Tag Archives: Consultation

1. The approach that you take may vary considerably if your client may face legal consequences as a result of the inquest.[1]
2. The starting point is to consider whether or not it is in a client’s interests to be represented. There are forensic advantages and disadvantages in “raising one’s head figuratively above the parapet” into the vision of the public hearings.[2]
3. If your client has not been given any warning by counsel assisting, her or she may not be criticised in the inquiry. However, you must always keep in mind that warnings of adverse findings can be given at any stage (including at the close of the public hearing stage).
4. However, there is no pre-action discovery.  Thus, unless you have leave to represent a witness you will not get to read the Coroner’s brief. Without the brief your ability to prepare to defend your client’s interest may be severely circumscribed.
5. Even if leave to appear is granted, the leave may be conditional. For instance, counsel for a special interest group could be given leave to make closing submissions only.  Another limitation that is not uncommon is a Coroner may only permit cross-examination by counsel for an affected person who has a sufficient interest in challenging the evidence of the particular witness.[3]  This helps everything run on an efficient schedule.
6. One should always remember that systemic failure usually manifests through human actions. However, the extent to which any individual is involved, let alone responsible, is generally contestable.  For the individuals concerned though, having blame attributed in a cross-examination question – let alone a final report – can be hugely traumatic.  Thus the task for legal representatives is to do our best to ensure that responsibility is not unfairly allocated and any reputational damage is minimised.[4]
7. You will need to scrutinize the Coroner’s brief to find all the material that is relevant to your client’s involvement so that there are no surprises as the hearing progresses. Identify the difficult areas and prepare a strategy, but caution is required as to precisely what you tell your client.[5]
8. It may be prudent to consider how your client’s evidence will advance or challenge the apparent meta-narrative or hypothesis of the inquiry.[6] Prepare the closing submissions that you would like to make.
9. I remind clients that their oath to “tell the truth, the whole truth and nothing but the truth” is the touchstone that should guide their responses. It is permissible to indicate to clients that if there is a conflict in the evidence one witness may be preferred over another.  To this end, it is sometimes worthwhile giving one or more of the following tips:
   1. Listen to, and answer, the question that is asked (even if you think it is a silly question).
   2. Do not try to anticipate where you think your questioner is going to take you.
   3. Avoid weasel words.
   4. Make appropriate concessions.
   5. Try to stay calm, resisting defensiveness if possible.
   6. If you cannot recall, it is fine to say so.
   7. To err is human: it is acceptable, and often wise, to acknowledge your mistakes.
10. Attend every hearing and be alert for how the evidence could impact upon your client’s interests. Even if the evidence does not relate, you may gain valuable insights into the methods, techniques and areas of interest of counsel assisting.

[1] As well as criminal liability, civil liability and disciplinary proceedings, you should explore with your client whether certain findings could impact upon your client’s advancement in his or her vocation, his or her ability to keep or obtain a license (relying upon a version of the “’fit and proper person”) test.

[2] Streit, Jens, Legal Issues Affecting Public Inquiries, (2015, Legalwise CPD Seminar), paragraph 30.

[3] Kingham v Cole [2002] FCA 45; 118 FCR 289.  For instance, in a Royal Commission into the building and construction industry the Royal Commissioner issued a practice direction that persons, other than counsel assisting, would not be permitted to cross-examine a witness unless and until they had provided a signed statement of evidence advancing material contrary to the material of the witness to be examined.  A similar restriction was imposed in the Royal Commission into Institutional Responses to Child Sexual Abuse: Practice Guideline 1, revised 12 August 2013, paragraphs 62 to 64 inclusive.  There may well be forensic advantages and disadvantages in providing such a written statement: Streit, above note 2, paragraph 36.

[4] Brown, Liam, Representing witnesses called before inquiries into the conduct of the executive government (2015, Legalwise CPD Seminar), paragraph 2.

[5] Remember the warnings as to witness coaching set out in Majinski v State of WA [2013] WASCA 10, [29] – [36].

[6] Brown, above note 4, at paragraph 35.