NSW Barristers will be prevented from bullying and intimidating vulnerable witnesses, if proposed amendments to the NSW Barristers’ Rules are approved.
The change to the Bar Rules has been described as “the appropriate thing to do” by president of the NSW Bar Council Anna Katzman SC, who said the alterations were a formal reminder for her fellow barristers “to act professionally when you’re questioning a witness”.
Katzman spoke to Lawyers Weekly shortly after an early-morning interview with 2GB radio host Alan Jones. She admitted that her appearance on talkback radio was an acknowledgement of the high level of public anxiety surrounding the issue.
“There’s no doubt that there has been community concern about how barristers have questioned vulnerable witnesses at times certain, and the government has responded to the community concern,” she said.
Katzman dismissed Jones’ suggestion that the new rules would result in members of the Bar being struck-off. “A barrister who is acting professionally won’t fall foul of these Rules,” she said, adding that the new Rules are merely a reflection of pre-existing legal privilege obligations.
The rule changes were prompted by a request from the state Attorney-General’s office in November last year. According to the Attorney-General’s spokesperson, the request was made after Attorney-General John Hatzistergos became aware of several cases involving legal council “asking inappropriate or adversarial questions of vulnerable witnesses in sexual assault cases, including cases involving children”.
The Bar Council promptly responded with a letter outlining the intention to review the Rules. Now, proposed amendments to the Barristers’ Rules contained in the Legal Profession Act have been made public.
Rule 35 and the new Rule 35A prohibit improper questioning. Additionally, the new Rule 35A is designed to take account of the vulnerabilities of particular witnesses in cross-examination, including characteristics such as gender, race and sexual-orientation.
Hatzistergos welcomed the rule change, “This is an important step forward; the culture of adversarial questioning of vulnerable witnesses has to change,” he said.
Both Katzman and Hatzistergos stressed that the changes are an adjunct to wider criminal procedure reform in the state. Legislative amendments to the Evidence Act and the Criminal Procedure Act will see more responsibility placed on judges, come May, to protect vulnerable witnesses during a trial. The changes to the Barristers’ Rules place an obligation on barristers themselves not to ask questions with the purpose of embarrassing or humiliating witnesses.
This is the second time Katzman has spoken out about sexual assault cases since her appointment to the head of the Bar. In November she wrote an opinion piece for Lawyers Weekly (issue 365) about the definition of consent for rape trials. She says that handling such contentious issues is all part and parcel of an advocate’s role,
“Last time we were talking about the rights of the accused. Today we’re talking about the rights of witnesses. We’re not oblivious to the fact that the work that we do can cause the sort of discomfort and distress.
“I suppose the environment is an emotional one, and it often provokes an emotional response. I think our role is to make it clear to the public, in a rational way, the importance of the guarantee of your rights at trial and how everybody’s rights are important,” Katzman said.
She said that barristers have nothing to fear from the new Rules, on one condition; “I think it’s important for the profession to understand that no one need be afraid of the new rules — if they act responsibly.”