Where a person (a ‘witness’) attends before the Chief Examiner to give evidence, produce a document or other thing, or both – the Chief Examiner may regulate the conduct of proceedings as they think fit.
Leave to appear
A person is entitled to be represented by a qualified legal practitioner at their examination. Generally, the Chief Examiner will permit a legal practitioner of the witness’s choice to be present.
When you attend an examination with your client, you must seek the Chief Examiner’s leave to appear. It is an offence for a person, including a legal practitioner representing the witness, to be present at an examination unless authorised by the Chief Examiner.
In some circumstances, the Chief Examiner may not authorise you to be present – for example, where there is a conflict of interest, or where the Chief Examiner is of the view that it may prejudice the investigation.
Giving advice and raising objections
As the witness’s legal representative, you may:
- advise your client before, during and after the examination
- apply to the Chief Examiner for an adjournment during the examination, for the purposes of giving advice
- object to the giving of evidence or the production of documents or things that would disclose matters to which legal professional privilege applies
- make submissions on matters relating to the safety of any person, or the fair trial of a person who has been or may be charged with an offence
- question your client at the conclusion of the examination, where permitted by the Chief Examiner, in relation to issues that seek to amplify, clarify, explain away or qualify matters that arose during the examination
The Chief Examiner is not bound by the rules of evidence. It will generally be inappropriate for a legal representative to object to questioning that is relevant to the subject-matter of the investigation. Inappropriate objections may amount to an interference with the investigative process.
You may take notes of your client’s examination. However, you may be required, at the end of each day of the examination, to choose to either have your notes:
- sealed in a confidential envelope and retained at the Office of Chief Examiner for you to access in future, or
- securely destroyed
This is generally required to ensure the confidentiality of an examination where the Chief Examiner has given a non-publication direction.
You should not refer to your client by name in any written communications with our office. Instead, you may refer to the date of the examination, your client’s initials, or a reference number if you have one.
If you are contacting the Office of Chief Examiner to seek access to a confidential document such as your notes or a transcript of an examination, your request is best made in writing.
Reviewed 30 August 2021