Chapter 9 Duties of Counsel in Criminal Trials

Chapter 9 Duties of Counsel in Criminal Trials General Duties 138 The Prosecutor s Duties 138 Disclosure 138 Impartiality 139 Not to overstate the evidence 139 Dealing with witnesses 140 Dealing with the accused 142 Sentencing 142 Counsel assisting 143 Defence Counsel s Duties 143 Guilt of the accused 144 Advice as to a plea 145 Advice as to the rights of an accused 145 AEributing an offence to another 146 Prior convictions 146 Bail 147 Returning a brief in a criminal maeer 147 137

138 GOOD CONDUCT GUIDE General Duties 9.1 The proper conduct of a criminal trial depends on the efficient working partnership between the Bar and bench which is the product of counsel discharging his or her duty to the court, as highlighted by the following statement of Carruthers AJ: 1 All this could have been avoided if counsel at trial had drawn his Honour s afention to the fact that he had overlooked the necessity for a Longman direction It is now more than ever imperative that trial counsel recognise and discharge the responsibility which they owe to the trial judge to provide whatever assistance he or she may require in order, so far as possible, to ensure that the directions to the jury are such that it can be said the accused has had a trial according to law. For years this court has emphasized in the strongest possible terms the need for trial counsel to take objections to the summing up or the admissibility of the evidence at the trial itself so that, if they are of substance, the judge may correct then and thus avoid appeals to this court and possible second and sometimes third trials. This observation applies with equal force, of course, to the requirement of counsel to draw the judge s afention to the need (if it has been overlooked) to give an appropriate warning of the kind under consideration here. The Prosecutor s Duties Disclosure 9.2 The prosecutor has a duty of disclosure to the court and not to the accused or the public generally. 2 It is the obligation of the court to ensure that the accused receives a fair trial. In order to secure this end, practices have developed over the years which are designed to give an accused adequate notice of the particulars of the offence with which the accused is charged. 9.3 The practices include: (a) a requirement that notice be given by the Crown of additional witnesses proposed to be called beyond those listed on the presentment; 1. R v Roberts (2001) 53 NSWLR 138. 2. Cannon & Rochford v Tahche & Ors [2002] 5 VR 317.

DUTIES OF COUNSEL IN CRIMINAL TRIALS 139 (b) providing to the accused names of material witnesses (and perhaps their statements) whom it is not proposed to call; (c) the provision of medical reports by prison doctors about the state of mind of accused persons in custody; (d) providing particulars of relevant prior convictions of witnesses whom the Crown intends to call; and (e) making sure that the defence is informed of previous convictions of the accused, so that a view can be formed as to the availability of pufing the character of the accused in issue. 3 9.4 In discharging the prosecutor s duty of disclosure, the prosecutor must exercise a discretion, according to the circumstances as the prosecutor perceives them to be. 4 In R v Garofalo, 5 Ormiston JA held that there is, in general terms, a common law duty to make disclosure of previous convictions of prosecution witnesses, though the precise manner in which this duty should be worked out and applied may depend upon the court in which the prosecution has been brought, the means of obtaining that information and possibly other circumstances relevant to the individual case. Impartiality 9.5 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. 6 9.6 A prosecutor must not press the prosecution s case for a conviction beyond a full and firm presentation of that case. 7 9.7 A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused. 8 Not to overstate the evidence 9.8 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. 9 3. Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347 ff. per Lord Devlin. 4. Cannon & Rochford v Tahche & Ors [2002] 5 VR 317. 5. R v Garofalo [1999] 2 VR 625. 6. Rule 134. 7. Rule 135. 8. Rule 136. 9. Rule 137.

