In his classic exposition, The Technique o f Advocacy,' John Munkman quotes Viscount Maugham who, in his book, The Tichborne Case, w r o te : 'Many a counsel has risen to his feet wishing that the system of cross-exam ination had never been invented. He must ask something, but what? Many counsel content them selves with asking over and over again a few of the questions which have already been asked, and then sitting down, avoiding if possible a sigh of relief:2

O ne still sees this kind of desultory performance However, cross-examination can be vitally important and, if in court, but it is, 1 believe, becoming less badly done, has the potential to snatch defeat from the jaws common with the resurgence of formal of victory. advocacy and practical legal training during the past 20 years. DO YOU NEED TO CROSS-EXAMINE? It is undoubtedly true that more cases are won by good It is not always necessary, of course, to cross-examine a examination-in-chief than by good cross-examination. witness called by the other side. Their evidence may be

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helpful to your case, or do it no harm, and cross-examining cross-examination and reflect upon the issues you need to may simply afford the witness another opportunity to say focus on. something damaging to your case. Sometimes a firm 'no questions’ carries with it the strong implication that the LESSONS FROM A GREAT CROSS-EXAMINER witness has done no damage to your case. But it is important When I was a law student over four decades ago, I was to anticipate in advance whether you will need to cross- fortunate to know the late Sir Jack Cassidy QC, who was a examine a witness and, if you do, you must plan the famous silk and legendary cross-examiner.3 He and

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Lady Cassidy were close friends of my parents and he was College of Surgeons, who had been sued by a patient, kind enough to take an interest in my plans for a career in Ms Hocking, for alleged negligence in performing a the law. thyroidectomy. The case went all the way to the High In those days, unlike now, there were still many leading Court.4 Ms Hocking alleged that Sir George had left part of barristers in Sydney who, like Sir Jack, could fairly be called a drainage tube in her neck after the operation, which was a ‘generalist’ in the sense that they were able to deploy said to have then passed through her tonsil thence to her exceptional legal talents and excel in just about any area stomach and was later excreted. She was the only witness to of legal practice. Sir Jack was a talented performer in any this outcome, and had not kept the piece of tube alleged to level of court in criminal law, defamation, commercial law have passed through her in this way. Medical evidence was and many other areas as well. He represented many well- hotly contested as to whether such an event was possible. known and colorful identities, including Sir Frank Packer Sir Jack would later tell how, in order to prepare for the case and the famous aviator Sir Charles Kingsford-Smith. At one on behalf of his eminent client, and for the effective cross- stage, he may have been a contender for the Guinness Book of examination of the plaintiff’s expert witnesses, he spent many Records for making a closing address that lasted for 72 days hours in the observation gallery of an operating theatre, (in the American Flange v Rheem litigation in 1962). He was observing surgeons performing numerous thyroidectomies, a larger than life character who, when getting about the city, so that he became thoroughly familiar with precisely what often wore a deerstalker hat. He was known to be partial to the procedure involved, how drainage tubes were used and champagne, and acquired the nickname ‘Champagne Jack’ handled, and what safety and quality assurance protocols after a half-empty bottle that he had re-corked and stowed were in place. in his bag in the courtroom, could no longer withhold the mounting gaseous pressure within and expelled the cork More cases are won by good with a loud ‘pop’, much to his chagrin and the astonishment of examination-in-chief than by good the presiding judge. cross-examination. My most vivid recollection about Sir Jack was his But cross-examination can be vitally handwriting. Once, when I asked him for a reference to important and, if badly done, can snatch assist me in my job-hunting defeat from the jaws of victory. for hard-to-fmd articles of clerkship, he very obligingly invited me to his chambers in Phillip Street and scrawled out a reference for me on his letterhead. Like a doctor’s PREPARATION AND THE RESPONSIBLE USE OF CROSS- prescription, it was almost entirely illegible, although with EXAMINATION time and patience, one could decipher a few helpful words From these stories of Sir Jack I learnt two priceless lessons that he had written, like ‘good family’, ‘unfailingly’ and about cross-examination that trump all the others - firstly, ‘diligent’, and thus obtain at least a general sense of what the key ingredient for effective cross-examination is he had said about me. However, on a later occasion, when thorough and meticulous preparation. There is no other I was a guest of the Cassidys for a few days, 1 observed Sir precept that comes close to this in importance. That this Jack at his desk in his study one evening, writing in a high- is so is proven time and time again in our courtrooms quality, hardbound foolscap notebook. He was concentrating every day. Secondly, cross-examination is an extraordinary deeply and I ventured to interrupt him and asked him privilege granted to legal counsel - to ask leading, probing, what he was doing. He replied, “I’m preparing my cross- difficult and insinuating questions - because it is regarded examination for tomorrow.” I looked over his shoulder at the by our legal system as the best tool for challenging the notebook, and was astonished to see that the handwriting testimony of a witness in order to ascertain the truth in aid that he had used for this purpose was quite perfect, clearly of justice. This is where the ‘reverence’ comes in - cross- legible and executed in a beautiful and firm cursive that the examination is not a ‘dark art’ or something you do lightly, most fastidious scribe would have been proud of. Not only off the cuff or half-heartedly. It behooves the cross-examiner was the importance that Sir Jack gave to this preparation to be well prepared, to be fair and to maintain absolute emphatically and eloquently manifest in the care he had integrity when deploying the considerable power and taken with his handwritten notes, but so too was the deep latitude of questioning that the cross-examiner is permitted sense of duty and responsibility, almost akin to reverence, to use. The NSW Barristers’ Rules5 give expression to the that he brought to the task. gravity of this responsibility under the headings ‘Responsible In the 1940s, Sir Jack represented the eminent surgeon Use of Court Process and Privilege’ and ‘Integrity of Sir George Bell, a former President of the Royal Australian Evidence’. Loose, careless or irresponsible cross-examination

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can do a great deal of mischief and can cause injustice. As • The importance of the careful ordering of questions and Viscount Sankey stated: doing the ‘groundwork’ to ensure the ‘closing of all gates’ ‘Cross-examination is a powerful and valuable weapon before confronting the witness with a damaging fact or for the purpose of testing the veracity of a witness piece of evidence (for if you do not effectively ‘close the and the accuracy and completeness of his story. It is gates’ the witness will undoubtedly find the way out); entrusted to the hands of counsel in the confidence • The ability to break complex questions into a series of that it will be used with discretion; and with due regard simpler component parts; to the assistance to be rendered by it to the court, not • Taking note and making use of oddities - such as an forgetting at the same time the burden that is imposed incongruous answer that is inconsistent with previous upon the witness.’6 testimony or with evidence that has been or can be put The valuable rewards that a cross-examiner reaps from before the court; thorough preparation include confidence and also that • Effective use of exhibits, including involving the witness in priceless freedom and flexibility of thought that enables demonstrations with an exhibit where appropriate; the cross-examiner to listen to the answers given and make • The ordering of a cross-examination so as to create clear quick connections about their significance in the context chapters or topics, and tying them off with a summarising of the evidence in the case. This enables counsel to frame question before moving on to the next topic; appropriate further questions as well as make assessments • Keeping the jury or trier of fact interested and involved in about credibility and areas where the witness’s answers the process; appear to be flimsy, weak or tenuous. The cross-examiner • Presenting the questions and the evidence in a way that thus gains important clues that will inform his or her effectively tells and demonstrates the case you are seeking intuition as to the best way to continue a line of questioning. to establish; Sometimes the best way forward is to discontinue a line of • Maintaining calm and composure; questioning and to move on to another topic. • Not arguing with the witness and not answering questions from the witness; and CROSS-EXAMINING SKILLS • Not asking a question you don’t know (or at least have a The benefits of thorough preparation are well very firm idea of) the answer to, unless you know that the demonstrated in the cross-examination of serial killer, answer cannot