Ethics Flashcards

Question

Council of the NSW Bar Association v Dwyer

Answer 1

The Council of the NSW Bar Association applied for Mr Dwyer to be removed from the Roll. The Council has also asked for declarations that Mr Dwyer has been guilty of professional misconduct, is not a fit and proper person to remain on the Supreme Court Roll and is not a person of good fame and character. Mr Dwyer has consented to the making of declarations to that effect, as well as to an order that his name be removed from the Supreme Court Roll. The Council has also asked for an order that Mr Dwyer pay its costs of and incidental to this application. Mr Dwyer neither consents to, nor opposes, that order. After surrendering his practising certificate on 18 March 2013, Mr Dwyer continued to engage in legal practice as a barrister in breach of s 14(1) of the Legal Profession Act. Mr Dwyer contravened s 14(4) of the Legal Profession Act by receiving fees for the work done in breach of s 14(1). After surrendering his practising certificate on 18 March 2013, Mr Dwyer represented and advertised that he was entitled to engage in legal practice, contrary to s 15(1) of the Legal Profession Act. Mr Dwyer misled the Council on a number of occasions during the period from March 2013 to January 2014, by sitting that he did not practise when he did. With the knowledge that he did not hold a practising certificate, Mr Dwyer engaged in legal practice between 18 March 2013 and 14 October 2013 in relation to seven different matters. In two of the matters, Mr Dwyer had been briefed before surrendering his practising certificate, but continued to act after that surrender. In relation to the other five matters, it is more likely than not that Mr Dwyer accepted briefs after he had surrendered his practising certificate. 1. While Mr Dwyer has consented to the substantive orders, it is nevertheless necessary for the Court to be satisfied that the declarations and orders sought should be made. 2. Where an order for removal from the Supreme Court Roll is sought, the ultimate question is whether the practitioner is a fit and proper person to be a legal practitioner and officer of the Court. 3. While the Court may have regard to the statutory definitions of “professional misconduct”, the Court is not constrained by them. The Court has the capacity to determine and act on the basis of unfitness of a person where appropriate. 4. A person does something as a legal practitioner if the person does something that is usually done by a legal practitioner and does it in such a way as to lead to the reasonable inference that the person is a legal practitioner. merely doing something that is usually done by a barrister or solicitor, but which may be done by someone else, will not necessarily constitute engaging in legal practice. What constitutes the conducting of legal proceedings is a question of fact to be determined objectively. 5. The inherent jurisdiction is protective and is directed to maintaining and encouraging appropriate standards of professional behaviour. LPUL: ss 10, 11, 12, 15(b), 17(1)(c) and (2), 23, 42, 43, 44, 45, 297 and 298. LPUGR: r 8, 9, 10 and 13. LPUCBR: 8, [11 as to what work of a barrister entails], 23, 24, [25 in that he should have sought leave], 49, 50.

