26. Communication with witnesses under cross-examination

    1. A solicitor must not confer with any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination, unless:
      1. the cross-examiner has consented beforehand to the solicitor doing so; or
      2. the solicitor:
        1. believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;
        2. has, if possible, informed the cross-examiner beforehand of the solicitor’s intention to do so; and
        3. otherwise does inform the cross-examiner as soon as possible of the solicitor having done so.

Commentary

To constitute a breach, the communication must be while the cross-examination is continuing. In R v Shepherd [2001] 1 NZLR 161, [17] the prosecutor consulting with the complainant for an hour after cross-examination was adjourned was highly irregular conduct, but did not lead to the possibility of a miscarriage of justice.