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Thursday 10 December 2015

By reference to the rules in your own jurisdiction, how far do you think it is permissible to go in preparing a witness of fact

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By reference to the rules in your own jurisdiction, how far do you think it is permissible to go in preparing a witness of fact for trial?

Courtney Furner – scholarship winner
courtneyfurner@gmail.com

Introduction

What constitutes permissible witness preparation for trial is dependent upon the historical approach to fact-finding embedded within a particular adversarial jurisdiction. In Australia, lawyers, quite properly, do not have a carte blanche to employ whatever tactics they choose to contribute to their clients’ successes.[1] While it is legitimate for Australian lawyers to proof a witness in advance of a hearing so that the witness is familiar with their role in the proceedings, it is improper to train or coach a witness insofar that their testimony is influenced. It is submitted that this approach, which represents a ‘halfway house’ between the restrictive approach in the English system, and the liberal approach in the American system, is effective in elucidating the truth in both an ethical and efficient matter.

Background: the role of fact witnesses in the adversarial justice system

A witness of fact is a person who gives evidence, under oath, about their personal factual knowledge of an event relevant to a case. The extent to which it is permissible to prepare witnesses of fact for trial is defined by the specific role that these witnesses play within the adversarial justice system.

Unlike in the inquisitorial system,[2] trials in the adversarial system comprise a contest between, and are driven by, two or more parties, each contending for their own views and testing the opposing side’s version of the facts.[3] The underlying philosophy in the latter system is that, through the clash of two or more versions of reality before a neutral tribunal, the truth will emerge.[4]

Accordingly, the role of a witness of fact at trial in this system is neither to argue the case at hand nor to dispute the evidence of other witnesses.[5] Rather, these witnesses are called upon for the forensic purpose of giving their own version of the relevant events in order to assist the trier of fact in carrying out its primary duty in ascertaining ‘the truth, the whole truth, and nothing but the truth’.[6]

As such, it is the fact witness’s fundamental role in assisting the trier of fact in ascertaining the truth about a case which necessitates the utmost care by lawyers in preparing such witnesses for trial.

The parameters of witness preparation in Australia

In my jurisdiction, Western Australia, strict statutory and common law professional obligations, as well as best practice guidelines produced by the legal community, regulate the preparation of fact witnesses for trial in Australian proceedings.[7] These parameters are largely mirrored in other Australian jurisdictions[8] and apply to the preparation of witness statements in the same way as they would when preparing a witness to give oral evidence.[9]

Statutory professional obligations

An Australian lawyer has four statutory obligations regarding witness preparation:

1)      Opposition access to witnesses: As there is no property in a witness,[10] a practitioner must not take any step to prevent or discourage a witness or prospective witness from conferring with an opponent in the proceedings, or being interviewed by or on behalf of any person involved in the proceedings.[11]

2)      Integrity of evidence: A practitioner must not suggest to or advise a witness that the witness should give false evidence.[12] This obligation has two facets:

i)        Influencing evidence: A practitioner must not make a suggestion to, or condone a suggestion being made to, a prospective witness about the content of evidence which the witness should give at any stage in the proceedings.[13] However, a practitioner may advise a prospective witness to tell the truth, question and test in conference the version of evidence to be given by a prospective witness, or draw the witness’s attention to inconsistencies or other difficulties with that witness’s evidence.[14]

ii)      Two witnesses together: A practitioner must not confer with, or condone another practitioner conferring with, two or more lay witnesses at the same time about an issue if there are reasonable grounds for the practitioner to believe that the issue may be contentious at a hearing, and one of the witnesses may be affected by, or may affect, evidence to be given by another of the witnesses, unless the practitioner believes on reasonable grounds that special circumstances require such a conference.[15]

3)      Communication with witnesses under cross-examination: A practitioner must not confer with a witness[16] called by the practitioner on any matter related to proceedings while that witness remains under cross-examination, unless the cross-examiner has consented beforehand to the practitioner conferring with the witness, or the practitioner believes on reasonable grounds that special circumstances[17] require the practitioner to confer with the witness.[18]

4)      Practitioners acting as material witnesses in a client’s case:Except in exceptional circumstances, a practitioner must not act for a client in the hearing of a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence centrally material to the determination of contested issues before the court.[19]

Despite these parameters, it is not always possible to state general rules as to where the line should be drawn between legitimate witness preparation and unethical coaching of a witness.[20] For this reason, lawyers must refer to the common law and best practice guides produced by the legal community.

