sources of roles of prosecutor
- Primary Sources:
› Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA)
› Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (WA)
› Case law
› Director of Public Prosecutions Statement of Prosecution Policy and Guidelines 2022 - Other Sources:
› International Association of Prosecutors Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors
› Published papers by Judges, Directors of Public Prosecutions
who is considered a prosecutor?
- State Prosecutors, employed pursuant to statutory regimes such as the Director of Public Prosecutions Act 1991 (WA)
- Legal practitioners employed by the Office of the Director of Public Prosecutions in any State/Territory or the Commonwealth Director of Public Prosecutions
- Legal Officers employed by the Commonwealth DPP, the Australian Securities Commission and by other Commonwealth and State Government instrumentalities with regulatory functions
- Police officers acting as police prosecutors, although not usually qualified legal practitioners
- Any practising barrister (or solicitor) instructed to prosecute on behalf of a government department or instrumentality or on behalf of a private citizen
broad description of a prosecutor
- Generally
› A Prosecutor institutes criminal proceedings on behalf of the Crown, or the State.
› The power of a Prosecutor is generally established under statute.
› Prosecutors are counsel who exercise the power of the Crown or State Prosecutor
BEING A MINISTER OF JUSTICE
But the Crown counsel is a representative of the State, a ‘minister of justice’, his function is to assist the jury in arriving at the truth….The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that he truth should be known, and that justice should be done…’ (emphasis added)
McCullough (1982) 6 A Crim R 274 at 285, citing Outlines of Criminal Law Kenny (19th ed)
WHAT DOES A PROSECUTOR DO
› Does not represent the individual citizen (the complainant)
Does not take instruction/it not bound to take instructions from the complainant.
› Does not have a private duty to the client (compare duty of defence counsel)
› Representative of the State
› Minister for justice
› Function to assist the trier of fact to arrive at the truth
ROLE OF THE PROSECUTOR
- Director of Public Prosecutions for Western Australia - Statement of Prosecution Policy and Guidelines 2022
8. A prosecutor is not entitled to act as if representing private interests in litigation. A prosecutor represents the community as a whole and not any individual or group interest. A prosecutor does not have a ‘client’ in the conventional sense and acts independently in the public interest.
9. Prosecutors carry out duties which are fundamental in a democratic society. They are entitled to certain rights to enable them to properly perform these duties. The ODPP adopts the International Association of Prosecutors’ Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors which are set out in Appendix 1.
10. Prosecutors must act in compliance with the statutory obligations contained in the Public Sector Management Act 1994 (WA) and the Legal Profession Conduct Rules 2010 (WA).
Is the role of a prosecutor incompatible with the role of the advocate?
- ‘However, it should also be said that the observance of those canons of conduct is not incompatible with the adoption of an advocate’s roles. Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused.’ (emphasis added)
› McCullough (1982) 6 A Crim R 274 at 285, citing Outlines of Criminal Law Kenny (19th ed)
› Adopted by the Court if Criminal Appeal in Western Australia in Vella (1990) 47 A Crim R 119
HOW SHOULD A PROSECTOR ADVOCATE
- McCullough (1982) 6 A Crim R 274 at 285, citing Outlines of Criminal Law Kenny (19th ed)
› Must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused.
› It is not his duty to obtain a conviction my all means (consider, what might be the key performance indicators of a prosecution service?)
› simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts.
› The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that he truth should be known, and that justice should be done
KPI’s of a Prosecutor
- KPI = not case submissions brought for a criminal trial
› Case ran from start to finish.
› Prima facie case.
› Reasonable prospect of conviction (in public interest).
› Everything discharged fairly upon the accused.
› (i.e. they don’t want a submission of no case to answer made by the defence).
the duty to be fair?
- Director of Public Prosecutions for Western Australia - Statement of Prosecution Policy and Guidelines 2022
11. The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice. The role of a prosecutor is not to obtain a conviction, but rather: [I]t 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 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.
Boucher v The Queen [1955] SCR 16, 23-24.
12. A central, even the central, element in that role is ensuring that the prosecution case is presented with fairness to the accused.
13. A prosecutor is entitled to firmly and robustly put the prosecution case and to properly test and, if necessary, challenge, any case put on behalf of an accused. However, this must be done temperately and with restraint.
14. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
15. A prosecutor must inform the court of authorities or trial directions appropriate to the case, even where unfavourable to the prosecution, and must, in accordance with the law, adduce all admissible prosecution evidence during the prosecution case.
duty of fairness in the court room and the office
- Prosecutors are engaged in decision making outside the court room
› Do they charge the accused? Do they charge the accused with the offence suggested by the police officer. - The duties of the prosecutor and the ethical considerations underpinning those duties apply also to the work of the prosecutor done in the exercise of prosecutorial discretion
- Prosecutorial discretion is of course an exercise of the function of the executive, but at arms length from Government, and so the decision to prosecute is not justiciable.
- Duties are observed by prosecutors in exercising the discretion whether or not to charge a person and if so, with what.
Exercise of Prosecutorial discretion v investigative discretion
› Statement of Prosecution Policy and Guidelines 2022 – The Decision to Charge:
6. The primary responsibility for investigating and charging offences resides with investigative agencies, such as the Western Australia Police Force (WAPF).
7. The investigation and prosecution of offences are separate and distinct functions within the criminal justice system. In some cases, whether because of complexity, sensitivity or for some other reason, it will be appropriate for the WAPF or other investigative agency to seek the opinion of the Director as to whether a charge should be laid. In such cases, the decision to charge will still be one for the WAPF or other investigative agency, although they will be entitled to act on the recommendation of the Director.
