Kiwi judges, barristers take the art of cross-examination to Samoa

tropical flowers. Plastic water bottles sit atop the table.

Nearly 50 people – from defence counsel to prosecutors and even civil law practitioners – have taken two days off from their busy, day-to-day legal work to learn about the art of crossexamination. Before them, four people stand around the table, waiting for their cue.

Reweti Kohere

Near the end of Mulinu’u peninsula, the Ministry of Justice and Courts Administration building dominates the 250-metre-wide strip of land. Located to the right of Samoa’s Parliament, with its iconic domed form reminiscent of traditional Samoan fono, a judicial behemoth rises. Colonnades and arches and lattice panels mark its exterior. People mill about on benches near the entrance way, waiting for their day in court. The air is thick, heavy.

Inside is a labyrinth of long corridors, staircases and closed doors. In the “MJCA training room – Potu Aoaoga Ofisa o Faamasinoga”, a touch-screen television frames four armchairs. A black and white Greek geometric-patterned cloth covers a table. To its left, a lectern stands and flanking the set-up are columns sprouting peace lilies, birds of paradise, palm fronds and other

In the hands of New Zealand District Court Judge Sanjay Patel is Thomas A Mauet’s Fundamentals of Trial Techniques Considered an advocate’s basic primer on how to present trials in the most persuasive way possible, the textbook is an older edition, Judge Patel tells his colleague, Judge Gus Andrée Wiltens. “But it’s still good.”

The pair sit down, as do Judge David McNaughton and criminal defence barrister Marie Dyhrberg KC. Flower necklaces, or “ula”, which were gracing the reception desk mere seconds ago, are placed around their necks. A prayer from the Samoa Law Society president opens the occasion and Dyhrberg stands behind the lectern. Heartened to see a range of practitioners, she explains why everyone is here – good-quality advocates “learn how to really focus on what makes your prosecution case good, what makes our defence good”, she says. “This is what our workshop is about.”

Judge Patel introduces himself. Formerly a criminal defence barrister, the judge jokes he used to practise civil law “until I

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Continued from page 03 came up against your chief justice”. Judge McNaughton, whose litigation experience crossed both the defence and prosecution, shares that he’s feeling indebted. Before the workshop started, McNaughton and Patel experienced a “crash-course in fa’a Samoa”, or the Samoan way, with a trip to Savai’i that was organised by the Samoa Law Society. The pair’s guide taught them Samoan history, politics, the matai system and even legends.

The favour will be repaid over the next two days, Judge McNaughton says, “in a cultural exchange of your way and what we’ve learned over the decades”. When he was asked to help with the workshop, Judge Andrée Wiltens says he immediately agreed. “There was no hesitation whatsoever because we had done this before. So I know it works. I know it’s good.”

Vanuatu

Three years ago, and for the first time, Dyhrberg and barristers Iswari (Ish) Jayanandan and Panama Le’au’anae delivered a one-day workshop in Vanuatu, with the help of Judge Andrée Wiltens, then sitting on Vanuatu’s Supreme Court. A return trip was intended for 2021 but it was postponed due to covid-19.

The pandemic may not have disappeared but much of the world has reopened. “We all feel confident enough now to start putting things in place,” Dyhrberg tells LawNews. Vanuatu is back on the cards and potentially so too are workshops in Tonga and Rarotonga.

Holding training sessions outside of New Zealand every year is a tough ask for those wanting to help, she says. While ADLS and the South Auckland Bar Association arranged the trip to Samoa, the New Zealand delegates paid for their own flights and accommodation. For now, biannual workshops are more realistic, although demand remains strong. “They are hungry to learn,” Dyhrberg says of Samoa’s lawyers. “There’s a will for them to have education.”

An education

Cross-examination is their lesson. And one by one, the barrister and the three judges start teaching. Dyhrberg reminds participants that anybody who is charged has the right to face their accuser and challenge their allegations in a court of law. “That is absolutely why you’re here. You are the defenders of that right,” she says. “We’re not in Russia, we’re not in some of these other countries. We are in Samoa, we are in New Zealand. We have democracies.”

Interrogating an opponent’s witness is more an art than a science, says Judge Patel. Witnesses may be entirely compliant one day, yet uncooperative the next so advocates must stay in the moment. “It’s an art because you need to ask your question, listen to the answer and not have your head buried in your notes, thinking about what your next question is. And then develop your cross-examination from there,” he says.

Judge McNaughton adds that cross-examination is a form of communication. “If you are having a conversation with a friend, you are exchanging information, you are understanding each other. It has a rhythm and a flow. Good cross-examination should have that too – if it’s going to be effective.”