The common law and best practice guides

The common law and best practice guidelines[21] further clarify what constitutes proper advice, and when legitimate preparation transitions into coaching.

‘Advice’ regarding preparing and giving evidence

There is no difficulty in Australia with a witness conferring with their legal practitioner, or the legal practitioner for the party calling the witness, as well as receiving proper advice regarding preparation for and the giving of evidence.[22]

‘Proper advice’ about these processes includes, primarily, advice that the questions put to a witness must be answered truthfully, even if the witness believes his or her evidence could be prejudicial to himself or herself or the overall proceedings.[23]

The courts[24] and the legal profession[25] have clarified that this advice includes:

1)      encouraging a witness to refresh his or her memory from contemporaneous documents prior to giving evidence;

2)      calling to a witness’s attention points which might arise in cross-examination;

3)      describing the court layout and likely procedure;[26]

4)      bringing to a witness’s attention points in his or her evidence which appear to be contradictory or incredulous;

5)      reminding a witness to bring all relevant documents to court;[27]

6)       advising a witness as to the manner of answering questions;[28] and

7)      giving advice as to appropriate dress and grooming, although there may be other areas in which advice is permitted.

In Australia, this ‘advice’ is not only proper but is encouraged, as it assists in the due administration of justice by limiting evidence to issues which are genuinely in dispute and saves the court time.[29] As such, experienced practitioners customarily provide prospective witnesses with written guidance notes on preparing and giving evidence.[30] Subject to the notes remaining within the common law boundaries of ‘proper advice’, the judiciary accepts such notes as good practice, for a witness has a clear statement of relevant matters at hand, and the risk of any misunderstanding is minimised.[31]

However, the common law draws the line in the sand where a practitioner coaches a witness as to how particular questions should be answered, or suggests which words the witness should use.[32]

Legitimate proofing impermissible coaching

Australian practitioners are permitted to proof a witness, including interviewing a witness before a trial, so long as the proofing does not constitute impermissible ‘coaching’.[33]

Following the approach in England and Wales, and Hong Kong, ‘proofing’ turns into impermissible ‘coaching’ in Western Australia when a witness’s true recollection of events is supplanted by another version suggested by the interviewer or other party, whether this be by repetitive reading of a statement to the point where their testimony is mere regurgitation, or by otherwise influencing the witness.[34] The New South Wales courts have clarified that outlining proposed areas of questioning and suggested responses, conferring with a witness in the presence of other witnesses or potential witnesses, or holding a pre-trial conference where multiple witnesses can jointly discuss evidence to be given at trial, constitutes ‘coaching’.[35]

Comparative analysis

The ‘contours of divergence’ between the common law jurisdictions regarding the prevailing attitudes towards permitted witness preparation techniques arguably reflect deeply rooted differences between the legal systems as to the optimal ways to fact-find, and the cost/ benefit analysis of embracing or condoning more suggestive forms of witness preparation.[36]

United States of America and Canada – liberal approach

The US Supreme Court has held that a lawyer must respect the important ethical distinction between discussing testimony and seeking to improperly influence it.[37] However, save for the prohibition on subornation of perjury and knowingly using false evidence as set out in the federal rules of procedure, state bar codes and common law,[38] American lawyers have broad discretion to decide which witness preparation methods to employ, and how to use them. This is because there is no express guidance on what objective conduct amounts to eliciting false testimony.[39] Consequently, the line between ethical and unethical witness preparation remains almost impossible to draw.[40]

