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Truth Be Told – Witness Preparation in Singapore, Hong Kong and the United States
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02-02-2018
On 27 January 2017, the High Court of Singapore delivered judgment in Compania De Navegacion Palomar, S.A. and others v Ernest Ferdinand Perez De La Sala. Ernest Ferdinand Perez De La Sala, who was a director of six companies inherited from his father Robert Perez De La Sala, was said to have transferred around US$600m to 800m out of the companies’ account to his personal account. The case, apart from it being concerned with one of Australia’s wealthiest families, raises important issues on the weight to be given to evidence tainted by so-called “witness coaching”. Compania De Navegacion Palomar, S.A. and others v Ernest Ferdinand Perez De La Sala The key issue in that case was whether the monies taken away from the six companies were beneficially owned by Ernest, or whether they were held on trust for the De La Sala family. At trial, Ernest called his brother Jerome Anthony Perez De La Sala (Tony) to give oral evidence. Witness Preparation in Hong Kong The principles on witness coaching set out in Compania De Navegacion Palomar, S.A. and others v Ernest Ferdinand Perez De La Sala broadly apply in Hong Kong. Before a witness is called to give oral evidence in a trial, she may be asked to attend a preparatory session with lawyers. This familiarisation session may be held to inform the witness about the court process (e.g. when she will be questioned and by whom) and courtroom settings, and may not be objectionable. If the discussion concerns evidence to be given by the witness, the participants will have to bear in mind the distinction between refreshing memory and witness coaching. In general, it is permissible to go through a statement or affidavit to assist the witness’ recollection of the facts, refer her to key documents, or ask her questions which she may face in cross-examination. However, it is not permissible to supplement or supplant the witness’ true recollection with another version of events, advising the witness to move away from her original answer to one which favours her case or the person calling her as a witness, or allowing witnesses to collaborate on their answers so as to provide a version that is favourable to a party’s case. Preparing Witnesses for Testimony in the United States In the United States witness “preparation” is considered not only good but an important part of its system of jurisprudence, whereas witness “coaching” is disfavored. However, there is not a bright line distinction between the two concepts. Whether called “preparation,” “coaching” or something else, the most important advice a lawyer can give a witness is “tell the truth.”
In the United States it is permissible for an attorney to suggest a choice of words that may assist the witness in making his or her intent clear, but the attorney cannot improperly influence a witness’s testimony or assist the witness to testify falsely as to a material fact. More broadly, an attorney may not suborn perjury or engage in conduct that involves dishonesty, fraud, deceit or misrepresentation. |
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.
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