You are a prosecutor with conduct of a common assault trial. The complainant and a witness have spoken to each other about the offence. Following that conversation, the complainant has explained to you that he wishes to change his version of event because he now realises what he said was wrong and the witness has it right. The complainant is unsure what to do.
Question: What advice do you give the complainant?
r 68-69 - the prosecutor can express to the witness a general admonition to tell the truth and test the witnesses evidence in conference by drawing the witnesses to inconsistencies or other difficulties with the evidence, however must not encourage the witness to give evidence different from the evidence which the witness believes to be true.
r 69(b) The witness must not be coached into by advising what answers the witness should give to questions…this seriously undermines the trial process by which evidence is taken and is improper because it effects the intergrity of the evidence (day v perisher blue). This can expose the prosecutor to breach of the rules and disciplinary action s 227 LPA, cause a mistrial.
You are a prosecutor with conduct of a common assault trial. The complainant and a witness have spoken to each other about the offence. Following that conversation, the complainant has explained to you that he wishes to change his version of event because he now realises what he said was wrong and the witness has it right. The complainant is unsure what to do.
Question 2: The complainant wants to provide you with a new version of events. Do you take the statement?
r 17(c) - the prosecutor must not take a statement personally from the witness because it places the prosecutor at risk of becoming a witness should the content of the statement be disputed. Should get the witness to give a statement to police to be disclosed to defence.
You are a prosecutor with conduct of a common assault trial. The complainant and a witness have spoken to each other about the offence. Following that conversation, the complainant has explained to you that he wishes to change his version of event because he now realises what he said was wrong and the witness has it right. The complainant is unsure what to do.
Question 3: The complainant and witness want to give new statements together at the same time, so they are on the same page about what occurred to assist the court. Do you conference them at the same time to resolve their differences?
r 70 - the barrister must not confer with both lay witnesses about their evidence because the issues which the conferral would be about is an the central issue in dispute and such a conferral would affect their evidence and there are no special circumstances present here that would require such a conferral. The rational is that such a practice would contaminate the witnesses evidence which impacts its reliability and integrity. Such a conferral to have the witnesses speak with one voice is untoward conduct, seriously undermines the trial process, and is improper (day v perisher blue). This can result in disciplinary action (s 227 LPA), and court exercising inherent jurisdiction to restrain prosecutor from appearing.
You are a prosecutor with conduct of a common assault trial. The complainant and a witness have spoken to each other about the offence. Following that conversation, the complainant has explained to you that he wishes to change his version of event because he now realises what he said was wrong and the witness has it right. The complainant is unsure what to do.
Question 4: Do you inform the opponent regarding the conversation that the witness has had with you?
r 86 - yes the prosecutor must disclose the change in version to the defence solicitor because it is evidence which is directly relevant to the proceeding and may constitute evidence or guilt or innocence…given there is an inconsistent version…relevant to credit and reliability. Further, prosecutor has a duty of fairness and detachment has no interest in whether a conviction is secured only that there is a fair trial between the state and the accussed (r v whitehorn)
You are a prosecutor with conduct of a common assault trial. The complainant and a witness have spoken to each other about the offence. Following that conversation, the complainant has explained to you that he wishes to change his version of event because he now realises what he said was wrong and the witness has it right. The complainant is unsure what to do.
further to question 4 (Do you inform the opponent regarding the conversation that the witness has had with you?)
Question 5: Would your duties differ if this was a civil matter?
no - r 26 barrister has a paramount duty to the court to act with independence in the interests of the administration of justice would obtain a new version from the witness and disclose to the other side
What is a prosecutors duty?
r 82 - a prosecutors duty is to fairly assist the court to arrive at the truth, must seek to impartially to have the whole relevant evidence place 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
what is rule 83?
r 83 - a prosecutor must not press the prosecutor case for a conviction beyond a full and firm presentation of the case
A prosecutor called the defendant a creepy gross rock spider who looks a like a complete gronk’. discuss
r 43 - The barrister has breached ethical rule by seeking to inflame the bias of the court against the accused by language.
s 227 LPA - this may be considered misconduct and referral for disciplinary action
this court result in mistrial
The court may exercise it’s inherent jurisdiction to restrain the prosecutor from appearing unable to fulfill duty of detachment required to prosecutor on behalf of the crown
The prosecutor has made submissions that because the defendant is a useless football player it is likely that he is also a useless driver of a car which supports the conclusion that his driving caused the death of the victim.
r 85 - the prosecutor has breached ethical duty by arguing a proposition of fact which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight
This may result in a mistrial, s 227 LPA referral for disciplinary action, and the court exercising inherent jurisdiction to restrain the prosecutor from appearing on behalf of the crown.
What is a prosecutors ethical duty regarding disclosure?
r 86 - A prosecutor must disclose to the opponent all material available to the proseuctor or of which the prosecutor veocmes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable ground such disclose would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.