Examples of the preparatory activities permitted in the US include: instructing on demeanour and attire; suggesting language to be used when testifying; familiarising witnesses with the law and facts; confronting witnesses with other (possibly contradictory) evidence; and ‘dry run’ mock cross-examinations or rehearsals of testimony before trial (although the latter activities are particularly objectionable[41]).[42] Most of these activities would likely constitute impermissible coaching in Australia[43] and England and Wales.[44]

England and Wales – restrictive approach

In England and Wales, subject to the outright prohibition on ‘rehearsing, practising or coaching’,[45] barristers are now permitted to discuss proposed testimony with witnesses. They are not, however, permitted to discuss the substance of the case with, or to interview, witnesses in criminal cases.[46] An exception to the interview ban was made for Crown Prosecution Service advocates in 2008 to allow prosecutors to speak to witnesses for the purpose of clarifying or assessing the reliability of evidence they intended to give.[47] This reform was regarded as a ‘minor revolution’ in the English legal system.[48]

In this jurisdiction, there is a clear distinction between witness training or coaching and witness familiarisation,[49] and a preference by the courts to receiving spontaneous and unrehearsed testimony.[50] These approaches have also been adopted by Australian courts.[51]

Mock examinations and rehearsing appear to be allowed, so long as they fall within the ambit of witness familiarisation.[52] Group preparation of witnesses is generally inadmissible,[53] and the disclosure of one witness’s evidence to another witness is disfavoured.[54]

Australia, New Zealand and Canada – ‘halfway houses’

In New Zealand – as in Australia, but unlike in England and Wales – far-reaching witness preparation is considered good practice, although witness coaching is illegal, and the more ‘extreme’ practices of American lawyers are rejected.[55] Upon this basis, New Zealand and Australia can be seen as representing the ‘midway point’ between the American and English approaches.

In Canada, pre-trial interviews are a standard practice.[56] The provincial codes of ethics and practice manuals set out general ethical standards with the aim of protecting the integrity of evidence and disfavouring intrusive preparation techniques.[57] Although these rules do not expressly prohibit any overarching preparation methods unless these amount to coaching,[58] professional attitudes in Canada appear to disfavour more suggestive forms of witness proofing.[59]

Do the differences in approach matter?

As a consequence of the lack of a uniform and principled approach to witness preparation at the domestic level, there was an absence of common legal culture and lack of shared professional ethics amongst international lawyers at the ICTY[60], the ICTR[61], the SCSL[62] and the ICC[63], as they debated about which approach would best serve the hybrid international criminal procedure.[64]

It is unnecessary to set out the details of this jurisdictional divide[65] save to say that, in reliance upon national analogies, the ICTY, ICTR and SCSL have embraced an approach strongly resembling that in the US, whereas the ICC has adopted a more restrictive approach, presumably inspired by the English and/or continental position.[66]

This reliance upon domestic analogies, coupled with the general proliferation of international courts and tribunals as a by-product of an increasing interest in international dispute settlement, reflects that the debate over witness preparation in common law jurisdictions is both relevant and contemporary.

Further, consistency in common law approaches to witness preparation is desirable, given the increasing need for lawyers to prepare witnesses to take evidence abroad for use in Australia, or to take evidence in Australia for use abroad.[67] As APEC[68] noted at its Second Economic Committee Plenary Meeting last year, enhanced cooperation in the taking of evidence abroad would simplify and expedite judicial procedures, thereby allowing for more effective management of cross-border litigation.[69]

Analysis: what is best approach?

Each jurisdiction must carry out a cost-benefit analysis of what the best evidentiary tools are to elucidate the truth amongst its own particular legal context and historically embedded conceptions.[70] In my view – which is, admittedly, influenced by the approach in my home jurisdiction – a ‘middle-ground’ approach, coupled with judicial oversight of the parameters of permissible witness preparation, is the most realistic way for the adversarial justice system to obtain the truth in an efficient and expedient manner.

