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Judicial consideration

As a relatively novel concept in Australia, witness familiarisation has not been extensively judicially considered.

However, consideration in England & Wales where the practice is more developed has favourably considered the role of independent, third party witness familiarisation:

What is witness familiarisation training

This was considered in the context of criminal proceedings in R v Momodou [2005] EWCA Crim 177, Lord Justice Judge noted:

[61] There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted…

[62] This principle does not preclude pre-trial arrangements to familiarise witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness’s own uncontaminated evidence.

In the civil context, the issue of witness familiarisation was considered in England in Ultraframe (UK) Ltd v Fielding & Ors [2005] EWHC 1638 (Ch) where Mr. Justice Lewison (as he was then) said of a witness familiarisation course:

The first part of the programme was an introduction to the theory, practice and procedure of giving evidence… I do not see anything objectionable in any of this. It is a common experience that anxious witnesses are given general guidance on how to behave in court.

Loquitur’s courses have been prepared in accordance with this judicial guidance, and in compliance with the relevant Australian rules and professional obligations. While witness familiarisation is a relatively new concept in Australia, Loquitur anticipates similarly favourable acceptance by the Australian courts.
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