› Decision to charge = police.
› Decision to prosecute = DPP.
TWO ELEMENTS OF DECIDING TO PROSECUTE
› Prima facie case – that the evidence discloses sufficient evidence such that it would be possible for a trier of fact properly informed to conclude the guilt of the accused in respect of the offence/s charged.
› Evaluation of the public interest
A prosecution will be in the public interest if there is a reasonable prosect of conviction
Statement of Prosecution Policy and Guidelines 2022 - DECISION TO PROSECUTE
- For the purpose of this Statement, a prosecution begins when a person is charged with an offence.
- The decision to prosecute is at least as important as the decision to charge, but takes into account factors beyond those which influence an investigator. Those factors are set out in this Statement.
- The fundamental objectives of a criminal prosecution are:
(a) to bring to justice those who commit offences;
(b) to punish those who deserve punishment for their offences;
(c) to protect the community; and
(d) to facilitate the provision of expeditious compensation and restitution to victims of crime. - In pursuit of these objectives it is necessary to consider:
(a) the rights of the accused;
(b) the rights and interests of victims; and
(c) the public interest. - Prosecutorial discretion will be exercised so as to recognise the central role of the courts in the criminal justice system in determining guilt and imposing appropriate sanctions for criminal conduct.
PRIMA FACIE CASE
- Statement of Prosecution Policy and Guidelines 2022
21. A prima facie case is established if the available material appears on its face or initial assessment to prove the offence which has been charged. Whether there is a prima facie case is a threshold test which governs the decision to charge. In the absence of a prima facie case, a person should not be charged.
22. As early as practicable in the prosecution process, attention should be given to whether the evidence establishes a prima facie case.
23. Where the available material does not establish a prima facie case, the prosecution should be discontinued.
THE PUBLIC INTEREST
- Statement of Prosecution Policy and Guidelines 2022
24. If a prima facie case exists, a prosecution should only proceed when it is in the public interest.
REASONABLE PROSPECT OF CONVICTION
Statement of Prosecution Policy and Guidelines 2022
29. The evaluation of the prospects of conviction includes consideration of:
a. the admissibility of the evidence available to the prosecution, including:
i. the voluntariness of any alleged admissions and whether there are grounds for reaching the view that an admission will not meet the various criteria for admissibility;
ii. the likelihood of the exclusion from the trial of an admission or other important evidence in the exercise of a judicial discretion. In the case of an alleged admission, regard should be given to whether an admission may be unreliable having regard to the cognitive functioning of the accused, or linguistic or cultural factors;
b. the competence, reliability, credibility, availability and compellability of witnesses; and
c. matters known to the prosecution which may significantly lessen the likelihood of acceptance of the prosecution case, such as:
i. the existence of a significant conflict in the evidence;
ii. where identity is in issue, the cogency and reliability of the identification evidence;
iii. any lines of defence which have been indicated by, or are reasonably open to the accused;
iv. reasonable inferences consistent with innocence; and
v. the onus and standard of proof.
OTHER FACTORS RELEVANT TO DECISION TO PROSECUTE IN PUBLIC INTEREST
Statement of Prosecution Policy and Guidelines 2022, 32.
› Maintaining rule of law;
› Maintaining public confidence in basic constitutional institutons;
› Objectives of sentencing (deterrence, retribution etc.)
› Circumstances of alleged offence
› Age, health or vulnerability of the alleged offence
› Lapse of time
› Attitude of victim…etc.
IRRELEVANT FACTORS TO DECISION TO PROSECUTE IN PUBLIC INTEREST
Statement of Prosecution Policy and Guidelines 2022, 33.
› Their own feelings.
› Political consequences
› Ethnicity, gender, religion etc.
› Possible effects of decision on personal or professional circumstances of those involved.
CHARGE NEGOTIATIONS
- also have to exercise discretion in charge negotiation.
- Statement of Prosecution Policy and Guidelines 2022
63. A plea of guilty is a factor to be taken into account in mitigation of sentence. There are obvious benefits to the criminal justice system resulting from a plea of guilty. The earlier a plea of guilty is entered, the greater will be the benefits.
64. Charge negotiations between the parties are encouraged and may occur at any stage of the proceedings. They can be initiated by either party. They must be based on the evidence and the public interest. A written record of the charge negotiation must be kept.
65. Where the appropriate authorisation has been obtained, the prosecution may agree to discontinue a charge or charges upon the accused pleading guilty to another or others. The prosecution may also agree to amend the factual basis of a charge or charges upon a plea of guilty.
PROSECUTORS DUTIES GENERALLY
- 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. (r83 / R29.1)
WHAT ARE PROSECUTOR DUTIES GOVERNED BY
› Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers Rules) and
Rules 83-95.
› Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Solicitors Rules)
Rule 29 and the sub rules
DUTIES REFLECTING ETHICAL CONSIDERATIONS
- Reflecting the status of the State / the imbalance of power / protecting against unfairness to the accused
- Balance the role of the advocate in an adversarial system with the special status of a prosecutor representing the State, as a minister of the crown – or representing the people or the community as a whole
THE ETHICAL DUTIES
- 84/29.2 A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.
- 85/29.3 A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
- 86/29.4 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.
- 87/29.5 A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection 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 other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.
- 88/29.6 A prosecutor who has decided not to disclose material to the opponent under rule 87 must consider whether:
› the charge against the accused to which the material is relevant should be withdrawn, and
› the accused should be faced only with a lesser charge to which such material would not be so relevant.