Although the American approach may be effective to shape testimony, focus on the significant, drop the irrelevant, emphasise helpful points, and structure the presentation of evidence so as to minimise the damage caused by any adverse information,[71] the benefits of this approach come at the risk of abuse and potential inadvertent distortions of the truth.[72] An approach restrained only by a prohibition on elucidating false testimony is, in my view, insufficient to protect the integrity of a witness’s testimony from manipulation (intended or not).

At the other end of the spectrum, the liberalisation of barrister–client contact in England and Wales suggests that its restrictive approach to witness preparation impacted on the proper administration of trials in that jurisdiction.[73] Notwithstanding these reforms, the approach in England and Wales remains ‘immeasurably more rigid’ than in any other jurisdictions.[74] In my view, there is scope, particularly for barristers, to ‘go further’ when preparing fact witnesses for trial in this legal system.

Accordingly, a middle-ground approach, largely modelled on the approaches in Australia, New Zealand and Canada, is to be preferred. These jurisdictions have been positively influenced by the cautious English position – for example, with respect to prohibiting impermissible coaching and favouring testimonial spontaneity.[75] Simultaneously, they have embraced liberal techniques from the American approach insofar as is necessary to prepare witnesses effectively – for example, openly discussing with a witness any inconsistencies between their testimony and the other evidence (including a mock cross-examination).[76]

This is not a perfect system and perhaps other reforms, such as pre-trial examinations by the courts, may be better mechanisms to efficiently elucidate the truth from fact witnesses.[77] However, I believe this ‘firm but flexible’ approach is to be objectively favoured over that in the US and England and Wales, for three reasons.

First, it prioritises the forensic integrity of a witness’s evidence by employing safeguards against suggestive techniques which could unduly influence testimony and, thus, potentially distort the truth.

Secondly, the approach promotes a more efficient administration of justice by allowing lawyers the flexibility to control their own fact-finding and fact-presenting processes within ethical boundaries.

Thirdly, it isn’t only in the interests of witnesses and parties that witness preparation be permissible. If an Australian lawyer is found to have impermissibly coached a witness – even with the client’s instructions, or the witness’s permission – this conduct would arguably be in violation of his or her paramount duty the court, thereby exposing him or her to potential disciplinary action.[78] Similarly, verdicts of courts based upon tainted evidence are vulnerable to being appealed upon the basis of being unsafe or unsatisfactory. This has the potential to reduce public confidence in the justice system.

For these reasons, a ‘middle-ground’ approach is preferred.

Conclusion

The accepted level of partisan influence over the judicial evaluation of evidence, and the value placed upon spontaneous testimony, are significant variables affecting the permissibility of witness preparation in common law jurisdictions. As a witness’s fundamental duty in the adversarial system is to assist the trier of fact in ascertaining the truth, it follows that lawyers should, appropriately, be restricted to preparatory activities which protect the forensic integrity of a witness’s evidence. Whilst it is desirable to take a conservative approach to witness preparation, such an approach may impair the proper administration of justice in the adversarial system. Accordingly, a ‘middle-ground’ approach, whereby lawyers have the flexibility to exercise discretion and sound judgment within clearly defined and enforceable ethical parameters, is favoured.



[1]Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 564 (per McTiernan J).

[2]Where the judge is in control of the proceedings, decides what the issues are, what inquires are made, what witnesses will be called and he or she asks virtually all of the questions: The Hon J J Spigelman AC, ‘Tolerance, Inclusion and Cohesion’, (2006) 27 Australian Bar Review 133–140, 138.

[3]John S Applegate, ‘Witness Preparation’, (1989) 68(2) Texas Law Review 277–352, 335–341.

[4]Ray Finkelstein, ‘The Adversarial System and the Search for Truth’, 2011 37(1) Monash University Law Review 137; John S Applegate, ibid, 326.

[5]Western Australian Bar Association, Best Practice Guide 01/2009-2011 – Preparing Witness Statements for Use in Civil Cases (as at 25 March 2009 and amended on 8 August 2011), 31.

[6]‘There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth.Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380, 1384 (per Lord Denning MR); cited with approval in Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 [31] (per McLure JA).