140 GOOD CONDUCT GUIDE 9.9 A prosecutor has a duty to consider whether the evidence proposed to be called is capable as a mafer of law of supporting a conviction. If the evidence on any view is incapable of supporting a conviction, the prosecutor is under a duty to so advise the prosecuting authority. If it is not possible to come to an agreed view on the mafer, the barrister may return the brief. If circumstances arise during the conduct of a prosecution which cause the prosecutor to conclude that the mafer should not proceed further, the prosecutor is under a duty to seek instructions but, if it is not possible to obtain instructions, the prosecutor is under a duty to make such a view known to the court. 10 9.10 A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully or improperly obtained must promptly: (a) inform the opponent if the prosecutor intends to use the material; (b) make available to the opponent a copy of the material if it is in documentary form; and (c) inform the opponent of the grounds for believing that such material was unlawfully or improperly obtained. 11 9.11 A prosecutor must not inform the court or the opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that such evidence will be available from material already available to the prosecutor. 12 9.12 A prosecutor who has informed the court or the opponent that the prosecutor has evidence supporting an aspect of its case, and who has later learnt that such 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. 13 Dealing with witnesses 9.13 A prosecutor must call as part of the prosecution s case all witnesses: 10. Rule 138. 11. Rule 143. 12. Rule 145. 13. Rule 146. (a) whose testimony is admissible and necessary for the presentation of the whole picture; or (b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any mafer in issue;

DUTIES OF COUNSEL IN CRIMINAL TRIALS 141 unless: (i) the opponent consents to the prosecutor not calling a particular witness; (ii) the only mafer with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused; or (iii) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness to establish a particular point already adequately established by another witness/es; provided that: (a) the prosecutor is not obliged to call evidence from a particular witness, who would otherwise fall within (a) and (b), if the prosecutor believes on reasonable grounds that the testimony of that witness is plainly unreliable by reason of the witness being in the camp of the accused or from any other identifiable circumstances; (b) 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 (i) (iii), together with the grounds upon which the prosecutor has reached that decision. 14 9.14 While the prosecuting barrister alone bears the responsibility of deciding whether a person will be called as a witness for the prosecution, this discretion should not be exercised in order to obtain unfair advantage for the prosecution. 15 9.15 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, unless: (a) 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 or is clearly contrary to the public interest; and (b) the prosecutor believes on reasonable grounds that such a threat could not be avoided by confining such disclosure, or full 14. Rule 139. 15. Rule 140.

142 GOOD CONDUCT GUIDE disclosure, to the opponent being a legal practitioner, on appropriate conditions which may include an undertaking by the opponent not to disclose certain material to the opponent s client or any other person; provided that any doubt as to whether the balance is in favour of, or against, disclosure should always be resolved in favour of disclosure. 16 9.16 A prosecutor who has decided not to disclose material to the opponent under the rule in the previous paragraph must consider whether: (a) the defence of the accused could suffer by reason of such nondisclosure; (b) the charge against the accused to which such material is relevant should be withdrawn; and (c) the accused should be faced only with a lesser charge to which such material would not be so relevant. 17 Dealing with the accused 9.17 A prosecutor must not confer with or interview any of the accused except in the presence of the accused s representative. 18 Sentencing 9.18 A prosecutor must not seek to persuade the court to impose a vindictive sentence or a sentence of a particular magnitude, but: 16. Rule 141. 17. Rule 142. 18. Rule 144. 19. Rule 147. (a) must make an adequate presentation of the facts; (b) must correct any error made by the opponent in address on sentence and fairly test any defence evidence; (c) must inform the court of any relevant authority or legislation bearing on the appropriate sentence; (d) must assist the court to avoid appealable error on the issue of sentence; (e) may submit that a custodial or non custodial sentence is appropriate; and (f) may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant appellate authority. 19

