• 03 Oct 2017

DECISION ALERT: Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243

The litigation process in an adversarial trial is necessarily robust and often involves the cross-examination of witnesses to test the strength of their evidence. Advocates appearing for a party are tasked with engaging with the witnesses under cross-examination to apply the scrutiny that the adversarial process requires.

The NSW Court of Appeal, however, has issued a stern reminder to advocates as to the limits of cross-examination. In the matter of Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243, the trial judge made adverse findings as to the evidence of witnesses whose demeanour in the witness box changed after being accused of, amongst other things, lying.

The appellant argued that the trial judge should not have made those findings on the basis that the change in demeanour was understandable in light of the cross-examining barrister's inappropriate questioning.

The Court of Appeal agreed. In the judgment of Adamson J, with whom Basten JA and Gleeson JA agreed, the Court held that

No transcript is adequate to convey the tone of the voices of the persons whose exchanges are transcribed for the court record: Royal Guardian Mortgage Management Pty Ltd v Nguyen[2016] NSWCA 88; (2016) 332 ALR 128 at [198]. Nonetheless, in the present case, the content of Mr Hart's questions, his comments to Mr Shorter and Ms Challen (many of them gratuitous and supercilious) and his inappropriate rebukes to them, make their responses, in so far as they can be discerned from the transcript, understandable.

Her Honour went on to say:

This is not to say that cross-examination cannot be robust, but it must be fair. The latitude commonly afforded to cross-examiners does not amount to a licence to offend, ridicule or vilify. Fairness requires that no proposition, particularly one which is damaging to the witness, be put without a basis. It also requires that questions be asked one at a time and that cross-examination not be peppered with gratuitous and, as in the present case, insulting, commentary to the witness. It requires that the witness be permitted to finish his or her answer and not be cut off or needlessly interrupted. Where a trial judge fails to intervene to stop such egregious conduct, an impression can be created that the judge is endorsing, or even collaborating, in such conduct.

The Judgment obtained by the Plaintiff in the proceedings below was overturned and, in its place, Judgment for the defendant was entered. The case is a reminder to practitioners and litigants alike that a robust adversarial process, though necessary for the orderly testing of evidence, has its limits.