New Zealand Law Society - Failing to call a witness found to be unsatisfactory conduct

Failing to call a witness found to be unsatisfactory conduct

A Standards Committee has determined unsatisfactory conduct on the part of a lawyer who failed to call a witness on behalf of their client. The witness’ testimony may have assisted their client’s defence in a criminal trial. The client successfully appealed their conviction on the basis of trial counsel error.

The Committee elected not to impose a fine or costs in this case as the lawyer had already been subject to an external investigation and had taken several steps to remedy the matter.

Appeal against conviction upheld

Before the trial, the lawyer did not brief their client’s partner, A, as instructed. This was done in the mistaken belief that because A had made a statement to the Police, it followed that the lawyer could not communicate with her.

The Court of Appeal held that the lawyer should have briefed A as instructed and noted that there is no property in a witness.

Counsel must take steps to properly brief a witness,or adjourn the trial

In its decision, the Committee observed that the matter related to serious criminal charges where the client faced imprisonment. A mistaken belief by counsel that there was ‘property in a witness’ is not acceptable (however honestly held that belief might be). Counsel must take sufficient steps to properly brief a witness or adjourn the trial.

The Committee concluded that a fundamental error had occurred, and the lawyer’s conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. Accordingly, the Committee determined that there had been unsatisfactory conduct.