Answer 2

Mr Nguyen was charged on indictment with offences against the Criminal Code (NT) when he allegedly threw a bottle of beer at someone after a singing game went awry. He had been interviewed by the police about the offences prior to being charged. The interview, which was recorded, contained admissions together with exculpatory statements in the form of a claim of self-defence ("mixed statements"). At the first trial the prosecutor played the recorded interview and the jury did not reach a verdict. At the second trial the prosecutor made a "tactical decision" not to tender the recorded interview as it would not assist the prosecution case. The defendant applied to stay the second trial. Following previous NT appellate authority, the Full Court of the NT Supreme Court held that the prosecutor was not obliged to tender the interview as there was no general principle requiring a prosecutor to tender a record of interview simply because it contained admissible material. Before the commencement of the second trial the prosecutor advised the Court that the Crown would not tender the recorded interview. The trial judge asked if that was because the prosecutor considered the Crown had “a better chance of winning” without the recorded interview, to which the prosecutor responded: “To be blunt, your Honour, yes it's a tactical decision.” He said that if the exculpatory statements were given in evidence the appellant would not be subject to cross-examination on that account. He pointed out that the appellant could give evidence about the matters in the record of interview if he chose to do so. 1. It is well settled that if the prosecution seeks to rely upon an out-of-court admission or other incriminating statement the whole statement made by the accused must be put before the jury including those hearsay statements by which the accused tried to exculpate himself or herself. The prosecution may not “pick and choose” between statements which it says bear out its case and those which do not. 2. Section 190(1) provides that the parties to a proceeding may dispense with the application of provisions of those and other Parts in relation to particular evidence or generally. In criminal proceedings s 190(2) requires that an accused's consent must be the subject of legal advice. In a case where a record of interview does not meet the requirements of s 81(2) there seems no reason in principle why a prosecutor ought not properly resort to this provision with the consent of the accused. 3. The Crown's obligation to put its case both fully and fairly before the jury means that the Crown ought to tender an accused's mixed record of interview unless there are proper grounds for not doing so. It follows that there may well be unexceptional cases in which a prosecutor would be perfectly entitled to choose not to tender available, cogent and admissible evidence without risk of unfairness to the accused. Of course, each case depends on its own facts and circumstances. 4. Where the reliability or credibility of the evidence is demonstrably lacking, the prosecutor may be justified in refusing to tender such evidence. 5. The principle that the prosecutor is obliged to present its case fully and fairly is "fundamental" to the conduct of a criminal trial. 6. Fairness requires the prosecutor to present "all available, cogent and admissible evidence". 7. There may be circumstances where it would be unfair to an accused to tender a record of interview (eg. where the accused has refused to comment). However, the prosecutor should tender mixed statements in its case unless there is a good reason not to do so. It should only be in those rare cases where the reliability or credibility of evidence is demonstrably lacking that the circumstances may warrant the prosecutor refusing to tender mixed statements. 8. The admissibility of mixed statements is a separate question from whether the prosecutor has a duty to tender them (although usually mixed statements in a record of interview will be admissible). Here the defendant's account was consistent and could not be described as demonstrably false simply because it differed from the account of others. 9. The prosecutor's tactical decision not to tender the interview to favour the prosecution case did not accord with a prosecutor's duties. ULPCBR: rr 83 and 84.

Answer 3

The High Court unanimously dismissed two appeals against the decision of the Victorian Court of Appeal to dismiss the sentencing appeals of two convicted drug traffickers. Barbaro and Zirilli were convicted of drug trafficking offences for importing 15 million tablets of MDMA, with an estimated total wholesale value of $122 million, concealed in a shipment of tinned tomatoes. Both pleaded guilty to the charges, and were sentenced to life in prison and 26 years respectively. The appellants challenged the sentencing judge’s decision on the basis of denial of procedural fairness, namely that the trial judge, Justice King, refused to hear the Crown’s submissions on the appropriate sentencing range, and imposed sentences that were both higher than the maximum sentences recommended by the Crown. This is because plea agreements were made and the cases settled or resolved to pleas, because they expected the prosecution would advise the Court what it thought was the appropriate sentencing range. The Court of Appeal held that Justice King was not obliged to receive those submissions, and that the sentences imposed were not manifestly excessive. The High Court dismissed the appeal in that King J’s refusal to hear the prosecution on sentencing ranges did not amount to a failure to take account of a material consideration in fixing the sentences, and the applicants were therefore not denied procedural fairness. 1. A prosecutor is not required, and should not be permitted, to make a submission as to the bounds of the available sentencing range or to proffer some statement of the specific result. Such a statement is one of opinion and is neither a proposition of law or fact which a sentencing judge may properly take into account. It is not the role of the prosecution to act as a surrogate judge. Allowing prosecutors to proffer a view of the sentencing range assumes they will determine the range dispassionately. But in cases where the offender has, or will, assist authorities or where a plea of guilty avoids a very long and costly trial, the prosecutor’s view cannot be dispassionate: 2. High Court also overruled the earlier decision of R v MacNeil-Brown [2008] VSCA 190 — a landmark ruling in which the VSCA held that a prosecutor should make submissions on sentencing range if asked by the judge (applied by the VSCA in this case) — to the extent that it supported the practice of counsel providing submissions on the bounds of the available range of sentences, noting that ‘[t]he practice to which MacNeil-Brown has given rise should cease. 3. Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment …The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. 4. The High Court was only denying a role for the prosecution to submit its views about the range. But it is still open to the prosecution and defence — and probably required as a matter of practice and good advocacy, if not a matter of law — to refer to comparable cases and relevant sentencing statistics. 5. The duty of the prosecution at sentence is “… to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases [i.e. comparable cases and sentencing statistics)”. The court will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range. 6. The basic differences between criminal prosecution and civil proceedings provide a principled basis for excluding the application of Barbaro from civil proceedings and so the parties were therefore entitled to make submissions as to agreed penalty [Commonwealth of Australia]. 7. Per Basten JA [in In “The prosecutor’s role in sentencing” (2014) 26(6) JOB 47 at 48] that the statement of a range is at least unhelpful and probably misleading if the underlying elements are not articulated. The underlying elements will include: (a) the facts of the particular case; (b) the maximum penalty and standard non-parole period (if any); (c) mitigating and aggravating factors identified by the relevant statute; (d) if parity is an issue, the sentences imposed on co-offenders; (e) sentencing statistics (if useful) and (f) details of comparable cases. 8. Did not alter the pre-existing duty of the prosecutor to assist the court by the making of submissions as to comparable and relevant cases. ULPCBR: 23, 24, 25, 44 and 95.

