

Why the witness should be believed is always an issue, therefore, simple background questions should be put to all witnesses. Whether the background should be developed further depends on who the witness is, and the importance to your case of the witness’s evidence. Key witnesses must be three-​dimensional, so that the jurors acquire a deep understanding of who they are. For example, additional background facts should be elicited from the plaintiff and defendant in a civil case, the accused in a criminal case and experts in all cases. Showing why the witness should be believed also involves non-​verbal communication. The impact of non-​verbal communication begins when the witness first enters the courtroom, and continues until the witness leaves the courtroom. The importance of non-​verbal cues should not be underestimated. In some cases they may influence decision making more than the witness’s oral evidence. If jurors assess credibility based on the witness’s physical appearance and characteristics, in addition to the witness’s oral evidence, how does this impact on witness preparation? First, physical attractiveness is an important component of trustworthiness. While we cannot change the physical characteristics of witnesses, we can influence their attire and non-​verbal conduct in the courtroom. Ask the witness what they intend to wear to court. If, in your opinion, such attire is not appropriate, discuss this with the witness. Do not simply tell the witness to “dress appropriately”. You and the witness may have very different ideas about what constitutes “appropriate” courtroom attire. The clothes should make the witness feel comfortable, and convey the sense that the witness is taking the appearance in court seriously. For example, if the witness is male, a dark suit or blazer is often appropriate. If the witness never wears a suit and tie, however, consider more casual attire. For witnesses such as police officers, security guards and store personnel, wearing a work uniform often is appropriate, particularly if their testimony is related to their work. Secondly, take the time to orientate witnesses to the physical environment of the courthouse. To you, the courthouse is a second home; to most witnesses it is an impersonal and intimidating place. Show witnesses where they can sit before being called into the courtroom to give evidence. Physically walk witnesses through the steps leading up to commencement of questioning. In particular, show them where they will enter the courtroom, the path they will take to the witness box, where they will take the oath or affirmation, how they should stand or sit in the witness box and how they should maintain eye contact with the jury. Keep in mind that when you call for the witness and the court officer leaves the courtroom to bring the witness in, the jurors’ eyes are fixed on the courtroom door. The jurors will be watching and assessing the witness as he or she enters, walks to the witness box, takes the oath or affirmation and settles in to give evidence. These steps can take more than a minute, during which time 84

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the jurors are “sizing up” the witness before a word of evidence is uttered. Generally, you want your witnesses to appear confident, prepared to testify, comfortable in the witness role and bound by the oath or affirmation. 4  Orientation questions Jurors know nothing about a witness when that witness first enters the witness box. Orientation questions, therefore, are useful because they let the jurors know the nature of the evidence that will be elicited from the witness. Example 4.5 Q. Constable Rich, were you the first police officer to arrive at the Johnson house? A. Yes. Q. You arrested the accused? A. Yes. Q. You conducted an identification parade? A. Yes.  

Through the use of these orientation questions, jurors know what to expect and what not to expect. Since the questions relate to matters introductory to the witness’s evidence, and to matters not in dispute, they can be leading. 5  Transition questions Transition questions let the jurors, and the witness, know when the questioning on one topic has been completed and the questioning on another topic is about to begin. They are particularly useful when the witness’s evidence relates to a number of different topics. Transition questions are analogous to chapter headings in a book; they make the examination-​in-​chief easier to follow, and help to renew jurors’ interest in the evidence. Example 4.6 Q. Constable Rich, I’m now going to ask you questions about your arrival at the Johnson house. What time did you arrive there? Q. Ms Sing, I am going to ask you about your professional background. Q. Let’s turn now to the day you bought the machinery from Atlas Manufacturing Company. Q. Mr Goh, I'm now going to ask you questions about what occurred during the after noon of 15 June 2017.

6  Set the scene Chapter 3 stressed the importance of organising your opening address so that the description of the parties and scene, and other significant 85

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information, comes before the description of the event. The jury should have a mental picture of the scene before hearing about the action. In other words, the stage should be set before the action begins. Consider how good television shows introduce a scene. First, there is an “establishing shot”, which lets the viewers know in general terms where the later action will take place. The camera then zooms closer to the key places and objects that will be important to the story. The action then begins with the viewer orientated to key aspects of the surroundings. The same approach should be adopted in your examination-​in-​chief, particularly in the examinations of witnesses to an event. The reason for this is simple. If action evidence is to be presented effectively and dramatically, it must be delivered without interruption. Interrupting action evidence to present background information, such as a description of where the event took place, is disruptive and reduces the persuasive impact of your witness’s evidence. The use of exhibits such as photographs and diagrams also may disrupt and reduce the persuasive impact of action evidence. Generally, exhibits should be referred to after the action evidence is elicited. This allows the witness to clarify and highlight the important points in the oral evidence the jury has just heard.

a  Elicit visual descriptions You should elicit descriptive, visual narratives from your witness during examination-​in-​chief, particularly when he or she is giving evidence about an occurrence. The witness’s responses should paint a picture that the jury can visualise. This should be your goal, even if a witness’s evidence is supplemented with photographs, diagrams and charts. The evidence-​ in-​chief should be detailed enough to allow the jury to understand fully what occurred, but excessive detail should be avoided. Too much technical information clutters up the examination, detracts from the crucial points and bores the jury. Details such as the exact distances between objects, and the times at which events occurred, are often things that counsel for the other side, in his or her search for inconsistencies, will stress in cross-​ examination. When you elicit such detail during examination-​in-​chief, you often succeed only in providing the other side with additional facts to use during cross-​examination. There is a fine line between too little and too much detail. How do you ensure that you do not cross the line? Once you have prepared your examination-​in-​chief, look at it through the other side’s eyes. Does it contain information which, if you were acting for the other side, you would not seriously challenge? If so, these points can be discussed safely, if such detail supports your theory of the case. Does the examination-​in-​chief raise any points that you would probe if you were acting for the other side? If it does, you should not go into excessive detail concerning these matters if such an 86

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approach is feasible given your theory of the case. As with all aspects of the trial, your theory of the case will dictate the parameters. When eliciting evidence from a witness, remember that jurors are accustomed to receiving information in the five to 15 second “sound bites” they see on the evening news. Start with the general then move to the specific –​ much like a cinematographer begins with a panoramic view and then zooms in on the important details of the story. This facilitates the transformation of oral evidence into a visual image of the event. Example 4.7 Q. Mr Mendiolea, where did the fight take place? A. At the corner of Surf Parade and Britannia Avenue. Q. In what compass direction does Surf Parade run? A. Surf Parade runs in a north-​south direction. Q. In what direction does Britannia Avenue run? A. It runs in an east-​west direction. Q. Are you familiar with the neighbourhood surrounding the intersection of Surf Parade and Britannia Avenue? A. Yes, I live in a unit close by and my local shops are located at the intersection. Q. Please describe the neighbourhood for the jury? A. Both Surf Parade and Britannia Avenue are commercial streets with small shops lining both sides. Both streets have two lanes of traffic with meter parking along both sides. Behind both streets there are mainly residential, three-​ storey unit blocks. Q. I now want to turn your attention to the day of the fight. What time did the fight take place? A. 10.30 pm. Q. What was the traffic like then? A. It was fairly light. There were a few passing cars on Surf Parade but no cars on Britannia Avenue. Q. What was the lighting like when the fight took place? A. As I mentioned it was 10:30 pm, so it was dark outside, but at that corner there are two street lights. There was also light coming from the shop windows. You could see without any trouble. Q. Where were you when the fight broke out?  A. Diagonally across the intersection on the southeast corner.

This testimony paints a general picture of the location of the assault and the lighting conditions at the time. A more detailed description is unnecessary. Leave it to the cross-​examiner to ask exactly how wide Surf Parade is, exactly how far the witness was from the fight and how far each street light was from the occurrence. These details will not add substantially to your examination-​in-​chief. You should, of course, prepare your witness for such questions, but committing your witness to such details in examination-​in-​ chief adds nothing except grist for the cross-​examiner’s mill.

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Conversely, in some situations you will want the witness to focus on detail. For example, if witness A’s evidence will be disputed by witness B called by the other side, jurors will need reasons for accepting A’s evidence over B’s. In this situation, details can enhance credibility. If A has a better recollection of surrounding details than B, jurors are more likely to accept A’s version of the disputed event. Example 4.8 Q. Ms Cartwright, when did you meet with the defendant to work out the details of your agreement? A. On 5 January 2018, at 2.30 in the afternoon. Q. Where did you meet? A. In the defendant’s office located at 123 Eagle Street. Q. Who was present at the meeting? A. Just myself and the defendant, although her administrative assistant walked in a few minutes after we started talking about the details of the deal. He brought in a single sheet of paper, gave it to her and then left without saying anything. Q. Were you sitting or standing during the meeting? A. We were both sitting. The defendant was sitting behind her desk and I was sitting across from her on a small green sofa.  Q. I now want to turn to your conversation with the defendant. …

In this situation, the fact that the witness remembers aspects of the meeting so clearly may enhance her credibility with the jury. If the witness’s recollection of the details surrounding the meeting is better than the defendant’s, in closing it can be argued that it follows that the witness’s recollection of the discussions about the agreement is also better than the defendant’s.

b  Use the witness’s perspective An effective way to describe scenes is from the point of view of the witness, using the witness’s orientation. This is particularly effective when describing the interior of buildings and rooms, where compass directions are not important. The objective is to have the jurors “see” the scene from the witness’s perspective. Example 4.9 The scene is a small neighbourhood pub where the defendant shot the victim following an argument. The witness is a patron who had just entered the pub as the argument started. Q. Please describe Denison's Pub? A. It’s a small neighbourhood pub in an old two-​storey brick building on Denison Street.

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Q. What does the front look like? A. It has a door in the middle and big plate glass windows on either side of the door. Q. When you walk through the door, what do you see? A. When you walk in, you’re in the front room. The bar counter is along the left wall. The counter has maybe seven or eight bar stools for customers. Along the right wall there are three small booths. If you walk past the counter and the booths, you come to a back room with a pool table and more booths along the right wall. The door to the toilets is along the back wall on the left side, just past the pool table. Q. What is the lighting like inside the pub? A. The lighting is good. There are lights over the bar, lights over each of the booths, and a light over the pool table. You can see what’s going on without  any difficulty.

7  Recreate the action Having set the scene, the next task is to recreate the action. Most advocates have the witness tell the jury what happened. Good advocates have the witness show, not just tell, the jury what happened. They have the witness re-​create the event so that the jurors can view reality through the witness’s eyes. They make the witness’s testimony visual and visceral, so that it has emotional impact and draws the jurors into the story. They also make sure that the testimony supports their theory of the case, themes and labels. When preparing the examination-​in-​chief of a witness to an event, four basic considerations should be addressed: point of view; pace; the use of simple, sensory language; and the use of the present tense.

a  Point of view As with setting the scene discussed earlier, the jury should “see” the action from the most advantageous point of view. This usually will be through the eyes of the witness to the event. Example 4.10 Q. Mr Barrie, you said you were driving southbound on Main Street. As you look out of your windscreen, what do you see in the lane of traffic in front of you? A. I see cars in front of me travelling at approximately 40 km per hour. Q. What do you see when you look in your rear-​view mirror? A. The same thing, cars behind me travelling at approximately 40 km per hour. Q. What do you see in the northbound lane? A. There is no oncoming traffic. There is a car stopped in the right hand lane attempting to make a right turn into Centre Street, and there is a car stopped behind the car turning. A man leans out of the driver’s side of the stopped car  with a shotgun and fires one shot at the car turning.

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Structuring the evidence in this way puts the jury in the back seat of your witness’s car, seeing what the witness sees. It allows the jury to “see” the action from your witness’s point of view.

b Pace You can control the speed of the examination by varying the pace at which the evidence is given. For example, you can slow down the pace by eliciting the witness’s evidence in small segments. This is particularly important when evidence about an occurrence is being given. The jury, unlike you and the witness, has never heard the evidence before. Its ability to receive, digest and comprehend the evidence is limited. For example, the critical part of a robbery or an assault may have taken place in a few seconds. You may want to slow down the action and present the occurrence frame by frame, much like a slow-​motion or stop-​action sequence in a movie. If you slow down the action, the jury will be able to comprehend exactly how the robbery or assault occurred. Example 4.11 Counsel for the plaintiff in a civil assault case will want to slow down the action to demonstrate to the jury that the plaintiff is the innocent party. Q. Describe what you see as you approach the intersection of George Street and King Street? A. It’s a busy intersection and there are a number of people waiting to cross the street. Q. How fast are you walking? A. Fairly slowly –​I’m window shopping. Q. What are you looking at? A. A bank on the corner has its home loan interest rate advertised in the window, and I’m checking that out. Q. Which street are you walking on? A. George Street. Q. What happens when you reach the intersection? A. I see a guy running on King Street towards the intersection. Q. How fast is he moving? A. He’s running flat out. Q. How far are you from the man when you first notice him? A. Not very far. About 2 metres. I’ve just come around the corner. Q. What do you do when you see him? A. I yell at him. Q. What do you yell? A. “Look out”. Q. What happens after you yell? A. He runs straight into me.

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Q. What happens when he runs into you? A. I fall to the ground and he lands on top of me. Q. What do you do then? A. I lay there for a couple of seconds trying to catch my breath. Q. What does he do? A. He rolls off me, stands up and starts yelling at me. Q. What does he say? A. He say I’m a “bloody moron” and that I should watch where I’m going. Q. What do you do then? A. Once I get my breath back I tell him that he’s the moron and that he shouldn’t run up a busy street like a bloody idiot. Q. How does he respond? A. He kicks me in the head. Q. What part of your head? A. The left side. It’s like the kicks you see in karate films. Q. After he kicks you in the head, what do you do? A. The kick dazes me but I can see that he was going to kick me again so I roll out of the way and kick up at him. Q. What effect does your kick have? A. It lands on his left knee. He doesn’t fall because two bystanders grab him and pull him back. Q. What do you do then? A. Another guy grabs me and then the police show up. Q. How long is it from the time he runs into you, to the time the bystanders grab you both? A. It seems like a long time but it is probably no more than a minute. Q. What do the police do?  A. They take us both down to the police station.

In this example counsel has slowed down and compartmentalised the action by having the witness describe three separate segments: what occurred immediately before the fight; the fight itself; and how the fight was stopped. By having the witness describe each sequence in detail, counsel has created a slow-​motion word picture of an incident that occurred over a very short period of time. The jury will be able to comprehend the evidence, and visualise the scene and the fight. In addition, the examination has created the impression that the witness is the innocent party, even though he used force during the altercation. In some situations you will want to convey the impression that an event occurred very quickly and unexpectedly, without sufficient time for the witness to deliberate or avoid the incident. In such a situation you will want to speed up the action.

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Example 4.12 Q. Mr Jones, what were you doing as you approached the intersection of George Street and King Street? A. I was jogging when suddenly this guy stepped out from behind a building right in front of me and we collided. Q. What happened after you both collided? A. We both fell down and he started yelling at me and kicking me. I tried to  protect myself. Fortunately some bystanders hauled him off me.

By having the witness deliver a concise description of the event, counsel creates a sense of how unexpectedly and quickly the collision and subsequent assault occurred. This conveys the impression that the collision was inevitable, and that the blame for the subsequent assault rests with the plaintiff. When preparing the examination-​in-​chief of your witness, you must determine whether you want to slow down, speed up or leave unaltered your witness’s description of the occurrence. This decision will be governed by the impression you want to convey to the jury.

c  Simple, sensory language To be easily understood, language needs to be simple. To be vivid and memorable, language needs to be sensory. The use of simple, sensory language results in more persuasive witness testimony. Simplicity involves the choice of simple words and phrases for questions, and encouraging the witness to use simple words and phrases when answering questions. Psychological studies have demonstrated that the phrasing of a question has a significant impact on how the question is answered. For example, asking a witness “how fast” rather than “how slow” a car was travelling will invariably elicit a higher speed from the witness. Terms such as “smash” and “collided” convey a different impression than “struck” or “hit”. When preparing your examination-​in-​chief, you must decide what words and phrases you want to employ to create the most advantageous impression, and then use such words and phrases consistently throughout the trial. Further, eliminate “police talk”, “legalese” and other jargon from your vocabulary and from that of your witness. Consider the following: Example 4.13 Jargon

Plain language

When did you exit from your vehicle?

When did you get out of your car?

Did you have occasion to converse with Did you talk to him? him? How long have you been employed in the How long have you been a capacity of a bricklayer? bricklayer?

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Plain language

Subsequent to your arrest what, if anything, What happened after they arrested happened? you? Prior to your departure with whom did Who did you talk to before you you speak? left?  

The plain language versions are clearly preferable. They are clear, simple and readily understood. The elimination of stilted language will be appreciated by the witness, the judge and the jury. Encourage your witness to use sensory language. Most people tend not to use sensory language, therefore, you may have to assist a witness to find his or her own sensory vocabulary. For example, when asked, “What happened to you after the crash?”, most witnesses will state, “I was hurt”, or, “I hurt my arm”. Ask questions which will elicit sensory responses such as, “What did your arm look like after the accident?”, “What did your arm feel like?”, and, “How did you know you had hurt your arm?”. When you ask sensory questions, the witness will respond with sensory answers, which convey a more vivid, memorable picture of what really happened. Example 4.14 Q. Ms Cerrone, just before the crash, what were you doing? A. I just remember screaming as I saw the other car go through the red light. Q. And then? A. There was a huge smash. I was thrown into the steering wheel. I could hear the crunch of metal and the tinkling of glass. Q. What happened to you? A. The force of the crash threw me forward, and my left arm got caught up in the steering wheel, and it snapped. Q. What did you hear? A. I heard the bone break. It was kind of a snapping sound. Q. What did you see? A. My arm was bent at a crazy angle at the elbow. It was bent back, the way it’s not supposed to bend. Q. What did you feel? A. I felt an immediate hot, shooting pain, running up my arm, and it kept getting worse. Q. What did you do?  A. I remember that I started to cry, and then I fainted.

Sensory language is vivid and memorable. It helps the jury to visualise the event. Every witness has a sensory vocabulary, and it is the advocate’s job to encourage the witness to use it.

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d Present tense The use of the present tense, in both the advocate’s questions and the witness’s answers, is an effective way to recreate an event. It allows the jurors to relive the event through the witness’s eyes, and become emotionally involved in the story. Example 4.15 Q. Mr Barrie, what do you see in the northbound lane? A. There is no oncoming traffic. There is a car stopped in the right hand lane attempting to make a right turn into Centre Street, and there is a car stopped behind the car turning. A man leans out of the driver’s side of the stopped car with a shotgun and fires one shot at the car turning. Q. Where does the bullet go? A. It smashes through the rear window of the car turning. It shatters the window, and the person driving the car slumps over the steering wheel. I’ve now  passed the car and I keep on driving.

8  Use non-​leading questions Basic to the rules surrounding examination-​in-​chief is the general prohibition against leading questions.3 A leading question may be defined as: a question asked of a witness that:

(a)

(b)

directly or indirectly suggests a particular answer to the question; or 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.4

Inexperienced advocates usually ask too many leading questions in examination-​in-​chief. Of course, as has been discussed above, it is permissible to lead your witness through matters introductory to the witness’s evidence, or through matters that are not in dispute. This will get you into the critical evidence quickly, before the jury gets bored. It is generally not permissible, however, to lead your witness through important matters that are in dispute, unless the court gives leave. In addition to being a rule of evidence, the prohibition against asking leading questions of a witness in the examination-​in-​chief is also a rule of persuasion. By either directly or indirectly suggesting to the witness the answer he or she is to give, you diminish the impact of the witness’s

3

4

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For example, see s 37(1) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence (National Uniform Legislation) Act 2011 (NT), see Dictionary, Pt 1; Evidence Act 2011 (ACT); Evidence Act 2001 (Tas), s 3.

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evidence. The jury will wonder whether the witness would have given the same answer as the one you have put into the witness’s mouth. Further, if the witness gives only “yes” and “no” answers, the jury will have no adequate basis on which to assess the witness’s credibility. Non-​leading questions allow witnesses to relate the events themselves, and the answers have a more profound impact on the jury. Counsel should never do anything that will detract from a witness or diminish the witness’s evidence. Using leading questions to elicit evidence concerning important or disputed matters does exactly that. Example 4.16 Non-​leading

Leading

Please describe the intersecting The intersecting streets are both two lanes, streets? aren’t they? What did the man look like?

Was the man approximately 180 cm tall, with brown hair and blue eyes?

What happened as soon as you Were you thrown to the floor by the gunman entered the bank? as soon as you entered the bank?  

The questions in the left hand column are non-​leading, provided they do not breach the second limb of the definition of a leading question discussed above, namely, a question that “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”. For example, if the fact that the witness entered the bank is in dispute, the question “What happened as soon as you entered the bank?” will be leading unless the witness has already given evidence that she entered the bank. 9 

Open-​ended questions

Your examination-​in-​chief will be most effective if you use open-​ended questions that elicit descriptive responses. These are the questions that begin with “who”, “what”, “when”, “where”, “why” or “how”. This serves two functions: the witness tells the story and reveals the important evidence and counsel’s presence is minimised. The witness should always be the centre of attention. Counsel’s questions should simply guide the witness from one topic to another, and break the evidence into digestible pieces. The aim is to ask focused open-​ended questions that elicit 10-​to 15-​ second answers. The use of questions such as “What happened next?”, “What did you do next?”, etc, should be used sparingly. While they can be used to break up the witness’s evidence and control the pace of the testimony, such broad questions provide little guidance to the witness, with the result that the witness may become confused, ramble on and gloss 95

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over or omit critical evidence. Further, they can become monotonous. If you bore the jury with your questions you run the risk that, in ignoring your questions, the jury will also ignore the answers. For example, instead of asking “What happened next?”, ask “What’s the first thing you did when…?”. Instead of asking “What did you do?”, ask “What was your first reaction?”. Once you have directed the witness (and jury) to a certain topic, focused open-​ended questions like those in Example 4.17 can be used to break up the evidence and control the pace of the testimony. They are short, broad, open-​ended, non-​leading and do not detract from the witness. Example 4.17 Q. What is the first thing you saw when you entered the room? Q. Who else attended the meeting?  Q. What was the first thing you did after leaving the house?

You should also vary the form of the questions. Periodically mix the short, open-​ ended questions with more focused questions, and ask specific explanatory and follow-​up questions where appropriate. Example 4.18 The witness has already given evidence of being stopped by the defendant Q. What did the defendant do when he stopped you? A. He stuck a gun in my face and told me to give him money. Q. What did you do then? A. I handed over my wallet. Q. Mr Harris, what exactly did the defendant take from you? A. He took about $80 in cash, my Visa card, my driver’s licence and all of the  other identification cards I keep in my wallet.

If the witness gives a particularly good answer, loop-​back and use the answer as part of your next question. This reinforces the answer and keeps the witness on track. Example 4.19 Q. After the defendant stuck a gun in your face, what were the exact words he used? A. He said, “hand over your wallet mate”. Q. After he said, “hand over your wallet mate”, what did you do?  A. I took my wallet out of my breast pocket and gave it to him.

The use of a loop-​back question is effective only if used sparingly. Overuse may irritate the judge and the jury, and prompt the other side to suggest that you are attempting to give evidence yourself.

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10  Have the witness explain Often a witness will use a technical word or phrase, or will say something that does not make sense. Your primary goal is to elicit evidence from the witness in a way that will give the jury a clear understanding of the events being discussed, so any confusion should be clarified immediately. Put yourself in the jury’s shoes. If the jury looks confused or wants an explanation, you must get it for them. This must be accomplished without embarrassing or demeaning the jury or the witness. When seeking a more detailed explanation, use narrowly phrased questions that deal directly with the source of the confusion. Example 4.20 Q. I’m sorry Mr Kumari, I didn’t follow you there. Where were you standing when you saw the accused strike Ms Smith? Q. Dr Jacks, what exactly is a phlebectomy?  Q. Professor Casey, you used the term MRI. What does MRI stand for?

The jury will appreciate the immediate clarification of an important point, particularly where it is accomplished without the suggestion that they did not understand it the first time. 11  Volunteer weaknesses Weaknesses should be volunteered during the examination-​in-​chief. By volunteering the weakness, the sting will be taken out of the evidence before it can be used effectively by the other side in cross-​examination. While this proposition is theoretically sound, its application to any given witness is often difficult to ascertain. There are a number of questions that must be considered before deciding whether to volunteer a weakness during the examination-​in-​chief. Will the weakness be more damaging to my case if elicited in cross-​examination of the witness? Is the other side aware of it? Does counsel for the other side have the trial skills necessary to expose the weakness effectively during cross-​examination? Can the weakness be exposed in such a way as not to damage my case? The examination-​in-​chief should be positive and forceful. Volunteering weaknesses works against this goal. It follows, therefore, that if a weakness is insignificant or, if significant, is unlikely to be raised by the other side, it might be better not to disclose it in examination-​in-​chief. Conversely, if the weakness is significant and is likely to be disclosed by the other side (with twice the impact), it should be volunteered in examination-​in-​chief. If you decide to volunteer a weakness, it is usually best to bury it in the middle of the examination-​in-​chief. The general principles of primary and recency dictate that jurors remember best what they hear first and last. You should always strive to open the examination-​in-​chief on a positive

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note, disclose the unfavourable information, then close on a positive note. Studies have shown that people are reluctant to change their initial impressions when confronted with unfavourable information. The weakness will have less impact, therefore, when volunteered after the witness has made a good initial impression on the jury. 12  Use exhibits to highlight and summarise facts Exhibits can be used effectively during the examination-​in-​chief to highlight the central facts of your case, and to assist with the explanation of important details. Generally, the use of exhibits is most effective once the witness has substantially completed his or her oral evidence. If, for example, the witness has a dramatic story to tell, as in many criminal cases, the use of an exhibit near the end of his or her oral evidence will not detract from the witness’s testimony. Further, using exhibits after the action evidence has been given is often an effective way to repeat and emphasise the important facts. For example, in a personal injury case the first witness for the plaintiff may be a key eyewitness to the accident. The witness’s background and description of the scene of the accident could be brought out first, followed by exhibits, such as diagrams and photographs, which corroborate and highlight the evidence. The effective use of exhibits is discussed in greater detail in Chapter 5. 13  Listen to the answers The necessity of paying attention to the responses of the other side’s witness during cross-​examination applies equally to the examination-​in-​chief of your witness. The attention of the jury often will be focused on you, so it is essential that you appear interested in the witness’s answers and maintain eye contact with the witness. You can hardly expect the jury to hang on the witness’s every word if you look and sound bored. More importantly, however, the witness may give an answer that you are not expecting, or omit a critical piece of information. If you are listening to the witness’s answers rather than thinking about your next question, you will catch such changes and omissions. Appearing interested has other positive effects. It carries over to, and infects, the witness. It also helps to eliminate the assumption that the examination-​in-​chief has been choreographed and rehearsed in advance. 14  Counsel’s position In Australia, counsel are required to conduct their examinations from behind the bar table. Approaching a witness, or the jury, is only allowed once the permission of the presiding judge has been sought and obtained. Permission will be granted only in special circumstances; for example, where it is necessary for counsel to demonstrate an action. 98

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15  Begin strong and end strong We tend to remember better the things that we hear first and last. These are the principles of primacy and recency. It is important, therefore, to have both a strong beginning and ending to your examination-​in-​chief. The traditional way of starting an examination-​in-​chief does not address the jurors’, or the judge’s, needs. Questions such as “Please state your name” or “Where do you work?”, “What is your rank?” [if a police witness] are stilted, awkward and do not answer the primary questions in the mind of the jury or judge, namely, “Who is this witness?” and “Why is this witness being called?”. As has been noted above, the first thing you should do in examination-​in-​chief is answer these questions. Example 4.21 Q. Your name is Abdul Ahmad? A. Yes. Q. You were working at the Shell petrol station on the Stuart Highway near Hickman Street on 6 September 2017? A. Yes I was. Q. That was the night the petrol station was robbed? A. Yes.  

This introduction lets the jurors know immediately what role the witness plays in the story of the trial. That is what they want to know at the start of the witness’s examination-​in-​chief, not several minutes later. This kind of introduction need not be used with every witness. If the witness is the accused in a criminal case, or the plaintiff or defendant in a civil case, the jury or judge will know what role that witness plays in the trial. For most lay witnesses, however, this type of introduction generally works well. Ending strong is essential. The last thing a witness says in examination-​ in-​chief should be important and linger in the mind of the jury and judge long after the witness’s evidence concludes. What often happens, however, is that the examination-​in-​chief concludes simply because the examiner runs out of questions, with no attention paid to the principle of recency. Persuasive advocates identify the central issues in dispute and structure their examination-​in-​chief so that the witness’s answer to the last question brings out a key fact relevant to a central issue. Example 4.22 Q. Ms Reichardt, at the time the defendant’s car entered the intersection, what colour was the traffic light for Daley Street? A. It was red.  Q. [Pause] I have no further questions.

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Example 4.23 Q. Since the accident, have you been able to return to your job as a mechanic? A. No. Q. Have you been able to find other work? A. No. Q. Have you been able to support your family? A. No.  Q. Your Honour, I have no further questions.

4.3  WITNESSES TO EVENTS Witnesses to events are the most common type of witness called in a trial. A witness to an event is any witness who saw, heard or did anything relevant to the case. Most trials involve either personal injury or criminal conduct where one event, usually an accident or a crime, forms the core of the case. Since these cases involve events, an eyewitness to the event will be a key witness at the trial, and the performance of witnesses to the event will, in large measure, determine the outcome of the trial. Accordingly, the ability to elicit clearly and forcefully the evidence of such witnesses is a skill every advocate must possess. To elicit effectively the evidence of a witness to an event, you should employ the principles described in Section 4.2. The examination-​in-​chief should be organised logically. Important points should be developed fully and peripheral matters should be glossed over or omitted. Evidence pertaining to the witness’s background should be elicited first, followed by a description of the scene, a general, flowing description of the action, and finally, the introduction of exhibits that highlight and summarise the key facts. Short, open-​ended questions should be used to enable the witness to paint a vivid, detailed picture that can be visualised easily by the jury. Finally, the examination should be paced in such a way as to bring the event alive. The examination-​in-​chief should recreate for the jury not only what the witness saw, heard or did, but also the atmosphere and the intensity of feeling that surrounded the event. Achieving this is one of the advocate’s most difficult, and rewarding, tasks. There are numerous types of witnesses to events. Below are examples of the examination-​in-​chief of a representative sample of such witnesses; each accompanied by a commentary explaining why these particular questions were asked and why they were framed in such a way. The reasoning that underlies these examples can be adapted and applied to the examination-​ in-​chief of any witness to an event.

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Example 4.24 Examination-​in-​chief  –​ civil  case In the following case the plaintiff, James Smith, has instituted a civil action against the defendant, Frank Jones, alleging that the latter committed a trespass to the person (battery). Smith alleges that he was injured when Jones intentionally drove into him as he was crossing the street. Jones has denied liability, claiming that he did not intentionally hit the plaintiff, that he had the right of way and that Smith was crossing against the pedestrian light. The following are the examinations-​in-​chief of the plaintiff and an eyewitness to the collision. Plaintiff Q. Mr Smith, your full name is James Peter Smith? A. Yes. Q. You were struck by a car driven by the defendant on 27 January 2017? A. Yes, I was. Q. You live at 42 Chelsea Avenue, Broadbeach?

Background

A. Yes.

These are easy, background questions. Such questions allow the witness to relax A. It’s a house. and get used to the courtroom environment. They also Q. Do you rent it or own it? enhance the witness’s credA. We own it. ibility by showing him to be Q. How long have you lived at 42 Chelsea Avenue? an ordinary family man. Q. Is that a house or a unit?

A. Seven years. Q. Does anyone live with you? A. Yes, my partner and two daughters. Q. How old are your two daughters? A. Well, Betsy's five and Becky's three. Q. Is your partner employed outside the home? A. Not at the present time. She's a teacher but she hasn't taught since Betsy was born. Q. What is your occupation? A. I am also a teacher. Q. What school do you teach at? A. Merrimac State High School. Q. How long have you taught at Merrimac? A. Eight years. Q. What grades do you teach? A. I’ve always taught grade 11 and 12 maths.

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Notice that the witness gives short, factual answers to A. During the school year I coach the high the background questions. school swimming team. During the summer Flowery, obviously self-​serving break I am a supervisor at Camp Thather, answers can backfire in front of which is a day camp for children. a judge or jury. Q. Do you have any other employment?

Q. How long have you been involved in these activities? A. Ever since I started teaching. Q. Mr Smith, where are you from originally? A. The Gold Coast. I’ve lived here all my life, 36 years. Q. Where did you receive your education? A. I attended Merrimac State High School and then went to the University of Queensland where I received a Bachelor or Arts degree in 1988. I then received a Diploma in Education from the same institution in 1989. Extracurricular activities should be mentioned because they are relevant to the issue of damages. Q. Let’s take them one by one? The response also adds detail to the witness’s pre-​accident A. Well, my favourite hobby was bushwalking profile. and camping with my family. Q. Do you have any hobbies?

A. Yes, I do, or should say “did”.

Q. Other than bushwalking and camping with your family, what else do you like to do? A. I also played basketball once a week with a local church group. Other than that, I also used to enjoy the normal things like gardening and working on the house. Q. Mr Smith, you’ve said that you “used to enjoy” these hobbies. Why did you use the past tense? A. Because I haven’t been able to do any of these things since I was struck by the defendant’s car. Q. Let’s turn to the collision. Where were you struck Transition question. by the defendant’s car? A. At the intersection of Australia Avenue and the Gold Coast Highway in Mermaid Beach. Q. Are you familiar with the intersection of Australia Avenue and the Gold Coast Highway? A. Yes, I am. Q. Why are you familiar with that intersection? A. I’ve been there a thousand times. It’s around the corner from my house.

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Q. Mr Smith, please describe the intersection?

Scene

A. Sure. The Gold Coast Highway is a major highway that runs up the length of the Gold Coast in a north-​ south direction. Australia Avenue runs east-​west towards the beach. The Gold Coast Highway has two lanes running in each direction, and there is a traffic island in the middle so you can only turn into Australia Avenue from the southbound lane. Australia Avenue is a two-​lane street, one lane running in each direction. There is parking on each side of the street.

The description of the intersection is important in this case and therefore it should be described in detail. Once the description is given, consider the use of photographs, diagrams and/​or charts to highlight the important aspects of the witness’s description.

Q. Does the intersection have any traffic controls?

This question is leading, however, the existence of traffic controls is not in dispute.

A. Yes, it has traffic lights. Q. Where are these traffic lights located? A. The lights are on poles on each corner. These include traffic signals and pedestrian lights. In addition, there are controls that you push when you want to cross the street.

The witness’s ability to describe accurately the intersection will enhance his credibility. The description should include:

Q. Does the intersection have any other markings 1  the direction of the streets; or controls? 2  the number of lanes; 3  lane markers; and A. Yes, it has markings. 4  traffic lights, pedestrian Q. How is it marked? lights, pedestrian crossings and stop lines. A. The traffic lanes are marked with white Exhibits dotted lines. There are three pedestrian crossings marked with thick white lines, and stop lines in front of the pedestrian crossings. The stop lines are painted yellow. Q. Where are the pedestrian crossings located? A. There is one across Australia Avenue, and one on each side of Australia Avenue across the Gold Coast Highway. Q. Mr Smith, let’s turn to the events immediately before you were struck by the defendant’s car. What was the date?

Once the witness has given a general description of the scene, the use of an exhibit, such as a photograph and/​ or diagram, can be used effectively to highlight the witness’s evidence and fill in necessary detail. Transition question

A. 27 January 2017. Q. What time were you struck? A. Approximately 1.30 in the afternoon. Q. What was the weather like at the time? A. It was sunny and hot.

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Q. What was the condition of the street? A. It was dry. Q. What was the condition of the footpath? A. It was also dry. This completes the background description. It is now A. It was busy. There were lots of cars and a few time to move to the action pedestrians. evidence. Q. What were the traffic conditions like?

Q. What were you doing at the time?

Action

A. I was standing on the footpath waiting for the light to change so that I could cross the Gold Coast Highway. Q. What were you doing as you stood waiting for The action evidence can the light to change? now be elicited without the necessity of further scene description. A. I was looking at the traffic lights on the north-​ east corner and I noticed the green light changed to yellow. I looked to my right to see if any cars were coming and noticed a white Holden Commodore about 20 m from the intersection. I then noted that the light for the Gold Coast Highway traffic had turned red, and the light for the Australia Avenue traffic had turned green. Also, the walk-​light for pedestrian traffic across the Gold Coast Highway turned to “walk”. Q. What did you do when the walk-​light turned to “walk”? A. I stepped off of the kerb and started walking on the pedestrian crossing across the Gold Coast Highway. I had taken three or four steps off the kerb when the Commodore came screeching to a halt about a metre from me. The defendant, who was driving, rolled down his window and started yelling at me.

Notice that the pace of the evidence has quickened. Good pace breathes life into the evidence. This is the worst place to bore the jury with tedious testimony.

Notice how short the questions have become. The A. I don’t recall exactly –​something about questions should not detract being a blind, ignorant yobbo. from the witness, particularly Q. How did you respond? during the critical part of the evidence. Q. What did he say?

A. I told him that if he kept trying to run red lights he was going to kill someone. Q. How did the defendant react? A. He deliberately accelerated and crashed into me.

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Q. After the defendant accelerated and crashed into “Loop-​back” question you, what is the next thing you remember? A. I remember a stinging, burning pain coming Developing the plaintiff’s from my right knee. I also remember that condition immediately after I couldn’t move my right leg. the collision lays the foundation for a claim for compensatory damages. Q. Where were you at this time? A. I was more or less face down on the street. This evidence lays the foundation for a claim for exemA. He backed up, drove around me and drove plary (punitive) damages. off down the highway. Then some other pedestrians ran to me and told me not to move. Q. What did the defendant do after he struck you?

Q. Did he check to see how you were? A. No, he just took off. Q. What happened after the pedestrians ran to help you? A. I stayed on the street for I don’t know how long, and finally an ambulance arrived. The paramedics put a stretcher next to me, slowly eased me onto the stretcher and put me in the ambulance. Q. Where did they take you? A. To the Gold Coast Hospital casualty department. Q. On the way to the Gold Coast Hospital, how did you feel? A. Not well. I kept having these shooting, stinging pains up and down my right leg, and I began to feel really dizzy and nauseated. Q. What happened when you reached the casualty Damages department? A. The ambulance attendants took me out of the ambulance and wheeled me into the casualty department. There, a nurse cut off my trouser leg while another attached a tube to my arm. A third nurse took some blood. Then they moved a portable X-​ray unit to my table and started taking X-​rays. When they were finished they gave me an injection and that’s the last thing I remember.

Detailed evidence pertaining to the medical treatment and recovery should be elicited to lay the foundation for the plaintiff’s claim for compensatory damages.

Q. Mr Smith, what is the next thing you remember after you received the injection? A. I remember waking up in a hospital bed. I felt really groggy and heavy. I had this dull, throbbing pain in my right leg. I looked down at my leg and saw that they had applied a cast that reached from my toes right up to my groin.

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Q. How long did you remain in hospital? A. Five days.

Note that the pace has been slowed. The immediate Q. What did you do during those five days? trauma of the collision and A. Nothing really. I just lay on my back with the treatment in the casualty my right leg up on pillows to reduce the department has passed. swelling. Q. How did you feel during those five days? A. Well, I started getting very stiff and sore because I was on my back. I had trouble sleeping in that position. I could not get up for anything. I had to use a bedpan to go to the toilet. The pain in my leg changed to a dull, throbbing ache. Q. Mr Smith, let’s talk about your condition after Transition question you left the hospital. First, how did you get home? A. The hospital attendants wheeled me outside The initial recovery period. in a wheelchair with my foot elevated. They helped me get into the back seat of my car. My partner drove me home. When I got home two neighbours carried me into the house and up to my bed. I was laid on the bed and my right leg was put on pillows. Q. How long did you remain in bed at home? A. About two weeks. Q. Were you able to leave your bed during this two week period? A. I managed to get up for a few minutes at a time, using crutches. Usually I got up to go to the toilet or to stretch for a couple of minutes. Q. How did your leg feel when you got up? A. Every time I got up the throbbing in my leg would get worse. Also, my leg would start to swell and feel very warm. Q. What did you do when that happened? A. I would have to lie down and raise my leg. Q. After returning home, when did you next see a Continued medical treatment doctor? A. I saw Dr Bartells about six weeks after I left the hospital. He removed the cast and put another one on. The new one also extended from my toes to my groin.

Q. How long did you have the second cast on? A. Approximately eight more weeks.

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If the fact of the witness’s medical care was in dispute, such a question would be leading. As such care is not in dispute, the question can be asked.

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Q. During that eight week period, what was the condition of your leg? A. The pain and throbbing were getting better, however, if I kept my leg down for any period of time I’d have to put it up again. Q. Why did you have to put your leg up again? A. Because the pain and throbbing made it too difficult to remain upright. Q. When did you next see a doctor? A. About eight weeks after the second cast was put on I went back to the hospital and Dr Bartells removed the second cast and took some more X-​rays. He then wrapped my knee and calf with an elastic bandage. Q. How did your right leg look after the second cast was removed? A. The first thing I noticed was how skinny it was. My right thigh was about half the size of my left one. In addition, I could only move my knee about 5 or 6 cm in either direction. When I tried to bend it, it was really painful. Q. Describe the pain? A. It was a sudden and severe, leaving me dizzy and nauseous. Q. How did you get around once the second cast was removed? A. I still used the crutches. I didn’t start putting weight on the leg for another month. Q. Let’s talk about the therapy for your leg. What did that involve? A. I had to apply hot water bottles and wet towels to the knee, and then bend the knee back and forth to increase the range of motion. I did this several times a day.

It is important to highlight the plaintiff’s efforts to rehabilitate the leg to its former condition.

Q. How did you feel during this therapy? A. It was very painful. You had to stretch the ligaments in the knee to get the motion back. Q. How long did you carry out this treatment? A. I did it continuously for about three months. After that I did it a couple of times a day for maybe three more months. Q. How is your knee now? A. The pain is gone, provided I don’t try to This illustrates the permanent bend the knee too far. I can straighten it but disability the plaintiff has I can never bend it as far as it used to go. suffered as a result of the injury.

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Q. Mr Smith, I would now like to discuss the effect This evidence lays the founall this has had on your job as a teacher. Have you dation for the plaintiff’s claim returned to work? for pecuniary loss (lost earning capacity, etc). A. I went back to work at the beginning of September 2017. Q. Were you able to do any sort of work between the date of the collision and the beginning of September 2017? A. No. Q. After returning to work, were you able to do all of the things you used to do? A. No. I was walking without crutches but was still limping a great deal so I could not coach the swimming team or take part in any sports. I was able to conduct my maths classes because I could sit down. Q. Mr Smith, let’s talk about how you feel and what you can do now. What is the condition of your leg today? A. Well, as a result of the collision the right leg is shorter than the left one so I now walk with a limp. The pain is gone provided I don’t stand for long periods of time.

Note that the witness is presenting his evidence in a straightforward, factual way. It is often safer to understate, rather than overstate, the pain associated with the injury.

Q. Is there anything that you cannot do today that you could do before the defendant ran into you? A. I can’t swim or go bushwalking or play basketball like I used to. Q. What happens when you attempt these activities? A. My knee swells up and starts aching and throbbing. Q. Mr Smith, before being struck by the defendant’s car, what was your health like? A. I was in perfect health. The odd cold but generally I didn’t have any health problems. Q. How have the injuries you suffered affected your life? A. I can’t do the things I used to love to do, like going bushwalking with my family and playing basketball. I’ve always got to make sure that I don’t do anything that might put strain on my knee or the swelling and pain comes back. [To the judge] I have no further questions.

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The response to this question sums up the effect the injury has had on the plaintiff’s life, and relates it to his family. Always structure your examination-​in-​chief so that you end on a high point.

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Independent eyewitness Marvin Weir, an eyewitness to the collision, will be called after James Smith has given evidence. It is unnecessary, therefore, to cover matters that have already been covered adequately in the examination-​in-​chief of the plaintiff. Instead, this witness will be used to corroborate the plaintiff’s version of the critical facts pertaining to liability. Q. Your name is Marvin George Weir?

Background

A. Yes. Q. Why have you been called to give evidence today? A. I witnessed a pedestrian being struck by a car on the Gold Coast Highway. Q. You live at Unit 6, 12 Chelsea Avenue, Broadbeach? Since this is a witness to the event, not the plaintiff, only A. Yes. the aspects of his background Q. How long have you lived there? that bear directly on his credibility as a witness are canvassed. A. About one and a half years. Q. You’re the caretaker for the block of units you live in? A. Yes. Q. How long have you held that position? A. Ever since I moved into my unit –​about one and a half years. Q. Does anyone live in the unit with you? A. No. I’m single and I live alone. Q. Mr Weir, I now want to discuss the intersection of Scene Australia Avenue and the Gold Coast Highway. Are Note that only the witness’s you familiar with that intersection? familiarity with the intersecA. Yes, I am. tion is covered. The plaintiff has already described the Q. Why are you familiar with that intersection? intersection in detail and it is A. It’s close to where I live and I pass it about unnecessary for this witness twice a day on my way to and from the shops. describe it again. Further, you Q. Were you at the intersection of Australia Avenue do not want to run the risk and the Gold Coast Highway on 27 January 2017, of this witness contradicting the description given by the at approximately 1.30 pm? plaintiff. A. Yes, I was. Q. Where at that intersection were you? A. I was standing on the north-​east corner of Australia Avenue waiting for the light to change so that I could cross the street.

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Q. Which street were you waiting to cross?

Clarification question

A. Sorry, I meant waiting to cross the highway, Exhibits the Gold Coast Highway. Following this answer would be an appropriate place to introduce a diagram of the intersection, and have the witness mark where he was standing, so that the judge and jury can visualise the scene and the witness’s location. How this is done is discussed in Chapter 5. Q. When you first got to the intersection, what colour were the lights? A. The lights were green for traffic on the Gold Coast Highway and red for the Australia Avenue traffic. Q. What colour was the pedestrian crossing light? A. The pedestrian crossing light for the Gold Coast Highway was on the red, “Don’t Walk” sign. Q. What happened to the light? A. It eventually changed to “Walk”. Q. Where were you when the light changed to “Walk”? A. I was still on the corner getting ready to cross the intersection. Q. After the crossing light changed to “Walk”, what Action did you do? A. I was just about to step off the footpath when At this point the pace should the driver of a white Commodore almost ran the pick up to help recreate the red light. Fortunately, he slammed on his brakes occurrence. and screeched to a halt right in front of a guy who was crossing the highway from the south-​ east corner. Q. What happened after he screeched to a halt? A. The driver of the Commodore rolled down his window and started yelling at the guy on the street. The guy on the street started yelling back. Then the driver of the Commodore accelerated and ran right into the guy on the street.

Note that no unnecessary details (time, distances, etc) are elicited from the witness. Leave it up to defence counsel to cover these matters. If not handled well by cross-​ Q. After the driver of the Commodore accelerated and examining counsel, the withit the guy on the street, what happened next? ness will have the opportunity to reaffirm his evidence-​ in-​ chief on cross-​examination.

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A. The guy who was hit went down, and the driver of the Commodore backed up and drove around him. He didn’t stop to see if the guy was hurt or anything. Q. (Pause) Was the guy hurt? A. Yes. His face was all contorted and he was Evidence of the victim’s sort of squirming on the ground and trying to pain and suffering should be grab his right knee. brought out. Q. What did you do after the man was hit? A. I noted the number plate of the Commodore and then ran over to where the man was lying. Q. What did you do when you reached the man? A. I told him not to move and not to try to get up. By this time some other people had come over and one of them phoned an ambulance on her mobile. We then just tried to keep the guy comfortable until the ambulance arrived. Q. How long did it take for the ambulance to arrive? A. About five or ten minutes. Q. What happened when the ambulance arrived? A. The ambulance attendants put the man on a stretcher, very slowly as he was in a lot of pain, and then put him in the ambulance. They then drove off. Q. Did you recognise the man that was hit? A. Not at the time, but I now know that it was James Smith. Q. What did you do after the ambulance left? A. By this time the police had arrived so I went over and talked to one of them. I told him what happened and gave him the number plate of the Commodore. Q. Mr Weir, where was Mr Smith when he was struck by the car? A. He was on the pedestrian crossing, walking This answer ends the with the “Walk” light. examination-​in-​chief on a high note. [To the judge] May it please the Court, those are my The examination-​in-​chief of questions. this witness is brief and to the point. It corroborates the important points brought out in the plaintiff’s examination-​ in-​chief, and then concludes.  

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Example 4.25 Examination-​in-​chief  –​ criminal  case In this case John Smith is charged with the assault of Sharon Jones. The assault took place in the bedroom of Jones’s unit on 30 January 2018. The defendant, while denying that he committed the assault, does not deny that an assault occurred. The central issue in the case, therefore, is the identification of the assailant. What follows are the examinations-​in-​chief of the victim and the first person to arrive at the scene. Examination-​in-​chief of the victim, Sharon Jones Q. Your name is Sharon Louise Jones?

Background

A. Yes. Q. You are 23 years of age? A. That’s correct. Q. I understand that you live in Albert Park? A. Yes. Q. How long have you lived in Albert Park? A. Five years. Q. Where did you live before moving to Albert Park? A. In Darwin. I was born and raised in Darwin and I lived there until I finished secondary school. Q. What did you do after you finished secondary school? A. I attended The University of Melbourne where I obtained a Bachelor of Arts degree. Q. What was the major focus of your study? A. English literature. Q. What did you do after graduating from university? A. I joined the marketing department of the By this time the witness should Manderpod Oil Company. be feeling more at ease. Q. Where are you currently employed? A. I'm still with Manderpod here in Melbourne. Q. Ms Jones, on the 30 January 2018, where were you living? A. I was living at 26B Montague Street, Albert Park. I've since moved. Q. Was anyone living there with you? A. No, I’m single and I’ve lived on my own since I moved down from Darwin. Q. What kind of building is 26B Montague Street?

Scene

A. It’s a two-​ storey building with a one-​ The scene of the crime is imporbedroom unit on each floor. I lived on the first tant and should be described floor. in detail.

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Q. Ms Jones, I would like you to cast your mind back to 30 January 2018, and please describe the entrance to the building? A. There is a front door that services both of the units. There is an interior stairwell that leads from the ground floor to the front door of my unit. There is also a rear balcony on both floors and an external stairwell leading up to the balcony of my unit. The door to the rear entrance from the balcony opens into the kitchen. Q. Does the door at the top of the front, interior stairwell have a lock? A. Yes. Q. What type of lock is it? A. It’s a deadbolt lock. Q. Does the door to the kitchen have a lock? A. Yes. Q. What type of lock is it? A. It is also a deadbolt lock. Q. Ms Jones, picture yourself standing at the front door of your unit and walk us through the rooms? A. Well, the unit has four rooms. As you walk through the front door you enter directly into the lounge room. As you walk through the lounge room you pass a door on your right which is the door to the toilet. You then walk into the kitchen, which is at the rear of the unit. On your right in the kitchen is another door that leads to the bedroom. Directly in front of you is a door that leads to a balcony and the rear external stairwell.

The description has progressed from the exterior of the building, to the interior of the unit, to the bedroom where the assault took place.

Q. Ms Jones, you are now turning and walking If the witness is not speaking to over to the door to the bedroom. Open the door and the jury, include in your quesdescribe to the jury what you see? tion a direction to the witness that she does so. A. The room is large. There is a queen size bed in the right-​hand corner. Beside the bed on the right-​hand side is a bedside table. Directly in front of me on the far wall is a window that is approximately 1 metre wide and 2 metres tall. There are curtains on the window. There is a built-​in wardrobe that runs the length of the wall to my left. To my right, against the wall, there is a dressing table with a chair in front of it. There is a lamp on the dressing table.

Once the witness has given a verbal description, it is often effective to take the witness to a diagram, or photograph, of the scene. Note that this should only be done after a verbal description of the scene has been elicited. Reference to a diagram or photograph before the witness’s verbal description may be leading. It also removes the spotlight from the witness, which should be avoided in examination-​in-​chief.

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Q. On the morning of 30 January 2018, were the curtains in the bedroom window open or closed? A. They were open. Q. What was the weather like that morning? A. It was a bright, sunny day. Q. What were the lighting conditions like in your The primary issue is identifibedroom that morning? cation, therefore, the lighting conditions must be described in detail. A. It was very light. I had no trouble seeing things in the room. Q. Ms Jones, what were you doing during the morning hours of 30 January 2018? A. I was dozing in bed. Q. What time did you go to bed? A. About 2.00 am. Q. What kind of clothing were you wearing? A. I was wearing a nightgown. Q. Had you woken up at any time that morning? A. Yes, I did. At approximately 8.00 am I woke up, went to the toilet, drank a glass of water and then went back to bed. Q. Why did you go back to bed? A. I didn’t have to work that day and I was tired so I decided to sleep in. Q. Were you able to fall back to sleep? A. Yes, I did.

The description of the scene is complete. The action evidence can now begin.

Q. When did you wake up? A. At about 10.00 am. Q. Why did you wake up?

Action

A. I heard a noise that startled me. I looked up and saw a man standing in the doorway of my bedroom. Q. What was the man doing? A. He was just standing there, looking at me. Q. What did the man look like? A. He was Caucasian, 25 to 30 years old, The main issue is identificaaround 1.8 m tall, and weighed about 90 kg. tion, so it is important that the witness give a detailed descripQ. What colour was his hair? tion of the offender. A. It was brown, cut short. He also had a brown moustache, and a small scar about 1 cm long on his left cheek.

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Q. What was he wearing? A. He had on a blue V-​neck jumper and dark, casual trousers. I didn’t notice his shoes. Q. Ms Jones, have you seen the man since 30 The witness should identify January 2018. the defendant early in the examination. Thereafter, the A. Yes, the police asked me to attend an witness and counsel can refer to identification parade and there he was. I picked the assailant as “the defendant”. him out immediately. This depersonalises the Q. Who did you identify? defendant, and prompts the jury to look at him each time “the defendant” is mentioned. A. The defendant. Q. When you woke up to find the defendant The description of the standing at the door of your bedroom, what did assault should move quickly, you do? recreating the horror and fear the witness associates with A. I screamed. the event. The questions are Q. How did the defendant react? short, and merely help break A. He walked over to my bed, jumped on top up the narrative into digestible segments. of me and grabbed my throat. Q. What did you do? A. I fought with him and tried to get him to take his hands off my throat, but he was so heavy. I couldn’t push him off or make him let go. I thought he was going to kill me. Q. What did the defendant do next? A. He told me to shut up and stop yelling. He said all he wanted was my cash and jewellery, and that I wouldn’t get hurt if I co-​operated. Q. What did you do? A. I kept struggling, and then I managed to push him off of the bed. I don’t know how I did it because he was so much bigger than me, but somehow I managed to get him off. As he was falling off the side of the bed he hit his head on the bedside table. Q. What did the defendant do after he hit his head on the bedside table? A. I think it stunned him because he got up, stumbled around a bit and then ran out of the room. I then heard the door to the kitchen slam shut. Q. How much time had passed from the time you first saw the defendant in the doorway to your bedroom, to the time he ran out of your room? A. About 5 minutes.

