Australia: Solicitors' Duties to Witnesses in Civil Cases Who May Be Exposed to Criminal Charges or Other Penalties

In Short 

The Situation: The Victorian Court of Appeal in Australia has delivered a decision with guidance to lawyers on their duties when dealing with witnesses in civil cases where there is a risk that the witnesses' evidence might give rise to a subsequent criminal prosecution.  

The Result: In certain circumstances, Australian lawyers are subject to a duty to notify witnesses in a civil case that allegations made against them may result in criminal charges and giving evidence in the civil case may have consequences if any criminal charges are laid. 

Looking Ahead: This is an increasingly common scenario faced by lawyers (in-house and private practice) in the commercial context when undertaking investigations and trial preparation. Australian lawyers should consider at an early stage whether potential witnesses (including employees and former employees) have interests which may not be aligned entirely with their client and whether notification pursuant to the Villan guidelines is necessary.

Villan v State of Victoria [2022] VSCA 106: The Issue

The issue arose in the context of a costs dispute after a civil hearing was aborted when a key witness decided against giving evidence due to the risk that doing so might prejudice him in a prospective criminal investigation in relation to the same matters. 

The civil trial was a claim for compensation against the State of Victoria brought by a former pupil of a State school arising from a sexual assault allegedly committed by the principal of the school. During the second day of the trial, the plaintiff stated that he had decided that he would be making a complaint to the police in the future. On being informed of the plaintiff's intentions, the principal, who was a key witness, sought independent legal advice. The jury was discharged, and proceedings adjourned. Upon receipt of independent advice, the principal declined to give evidence in the civil trial.

The trial judge then determined that the State should pay the plaintiff's costs thrown away by reason of the adjournment of the trial, because it failed to adequately inform the principal before the trial as to his risk of exposure to criminal investigation and prosecution arising from the plaintiff's allegations in the civil proceedings or that giving evidence in the civil proceedings might impact any such investigation or prosecution. The State appealed this decision.  

Villan Guidelines for Lawyers Interviewing Persons Who Might Be Exposed to Criminal Prosecution

The Court of Appeal held that solicitors are not required to provide the witness with legal advice on the consequences of giving evidence (and, in fact, could not do so because to do otherwise would place them in conflict with the duties owed to their client). Nor are solicitors required to notify the witness of his or her common law right to silence or provide any degree of legal analysis concerning the interrelationship between the civil proceedings and any potential criminal proceedings or to the risks to the witness in giving evidence.

However, in the Villan case, the Court of Appeal found that the State's solicitors' conduct with respect to the witness was inadequate. While the State's solicitors recommended the witness obtain independent legal advice, they failed to communicate to the witness why independent legal advice was necessary. The Court of Appeal held that the State's solicitors should have informed or notified the witness that: 

  • The allegations against the witness could result in criminal charges; and
  • If the witness was to give evidence in the civil proceeding, that could have consequences for him if criminal charges were laid in the future.

Three Key Takeaways 

  1. This decision has wide-ranging, practical application. It is not uncommon in a civil proceeding for a party to call a witness (including witnesses who are not employees or otherwise related to the party) whose interests do not align with the party calling the witness and who might be at risk of criminal prosecution. 
  2. The reasoning in Villan is apt to be more broadly applied to corporate investigations which may lead to regulatory or criminal prosecutions. This is particularly so where the subject matter of the investigation involves potential corrupt conduct, workplace health and safety issues, or financial market impropriety. Equally, the reasoning in Villan would appear to apply to both in-house and external counsel, so long as the in-house counsel holds a practising certificate and is performing a legal role.
  3. Australian lawyers should consider at an early stage whether potential witnesses (including employees and former employees) have interests which may not be aligned entirely with their client and whether notification pursuant to the Villan guidelines should be provided to the person being interviewed.
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