26. Communication with witnesses under cross-examination
- 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:
- the cross-examiner has consented beforehand to the solicitor doing so; or
- the solicitor:
- believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;
- has, if possible, informed the cross-examiner beforehand of the solicitor’s intention to do so; and
- 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.