Week 10: Mock Trial

The major preparation for trial by the expert witness is the expert report. If the report is structured well, there is really no other preparation needed – just turn up to court on the day and answer the questions.

In light of what you have learnt about the expert witness role, court procedures, rules of evidence and obligations to the courts, do you agree or disagree with the above statement? What recommendations would you make to a forensic accountant expert witness in relation to their court appearance?

-          What are your views/experiences from the Mock Trial?

-          What were the major issues you learnt from your own and other students presenting their expert evidence?

-          What did you identify as the major problems facing an expert witness?

 Provide support for your answer.

I disagree with the above statement; I believe that, whilst writing the report is good preparation for trial by the expert witness, more is needed before you will be completely ready.

(Sequenceinc, 2013)

Sometimes you can prepare an expert report months before the case goes to trial (Vincent, P., Mock Trial), and you do not always complete the whole report yourself – often, you work with a team. It is therefore important to revise all the case facts close to the trial date. Often, I spend the whole day prior to presenting evidence in Court locked in my office revising the report. This way I can be confident going into Court that I have fully covered all the facts and opinions in my report.

I also believe that you need to prepare emotionally for being on the stand as it can be a very stressful and unsettling event (Forensic Accounting, 2016), and you need to ensure that you don’t get emotional on the witness stand.

In university, we had an excellent program in one of my forensic accounting classes where we had a Mock Trial. Each student was allocated a section of either the prosecution or defence forensic accounting expert reports, and we were questioned as FA expert witnesses (approx. 3 minutes each for examination and cross-examination).

(Cullum, L., 2011)

This was difficult to prepare for because we weren’t able to write the report ourselves, so we had to explain analysis and opinions that weren’t originally our own.

In order to prepare for my allocated section, I ensured that I completely understood the facts of both cases. Whilst I was prepared that aspect, I severely underestimated just how stressful being questioned was, and the whole experience was a little overwhelming. In saying that, I still found it extremely interesting and beneficial to my learning, and I gained a whole new appreciation for expert witnesses. Furthermore, at the end of questioning, the judge and the two barristers provided feedback on each student’s performance, which I found extremely beneficial.

There were a few major points of feedback that I think are good recommendations for all forensic accounting expert witnesses:

 A. Speak professionally (e.g. say “yes”, not “yep");

B. Explain accounting details succinctly and in understandable language – most people in the Court would not have knowledge of forensic accounting topics;

C. Present your facts and opinions in an unbiased manner – you are there to help the Court, not push one side of the case;

D. Do not get defensive if the cross-examiner asks a question you do not like;

E. Do not try and predict where the line of questioning is going;

F. Take your time with your answers; and
G. Don’t be afraid to ask the barrister to rephrase the question.

(Babitsky, S., 2013; Forensic Accounting, 2016)

(ExpertWitnessService, 2012)

In my case, points (c) and (d) were especially relevant, as I was asked a question in cross-examination that I felt I wasn’t allowed to answer fully and I got quite defensive from then on with my answers.  

Week 9: Expert Evidence

Section 23.15 of the Federal Court Rules (2011) states [inter alia] the following:

Evidence of Experts:

If 2 or more parties to a proceeding intend to call experts to give opinion evidence about a similar question, any of those parties may apply to the Court for one or more of the following orders:

(a) that the experts confer, either before or after writing their expert reports;

(b) that the experts produce to the Court a document   identifying where the expert opinions agree or differ;

(c) that the expert’s evidence in chief be limited to the contents of the expert’s expert report;

(d) that all factual evidence relevant to any expert’s opinions be adduced before the expert is called to give evidence;

Based on your knowledge and learning from your own reading and research, why did the Federal Court Rules include sections (a), (b), (c), & (d)? What advice would you give a forensic accounting expert witness from your firm, about to present evidence in court for the first time, in relation to the above?

Expert witnesses can provide different evidence to the court than normal witnesses. In particular, we can provide opinions on subject matter within our field of expertise (Sides, M., n.d.).

(Cullum, L., 1999)

The Court therefore has regulation in place regarding the admissibility and presentation of this evidence, and I have had to comply with these regulations, and in particular section 23.15 of the Federal Court Rules (2011) each time I have presented evidence in court.

(Federal Court Rules, 2011)

When going to court for the first time, I originally thought that this section, and particularly sub-sections (a) to (d), were aimed towards making my job as an FA expert witness more difficult. However research into these rules and discussion with my manager lead me to understand that s23.15 is actually beneficial to my job.

Sub-sections (a) and (b) are included in the Federal Court Rules (2011) to ensure that the Court fully understands where the two expert witnesses agree, and especially where they disagree on opinions formed from the facts. This helps ensure that the case will be brought to resolution as quickly, inexpensively, and efficiently as possible (Federal Court of Australia, 2015).

Sub-sections (c) and (d) are included so that neither expert can ‘hide’/exclude evidence from their report that they bring out on the stands. This helps create a ‘level playing field’ and stops unnecessary adjournments from being called to investigate further pieces of evidence.

(Van Akkeren, J., 2016)

I advise any FA expert witness about to present evidence in court for the first time to fully understand and follow this section completely in order to ensure your evidence is deemed admissible in Court (Domino M., et al, 2015).

 

Week 8: Culture

CEO ANC Inc

“It has been argued that the ‘culture’ of an organisation plays a large part in incidences of fraud, bribery and corruption, yet companies continue to ignore this and focus more on internal control measures only”.

In light of what you have learnt about fraud, bribery and corruption prevention and risk management, do you agree or disagree with the above statement? What recommendations would you make to the CEO on how fraud, bribery and corruption can be minimised in relation to the culture of an organisation?

