by Karthik Maganty

Recently, I had the opportunity to shadow a well-respected criminal defence barrister in a number of committal hearings, pleas and appeals, as well as a trial for an attempted rape.

Despite the somewhat confronting factual nature of cases and the often emotional parties, what distressed me most occurred during the cross examination of a witness.

Lawyers are usually depicted in television shows and movies such as The Lincoln Lawyer as adopting an aggressive approach in the questioning of witnesses. Often they are portrayed as badgering and berating witnesses until they are able to elicit a response that either proves an incident did not occur or attacks the witness’ credibility. Sometimes, this could not be more removed from reality.

During cross-examination, counsel politely asked the witness questions in a pleasant manner, often scoring points through the subtlety. However, during the cross-examination of a witness at a committal hearing, the witness broke down and proceeded to cry. Subsequently, the Magistrate excused the witness so she could compose herself.

At this point, I came to a realisation that the Magistrate, by permitting the witness to compose herself, was to a degree reinforcing the testimony of the witness and legitimising their allegations.

Indeed, it is possible that the allegations made by the witness may be true and, if so, it could be very difficult for a witness to recall the attack in explicit detail. It is not a trivial matter where someone has been assaulted and proceedings should be dealt with delicately. In such a case, I believe the Magistrate would be justified in permitting the witness to compose herself. However, regard should also be had to the interests of the accused.

While our system is predicated on fairness for all, we should be careful not to be influenced by emotions and should be able to make an independent assessment based solely on facts alone.

The Evidence Act aims to facilitate fairness to both parties. However, minor matters such as the one described above have the potential to affect the outcome of a case.

I leave you with the oft-quoted comment of Howard LCJ in R v Sussex Justices; Ex Parte McCarthy which appears to reflect my sentiment during my experience of shadowing counsel. His Honour states: “it is not merely of some importance, but of fundamental importance that justice should not only be done but it must be manifestly and undoubtedly be seen to be done”.

As a lawyer we have a duty to our client as well as a superior duty to the Court. The above shows that it may be difficult to balance the competing duties as well as the fact that a minor act can have a significant implication to parties. We need to be aware of the nuances of a situation in order to appropriately deal with them.