What are the exceptions to the prosecutors ethical duty of disclosure?
r 86 (1) statutory immunity (2) threaten the integrity of the administration of justice (3) the safety of any person
Where a prosecutor does not disclose material per r 86 what must the prosecutor consider?
r 87 the prosecutor who does not disclose material under r 86 must consider whether the (a) the charge against the accused should be withdrawn and (b) the accused should be faced with a lesser charge to which such material would not be so relevant
What is the prosecutions ethical obligations regarding calling witnesses?
r 88 - a prosecutor must call as apart of it’s case all witnesses (a) whose evidence s admissible and necessary for the presentation of all the relevant circumstances or (b) evidence is relevant to any matter unless
(i) the opponent consents to the prosecutor not calling
(ii) only matter which the witnesses evidence would be relevant has been dealt with by an admission
(iii) the only relevant evidence the witness could give is dealt with adequately by another witness/es
(iv) the prosecutor believes on reasonable grounds that the evidence is plainly untruthful or is plainly unreliable….should the prosecutor rely on any of these grounds the prosecutor must inform opponent.
What is the prosecutors duty regarding illegally obtained evidence?
r 89 - the prosecutor must promptly inform opponent that he intends to rely upon evidence which he believes is illegally obtained given he intends on using the material and must make available a copy of that material.
Can a prosecutor confer with the accussed?
r 90 a prosecutor must not confer with or interview any accused except in the presence of the accused legal representative
what must a prosecutor do at sentence?
Hint 5
r 93 - a prosecutor must (a) correct any error made by the opponent during 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 inform the court that a non custodial sentence or custodial sentence is required (e) may inform the court as to the appropriate range of penalty with reference to comparable decisions
Whitehorn v r
r 82; whitehorn v r - prosecutor has a duty of fairness and detachment to fairly assist the court in arriving at the truth and seeking impartially to place the whole relevant evidence place intelligibly before the court
What rules of the BCR reflect a prosecutors duty of fairness and detachment?
r 82 - duty to fairly assist the court etc
r 83 - must not press for conviction beyond full and firm presentation of the case
r 84 - must not seek to inflame the bias of the accused by words or conduct
r 85 - must not argue any proposition of fact or law which is not capable of contributing to a finding of guilt and also to carry weight
A prosecutors duty of fairness and detachment goes deeper than just the fairly assisting the court it also manifests itself:-
- 4.
- attitude of prosecutor (r 84)
- duty of disclosure (r 86-87)
- calling of witnesses (r 88)
- submissions on sentence (r 93)
What is the risk of a prosecutor making media comment?
Public comments create the danger of the appearance of not prosecuting fairly and with detachment.
R v MG - if the public comments display partiality the court may exercise inherent jurisdiction to restrain the prosecutor from appearing because the comments have compromised ability to fairly prosecute for the crown and a fair minded reasonably informed person would concluded that the prosecution would be directed to vindicating publicly held views.
What is a prosecutors duty of detachment?
R 83; R v Livermore - The role of the prosecutor is to be performed without regard to whether the case is won or lst
Where a prosecutor fails to observe the standard of fairness what are some potential consequences?
(1) mistrial
(2) appeal point
It is important to remember that the prosecutor owes duty of fairness to the court and not to the accused, which means the accused cannot sue the prosecutor for a breach of the duty.
What is a potential consequence of failing to disclose material as a prosecutor?
r 88-89; the failure to comply with ethical rules may be result in s 227 LPA disciplinary action but also may result in a ground of an appeal for a miscarriage of justice or stay application which the prosecution have prejudiced the accused right to a fair trial….remember that the duty of disclosure is not owed directly to the accused by rather the court. The prosecutor cannot be personally sued.
Can a prosecutor be sued by defendant for breach of duties as a prosecutor?
Cannon v Tache - no prosecutor owes no independent duty to defendant cannot be sued be defendant for breach of any duty
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Legal Profession Act - Introduction7
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Legal Profession Act - prelim6
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Legal profession Act - Cost Disclosure17
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Legal Profession Act - legal costs generally3
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Legal Profession Act - Costs Agreements11
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Legal Profession Act - Billing5
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Legal profession act - cost assessment12
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Legal Profession Act - Speculative Person Injury claims2
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Cases6
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Confidentiality + Conflicts20
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Devilling3
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BRIEFS - Must refused or returned16
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Briefs - which may be refused or returned19
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Prosecutor duties26
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Delinquent or guilty clients20
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Media comment8
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Integrity of evidence27
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MISC MATTERS26
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Responsible use of court process and privilege18
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efficient administration of justice4
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Duty to opponent14
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Independence12
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Duty to client7
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Duty to the court12
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Cab Rank Rule4
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The work of a barrister6
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General4
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Relationship with profession and third parties17
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CH practice questions52