As the judge is talking, the training-room door opens and a man quietly walks in. Judge McNaughton finishes his sentence and greets Samoa’s chief justice, Satiu Simativa Perese. Nearly three years into his tenure, Chief Justice Perese welcomes the New Zealand delegation, “who have given up their time and their money as well to get here, in order to assist our humble jurisdiction”.

The head of Samoa’s judiciary can’t stay for long, but he thanks the trainers “for doing this for Samoa”. It’s a blessing they are sharing their considerable knowledge, he says. “We are grateful you have come. I want to wish your conference, meeting, exchange, lessons all the very best. You will find we have some very bright lawyers here in Samoa…They will squeeze every bit of information out of you. Hopefully by the time you get back to New Zealand, you will be lighter.”

Everyone claps and Chief Justice Perese departs. Judge McNaughton carries on where he left off. Then Judge Andrée Wiltens shares that during cross-examination, he’s observing from a different perspective. “My objective is simply to see what you’re trying to do. Either you’re trying to undermine the prosecution’s case or you’re trying to strengthen the defence’s theory of the case,” he says. “If you do neither of those things, you’ve achieved nothing. You’ve wasted my time, basically.”

He keeps an eye on everyone and everything that’s happening in his courtroom, he warns. It’s all important. “I’m alive – and you should be alive too.”

Perm maintenance

After morning tea, the reason for the touch-screen television

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Continued from page 04 becomes clear: clips of scenes from classic courtroom dramas, such as The Castle, A Few Good Men, Legally Blonde, and My Cousin Vinny, are played as examples of mostly not what to do as an advocate. Take, for instance, underestimated lawyer Elle Woods, played memorably by Reese Witherspoon. Woods’ knowledge of perm maintenance eventually saves her client from a guilty verdict – except the lawyer lands the king hit before the witness had agreed to any of her earlier propositions. As Judge McNaughton puts it, Woods “slammed the lid before she built the box”.

Post-lunch, Dyhrberg cross-examines a “witness” played by South Auckland barrister Hannah Kim, who swears, pushes back and barely lets the KC finish her sentence. Then participants are divided into four groups and directed to one of four courtrooms the chief justice has allocated for their use. Helping Dyhrberg is Jayanandan, while Le’au’anae accompanies Judge McNaughton. Judge Andrée Wiltens teams up with barrister Elaine Ward, and Judge Patel partners with Kim and barrister Rebecca Keenan.

When Judge McNaughton’s group enters the small and intimate District Court room four, eight people are already sitting in the public benches, ready to act as witnesses the way Kim just did. They are law students themselves, they tell LawNews, in their first year at the National University of Samoa. They are giddy, raring to go.

Incomplete boxes

Fact scenario one is the group’s assignment. A 55-year-old man stands accused of indecently assaulting a female under 12 during a party celebrating the complainant’s mother’s birthday. The complainant, Yvonne, and her two cousins were asleep in Yvonne’s bedroom. She says she awoke when “Nicholas” allegedly entered her room very late at night. However, she believes Nicholas thought she was asleep when he assaulted her. The accused is alleged to have knelt next to Yvonne’s bed and touched her vagina. One of Yvonne’s female cousins woke up and saw Nicholas kneeling near the complainant’s bed, his arms moving. Yvonne states she saw Nicholas’ face because he turned to look back at her as he left the room.

Asked what theories they might run in Nicholas’ defence, one lawyer suggests a lack of physical evidence means the incident didn’t happen. Another proposes Yvonne made up the whole story or Nicholas lacks culpability because he was sleepwalking at the time and wasn’t conscious of his actions. A fourth theory is that prosecutors have the wrong person.

Mistaken identity is the best theory, the judge says. There are six issues the lawyers must get. They have 10 minutes to prepare their cross-examinations and then three minutes to build their theoretical boxes and shut the lids. For the remaining two minutes, Judge McNaughton and Le’au’anae will critique the lawyers’ performances.

Forty minutes later, eight boxes stand incomplete. Some lawyers get one or two sides of their boxes, others get close to shutting the lid, and a few slam the lid shut before they have started laying the foundations. A second round follows. By the end of the day, Judge McNaughton can see real improvement in everyone. “Everybody is starting to get the hang of how to do this,” he says. “You were all better the second time around than the first.”

Participant Cata Seiuli, a defence counsel at Stowers & Su’a Lawyers, expects “great results” on day two. “We need to crossexamine based on the theory we plan. We need to think quick,” Seiuli tells LawNews. “But it’s good they are giving us time to study.” The lawyer liked having a challenging witness. “We all learn fast when it’s fun,” she says. “But imagine when it’s real life. It speaks volumes of the kind of lawyer you are if you’re not prepared.”