Answer 4

CMB was sentenced for a series of sexual offences against his daughter and sent to a treatment program called Cedar Cottage at which he was encouraged to make further disclosures to demonstrate a commitment to change. He made admissions to other offending which his daughter did not remember, was then charged for the further offences, and pleaded guilty to them. The District Court deferred imposing a sentence on the new matters so that CMB could finish at Cedar Cottage. The Director of Public Prosecutions (DPP) publicly announced that he would not appeal, but the NSW Attorney General separately announced that he would exercise his own right of appeal. The Attorney-General appealed to the Court of Criminal Appeal (NSW) contending the sentence was manifestly inadequate. In 2014 this Court upheld the appeal and substituted a custodial sentence. CMB’s appeal to the High Court was allowed by all members. 1. The prosecutor has a “… duty to assist the court to avoid appealable error where a sentencing judge indicates the form (as opposed to the duration) of a proposed sentencing order and the prosecutor considers it to be manifestly inadequate”. ULPCBR: r 95.

Answer 5

HT was a registered police informer. In the District Court sentence proceedings, an affidavit by a police officer detailing HT’s assistance to authorities (Exhibit C), was admitted into evidence. The sentencing judge took Exhibit C into account in discounting HT’s sentence pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 ('C(SP) Act'). The Crown Prosecutor was given access to Exhibit C, but HT’s counsel was not. Rather, the Commissioner of Police had presented HT’s counsel with two options: first, if counsel were to have access to the affidavit to be provided to the court, the affidavit would be highly redacted (and much shorter); alternatively, if counsel agreed not to require access to the affidavit, the affidavit would be lengthy, and inferentially more favourable to HT. Counsel chose the latter. In the CCA, two affidavits relied upon by the Commissioner were disclosed to HT’s counsel. A third, which identified particular difficulties concerning disclosure in HT’s case, was not provided to HT’s counsel. The Crown had access to all three affidavits. The CCA upheld the Commissioner’s objection to HT’s counsel having access, on public interest immunity grounds. The CCA determined for itself the extent of the discount on sentence, taking into account all three affidavits. The appellant appealed to the High Court on grounds including that she was denied procedural fairness, and that the CCA had no power to deny her access to Exhibit C. Appeal was allowed. 1. Denied procedural fairness. The appellant 'did not have the opportunity to test the accuracy of the evidence' or of making submissions concerning the application of that evidence to s 23 of the C(SP) Act'. 2. It was not to the point that the information in Exhibit C was not adverse to HT. HT had no way of knowing if the exhibit detailed all of the assistance she had provided and the risks she had taken, and her counsel could not test the evidence and not to give instructions on it. 3. Gordon J found that the denial of procedural fairness arose because three different principles or sets of principles were not kept separate. First, what material was immune from production (public interest immunity); secondly, how confidential material might be produced to an opposing party before trial (confidentiality); and thirdly, how confidential evidence might be adduced but not otherwise disclosed (suppression or non-publication). Her Honour emphasised that these different principles applied at different stages of litigation, were intended to achieve different objectives and had different sources of power. 4. If a question arises as to the need to keep some of that information confidential from the other party, the sentencing judge should be approached to make appropriate orders. Further orders may be fashioned, as necessary, if such information is admitted into evidence. LPUCBR: rr 83, 84, [87 and 88 may not be relevant as it was to do with sentencing and not guilt] and 95(c).

