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Scangate Document 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 1 4 PRECEDENT Issue 126 january/February 2015 ADVOCACY 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 Sydney silk and legendary cross-examiner.3 He and january/February 2015 Issue 126 PRECEDENT 1 5 ADVOCACY 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 1 6 PRECEDENT Issue 126 january/February 2015 ADVOCACY 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.
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