Coaching, witness statements and the gallery
Illustration by Alexander Hunter for The Washington Times (published September 23, 2018) [Image available at: https://www.washingtontimes.com/cartoons/campaign-2012/leading-witness/]
Coaching, witness statements and the gallery
Trial is an intricate process. There are numerous rules and proprieties that must come into play when one considers the same.
A simple example that is oft-overlooked would be the handling of witnesses and the presence of individuals in the gallery.
Coaching of witnesses
The coaching of witnesses is a reprehensible practice. One can never tell the witness what to say or do; that is utterly reprehensible.
In Taff Hotels v Permodalan Nasional  4 MLJ 622, the High Court condemned the practice of coaching as abhorrent. In allowing an application to cross-examine a witness on a coaching allegation, the High Court stated:
However, if the discussion is in the nature of coaching a witness in his evidence as to what he is expected to say in the witness-box, then I think, that would be most reprehensible and calls for condemnation in the strongest terms. Here, a specific allegation has been made that there was coaching by counsel for the plaintiff of PW1 in the discussion between them during an adjournment while PW1 was still under cross-examination. In response, counsel for the plaintiff maintains that she did not (to use her own words) 'have any dealings with PW1 behind anybody's back'. What that means is not entirely clear. She does not specifically refute the allegation raised by counsel for the defendant which naturally opens the door to an inference that there may be some truth in the allegation. In the circumstances, I think it fair and proper to allow the application.
Coaching must, of course, be distinguished from preparing your client for trial.
A pre-trial conference is an absolute must in practice; clients must be made familiar with their pleaded case, the documents that will be adduced at trial and their witness statement. Sending a client into Court “blind” would be an absolute disaster for anyone’s case (see the distinction outlined by Judge LJ in R v Momodou  EWCA Crim 177).
This brings me to the next topic of discussion: witness statements.
During trial, I have seen (thankfully few and far between) situations where a witness blames his solicitor for the contents of a witness statement.
It is incumbent upon a solicitor to ensure that a witness understands and acknowledges the contents of their witness statement. It must be the words of the witness themselves, so to speak.
In JMC Ventures v Ng Kee Wei  MLJU 401, Quay JC (presiding J) warned of the dangers of solicitors putting words into the mouths of witnesses and its nexus to coaching:
 In the case of evidence in chief, even leading questions are disallowed; what more, putting words into the mouth of a witness. Counsels should take care not to provide the answers in a witness statement, as that can tantamount to coaching a witness. Particularly where the witness has no personal knowledge of what he or she had testified. In preparing the witness statement, it must truly be the evidence of the witness in compliance with the Evidence Act 1950 and Order 38 of the Rules of Court 2012
133. Whatever the explanation for the defective witness statements, it is unacceptable that solicitors should breach the rules in that way. If solicitors’ instructions from their clients do not enable them to make a witness statement that is in conformity with the rules, then it is their duty to the court to ask for permission (under para 25.2 of the Practice Direction: para 30 above) to file a defective witness statement. To obtain such permission they would have to give an acceptable explanation for why they need it. It they do not ask for permission it is their duty either to comply with the rules or not to file a witness statement at all.
The duty incumbent upon solicitors in preparing their client’s witness statement is onerous, to say the least.
A final source of intrigue: the gallery.
The gallery is the space reserved for members of the public; it is generally composed of long benches.
In Tan Kay Soon v Tan Ching Ling  9 MLJ 15, Evrol JC (presiding J) noted that there were signs and signals exchanged between a witness and the Defendant. Her Ladyship held that this severely dented the credibility of said witness:
 DW3, Tan Meng Chew, also lacked credibility and neutrality. He was evasive at times, and defensive when suggestions were put to him. In fact, the court had to remind him several times during the proceedings that he was merely a witness and not the litigant himself. His demeanour and answers indicated that he was biased in favour of the defendant. I had also observed during trial, that there were signals and communication between DW3, in the witness box, and the defendant who was in the gallery. In my view, this had severely compromised the credibility of the evidence of DW3.
Similarly, in Simon Raj v Haikal Akmal  MLJU 1412, Noorhisham SJ (Sessions Court), discussions between a witness and a person in the gallery severely eroded the Court’s confidence in said witness:
 An added concern further arises from what transpired during the trial proceeding. As conspicuously appears from the note of evidence, unbeknownst to the court and presumably the counsel at the early stage of the proceeding, I was alerted by learned counsel for the plaintiff in the midst of the trial that there was a man sitting in the public gallery, whom she thought had been feeding the first defendant answers to questions on the witness stand. According to her, she heard voices from the back side of the courtroom, responding to questions during examinations. Such an incident knocked all parties for a loop. Upon being asked, the first defendant confirmed that the man was his father. And upon being confronted, the man expressed his remarks regarding the way in which the first defendant responded to the question before accordingly deciding to leave the courtroom. From my standpoint, such an incident, when viewed collectively with the first defendant’s demeanour throughout the proceeding, merely puts the probability of his version on the line and reinforces my impression of his evidence as a whole in contrast to the plaintiff.
A manner in which this may be overcome may be to take evidence in-camera. This was suggested by Mahadev Shankar J (retired JCA) in PP v Kang So Hoh  1 MLJ 360:
Neither of these two witnesses were cross-examined by the defence. After PW7 had given his evidence PW6 was recalled by the prosecution and now admitted that his name was Ah Too. Both these witnesses were very frightened men and it was patently obvious that they had both been intimidated and were giving evidence under grave apprehension.
I had occasion to call upon two people in the public gallery to identify themselves because of the manner in which they were pointedly staring at these two witnesses. Where hostility is sensed from the people in the public gallery, consideration may need to be given on future occasions if the trial should not proceed in camera. What was not clear in the present case is precisely where the intimidation was coming from. The questions put by the prosecution, however, were significant.
A reading of the above makes it clear that solicitors need think long and hard about the manner in which they conduct their trials.
The simplest misstep may demolish a witness’s credibility (and one's entire case) in the eyes of the Judge.
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