Responsible use of court process and priv Flashcards
- B must take care in invoking coercive powers of Crt and not use power to harass / gain collateral adv
A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court:
(a) is reasonably justified by the material then available to the barrister,
(b) is appropriate for the robust advancement of the client’s case on its merits,
(c) is not given principally in order to harass or embarrass a person, and
(d) is not given principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor or a third party out of court.
- B must ensure allegations made under priv are justified / meritorious
A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person:
(a) are reasonably justified by the material then available to the barrister,
(b) are appropriate for the robust advancement of the client’s case on its merits, and
(c) are not made principally in order to harass or embarrass a person.
- Sexual assault matter – take care re questioning of victim (incl. tone /line of questioning)
Without limiting the generality of rule 61, in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence:
(a) a barrister must not ask that witness a question or pursue a line of questioning of that witness which is intended:
(i) to mislead or confuse the witness, or
(ii) to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, and
(b) a barrister must take into account any particular vulnerability of the witness in the manner and tone of the questions that the barrister asks.
- Not breach to merely to challenge truthfulness
A barrister does not infringe rule 62 merely because:
(a) the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or
(b) the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.
- B must not allege fact matter in doc/subs without proper basis
A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister,
(b) any submission during any hearing,
(c) the course of an opening address, or
(d) the course of a closing address or submission on the evidence, unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.
- B must not allege crim/fraud/serious misconduct without proper basis
A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
(a) available material by which the allegation could be supported provides a proper basis for it, and
(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
- B may regard to soli opinion re r 64 and 65 as reasonable basis for holding belief (except closing add or subs on evidence)
A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which rules 64 and 65 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence).
- B must not challenge cred w/out belief will diminish
A barrister must not make a suggestion in cross-examination on credit unless the barrister believes on reasonable grounds that acceptance of the suggestion would diminish the credibility of the evidence of the witness.
- B must not identify 3P unless necessary in mitigation
A 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 on reasonable grounds that the disclosure is necessary for the proper conduct of the client’s case.
