Advocacy and litigation

1. A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgements called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.
2. A solicitor does not breach the solicitor’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s instructions, simply by choosing, contrary to those instructions, to exercise the forensic judgements called for during the case so as to:
   1. confine any hearing to those issues which the solicitor believes to be the real issues;
   2. present the client’s case as quickly and simply as may be consistent with its robust advancement; or
   3. inform the court of any persuasive authority against the client’s case.
3. A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue.
4. A solicitor must not become the surety for the client’s bail.

Commentary

17.1  No mere mouthpiece

A solicitor on the record as the client's representative takes responsibility for the matter and cannot "shelter" behind the client. They must exercise their independent forensic judgment (see Rule 17.2), and cannot 'slavishly … follow a client's instructions as to how a case is to be conducted': Queensland Law Society v Stevens [1996] 17 Qld Lawyer Reps 27, 30. Lawyers cannot allow themselves to be controlled by their clients, and to do so leaves them open to personal liability for costs: Wentworth v Rogers [1999] NSWCA 403, [46] – [47] ('Wentworth'). Where a client wishes to take over the conduct of the matter, a solicitor should withdraw from representation. A solicitor who withdraws in such circumstances can remain in the background in order to advise and assist the client: Wentworth, [46]. Staying on the record as the client's representative means retaining responsibility for the matter.

17.2 Exercising forensic judgment

A solicitor must exercise their independent 'forensic judgement' in making decisions in the course of a case, other than those which are the client's decision alone. Such client decisions may include:

1. the commencement of proceedings;
2. the joinder of parties;
3. admissions or concessions of fact;
4. amendments of pleadings;
5. undertakings to a court; and
6.  a plea in criminal proceedings, but does include advice given to assist the client or the instructing solicitor to make such decisions.⁶²

The decisions include those to limit a hearing to 'the real issues', present the client’s case efficiently, and inform the court of relevant authorities (see Rule 19.6). While Rule 17.2 offers these decisions as exceptions to the solicitor's duties to the client, at common law they are positive duties for the solicitor. For example, a solicitor must exercise forensic judgment to 'prune' the case of 'irrelevancies and side issues that seem important to the client,' but are not important to the determination of the case: Rondel v Worsley [1969] 1 AC 191. The solicitor must give 'appropriate consideration of the client's and the instructing solicitor's instructions': Rule 17.1. Hence, the solicitor should not ignore the client's desires 'without spending any appreciable time considering them'⁶³. But, in any case, a lawyer will not breach their duty by exercising independent judgment, particularly for 'any act honestly done in the conduct or management of the cause': Giannarelli v Wraith (1988) 165 CLR 543, 556-7.

17.3 Personal opinion

A solicitor must not appear to offer a personal opinion on the merits of any material evidence or issue: Rule 17.3. It is not the role of a lawyer to 'express personal opinions or enter the fray as a contestant' in court: R v Callaghan [1994] 2 Qd R 300, 306. Where a prosecutor expresses a personal opinion, there is a risk a jury will consider that opinion rather than whether the evidence proves the Crown case: GDD v The Queen [2010] NSWCCA 62, [53]. In those circumstances, an accused person could be denied a fair trial: Whitehorn v The Queen (1983) 152 CLR 657.

By limiting the Rule to 'material' evidence or issues, 'trivial' or 'merely procedural matters' may on occasion be the subject of personal opinion: see American Bar Association, Report of the Committee on Standard Advocacy Rules (February 1995), 2, quoted by Dal Pont, [17.40], fn 37.

17.4  No surety for client's bail

Lawyers must not allow themselves to become the surety for their client's bail, as doing so may risk damaging the lawyers' professional judgment, the appearance of independence, or identifying with the client’s cause.⁶⁴

62 'Forensic judgment' is not defined in the ASCR. However, the repealed Legal Profession (Solicitors) Rule 2007 (Qld) excluded this list of decisions from its definition.

63 Quoted by GE Dal Pont, fn 36, [17.140] from the Australian Bar Association's Committee on Standard Advocacy Rules (February 1995), page 2. 

64 Gino Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th ed, 2013) 547.

1. A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court.

Commentary

18.1 Terms of informal personal familiarity

Solicitors should be mindful of respecting the independence and integrity of the administration of justice and deal with the court formally, rather than using terms of personal familiarity with its representatives. Solicitors should avoid being alone with Judge or Magistrate from the commencement of the days hearing or application until the conclusion of the matter, except with the prior consent of one’s opponent. If the opponent grants consent, the solicitor should not raise matters with the court outside that which has been agreed.

