Judge warns about reactions to questions and answers in courtroom

A New South Wales Supreme Court judge has issued a stern reminder about the conduct of legal practitioners in court during witness examination.

In a property claim judgment he issued on 11 June, Justice Michael Meek warned that any overt expressions or reactions to questions and answers should be avoided by court observers to avoid risks of inappropriately influencing witnesses and examiners.

During the defendant’s cross-examination, Justice Meek’s Associate had informed him that the defendant’s solicitor was shaking her head before some answers were given by the defendant.

Justice Meek said he had observed it at least once.

“At the time, my provisional impression was that the solicitor was facing the witness box and the shaking of her head was not some unassociated movement but connected to the question asked,” he said.

“It is not necessary for me to form any concluded view about the matter. At the time, to avoid any possibility or risk that the defendant was being influenced regarding responses to questions, I simply made the observation that witnesses need to be able to give their evidence without influence from other people in the courtroom.”

Justice Meek said he did not intend to take the matter any further.

“However, it would be remiss of me not to reiterate that court proceedings should be conducted in a manner consistent with the solemnity of the occasion and facilitative of the administration of justice,” he said.

He said the only people actively involved in the examination of a witness should be the examiner, witness and judge, and other attendees “should not audibly or visibly respond to questions or answers”.

“Non-exclusively audible or visible responses include gestural responses whether they be nodding of the head (up and down), shaking of the head (from side to side), facial expressions and hand movements, scoffing, or any other overt paralinguistic expression,” he said.

“Intentionally or unintentionally, such overt responses to questions that are being asked by an examiner or answers being given by a witness gives rise to a grave risk that the witness will be inappropriately influenced such as responding to a question in a particular way or otherwise feeling judged or shamed.”

Similarly, an examiner may be influenced in their questioning, Justice Meeks said.

“Even in cases where there is no motivation or intention on the part of the attendee to influence or affect the proceedings in any way, the fact that the reaction has been made, may nonetheless have the objective effect of conveying disapproval of a question or an answer,” he said.

“For example, if the attendee reaction is in the form of some scoffing, it may act to shame the examiner or the witness.

“If court attendees who are not involved in the examination of a witness are unable to control themselves to what is unfolding before them, they should leave the courtroom, at the very least do so temporarily, until they are able to compose themselves and, if they wish to return to court then to do so in circumstances where they are able to observe without demonstrable response.”

Read the case here.

Read the Australian Solicitors’ Conduct Rules here.