Answer 6

The appellant appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales (“the CCA”). The sole ground of appeal was that “[t]he Judge's summing up to the jury caused a miscarriage of justice”. [10] The CCA (Payne JA, Fagan J agreeing and Beech-Jones J dissenting) dismissed his appeal. The High Court allowed the appellant’s appeal, quashed the convictions and ordered a new trial, where comments by the judge included: suggesting a consignment may have contained drugs, the importation of which was the appellant’s responsibility as part of "an organisation of great sophistication", when no such suggestion had been made by the prosecution and suggesting a text message from the appellant to his co-accused showed the appellant was knowingly involved in drug importation. The statements were so lacking in balance as to be an exercise in persuading the jury of the appellant's guilt, they were unfair and gave rise to a miscarriage of justice. The remarks were unnecessary for a fair and accurate summary of the cases by the parties. Their content and tone (in relation to the text message by the appellant) would not have been out of place in a powerful address by prosecution counsel. Also, his counsel, in addressing the jury, relied upon the online betting accounts as evidence of the appellant's success as a gambler. In this his counsel was plainly in error, in that the net effect of the wins and losses was that the appellant lost money in the course of his online gambling activities. 1. A trial judge may comment on factual issues, however, is not bound to do so except to the extent that the judge's other functions require it. The fundamental task of a judge is to ensure a fair trial of the accused within a framework where it is “for .. the jury alone, to decide the facts”: at [1]-[2]; RPS v The Queen (2000) 199 CLR 620. 2. Statements by the trial judge during the course of his summing-up were so lacking in balance as to be seen as an exercise in persuading the jury of the appellant's guilt. The statements were unfair to the appellant and gave rise to a miscarriage of justice. LUPCBR: rr 23, 24, 29, 49 and 50 [possibly with respect to the barrister for failure to correct his incorrect submission as to gambling profits] and 83, 84 and 85 with respect to prosecutor's conduct, as failure to intervene may be bias by conduct.

Answer 7

The appellant, having been approved for admission as a barrister by the Barristers Admission Board was in 1946 admitted as a barrister by the Supreme Court of New South Wales. In 1947 that Court disbarred the appellant on the ground that in 1935 he had pleaded guilty to an indictment for breaking, entering and stealing and that he had failed to disclose this fact to the Court or to the Board or to the persons from whom he obtained certificates of good fame and character. The applicant was not only guilty of a grave criminal offence in 1934, but in 1944, and again as recently as 1946, he induced two solicitors to give him certificates of character without disclosing to them that he had been convicted of that criminal offence, and he presented to the Board certificates so obtained. 1. The power of the Supreme Court to disbar may be exercised upon a ground that is antecedent to the admission of a barrister or the determination of the Board to approve him as a fit and proper person. 2. It would not be reasonable to require a candidate to disclose to the Board, or even to persons whom he approached with a request for certificates, every wrongdoing of his life. But a conviction for housebreaking is so obviously a relevant matter when character is under consideration that there can be no room for doubt in the present case as to the duty to disclose it both to the Board and to the persons from whom he obtained certificates of character. 3. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character. LPUL: ss 15, 17(1)(c), 19(3)(b), 21, 22, 23, 51, 86 and 93.

Answer 8

Mr Wood convicted of murder of his live-in partner, on the basis of circumstantial evidence. He applied for leave to appeal his conviction, one of the grounds included that there had been a miscarriage of justice by reason of prejudice occasioned by the Crown Prosecutor, who asked the jury 50 questions and inviting them to consider whether the accused had provided satisfactory answers (trial judge had previously refused permission to provide these questions as a written document to the jury). 1. Invitation to the jury to consider a list of fifty questions which the prosecutor told the jury were “the salient questions in order to decide the outcome of the case.” The fundamental submission was that by adopting this approach to his address the prosecutor committed the error discussed in R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 at [57]. 2. A prosecutor is a “minister of justice”. The prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness. A prosecutor is not entitled to act as if representing private interests in litigation. A prosecutor represents the community and not any individual or sectional interest. A prosecutor acts independently, yet in the general public interest. 3. It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’ 4. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.’ 5. “[It is] quite impermissible [for a Crown Prosecutor] to embark upon a course of conduct calculated to persuade the jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial.” 6. In Livermore this Court held that a number of features of a Crown address, either alone or in combination, might require censure by an appellate court. These include: “(i) A submission to the jury based upon material which is not in evidence. (ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury. (iii) Comments which belittle or ridicule any part of the accused’s case. (iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit. (v) Conveying to the jury the Crown Prosecutor’s own opinion.” Additionally, where submissions are made that contain matters which the appellant is asked to explain, the onus of proof is inappropriately reversed. ULPCBR: rr 44, 83, 84, 85 and 86.

