“When it comes to commentary upon courtroom contests, no experience, no skill is required. Anyone will do. Little wonder then that the Jones reporting focus is upon the entertainment, the icing and the candles instead of the cake,” writes former barrister HUGH SELBY.

This article is not about guilt or innocence. It’s not telling you what to think about the cause célèbre now running in a Sydney Local Court room.  

That’s a question for those who are familiar with all the evidence, not just those titillating bits that are selected for media reporting. 

We expect those who comment upon high-level sports to be highly regarded former players, knowledgeable not only in the physical skills but also the rules and the game strategies.

But when it comes to commentary upon courtroom contests, no experience, no skill is required. Anyone will do.

Little wonder then that the reporting focus is upon the entertainment, the icing and the candles instead of the cake.

Gone are the skilled court reporters of bygone days.

To critically follow a court case the observer (be that media reporter or media consumer) needs to know the case strategy of both sides because that informs the lines of questioning.

The observers also need to know enough about good questioning to be able to assess how well or poorly those lines are being pursued by the competing advocates. 

Alan Jones, former well-known, long-time radio identity and a successful football coach, is defending claims by multiple male complainants that he sexually assaulted them.

These claims go back many years (he is now an old man) and seem to be of the “one-on-one in private” type. 

That means it is their word against his word.

The prosecution has strengthened its case by claiming that since the complainants – who are independent from each other – are alleging similar conduct by Mr Jones – such as non-consensual touching, genital fondling, kissing – that he had a tendency to do that. 

The concept is that the separate alleged complaints “back up” each of the others.

It’s quite natural to think that multiple complaints from unrelated people about the same behaviours suggest guilt.

However, suggestion is not proof.

Many events are seen in a different light when dissected. What seemed clear becomes unclear, at which point there is doubt and hence no conviction.

Three years ago renowned American actor Kevin Spacey was acquitted in London of nine sexual offence charges relating to four men.

Mr Spacey gave evidence. The combination of the cross-examination of the complainants and his performance as a witness secured his success. That was a winning strategy.

In “word-against-word” cases the prosecution must persuade the fact finder for each charge that the totality of the complainant evidence proves that the defendant is guilty beyond a reasonable doubt.

If there are multiple complainants then it’s important to have good tactical reasons for the order in which the complainants give their evidence.

A case plan that doesn’t address the best order of witnesses is not a plan – it’s a disaster waiting to happen.

For example, it would be bad tactics to call the “weakest” complainant first. A successful cross-examination of that complainant would pre-taint the strength of the following complainants.

Whether it’s one or more complainants the defence too needs a case plan. If there are no surprise recordings, text messages or emails to “expose” a complainant as untruthful or exaggerating then – assuming that the defendant will give evidence – the plan is to create doubts about each complainant’s story, believability (or both) and then have the defendant, a la Spacey, present as very believable.

For a cross-examination to create those doubts about each complainant it will either be hard (where the witness can be confronted with contrary evidence such as a recording) or soft, by which is meant building doubts from a combination of small facts.

It is counter-productive to repeatedly confront a confident witness with allegations lacking facts in support that they have already denied. Such an attack strengthens the believability of the witness and tips the scales against the story to be later told by the defendant. Too much unsupported attack can ensure that defeat is snatched from victory. 

What skill set is needed at first instance?

Do not fall for the common mistake that labels such as kings counsel or senior counsel (there’s no difference in status) show a talent for being a good “first-instance” advocate. Many of those with such labels have an enviable knowledge of the law, but poor questioning skills.

The skill of making good legal arguments to an appeal court and interacting with appellate judges does not mean being skilled in the bread-and-butter of eliciting answers from a witness – be it their own witness or an opponent’s.

Being a good first-hearing advocate is a skill, developed by long and varied experience, learning from mistakes, benefiting from good mentoring, but above all knowing and working with one’s strengths and weaknesses. 

Talent, for those few with the good luck to have it, is a nice touch – especially for those blessed with the capacity to drop the perfect question at the right moment with the right tone, pace, and use of silence before asking and after getting the answer.

Yes, silence. There are so many occasions when the best advocacy is to be quiet, to wait for the right time, that moment when a simple question or a comment will reset a case.

The atmosphere in the courtroom changes. Everyone present knows it – that quiet, still moment.

That’s a magic moment during performances (sic) by witnesses and advocates. It occurs within the telling of different stories about what happened. There will be points of agreement and significant points of difference.

Are those differences explained by lapses of memory, by different perspectives, by gaps in what the witness could observe or hear, by lies told to benefit the witness or to protect one or more others?

Being able to explain those differences and to persuade a decision maker that the client’s story is to be preferred to that of the opponent is the end game.

To get there requires well-honed, multiple skills. The advocate must work with their witnesses to build a credible story that will resist attacks from the opponent.  

They must also undermine that opponent’s witnesses by either or both successful attacks on the content of their story or their believability.

Methods that are common to all questioning in a hearing

There are some fundamentals for questioning witnesses, whatever side they appear for, and whether it is examination-in-chief, cross-examination, or re-examination. These basics are easy to set out, rather harder to put into practice:

• Listen to what is being said by the witness, reflect on its importance, and only then ask a question that uses that process of reflection.

