Your duty to the court/competing duties Flashcards
Hierarchy of core duties
CD1 overrides any other core duty (gC1, which also introduces other rules about hierarchy). rC4 – Your duty to act in the best interests of each client is subject to your duty to the court. gC6 – obliged to promote and protect client’s interests as far as consistent with law and overriding duty to court.
rC5 – Your duty to the court does not require you to breach your duty to keep the affairs of each client confidential
rC16 – duty to act in best interests of client subject to observance of CD3 and 4 as well as CD1
Outcomes relating to you and the court
oC1-5, e.g. the court is able to rely on information provided to it and the proper administration of justice is served
Duty not to mislead the court
rC3.1, you must not knowingly or recklessly mislead or attempt to mislead the court. rC6 explains that your duty not to mislead the court is subject to the following obligations. You must not:
o Make submissions, representations or any other statement or ask questions which suggest facts to witnesses which you know, or are instructed, are untrue or misleading
o You must not call witnesses to give evidence or put affadavits or witness statements to the court which you know, or are instructed, are untrue or misleading, unless you make clear to the court the true position as known by or instructed to you
gC4 – Further clarification:
o Knowingly misleading the court includes being complicit in another person misleading the court.
o It also includes inadvertently misleading the court if you later realise you have misled the court and you fail to correct the position.
o Recklessly means being indifferent to the truth or not caring if something is true or false
o The duty continues to apply for the duration of the case
Wasting the court’s time
rC3.3, you must take reasonable steps to avoid wasting the court’s time
Decisions and legislative provisions before the court
rC3.4, you must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions. gC5 – Includes drawing to the attention of the court any decision or provision which may be adverse to the interests of your client. It’s particularly important where appearing against a litigant who is not legally represented.
Abusing your role as an advocate
rC3.2, you must not abuse your role as an advocate. This includes the following obligations, set out in rC7:
o You must not make statements or ask questions merely to insult, humiliate, or annoy a witness or any other person
o You must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given them the chance to answer the allegation in cross examination
o You must not make a serious allegation against anyone, or suggest another person is guilty of the crime for which your client is charged, unless you have reasonable grounds for the allegation, it’s relevant to your client’s case or the credibility of a witness, and where the allegation relates to a third party you avoid naming them in open court unless reasonably necessary
You don’t believe the facts as your client states them to be
gC6, this is fine as long as the positive case you put forwards accords with your instructions and you do not mislead the court. Your role is to present your client’s case, it’s not for you to decide whether their case is to be believed.
Calling a hostile witness whose evidence you are instructed is untrue
gC7, would not be in breach of rC6 if you make the true position clear to the court
Your client tells you that they committed the crime
gC9, You would not be entitled to disclose the information to the court without the client’s consent. You would not be misleading the court if after an NG plea you were to test in XX the reliability of the evidence of the prosecution witnesses and then address the jury to the effect that the prosecution had not succeeded in making them sure of your client’s guilt. gC10, would be misleading the court if you were to set up a positive case.
If there is a risk the court will be misled unless you disclose confidential information
gC11, you should ask the client for permission to disclose it. If they do not allow you to so you must cease to act and return your instructions but must not reveal the information to the court.
Client tells you that they have previous convictions of which the prosecution is not aware
gC12, you may not disclose this without their consent. In a case where mandatory sentences apply and the non-disclosure of previous will result in the court failing to pass the sentence required by law, you must advise your client that if they do not consent to you revealing the convictions you will have to cease to act. In other cases, can continue to act but must not mislead the court which restrains what you can say in mitigation, e.g. cannot put forward a positive case of previous good character and cannot give an untruthful answer to a direct question.
Documents
gC13