A New South Wales decision warned against 'salutations by advocates' and advised that this conduct should be completely abandoned in all contentious litigation': Wilson v Department of Human Services – re Anna [2010] NSWSC 1489, [106]. In the case, the solicitor said 'Good Morning' both in announcing his appearance to the Bench and at the beginning of his cross-examination of the witness. Palmer J noted that this may have caused a 'misapprehension in the mind of' one of the self-represented litigants of the case.⁶⁵

65 A paper delivered by Judge C F Wall QC, ‘Good morning, Your Honour’ to the Central Queensland Law Association Conference (26 – 28 October 2012) http://ethics.qls.com.au

1. A solicitor must not deceive or knowingly or recklessly mislead the court.
2. A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.
3. A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.
4. A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which: 
   1. are within the solicitor's knowledge; 
   2. are not protected by legal professional privilege; and
   3. the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.
5. A solicitor who has knowledge of matters which are within Rule 19.4 must:
   1. seek instructions for the waiver of legal professional privilege, if the matters are protected by that privilege, so as to permit the solicitor to disclose those matters under Rule 19.4; and
   2. if the client does not waive the privilege as sought by the solicitor:
      1. must inform the client of the client's responsibility to authorise such disclosure and the possible consequences of not doing so; and
      2. must inform the court that the solicitor cannot assure the court that all matters which should be disclosed have been disclosed to the court.
6. A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:
   1. any binding authority;
   2. where there is no binding authority, any authority decided by an Australian appellate court; and
   3. any applicable legislation, known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client's case.
7. A solicitor need not inform the court of matters within Rule 19.6 at a time when the opponent tells the court that the opponent's whole case will be withdrawn or the opponent will consent to final judgement in favour of the client, unless the appropriate time for the solicitor to have informed the court of such matters in the ordinary course has already arrived or passed.
8. A solicitor who becomes aware of matters within Rule 19.6 after judgement or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:
   1. a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or
   2. requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.
9. A solicitor need not inform the court of any matter otherwise within Rule 19.8 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.
10. A solicitor 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.
11. A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension.
12. A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake.

Commentary

19.1 Duty not to deceive or mislead the court

A lawyer must put any argument reasonably open to the client: Tuckiar v The King (1934) 52 CLR 335, 346. However, a lawyer who deceives or knowingly or recklessly misleads the court undermines the confidence that the court and fellow lawyers can place in that lawyer's conduct: New South Wales Bar Association v Thomas (No 2) (1989) 18 NSWLR 193, 205. It is also conduct inconsistent with a lawyer's duties of candour and honesty (see Rule 4) and so will trigger the court's disciplinary jurisdiction: Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56, 58.

Truth of client's statements.  A solicitor should not lend their assistance to a client if they are satisfied that the initiation or further prosecution of a claim is in bad faith or for an ulterior purpose or if the proceedings would be, or have become an abuse of process of the court or unjustifiably oppressive. Solicitors may typically presume that their client's instructions are truthful unless it becomes known the initiation of proceedings is an abuse of process: Orchard v South Eastern Electricity Board [1987] QB 565, 572. However, the lawyers' overriding duty to the court requires that the court is not misled as to the facts. This may warrant 'a proper degree of caution, even mild scepticism, to their client's narrative of events.'⁶⁶ This mild scepticism might lead the lawyer to 'take reasonable steps to verify the client's contentions,' especially where serious allegations are made towards another person.⁶⁷ A lawyer should 'press' the client until uncertainty about instructions is removed and, in the interim, refuse to make the 'potentially misleading' submissions in court: Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839, [2] ('Kavia'). If the client persists, the lawyer may have 'just cause' to terminate the retainer: Kavia and see Rule 13. 

19.2 Correct a misleading statement

Rule 19.2 mirrors the common law obligation to correct an error, unintentional or otherwise, at the earliest available opportunity: Myers v Elman [1940] AC 282, 294. The duty was held to apply in Perpetual Trustee Company Limited v Cowley [2010] QSC 65, [17], [132]. The solicitor had stated in his affidavit that his client's mortgage payments had been made. That was a misleading statement. The court accepted the solicitor had not made it knowingly, but as soon as he realised or must have realised that the statement was misleading he was under an obligation to the court to take all necessary steps to correct it: at [132].

Where a solicitor has entered the fray and given evidence or has made oral or written submissions, the solicitor's obligation to correct a misleading statement is not subject to instructions. Having made the statement, the solicitor must correct it notwithstanding their client's objections.

19.3 Errors of opponents

Rule 19.3 limits the duties described in Rule 19.1 and Rule 19.2, so that the solicitor need not correct a statement of the opponent or another person made to the court. The rule reflects the common law that a solicitor "would fail in his duty to his own client were he to supplement the deficiencies in his opponent's evidence": Khudados v Hayden [2007] EWCA Civ 1316, [38].

19.4 Full disclosure in ex parte applications

In making ex parte applications, a solicitor must disclose all adverse matters that they know and that are not protected by legal professional privilege. The rule reflects the common law duty to show the utmost fairness and good faith, and see that all relevant matters, whether for or against the application, are brought to the attention of the court: Re Cooke (1889) 5 TLR 407, 409. The solicitor must provide 'all the material facts which [the absent] party would presumably have brought forward in his defence to that application': Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, 682. Due to the 'high standard of candour and responsibility' expected, a failure to make full disclosure confers upon the other party the right to apply for discharge of the order made: Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, 667.⁶⁸ Refer to Rule 22.5 ASCR with respect to communications with the court outside an ex parte application or hearing.