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Q. Ms Jones, I just want to go back to the moment when the defendant was on top of you with his hand on your throat. What direction was the defendant facing at that time?

The face-​to-​face confrontation relates directly to the issue of identification. From this point the pace can begin to slow down again.

A. He was looking down at me. Q. What direction were you facing? A. I was looking up at him. Q. How far was his face from your face? A. No more than 20 cm.

At this point, with leave of the court, you may ask the witness Q. What did you do after the defendant left your to indicate the distance with unit? her hands. A. I lay there for a couple of minutes, trying to get my breath back. Then I phoned my neighbour, Catherine Chan, who lives in the ground floor unit. I then called the police. After that I just cried. Q. Who arrived first? A. Catherine. She was at the door just as I got off the phone to the police. Q. Did the police arrive? A. Yes. Two police officers came up to the unit soon after Catherine arrived. Q. Did you have a conversation with Ms Chan?

Note that any conversation between the victim and Ms A. Not really. I had just been attacked. I was Chan, or between the victim still crying so she just tried to calm me down and the police officers, is hearuntil the police arrived. We didn’t really have a say. You will have to ensure conversation. I was too upset. that the evidentiary rules in your jurisdiction allow such evidence to be given in the circumstance of the case.5 Q. Did you say anthing to the police officers? A. I don’t recall the details. I just know I told them that I had been attacked. I was having trouble breathing. Q. What did the police officers do? A. They took me downstairs to their police car and drove me to the Royal Melbourne Hospital. They took me to the casualty department.

5

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See, for example, s 66(2) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

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Q. What happened in the casualty department? A. A doctor examined the bruising around my neck. By then I was breathing okay, so she gave me some medication to calm me down. Q. How long were you in the casualty department? A. Approximately two hours. Q. What happened after you left the casualty department? A. The same two police officers drove me to a friend’s house, and asked me to come down to the Albert Park police station to give a statement when I was feeling better. Q. How long did you stay at your friend’s house? A. For a week. I was too scared to return to my unit. Q. Had you ever seen the defendant before the morning of 30 January 2018? A. No. Q. Why are you so sure that the defendant was the man that attacked you on 30 January 2018? A. I will never forget his face. It was the End on a high point, such defendant. as this confirmation of the identification. [To the judge] May it please the Court, those are my   questions.

The neighbour, like the eyewitness in the previous example, is being called to corroborate certain important facts: that an assault occurred, and that the lighting conditions were sufficient for the victim to observe the offender and subsequently identify him. The police officers could also be called for this purpose. In jurisdictions governed by the uniform Evidence Acts, s 33, permits a police officer in a criminal proceeding to give evidence-​in-​chief for the prosecution by reading, or being led through, a written statement previously made by the police officer, provided the requirements of s 33(2) are complied with. From an advocacy perspective, however, it is better to take police officers through their evidence-​in-​chief, rather than allowing them simply to read from their notes.

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Example 4.26 First person on the scene Q. Your name is Catherine May Chan?

Background

A. Yes. Q. You are 42 years of age? A. That’s correct. Q. Why have you been called today? A. Because I was the first person Sharon Jones called after she was attacked on 30 January 2018. Q. On 30 January 2018 you lived at 26A Montague Street, Albert Park. A. That’s correct. Q. I understand that it is a ground floor unit? A. Yes. Q. And there are two units in the block? A. That’s right. The other unit is above mine. Q. Who lived in the unit above yours on 30 January 2018? A. Sharon Jones. Q. Ms Chan, what is your occupation? A. I am a management consultant with Gernferd Financial Services Pty Ltd. Q. I now want to turn your attention to the Transition question morning of 30 January 2018. What were you doing at approximately 10.00 am that morning? A. I was working on my computer. I recall that I had to finish off a memo to the Senior Vice-​President of Gernferd. Q. How long did you work on the memo? A. I worked on it until approximately Action 10.05 am. I then received a phone call from Sharon Jones saying that she had been assaulted in her unit. Q. What did you do in response to that call? A. I immediately ran up the front stairs and knocked on her door. There was no answer so I let myself in. We have a set of keys to each other’s unit.

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Q. Where was Ms Jones? A. She was in her bedroom, lying on the bed in her nightgown, crying. Q. How did she look? A. She was extremely upset, and appeared to be having trouble breathing. I noticed that she had bruises on her neck. I ran over to her and tried to comfort her. Soon after that two police officers arrived. Q. What happened after the police officers arrived? A. It was obvious that Sharon was having trouble breathing so they took her to the hospital immediately. One of the officers took my name, told me not to disturb anything and asked me to come down to the Albert Street police station later that day to give a statement. Then they all left. Q. What did you do after they left? A. I walked out the door with them, locked it and followed them to the police car. I told Sharon that I’d be at home if she needed me. Q. Ms Chan, I want to take you back to Scene when you entered the bedroom. What did The purpose of this examination-​in-​ the bed look like? chief is to elicit corroborative evidence A. The sheets on the bed were all for the victim’s claims that she was crumpled. There was a blanket half on assaulted, that the assault took place the floor, and a pillow on the floor next in her bedroom and that the lighting to the bed. conditions were good at the time. It is therefore appropriate to end the Q. What was the lighting like? examination with a discussion of A. It was pretty light in there. The sun the scene. This highlights the fact was streaming in through the window that, in appropriate circumstances, and there was light coming in through the evidence of a witness to an event the door. may diverge from the most common [To the judge] May it please the Court, progression –​background, scene, action and exhibits. Whether the those are my questions. circumstances are appropriate will be governed by your theory of the case. In summary, if there is a good reason to organise the examination differently, consider it.  

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4.4  CONVERSATIONS AND STATEMENTS Conversations, whether in person, over the telephone or through other electronic means, are frequently introduced as evidence in trials. These conversations take place out-​of-​court and are usually hearsay and inadmissible, unless they are being adduced for a non-​hearsay purpose, or fall within one of the numerous exceptions to the hearsay rule. Accordingly, if you intend to introduce a conversation or statement into evidence, it is essential that you review the evidentiary basis for its admission. In Australia, the admission of hearsay statements is complicated by the lack of uniform evidence law regimes. For example, in jurisdictions governed by the uniform Evidence Act,6 first-​hand hearsay will be admitted if it falls within the scope of Pt 3.2, Div 2 of the Act, and its admission is not precluded by any other rule of evidence. In jurisdictions that have not adopted the uniform Evidence Act, such statements will be admitted only if they fall within one of the exceptions to the hearsay rule, or are being adduced for a non-​hearsay purpose. It is essential, therefore, that you refer to the applicable legislation, and to one of the numerous texts on the subject,7 before attempting to adduce an out-​of-​court statement into evidence at trial. Admissions and related representations by parties to the proceedings constitute one of the most common exceptions to the hearsay rule.8 Whenever a party makes a statement containing an admission, that statement often is admissible provided it is first-​hand hearsay. If the statement made by a party is part of a conversation between that party and another person, the entire conversation usually is admissible if the admission itself

6

7

8

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The Evidence Act 1995 (Cth) commenced operation on 18 April 1995. It applies to proceedings in federal courts. The uniform Evidence Act also applies in the Australian Capital Territory (Evidence Act 2011 (ACT)), New South Wales (Evidence Act 1995 (NSW)), the Northern Territory (Evidence (National Uniform Legislation) Act 2011 (NT)), Tasmania (Evidence Act 2001 (Tas)), Victoria (Evidence Act 2008 (Vic)) and Norfolk Island (Evidence Act 2004 (NI)). Generally see S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016) [EA.Intro.30]. Recommended texts include S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016); N Williams, J Anderson, J Marychurch, J Roy, Uniform Evidence Law in Australia (LexisNexis Butterworths, 2018); J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017); A Ligertwood, G Edmond, Australian Evidence: A Principled Approach to the Common Law and Uniform Acts (6th ed, LexisNexis Butterworths, 2017); A Hemming, R Layton, Evidence Law in Qld, SA and WA (Thomson Reuters, 2017). For example, see Ch 3, Pt 3.4 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). The word “admission”, as defined in the uniform Evidence Act means, “a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person’s interest in the outcome of the proceeding”: see Dictionary, Pt 1, of the Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); and Evidence Act 2008 (Vic). Also see s 3 of the Evidence Act 2001 (Tas) and Evidence Act 2011 (ACT).

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is admissible and it is reasonably necessary to refer to the entire conversation in order to understand the admission. Admissions made by agents or employees of parties to the proceedings also are often admissible if it can be established that an agency or employment relationship existed at the time the admission was made, the agent or employee making the admission was acting within the scope of his or her agency or employment, and the admission was first-​hand hearsay. Advocates frequently have to introduce conversations into evidence, and should do so routinely, smoothly and without objection. Objections, while not totally within your control, can be minimised if you lay the proper foundation for the admission of the conversation. The basic requirement is authentication; that is, the witness must be able to identify the participants to the conversation. You also must be prepared to meet the evidentiary requirements for the admission of such evidence.9 This foundation should be established whenever you attempt to introduce the contents of a conversation into evidence, even if the other side does not object. By routinely establishing such a foundation you take away the other side’s opportunity to object, and provide the opportunity for your witness to enhance his or her credibility by demonstrating an ability to remember details. 1 Elements To admit into evidence a conversation between two or more persons, these elements should be established: 1

when the conversation took place;

2

where the conversation took place;

3

who was present during the conversation; and

4

who said what to whom. Example 4.27 Admission by a party to the proceeding Q. Who did you talk to? A. Ron Barkley. Q. On what date did the conversation take place? A. I talked to him on 3 February 2018. Q. What time did the conversation take place? A. It was about 3.00 pm. Q. Where did the conversation take place? A. We talked in his office.

9

For example, see Ch 3, Pt 3.2, Div 1-​3 of the Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). Also see Ch 3, Pt 3.2. Div 3.2.1-​3.2.3 of the Evidence Act 2011 (ACT). 121

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Q. What is the address of his office? A. It’s at 123 Eagle Street, Brisbane. Q. Who was present during the conversation? A. There was just me and the defendant, Ron Barkley. Q. What did you say to the defendant at that time? A. I said, “Mr Barkley you still owe me $2,500 for the roofing job on your house”. Q. Did the defendant respond?  A. Yes, he said, “I know I do. I just don’t have the money to pay you right now”.

It is not necessary that the witness has actually participated in the conversation. The witness may testify to a conversation between two or more persons that he or she has overheard, provided the conversation is relevant to a fact in issue in the case and otherwise admissible under the relevant evidentiary rules (in particular, the rule against hearsay and those relating to admissions).

4.5  TELEPHONE CONVERSATIONS Telephone conversations, which are commonly admitted into evidence provided the conversation does not constitute hearsay, or alternatively falls within an exception to the hearsay rule, are introduced in much the same way as face-​to-​face conversations. If the identity of the caller is an issue, the witness must be able to recognise the voice of the speaker on the other end of the line. To lay a proper foundation for voice recognition, the witness should establish that he or she recognises the caller’s voice, and explain the basis for such recognition, before stating that the caller identified himself or herself. This enhances the reliability of the evidence and minimises the possibility of admitting a conversation with an impostor. 1  Witness knows the other person To have a telephone conversation between two persons admitted into evidence where the witness knows and recognises the other person’s voice, you should establish: 1

when the conversation took place;

2

where the conversation took place (where the witness was);

3

that the witness recognised the other person’s voice;

4

how the witness recognised the other person’s voice;

5

who was the other person;

6

what other persons participated in the conversation; and

7

who said what to whom.

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Example 4.28 Q. Where were you at approximately 4.00 pm on 7 February 2018? A. I was in my house. Q. What happened at that time? A. The telephone rang. Q. Where is the telephone located? A. In the kitchen. Q. What did you do when the telephone rang? A. I picked it up and said, “Hello”. Q. What happened after you said, “Hello”? A. The person on the other end asked for me. Q. Did you recognise the voice? A. Yes. Q. How did you recognise the voice? A. I have talked to the person numerous times over the past several years, in person and over the telephone. Q. Whose voice was it? A. It was John Glessing. Q. Did anyone else take part in the conversation? A. No. Q. What was said during the conversation? A. After I identified myself, he said, “Hello, this is John Glessing. You still owe me $2,500 for the roofing job I did on your house”. I said, “No I don't. Your job  was defective and I have no intention of paying for it”.

2  Witness learns of the other person’s identity through subsequent conversations To have a telephone conversation admitted into evidence where the witness does not know the identity of the other person at the time of the call, but subsequently learns it through face-​to-​face conversations, you must establish: 1

when the conversation took place;

2

where the conversation took place (where the witness was);

3

that the witness did not recognise the other voice at the time the conversation took place;

4

that the witness later talked to the other person face-​to-​face;

5

that the witness now recognises that person as the “voice” on the other end of the line;

6

who the other person was;

7

what other persons participated in the telephone conversation; and

8

who said what to whom. 123

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Example 4.29 Q. Where were you at approximately 1.00 pm on 12 January 2018? A. I was in my house. Q. What happened at that time? A. The telephone rang. Q. Where is the telephone located? A. In the kitchen. Q. What did you do when the telephone rang? A. I picked it up and said, “Hello”. Q. What happened after you said, “Hello”? A. The person on the other end asked for me. Q. Did you recognise the voice? A. Not at that time. Q. Mr Barkley, turning now to 3 February 2018, where were you at approximately 3.00 pm? A. I was in John Glessing’s office at 123 Eagle Street, Brisbane. Q. Why were you in Mr Glessing’s office? A. We were discussing some work he had done on my house. Q. Since that time, have you had any other conversations with Mr Glessing? A. Yes. Q. Approximately how many? A. Around 10 or 12. Q. Mr Barkley, returning to the telephone call you received on 12 January 2018, are you now able to recognise whose voice it was on the other end of the line? A. Yes, I am. Q. Whose voice do you now recognise it to be? A. It was John Glessing. Q. Did anyone else take part in the telephone conversation? A. No. Q. What was said during the conversation? A. After I identified myself, he said, “Hello, this is John Glessing. You still owe me $2,500 for the roofing job I did on your house”. I said, “No I don’t. Your job  was defective and I have no intention of paying for it”.

3  Witness learns of the other person’s identity through a transaction To have a telephone conversation admitted into evidence where the witness does not know the identity of the other person at the time of the call, but later learns who they are through either an earlier or later transaction other than a face-​to-​face conversation, you must establish: 1

when the conversation took place;

2

where the conversation took place (where the witness was);

3

that the witness did not recognise the other voice at the time the conversation took place;

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4

that the witness engaged in an earlier or later transaction through which he or she was able to identify the voice;

5

that the witness now recognises that person as the “voice” on the other end of the line;

6

who the other person was;

7

what other persons participated in the telephone conversation; and

8

who said what to whom. Example 4.30 Q. Where were you at approximately 2.00 pm on 4 January 2018? A. I was in my house. Q. What happened at that time? A. The telephone rang. Q. Where is the telephone located? A. In the kitchen. Q. What did you do when the telephone rang? A. I picked it up and said, “Hello”. Q. What happened after you said, “Hello”? A. The person on the other end asked for me. Q. Did you recognise the voice? A. Not at that time. Q. Mr Barkley, the clerk is showing you a document. Do you recognise that document? A. Yes, it is a letter addressed to me from a Mr John Glessing dated 1 February 2018. Q. Why do you recognise this letter? A. I received it on 3 February 2018. Q. Is the letter in the same or substantially the same condition now as when you received it on 3 February 2018? A. Yes, it is. Q. Your Honour I tender the letter dated 1 February 2018 from Mr Glessing to Mr Barkley as Exhibit 1. [Letter marked as Exhibit 1] Q. Mr Barkley, please read the first line of that letter? A. “Dear Mr Barkley, I am writing to confirm the substance of the telephone call I made to you on the afternoon of 4 January 2018.” Q. Mr Barkley, returning to the telephone call you received on 4 January 2018, do you now know whose voice it was on the other end of the line? A. Yes. Q. Whose voice was it? A. It was John Glessing. Q. Did anyone else take part in the telephone conversation? A. No. Q. What was said during the conversation? A. After I identified myself, he said, “Hello, this is John Glessing. I’m calling about the hail damage to your roof. We can resurface the roof for $2,500.” I said,  “That sounds fine to me”. 125

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4.6  COMPUTER-​BASED CONVERSATIONS The digital age has created a myriad of ways in which people communicate, be it by text messaging, instant messaging, video conferencing, email, etc. All these methods of electronic communication have raised admissibility issues. In particular, if the digital communication is in text, rather than video or voice, form, how can the recipient of the communication know the person sending the communication is who he or she purports to be? In some situations, prior or subsequent conduct can identify the person in the same way that prior or subsequent conduct can identify a person communicating by telephone. If such conduct does not exist, however, how is it possible to identify the person sending electronic messages in text form? In most jurisdictions, statutory presumptions exist which provide that an electronic communication “was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made”.10 Such a presumption puts the onus on parties maintaining that they did not send the communication to adduce evidence sufficient to raise doubt about the presumption. Further, in uniform Evidence Act jurisdictions, the hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation relates to “the identity of the person from whom or on whose behalf the communication was sent”.11 If the messaging platform allows a person to use a pseudonym, or “user name”, the party in receipt of the communication will have to establish the identity of the individual using that user name. In some cases, this may require information from the internet service provider to establish that the user name is registered to a particular person. The production of such information may require a court order.12 The ways in which we communicate will continue to evolve. Regardless of the platform, the evidentiary issues that arise will remain the same. Is the communication relevant? Is it reliable? Has the foundation for entry of the document containing the communication been established adequately?

10

11

12

126

See s 161(1)(b) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Vic); Evidence Act 2008 (Vic). The Evidence Act 1929 (SA) s 54(1)(b) is in the same terms. See s 71(a) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Vic); Evidence Act 2008 (Vic). For example, see Dallas Buyers Club LLC v iiNet and ors (2015) 245 FCR 129; Sites N Stores Pty Ltd v Whirlpool.Net.Au Pty Ltd [2015] FCA 1474.

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4.7 REFRESHING MEMORY Giving evidence in court is a frightening experience for many witnesses. They are in strange surroundings and must follow unfamiliar rules. They are expected to give evidence from memory, often about events that occurred months or years before the trial. Considering all this, it is not surprising that a witness often will forget to give an important part of his or her anticipated evidence. When this occurs, you must, with leave of the court, refresh, or jog, the witness’s memory. While a number of things can be used to refresh memory, it is most commonly accomplished through the use of some kind of written material such as a police statement, report or diagram prepared when the occurrence was fresh in the witness’s memory. A certain ritual must be followed to establish the foundation for refreshing the witness's memory. In jurisdictions governed by the uniform Evidence Act, s 32 must be complied with.13 How witnesses can refresh their memory in court should be explained to witnesses before they give evidence. Explain that, in the event they fail to remember a portion of their anticipated evidence, it is perfectly acceptable for them to refer to a document to refresh their memory. Let the witness know that the cue words, “Do you recall (or remember) anything else?” indicate that they have forgotten something important and that you will embark on the sequence necessary to allow them to refresh their memory. 1 Elements To establish a foundation for refreshing the memory of a witness who is giving evidence, you must demonstrate that the: 1

witness knows the fact or opinion, but has had a memory lapse in the witness box;

2

witness will not be able to recall the fact or opinion adequately without using the document;

3

witness knows the written material will jog his or her memory; and

4

document was written or made by the witness when the events recorded in it were fresh in his or her memory, or was at the time found by the witness to be accurate.

13

Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For the common law position, see A Hemming, R Layton, Evidence Law in Qld, SA and WA (Thomson Reuters, 2017) at [5.50]. 127

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Once this foundation is established, the witness: 1

is referred to, and reads, the written material;

2

confirms that his or her memory has been refreshed; and

3

testifies to what he or she knows, without further reference to the written material.14 Example 4.31 The witness, a claims investigator, recovered a coat, shoes and a set of keys from the plaintiff’s car. These facts are contained in her report. Q. Ms Coomaraswamy, you stated that you removed some items from the plaintiff’s car. What items did you remove? A. Let’s see. I got a coat and a pair of shoes out of the boot. Q. Do you recall removing anything else? [The cue words] A. I might have, but that’s all that I can remember. It was over two years ago. Q. Would anything refresh your memory? A. Yes, my report. Q. Do you have your report with you today? A. Yes. Q. When did you prepare this report? A. I left the car and took the items back to my office. I typed up the report as soon as I got back to the office. Q. What did you do after you typed up the report? A. I read it over to make sure it was accurate. I then dated and signed it. Q. Your Honour, may the witness refer to the report to refresh her memory? [Judge grants leave.] Q. Ms Coomaraswamy, please take a minute to read your report. [The witness reads the report] Do you now remember the items you removed from the plaintiff’s car? A. Yes, I do. Q. What items did you remove? A. In addition to the coat and shoes, I also removed a set of keys from the glove box.  

Counsel often fail to use the cue words, “Do you recall” or “Do you remember”, when attempting to refresh the witness’s memory. Instead, they ask: “Did you remove any other items?” If the witness answers “No” and counsel then attempts to refresh the witness’s memory, counsel for the other side may object on the grounds that the witness has answered the question and there is no need to refresh memory. A second aspect of refreshing memory occurs when the witness’s present recollection is in no way revived by reference to the document. In this case the term “refreshing memory” is something of a misnomer given that, even 14

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Section 32(3) of the uniform Evidence Acts allows a witness, with the leave of the court, to “read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion”.

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after referring to the document, the witness has no independent recollection of the facts contained in the document. This notwithstanding, as has been noted above, both the uniform Evidence Act and the common law allow the witness to read from the document when giving evidence and maintain the fiction that the evidence is oral, not documentary. Example 4.32 The witness has given evidence that he recorded the car registration numbers of every car in a dealer’s yard on a certain date. Q. Mr Shapiro, how many cars did you see in the car yard that day? A. About 30. Q. Did each car have a registration number plate? A. Yes. Q. What were the registration numbers on the cars? A. I’m sorry, I can’t possibly remember each of the numbers. Q. Would anything refresh your memory? A. Well, I made a list of the registration numbers while I was at the car yard. Q. How did you prepare the list? A. I went up to each car, looked at the registration number and then wrote it down on the list. After I had written down all of the numbers, I went back to each car to ensure that the number I had written down was accurate. Q. Your Honour, may the witness refer to the list? [Judge grants leave.] Q. Mr Shapiro, the court officer is putting a document before you. Do you recognise the document? A. Yes. This is the list of car registration numbers I was just talking about. Q. Is the list in the same condition now as when you made it? A. Yes, it is. Q. Your Honour, may the witness read aloud the registration numbers noted on the document? [Judge grants leave.]  [Witness reads the registration numbers.]

A document used to refresh a witness’s memory must be produced to the other side for inspection.15 The mere fact of production does not require the party producing the document to tender it.16 The production, however, will

15

16

See s 32(4) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic); see also J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17240]-​[17245]. See s 35(1) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For the law relating to the tender of a document used to refresh a witness's memory in jurisdictions not covered by the uniform Evidence Acts, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17240]-​[17245]. 129

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result in the loss of client legal privilege,17 and the other side may use it for the purposes of cross-​examination. You must decide, therefore, whether the potential for use by the other side outweighs the advantage to be gained by using the document to refresh the witness’s memory.

4.8  BUSINESS RECORDS Business records, always a significant component of commercial cases, are now increasingly important in other civil, and even criminal, trials. Consequently, the ability to introduce records into evidence, and use them effectively, is an indispensable trial skill. Business records are hearsay. Counsel must, therefore, refer to the relevant statutory and, if applicable, common law exceptions to the hearsay rule to see whether such evidence can be admitted. All of the Australian States and Territories have enacted legislation that, provided certain requirements are met, permits business records to be admitted into evidence.18 All of the statutes have the same underlying rationale –​reliability. If a business has created records on a recurring basis, has relied on their accuracy when conducting its affairs and has developed a system to store and retrieve those records, then generally it will be considered to have met the required standard of reliability.19 The records witness has three principal functions at trial. He or she must: 1

establish the evidentiary foundation which will convince the judge to admit the records into evidence;

2

establish an evidentiary foundation in a way that maximises the weight the jury will give to the documents; and

3

explain the contents of the records to the jury.

There is a tendency to present records witnesses in a casual, summary fashion. The witness is quickly introduced as the custodian of the pertinent record, the evidentiary foundation is established and the document is admitted into evidence. Do not lose sight of the fact that the impact of a document as evidence depends largely on how systematically and accurately it was compiled and how carefully it was stored. What the witness has to

17

18

19

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See s 122(6) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17245]. Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [35185]-​[35360], [35535]-​[35565]; A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [8.182]-​[8.200], [8.209]. Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548-​549.

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say about the document, therefore, is significant, and the opportunity that witness offers to enhance the impact of the documentary evidence should not be forfeited. When conducting the examination-​in-​chief of your records witness you should consider the following: 1

thoroughly qualify your records witness. Show that the witness has a substantial knowledge of the records, works with them on a daily basis and knows the storage and retrieval methods used by the business;

2

show how the records are made, who makes them and the primary source of the information they contain. The witness should be able to trace all of the transactions evidenced in the records, from the inception of each transaction to its inclusion in the permanent record. Section 69(2) of the uniform Evidence Act provides that the hearsay rule will not apply to a representation in business records if it can be shown that the representation was made by a person who had or might reasonably supposed to have had personal knowledge of the fact asserted in the representation. Alternatively, if the representation was made on the basis of information directly or indirectly supplied by a person who had such knowledge, the hearsay rule will not apply. In uniform Evidence Act jurisdictions, your records witness will need to satisfy the court that this requirement has been met;20

3

show how the records are distributed, stored and retrieved for use. It is essential to the integrity of the records that the witness shows that, once created, the records are stored in such a way as to minimise the risk of loss, destruction or alteration; and

4

show how the business uses the records. If you can show that the records are constantly used by the business, and that complete and accurate records are essential to the successful operation of the business, the impact of the documentary evidence will be enhanced substantially.

The following example, while not applicable in every case, illustrates how a records witness might be examined to lay the foundation for the entry of a business record into evidence.

20

For the law pertaining to business records in non-​uniform Evidence Act jurisdictions, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [35185]-​[35365],

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Example 4.33 The office manager of a freight company has been called to produce certain shipping records. Q. Ms Yeboah, what is your occupation? A. I am the branch manager of the Perth office of Rapid Movers Pty Ltd. Q. How long have you been the branch manager of the Perth office? A. Approximately five years. Q. Before becoming the branch manager, what type of work did you do? A. I started as a supervisor in the loading dock. After that I was promoted to manager of the accounts department, and then I was promoted to my present job. Q. How many years in total have you worked for Rapid Movers? A. Twelve years. Q. Have you spent the entire 12 years in the Perth office? A. Yes, I have. Q. Ms Yeboah, what type of work does Rapid Movers do? A. We are a national carrier. We truck goods between major towns and cities throughout Australia. Q. How many offices does Rapid Movers have Australia-​wide? A. We have six regional, and 25 local, offices. Q. How many persons are employed in the Perth office? A. Right now we have five full-​time and nine part-​time employees. The number of part-​time employees varies depending on the season. Q. What kind of work does the regional office in Perth do? A. We receive orders for goods, pick them up and deliver them to the designated locations. We also receive shipments from other cities and either store them for pick-​up by the consignee or deliver them directly. It all depends on the nature of the shipping contracts. As a large carrier we can work out almost any type of shipping arrangement. Q. What type of records does your office regularly generate during the course of its business? A. The standard records that we make for each shipment are bills of lading, shipping orders, shipping invoices and billings. Q. Ms Yeboah, did you recently receive a subpoena directing your company to produce certain business records for this trial? A. Yes, we did. Q. Did you bring those records with you today? A. Yes, I did. Q. Do you have an invoice No 952103? A. Yes, I do. Q. What type of record is invoice No 952103? A. It is a shipping invoice. One of the standard records we make for a shipment. Q. What use does your company make of this type of record? A. It’s the basic record that contains all the information about one shipped order. We use this type of form so that we have a complete record of that shipment on one document. We also use it for billing purposes. Q. What kind of information is on a shipping invoice? A. It contains the date the shipment was picked up, where it was picked up, what it consisted of, its weight, delivery instructions and billing instructions. 132

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Q. Who receives and enters the information that appears on the statement? A. Two people normally fill out the form. First, the office clerk who receives the shipping order, either in person or on the telephone, fills out the entire form except the weight. The shipping invoice is then given to the driver. When the driver picks up the shipment, he weighs it on our scales and then writes in the weight on the form. Both the office clerk and the driver must initial the form. Q. What happens to the form? A. There are four copies of the form. The driver gives the first two copies to our office after weighing the shipment. He takes the other two forms with him. When the shipment is delivered, he gives a copy to the party receiving the shipment. On the other copy he gets the signature of the receiving party, and returns that copy to our billing department. Q. What does your office do with the returned copies? A. We send one copy to the party placing the order. We send the other one, the original, to the billing department. When the signed copy is received from the driver, we send out our bill. Q. What ultimately happens to the two dockets, the original and the signed copy? A. The original goes into our permanent record file. The accounting department sends the signed copy along with the bill to the party to be billed. Q. Your Honour, I tender invoice No 952103 as Exhibit 28.  [Invoice No 952103 marked as Exhibit 28]

The foundation for the admission of the business record is complete. While generally it is not necessary to call as a records witness someone who has first-​hand knowledge of the record’s contents, if you anticipate that the other side will dispute the content of a business record, prudence dictates that your records witness should be the person who prepared the document, or at whose direction the document was prepared.21

4.9  LAY WITNESS OPINIONS In general, only experts can give evidence of an opinion. Opinion evidence can be expressed by a lay witness, however, if: 1

the opinion is based on what the witness saw, heard or otherwise perceived about a matter or event; and

2

evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.22

21

For example, in South Australia, s 53(2)(a) of the Evidence Act 1929 (SA) requires the court to refuse to admit a document if it is of the opinion that “the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document”. This is the wording used in s 78 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). Arguably, these criteria are broader than the test applied at common law; however, as is noted in J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017) at [29090], at common law “[t]‌here is nothing in the nature of a closed list of cases in which non-​expert opinion evidence is admissible”.

22

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Lay witnesses frequently gain information during the course of their everyday experience that, while technically opinion evidence, is still admissible. For example, a lay witness will be permitted to express an opinion concerning such matters as a person's age, the speed of a vehicle, weather conditions, sobriety or handwriting, provided the above criteria are met. A proper foundation must be established before lay witness opinions are admissible. In particular, the witness must demonstrate first-​hand knowledge based on what the witness saw, heard or otherwise perceived. For example, if a witness overheard, or was party to, a conversation, but at trial could not recall verbatim the words spoken, the witness may be allowed to give evidence as to the “gist” of the conversation, provided the second limb of the test is satisfied23, and the opinion evidence is relevant to the assessment of a fact in issue in the proceedings. Example 4.34 (lay opinion based on what the witness saw) A witness is giving evidence that he witnessed a motor vehicle accident and that the driver of one of the cars appeared to be under the influence of alcohol. The witness’s background and his presence at the accident scene have been established. Q. Mr Demidov, what happened after the cars came to a halt? A. The driver of the Mazda 3 got out of his car. Q. How long did you watch the driver of the Mazda 3? A. About two minutes. Q. What was he doing during that time? A. He was walking around and talking to various people. Q. How would you describe his walk? A. More like a stumble than a walk really. He was walking in a hesitant, jerky way. He almost fell over a couple of times. Q. How would you describe his facial features during the time you were watching him? A. His face was red and sweaty, and his eyes looked kind of glazed. Q. You mentioned that he was talking to various people, were you able to hear what he said? A. Yes, although he wasn’t making much sense. His speech was very slurred and halting. Q. Mr Demidov, have you ever seen a drunk person? A. Of course. Q. How many times during your adult life have you seen drunk people? A. Probably a few hundred times. Q. How would you describe the condition of the driver of the Mazda 3?  A. He definitely appeared to be drunk.

23

134

For example, see Connex Group Australia Pty Ltd v Butt [2004] 379 at [27]. Generally see S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016) at [EA.78.60].

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Example 4.35 (lay opinion based on what the witness perceived) A witness is giving evidence as to her perceptions of a conference call to which she was a party. A fact in issue in the proceedings is why the settlement of a company purchase did not take place. The parties to the conference call, and the fact that the witness was one of the participants, have already been established. Q. What was the purpose of Mr Singh’s conference call of 18 September 2017? A. He wanted to know whether the settlement of the purchase of Juniper Pty Ltd was contingent on his company settling matters with the Department of Transport. Q. What was said in the conversation about settling matters with the Department of Transport? A. I cannot recall the precise words used, but the gist of the conversation was that the parties would await the outcome of the meeting with the Department of Transport before settlement of the Juniper Pty Ltd purchase took place. Mr Singh clearly left the impression that he would sort the matter out with the Department the following week and that it was not a big deal. Q. Was Mr Singh able to sort matters out with the Department of Transport? A. No. Q. Did this affect the settlement of the Juniper Pty Ltd purchase? A. Yes. Q. How did it affect the settlement?  A. The settlement did not take place.

4.10  EXPERT WITNESSES Experts are used in modern litigation with unprecedented frequency. Counsel call economists and accountants in commercial cases, engineers and architects in construction cases, reconstruction experts in products liability and motor vehicle accident cases, medical practitioners in personal injury and medical negligence cases, and fingerprint and DNA experts in criminal cases. This list is certainly not exhaustive. Experts are called to explain how and why something happened the way it did, or didn’t happen the way it was supposed to. It is essential, therefore, that advocates know how to prepare and effectively present experts during trial. Expert evidence must meet two tests. First, the judge must be satisfied that the expert’s specialised knowledge qualifies the expert to give opinion evidence. Expert testimony, therefore, must meet an evidentiary test. Secondly, expert evidence must be persuasive; therefore, expert testimony must, from a practical perspective, meet a “persuasion test”. This section examines the law of experts, the jury’s expectations concerning experts, and discusses various effective examination-​in-​chief and cross-​examination techniques.

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1  Who can be an expert A person qualified as an expert is permitted to express an opinion, provided the person has specialised knowledge based on the person’s training, study or experience.24 The trial judge must be satisfied that the expert’s specialised knowledge is outside the competence of the average lay person, and that the opinion evidence will assist the jury to understand the evidence or to determine a fact in issue. Expert witnesses need not be professionals with formal academic qualifications. Practical training or experience, provided that the knowledge gained through that training or experience is beyond the knowledge of the ordinary person, may be sufficient to allow someone to give expert evidence. 2  Experts from the jury’s perspective An expert has been called as a witness, has made his or her way to the witness box, and has been administered the oath or affirmation. What are the jurors thinking? What are their expectations? What are their concerns? How can an advocate use the jury's expectations and concerns to assist the expert to deliver his or her evidence in a way that meets the jury's needs? Listening to expert evidence is a daunting prospect for many jurors. An expert, by definition, is called to tell the jury about some, often technical, subject the jury knows little or nothing about. What, then, are the jury’s concerns and expectations? First, the jury expects the testimony to be complicated and confusing. (“Oh my, she’s going to talk about DNA. I probably won’t be able to understand a word of it.”) How do you deal with this expectation? Turn it around. If the jury expects the evidence to be complicated, make it simple by avoiding unnecessary detail and focusing on the process. Use a logical structure to your questioning, and tell the expert to avoid the use of technical language. If technical language must be used, tell the expert to explain what the term means. Make sure that the jury understands the answers to three basic questions: What did the expert do? How did he or she do it? What does it mean? Secondly, the jury expects the evidence to be boring. (“They’re calling an accountant. I fall asleep every time I talk to my tax accountant.”) How do you deal with this expectation? Turn it around. Ensure that the testimony is fast paced, and interspersed with attractive and comprehensible visual aids. 24

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For example, see s 79 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [29045]-​[29080].

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Thirdly, the jury is concerned about the expert’s expertise. (“That doctor is younger than my son. How much can she really know?”) How do you deal with the jury’s doubt? Again, turn it around. When qualifying the expert, show the full extent of the witness’s training, study or experience. Fourthly, the jury is concerned that the expert may be biased. (“I’ll bet that chemist testifies for the pharmaceutical industry all the time. He’s probably making a fortune.”) How do you correct the jury’s attitude? Lead evidence to show that the expert is fair minded, has reached his or her conclusions based on unassailable data and objective analysis, and is being reasonably compensated for his or her time. Fifthly, the jury expects the expert to be condescending. (“One of Australia’s best neurosurgeons. I bet he doesn’t drink his wine from a cask.”) How do you deal with this expectation? Take the time to show the person behind the expertise. Show the jury that behind the expertise is a human being who is being called to help them understand the evidence, not to preach. In summary, persuasive expert evidence takes into account the jury’s concerns and expectations, focuses on those concerns and expectations, and turns them around by doing the opposite of what is expected. Persuasive expert witnesses are understandable, interesting, authoritative, fair and likeable. It is your job as an advocate to make them so. 3  Preparation of expert witnesses The problems encountered when preparing an expert witness are similar to those encountered when preparing a lay witness. Your expert may be a professional person who has appeared in court before, but it is a mistake to assume that this allows you to abbreviate, or dispense with, pre-​trial preparation of that witness. In fact, the contrary is often the case. Experts, because of their specialised knowledge –​a knowledge that is beyond the competence of the jury –​often require more preparation than lay witnesses. Insist, therefore, that the expert spends the requisite amount of time necessary to prepare properly. If the expert is “too busy” for pre-​trial preparation, consider retaining another expert. When preparing an expert witness, you should consider the following: a

Be prepared to qualify your expert thoroughly, but efficiently. Obtain a copy of his or her current curriculum vitae, and review with the witness the questions you will ask to qualify him or her as an expert. Also determine what you will not ask. (For example, Q. Have you published any papers in your field of expertise? A. No.) The “battle of the experts” may be won by the expert with the most impressive qualifications; therefore, it is essential that the qualification of your expert runs smoothly and without embarrassment.

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b

Tell the expert to avoid the use of technical terms. If it is necessary to use such a term, make sure that the expert defines the term when it is first used.

c

Make sure that the expert can spell and define accurately any technical terms he or she will use when giving evidence. The definition must be consistent with those found in technical dictionaries and encyclopaedias. An inconsistent definition leaves the witness vulnerable on cross-​examination.

d

Make sure that your expert is thoroughly conversant with the most recent edition of the standard treatises on his or her subject, and also with his or her own related publications. You, or the witness, may be able to read the pertinent parts of such treatises into evidence during the evidence-​in-​chief. Advise your witness that he or she can expect to be cross-​examined from both sources, and demonstrate how this might be done.

e

Consider what, in addition to his or her evidence, your expert can contribute to the case. Experts are an excellent source of general information concerning a specific topic. They are indispensable in your assessment of the strengths and weaknesses of the other side’s case, and in your preparation of the cross-​examination of the other side’s expert.

f

Remind the expert not to volunteer answers outside his or her area of expertise. The witness should be prepared to deny any expertise touching on matters outside his or her specialised field. (“I’m sorry Ms Smith, but what you are asking does not fall within my area of expertise.”) Remind the witness that an expert giving evidence outside his or her area of expertise is like a chicken with its neck on a chopping block –​the cross-​examiner will always be ready with the axe.

g

Ascertain how the evidence will be presented. Experts often give evidence in an arrogant, condescending manner that fails to respect the jury’s intelligence. Experts should attempt, as has been noted above, to simplify their language without sounding patronising or arrogant.

h

Expert evidence can be complex and difficult for the jury to understand. Your expert should make the maximum use of visual aids, such as diagrams, models and charts, to illustrate his or her evidence.

i

If you are going to use a hypothetical question (discussed below), prepare it in advance and review it with your expert.

j

Explain what questions you will ask concerning the witness’s expert opinion, and how the questions will be framed. Explain how

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legal concepts, such as causation, differ from medical or scientific concepts. k

Counsel for the other side may agree that your witness is qualified, and suggest that evidence of qualifications be dispensed with. Generally, you should decline this suggestion and qualify your witness as an expert, unless:



a



b

your witness has marginal qualifications but is otherwise an effective witness; or

the expert being produced by the other side has superior qualifications, and counsel for the other side has agreed not to go into the formal qualifications of his or her expert. If the suggestion that evidence of qualifications be dispensed with is made in open court, let the judge and jury know why the suggestion is being rejected. Example 4.36 Your Honour, in light of Dr Corvin’s extensive experience, and because her experience is directly related to the weight the jury will attach to her evidence,  we submit that the jury should hear her qualifications.

l

Explain how to handle the issue of fees. Where both sides are producing experts who are being paid for their work –​including compensation for the time spent in court –​there is usually little to be gained by raising this fact in examination-​in-​chief. If you anticipate that the other side may raise the matter in cross-​examination, however, it is best to volunteer the information during your expert’s evidence-​in-​chief. Example 4.37 Q. Dr Corvin, did you charge a fee for your work in this case? A. Yes, I did. Q. How was the amount of that fee calculated? A. In this case, as in all my consultation work, I bill at the rate of $400 an hour multiplied by the number of hours spent on the case. The fee is submitted to the party that retained me regardless of which side, if either, my opinion might assist. Q. How much was your fee in this case? A. It was $8,000. Q. Has your fee been paid? A. Yes, it was paid some time ago. Q. Are you being paid to appear and give evidence in court today?  A. Yes, I am being compensated at my usual hourly rate.

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4 

Order of examination-​in-​chief

There is no “correct” structure for the examination-​in-​chief of an expert, however, the following is an order commonly used: a

introduction;

b

training, study or experience;

c

opinion;  and

d

reasons for the opinion.

Different approaches are possible. For example, after being introduced and qualified, the expert might state the reasons for the opinion and save the actual opinion for the end of the examination. Alternatively, the expert might weave the opinions into the discussion of training, study or experience. The primary objective is to structure the evidence in the way that maximises its impact on the jury. 5  Introducing the expert The expert has taken the oath or affirmation and is sitting in the witness box. What do you do next? How do you start? At this stage, the jury will have three questions: Who is this person?, Why is he or she here? and Can he or she be trusted? These concerns need to be addressed in the first couple of minutes.

a  Who is the expert? The conventional way to introduce an expert is as follows: Example 4.38 Q. Dr Jones, your first name is Marion? A. Yes. Q. You are a medical doctor? A. That’s correct. Q. You work at St Vincent’s Public Hospital in Sydney? A. That’s correct. Q. Do you specialise in a particular field? A. Yes, I specialise in orthopaedics.  Q. What is orthopaedics?

And so on. This approach has shortcomings in that the focus is on counsel asking the questions, rather than on the witness. In the crucial first minute of the examination, the witness does not have an opportunity to express herself as a person. If you are confident that the witness does not need to be

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led through the introductory stage of the examination,25 you might consider questions that allow the witness to expand on his or her personal attributes. Example 4.39 Q. Dr Jones, please introduce yourself to the jury? A. My name is Marion Jones. I am a doctor at St Vincent’s Public Hospital in  Darlinghurst. My speciality is orthopaedics….

Personalise the expert. Ask questions that illustrate to the jury that the witness is a person they can relate to, rather than simply a person who can narrate an impressive list of credentials. Example 4.40 Q. Why did you specialise in orthopaedics?  Q. What makes the study of bones and joints so interesting?

b  Why is the expert here? When addressing why the expert is here, the conventional approach is as follows: Example 4.41 Q. Dr Jones, do you know Mohammad Sharef? A. Yes, I do. Q. How did you come to meet him? A. He became a patient of mine in May last year. Q. Under what circumstances did you meet him? A. I was the attending orthopaedic surgeon at St Vincent’s Public Hospital  when Mr Sharef was brought in.

And so on. An alternative approach is as follows: Example 4.42 Q. Dr Jones, you were the orthopaedic specialist who treated Mohammad Sharef in May last year? A. Yes. Q. You treated him at St Vincent’s Public Hospital? A. Yes.

25

As is noted in Section 4.2, leading questions are often used when introducing the witness to allow the witness to calm down before giving evidence on matters in issue.

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Q. You operated on his leg following a car accident? A. Yes. Q. You also did the follow-​up medical treatment? A. Yes. Q. Dr Jones, how badly was Mr Sharef hurt in the accident?  A. He was very badly hurt. His leg…

This approach has the advantage of informing the jury immediately what role the expert played in the case. The questions are leading, however, as with any witness, it is permissible to ask leading questions on matters introductory to the witness’s evidence, or relating to matters not in dispute.

c  Can the expert be trusted? When assessing whether the witness can be trusted, the jury will consciously and subconsciously consider the myriad of factors that influence the witness’s effectiveness as a communicator. These factors are discussed in detail in Chapter 2, Section 2.4. The jury also will want to know whether the witness’s expertise has been accepted in other trials. If the answer is “yes”, it might be necessary to explore this further, particularly if you anticipate that the other side will attempt on cross-​examination to characterise your expert as a “hired gun”. Example 4.43 Q. Professor Shahrestaani, have you given expert evidence in court before? A. Yes. Q. How often are you called to give expert evidence? A. On average, three or four times a year. Q. In what type of cases do you usually testify? A. Primarily product liability cases. I am usually asked to analyse consumer product designs and testify as to their safety aspects. Q. Which side usually calls you? A. It varies –​sometimes the plaintiff and at other times the defendant. It all depends on the facts of the particular case. Q. Do you make your living doing consulting work? A. No. I only accept a consultancy if the issue looks interesting. My primary responsibilities relate to teaching, research and administration in the Faculty of  Engineering at The University of Sydney.

When both sides are calling expert witnesses, there is little to be gained by raising the topic of fees in cross-​examination. If you anticipate, however, that the witness may be cross-​examined on this issue, you might consider covering the topic in the introduction. How this might be done is discussed above. When the introductory points have been established, use a transition question to move to the next topic. 142

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Example 4.44  Q. Professor Shahrestaani, let’s turn to your professional qualifications and experience.

Alternatively, you can outline the structure of the rest of the examination. Example 4.45 Q. Professor Shahrestaani, I am going to ask you about your professional qualifications and experience. After that, we will talk about your analysis of the “Handy Man Workstation”. Finally, we will discuss your opinions about the safety aspects of the  Workstation, and the reasons for your opinion.

6  Training, study or experience How does the jury assess expertise? It looks at two components: a

formal education and training; and

b

actual work experience.

Lawyers tend to over-​emphasise formal education and training, likely due to the fact that lawyers have substantial formal education and are impressed by others with similar backgrounds. On the other hand, most jurors will have developed competence in their work through experience and are likely to place more emphasis on this component. The lesson for the advocate is to emphasise both the formal credentials and the actual work experience to convince the jury that the witness is a well-​qualified expert.

a  Formal education and training If the expert’s specialised knowledge is based in whole or in part on his or her formal education and training, you are faced with two apparently conflicting objectives. On the one hand, you want the expert to be impressive, which requires the development of his or her considerable accomplishments. On the other hand, you want the jury to like the expert, which often requires that the witness appears modest and unassuming. Two approaches can be adopted to deal with this problem: 1

Use leading questions from time to time. This breaks up the tone and pace of the examination. The expert will sound less pompous if you state the impressive credentials, and solicit the witness’s modest agreement. Details can then be flushed out through the use of non-​leading, open-​ended questions that allow the witness to explain. This approach is more effective than simply commencing with a question like: “Doctor, can you tell us about your education and training?”.

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Example 4.46 Q. Dr Ward, you are a graduate of the University of Sydney Faculty of Medicine? A. Yes. Q. What year did you graduate? A. 1970. Q. You did your residency year at the Royal Brisbane Hospital? A. Yes. Q. You are a consultant in orthopaedics? A. Yes.  Q. What does it mean to be a consultant in orthopaedics?

And so on. This mixture of leading and non-​leading questions makes the witness appear more modest, and allows the questioning to progress quickly. 2

Use the expert’s curriculum vitae as an exhibit to supplement and expand on the oral evidence relating to his or her qualifications. The use of the curriculum vitae allows you to streamline the qualification of the expert, and place a written record of the expert’s background and qualifications before the jury. It also highlights credentials such as publications, conference presentations, etc. Such evidence is impressive on paper, but can be boring if adduced orally.

If the expert’s opinion is based in whole or in part on the specialised knowledge acquired by formal education and training, specific reference should be made to the education and training (for example, teaching, research, publications, conference presentations, etc) that helped in the formulation of the opinion. For example, an orthopaedic surgeon who will testify that the plaintiff’s condition is permanent might be asked: “Dr Stein, is there anything in your formal education and training that helped you to diagnose degenerative arthritis in Mr Shao’s hip?”.

b Experience If the expert’s specialised knowledge is based in whole or in part on experience, take care to highlight that the experience relates directly to the matters in issue. When eliciting details of the witness’s experience, you should move from the general to the specific –​the specific being the precise matters involved in the trial. 7 Opinion If you have successfully demonstrated that the witness has specialised knowledge based on his or her training, study or experience, the witness will be entitled to give an opinion that is wholly or substantially based on that knowledge. In other words, the opinion will be admissible to prove the

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existence of a fact about the existence of which the opinion was expressed.26 This opinion evidence can be elicited in a number of different ways. One approach is simply to ask the expert to give an opinion. Example 4.47 Q. Dr Horsfall, do you have an opinion as to whether Mary Wilson’s back injury was caused by the assault on 17 May 2017? A. Yes. Q. What is your opinion? A. My opinion is that Mary Wilson’s back injury, the herniation of the disk at the L3-​L4 level, the lumbar section of her spine, was caused entirely by the  assault on 17 May.

Another approach is to couch the question in language that suggests certainty. Example 4.48 Q. Dr Horsfall, what did you conclude about the cause of Mary Wilson’s back injury?  A. I concluded that her back injury was caused by the assault on 17 May 2017.

Alternatively, it may be possible for the expert to testify to something as a fact, rather than as an opinion. Example 4.49 Q. Dr Ahadi, will the scars on Bahrom Nalci’s face ever go away? A. No. Scar tissue is permanent. It may change its appearance slightly over  time, but it will never go away. He will carry the scars for the rest of his life.

Finally, you may be able to elicit the opinion through the use of a hypothetical question. Hypothetical questions, while justly criticised as being cumbersome, can be effective if used properly. They allow you to summarise the evidence introduced up to that point in the trial. In addition, they allow you to elicit an opinion on a critical issue, such as causation or the permanence of injuries. Hypothetical questions, therefore, can be an effective way to conclude the examination-​in-​chief of the expert, and the evidence in your case. This is a relevant consideration when determining the order of witnesses. A hypothetical question should be as brief as possible, and should be framed in a way that parallels the earlier presentation of the facts. If the question is too long, too technical or too confusing, the jury will become bored and stop listening. Hypothetical questions also can be dangerous.

26

For example, see ss 76 and 79 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 145

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If your expert becomes confused, or bases his or her opinion on facts not included in the question, the entire examination may fall apart. This underscores the importance of the pre-​trial preparation of your expert witness. Example 4.50





Q. Dr Balasubramanium, I am going to ask you to assume certain facts as true. I will then ask for your opinion based on those facts. Assume: a A man is 36 years old, 180 cm tall and weighs 75 kg. b Before 27 January 2017, the man was in perfect health. He worked as a school teacher. He enjoyed bushwalking, playing basketball and gardening. c On 27 January 2017, while crossing the street, he was struck on the right side above the knee by a car and knocked down. d He was immediately unable to move his right leg, and experienced shooting pains up and down his leg. e He was taken to hospital, examined and X-​rayed. The diagnosis was a transverse fracture of the left femur 9 cm above the knee. f The fracture was set and a cast was applied. The cast was kept on for 14 weeks. The cast was then removed and therapy commenced. The therapy continued for several months. g Three weeks ago the leg was examined again. At that time the right leg was substantially smaller than the left, the man experiences pain whenever he tries to walk and an examination disclosed that arthritis has developed at the fracture site. h The man cannot engage in sports, cannot work around the house, and cannot engage in physical activities involving the use of his right leg. To do so is too painful. Dr Balasubramanium, based on these facts, do you have an opinion whether there is a causal connection between the injury to the leg and the development of arthritis? A. Yes.  Q. What is your opinion?

8  Reasons for the opinion

a  Sources of opinion In most situations you need to bring out the sources of the information relied on by the expert. This is essential if the witness was not directly involved with the problem. To establish the reliability of the opinion, you need to demonstrate that the expert obtained all of the relevant information. Example 4.51 Consultant psychiatrist Q. Before concluding that the defendant is a danger to himself and others, what sources of information did you have? A. I had the defendant’s complete medical records, from childhood to the present day. I also had his psychiatric records, including his hospitalisation in 2008 in the psychiatric unit at the Prince of Wales Hospital. I had the psychological 146

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tests that were administered by the hospital at that time. Finally, I examined the defendant after his arrest. Q. Was there any additional information that would have assisted you in your evaluation of the defendant? A. No, the available information was complete. The file contained everything a  psychiatrist needs to make an assessment.

b  Recognised field of expertise To be admissible, the expert’s opinion must derive from a “field of expertise”, or “specialised knoweldge”.27 To date in Australia, a definitive threshold test to determine whether such a “field” exists has not been established. In the United States, the court makes an assessment of whether the reasoning and methodology underlying the expert’s testimony is scientifically valid.28 Questions pertaining to the following have to be asked: the test carried out; the known or potential error rate of applying the test; whether the findings have been subjected to peer review and publication; and whether there is general acceptance of the findings in the relevant scientific community.29 It has been suggested that Australian jurisdictions applying the common law of expert evidence focus on relevancy, which is a more liberal test than the scientific validity test applied in the United States. If the court applies an approach based on relevancy, “once the court determines the witness [is] qualified by training or practical experience in an area of knowledge beyond that possessed by the trier of fact, and of apparent assistance to it, then the witness may testify”.30 While there is authority in uniform Evidence Act jurisdictions for the fact that reliability is the focus of the “specialised knowledge” test in s 79,31 both the New South Wales Court of Appeal32 and the Victorian Court of Appeal have interpreted the “specialised knowledge” test in s 79(1) as leaving “no room for reading in a test of evidentiary reliability as a condition

27

28

29 30 31

32

“Field of expertise” is the test applied at common law. “Specialised knowledge” is the term used in s 79 of the uniform Evidence Acts: see S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016), [EA.79.120]. Daubert v Merrell-​Dow Pharmaceuticals 113 S Ct 2786 (1993). See also S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016), [EA.79.120]; J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [29055]. J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [29055]. A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [7.47]. HG v The Queen (1999) 197 CLR 414 at [58] (per Gaudron J); Velevski v The Queen (2002) 76 ALJR 402 at [82] (per Gaudron J); S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016), [EA.79.120]. R v Tang (2006) 65 NSWLR 681 at [137]. 147

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of admissibility”.33 Consequently, there is greater scope under s 79(1) for a person’s knowledge to qualify as “specialised knowledge” notwithstanding that “the area of knowledge is novel or the inference drawn from the facts have not been tested, or accepted, by others”.34 In such circumstances, however, reliability may still be relevant to an assessment of whether the exclusions in ss 135 and 137 (criminal case) of the uniform Evidence Acts apply.35

c  Basis for opinion The last step is to ask the expert to explain the basis for each opinion. This question is usually asked immediately after the opinion is elicited. Example 4.52 Q. Professor Houshyar, you have stated that, in your opinion, the design of the toaster  oven is unreasonably dangerous. What are the reasons for your opinion?

