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