Answer 9

The applicant was convicted at trial of the murder of his parents on 28 August 1993. Mr and Mrs Gilham died as a result of multiple stab wounds. Their bodies were then set alight causing a fire in part of the house. Christopher Gilham was also found dead. He had sustained 17 stab wounds. The applicant maintained that on entering the house he saw that his parents had been murdered by his brother, Christopher. The applicant then stabbed his brother, killing him in anger over what he had done. A complaint was also made about the failure of the prosecutor to call a medical expert retained by the defence and called on the voir dire on an issue over the admissibility of other medical evidence, on the basis he was critical of the other expert witnesses and undermined the cron's case. Complaints were also made concerning the conduct of the Crown Prosecutor in wielding a knife before the jury and in having Gilham demonstrate his dexterity with the knife. It was also alleged that the prosecutor had cross examined the defendant in an improper manner, by asking questions about his deceased victims date of birth, generally about the relationship between troubled young people and their parents and failure to take certain action. The prosecutor used emotive language. 1. The court referred to well established principles in Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides (1984) 154 CLR 563; R v Kneebone (1999) 47 NSWLR 450 and Velevski v R [2002] HCA 4 and concluded that the failure to call the witness lacked a legitimate scientific foundation and constituted a miscarriage of justice. The court was critical of the fact that the prosecutor at the second trial had not conferred with the witness but had relied upon an earlier decision that the witness was “plainly unreliable”, an approach which the court considered fundamentally flawed. The basis for this view was that: (a) the opinions were based upon the accused's account; (b) the opinions were often argumentative; (c) the views were at variance with the views of other experts the crown intended to cal; (d) the Crown could only demonstrate the limitations and inadequacies of the report in cross-examination (the expert was not cross-examined on appeal). The view was formed without a conference with the expert. 2. The court noted that it would have been available to the prosecutor to seek leave to cross examine under s 38 of the Evidence Act, a process in which the court considered that the interests of justice are preserved and advanced. 3. The demonstration with the knife was found to have had no relevance to the issues in the trial and, given the likely consequence that the demonstration would provoke a response adverse to Gilham, the court concluded that it was unfairly prejudicial. The use of the knife during the final address was also said to be without justification and should not have been allowed. 4. Questions and submissions by the Crown Prosecutor such as her views on dealing with a child with problems and a person’s need for “their mum and dad” were considered inflammatory and inappropriate. 5. Fullerton J and Garling J both held that the manner in which the trial had been conducted by the Crown was a factor in their decision to acquit rather than order a new trial. 6. Whilst the court were critical of the language of the Crown Prosecutor in some respects it was mild compared with previous examples. In Libke v The Queen (2007) 230 CLR 559 comments by the prosecutor such as “I do not buy that explanation” and “we’ve heard about that one” and others were described as a sarcastic and repeated commentary which went too far and was described by Heyden J as being cross examination of a “wild and uncontrolled and offensive character”. In Livermore v R (2006) 67 NSWLR 659 the court considered that the use of the terms such as “idiot” in reference to a witness and “bizarre”, “silly” and “reminiscent of a plot worse than an episode of Desperate Housewives” inappropriately conveyed the personal views of counsel. In Gonzales v R (2007) 178 ACrimR 232 the use of the terms “pathetic” and “absolutely pathetic” should not have been used but did not amount to a “gratuitous denigration of the appellant or the defence case”. 7. While it is the Crown Prosecutor alone who bears the responsibility for deciding whether a person will be called as a witness for the Crown, that decision must be made consistently with the overriding obligation to act fairly and in strict accordance with what was then Rule 62 of the Barristers' Rules (must fairly assist the court to arrive at the truth, and seek impartially to have the whole of the relevant evidence placed intelligibly before the court). See also the relevant guidelines which also state that should generally call all apparently credible witnesses whose evidence is admissible and essential to the complete unfolding of the prosecution case or is otherwise material to the proceedings. Exceptions are repetitious evidence or identifiable circumstances clearly establishing that the witness is unreliable. Mere inconsistency with the prosecution case is not, of itself, grounds for refusing to call the witness. Where practicable, the prosecution should confer with the witness before making a decision not to call the witness. This is a continuing obligation until the case is closed. It is necessary that a prosecutor be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability. LPUCBR: rr 44, 83, 84, 85, 87, 88, 89 and 90.