[7]Neither the Federal, State nor Territory Evidence Acts regulate the preparation of fact witnesses in Australia. Rather, see: Legal Profession Conduct Rules 2010 (WA) (which is Western Australia’s adoption of the Law Council of Australia’s Australian Solicitors’ Conduct Rules (June 2011)); Law Council of Australia, Model Rules of Professional Conduct and Practice (March 2002); and Western Australian Bar Association, see note 5.

[8]By reason of each State and Territory’s adoption of the Law Council of Australia, Australian Solicitors’ Conduct Rules, seenote 7.

[9]In civil disputes in Western Australia, it is now proper practice for courts to direct an exchange of witness statements, and have those statements stand as the evidence-in-chief of a witness. The objective is to improve the efficiency of trials, to reduce the cost of trials and to facilitate the adjudication of disputes: Wang v Consortium Land Pty Ltd [2000] WASC 265 [15]; Western Australian Bar Association, seenote 5.

[10]Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 [31] (per McLure JA).

[11]Legal Profession Conduct Rules 2010 (WA), rule 39(1). However, the practitioner may advise them that they need not agree to be interviewed and remind them about confidentiality obligations: rule 38.

[12]Ibid, rule 39(1).

[13]Ibid, rule 39(2).

[14]Ibid, rule 39(3).

[15]Ibid, rule 40.

[16]This includes a party or the client: Legal Profession Conduct Rules 2010 (WA), rule 41.

[17]This includes the need for instructions on a proposed compromise: Ibid, rule 41.

[18]Ibid, rule 41.

[19]Ibid, rule 42. However, it is acceptable if the practitioner has a reasonable opinion that there are exceptional circumstances that justify the associate acting and the client has obtained independent legal advice concerning the issue.

[20]Re Equiticorp Finance Ltd; ex parte Brock [No 2] (1992) 27 NSWLR 391, 395 (per Young J).

[21]Western Australian Bar Association, see note 5.

[22]Re Equiticorp Finance Ltd; ex parte Brock [No 2], seenote 20, 395 (per Young J); Majinski v State of Western Australia [2013] WASCA 10 [30] (per Martin CJ, with whom Buss and Mazza JJA agreed).

[23]Re Equiticorp Finance Ltd; ex parte Brock [No 2], seenote 20, 396 (per Young J).

[24]Ibid, 395 (per Young J); Majinski v State of Western Australia, seenote 22.

[25]Justice John Griffiths, ‘Some Ethical Issues for Legal Practitioners’, paper presented to The College of Law Professional Skills Development Programs, The Banco Court on 5 March 2014, www.fedcourt.gov.au/publications/judges-speeches/justice-griffiths/griffiths-j-20140304 (accessed 3 May 2015); Federal Court of Australia, ‘Being A Witness’, www.fedcourt.gov.au/attending-court/being-a-witness (accessed 5 April 2015).

[26]This advice anticipates reminding the witness of the constraint upon any communication with legal advisers while the witness is under cross-examination and that he or she must never look to their legal team for any prompts or assistance by way of body language or gestures while they are giving evidence: Justice John Griffiths,see note 25.

[27]This advice anticipates advising the witness that he or she could be compelled to produce these documents brought into the witness box by the witness and to which he or she refers: R v Pachonick [1973] 2 NSWLR 86.

[28]This advice anticipates advising that, in cross-examination, the witness should listen carefully to the questions, be directly responsive to the questions, avoid anticipating questions and try to be as concise as possible: Justice John Griffiths, see note 25.

[29]Ibid.

[30]Ibid.

[31]Justice John Griffiths, see note 25.

[32]Re Equiticorp Finance Ltd; ex parte Brock [No 2], see note20; Majinski v State of Western Australia, supra note 22.

[33]Ysaiah Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia, (4th edition, 2005), 559–560.

[34]Majinski v State of Western Australia, see note 22, [32] (per Martin CJ); R v Momodou [2005] 2 All ER 571; [2005] EWCA Crim 177; HKSAR v Tse Tat Fung [2010] HKCA 156; [2010] HKEC 815.

