DUAL CAPACITIES

Dominion, Volume 33, Issue 187, 4 May 1940, Page 9

DUAL CAPACITIES

Barrister As Counsel And Witness

CANNOT BE ALLOWED Chief Justice’s Comment On Improprieties “A practitioner cannot be allowed to act in the dual capacities of counsel and witness,'’ said the Chief Justice, Sir Michael Myers, in the course of a reserved judgment given in the Court of Appeal, Wellington, yesterday. He said he considered it the duty of the Court to draw attention to what had happened at a trial at Gisborne so that the duties of solicitor and counsel might be clearly understood and similar improprieties avoided in future. The decision set aside judgment for damages in an action before the Supreme Court at Gisborne for breach of promise to marry. “If appellant were not entitled to judgment, I think that serious consideration would have to be given to the question whether there should not be a new trial,” said the Chief Justice. “One of the witnesses called to give evidence on appellant’s behalf was his solicitor, Mr. James Blair, whose testimony was directed particularly, though not entirely, to the question of recission. He gave evidence relating to interviews that had taken place between himself and respondent tuiid also between himself and Mr. Bernard as solicitor for respondent and her brother, Air. Walters. Series Of Questions. .“He said in particular that respondent had never made any complaint whatever to him of any breach of promise by appellant, that the question of marriage was not mentioned, and that respondent macle no complaint of a breach of promise or of any .other matter as against appellant. He also spoke of Air. Walters’s claim as represented by Air. Burnard to be a claim by that gentleman as a person standingin the place of a parent to respondent for damages for seduction. Mr. Blair said that on one occasion Mr. Burnard had suggested a breach of promise, but that tlie suggestion was not pressed or treated seriously. “Mr. Burnard, who acted as counsel for respondent at tlie trial, in crossexiiminatio not Mr. Blair, put a series of questions such as these: Was not my attitude so-and-so at tlie conference that I had witli you? Did I not say this? Did I not say that? The nature of these questions is clear from a perusal of tlie notes of cross-examination. “To my mind all such questions were exceedingly improper,” said tlie Chief Justice. “It is true that in New Zealand. most practitioners, though not all practise as both barristers and solicitors, but I have never yet heard that that entitles a practitioner to act otherwise than in accordance with the rules of professional conduct which have been laid down by and for the Bar of England and which we have always followed in this country. Indirectly Giving Evidence. “A practitioner cannot be allowed to act in the dual capacities of counsel and witness. If there is a possibilityof his being required as a witness he must make Jiis election at an early stage as to the capacity in which lie will act. In the present case, obviously Mr. Barnard's questions were calculated to convey to the jury by suggestion evidence that lie himself could give. He was, inweffect, indirectly giving evidence. “According to tlie agreed statement read during Hie argument, he went further by asking leave at tlie conclusion of Mr. Blair’s testimony to go into • tlie witness-box and give evidence himself. This application the learned judge of course refused. But Hie mischief was done. Counsel.for appellant oliviously was placed in a position of great difficulty and according to tlie agreed statement already referred to lie then made tlie admission— presumably constrained by the embarrassing position in which a fellow-practitioner wtts ! placed and also lw Hie embarrassment which lie must necessarily have felt lest his own case lie prejudiced in Hie, eyes of the jury consequent upon Mt. Barnard’s questions and the refusal of Hie Court to allow him to enter the. witness-box and give evidence—that there was a 'distinct cleavage’ between Mr. Blair and Mr. Burnard.”