• Be clear with the witness, the client, and the decision maker as to what topics, in what order, will be presented. This makes it easy for everyone to follow how the story is being developed. It’s setting an agenda.

• With each witness start and finish with strong points, put the weak stuff in the middle. Poor questioners often follow a strict timeline approach which means that it is pure chance as to whether they start or finish with powerful points.

• Ask short questions making just one point. 

• The ammunition for the next question is often found in the answer just given by the witness. This basic lesson is never learned by many advocates who prefer to work from a scripted set of questions that assumes how a witness will answer.  Given that the witness doesn’t know how they will answer it is surprising that advocates think they can anticipate what will be said.

The aims of questioning one’s own witness

Work with them to tell their story in a manner which complies with the rules of evidence (known as admissibility), is relevant, interesting and persuasive.

The power of the story told by the witness by answering the advocate’s questions should be much stronger than if the witness had told the story on their own.

The advocate is working to create a believable witness (called credible) who tells a story that is structurally sound. Both a good message and a credible messenger are necessary to succeed.

Anticipate and minimise the openings for the following cross-examination. Example: it is reported that complainant J (the only prosecution witness so far reported to give evidence of alleged improper acts by Mr Jones) had become a police officer but left for undisclosed, but allegedly adverse allegations.

If this is correct then the topic of the ending of his police career should have been covered by the prosecutor during the examination in chief. It should not come as a damaging surprise during the later cross-examination.  

The aims when questioning an opponent’s witness

Putting to one side some technical requirements, the aim of cross-examination is that one’s case is stronger, not weaker, at the end of the questioning.

This ought to be obvious but is often overlooked. If cross-examination won’t improve the case then don’t do it: another example of strategic silence.

The advocate should make clear the aims of the questioning to the audience (decision maker and public), the target witness, and their client. 

Done well it will expose the weaknesses of a witness and their evidence. Success means that later there is a clear reason for the decision maker to reject some or all of that witness’s account.

There are cases, such as bitter business disputes, where the factual material drags in multiple players, the voluminous written records are gathered over years, and the phone records are hundreds, if not thousands of pages. In those cases the management of all this data needs computer programs and the cross-examination can take days.

But where the events (even if traumatic) are short and easily described, and where there is no paper trail or recordings to show that an account is false, then a long cross-examination likely means repetition and speculation.

Far from being effective, such a cross suggests desperation.

Some clients, embittered by the hand that fate has now dealt, ask their advocates to “hurt” an opponent’s witness by belittling them, not for the battle advantage, but to have some short term, public revenge on those who have harmed them.

Usually, cross-examination should not be a hunt for the unknown. This is because a non-controlled approach can bring answers that are fatal to the advocate’s case. 

There is an exception though: when the case is lost and only a miracle can save it, then the advocate may go fishing: there’s a memorable delight (and a sigh of relief) when an opponent’s witness reveals something unknown that turns a case upside down.

Methods that work with one’s own witness (examination-in-chief)

• Connect the answer to the following question or announce a change of topic;

• Be seen and heard to listen to, and respond to, the witness’s answers; and,

• Anticipate and reduce the impact of likely lines of cross examination by having the witness explain something that, unexplained, gives the cross-examiner a free kick.

Methods that work with the other side’s witness (cross-examination)

• Never be nasty until the benefits of being nice to the witness have been exhausted. Sadly, this self-evident truth is often ignored.

• Cross-examination is like crawling.  Its progress is slow, incremental, but along a chosen trail.

• Is it to be an attack on the witness’s believability, or the content of their message, or both?

• If non-believability is the focus, then the questions must fall within the limited ambit allowed under evidence law. It’s harder for prosecutors than defence counsel: a prosecutor must have good reasons to persuade the decision maker that leave should be granted to ask such questions.

• Before the hearing it is essential to examine the likely evidence in chief to come from an opponent’s witness and find attack points that give a viable case, not a case that is desperate. 

• In criminal cases the prosecution must provide witness statements to the defence before the hearing. The defence does not have to tell the prosecution what its witnesses will say (with some exceptions for expert evidence).  However, the defence cross-examination of the prosecution witnesses gives the prosecution a good idea as to what evidence the defence will later lead.

• Whatever those attack points might be it is necessary to anticipate how the target witness might escape. It is then necessary to work out how to prevent that escape.  This is called ‘closing the gates’ (as in herding animals towards a pen) along the way.

• Only raise a point of difference between something the witness said on another occasion and what they are saying now (known as prior inconsistent statement) if the difference really matters.  Pointing out that the witness said one thing months or years ago and is now saying something slightly different is usually pointless: don’t we all describe the same events differently with different audiences and over time?

• Be clear about how a successful line of attack will lead to a persuasive assertion in closing argument about a witness’s non- believability for part or all of their message.

Common errors

Australian legal education doesn’t recognise the value of good questioning skills, be that in interviewing clients or questioning in court.

These topics are covered, but only briefly and inadequately, in the compulsory “practical” courses that law graduates must do before they are permitted to be practising lawyers.