[35]Re Equiticorp Finance Ltd; ex parte Brock [No 2], see note 20, 396 (per Young J); Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; Day v Perisher Blue Pty Limited (No 2) [2005] NSWCA 125.

[36]Sergey V Vasiliev, ‘From Liberal Extremity to Safe Mainstream? The Comparative Controversies of Witness Preparation in the United States’, (2011) (9) International Commentary on Evidence Issue 2, Article 5, 43, 45.

[37]Geders v United States, 425 U.S. 80, 90 (1976) (per Chief Justice Burger).

[38]American Bar Association, Model Rules of Professional Conduct, rr 1.2.(d), 3.3.(a)(3), 3.4.(b) and 8.4.(a); American Bar Association, Model Code of Professional Responsibility (1983), DR-7-102, EC 7-1 and 7-19; American Law Institute, Restatement (Third) of the Law Governing Lawyers (2000), s116; Re Eldridge, 82 NY 161, 171 (NY 1880); Hamdi & Ibrahim Mango Co. v Fire Association of Philadelphia, 20 F.R.D. 181, 183 (S.D.N.Y. 1957); State v Earp, 571 A.2d 1227, 1234-35 (Md. 1990); In re Peasley, 90 P.3d 774, 778 (Ariz. S.C. 2004); American Bar Association, ‘Ethical Preparation of Witnesses for Deposition and Trial’,

http://apps.americanbar.org/litigation/committees/trialpractice/articles/121311-ethics-preparation-witnesses-deposition-trial.html (accessed 5 May 2015); Joseph D. Piorkowski, Jr., ‘Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of “Coaching”’, (1987–1988) 1 Georgetown Journal of Legal Ethics 389–410, 389, 395–398.

[39]Mathew Rosengart, ‘Preparing Witnesses for Trial: A Post-Moussaoui Primer for Federal Litigators’, (2007) 54 Federal Lawyer 34, 37; American Bar Association, ‘Ethical Preparation of Witnesses for Deposition and Trial’, see note 38.

[40]Vasiliev, see note 36, 10–16; Joseph D Piorkowski, Jr, see note 38, 389.

[41]Vasiliev, ibid, 21.

[42]Vasiliev, ibid, 25.

[43]Re Equiticorp Finance Ltd; ex parte Brock [No 2], see note 20, 396 (per Young J).

[44]Patrick S Atiyah and Robert S. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory and Legal Institutions, Claredon Press (Oxford, 1987), 163.

[45]Bar Standards Board, Written Standards for the Conduct of Professional Work, s 3, [6.1.2.]-[6.1.3.]; Bar Standards Board, Code of Conduct of the Bar of England and Wales and Written Standards for the Conduct of Professional Work (8th edition, adopted by the Bar Council on 18 September 2004, effective from 31 October 2004), [705]. [705(b)] further prohibits a barrister from encouraging a witness to ‘give evidence which is untruthful or which is not the whole truth’.

[46]Bar Standards Board, Written Standards for the Conduct of Professional Work, s 3, [6.1.2.]-[6.1.3.], [6.3.1]-[6.3.2.]; Vasiliev, see note 36, 29–34.

[47]Bar Standards Board, Written Standards for the Conduct of Professional Work, s 3, [6.3.2.].

[48]The ban was lifted due to the impossibility of the Crown Prosecution Service verifying its evidence through pre-trial interviews was seen to impair the prosecutorial effort: see Michael Zander, ‘The English Prosecution System’, presented at the Conference on the Prosecution System, Rome, 29–30 September 2008, 14; John D. Jackson, ‘The Ethical Implications of the Enhanced Role of the Public Prosecutor’, (2006) 9(1) Legal Ethics 35, 40.

[49]R v Momodou, see note 34, [61]-[62] (per Judge LJ); Bar Council of England and Wales, Professional Standards Committee, Guidance on the Professional Conduct of Barristers - Witness Preparation – Arising From R v Momodou and Limani,(first issued October 2005; last reviewed September 2008), www.barstandardsboard.org.uk/regulatory-requirements/the-old-code-of-conduct/old-code-guidance/ (accessed 30 May 2015).

