Where’s the evidence? Duties of counsel when making allegations of misconduct

Green v Emergency Services Telecommunications Authority [2014] VSCA 207

The Victorian Court of Appeal recently confirmed the importance of counsel’s duty to ensure serious allegations of misconduct are only made if reasonably justified by available material.

The facts

The appellant (Green) worked as a call-taker and fire-dispatcher for the respondent (ESTA). Green claimed  that during the course of her employment she had sustained personal injuries as a result of ESTA’s negligence and/or breach of statutory duty. In particular, Green argued her injuries arose from her work environment on 7 February 2009, or Black Saturday. Following a nine day trial, the jury found that ESTA had not committed negligence or breach of statutory duty.

The Court of Appeal

Green appealed and raised various grounds alleging that the trial had miscarried. However, the focus of the appeal related to two complaints about the conduct of ESTA’s counsel at trial:

  1. ESTA’s counsel had no reasonable basis for his allegation of recent invention, implying that Green had colluded with her solicitor and concocted the argument that her work on Black Saturday was the cause of her injuries.
  2. Cross-examination of Green about her medical histories was unfair as they were selectively quoted to give the impression that Green had not raised Black Saturday as a potential cause of her injuries.

The Court of Appeal (Ashley, Priest and Santamaria JJA) found in favour of Green and allowed the appeal. The Court focused on the first of the appellant’s complaints.

The Court found that, while ESTA’s counsel had not put the allegation directly to Green, the nature of the questioning in cross-examination insinuated that Green had colluded with her solicitors to concoct her story. In response, during the trial, counsel for Green provided opposing counsel with documents that showed Green had raised Black Saturday with two previously engaged solicitors, prior to raising the issue with her current solicitor.

Counsel for ESTA did not correct the allegation and repeated it in closing submissions, asserting that Green had said nothing about Black Saturday to her earlier solicitors.

The Court stated that such a serious allegation could never be made without a solid foundation. Serious allegations of misconduct must not be made by counsel unless reasonably justified by the material available to them.

Such an obligation arises from counsel’s paramount duty to the Court and to truth and justice. The Court found that once ESTA’s counsel was provided material that showed the allegation could not be maintained, it should have been withdrawn.

The Court was critical of the failure of Green’s trial counsel to recall Green or call her current solicitor to refute the allegation. However, their Honours found that there had been a substantial miscarriage of justice, notwithstanding the inaction of Green’s trial counsel. The actions of ESTA’s trial counsel had caused irreparable damage to Green’s case, whether or not the jury’s finding was open on the evidence.

Discussion

The decision is an important reminder of counsel’s duty to ensure serious allegations are based on solid evidentiary foundations.

Further, it is a helpful reminder of opposing counsel’s duties in responding to such misconduct.

If proper objections are not made or the allegation is not properly refuted, besides not correcting the error, this inaction may also endanger a finding of miscarriage of justice on appeal.


Timothy Goodwin – CommBar profile

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1 Response

  1. Jaques says:

    I was the victim of a home invasion. A complete stranger entered my house and armed himself with a knife taken from my kitchen and entered my bedroom whilst I was asleep. When I jumped out of bed the person fled- and attempted to steal my car- having already stolen my keys. The police were able to identify the intruder via DNA evidence found on the knife which he left in my car having failed to steal it.

    18 months later I attended court as a witness. This was a simple yes/no affiar- until I was suddenly attacked by the defense barrister in cross examination: out of the blue he accused me of being known to the intruder, a friend of his, and furthermore his meth dealer! I was completely shocked an unprepared for this turn of events. I denied it vociferously- the barrister repeated the claim in numerous formulations. The DPP did not get me back on the stand- and made no real attempt to challenge this slanderous allegation. The judge was also largely silent. The defense barrister offered no evidence to back up the claim and the accused never uttered a single word in court.

    There was never any question about the certainty of the DNA evidence linking the home invader to the crime. However the allegation that I was known to the invader, and his meth dealer- was used to insinuate that his DNA came to be on my kitchen knife in the course of some joint criminal enterprise between myself and the accused.

    It goes without saying that I am not a meth dealer- and that I had never met or knew the invader. The allegation was completely without foundation- a total lie.

    Never the less- the jury took over 9 hours- before coming to a finding of not guilty- and the home invader walked free from court that day. This was particularly horrible outcome as before he had entered my house that day he invaded another house and violently assaulted multiple victims in their beds. He is a career criminal with a long record of violent and serious crimes.

    I was left utterly devastated bu this turn of events- I felt demeaned, slandered and re-victimised bu the court process.

    I feel what happened to me is a textbook case of what you have written about in your article: the defense barrister made outrageous claims of criminal conduct against me- they were made without any evidence to back them up at all- just pure mud throwing slander. The result of this was a miscarriage of justice.

    The DPP have indicated they have no avenue to appeal this jury decision.

    I would be interested to know your thoughts about what happened to me. I have made an official complaint about the conduct of the barrister to the Law Society- and am seeking whatever redress is open to me. I am left with absolutely no faith in our judicial processes.

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