Prosecutor duties Flashcards
(14 cards)
What is the difference between the role of counsel appearing on behalf of the Crown (prosecutor) and counsel appearing for “private clients”?
‘private’ counsel, criminal defence or in civil litigation, has a duty to promote and protect clients fearlessly by all proper and lawful means (r 37)…to do everything to fight for a verdict!
However the role of counsel appearing for the Crown is not to fight for a conviction by all means but rather to fairly assist the court in arriving at the truth by (1) impartially placing the evidence before the court intelligibly and (2) by making submissions of law to enable the law properly to be applied to the facts…(r 82)
Whitehorn v the Queen - The court and community are entitled to expect that prosecuting counsel, as a minister of justice, will act fairness and detachment, and always with the objectives of establishing the truth…and helping to ensure the accused trial is a fair one…see (r 83) must not press for conviction beyond full and firm presentation of case and (r 84) must not seek to inflame the bias of the court against the accused.
What is the difference between the disclosure obligations of counsel appearing for the Crown (pros) and counsel appearing for “private clients”?
Consistent with the objective of a prosecuting counsel to assist the court in arriving at the truth, and ensuring a fair trial…the prosecuting counsel must r 86-87 disclose all inculpatory and exculpatory evidence subject to legislative provisions, and r 89 where may be unlawfully obtained inform opponent.
Cf to private counsel….who is under a duty of confidentiality r 108 to not disclose material which is potentially adverse to their client’s innocence i..e confessions…however this can not be ignored entirely as per rules 78-79 etc.
A prosecution must call as apart of it’s case all witnesses whose:-
hint 1 rule (2 sub sections with 4 ss)
R 88(a) testimony is admissible and necessary for the presentation of the case OR
(b) admissible and relevant to any matter in issues UNLESS
(i) opponent consents to the prosecutor not calling the witness
(ii) only matter the witness could give evidence about has been dealt with by an admission
(iii) only matter the witness could give evidence about on a particular point is already established by another witness
(iv) prosecutor believes on reasonable grounds the testimony of particular witness is plainly untruthful or unreliable…
if any of the above ii, iii, iv, is relied upon must inform opponent and provide grounds…
Can a prosecutor confer with an accused without their lawyer present?
r 90 - No
Rule 93 sets out 5 things a prosecutor must do at sentence…what are they?
Hint 1 rule 3 must and 2 may
r 93(a) must correct any error made by opponent in an address on sentence
(b) must inform the court of any relevant authority or legislation bearing upon the sentence
(c) must assist the court to avoid appealable error on the issue of sentence
(d) may submit on a custodial or non-custodial sentence
(e) may inform the court of an appropriate range of severity of penalty, including
a period of imprisonment, by reference to relevant decisions.
Where a prosecutor believes on reasonable grounds evidence relied upon may be unlawfully obtained what must the prosecutor do?
r 89…inform the opponent intends on using the material and make available to the opponent a copy of the material if it is in documentary form
What rule sets out the role of the prosecuting counsel?
r 82 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.
What is the rationale of the prosecutors duty of fairness and detachment?
The rationale for the prosecutors duty of fairness and detachment is:-
(1) There is, in theory, no conflict between the prosecutors duty the court and the client, the state. The administration of justice serves both; and
(2) The prosecutors status as the state may give their words a stamp of integrity and fairness.
What is the risk of prosecutors commenting to the media about trials they are or have prosecuted?
A prosecutor’s duty of fairness and detachment/impartiality impacts on the attitude the law expects a prosecutor to display.
The danger of making prosecutors making public comments is that it risks endangering the prosecutor’s appearance of objectivity or impartiality…thereby not showing detachment.
This may compromise their ability to fairly prosecute in behalf of the crown.
A prosecutor has no interest in the outcome of the matter other than to ensure that justice is done.
This may lead to the court, in it’s inherent jurisdiction, disqualifying the prosecutor from the case because a fair minded person might reasonably conclude that the conduct of a prosecution would be directed to vindicating their publicly expressed view.
What is the attitude expected of a prosecutor?
What is the attitude expected of a prosecutor?
Prosecutors have duty of fairness and detachment/ impartiality (Whitehorn v R).
This duty impacts on the attitude the law expects a prosecutor to display.
The attitude should be consistent with the duty to assist the court in attaining the purpose of a criminal proceeding, to ensure that justice is done between the defendant and the state.
Prosecutors must perform their function without regard for whether the case is won or lost.
This is reflected in prosecutors duties such as: r 83 prosecutor must not press for a conviction beyond a full and firm presentation of the case, r 84 must not seek or inflame bias the court against the accused, and must not use legally available tactics to secure a conviction.
Why should prosecutors eschew public comments to the media about a trial he is prosecuting or have prosecuted?
R v Whitehorn – Prosecutors represent the state. The community, defendant, and court are entitled to expect that a prosecutor in performing function in present the case against he accused acts with fairness and detachment…
R v Livermore – The Duty of fairness and detachment impacts the attitude of a prosecutor…prosecutors are ministers of justice and must adopt an attitude consistent with that…ensuring that justice is done between the state and the accused…the role of the prosecutor must be performed without any concern for whether the case is won or lost.
Prosecutors should eschew from making public comments about current or previous proceedings to avoid the risk demonstrating a lack of objectivity of impartiality…this can compromise a prosecutors capacity to fairly prosecute on behalf of the crown…this may lead to the court restraining the prosecutor from acting as ‘…a fair minded person may reasonably conclude the prosecutors conduct of the prosecution would be directed at ensuring their personal view as opposed to ensuring that justice is fairly administered’ (see R v MG)
What are the circumstances where it is appropriate for a prosecutor to make public comments?
(Hint 3 - R v MG)
A prosecutor is entitled on appropriate occasion to draw attention to:-
(1) the ordeal of victims of crime
(2) suggest legislative reform to address problems
(3) to discuss the relative merits of the system of justice
R v MG
Provide a brief summary of main parts of:-
R v Whitehorn
R v Livermore
R v MG
R v Whitehorn – A prosecutor represents the state. The community, courts, and defendant are entitled to except that whilst discharging duties in the presenting the case of the accused will act with fairness and detachment….and always with the objective of establishing the whole truth according to law and helping to ensure the accused trial is fair.
R v Livermore – the duty of fairness and detachment impacts the attitude of the prosecutor…the attitude should be one which ensures that justice is done between the state and the accused…the role of prosecutor must be performed without regard to whether the case is won or lost…focused on ensure a fair trial for the accused
R v MG – where a prosecutors public comments demonstrate a lack of detachment from the case…this will compromise their ability to prosecutor fairly on behalf of the crown with the consequence that the prosecutor may be restrain by the court for acting as a ‘…fair minded person might reasonably conclude that the conduct of the prosecution would be directed to vindicating her publicly expressed view’ rather than ensuring a fair contest between the state and the accused. Such comments can diminish public confidence in the administration of justice.