19.6  Duty not to withhold authorities

A solicitor must ensure the court is informed of all relevant legislation, binding authority and Australian appellate court decision, unless the opponent has conceded the case as contemplated by Rule 19.7. This is to assist the court to apply the relevant law. Lawyers owe a duty not to withhold authorities 'which may tell against his clients but which the law or the standards of his profession require him to produce': Rondel v Worsley [1969] 1 AC 191, 227 – 228, cited with approval in Giannarelli v Wraith (1989) 165 CLR 543, 556.

Rule 19.8 extends the duty to where judgment has been reserved and remains pending. If the solicitor becomes aware of a relevant authority, they must inform the court by letter or relisting the matter. In both cases, the opponent must first be consulted. Rule 19.9 applies only in criminal law matters to preserve certain rulings of inadmissible evidence.

19.10  Client's previous convictions

At common law, the defence is not under a positive duty to disclose prior convictions: Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289, 297. Doing so may breach the solicitor's duty to act in a client's best interests (Rule 4.1.1) and the duty of confidentiality to the client (Rule 9.1). It is incompatible with those duties for the solicitor in an adversarial system 'to bring forward everything adverse to the offender's interests on sentencing': R v Bourchas [2002] NSWCA 373. The court decides cases based on the evidence before it, and so it is no miscarriage of justice if the prosecutor fails to introduce an accused's previous convictions and the defence does not correct it: Boyd v Sandercock; ex parte Sandercock [1990] 2 Qd R 26, 28 ('Sandercock'). Accordingly, a prior conviction should not be disclosed to the prosecutor or the court without the client's instructions.

However, as stated in Sandercock at 28, "where a party deliberately misleads the court, other remedies may exist. For example, if fraud is practised upon the court a remedy is available either by order to review or by certiorari: Hallanan v Campbell; ex parte Campbell (No 2) [1964] Qd R 336". This general principle shifts in circumstances where a defence solicitor suggests otherwise, for example, by 'asking a prosecution witness whether there are previous convictions, in the hope of a negative answer' or submitting that 'his client is a man of good character'. In these circumstances, a solicitor would be breaching his duty not to mislead the court (Rule 19.1): Tombling at 297. Rule 19.10 therefore prohibits such questions, to protect the accused.

19.11 Court's misapprehension as to the effect of an order

The duty not to mislead the court and opponents 'continues … until the judge has given judgment': Vernon v Bosley (No 2) [1999] QB 18, 38. However, if the court is making an order with a misapprehension as to its effect, a solicitor must so inform the court: Rule 19.11.

19.12 Duty to correct mistaken concessions

Notwithstanding Rule 19.3, Rule 19.12 requires a solicitor to alert the opponent and, if necessary, inform the court if the opponent in a civil trial makes any express concession about –

• evidence;
• case law; or
• legislation

that the solicitor knows is contrary to the true position and believes has been made by mistake.

66 G E Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th ed, 2013) 354-5. 

67 Ibid, cited with approval by Santow J in Kavia.

68 See also, Gold Ribbon (Accountants) Pty Ltd (in Liq) v Sheers [2003] 1 Qd R 683; Re South Down Packers Pty Ltd [1984] 2 Qd R 559. In relation to the duty of disclosure on an Anton Piller application see Lego Australia v Paraggio (1993) 44 FCR 151; International Entertainment New Zealand Ltd v Lewis [1998] 1 IPR 162; Universal Music Australia Pty Ltd v Sharman License Holdings Limited (2004) 205 ALR 319.

1. A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgement or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
   1. has lied in a material particular to the court or has procured another person to lie to the court;
   2. has falsified or procured another person to falsify in any way a document which has been tendered; or
   3. has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;
      must –
   4. Omitted
   5. refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.
2. A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty:
   1. may, subject to the client accepting the constraints set out in Rules 20.2.2 - 20.2.8, but not otherwise, continue to act in the client's defence,
   2. must not falsely suggest that some other person committed the offence charged,
   3. must not set up an affirmative case inconsistent with the confession,
   4. must ensure that the prosecution is put to proof on its case,
   5. may argue that the evidence as a whole does not prove that the client is guilty of the offence charged,
   6. may argue that for some reason of law the client is not guilty of the offence charged,
   7. may argue that for another reason not prohibited by Rule 20.2.2 or 20.2.3 the client should not be convicted of the offence charged, and
   8. 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.
3. A solicitor whose client informs the solicitor that the client intends to disobey a court's order must:
   1. advise the client against that course and warn the client of its dangers;
   2. not advise the client how to carry out or conceal that course; and
   3. not inform the court or the opponent of the client's intention unless:
      1. the client has authorised the solicitor to do so beforehand; or
      2. the solicitor believes on reasonable grounds that the client's conduct constitutes a threat to any person's safety.

