24. Integrity of evidence - influencing evidence

    1. A solicitor must not:
      1. advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or
      2. coach a witness by advising what answers the witness should give to questions which might be asked.
    2. A solicitor will not have breached Rules 24.1 by:
      1. expressing a general admonition to tell the truth;
      2. questioning and testing in conference the version of evidence to be given by a prospective witness; or
      3. drawing the witness’ attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.


Commentary

24.1.1 False or misleading evidence

In addition to Rule 24.1.1, see Criminal Code (Qld) s 127(1) for the criminal consequences of inducing a witness to give false testimony or withhold true testimony.

It is also unacceptable to advise a witness to be forgetful and evasive giving testifying: R v Sweeney (1987) 39 CCC (3d) 182.

24.1.2 Coaching

There is a distinction between coaching (Rule 24.1.2) and witness preparation (Rule 24.2), but the line can be difficult to draw: Re Equiticorp Finance Ltd (1992) 27 NSWLR 391 ('Equiticorp'). In Equiticorp, Young J held that a solicitor advising the witness on how to answer questions went over the line, and laid down the exceptions provided in Rule 24.2: Other cases that help describe the dividing line are:

  • In R v Noble (2000) 117 A Crim R 541, [19], Pincus JA held that it is improper to train witnesses 'to use particular expressions, differing from those the witness had in mind'. This compares with a witness permissibly recalling the effect of a conversation.
  • In Legal Practitioners Complaints Committee v Caine [2010] WASAT 178, the Committee, [142] defined the limits of witness preparation. Permissible conduct includes clarifying matters, questioning and testing witness's recollection of events and drawing matters to the witness's attention. Rehearsing, practising or coaching witnesses concerning evidence or suggesting answers to be given are impermissible.
  • In Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731, a solicitor arranged a pretrial telephone conference with multiple witnesses, which permitted those witness to discuss amongst themselves, the evidence they would give. Sheller JA noted at [30]:

"It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly."

Sheller JA noted that by permitting witnesses to confer in the manner in which they had been permitted in this case that this seriously undermined the process by which evidence is taken and that what was done was improper. The court was concerned that by permitting the defendant’s witnesses to discuss amongst themselves the evidence that would be given the intention was to ensure, so far as possible, that they would all speak with one voice. It was an order of the court in this matter that the defendant’s solicitors were to show cause why they should not be referred to the NSW Legal Services Commissioner. Subsequently in Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125, the matter was referred to the NSW Legal Services Commissioner.

Disciplinary consequences. In Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563, Mr Kennedy had his name struck from the Roll of solicitors after attempting to influence a witness to change her testimony. There was the same outcome in Attorney-General and Minister of Justice v Gregory [1998] QCA 409, in which the solicitor's conduct of offering money in 'a matter of fact tone' to influence two witnesses into changing their testimony resulted in his being struck off. The conduct 'struck audaciously into the heart of the judicial process', and involved an absence of ‘honesty, objectivity, respect for the court and respect for the process'.

In Legal Practitioners Complaints Committee v Pepe [2009] WASC 39, the solicitor was in an abusive and violent relationship with a man named Murray, and was also acting as Murray’s solicitor after he was indicted (with others) for conspiracy to cause a pregnant woman to miscarry. Media publicity surrounded the trial. Fitzgerald, a former police officer serving a term of imprisonment for corruption, saw these media reports and contacted the police to offer 'useful information.' Fitzgerald was also a client of the solicitor, who became aware of Fitzgerald's statement. The solicitor feared that Murray, a jealous man, might assume a conspiracy existed between her, defence counsel and Fitzgerald ‘to have him convicted and thus remove him from the scene.' She therefore attempted to dissuade Fitzgerald from giving evidence against Murray, in a recorded telephone conversation. Having earlier been convicted of attempting to pervert the course of justice, the solicitor was struck off.