DUTIES OF COUNSEL IN CRIMINAL TRIALS 143 Counsel assisting 9.19 A barrister who appears as counsel assisting an inquisitorial body such as the National Crime Authority, the Australian Securities Commission, a Royal Commission or other statutory tribunal or body having investigative powers must act in accordance with the Rules as if the body were a court referred to in those Rules and any person whose conduct is in question before the body were the accused. 20 Defence Counsel s Duties 9.20 A barrister representing a person charged with a criminal offence should endeavour to protect that person from being convicted, except by a competent tribunal and upon admissible evidence sufficient to support a conviction for the offence charged. A barrister must not invent facts to assist the defence case. 21 9.21 Where the accused is a person who suffers from some mental or physical disability or who appears to be disadvantaged from lack of education, lack of familiarity with the English language, lack of ability to communicate, or otherwise, a barrister appearing for the accused should take special care to ensure that those factors do not work to the prejudice of the accused. 22 9.22 Notwithstanding a barrister s duty to the court to conduct proceedings as expeditiously as the interests of justice require, a barrister appearing for the accused is under no duty, other than by compulsion of law, to disclose to the court or to the prosecution the nature of the defence case. A barrister appearing for the accused should not make admissions of fact or consent to the absence of prosecution witnesses without first obtaining instructions. 23 However, a barrister must guard against using unwarranted tactics in defence of their client to the extent that administration of justice is jeopardised. 24 9.23 In R v Wilson and Grimwade 25 the Supreme Court of Victoria, Appeal Division, set out the responsibilities of counsel in the following terms: 20. Rule 148. 21. Rule 149. 22. Rule 152. 23. Rule 153. 24. R v Sorby [1986] VR 753. 25. R v Wilson and Grimwade [1995] 1 VR 163.

144 GOOD CONDUCT GUIDE... that part of the responsibilities of all counsel in any trial, criminal or civil, is to co operate with the court and each other so far as is necessary to ensure that the system of justice is not betrayed: if the present adversary system of litigation is to survive, it demands no less. The system, and the community it is designed to serve, cannot easily support the prodigal conduct which was responsible for exacting 22 months devotion to this re trial, a disproportionate part of which was due to the conduct of counsel for Wilson. This is not to deny that counsel are entitled and obliged to deploy such skill and discretion as the proper preparation of their clients interests demands. Whether the cost of legal representation be privately or publicly borne, counsel are to understand that they are exercising a privilege as well as fulfilling a duty in appearing in a court of law; and neither privilege nor duty will survive the system of justice of which the court is part. 9.24 A court of appeal will generally afach great significance to the deliberate decisions made by a barrister as to the conduct of the trial. 26 Although the courts have been prepared to interfere to protect an accused man from his own counsel 27, and from the result of bad management or misconduct of his case at the trial 28 to remedy a miscarriage of justice, the courts will generally be reluctant to interfere with the course of conduct taken by the barrister. 29 Guilt of the accused 9.25 Subject to these Rules, a barrister representing a person charged with a criminal offence is under a duty to defend the person irrespective of any belief or opinion which the barrister may have formed as to whether that person is guilty or not guilty. 30 9.26 A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty: (a) should continue to act and do all that the barrister honourably can in the client s defence; (b) must not falsely suggest that some other person commifed the offence charged; (c) must not set up an affirmative case inconsistent with the confession; 26. R v McCall (1920) 20 SR (NSW) 467. 27. R v Young and Robinson [1978] Crim LR 163. 28. R v Perry & Harvey (1909) 2 Cr App Rep 89. 29. R v Knowles [1984] VR 751 at 767 30. Rule 150.

DUTIES OF COUNSEL IN CRIMINAL TRIALS 145 (d) must ensure that the prosecution is put to proof of its case; (e) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged; (f) may argue that for some reason of law the client is not guilty of the offence charged; (g) may argue that for any other reason not prohibited by (b) or (c) the client should not be convicted of the offence charged; and (h) must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client s innocence. 31 9.27 Where a client denies commifing an offence charged, but nonetheless insists on pleading guilty to it for other reasons, the barrister may continue to represent that client, but only aker advising what the consequences will be, and that submissions in mitigation will have to be on the basis that the client is guilty. Wherever possible in such a case, a barrister should receive wrifen instructions. 32 Advice as to a plea 9.28 It is the duty of a barrister representing a person charged with a criminal offence to advise that person generally about any plea to the charge. It should be made clear that whether the client pleads not guilty or guilty, the client has the responsibility for and complete freedom of choice in any plea entered. For the purpose of giving proper advice, the barrister is entitled to refer to all aspects of the case and where appropriate may advise a client in strong terms that the client is unlikely to escape conviction, and that a plea of guilty is generally regarded by the court as a mitigating factor, at least to the extent that the client is thereby viewed by the court as co operating in the criminal justice process. 33 Advice as to the rights of an accused 9.29 A barrister appearing for the accused is under a duty to advise that person of their rights, for example, the right to challenge jurors, the right to give evidence and the right to call evidence. A barrister may properly advise a client as to the exercise of these rights but it is the client who must make the decision. If a barrister receives instructions from a client that the client is not guilty of the offence charged but 31. Rule 161. 32. Rule 155. 33. Rule 151.