Ask around these days, “Who should I go and watch in court to learn about good questioning?” and the most likely answer is: “Don’t know, but it doesn’t matter. Just make sure you know your evidence rules and when to object”.

With no role models, no heroes, no careful reviews of what worked and what didn’t, it’s not surprising that the average advocate has a blinkered horizon.

It’s uncannily similar to the person who can boil an egg, even hard boil it, possibly fry one, but won’t tackle an omelette – because they’ve never seen one being made, or experienced the memorable taste of one that is made well.

This absence of quality, or even the recognition of its absence, leads to clients (who would seek out information about which surgeon is most highly regarded by their peers for a specific procedure) to select as their advocate for a first-instance hearing someone who successfully spends most of their time in the appellate courts where the facts are not in dispute.

Clients are apt to accept a lawyer’s charge rate and media profile as sufficient basis to engage them. Those factors are relevant but far from sufficient.

Rumpole of the Bailey knew his place. It was first-instance, not appeals. Those who specialise in appeals should know that their place is where they usually work.

It is a bemusing irony that lawyers who are retained to pour scorn upon the skills of others (especially in negligence actions against health practitioners and those in the construction industry) have no interest in, and no means to make, a qualitative assessment of the performance of litigation lawyers. 

Best of all, at least from the perspective of those who like the status quo, is that what advocates do on their feet in a hearing can’t be the basis of a negligence claim. To the question, “Why so?” the answer is, “T’was ever thus”.

In criminal cases it is occasionally possible for an appellant to raise the argument that their trial counsel was “incompetent”: it very rarely succeeds.

Given this uncomfortable reality it is hardly a surprise that errors in questioning are commonplace.  Here are some examples:

• Following a chronological development when the case calls for a focus upon specific topics that should be addressed out of time sequence.

• Repeating questions to which the witness has given, and continues to give, a clear, believable answer. The repetition strengthens the witness but makes the advocate look desperate. For example: repeatedly claiming that a witness was motivated by personal gain, such as compensation, and getting the same denial over and over again.

• Asking questions that assume facts for which there has been no evidence. Example: if the suggestion is that the witness did something for money, such as making a complaint, then there needs to be evidence such as recording or a text message that backs up that claim. Absent such independent evidence the question is based on speculation.

• Asking a question that is not one question but two or more.  The witness or their advocate can ask that the question be broken up into its separate bits.

• Talking over the witness who has not finished their answer.  There are several problems with this bad habit, one of which is that it shows that the advocate is not listening to the answer.  

• Being nasty in cross-examination before the benefits of being nice have been exhausted. Example: if it can be shown that a witness (such as complainant J in the Jones case) gained a lot of benefit from their interactions with a client then bring those benefits to life, and show that gratitude is in order, that there was mutual trust, before turning to attack the witness. Example: in Complainant J’s situation the long term weekly payments amounting to more than $100,000, the gift of a phone to encourage calls, and a car.

• Successful cross-examination needs a good foundation. Suppose that the desired point is that given that Complainant J only came forward after others had done so, his credibility is suspect. 

Assuming that Complainant J confirmed the duration and the amount of the payments and the gifts then shift to his agreeing that he was later being paid a salary as a police officer, that he had ready access to good advice about how to complain about Jones’ conduct, that he either didn’t seek such advice, or if he did, that he didn’t act on it, that as a serving police officer he had no reason to ‘be afraid’ of his former patron.

The ‘best questions’ in cross are those to which any answer is a win for the advocate. Example:

1. So, as you’ve told us, you trained and served as a police officer?
2. And as a serving officer you could get up to date advice about how to respond to historical allegations of sexual assault?
3. Did you seek that advice?  

Note the advocate wins whether the answer is yes or no.

1. You’ve told us repeatedly that you were afraid of the defendant?
2. That you froze when his acts that you describe took place?
3. Acts which didn’t stop you seeing him again, one on one? 
4. And you chose to go to see him?
5. Voluntarily?
6. Repeatedly?
7. At different places?
8. And those acts that you now claim, they didn’t stop you taking the money and the gifts?
9. Acts about which you didn’t complain, except to a girlfriend?
10. Even when you could, as a police officer, have taken action, you didn’t?
11. Do you understand that your long term willingness to accept generous gifts and your much longer term failure to complain suggests that now you complain too much?

Again the advocate wins whether the answer is yes or no. (Some would argue that this is argument not a question.)

Complainant J was cross-examined for three days. Based on the media reporting he thrived.

It could be that much more was achieved in Mr Jones’ favour. We won’t know until the magistrate gives his decision. 

Over the next days and weeks of evidence in the Jones hearing it would be nice if the case plans were shared, if the reporting revealed more about the changing atmosphere in the courtroom, and what passes between the magistrate and the advocates.

Alas, that’s unlikely to happen. 

Which is why the daily video of Lehrmann’s ill-fated defamation case in the Federal Court, and the ACT inquiry into the Drumgold allegations (the Sofronoff inquiry), was so much better than media reports for all  those who hanker after a better appreciation of the day-to-day of our justice system.

News all day, every day at CityNewsQBN.com.au.