Commentary

20.1  Client and witness perjury

The rule applies where a solicitor learns of a client or witness perjury during or after a hearing, rather than where a solicitor participates in client perjury before a hearing. 

Falsehoods known prior to hearing. A lawyer cannot prepare and file an affidavit that they know would be a perjury: Myers v Elman [1940] AC 282.⁶⁹ Similarly, a lawyer must not prepare pleadings that contain allegations of fact that the lawyer knows to be false: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190.⁷⁰ In these circumstances, the filing of an affidavit known to be false and the pleading of allegations known to be false, the solicitor will be in breach of his or her duty to the court unless the solicitor discloses to the court 'the true position': Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56, [60] (Ipp J).

Falsehoods learned during hearing. Rule 20.1 applies where the solicitor learns of the client's or witness's lie or falsification 'during a hearing or after judgment or the decision is reserved and while it remains pending'. In that case, the solicitor must:

• seek the client's instructions to inform the court, and
• if the client does not so instruct, withdraw from the proceedings.

The solicitor cannot inform the court of the lie, falsification or suppression without the client's instructions, or when withdrawing from the case: Rule 20.1.5; Perpetual Trustee Co Ltd v Cowley [2010] QSC 65. Although other parties and the judge may suspect the reason for the solicitor's withdrawal, the fact of the withdrawal should not be taken as disclosure of the solicitor's knowledge of the client's or the witness's perjury.

Prior to communicating with a client who is still under oath for the purpose of complying with Rule 20.1.4, a solicitor must have regard to Rule 26 – communication with witnesses under cross examination.

20.2 Guilt of the accused

Possible courses of action. In criminal proceedings, where a client confesses guilt to the solicitor but maintains a not-guilty plea, the solicitor may, subject to the client accepting the constraints set out in Rules 20.2.2-20.2.8, but not otherwise, continue to act in the client’s defence.

Limitations when continuing. If the solicitor continues to act, then they:

1. must not falsely suggest that some other person committed the offence charged;
2. must not set up an affirmative case inconsistent with the confession (for example by calling evidence in support of an alibi: New South Wales Bar Association v Punch [2008] NSWADT 78);
3. must ensure that the prosecution is put to proof on its case;
4. may argue that the evidence as a whole does not prove that the client is guilty of the offence charged. 'Whether he be in fact guilty or not, a prisoner is … entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted': Tuckiar v R (1934) 52 CLR 335, 346;
5. may argue that for some reason of law the client is not guilty of the offence charged (for example, the defence of insanity)
6. may argue that for an other reason not prohibited by rule 20.2.2 or 20.2.3 or the client should not be convicted of the offence charged; and
7. 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.

69 See also: Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56, 60 (Ipp J) ('Kyle').

70 See also: Kyle at 60.

1. A solicitor must take care to ensure that the solicitor's advice to invoke the coercive powers of a court:
   1. is reasonably justified by the material then available to the solicitor;
   2. is appropriate for the robust advancement of the client's case on its merits;
   3. is not given principally in order to harass or embarrass a person; and
   4. is not given principally in order to gain some collateral advantage for the client or the solicitor or a third party out of court.
2. A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person:
   1. are reasonably justified by the material then available to the solicitor;
   2. are appropriate for the robust advancement of the client's case on its merits; and
   3. are not made principally in order to harass or embarrass a person.
3. A solicitor must not allege any matter of fact in:
   1. any court document settled by the solicitor;
   2. any submission during any hearing;
   3. the course of an opening address; or
   4. the course of a closing address or submission on the evidence,
      unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.
4. A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that:
   1. available material by which the allegation could be supported provides a proper basis for it; and
   2. the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
5. A solicitor must not make a suggestion in cross-examination on credit unless the solicitor believes on reasonable grounds that acceptance of the suggestion would diminish the credibility of the evidence of the witness.
6. A solicitor may regard the opinion of an instructing solicitor that material which is available to the instructing solicitor is credible, being material which appears to the solicitor from its nature to support an allegation to which Rules 21.1, 21.2, 21.3 and 21.4 apply as a reasonable ground for holding the belief required by those Rules (except in the case of a closing address or submission on the evidence).
7. A solicitor who has instructions which justify submissions for the client in mitigation of the client's criminality which involve allegations of serious misconduct against any other person not able to answer the allegations in the case must seek to avoid disclosing the other person's identity directly or indirectly unless the solicitor believes on reasonable grounds that such disclosure is necessary for the proper conduct of the client's case.
8. Without limiting the generality of Rule 21.2, in proceedings in which an allegation of domestic or family violence, sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence:
   1. a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended:
      1. to mislead or confuse the witness; or
      2. to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; and
   2. a solicitor must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks.
9. A solicitor does not infringe rule 21.8 merely because:
   1. the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of a statement made by the witness, or
   2. the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.

