PROSECUTORIAL DUTIES Flashcards

Question

DUTIES WITH REGARD TO EVIDENCE AND WITNESSES GENERALLY

Answer 1

› 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’

Answer 2

- 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.

Answer 3

› 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.

Answer 4

› 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.

Answer 5

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

Answer 6

› 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

Answer 7

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.

Answer 8

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.

Answer 9

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.

Answer 10

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.