Overly aggressive cross-examination in sex case causes outcry ... Questions without solid foundation ... Northern Ireland chief prosecutor gets his solicitor advocates to tog-up ... Bar outraged ... Leverhulme reports from the Old Dart
Frances Andrade: turned her back on counselA CASE heard in the Manchester Crown Court recently caused a lot of raised voices on the role of cross-examining counsel.
It is really impossible to make a judgment about a trial unless you see all of it. Appeal courts are always at a disadvantage when the most they have are the exhibits and the transcript.
It is even more difficult if you are looking at snatches of what was reported in the Daily Mail.
Michael Brewer and his wife Kay (both 68) were tried for sex offences decades old committed against a young girl. The missus was charged with watching while he raped the girl.
It is a familiar story: an admired and decorated music teacher with a fondness for playing the organ seduces a young, vulnerable and troubled girl, who braces herself 30 years later to come forward and nail him.
The woman was Frances Andrade, 48, a mother of four.
It didn't start well for her. One witness, a harpsichordist for whom the complainant had become a "birthing partner" later in life said the victim was known at school as being prone to exaggeration.
There was the usual dose of sordid evidence.
The accused was alleged to have put his "naked penis" in the victim's hand.
Peter Cadwallader, the male prosecutor cross-examined the defendant asking him if he remembered the day "he whipped it out", a curious turn of phrase from British counsel.
But it was the behaviour of the defending barristers which caused the kerfuffle. Kate Blackwell QC and Barbara Baxter came in for some almighty stick.
Blackwell: judge backed her (pic © Cavendish Press)Mrs Andrade was cross-examined by both women. Now remember, these are snippets extracted from press cuttings. There is more in the newspaper reports.
Kate Blackwell QC (representing Mr Brewer): Are you manipulating this court?
Frances Andrade: I'm telling the truth in this court entirely. If there have been dates that have been slightly wrong, we're talking a long time ago.
KB: You recall being in sole care of those children [babysitting for the Brewers]?
FA: Yes.
KB: That's simply not true, is it?
FA: That's simply true. I was there - you weren't.
KB: [on Mrs Andrade's account of performing sex acts on Brewer in his camper van] That's simply not true, is it?
FA: I just hope for your sake these things haven't happened to you and that they never do.
KB: And in practice rooms, and you were never caught? You are indulging in the realms of fantasy.
FA: No, I am not in the realms of fantasy and I really understand why so many cases do not come to court.
KB: You stayed in [eldest daughter] Rachel's bedroom on a mattress and Michael Brewer abused you under her nose? That's simply not true, is it?
FA: That's simply true. You weren't there. Mike was, and Mike knows the truth, and I was there and I know the truth. There are two people in this room [who were there] and you're not one of them.
KB: [on Mrs Andrade's claim she spent the night in bed with the couple after Mr Brewer raped her] Utter fantasy.
FA: Bollocks. This is why cases don't come to court. This happened.
Bernadette Baxter (representing Kay Brewer): All this has been a fantasy to get attention.
FA: If I wanted attention I would have done this an awfully long time ago - I wouldn't have done it with a son doing finals at Cambridge this summer, with a daughter the age I was. Oh my heck I wouldn't.
BB: You were worried about the burglary (on the night of the alleged rape) because you had your violin with you.
FA: This feels like rape all over again. [At this point Mrs Andrade deliberately turned her back on the barrister.]
BB: I suggest that your allegations are fantasy and lies and what you're saying Mrs Brewer did, didn't happen.
FA: Thank you for your opinion.
Judge Martin Rudland: Do you reject the submission?
FA: Yes.
* * *
John Munkman in his classic text, The Technique of Advocacy says there are two fundamental rules of practice in cross-examination.
- The witness must be cross-examined on all material facts which are disputed; otherwise the court will take it that his evidence is uncontested.
- An advocate must put to the witness the case [she] is going to set up, so far as it lies within the witness's knowledge and this is necessary preliminary to calling contradictory evidence.
The bar code of conduct says that counsel must not make statements or ask questions which are merely scandalous or intended or calculated to vilify, insult or annoy either a witness or some other person.
In this case, the judge said counsel had behaved perfectly properly and perhaps they did.
But HH's comment at the end gave the impression that he was keen to tick the Browne v Dunn box again.
The use of the word "submission" was strange. And the thickest person could glean that Mrs Andrade was at odds with the tenor of the questions.
As to counsel's questions, there are two observations to make.
Brewer went into the box and said the victim was a fantasist. This opinion evidence at least supported counsel's line of questioning.
Second, both counsels' questions were often compound, awkward or at times wide open. Many did not contain facts. They were conclusions, theories and arguments.
And they were aggressive.
I wonder what Heydon J would have made of them. See, Libke v The Queen.
* * *
BREWER was cleared of rape but convicted of five indecent assaults. His wife was also acquitted of the rape charge but found guilty of an indecent assault.
Frances Andrade's son slammed the lack of support his mother had received from the police and the authorities. He did not criticise defence counsel.
Not long after giving evidence, and before the trial was over, his mother, the victim, committed suicide.
* * *
It's an emotional thing
IT has always been a subject of fascination that members of the Bar & Grill in the wide brown land can tog up for ceremonial occasions in full-bottomed wigs, gowns and other paraphernalia when the thermometer is nudging body temperature.
You can understand it happening in the Old Dart where it is often perishing.
But Australia? I can only assume it's an emotional thing - the old boys get a kick out of it.
However, over here the Big Cheese of the Supreme Court, Lord Neuberger, turned up amid all the stuff and horsehair at the enthronement of two senior judges recently, wearing a lounge suit.
News from Belfast is that what advocates wear in court is now as hot a topic as that which used to transpire on the Shankhill Road.
There is already a lot of tension between solicitors and barristers.
Regulations are being drafted so that solicitor advocates who wish to appear for a client must write telling them of the advantages and disadvantages of choosing them as opposed to a barrister.
It may mean compiling a Best Bets form guide of barristers.
Insurance companies are becoming stingy about briefing the bar.
DPP Barra McGrory: solicitor advocates in drag
The relatively new prosecutions chief, Barra McGrory, was the first Northern Irish solicitor to become a QC.
He thought it might be a good idea for his solicitor advocates to grace the courts robed, so a fair bit of money was shelled out in London at robe-makers to the Queen, Ede & Ravenscroft.
Apparently, the DPP was after the same fetching strip worn by solicitor advocates in Blighty.
Within moments of the forces of evil and darkness appearing in court in their new attire, the Troubles began afresh.
According to well-placed sources those in the highest reaches of the bar took umbrage on the grounds that in certain lights the gowns looked a tad silky.
Any reasonable juror on the Antrim omnibus might conclude that these mere prosecutors were more learned in law than was true. In short, this form of passing-off had the effect of pissing-off.
The distinguished Chief Justice Sir Declan Morgan, who is by all accounts a bloody good egg, sought at once to smooth the feathers of the Grillers by issuing a practice direction.
It has still not been resolved. Apparently, the Ulstermen might have to call on the services of Senator George Mitchell again.