Witnesses are at an inherent disadvantage 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 tough.

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 (Justice John Griffiths, 5 March 2014: ‘Some Ethical Issues for Legal Practitioners’), although the development of such jurisprudence in Australia is yet to be fully developed given the relatively nascent status of witness training in Australia.

Witness Training

Witness training is often used as a general term for witness preparation for trial, witness familiarisation (See below, and also 2021: What is Witness Familiarisation, Loquitur), and has been used to describe unethical witness coaching. It can include teaching of a witness techniques and strategies to give effective evidence and to deal with cross examination techniques. Its ethics, and its efficacy, is a question of circumstance and degree.

Witness training was considered by Lord Justice Judge in R v Momodou ([2005] EWCA Crim 177) 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.

Witness Coaching

Witness coaching is unethical and prohibited. It is the rehearsal or influencing a witness’ evidence or responses, or ‘the orchestration of the evidence to be given’ (R v Salisbury [2005] EWCA Crim 3107 at 60). This common law position is reflected in the professional rules governing Australian legal practitioners which prohibit the “coaching” of witnesses (Australian Solicitors’ Conduct Rules 2015 – Rule 24; Legal Profession Uniform Conduct (Barristers) Rules 2015 – Rules 69 and 70).

Australian Cases

In the NSW Civil Case Day v Perisher Blue Pty Ltd [2005] NSWCA 110, solicitors were defending a personal injuries action by a ski lift operator who was struck by a wayward skier. The solicitors prepared a letter to one of the witnesses setting out (among other things), questions that that witness and other witnesses may be asked and the types of things they should say in response.

Unsurprisingly, this was found to be witness coaching. It influenced the evidence to be given, and a new trial was ordered. The Defendant’s solicitors were asked to show cause as to why the matter shouldn’t be referred to the Legal Services Commissioner, and the matter was subsequently referred to the Commissioner.

In the criminal case Majinski -v- The State of Western Australia [2013] WASCA 10, the identity of the defendant was likely to be an issue in the proceedings. As part of preparation, the complainant had met with the prosecutor during which a “wide-ranging and comprehensive” discussion was had. At this meeting the prosecutor showed the complainant a photo of the accused and asked him to identify him.

At the trial, it was found that showing photograph of the defendant when the issue of the defendant’s identity was likely to be an issue was problematic and the prosecutor’s conduct was inappropriate.

English Cases

The above Australian position has been influenced by various UK cases.

R v Momodou involved a riot by inmates at an immigration detention facility in UK. In preparation for the trial, guards took sessions with a third-party witness trainer based on a ‘hypothetical’ scenario to discuss. The ‘hypothetical’ scenario was a riot at a fictious immigration detention facility where they were also guards. They also conducted ‘debriefing’ sessions between groups of the guards on the actual evidence. It was held that the training offered was ‘wholly inappropriate and improper’.

Finally, we look to R v Salisbury. This was a murder trial in which one of the prosecution witnesses had attended a “witness familiarisation” training course provided by an independent third party witness training provider.

Here, the course was delivered by a member of the Bar who was well aware of the ethical obligations surrounding witness preparation. The training was not conducted in respect to facts of the case. Rather the witness underwent a process of familiarisation with the pitfalls of giving evidence and was instructed how best to prepare for the ordeal of giving evidence under cross examination. The court held that it “was an exercise any witness would be entitled to enjoy were it available”.

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 R v Salisbury – above) 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 which complements their preparation, rather than replaces it (2022: Witness Skills: Benefits, Loquitur).

Crucially this training is prepared and conducted independently by independent barrister who is 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 practising solicitor and director at Loquitur (www.loquitur.com.au), Australia’s leading witness training provider. Tom is dual qualified in both Australia (Queensland) and England & Wales, and has practiced extensively across both jurisdictions. He has an expertise in litigation – primarily commercial litigation – and has worked in both private practice, inhouse and in Government departments.

Original article is here:  https://www.the-investigator.co.uk/magazine