This Royal Commission has been a fascinating, sometimes truly terrible, insight into both humanity and the nature of Institutions. Equally fascinating has been watching the cross-examination style of Barristers and Solicitors appearing as advocates before the Commission.
To digress almost immediately (as I am wont to do), we had an interesting discussion the other day with an Aboriginal Liaison Officer and a Social Worker (both of who had enormous experience and insight into how the Commission is running). Their job is assisting survivors in many and varied ways. The term that seems to have currency at present is “trauma informed practise”. It makes a lot of sense, learning from experience and reflection, that you endeavour to not make the survivor feel worse than they did because of your intervention (be it taking instructions or general interactions). It is in some ways the direct opposite of what we normally do; in that, as defence lawyers, we constantly pry in the darkest recesses of people’s lives.
After this discussion a couple of our lawyers were reflecting about how survivors were treated at the Royal Commission and the various styles of the lawyers appearing.
There seem to be a number of clear styles;
- Counsel At Sea – These advocates who appear somewhat lost and approach the hearing as if it were a committal proceeding. Wide, open ended questioning meandering through a topic (and sometimes missing it altogether)
- Heads-Down Counsel – These are the advocates who are trying, desperately, to keep their client out of the case study altogether and would have to be whipped before they would ask a question. Often a very understandable position to take.
- Bombastic Counsel – Counsel, often very Senior, who have been engaged by Institutions. They normally come out of the blocks at the start of their questions quite hard at the witnesses. After a few witnesses you see these Counsel start to wilt as they rightly recognise the damage they are doing. Bombastic Counsel often morph into Heads-Down Counsel.
- Very Clever Counsel – These lawyers are well prepared and have a clear plan that they are following. It is always a pleasure to watch them in action as they make their points in an elegant and measured manner. It goes without saying that all the types of lawyers at the Royal Commission consider that they fall into this category. In reality there are not that many of this quality but they are worth employing if you can afford them.
- Declamatory Counsel – These are the Barristers who are making a statement and not terribly interested in the answer. The following is just an example of a question of this type from the Royal Commission. I must add, I am not asserting that Counsel who asked this questions falls into any particular category. The question, though, does fall in the declamatory style.
I will start again and I will speak louder. My name is “AA”. I appear for “BB”. Did you hear that?
Thank you, Mr “AA”.
Okay. Look, despite all you say at paragraph 37 ‑ and I will reiterate this, you have heard it already from Counsel Assisting ‑ you were charged, convicted and sentenced for horrific sexual violation against “BB”. There was no successful appeal, and for you to proclaim your innocence is absurd and delusional. You are a disgrace. It cannot be denied that you are a paedophile.
MR “AA”: Nothing further.
THE WITNESS: What was that?
There were no follow up questions at this point.
As you can see, in the declamatory style, he made the point he intended to even if the witness did not necessarily hear him and was not responsive in his answer.
I think the various styles reflect the fact that a Royal Commission does not fall inside our normal adversarial process and people sometimes struggle with that concept.
I think it is incumbent on all lawyers appearing at this Commission to bear in mind how they approach the survivors giving evidence. Bear in mind trauma informed practise. There will inevitably be questions that have to be asked that will upset and insult people. The key we observe, is that this questioning should be done with a plan in mind.