Keep in mind that people like certainty. Rather than constantly using the word “opinion”, consider using more persuasive language. Example 4.53 Q. Professor Houshyar, what conclusions did you come to after examining the toaster oven? A. I concluded that this toaster oven is unreasonably dangerous.  Q. Why did you reach this conclusion?

4.11  CHARACTER WITNESSES 1 Law The law relating to character evidence is complex. This section only provides a general overview of the law in this area, and focuses on uniform Evidence Act jurisdictions. You should consult the relevant statute and case law, together with an Australian text on the law of evidence, before making a decision to call a character witness. Character witnesses occupy a unique niche in trials, and are called primarily, but not exclusively, in criminal trials. Generally, the character of a party to a civil matter is not relevant to the facts in issue. There are exceptions. Where a character trait is an essential element of a claim, charge or

33 34 35 148

Tuite v The Queen (2015) 49 VR 196 at [70]. Tuite v The Queen (2015) 49 VR 196 at [77]. Tuite v The Queen (2015) 49 VR 196 at [82].

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defence, it is direct evidence and can be introduced in both civil and criminal cases. For example, in a defamation action arising from the defendant’s publication of a statement which alleges that the plaintiff is a drug addict, the fact that the plaintiff is a drug addict is a material fact establishing the defence of justification.36 As a general proposition, character evidence may relate to a specific character trait, or it may relate to truthfulness. Each type of evidence will be considered in turn, followed by a discussion of the foundation requirements that must be met before character evidence will be admitted at trial.

a  Evidence of specific character traits In a criminal case, evidence of specific character traits of the defendant may be admissible when the defendant adduces evidence that he or she is a person of good character, either generally or in a particular respect. Where the defendant adduces evidence of good character, rebuttal evidence can be adduced by the prosecution or a co-​defendant to prove that the defendant is not generally, or in a particular respect, a person of good character.37 If the defendant does not put his or her character in issue, evidence of the character, reputation or conduct of the defendant generally is not admissible to prove that the defendant has or had a tendency to act in a particular way, or to have a particular state of mind.38 The rationale for the admission of this type of character evidence rests on the assumption that a person who has regularly exhibited a particular character trait is likely to have acted consistently with that trait at the time of the offence. For example, leading evidence that the defendant has a reputation for honesty is designed to persuade the jury that it is unlikely that the defendant committed a theft. In an assault case, leading evidence that the defendant is a pacifist is designed to rebut the prosecution’s allegation that the defendant viciously attacked the victim. Finally, evidence of specific character traits is admissible in proceedings relating to bail or sentencing.39

36

37

38

39

For example, see s 94(3) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016), [EA.94.90]. For example, see s 110 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For example, see s 97(1) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). This is known as the “tendency” rule (or, at common law, the “propensity” rule). For example, see s 94(2) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 149

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b  Evidence of truthfulness Where character evidence reflects on a witness’s credibility, such evidence may be admitted, provided it falls within an exception to the credibility rule.40 Generally, in a civil case the other side, in an attempt to impugn the witness’s credibility, may introduce reputation or opinion evidence of the witness’s lack of veracity, provided such evidence could substantially affect the assessment of the credibility of the witness.41 The evidence is admitted for the sole purpose of discrediting or diminishing the credibility and weight to be ascribed to the witness’s evidence. This rule applies to any witness, including any party, who has given evidence at trial. Once a witness’s reputation has been impugned, the party who called the witness may rebut the evidence by leading contrary reputation or opinion evidence. In a criminal case, the ability of the prosecution to impugn the defendant’s credibility through the cross-​examination of the defendant is more circumscribed.42 There are distinct procedural differences between evidence of truthfulness and evidence of specific character traits. With respect to the latter, the defendant in a criminal case has the exclusive right to put his or her character in issue, either generally or in a particular respect, by leading character evidence.43 Generally, it is only after the defendant has put character in issue that the prosecution may present contrary evidence.44 With evidence of truthfulness either side, subject to the credibility rule, may question the truthfulness of any witness who has testified for the other side by leading reputation or opinion evidence pertaining to that witness’s lack of veracity. 2 Foundation Several foundation requirements must be met before character trait evidence is properly admissible at trial. Although certain differences exist, the requirements necessary to establish an evidentiary foundation for the admission of character trait evidence and truthfulness evidence are essentially similar. This section provides a general discussion of the necessary 40

41

42

43

44

150

For example, see Ch 3, Pt 3.7 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For example, see s 103 of the Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For example, see s 104 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For example, see s 110(1) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For example, see s 110(2) and (3) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

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requirements but, as is noted above, there are specific statutory and common law rules that apply, particularly in relation to the defendant in a criminal case. You should review the relevant statute and case law before leading such evidence. Generally, character trait evidence will not be admissible unless the following requirements are met. a

The evidence must come from a qualified witness. If a criminal defendant’s reputation is in issue, the witness must be able to give evidence that he or she has heard the person’s reputation being discussed by members of the community. At common law, the witness is not entitled to give reputation evidence based on personal opinion, or comment on the specific incidents upon which the criminal defendant’s general reputation is based.45 Similar restrictions do not appear to apply to reputation evidence of accused persons adduced under the uniform Evidence Acts.46 In both situations, the witness must establish an adequate basis for his or her opinion or evidence of reputation.

b

The evidence must be based on a relevant community or neighbourhood. The size of the relevant community or neighbourhood will vary depending on the nature of the charge. Any identifiable community of substantial population in which the person spends a considerable period of time –​whether defined on the basis of residence, work, school or the organisations to which they belong –​can be an appropriate community for supporting such evidence.

c

The evidence must be based on a proper time period. In other words, the evidence must pass the threshold test of relevance. Generally, where a specific character trait is in issue, the relevant period is the date, or a reasonable period before that date, that the conduct giving rise to the charge was committed. When the witness’s truthfulness is in issue, the relevant time period is the date, or a reasonable period before that date, that the witness gave evidence.

3 Tactics Several considerations should be weighed before deciding to lead character evidence at trial. A list, by no means exhaustive, includes: a

the effectiveness of the character evidence, given the nature of the case;

45

See J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [19110]; A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [3.128]. See s 110(1) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

46

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b

whether the character evidence is consistent with the other evidence that will be, or has been, presented at trial;

c

whether the reputation witness’s evidence encompasses the accused’s reputation in all relevant communities, such as the accused’s reputation at work, in the neighbourhood, etc;

d

whether the character witness is vulnerable on cross-​examination; and

e

whether the accused is vulnerable on cross-​examination, should the accused give evidence.

Once the decision to lead character evidence has been made, appropriate witnesses must be selected. The alternatives are: a

objective witnesses with diverse backgrounds and no financial or family ties with the accused;

b

witnesses who can give evidence concerning the accused’s reputation in every relevant community;

c

witnesses who have an intimate knowledge of the accused’s reputation;  and/​or

d

witnesses with whom the jury will identify and feel comfortable.

If, after weighing the possibilities, you decide to lead character evidence, the examination-​in-​chief of the character witness may be conducted along these lines: Example 4.54 Q. Your full name is Vicki Jane Bowers. A. Yes. Q. You live in the suburb of Toorak in Melbourne? A. Yes. Q. Does anyone live with you? A. Yes, my partner Sally and my three children, Harry, Hamish and Helga. Q. How long have you lived there? A. Fourteen years. Q. What is your occupation? A. I’m a commissioning editor for a publishing company. Q. How long have you been a commissioning editor? A. Fifteen years. Q. What does a commissioning editor do? A. I conduct contractual negotiations with authors on behalf of the publishing company, and then work with the authors to ensure they have what they need to deliver the book on time. Q. What company do you work for? A. Donnelly Press. Q. In what kind of business is Donnelly Press engaged? A. It publishes all kinds of books, with a focus on young adult fiction and children’s books. 152

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Q. How long have you worked for Donnelly Press? A. Six years. Q. What is your present position with Donnelly Press? A. I’m the assistant manager of the editors’ section. Q. Do you know Tom Collins? A. Yes, I do. Q. How long have you known him? A. Fourteen years. Q. Are you related to him in any way? A. No. Q. Do you have any business dealings with him? A. No. Q. Have you ever had any business dealings with him? A. No. Q. During the 14 years you have known Tom Collins, how often would you come into contact with him? A. On average, about two or three times a week. Q. In what suburb does Tom Collins live? A. Toorak. Q. How long has he lived in Toorak? A. About 10 years. Q. Where is his home in relation to your home? A. It’s in the next street behind mine. Q. In the years you have known Tom Collins, have you known other people in the community in which he lives who have also known him? A. Yes. Q. Who are these people? A. Other people who live in the neighbourhood. Q. Have you ever been present when people from your neighbourhood have discussed Tom Collins? A. Yes. Q. How many people from your neighbourhood have you heard discuss Tom Collins? A. Probably a couple of dozen. Q. How many times have you heard them discuss Tom Collins? A. Probably at least a hundred times over the past 14 years. Q. Ms Bowers, I want you to think back to January 2018. Can you comment on Tom Collins’s reputation in the neighbourhood around that time? A. Yes I can. Q. What is that reputation? A. It was, and still is, excellent. Tom Collins is known as an honest, trustworthy person.  

If the witness is also entitled to give a personal opinion, that opinion can be elicited quickly.

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Example 4.55 Q. Ms Bowers, other than having heard about Tom Collins’s reputation in the community, what is your opinion of him?  A. I think that he is an extremely honest, gentle and loving person.

4.12  HOSTILE AND UNFAVOURABLE WITNESSES So far this chapter has discussed the examination-​in-​chief of witnesses who are favourably disposed to the position of the party being represented by the examiner. When this is the case, the witness can be expected to co-​ operate with the development and presentation of his or her evidence. A completely different situation arises when the examiner is confronted with a hostile or unfavourable witness. 1  Unfavourable witness The distinction between a hostile and an unfavourable witness arises from the way such witnesses are treated in uniform Evidence Act and common law evidence jurisdictions. In jurisdictions covered by the uniform Evidence Act, the court has a wider jurisdiction to allow a party to cross-​examine his or her own witness. Pursuant to s 38(1), a party who called a witness may, with leave of the court, cross-​examine the witness about: (a)

evidence given by the witness that is unfavourable to the party; or

(b)

a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination-​ in-​ chief, making a genuine attempt to give evidence; or

(c)

whether the witness has, at any time, made a prior inconsistent statement.

The word “unfavourable” as used in the uniform Evidence Acts is defined more broadly than the word “hostile” as used in common law evidence jurisdictions. “Unfavourable” simply means that a witness gives evidence that is “not favourable” to the party calling the witness.47 While a distinction may be drawn between evidence which is not favourable, and the attitude the witness displays towards the party calling him or her which is not favourable, both situations fall within the ambit of s 38.48 In summary, under the uniform Evidence Acts, both hostile and unfavourable witnesses will generally fall within the ambit of s 38.

47 48 154

R v Souleyman (1996) 40 NSWLR 712 at 715; R v Lozano (Matter No CCA 60487/​96, 10 June 1997, NSWCCA) at 4; DPP v Garrett [2016] VSCA 31 at [66]. R v Lozano (Matter No CCA 60487/​96, 10 June 1997, NSWCCA) at 4.

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At common law, if you are forced to call an unfavourable witness to establish an essential element of your claim or defence, you are not permitted to cross-​examine the witness unless you can establish that the higher threshold of “hostile”, as discussed below, has been met. You are permitted, however, to adduce independent evidence to contradict the witness’s evidence, or establish a fact the witness failed to prove. 2  Hostile witness A hostile witness is not merely a witness whose evidence turns out to be unfavourable to the party calling the witness. The test is whether the “witness is deliberately withholding material evidence by reason of an unwillingness to tell the truth at the instance of the party calling him [her] or for the advancement of justice”.49 Hostility towards the party calling the witness may be present, but the absence of such hostility will not be fatal to the application to have the witness declared hostile. As the court noted in R v Hutchison, “the crucial consideration is that the party calling the witness is unable, by reason of the witness’s unwillingness to tell the truth or the whole truth, to elicit the true facts by non-​leading questions”.50 A witness will not be considered hostile if they simply fail to come up to proof through forgetfulness or confusion.51 Refreshing the witness’s memory, discussed in Section 4.6, is the appropriate procedure in such a situation. The party who calls the witness must make an application for a ruling that the witness is hostile. The trial judge, usually on a voir dire in the absence of the jury, makes the determination as to whether the witness is, or is not, hostile. Once the court has determined that a witness is hostile, the party calling the witness has the right to cross-​examine the witness. A declaration that a witness is hostile constitutes an exception to the general rule that a party cannot cross-​examine his or her own witness. The right to have a witness declared hostile is governed by the common law and by statute52 in jurisdictions not covered by the uniform Evidence Act. You should refer to the relevant case law and statutory provisions before considering an application to have your witness declared hostile. A hostile witness is out of your control, and, if possible, calling hostile or unfavourable witnesses should be avoided. If you are forced to call such witnesses, it is safer to call them in the middle of your case where they will be sandwiched between favourable witnesses. Brevity is the safest approach

49 50 51 52

R v Hutchison (1990) 53 SASR 587 at 592. See also R v Hayden and Slattery [1959] VR 102 at 103; McLellan v Bowyer (1961) 106 CLR 95 at 104. R v Hutchison (1990) 53 SASR 587 at 592 (emphasis added). A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [7.121]. Evidence Act 1977 (Qld), s 17; Evidence Act 1929 (SA), s 27; Evidence Act 1906 (WA), ss 20, 21. 155

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when dealing with hostile and unfavourable witnesses. Lead them directly to the essential facts, elicit the answers and then conclude. The longer such witnesses are in the witness box, the greater the opportunity they have to damage your case.

4.13  USING PRE-​TRIAL EVIDENCE In criminal and many civil53 cases, evidence usually is given orally at trial, however, provision is made in all jurisdictions for the use at trial of evidence taken before the trial begins. Such evidence is an exception to the hearsay rule, and may be in the form of an affidavit, commission evidence, letter of request, interrogatory or, in a criminal case, a deposition taken at a committal proceeding. Generally, such evidence will be admitted as an exception to the hearsay rule if the witness is unable to attend the trial through death or illness or, for some other reason is incapable of being called, and the other side had an opportunity to question the witness when the evidence was taken. The procedure for the taking of such evidence, and its introduction at trial, is a matter of statutory provision in each state and territory. You should refer to the relevant legislation before making an application to have the pre-​trial evidence read into the record during the trial.54

4.14  JUDICIAL NOTICE AND AGREED FACTS 1 Judicial notice In our adversarial system, relevant facts must be the subject of evidence. In other words, the facts must be proved and it is up to the parties, not the court, to lead the evidence necessary to establish the fact. The doctrine of judicial notice is an exception to this general proposition. Section 144(1) of the uniform Evidence Act, which is based on the common law approach to judicial notice,55 provides: (1)

Proof is not required about knowledge that is not reasonably open to question and is:



(a)

common knowledge in the locality in which the proceeding is being held or generally; or



(b)

capable of verification by reference to a document the authority of which cannot reasonably be questioned.

53 54 55 156

Increasingly in civil cases evidence-​in-​chief is in affidavit form with only limited opportunities for witnesses to give evidence-​in-​chief orally. For a discussion of the relevant case law and statutory provisions, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17005]-​[17050]. See Holland v Jones (1917) 23 CLR 149 at 153.

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Generally the court will, in response to an application by a party or on its own motion, take judicial notice of facts in issue if they belong to one of three categories: a

facts that are generally known in the geographical area where the court is situated. For example, a court sitting in Sydney may take judicial notice of the fact that the St James Church is adjacent to the Supreme Court Building. A court sitting in Adelaide, however, may decline to take judicial notice of this fact, and may require that the fact be formally proved;

b

facts that can be verified easily and accurately from a reliable source. Life expectancy as recorded in actuarial tables, the date of a full moon as recorded in an almanac or the day of the week on a particular date are all examples of facts which may be the subject matter of judicial notice; and

c

facts that are based on accepted scientific tests, such as the testing of blood alcohol levels, or the use of radar machines to measure the speed of moving vehicles.

These categories are not exhaustive and, given the information age in which we live, are continually expanding. Further, a variety of statutory provisions exist which provide that judicial notice shall be taken of specific matters.56 2  Formal and informal admissions In a civil case, a party may formally admit facts in the pleadings, or in answer to a notice to admit. The parties also may agree informally to conduct the litigation on the basis that certain matters are not in issue. Neither type of admission can be retracted by the party who makes it, unless the court gives leave.57 In a criminal case, the common law stipulates that no formal admissions can be made, other than a plea of guilty. However, statutory provisions in all jurisdictions now allow the accused formally to admit a fact in issue.58 If possible, admissions should be put in writing and admitted into evidence so that they may be brought to the attention of the jury. Finally, a court is not bound to accept as true any fact just because it is admitted between the parties.59

56 5 7 58

59

Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [3005]-​[3155]. J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [3165]. See ss 184 and 191 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also Criminal Code 1899 (Qld), s 644; Evidence Act 1929 (SA), s 34; Evidence Act 1906 (WA), s 32. Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [3180]. Davison v Vickery’s Motors Limited (In liq) (1925) 37 CLR 1 at 7. Generally see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [3165]. 157

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4.15 

RE-​EXAMINATION

Counsel conducting the examination-​ in-​ chief has the right, after the cross-​examination of his or her witness has been completed, to conduct a re-​examination of that witness. The purpose of the re-​examination is to explain ambiguities and uncertainties in the witness’s evidence arising out of the cross-​examination, or to develop further matters that were raised during the cross-​examination. It may be taken as a general rule that, if the matter did not arise in cross-​examination, you have no right to raise it in re-​ examination unless the court gives leave.60 In other words, re-​examination should not be used as a means to elicit information which should have been covered in examination-​in-​chief, but which, through oversight or error of judgment, was not covered. Generally, re-​examination allows you to: 1

rehabilitate a witness who has been cross-​examined on a prior inconsistent statement by asking him or her to explain why the inconsistency happened;

2

ask the witness to correct something said on cross-​examination that was wrong or misleading; and

3

develop matters that were raised in cross-​examination.

It is a dangerous tactic to withhold a crucial part of the examination-​in-​ chief on the assumption that it can be used with devastating effect in re-​ examination. “Sandbagging” is great when it works, but it is a disaster when it fails. The cross-​examiner, either through design or luck, may decide not to cross-​examine at all, or may decide to cross-​examine on topics completely divorced from the withheld topic. If this occurs, you are in the unenviable position of having to make an application to the court to reopen your case and recall the witness. This application may be denied and, even if it is granted, the jury will view the recalling of the witness as an afterthought, reducing the impact of the evidence. The safer approach is to elicit all the relevant evidence during the examination-​in-​chief. Before you begin the re-​examination you are not permitted, without leave of the court,61 to discuss with the witness the evidence he or she has

60

61

For example, see s 39 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also P Young, “Practical Evidence: Re-​examination” (1991) 65 ALJ 282. You can seek leave to confer with your client if matters were raised on cross-​examination that you could not have reasonably foreseen. When such a situation occurs, Young J (writing extra-​judicially) suggests that you should indicate the following to the judge: Your Honour, the witness has been asked questions about subject-matters which did not seem to me to be relevant and upon which I have not taken instructions. I would seek to confer with the witness further before re-examination.

158

P Young, “Practical Evidence: Re-examination” (1991) 65 ALJ 282 at 283.

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given on cross-​examination. It is essential, therefore, that you anticipate accurately the answers the witness will give on re-​examination. If you are incorrect in your assumptions, and the answers the witness gives are ambiguous, or reinforce the evidence given in cross-​examination, you will have highlighted the damaging testimony. Should you re-​examine? Every re-​examination necessarily implies that something was either forgotten or needs fixing. When deciding whether re-​examination is necessary, ask yourself: 1

given my theory of the case, has a matter arisen in cross-​examination that needs to be addressed; and

2

will I be able to elicit the evidence necessary to address the matter through the use of non-​leading questions?

If the answer to either of these questions is “no”, as a general proposition you should not re-​examine. You will simply damage your case. Further, do not re-​examine on the assumption that it is always advantageous to have the last word. The fact that you have nothing substantial to develop will not be lost on the jury, and they will view your re-​examination as a rehash of existing evidence. If you have no legitimate reason to re-​examine the witness, advise the court that you have no further questions and sit down. The court and the jury will appreciate your brevity. If you answer “yes” to the above questions, you should re-​examine. Re-​ examination commonly involves one of three situations: 1

the witness’s conduct has been called into question during the course of the cross-​examination;

2

only the parts of an occurrence or conversation favourable to the other side have been brought out in cross-​examination; or

3

the witness’s credibility has been called into question through the use of a prior inconsistent statement.

In each of these instances, re-​examination can be used effectively to elicit additional facts that complete the story or explain why the inconsistency occurred. Example 4.56 In the cross-​examination of an assault victim, a cross-​examiner stresses the fact that, following the assault, the victim allowed two hours to pass before she contacted police. This implies that the assault did not occur. On re-​examination, counsel for the victim asks the following question: Q. Ms Jones, why did you wait for two hours before you contacted the police? A. I was upset and frightened. He said he would come back and kill me if I con tacted the police.

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Example 4.57 A cross-​examiner elicits only the part of a conversation favourable to her case. On re-​examination, counsel who called the witness asks: Q. Other than saying, “I’m sorry this whole thing happened”, did you say anything else to Mr Zielinski at the time? A. Yes, I also said, “However, if you don’t pay me the money you owe me, I’ll  have to hire a lawyer and sue you to recover it”.

When a witness has been questioned about a prior inconsistent statement during cross-​examination, it is proper, on re-​examination, to “rehabilitate” the witness. This is accomplished by having the witness explain how and why the inconsistency occurred. If you are confident that the witness has a sensible, logical explanation for the inconsistency, questions designed to elicit this explanation will lessen significantly the impact of the inconsistency. Example 4.58 In examination-​in-​chief a police officer gives evidence that, when she arrested the defendant, the defendant said: “Rita Chin owed me a lot of money and she got what she deserved”. The cross-​examiner attempts to discredit the police officer’s evidence by showing that the defendant’s statement did not appear in the police officer’s initial report. In re-​examination, it is proper for counsel to ask: Q. How many reports of this shooting did you make? A. Two, my initial report and a supplementary report. Q. When did you prepare the supplementary report? A. 20 January 2018. Q. Constable Rutkowski, the clerk is showing you Exhibit 42. Do you recognise that document? A. Yes, this is my supplementary report dated 20 January 2018. Q. Please read to the jury the third sentence of the second paragraph? A. It states, “The defendant said, ‘Rita Chin owed me a lot of money and she got what she deserved’ ”. Q. Why did you not include this statement of the defendant in your initial report? A. The initial report covered only the events leading up to the time the defendant was arrested at his house. The defendant’s statement was made at the police station, and what happened at the police station is contained in my supplemen tary report.

Under certain circumstances a witness whose evidence has been discredited by a prior inconsistent statement may be “rehabilitated” through the introduction into evidence of a prior consistent statement. If the implication arising from the cross-​examination is that the witness has recently fabricated his or her evidence, or is actuated by an improper influence or motive,

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it is proper on re-​examination to elicit a prior consistent statement that was made before the motive to lie existed.62 Example 4.59 A defence witness in a negligence case is cross-​examined as follows: [Cross-​examination] Q. The truck involved in the collision with the plaintiff’s car was owned by Federal Express, the defendant in this case, correct? A. Yes. Q. When you were interviewed by the claims adjuster, Ms Namoradze, two months after the accident you told her that the Federal Express truck was speeding at the time of the accident, correct? A. Yes, but… Q. Three months after the accident you got a job with Federal Express? A. That’s correct. Q. You now claim that the Federal Express truck was not speeding at the time of the accident? A. That’s right. The conclusion to be drawn from this cross-​examination is that the witness is actuated by improper influence or motive –​namely, that her evidence is the product of her being hired by the defendant after the accident. The suggestion of improper influence or motive can be rebutted by a prior consistent statement. [Re-​examination] Q. What did you do immediately after the accident? A. I talked to the police officer who attended at the scene. Q. What did you say to the police officer? A. I said that the Federal Express truck was not speeding at the time of the accident.  

62

For example, see s 108(3) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [7.158].

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CHAPTER 5

Exhibits and Visual Aids

5.1 INTRODUCTION....................................................................................... 163 5.2 PRODUCING AN EXHIBIT AT TRIAL........................................................... 164 5.3 LAYING THE FOUNDATION...................................................................... 168 5.4 PLANNING, PREPARING AND USING VISUAL AIDS AND EXHIBITS............ 198

5.1 INTRODUCTION Ours is the age of the visual media and digital communication technologies. Television and the internet are the dominant information-​transmitting sources in our society. While historically the courts have focused on aural and printed communication, a whole generation has been raised and educated through a reliance on the sense of sight. Advertising on television, internet “pop ups”, billboards and in magazines is often predominantly non-​verbal, subliminally influencing viewers. Social science research indicates that learning and retention are significantly improved if information is communicated through multiple channels. Conveying information visually is particularly important. To be effective –​that is, persuasive –​advocates require a mastery of communication –​aural, written and visual. “Show and tell” works. These changes have not gone unnoticed in the courtroom. Good advocates know that a picture is indeed worth a thousand words and, if a picture is so useful, a map, chart, diagram, model, experiment, in-​court demonstration or computer-​generated graphic also should be considered. In summary, exhibits have assumed a new importance. Visual exhibits and aids are important not only in presenting new information in an attractive and memorable way, but also in summarising and highlighting information already presented through another medium. An exhibit can be defined as “a document or other item or object produced in a law court as evidence”.1 In its broadest sense, an exhibit can be anything other than oral evidence that can be perceived by the senses and produced in court. The breadth of the definition is reflected in the definition 1

The Concise Oxford Dictionary of Current English (9th ed, D Thompson ed, 1995), p 472. 163

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of “document” found in the uniform Evidence Act. There, a “document” is defined to mean, any record of information, and includes: (a)

anything on which there is writing; or

(b)

anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

(c)

anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

(d)

a map, plan, drawing or photograph.2

Exhibits have a tremendous impact on the jury. Once entered, they become the centre of attention and make an immediate and lasting impression. The jury sees the exhibits as not only more interesting than oral evidence, but also more reliable. An advocate, therefore, must learn how to establish the foundation for the entry of an exhibit, and also how to use the exhibit effectively at trial. This chapter discusses the proper procedure to be followed when producing an exhibit at trial, the requirements for introducing into evidence a variety of exhibits commonly encountered in a trial and the effective use of exhibits and visual aids in court.

5.2  PRODUCING AN EXHIBIT AT TRIAL Exhibits are generally admitted in evidence through a witness, so your first task will be to select the witness through whom the exhibit will be produced. Often you will have more than one witness who is competent to qualify an exhibit for admission into evidence. If this is the case, the witness who has the most knowledge of the exhibit and who will make the best impression on the jury is the one you will ordinarily select. If more than one witness is required to establish the proper foundation for the entry of an exhibit, do not attempt to tender the exhibit into evidence until all the necessary witnesses have given evidence. Before this, the exhibit will have been marked “for identification” only and, as such, is not yet evidence in the case. It is usually advantageous to enter your exhibits as early in your case-​in-​ chief as possible; therefore, the production of exhibits is a relevant consideration in the selection and ordering of your witnesses. If an exhibit is being tendered with the agreement of counsel for the other side and without the necessity of formal proof, or the exhibit is an answer to an interrogatory, it may, with the consent of the court, conveniently be tendered at the opening of your case.

2

164

Dictionary, Pt 1 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2008 (Vic). Evidence Act 2001 (Tas), s 3.

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The trial judge will usually require that certain procedural steps be followed before an exhibit will be admitted into evidence. These are: 1

show the exhibit to counsel for the other side;

2

have the exhibit put before the witness;

3

lay the foundation for the tender of the exhibit;

4

tender the exhibit; and

5

publish the exhibit to the jury.

The steps may be relaxed in some circumstances –​when an exhibit is admitted into evidence through the agreement of counsel, for ­example –​however, you should be familiar with the formal procedural requirements. Step 1  Show the exhibit to counsel for the other side While the procedure followed in the various jurisdictions is not uniform on this point, counsel for the other side, as a general rule, should be given the opportunity to look at an exhibit before it is put to the witness. This provides counsel with an opportunity to examine the exhibit before it is formally tendered, and object if necessary. If the exhibit is one that is capable of reproduction, such as a document or photograph, have a copy available for the judge and another copy available for counsel for the other side. Step 2  Have the exhibit put before the witness You are not permitted to approach a witness without the court’s permission. Exhibits are put before the witness by a clerk or other court officer, so you must alert that officer that you require his or her assistance. Example 5.1 Counsel: Ms Burnett, the court officer is now showing you a document. [Counsel hands the original document to the court officer, who places it before  the witness.]

Care should be taken to ensure that the jury does not see the contents of the exhibit, because the jury is entitled to see an exhibit only after it has been admitted into evidence. Exhibits such as photographs, written documents and business records can be handed to the witness easily without the jury seeing the contents. Physical objects, and demonstrative exhibits such as large diagrams and models, often cannot be handled in the courtroom without the jury seeing them. If it is anticipated that an objection will be made to the entry of such an exhibit, either counsel making the tender, or counsel objecting to the entry of the exhibit, should request a voir dire in the absence of the jury. Counsel tendering the exhibit can then establish the foundation for the exhibit out of the jury’s presence. If the judge upholds the objection, the jury will not have seen the exhibit and, therefore, cannot 165

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be improperly influenced by it. It is important to remember that legal arguments should not be heard by the jury, and it is improper for an advocate to make an evidentiary objection in front of the jury in a way that is calculated to influence the jury. Step 3  Lay the foundation for the tender of the exhibit Laying the foundation for the admission of an exhibit into evidence is discussed in Section 5.3. Step 4  Tender the exhibit Once the foundation for the admission of the exhibit has been laid, counsel tenders the exhibit. Example 5.2 After laying the foundation for the entry of the exhibit into evidence, counsel states: Counsel: Your Honour, we tender the letter dated 21 January 2018 as the next exhibit.  Court: The letter dated 21 January 2018 will be marked Exhibit 4.

Once you have established a proper foundation for the admission of the exhibit into evidence, there is no need to seek leave to tender, as entry is not a matter of discretion for the trial judge. In other words, you should not say, “Your Honour, may we tender the letter dated 21 January 2018 as the next exhibit”. Further, once the exhibit has been marked, make sure you record the exhibit in the exhibit chart in your trial notebook (see Chapter 1, Section 1.4). Step 5  Obtain permission to publish the exhibit to the jury Once an exhibit has been admitted into evidence, you may wish to read or show the exhibit to the jury. This is called “publishing the exhibit”. You should publish an exhibit in the way calculated to maximise its impact on the jury. This will depend largely on the nature of the exhibit. Exhibits such as models will already have been seen by the jury, so the necessity of handing the exhibit to the jury does not arise. Exhibits such as photographs and documents are usually shown or read to the jury. How and when this should be done is discussed in detail in Section 5.3. Example 5.3 Exhibits such as photographs and tangible objects Counsel: Your Honour, may Exhibit 4 now be published to the jury. Court: It may. Counsel hands the exhibit to the court officer who hands it to the first juror. The juror looks at it, and then passes it on to the next juror until all of the jurors have  seen it. The exhibit should then be handed back to the court officer.

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Example 5.4 Written documents and records Exhibits such as written documents and records can be published either by showing or reading the exhibit to the jury. If read, the document should be short, and either the witness or counsel can read it to the jury. Counsel: Mr Smith, please read to the court and the jury all of Exhibit 1. [The witness reads from the exhibit.] Counsel: Members of the jury, Exhibit 1 reads as follows:…  [Counsel reads the exhibit to the jury.]

Showing or reading an exhibit to the jury will not be effective if the exhibit is a lengthy or complicated document. In this situation, ask the witness to read only the important parts of the document and, with the court’s permission, provide a complete copy of the exhibit to the individual jurors who may then review the document during a break. You must, as an officer of the court, ensure that the part of the document read into the record by the witness is not read out of context. This may mislead the jury and, ethical considerations aside, the other side may pick up the discrepancy and use it with devastating effect in cross-​examination. Increasingly in Australian courtrooms laptops and tablets are being used to “push” images onto screens located in the courtroom through apps such as Exhibit A, Trial Pad and Evidence, to name but three. Jurors can view the documents on screens mounted in the courtroom, or on individual screens located in the jury box.3 By displaying exhibits in this way, counsel can ensure that all participants –​the jury, the judge, opposing counsel and the authenticating witness –​are looking at the same document or the same part of a document. If the courtroom in which you are appearing is equipped for the use of such technology, consideration should be given to using it. These, briefly, are the formal steps that must be followed before exhibits will be admitted into evidence. The steps may vary in detail from jurisdiction to jurisdiction, and from judge to judge. Before the commencement of the trial, ascertain the procedure followed by the judge assigned to the case. Section 5.3 contains examples of how a variety of different types of exhibits are tendered at trial. How do you handle exhibits that have been admitted by pre-​trial order or by consent of the parties? Although the exhibit is in evidence and can be shown or read to the jury, the jury has not yet seen the exhibit and has no way of ascertaining whether it is reliable. While it is not necessary for a witness to lay a formal foundation, he or she should briefly introduce the exhibit.

3

L McDonald, D Tait, K Gelb, M Rossner, B McKimmie, “Digital Evidence in the Jury Room: the Impact of Mobile Technology on the Jury” (2015) 27 Current Issues Crim Just 179 at 180. 167

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Example 5.5 Q. Ms Menon, the court officer is showing you Exhibit 6 which has already been admitted into evidence. What is this document? A. It is one of the standard invoices issued by our company. We fill one out each time we sell something to a customer. Q. Looking at the first box, what does that indicate? A. It’s the box for the name of the customer. On this invoice the customer’s name is Robert Parker. The same approach can be used when an exhibit is used again at trial, after it has already been admitted into evidence through an earlier witness. The witness should quickly identify the exhibit and acknowledge that it is accurate,  although it is not necessary to lay a formal foundation.

Example 5.6 Q. Mr Williams, the court officer is showing you a diagram that has already been admitted into evidence as Defendant’s Exhibit A. What is shown on the diagram? A. It’s a diagram of the intersection of King and Elizabeth Streets in the central business district of Sydney. Q. You have already told us that you were standing on the corner of King and Elizabeth Streets when the accident happened. Please draw a “W” in a circle showing where you were standing when the two cars collided.  [Witness marks the diagram.]

5.3  LAYING THE FOUNDATION Every exhibit must meet three basic requirements before it will be admitted into evidence. The requirements are that: 1

the qualifying witness must be competent;

2

the exhibit must be relevant and reliable; and

3

the exhibit must be authenticated.

The first two requirements rarely cause a problem. A qualifying witness will be competent if he or she is capable of authenticating (laying the foundation for) the exhibit, and can testify from first-​hand knowledge that the exhibit is what it purports to be. The trial judge will ascertain relevance based on the evidence elicited up to that point in the trial, the pleadings (in a civil case) and the representations of counsel on the issue of relevance. Authentication is the principal issue raised at trial. Authentication requires that the qualifying witness establish that the exhibit is what it purports to be. To satisfy the judge, the witness’s evidence must fulfil the technical requirements of admissibility. For example, if the exhibit contains an out-​of-​court statement which you intend to use for a hearsay purpose, it will be necessary to establish that an exception to the hearsay rule applies. To satisfy the jury, the witness’s evidence must be factually persuasive and credible. Therefore, ask yourself, “What should I ask, beyond what is legally 168

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required for admissibility, to convince the jury that the exhibit is relevant, authentic and reliable?”. Example 5.7 Q. Officer Fukushima, the court officer is handing you an object. Do you recognise that object? A. Yes, it’s the handgun I took from the defendant’s jacket at the time I arrested him. Q. Is the gun in the same or substantially the same condition now as when you took it from the defendant’s jacket? A. Yes. [This satisfies the legal requirements for admissibility. If the gun is an important piece of evidence, however, ask additional questions to convince the jury that the exhibit is authentic and reliable.] Q. Officer Fukushima, how do you know that it is the gun you took from the defendant? A. When I took the gun from the defendant, I marked the handle with my initials and the date. If you look at the handle it has the initials “WF” and the date, “24/​01/​2018”. I also described the gun and recorded the serial number in my police report. The serial number on this gun is the same as the serial number in my police report. I know, therefore, that this is the gun I took from  the defendant.

This section discusses the foundation that must be laid for the types of exhibits frequently introduced at trial. As we noted at the beginning of this chapter, the term “exhibit” is defined broadly; however, the majority of exhibits fall into one of four categories: 1

Real evidence. “Real evidence is information experienced directly by the trier of fact and not reported through the testimony of a witness.”4 It is the actual tangible object involved in an event. Common examples include weapons, clothing, drugs, defective products and other objects. When laying the foundation for the admission of real evidence, the qualifying witness must give evidence that the exhibit is the actual one involved in the case, not a substitute, and that it is in basically the same condition at the time of trial as it was on the relevant date.

2

Demonstrative evidence. Demonstrative evidence is evidence that, while not the actual object, represents or illustrates that object. Examples include photographs, diagrams, maps, models and computer-​generated graphics and animations. If the demonstrative evidence fairly and accurately represents the object, and helps the trier of fact understand the real thing, it is usually admissible.

3

Writings. Writings are documents that have direct legal significance and, as such, are not excluded by the hearsay rule. Examples include

4

A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [7.20]. 169

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written contracts, promissory notes, cheques and wills. Such exhibits are generally admissible if they are signed and the qualifying witness can give evidence establishing the authenticity of the signatures. The authorship and reliability of other writings, such as electronic mail, or attachments to electronic mail containing an electronic signature, are often more difficult to establish.5 In uniform Evidence Act jurisdictions, however, this difficulty is largely overcome by three sections. The first, s 48(1)(b)(i), provides that the proof of the contents of a document is satisfied by tendering a document that “is or purports to be a copy of the document in question”. The second, s 51, abolishes the original document rule by stipulating that “the principles and rules of the common law that relate to the means of proving the contents of documents are abolished”. The third, s 161, contains a number of rebuttable presumptions, including as to authorship, which apply to electronic communications.6 4

Records. The admission of business records is both a common law and statutory exception to the hearsay rule. Business records include not only common records like invoices, shipping documents and bills, but can also include records such as telephone memos and diaries. Generally, such records will be admitted if the qualifying witness can testify that the records were compiled in a systematic way in accordance with an established system (see Chapter 4, Section 4.7).

The following examples illustrate the types of exhibits that fall within the four categories, and the procedure that should be followed when laying the foundation for their admission. While evidentiary rules relating to the admissibility of exhibits vary from jurisdiction to jurisdiction, the following examples illustrate procedures designed to establish the legal foundation, and techniques to convince the jury that the exhibit is relevant, authentic and reliable. Establishing the foundation for the tender of an exhibit should be done smoothly and efficiently. This is facilitated by the fact that questions eliciting foundation information generally relate to matters not in dispute. You are permitted, therefore, to ask leading questions of the qualifying witness.

5

6

170

Generally, see C Reed, “Authenticating Electronic Mail Messages –​Some Evidential Problems” (1989) 52 MLR 649; A Jablon, “ ‘God Mail’: Authentication and Admissibility of Electronic Mail in Federal Courts” (1997) 34 Am Crim Law Rev 1387. See Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For a discussion of the original document rule, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [35110].

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1  Tangible objects

a Elements To lay the foundation for the admission of a tangible object into evidence, you must show that: 1

the exhibit is relevant;

2

the exhibit can be identified visually, or through the use of other senses;

3

the witness recognises the exhibit;

4

the witness knows what the exhibit looked like on the relevant date; and

5

the exhibit is in the same or substantially the same condition at the time of the trial as it was when the witness saw it on the relevant date.

These requirements apply to any tangible object that can be identified positively by the qualifying witness. Common examples include weapons, clothing and other tangible objects that can be identified visually, either because the article is inherently unique, or because a serial number, marking or identifying symbol makes it unique. With this type of exhibit, it is not necessary to establish a chain of custody. Example 5.8 A police officer has given evidence that she found a handgun at the defendant’s house. Q. Please describe the weapon you saw on the wardrobe in the bedroom. A. It was a .38 calibre, blue-​steel, Colt handgun, five-​shot, with a brown wooden handle and a 5 cm barrel. [After showing the exhibit to counsel for the other side and asking the court officer to put it before the witness, counsel continues:] Q. Constable Singh, please take a look at the handgun the court officer is putting before you. Do you recognise it? A. Yes, I do. Q. Why do you recognise it? A. It’s the handgun I seized from the defendant’s house. Q. When was the first time you saw the handgun? A. When I saw it on the wardrobe in the bedroom on 24 January 2018. Q. How are you able to recognise the handgun you have before you today as the handgun you saw on the wardrobe in the defendant’s bedroom on 24 January 2018? A. Well, I remember what kind of gun it was and what it looked like. I can remember particularly the notches that were cut in the wooden handle. [The witness points to the notches.] I also recorded in my report the serial number inscribed on the barrel. In addition, I attached a tag with the date and my initials on the trigger guard and they’re still there: “24/​01/​2018, GMS”.

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Q. Is the handgun in the same, or substantially the same, condition today as it was when you first saw it on 24 January 2018? A. Yes, it is. Q. Is there anything different about the handgun today compared to when you first saw it? A. No.  Q. Your Honour, I tender the handgun as Exhibit 14.

You will note that counsel is careful to elicit a description of the handgun from the witness before the exhibit is put to the witness. The authentication of the exhibit must come through the witness, not through counsel. The following example demonstrates the incorrect way of introducing an exhibit into evidence. Example 5.9 Incorrect foundation Q. Constable Singh, please take a look at the handgun the court officer is putting before you. Do you recognise it? A. Yes, I do. Q. Is that the handgun you seized from the defendant’s house on 24 January 2018? A. Yes, it is. Q Is it in the same condition as when you first saw it on 24 January 2018? A. Yes, it is. Q. Is there anything different about the handgun today compared to when you first saw it? A. No.  Q. Your Honour, I tender the handgun as Exhibit 14.

If the physical object is so large that it cannot be brought into the courtroom, or if demonstrative evidence such as photographs and diagrams do not show a scene adequately, the judge and jury can be taken to the object or scene. This is called a “view”. The procedure is generally regulated by statute, and the decision to permit a view, and the procedure to be followed at the view, is within the discretion of the trial judge.7 2  Chain of custody Where a tangible object cannot be identified specifically, a “chain of custody” must be established to demonstrate that the object produced in the courtroom is the same object that was previously found. Examples include narcotics sent

7

172

For example, see ss 53–​54 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For non-​uniform Evidence Act jurisdictions, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [1290]-​[1295].

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to a laboratory for testing, such as pills or powdered drugs, bullets, wire tubing, paint chips, dirt samples and liquids, such as blood or brake fluid. Before such objects can be admitted, a chain of custody must be established to prove that the object has not been switched, altered or tampered with.

a Elements There are two primary ways a chain of custody can be established: 1

by showing that the exhibit has been in the continuous, exclusive and secure possession of one or more persons at all times; or

2

by showing that the exhibit has been in a uniquely marked, sealed, tamper-​proof container at all times. Example 5.10 Method 1 A police officer has testified that she removed a broken hydraulic brake fluid cable from a car immediately after an accident. Q. Constable Hill, what did the tubing look like? A. It was a black rubber tube, approximately 10 cm long and 2 cm in diameter. It was covered with black fluid and had a large crack running down its length. Q. What did you do with the tubing after you removed it from the car? A. I put it in a small cardboard box, labelled the box and placed it in my evidence locker. Q. Where was the tubing between the time you removed it from the car and the time you placed it in your evidence locker? A. I placed the tubing in the box at the scene of the accident, photographed it and then placed the box on the floor of the passenger side of the police car. I then drove back to the station and placed the box in my evidence locker. Q. Was anyone with you in the car? A. No. Q. Describe your evidence locker? A. There’s a room in the station we reserve to store evidence. Every officer has his or her own steel locker with a lock on it. It’s about the size of a file drawer. Q. Who has access to your evidence locker? A. Only me. I’ve got the only key to the lock. Q. After placing the tubing in your locker, what was the next thing you did? A. I locked the locker door, and went to the office to write up the accident report. Q. Where has the tubing been between 24 January 2018 and today? A. It’s been in my evidence locker for the entire period. Q. Has anyone had access to your locker between 24 January 2018 and today? A. No. Q. Have you given your locker key to anyone between 24 January 2018 and today? A. No. Q. After you placed the tubing in your evidence locker, when did you next see it? A. This morning I went to my locker, unlocked it, took the tubing out of the box and brought it with me to court.

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Q. Has anyone had access to the tubing since you removed it from your locker this morning? A. No. Q. May I have the tubing please? [Obtains tubing from witness.] [After showing the exhibit to counsel for the other side, and asking the court officer to put it before the witness, counsel continues:] Q. Constable Hill, is the tubing before you the tubing you removed from your evidence locker and brought with you to court today? A. Yes, it is. Q. Is it in the same, or substantially the same, condition now as when you first saw it on 24 January 2018? A. Yes, it is.  Q. Your Honour, I tender the tubing as Exhibit 6.

Example 5.11 Method 2 A quantity of garden potting mix suspected of containing the Legionella bacteria was seized by a Public Health official, given to a laboratory custodian, and then to a chemist. Public Health official Q. Ms Kequahtooway, after seizing the bag containing the potting mix on 25 January 2018, what did you do with it? A. I placed the bag containing the potting mix in one of our plastic evidence bags, labelled it and photographed it. I then kept it in my possession and took it back to our Albert Street office where I sealed the bag. Q. How did you label the evidence bag? A. The bag has an area on the inside of the opening which is textured so you can write on it. I put the date; the name and address of the store it was seized from; the date and time it was seized; my name and department identification number; and the case number. Q. How did you seal the evidence bag? A. We have a special machine that seals the opening by heating it so that the two sides melt into each other. It’s sort of like laminating plastic. The sealed strip is about 2 cm wide. It also seals in the identifying marks I made. Q. What did you do with the bag after labelling and sealing it? A. I carried it to the substance analysis section of the Public Health laboratory and gave it to the record custodian, who took it, noted it in the evidence log and gave me a receipt. Q. At the time you gave the evidence bag to the record custodian, what was its condition? A. It was sealed. Q. What was the condition of the bag of potting mix? A. It was in a bag which was also sealed. [After showing the evidence bag to counsel for the other side, and asking the court officer to put it before the witness, counsel continues:] Q. Ms Wright, you now have before you a plastic bag. Do you recognise it? A. Yes, it’s the evidence bag in which I placed the bag of potting mix I seized on 25 January 2018. 174

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Q. How do you know it’s the same bag? A. I can see the label I placed on it by the heat seal. Q. Is the heal seal in the same condition today as when you placed it on the bag on 25 January 2018? A. Yes. Q. Is the evidence bag in the same condition today as when you delivered it to the Public Health laboratory on 25 January 2018? A. No, there’s another heat seal on the opposite side of the bag from the one I made. Q. Did you make the second seal? A. No, I did not. Q. From 25 January 2018 until today, have you seen the evidence bag? A. No, I haven’t. Q. Your Honour, may the evidence bag and its contents be marked as Exhibit A for identification. Court: Evidence bag and contents marked as Exhibit A for identification. Evidence of chemist Q. Ms Curie, you have before you a plastic bag that has been marked as Exhibit A for identification. [The witness examines it.] Do you recognise it? A. Yes. Q. Why do you recognise it? A. It is the bag that was given to me by the laboratory custodian in the evidence room of the substance analysis section on 27 January 2018. Q. When you first received Exhibit A for identification, what condition was it in? A. The evidence bag was sealed. Q. How was the evidence bag sealed? A. It had only one heat seal, on the right hand side. Q. What was the condition of the potting mix bag? A. It was also sealed. There were no signs of tampering or alteration. Q. What did you do with the evidence bag? A. I cut open the side opposite the seal, removed the potting mix bag and weighed it. I then cut open the potting mix bag, removed a small portion of the contents and conducted certain chemical tests on those contents. I then heat-​sealed the cut I had made in the potting mix bag, and put the bag back into the evidence bag. Q. What did you do after putting the potting mix bag back into the evidence bag? A. I labelled the evidence bag with my name and the date, and then heat-​sealed the edge I had opened. Q. What did you do with the evidence bag? A. I returned it to our evidence locker. Q. When did you next see Exhibit A for identification? A. This morning when the custodian removed it from the evidence locker and gave it to me so that I could bring it to court. Q. When you received the bag this morning, what was its condition? A. It was sealed. Q. Was there anything different about the bag this morning from the way it was when you returned it to the evidence locker on 27 January 2018? A. No, the bag was still sealed, looked the same and had no signs of tampering.  Q. Your Honour, I tender the bag of potting mix and its contents as Exhibit 1. 175

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Note that counsel has traced the bag from the moment it was seized, to the time the chemist received and tested it, to the day she brought it to court. The laboratory custodian is not a necessary witness because the evidence bag was sealed when the chemist received it. The evidence has established that no one, other than the chemist, had access to the bag’s contents subsequent to the seizure. The examination has proved that the exhibit is what it purports to be. If counsel anticipates that counsel for the other side will challenge the chain of custody, counsel conducting the examination-​in-​chief should ensure that the laboratory custodian is available to give evidence. 3 Photographs

a Elements To establish a foundation for the admission of a photograph, you must demonstrate that: 1

the photograph is relevant;

2

the qualifying witness is familiar with the scene portrayed in the photograph;

3

the witness is familiar with the scene as at the relevant date (and time, if important);

4

the photograph “fairly and accurately” depicts the scene as it appeared on the relevant date; and

5

the probative value of the photograph outweighs any prejudicial effect. Technically, this is not an element of the foundation, but rather an answer to an objection the other side might raise. This objection is common where the photograph depicts a victim of physical violence and the photograph is to be produced to the jury.

Technically, the photographer is the qualifying witness through whom the photograph is admitted into evidence. This requirement is generally waived in practice, unless there is an allegation that the photograph has been tampered with in some way, or the photographer is to be called as an expert witness. If you must call the photographer, the following points should be canvassed in the examination-​in-​chief:8 • date and time of day; • weather conditions; • direction the camera is looking; • camera’s distance from the subject; • camera format; • focal length of the lens; • degree of enlargement;

8

176

These points are taken from B McNamara, “Forensic Photography” (in Expert Evidence, I Freckelton, H Selby, eds, Thomson Reuters Subscription Service), [93.90].

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• filters used; • height of camera above ground; • type of film; • resolution in pixels if digital; • quality of artificial light (if any) –​electronic, tungsten, fluorescent; • angles of elevation or depression of the camera; and • reason for any departure from standard practice.

In the following example, the photograph is being produced through a witness who is familiar with the scene depicted in the photograph. There is no suggestion that the photograph has been tampered with, therefore, there is no need to call the photographer. Example 5.12 Q. Mr Burton, have you ever been to the intersection of Wickham Street and Plain Street? A. Yes. Q. How many times have you been there? A. About 50 times. Q. Do you know what the intersection looked like on 25 June 2017? A. Yes. [After showing the photograph to the counsel for the other side, and asking the court officer to put it before the witness, counsel continues:] Q. Mr Burton, you have before you a photograph. Do you recognise the scene depicted in the photograph? A. Yes, it shows the intersection of Wickham Street and Plain Street. Q. Does the photograph fairly and accurately show that intersection as it appeared on 25 June 2017? A. Yes, it does. Q. Your Honour, I tender the photograph of the intersection of Wickham Street and  Plain Street as the next exhibit, Exhibit 29.

There are three evidentiary issues that commonly arise when photographs are offered into evidence. Counsel for the other side may object on the basis that: • the camera lens and camera angle distorts the photograph, and as a result

the photo is misleading or confusing;9 • the photographs distort the lighting that existed at the relevant time. For example, if the event happened at night, a photograph taken with a flash will give a misleading impression of the lighting. In this situation, the court may admit the photograph for a limited purpose (to show

9

For example, see s 135(b) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 177

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the scene),10 and warn the jury not to use the photograph for any other purpose; • the photographs are gruesome and inflammatory, and, therefore, the prejudicial effect outweighs the probative value.11 This objection arises commonly in murder cases when the prosecution attempts to tender photographs of the deceased. If the cause of death is not in issue, such photographs are often excluded. 4  Diagrams, models and maps

a Elements To establish a foundation for the admission of a diagram, model or map into evidence, you must demonstrate that: 1

the diagram, model or map is relevant;

2

the qualifying witness is familiar with the scene represented by the diagram, model or map;

3

the witness is familiar with the scene at the relevant date (and time, if important);

4

use of the diagram, model or map will augment the witness’s explanation of his or her evidence, and enhance the jury’s understanding of that evidence; and

5

the diagram, model or map is reasonably accurate or to scale. Example 5.13 Diagram not to scale Q. Mr Bridge, you have just told us that you were standing on the corner of Elizabeth Street and Cleveland Street on 25 January 2018, the date of the accident. Are you familiar with that intersection? A. Yes, it’s just around the corner from my unit. Q. Do you know what the intersection looked like on 25 January 2018? A. Yes I do.

10

11

178

For example, see s 136 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). R v Murdoch (1987) 37 A Crim R 118 at 127 (NSWCCA). In uniform Evidence Act jurisdictions, s 135 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic) provides that, before exercising his or her discretion to exclude evidence, a trial judge matter must find that the probative value of the evidence substantially outweighs the danger that the evidence might be unfairly prejudicial to a party, be misleading or confusing, or cause or result in an undue waste of time. This provision applies to both civil and criminal proceedings. In contrast, when evidence is adduced by the prosecutor in criminal proceedings, s 137 provides that the court must refuse to admit such evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant.

