3. Duty to court

Question 1

What are the outcomes associated with the duty to the court?

Answer 1

oC1
The court is able to rely on information provided to it by those conducting litigation
and by advocates who appear before it.
oC2
The proper administration of justice is served.
oC3
The interests of clients are protected to the extent compatible with outcomes oC1
and oC2 and the Core Duties.
oC4
Both those who appear before the court and clients understand clearly the extent of
the duties owed to the court by advocates and those conducting litigation and the
circumstances in which duties owed to clients will be overridden by the duty owed to
the court.
oC5
The public has confidence in the administration of justice and in those who serve it.

Question 2

What specific obligations are there in relation to CD1?

Answer 2

1. Must not knowingly or recklesly mislead or attempt to mislead the court
2. Must not abuse your role as an advocate
3. Must take reasonable steps to avoid wasting the court’s time
4. Must take reasonable steps to ensure the court has all relevant decisions and legislative provisions, including any adverse ones
5. Must ensure ability to act independently is not compromised

Question 3

Is your duty to the court subject to CD2?

Answer 3

No: CD1 is subject to CD2.

Question 4

Does CD1 require you to breach your confidentiality duty (CD6)?

Answer 4

No.

Question 5

What does the duty to not mislead the court involve?

Answer 5

1. must not:

• make submissions representations or any other statement OR
• Ask questions which suggest facts to a witness

which you know, or are instructed, are untrue or misleading

2. must not call witnesses or put affadavits/witness statements which you know or are instructed are untrue or misleading except where this position is made clear to the court
3. Must correct the position if you later realise you have mislead
4. Not be complicit in another person misleading

Question 6

What does ‘recklessly’ mean in relation to misleading the court?

Answer 6

Being indiffernt to the truth or not caring whether something is true or false

Question 7

For what duration does the duty to the court apply?

Answer 7

For the duration of the case

Question 8

Does the fact that you do not believe your client bear upon whether you are misleading it recklessly or knowingly?

Answer 8

No, you are entitled to not believe them but still make the case.

Question 9

Where a client tells you that they are guilty but enters not guilty, are you still able to represent them?

Answer 9

Yes, but you will be hamstrung in what you say.

For example, you will only be able to say that the prosecution has not made you sure.

You are not able to put forward a positive case inconsistent with the confession.

Question 10

What should you do if a client tells you something confidentially and, if it is not revealed to the court, there is a risk the court will be mislead?

Answer 10

Should ask for permission to disclose it.

If client refuses to disclose, must cease instructions.

Should not reveal the instructions to the court.

Question 11

If the client has previous convictions which have not been disclosed, can you still represent them at a sentencing hearing?

Answer 11

Yes, provided that:

-It will not impact upon a mandatory sentence

-You do not refer to any ‘previous good character’

-Must withdraw if the court insists upon an answer to any questions about the convictions and the client refuses disclosure

Question 12

Can you still act where a client has refused to disclose a document but should have?

Answer 12

No. You must withdraw.

Must not reveal existence or contents of the document.

Question 13

What does your duty not to abuse your role entail?

Answer 13

.1Not asking questions merely to insult, humiliate or annoy a witness;

.2 you must not make a serious allegation against a witness whom you have had an
opportunity to cross-examine unless you have given that witness a chance to answer
the allegation in cross-examination;

.3 you must not make a serious allegation against any person, or suggest that a
person is guilty of a crime with which your client is charged unless:
.a you have reasonable grounds for the allegation; and

.b the allegation is relevant to your client’s case or the credibility of a witness; and

.c where the allegation relates to a third party, you avoid naming them in
open court unless this is reasonably necessary.

.4 you must not put forward to the court a personal opinion of the facts or the law
unless you are invited or required to do so by the court or by law.