An Analysis of Whittorn v Siu [2026] NSWSC 666
1. Introduction
Most reasons for judgment confine themselves to the issues joined between the parties. Occasionally, a court pauses to address the conduct of those in the courtroom itself. In Whittorn v Siu [2026] NSWSC 666, Meek J of the Supreme Court of New South Wales did precisely that. Under the heading “Conduct of attendees in court during examination of witnesses” (at [122]–[132]), his Honour set out, in eleven paragraphs, a clear and quotable statement of how legal practitioners, parties, supporters and members of the public must comport themselves while a witness is giving evidence.
The passage was prompted by the conduct of a solicitor, but its reach extends to everyone seated in a courtroom. It deserves the attention of practitioners in every Australian jurisdiction, because the principles stated are not creatures of New South Wales procedure – they flow from the nature of the examination of witnesses and the administration of justice itself, and apply with equal force in any court or Tribunal.
2. The Proceedings in Brief
The underlying dispute concerned the estate of Neil Raymond Whittorn, who died in March 2023. His two sons were the plaintiffs; the defendant was the deceased’s long-term de facto partner, Supaporn Siu. The apartment in which the couple had lived was purchased by the deceased in the joint names of himself and the defendant and, on his death, was registered in the defendant’s sole name. The parties advanced competing claims – including as to the beneficial ownership of the property and for family provision – and had collectively spent in excess of $300,000 litigating over it (at [27]).
Two features of the hearing matter for present purposes. First, the defendant was cross-examined with the assistance of a Thai interpreter, answering only a few questions directly (at [106]). Secondly, the defendant’s solicitor was seated in court during that cross-examination, facing the witness box.
3. What Occurred at the Hearing
During the cross-examination of the defendant, it came to the judge’s attention, through his Associate, that the defendant’s solicitor was shaking her head before some answers were given by the defendant. His Honour observed at least one instance of this himself (at [122]). His provisional impression was that the solicitor was facing the witness box and that the shaking of her head was not some unassociated movement but connected to the question asked (at [123]).
The Court dealt with the incident with restraint. Meek J did not form any concluded view about the matter. At the time, to avoid any possibility or risk that the witness was being influenced in her responses, his Honour simply observed in court that witnesses need to be able to give their evidence without influence from other people in the courtroom (at [124]). He did not take the matter further then, and expressly declined to take it further in the reasons (at [125]). What followed, however, was a deliberate restatement of principle: it would be remiss, his Honour said, not to reiterate that court proceedings should be conducted in a manner consistent with the solemnity of the occasion and facilitative of the administration of justice (at [126]).
4. The Court’s Guidance
His Honour began with open justice: court proceedings are generally open to the public, who are free to attend and observe justice being administered. Different roles are played by the various persons within a courtroom – the judge, the Associate and Tipstaff, court staff, the parties, their legal practitioners and paralegals, friends, relatives and supporters, and members of the public (at [127]). But during the examination of a witness, essentially only three persons are actively involved: the examiner, the witness and the judge. The position of everyone else was stated plainly (at [128]):
During such examination, other attendees in court, whilst perfectly entitled to observe proceedings, should not audibly or visibly respond to questions or answers.
The prohibited responses are not limited to speech. They non-exclusively include gestural responses – nodding of the head, shaking of the head, facial expressions and hand movements, scoffing, or any other overt paralinguistic expression (at [129]).
His Honour identified two distinct dangers. The first is to the witness: overt responses to questions or answers give rise to a grave risk that the witness will be inappropriately influenced, such as by responding to a question in a particular way or otherwise feeling judged or shamed. The second is to the examiner, who may be influenced or deflected in some unacceptable way, such as in formulating questions or refraining from asking particular questions (at [130]).
Significantly, intention is beside the point. Even where the attendee has no motivation or intention to influence the proceedings, the reaction may nonetheless have the objective effect of conveying disapproval of a question or an answer; scoffing, for example, may act to shame the examiner or the witness (at [131]). The remedy for those who cannot restrain themselves is equally plain (at [132]):
If court attendees who are not involved in the examination of a witness are unable to control themselves to what is unfolding before them, they should leave the court room, at the very least do so temporarily, until they are able to compose themselves and, if they wish to return to court then to do so in circumstances where they are able to observe without demonstrable response.
5. Practical Implications for Practitioners
The following points of practice may be drawn from the decision.
1. Instructing solicitors are not exempt. The conduct that attracted the Court’s attention was that of a qualified practitioner seated in court, not an emotional lay supporter. A solicitor at or behind the bar table is visible to the witness and, in the case of the party’s own witness, is a figure whose reactions the witness may consciously or unconsciously track. Notes passed to counsel, not visible reactions, are the proper outlet.
2. Brief clients and supporters before the hearing. Family members and supporters in the public gallery are the most likely source of nods, head-shakes, scoffs and audible commentary, particularly in emotionally charged litigation such as estate and family provision disputes. A short, standard warning before any hearing – that no reaction of any kind may be made while a witness gives evidence, and that the proper course is to step outside if composure fails – should form part of hearing preparation.
3. Take particular care with interpreted evidence. In Whittorn v Siu the witness was giving evidence through an interpreter (at [106]). Although his Honour did not rest his observations on this feature, interpretation necessarily lengthens the interval between question and answer, enlarging the window in which a gesture from the body of the court may reach the witness before the answer is given.
4. Raise the matter promptly if observed. In this case, the conduct came to the judge’s attention through his Associate, and the Court dealt with it immediately by a measured observation rather than by escalation (at [122], [124]). A practitioner who observes such conduct from the other side should raise it courteously with the bench at the time, so that any risk of influence is addressed while the evidence is being taken, rather than complaining about it after the event.
5. Remember the professional dimension. The Court took the matter no further (at [125]), and nothing in the judgment amounts to a finding against the solicitor concerned. But conduct in court that risks influencing a witness sits uneasily with a practitioner’s paramount duty to the court and the administration of justice, and a less restrained bench might deal with a clear case differently – whether through the weight given to the affected evidence, comment in published reasons, or referral to the relevant professional body.
6. Key Takeaways
First, during the examination of a witness, only the examiner, the witness and the judge are active participants; every other person in the courtroom is an observer and must behave as one (at [128]).
Secondly, the prohibition extends beyond words to all overt paralinguistic expression – nodding, head-shaking, facial expressions, hand movements and scoffing (at [129]).
Thirdly, good intentions are no answer: the test is the objective effect of the reaction, not the motive behind it (at [131]).
Fourthly, the risk runs in two directions – to the witness, who may be influenced, judged or shamed, and to the examiner, who may be deflected in the framing or pursuit of questions (at [130]).
Fifthly, the obligation is self-executing: an attendee who cannot maintain composure should leave the courtroom, at least temporarily (at [132]).
7. Conclusion
The conduct passage in Whittorn v Siu occupies barely a page of a long judgment, yet it is the part most likely to be cited beyond the parties’ dispute. It is a reminder that open justice confers a right to observe, not a licence to participate; that the integrity of oral evidence depends on the witness hearing nothing but the question; and that those obligations bind practitioners at least as firmly as they bind the public gallery. The measured way in which Meek J dealt with the incident – a contemporaneous observation, no concluded finding, and a published restatement of principle – is itself a model of how such matters can be managed without derailing a hearing. Practitioners would do well to ensure that neither they, nor those they bring to court, become the occasion for a similar passage in some future judgment.