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Q. Please describe the intersection? A. Well, both Elizabeth Street and Cleveland Street are major roads. Cleveland Street runs perpendicular to Elizabeth Street. At the intersection, Elizabeth Street consists of four lanes and the traffic is one-​way, moving away from the Central Business District. The two centre lanes are for traffic moving up Elizabeth Street, and the right-​hand lane and left-​hand lane are for traffic turning onto Cleveland Street. Cleveland Street is a two-​way street consisting of four lanes; two lanes each way. There are two-​storey commercial buildings on all four corners of the intersection. Q. Mr Bridge, the court officer is showing you a document. What is the document? A. It is a diagram of the intersection of Elizabeth Street and Cleveland Street. Q. Does that diagram fairly and accurately show the intersection of Elizabeth Street and Cleveland Street as it existed on 25 January 2018? A. Yes it does. Q. Is the diagram to scale? A. No, it’s not. Q. Your Honour, I tender the diagram of the intersection of Elizabeth Street and Cleveland Street as Exhibit 7. Court: Any objection Ms Kwek? Ms Kwek: I have no objection provided my learned friend does not intend to rely on the diagram to show relative distances. If the diagram is to be used for this purpose, then I must object on the basis that the diagram is not to scale and will be misleading or confusing. Q. I can assure my leaned friend and the court that the diagram will not be used to show relative distances. Court: On that basis, the diagram shall be marked as Exhibit 7. [If the witness will be asked to mark the exhibit, it is often better to tender the exhibit at the end of the witness’s examination. For a discussion of the use of  the exhibit, see Section 5.4.]

Example 5.14 Diagram to scale Q. Ms Chinchen, were you at the intersection of Wickham Street and Plain Street on 28 June 2017? A. Yes. Q. Why did you go there? A. I was asked to go there by Ms Pezutti, the solicitor for the Plaintiff. Q. When you got to the intersection, what did you do? A. I measured the relevant distances such as the width of the street and footpath, the length and width of the pedestrian crossing, the height of the traffic control devices and so on. Q. What did you do after completing these measurements? A. I went back to my office and prepared a “to scale” diagram of the intersection. [After showing the diagram to the counsel for the other side, and asking the court officer to put it before the witness, the counsel continues:]

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Q. Ms Chinchen, you have before you a document. What is the document? A. It is the diagram I prepared of the intersection of Wickham Street and Plain Street. Q. Does that diagram portray accurately the intersection of Wickham Street and Plain Street as it existed on 28 June 2017? A. Yes, it does. Q. Is the diagram to scale? A. Yes, it is. Q. What is the scale? A. I prepared the diagram using a scale of 1 cm to 2 m. Q. Your Honour, I tender the diagram of the intersection of Wickham Street and Plain  Street as the next exhibit, Exhibit 42.

5  Digital recordings Digital recordings present complex authentication problems. Under the common law, the qualifying witness must be in a position to testify that the recording is an accurate reproduction of the events recorded. The court must be satisfied, therefore, that the equipment used to record the original event, and the equipment used to play the recording in court, are in good working condition. The qualifying witness must also be able to identify the scenes, persons and sounds depicted on the recording. Finally, to allay any concern that the recording has been edited or otherwise tampered with, the qualifying witness must be in a position to testify that the recording has been securely stored before trial.12 Under the uniform Evidence Act, digital recordings fall within the definition of a “document”, and their tender is governed by Pt 2.2.13 Section 48, which governs the proof of the contents of documents in court, is designed to “simplify the rules in this area, introduce greater flexibility and take into account modern information-​storing media and copying technologies”.14 Section 51 abolishes the principles and rules of the common law that relate to the means of proving the contents of a document. The complex authentication problems relating to digital recordings at common law, therefore, are modified significantly in jurisdictions covered by the uniform Evidence Act. It was noted at the beginning of this chapter that, to satisfy the judge, the witness’s evidence must fulfil the technical requirements of admissibility. To satisfy the jury, the witness’s evidence must be factually persuasive and

12 13 14 180

Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [1300]-​[1315]. Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016), [EA.48.60].

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credible. While the former is facilitated by the provisions of the uniform Evidence Act in those jurisdictions that apply the Act, reference to the common law elements is still instructive when the case is being tried before a jury. Of course, in jurisdictions not covered by the Act, the common law requirements are still relevant.15

a  Common law elements To establish a foundation for the admission of a digital recording, you must demonstrate that: 1

the recording is relevant;

2

the recording device was tested before use and was found to be in normal operating condition;

3

the recording device was operated by an experienced and qualified operator;

4

the recording device used can accurately record and reproduce sounds and/​or images;

5

the qualifying witness heard and/​or saw what was being recorded and can identity the sounds and/​or images depicted on the recording;

6

the operator replayed the recording after the recording session and confirmed that the sounds and/​or images had been accurately recorded;

7

the recording was securely stored after the recording session; and

8

the recording device used in court to replay the exhibit is in normal operating condition and can accurately reproduce the sounds and/​ or images on the tape.

More than one witness may be required to qualify a recording for admission into evidence. For example, three witnesses may be required to qualify a sound recording of a telephone conversation: one to qualify the machines and recording; one to give evidence about the custody of the recording; and one to identify the voices recorded. Example 5.15 Recording of a telephone conversation –​one qualifying witness A police officer has made a sound recording of a telephone conversation. Q. Constable Chin, what kind of sound-​recording machine did you use to record the telephone conversation? A. An Olympus Digital Voice Recorder, with a 2 GB internal memory. Q. Are you familiar with the operation of that machine? A. Yes, I am.

15

For a definition of “document” see s 4; Evidence Act 1977 (Qld), s 5; Evidence Act 1929 (SA), ss 34G(1); Evidence Act 1906 (WA), s 79B. Generally see A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [7.15]-​[7.17]. 181

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Q. How many times have you used it? A. I’ve used that particular type of machine probably 200 or 300 times. Q. What did you do with the machine before recording the call? A. I tested it. Q. How did you test it? A. I attached the telephone recording device which comes with the digital recorder to the telephone, dialled the number of our department and talked to our receptionist. I recorded the call and played it back on the machine. Q. What was the result of your test? A. The machine was working properly. It was accurately recording and playing back. Q. What did you do after you tested the machine? A. I turned the machine on again. Mr Smith picked up the receiver, dialled a number and engaged in conversation for about two minutes. He then put down the receiver and I turned the machine off. Q. On what date did you record the call? A. 4 March 2018. Q. What were you doing while this conversation took place? A. I was listening to the conversation on an extension phone. Q. Did you recognise the voice on the other end? A. Yes. Q. How did you recognise the voice? A. I’ve heard the voice on the telephone many times before the recorded call. Q. Whose voice was it? A. Mr Jones. Q. After the telephone conversation terminated, what did you do? A. Immediately after the conversation ended, I played back the conversation. Q. How did the recording compare with the conversation you had just heard? A. It was the same. The machine completely and accurately recorded the conversation. Q. What did you do with the recording? A. I burned the digital recording to a CD, labelled it, put it in an evidence bag, sealed the bag and placed the bag in my evidence locker. Q. Have you subsequently seen the CD? A. Yes, this morning when I took it out of my evidence locker to bring it to court with me. [After showing the CD to the counsel for the other side, and asking the court officer to put it before the witness, counsel continues.] Q. Constable Chin, the court officer is putting a CD before you. Do you recognise it? A.Yes, it’s the CD I made, on 4 March 2018. The one we’ve been discussing. Q. What is the condition of the evidence bag at this time? A. It is still sealed. Q. Is the bag with the CD in it in the same condition now as when you sealed it on 4 March 2018? A. Yes, it is.

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Q. Your Honour, may the witness remove the CD from the evidence bag and play it for the jury? Court: Yes. [The witness places the CD in the CD player.] Q. Constable Chin, before you play the recording, would you describe Mr Smith’s voice and Mr Jones’s voice? A. Smith has a very low, deep voice. Jones has a high pitched voice and a slight English accent. Q. Please play the recording. [Witness plays the CD.] Q. Your Honour, I tender the CD recording of the telephone conversation between Mr Smith and Mr Jones on 4 March 2018 as Exhibit 1.  [The document is admitted.]

Where it is difficult to differentiate the voices, allow the witness to play the recording for a few seconds. The witness should then stop the recording and identify the voices. Example 5.16 Q. Constable Chin, please stop the recording. [The witness does so.] Whose voice said: “Hello”? A. That was Mr Jones. Q. Whose voice said: “Frank, it’s me”? A. That was Mr Smith.  Q. Thank you. Please continue playing the recording.

Where a sound recording is admissible, it may be advantageous to offer into evidence a transcript of the conversation recorded. In jurisdictions where the original document rule still applies, such secondary evidence of the sounds recorded may be inadmissible.16 If such evidence is admissible you should tender a copy of the transcript and, with leave of the court, provide a copy to each juror. The conversation on the recording will be easier to understand if the jurors can refer to the transcript while the recording is being played. 6  Signed documents For a signed document, such as a contract, promissory note or will to be introduced into evidence, the signature on the document must be

16

See J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [1305], [39010]. Note that s 51 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); and Evidence Act 2008 (Vic) abolishes the original document rule and the best evidence rule. Further, the admission of a transcript of a recording is provided for specifically in s 48(1)(c). 183

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authenticated. In other words, it must be shown that the person who purportedly signed the document did, in fact, sign it. Once the document has been authenticated, it is admissible in evidence against the signee. There are a variety of methods that can be used to authenticate a signature. These include: 1

calling a witness who saw the signee place his or her signature on the document;

2

calling a witness who is familiar with the signee’s signature and can identify it;

3

calling the signee as an unfavourable witness, and attempting to elicit an admission from that person that the signature is his or hers; and

4

calling a handwriting expert who can give evidence that, based on handwriting comparisons, the signee made the signature.

The problems associated with calling unfavourable witnesses are discussed in Chapter 4, Section 4.12. If you are relying on the evidence of a handwriting expert to authenticate a signature, ensure that your expert is provided with the original of the signed document. It is imperative that the handwriting expert’s opinion is based on an analysis of the original signature, not a copy of the original. Specific common law and statutory evidentiary rules may govern the admissibility of certain signed documents. For example, the signature on a will must be attested, so both the signature and the attestation must be proved. The existence of such rules confirms the necessity for thorough pre-​ trial preparation.17

a Elements To establish a foundation for the admission of a signed document into evidence, you must demonstrate that: 1

the document is relevant;

2

the document bears a signature or is handwritten;

3

the signature or handwriting is that of the signee, or of his or her agent; and

4

the document is in the same condition at trial as it was when it was executed.

17

Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [39085]-​[39130].

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Example 5.17 The witness saw the signing of a contract. After eliciting the background information, counsel continues: Q. Ms McKay, you stated that you typed up a contract for Mr Blench to sign. When did you type it up? A. On 27 January 2018. Q. After typing it up, what did you do with the contract? A. I arranged a meeting with Fred Blench to sign it. Q. When was the meeting to take place? A. That afternoon, 27 January 2018. Q. Where was the meeting to be held? A. In my office. Q. Did the meeting take place? A. Yes. Q. Who was present at the meeting? A. Just Fred Blench and myself. Q. What happened at the meeting? A. When Fred entered my office, we had a short chat and then I handed him the contract. Q. What did Mr Blench do with the contract? A. He read it over, and then signed it at the bottom of the page in the space above his name. Q. Where were you when Mr Blench signed the contract? A. Standing beside him. Q. Ms McKay, the court officer is putting a document before you. Do you recognise the document? A. Yes, this is the contract I typed up and Fred Blench signed. Q. There is a signature at the bottom of the document. Do you recognise that signature? A. Yes, it’s Fred Blench’s signature. Q. How do you know that it is Fred Blench’s signature? A. I saw him sign it. Q. Ms McKay, after Mr Blench signed the document, what did you do with it? A. I put it in my files. Q. Is the document before you in the same condition today as when Mr Blench signed it? A. Yes, nothing has been done to it since he signed it. Q. Your Honour, I tender the document signed by Fred Blench as Exhibit 10.  [The document is admitted.]

Example 5.18 The witness sent a contract to a party, who returned the contract signed. The witness can identify the signature. Q. Mr Skovic, you stated that you prepared a contract for Ms Cheung to sign. What did you do with the contract? A. I emailed it to Ms Cheung’s office for signing. 185

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Q. When did you email it to Ms Cheung’s office? A. 29 April 2017. Q. Did you see the contract again? A. Yes, it was returned to me by post on 8 May 2017. Q. What condition was the contract in when it was returned to you? A. It was in the same condition as when I emailed it out, with the exception that it had been signed at the bottom. Q. Did you recognise the signature? A. Yes. Q. How did you recognise the signature? A. I have seen it many times before. Q. Under what circumstances had you seen it? A. Ms Cheung has been a client of mine for a number of years and I’ve seen her signature on documents many times before. I have also seen her sign documents. Q. Mr Skovic, the court officer is putting a document before you. Do you recognise that document? A. Yes. This is the contract I’ve been talking about. Q. There is a signature at the bottom of the document. Do you recognise that signature? A. Yes, that is Ms Cheung’s signature. Q. Mr Skovic, is the document before you in the same condition now as it was when you received it from Ms Cheung on 8 May 2017. A. Yes. Q. Your Honour, I tender the document signed by Ms Cheung as Exhibit 9.  [The document is admitted.]

7 Letters A number of complicated evidentiary issues can arise when an attempt is made to tender a letter into evidence. A letter, depending on its content and the purpose for which it is being tendered, may be hearsay. Authentication may be an issue. Where, for example, a party has received a letter, that party must establish the authenticity of the signature appearing on the letter. In jurisdictions not covered by s 160 of the uniform Evidence Act,18 where a party has mailed a letter, that party must establish that the original was received by the addressee. This may necessitate the production of the original. If the original is not available, the absence of the original will have to be explained before a copy will be admitted into evidence.19 All of these

18

19

186

Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For the presumptions applying to electronic communications, see s 161. J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [39010].

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issues –​hearsay, authentication, proof of receipt, best evidence and copies –​ can arise whenever a letter is tendered into evidence at trial. The following examples highlight three potential problem areas: authentication, receipt and unavailability of the original.

a  Letter sent to your party by another party To lay the foundation for the admission into evidence of a letter sent to your party by another party, you must establish these elements: 1

the letter is relevant;

2

the witness received the letter;

3

the witness recognises the signature; and

4

the letter is in same condition at trial as it was when it was first received.

The receipt of the letter and the authentication of the signature can be established by separate witnesses. If the witness who can give evidence concerning the receipt of the letter cannot authenticate the signature, a separate witness will have to be called for this purpose if authentication is in issue. Example 5.19 The witness can testify that she received the letter, and can authenticate the signature. Q. Ms Supsampantuwongse, the court officer is handing you a document. Do you recognise that document? A. Yes, it’s a letter I received in the post. Q. When did you receive it? A. On 12 June 2017, as indicated by the date stamp I put on it when I received it. Q. There is a signature on the bottom of the letter. Do you recognise that signature? A. Yes, I do. Q. Why do you recognise the signature? A. I’ve seen it many times before. Q. Under what circumstances? [The witness explains how she has acquired personal knowledge of the signature.] Q. Whose signature is it? A. It is Paul Farrow’s signature. Q. Is the letter in the same condition today as it was when you received it on 12 June 2017? A. With the exception of the date stamp which I put on it, yes. Q. Your Honour, I tender the letter as Exhibit 1.  [The document is admitted.]

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b  Letter sent by your party to another party If the original of the letter sent by your party is not available, you will have to tender a copy of the letter into evidence. The essential element is proof of proper mailing, which raises the inference of receipt, following which a copy of the original can be tendered. To lay the foundation for admission, you must establish that: 1

the letter is relevant;

2

the witness dictated or typed a letter addressed to the party;

3

the witness saw the typed original and a copy of the letter;

4

the witness signed the original letter or can authenticate the signature;

5

the original was placed in a properly addressed and postmarked envelope, bearing a proper return address;

6

the envelope was posted with Australia Post or deposited with a commercial courier;

7

the copy of the original is a true and accurate copy; and

8

the original letter and envelope were never returned to sender. Example 5.20 The witness is the administrative assistant who typed and mailed the original letter. Q. Mr Chetty, the court officer is handing you a document. Do you recognise that document? A. Yes, it’s a photocopy of a letter from Mr McVicar to Ms Pegram dated 4 May 2017. Q. Why do you recognise it? A. I took the dictation for this letter from Mr McVicar and typed the original. Q. What did you do after you prepared the original? A. I gave the original to Mr McVicar, who signed it and gave it back to me. Q. How did you know that it was Mr McVicar’s signature? A. I’ve been his administrative assistant for six years, and I’ve seen his signature hundreds of times before. Q. What did you do after you received the signed original back from Mr McVicar? A. I photocopied the original and placed a copy in my correspondence file. I then prepared an envelope that had the same address as appeared on the letter. I put the signed original in the envelope, sealed the envelope and put a stamp on it. I then mailed the letter. Q. How did you mail the letter? A. I put it in the post-​box situated just outside the front doors of our office building. Q. Did the envelope contain a return address? A. Yes, all of our office stationery, including our envelopes, has our complete address on it. Q. Who is in charge of the incoming mail in your office? A. I am.

188

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Q. Was the envelope and letter you mailed to Ms Pegram returned? A. No. Q. Is the document before you a true copy of the letter you sent to Ms Pegram on 4 May 2017? A. Yes, it’s identical. Q. Is the copy you have in front of you in the same condition now as when you mailed the original to Ms Pegram on 4 May 2017? A. Yes, it is. Q. Your Honour, I tender the copy of the letter from Mr McVicar to Ms Pegram dated 4 May 2017, as Exhibit 3.  [The document is admitted.]

If the witness cannot remember whether he or she mailed the particular letter to the addressee, it will be necessary to establish, by inference, that the letter was mailed. This often can be established by adducing evidence of the office procedure in place for mailing letters. Example 5.21 Q. Mr Chetty, what did you do with the original of the letter after you prepared it? A. I’m sorry, I don’t recall. We mail out a number of letters every day. Q. Is there an established office procedure for mailing letters? A. Yes, the procedure has been in place for years now. Q. What was the procedure in place on 4 May 2017? A. Well, after I type the original, I give it to the proper person for signing. When the signed original is returned to me, I make a photocopy and place the copy on the correspondence file. I then put the original in an envelope that has the same address as appears on the letter and seal it. The envelope bears the return address of our office. I then place the envelope in the office mail-​box. Q. How do the letters get from the office mail-​box to the Australia Post box? A. At 5.00 pm each workday, I take all of the letters that have been prepared that day, stamp them with the proper postage and put them in a mailbag. I then take the mailbag to the Australia Post box located just outside the front doors of our office building and empty the contents of the bag into the post-​box. Q. Were you working on 4 May 2017? A. Yes I was. Q. Did you follow the procedure you just described?  A. I’m sure I did.

Under s 160(1) of the uniform Evidence Act, it is presumed that, unless evidence sufficient to raise doubt about the presumption is adduced, a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory is received at that address on the fourth working day after having been posted. The presumption does not apply if all of the following are satisfied: (a) the proceeding relates to a contract; (b) all the parties to the proceeding are parties to the contract; and (c) the presumption is inconsistent with a term of the 189

Fundamentals of Trial Technique

contract.20 The Act21 also facilitates the adducing of evidence of the contents of a letter that is not available to a party by allowing for the: • tender of a copy of the letter (s 48(1)(b)(i)); or • tender of an extract from, or summary of, the letter (s 48(4)(a)); or • adducing of oral evidence of the contents of the letter (s 48(4)(b)).

8  Business records In the state, territory and federal courts, the admissibility of business records is governed by statute.22 The statutory provisions vary from jurisdiction to jurisdiction, so it is essential that you refer to the relevant provisions before making an application to admit business records into evidence. Generally, however, the term “business” is defined broadly. It is not confined to private, profit-​ making corporations, but encompasses unincorporated businesses, institutions, associations, trades, professions and government agencies which may or may not be commercial in nature. The term “record” generally refers to a “document” which, in turn, is widely defined. It usually includes any record of information. Written memoranda, digital recordings, computer-​ generated information and other forms of information storage made possible by modern technology would fall within the scope of this definition. The particular litany that counsel must repeat when introducing a business record into evidence will depend on the wording of the relevant statutory provision in the jurisdiction in which the trial is held. For the purpose of illustration, reference will be made here to the applicable provisions of the uniform Evidence Act.23 If you anticipate that counsel for the other side will object to the admission of a business record, make sure that you take your witness meticulously through all of the elements required by the applicable provisions.

a Elements To lay the foundation for the admission of a business record into evidence under s 69 of the uniform Evidence Act, you must show that: 1

20

21

22

23

190

the document is relevant;

See s 160(2) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT): Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See s 69 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also Evidence Act 1977 (Qld), ss 83, 84, 92, 93; Evidence Act 1929 (SA), s 53; Evidence Act 1906 (WA), s 79C. Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), Chapter 18, Section 2. Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

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2

the document is or forms part of the records of a business;

3

the document contains a previous representation made:



a

by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or



b

on the basis of information supplied directly or indirectly by such a person;24

4

the person’s knowledge of the asserted fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). Example 5.22 Q. Mr King, what is your occupation? A. I am the Corporate Secretary of Digby Widgets Pty Ltd. Q. What are your duties as Corporate Secretary? A. I collect, store and maintain all of the corporate records according to our indexing system. [After showing the document to counsel for the other side, and asking the court officer to hand the document to the witness, counsel continues.] Q. Mr King, do you recognise the document the court officer has handed to you? A. Yes, it is one of our business records; a statement of account for Top End Pty Ltd dated 1 February 2018. Q. What information is contained in the document? A. It states how much of our product has been supplied to a particular customer, the date the product was supplied and all payments made that month on the customer’s account. The total amount owing for that month is then set out at the bottom. Q. Who prepared the document? A. Ms Perkins, who is no longer with the company. Q. What position did Ms Perkins hold in the company at the time the record was made? A. She was the Accounts Manager. Q. What information would Ms Perkins rely on when preparing the document? A. She would look at the order forms from our account customers, and the supply dockets issued when the order is filled. These are entered on an account ledger. She would also look at all payments received on the customer’s account, which are also recorded on the account ledger. Q. Your Honour, I tender the statement of account for Top End Pty Ltd dated 1 February 2018 as Exhibit 1.  [The document is admitted.]

24

See s 69(2). The words “document”, “previous representation” and “business” are defined in the Dictionary to the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); and Evidence Act 2008 (Vic). See also Evidence Act 2001 (Tas), s 3. 191

Fundamentals of Trial Technique

This example illustrates how quickly the minimum foundation requirements for the admission of a business record can be established. If the record is an important part of your case, the credibility of your witness and the reliability of the record should be enhanced by fully developing both. Chapter 4, Section 4.8, discusses the development of a witness’s background. In the following example, counsel has already developed the witness’s background and now turns to the full development of the exhibit. Example 5.23 [After showing the document to counsel for the other side, and asking the court officer to hand the document to the witness, counsel continues.] Q. Mr King, do you recognise the document the court officer has handed to you? A. Yes, it is one of our business records –​a statement of account for Top End Pty Ltd dated 1 February 2018. Q. What use does the company make of such a statement of account? A. It’s the basic record on which we record all transactions involving that customer’s account. A copy of the statement is sent to our account customers monthly to advise them of the current status of their account. Q. What information is contained in the document? A. It states how much of our product has been supplied to a particular customer, the date the product was supplied and all payments made that month on the customer’s account. The total amount owing for that month is then set out at the bottom. Q. Who prepared the document? A. Ms Perkins, who is no longer with the company. Q. What position did Ms Perkins hold in the company at the time the record was made? A. She was the Accounts Manager. Q. What information would Ms Perkins rely on when preparing the document? A. She would look at the order forms from our account customers, and the supply dockets issued when the order is filled. These are entered on an account ledger. She would also look at all payments received on the customer’s account, which are also recorded on the account ledger. Q. When are the transactions recorded on the account ledger? A. On the same day the order or payment is received. Q. When are these transactions entered on the monthly statement? A. At the end of every month all transactions entered on the account ledger are printed on the monthly statement form. Q. What is the difference between the account ledger and the monthly statement? A. They both contain the same information. They differ in that the ledger is a continuous record, whereas the statement is issued once a month. Q. What happens to the statement after it is printed? A. One copy is sent to the customer. The other copy is held by the company’s accounts department. Q. Is it a regular practice of your company to make such a record? A. Yes.

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Q. How long has it been a regular practice? A. Ever since the company was founded, 22 years ago. Q. Your Honour, I tender the statement of account for Top End Pty Ltd dated 1 February 2018 as Exhibit 1.  [The document is admitted.]

Both examples focus on the admission of a business record. The absence of a business record can also be admissible evidence to prove that an event or transaction did not happen. In other words, if the happening of an event or transaction is in issue, and in the course of a business a system has been followed of making and keeping a record of the occurrence of all such events or transactions, absence of a record is evidence that the event or transaction did not occur.25 To prove the absence of a record, call a records custodian or other qualified person (as defined in the relevant legislation). After explaining how the business creates records to record events and transactions, the witness can testify that he or she searched the business records but could find no record for the event or transaction in issue. 9 

Computer-​generated records

The use of computers is rapidly eliminating other, traditional, methods of record-​keeping. Even where traditional account books and ledger systems are still used, the data is often periodically transferred to computers for electronic storage and the original records destroyed. Where computers are used to store business records, information is usually retrieved electronically or produced in the form of a computer printout. Computer records are becoming an increasingly common form of documentary evidence in trials. The admission into evidence of computer-​generated records may have a common law or a statutory foundation. If the computer is used as a calculator, or if the computer is used to record and retrieve data that is not supplied by a human source, the record may fall within the common law rules relating to the output of scientific instruments. Computer-​generated evidence also may fall within the purview of the statutory provisions in force in each jurisdiction.26 Brown identifies two approaches that are reflected in the legislation in force in the various Australian jurisdictions: a computer-​specific approach and a business records approach. The former involves statutory provisions that are specifically directed at the admissibility of computer-​generated

25

26

See s 69(4) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also Evidence Act 1906 (WA), s 79F. For a detailed discussion of computer-​produced evidence, see R A Brown, Documentary Evidence: The Laws of Australia (2nd ed, Thomson Reuters, 2013), [16.6.10]-​[16.6.540]. 193

Fundamentals of Trial Technique

evidence, while the latter views such evidence as simply one aspect of the admissibility of business records discussed in Section 8. All Australian jurisdictions, with the exception of Western Australia, have adopted both approaches simultaneously.27 You should always refer to the applicable statutory provisions when contemplating the admission of computer-​ generated records. 10  Computer-​generated graphics and animations Computer-​generated graphics have become realistic alternatives to two-​ dimensional diagrams and three-​dimensional models. Through the use of a computer-​assisted design program, graphics of such things as machines, buildings and body organs can be enlarged, moved and rotated on a television monitor or projector screen. Animations can recreate events with stunning clarity. Computer-​ generated graphics and animations, when used in conjunction with the oral evidence of an expert, are powerful, persuasive tools. Computer-​ generated graphics and animations are used in the same way as other demonstrative evidence, such as diagrams and models, and the foundation requirements are identical. A qualified witness must establish that: • he or she is familiar with the conduct or event depicted by the graphic or

animation; • the graphic or animation fairly and accurately reproduces the conduct or event; and • the graphic or animation will assist the trier of fact to resolve issues of fact or understand the evidence. Provided the graphic or animation meets the threshold test of relevance, and will not be unfairly prejudicial to a party or be misleading or confusing, the graphic or animation generally will be admitted if the foundation requirements are established. Once admitted, the jury or judge is entitled to draw any reasonable inference from what it sees, hears or otherwise notices during the demonstration.28 11 Summary charts Trials are becoming increasingly complex, and the admission into evidence of charts summarising technical evidence and other data is common. Such charts serve a variety of purposes. They can provide an effective compilation of financial records or other statistical information,

27 28

194

R A Brown, Documentary Evidence: The Laws of Australia (2nd ed, Thomson Reuters, 2013), [16.6.30]. See J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [1290]; S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016), [EA.54.60].

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clearly depict a chronological sequence of events or graphically illustrate any number of other transactions and relationships. When properly qualified as exhibits and admitted into evidence, summary charts can be persuasive weapons. Two kinds of summary charts are admissible: 1

charts summarising the conclusions to be drawn from evidence already adduced in the trial; and

2

charts summarising the contents of voluminous or complex documents.

A chart summarising the conclusions to be drawn from evidence already adduced in the trial serves to encapsulate the documentary evidence and the facts established by witnesses in a clear summary that can be understood easily by the jury. Such a chart may, at the discretion of the trial judge, be admitted into evidence and used by the jury in their deliberations. This type of chart is particularly helpful when used to summarise voluminous records. If, for example, a number of invoices have been admitted to establish a debt, a summary chart setting out the date of each invoice, the invoice number, the particulars of the purchase and the amount of each purchase, will be an effective way of establishing the total amount owing. The witness called to establish the necessary foundation for the summary chart of evidence is usually one who has been in court while all of the evidence has been presented. Each fact appearing on the chart must be related to the exhibit or witness that established the particular fact. This is usually indicated on the chart. If the necessary foundation is established, and the chart will assist the jury to understand the evidence, it generally will be admitted.

a Elements To lay the foundation for the admission of a summary chart summarising the conclusions to be drawn from evidence already adduced in the trial, you must show that: 1

the chart is relevant;

2

the information contained in the chart has been admitted;

3

the witness prepared the chart;

4

the chart will assist the jury to understand the evidence; and

5

the chart is accurate and not misleading. Example 5.24 This summary chart is produced through an expert accounting witness to illustrate the cash loss to a bank following a robbery. The expert witness will use the  chart to explain the audit procedures employed in calculating the loss.

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Fundamentals of Trial Technique

Bank cash loss audit –​2 May 2017 Teller 1

Teller 2

Teller 3

Cash on hand

$12,101.86

$6,388.96

$25,162.00

30.4.17

(exhibit 20)

(exhibit 21)

(exhibit 22)

Cash deposits

$100.00

$340.00

$0.00

2.5.17

(exhibit 23)

(exhibit 24)

Cash withdrawals

$427.50

$0.00

$0.00

2.5.17

(exhibit 25)

Subtotal

$11,774.36

$6,728.96

$25,162.00

(exhibit 26)

(exhibit 27)

(exhibit 28)

$11,774.36

$6,728.96

$9,162.00

(exhibit 29)

(exhibit 30)

(exhibit 31)

$0.00

$0.00

$16,000.00 loss

Cash on hand Difference

In some jurisdictions, statutory provisions designed to facilitate the proof of voluminous and complex documents have been enacted. For example, s 50 of the uniform Evidence Act29 allows a party to adduce evidence of the contents of two or more documents in the form of a summary if the court: • grants leave; and • is satisfied that it would not otherwise be possible conveniently to exam-

ine the evidence because of the volume and complexity of the documents in question. This type of summary chart differs from a chart summarising the conclusions to be drawn from evidence already adduced in the trial, in that the information contained in the chart has not been admitted into evidence. The chart, not the documents from which the summary is prepared, becomes the primary evidence adduced to establish the facts in issue. Under s 50(2) of the uniform Evidence Act, before a court will entertain an application to allow such a chart into evidence, it must be satisfied that the party seeking to adduce the evidence in the form of a summary has: • served on each other party a copy of the summary that discloses the name

and address of the person who prepared the summary; and • given each other party a reasonable opportunity to examine or copy the

document in question. Summary charts of evidence and summaries of voluminous or complex records should be distinguished from charts, diagrams or drawings that

29

196

Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

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advocates may use during opening address or closing argument. The latter are merely visual aids and are not evidence. Unlike the summary charts discussed in this section, the jury will not be allowed to consider them during its deliberations. 12 Copies At common law, strict conformity with the best evidence rule required that the original of a document be tendered into evidence. The advent of the photocopier has largely abrogated this rule in practice, but in jurisdictions where the best evidence rule has not been abolished, you may still be called upon to establish the admissibility of a copy pursuant to one of the numerous exceptions to the rule. The best evidence rule has been abolished in uniform Evidence Act jurisdictions.30 Generally, before a copy of a document will be admitted you must establish that the original cannot be produced. There are a number of situations in which this might be the case, for example, where the original has been lost or destroyed, or where the original is in the possession or control of a stranger who is not subject to the subpoena powers of the court. If the original is in the possession or control of the other side, then the other side’s failure to produce the original following a notice to produce, or following a call, in court, for the production of the original document, provides the foundation for the tender of a copy.

a Elements Where the absence of the original must be explained before a copy is admissible, the following foundation should be established: 1

the document is relevant;

2

the original once existed;

3

a copy of the original was made;

4

the copy is a true and accurate copy; and

5

a thorough search for the original has failed to locate it, the original is in the possession of a stranger who is not subject to the subpoena powers of the court or the original is known to have been destroyed.

30

Section 51 of the uniform Evidence Act abolishes the best evidence rule. Proof of the contents of documents is governed by s 48 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). In the jurisdictions which have not enacted the uniform Evidence Act, the best evidence rule has been abolished in relation to public documents: Evidence Act 1977 (Qld), s 51; Evidence Act 1929 (SA), s 39; Evidence Act 1906 (WA), s 65(1). See also Evidence Act 1929 (SA), s 57. Generally, see A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [7.15]-​[7.19]. 197

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Example 5.25 Q. Ms Perera, the court officer is showing you a document. Do you recognise that document? A. Yes, it’s a photocopy of an agreement made between Uther Petroleum and Chin Industries dated 31 January 2018. Q. Why do you recognise the document? A. I typed the original and, after it was signed, I made two copies. This is one of the copies I made. Q. What happened to the original after you made a copy of it? A. I put it in a file folder in the filing cabinet. Q. What did you do with the copies? A. One I put in the file folder with the original, and the other I mailed to Ms Vaccaro. Q. Ms Perera, did you receive a subpoena calling for the production of the original and any copies of the agreement? A. Yes, I did. Q. Why have you not produced the original? A. I looked everywhere for the original but I could not find it. It should have been in the file folder with the copy but, when I went to get it, only the copy was in the folder. Q. What steps did you take to locate the original? A. I sent an email to everyone in the office asking them to look for it. I then personally went through every file in every cabinet in the office. Unfortunately, we could not find it. Q. How long did you search for the original? A. I personally spent about six hours looking for it. Q. Ms Perera, to your knowledge, were any alterations made to the original after you copied it? A. No. Q. Your Honour, I tender the copy of the agreement made between Uther Petroleum and Chin Industries dated 31 January 2018, as Exhibit 1.  [The document is admitted.]

5.4  PLANNING, PREPARING AND USING VISUAL AIDS AND EXHIBITS Visual aids, unlike exhibits, are not evidence. They are permitted during a trial because they assist the trier of fact, be it a judge or jury, to understand the oral and documentary evidence of witnesses, and the material covered by advocates in their opening address and closing argument. Visual aids are not tendered into evidence and, therefore, are usually not permitted in the jury room during deliberations. Despite these limitations, good advocates use visual aids during a trial because, if well prepared and presented, such aids have a significant impact on the jury or judge. Visual aids help the jury and judge to understand the

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spoken word, make complex information understandable and substantially enhance recall. Procedurally, no formal foundation is required for visual aids because they are not admitted into evidence. Visual aids should be shown to the other side and the judge before they are used to ensure that no objection will be taken to their use. For example, if a visual aid misstates the evidence, or is otherwise misleading, the other side likely will object. In this section, the development of a visual strategy is considered, and some tips on how to prepare visual aids and exhibits is discussed. Finally, how to use an exhibit in a trial is canvassed. 1  Develop a visual strategy Properly used, visual aids and exhibits can dramatically enhance the persuasive impact of a witness’s oral evidence. The use of visual aids and exhibits should be considered, therefore, provided they are relevant and can be used effectively. Relevance will be governed by the facts in issue and your theory of the case. Whether visual aids and exhibits can be used effectively will be governed by your visual strategy. When formulating a visual strategy, ask yourself three questions: • What visual aids and exhibits should I use?; • When should they be used?; and • How can they be presented most effectively?

When deciding what visual aids and exhibits to use during the trial, think broadly. Too often advocates focus only on the exhibits that will be proved formally and entered into evidence during the examination-​in-​ chief of a witness. Visual aids can be used during all stages of the trial, not just during examination-​in-​chief. For example, during the opening address a chart showing the chronology of events might be used. In closing argument, a checklist of key points might be posted onto a flip-​chart or displayed on a monitor and referred to periodically as the closing argument progresses. Provided visual aids are factually accurate, based on admissible evidence, and will not mislead or confuse the jury, their use is likely to be permitted. When formulating a visual strategy, begin by taking an inventory of all the exhibits you have. Expand from that and consider what visual aids will maintain juror interest and highlight key facts and themes. If resources permit, a graphic arts expert can be retained to assist with the development and implementation of an effective visual strategy. Having decided what visual aids and exhibits to use, consider when they will be used. Can the visual aid or exhibit be used effectively more than once during the trial? Will it be proved formally and entered into evidence, or is it a tool used to illustrate the oral testimony of a witness or the address of counsel? Will use of the visual aid or exhibit prompt an objection from 199

Fundamentals of Trial Technique

counsel for the other side? If so, can the objection be dealt with in a pre-​trial motion? Like all aspects of effective trial preparation, when a visual aid or exhibit will be used should be ascertained well in advance of trial. Exhibits and visual aids demand attention; however, their very attractiveness can be a problem. They draw attention away from oral testimony. You must ensure that the exhibit or visual aid complements testimony rather than competes with it. Earlier chapters discussed why, during examination-​in-​chief, descriptive evidence (the “scene”) ordinarily should precede and not interrupt occurrence evidence (the “action”). The same approach should be adopted whenever possible with the use of exhibits and visual aids. Ensure that the exhibits and visual aids do not interrupt the pace and flow of the action evidence, particularly if such evidence is graphic and dramatic. Decide how to present visual aids and exhibits during the trial. Will they be written documents, records, transcripts, digitally recorded testimony, objects, photographs, charts, diagrams, models, computer simulations, etc? How can they be presented most effectively to the jury? Should they be read by the witness, shown to the jury or both? Should the exhibit be enlarged and mounted on poster-​boards? Will modern technology –​tablets, Powerpoint slides, laptop computers, etc –​be effective? Will such technology be available in the jury room so that jurors can review the exhibit during deliberations? Note, however, that technology is a tool not a strategy. In other words, technology is a tool to be used to implement an effective visual strategy which, in turn, is governed by your overall trial strategy. The important point to remember is that the visual strategy should maintain the interest of the jury, focus on key themes, issues and facts, and be consistent with your theory of the case. Example 5.26 A plaintiff corporation has brought a breach of contract action claiming that the defendant corporation has breached a specific clause in a contract. During the opening address, the plaintiff might use a: • chart showing who the plaintiff and defendant are, and the key employees of each who had major roles in the case; • chronology of key events; and • blow-​up of the main clauses of the contract. During the case-​in-​chief, the plaintiff might use a: • blow-​up of the main clauses of the contract; • computer projection of an important admission by the defendant’s key employee; and • summary chart prepared by an expert accountant showing the calculation of the plaintiff’s damages. During the cross-​ examination of the defendant’s witnesses, the plaintiff might use a: • blow-​up of the main clauses of the contract;

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• computer projection of an important admission by the defendant’s key employee; and • poster-​board of a letter by another of the defendant’s employees containing a prior inconsistent statement. During closing argument, the plaintiff might use a: • summary chart prepared by an expert accountant showing the calculation of the plaintiff’s damages; and • chart containing a checklist of the reasons why the defendant is liable, tied   to key exhibits.

The physical characteristics of the courtroom are an additional factor to consider when deciding how best to use a visual aid or exhibit. Courtrooms vary greatly in size, shape, available floor and wall space, and in the location of the bench, bar table, witness box and jury box. Some courtrooms have natural light whereas others have only artificial lighting, and the extent that lighting can be controlled varies greatly. Ascertain the number and location of power points, and the technical hardware already in place. These variables influence significantly the visual aids and exhibits that can be used effectively in a particular courtroom. Finally, ascertain your own, and your witness’s, comfort level with technology. If you are not familiar with the presentation medium, practise until you are comfortable with it, or change the medium. When preparing your witness, make sure that the effective use of visual aids and exhibits is a component of that preparation. 2  Preparing visual aids and exhibits When preparing a visual aid, the following guidelines should be considered: • visual aids should have a clear message –​one that jurors immediately

comprehend; • visual aids should be simple –​the amount of information that can be

absorbed from a single visual aid is limited; • visual aids should be free of distractions, so that jurors focus on the message; • visual aids should be attractive –​they should be big, colourful and visually appealing; and • visual aids should be so visually compelling that jurors will instinctively refer to your aids rather than those produced by the other side. Of course, these are only guidelines. For example, if your position is that the case is complex and confusing, visual aids can be used to collect complex and confusing information and portray it visually. How can visual aids and exhibits be more appealing, and how can their presentation be choreographed to maximise their impact on the jury? The answers depend in part on the type of visual aid or exhibit involved.

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a Objects Consider this scenario: an item on the evening news. The police are holding a press conference to announce a major drug seizure. What do you see? The Police Commissioner is standing at a lectern, providing details of the seizure. The drugs are piled high on a nearby table. As the Commissioner speaks, the camera focuses on, and slowly scans across, the drugs. Good advocates know that the same kind of choreography is effective in the courtroom. They know that objects –​drugs, weapons, appliances, machinery –​have a dramatic impact on the judge and jury. Keeping the object out of sight, and introducing it during a dramatic point in a witness’s examination-​in-​chief, generally heightens the impact. This is not only an evidentiary requirement if the object has not yet been tendered, but also should be considered if the object has been admitted into evidence. Unveiling an object can be a moment of high drama, and drama always has a place in the courtroom.

b  Photographs and digital recordings If the real thing cannot be brought into the courtroom, the next best thing is to use photographs and digital recordings to show the real thing. Photographs and digital recordings, if prepared and presented properly, can have an enormous impact. Photographs are generally more attractive and interesting when they are enlarged and in colour. If the original can be enlarged to 20 × 25 cm without loss of contrast, this should be done, and the enlargement mounted on a stiff backing. If the photograph is of critical importance, consider having it enlarged to poster size and mounted on poster-​board. Ensure that the photograph is not taken too far from the key points. If a close-​up is used, make sure that the key scene or object fills the photograph, but does not distort the perspective. Finally, have the photos printed with a dull matte finish to minimise glare and reflection. Digital recordings also can be extremely effective exhibits. For example, a “day in the life” recording of a permanently disabled plaintiff can make the physical reality of the plaintiff’s daily routine come alive much more effectively than oral testimony or photographs. A digital tour of a manufacturing plant can recreate the “feel” inside the plant much more effectively than other evidence. If you intend to present a digital recording, employ an experienced cinematographer. To be persuasive and admissible, the end product must be of professional quality, and fairly and accurately portray what it contains. In addition, tell the cinematographer to retain and preserve all edited portions of the recording, since these “out-​takes” may be discoverable, and may be important in determining whether the final product fairly and accurately portrays what it purports to portray.

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c  Diagrams, charts, models and computer-​generated images When preparing a diagram or chart, consider the following points: 1

Use a poster-​board that is large enough to be seen easily, such as a standard A2 poster mounted on a rigid backing. If you are projecting the diagram or chart onto a monitor, make sure that the monitor can be seen easily by the jury, judge, witness and opposing counsel.

2

Avoid using a white board. A totally white board contrasts too starkly with black lines and letters. A board with a very light, grey, blue or tan tone is preferable. Further, the poster-​board should have a dull matte finish to minimise glare and reflection.

3

Use colour as well as black ink for lines, lettering and other markings. Generally, in addition to black, do not use more than three or four high-​contrast colours, such as red, blue, yellow and green. Key the colours to all related exhibits so that they become visual cues. Colour can also suggest ideas. For example, green suggests money, red suggests danger and blue suggests calm. Consider using black lines for the basic diagram or chart, and bright colours for any markings that need to be added to the exhibit. Keep in mind that a number of people have colour deficiencies. Such people find bland reds and greens confusing; bright colours are the most easily seen.

4

Make sure the lettering is large enough to be seen easily by the judge, the witness, counsel and, most importantly, the jury. Use lower-​case letters where possible, since lower-​case letters have more visual clues than capital letters and are therefore easier to read. Justify the left margin and leave the right margin ragged. If each line has a separate item of information, use numbering or a “bullet” to highlight the information.

5

Be careful not to clutter the diagram or chart with too much information. Diagrams and charts are more effective if they are kept simple. Generally, a standard A2 size poster-​board should contain a heading and up to eight lines of print. Each line can contain around 40 characters, which includes letters, punctuation and spaces. If your chart or diagram does not fall within these guidelines, use a second poster-​ board, not a larger one. Too much information on one exhibit cannot be readily digested.

Models, being three-​ dimensional, can show spatial relationships more effectively than two-​ dimensional diagrams. A working model, built to scale, can recreate an object or structure –​sometimes more effectively than a computer animation. Finally, computers with appropriate software programs can create sophisticated graphics and animations. Computer animations, prepared by experts using special software programs, can re-​create complex events.

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They are particularly useful when used to illustrate graphically the opinion of an expert witness. For example, using a computer animation to recreate the last minutes in an aeroplane cockpit before a crash, or the plaintiff’s view from a car being struck by a truck driven by the defendant, can be a very powerful tool to illustrate the opinion expressed by an expert.

d Documents Jurors often consider documents to be sterile and boring. You must give thought, therefore, to trying to make the document more interesting. Two techniques are often used: 1

Project the image. Documents can be loaded into a computer and projected from the computer onto a large monitor or screen. The exhibits can then be marked, highlighted and enlarged by either the witness or counsel. One shortcoming of computer-​projected documents is that the jury may not be able to refer to the exhibit during deliberations. To address this, ensure that the jury room is equipped with the necessary technology (and that the jury knows how to operate it), or tender a printout of the document.   Projecting the image enlarges the document, and each juror’s attention is directed to the same image simultaneously. Further, with software that allows you to mark a document the witness can underline or circle the important parts of the document with a stylus. If you use such technology, or any other technological device, learn how to use it properly. Any student will attest to the fact that it is extremely frustrating and annoying to be called upon to pay attention to a projected image that is out of focus, or which has lettering that cannot be read without squinting. The proper use of visual media, like most trial techniques, is a skill that must be learned. 2

Photographic enlargements. A photographic enlargement of an important document, or a page of a record, can be used effectively to retain the jury’s attention. This is discussed in detail above.

3  Using exhibits Having prepared the exhibits, and decided when they will be introduced into evidence, you must next decide how they can be presented most effectively. In addition to the procedural and evidentiary rules governing the admissibility of exhibits discussed earlier in this chapter, there are presentation techniques that should be considered.

a  Witness marking the exhibit Using a witness to mark an exhibit involves a degree of risk. If the witness makes a mistake, it is often difficult to rectify the error, and the witness is vulnerable to cross-​examination. Consequently, many advocates prefer to 204

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have a completely marked exhibit prepared before trial. The witness’s role at trial is limited to laying the foundation for the admission of the completed exhibit into evidence, and explaining the markings to the jury. By contrast, when the witness marks the exhibit in court, the jurors know that the information comes from the witness, not counsel, and the credibility of both the witness and the exhibit is enhanced. If you decide to have the witness mark the exhibit in court, consider the following. • Appropriately selected colours should logically connect the markings to

the evidence. For example, if the cars involved in a collision are blue and green, use the same colours to show their location on a diagram. • Use appropriate symbols such as boxes to represent cars, stick figures to

represent people, dotted lines to represent the path of a car, etc. • Ensure that the marking process involves the jury and the judge, as well

as the witness. If possible, enlarge the exhibit and mount it on a poster-​ board. Place the poster-​board on a stand and position it so that everyone can see it. If the witness must leave the witness box to mark the exhibit, make sure that the leave of the court is obtained before directing the witness to step out of the witness box. If it is not possible to enlarge the exhibit, make sure the witness holds it up after it is marked so that the judge and jury know what markings have been made. If trial presentation software is being used, explain to the witness in advance of the trial how to use the software to mark the exhibit. Example 5.27 Marking a diagram The witness was across the street when a robbery occurred. She has already set the scene and relayed the action evidence. Counsel is now using a diagram of the street to highlight the action evidence. Q. Ms Sedgwick, you stated that the blue car being driven by the defendant was parked immediately in front of the shop. Using a blue marker, please mark with a rectangular box the position of the defendant’s car when you first noticed it, and show the marking to the jury and her Honour. [Witness marks the diagram and shows it to the jury and judge.] Q. You also stated that you saw the defendant run out of the shop and jump into the blue car. Using a black marker, please mark with a stick figure and the letter “D” the position of the defendant when you first saw him. [Witness marks the diagram and shows it to the jury and judge. If the witness does not show it to the jury and judge, remind him or her to do so.] Q. Using a black marker, please mark with a dotted line the path the defendant took when he ran to the car. [Witness marks the diagram and shows it to the jury and judge.] Q. Now, using the green marker, please mark where you were standing with a circle and an “S” in the middle.  [Witness marks the diagram and shows it to the jury and judge.]

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This approach has two advantages. First, it tells the witness precisely how to mark the diagram. This minimises the risk of confusion. Secondly, it eliminates the need to indicate what the witness is doing “for the record”. The markings the witness made are obvious from the question.

b  Selecting exhibits Exhibits can be over-​used and misused. When deciding whether an exhibit should be tendered into evidence, consider the following: • Exhibits, particularly documentary exhibits, should not be so voluminous

that their use at trial becomes repetitive and boring. Documents should be reviewed, and only the most relevant selected for introduction at trial. If the introduction of a large number of documents is essential to your case –​for example, where a succession of invoices must be produced to establish a debt –​ascertain whether the other side will consent to their introduction without your witness formally proving each document. Alternatively, determine whether the information in the documents can be presented effectively in a summary (discussed in Section 5.3). • Make sure that your exhibit is probative and relevant. An exhibit that is merely interesting should not be tendered into evidence. Tendering such an exhibit makes you vulnerable to an attack on the basis that you are short on proof and the exhibit is being introduced in an attempt to bolster a weak case. • Examine the exhibit to ensure there is not a conflict between it and any other exhibit you intend to tender, or between it and the oral evidence which will be elicited from your witnesses. Exhibits, particularly documentary records, can contain a wealth of information that may be inconsistent, contradictory and damaging. In conclusion, exhibits can be interesting, even exciting, and they invariably win the battle for the jury’s attention. It is essential that you use your exhibits to complement the witness’s oral evidence, not compete with it. The timing of the introduction of an exhibit into evidence, therefore, will depend on the nature of the qualifying witness’s evidence and the nature of the exhibit.

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CHAPTER 6

Cross-​Examination

6.1 INTRODUCTION....................................................................................... 207 6.2 SHOULD YOU CROSS-​EXAMINE?.............................................................. 208 6.3 PURPOSE AND ORDER OF CROSS-​EXAMINATION.................................... 210 6.4 ELEMENTS OF CROSS-​EXAMINATION...................................................... 210 6.5 ELICITING FAVOURABLE EVIDENCE........................................................... 220 6.6 DISCREDITING UNFAVOURABLE TESTIMONY........................................... 223 6.7 DISCREDITING THE WITNESS.................................................................... 230 6.8 SPECIAL PROBLEMS.................................................................................. 245 6.9 SPECIAL WITNESSES.................................................................................. 248 6.10  CROSS-​EXAMINATION CHECKLIST........................................................... 254

6.1 INTRODUCTION Cross-​examination is the opportunity to elicit favourable evidence from the other side’s witnesses and to expose weaknesses in a witness’s testimony. Through the use of leading questions, the cross-​examiner can highlight mistakes, limitations and omissions in a witness’s evidence. If done well, the witness’s bias, interest and motive can be exposed and the witness’s veracity tested. Finally, it can often elicit from the other side’s witnesses evidence that supports your case theory and the credibility of your witnesses. Texts on the subject often point out that cross-​examination is an “art” or an “intuitive skill”, referring us to notable cross-​examinations by such distinguished advocates as Sir Edward Carson, Sir Garfield Barwick and Clarence Darrow. While there may be some truth in this view, and excerpts from the famous trials of celebrated counsel certainly make for fascinating reading, we less-​celebrated advocates still require advice on how to structure and conduct the cross-​examination of a particular witness in our particular trial. This chapter attempts to provide such guidance. The objectives of this chapter are threefold. First, it presents an analytical approach to the threshold decisions and organisation of your cross-​ examination. Secondly, it presents a conceptual approach to the realistically attainable purposes of cross-​examination. Finally, it discusses and illustrates the technical skills needed to conduct a successful cross-​examination.

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6.2  SHOULD YOU CROSS-​EXAMINE? You cannot intelligently decide whether or not to cross-​examine a witness unless you have a realistic understanding of what you can expect to achieve during the cross-​examination. This understanding can be attained only if you have prepared the cross-​examination of the witness in advance. Preparation here, as in every aspect of the trial, is the key to effective cross-​examination. In civil, and to an increasing extent criminal, cases, the rules governing pre-​trial discovery have largely abolished trial by ambush. Before the trial begins, you most likely will know who will be the main witnesses for the other side, and the general outline of their evidence. This, coupled with your assessment of the other side’s theory of the case, will provide you with the necessary information to plan and organise your cross-​examination before the trial begins. A good advocate never thinks, “let’s wait and see what the witness says in evidence-​in-​chief”. This kind of “wait and see” attitude will guarantee failure. Pre-​trial preparation does not mean that the cross-​examination constructed in advance of the trial is “set in stone”. While the cross-​examination you prepare before trial should form the foundation of the cross-​examination you actually conduct, it is essential that you remain flexible, adapting your preparation to whatever circumstances might arise. Further, you are not required to cross-​examine every witness produced by the other side. When you stand up to cross-​examine, the jury assumes that the witness has hurt your case. If this is not true, and there is no favourable evidence to be elicited from the witness, do not cross-​examine. Simply state, “Your Honour, I have no questions for this witness”, and sit down. In short, whether you cross-​examine, and what questions you ask on cross-​examination, will be governed by your theory of the case and your assessment of the other side’s theory of the case. Before you undertake the cross-​examination of a witness, ask yourself the following questions. 1  Has the witness hurt my case? The old adage, “the best cross-​ examination is no cross-​ examination”, should always be in the back of the cross-​examiner’s mind. A witness may be produced to establish a technical element of a claim, establish the foundation of an exhibit not in dispute or corroborate a witness whose evidence you have already dealt with in an earlier cross-​examination. If the witness has not damaged your case, and cannot give any evidence that assists your case, do not cross-​examine. 2  Was the witness’s evidence credible? If, on examination-​ in-​ chief, the witness was not credible, or the witness was contradicted by other, more credible, witnesses, the damage 208

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to the other side’s case has already been done. There is no need for you to cross-​ examine. In fact, your cross-​ examination may rehabilitate the witness. 3  Was the witness’s evidence-​in-​chief factually deficient? A witness may have omitted an important part of his or her evidence. There are two possible reasons for this, with the first occurring more frequently than the second: a

the witness, or counsel, simply forgot to address the issue. In this case, your cross-​ examination will provide the witness with the opportunity to rectify the mistake while answering your questions. Alternatively, counsel for the other side may realise his or her omission and attempt to rectify the error on re-​examination; or

b

the witness intentionally withheld evidence that hurts your case on the expectation that you would pursue it in cross-​examination. In other words, the witness, or his or her counsel, is “sandbagging”, that is, trying to trick you. Damaging evidence has twice the impact if it is elicited during cross-​examination. If you conclude that the other side is “sandbagging” on an important point, consider avoiding that topic in your cross-​examination.