No second chances

In the grander, bigger Supreme Court two, Judge Andrée Wiltens is presiding over some Oscar-winning performances. Acting as complainant “Ricana”, who alleges her partner assaulted her with the intent to injure her, some witnesses don’t hold back. There’s finger-pointing and dismissive comments. Hand towels are used to wipe away crocodile tears. Ricana leans over the witness box, self-assured in her story. The judge reminds one uncooperative witness they must answer lawyer Maureen Tuimalealiifano’s questions. Counsel follows up with her own reminder: “These are simple questions.”

Judge Andrée Wiltens’ critiques are direct. The group of lawyers need to know their material better, he says. One lawyer maligns her client’s character in her very first question. Some questions are “incredibly long”. Unnecessary, irrelevant questions are wasting their time. “What is the charge your client is facing? Is it being in love?” asks Judge Andrée Wiltens of one lawyer. “No. A lot of your questions were addressed to whether or not she

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[Ricana] was in love with her husband.”

While each lawyer will get another five minutes, “if you’ve got five minutes now, you’re expected to get there now – not next time. When you go to court, you don’t get a second chance,” Judge Andrée Wiltens says. “You’ve got to be prepared and ready to go and present your defence. You don’t say to the judge ‘can I come back tomorrow and try again please?’ It’s not going to happen. Right? Ok.”

‘Do it for your clients’

Back in Judge McNaughton’s court, participants have dived deeper into defending Nicholas against Yvonne’s allegations –and the feedback is immediate. “Does this matter?” interrupts the judge. “Where is this going? Let’s bin that question.”

The lawyers reach the final round. They have 20 questions to get it right. Judge McNaughton won’t interrupt them this time. Ultimately, all participants tick off the six issues within the 20-question limit. Some are happier than they were last time. One lawyer shakes her hand from left to right when she’s asked if she nailed it. Accustomed to asking leading questions, another participant isn’t sure he’s happy with the responses he gets to his open-ended questions.

Hearing the lawyer’s uncertainty, Judge McNaughton leaves his group with a gentle message. “If you think ‘I’m fine the way I am, everything’s great, I’m a great lawyer and I don’t need to get any better’, you won’t [improve]. You’ve got to criticise yourself. You really do,” he says.

“And don’t just do it for yourselves. Do it for your clients. They deserve the effort. The state deserves the effort, of prosecutors, to do the best possible job. Sometimes it might not work. Sometimes the judge might tell you off, sometimes the witness might get the better of you. But nothing ventured, nothing gained.”

‘Tell us straight’

Palm trees flutter, the harbour sways, and the air is still, pleasant: the workshop ends early Thursday evening at Sails Restaurant

& Bar, an alfresco spot at the very tip of Mulinu’u peninsula. Everyone sits around in a misshapen circle, facing one another. Speeches have begun.

Assistant Attorney-General Lupematasila Iliganoa Atoa, who heads the office’s criminal prosecution division, quips, “We can’t wait to show our judges what we’ve learned”, to much laughter from her peers. As she stood up to speak, she says one of the New Zealand judges asked her how the workshop could be improved. “I said, ‘there’s nothing to improve’.” Someone cheekily responds, “There’s always something to improve”, while another says, “Tell them to come again.”

Atoa makes a suggestion. “Don’t be afraid to criticise us because we take onboard much more criticism from our judiciary,” she says. “It’s second nature for Samoans to take criticism because without criticism, you can never be a better person or better prosecutor or defence counsel. We welcome more criticism.”

Judge Andrée Wiltens says they want to improve the current version of their “roadshow” workshop. “We won’t take it personally. So, tell us straight what you think.”

There’s more laughter as hands shoot up. Some of the feedback includes mixing up prosecutors and defence counsel better among the groups, incorporating Samoan into the crossexaminations, via court registrars who also act as interpreters and better recognising that some participants, who rarely appear in court, might lack the confidence that litigators have.

Samoa’s Attorney-General, Su'a Hellene Wallwork, says she’s grateful every prosecutor and civil litigator from her office has attended the workshop. “But it meant I had to go to callover list this morning,” she jests, to claps and whoops from the room. “All the private bar lawyers were surprised, [it] took the registrar by surprise…It was a big day for me. And I also got to see what everyone does or doesn’t do in my office, on their files.”

The best part of being lawyers and judges is giving back to communities, Wallwork says. “You have demonstrated that to us, here in on our country. Thank you so much for coming. We look forward to seeing you next year.”’ ■