How to interview a witness who might be a defendant

In Victoria v Villan [2022] VSCA 106, the Court of Appeal gave guidance to practitioners in relation to the treatment of non-party witnesses in civil cases where the criminal prosecution of the witness is on the cards, after self-incrimination issues derailed a jury trial in a historical sexual abuse case, occasioning its stay.

Given that the statutory provision in question — s 128 of the Evidence Act 2008 — extends beyond the privilege against self-incrimination to the privilege against penalties, the guidance must also apply where a proposed witness in civil proceedings who is a professional might expose themselves to a penalty in the form of disciplinary sanction by giving evidence in civil proceedings. An employee solicitor or the director of a defendant law practice in a negligence suit, should be advised by the defendant’s (insurer’s) lawyers of the possibility of disciplinary sanction, and of the possibility that evidence called by the defendant might affect any subsequent disciplinary investigation and prosecution, since the Victorian Legal Services Commissioner and VCAT alike have power to issue fines for proven misconduct, an archetypal penalty.

Indeed, in Oldham v Law Institute of Victoria [2012] VCAT 571 (a disciplinary prosecution despite the counter-intuitive title of the proceeding), Judge Bowman recorded that Terry Forrest J had in earlier related civil proceedings ‘completely understandably and very fairly’ refused to allow the cross-examination of the practitioner who was personally a respondent to a non-party costs order, on the basis that he should not prejudice himself in relation to any future disciplinary investigation into the same conduct.  (Such an investigation might readily have been appreciated to have been on the cards, because his Honour was the person who initiated it by referring the practitioner to the Victorian Legal Services Commissioner.)

Mr Villan had sued the Victorian government alleging that he had been raped by his headmaster at a government school.  The government defended.  Its lawyers interviewed the former headmaster, in accordance with the Law Institute’s ‘Interviewing and Conferring with Witnesses Guidelines’.  Though the lawyers repeatedly warned the headmaster of the desirability of obtaining legal advice and gave him details of how to access it pro bono, and though they advised him that he might be liable to criminal prosecution and was under no obligation to cooperate, they did not advise him that if he gave evidence in the civil trial that might affect any criminal prosecution.  The trial judge was told all of this, except that the lawyers had advised the headmaster that he might become the subject of criminal proceedings, evidence of which was first adduced on appeal.

At Mr Villan’s Supreme Court civil jury trial, it became clear to the  government for the first time that he intended to make a criminal complaint against the headmaster.  The trial judge gave the headmaster a self-incrimination warning as he was required to do under s. 132 of the Evidence Act 2008, and adjourned the trial, not for a few hours, but for some weeks in which to obtain independent legal advice.

Upon resuming, the headmaster said he would not voluntarily give evidence, and objected to giving evidence under the protection of an Evidence Act 2008 self-incrimination certificate. The trial judge declined to compel him to do so, because it would not be in the interests of justice for the civil proceeding to precede the criminal proceeding.  His Honour stayed the civil trial (see [2021] VSC 354), ordering the government to pay the plaintiff’s costs thrown away.  It was only the costs order which was the subject of the appeal.  The Court of Appeal confirmed the costs order, in the sense that it granted leave to appeal but declined to find House v King error in the trial judge’s exercise of the costs discretion having found that the government should have warned the headmaster, through its lawyers, that evidence he gave in the civil trial might affect any subsequent criminal trial.

The Court said at [64]-[65]:

‘As to the second of these matters, concerning the fact that, if [the headmaster] were to give evidence, that could have consequences for him if criminal charges were laid in the future, it is plain that no statement of that kind was made by the State or [its lawyers] to [the headmaster]. In our opinion a statement of that kind does not involve the provision of legal advice; nor does it appear to us that it would place the solicitors for the State in a position of conflict. It is a relatively simple factual statement that would have provided [the headmaster] with a greater understanding of why he ought to obtain independent legal advice, and thus might have prompted him to do so.

We wish to emphasise that we do not consider that in their correspondence or conversations with [the headmaster] the State or its solicitors ought to have drawn [the headmaster]’s attention to his right to silence, or included any statement to the effect that “giving evidence in this case means that you are not maintaining your right to silence and you may be exposed” (as his Honour had suggested in the course of the oral argument). To descend into detail of that kind, we accept, might properly be described as the giving of legal advice. Thus, merely informing [the headmaster] that there could be consequences does not mean that he should be advised as to what those consequences would actually be.’

The Court said at [70]:

‘It is appropriate at this point to observe that, in their dealings with [the headmaster, the government’s lawyers] adhered to the LIV Guidelines. Thus, although we do not think the trial judge erred in the manner identified, we think it is, to an extent, understandable that [the government’s lawyers] omitted to give [the headmaster] additional information as to why he should seek independent legal advice (beyond the possibility of the State pursing him for damages). Unfortunately, the  LIV Guidelines are silent in relation to the manner in which a solicitor should deal with a witness in a civil proceeding who might be subjected to future criminal proceedings in relation to the conduct in issue. We suggest that it would be appropriate for those professional bodies that provide guidance to lawyers who deal with witnesses, such as the Law Institute, to update that guidance so as to deal with the steps that practitioners should take in a proceeding in which a witness might be liable to criminal prosecution in relation to matters in issue in the civil proceeding.’

I find three matters interesting.  First, it is somewhat surprising to my mind that the judgments at first instance and on appeal seem to assume that this particular headmaster was incapable of working out for himself that if he gave evidence in the civil proceeding, it could affect any subsequent criminal prosecution, even in the context of the lawyers’ repeated exhortations to him to obtain independent legal advice. That seems bleedingly obvious to me.  It is not recorded that the headmaster gave any evidence that he had been ignorant of this proposition until he received independent legal advice.

Secondly, it is an unusual characteristic of this case that the State sought to use the evidence of the headmaster to its benefit notwithstanding that the State itself might subsequently use the information he disclosed to it to prosecute him.  See [54]. The headmaster had volunteered the information he gave in the interviews with the government’s lawyers, so no Harman or like undertaking would have attached to that information; the government would have been free to use it as it saw fit.  Unless some criminal law principle about admissions given without a prior warning had application to prevent that information being used in a criminal trial, it seems to me that the headmaster had already suffered most of the prejudice by divulging his case to the government well before the civil trial.

Thirdly, assume for a moment that the government won the civil case by denying that the headmaster committed the rape and positively asserting that he did not, but then decided to prosecute the headmaster in a criminal court.  Would the prosecution be an abuse of process as a collateral attack upon the civil judgment?

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