4  What can I expect to gain from the cross-​examination? Ask yourself whether you have any effective ammunition to use during cross-​examination. If the answer is “no”, and the witness is credible, do not cross-​examine. The jury views counsel as sharp, crafty and battle tested, whereas the witness is often perceived as vulnerable, nervous, frightened and in need of protection. These perceptions may not reflect reality; however, remember that in the cross-​examination game, ties go to the witness. If the witness has made a reasonable impression during examination-​in-​chief, the jury will side with the witness. Unless you can realistically expect to score points during cross-​examination, leave the witness alone. 5  What risks do I need to take? Trials invariably involve calculated risks. The number and extent of the risks depend on the strength of your case. If your case is strong and you are reasonably confident of victory, keep your risks to a minimum. If your case is weak and all attempts at settlement (in a civil case) have failed, you can cast caution to the wind and conduct a risky cross-​examination in an attempt to elicit the admission that will turn the case around. If, as is likely, you fail in this attempt, you are in no worse a position than you were before the cross-​examination. Your case is still a loser. 209

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6.3  PURPOSE AND ORDER OF CROSS-​EXAMINATION The purpose of cross-​examination is twofold: 1

to elicit favourable evidence: this involves getting the witness to agree with facts that support your case, and are consistent with your case theory and themes; and

2

to shake the witness’s credibility: this involves asking questions that will discredit the witness or the witness’s evidence, so that both will be minimised or disregarded by the jury.

To conduct an effective cross-​examination, you must understand the relative importance of these two broad aims and their order of implementation, which is: always elicit favourable evidence before you attempt to shake the witness’s credibility. Why this order? Three reasons: 1

most witnesses will be at their most credible, and their evidence at its most plausible, immediately after examination-​in-​chief. This is the time to elicit favourable admissions, because the credibility of the witness will enhance the impact on the jury of the admissions;

2

if the order is reversed, the probability of eliciting favourable admissions is reduced, if not extinguished. Even if, after attacking the witness’s credibility, you are skilled enough to obtain an admission, its impact will have been lessened in direct proportion to the success of your attack; and

3

if you are successful in obtaining important admissions, you may elect not to try to shake the witness’s credibility. Juries will be understandably sceptical if you argue that the portion of the witness’s evidence favourable to your case should be believed, while the part that is unfavourable should be disregarded. If favourable admissions have been elicited from the witness, an attempt to shake the witness’s credibility will only undermine the impact of those admissions.

6.4  ELEMENTS OF CROSS-​EXAMINATION 1 Structure Successful cross-​examinations follow a preconceived structure that is both logical and persuasive. To achieve such a structure, consider the following principles.

a  Establish as few basic facts as possible You should limit your cross-​examination to three or four points that support your theory of the case. The jury has a finite capacity to retain information and attempting to establish too many points in cross-​examination will invariably create two problems: the impact of your strongest points will be 210

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diluted; and, the less significant points will have been forgotten entirely by the jury by the time it retires to consider its verdict. You should, therefore, emphasise only your strong points and discard the peripheral material. Ask yourself this question: “Will I discuss this point during closing argument?”. If the point is not important enough to discuss in closing argument, it is probably not worth raising in cross-​examination.

b  Make your strongest points at the beginning and end Open with a flourish and end with a bang. Why? Human nature dictates this approach. People remember best what they hear first and last. These are the principles of “primacy” and “recency”. The first and last impressions made during the cross-​examination will be the ones the jurors take with them into the jury room.

c  Vary the order of your topics A successful cross-​examination is usually based on indirection, the ability to establish points before the witness appreciates the purpose of your question, or realises that a point has been made. By varying the order of your topics you reduce the likelihood that the witness will gauge accurately the underlying reasoning for your question. There is a fine line, however, between varying the order of your topics and jumping from point to point. The latter will only confuse the jury, the witness and, most likely, yourself.

d  Do not repeat the evidence-​in-​chief This is probably the most commonly broken rule of effective cross-​ examination. Rehashing a witness’s examination-​in-​chief only serves to reinforce that witness’s evidence and enhance his or her credibility in the eyes of the jury. Often, a witness is given the opportunity to repeat his or her evidence-​in-​chief because the cross-​examiner failed to ask leading questions. If a non-​leading question is asked in cross-​examination, the witness will have the opportunity to explain and such explanation invariably will be consistent with the witness’s evidence-​in-​chief. A witness’s evidence rarely falls apart during the second telling. In fact the converse is true, it normally improves. To ensure that a witness will not repeat his or her evidence-​in-​chief, always ask leading questions in cross-​ examination. If you cannot resist the urge to ask a non-​leading question, be very sure that you have thought through precisely what will be the witness’s response and be confident that the response advances your theory of the case.

e  Comply with the rule in Browne v Dunn The rule in Browne v Dunn1 is a rule of professional practice that applies to both civil and criminal proceedings. The rule applies to the cross-​examination 1

(1894) 6 R 67. 211

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of any witness, and stipulates that, where the cross-​examiner intends later to contradict the witness by calling further evidence or by suggesting that the witness’s evidence can be otherwise explained, the witness should be given the opportunity in cross-​examination to comment on the contradictory version. The rule is one of fairness and economy. It promotes fairness because it allows a witness, in cross-​examination, to comment on facts within his or her knowledge. It also allows the jury to assess more accurately the credibility of the contradictory evidence later called by the party cross-​examining.2 It fosters economy because in the (unlikely) event that the witness being cross-​examined agrees with the contradictory version, the need to call contradictory evidence no longer exists, therefore expediting the trial. Example 6.1 The witness, the plaintiff, alleges that she slipped on grapes that were on the floor of the defendant’s store. The defendant intends to call the store manager who will state that there were no grapes on the floor. Q. Ms Chan, you stated in your evidence-​in-​chief that you slipped on grapes that were on the floor? A. Yes. Q. There were no grapes on the floor, were there?  A. That’s incorrect.

When complying with the rule in Browne v Dunn you should not preface your questions with, “I put it to you that”. The use of this prefix, while common in practice, serves no purpose other than to highlight the unfavourable evidence compliance with the rule requires you to elicit. Generally, a better approach is to weave the questions designed to comply with the rule into the middle of your cross-​examination. This will allow you to begin and end on a positive note yet still comply with the rule. The consequences of a breach of the rule are in the discretion of the trial judge, and will depend on all the circumstances and whether the case is civil or criminal.3 Generally, if the witness is still available, the preferable course is to recall the witness for the limited purpose of cross-​examination, and re-​examination, on the contradictory evidence.4

2 3 4

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A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [7.129]. See J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17460]; S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016), [EA.46.150]. For example, see s 46 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also Reid v Kerr (1974) 9 SASR 367 at 375.

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2  Rules for cross-​examination As well as the principles of structure described in Section 6.4 there are certain “rules”, or “commandments”, of cross-​examination that have withstood the test of time. These rules are simply guidelines which may be ignored when circumstances dictate –​but when in doubt, follow them! They include the following:

a  Start and end effectively The first minute is critical. When you start your cross-​examination, the jury expects you to do something noteworthy. If you do not, the jury will quickly conclude that your cross-​examination will add nothing to what they have already learned from the witness. Accordingly, do not start your cross-​examination with meaningless introductory comments such as, “Mr Johnson, I just want to go over some of your evidence-​in-​chief”, or, “Mr Johnson, I just have a few questions?”. Commence with something that grabs the jury’s attention. The same applies to your last point –​make it important, interesting and brief.

b  Know the probable answer before you ask the question You should assume that the witness will seize every opportunity to damage your case, so play it safe. Cross-​examination is not the time to fish for interesting information, or satisfy your curiosity. The sole purpose of cross-​ examination is to elicit favourable facts, impeach the witness’s evidence or the witness’s credibility, thereby minimising the impact of the examination-​ in-​chief. Accordingly, know the probable answer to your question before you ask it, or, if you do not know the answer be confident that no possible answer can hurt your case.

c  Listen to the witness’s answers While this may appear to be stating the obvious, counsel are often so preoccupied with formulating their next question that they fail to listen to the answer to the one just posed. Witnesses constantly surprise you, and their evidence, particularly during cross-​examination, never goes according to script. If you fail to watch a witness and listen to his or her response, you will miss the nuances and gradations in that witness’s evidence. A hesitation, a furtive glance, a sweating brow –​all will be overlooked. If you are thoroughly prepared, know the theory of your case and what you intend to put to the jury in closing argument, you should be in a position to ask spontaneous questions from notes organised according to cross-​examination topics. This will permit you to watch the witness as he or she listens and responds to your question, gauge the witness’s reaction to your question and the tone of his or her response, and intelligently formulate follow-​up questions.

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d  Do not argue with the witness Cross-​examination can be frustrating. The witness’s responses often will not be to your liking; however, you must resist the temptation to argue with the witness. Arguing with the witness is legally improper, unprofessional and, in terms of maintaining your credibility with the jury, is a disaster. Further, it inevitably allows the witness to repeat and reinforce his or her evidence-​in-​chief. Counsel who argue with a witness are usually those who are unprepared and are conducting a fishing expedition. They repeatedly elicit unfavourable responses and, in frustration, resort to arguing with the witness. Thorough preparation, which will include organising and structuring your cross-​examination in advance, will reduce the likelihood of this rule being breached. Alternatively, putting to the witness a conclusion you want the jury to reach, rather than simply establishing the facts that lay the foundation for that conclusion, often will result in an argument with the witness. This is sometimes referred to as asking the “one question too many”, which is discussed in Section 6.4.2(f). Unless the witness is favourable to your case, it is unlikely that he or she will ever agree with your conclusion. More importantly, you do not need the witness to agree, you only need the jury to accept that the conclusion is correct. When preparing your cross-​ examination, ask yourself whether the question you intend to ask relates to a fact or a conclusion you want the jury to deduce from the fact. If it is the latter, do not ask the question in the cross-​examination of an unfavourable witness.

e  Do not allow the witness to explain This can best be achieved through the use of leading questions. Never ask an open-​ended question on cross-​examination. Questions that begin with “how”, “what”, “when”, “why”, “describe” or elicit explanations of any kind, invite disaster. Always ask leading questions that directly suggest a particular answer to the question. For example, instead of asking, “How did you get to the city centre?”, ask, “You took a train to the city centre, didn’t you?”. You want the witness to agree to the fact that you put to the witness, not to give an explanation which will inevitably damage your case.

f  Do not ask the one question too many You should only ask enough questions on cross-​examination to establish the points you intend to make during your closing argument. Do not ask the question that will drive home your point: your cross-​examination should merely suggest it. In the course of closing argument you can pose the question rhetorically and answer it the way you want it answered. A secondary benefit of this approach is that the witness is not provided with the opportunity to give an answer that will damage your case. 214

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Example 6.2 The cross-​examiner wants to establish that the witness did not see the collision until after the initial impact and, therefore, does not really know how the accident happened. Q. You were not expecting a collision at the intersection, were you? A. No, I wasn’t. Q. You had gone through that intersection many times without any collision occurring? A. Yes. Q. The weather was good? A. Yes. Q. The traffic was light? A. Yes. Q. As you approached the intersection you were talking to your passenger, isn’t that right? A. Yes. Q. The first unusual thing you heard was the sound of the crash? A. Yes. Q. That’s when you noticed that a crash had just occurred? A. Yes. At this point, stop! You have made your point. Do not ask the next obvious question: “So you did not see the cars before the crash occurred, did you?” That is the conclusion you want the jury to reach. The witness will invariably give  you an unfavourable response. Save the point for your closing argument.

Hindsight is twenty-​twenty, and it is always easier to identify the one question too many after you have asked it. How do you know when to stop? The best safeguard is to ask yourself, “What conclusion concerning this witness’s evidence do I want the jury to draw?”. Once you have identified that point, do not ask the question in cross-​examination that will establish it. Argue the point in closing. Example 6.3 Closing argument Remember what Ms Mazzone said on cross-​examination? She testified that the first unusual sound she heard was the crash. It was then that she noticed that a collision between two cars had just happened. Did she see the collision itself?  No. Did she see where the cars were before the crash? Of course not.

3 Questioning style Effective examination-​ in-​ chief requires that counsel assume a secondary role, remaining in the background by asking open-​ended questions that allow the witness to dominate the jury’s attention. Effective cross-​ examination is, in terms of questioning style, the exact opposite. During cross-​examination counsel is centre stage. Accordingly, you should remember the following rules when conducting a cross-​examination. 215

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a  Always ask leading questions As a general proposition, you should always ask leading questions on cross-​examination. Questions such as, “What’s the next thing you did?”, or, “Describe what the intersection looked like”, should be avoided, particularly when the witness is addressing an important point. Used in this context, the term “leading question” is defined narrowly to mean a question asked of a witness that directly suggests a particular answer.5 Inexperienced advocates often make two interrelated mistakes: they lead too much in examination-​in-​chief and lead too little in cross-​examination. If such mistakes are not consciously avoided, they can become an irreversible habit. Example 6.4 Leading questions Q. Mr Atkinson, on 24 February 2018 you owned a white 2009 Mazda 3, didn’t you? Q. You left the intersection before the police arrived, didn’t you?  Q. You had four full strength beers in the hour before the collision, didn’t you?

Another approach is to make the question leading through your intonation and demeanour. The advantage of this approach is that the questions are simpler. Example 6.5 Q. Ms Jones, the robbery happened at 9.00 pm? A. Yes. Q. It was dark? A. It was night-​time. Q. So it was dark? A. Yes. Q. There was one streetlight? A. Yes. Q. The streetlight was on? A. Yes. Q. But it was at the end of the street? A. Yes. Q. There was no streetlight half way down the street? A. No. Q. And that is where the robbery occurred? A. Yes.  

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From an evidentiary perspective the term “leading question”, as is noted in Chapter 4, is defined more broadly. Generally, see the definition of “leading question” contained in the Dictionary to the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2008 (Vic). See also s 3 of the Evidence Act 2001 (Tas)  .

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The prohibition against asking non-​leading questions on cross-​examination, like all rules, is subject to exceptions. If the answer you anticipate the witness will give is inconsistent with evidence the witness has given before, or the answer defies common sense or other evidence, you can safely ask a non-​ leading question because you can successfully contradict any unexpected answer. As a general rule, however, always ask leading questions.

b  Make a statement of fact and have the witness agree to it During the cross-​examination you are the person who makes the principal assertions and statements of fact. The witness should simply be asked to agree with each of your statements. Your questions should be phrased narrowly. Each question should address only one specific fact. This will confine the witness to “yes”, “no” or short answers, and stop the witness from giving long, self-​serving answers.

c  Use several short, concise, clear questions Cross-​examination is, in part, the art of slowly making mountains out of molehills. Do not include more than one point in a question. Do not attempt to establish your main point with one question. You should lead up to each point with a series of short, concise questions. For example, do not commence your cross-​examination with, “Mr Singh, you didn’t see the car hit the pedestrian, did you?”. This is the point you will establish in closing argument. By including such a question in your cross-​ examination, you provide the witness with the opportunity to disagree with you and give you an unfavourable response. A better approach would be as follows: Example 6.6 Q. You are familiar with the intersection of Australia Avenue and the Gold Coast Highway? A. Yes. Q. In fact, you have driven through that intersection many times in the past five years? A. Yes. Q. You usually go through the intersection on your way to work, don’t you? A. Yes. Q. And you drive back through the intersection on your way home from work? A. Yes. Q. Over the past five years, you have probably driven through that intersection over a thousand times? A. Yes. Q. On 3 February 2018, at 8.00 am, the weather was clear, wasn’t it? A. Yes.

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Q. The road was dry? A. Yes. Q. Nothing was going on that made you pay more than your usual attention to the road? A. That’s correct. Q. After you had gone through the intersection you heard a crash? A. Yes. Q. And it was then that you noticed that someone had been hit by a car?  A. That’s correct.

Through a series of interrelated, progressive questions this cross-​ examination has demonstrated that the witness was not expecting a collision, and did not notice anything out of the ordinary before hearing the sound of the crash. The one question too many, “You didn’t see the car hit the pedestrian, did you?”, has not been asked. The cross-​examiner has established this point by indirection, and will raise it in closing argument.

d  Keep control of the witness There are a number of techniques that can be used to keep a witness under control. 1

Ask precisely worded, narrowly focused leading questions. This will prevent the witness from slipping in an answer that hurts your case.

2

Repeat the question to which the witness gave a non-​responsive answer. This accomplishes two objectives. It lets the witness know that you will not be put off by an unresponsive answer, and it highlights the fact that the witness is evading a hard question.

Example 6.7 Q. Mr Bacon, between 8.00 pm and 9.00 pm, you drank five bottles of beer in the pub, didn’t you? A. Well, we were all drinking. Q. Mr Bacon, my question is, you drank five bottles of beer between 8.00 pm and 9.00 pm, didn’t you? A. Yes.  

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Let the witness know that you have a complete command of the facts and will know when he or she is telling less than the whole truth. Before asking the important question, demonstrate to the witness that you know the facts. This reduces the possibility that the witness, under the mistaken impression that you do not know the true facts, will give you an inaccurate, or untrue, answer.

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Example 6.8 Q. Mr Bacon, there were three other persons sitting at your table in the pub, correct? A. Yes. Q. They were James Smith, John Oliver and Wilbur Franklin, correct? A. Yes. Q. Wilbur Franklin was sitting directly across from you, wasn’t he? A. Yes. Q. He’s tall, thin and has a deep voice? A. Yes. Q. It was while the four of you were sitting in the pub that you said to Wilbur Franklin, “I ditched the stolen car in the parking lot”? A. Yes.  

4

As a last resort, seek the assistance of the trial judge. When the witness continuously fails to respond to your questions –​for example, by volunteering answers to questions that were not asked –​ask the court to direct the witness to answer the question asked. If, following such an admonition, the witness continues to volunteer answers, the jury will realise that the witness is biased and weigh the evidence accordingly.

e  Be a good actor Every cross-​examiner, no matter how experienced, careful and talented, will receive a bad answer to a question. When the witness drops a bomb, it is essential that you do not react visibly to it. Jurors, when they hear what appears to be a devastating answer, will look around the courtroom to gauge the reaction of the judge, counsel, the parties and the gallery. You must proceed as if nothing of importance happened, thereby minimising the impact. The jury may conclude that the answer was not as damaging as it first appeared to be.

f  Project a confident, commanding attitude You should be the centre of attention during cross-​examination. Your voice and manner should project confidence, both to the jury and to the witness. In examination-​in-​chief, the way in which a witness answers a question is often as important as the answer itself. In cross-​examination, on the other hand, the way you ask a question is often as important as the question itself. Make sure that the witness understands how you feel about the facts, and appreciates the responses you expect to receive to your questions. Projecting this kind of attitude helps to ensure that you get the answers you want. Projecting confidence, however, is different from being unnecessarily hard on the witness. Cross-​examination does not require you to examine

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crossly. The jury will react negatively if you sound angry and appear to be bullying the witness without a good reason for so doing.

g  Use a natural style In cross-​examination, as in other phases of the trial, a variety of styles can be employed. However, there is one cardinal rule: develop and use your own natural style, one with which you feel comfortable. Jurors will immediately spot any counsel who is attempting to copy someone else’s style. The style that is natural for you, and with which you feel most comfortable, will invariably be the one that is the most effective. 4  Counsel’s demeanour During cross-​examination you want to capture the jury’s attention. You should, therefore, aim to be the dominant physical presence in the courtroom. Court etiquette restricts you to limited movement behind the bar table, but your voice and gestures can be used to attract and maintain the jury’s attention. This is not to suggest that your voice and gestures should be histrionic. Your goal is to lead the emotion and understanding of the jury through the controlled use of voice and body.6 Always maintain eye contact with the witness. This gives the witness the impression that you are totally in command and know when the witness is wavering or hedging his or her answers. It also forces the witness to look at you, or to avoid your gaze by looking elsewhere.

6.5  ELICITING FAVOURABLE EVIDENCE The cross-​examiner’s primary purpose is to elicit facts from the witness that will support your case and which are consistent with your case theory and themes. You should try to elicit this evidence at the beginning of your cross-​ examination, when the witness will be the least adverse. If you are pleasant and courteous, the witness will be much more relaxed and cooperative, and your chances of obtaining favourable evidence will be maximised. What constitutes favourable evidence? You must use a little imagination and ingenuity here. Remember that the purpose of this phase of the cross-​ examination is to obtain facts that support your theory of the case, or contradict the other side’s case theory. With this in mind, ask yourself these questions:

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This topic is discussed in greater detail in L McCrimmon, I Maxwell, “Teaching Trial Advocacy: Inviting the Thespian into Blackstone’s Tower” (1999) 33 The Law Teacher 31.

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1  Did part of the evidence-​in-​chief help? Only rarely is the witness’s entire evidence-​in-​chief damaging to your case. Usually the witness will testify to a number of facts that are either neutral or support your position. The jury is more likely to retain information elicited during cross-​examination, so it is useful to have the witness repeat the favourable parts of their evidence. Example 6.9 In a criminal case the witness has testified in her evidence-​in-​chief that she was robbed at midnight in an alley. She has identified the accused as the robber. The Defence does not dispute that the assault occurred, only the identity of the assailant. In cross-​examination, emphasise the fact that it was night-​time, and the lighting was poor when the robbery occurred. Q. Ms Ngurah, the assault occurred at midnight? A. Yes. Q. In an alley? A. Yes. Q. The only light in the alley came from the Houston Street? A. Yes. Q. Houston Street runs perpendicular to the alley? A. Yes. Q. Ms Ngurah you have before you Prosecution Exhibit 6? A. Yes. Q. That is a diagram of Houston Street that you prepared? A. Yes. Q. There are two street lights on Houston Street, correct? A. Yes. Q. As indicated on the diagram, one light is at the north end of Houston Street? A. Yes. Q. It is marked with an “X” on the diagram? A. Yes. Q. The second light is at the south end of Houston Street? A. Yes. Q. It also is marked with an “X” on the diagram? A. Yes. Q. The alley in which the assault took place is halfway down Houston Street, correct? A. Yes. Q. Your evidence was that you left Houston Street and walked down the alley? A. Yes. Q. You had walked about 20 metres? A. Yes. Q. Then you were assaulted? A. Yes. Q. It was dark in the alley, wasn’t it? A. Yes.   221

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2  Can the witness corroborate your case? Review the central parts of your case to see whether the witness can corroborate aspects of it. Admissions are always more impressive when they are elicited in cross-​examination. One effective technique is to use the other side’s witnesses to establish a foundation for the admission into evidence of exhibits, even if you will not be offering the exhibit itself into evidence until your case-​in-​chief. 3  What must the witness admit? A review of the witness’s earlier evidence, and that of the other witnesses called by the other side, will highlight the facts to which the witness will have to agree. If this evidence is favourable, it is safe to cover it in cross-​ examination. If the witness contradicts his or her earlier evidence, the prior inconsistent statement can be put to the witness. In Example 6.9, if in her statement to police the witness had admitted it was dark in the alley, you could simply ask the question, “It was dark in the alley, wasn’t it?”, after you establish the time, and where, the assault took place. If the witness does not admit the fact that it was dark in the alley, you always can use her statement to police to impeach the witness’s evidence. If the witness contradicts another witness, you have established a contradiction in the other side’s case. This contradiction can be highlighted in closing argument. A similar review should be undertaken with exhibits that you know the other side intends to introduce, or has introduced, at trial. 4  What should the witness admit? What the witness should admit can be gauged by common sense, logic, probabilities and by what your other witnesses will say. Trying to elicit this kind of evidence is obviously fraught with danger, but warrants consideration. If the witness refuses to admit facts which, after careful consideration, you feel he or she should admit, then there is a good chance that the jury also will not accept the evidence. Example 6.10 In a motor vehicle collision case, you can probably get the driver of a car involved in the collision to admit that she was not anticipating an accident, and was not driving differently than she normally did, when the accident occurred. If the witness disagrees and claims that she was particularly careful that day,  she likely will not be believed.

Example 6.11 In a criminal case, the victim was robbed at gunpoint. You can probably get the victim to admit that he was frightened, afraid that he was going to be shot, and was staring at the gun pointed at him. If he refuses to concede these points in defiance of common sense and logic, the jury probably will not believe that part  of his evidence. 222

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6.6  DISCREDITING UNFAVOURABLE TESTIMONY The fundamental purpose of a discrediting cross-​examination, regardless of the witness being cross-​examined, is to demonstrate or suggest that the witness’s evidence is less credible than it appeared to be after the examination-​ in-​chief. This is sometimes referred to as “increasing the improbabilities”. Whether your goal is to obtain unlikely explanations, retractions, contradictions or inconsistencies, the effect is the same. The emphasis in a discrediting cross-​examination is not on destroying the witness. This is achieved with ritualistic predictability in television dramas, but rarely occurs in an actual trial. Rarely will you cross-​examine a perjurer and be successful in demonstrating that he or she has totally fabricated his or her evidence. Most witnesses are basically honest and, much like any person telling a story, inject their own attitudes, perceptions and selective recall into their narrative. It is this colouring, usually unintentional and often subconscious, that can be developed and exposed in cross-​examination. There are two basic methods a cross-​examiner can use to increase the improbabilities: discredit the witness’s evidence and discredit the witness’s conduct. 1  Discrediting the witness’s evidence The most common type of cross-​examination, particularly in cases involving testimony about an occurrence, is one that challenges the reliability of the evidence. Most witnesses are honest, attempt to be objective and attempt to present an accurate narrative of the event. Often, however, they see only parts of an event, and fill in the gaps with what they perceive to be the logical conclusions to be drawn from their observations. After a while the distinction between the filled-​in facts and their actual observations becomes blurred, and, at the trial, they may honestly believe that they observed the filled-​in facts. Consequently, the jury will reject and resent a direct assault on the witness’s integrity. The better approach is to accept that the witness is attempting to be truthful and establish that certain factors, identified in cross-​examination, affect the witness’s evidence and undermine its impact. This goal can be achieved by discrediting the witness’s perception, memory or ability to communicate.

a Perception It is common for a witness’s evidence to be challenged on the basis of his or her ability and opportunity to observe the event. This challenge may be accomplished by showing that the event happened quickly and unexpectedly, and that the witness was frightened or surprised. When this is done effectively, the jury will realise that the circumstances under which the witness made the observations were not conducive to accuracy. 223

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Example 6.12 In examination-​in-​chief, the witness testified that she was driving down a street when she saw a collision between two cars. The cross-​examination will establish that the collision happened quickly and unexpectedly, and that the witness was too far away to observe accurately what really happened. Q. Ms Ayres, Charles Street runs in a north-​south direction, doesn’t it? A. Yes. Q. Canning Street runs in an east-​west direction, correct? A. Yes. Q. The accident was at the intersection of Charles Street and Canning Street? A. Yes. Q. You were driving on Canning Street towards the intersection when the accident happened? A. Yes. Q. You were about 100 m from the corner when the accident happened? A. Yes, that would be about right. Q. You weren’t expecting an accident that day, were you? A. No. Q. Just before the accident, you were driving the way you normally drive, weren’t you? A. Yes. Q. You had a passenger in the car? A. Yes. Q. You were talking with him while you were driving, weren’t you? A. Yes. Q. Both Charles Street and Canning Street have buildings on both sides, don’t they? A. Yes. Q. So the only traffic you could see on Charles Street was right at the intersection? A. That’s right. Q. One of the cars involved in the accident was on Charles Street? A. That’s right. Q. The other car was on Canning Street? A. Yes. Q. You could not see the two cars involved in the accident until they had both entered the intersection, could you? A. That’s right. Q. It was the morning rush hour, wasn’t it? A. Yes. Q. So there was a great deal of traffic on Canning Street and Charles Street that morning, wasn’t there? A. Yes. Q. You were watching that other traffic as you were driving? A. Of course. Q. Canning Street is a two-​way street, isn’t it? A. Yes.

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Q. There were cars in your lane? A. Yes. Q. There were cars in the opposite lane? A. Yes. Q. When the accident happened, there were cars in front of you? A. Yes. Q. So you did not have an unobstructed view of the intersection?  A. Not totally unobstructed.

Counsel has demonstrated that the witness was relatively far away from the scene of the accident, that she could not see the cars involved until they had entered the intersection and that traffic was likely blocking her view at the critical moment. In short, her observations are not as reliable as they first appeared to be. Example 6.13 A robbery victim has testified that he was robbed at knifepoint in an alley, and has identified the defendant as the robber. The cross-​examination will show that the robbery happened suddenly and unexpectedly; the lighting was poor; the light was behind the robber; and, the witness was focusing on the knife, not the robber’s face. Q. Mr Bahari, the robbery happened at 11.00 pm? A. Yes. Q. It was dark? A. Yes. Q. The robber pushed you from behind into the alley? A. Yes. Q. You were in the alley before you got a look at the robber? A. Yes. Q. There was no streetlight in the alley? A. No. Q. The only light in the alley came from the street? A. Yes. [Note: Before asking this question, you would have visited the scene at night to confirm this point.] Q. The robber was facing into the alley? A. Yes. Q. You were facing towards the street? A. Yes. Q. You noticed that he had a knife in his hand? A. Yes. Q. Describe the knife? A. It had a shiny blade, about 20 centimetres long, and a wooden handle. Q. You were worried that the robber might stab you? A. Yes. 225

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Q. So you kept your eye on the knife? A. I suppose so. Q. The robber then said, “give me your wallet”? A. Yes. Q. And you gave it to him? A. Yes. Q. He then turned and ran out of the alley? A. Yes. Q. From the time he said, “give me your wallet”, to the time he turned to run out of the alley, no more than 10 seconds had passed, correct? A. I’m not sure of the exact time, it all happened pretty fast. Q. During that time he always had the knife where you could see it? A. Yes.  

In this cross-​examination the major point is made by indirection. It highlights the fact that, in the few seconds it took to complete the robbery, the witness was focusing on the knife rather than on the robber’s face. Further, it highlights the fact that the robber’s face was not in the light. This will cast doubt on the accuracy of the witness’s identification. Finally, the use of the non-​leading question, “Describe the knife”, highlights the fact that the use of leading questions in cross-​examination is a guideline only. No “rule” of cross-​examination is “etched in stone”, never to be violated. In this case having the witness describe the knife emphasises to the jury that the witness’s attention was focused on the knife. If you are unsure of the witness’s answer, leading questions should be asked. For example: “The knife had a shiny blade, correct?”; “The blade was about 20 centimetres long?”; and “It also had a wooden handle?”.

b Memory A witness’s ability to remember the details of an event, and his or her efforts to record or otherwise preserve these details, are important considerations in the cross-​examination of that witness. The substantial amount of time that will usually elapse between the occurrence of the event and the trial can taint even the most accurate and well-​recorded observations. Details may have been forgotten or not recorded, and similar events may have intervened. Example 6.14 The plaintiff’s administrative assistant has given evidence that he mailed a letter to the defendant that contained an acceptance of an offer the defendant had previously made to the plaintiff. The cross-​examination will establish that, given the volume of letters the administrative assistant types and processes, he cannot possibly remember how this particular letter was handled. Q. Mr Matthews, you’ve been Ms Price’s administrative assistant for over five years now, haven’t you? A. Yes. 226

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Q. The events you described in your evidence-​in-​chief happened over three years ago, didn’t they? A. Yes. Q. Approximately how many letters do you type during the average working day? A. It varies of course, but on average it would be about five a day. Q. So you would type approximately 25 letters a week? A. Approximately. Q. That would be about 100 letters each month? A. Yes. Q. Over 1,000 each year? A. Yes. Q. You have probably typed over 5,000 letters for Ms Price since you started working for her? A. Probably. Q. Mr Matthews, now and then Ms Price will make changes to a letter that you have given her to sign? A. Yes. Q. When that happens you make the correction and prepare a new letter for her to sign, correct? A. Yes. Q. How often does this happen? A. Perhaps one or twice a week. Q. Now and then Ms Price will decide not to post a letter that you have typed, isn’t that right? A. Occasionally. Q. How often does this happen? A. Maybe a couple of times a month. Q. Occasionally, Ms Price will keep a letter on her desk that you’ve typed, won’t she? A. Yes. Q. When that happens you have to remind her to post it, don’t you? A. Yes. Q. Mr Matthews, you cannot remember today which letters you have prepared a new draft of in the past three years? A. No, I cannot. Q. Or which letters Ms Price decided not to mail? A. No, I cannot. Q. Or which letters you had to remind her to put in the post? A. No, I cannot. Q. It is simply a case of too many years and too many letters, isn’t that right? A. Yes.  

c Communication A witness’s observations are only as good as his or her ability to describe the event logically and accurately to the jury. A method of discrediting 227

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evidence is to examine the witness’s ability to recreate the event verbally. A common cross-​examination technique is to test the witness’s ability to describe details and directions, and to estimate distances and time. Example 6.15 The witness has given evidence of the details of a collision and the times and distances involved. The cross-​examination will demonstrate that the estimates of speed, time and distance are inaccurate and unreliable. Q. Mr Hamilton, you were sitting on the verandah of your house when the accident happened? A. Yes. Q. From your verandah you could see both cars involved in the accident? A. Yes. Q. The collision occurred in front of your house, didn’t it? A. Yes. Q. The defendant was pulling out of her driveway across the street from where you were sitting? A. Yes. Q. You said in evidence-​ in-​ chief that the length of the defendant’s driveway is approximately 30 m? A. Yes, it’s a long driveway. Q. Your evidence was that the plaintiff’s car was coming down the street at a speed of 60 km per hour? A. Correct. Q. You also stated that the plaintiff’s car was approximately 150 m away when you first noticed it? A. Yes. Q. Mr Hamilton, could you estimate the distance between the witness box and the doors at the back of the courtroom. A. Well, that’s about 7 m. Q. Your Honour, may the record show that the actual distance between the witness box and the doors at the back of the courtroom is 12 m.  Court: It may –​we’ve measured that before.

When a witness makes significantly inaccurate estimates of distances and times, it undermines the credibility of all of his or her observations. The cross-​examination has, partly by indirection, manufactured ammunition that can be used in closing argument to demonstrate that the witness, on the basis of his inability to estimate distances and times accurately, is an unreliable source of information. This approach should be used only when you have a realistic possibility of success. If you fail and elicit accurate estimates, you have given the witness the opportunity to retell his or her story. You also have enhanced the witness’s credibility tenfold. Generally, this method is most successful with children or people who do not deal with technical information on a daily basis. 228

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2  Discrediting the witness’s conduct In some cases the witness’s evidence will not be consistent with his or her conduct at the time of the event. Relying on the old adage, “actions speak louder than words”, the cross-​examination should emphasise the inconsistency. The inconsistent conduct will usually nullify the evidence. Example 6.16 The accused in a criminal case is charged with sexually assaulting the complainant. On examination-​in-​chief, he denied the charge, claiming that the complainant consented. The cross-​examination will demonstrate that the defendant’s actions following the attack were inconsistent with innocence. Q. Mr Smith, on 7 February 2018, you were working at Acme Pty Ltd, correct? A. Yes. Q. That date was a Wednesday, wasn’t it? A. Yes. Q. You were living at 9/​22 Britannia Avenue, Broadbeach? A. Yes. Q. You were with Ms Chin until approximately 11.00 pm on the evening of 7 February 2018? A. Yes. Q. You then left? A. Yes. Q. You did not go back to your unit that night, did you? A. No. Q. You did not go to work the next day, did you? A. No. Q. You were not sick, were you? A. No. Q. You did not go home either, did you? A. No. Q. You did not tell anyone at work where you were, did you? A. No. Q. You did not tell any of your friends or family where you were, did you? A. No. Q. In fact you were staying at a friend’s house? A. Yes. Q. You stayed there for three days? A. Yes. Q. During those three days you did not go to work? A. That’s correct. Q. You did not go back to your unit? A. No, I did not. Q. The only person who saw you at your friend’s house was your friend? A. Yes.  

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6.7  DISCREDITING THE WITNESS Impugning the credit of a witness is the most dramatic trial technique in the advocate’s arsenal. Used selectively and effectively, it can be devastating. Jurors appreciate effective impeachment of a witness, and enjoy seeing the witness “get caught out” changing his or her story. But jurors also enjoy seeing the witness triumph over counsel. If the technique is overused, or used ineffectively, it can seriously damage your case. The underlying reason for attempting to discredit a witness is simple: you want to show the jury that the witness cannot and should not be believed. You can achieve this by showing that the witness is untrustworthy. Five of the most common techniques used to discredit a witness are as follows: 1

bias, prejudice, interest and motive;

2

prior convictions;

3

prior inconsistent statements;

4

contradictory facts; or

5

in the case of expert witnesses, contradictory authorities, such as technical texts or treatises.

The first four techniques are discussed in detail below. The fifth is discussed in Section 6.9. There are some general rules that apply, however, no matter which technique you choose to employ. 1  Rules for discrediting a witness While the procedure for discrediting the other side’s witness is governed by statute, case law, local custom and rules of persuasion, certain procedural requirements have developed to ensure that the impeachment of a witness is both fair and efficient.

a Good faith If you are attacking the witness on the basis that your party’s version of the facts is true and that the witness’s version, consequently, is false, the professional conduct rules stipulate that you must have sufficient evidence to support what you allege should the trial judge call upon you to do so.7 If you cannot establish that your allegation has been made in good faith, you should not raise the matter with the witness. This requirement protects the witness from an attack predicated on unverifiable facts.

b  Matter must be raised on cross-​examination If you intend to lead evidence specifically for the purpose of contradicting the witness or to suggest that the witness’s evidence can be otherwise 7

230

Generally, see G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [17.220].

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explained, the matters in dispute must be put to the witness in cross-​ examination to give the witness an opportunity to comment on the contradictory version. This is the rule in Browne v Dunn,8 which was discussed in detail in Section 6.4.

c  Collateral versus primary issues Where the issue to which a question relates is collateral, the cross-​examiner is bound, as a general rule, by the answer given by the witness. The meaning of “primary” and “collateral” has been the subject of extensive judicial and academic comment.9 Generally, at common law if the questions relate to collateral matters relevant only to the credibility of a witness (credit), rather than to facts in issue in the case, the cross-​examiner will be bound by the witness’s answers. This means that the cross-​examiner cannot lead evidence specifically for the purpose of contradicting the witness. If the issue is primary, the cross-​examiner generally will be allowed to lead rebuttal evidence. The exceptions to this general rule are discussed below. The position under the uniform Evidence Act also is discussed below. 2  Bias, interest and motive If you suggest to a witness that his or her evidence is affected by bias, conflict of interest or an improper motive, and the witness denies your allegations, you can adduce extrinsic evidence to rebut the denial.10 Your cross-​ examination should gradually suggest the witness’s partiality through a subtle, step-​by-​step progression, then stop. If you zealously attack the witness, you run the risk of offending the jury. Instead, use your questions to suggest the witness’s partiality and let the jury reach the proper conclusion on its own.

a  Bias and prejudice Bias and prejudice are particular tendencies or inclinations that prevent a person from being impartial. A person can be biased in favour of, or prejudiced against, some person or position. For example, a family, personal or employment relationship may render a witness incapable of being impartial and objective.

  8   9

10

(1893) 6 R 67. For a discussion of the collateral issue rule, see Palmer v The Queen (1998) 193 CLR 1 at 23 (per McHugh J). Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17580]-​[17595]. For example, see s 106 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17595]. 231

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Example 6.17 The defendant in a criminal case has an alibi provided by the defendant’s mother, who has given evidence-​in-​chief that the accused was at home when the crime was committed. The cross-​examination will develop the mother’s obvious bias in favour of her son. Q. Ms James, your son was living with you on the date this robbery was committed, wasn’t he? A. Yes. Q. He is still living with you, isn’t he? A. Yes. Q. You see him just about every day? A. Yes. Q. You talk to him just about every day? A. Yes. Q. He talks to you when he has problems, doesn’t he? A. Yes. Q. Ms James, you’ve talked to your son about this case many times, haven’t you? A. Yes. Q. In fact, you talk to him about this case almost every day, don’t you? A. Yes. Q. You were not subpoenaed to come to court today, were you? A. No. Q. Your son asked you to come, didn’t he? A. Yes.  

Note that the cross-​examination was fairly gentle. In a situation like this, the jury will sympathise with the poor mother whose son obviously put her up to giving evidence favourable to him. In cross-​examinations of this type, being gentle and brief is the safest course of action. Demonstrating bias is often an effective technique when cross-​examining an expert witness. Often, the expert will be a “professional witness” who regularly gives evidence for one side and, therefore, has an obvious institutional bias and interest. Demonstrating that the witness regularly gives evidence for the plaintiff or the defendant often will diminish the impact of the witness’s evidence. Remember, however, that a good professional witness will anticipate this line of attack and will have plausible responses prepared.

b Interest Interest refers to the possible benefit, or detriment, the witness may derive or suffer from the outcome of a particular case. Often, though not always, the witness’s interest is financial. Demonstrating that a witness is motivated by greed has a powerful adverse effect on the witness’s credibility.

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Example 6.18 The heirs-​at-​law, who were excluded under the terms of the will, are attempting to have the will set aside on the basis that the testator lacked testamentary capacity at the time the will was executed. The witness is an heir who would share in the proceeds of the estate should the will be set aside. Q. Ms Duncan, you are one of the three surviving children of the late Farquar Duncan? A. Yes. Q. You know that your father had substantial property and other assets? A. Yes. Q. When you learned that his estate was valued at over $10 million that did not surprise you, did it? A. No. Q. What did surprise you is that he left the whole estate to three different charities, correct? A. Yes. Q. You know that the three charities stand to receive all of your father’s $10 million? A. Yes. Q. You know that if the will is set aside, you will receive one-​third of the estate, which is approximately $3.3 million? A. Yes. Q. You also know that if the will is upheld, you will not receive anything? A. Yes.  

c Motive Motive is the urge that prompts a person to think and act in a certain way. Common motives are greed, love, hate and revenge. Each, in the right circumstances, can be a compelling emotion. If such a motive can be suggested effectively, like bias and interest, it taints a witness’s credibility, regardless of the plausibility of that witness’s evidence. Example 6.19 The defendant in a criminal case has been charged with forging endorsements on stolen cheques and then cashing them. The prosecution’s theory of the case, as highlighted in the cross-​examination, is that the defendant’s financial plight was the motive for the commission of the offence. Q. Mr Alhabsyi, over the past two years you have invested in the stock market? A. Yes. Q. During that time you bought over $100,000.00 worth of commodities stock? A. Yes. Q. Commodities stock is a high-​risk investment, isn’t it? A. Yes. Q. You were speculating on the commodities market, weren’t you? A. I suppose so.

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Q. You bought the $100,000.00 worth of commodities stock on a 10 per cent margin, correct? A. Yes. Q. This means that you only had to put up 10 per cent, or $10,000.00, of your own money, to buy $100,000.00 worth of stock, correct? A. Yes. Q. If the market value of the stock dropped by 10 per cent, you would lose your entire investment unless you put up more money? A. Yes. Q. That’s what is known as a margin call, isn’t it? A. Yes. Q. On 27 April 2017, you got a margin call from your brokerage firm, didn’t you? A. Yes. Q. On 28 April, the day after the margin call, you deposited these cheques in your savings account, didn’t you? A. Yes. Q. The same day you used that money to meet the margin call, didn’t you. A. Yes.  

3  Prior convictions A witness may be cross-​examined on his or her prior convictions if such cross-​examination has a bearing on the credit of the witness. If the witness denies the prior convictions, they may be proved with extrinsic evidence.11 Note, however, that special statutory provisions apply to the defendant in a criminal case.12 The special provisions should be reviewed before you begin your cross-​examination of a criminal defendant. At common law, cross-​ examination on prior convictions relevant to credit will be allowed unless the convictions are of no material weight.13 Pursuant to the Evidence Act 1977 (Qld), the trial judge has the power to disallow a question, “if the court considers an admission of the question’s truth would not materially impair confidence in the reliability of the witness’s evidence”.14 Under the uniform Evidence Acts, s 103, such evidence may be admitted if it “could substantially affect the assessment of the credibility of

11 12

13 14 234

J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [19020]-​[19025]. See s 104 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also Evidence Act 1977 (Qld), s 15; Evidence Act 1929 (SA), s 18(1)(d); Evidence Act 1906 (WA), s 8(1)(e). R v Aldridge (1990) 20 NSWLR 737 at 742. Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [19025]. Evidence Act 1977 (Qld), s 20.

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the witness”.15 When deciding whether the evidence “could substantially affect the credibility of the witness”, the court is to have regard to:

(a)

whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b)

the period that has elapsed since the acts or events to which the evidence relates were done or occurred.16

4  Prior inconsistent statements Raising prior inconsistent statements is the most frequently used method of impeachment. A prior inconsistent statement means a representation, made otherwise than in the course of giving evidence, that is inconsistent with evidence given by the witness at trial. It can be oral, written or inferred from conduct, and can arise in virtually any forum. The admissibility of prior inconsistent statements is governed by statute in all Australian jurisdictions.17 An effective cross-​examination on a prior inconsistent statement requires a thorough knowledge of the relevant statutory provisions.

a Techniques When you challenge the evidence of a witness using a prior inconsistent statement, your cross-​examination should be both structured and simple. Three steps are involved: 1

re-​commit the witness to their evidence-​in-​chief;

2

build-​up the importance of the inconsistent statement; and

3

contrast the inconsistent statement with the witness’s evidence​in-​chief.

First, re-​commit the witness to the fact asserted in evidence-​in-​chief that you intend to challenge on cross-​examination. Try to do this in a way that will not make the witness suspicious. Use the answer the witness gave in examination-​in-​chief when formulating your question. Do not paraphrase the answer: repeat it word for word. The witness is more likely to

15

16

17

Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See s 103(2) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See s 43 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also Evidence Act 1977 (Qld), ss 18, 19; Evidence Act 1929 (SA), ss 28, 29; Evidence Act 1906 (WA), ss 21, 22. 235

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agree with the verbatim answer he or she gave than with a paraphrased version. Secondly, build-​up the importance of the inconsistent statement. The witness’s attention should be directed to the date, time and place where the inconsistent statement was made, and the circumstances surrounding the making of the statement. While not a statutory requirement, if the prior inconsistent statement is written, it is often effective to show the inconsistent statement to the witness and have him or her admit to having made or signed it. Building up the inconsistent statement also involves establishing that the statement was fresh in the witness’s memory when it was made. Thirdly, contrast the prior inconsistent statement with the evidence given by the witness in examination-​in-​chief. Read the statement to the witness and have him or her admit to making it. Use the actual words of the impeaching statement. If the prior inconsistent statement is part of a lengthy document, such as an affidavit, tell the judge, the witness and counsel for the other side the page or paragraph number from which you are reading. You also can have the witness read the prior inconsistent statement; however, this is usually not as effective. The witness will not be as forceful in reading the statement, and you may lose control of the witness. Example 6.20 Oral statement Q. Ms White, you stated in your evidence-​in-​chief that you were 15 m away when the accident happened? A. That’s right. Q. There’s no doubt in your mind about that? A. No. Q. You talked to a police officer at the scene immediately after the accident, didn’t you? A. Yes. Q. When you talked to him, you had just witnessed the accident? A. Yes. Q. So obviously the details of the accident were fresh in your mind? A. Obviously. Q. You knew that the police officer was investigating the accident? A. Yes. Q. And you knew that it was important to tell her the facts as accurately as possible? A. Yes. Q. Ms White, immediately after the accident you told the police officer that you were over 50 m away when the accident happened, didn’t you? A. Yes.  

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Example 6.21 Written statement not shown to the witness Q. Ms White, you stated in your evidence-​in-​chief that you were 15 m away when the accident happened? A. That’s right. Q. There’s no doubt in your mind about that? A. No. Q. You gave a statement to the police immediately after the accident, didn’t you? A. Yes. Q. So obviously the details of the accident were fresh in your mind? A. Obviously. Q. You knew that the police were investigating the accident? A. Yes. Q. And you knew that it was important to tell the police the facts as accurately as possible? A. Yes. Q. After your statement was typed up you read it over, didn’t you? A. Yes. Q. The reason you read it over was to ensure that the information contained in the statement was correct? A. Yes. Q. After reading over the statement you signed it, didn’t you? A. Yes. Q. Ms White, in that statement you said, “I was over 50 m away when the accident happened”? A. Yes.  

Example 6.22 Written statement shown to the witness Q. Ms White, you stated in your evidence-​in-​chief that you were 15 m away when the accident happened? A. That’s right. Q. There’s no doubt in your mind about that? A. No. Q. You gave a statement to the police immediately after the accident, didn’t you? A. Yes. Q. So obviously the details of the accident were fresh in your mind? A. Obviously. Q. You knew that the police were investigating the accident? A. Yes. Q. And you knew that it was important to tell the police the facts as accurately as possible? A. Yes.

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Q. After your statement was typed up you read it over, didn’t you? A. Yes. Q. The reason you read it over was to ensure that the information contained in the statement was correct? A. Yes. Q. After reading over the statement you signed it, didn’t you? A. Yes. Q. Ms White, the court officer is showing you a document. [Court officer hands the document to the witness] That is your statement to police? A. Yes. Q. That is your signature at the bottom of the statement? A. Yes. Q. Ms White, in the second line of the third paragraph you state, “I was over 50 m away when the accident happened”? A. Yes.  

In these examples the basic technique –​re-​commit, build-​up and contrast –​ has been executed cleanly and simply. A simple, yet important, fact was singled out for contradiction. The witness was re-​committed to that fact, which was then built-​up and contrasted with the prior inconsistent statement. In the above examples the witness admitted the prior inconsistent statement and nothing else needs to be done. In your closing argument, you can argue that the witness’s inconsistent statements impugn his or her credibility. If the witness denies making the prior inconsistent statement, or gives an equivocal answer such as “I don’t know” or “I don’t recall”, you may have to call rebuttal evidence to complete the impeachment. This would be done only when the statement is non-​collateral, and important to your case. When discrediting a witness with a prior inconsistent statement, simplicity is essential but often difficult to achieve. Three problems frequently arise. 1

You cannot effectively impeach long statements, paragraphs or even lengthy sentences. Reduce the evidence to a critical fact or essential words that can be contrasted effectively with the prior inconsistent statement.

2

You cannot effectively impeach several facts at one time. To make the inconsistencies clear and understandable, contradict and contrast each fact separately. If the court gives leave, consider using a whiteboard or butcher’s paper during your cross-​examination. Create two columns, labelled “Today” and “At Scene” (or similar labels depending on when the witness made the statements). As you re-​commit the witness to his or her evidence-​in-​chief and contrast this statement with the prior inconsistent statement, put the keywords on the board or paper.

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Example 6.23 Today

At Scene

1. “15 m away”

“Over 50 m away”

2. “at corner 30 minutes”

“arrived moments before”

3.   “clear view of accident”

“saw crash after it happened”

This chart is not evidence and, therefore, should not be tendered as an exhibit. It is simply a demonstrative aid used to highlight visually the witness’s oral evidence. 3

You cannot impeach effectively unless you commit the witness to facts that are clearly inconsistent with the prior statement. If the inconsistency is not obvious, you must first ensure that the fact asserted on examination-​ in-​ chief is inconsistent with the prior statement.

Example 6.24 On examination-​in-​chief the witness stated that “the northbound car ran the red light”. In an oral statement to an investigator, she said that the “plaintiff ran the red light”. Q. Ms Linderman, you stated that the northbound car ran the red light? A. Yes. Q. The northbound car was driven by Mr Jones? A. Yes. Q. Mr Jones is the defendant here? A. Yes. Q. So you are saying that the defendant ran the red light? A. Yes. [You can now proceed to build-​up and contrast this statement with the prior  inconsistent statement made to the investigating officer.]

The three-​step approach –​re-​commit, build-​up, contrast –​can be varied to highlight more dramatically the contrast between the witness’s evidence at trial and the witness’s prior inconsistent statement. It is sometimes more effective first to build-​up the prior inconsistent statement, then re-​commit and contrast. This generally works with inexperienced lay witnesses, but not with experienced witnesses such as police officers. Experienced witnesses quickly realise that you are about to discredit part of their evidence-​in-​chief.

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Example 6.25 Q. Ms White, immediately after the accident you talked to a police officer, didn’t you? A. Yes. Q. The accident was fresh in your mind when you spoke to the police officer? A. Yes. Q. You knew that the police officer was investigating the accident, didn’t you? A. Of course. Q. You knew that it was important to tell the police officer the facts as accurately as possible? A. Yes. Q. Ms White, you stated in your evidence-​in-​chief that you were 15 m away from the accident when it happened? A. Yes. Q. There is no doubt in your mind about that, is there? A. No. Q. Ms White, immediately after the accident you told the police officer that you were over 50 m away from the accident when it happened? A. Yes.  

The above examples have assumed that your objective is to impugn the witness’s credibility by forcefully exposing the inconsistent evidence. If your objective is simply to illustrate that the witness has made an innocent mistake and may freely change his or her evidence, it is often more effective not to re-​commit the witness to his or her evidence-​in-​chief. Instead, simply put the prior inconsistent statement to the witness and have him or her agree that it is true and accurate. The three-​step process –​re-​commit, build-​up, contrast –​is essentially the same for the four types of prior inconsistent statements you are likely to encounter at trial, namely oral statements, written statements, prior evidence and omissions. Using prior oral statements and written statements to impugn a witness’s credibility has already been canvassed. Prior evidence and omissions remain to be addressed.

b  Prior evidence Prior evidence includes any evidence given under oath by the witness before the commencement of the trial. Affidavits, depositions and oral evidence given at inquests and earlier trials are all prior evidence. The impeachment value of prior evidence given under oath and, therefore, subject to the penalties for perjury, is high. It is therefore essential that you effectively build-​ up the prior evidence.