hurt your case. , at his trial in 1996, during which a most There are, of course, many other techniques. A helpful able Crown Prosecutor (Mark Tedeschi QC) gave a fine ‘checklist’ for effective cross-examination can be found in the demonstration of the cross-examiners skills.7 Included Australian Advocacy Institute’s Advocacy Manual,9 and one among these skills were: should also keep in mind the ‘Ten Commandments of Cross- • Thorough and rigorous preparation, including deep examination’ referred to by the late Cornell Professor Irving reflection about the evidence, its significance and its Younger in a famous 1975 lecture.10 inter-connectedness - this can often require time, so time A competent cross-examiner must, of course, have a management is important; thorough understanding of the laws of evidence and it is • The ability to maintain control of the witness and to keep also very helpful to have a good general knowledge. One of him or her ‘on track’ and responsive to the questions being the best expositions of the proper use and limits of cross- asked; examination that advocates should read is in the judgment of • The importance of ‘setting the tone’ of the cross- Mr Justice Heydon in Libkc v R,n in which his Honour warns examination - this will obviously vary from case to case, of the mischief of offensive questioning, making comments, witness to witness and topic to topic. In some instances, compound questions, cutting off answers before they are subtlety, gentleness and indirectness of approach are best finished, questions resting on controversial assumptions, and used, whereas others require robust confrontation; argumentative questions. • Effective use of ‘timing’ and ‘pace’ of questions; The opening questions of a cross-examination are • Using Munkman’s four classic techniques of ‘probing’, important and will often set the tone, although this can, of ‘confronting’, ‘insinuating’ and ‘undermining’;8 course, change as the cross-examination moves along. In • Engaging the jury or finder of fact by frequently ‘echoing’ the Milat case, Tedeschi began very effectively and firmly the effect of previous evidence given in the case, by the established his control of the witness by using a series of way in which questions are formulated - for example, questions that he knew all the answers to, as they were based by using ‘piggy-back’ questions (where each subsequent upon irrefutable police surveillance of Ivan Milat in the days question builds upon the answer given to the previous leading up to his arrest. one) which, in combination, can have a powerful impact; A famous historic example of ‘tone-setting’ is the often- • Using verbal cues to alert the jury to the significance of cited opening question by Sir Edward Carson KC (who was a question asked or an answer given and to keep them in possession of a copy of Wilde’s birth certificate) at the involved in the process of the development of the evidence commencement of his cross-examination of Oscar Wilde in through your questioning; 1895:12 • The ability to extrapolate a dubious answer to its logical Carson, Q: You stated that your age was thirty-nine. I think conclusion and thereby demonstrate its absurdity; you are over forty. You were born on 16th October, 1854?

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Wilde, A; I have no wish to pose as being young. I am thirty- It is most important to enlist the help of your own side’s nine or forty. You have my birth certificate and that settles the expert to analyse the strengths and weaknesses of the matter. opposing expert’s opinion. Discuss with them their thoughts Q: But being born in 1854 makes you more than forty? about the expert’s report, and what questions might need to A: Ah! Very well. be asked to expose weaknesses or clarify the opinion. You It was, unfortunately, a disastrous start for Wilde that might even consider asking to confer with the opposing damaged his credibility from the outset and he never expert (there is no property in witnesses) if they will speak to recovered during Carsons withering onslaught that followed. you. fiowever, be careful not to give away too much of your thinking, which may shield them against the force of your CROSS-EXAMINING EXPERTS forthcoming cross-examination. This requires some delicacy It is absolutely key to look carefully at the witness’s CV for it and tact. will help you to know the extent and limits of their expertise, It is important to know the expert’s obligations under the and to identify ‘hobby horses’ or any tendency of the expert Expert Code of Conduct13 and the ethical rules of their toward being closed-minded, rigid in their thinking or particular profession and to ensure that the expert you are ‘theory-bound’. Such witnesses tend not to have the sort cross-examining adheres to these important ethical of eclectic, open-minded approach that courts appreciate. obligations. They are there to assist