WK 8: Ethics in Crim Law and Negotiations

Question 1

What are the duties of the prosecutor?

Answer 1

Fairness and impartiality (to the court), detachment, not inflame bias against accused, avoid unduly emotive language, duty of disclosure, the truth be known (the right person be convicted - not merely to convict at all costs) and calling of witnesses.

Question 2

Which case explores the duty to avoid unduly emotive language?

Answer 2

McCalla v The Queen

Question 3

What is the attitude that a prosecutor should have?

Answer 3

Seeking to do justice (not driven by personal interests or rivalry)

Question 4

How should prosecutors execute their duty to call witnesses?

Answer 4

They must present all available and credible evidence, even if it is inconsistent with their case.

Question 5

When are witnesses unnecessary to call?

Answer 5

If consented by the defence or if a submission covers it.

Question 6

Can you not call witnesses that you believe to be unreliable?

Answer 6

Hell no - R v Kneebone (1999)

Question 7

Who is the sole participant in the judicial system that determines the criminal charge against the accused?

Answer 7

The prosecutor - Barbaro v the Queen; Zirilli v the Queen (2014)

Question 8

Can a lawyer be held in misconduct by too passionately defending their client?

Answer 8

Yes - Legal Profession Complaints Committee v In de Braekt

Question 9

If a client initially pleads NG but then confesses guilt, what must a barrister do?

Answer 9

• Barrister can return the brief.

- If not enough time before the hearing, the barrister has to pursue the proceedings.

Question 10

Can a person plead guilty even if they are NG?

Answer 10

Meisner v R (1995) - a person charged with an offence can plead G or NG.

Question 11

What is the prosecutor’s duty of disclosure all about?

Answer 11

The accused is entitled to know everything about them.

Question 12

What is the responsibility of a solicitor when it comes to possible alternatives to court proceedings?

Answer 12

R 7.2 - solicitor must inform the client or the instructing solicitor about the alternatives to fully contended adjudication of the case which are reasonably available to the client.

Question 13

Are there any exceptions to when a solicitor does not have to inform a client about reasonable alternatives to adjudication?

Answer 13

If the solicitor believes on reasonable grounds that the client already has such an understanding…to permit the client to make decisions about the client’s best interests.

Question 14

What are the two main models of negotiation?

Answer 14

Adversarial and principled negotiation (Harvard Model)

Question 15

Which model is rights-based and which is interest based?

Answer 15

Former is adversarial and latter is principled negotiation

Question 16

What is the 4 step process of the adversarial approach?

Answer 16

1. Set target point (the goal to achieve).
2. Set resistance point (point where parties will not go below)
3. Ritual of offer and demand.
4. Compromise at midpoint

Question 17

What is the 4 step process of the principled approach?

Answer 17

1. Separate the people from the problem.
2. Focus on interests rather than position.
3. Generate a variety of options before settling on an agreement.
4. Base agreement on objective criteria.

Question 18

What exactly are positions in the context of an adversarial approach?

Answer 18

Assertions, demands, offers, what you have decided you want.

Question 19

What are interests in the context of a principled negotiation?

Answer 19

Needs, desires and fears.

The reasons behind positions - the why?