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Example 6.26 In evidence-​in-​chief the witness stated that she observed the cars involved in a collision before the accident occurred. At a coroner’s inquest held to determine the cause of the accident, the witness gave evidence that she saw the cars only after hearing the crash. Q. Ms Zahazi, you stated in your evidence-​in-​chief that you saw the two cars before they collided, is that right? A. Yes, that’s right. Q. You are certain that you saw them before the collision? A. Yes. Q. You gave evidence at the coroner’s inquest into this accident held on 28 February 2018 at the Magistrates’ Court in Southport? A. Yes. Q. That inquest was held one month after the accident happened? A. Yes. Q. So the evidence you gave at the inquest was fresh in your mind, wasn’t it? A. Yes. Q. You were examined by me at the inquest? A. Yes. Q. You were aware that my questions to you, and your answers, were being recorded by the court reporter? A. Yes. Q. Before you were examined by me you took an oath to tell the truth, didn’t you? A. Yes. Q. It was the same oath you took today? A. Yes. Q. You told the truth at the coroner’s inquest? A. Of course. Q. Ms Zahazi, at the coroner’s inquest I asked you the following questions and you gave the following answers. Page 10 of the transcript. Q. What is the first thing that drew your attention to the collision? A. Well, I guess it was when I heard a loud crash. Q. What did you do then? A. I looked over and saw that two cars had just collided. Q. Was that the first time you actually saw the cars? A. Yes. Q. Ms Zahazi you were asked those questions and you gave those answers? A. Yes. Q. I also asked you the following question and you gave the following answer. Page 33 of the transcript: Q. Did you see the cars before the collision? A. No, I didn’t really notice them. Q. You were asked that question and you gave that answer? A. Yes.  

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Prior evidence, like any other written statement, falls within the purview of the statutory provisions dealing with prior inconsistent statements discussed in Section 6.7.4. It is not necessary, therefore, to show the transcript to the witness, although for tactical reasons you may choose to do so. To reiterate, when challenging the witness read the questions and answers from the transcript verbatim. Do not paraphrase or summarise the prior evidence. Also, you should read the relevant passage from the transcript to the witness. Do not have the witness read the passage. This ensures that you maintain control of the pace and the emphasis. You also must ensure that the contradiction between the prior evidence and the evidence-​in-​chief is both direct and material. Attempting to contradict the witness on non-​ material, irrelevant points will only annoy the jury and damage your credibility. Finally, make sure that the prior evidence is not taken out of context. The other side, quite properly, will object and ask the judge to direct that you put the earlier statement to the witness in its entirety.

c Omissions Impeachment by omission is a common trial technique used when a witness fails to include an important point in his or her written report. To have an impact, the witness must be someone who is trained to fill out reports and records, and has control over their contents. Police officers and other investigators commonly fall into this category. If a witness includes an important fact in his or her evidence-​in-​chief which is not in the report, an obvious question arises: If the fact was so significant, why was it not included in the report? The process used to highlight the inconsistency is the same as that for written statements, the only difference being that the prior inconsistent statement is non-​existent. Your objective is to establish the inference that the fact averted to in the witness’s evidence-​in-​chief did not occur. The build-​ up is critical. You must: 1

establish that the witness knows how to prepare an accurate and complete report which sets out all of the important facts; and

2

force the witness to concede that the fact omitted is important and should have been included. Example 6.27 A police officer has testified that he spoke to an eyewitness at the scene who stated, “The man had long blonde hair pulled back in a ponytail”. The statement is not in his written report. Q. Constable Kim, you stated in your evidence-​in-​chief that when you talked to the eyewitness, Ms Lindsay, she said: “The man had long blonde hair pulled back in a ponytail”. That was your evidence? A. Yes.

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Q. You are certain that is what she said? A. Yes. Q. Constable Kim, when you took your police training, you were taught how to prepare complete and accurate written reports? A. Yes. Q. You were taught to include all important details? A. Yes. Q. An eyewitness’s description of a perpetrator is an important detail, isn’t it? A. Yes. Q. Constable Kim, the court officer is handing you a copy of the report of this incident you prepared. That is your report dated 26 May 2017? A. Yes. Q. 26 May was the date the robbery occurred? A. Yes. Q. You talked to Ms Lindsay at the scene of the robbery? A. Yes. Q. You then wrote up your report the same day? A. Yes. Q. After you wrote up your report, you read it over to make sure it was complete and accurate? A. Yes. Q. You then signed it? A. Yes. Q. The purpose of the report is to make sure you have an accurate record of your investigation? A. Yes. Q. You also use such a report to refresh your memory before giving evidence about the robbery? A. Yes. Q. You read your report over before giving evidence today, didn’t you? A. Yes. Q. Constable Kim, nowhere in the report you prepared do you state that Ms Lindsay said, “The man had long blonde hair pulled back in a ponytail”.  A. That’s not in the report.

An alternative approach is to have the witness look over the report and attempt to find the omitted information. Another is to give the witness a pen and ask him or her to circle the omitted information. The witness’s obvious inability to find the information exposes the omission. Example 6.28 After completing the build-​up, counsel concludes: Q. Constable Kim, please show me where in your report it states that Ms Lindsay said, “The man had long blonde hair pulled back in a ponytail”.  A. [After looking at the report] I see that I omitted to include that detail.

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Example 6.29 Q. Constable Kim, please take this red pen and circle in your report where it states, “The man had long blonde hair pulled back in a ponytail”. [Counsel hands a red pen to the court officer who then hands it to the witness.]  A. I can’t. It’s not in my report.

5  Evidence of bad character When character evidence can be raised in civil and criminal trials is discussed in Chapter 4, Section 4.11. Generally, in a criminal case, if the character of a witness (other than the defendant) is relevant to a fact in issue, questions designed to show that the witness is a person of bad character can be asked in cross-​examination. The evidence of bad character may be admissible if there is a “logical nexus between it and an issue in the case”.18 In civil cases, it has been noted that, the exclusionary rules of the law of evidence play a very limited role in modern civil law, and it is certain that there are many more examples [in addition to defamation] of the character of a party being adduced without the slightest advertence to this branch of the law.19

These general propositions have been modified in jurisdictions governed by the uniform Evidence Act. Pursuant to s 97 of the Act, which applies to both civil and criminal cases, if evidence of bad character is being led to prove that the witness has or had a tendency, because of his or her bad character, to act in a particular way or have a particular state of mind, such evidence will be admissible only if the court thinks that it has significant probative value.20 In a criminal case, tendency evidence adduced by the prosecution “cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”.21 In a criminal case, these rules do not apply if the defendant adduces evidence to prove that he or she, either generally or in a particular respect,

18 19 20

21

244

J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [19065]. J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [19165]. See Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). Also note the court’s general discretion in s 135 of the uniform Evidence Acts to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, be misleading or confusing, or cause or result in undue waste of time. See s 101(2) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic) (emphasis added).

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is a person of good character. In such a case, evidence may be adduced to prove (directly or by implication) that the defendant is not generally, or in a particular respect, a person of good character.22

6.8  SPECIAL PROBLEMS Witnesses frequently employ a variety of tactics to defeat or frustrate the purpose of the cross-​examination. Some of these tactics, and the techniques used to deal with them, are discussed below. 1  Evasive witnesses Often a witness whose evidence was clear and concise in examination-​in-​ chief becomes evasive the moment you start your cross-​examination. The method used to evade your questions can take many forms. The witness’s tone and demeanour may change. He or she may constantly repeat your question or ask that you repeat it. The witness may be slow to answer your question or may respond with “I don’t know”, “I don’t remember”, “I can’t recall”, “I’m not sure”, “I might”, “I could” or may even avoid answering the question altogether. Such evasiveness makes a bad impression on the jury and may taint other parts of the other side’s case. Therefore, it is often futile to attempt to squeeze a more favourable answer out of the witness. You should carry on in the same vein and extract as many “I don’t remember” responses as possible. Ask the witness if he or she has difficulty hearing or understanding your questions. Attempt to elicit evasive answers to the same questions the witness had no difficulty answering on examination-​in-​chief. The jury will quickly realise what the witness is doing and discount the witness’s evidence accordingly. 2  Argumentative witnesses Unlike the evasive witness, argumentative witnesses want to expound on everything. They want to answer your question with one of their own. They want to argue about everything. The key to dealing with such a witness is control. The primary tool used to maintain control is clear, concise, leading questions. While this applies to all cross-​examinations, the use of properly structured leading questions is essential when the witness is argumentative.

22

See s 110 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 245

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Avoid doing what many advocates commonly do –​interrupt the witness. When the witness begins an unresponsive answer, or attempts to argue or elaborate, resist the temptation to cut the witness off. Research suggests that jurors dislike advocates who constantly interrupt the witness. In the minds of the jurors, the advocate is trying to keep something from them. The better technique is to let the witness finish the answer, then to demonstrate to the witness and the jury that you will not allow the witness to get away with unresponsive answers. Example 6.30 Q. Mr Teran, you were standing on the corner of George Street and King Street, weren’t you? A. That’s when I saw the Ford Laser come charging through the red light and crash into the Toyota. Q. Mr Teran, that wasn’t my question. My question is, you were standing on the corner of George Street and King Street, weren’t you? A. Yes.  

Obviously, this technique will only work if you ask a question that does not call for a descriptive answer. Further, the earlier you bring the witness under control the better. If the witness continues to give answers that are outside the scope of the question, this will likely have a negative impact on the jury’s assessment of the witness’s credibility. You should also avoid another common practice –​asking the judge to direct the witness to answer the question, and to warn the jury that they are to disregard the witness’s unresponsive answer. Research indicates that jurors rarely heed the warning. In fact, it often has the opposite effect; it strengthens the jurors’ memory of the improper answer. It also highlights the fact that you are not able to control the witness. If the witness insists on giving unresponsive answers, the judge will often admonish the witness on his or her own initiative. Of course, in some circumstances, for example, where it is necessary to note an objection to the witness’s answer to preserve the record for appeal, it may be necessary to ask the judge to intervene. Another technique that can be used to establish and maintain control of the argumentative witness is the “contract”. Example 6.31 Q. Mr Teran, you were standing on the corner of George Street and King Street, weren’t you? A. That’s when I saw the Ford Laser come charging through the red light and crash into the Toyota. Q. Mr Teran, that wasn’t my question. My question is, you were standing on the corner of George Street and King Street, weren’t you? A. So I had a clear view of the Ford Laser when it went through the red light and crashed into the Toyota.

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Q. Mr Teran, I’ll make a deal with you. I will try to make my questions as simple and clear as possible, okay? A. Okay. Q. And if you do not understand my question, you tell me, all right? A. All right. Q. My question is this: You were standing on the corner of George Street and King Street, weren’t you? A. Yes.  

It would be unreasonable for a witness not to agree to such an arrangement. If, after having made such an agreement, the witness continues to be evasive or argumentative, the witness will make a bad impression on the jury. 3  Memorised or identical stories Sometimes a witness will give clues during examination-​in-​chief that his or her evidence is memorised, at least in critical parts. Child witnesses are particularly susceptible to this type of coaching. Alternatively, the witness’s evidence is similar in certain respects to another witness’s evidence so as to suggest that they collaborated and planned identical stories. For both types of evidence, clues include: • words and phrases that are not natural for the witness; • the confident recollection of details that would ordinarily not be remem-

bered, or the inexplicable omission of facts that would ordinarily be recalled; and • a deliberate, or otherwise unusual, delivery. When confronted with such a witness, the best approach is to violate one of the cardinal rules of cross-​examination –​do not allow the witness to repeat his or her evidence-​in-​chief. If the evidence has been memorised, or is identical to that of another witness, its recitation on cross-​examination will most likely mirror the witness’s examination-​in-​chief. The jury will usually pick up on the striking similarities between the two narrations, the peculiar recall of the witness, or the odd word choice, and discount the witness’s evidence. Exposure of the memorised or identical story should be followed up with questions designed to identify with whom the witness talked before giving evidence. This will often expose the origins of the memorisation or collaboration. 4 

Apparent cross-​examinations

You are not required to cross-​examine. If the case is being tried before a jury, however, the jurors may expect some type of cross-​examination of important witnesses. If you do not have a realistic expectation of eliciting favourable admissions, or discrediting the evidence of the witness, and

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have concluded that a failure to cross-​examine will hurt your case, you might consider conducting an “apparent” cross-​examination. This involves an examination on collateral points such as:   1

who asked the witness to give evidence;

  2

whether the witness was subpoenaed or not;

  3

who the witness has talked to about the case;

 4

whether the witness has discussed his or her evidence with a solicitor;

 5

whether the witness has attended any meetings where other witnesses have been present;

  6

whether the witness has read any material in order to prepare his or her evidence;

  7

whether the witness made any notes of the incident;

  8

whether the witness read any affidavits, answers to interrogatories or other earlier statements;

  9

whether the witness has any personal, business or financial interest in the case;

10

whether the witness knows any of the parties or other witnesses; and

11

whether the witness is being financially compensated for giving evidence.

None of these points constitutes a direct attack on the witness’s evidence. Nevertheless, by pursuing the appropriate point you may plant a seed of doubt in the jury’s mind so that the witness’s evidence will not be blindly accepted. Be aware, however, that you run the risk that the jury will see that your cross-​ examination lacks substance. Further, this technique should not be used in a judge alone trial, as the lack of substance will not be lost on the trial judge. Generally, the better approach in such situations is not to cross-​examine. Of course, this is not an option if you intend later to contradict the witness by calling further evidence or by suggesting that the witness’s evidence can be otherwise explained. In this situation, as discussed in Section 6.4, the rule in Browne v Dunn23 requires that you put your version of the facts to the witness in cross-​examination.

6.9  SPECIAL WITNESSES This chapter has emphasised the development of a methodology that will allow you to identify and achieve attainable objectives during cross-​ examination. If you follow this methodology, you should be able to cross-​ examine any witness competently, not simply witnesses to an event. Certain

23 248

(1894) 6 R 67.

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types of witnesses, however, do frequently appear at trial, and it is useful to analyse the specific cross-​examination techniques that can be used with them. 1  The expert witness The usual sequence –​obtaining favourable evidence, discrediting unfavourable evidence and impeachment –​applies to expert witnesses just as it does to others. The cross-​examination of an expert witness, however, does require additional preparation. In addition, specific cross-​examination techniques and impeachment methods can be used. The cross-​examination of an expert should be approached with caution. Many experts are experienced courtroom witnesses, and, generally, you can safely assume the expert knows far more about the subject than do you. When it comes to content, you are on the expert’s turf. When cross-​ examining an expert keep in mind the following points. First, do not show off. Resist the urge to use technical terms simply to flag to the expert that you are across the subject matter. If you have to use a technical term, define what the term means. This is discussed in greater detail below. Secondly, keep your expectations reasonable. Rarely will you be able to destroy the evidence of the other side’s expert. In the cross-​ examination of experts, as in the cross-​examination of lay witnesses, your goal is to sow doubt about the expert’s evidence in the mind of the jury or judge. Finally, in many trials there are opposing experts. The other side has their expert and you have your expert. When preparing for trial consider whether the point that you intend to establish in cross-​examination can be made as effectively in the examination-​in-​chief of your side’s expert. If it can, take the safer route to arrive at the same destination.

a  Additional preparation As has been noted above, cross-​examining an expert is fraught with danger. Consequently, cross-​examining an expert witness requires extensive preparation. Preparation for the cross-​examination of an expert should include these additional matters: 1

learn everything you can about the subject matter of the expert evidence. The purpose for this is twofold: you must have a thorough grasp of the subject, and such a literature review will identify potential material for impeachment. Relevant sections of texts, journal articles and other publications should be copied for possible use at trial;

2

ascertain the witness’s professional qualifications and relevant experience. Review the expert’s curriculum vitae and identify any weaknesses. Determine whether any aspect of the expert’s evidence falls outside the expert’s area of specialised knowledge; 249

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3

attempt to obtain a copy of the expert’s report, or the substance of the report. In civil cases, the applicable court rules generally provide for the exchange of expert reports;

4

thoroughly review the witness’s qualifications, opinions and conclusions with your own expert. Rely heavily on your own expert when preparing the cross-​examination. Your own expert will be your best teacher on the subject, and will help you to identify the strengths and weaknesses in the witness’s evidence;

5

obtain a copy of the witness’s relevant publications. Databases available online, often free of charge, are a useful resource; and

6

ascertain where, when and how often the expert has previously given expert evidence. If the expense is warranted, consider obtaining a copy of the expert’s previous testimony.

b  Cross-​examination techniques The following topics are specific cross-​examination techniques applicable to expert witnesses. 1

Ascertain the frequency with which the expert gives evidence, which side most frequently calls him or her as a witness, and whether counsel for the other side has used the expert in the past. This information may identify potential bias. Note, however, that using this information in cross-​examination is potentially a two-​edged sword. Before employing this technique, consider whether your expert is vulnerable to a similar attack.

2

Attempt to narrow the witness’s expertise. An expert often will appear to be highly qualified. On closer examination, it may become apparent that the witness’s expertise is in an area that is not directly applicable to the facts in issue. If your pre-​trial preparation indicates that this is the case, build-​up the expert’s area of expertise and then illustrate that this area of expertise is not directly applicable to the facts in issue in the case. This is not a direct challenge to the witness’s qualifications. While you have the right to cross-​examine the witness on his or her qualifications before he or she gives evidence concerning substantive matters, this may simply reinforce the witness’s expertise in the mind of the jury. The better approach is to admit the expert’s qualifications and narrow his or her expertise.

3

Use hypothetical situations and then vary them. This involves inquiring into the basis of the witness’s opinion, and whether or not his or her opinion would change if the facts were varied. If the witness admits that his or her opinion would change, you can assert in your closing argument that the alternative set of facts used in your varied hypothetical are the true facts, and that the witness, therefore, agrees with your position. If the witness refuses to vary his or her

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opinion, you can argue that the witness holds fixed opinions that would never change, evidencing bias or lack of credibility. Of course, you must ensure that your recitation of the varied facts is consistent with the facts proved in your case. 4

Use the cross-​examination to highlight your own expertise in the area. This can be accomplished by defining technical terms, or describing technical procedures and having the expert agree that you have defined or described them correctly. Texts, treatises and academic journals will be of assistance here. If the expert disagrees, the texts and treatises can be used for impeachment. How this is done is discussed below.   If you use this technique successfully, your credibility will be enhanced. This will be of particular assistance to you when you discuss the matter in closing argument. It follows that this tactic will fail if you do not have a thorough grasp of the subject. If this is the case, you run the risk of arguing with the expert; an argument that you are sure to lose. 5

If the expert’s use of technical language has rendered his or her evidence on a substantive matter incomprehensible to the jury, leave it alone on cross-​examination. In the examination-​in-​chief of your expert, have him or her define technical terms and phrases, and explain his or her opinion in lay terms. When evaluating the evidence of the experts, the jury is more likely to accept the evidence that was clearly explained to them.   This technique will not work if the trial is before a judge alone, as the judge often will require the expert to define the technical terms and phrases used, and to express his or her opinion in lay terms. 6

Attempt to elicit evidence that corroborates the propositions which form the foundation of your expert’s opinion.

7

Force the witness to agree that, in his or her area of expertise, legitimate differences of opinion between qualified experts can, and often do, occur. Have the witness admit that, in the past, he or she has disagreed with another expert and that sometimes he or she has been proven right, but other times he or she has been proven wrong. This technique works well in interpretative fields such as medicine and psychiatry.

8

If the witness had no firsthand knowledge of the topic on which he or she gave evidence –​for example, where the witness did not interview the party or personally conduct the tests –​have the witness admit this on cross-​examination. This is particularly effective if the witness has given evidence based on a hypothetical.24

24

The use of a hypothetical in examination-​in-​chief is discussed in Chapter 4, Section 4.10. 251

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c  Use of treatises, texts and academic journal articles The evidence of expert witnesses can be challenged by using treatises, texts and academic journal articles. In particular, using a treatise to impeach is a powerful technique, because a treatise represents the collective wisdom in the particular field. The impeachment technique is similar to that used for prior inconsistent statements discussed in Section 6.7.4: 1

re-​ commit the expert to the statement or opinion given in examination-​in-​chief;

2

build-​up the reliability of the conflicting authority; and

3

contrast the statement or opinion expressed in the conflicting authority with that of the witness. In other words, confront the witness by reading the excerpt contained in the conflicting authority, then stop.

Keep the impeachment as simple and clear as possible. Read only so much of the authority as is necessary to establish your point without reading the excerpt out of context. If necessary, before contrasting the statement have the expert define, in lay terms, any technical terms used in the excerpt from the conflicting authority that you intend to use for the purposes of impeachment. This “closes a gate”, and prevents the witness from defining technical terms used in the excerpt to lessen the impact of the inconsistency. Example 6.32 Q. Dr Alberts, several factors can affect the reliability of eyewitness testimony, correct? A. Yes. Q. These include the length of time the eyewitness had to see the robber? A. Yes. Q. The anxiety level of the eyewitness? A. Yes. Q. The lighting? A. Yes. Q. The distance between the eyewitness and the robber? A. Yes. Q. The length of time between the robbery and the identification parade? A. Yes. Q. Dr Alberts, in your evidence-​in-​chief you stated that the ethnic origin of the robber and the eyewitness is not a factor that can affect the reliability of eyewitness testimony? A. That’s my opinion. Q. By “ethnic origin”, you mean the race of the robber and eyewitness is not a factor that can affect the reliability of the eyewitness testimony? A. Yes, in this context the word “ethnic origin” and “race” are synonymous, although the former is to be preferred. Q. In this case the eyewitness was Caucasian, and the robber was Asian? A. Yes. Q. In your opinion this would not affect the reliability of the identification? A. That’s correct. 252

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Q. In fact, Dr Alberts, the race of the eyewitness and the subject can have a significant effect? A. Not in my opinion. Q. You are familiar with the text written by Dr Helen Lipton entitled Eyewitness Identification? A. Yes. Q. Dr Lipton is one of the leading authorities in the field of eyewitness evidence? A. Yes. Q. Dr Alberts, I’m going to read from page 136 of Dr Lipton’s book, Eyewitness Identification:  “Research has repeatedly shown that cross-​racial identifications are approximately three times less accurate than identifications made between members of the same race.” Did I read that correctly?  A. That’s what it says.

Asking “did I read that correctly” is a safer way to end than “do you agree with that statement”. Further, to be effective, the authority you rely on must be persuasive. If it is not, the witness will be rehabilitated on re-​examination, and his or her credibility enhanced to the detriment of your case. Treatises, texts and academic journal articles usually deal in generalities rather than specifics. An expert whose evidence has been discredited through the use of these types of publication often will attempt to rehabilitate his or her evidence by suggesting that the authoritative work deals with generalities, not the specifics of the case being tried. Before referring to the authoritative work, attempt to close off this escape route by having the expert agree that the circumstances of the case being tried are not out of the ordinary. 2  The records witness The function of the records witness is to qualify records and other documents for admission into evidence. Frequently, a records witness is not cross-​examined at all. This notwithstanding, you should always consider whether anything could be gained from a cross-​examination. In particular, you should consider the following: 1

Can you prevent the records from being admitted into evidence? Do you want to do so? Objections are usually based on relevance, inadequate foundation or multiple hearsay.

2

If you cannot keep the records out, or you have agreed to their admission, you should:



a have the witness highlight the favourable information contained in the records;



b

have the witness highlight any inconsistencies or errors; and



c

illustrate that the witness is merely the custodian and has no first-​ hand knowledge of the information contained in the records. 253

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Highlighting favourable evidence is your primary objective when cross-​ examining a records witness. Your secondary objective is to minimise the unfavourable evidence by minimising the impact and significance of the records. Avoid attempting to discredit the witness. Record witnesses are often clerical personnel who are competent to lay the foundation for the admission of the records into evidence, but are not competent, or produced, to give evidence concerning substantive issues. Attack the records, not the witness.

6.10 

CROSS-​EXAMINATION CHECKLIST

Before conducting any cross-​examination, ask yourself these questions in the following sequence: 1

Must I cross-​examine the witness?



a

Has the witness hurt my case?



b

Is the witness important?



c

What do I expect to gain from the cross-​examination?



d

What risks are involved if I cross-​examine?



e

Do I need to comply with the rule in Browne v Dunn (1894) 6 R 67?

2

What favourable evidence can I elicit?



a

What parts of the examination-​in-​chief have helped me?



b

What parts of my case can the witness corroborate?



c

What must the witness admit?



d

What should the witness admit?

3

What discrediting cross-​examination can I conduct?



a

Can I discredit the evidence on the grounds of the witness’s perception, memory or communication skills?



b

Can I discredit the witness’s conduct?

4

Can I discredit the witness?



a

Can I show bias, interest or motive?



b

Can I use prior convictions?



c

Can I use prior inconsistent statements?



d

Can I show bad character?



e

Can I show contradictory facts?



f

Can I use treatises, texts and academic journals?



g

What rebuttal evidence will I lead if required to do so?

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CHAPTER 7

Closing Arguments

7.1 INTRODUCTION....................................................................................... 255 7.2 CLOSING ARGUMENTS FROM THE LISTENER’S PERSPECTIVE................... 256 7.3 STRATEGIC CONSIDERATIONS................................................................. 257 7.4 CONTENT AND ORGANISATION OF EFFECTIVE CLOSING ARGUMENTS...... 264 7.5 EXAMPLES................................................................................................ 274

7.1 INTRODUCTION The closing argument is the chronological and psychological culmination of a trial. It is your last opportunity to communicate directly with the jury or judge. It is imperative, therefore, that your closing argument logically and forcefully presents your side’s theory of the case, themes and labels, position on the contested issues and the reasons why your side is entitled to a favourable verdict. In short, unlike the opening address, it is the presentation of an argument to the jury, and for this reason the word “argument”, rather than “address”, is used throughout this book. Like all other phases of the trial, your closing argument should be planned and organised in advance of the trial. It should be constructed to parallel both your opening address and your case-​in-​chief, and should integrate and emphasise your theory of the case. Any modifications to your prepared argument after the evidence is presented should be restricted to: 1

incorporating whatever specific evidence elicited during the trial supports your position, and

2

rebutting the specific evidence led by the other side that hurts your case.

This chapter discusses the elements and structure of an effective closing argument, and illustrates the use of these techniques in representative civil and criminal cases. The emphasis is on the presentation of a closing argument to a jury, rather than to a judge sitting without a jury. The significant differences between the two types of closing argument are noted. 255

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7.2  CLOSING ARGUMENTS FROM THE LISTENER’S PERSPECTIVE All the evidence is in and the judge has asked counsel to close. What are the jurors thinking and feeling at this point? First, they are tired. Sitting, listening and watching a trial is tiring, both physically and emotionally. Secondly, the jurors are informed. They have watched, listened and, collectively, heard all of the evidence presented by both sides. Thirdly, they are opinionated. By this stage of the trial the jurors have developed opinions and attitudes about the lawyers, parties, witnesses, evidence and about who should probably win. Fourthly, they know that they will soon be called upon to make a decision, and they are concerned about making the correct choice. Good advocates understand what the jurors are thinking and feeling, and use this knowledge when structuring and delivering their closing arguments. They appreciate that an effective closing argument is aimed at not only the undecided juror, but also at the favourable juror who will rely on that argument in the jury room to persuade the undecided. From the listener’s perspective, effective closing arguments have the following basic characteristics. 1  The first three minutes First impressions are lasting impressions. The first minute of your closing argument must grab the jurors’ attention and compel them to keep listening. It is important, therefore, to begin on a strong note. The traditional approach is to begin gradually, thanking the jury for its service to our system of justice and their attention to the case, and to build from there. If you adopt this approach you are forgoing a window of opportunity to convince the jury that you have something interesting and important to say. The first few minutes of your closing argument should communicate three things: your themes, a brief explanation of why the jury should find in your client’s favour and your enthusiasm for your case. Example 7.1 Dangerous driving One second. That’s all it would have taken. One second, and none of us would  be here. One second, but the defendant could not spare even that.

Example 7.2 Fraud “You can trust me”. Those are the words the defendant used. “You can trust  me”. Well, Pat Smith did trust the defendant, and that trust cost him $100,000.00.

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2 Argue Closing argument should be precisely that, an argument. It should not be a flat, boring recitation of what each witness said. The jurors saw and heard the evidence, and they neither want nor need to have that evidence recited line by line. The closing argument should assist the jurors to understand what the evidence means, and illustrate how it proves or disproves the required elements of the claim or charge, damages and defences. An effective closing argument weaves your theory of the case, themes, supporting evidence and law into a persuasive whole. It is a seamless web of logic and emotion. At the end of your closing argument the jurors should want to find in your client’s favour, and feel confident about their decision. How you prepare for, and present, an effective closing argument is discussed in the following sections. 3 Efficiency By the end of the trial the jury is tired, has heard all of the evidence and is likely to have formulated an opinion about who should win. Your closing argument, therefore, must be efficient. Keep in mind that, without a break or change in stimulus, a person can maintain a high level of attention for no more than 20 minutes. You must ensure, therefore, that your closing argument does not overload the jury. For the advocate the lesson is clear. For most trials your closing argument should take no more than 20–​40 minutes. Using more time is counterproductive. Jurors will be overwhelmed by detail, and will respond by tuning out. Focus on your case theory and themes, the key evidence and the law. Strip away the peripheral information, and repeat key ideas because repetition is important for retention. Having taken the above points into consideration, if you conclude that your closing argument cannot be delivered in 20–​40 minutes, make sure that you change the stimulus during the course of your presentation. Use visual aids, real evidence and demonstrative exhibits such as summary charts and computer simulations to break up the oral delivery. The more senses jurors engage, the less likely they are to drift off and think about other things.

7.3  STRATEGIC CONSIDERATIONS What strategies can be used to produce a closing argument the listener will find persuasive? Certain characteristics and techniques are discussed below. 1  Use themes and labels A theme, as noted in Chapter 1, is a memorable word or phrase that summarises your position on a critical issue. A label is the tag you put on 257

Fundamentals of Trial Technique

people and events during the trial –​for example, “the plaintiff” rather than “Ms Johnson”, or “fancy sports car” rather than “vehicle”. Now think back to your opening address. You selected themes and labels and wove them into your opening. The same thing should be done in your closing argument. Example 7.3 As the plaintiff in a medical negligence case in which the plaintiff’s damages are pain and suffering, your theme might be: “The only companion Louise Burch has today is her pain”. As the defendant in a criminal case, your theme might be: “The real victim in this case is Patrick Chin. He is the victim of an unreliable identification, and the  victim of a shoddy police investigation”.

Strive to make your closing argument memorable. Jurors respond to things stated in a distinctive way. If a juror adopts your theme, he or she will become an advocate for you during jury deliberations. 2  Argue your theory of the case It has been emphasised repeatedly in previous chapters that you must develop a theory of the case in advance of the trial, and stick with that theory throughout. Your closing argument should present your theory of the case explicitly to the jury, and demonstrate that it logically incorporates and explains both the contested and undisputed facts admitted at trial. 3  Argue the facts and avoid personal opinions Jurors usually decide the case on the evidence, and are persuaded by facts, not dazzling oratory. Closing arguments which focus on the facts are those that impress the jury and which the jury remember during their deliberations. Effectively arguing facts involves more than simply reciting the evidence; it involves analysis. Juries decide cases on the basis of impressions –​ what they think is the truth –​based on the way the parties have presented the evidence. Selectively choose and emphasise those facts, and the inferences arising from those facts which, when presented as a whole, create an impression that convinces the jury that your side should win. A fact only becomes a fact when the jury accepts it as being true. This acceptance may be facilitated by references to specific witnesses and their evidence. Simply stating the proposition you want the jury to accept is insufficient. You also have to set out the reasons, based on the evidence and law, why the jury should find a certain fact to be true. In your closing argument remember two words, “why” and “because”. Tell the jury why something is true by reminding them which witness or witnesses said it, how it was said and why it makes sense (the “because”). 258

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Example 7.4 We know that the defendant was going 75 km per hour in a 30 km per hour zone. Why do we know this? Because both Ms Phillips and Mr Jackson, two completely independent witnesses, told you that they were standing on the street corner and saw the defendant’s car go by. Both were in a perfect position to see how fast the defendant was going, and both estimated the speed of the defendant’s car at 75 km per hour. That’s why we know that the defendant was  going 75 km per hour.

It is improper for counsel to state their personal opinions about the credibility of witnesses or the quality of the evidence. Phrases such as “I think that”, “I believe that” or “it is my opinion that” are improper, objectionable, unpersuasive and must be eliminated from your trial vocabulary. You may not believe that your client has the strongest case; however, provided your client has a case in law, it is your duty as an advocate to put that case to the jury in the most persuasive way possible. 4  Use exhibits and visual aids Successful advocates maximise the use of exhibits and other demonstrative aids. Chapter 5 focused on the use of exhibits in the case-​in-​chief. The same techniques should be used in closing argument. Exhibits and demonstrative aids should be used to highlight and dramatically emphasise the main points. The use of an exhibit does more than augment the closing argument: it also provides a refreshing break. Psychological studies confirm that the average person has a very limited attention span. Any argument that drones on for 10 or 15 minutes on one point will lose the jury, regardless of the effectiveness of the content. In addition to their obvious value as tools of persuasion, exhibits can provide a refreshing change of pace that recaptures the jury’s attention. Think broadly. Consider using not only the exhibits formally admitted into evidence, but also visual aids such as flow charts, chronologies, checklists for key facts and arguments, etc. Such visual aids are not evidence and, therefore, will not be taken into the jury room during deliberations. Their use during closing argument, however, can have an enormous impact. It must always be remembered that exhibits used in closing argument are the same double-​edged sword that they are when used during the examination of a witness. They both attract and distract. The exhibits you intend to use during your closing argument should be kept out of the jury’s sight until they are needed and, once used, should again be put out of sight. Ensure that the use of exhibits augments your closing argument, rather than detracts from it. 5  Weave instructions into the argument A closing argument that selectively utilises the trial judge’s instructions will have a greater impact on the jury. If you can suggest that the applicable 259

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law, as well as the facts, support your case, a doubly effective argument can be fashioned. For example, if you are arguing that a witness should not be believed because he or she made a prior inconsistent statement, tell the jury that the judge will direct them that a prior inconsistent statement can properly be considered when determining a witness’s credibility. Argue the facts, and then argue that the law supports your interpretation of the facts. The key to this technique is to refer to the judge’s instruction immediately after your factual argument, so that the two are firmly associated in the jury’s mind. Among the instructions frequently woven into closing arguments are the elements of the offence, the elements of the cause of action, the burden of proof, the credibility of witnesses and the definitions of critical legal terms. A word of caution: instructing the jury is the exclusive province of the trial judge, so you should take care to ensure that you do not irritate the judge through an excessive encroachment on his or her domain. You must be confident that the instructions you weave into your closing argument mirror the instructions that will be delivered by the trial judge. You will lose credibility with the jury and annoy the trial judge if he or she is forced to correct your interpretation of the law when summing up. 6  Use rhetorical questions Jurors rarely ask questions during a trial. As a result, they may have a number of unanswered questions which you, in your closing argument, should anticipate and answer. Example 7.5 As counsel for the plaintiff in a contract case you might argue: You are probably saying to yourself, “The plaintiff is asking for a lot of money. Why should we award José Ramirez $500,000?” You’re right, it is a substantial amount of money, but in this case the damage to José Ramirez’s business as a result of the actions of the defendant has been devastating.

Then argue that the amount requested is the bare minimum necessary to com pensate the plaintiff adequately for the damage suffered.

Rhetorical questions also can be used effectively to challenge the other side with difficult or unanswerable questions. Their failure to answer these questions will be remembered by the jury. Example 7.6 As the prosecutor in a criminal case you might argue: You have heard the evidence. It showed that the accused just happened to be one block from where the robbery occurred moments earlier, just happened to be carrying a handgun, just happened to have $147 in his pocket, and just happened to be wearing a red singlet. If the accused is innocent, how did all these things just happen at the same time? I’m sure Ms Wilson will have the explanation when she addresses you. 

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It goes without saying that if you are the first to address the jury, you must be satisfied that the other side does not have a plausible answer to your rhetorical question. Like many other trial techniques, the use of rhetorical questions can be a two-​edged sword. 7  Use analogies and stories Analogies and stories, if short and pertinent, can be used effectively to define and crystallise an idea in the jury’s mind. They tie the evidence to the jurors’ own life experiences. They must be short, because the time for argument is limited, and they must be pertinent, because a pointless story told for its own sake is counterproductive. Example 7.7 In a case that relies on circumstantial evidence you might draw the following analogy: What is circumstantial evidence? Imagine that you are looking out of your bedroom window before going to bed. You can see the grass on your lawn. The next morning you look out and see that your lawn is covered by snow. Of course you conclude that it snowed during the night. You didn’t actually see it snow but there’s absolutely no doubt that it did. You are positive that it snowed, although the evidence that snow fell is completely circumstantial.

Then argue that the evidence in the case, while circumstantial, leads to only one conclusion.  

8  Argue strengths Argue your strengths, not just the other side’s weaknesses. Negative arguments often create negative impressions and should be avoided. Adopt a positive approach and concentrate on the evidence produced at trial which affirmatively demonstrates that your side should prevail. You do not want the jury to conclude that you are focusing on the other side’s weaknesses because you have little positive to say about your own case. 9  Deal candidly with weaknesses While you should argue your strengths, this does not mean that you should entirely avoid your weaknesses. Every case has some weaknesses. If it did not, the case would have settled before trial (in a civil case), or a guilty plea would likely have been entered (in a criminal case). Confronting weaknesses has two advantages. First, your weaknesses are the other side’s strengths. In failing to address your weaknesses you allow the other side to raise them first, in the light most favourable to their client. Secondly, the jury will respect your honesty and candour. Your credibility as an advocate is critically important, so this consideration should not be

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played down. Jurors are more disposed to favour those whom they like. Ensure that that is you and your client. Example 7.8 Members of the jury, I have a problem here. I have been talking about Robert Smith’s testimony and why it makes sense to believe what he told you. But some of you might be thinking, “How can we believe someone who told the police that he wasn’t there on the night of the attack?”. That’s a good question, and to answer it we have to think like a 16-​year-​old and learn why he was  afraid to be candid when questioned by Constable Montz.

Closing argument is the time to solve problems, not to ignore them. It is the time to deal openly with the jury’s concerns and discuss them candidly. 10  Force the other side to argue weaknesses For the same reasons that you want to focus on your strengths, force the other side to argue its weaknesses. You might achieve this by asking rhetorical questions that challenge the other side to explain any weaknesses. Example 7.9 The plaintiff claims that he was quietly sipping his beer when, for no reason, Mr Stienstra punched him in the face. If this is true, why wasn’t anyone called to support the plaintiff’s version of events? The pub was full. Would you not expect that the plaintiff could find at least one person to back up his story?  Perhaps my learned friend will answer this question when she addresses you.

When the other side presents their closing argument, they may take the bait and attempt to answer the question. You will have succeeded in forcing the other side to argue a weakness, therefore creating a negative impression. Of course, the tactic may backfire if the other side has a plausible explanation. 11  Make your opening and closing points without notes Experienced advocates minimise the use of notes throughout the trial. This is particularly important in closing arguments. The closing argument that you present at trial should never be written out in full. Both jurors and judges react negatively to closing arguments that appear to be read, and only professional actors can make a prepared text sound spontaneous. Further, what you write generally is more formal, uses a more sophisticated vocabulary and a more complicated sentence structure than a delivery made without a script. If you must rely on notes, use an outline, “dot points”, or some other memory aid to remember the content of the argument you want to make in closing. Finally, remember that closing argument is not a speech. It is a persuasive conversation on a topic that you know well and feel strongly about. While you should minimise the use of notes throughout your closing argument, it is critical that you should not rely on them at the beginning 262

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and end of your address. Jurors remember best what they hear and see at the beginning and end of your closing argument. These are the times when you must maintain eye contact with the jury to maximise the impression you wish to convey. 12  Use understatement as well as overstatement In closing argument, your goal is to state your side’s position as forcefully as the evidence reasonably permits. This can be accomplished through the intermingling of understatement and overstatement. Advocates often place too much reliance on overstatement, which can be tiring and irritating to the jury. Studies have shown that jurors are more likely to accept a conclusion if they come to it themselves. By hinting at and suggesting answers, rather than pounding them home, you can capitalise on this fact. 13 Presentation style The presentation of an effective closing argument has a physical, as well as a verbal, component. Both must be harmoniously combined to project a belief that based on the evidence, your side is entitled to win. To achieve this, you must use physical, non-​verbal communication to support your verbal presentation. In particular, you should do the following. 1

Maintain periodic eye contact with each juror, but do not single out any one juror or ignore others. This balance may be achieved by directing an idea, in one or two sentences, to a specific juror, and then directing your next point to another juror. Maintain eye contact with the jurors to whom you are talking. If you do, each juror will feel that you are talking to him or her individually.

2

Control your body movements so that they reinforce your speech. Stand straight with your feet planted firmly, and lean forward slightly. This stance is positive and authoritative. Avoid rocking back and forth or swaying from side to side. Such movements distract the jury’s attention. You should, however, change position from time to time to signal that you have completed one topic and are moving on to another.

3

Use gestures that reinforce your points. The best gestures are those which draw attention to your face. Upper body gestures, which include facial expressions, head and shoulder movements, and hand gestures above waist level, are the most effective. Lower body movements, such as slouching, tapping your feet, moving your legs and playing with objects in your pockets, divert the jury’s attention away from your face and, therefore, should be avoided.

A closing argument must be forceful and persuasive. It is not an opening address, which is basically the transmission of information. A closing 263

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argument should include not only a recitation of the relevant evidence, but also inferences to be drawn from the evidence, instructions, appeals to fairness and common sense, analogies and other persuasive techniques. View your closing argument as a discussion with the jury. Adopt the same kind of structure in your argument that you would use to present your views on an important issue to a gathering of friends. If you are appearing before a judge sitting without a jury, be prepared to deal with questions from the bench. Use plain, forceful, active language. Avoid slang expressions, unless they are plainly appropriate. Conversely, avoid the use of formal, stilted speech. While jurors expect counsel to have a good command of the English language, the object of the exercise is still persuasion, and the use of formal, technical or archaic language will not facilitate the jury’s comprehension of your argument. In general, keep your sentences short and your structure simple. Learn to control and use the variables that make up speech. These include volume, pitch, rate and rhythm, pauses, articulation and pronunciation. Each of these should be used and modulated to keep your speech pattern forceful and interesting. The delivery of an effective closing argument is an acquired skill. There is no right way to make a closing argument. The kind of presentation you feel comfortable with will be imprinted with your own personality and characteristics. You should not attempt, therefore, to imitate another advocate’s style. Learn from that advocate, but always adapt what you learn to your own individual style. Only the presentation style you feel comfortable with will be persuasive.

7.4  CONTENT AND ORGANISATION OF EFFECTIVE CLOSING ARGUMENTS In closing argument, numerous approaches, styles and techniques can be used to convince the jury to return a favourable verdict. Nevertheless, effective closing arguments almost invariably contain several components that should be modified to meet the unique characteristics of your case. These include the following: 1

introduction;

2

issues;

3

what really happened and proof;

4

basis of liability or non-​liability/​guilt or innocence;

5

damages (in civil cases);

6

refuting the other side’s case;

7

judge’s instructions; and

8

conclusion.

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1 Introduction In a traditional introduction, counsel often informs the jury of the purpose of a closing argument and notes that the parties are now entitled to review the evidence presented during the trial. Counsel then proceeds to discuss the evidence. Effective advocates, however, know that at this stage of the trial jurors are tired, have heard the evidence and are opinionated. They want to hear what you want, and why you feel you are entitled to what you want. They want to hear it expressed clearly, effectively and in a way that captures and holds their attention. An effective introduction, therefore, gets immediately to the point. Example 7.10 Plaintiff –​ civil On 15 June 2017, Joan Carter’s young life changed forever when the defendant, deprived of sleep and high on amphetamines, picked up a scalpel and began to  remove Joan’s appendix.

Example 7.11 Defendant –​ civil This is a case about failing to take responsibility, and about a person, the plain tiff, who wants to be rewarded for failing to follow her doctor’s orders.

Example 7.12 Prosecution –​criminal Being attacked in your own home is everyone’s worst nightmare. Fortunately, for most of us it is only a nightmare. For Moshen Weinberg, old, sick and alone, it  was a nightmare that became reality during the early hours of 22 February 2018.

Example 7.13 Defendant –​criminal When the police fail to do their job, when they take shortcuts and fail to conduct a thorough investigation, the wrong person can be accused of a crime. That is what has happened in this case. It was the start of a nightmare for Sandra  Johnson when she was falsely accused of this crime on 3 November 2017.

This type of introduction immediately captures the jury’s attention and lets the jurors know that what you are about to say is worth listening to. A quick, forceful introduction, therefore, is an effective way to begin your closing argument. 2 Issues Just before, or alternatively, just after, dealing with the facts you should usually outline the issues in the case. The issues emphasised in your 265

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closing argument should be those which, if argued successfully, will result in a favourable verdict. It is often effective to phrase the issues as questions. After posing the question, you should emphatically answer it in your favour. The question must be stated simply so that the jury has no difficulty understanding it. Example 7.14 Prosecution –​criminal What is this case all about? The question you must answer is this: Did we prove that the defendant intentionally and without provocation shot and killed Robert Jackson? The evidence has clearly shown that the accused did precisely  that, and therefore she is guilty of murder.

You must anticipate how the other side will characterise the issues to be decided in the case. In selecting the issues, you are entering into a contest. You are attempting to convince the jury that they should evaluate and review the evidence from your perspective. If the jury accepts your characterisation, they are much more likely to evaluate the evidence from a perspective favourable to your case. Example 7.15 Defence –​criminal The prosecution would like you to believe that the issue here is whether Jane Franklin intentionally shot the deceased. That is not the issue –​that is not it at all. The question you must answer is this: Did Jane Franklin shoot the deceased in self-​defence? The evidence clearly shows that she did. Jane Franklin shot the deceased because he was about to attack her with a golf club. Defending your self under such circumstances is not a crime; it is self-​defence.

3  What really happened and proof Most trials are ultimately a contest to determine which version of a disputed event or transaction is most likely true. Put another way, the contest is to determine which side’s version of reality the jury will accept as true. Advocates frequently make two interrelated mistakes: they spend too much time reviewing undisputed facts, and too little time arguing why the jury should accept their version of the key disputed facts. Key disputed facts usually revolve around one or more of the following issues: a

The issue may focus on the required proof, or on the burden of proof. The question then becomes, what has been proved?

b

The issue may focus on inferences to be drawn from the evidence. The question then becomes, what do the facts mean?

c

The issue may focus on the credibility of a witness. The question then becomes, who do you believe?

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In each situation, winning the jury over to your version of the disputed facts is central to a persuasive closing argument. Marshalling the evidence to support your version of the disputed facts involves more than simply canvassing what each witness said. This is largely a waste of time. The jury wants to know what the evidence means, and how it fits together to form a picture they can be confident is true. As has been noted above, they want to know not only the proposition you want them to accept, but also the basis on which they should reach a particular conclusion. When marshalling the evidence in an attempt to win the war over the disputed facts, consider the following: 1

testimony of your party;

2

other corroborating witnesses;

3

exhibits;

4

admissions from the other side’s witnesses;

5

common sense and human nature;

6

probabilities and improbabilities; and

7

pleadings and discovery (civil cases).

Effective closing arguments weave all of these kinds of supporting “facts” together into a coherent argument that reinforces your key points, and leads the jury to accept your version of what really happened. Consider the following examples. Example 7.16 Testimony of your party A common approach is to begin by telling the jury what really happened from your party’s perspective.  

What really happened on 13 May 2017? John Smith was driving south on Clark Street. He could see the intersection of Main Street ahead…

Example 7.17 Other corroborating witnesses You remember Ms Khoo. She was the woman standing on the southwest corner of the intersection when the assault occurred.

After identifying the witness, build him or her up before you discuss the critical evidence he or she presented. Ms Khoo has been employed by Watters Corporation for 18 years, and currently holds the position of general manager. She has no interest in the outcome of this case. She does not know either party.

Argue that the evidence of your witness is the most credible and should be relied upon by the jury.  

Who was in the best position to see what really happened? Ms Khoo was the only witness looking at the intersection when the assault happened. She was the only person who saw this incident from beginning to end. 267

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If the witness is an expert or has special qualifications that have been admitted into evidence, build up the expertise or qualifications before you review the witness’s evidence. Example 7.18



You recall Dr Nolan. He is the superintendent of the Sisters of Mercy Hospital. Before assuming this position, he was the head of neurosurgery at the hospital for 22 years. He is also an adjunct professor of medicine at the University of Queensland, and has written extensively in the area of brain stem injuries. You will recall that the plaintiff was Dr Nolan’s patient for two months following the assault.

When you review the witness’s relevant evidence, proceed slowly. Review the significant testimony in detail. The question and answer method can be usefully employed to accomplish this. Example 7.19  

Remember when I asked Dr Nolan how, based on his experience, he believed this injury could have occurred? He said: “In my opinion, the injury was caused when the base of the skull was struck with a blunt, heavy object”.

Relevant exhibits admitted into evidence can be used effectively to corroborate your party’s version of events. The exhibit should be shown, or read, to the jury, but remember to put it away when you have finished referring to it. Example 7.20 Exhibits



How else do we know that this is true? Remember Exhibit 1, the insurance policy? You will be allowed to take this policy into the jury room and refer to it during your deliberations. Please look at clause 24, which you will find on page two of the policy. It states…

Admissions elicited from the other side’s witnesses can be particularly persuasive sources of proof. Example 7.21 Admissions from the other side’s witnesses



268

The defendant was in a hurry, and his carelessness caused the collision. The best evidence we have comes from the defendant’s own mouth. In cross-​examination I asked him a series of questions: “You had a meeting in your office scheduled for 9.00 am?”; “It was an important meeting, wasn’t it?”; “You were running late for that meeting, weren’t you?”; and, “You were in a hurry?”. To each of these questions the defendant’s answer was “yes”. The crash happened 2 km from the defendant’s office, at 9.00 am.

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Common sense, human nature, and the probabilities and improbabilities of the case also can be used to corroborate your side’s version of the facts. Example 7.22 Common sense and human nature, and probabilities and improbabilities



The defendant’s counsel would have you believe that Mr Ayres, a 68-​year-​old pensioner with a history of heart trouble, provoked the 24-​year-​old defendant into the fight. Does this make sense? Is not Mr Ayres’s version more probable? He was waiting at the bus stop minding his own business when the defendant attacked him.

You should always look to the pleadings and discovery for admissions. The Statement of Claim, Defence, Particulars, admissions in affidavits, answers to interrogatories, etc, are all potent sources of proof. Example 7.23 Pleadings and discovery (civil cases)



In examination-​in-​chief the plaintiff said that he saw the child run onto the road, tried to brake, but could not stop in time. In his affidavit sworn on 22 February 2018, and filed in support of his application to strike the Defence, however, he stated in paragraph 6, “I did not see the child before I hit him. He came out of nowhere”. When I asked him about this discrepancy in cross-​examination, you will recall his response…

4  Basis of liability or non-​liability/​guilt or innocence This section should be the emotional culmination of your narrative. The facts you have just reviewed should be summed up in terms that will make it clear to the jury that, legally, your client is entitled to a verdict in his or her favour. Example 7.24 Civil Plaintiff What did the defendant do that was negligent? He failed to warn Mrs Dixon of the catastrophic consequences that could result from the cosmetic surgery. He failed to warn her, despite the fact that she specifically asked him what might be the possible consequences of the surgery. If Mrs Dixon had been properly warned, she would not have had the operation. Because of this failure to warn, the defendant is negligent in law. Defendant There is no negligence here. The evidence clearly indicates that Dr Jacks properly performed the operation. Further, the evidence clearly indicates that the plaintiff was told about the possible consequences of the operation before it was performed. The plaintiff’s loss is most unfortunate, but the defendant is  not legally responsible for that loss.

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5  Damages (in civil cases) Often the plaintiff and the defendant address the issue of damages at different times in their closing arguments. From the plaintiff’s perspective, it is usually preferable first to establish that the defendant is liable, then discuss the damages the plaintiff is entitled to recover. Reviewing the injuries and damages the plaintiff suffered and now has to live with ends the closing argument on an emotional high point. It is usually preferable to state the quantum of damages you are seeking. If you are seeking damages “at large”, however, the position appears to be that: [a]‌lthough ultimately it is a matter for the discretion of the judge in exercising control over the proceedings so as to ensure that no miscarriage of justice occurs, the view that has prevailed is that counsel may put figures to the jury, provided it is done fairly. To ensure fairness, counsel proposing to put a figure to the jury should inform counsel for the other side and the judge first, particularly where counsel will be addressing the jury last. However, the amount, if any, claimed in the writ or other originating process may not be mentioned.1

If the damages you are claiming are quantifiable, you should justify your claim by addressing each relevant head of damage. You should show how you arrived at the figure you are claiming, and illustrate how such an award will help the plaintiff. Finally, demonstrative aids, such as a poster board, whiteboard or computer-​generated images, can be helpful in communicating your damages claim. Example 7.25 The plaintiff, Express Corporation, has lost $229,530 as a direct result of the defendant’s failure to honour the terms of its contract. How did we arrive at this figure? You will note from the calculation on the whiteboard that this sum  is made up of a number of components…

By contrast, the defendant generally does not like to discuss damages at all. A defendant may be concerned that a discussion of damages may be interpreted as an admission of liability. On the other hand, if the defendant does not discuss damages and the jury finds for the plaintiff on liability, it may simply accept the plaintiff’s unchallenged assessment of quantum. In cases where both liability and damages are in issue, therefore, the defendant needs to decide whether to discuss damages, and, if so, when in the closing argument that discussion will take place. If the defendant decides to discuss damages, there are two common approaches. 1

Liability first, then damages. This works well if the defendant’s liability argument is weak and the real issue for the defence is the minimisation of damages. In these circumstances, the closing argument

1

H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, 2002), [11.7.1].

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will focus on exposing the flaws in the plaintiff’s calculation of damages. 2

Damages first, then liability. This works well if you want to address damages, but your strongest argument relates to liability. Start by denying liability, shift to the damages issue without sounding defensive, and then end on your strongest argument, the plaintiff’s failure to establish liability. Example 7.26 It is clear from the evidence that the plaintiff was responsible for her own injuries, and is not entitled to look to us for compensation. Before I discuss that evidence, however, I want to deal briefly with the plaintiff’s calculation of dam ages, which also does not hold up.