146 GOOD CONDUCT GUIDE does not wish to give evidence, it is the duty of the barrister to put the client s defence before the court and, if necessary, to make positive suggestions to witnesses. 34 AEributing an offence to another 9.30 Some barristers may be familiar with the American television show, The Practice. The defence aforneys in that show, when faced with a client who they believed to have commifed the offence and in circumstances where the evidence was against the client, were infamous for spectacularly pointing the finger at another person, in order to create reasonable doubt. 9.31 Like many Americanisms, Australian reality does not correlate. A barrister should not afribute to another the offence with which the client is charged, unless the facts or circumstances disclosed by the evidence in the case, or which form part of the barrister s instructions, or rational inferences to be drawn from them, raise at least a reasonable suspicion that the offence may have been commifed by such other person. 35 Prior convictions 9.32 A barrister who knows or suspects that the prosecution is unaware of the client s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer. 36 9.33 A barrister will not have made a misleading statement to a court simply by failing to disclose facts known to the barrister concerning the client s character or past, when the barrister makes other statements concerning those mafers to the court, and those statements are not themselves misleading. 37 9.34 Where on sentence a barrister is aware of a client s previous convictions which have not been made known to the court by the prosecution, a barrister is under no duty to correct the omission of the prosecution. However, the barrister remains under a duty not to mislead the court and therefore should not make any submission capable 34. Rule 154. 35. Rule 156. 36. Rule 157. 37. Rule 158.

DUTIES OF COUNSEL IN CRIMINAL TRIALS 147 Bail of being regarded as an assertion that the client has no previous convictions. 38 9.35 A barrister must not promote, or be a party to, any arrangement whereby the bail provided by a surety is obtained by using the money of the accused person, or by which the surety is given an indemnity by the accused person or a third party acting on behalf of the accused person. 39 Returning a brief in a criminal maeer 9.36 Where a barrister has accepted a brief to defend a person charged with a serious criminal offence, the barrister shall not return the brief except in the most compelling circumstances and then only if sufficient time remains for another barrister to master the case, provided that the barrister may in any case return the brief with the consent of the client given with full knowledge of all the circumstances concerning the return of the brief, including the above Rule. 40 9.37 In a clash between two criminal mafers which are due to be heard on the same day: (a) a barrister should ordinarily give preference to the brief fraught with the more serious consequences to the client, for example, a brief where the charge is murder as against a brief where the charge is stealing, or a brief where a conviction will almost certainly lead to a term of imprisonment as against a brief in which a conviction will most likely lead to a fine; (b) generally speaking a brief on a trial which will lead to a verdict should take priority over a brief on a commifal, although this may yield to particular circumstances as in (c); and (c) the brief in which insufficient time appears to be available for another barrister to master it may be given preference to a brief in a more serious mafer in respect of which that consideration does not arise. 41 9.38 If a barrister is instructed in a civil case which clashes in point of time with a case in which the same barrister is briefed to appear for the 38. Rule 159. 39. Rule 160. 40. Rule 162. 41. Rule 163.

148 GOOD CONDUCT GUIDE accused in the trial of a serious criminal offence, the barrister is obliged to return the brief in the civil case unless permission is given by the client under Rule 162 or by the Bar Council. 42 42. Rule 164.