Answer 10

Certain running sheets were relevant to Mr. Reardon’s defence that he never intended to import cocaine, but rather intended to defraud the witness W of the money that W was to provide for the supposed importation of cocaine (the “rip-off” defence). Entries in running sheets kept by the National Crime Authority (NCA) should have been disclosed by the Crown prior to the trial; and that the Crown’s failure to do so caused a miscarriage of justice, because Mr. Reardon was denied support to his “rip-off” defence that those running sheets could have provided. The issues were what is the Crown’s duty of disclosure? Was it breached in this case? If so, what use could have been made at the trial of the material that should have been disclosed? Has there been a miscarriage of justice? 1. Subject to the question of privilege and public interest, the prosecution must disclose documents which are material. A document is material if it can be seen, on a sensible appraisal by the prosecution to: (a) be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case; or (c) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence going to either (a) or (b) R v. Keane [1994] 2 All ER 478. An issue in the case must be given broad interpretation; and category (c) indicates that the duty is not limited to admissible evidence: R v. Brown (Winston) [1998] AC 367 at 376-7. 2. Unless disclosure is excused because of legal professional privilege or public interest considerations, contemporary documents created by the police in the course of surveillance or undercover operations should be disclosed if they fall within the Keane/Brown principles. Accordingly, it would seem that the NCA running sheets should have been disclosed. 3. Having regard to the limited use to which the undisclosed material could have been put, there was no miscarriage of justice. There was no real chance that the jury would have acquitted Mr. Reardon, had the material been available. 4. if in a criminal case the prosecution wished to claim public interest immunity for documents helpful to the defence, the prosecution is in law obliged to give notice to the defence of the asserted right so that if necessary the Court can be asked to rule on the legitimacy of this claim. 5. Duty did not extend to disclosing material relevant only to the credibility of defence (as opposed to prosecution) witnesses. 6. There is no onus on the defence to demonstrate a forensic purpose in relation to material said to be subject to the Crown’s duty of disclosure. 7. As to what to disclose by the crown should take a broad view of relevance and of what are the issues in the case. See generally the article “Unused Material and the Prosecutor’s Duty of Disclosure” by Martin Hinton in (2001) 25 (3) Criminal Law Journal 121. 8. If such documents merely repeat in second or third hand ways information which is otherwise disclosed, it seems likely that they would not fall within the Keane/Brown categories. However, it is also arguable that it could not be expected of the Crown that it should have recognised the possible relevance of the material in these respects, particularly when neither issue had been raised by Mr. Reardon before he gave evidence at the trial. LPUCBR: 83, 84, 87 and 88.

Answer 11

In the District Court between 19 and 23 June 1995, the respondent adduced evidence from 5 witnesses, knowing that evidence to be untrue. On 18 November 1994 an armed robbery was committed at 1 Carol Crescent, Roselands, New South Wales. On 14 December 1994 Tony Haddad informed the respondent that Haddad was present during the commission of the armed robbery. On 19 June 1995 Tony Haddad, represented by the respondent, entered a plea of not guilty to the charges of armed robbery arising from the incident on 18 November 1994. On 21 June 1995 the respondent adduced evidence, knowing it to be untrue, from Tony Haddad to the effect that Haddad was not present at 1 Carol Crescent, Roselands, on 18 November 1994 and had never been to that address in his life. On 21 June 1995 the respondent adduced evidence, knowing it to be untrue, from Tony Haddad to the effect that, at the time the armed robbery was being committed at 1 Carol Crescent, Roselands, Haddad was in bed at his home at 26 Defoe Street, Punchbowl. On 22 June 1995 the respondent adduced evidence, knowing it to be untrue, from the following four persons: (i) Christine Kondos; (ii) Ahmad Farhat; (iii) Nabil Haddad; (iv) Shouhra Haddad, which evidence was to the effect that, at the time the armed robbery was being committed at 1 Carol Crescent, Roselands, Tony Haddad was present at 26 Defoe Street, Punchbowl. Barrister did not give evidence that he received instructions that were different to Haddad being present at the premises for which he was criticised [case of Meakes referred to and adopted with respect to evidence and inference drawn]. 1. The fact that the barrister’s personal belief is that the client is not telling the truth as to the facts of the case, does not mean that the barrister is prohibited from conducting the case in accordance with the client’s instructions. 2. Knowledge in this context does not, of course, arise from direct knowledge but rather is the formation of a belief, a state of mind resulting from the instructions the respondent obtained from his client together with the available evidence. 3. The relevant standard of proof in these proceedings is that laid down in Briginshaw v Briginshaw (1938) 60 CLR 336. LPUL: ss 15(b), 17(1)(c) and (2), s 45(2)-(4), 75, 297 and 298. LPUGR: rr 13. LPUCBR: rr 8, 23, 24, 25, [36, 37, 39, 40 as to what he should have done], 42, 49, 50, [79 if happened during or after hearing], 80, 101(f), 102, 107, 108 and 110.

Ethics Flashcards

(35 cards)