After discussing how the plaintiff’s damages claims have been exaggerated and are not supported by the evidence, you can then return to the issue of liability. 6  Refuting the other side’s case At common law, if the defendant adduces evidence beyond his or her own testimony or the testimony of character witnesses, the prosecution addresses last. In civil cases, the plaintiff generally addresses last, unless the defendant has not led evidence, in which case the plaintiff generally addresses first. In Australia, the position is as follows. Legislation now governs the position in every jurisdiction with some legislation more or less preserving the common law but with most making it clear that the prosecution may address in every case but always granting the accused the tactical advantage of the final address … In civil cases … the common law approach of only allowing the [defendant] who has adduced no evidence to address last is generally followed.2

If you are the first to present a closing argument, it is generally advisable to anticipate the other side’s argument and refute it. Addressing the other side’s argument allows you to characterise their contentions in the way most favourable to your side, and to refute those contentions with the evidence produced at trial. Psychological studies have shown that people are more resistant to counter-​arguments if they have been given reasons to resist them beforehand. Having anticipated the other side’s argument, refute that argument with reference to the evidence admitted at trial. Refer to relevant testimony, exhibits and other corroborative elements, and demonstrate that this evidence contradicts the other side’s contentions. Argue that a review of the evidence illustrates clearly that the other side’s argument cannot be accepted. 2

A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [2.11]. 271

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When refuting the other side’s argument, you also want to minimise and reduce the impact of the unfavourable evidence adduced during the trial. For example, you may challenge a witness’s background and qualifications, or his or her knowledge or recollection of the facts. You may wish to address the credibility of a witness and outline the factors the jury can consider when assessing credibility, such as bias, interest and prejudice. Example 7.27 The plaintiff would have you believe that the article that appeared in the 28 November 2017 edition of the Brookfield News lowered his reputation in the community. The evidence called by the plaintiff in support of this contention came from the plaintiff’s neighbour and friend, Mildred Kravitz. Yet you heard the evidence of Sandra Grauby, president of the Brookfield Community Association. She told you that after the article was printed, the motion to have the plaintiff made an honorary life member of the Association was carried unanimously.  

7  Judge’s instructions It has already been suggested that you should try to weave the instructions you anticipate the trial judge will give to the jury into your argument. Instructions often given to the jury include: 1

burden of proof;

2

elements of the cause of action or charge;

3

elements of the defence;

4

definitions of important legal terms;

5

credibility of witnesses;

6

warnings relating to unreliable evidence;3

7

using common sense and reliance on life experiences; and

8

sympathy should not be considered.

Effective closing arguments tie specific instructions to specific points in the argument. For example, in criminal cases defence counsel often refer to the burden of proof instruction when arguing that the prosecution has failed to prove its case. Example 7.28 Her Honour will tell you that the prosecution must prove, beyond a reasonable doubt, that Kate Bacon intended to wound James Greenwood. Have they met  this standard? The evidence clearly shows that they have not because…

3

272

For example, see s 165 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

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It must be emphasised that it is the job of the trial judge to instruct the jury, so any reference to anticipated instructions should be approached with caution. 8 Conclusion In your conclusion you should smoothly and efficiently sum up your position and request a verdict in your client’s favour. The conclusion should appeal to the jury’s sense of fairness and justice, and should remind the jury of a key theme or other important point. It is also a proper place to make a tactful emotional appeal to the jury. An effective conclusion ends crisply and dramatically. The last phrases should linger tellingly in the air. Example 7.29 Above all, please remember this. This is Jessica Smith’s only day in court. She has come before you and presented her evidence, and now seeks justice under the law. As a result of the defamatory statements published in the defendant’s newspaper, Jessica Smith’s reputation as a leading psychotherapist has been destroyed.  

9 Reply In some Australian jurisdictions, the court may give the prosecution leave to reply “to any facts asserted in the accused’s address that are not supported by evidence before the jury”.4 How should the prosecution best use this advantage? Should the prosecution apportion its ammunition between the closing argument and the reply? The answer is “no”. The prosecution should cover all the key points in the closing argument and resist the temptation to save some strong arguments for the reply. “Sandbagging” has its dangers. First, the court may not grant leave for the prosecution to reply. Secondly, leaving arguments for the reply weakens the prosecution’s closing. Thirdly, if counsel for the defendant ascertains that the prosecution has refrained from putting forward an argument on the assumption that leave to reply will be granted, he or she will be careful to ensure that the arguments made in the defendant’s closing are supported by the evidence before the jury. This will reduce the likelihood that leave to reply will be granted. Finally, keep in mind that the jury is tired and may become hostile if the rebuttal argument drags on or simply repeats the closing argument. You should, however, prepare for a reply in advance of the trial. Consider the arguments the defendant may raise, and prepare to meet them. As with all aspects of the trial, your approach to the reply, and whether you need to reply, will be governed by your theory of the case.

4

A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [2.11]. 273

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7.5 EXAMPLES The following closing arguments are based on the same cases as those used in the opening address examples in Chapter 3, Section 3.5. Example 7.30 Criminal case R v Sylvester Strong The accused, Sylvester Strong, has been charged with murdering John Williams on 24 January 2018. The prosecution claims that the shooting was in retaliation for an earlier incident. The defence is based on self-​defence. Closing –​prosecution “Get your stupid vehicles off the footpath you ignorant slag”. Not a nice thing to say to someone’s mother. But does it justify three bullets –​one to the arm, one to the back and a third to the lung and heart –​ when John Williams was lying prostrate and helpless, face down on the footpath? Clearly the answer is “no”, yet this is exactly how the defendant avenged the slur to his mother. It is this response that makes this killing a murder.

Introduction

Issue Framing the issue in this way encourages the jury to evaluate and review the evidence from the prosecution’s perspective.

On 24 January 2018, George Williams What really happened and proof and the victim were walking down Bloomingdale Street when they were yelled at by the defendant and told to “stay put”. Clarence Strong, with a gun in his pocket, and the defendant then ran out onto the street. The defendant demanded an apology from the victim, and when the victim refused, Clarence Strong took the handgun from his pocket and fired two shots in the air. George Williams told you that John Williams attempted to run away, but did not get far. The defendant took the gun from his brother, aimed and fired –​not one shot, but three. The third shot pierced John Williams’s lung and heart, killing him instantly.

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Closing Arguments

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How do we know this is what really Basis of guilt happened? First, we have the evidence of George Williams, the victim’s brother, in his second year of Arts at the Queensland University of Technology. Secondly, we have the autopsy report that was entered as Exhibit 4. From this report we know that the second and third bullet entered the victim’s back. If the victim was attacking the defendant with a cricket bat, as the defendant, his brother and his mother would have you believe, the second and third bullets should have entered the victim from the front. Yet the medical evidence clearly indicates that two of the three bullets were fired into the victim’s back. What does this prove? The victim was running away from the defendant when the second bullet was fired, and was lying on the ground when the third bullet was fired, just as George Williams has testified. What were the victim and George Refuting the other side’s case Williams doing on Bloomingdale Street the day after the altercation with Rosie Garrett? The simple answer is as George Williams stated –​they just happened to be there. They lived on the next street. You should also ask yourself this: if the victim and George Williams were carrying out the vendetta the defence has constructed, why were they walking on the opposite side of Bloomingdale Street when they were accosted by the defendant and Clarence Strong. If they were “looking for trouble”, would they not look for trouble on the side of the street where Rosie Garrett lived? Finally, what about the cricket bat? Why would the victim take a cricket bat to Rosie Garrett’s house? George Williams told you that neither he nor the victim was aware that Rosie Garrett had sons. What was the victim intending to do with the cricket bat –​attack Rosie Garrett because she had parked cars on the footpath the previous day and made an obscene gesture in response to the victim’s remark. This defies common sense, and contradicts the evidence of an eyewitness, George Williams. The cricket bat was picked up by George Williams when Clarence Strong started firing shots into the air. The victim did not attack the defendant with a cricket bat. He never had a chance. 275

Fundamentals of Trial Technique

On 24 January 2018 the defendant inten­ Conclusion tionally fired three shots into an unarmed victim, John Williams. The first shot wounded him, the second shot disabled him and the third shot, fired into his back as he lay helpless on the ground, killed him. This is not a case of self-​defence; this is a case of murder. [To the judge] May it please the Court. Closing argument –​defence For Sylvester Strong, it was either kill Introduction or be killed. He had been knocked to The case theme is stressed early in the ground and struck in the face with the argument a cricket bat. To protect himself he fired three shots at his attacker. That, members of the jury, is not murder. It is self-​defence. The issue in this case is not whether Sylvester Strong shot the deceased. This fact is not disputed. What you must determine is whether Sylvester Strong reasonably believed that such force was necessary in order to save his own life. On the evidence, it is clear that this belief was reasonable.

Issue The issue should be framed in terms of the prosecution’s burden of proof. The answer should immediately follow the statement of the issue.

What do we know for sure? We know What really happened and proof that on the day before the shooting the The use of the exhibit highlights and deceased called a 62-​ year-​ old woman, emphasises this important point. whom he had never met, an “ignorant slag”, and made a threatening gesture with his hand. Why? Because two cars were blocking the footpath. We also know that the deceased and his brother returned the following day, and that Sylvester Strong was beaten with a cricket bat. The report of the medical examination, entered as Exhibit 21, clearly indicates that Sylvester Strong was hit in the arm, the face, the stomach and the legs. So what really happened on 24 January Basis of innocence 2018? The deceased and George Williams returned to Bloomingdale Street on 24 January looking for trouble. We know from the evidence of Rosie Garrett, Clarence Strong and Sylvester Strong that the deceased was carrying a cricket bat. Clarence Strong had a handgun in his pocket, but, as these three witnesses have testified, this was not taken out until after the deceased started attacking Sylvester Strong. Sylvester Strong told you that the deceased, “lost it, and just kept coming at me”. In desperation, he grabbed the handgun from his brother and fired shots at the deceased. He does not know how many shots he fired. He simply wanted to protect himself from the deceased’s violent assault. 276

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George Williams, the deceased’s Refuting the other side’s case brother and closest friend, has given you a different version of the events. According to Williams, he and the deceased “just happened” to be walking down Bloomingdale Street on 24 January. He asks you to believe that he and the deceased “just happened” to be walking down the same street where, on the previous day, the deceased had yelled obscenities at a woman sitting on her verandah. Does this make sense? I suggest not. He would also have you believe that he was the one with the cricket bat, and that he “just happened” to find the bat “laying nearby”. When he was cross-​ examined on this point, he could not recall precisely when he picked up the cricket bat, or where he found it. Why can’t he recall? Because it is not true. George Williams also would have you believe that the deceased was engaged in peaceful conversation with Sylvester Strong when, for no reason, Clarence Strong pulled out a handgun and started firing shots into the air. This explanation makes no sense. What makes sense is that Clarence Strong fired shots into the air in an attempt to stop the deceased from killing his brother with a cricket bat. In this case the onus is not on Sylvester Weaving Strong to prove that his actions were argument reasonable. The onus is on the prosecution to prove, beyond a reasonable doubt, that Sylvester Strong did not reasonably believe that such force was necessary in order to save his own life. If they fail to meet this onus, Sylvester Strong is entitled to be acquitted.

instructions

into

the

The deceased, not George Williams, Conclusion was carrying the cricket bat when he walked over to Rosie Garrett’s house. He attacked Sylvester Strong with the bat, and put the defendant in the position of kill or be killed. In law, this is not murder, it is self-​defence. [To the judge] May it please the Court.

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Example 7.31 Hi-​Temp Pty Ltd v Lindberg Furnace Company Pty Ltd In February 2017, Hi-​Temp Pty Ltd, a company that treats metal products in furnaces, purchased an industrial vacuum furnace from the defendant manufacturer. On 31 December 2017, the furnace exploded. Hi-​ Temp had the furnace repaired and now claims that a design defect in the furnace was the cause of the explosion. Lindberg maintains that the furnace was designed and manufactured safely and properly. Closing argument –​Defendant5 The plaintiff’s furnace did not break down Introduction because of a faulty foreline valve. The furnace Issue broke down because the plaintiff failed to maintain it properly, and failed to use it properly. How do we know that the foreline valve What really happened and proof was not the cause of the breakdown? Dr Note how the defendant’s Horwinhouser, a design engineer with over theory of the case is emphasised. 25 years’ experience in the design and testing of vacuum furnaces, and a recognised expert in the field, stated that simply opening the foreline valve could not have created the kind of damage that occurred. He also said that the type of breakdown that occurred could have resulted from not loading the furnace properly –​that is improper use of the furnace –​ or from a failure to maintain the equipment properly. In fact, in the months leading up to the breakdown, Lindberg’s maintenance personnel were called to the plaintiff’s plant on two occasions to fix the furnace. On the first occasion, the heat settings were set too high. On the second occasion, the chamber was filled beyond the recommended capacity. In other words, in the months leading up to the breakdown the furnace had been used improperly. If you do not look after a product, and do not use it properly, it will break down. You may be asking yourselves: “What about Dr Terroux? She said that the foreline valve was the cause of the breakdown.” What about Dr Terroux.

5

278

The order of closing addresses in this example is in accordance with the Uniform Civil Procedure Rules 2005 (NSW), r 29.6(4), which provides that, if the defendant has called evidence, it closes first. Be aware, however, that the order of closing is subject to “any direction of the court” (r 29.6(1)) and the court may direct that the plaintiff close first with a right of reply following the defendant’s closing. As part of the pre-​trial preparation, the rules of court relevant to the order of addresses should be checked. Further, it would be prudent in advance of the trial to confirm the order of closing with the judge and the lawyer for the other side.

Closing Arguments

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In the plaintiff’s opening address, Dr Terroux was described as a “design engineer”. While she may use this title, it was clear from her cross-​examination that she has never: 1  designed a vacuum furnace; 2 been involved in the manufacture of a vacuum furnace; or 3  operated a vacuum furnace. Dr Terroux is a mechanical engineer who   teaches the theory underlying the operation of a vacuum furnace unit. She has no design, manufacturing or operating experience. In contrast, over the last 25 years Dr Horwin­   houser has: 1  designed furnaces;

hundreds

of

vacuum

2 been involved in the manufacture of hundreds of vacuum furnaces; and 3 run hundreds of courses on how to operate a vacuum furnace. Even Dr Terroux agreed that Dr Horwinhouser   is a world leader in the design, manufacture and operation of vacuum furnaces. So why did the furnace break down? The Basis of non-​liability simple answer is that we do not know. We do not know because the plaintiff failed to lead sufficient evidence to establish the cause of the breakdown. Admittedly, we heard from Mr Minoti, the engineer on duty on the night of the explosion, and Ms Lussier, the plant supervisor, but both of these witnesses arrived after the breakdown. What the plaintiff did not tell us was who loaded the furnace, and what exactly was in the furnace when it broke down. Why wasn’t the person who loaded the furnace called? Perhaps my learned friend will tell you why when she addresses you. So, on what evidence is the plaintiff   relying? It is relying on the inspection of the furnace carried out by Mr Minoti after the breakdown. But what is interesting is what Mr Minoti did not do, which was to talk to the operator of the furnace on the night of 31 December 2017. In cross-​examination, he said that, at the time, he did not feel that it was necessary! Not necessary, or not to the plaintiff’s advantage?

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We do not know exactly why the furnace Conclusion broke down on the night of 31 December 2017. We do not know because the plaintiff has failed to meet its onus of proof. The plaintiff must convince you that it is more likely than not that the furnace broke down because of a failure of the foreline valve. The plaintiff has not given you enough evidence to come to this conclusion. We ask that you dismiss the plaintiff’s claim against Lindberg. [To the judge] May it please the Court.

 

Closing argument –​Plaintiff

 

“If the furnace had been equipped with a Introduction locking device on the foreline valve, the Issue explosion would not have occurred.” This was the conclusion reached by Dr Nina Terroux. Dr Terroux should know. She holds a PhD in Mechanical Engineering, and she examined the furnace immediately after the explosion. If the furnace had been properly designed, the explosion never would have happened. How do we know that the explosion occurred as a result of a defect in the design of the furnace? First, we have the evidence of John Debronski, Hi-​ Temp’s purchasing manager. He told you that in 2016, Hi-​Temp entered into negotiations with the defendant for the purchase of a vacuum furnace. During the course of those negotiations, Mr Debronski told the representatives of the defendant that the furnace had to have the capacity to operate safely at a temperature of at least 2150 degrees, around the clock, seven days a week. He was assured by the Lester Grange, the defendant’s Vice-​ President, Customer Service, that the insertion of an Inconel shield into the defendant’s standard model of vacuum furnace would allow the furnace to operate safely at temperatures as high as 2,300 degrees. Mr Grange agreed in cross-​ examination that this fact is not in dispute, that the defendant was aware of Hi-​Temp’s requirements and that the furnace was manufactured by the defendant to meet those requirements. Hi-​ Temp paid the $540,000 purchase price and the furnace was put into operation in September 2017.

280

What really happened and proof Note the use of the word “explosion” rather than “breakdown”. The choice of descriptive terms can have an impact on the jury’s perception of the event.

Closing Arguments

You also heard that the furnace was meticulously maintained in the period between its installation and the explosion. Janet Lussier, the plant supervisor and the person primarily responsible for overseeing the maintenance of the furnace, went through the maintenance records marked as Exhibit 45. Mr Grange admitted in cross-​examination that the furnace was inspected in accordance with the specifications established by the defendant and found to be in proper working order. Further, Ms Lussier confirmed that when a major problem arose, which did occur on two occasions between the date of installation and the date of the explosion, the defendant was contacted and consulted.

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In this example, the evidence relied upon to refute the other side’s case is woven into this aspect of the argument. Counsel should hold up, or display either on a screen or poster board, the maintenance records to emphasise the point.

How was the machine being operated on   the night of the explosion? Nick Minoti, the engineer on duty, inspected the furnace immediately after the explosion. He made three critical observations: 1  the gauges were properly set; 2  the oil level was normal; and 3  the operation chart, which was entered as Exhibit 52, did not indicate any earlier operational problems. So why did the furnace blow up on 31 December 2017? Dr Terroux has given the only reasonable explanation. Dr Terroux examined the furnace, the operations chart, and spoke to Mr Minoti and Ms Lussier. From the inspection, Dr Terroux observed that the drift eliminators, which as she explained are the small metal guides on the foreline valve, had been bent around the foreline valve and rammed into the skirt of the adjacent pump. This happened when a high pressure force came from the pressurised side of the foreline valve into the vacuum chamber. In other words, the foreline valve opened when there was atmospheric pressure in the top chamber and a vacuum in the bottom chamber. The result, an explosion. Dr Terroux confirmed that if the furnace had been equipped with a locking device on the foreline valve, the explosion could not have happened.

Reference to a picture of the damaged area would be useful here. Basis of liability

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The plaintiff’s employee, Dr Horwinhouser, Refuting other side’s case stated that opening the foreline valve could not have created the kind of damage that occurred. Two things should be kept in mind when you consider Dr Horwinhouser’s evidence. First, he agreed that a locking device on the foreline valve would have ensured that the valve did not open during operation. Secondly, he is the person who designed this furnace. Is he going to admit that he designed a faulty product? Obviously not. As a result of the explosion and the subsequent Damages shutdown of the furnace, Hi-​Temp suffered damages totalling $368,000. Mr Debronski took you through the chart, marked as Exhibit 24, which set out the damages under four separate headings: 1  cost of repairing the furnace –​$160,000. This figure is based on 17 invoices from the defendant, marked collectively as Exhibit 28, totalling $87,450, and 3 invoices from other suppliers, marked as Exhibits 29–​31, totalling $72,550. 2 cost of replacing the parts that were   destroyed in the explosion –​$8,000. The invoice from Hi-​Temp’s customer, Howse Aviation Pty Ltd, is marked as Exhibit 32. 3  cost of lost production –​$200,000. Mr Debronski explained that it took a total   of eight weeks to ascertain the extent of the damage, order the parts necessary to make the repairs, receive the parts and carry out the repair work. Based on the production records for the time the furnace was in operation, which were entered as Exhibit 37, and the orders which could not be filled as a result of the shutdown of the furnace, marked as Exhibits 68–​97, the total cost of lost production is $200,000. When you add up the type of damage Hi-​Temp suffered, the total comes to $368,000. If you market and sell a product, the buyer has Conclusion a right to expect that the product will do the Note how the case theme is job. If the design is faulty and the purchaser emphasised in the closing. suffers loss, the seller has to compensate the purchaser for that loss. In this case, the defect in the design of the foreline valve resulted in an explosion which cost Hi-​Temp $368,000. We ask that you give judgment for Hi-​Temp against the defendant for that amount. [To the judge] May it please the Court.

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CHAPTER 8

Objections

8.1 INTRODUCTION....................................................................................... 283 8.2 WHEN TO MAKE OBJECTIONS.................................................................. 284 8.3 HOW TO MAKE OBJECTIONS................................................................... 285 8.4 OFFERS OF PROOF.................................................................................... 288 8.5 EVIDENTIARY OBJECTIONS....................................................................... 288 8.6 OTHER OBJECTIONS................................................................................. 301 8.7 COMMON PROBLEMS.............................................................................. 304 8.8 CONCLUSION.......................................................................................... 305

8.1 INTRODUCTION Witness testimony and exhibits tendered at trial must be viewed through the prism of the law of evidence. Good advocates know the evidence law applicable to the jurisdiction in which the trial is held, and know when to invoke its prescriptions. They also are able to anticipate the evidentiary objections the other side is likely to make, and prepare in advance their response to such objections. Finally, good advocates know when and how to make an objection, the right evidentiary rules on which to base their objection and what arguments will be effective in persuading the judge to uphold the objection. Making a proper, timely objection is a difficult trial skill. Often, inexperienced advocates automatically react, like Pavlov’s dog, to certain “buzz words” that foreshadow an objectionable question. For example, when counsel for the other side starts his or her question with, “Isn’t it conceivable that…”, the knee-​jerk reaction is to object on the grounds that the question necessarily calls for a speculative answer. The objection may be upheld but, in the context of the evidence and the advocate’s theory of the case, is the objection necessary? You can be assured that, when the question is re-​ framed, the judge and the jury will be listening attentively to the response, the importance of which has been flagged. Making a proper objection is a trial skill that must be mastered. This chapter discusses when to make objections, how to make them and how to make offers of proof. Commonly encountered types of objections are then reviewed. 283

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8.2  WHEN TO MAKE OBJECTIONS During the course of any trial, numerous situations arise where an objection properly can be made. Knowing when to make an objection involves more than simply knowing whether an objection can be made. It also involves knowing whether an objection should be made. When making this, often instantaneous, decision, you should consider the following points. 1  Jurors dislike objections Jurors view objections as a tactic used by counsel to keep the real truth from them. The more objections you make, the more your credibility as an advocate suffers. Since your credibility may influence the outcome of a trial, it is essential that you minimise your disruptions to the flow of evidence. Further, you want to project the image of a competent winner. If your objections are consistently overruled, or the judge telegraphs his or her opinion that your objections, while technically correct, are frivolous and unnecessary, the jury will quickly form a negative opinion of you that will damage your case. In addition, the jury will pay more attention to the witness’s answer, or the exhibit tendered, once the objection is overruled. If the evidence warranted an objection, in the jury’s mind it must be important. If you have prepared your case thoroughly, you will have identified most of the evidentiary problems that may arise at trial. These problems should be dealt with in advance, either through agreement between counsel or through a pre-​trial motion.1 If the matter arises during trial, it should be anticipated and dealt with, if possible, before the jury is seated. Objections, particularly evidentiary objections, often need to be dealt with on a voir dire in the absence of the jury. If the jury is present when the objection is made, their subsequent removal from the courtroom is disruptive, time consuming and may antagonise the jury. This is not to suggest that an objection should never be raised in the presence of the jury. Jurors have watched enough television to know and expect that some objections will be made. Knowing which objections will assist your case is the critical factor. 2  Will the answer hurt your case? Unless you are reasonably sure that the answer to a question will hurt your case, it is usually better not to object. If you make the objection and the court upholds it, the jury will naturally wonder what the answer would have been had the witness been allowed to respond. The jury’s ideas about what 1

284

See, for example, s 192A of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

Objections

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the answer would have been are often far worse than the actual answer. Save your objections for the answers you are reasonably certain will be damaging. 3  Does the objection have a solid legal foundation? If you make an objection, you should be reasonably confident that it will be upheld. Anticipate what objections you are likely to make and have available the necessary statute, text and case law to support your position. Making an objection and having it overruled is often worse than not objecting at all. Being overruled is a minor victory for the other side which, cumulatively, may result in the loss of the war. More importantly, the objection focuses the jury’s attention on the witness’s answer. 4  Protect the record The purpose of an evidentiary objection is twofold. If upheld, it prevents the jury from hearing improper evidence. If overruled, the party objecting has preserved the right to argue the point on appeal. Generally, if the appellant was represented by counsel at trial and the decision not to object was based on tactical considerations, appellate courts will be reluctant to allow the appellant to argue points not taken at trial. In a criminal case, the criminal appeal rules in some jurisdictions expressly provide that leave must be granted before a point can be argued on appeal where no objection was made at trial.2 In summary, the failure to object at trial makes it difficult, but not impossible, to argue the point on appeal. 5  Can you use the objection as a tactical device? An objection breaks the flow and pace of the other side’s examination, opening address or closing argument. It is unethical to make an unfounded objection solely to disrupt the other side, or to coach a witness. It is proper, however, to make an objection whenever there is a legitimate evidentiary basis for it, even if the inevitable effect is to disrupt the other side’s presentation.

8.3  HOW TO MAKE OBJECTIONS 1 Timeliness Evidentiary objections must be timely. If a question is improper, an objection should be made before the witness has an opportunity to answer.

2

See A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [2.49]. 285

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Ordinarily, you should wait until the question is completed before voicing your objection. If the question itself is prejudicial and improper, however, you should object as soon as this becomes apparent. If an answer is improper, an objection should be made as soon as this becomes apparent. If the answer has been completed, you should ask the judge to instruct the jury to disregard the answer. Obviously, this is not a very satisfactory solution. Jury research indicates that the judge’s instruction is likely to reinforce the inadmissible evidence in the jury’s mind. This should be considered when making the decision whether to object once an answer has been given. Of course, for the reasons noted above, if you must object to preserve the right to argue the point on appeal, you may have little choice but to object. Before you state the reasons for your objection, tell the court that you are objecting. This may appear self-​evident but, in practice, this simple rule is often ignored. You want to avoid scenes like this: Example 8.1 Counsel: Your Honour, it seems to me that what counsel is trying to do is to delve into the…  Court: Are you making a speech or do you have an objection?

You can avoid this by beginning with: “Your Honour, I object to my learned friend’s question.” This also acts as a signal to the other side to stop questioning and to the witness to stop answering until the judge has made a ruling. In exceptional circumstances, for example, if you anticipate that the witness will attempt to slip in an answer notwithstanding the objection, you can say: “Don’t answer that question. Your Honour I have an objection to my learned friend’s question.” You should always stand when making an objection. Do not address the court while seated. Counsel for the other side should stop immediately and sit down until called upon by the judge to respond to the objection or to proceed. There should not be two counsel on their feet at the same time. Finally, counsel should address their comments to the court, not to each other. It is the judge’s job to rule on the objection, not to mediate an argument between counsel. 2 Legal basis When making an objection, always state the legal basis succinctly, without excessive argument. Example 8.2 Your Honour I object to my learned friend’s question. The question calls for a  hearsay answer.

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If you wish to argue the matter, or counsel for the other side attempts to make a long-​winded, argumentative speech before the jury, ask the judge to hear and rule on the matter on a voir dire in the absence of the jury. This requires that the jury retire to the jury room.3 You are entitled to insist on a ruling from the judge. How strenuously you pursue this entitlement will depend on the importance of the objection to your case. If counsel for the other side withdraws the question before the court has an opportunity to rule on it, make sure that a subsequent question is not simply the objectionable question framed in a different way. If it is, renew your objection. Inexperienced advocates are often intimidated by objections, and frequently abandon an important line of questioning when an objection is upheld. If the point you are pursuing is important, ask yourself how you can get the evidence admitted properly. For example, you may have to call another witness. If the objection is based on an improper form of question –​for example, a leading question in examination-​in-​chief on a matter in issue –​this usually can be accomplished by rephrasing the question. 3 Procedure The best procedure is to make the objection, and then hesitate for a moment before stating the legal basis for the objection. If the basis is obvious, the judge will frequently uphold the objection without requiring you to elaborate further. Of course, you should always be prepared to state the legal grounds for the objection. If the judge overrules your objection, the legal basis will be preserved for the record. In many situations, more than one legal basis for the objection may exist. For example, in examination-​in-​chief a witness may be asked a leading question on a matter in issue that requires a hearsay response not falling within an exception to the hearsay rule, and violates client legal privilege. When stating your objection, rely on the grounds that will exclude the evidence –​hearsay and privilege –​rather than on the grounds that will simply require a restatement of the question in an acceptable form. Where the evidence is damaging, rely on as many legal grounds as are available to exclude the evidence.

3

If the objection requires a determination of a question of whether evidence should be admitted, whether evidence can be used against a person, or whether a witness is competent or compellable, the arguments should generally be heard in the absence of the jury. Under s 189(2) of the uniform Evidence Act, arguments on questions relating to admissions, or improperly or illegally obtained evidence, must be heard in the absence of the jury: Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 287

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8.4  OFFERS OF PROOF If the judge indicates that he or she is prepared to uphold an objection, and a successful objection will exclude evidence important to your case, tell the court what you are seeking to achieve and where your particular line of questioning is leading. Generally, this is done in the absence of both the jury and the witness. This “offer of proof” is necessary for two reasons: 1

it may convince the judge to reverse his or her ruling; and

2

if you ensure that the offer is recorded in the transcript, it will create a record that can be relied upon on appeal. Example 8.3 Your Honour, if we are allowed to pursue this line of questioning, the witness will testify that, one week after the robbery, the accused sold her a watch. We will establish through another witness, the victim Ms Jarvis, that this watch was  taken from her during the assault.

8.5  EVIDENTIARY OBJECTIONS Evidentiary objections fall broadly into two categories: 1

objections directed to form; and

2

objections directed to substantive evidence.

Objections to form can usually be overcome by rephrasing the question or answer. Objections directed to substantive evidence often cannot be overcome and, if upheld, will result in the exclusion of evidence. Example 8.4 Form Q. Mr Jones, the other car did not come to a complete stop at the stop sign, did it? Counsel: Your Honour, I object to my learned friend’s question. The question is leading. Court: I agree. Ms Dramos, you should rephrase your question. Q. Mr Jones, please describe what the other car did when it reached the stop sign? A. As the car approached the stop sign, it slowed down to approximately 20 km  per hour and then kept going through the intersection without stopping.

In this example, examining counsel overcame the objection simply by rephrasing the question. Further, the rephrased question elicited a more complete and, therefore, more persuasive response than the original question. For this reason, it is often better not to object to questions that are improper in form only.

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Objections

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Example 8.5 Substance Q. Mr Peters, according to the bystander, Ms Smith, how did the fight start? Counsel: Your Honour, I object to that question. What Ms Smith told the witness is clearly hearsay and does not fall within any of the exceptions to the hearsay rule.  Court: I agree. The objection is upheld.

In this example, the objection has succeeded in excluding from evidence the out-​of-​court statement made by Ms Smith. Unless examining counsel calls Ms Smith as a witness, or convinces the court that Ms Smith’s statement is not hearsay or falls within an exception to the hearsay rule, the statement will be excluded. Such arguments will usually be heard and determined in the jury’s absence. Evidentiary objections commonly encountered during the examination of a witness include: 1

objections to a question on the grounds that:



a

it calls for an irrelevant answer;



b

the witness is not competent to answer;



c

it calls for disclosure of a privileged communication;



d

it violates the best evidence rule (in those jurisdictions that still apply the rule);



e

it calls for a conclusion;



f

it calls for an opinion (from a witness not competent to give the opinion);



g

it calls for a hearsay answer;



h

it is leading, either in form or because it assumes a fact not in evidence;



i

it is repetitive (the question has been asked and answered);



j

it is misleading;



k it is unduly annoying, harassing, intimidating, offensive, oppressive or humiliating;



l



m it is a compound question;



n

it is argumentative;



o

it misstates evidence or misquotes what has been said;



p

it is cumulative;



q

it calls for an answer that contravenes the rule about evidence of judgments and convictions;

it calls for speculation;

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r

it calls for an answer that contravenes the tendency (propensity) rule;



s

it calls for an answer that contravenes the coincidence (similar fact) rule;



t

it calls for an answer that contravenes the rules about identification evidence; or



u

it is an improper challenge to the credibility of the witness.

2

objections to an answer on the grounds that:



a

it is irrelevant;



b

it discloses a privileged communication;



c

it is a conclusion;



d

it is an opinion from a witness who is not competent to give opinion evidence;



e

it is hearsay;



f

it violates the parol evidence rule;



g it contravenes the rule about evidence of judgments and convictions;



h

it contravenes the tendency (propensity) rule;



i

it contravenes the coincidence (similar fact) rule; or



j

it contravenes the rules about identification evidence.

3

objections to an exhibit on the grounds that:



a

it is irrelevant;



b

no foundation has been established;



c

it has not been properly authenticated;



d

the probative value is substantially outweighed by its prejudicial effect;



e

it may be misleading or confusing;



f

it may cause or result in an undue waste of time;



g

it contains inadmissible material (for example, hearsay); or



h

it was not disclosed on discovery or in the prosecution’s brief of evidence.

Some of the evidentiary objections frequently made by advocates both before and during a trial are discussed below. 1 Relevance Evidence is admissible if it is relevant to a fact in issue and is not excluded by a rule of evidence.4 To be relevant, the evidence must be “logically 4 290

For example, see Masters v The Queen (1986) 24 A Crim R 65 at 74 (Qld CCA, per Ryan J).

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|  CH  8

probative or disprobative” of a fact in issue.5 This definition is reflected in the uniform Evidence Act, s 55, which stipulates that, “evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings”.6 An objection on the basis of relevance can arise where either direct or circumstantial evidence is being offered. It is more likely to arise in the case of circumstantial evidence, because the probative value of the evidence may not be readily apparent. Issues of relevance are often complex and can involve substantial amounts of additional evidence. If you feel that you must object to a line of questioning on the basis of relevance, insist on an offer of proof. The court is entitled, however, to admit the evidence conditionally based on counsel’s assurance that its relevance will be substantiated by evidence admitted at a later stage in the proceeding. If counsel does not fulfil this undertaking, and irrelevant evidence has been introduced, it may be grounds for a discharge of the jury.7 2 Competence The general rule is that all persons are competent to give evidence, but this general rule is subject to a number of common law exceptions. Witnesses affected by these exceptions include persons accused of a crime, persons with a pecuniary interest in the outcome of a case, spouse of a party or accused, and persons who do not understand the difference between the truth and a lie. Statutory provisions in force in each Australian jurisdiction impact significantly on the categories of incompetent witnesses, and these provisions should be reviewed before making an objection based on competence.8 Today, it is unusual for a witness to be disqualified on the basis of incompetence, with instances usually limited to the evidence of very young children and persons with a severe physical or cognitive disability.9

5 6 7

8

9

DPP v Kilbourne [1973] AC 729 at 756. Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See s 57(1) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). Generally, see A Ligertwood, G Edmond, Australian Evidence (6th ed, LexisNexis Butterworths, 2017), [2.19], n 86. For example, see ss 12, 13, 17(2) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), Ch 7, Section 2. Australian Law Reform Commission, New South Wales Law Reform Commission, Victorian Law Reform Commission, Uniform Evidence Law (ALRC 102, NSWLRC 112, VLRC FR, 2005), [4.6]. 291

Fundamentals of Trial Technique

3  Privileged communication At trial, objections based on privilege can arise in a number of contexts. The most common objection, however, is that based on client legal privilege (or, if the common law applies, “legal professional privilege”). Client legal privilege protects certain communications and documents from disclosure and discovery in judicial and extra-​judicial proceedings. The privilege is based on a policy of fostering open, frank communications between a client and his or her legal adviser.10 Other confidential communications, including those between a medical practitioner and patient, a member of the clergy and penitent, and a sexual assault victim and a counsellor, have been afforded limited statutory privilege in some jurisdictions.11 Issues involving privilege can frequently be anticipated and should be researched and dealt with in advance of the trial, either in a pre-​trial motion or at a pre-​trial conference. Problems commonly centre on the question of whether the matter is subject to privilege, the circumstances under which the communication was made and whether the privilege has been waived. If it is necessary to object during the trial, you should request that the jury be excused so that the issue can be argued. Example 8.6 Q. Ms Chan, you spoke to your solicitor about the fight that occurred in your unit, didn’t you? A. Yes. Q. What did you tell her? Counsel: I object to my learned friend’s question. Communications between Ms  Chan and her solicitor are protected by client legal privilege.

In addition to confidential communications, other forms of privilege include statements made on a “without prejudice” basis in an attempt to settle a dispute, and privilege against self-​incrimination. These are complex areas of law that should be researched thoroughly in advance of trial.12 4  Best evidence rule Today, the best evidence rule, which stipulates that the best evidence available must be produced, will rarely provide an adequate foundation to

10 11 12

292

For a discussion of client legal privilege, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [25001]-​[25300]. Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [25305]-​[25340]. Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [25350]-​[25400]; [25065]-​[25185].

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maintain an objection. Judges tend to view arguments based on the best evidence rule as a matter affecting the weight of the evidence, rather than its admissibility. In uniform Evidence Act jurisdictions, the rule has been abolished.13 As a practical matter, original documents will always carry the greatest weight; therefore, originals should always be produced if they are available. 5  Parol evidence rule Extrinsic oral evidence that modifies or contradicts a complete and unambiguous contractual instrument freely entered into between competent parties may be excluded pursuant to the parol evidence rule. The purpose of the rule is to prevent the reception of oral evidence that has the effect of modifying or contradicting a written agreement. The parol evidence rule is often violated in contract cases when an attempt is made to elicit evidence relating to the execution of a contract. While it is proper and necessary to lead evidence that shows that the contract was signed by the parties, it is generally not proper to lead evidence that shows how the parties intended the contractual terms to operate.14 6  No foundation A proper foundation must be established before any exhibit can be admitted into evidence.15 Objections based on inadequate foundation should be made as soon as the other side tenders the exhibit. Counsel making the objection is faced with a difficult decision. If the defect can be rectified easily, an objection will force the other side to establish the missing element and in so doing enhance the impact of the exhibit. Consequently, counsel might elect not to object, preferring to comment on the missing element during closing argument. Example 8.7 Of course, we know that Exhibit 12 is a picture of the intersection, but is it worth anything? No evidence has been led to suggest that this is how the intersection  looked on the night of the accident.

Unless you are confident that a proper foundation cannot be established, and that you will be successful in your attempt to keep the exhibit from being admitted into evidence, it may be to your advantage not to object.

13

14 15

See s 51 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also Evidence Act 1929 (SA), s 57. Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [39140]-​[39205]. This is discussed in detail in Chapter 5, Section 5.3. 293

Fundamentals of Trial Technique

7 Hearsay Hearsay evidence, as that term is used in the uniform Evidence Act, refers to a previous (out-​of-​court) representation made by a person “to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation”.16 In non-​uniform Evidence Act jurisdictions, both intended and implied assertions are caught by the rule, although the law on this point is not settled in Australia.17 The statement may be oral, written or non-​verbal conduct intended as an assertion. The prohibition is not directed at the statement as such, but at the attempt to use it for the purpose of proving the truth of the facts asserted in it. For example, if the purpose of leading the evidence is to show the effect the statements made out-​of-​court had on the listener’s state of mind –​such as statements that put the listener on notice or induce fear –​the statements generally will not contravene the rule against hearsay. The purpose of leading such evidence is to show that the statement was made, and the effect the statement had on the listener, not for the purpose of proving the truth of the facts asserted in the statement. The most obvious and recurring hearsay problems arise when a question calls for, or a witness gives evidence concerning, an out-​of-​court representation made by another person, and there is no non-​hearsay purpose for which the representation can be admitted. Example 8.8 Q. What did Ms Perez tell you about the shooting?  Q. What did he say to you at that time?

If the out-​of-​court representation is being proffered for a hearsay purpose, and no exception to the hearsay rule applies, these questions are objectionable. A more subtle hearsay problem occurs when the witness’s answer to a question necessarily incorporates hearsay information. Example 8.9 Q. What did you learn from them? Q. Did Dr Johnson agree with you? Q. What did your committee conclude?  Q. Was she a witness to the beating?

The answer to these questions is likely to include facts obtained from other persons. If these facts are in issue, the out-​of-​court representation

16

17 294

See s 59 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [31035]-​[31070].

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|  CH  8

incorporating these facts will be hearsay and inadmissible unless an exception to the hearsay rule, or a non-​hearsay rationale, can be established. The rule against hearsay is often violated when the witness’s answer strays outside the bounds of the question. Example 8.10 Q. Who was present at the meeting? A. The eight people I mentioned previously. Q. Did all of them talk during the meeting? A. Yes. Mr Khoo for instance kept saying that… Counsel: Your Honour, I object. Coming from this witness, what Mr Khoo said  is hearsay.

Advocates must understand the rule against hearsay and the statutory and common law exceptions to the rule. This does not mean that an objection should be voiced every time the rule is infringed. If, having considered your case theory, you conclude that the hearsay evidence does not hurt your case, you should probably not object. Constant objections delay the trial and irritate the judge and jury. Of course, if the hearsay evidence does hurt your case and you conclude that the rule applies, then you should object. 8  Leading questions A leading question is a question asked of a witness that, 1

directly or indirectly suggests a particular answer to the question, or

2

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.18

It is generally improper during examination-​in-​chief and re-​examination to ask leading questions concerning matters in dispute. Prefacing your question with qualifiers, such as “if anything” or “did you or did you not”, will not transform a leading question into a non-​leading question. Example 8.11 Compare Leading questions

Non-​leading questions

Q. Were you or were you not scared when the defendant put the knife to your throat?

Q. How did you feel when the defendant put the knife to your throat?

Q. Immediately after the robbery, did the victim scream?

Q. What did the victim do immediately after she was robbed?

Q. Did he or did he not look both ways before stepping onto the road?  

Q. What did the pedestrian do before he stepped onto the road?

18

For example, see the Dictionary, Pt 1 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2008 (Vic). See also Evidence Act 2001 (Tas) s 3. 295

Fundamentals of Trial Technique

The examples illustrate that an examiner can overcome an objection to a leading question by reformulating and asking a non-​leading question. Unless the examiner is making excessive use of leading questions, or it appears that the witness is able to provide the evidence only when leading questions are used, it often is better not to object. 9 Ultimate issue A conclusion is a deduction drawn from a fact or a series of facts. In general, witnesses can only give evidence of facts. The conclusion to be drawn from the facts is for the jury to determine. At common law, this principle evolved into the ultimate issue rule. The rule provides that a witness may not be asked a question which the jury itself must decide.19 This distinction is easy to draw in theory, but is often difficult to apply in practice. Consequently, courts are reluctant to uphold objections based on the ultimate issue rule, and in uniform Evidence Act jurisdictions the rule has been abolished.20 10 Opinions Generally, a witness’s expression of opinion is proper when the witness has been qualified as an expert, and the witness’s opinion pertains to areas where his or her specialised knowledge will assist the jury to understand the facts. A lay witness may give an opinion where that opinion is based on the witness’s perception of an event, and that perception will assist the jury to understand the evidence or determine a fact in issue.21 To fall within the lay opinion exception, either at common law or under the uniform Evidence Act, the person stating the opinion must have witnessed the matter or event.22 Common examples are estimates of speed, time, distance, age, identity, weather, handwriting, bodily health, emotional state and sobriety.23 The primary question, particularly when a lay witness is giving evidence, is whether the subject matter is a proper one for opinion evidence.

19 20

21

22

23 296

Generally, see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [29105]-​[29130]. See s 80 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See s 78 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [29085]-​[29100]. Lithgow City Council v Jackson (2011) 244 CLR 352 at [41]-​[46]. See also J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [29175]. Cf S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016), [EA.78.60]. Lithgow City Council v Jackson (2011) 244 CLR 352 at [45].

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|  CH  8

Example 8.12 Lay witness Q. Was the design of the automatic clutch pedal of this forklift truck unreasonably dangerous? Counsel: I object to my learned friend’s question. The response calls for an opin ion that this witness is not qualified to give.

Unless it can be demonstrated that the witness has specialised knowledge based on that witness’s training, study or expertise (that is, the witness has been qualified as an expert), attempts to elicit opinion evidence on such a technical subject would be objectionable. 11 Repetition The questions asked of a particular witness, and the answers elicited in response, should not be constantly repeated. The reason is twofold: it wastes time and it places undue emphasis on the repeated evidence. This objection applies equally to examination-​in-​chief and cross-​examination. Advocates often attempt to elicit favourable evidence from witnesses by phrasing previously asked questions in a slightly different way. If the question calls for substantially the same answer as that given previously, the question is objectionable even if it is not identical to the previous question. If the other side persistently uses this tactic, you should object. Note, however, that your objection will flag the importance of the evidence. 12  Misstate evidence or misquote a witness It is improper to misstate the evidence or misquote a witness. This applies to both the examination of witnesses and closing arguments. This rule is most often broken when examining counsel: 1

refers to earlier evidence, but does so inaccurately; or

2

repeats a witness’s last answer as part of his or her next question, but does so inaccurately. Example 8.13 Q. You hit the man, didn’t you? A. Yes. Q. After attacking him, what did you do next? Counsel: I object to my learned friend’s question. She has misstated Mr  Sorenson’s evidence.

When an inaccurate characterisation or repetition of earlier evidence occurs, a prompt objection is essential.

297

Fundamentals of Trial Technique

13  Confusing, misleading, ambiguous, vague and unintelligible questions The questions asked by the examiner must be reasonably clear and specific. The witness must be able to ascertain, from each question, what information the examiner is trying to elicit.24 In cases where there are a number of occurrences, parties, witnesses and conversations, confusing, ambiguous and vague questions are often asked. The examiner will ask a question about an occurrence or conversation without it being apparent to which occurrence or conversation the question pertains. Example 8.14 Q. Who was present at the meeting?  Q. What did she say during the 8 May meeting?

If there was more than one meeting, or more than one female person present at the meeting, the questions are unclear and an objection would be appropriate. 14 Speculation Questions that require a witness to speculate are improper. Cases should be decided on the facts. A witness’s speculation, if not admissible as opinion evidence, is irrelevant. Example 8.15 Q. If the car had been further away, you would not have crashed into the boot, isn’t that correct?  Q. The man in the alley could see you, couldn’t he?

Witnesses are usually permitted to give estimates of such things as distance, time, speed, height and age. In addition, greater latitude is usually given during the examination of expert witnesses. 15  Compound questions A compound question is one that raises two separate facts within a single question. It is objectionable because, unless the witness answers both questions asked, any answer to the question will be unclear.

24

298

For example, see ss 26(a) and 41 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

Objections

|  CH  8

Example 8.16 Q. Did you go to the Pig’s Ear Pub on 21 December 2017, and to Otto’s Tavern two days later?  Q. Did you go into Chan’s store and, if so, did you buy anything?

If only one of the two facts is true, a yes or no response will be inaccurate. Compound questions are dangerous because a witness may give a simple answer that is only partially correct. Counsel for the other side may then attempt to use the well-​intentioned, but inaccurate, answer in his or her closing argument. If the other side asks a compound question, object and request that the court direct the examiner to split the question into two or more separate questions. 16  Prejudice outweighs probative value Both oral evidence and exhibits fall within the scope of this objection. The fact that the oral evidence or exhibit has probative value does not guarantee its admission into evidence. In situations where the prejudicial impact of the evidence is substantial, and the probative value slight, the court can exercise its discretion and exclude the evidence.25 It is important to note, however, that evidence is not prejudicial simply because it damages your case. For the objection to be upheld you must show that the evidence is unfairly prejudicial (to use the language of the uniform Evidence Act). You must show that the fact-​finder may use the evidence to make a decision on an improper basis; for example, on an emotional basis or by adopting an illegitimate form of reasoning.26 This kind of objection is often made when the prosecution attempts to produce gruesome photographs in a murder case when the cause of death is not in issue, or when examining counsel requests that a witness display injuries or scars to the jury. You should try to anticipate attempts to introduce unfairly prejudicial evidence. Once the inflammatory evidence is before the jury, it cannot be retracted and a judicial direction to disregard the evidence has little effect.

25

26

Under s 135(a) of the uniform Evidence Act, in a civil and criminal proceeding the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. In a criminal proceeding, s 137 stipulates that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant: Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). While objection to the admissibility of such evidence also can be made in non-​uniform Evidence Act jurisdictions, the uniform Evidence Act, ss 135-​137, has “created an even more extensive range of possibilities than the common law”: J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [11125]. Generally see S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, 2016), [EA.135.150], [EA.137.120]; J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [11125]. 299

Fundamentals of Trial Technique

An objection to an unfairly prejudicial exhibit should be made in a pre-​trial motion or, if the trial has commenced, out of the presence of the jury. If you are forced to object to unfairly prejudicial evidence in the presence of the jury, it is better to refer to the statutory provision on which you are relying (if any), rather than the grounds. Stating that the evidence is unfairly prejudicial will simply stimulate the jury's curiosity. Example 8.17 Q. Ms Katekarus, the clerk is showing you a photograph… Counsel: Your Honour, I object. The photograph is inadmissible under s 135(a)  of the Evidence Act 1995 (NSW).

17  Repetitive evidence The court can use its discretion to exclude repetitive evidence. If a series of witnesses give evidence that merely reinforces, but adds nothing to, the evidence of a previous witness, or a series of exhibits are produced to demonstrate the same thing, an objection can be made on the basis that the evidence is repetitive. Using the terminology of the uniform Evidence Act, the probative value of the evidence is substantially outweighed by the danger that the evidence might cause or result in an undue waste of time.27 18  Questions beyond the scope of the examination In Australia, unlike the United States, a witness under cross-​examination may be asked about any matter that is relevant to the facts in issue. An objection on the grounds that a question is beyond the scope of the examination-​ in-​chief may arise when a witness is being re-​examined, or when a party has been granted leave to re-​open his or her case to call a rebuttal witness. In re-​examination, attempts to elicit evidence on matters that did not arise during cross-​examination are objectionable unless the court has granted leave.28 Inexperienced advocates often attempt to slip in a question during re-​examination on a topic which he or she realises was omitted during examination-​in-​chief, and which was not addressed in cross-​examination. A better approach is to admit your mistake and seek the court’s indulgence to re-​open your case for the limited purpose of adducing the evidence that was inadvertently omitted.

27

28

300

See s 135(c) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). For example, see s 39 of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). See also, J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17610].

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19  Improper challenge to the credibility of the witness Advocates are entitled to challenge the credibility of a witness in cross-​ examination (see Chapter 6, Section 6.7). If such a challenge is not done properly, it is grounds for an objection. Two common objections relate to the non-​compliance with the rule in Browne v Dunn,29 and improper use of a prior inconsistent statement. The rule in Browne v Dunn stipulates that, where the cross-​examiner intends later to contradict the witness by calling further evidence or by suggesting that the witness’s evidence can be otherwise explained, the witness should be given the opportunity in cross-​examination to comment upon the contradictory version. Any attempt subsequently to lead such evidence in contravention of this rule is grounds for an objection.30 If the credibility of a witness is being impugned with a prior inconsistent statement, counsel putting the statement to the witness must not take the statement out of context. You should insist that all relevant portions of the inconsistent statement are read to the witness. Further, counsel should read the inconsistent statement to the witness verbatim before asking the witness to adopt or reject it. Paraphrasing or summarising is improper and constitutes grounds for an objection.

8.6  OTHER OBJECTIONS Objections can be made during the opening address and closing argument, as well as during the presentation of evidence. While objections during address are not common, advocates should always be prepared to object if a serious transgression of the rules has occurred. 1  Opening addresses

a Argumentative The opening address allows counsel to tell the jury what he or she anticipates will be the evidence led in his or her case. While a brief outline of the law is usually not sufficient grounds for an objection, a detailed discussion of the law is objectionable. Further, it is improper to refer to the credibility of witnesses, inferences and deductions that the jury should draw from the evidence, or to any other matters which are argumentative in nature. Such matters should be left for closing argument.

b  Mentioning inadmissible evidence In an opening address it is improper, and therefore grounds for an objection, to mention anticipated evidence that has been, or is likely to be, ruled 2 9 30

(1894) 6 R 67. For a more detailed discussion of the rule in Browne v Dunn, see Chapter 6, Section 6.4. 301

Fundamentals of Trial Technique

inadmissible. Inadmissible evidence includes evidence which has been ruled inadmissible at a pre-​trial hearing, and evidence to which privilege attaches (including evidence of settlement negotiations held on a “without prejudice” basis).

c  Mentioning evidence that cannot be proved Counsel should only include evidence in his or her opening address that he or she believes, in good faith, to be both available and admissible. If, for example, a document has been lost or destroyed, and there is no statutory basis upon which the contents of the document can be proved,31 it is improper for counsel to refer to the contents of the document during the opening address. Further, if the introduction of certain evidence will be disputed, counsel should refrain from referring to that evidence until it has been ruled admissible.

d  Giving personal opinions It is improper, at any stage of the trial, to give personal opinions on any evidentiary matter. Phrases such as “I think” and “I believe” should be expunged from your trial vocabulary. In practice, a transgression of this rule would rarely give rise to an objection, although it may well result in an adverse comment by the trial judge.

e  Discussing the other side’s evidence In an opening address, references to the evidence you anticipate the other side will lead may be objectionable. The defendant in a civil matter, and the accused in a criminal matter, are under no obligation to lead evidence and may elect not to call any evidence. This is particularly important in a criminal case where it is highly prejudicial for a prosecutor to suggest what the accused will attempt to prove, given that the accused is generally under no obligation to prove anything. 2  Closing arguments Objections during closing argument, like objections during opening address, are uncommon, particularly in a jury trial. If counsel has erred in his or her closing argument, the judge can deal with the error in his or her summation. There are some matters, however, which constitute grounds for an objection. Such matters include:

a  Misstating the evidence It is improper to misstate or misquote evidence admitted during the trial. It is proper, however, to argue any reasonable inference or deduction you 31

302

For example, see s 48(4) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

Objections

|  CH  8

feel the jury should draw from the evidence. The jury has heard the evidence and can rely on its own recollection. Judges are reluctant, therefore, to uphold such objections unless there has been a very clear violation. Objections on this basis should be limited to the rare occasion where there has been a gross misrepresentation of the evidence.

b  Misstating the law It is improper to misstate the law to the jury. While counsel’s misstatement of the applicable law is subject to correction by the trial judge in his or her summation, this may not repair the damage and an objection during closing may be warranted.

c  Giving personal opinions It is improper for counsel to inject his or her personal opinions, beliefs and attitudes into the case. As has been noted above, comments such as “I think” and “I believe”, unless clearly and directly relevant to the issues, are objectionable.

d  Appealing to the jury’s bias, prejudice and pecuniary interest Our jury system requires the jury to reach a verdict without resorting to bias or prejudice. The jury’s verdict should be based solely on the evidence admitted during the trial, considered together with the judge’s instructions on the applicable law. To appeal to a jury’s potential bias or prejudice, or to suggest directly or indirectly that the jury may be personally affected by a particular verdict, is improper.

e  Prejudicial arguments An argument may be improper if it contains prejudicial material that has little or nothing to do with the evidence. For example, in a criminal case it is improper to argue that the accused will commit more crimes if acquitted, or that the jury has a moral obligation to protect society from the accused. In a civil case, it is generally improper to refer to the wealth or poverty of the parties, or to the effect of a judgment on insurance rates and other indirect costs of living. It is improper to ask the jury to put itself in the shoes of any of the parties, since this is nothing more than a thinly disguised attempt to persuade the jury to assess the evidence on an emotional, rather than a rational, basis.

f  Personal attacks It is always improper to engage in personal attacks on counsel for the other side or the other parties in the trial. In addition to being improper and objectionable, personal attacks are a strategic error. Unless it is directly relevant to the issues in the case, commenting on a party’s race, religion, ethnicity, political affiliations, sexual orientation or other personal characteristics is highly improper and will have a negative impact on the advocate’s credibility. 303

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8.7  COMMON PROBLEMS There are a number of recurring problems that advocate encounter when making, arguing and responding to an evidentiary objection. The most common problems are discussed below. 1  Not making an objection When making an objection, make sure that you tell the judge that you are objecting. Stand up and say, “Your Honour, I object to my learned friend’s question”, or something similar. While this appears to be self-​evident, many inexperienced advocates frequently start by asking a question –​“Your Honour, isn’t what the witness said to her father hearsay?” –​or by making a statement –​ “Your Honour, I fail to see how this line of questioning is relevant”. Such questions and statements do not start the objections process, and a judge likely will either ignore you, or ask if you have an objection to make. Always be clear that you are objecting, and look and sound confident when making the objection. 2  Not stating the reasons for the objection Stating that you have an objection is just the start of the objections process. To complete the process, you must state concisely and clearly the specific evidentiary ground on which your objection is based. If there is a jury, and the ground on which your objection is based should not be stated in the presence of the jury, ensure that this is made clear to the judge before the reasons for the objection are stated. For example, in a uniform Evidence Act jurisdiction, s 189(2) requires that objections relating to evidence of an admission, or to improperly or illegally obtained evidence, must be determined in the jury’s absence. While, for other types of evidentiary objections, the judge has the discretion to allow the jury to remain in the courtroom while the objection is argued, the general rule is that a jury should not be present.32 Example 8.18 Q. Constable Singh, what did Mr Panas say to you immediately after you arrested him? Counsel: Your Honour, I object to my learned friend’s question for reasons that fall within s 189(2) of the Evidence Act 2001 (Tas). Judge: Members of the jury, would you please retire to the jury room while I deal with the objection. [Jury retires] Judge: Yes Counsel. Counsel: Your Honour, when Constable Singh arrested Mr Panas, he failed to administer the caution as required by s 139 of the Evidence Act. Consequently, any evidence arising from the conversation on which the prosecution now  wishes to rely was obtained in contravention of s 138(1)(a) of the Act…

32

304

See s 189(4) of the Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).

