Issues:

• The duties of a prosecutor.
• Duty to the public.
• Duty to an opponent.

Desired Outcomes:

• An understanding of the role of a prosecutor and the boundaries within which a prosecutor must pursue the Crown's case.
• An explanation of why a barrister has a duty to the public and examples to illustrate breaches of that duty.

1. Duty to public and other parties

Kelly v London Transport Executive [1982] 2 All ER 842*

They must not run up costs by instructing endless medical experts for endless reports or by any unnecessary expenditure. They must not ask a medical expert to change his report, at their own instance, so as to favour their own legally-aided client or conceal things that may be against him. They must not 'settle' the evidence of the medical experts as they did in Whitehouse v Jordan [1981] 1 WLR 246, which received the condemnation of this Court.

Lawyers must not ‘settle’ the evidence of medical reports.

2. Duty to the opponent

Bar Rules, rr 51-58

51. A barrister must not knowingly make a false statement to the opponent in relation to the case.

52. A barrister must take all necessary steps to correct any false statement unknowingly made by the barrister to the opponent as soon as possible after the barrister becomes aware that the statement was false.

53. A barrister will not have made a false statement to the opponent simply by failing to correct an error on any matter stated to the barrister by the opponent.

54. A barrister must not deal directly with the opponent's client unless:
(a) the opponent has previously consented;
(b) the barrister believes on reasonable grounds that:
(i) the circumstances are so urgent as to require the barrister to do so; and
(ii) the dealing would not be unfair to the opponent's client; or
(c) the substance of the dealing is solely to enquire whether the person is represented and, if so, by whom.

55. A barrister must not confer with or deal directly with the party opposed to the client unless:
(a) the party, not being indemnified by an insurance company which is actively engaged in contesting the proceedings, is unrepresented and has signified willingness to that course; or
(b) the party, being indemnified by an insurance company which is actively engaged in contesting the proceedings, is otherwise unrepresented and the barrister:
(i) has no reasonable grounds to believe that any statements made by the party to the barrister may harm the party's interests under the insurance policy; or
(ii) has reasonable grounds for the belief referred to in (i) but has clearly informed the party beforehand of that possibility; or
(c) the party, being indemnified by an insurance company which is actively engaged in contesting the proceedings, is personally represented but not in the case and the barrister:
(i) has notified the party's representative of the barrister's intention to do so; and
(ii) has allowed enough time for the party to be advised by the party's representative.

56. A barrister must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connexion with current proceedings unless:
(a) the court has first communicated with the barrister in such a way as to require the barrister to respond to the court; or
(b) the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister.

57. A barrister must promptly tell the opponent what passes between the barrister and a court in a communication referred to in Rule 56.

58. A barrister must not raise any matter with a court in connexion with current proceedings on any occasion to which the opponent has consented under Rule 56(b), other than the matters specifically notified by the barrister to the opponent when seeking the opponent's consent.

3. Duties of a prosecutor

(a) Generally

R v Bathgate (1946) 46 SR (NSW) 281 Bar Rule 63

Not to strive for a conviction at all costs

R v Pernich (1991) 55 A Crim R 464 Bar Rule 62

Must strive for justice

R v Meier (1982) 30 SASR 126 Bar Rule 64

To see a case is presented fairly and without unfair prejudice in the minds of the jury:

R v Glover (1987) 46 SASR 310 Bar Rule 62

Prosecutor has a duty to the court that the defence counsel does not share, in that he/she must bring to the attention to the court and defence material that is cognent and relevant to the accused