Commentary

21.1 Responsible use of court process

A solicitor must ensure that the litigation is reasonably justified on the merits and an advancement of the client's case, and is not made principally to harass someone or gain some collateral advantage: Rule 21.1. The rule supports the duty not to abuse court processes: White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169. A solicitor may face disciplinary proceedings or a personal costs order for lending himself or herself to an abuse of the court's process.

Cases without merit. A solicitor must believe that the factual material available provides reasonable grounds (a 'proper basis') for invoking the coercive powers of a court. They must apply independent judgment (see Rule 17.2) to decide whether the points the client wishes to argue can be argued: Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683. In Steindl, Davies JA said (at 690) that '…it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable'. However, Williams JA at 692 (with Phillipides J agreed) cited with approval Medcalf v Mardell [2003] 1 AC 120: '…it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is also entitled to be heard…The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process'.

Collateral advantage. Proceedings should 'not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which proceedings are properly designed and intended': Re Majory [1955] Ch 600.

21.2 Baseless aspersions or allegations

Similarly, allegations or suggestions under privilege must be reasonably justified and an advancement of the client's case, and not made principally to harass someone: Rule 21.2, see also Rule 29.3. Lawyers must maintain standards of decency and fairness. They may 'speak out fearlessly, to denounce some person or the conduct of some person' but, due to the 'ruinous consequences' to the person attacked, cannot introduce damaging matters which cannot be substantiated or justified by evidence: Clyne v NSW Bar Association (1960) 104 CLR 186 ('Clyne'). The reasoning in Clyne stands behind Rules 21.1 to 21.4, breach of which may give rise to disciplinary proceedings.

21.4 Allegations of criminality, fraud or other serious misconduct

Allegations of fraud or other misconduct should not be made lightly: White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Clyne v New South Wales Bar Association (1960) 104 CLR 186. Professional disciplinary consequences may follow for lawyers who do not 'take care to have specific instructions and an appropriate evidentiary foundation, direct or inferred, for alleging or pleading fraud': Minister Administering the Crown Lands Consolidation Act and Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201.

21.5 Witnesses

Solicitors face censure if they put to a witness propositions that have no basis in evidence or are irrelevant to the witness's credibility: Vella v R (1990) 47 A Crim R 119, 124 (Malcolm CJ).

21.8 Allegation of domestic violence

This rule has been amended to extend to allegations of domestic or family violence.

1. A solicitor must not knowingly make a false or misleading statement to an opponent in relation to the case (including its compromise).
2. A solicitor must take all necessary steps to correct any false or misleading statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false or misleading.
3. A solicitor will not have made a false or misleading statement to the opponent simply by failing to correct an error on any matter stated to the solicitor by the opponent.
4. A solicitor must not confer or deal with any party represented by or to the knowledge of the solicitor indemnified by an insurer, unless the party and the insurer have signified willingness to that course.
5. A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:
   1. the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
   2. the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
6. A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.
7. A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent's consent.
8. A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly.

Commentary

22.1 False or misleading statements to opponents

Rules 22.1 to 22.3 apply to negotiations. See Legal Services Commissioner v Mullins [2006] LPT 12; Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352 and Legal Services Commissioner v Garrett [2009] LPT 12.

22.4 Parties represented by insurers

A solicitor must get the consent of both the party and the insurer before communicating with the insured party.

22.5 Communication with the Court

A solicitor cannot communicate in the opponent's absence with the court on matters of substance unless the opponent's solicitor either has given consent or has been given the opportunity to respond before the intended communications: Rules 22.5-7. Communications with judges' chambers 'which the other parties do not know of, or have not approved of, are improper and should not occur': Porter v Australian Prudential Regulation Authority [2009] FCA 1148, [20]. The few exceptions include ex parte applications and non-contentious housekeeping or logistical questions: Hughes v Janrule Pty Ltd [2011] ACTCA 23, [27].

Rules 22.5 to 22.7 reflect the "fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other": Re JRL; Ex parte CJL (1986) 161 CLR 342, 346. In a recent article it has been observed that:

"The assessment of whether an impugned communication concerns 'a matter of substance' must be understood in the context of the 'current proceedings' to which it is connected."⁷¹

There will be few occasions where a communications in terms of Rule 25.5.1 cannot be made without compliance with Rule 25.5.2. Compliance with Rules 25.5.2 and 22.7 will not remove the requirement of compliance with Rule 22.6.⁷²

Courts have criticised parties for ex parte communications with a tribunal.⁷³

22.8 Notices of adjournment

A solicitor has an obligation to inform their opponent and the court as soon as possible that there will be an application to adjourn any hearing. This is also reflected in the duty to inform the court at the earliest reasonable opportunity when a listed matter settles.⁷⁴

Whilst providing a copy of communication with the court to one's opponent is good practice, it will not cure failure to obtain consent in advance.