What are your views/experiences?

Provide support for your answer.

I wholeheartedly agree with the above statement that culture plays an integral part in incidences of fraud and I agree that more importance needs to be placed on it by companies.

I understand that ‘culture’ is a rather broad term, so to ensure everyone understands, I believe the culture of an organisation refers to the organisation’s collective beliefs, values, and attitudes (Bush, T. & Middlewood, D., 2013).

(McShane, S., Steen, S., 2012)

In my experience, culture has a significant impact on how employees view their firm and if they can rationalise committing fraud. In a prior job it was discovered that one of my colleagues had been committing fraud for 2 years before being detected, and when questioned as to his reasoning, he responded that he ‘wasn’t being paid enough’ and his ‘manager didn’t care about the business processes being conducted properly’, so he felt like the business was asking for it.

All CEOs need to recognise that creating the right culture can significantly decrease the risk of fraud occurring. An ethical culture with a zero fraud tolerance often stops cases like the one above because the rationalisation is no longer available that the business doesn’t care (Aucoin, J., 2012).

Standards Australia AS-8001-2008 (Standards Australia, 2008) focuses on fraud prevention and control, and provides valuable ways to decrease fraud through better culture, including:

 
The COBIT 5 Risk Principles can help companies ensure that the AS-8001 standards are being met. COBIT 5 Risk looks at Risk Principles and helps identify an organisation's Risk Culture (and therefore, Risk Appetite) (ISACA, 2012).

 (ISACA, 2012) 

Week 7: Interviewing Techniques

In a recent court case, the judge commented:

“I do not adhere to the approach taken by the interviewers of the defendant. Strong evidence has been provided that the confession obtained from the defendant was under duress, particularly in relation to the time taken and the heavy handed interrogation of the defendant as witnessed in the video viewed in court this morning. Consequently, as the prosecution’s case relies heavily on the confession provided by the defendant, the case is dismissed.”

In light of what you have learnt about interview techniques and rules of evidence for admissibility, outline the ‘do nots’ of interviewing. What recommendations would you make to forensic accountants on how interviews should be approached?

What are your views/experiences? What alternative approach would you suggest and why?

Provide support for your answer.

Above, it is seen that a judge can dismiss evidence, and subsequently a whole case, merely because the witness was incorrectly interviewed. Had I read this statement years ago, I would have believed it harsh to dismiss the case just because the prosecution questioned in a “heavy-handed” manner. Now, however, I understand the judge’s reasoning.

An interview is an information gathering expedition in which the questioning is non-accusatory in nature. An interrogation is where questioning becomes accusatory, but this only occurs once there is reasonable certainty that the suspect is guilty (Penven, D., 2013; Hoffman, C., 2005), and a confession can never be obtained under duress (Evidence, 1960).

There are a number of interviewing methods are acceptable in Court, including the REID, PEACE, and MI methods, and I would recommend any of these to forensic accountant interviewers.

(Rodgers, G., 2016) 

(Investigative Interviewing, 2016)

(TheNCTN, 2012)

I have interviewed (and been interviewed) numerous times, and I believe I have valuable insights regarding interviewing techniques, so I compiled a list of ‘do nots’ for any FAs about to perform an interview.

1. Do not disclose evidence at the beginning of an interview as it allows the witness time to come up with false accounts;
2. Do not make promises (e.g. "tell me and I'll reduce your sentence") (Hoffman, C., 2005);
3. Do not be accusatory (all three questioning methods emphasise building rapport, which likely won't occur if you are accusatory)(Van Akkeren, J., 2016); and
4. Do not ask closed questions (in my experience I have found that the manner/words you use when questioning significantly affect the answer received , and the three interviewing techniques above confirm this belief in asking open-ended questions)(Van Akkeren, J., 2016).

Week 6: Fraud Motivations

Differential Association theory helps to explain why fraud occurs by groups within an organisation. General Strain Theory explains why individuals turn to fraud, bribery and corruption. However, Cressey’s Fraud Triangle addresses both.

Do you agree or disagree with this view? What are your views/experiences on the above statements? What advice would you give to an organisation trying to understand why fraud, bribery, and corruption are increasing?

Provide support for your answer.

 

I disagree with the above statement in that Cressey’s Fraud Triangle only addresses why individuals commit fraud. Cressey’s Triangle was the first fraud theory I learnt about and is, in my opinion, the most heavily relied upon theory in the industry. It explains that individuals commit fraud when pressure, opportunity, and rationalisation are all present (The Fraud Triangle, 2016; Cressey, D., 1973).

 

(TED Ed, 2015)

However, it did not give me all the answers I required, so I conducted further investigation and found the General Strain and Differential Association theories, which provided me more clarity as to why fraud occurs.

General Strain Theory explains why some people commit fraud under certain pressures whilst others do not; it provides that personality traits, along with micro- and macro-level coercion impact an individual’s reaction to strain (Cullen, F. & Wilcox, P., 2013). Differential Association Theory explains why groups turn to fraud. People seek access to social support (due to strain) and turn to illegitimate sources when legitimate ones are unavailable, thereby joining a deviant sub-group and conforming to its norms. It is when the norms of the deviant sub-group differ from those of larger society that crime/fraud occurs (Hauhart, R., 2013).

(Adams, S., 2007)

I would advise all organisations trying to understand why fraud, bribery, and corruption are increasing to research and understand all three of the aforementioned theories in order to gain a comprehensive understanding of the motives behind fraud, and subsequently implement measures to proactively target decreasing the likelihood of fraud occurring (e.g. decrease strain contributors and/or create positive sub-group options).