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
R v Anderson (1991) 53 A Crim R 421 Bar Rule 65
Not to argue irrelevant law
Bar Rules, rr 62-72
62. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
63. A prosecutor must not press the prosecution's case for a conviction beyond a full and firm presentation of that case.
64. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
65. A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.
67. A prosecutor who has reasonable grounds to believe that certain material available
to the prosecution may have been unlawfully obtained must promptly inform the opponent if they intend to use the material and make it available.
68. A prosecutor must not confer with or interview any of the accused except in the presence of the accused's representative.
69. A prosecutor must not inform the court or the opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that such evidence will be available from material already available to the prosecutor.
70. A prosecutor who has informed the court of matters within Rule 69, and who has later learnt that such evidence will not be available, must immediately inform the opponent of that fact and must inform the court of it when next the case is before the court.
71. A prosecutor must not seek to persuade the court to impose a vindictive sentence or a sentence of a particular magnitude, but:
(a) must correct any error made by the opponent in address on sentence;
(b) must inform the court of any relevant authority or legislation bearing on the appropriate sentence;
(c) must assist the court to avoid appealable error on the issue of sentence;
(d) may submit that a custodial or non-custodial sentence is appropriate; and
(e) may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant appellate authority.
72. A barrister who appears as counsel assisting an inquisitorial body must act in accordance with Rules 62, 64 and 65 as if the body were the court referred to in those Rules and any person whose conduct is in question before the body were the accused referred to in Rule 64.
(b) Duty to call a witness
Must call if necessary for case Bar Rule 66B
R v Lucas [1973] VR 693
To call witnesses at their discretion – there is no duty to call a witness if not essential:
Richardson v R (1974) 131 CLR 116
Witness was not called as prosecutor believed the witness had no credit and had established the same at committal
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
Should have called police officer from hotel and lost the forensic value of cross examination
Whitehorn v R (1983) 152 CLR 657 – Skinny gut
Basic fairness is required. If not intending to question should call the witness and make available for cross examination on any evidence tendered
R v Apostolides (1983) 11 A Crim R 381; (1984) 154 CLR 563
Definitive Rules
1) Prosecutor alone bears responsibility to call witnesses
2) Trial judge may question crown
3) At close trial judge may ask prosecutor to reconsider
4) Trial judge may address jury about non production of witnesses
5) Not calling a witness only leads to mistrial if it is a miscarriage of justice
6) Refusal is justified if witness found to be unreliable not just suspicious they are unreliable
7) Judge to call witness in only the most exceptional circumstance
8) When not calling a witness must make available for cross examination
Bar Rules, rr 66-66B
66. A prosecutor must disclose to the opponent as soon as practicable all material (including the names of an means of finding prospective witnesses in connexion with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused, unless:
(a) such disclosure, or full disclosure, would seriously threaten the integrity of
the administration of justice in those proceedings or the safety of any
person; and
(b) the prosecutor believes on reasonable grounds that such a threat could not
be avoided by confining such disclosure, or full disclosure, to the opponent
being a legal practitioner, on appropriate conditions which may include an
undertaking by the opponent not to disclose certain material to the
opponent’s client or any other person.
66A. A prosecutor who has decided not to disclose material to the opponent under Rule 66 must consider whether:
(a) the defence of the accused could suffer by reason of such non-disclosure;
(b) the charge against the accused to which such material is relevant should be withdrawn; and
(c) the accused should be faced only with a lesser charge to which such
material would not be so relevant.
66B. A prosecutor must call as part of the prosecution’s case all witnesses:
(a) whose testimony is admissible and necessary for the presentation of the whole picture;
(b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;
(c) whose testimony or statements were used in the course of any committal proceedings;
(d) from whom statements have been obtained in the preparation or conduct of the prosecution’s case; unless:
(e) the opponent consents to the prosecutor not calling a particular witness;
(f) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused; or
(g) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness or particular witnesses to establish a particular point already adequately established by another witness or other witnesses; provided that:
(h) the prosecutor is not obliged to call evidence from a particular witness, who would otherwise fall within (a)-(d), if the prosecutor believes on reasonable grounds that the testimony of that witness is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused; and
(i) the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (f), (g) and (h), together with the grounds on which the prosecutor has reached that decision.