PROSECUTORIAL DUTIES

Question 1

sources of roles of prosecutor

Answer 1

• 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

Question 2

who is considered a prosecutor?

Answer 2

• 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

Question 3

broad description of a prosecutor

Answer 3

• 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

Question 4

BEING A MINISTER OF JUSTICE

Answer 4

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)

Question 5

WHAT DOES A PROSECUTOR DO

Answer 5

› 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

Question 6

ROLE OF THE PROSECUTOR

Answer 6

• 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).

Question 7

Is the role of a prosecutor incompatible with the role of the advocate?

Answer 7

• ‘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

Question 8

HOW SHOULD A PROSECTOR ADVOCATE

Answer 8

• 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

Question 9

KPI’s of a Prosecutor

Answer 9

• 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).

Question 10

the duty to be fair?

Answer 10

• 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.

Question 11

duty of fairness in the court room and the office

Answer 11

• 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.

Question 12

Exercise of Prosecutorial discretion v investigative discretion

Answer 12

› 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.

Question 13

TWO ELEMENTS OF DECIDING TO PROSECUTE

Answer 13

› 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

Question 14

Statement of Prosecution Policy and Guidelines 2022 - DECISION TO PROSECUTE

Answer 14

16. For the purpose of this Statement, a prosecution begins when a person is charged with an offence.
17. 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.
18. 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.
19. 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.
20. 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.

Question 15

PRIMA FACIE CASE

Answer 15

• 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.

Question 16

THE PUBLIC INTEREST

Answer 16

• 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.

Question 17

REASONABLE PROSPECT OF CONVICTION

Answer 17

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.

Question 18

OTHER FACTORS RELEVANT TO DECISION TO PROSECUTE IN PUBLIC INTEREST

Answer 18

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.

Question 19

IRRELEVANT FACTORS TO DECISION TO PROSECUTE IN PUBLIC INTEREST

Answer 19

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.

Question 20

CHARGE NEGOTIATIONS

Answer 20

• 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.

Question 21

PROSECUTORS DUTIES GENERALLY

Answer 21

• 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)

Question 22

WHAT ARE PROSECUTOR DUTIES GOVERNED BY

Answer 22

› 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

Question 23

DUTIES REFLECTING ETHICAL CONSIDERATIONS

Answer 23

• 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

Question 24

THE ETHICAL DUTIES

Answer 24

• 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.

Question 25

DUTIES WITH REGARD TO EVIDENCE AND WITNESSES GENERALLY

Answer 25

› Who decides what evidence to call?
 In Richardson (1974 131 CLR 116, 119:
* ‘…it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it if for him to decide what evidence, in particular, what oral testimony, will be adduced’

Question 26

THE DUTIES TO EVIDENCE AND WITNESSES

Answer 26

• 89/29.7 A prosecutor must call as part of the prosecution’s case all witnesses:
  (a) whose testimony is admissible and necessary for the presentation of all of the relevant circumstances, or
  (b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue, unless:
  i. the opponent consents to the prosecutor not calling a particular witness,
  ii. 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,
  iii. the only matter with respect to which the particular witness can give admissible evidence goes to establishing a particular point already adequately established by another witness or other witnesses,
  iv. the prosecutor believes on reasonable grounds that the testimony of a particular witness is plainly untruthful or is plainly unreliable, or
  v. the prosecutor, having the responsibility of ensuring that the prosecution case is presented properly and presented with fairness to the accused, believes on reasonable grounds that the interests of justice would be harmed if the witness was called as part of the prosecution case.
• Provided that 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 rule 89 (ii), (iii), (iv) or (v), together with the grounds on which the prosecutor has reached that decision, unless the interests of justice would be harmed if those grounds were revealed to the opponent.

Question 27

DUTIES OF EVIDENCE UNDER PROSECUTION GUIDELINES

Answer 27

› 106. The following general propositions which relate to a prosecutor’s duty as to calling of witnesses are taken from R v Apostilides (1984) 154 CLR 563 and cases cited therein and are still applicable to the conduct of criminal trials in Western Australia –
(a) The prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the State.
(b) In making the decision as to which witnesses will be called, the prosecutor may be required to take into account many factors, for example whether the evidence of a particular witness is essential to the unfolding of the State case, whether the evidence is truthful and reliable and whether it is in the interests of justice that the evidence should be subject to cross-examination by the State.
(c) What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the State case conformably with the dictates of fairness to the accused.
(d) The trial judge may, but is not obliged to, question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. The judge is not called upon to adjudicate the sufficiency of those reasons.
(e) Whilst at the close of the State case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, the judge cannot direct the prosecutor to call a particular witness.
(f) When charging the jury, the trial judge may make such comment as is then thought appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor’s reasons for the decision as the prosecutor thinks is proper to divulge.
› 107. In circumstances where the prosecution declines to call a material witness, the prosecution should make reasonable efforts to make the witness available for the accused to call as part of their case.

Question 28

UNLAWFULLY OBTAINED EVIDENCE

Answer 28

› 91/29.8 A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully obtained must promptly:
(a) inform the opponent if the prosecutor intends to use the material, and
(b) make available to the opponent a copy of the material if it is in documentary form.

Question 29

CONTACT OF THE ACCUSED

Answer 29

› 92/29.9 A prosecutor must not confer with or interview any accused except in the presence of the accused’s legal representative.

Question 30

UNREPRESENTED ACCUSED

Answer 30

› Statement of Prosecution Policy and Guidelines 2022
99. Caution must be exercised by a prosecutor when dealing with an unrepresented accused.
100. The accused should be properly informed of the prosecution case.
101. It is not a prosecutor’s function to advise an accused about legal issues, evidence, inquiries and investigations which might be made, possible defences or the conduct of the defence.
102. Communications with an unrepresented accused should, when possible, be in writing. Verbal communications should, when possible, be witnessed and always recorded in writing

Question 31

93/29.10

Answer 31

A prosecutor must not inform the court or opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that the evidence will be available from material already available to the prosecutor.

Question 32

94/29.11

Answer 32

A prosecutor who has informed the court of matters within rule 93, and who has later learnt that the 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.

Question 33

DUTIES WITH REGARD TO SENTENCING UNDER ASCR/UCBR

Answer 33

95/29.12 A prosecutor:
(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, and
(d) may submit that a custodial or non-custodial sentence is appropriate.

Question 34

Prosecution - Statement of Prosecution Policy and Guidelines 2022 - SENTENCING

Answer 34

110. The responsibility of a prosecutor at a sentencing hearing is to put before the court all known information that is relevant to determining the appropriate sentence.
111. When a plea in mitigation asserts facts which are contrary to the prosecution case, and the resolution of those facts is material to the appropriate sentence, a prosecutor should seek that those facts be determined by the court in accordance with the principles set out in LAW v The State of Western Australia [2009] WASCA 193 at [25]-[34].
112. Where an offender is unrepresented, the prosecutor should, as far as practicable, assist the court by making appropriate submissions as to known matters which should be taken into account in mitigation.
113. A prosecutor should not in any way limit the discretion of the Director to appeal against the inadequacy of a sentence, including by informing the court or the defence whether the Director would, or would be likely to appeal or whether a sentence imposed is regarded as appropriate and adequate.
114. Where the provisions of section 32A(1) of the Misuse of Drugs Act 1981 (WA) are satisfied, an application must be made by the prosecutor for the offender to be declared a drug trafficker under that section, unless authorised not to do so in writing by the Director or the Deputy Director.