71 Richard Lilley SC and Justin Carter 'Communications with the Court' (2013) 87 ALJ 121, 122.

72 Ibid 122.

73 See R v Fisher (2009) 22 VR 343; John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221.

74 Address by the Hon Justice Margaret McMurdo AC to Cooper Grace Ward Technical Excellence Program 3 September 2013.

1. A solicitor must not take any step to prevent or discourage a prospective witness or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.
2. A solicitor does not breach Rule 23.1 simply by;
   1. telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed, or 
   2. advising the prospective witness or the witness about relevant obligations of confidentiality.

Commentary

23.1 Witnesses open to both parties

A solicitor cannot prevent a prospective witness from being interviewed by the opponent, though they can advise on the witness’s right to refuse the interview, and on any relevant obligations of confidentiality.

There is no property in a witness, whether expert or lay: Harmony Shipping Co SA v Davis [1979] 3 All ER 177, 180 (Lord Denning MR). If there were, one party may be able to 'buy up all possible experts' in a certain area: Harmony Shipping at 184.

A prospective witness has no obligation to give evidence. If no statement is provided, the witness can be subpoenaed: Commonwealth Bank of Australia v Cooke [2000] 1 Qd R 7, 12.

1. A solicitor must not:
   1. advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or
   2. coach a witness by advising what answers the witness should give to questions which might be asked.
2. A solicitor will not have breached Rules 24.1 by:
   1. expressing a general admonition to tell the truth;
   2. questioning and testing in conference the version of evidence to be given by a prospective witness; or
   3. drawing the witness’ attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.

Commentary

24.1.1 False or misleading evidence

In addition to Rule 24.1.1, see Criminal Code (Qld) s 127(1) for the criminal consequences of inducing a witness to give false testimony or withhold true testimony.

It is also unacceptable to advise a witness to be forgetful and evasive giving testifying: R v Sweeney (1987) 39 CCC (3d) 182.

24.1.2 Coaching

There is a distinction between coaching (Rule 24.1.2) and witness preparation (Rule 24.2), but the line can be difficult to draw: Re Equiticorp Finance Ltd (1992) 27 NSWLR 391 ('Equiticorp'). In Equiticorp, Young J held that a solicitor advising the witness on how to answer questions went over the line, and laid down the exceptions provided in Rule 24.2: Other cases that help describe the dividing line are:

• In R v Noble (2000) 117 A Crim R 541, [19], Pincus JA held that it is improper to train witnesses 'to use particular expressions, differing from those the witness had in mind'. This compares with a witness permissibly recalling the effect of a conversation.
• In Legal Practitioners Complaints Committee v Caine [2010] WASAT 178, the Committee, [142] defined the limits of witness preparation. Permissible conduct includes clarifying matters, questioning and testing witness's recollection of events and drawing matters to the witness's attention. Rehearsing, practising or coaching witnesses concerning evidence or suggesting answers to be given are impermissible.
• In Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731, a solicitor arranged a pretrial telephone conference with multiple witnesses, which permitted those witness to discuss amongst themselves, the evidence they would give. Sheller JA noted at [30]:

"It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly."

Sheller JA noted that by permitting witnesses to confer in the manner in which they had been permitted in this case that this seriously undermined the process by which evidence is taken and that what was done was improper. The court was concerned that by permitting the defendant’s witnesses to discuss amongst themselves the evidence that would be given the intention was to ensure, so far as possible, that they would all speak with one voice. It was an order of the court in this matter that the defendant’s solicitors were to show cause why they should not be referred to the NSW Legal Services Commissioner. Subsequently in Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125, the matter was referred to the NSW Legal Services Commissioner.

Disciplinary consequences. In Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563, Mr Kennedy had his name struck from the Roll of solicitors after attempting to influence a witness to change her testimony. There was the same outcome in Attorney-General and Minister of Justice v Gregory [1998] QCA 409, in which the solicitor's conduct of offering money in 'a matter of fact tone' to influence two witnesses into changing their testimony resulted in his being struck off. The conduct 'struck audaciously into the heart of the judicial process', and involved an absence of ‘honesty, objectivity, respect for the court and respect for the process'.

In Legal Practitioners Complaints Committee v Pepe [2009] WASC 39, the solicitor was in an abusive and violent relationship with a man named Murray, and was also acting as Murray’s solicitor after he was indicted (with others) for conspiracy to cause a pregnant woman to miscarry. Media publicity surrounded the trial. Fitzgerald, a former police officer serving a term of imprisonment for corruption, saw these media reports and contacted the police to offer 'useful information.' Fitzgerald was also a client of the solicitor, who became aware of Fitzgerald's statement. The solicitor feared that Murray, a jealous man, might assume a conspiracy existed between her, defence counsel and Fitzgerald ‘to have him convicted and thus remove him from the scene.' She therefore attempted to dissuade Fitzgerald from giving evidence against Murray, in a recorded telephone conversation. Having earlier been convicted of attempting to pervert the course of justice, the solicitor was struck off.

