Reflections on the Lehrmann trial: Part 2 – Procedural fairness in the cross-examination of witnesses

In our second article of the ‘Reflections on the Lehrmann trial’ series, we discuss the Federal Court of Australia’s prevailing consideration for procedural fairness in the cross-examination of witnesses. This was demonstrated in two examples, where the Court considered whether:

  • it would be ‘just’ to limit the cross-examination of a witness subject to them being questioned by more than one counsel; and
  • an exception to credibility evidence being inadmissible had been satisfied.

Importantly, Lee J stressed the importance of cross-examination not being repetitive, oppressive, or diverging from a ‘clear pathway’ of obtaining direct and relevant responses from a witness.

Duplicity of questions

In Lehrmann v Network Ten Pty Limited (Cross-Examination) [2023] FCA 1477, Lee J warned against the duplicity and bifurcation of questions put to witnesses.

During the trial, issues were raised in relation to the cross-examination of the applicant, Mr Lehrmann, who had brought proceedings against the two respondents, Network Ten and journalist, Ms Wilkinson. Senior counsel for Mr Lehrmann, Mr Whybrow SC, was invited to indicate whether he wished to lead evidence in chief in relation to either: all issues joined on the pleadings; or only those issues upon Mr Lehrmann bore the onus. The former course was adopted. Dr Collins KC for Network Ten proceeded with his cross-examination of Mr Lehrmann on the basis that Mr Lehrmann had given his evidence in chief on all issues in the case. Ms Chrysanthou SC for Ms Wilkinson stated that it was her intention to also cross-examine Mr Lehrmann.  Justice Lee directed that a note be provided explaining the basis upon which it was asserted that cross-examination by more than one counsel should occur.

Before considering the suggested bases for such further cross-examination, Lee J considered the relevant procedural principles and conventions, as follows:

  • There is no unfettered right to cross examine a witness at common law or since the passage of the Evidence Act 1995 (Cth) (EA) (see Pt 2.1 Div 3);[1]
  • The only actual “right” is the right to have a fair trial. It is the duty of the trial judge to ensure that all parties have a fair trial. In carrying out their duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured;[2]
  • Ordinarily, where two or more parties are in the same interest, the trial judge’s discretion will be properly exercised if not more than one counsel is permitted to cross-examine, at least on the same subject matter;[3]
  • The rule is for the protection of the witness (against potential oppression) – “If this rule were not adhered to, a witness might be subject to the examination or cross-examination of as many barristers as were retained for the plaintiff or defendant, much time would be wasted, and great confusion would be introduced into proceedings at Nisi Prius”;[4]
  • However, one reasonable exception to the common law rule arises from the changing nature of litigation, with a common feature now being for counsel on one side of the record to split their trial preparation on a topic-by-topic basis.[5]

Despite these common law rules of practice, the starting point is now the EA and in particular sections 26-28 which relevantly concern the Court’s control over questioning of witnesses, parties who may question witnesses, and order of examination in chief, cross-examination and re-examination.  Lee J stated that properly analysed, the question was best expressed as follows (at [12]):

notwithstanding counsel for Ms Wilkinson “may” question Mr Lehrmann (s 27) and that any re-examination should not occur until after both respondents who “wish” to…

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