Developments in Witness Training Australia

The development of third-party witness training and preparation programs in Australia has typically been limited when compared to similar common law jurisdictions such as the UK.  This is surprising given the jurisdictional and jurisprudential similarities between the two jurisdictions, and the common issues witnesses face when giving evidence.  The formal and unfamiliar setting, the stress and pressure, and an opposing counsel’s professional training to cross-examine witnesses, all make the giving of testimony particularly difficult.

UK courts, tribunals and witnesses have found that some of these disadvantages can be ameliorated by effective witness preparation and training.  A poorly prepared witness may undermine an otherwise robust case, and the evidence of such a witness may reflect poorly not only on the witness, but also on their organisation.  Conversely, a well-prepared, well-presented witness can strengthen a case, while improving the perception and reputation of their organisation or department.  

However, there are very strict rules around this training, and for good reason.  Typically, Australian courts have tended to follow their English counterparts in walking this fine ethical line, although the development of such jurisprudence in Australia is yet to be fully developed given the relatively nascent status of witness training in Australia.

With the recent introduction of various sophisticated third-party witness preparation courses in Australia, it is expected that Australian witnesses will eventually close this gap and begin to enjoy the same advantages offered to witnesses in other jurisdictions.

The Legal Position

Witness coaching is unethical and prohibited in both jurisdictions.  It is the rehearsal or influencing of a witness’ evidence or responses, or “the orchestration of the evidence to be given” (R v Salisbury).  This common law position is reflected in the professional rules governing Australian legal practitioners (both solicitors and barristers) which prohibit the “coaching” of witnesses.

Contrast this with witness training which includes teaching a witness techniques and strategies to give effective evidence and to deal with cross-examination techniques.  Its ethics, and its efficacy, are a question of circumstance and degree. 

Witness training was considered by Lord Justice Judge in R v Momodou and it was considered that training to give comprehensible evidence and to develop the ability to resist the inevitable pressure of going further in evidence is allowed.

The Australian position is outlined in cases such as Day v Perisher Blue Pty Ltd (where witness coaching was found to exist) and Majinski -v- The State of Western Australia (where the actions taken were likely to be problematic and inappropriate in some cases).

The Australian position has been influenced by various UK cases such as R v Momodou and R v Salisbury where it was found that witness training can greatly benefit witnesses if it is done properly.

Witness Training as part of Witness Preparation

While considering the ethical standards which must be met in the preparation of witnesses, these cases also look at the role of formalised witness training in the context of witness preparation.  The rise of such training organisations is a relatively new innovation in Australia, however, is common in England and Wales where such training was developed. 

When conducted in Australia, this training (like in the UK) should be conducted by third-party training organisations independently of any underlying legal proceedings.  Crucially, this training is provided separately from the witnesses’ legal team or their department or organisation.  Witness training is a separate service that complements the preparation the legal team provides, rather than replaces it.

Moreover, this training is prepared and conducted independently by independent barristers who are governed by the relevant ethical rules. 

Such training, when done properly, will allow for an enhanced and improved level of witness preparation, beyond what the legal representatives and other stakeholders can provide, and in this way can help improve witness confidence and understanding.  This allows the witness to present their own evidence in a more confident, coherent and effective manner to the benefit of the witness, their organisation, and importantly, the court. 

About the author: 

 Tom Nevin is a solicitor and director at Loquitur (www.loquitur.com.au), Australia’s leading witness training provider.  Specially prepared courses are available for lay (factual) witnesses, expert witnesses and other sorts of professional witnesses, such as medical professionals, police witnesses, emergency responders and public servants.

A link to the article as originally published is available here:  https://thesignaturebrand.co.uk/developments-in-witness-training-australia/

A link to the Signature Brand Training Company’s website is available here:  https://thesignaturebrand.co.uk/