1. A solicitor must not confer with, or condone another solicitor conferring with, more than one lay witness (including a party or client) at the same time:
   1. about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing; and
   2. where such conferral could affect evidence to be given by any of those witnesses,
      unless the solicitor believes on reasonable grounds that special circumstances require such a conference.
2. A solicitor will not have breached Rule 25.1 by conferring with, or condoning another solicitor conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.

Commentary

25.1 One witness at a time

The purpose of Rule 25.1 is to avoid the risk of evidence being contaminated through collusion.⁷⁶ Several recent cases illustrate the nature of the rule and the consequences of its breach:

• Witnesses should give evidence which is 'the product of their own independent knowledge and recollection unaffected by the views or evidence of others': Legal Profession Complaints Committee v Caine [2010] WASAT 178, [143] in which the solicitor was found guilty of unsatisfactory professional conduct by encouraging a witness to confer with others to harmonise their evidence.
• In talking with more than one witness, a solicitor may be intending to ensure witnesses 'all speak with one voice,' thereby affecting the integrity of the process: Day v Perisher Blue (2005) 62 NSWLR 731, 746 ('Day'). The court may set aside the verdict and judgment and order a new trial. In Day, the judgement and appeal papers were referred to the Legal Services Commissioner: see Day v Perisher Blue Pty Ltd [No 2] [2005] NSWCA 125.
• To constitute a breach, there must be a conference between two witnesses and the solicitor, not one witness incidentally over-hearing a conversation between another and a solicitor. The rule is to avoid the 'vice' of two or more witnesses 'conferring about contentious issues in the proceedings' and being 'encouraged to modify, or be at risk of modifying, or changing, the evidence that they might give': Legal Services Commissioner v Hansen [2008] LPT 7, [26] ('Hansen'). In Hansen, a barrister allegedly conferred with a witness outside his chambers whilst the accused was 'within earshot.' The charge was ultimately dismissed, as the Tribunal was not satisfied that the barrister had conferred with 'more than one lay witness at a time.'
  For the same reason, a witness ought not to be shown another witness’ statement, although specific elements may be put to them for comment.⁷⁷

25.2 Exceptions

A solicitor does not breach Rule 25.1 by conferring with more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise: Rule 25.2. 

Expert witnesses. Conferring with two or more expert witnesses to ensure a "common line" compromises the independence of those witnesses. Their duty is to assist the court on the subject matter and test the evidence and the information relied upon. However, when the expert witnesses are in a court-ordered conclave to produce a joint report on relevant issues, a solicitor may confer with them on the process of that conclave.

76 Dal Pont, above n 1, 563.

77 Kylie Downes S.C., 'Witness Wisdom' (2012) 32 (11) Proctor 6.

1. A solicitor must not confer with any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination, unless:
   1. the cross-examiner has consented beforehand to the solicitor doing so; or
   2. the solicitor:
      1. believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;
      2. has, if possible, informed the cross-examiner beforehand of the solicitor’s intention to do so; and
      3. otherwise does inform the cross-examiner as soon as possible of the solicitor having done so.

Commentary

To constitute a breach, the communication must be while the cross-examination is continuing. In R v Shepherd [2001] 1 NZLR 161, [17] the prosecutor consulting with the complainant for an hour after cross-examination was adjourned was highly irregular conduct, but did not lead to the possibility of a miscarriage of justice.

1. In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.
2. In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member must not continue to act for the client if doing so would prejudice the administration of justice.

Commentary

27.1 Advocate in court cannot also be material witness

A solicitor who is to give material evidence may not appear as advocate for the client in the hearing for the client. The question is what is 'material'. In Mitchell v Burrell [2008] NSWSC 772, [20] ('Mitchell'), Brereton J saw the rule as one supporting the general duty to avoid a conflict of interest (see Rule 12), and limited the materiality to one where the solicitor has a personal interest:

"I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. … [T]he line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice – which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests – require the lawyer to be restrained from continuing to act."

In Mitchell, Justice Brereton noted that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself does not necessarily justify restraining the solicitor from continuing to act. Windeyer J in Scallan v Scallan [2001] NSWSC 1078, [11] pointed out that it is not unusual for instructing solicitors in contested probate matters to give evidence of facts relevant to instructions for and execution of a will. Similarly, in contested conveyancing matters, it is not unusual for solicitors who have acted in the conveyance, to continue to act in proceedings for specific performance, recession or termination to give evidence in those proceedings.

Apparent that solicitor will give evidence. That realisation may come well before any hearing. Solicitors who witness enduring powers of attorney and also represent the principal must consider the likelihood of their giving evidence in relation to the execution of the document: see Re MV [2005] QGAAT 46. That case's warning is to avoid conflicts between the duty to the client and duty to the court.

General principle: It is generally ‘unwise’ for a solicitor to continue to act in a client's case if it is known or becomes apparent that they will be called as a material witness: Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542, 545.