[50]Decision on the Practices of Witness Familiarisation and Witness Proofing, Prosecutor v Lubanga, Situation in the DRC, ICC-01/04-01/06/679, PTC 1, ICC, 8 November 2006.

[51]Majinski v State of Western Australia, see note 22 [32] (per Martin CJ).

[52]Vasiliev, see note 36, 34–35.

[53]R v Momodou, see note 34, [61] – [62] (per Judge LJ); Vasiliev, see note 36, 34.

[54]Bar Standards Board, Written Standards for the Conduct of Professional Work, s 3, [6.2.5]; R c Arif (1993) May 26; Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1992] BCLC 1104; [1994] 1 WLR 1271.

[55]R. Mahoney, ‘Witness Conferences’, (2000) 24 Criminal Law Journal 297–304, 303.

[56]R v Sungalia et al, [1992] O.J. No. 3718; R v D’Orazio Excavating Contractors Inc. (1998), 75 O.T.C. 124 (Gen. Div.) [16]; R v Elliot (2003), Court of Appeal of Ontario, 3 December 2003 [113].

[57]For example: Province of Ontario Ministry of Attorney General, Crown Policy Manual – Witnesses (21 March 2005); Law Society of Upper Canada, Rules of Professional Conduct (1 November 2000).

[58]R v Muise (No 1) (1974) 11 NSR (2d) 104, 115–116 (per MacDonald JA).

[59]Vasiliev, see note 36, 39.

[60]International Criminal Tribunal for the Former Yugoslavia.

[61]International Criminal Tribunal for Rwanda.

[62]Special Court for Sierra Leone.

[63]International Criminal Court.

[64]Minna Shrag, ‘Lessons Learned from ICTY Experience’, (2004) 2 Journal of International Criminal Justice 427, 432; Laurel Baig, ‘International Criminal Law and Ethics: The Need for Shared Expectations’, (2010) 103 American Society of International Law Proceedings 256, 257–258.

[65]This is already the subject of specialised commentary – see Vasiliev, see note 36, 4 (at note 10).

[66]Decision on the Practices of Witness Familiarisation and Witness Proofing, seenote 50.

[67]Attorney General’s Department, ‘Taking Evidence Across International Borders’, www.ag.gov.au/Internationalrelations/PrivateInternationalLaw/Pages/Takingofevidenceacrossinternationalborders.aspx,(accessed 17 May 2015); Asia-Pacific Economic Cooperation, Report on the Workshop on Ease of Doing Business Through Hague Conventions,2014/SOM3/EC/036, Second Economic Committee Plenary Meeting (Beijing, China, 12 August 2014), www.hcch.net/upload/apec2014workshop_concl.pdf, (accessed 17 May 2015).

[68]Asia-Pacific Economic Cooperation.

[69]Asia-Pacific Economic Cooperation, Report on the Workshop on Ease of Doing Business Through Hague Conventions, see note 67.

[70]Vasiliev, see note 36, 64.

[71]Applegate, see note 3, 301.

[72]Hugh Stowe, ‘Preparing Expert Witnesses: A Search for Ethical Boundaries’, 45(4) (2007) Law Society Journal 72–78, 72; Applegate, see note 3, 282; Vasiliev, see note 36, 47–57.

[73]Vasiliev, see note 36, 43.

[74]Ibid, 43–44.

[75]Ibid, 43–46.

[76]Ibid, 44–45.

[77]Ray Finkelstein, see note 4.

[78]Day v Perisher Blue Limited, seenote 35; Day v Perisher Blue Pty Limited (No 2), seenote 35. This is because an Australian legal practitioner’s paramount duty, among other fundamental ethical obligations, is to the court and the administration of justice, and prevails to the extent of inconsistency with any other duty, including that owed to his or her client: Legal Profession Conduct Rules 2010 (WA), rules 5 and 6.

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