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3  Not raising objections at the earliest opportunity If you are aware that the other side is going to lead evidence which warrants a valid objection, raise the objection with the judge and counsel for the other side at the earliest opportunity. This is particularly important if the matter is being tried before a jury. Often the judge will ask counsel whether there are any matters to discuss before the jury is brought in. This is an appropriate time to raise an objection and seek a ruling. 4  Not making timely objections To be effective an objection must be timely. The objection should be made as soon as the grounds become apparent, which usually is before the jury hears the testimony or sees the exhibit. If the grounds for the objection do not become apparent until after the evidence or exhibit has been seen by the jury, you should still make the objection and, if it is upheld, ask the judge to strike the evidence and instruct the jury to disregard it. While not ideal, it puts your objection on the record should the matter go to appeal. 5  Not getting a ruling If you make an objection, make sure that the judge rules on that objection. If the judge does not make a clear ruling, request the he or she do so. If the judge determines that your objection is premature, and indicates that a ruling will be made if and when the evidence is tendered, renew your objection and request a ruling when the evidence is later offered during the trial. 6  Not establishing yourself as the evidence expert To be an effective advocate you must master the rules of evidence. You should make objections only when you have a solid evidentiary foundation for the objection, and be prepared to concede the point when the other side makes a valid objection. If the judge is confident that you understand the rules of evidence, and do not make frivolous objections, you will earn the judge’s trust. Close calls often go to the advocate who has established himself or herself as the evidence expert.

8.8 CONCLUSION Objections are an integral part of any trial and, when raised and argued effectively, can be a potent weapon in your trial arsenal. Keep in mind, however, that jurors view objections as a tactic employed by advocates to keep evidence from them. Tactically, it is best to minimise your use of objections during trial and attempt to resolve problems in advance through pre-​trial 305

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motions. In court, once you anticipate a problem, attempt to raise the matter out of the presence of the jury whenever possible. If you must object, be fairly confident that your objection will be upheld or that the objection is necessary to preserve the record. Utilising such an approach can pay dividends when the jury is deliberating on the verdict.

306

CHAPTER 9

Trial Ethics and Etiquette

9.1 INTRODUCTION....................................................................................... 307 9.2 ADVOCATE AS AN OFFICER OF THE COURT............................................. 308 9.3 DEALING WITH WITNESSES...................................................................... 313 9.4 THE BOUNDARIES OF VIGOROUS CROSS-​EXAMINATION......................... 316 9.5 COURTROOM ETIQUETTE......................................................................... 317 9.6 CONCLUSION.......................................................................................... 320

9.1 INTRODUCTION An advocate owes a duty to his or her client, the court, the other side, the State and to him or herself. In the words of Lord Macmillan, “to maintain a perfect poise amidst these various and sometimes conflicting aims is no easy feat”.1 When determining the most ethical course to follow in any given situation, the first port-​of-​call is the rules of professional conduct and practice in force in the jurisdiction in which you practise. New South Wales and Victoria have adopted the Legal Profession Uniform Conduct Rules made under the Legal Profession Uniform Law. These rules apply to solicitors and barristers in the jurisdictions that have adopted the uniform law.2 Under the scheme, there are specific rules promulgated for solicitors and for barristers. In this chapter, reference generally will be made to the Uniform Barristers’ Rules. When confronted with an ethical question in practice, however, reference should be made to the professional conduct rules in force in the jurisdiction in which you practise, and which apply to your particular practice as a barrister or solicitor.3

1

2

3

Lord Macmillan, Law and Other Things (London, 1937), 185. See also Lord Templeton, “The Advocate and the Judge” (1999) 2 Legal Ethics 11 at 15; Meek v Fleming [1961] 2 QB 366 at 379. In Tasmania, the Uniform Barristers’ Rules apply to the practice of a barrister: Legal Profession (Barristers) Rules, r 3, which adopts with minor amendment the Legal Profession Uniform Conduct (Barristers) Rules (NSW). ACT:  Legal Profession (Solicitors) Conduct Rules 2015; Legal Profession (Barristers) Rules 2014; NSW: Legal Profession Uniform Legal Practice (Solicitors) Rules 2015; Legal Profession 307

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Reference to the professional conduct rules may provide the answer the advocate seeks. Often, however, the rules are worded in such a way as to leave advocates with some discretion. Further, the ethical obligations owed by advocates themselves may be in conflict. In such situations, the professional conduct rules may provide little or no guidance on how to resolve the conflict.4 It is important to emphasise, therefore, that the professional conduct rules are an appropriate starting point, but difficult ethical problems may require more than mere reference to the relevant rules. In this chapter some of the most common ethical dilemmas facing an advocate are discussed. The focus is on ethical issues arising within the context of a trial, rather than pre-​trial. This discussion is not intended to be an exhaustive survey of the topic. For that, reference should be made to books which focus on lawyers’ professional responsibility.5

9.2  ADVOCATE AS AN OFFICER OF THE COURT An advocate’s paramount, or overriding, duty is to the court. This duty, reflected in the barristers’ rules in all jurisdictions,6 was famously articulated by Lord Reid: Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court ….7

The advocate’s ethical duty to the court, while easy to express, is often difficult to implement in practice. It requires an advocate “to accumulate as much knowledge as possible about the case, to hold it in confidence, and

4 5 6

7 308

Uniform Conduct (Barristers) Rules 2015; NT: Rules of Professional Conduct and Practice; Barristers’ Conduct Rules; Qld: Australian Solicitors Conduct Rules 2012; 2011 Barristers’ Rule; SA: Australian Solicitors’ Conduct Rules 2015; South Australian Bar Association Inc, Barristers’ Conduct Rules; Tas: Rules of Practice 1994; Legal Profession (Barristers) Rules 2016; Vic: Legal Profession Uniform Legal Practice (Solicitors) Rules 2015; Legal Profession Uniform Conduct (Barristers) Rules 2015; WA: Legal Profession Conduct Rules 2010; Western Australian Barristers’ Rules. M Blake, A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167 at 171–​172. See, for example, G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017). ACT:  Legal Profession (Barristers) Rules 2014, r 1; NSW: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 4(a), 23; NT: Barristers’ Conduct Rules, r 1; Qld: 2011 Barristers’ Rule, r 5(a); SA: South Australian Barristers’ Rules, r 5(a); Tas: Legal Profession (Barristers) Rules, r 3, which adopts, inter alia, r 4(a) and r 23 of the Legal Profession Uniform Conduct (Barristers) Rules (NSW); Vic: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 4(a), 23; WA: Western Australian Barristers’ Rules, r 5(a). Rondel v Worsley [1969] 1 AC 191 at 227.

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yet never mislead the court”.8 Specific situations in which the duty to the court may conflict with other duties, and how an advocate might address such conflict, are discussed below. 1  Defending a person who has confessed guilt An advocate to whom a criminal defendant has made a clear confession of guilt may represent that defendant, even if the defendant intends to plead “not guilty”.9 The parameters of such representation are set out in the professional conduct rules. For example, the Uniform Barristers’ Rules, r 80, provides: A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty: (a)

should, subject to the client accepting the constraints set out in (b)-​(h) but not otherwise, continue to act in the client’s defence,

(b)

must not falsely suggest that some other person committed the offence charged,

(c)

must not set up an affirmative case inconsistent with the confession,

(d)

must ensure that the prosecution is put to proof of its case,

(e)

may argue that the evidence as a whole does not prove that the client is guilty of the offence charged,



(f)

may argue that for some reason of law the client is not guilty of the offence charged,

(g)

may argue that for any other reason not prohibited by (b) or (c) the client should not be convicted for the offence charged, and

(h)

must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.

The rule allows an advocate to argue that the evidence presented by the prosecution does not prove beyond reasonable doubt that the defendant is guilty of the crime, or that for some other legal reason, such as insanity, the defendant should not be found guilty.10 An advocate also is allowed to test the evidence adduced by the prosecution, usually by cross-​examining witnesses called by the prosecution. An advocate must ensure, however, that the testing of evidence does not cross the line by setting up an affirmative case inconsistent with the confession. For the advocate, determining where the boundary lies in any particular case is the most difficult ethical issue.11 Consider, for example, the story told by the late Irving Younger in his classic lecture on cross-​examination. It concerns a man charged with assault 8 9

10 11

M Blake, A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167. G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [18.105]. See also M Blake, A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167 at 172-​174. G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [18.107]. M Blake, A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167 at 173. 309

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for allegedly biting off another man’s nose.12 The prosecution’s case rests on the evidence of a single eye-​witness who testified in examination-​in-​ chief that the accused committed the act charged. The cross-​examination proceeds as follows: Q. Where did it happen? A. In the middle of the field. Q. Where were you? A. On the edge of the field. Q. What were you doing? A. Bird watching. Q. Bird watching? A. Yeah, bird watching. Q. Where were the birds? A. In the trees. Q. Where were the trees? A. Around the field. Q. So you were looking at the birds in the trees, right? A. Yeah. Q. And the people were fighting in the middle of the field, right? A. Right. At this point Younger strongly advises the cross-​examiner to stop, sit down and assert in closing argument that the eye-​witness could not have seen the assault as his back was to the combatants. While Younger was using the story to illustrate the technique, discussed in Chapter 6, that a cross-​examiner should not ask the “one question too many”, for our purposes assume that the defendant has admitted his guilt to defence counsel and that defence counsel stops at this point. Has counsel crossed the ethical boundary and set up an affirmative defence? We suggest that the answer is “no”. The prosecution has the opportunity to re-​examine and ask the witness how he knows the defendant bit off the victim’s nose, receiving the answer, “I saw him spit it out”. Ascertaining where the ethical boundary lies cannot be divorced from the adversarial context in which a trial proceeds. An advocate is entitled to test the strengths of the evidence led by the prosecution. This may include testing the witness’s ability to observe, whether there is any reason for exaggeration and whether the witness is biased or has a motive to be untruthful.13

12

13

310

I Younger, “The Ten Commandments of Cross-​examination” (Videotape, National Institute for Trial Advocacy, Basic Concepts in the Law of Evidence Series, 1975). See also L McCrimmon, “Trial Advocacy Training in Law School” (1994) 5 Legal Ed Rev 1 at 16. Under the uniform Evidence Acts, s 103, such evidence may be admitted if it “could substantially affect the assessment of the credibility of the witness”: Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). The Evidence Act 2011 (ACT) uses the words “witness’s credibility” instead of “credibility of the witness”.

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Going further and setting up an affirmative defence or attempting to discredit the witness’s character crosses the line.14 2  Where the advocate believes that perjury has been or will be committed The rules of professional conduct in force in each Australian jurisdiction provide guidance to advocates who become aware that their client has committed, or intends to commit, perjury, procured a witness to commit perjury, falsified a tendered document or suppressed material evidence. For example, r 79 of the Uniform Barristers’ Rules provides that: A barrister who, as a result of information provided by the client or a witness called on behalf of the client, is informed by the client or the witness during a hearing or after judgment or decision is reserved and while it remains pending, that the client or a witness called on behalf of the client: (a)

has lied in a material particular to the court or has procured another person to lie to the court;

(b)

has falsified or procured another person to falsify in any way a document which has been tendered; or

(c)

has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;

must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the barrister to do so but otherwise must not inform the court of the lie, falsification or suppression.

This guidance highlights the difficulties in attempting to balance an advocate’s duty to the client with the other duties he or she owes. If the client does not give authority to inform the court, any attempt by the advocate to rely on the perjured evidence in his or her cross-​examination of the other side’s witnesses, or in opening address or closing argument, will mislead the court. In the absence of the client’s authority to tell the court of the lie or falsification, the advocate generally should withdraw from the case.15 If withdrawal is not possible, the advocate should draw the case to a close without any reference to the perjured evidence. When determining whether perjury has been or will be committed, a tendered document has been falsified or material evidence suppressed, it is important to emphasise the difference between fact and opinion. The advocate must know that the client has, or intends to, commit the proscribed

14 15

M Blake, A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167 at 173. Perpetual Trustee Company Limited v Cowley [2010] QSC 65 at [130]-​[132]. Generally, see G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [17.130]. 311

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conduct. An advocate fails in his or her duty to the client if such belief is not based on admissions by the client or other objective evidence.16 Mere speculation is an insufficient foundation. 3  Correcting errors of law and fact

a Law The need for thorough preparation before the advocate walks into the courtroom has been stressed in earlier chapters. Good advocates “must do what they can to ensure that the law is applied correctly to the case”,17 and must not misrepresent the law to the court.18 But what if case or statutory authority that goes against your case has not been raised by the other side? Does an advocate have an ethical obligation to bring such authority to the court’s attention? The simple answer is “yes”. The professional conduct rules provide that an advocate must bring to the attention of the court “at an appropriate time in the hearing of the case and if the court has not yet been so informed of that matter”19 any: • binding authority; • decision of the Full Court of the Federal Court of Australia, a Court of

Appeal of a Supreme Court of a State or Territory or a Full Court of a Supreme Court, which has not been disapproved; or • applicable legislation.

b Fact It has been suggested that, “whereas the lawyer’s duty to the court is uppermost on matters of law, the duty to the client comes to the fore on issues of fact”.20 While an advocate has an ethical duty not to mislead the court, the professional conduct rules limit the duty on an advocate to correct errors of fact not made by him or her. The Uniform Barristers’ Rules, for example, provide:21 A barrister does not make a false or misleading statement to an opponent simply by failing to correct an error on any matter stated to the barrister by the opponent. 16 17 18 19

20 21 312

M Blake, A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167 at 176. Re Gruzman (1968) 70 SR (NSW) 316 at 323. G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [17.75]. 2011 Barristers’ Rule (Qld), r 31. See also ACT: Legal Profession (Barristers) Rules 2014, r 25; NSW: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 29; NT: Barristers’ Conduct Rules, r 25; SA: South Australian Barristers’ Rules, r 31; Tas: Legal Profession (Barristers) Rules, r 3, which adopts, inter alia, r 29 of the Legal Profession Uniform Conduct (Barristers) Rules (NSW); Vic: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 29; WA: Western Australian Barristers’ Rules, r 31. M Blake, A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167 at 178. NSW:  Legal Profession Uniform Conduct (Barristers) Rules 2015, r 51; Tas: Legal Profession (Barristers) Rules, r 3, which adopts, inter alia, r 51 of the Legal Profession Uniform

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A further limitation on the duty of an advocate not to mislead the court arises in criminal proceedings. A defence lawyer, in the words of Lord Diplock, may: consistently with the rule that the prosecution must prove its case … passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barrister’s knowledge.22

Failure of the prosecution accurately to state the defendant’s prior convictions is perhaps the most common example. There is no ethical obligation on defence counsel to supply the information the prosecution, for whatever reason, omitted to provide to the court. Defence counsel, however, should not ask prosecution witnesses whether the accused has any previous convictions in the hope that the witness will provide a negative answer.23 While an advocate has no obligation to correct errors of fact concerning his or her client’s character or past, or (in criminal proceedings) within the knowledge of defence counsel, advantage should not be taken of such errors by relying, either directly or indirectly, on the inaccurate statements. If an advocate were to so rely, for example, in addresses or examinations of witnesses, he or she would actively mislead the court.24 In civil proceedings, there is a duty to correct errors of fact in some circumstances. Rule 26 of the Uniform Barristers’ Rules provides: A barrister must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-​law or legislation is to the knowledge of the barrister contrary to the true position and is believed by the barrister to have been made by mistake.

A similar rule applies to barristers practicing in those jurisdictions that have not yet adopted the uniform scheme.25

9.3  DEALING WITH WITNESSES Advocates have an ethical obligation to protect the integrity of evidence. It follows, therefore, that advocates must ensure that their dealings with

22 23

24 25

Conduct (Barristers) Rules (NSW); Vic: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 51. Saif Ali v Sidney Mitchell & Co [1980] AC 198 at 220. ACT:  Legal Profession (Barristers) Rules 2014, r 30; NSW: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 33; NT: Barristers’ Conduct Rules, r 35; Qld: 2011 Barristers’ Rule, r 35; SA: South Australian Barristers’ Rules, r 35; Tas: Legal Profession (Barristers) Rules, r 3, which adopts, inter alia, r 33 of the Legal Profession Uniform Conduct (Barristers) Rules (NSW); Vic: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 33; WA: Western Australian Barristers’ Rules, r 35. M Blake, A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167 at 178. ACT:  Legal Profession (Barristers) Rules 2014, r 2; NT: Barristers’ Conduct Rules, r 23; Qld: 2011 Barristers’ Rule, r 28; SA: South Australian Barristers’ Rules, r 28; WA: Western Australian Barristers’ Rules, r 28. 313

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witnesses do not impact negatively on the integrity of the evidence witnesses give. Some ethical obligations guiding an advocate’s dealings with witnesses are discussed below. 1  Prohibition on coaching witnesses Preparing a witness to give evidence at trial and coaching a witness are distinct activities. All advocates, as discussed in Chapter 1, should prepare the witnesses they intend to call at trial. Witness preparation, however, should not include advising or suggesting to the witness that false evidence should be given.26 Further, an advocate: must not suggest or condone another person suggesting in any way to any prospective witness (including a party or the client) the content of any particular evidence which the witness should give at any stage of the proceedings.27

Finally, an advocate should not tell a witness to be forgetful and evasive.28 Advocates can prepare witnesses for the type of questions they will be asked, both in examination-​in-​chief and cross-​examination, and the matter in which such questions may be asked.29 Further, when preparing a witness to give evidence, advocates can tell witnesses that they are under an obligation to tell the truth when giving evidence. They also can question and test the version of evidence to be given by the witness, and draw the witness’s attention to inconsistencies or other difficulties with the evidence. In so doing, however, advocates must not encourage the witness to give evidence different from the evidence the witness believes to be true.30 2  No property in a witness Generally, an advocate may confer with any witness other than a party (civil case) or the accused (criminal case). This general proposition applies regardless of whether the other side is represented, and has subpoenaed or otherwise will be calling the witness. It also applies to expert witnesses.31 26 27 28 29 30

31

314

Law Council of Australia, Model Rules of Professional Conduct and Practice (March 2002), r 17.1. Law Council of Australia, Model Rules of Professional Conduct and Practice (March 2002), r 17.2. G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [17.165]. G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [17.165]. ACT:  Legal Profession (Barristers) Rules 2014, r 44; NSW: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 70; NT: Barristers’ Conduct Rules, r 44; Qld: 2011 Barristers’ Rule, r 69; SA: South Australian Barristers’ Rules, r 69; Tas: Legal Profession (Barristers) Rules, r 3, which adopts, inter alia, r 70 of the Legal Profession Uniform Conduct (Barristers) Rules (NSW); Vic: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 70; WA: Western Australian Barristers’ Rules, r 69. G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [17.175].

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This is not to suggest that the witness is under any obligation to talk to the advocate. Whether they choose to do so is a matter for the witness, and a lawyer should not prevent or discourage a witness from conferring with the other side’s lawyer or another person involved in the proceedings.32 It is ethical, however, for a lawyer to tell a witness that he or she is under no obligation to agree to confer or be interviewed, or to advise the witness about relevant obligations of confidentiality.33 3  Conferring with witnesses under cross-​examination Once the cross-​examination of a witness has begun, the side who called the witness (including the barrister and instructing solicitor) must not confer with the witness on any matter related to the proceedings while the witness remains under cross-​examination. This prohibition applies to all witnesses, including the client.34 The limited exceptions to this general prohibition are when:35 • the cross-​examiner has consented beforehand with the advocate confer-

ring with the witness; or • the advocate:

– believes on reasonable grounds that special circumstances require such a conference (including the need for instructions on a proposed compromise); – has, if possible, informed the cross-​examiner beforehand of the intention to confer with the witness; and – otherwise informs the cross-​examiner as soon as possible after the conference has taken place. In your pre-​trial preparation of witnesses, ensure that you inform them of this ethical obligation. Remind them again before they are called at trial to give their evidence-​in-​chief. Witnesses will be desperate to communicate

32 33

34 35

G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [17.175]. ACT:  Legal Profession (Barristers) Rules 2014, r 50; NSW: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 75; NT: Barristers’ Conduct Rules, r 50; Qld: 2011 Barristers’ Rule, r 74; SA: South Australian Barristers’ Rules, r 74; Tas: Legal Profession (Barristers) Rules, r 3, which adopts, inter alia, r 75 of the Legal Profession Uniform Conduct (Barristers) Rules (NSW); Vic: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 75; WA: Western Australian Barristers’ Rules, r 74. G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, Thomson Reuters Law Book Co, 2017), [17.170]. ACT:  Legal Profession (Barristers) Rules 2014, r 48; NSW: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 73; NT: Barristers’ Conduct Rules, r 48; Qld: 2011 Barristers’ Rule, r 72; SA: South Australian Barristers’ Rules, r 72; Tas: Legal Profession (Barristers) Rules, r 3, which adopts, inter alia, r 73 of the Legal Profession Uniform Conduct (Barristers) Rules (NSW); Vic: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 73; WA: Western Australian Barristers’ Rules, r 72. 315

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with you during breaks, often just to be assured that they are performing well. If the cross-​examination extends over days or weekends, they may be both confused and angry if you refuse to discuss their evidence with them.

9.4  THE BOUNDARIES OF VIGOROUS CROSS-​EXAMINATION At common law the trial judge may disallow improper or offensive questions. An example of an improper question “is one which is hectoring, insulting, abusive, browbeating, badgering, intimidating or bullying, or which causes needless embarrassment, shame, anger, harassment, or confusion to the witness”.36 In most uniform Evidence Act jurisdictions, the obligation on the trial judge to limit improper or offensive questions is greater. For example, s 41 of the Evidence Act 1995 (Cth) provides: The court must disallow a question put to a witness in cross-​examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question): (a)

is misleading or confusing; or

(b)

is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

(c)

is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

(d)

has no basis other than a stereotype (for example a stereotype based on the witness’s sex, race, ethnicity, age, or mental, intellectual or physical disability).37

Rather than providing for a discretion to disallow an improper or offensive question, the Act imposes a duty. The section then provides a non-​ exhaustive list of factors the court may take into account in determining whether the question is disallowable. The Evidence Act 1929 (SA), s 25, also imposes a duty on the court to disallow “inappropriate questions” as defined in s 25(1). The uniform Evidence Act in force in Victoria and the Northern Territory only imposes a duty on the judge to disallow improper questions (as defined in the section) if the witness is vulnerable. If the witness is not vulnerable, the court has a discretion to disallow the question.

3 6 37

316

J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17505]. See also s 41 of the Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence Act 2001 (Tas). Cf s 41 of the Evidence Act 2008 (Vic) and the Evidence (National Uniform Legislation) Act 2011 (NT). See also Evidence Act 1977 (Qld) s 21. In Western Australia, the Evidence Act 1906, s 25, places restrictions on cross-​examination as to credit, as does the Evidence Act 1977 (Qld), s 20. Reference also should be made to the specific statutory provisions dealing with the cross-​examination of victims of sexual assault: see J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [19070]-​[19090].

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A cross-​examiner also should not inject personal views and editorial comments into questions38 –​a technique often used in television courtroom dramas. Such opinion and comment are irrelevant to the facts in issue, usually impossible for the witness to address and may unduly influence the jury.

9.5  COURTROOM ETIQUETTE Courtroom etiquette refers to the customary behaviour of members of the legal profession towards each other in court. While often referred to as “rules”, and will be so described here, they are in fact guidelines for conduct developed over centuries of court practice. To non-​lawyers (and even some lawyers), rules of courtroom etiquette often appear to be odd and archaic. They are familiar to all lawyers practising in common law jurisdictions, however, and are generally the same or similar in all Australian jurisdictions. Rules of etiquette are designed to reflect the seriousness of matters before the court, accord respect to all involved in court proceedings, preserve courteous relations between advocates and between advocates and the court, and maintain public respect for lawyers in the administration of justice. In this section, we discuss some of the fundamental rules of courtroom etiquette. It is not our intention to cover all aspects of the topic, but rather to give a “starter’s guide” for the inexperienced advocate. This information should be augmented by reference to court practice notes in the jurisdiction in which you practise, and by observing the performance of respected advocates in court. 1 Courtesy It has been suggested that “the rules of etiquette are few in number and indeed they can commonly be brought down to one simple statement: always be courteous”.39 This encompasses courtesy to the judge, counsel for the other side, all witnesses, court staff and members of the public. Arrogance is the way poor advocates compensate for a lack of skill or experience. They assume that being rude and condescending to a witness in cross-​examination enhances their status as a “take no prisoners” advocate. Every objection is argued as though counsel for the other side is an idiot; as is the judge if he or she delivers an adverse ruling. Courtesy is the hallmark of the good advocate. If you have to take a hard line with a witness in cross-​ examination or vigorously argue an

3 8 39

J D Heydon, Cross on Evidence (11th Australian ed, LexisNexis Butterworths, 2017), [17505]. J Glissan, Advocacy in Practice (6th ed, LexisNexis Butterworths, 2015), [10.2]. 317

Fundamentals of Trial Technique

evidentiary issue, do so courteously. Leaving etiquette aside, it is simply more persuasive. 2  Forms of address All judges of the supreme courts, federal courts and High Court are referred to as “Justice”, whereas judges of the district and county courts are referred to as “Judge”. In court, judges are referred to as “Your Honour”, as are magistrates unless the traditional use of “Your Worship” still applies. Masters are referred to as “Master” in some jurisdictions and “Your Honour” in others. Heads of jurisdiction are addressed as “Your Honour the Chief Justice”, “Your Honour the President”, “Your Honour the Chief Judge” and “Your Honour the Chief Magistrate” (or “Your Worship the Chief Magistrate” in some jurisdictions). In a non-​courtroom setting, all judges of state and federal courts are referred to as “judge”. The terms used by barristers when referring to each other in court are “my learned friend” or “my friend”. While traditionally not applied to solicitor advocates or police prosecutors, this distinction has largely disappeared. Alternatives are the use of surnames, but not first names, or “counsel for the plaintiff”, “counsel for the defendant”, etc. 3  When to stand Unless the etiquette of the particular court dictates otherwise (for example, proceedings in the Children’s Court), stand when addressing the judge, the witness in examination-​in-​chief, cross-​examination or re-​examination, and the jury in opening address and closing argument. This applies equally to making an objection. When making objections advocates are addressing the judge and, therefore, should stand. If the other side makes an objection, sit while the court hears the argument and deals with the objection. Advocates also should stand when being addressed by the judge. When the judge enters the courtroom, stand and remain standing until he or she sits and the court officer directs those present to sit. Bow to the judge before sitting down, and when entering and leaving the courtroom when the judge is in court. The same rules apply to proceedings in the Magistrates Court. 4 Bar table Where an advocate sits at the bar table is determined by seniority. The Attorney-​General and Solicitor-​General (or their representatives) have precedence, followed by Queen’s Counsel/​ Senior Counsel. Queen’s Counsel/​Senior Counsel usually sit closer to the middle of the bar table. In jury trials, the prosecutor or plaintiff’s counsel sits closest to the jury, whereas in non-​jury trials the prosecutor or plaintiff’s counsel sits closest to the witness box. 318

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In Australian courts, advocates remain behind the bar table when addressing the court, the jury and when examining witnesses. Documents are handed to the judge, witness or jury by court officers, not the advocate. Approaching a witness, judge or jury can be done only with the court’s permission, and the advocate should return to the bar table once the task is completed. The bar table should be occupied when the judge is in the court. If you are the last advocate in the court and the judge is still sitting, wait until he or she leaves or ask for permission to leave. At other times, it is not necessary to ask for permission to leave the court.40 5  Discussions with the judge outside of court Cases generally are conducted in open court with all parties present. You should not discuss the case with the judge, magistrate or tribunal member outside of court or in judge’s chamber unless counsel for the other side is present, or has consented to the discussion. Further, appearances are important. If you should run into the judicial officer hearing your case at a social function or supermarket, avoid one-​on-​one discussions until the decision in the case has been handed down. In smaller jurisdictions such interaction often is unavoidable, but the rule still applies. Do not discuss any aspect of the case with the judicial officer without the other side being present. 6  The wig and robe In England, the earliest reference to a judicial robe “occurs in a Close roll dated 1292”.41 The necessity of judges and lawyers to cover their heads when in court “probably coincided with the evolution of the lawyer from priest or deacon to laymen” in the 13th century, and such cover took the form of a close-​fitting cap.42 By the early 16th century, the courtroom attire of lawyers, including the wearing of “gowns of a sad colour”, was stipulated in legislation.43 The origin of the wig worn by judges and barristers is easier to trace. Adopted by both the Bench and the Bar during the reign of Charles II (1649-​ 1685), the “modern” pig-​tail and bob wigs were common by the reign of George III (1760-​1820). The “Bench and Bar, having once adopted the peruke [wig], were much too conservative to follow any change of fashion”.44 This

40 41 42 43

44

J Glissan, Advocacy in Practice (6th ed, LexisNexis Butterworths, 2015), [10.7]. “An English Judge’s Dress” (1904) 3 Can L Rev 321 at 323. “An English Judge’s Dress” (1904) 3 Can L Rev 321 at 323. R McQueen, “Of Wigs and Gowns: A Short History of Legal Dress in Australia” (in R McQueen, W Wesley Pue), Misplaced Traditions: British lawyers and colonial peoples (The Federation Press, 1999), p 32. “An English Judge’s Dress” (1904) 3 Can L Rev 321 at 328. 319

Fundamentals of Trial Technique

fashion is still found, with minor evolutionary changes, in many Australian State and Territory courts, and for barristers in the High Court.45 Whether to robe and wig is of concern only to those licensed to practise as a barrister, and when to robe and wig varies from jurisdiction to jurisdiction and from court to court. Reference should be made to the attire policy of the particular court in which you are appearing (which often can be found on the court’s website). If in doubt, ask another advocate who practises in the jurisdiction, or the judge’s associate. It is becoming increasingly common for wigs to be worn by barristers only in criminal matters before the district or county and supreme courts. In civil matters, wigs are often dispensed with; however, robes are still worn. Neither wigs nor robes are worn in federal courts (other than the High Court).

9.6 CONCLUSION Trial ethics and courtroom etiquette are important. The adversary system is predicated on the assumption that those licensed to appear in the nation’s courts will make ethical decisions when conducting trials. Blake and Ashworth note: One practical reason why ethics are important resides in the indeterminacy of legal rules, and indeed the absence of legal rules on some points. Practitioners are inevitably left with discretion, which requires a choice or judgement to be made. Where there are professional codes of conduct, they do not cover all areas and they sometimes lack specificity.46

The choice or judgments made in a case can have a profound effect on an advocate’s practice and reputation. At every stage of the trial, ethical dilemmas can arise. If reference to the professional conduct rules or literature on trial ethics fails to resolve the matter, seek the assistance of those more experienced. Collegiality is one advantage of being part of a profession, and in the area of legal ethics such collegiality is crucial. Further, many law societies and bar associations provide assistance to those seeking urgent ethical guidance, and provide information on how to access such guidance on their websites. A good advocate is both competent and ethical. These two attributes are inextricably entwined. Knowledge of, and adherence to, the rules of

45

46

320

For an interesting debate on the pros and cons of the wig and gown, see the debate before a Standing Committee of the British House of Commons reported in: “Lawyers Wigs and Gowns” (1946-​1948) 7 N Ir Legal Q 225. In addition to the wig and robe, a bar jacket, dark trousers or skirt, and tabs are also worn; the latter being “all that is left of the mighty ruffs of Elizabeth’s reign”: “An English Judge’s Dress” (1904) 3 Can L Rev 321 at 329. M Blake, A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 167 at 187.

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professional conduct and the practice directions of the court are the minimal ethical requirements. Courtesy to the court, fellow advocates, parties and witnesses, coupled with honest self-​reflection on your practice as an advocate and a willingness to seek assistance when in doubt, are the hallmarks of an ethical trial lawyer.

321

INDEX A Admissibility of evidence business records, 130–​133 character witness, 148–​154 conversations, 120–​122 exhibits, 168–​198 statements, 127–​130 telephone conversations, 122–​125 Adversary system, 1 Advocate addressing court, 27–​28 conduct during trial, 27–​28 correcting errors of law and fact, 312–​313 courtroom etiquette, 317–​320 credibility of, 40 dealings with witnesses, 313–​316 conferring with witnesses under  cross-​examination, 315–​316 no proper ty in a witness, 314–​315 prohibition on coaching witnesses, 314 defending a person who has confessed guilt, 309–​311 demeanour during cross-​examination,  220 duty to the court and client, conflict of, 308–309 correcting errors of law and fact, 312–​313 defending a person who has confessed guilt, 309–​311 perjury has or will be committed, 311–​312 dynamism, 39 ethical duty, 308–​313 examination-​in-​chief,  98 four tools, 1 obligations, 308–​313 officer of the court, 308–​313 opening address, 58–​59 perjury has or will be committed, 311–​312 self-​evaluation guide,  28–​30

Agreed facts, 156–​157 Argument judicial interpretation of what constitutes,  55–​56 opening address, in, 55 example, 56 Argumentative witness cross examination of, 245–​247 B Browne v Dunn, rule in, 57, 65, 211–​212, 231, 248, 254, 301 Business records exhibits, 190–​193 foundations for admission, 130–​133 C

Challenges to juries array, to, 33 cause, for, 34–​36 exercising, 33–​34,  35–​36 peremptory,  33–​34 phases of process, 35–​36 poll, to, 33 Character witness foundations for admissibility, 150–​151 specific character traits, evidence of, 149 tactics, 151–​154 truthfulness, evidence of, 150 types, 151–​152 untruthfulness, evidence of, 150 Closing arguments admissions, use of, 268 analogies, 261 argue, 257 characteristics, 256–​257 civil proceedings, 278–​282 conclusion, 273 content, 264–​273

323

Fundamentals of Trial Technique Closing arguments — cont counsel’s opinions, exclusion of, 258–​259 counsel’s self-​evaluation guide, 28–​30 criminal proceedings, 274–​277 damages, 270–​271 definition, 255 discovery, 269 disputed facts, presentation of, 266–​269 efficiency, 257 elements, 256–​257 examples, 274–​282 exhibits, 259, 268 first three minutes, 256 impressions, 256 instructions, use of judge’s, 260 introduction, 264–​265 issues, 265–​266 judge’s instructions, 272–​273 labels, 257–​258 liability, establishment of, 269 listeners’ perspective, 256–​257 meaning, 255 notes, use of, 262–​263 objections, 302–​303 organisation, 264–​273 overstatement, 263 pleadings, 269 preparation of, 15–​17 presentation style, 263–​264 quantum of damages sought, 66, 270 refuting the opposition’s case, 271–​272 reply, leave to, 273 rhetorical questions, 260–​261 stories, 261 strategies, 257–​264 strengths, 261 structure, 264–​273 themes, 257–​258 theory of the case, 258 trial notebook, 9 understatement, 263 visual aids, 259 weaknesses, 261–​262 Commercial litigation business records, 130–​133 election for trial by judge alone, 32 Communication attributes of effective, 40, 42–​43 cues, 44 effective messages, 42–​43 forewarning, 44

324

inoculation, 44 non-​verbal,  84 order effects, 44 plain English, 43 repetition, 44 rhetorical questions, 44 two-​sided argumentation, 45 Computers conversations based on, 126 laptop, use of, 4 Conduct counsel, of, during trial, 27–​28 Conversations admissions, 121 computer-​based,  126 evidence, admit into, 121–​122 foundations for admission, 120–​122 hearsay statements, 120–​121 related representations, 120 telephone, 122–​125 uniform Evidence Act, 120 Counsel addressing court, 27–​28 conduct during trial, 27–​28 correcting errors of law and fact, 312–​313 courtroom etiquette, 317–​320 credibility of, 40 dealings with witnesses, 313–​316 conferring with witnesses under cross-​examination, 315–​316 no property in a witness, 314–​315 prohibition on coaching witnesses, 314 defending a person who has confessed guilt, 309–​311 demeanour during cross-​examination,  220 duty to the court and client, conflict of, 308–309 correcting errors of law and fact, 312–​313 defending a person who has confessed guilt, 309–​311 perjury has or will be committed, 311–​312 dynamism, 39 ethical duty, 308–​313 examination-​in-​chief,  98 four tools, 1 obligations, 308–​313 officer of the court, 308–​313 opening address, 58–​59

Index perjury has or will be committed, 311–​312 self-​evaluation guide,  28–​30 Courtroom etiquette bar table, 318–​319 courtesy, 317–​318 discussion with the judge outside of court, 319 forms of address, 318 judicial robe, 319–​320 rules, 317–​320 standing, 318 when to stand, 318 wig and robe, 319–​320 Credibility advocates, of, 28, 40, 54 characteristics, 40 dynamism, 40 expertise, 40 influence and, 40 persuasiveness and, 43 principal characteristics, 40 trustworthiness, 40 witnesses, of, 23, 40, 55–​56, 61, 83, 84, 88, 95, 101, 109, 121 Cross-​examination apparent, 247–​248 argumentative witness, 245–​247 boundaries of vigorous, 316–​317 checklist, 254 conferring with witnesses under, 315–​316 controlling the witness, 217–​218 counsel’s demeanour, 220 discrediting the witness, 230–​245 discrediting unfavourable testimony, 223–​229 communication, 227–​228 memory, 226–​227 perception, 223–​226 electing to, 207 elements, 210–​220 eliciting favourable evidence, 220–​222 ethics, 316–​317 evasive witness, 245 expert witness —​see Expert witness faulty memory, exposure of, 226–​227 identical stories, exposure of, 247 leading questions, 214, 216 memorised stories, exposure of, 247 order, 210 preparation for, 24–​26 purpose, 210 questioning style, 215–​220 records witness, 253–​254

|  D

repetition of examination-​in-​chief, 211 risks, 209 rules, 213–​215 special problems, 245–​248 special witnesses, 248–​254 structure, 210–​212 trial notebook, 9 D Damages at large, seeking, 66–​68 closing argument, 66–​68, 270–​271 examination-​in-​chief,  102 opening address, 66–​68 Dangerous driving example closing argument, 256 example opening address, 49 Decision making affective, 37–​38 cognitive,  37–​38 group,  38–​39 individual,  38–​39 Directions to jury trial notebook, 9 Discovery trial notebook, 4 Discrediting witnesses bad character, evidence of, 244–​245 bias, exposing, 231–​232 collateral issues, evidence on, 231 conduct, exposing inconsistent, 229 cross-​examination, 230–​245 evidence, undermining unfavourable, 223–​229 good faith, requirement of, 230 interest, exposing, 232–​233 motive, exposing, 233–​234 objections to, 300 omissions, 242–​244 periodicals, use of, 252–​253 prejudice, exposing, 231–​232 primary issues, evidence on, 231 prior convictions, 234–​235 prior evidence, 240–​242 prior inconsistent statements, 235–​244 oral, 236 written, 237–​238 rules, 230–​231 purpose, 210

325

Fundamentals of Trial Technique Discrediting witnesses — cont techniques, 235–​240 texts, use of, 252–​253 treatises, use of, 252–​253 Documents business records as evidence, 130–​133, 190–​193 copies, 197–​198 digital recordings, 180–​183 letters, 186–​190 memory, to refresh, 20, 22, 127–​130 preparation of visual aids, 201–​204 signed, as exhibits, 183–​186 Dynamism, 40 E English, plain, 43 Ethics —​ see also Courtroom etiquette advocate as an officer of the court, 308–​313 cross-​examination, boundaries, 316–​317 professional conduct rules, 307–​308 witnesses, dealing with, 313–​316 Evasive witness cross examination of, 245 Evidence —​ see also Exhibits action, presentation of, 85 different rules of, 2 jurors, meaning to, 42 law of, 2 meaning of, 42 misstated evidence, objections to, 297 overstating, in opening address, 56–​57 prejudicial, objections to, 286, 299–​300 pre-​trial, using, 156 repetitive, objections to, 300 statutes governing, 2 Examination-​in-​chief agreed facts, 156–​157 business records, 130–​133 conversations  —​ see also Conversations counsel, position of, 98 elements, 80–​100 organisation, 81–​82 orientation questions, 85 questions, 85 326

recreate the action, 89–​94 setting the scene, 85–​89 simplicity, 80–​81 transition questions, 85 witness’s background, developing,  82–​85 exhibits, use of, 86, 98 expert witnesses, 135–​148 judicial notice, 156–​157 listening to the answers, 98 memory, refreshing, 127–​130 organisation,  81–​82 orientation questions, 85 pre-​trial evidence, 156 primacy and recency principles, 99–​100 purpose,  79–​80 questioning  —​ see Questioning recreate the action, 89–​94 language, use of simple, 92–​93 pace, 90–​92 point of view, 88–​89 present tense, 94 re-​examination, 158–​161 refreshing memory, 127–​130 setting the scene, 85–​89 detail, 86 visual descriptions, 86–​88 witness’s perspective, 88–​89 simplicity,  80–​81 statements  —​ see Statements transition questions, 85 trial notebook, 8–​9 weaknesses, volunteering, 97–​98 witnesses  —​ see Witnesses Exhibits —​ see also Visual aids animations, 194 business records, 190–​193 categories, 169–​170 chain of custody, 172–​176 charts, 8 summary charts, 194–​197 trial notebook, 8 closing argument, in, 259, 268 computer-​generated graphics and animations, 194 computer-​generated records, 193–​194 copies, 197–​198 counsel’s self-​evaluation guide, 28–​30 definition, 163–​164 demonstrative evidence, 169 diagrams, 178–​180 digital recordings, 180–​183 examination-​in-​chief, in, 86, 98 foundations for admission, 168–​198 authentification, 168 competent qualifying witness, 168 relevant and reliable, 168, 169

Index graphics, 194 letters, 186–​190 maps, 178–​180 marking, 204–​206 models, 178–​180 objections foundation of exhibits, absence of, 293 prejudicial evidence, 299–​300 opening address, in, 48–​49 photographs, 176–​178 preparation, 27, 201–​204 procedure for admission into evidence, 164–​168 real evidence, 169 records, 170 selection, 27, 206 signed documents, 183–​186 summary charts, 194–​197 tangible objects, 171–​172 trial, producing at, 164–​168 using, 204–​206 visual strategy, 199–​201 writings, 169–​170 Expert witness assessment of, 143–​144 cross-​examination, 249–​253 preparation, 249–​250 techniques, 250–​251 use of treatises, texts and academic journals, 252–​253 examination-​in-​chief, order of, 140 experience, 143–​144 introduction to court, 140–​143 jury perspective on, 136–​137 opinion, 144–​146 reasons for opinions, 146–​148 preparation, 137–​139 qualifications, 143–​144 training, 143–​144 who can be, 136 Expertise witnesses, of, 39 F Facts disputed, focus on, 14 opening address, in, 55 trial notebook, 5 Files folder categories, 3 organisation of, 2–​4 chronology, 3

|  J

H Hearsay business records as, 130–​131 conversations as, 120–​122 objections, 294–​295 Hostile witnesses, 155–​156 I Impartiality credibility, 40 trustworthiness and, 40 J Judge counsel showing respect for, 27 courtroom etiquette, 317–​320 election for trial by, 31–​32 introductory remarks, 47 Judicial notice, 156–157 Jurors objections and, 284 prospective, 32, 35 psychology of persuasion, 36–​45 receiver capacities, 41–​42 Jury affective reasoning, 37–​38 attention span, 41–​42, 53, 81, 259 behavioural science and jury research,  37–​45 challenges array, to, 33 cause, for, 34–​36 exercising, 33–​34 peremptory, 33, 35–​36 phases of process, 35–​36 polls, to, 33 chart, in trial notebook, 6–​8 cognitive reasoning, 37–​38 counsel showing respect for, 27 decision making, 38–​39 directions  —​ see Directions to jury election for trial by, 32 importance, 1 influences, what, 39–​45 panel, 32 perspective on expert witnesses, 136–​137 327

Fundamentals of Trial Technique Jury — cont persuading,  36–​45 preparation from jury’s perspective, 14 selection,  31–​36 verdict,  38–​39 warnings  —​ see Warnings to jury what influences, 39–​45 Jury selection challenge to the array, 33 challenge to the polls, 33 challenges array, to, 33 cause, for, 34–​36 exercising, 33–​36 peremptory, 33, 35–​36 phases of process, 35–​36 polls, to, 33 exercising challenges, 33–​36 governed by statutes, 32 information, acquisition of, 35 judgment, exercise of, 35–​36 peremptory challenge, 33, 35–​36 statutes, 32 L Labels definition, 13 preparation for trial, 13 Language powerful, 43 simple,  92–​93 Lawyers trial, 1 Lay witness opinions, 133–​135 Leading questions cross-​examination, 214, 216 examination-​in-​chief,  94–​95 objections, 295–​296 Litigation software, 4 M Mediation importance, increasing, 1 Medical negligence election for trial by jury, 32 opening address, example of, 60 328

Memory, refreshing aids to refresh, 127–​130 documents, 127–​130 elements, 127–​130 faulty, cross-​examination to expose, 226–​227 memorised stories, exposure of, 247 ritual, 127 Motions trial notebook, 6 O Objections ambiguous questions, 298 best evidence rule, 292–​293 closing arguments, 302–​303 communications, privileged, 292 competence, 291 compound questions, 298–​299 conclusion, 302–​303 confusing questions, 298 evidentiary, 284, 285, 288–​301 facts not in evidence, assumption of, 289 form, 288–​289 foundation of exhibits, absence of, 293 hearsay, 294–​295 how to make, 285–​288 improper challenge to credibility of the witness, 301 jurors and, 284 leading questions, 296, 298 legal foundation for, 285, 286–​287 misleading questions, 298 misquoting witness, 297–​298 misstating evidence, 297–​298 not making an objection, 304 not stating the reasons, 304–​305 offers of proof, 288 opening addresses, 298–​299, 301–​302 opinions, 296–​297 parol evidence rule, 293 points on appeal, 286 prejudicial evidence, 286, 299–​300 privileged communications, 292 procedure, 287 protect the record, 285 questions beyond scope of examination, 300 raising at the earliest opportunity, 305 relevance, 290–​291 repetition, 297, 300 rules of evidence, 305

Index ruling on, 305 speculation, 298 substance, 289 tactical device, 285 timing, 285–​286, 305 ultimate issue rule, 296 unintelligible questions, 298 vague questions, 298 when to make, 284–​285 witness, improper challenge to credibility of, 301 Opening address advocate’s position and delivery, 45–​46,  58–​59 anticipating weaknesses of case, 54 argument, improper use of, 55–​56 characteristics of persuasive, 45–​55 conclusion, 68 damages,  66–​68 defence reply to prosecution, 57–​58 details, 63 efficiency, 53 evidence, overstating, 56–​57 evidentiary considerations, 55–​59 examples,  68–​77 exhibits, use of, 53–​54 explanation of how incident happened, 63 facts, 56, 63 first three minutes, 48–​49 functions, 15 guilt, basis or absence of, 65 introduction,  59–​60 liability, basis or absence of, 65 objections, 298–​299 organisation of, 59 parties, introducing, 59–​60 personal opinions, 56 persuasive, characteristics of, 47–​55 pivotal role, 47 position of advocate, 58–​59 preparation of, 15–​17 principles of delivery, 58–​59 procedural considerations, 55–​59 refuting anticipated defences, 65–​66 request verdict, 55 right to make, 57 scene of occurrence, 62–​63 self-​evaluation guide,  28–​30 storytelling technique, 50–​53 structure of, 59–​68 themes, communication of, 48–​49 theory of case, 49–​50 time efficiency, 53 trial notebook, 9 20 minute rule, 53

|  P

verdict, request, 55 visual aids, use of, 53–​54 waiving right to make, 57 witnesses,  60–​61 Opinion expert witness, 135, 136, 144–​146 lay witness, 133–​135, 297 objections, 296–​297 personal, in opening argument, 56 P Parties introducing, in opening address,  60–​61 Personal opinion opening address, in, 56 Persuasion affective reasoning, 37–​38 art of, 1–​2, 36–​37 behavioural science and jury research,  37–​45 cognitive reasoning, 37–​38 credible sources, 44 effective messages, 42–​43 perception, based on, 39 powerful language, 43 psychology of, 36–​45 reasoning,  37–​38 trial lawyers, 1 Pleadings trial notebook, 5 Preparation for trial closing argument, 15–​17 files, litigation, 2–​4 folder categories, 3 jury’s perspective, 14 local practices and procedures, 2 opening address, 15–​17 principles of effective, 9–​14 theory of case, 9–​12 trial notebooks, 4–​9 Procedural law, 1 Procedures local practices and procedures, 2 procedural law, 2 Product liability example opening address, 52 329

Fundamentals of Trial Technique Q Questioning —​ see also Examination-​in-​chief cross-​examination, 215–​220 detail, importance of, 86 leading questions, 94–​95 non-​leading questions,  94–​95 objections to, 298–​299 open-​ended questions,  95–​96 orientation questions, 85 transition questions, 85 R Reasoning affective, 37–​38 cognitive,  37–​38 Re-​examination, 158–161 Refreshing memory, 127–​130 Repetition, 44 Rhetorical questions, 44 S Scene of occurrence opening address, 62–​63 Sexual assault example opening address, 51 Software, litigation, 4 Statements foundations for admission, 120–​122 hearsay and, 120–​121 Storytelling techniques, 13–​14 closing argument, 261 opening address, 50–​53 Substantive law, 1 T Telephone conversations foundations for admission, 122–​125

330

Themes closing argument, 257–​258 communication in opening address,  48–​49 definition, 12, 43 developing,  12–​13 example, 12 psychological anchors, 12, 43, 48 Theory of the case analytical steps, 10 closing argument, 258 definition, 10 developing,  10–​11 examples,  11–​12 opening address, in, 48–​49 Trial courtroom etiquette, 317–​320 ethics, 307–​317 local practices and procedures, 2 preparation  —​ see Preparation for trial Trial notebooks advance rulings, 6 closing arguments, 9 cross-​examination,  9 directions to jury, 9 discovery, 6 examination-​in-​chief,  8–​9 exhibit chart, 8 facts, 5 instructions to jury, 9 jury chart, 5 legal research, 9 motions, 6 opening address, 8 organisation, 4 pleadings, 5 trial chart, 7 warnings to jury, 9 witness chart, 6–​7 Trial techniques courtroom etiquette, 317–​320 ethics, 307–​317 jury selection, 31–​36 persuasion, art of, 1, 36–​45 retention and recall, enhance, 43–​44 storytelling,  13–​14 strategy, 1, 28–​29 trial preparation —​see Preparation for trial

Index U Unfavourable witnesses, 154–155 V Visual aids, 43, 198–199 closing argument, in, 259 opening address, 53–​54 preparation of, 201–​204 computer-​generated images, 203–​204 diagrams and charts, 203–​204 digital recordings, 202 documents, 204 objects, 202 photographs, 202 strategy, 198–​206 technology as tool, 200 W Warnings to jury trial notebook, 9 Weaknesses in the case closing argument, 261–​262 examination-​in-​chief,  97–​98 opening address, 54 volunteering, 54, 97–​98 Witnesses —​ see also Character witness  —​ see also Discrediting witnesses  —​ see also Expert witnesses  —​ see also Hostile witnesses  —​ see also Lay witnesses  —​ see also Unfavourable witnesses —​see also Witnesses to events

|  W

advocate’s self-​evaluation guide, 28–​30 argumentative, 245–​247 background,  82–​85 character, 148–​154 chart, trial notebook, 6–​7 competence of, objections based on, 291 conferring while under cross-​ examination, 315–​316 corroborating witnesses, used in closing argument, 267 counsel’s self-​evaluation guide, 28–​30 credibility of, 23, 40, 55–​56, 61, 83, 84, 88, 95, 101, 109, 121 cross-​examination, conferring while under, 315–​316 dealings with witnesses, advocate’s, 315–​316 dynamism, 39 evasive, 245 events, to, 100–​119 expert, 135–​148 expertise, 39 hostile, 155–​156 improper challenge to credibility, 301 lay witness opinions, 133–​135 marking exhibits, 204–​206 opening address, 60–​61 order,  18–​19 physical appearance, 84 preparation of, 19–​24 questioning  —​ see Questioning records, 130–​133, 253–​254 selection, 17 trustworthiness, 40 unfavourable, 154–​155 Witnesses to events examination-​in-​chief, 100–​119 example of civil case, 101–​112 example of criminal case, 112–​117 example of first person on the scene, 118–​119

331