the court, not to be I recall one psychologist I cross-examined in a murder partisan. One of the best examples of a good and ethical trial who, true to their CV, was wedded to the behaviourist expert adhering to the code was in the case of an alleged school of thought pioneered by psychologist BF Skinner, ‘baby-shaking’ manslaughter trial that I prosecuted some and who adamantly maintained that every deed or act that years ago. The expert had provided the Crown with a report a person performs is a direct consequence of his or her past stating that, in his opinion, the baby could not have died experiences. So much for volition and free will! from accidentally falling from a kitchen table, as alleged by You must also identify any shortcomings of the basis upon the defence, because the table was not high enough nor the which the opinion of the expert depends. Shortcomings baby heavy enough, to have generated sufficient force from frequently occur because the material the expert has been the fall to cause the fatal injuries. However, close to midnight provided with in their brief is incomplete. For example, on the night before he was due to give his evidence, the I have seen cases where a forensic psychiatrist called by expert phoned me at home to advise that he had re-worked the defence has been briefed with a transcript of a police his Newtonian calculus, and that it was just possible that the interview with the defendant, but has never seen the actual baby could have died in the manner alleged by the defence. video recording of the interview. Where the expert has This was inevitably fatal to the Crown case and the defence only been brought into the matter a few months before and the trial judge were so advised the following morning, the trial, but the interview was recorded on the day of the whereupon a verdict of acquittal was entered by direction. crime, say two or three years previously, by not seeing the This is how the system must work if justice is to be achieved, video recording the expert has lost an opportunity to form and it is important to remember that many miscarriages of a more complete picture of the accused’s state of mind at justice have been caused by bad science masquerading as the time of the alleged offence. Another example, from a ‘expert’ evidence. ■ case 1 prosecuted, was a psychiatrist called by the defence who, in sentencing proceedings, had not been briefed with police statements of facts relating to prior convictions of Notes: 1 John Munkman, The Technique of Advocacy, Butterworths, London, 1991, p63. 2 Viscount Maugham, TheTichborne Case the accused (which had been provided to the defence by (Hyperion, 1975) p303. 3 See Dictionary of the Crown). In the absence of this information, the expert’s Biography entry at http://adb.anu.edu.au/biography/cassidy-sir- opinion, about the risk of future violence by the accused, jack-evelyn-9709. 4 See Hocking v Bell (1945) 71 CLR 430. 5 See was premised on an incomplete history and was readily NSW Barristers' Rules 59 - 74 available at http://www.nswbar.asn. au/docs/webdocs/rules2.pdf. 6 M echanical and General Inventions challenged. C o L td v A u stin [1935] AC 346 at 359, cited by Heydon J in L ib k e A good ‘winAvin’ question that always produces something v The Queen [2007] HCA 30 at [120] 7 D Howard, R v Milat -A helpful for the cross-examiner is to ask the expert witness Case Study in Cross-examination (Lexis Nexis, 2014). 8 See John Munkamn, The Technique of Advocacy, Butterworths, London, “What sort of shortcomings were you faced with in your 1991. 9 Australian Advocacy Institute, Advocacy Manual, 2008, assessment process in this case?” If they are candid they p103. 10 See http://en.wikipedia.Org/wiki/lrving_Younger#The_10_ will always admit that the assessment process was less than Commandments_of_Cross_Examination. 11 L ib k e v R [2007] HCA 30; (2007) 235 ALR 517. 12 See H Montgomery Hyde, T he Trial o f perfect for one reason or another - for that inevitably is Oscar Wilde (Notable British Trials Series, W Hodge, 1948). 13 This the way of things. If they are not prepared to make such a code is set out in Schedule 7 of the Uniform Civil Procedure Rules, concession, they are almost certainly being (and will appear 2005, available at http://www.legislation.nsw.gov.au/maintop/view/ inforce/subordleg+418+2005+cd+0+N. to be) less than candid. It never hurts to probe an expert’s opinion to find out whether it is held strongly or not, and how difficult it Dan Howard SC is a barrister; Visiting Professorial Fellow, School of was for the expert to arrive at their opinion. Often during Law, : Conjoint Associate Professor, School questioning of this kind, they will give up clues about, or of Psychiatry, University of NSW; and President NSW Mental Health even concede, weaknesses in their opinion. Review Tribunal. EMAIL [email protected].

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