Responsible Use of Court Processes and Privilege

Question 1

Rule 60 - Court processes (reasonably justified; appropriate; not to harass; collateral)

Answer 1

● Rule 60: Take care to ensure that barrister’s advice to invoke the coercive powers of a court:
○ (a) Is reasonably justified by the material then available to the barrister
○ (b) Appropriate for robust advancement of client’s case on its merits
○ (c) Not given principally to harass or embarrass a person
○ (d) Not given principally to gain some collateral advantage for the client or the barrister or the instructing solicitor or a third party out of court.

Question 2

Rule 61 - Allegations under privilege (justified; appropriate; harass)

Answer 2

Take care to ensure decisions to make allegations or suggestions under privilege against any person are:
○ (a) reasonably justified by the material then available to the barrister
○ (b) Appropriate for robust advancement of client’s case on its merits
○ (c) Not made principally to harass or embarrass a person

Question 3

Rule 62 - Questioning when sexual assault trial

Answer 3

In proceedings where there is an allegation of sexual assault, indecent assault or commission of an act of indecency and alleged victim gives evidence,

(a) cant ask question or pursue line of questioning which is intended (i) to mislead or confuse the witness (ii) or which is unduly harassing, intimidating, offensive, oppressive, humiliating or repetitive
(b) must take into account any particular vulnerability of the witness in the manner and tone of the questions that the barrister asks

Question 4

Rule 63 - Exceptions to 62

Answer 4

Above not infringed merely because (a) Q challenges W’s truthfulness or the consistency or accuracy of any of their statements; (b) question or questioning requires the witness to give evidence that the W could consider to be offensive, distasteful or private

Question 5

Rule 64 - Proper basis for allegations

Answer 5

Barrister must not allege any matter of fact in (a) court document they settle (b) submission during any hearing (c) course of opening address (d) course of closing address or submission on evidence without belief on RG that there is a proper basis on the available factual material

Question 6

Rule 65 - Allegations of criminality (proper basis; client wants)

Answer 6

Must not allege any matter of fact amounting to criminality, fraud or other serious misconduct unless believes ORG that:
● (a) Available material by which allegation could be supported provides a proper basis; and
● (b) Client wants the allegation to be made, after having been advised of seriousness and also possible consequences for client and case if not made out.

Question 7

Rule 66 - Reliance on instructing solicitor opinion

Answer 7

May regard instructing solicitor opinion as to Rules 64/65 stuff as RG for holding belief required by those rules except in the case of a closing address or submission on the evidence)

Question 8

Rule 67 - Credit

Answer 8

Can’t make any suggestion in cross-examination on credit unless believes ORG that acceptance of the suggestion would diminish credibility of the witness.

Question 9

Rule 68 - Mitigation

Answer 9

Barrister who has instructions which justify submissions for the client in mitigation of the client’s criminality which involve allegations of serious misconduct against any other person not able to answer the allegations in the case must seek to avoid disclosing the other person’s identity directly or indirectly unless the barrister believes ORG that the disclosure is necessary for the proper conduct of the client’s case.