Witnesses should be referred

A solicitor interviewing a witness in a criminal or domestic violence proceedings could jeopardise their career, warns criminal lawyer Ron Behlau.

Mr Behlau, Partner of Queensland-based Behlau Murakami Grant and Director of the firm’s Pro-Bono Division, said any solicitor who did not refer an actual or potential police witness in a criminal, or domestic violence matter to another lawyer exposed themselves to potential criminal prosecution.

His comments follow the recent acquittal of Paul Xavier Tobin, a senior Aboriginal Legal Service lawyer in the West Australian District Court where the prosecution alleged the lawyer perverted the course of justice over an allegation that he discouraged a domestic violence victim from giving evidence.

Mr Behlau, who previously acted for another Western Australian Aboriginal Legal Service lawyer who was also charged with perverting the course of justice arising out of the similar facts but whose charges were dropped in October 2022 after a submission to the Crown, said the incident was a red-letter day for all Australian solicitors.

“It would be inappropriate for me to discuss the subjective details of my client’s matter but objectively this matter highlights the very real and serious risk solicitors place themselves in when talking to witnesses in criminal and domestic violence matters,” Mr Behlau, who is also an Adjunct Professor of Law at Griffith University, said.

“Because of the real risk of allegations of wrongdoing and thus possible prosecution, best practice dictates all supporting and corroborating witnesses should be referred to independent legal practitioners to take statements to ensure independence.


“Failure to follow this procedure could result in a solicitor being charged and prosecuted as we have seen in Western Australia.

“All it takes is a person to say the solicitor told me to say this or not to say something, and this potentially grounds the basis for an investigation and likely prosecution.”

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