The Rule applies to 'material' issues: matters in which the solicitor is to give evidence on uncontested issues or matters of formality will not normally be considered 'material' for the purposes of the Rule.

27.2 Solicitor can act if no prejudice to justice

Though the Rule against appearing is clear-cut, the Rule against the solicitor or an associate acting generally for the client depends on whether it would prejudice the administration of justice. Rule 27 reflects the common law principle that it is 'unwise' for a solicitor to continue to act, particularly where that can be 'reasonably avoided': Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238, 245 ('Jeffery').⁷⁸ An independent solicitor should take over the matter to avoid questions of objectivity: Jeffery at 245. 

Guidance on what would 'prejudice the administration of justice' is given by Kallinicos v Hunt (2005) 64 NSWLR 561. The case traversed similar considerations, specifically circumstances in which a superior court may restrain a solicitor from acting as part of its inherent supervisory jurisdiction. Though the jurisdiction should be exercised with extreme caution, the test is (Brereton J at 582-4): 

"whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice"

78 See also: Chapman v Rogers; Ex parte Chapman [1984] 1 Qd R 542, 545 (Campbell CJ).

1. A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.

Commentary

Publication of material concerning current proceedings may involve the disclosure of confidential information (see Rule 9), and other information that may prejudice a fair trial.⁷⁹ The Rule is not restricted to media publication.

In Legal Services Commissioner v Orchard [2012] QCAT 583, material was sent to the employer of a party to proceedings. The Tribunal said that the rule⁸⁰ 'does not on its face reveal an intention only to prohibit media activity. Rather, its apparent intent is to ensure a fair trial of proceedings, and to maintain the proper administration of justice and the word 'publication' is not used in a way, or in any context, suggesting the rule is only intended to prevent general or widespread publication, e.g. via the media': at [21].

79 See also: See MG v R (2007) 69 NSWLR 20 for consideration of rule 59 of the former New South Wales barristers' conduct rule on media statements.

80 Rule 19.1 Legal Profession (Solicitors) Rule 2007 (Qld).

1. 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.
2. A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.
3. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
4. 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.
5. 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 other than material subject to statutory immunity, unless 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.
6. A prosecutor who has decided not to disclose material to the opponent under Rule 29.5 must consider whether:
   1. the charge against the accused to which such material is relevant should be withdrawn; or
   2. the accused should be faced only with a lesser charge to which such material would not be so relevant.
7. A prosecutor must call as part of the prosecution’s case all witnesses:
   1. whose testimony is admissible and necessary for the presentation of all of the relevant circumstances;
   2. whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;
      UNLESS
      1. the opponent consents to the prosecutor not calling a particular witness;
      2. 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;
      3. 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; or
      4. the prosecutor believes on reasonable grounds that the testimony of a particular witness is plainly untruthful or is plainly unreliable, 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 (ii), (iii) or (iv) together with the grounds on which the prosecutor has reached that decision.
8. A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully obtained must promptly:
   1. inform the opponent if the prosecutor intends to use the material; and
   2. make available to the opponent a copy of the material if it is in documentary form.
9. A prosecutor must not confer with or interview any accused except in the presence of the accused’s legal representative.
10. A prosecutor must not inform the court or an 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.
11. A prosecutor who has informed the court of matters within Rule 29.10, 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.
12. A prosecutor:
    1. must correct any error made by the opponent in address on sentence;
    2. must inform the court of any relevant authority or legislation bearing on the appropriate sentence;
    3. must assist the court to avoid appealable error on the issue of sentence;
    4. may submit that a custodial or non-custodial sentence is appropriate; and
    5. may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant decisions.
13. A solicitor who appears as counsel assisting an inquisitorial body such as the Criminal Justice Commission, the Australian Crime Commission, the Australian Securities and Investments Commission, the ACCC, a Royal Commission or other statutory tribunal or body having investigative powers must act in accordance with Rules 29.1, 29.3 and 29.4 as if the body is a court referred to in those Rules and any person whose conduct is in question before the body is an accused referred to in Rule 29.

Commentary

29.1  Duty of prosecutorial fairness

Prosecutors must fairly assist the court to arrive at the truth and to enable the law properly to be applied to the facts. They must present a full and firm case, but no more: see Rules 29.2 – 29.4. Deane J in Whitehorn v R (1983) 152 CLR 657, 663 described the duty as one of 'fairness and detachment':

Prosecuting Counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and helping to ensure that the accused's trial is a fair one.

The Director of Public Prosecutions of Queensland has issued Guidelines outlining the duties of prosecutorial fairness.

29.2  No 'struggle for conviction'

An accused is entitled to 'have his case tried fairly, free from bias and prejudice and free from the introduction of any extraneous matters calculated to influence the jury improperly in arriving at a determination': Croll v McRae (1930) 30 SR (NSW) 137, 143. A prosecutor must ‘not let their understandable distaste for the factual situations of the individual case become zealotry in the misguided belief that convictions must be obtained at any cost': R v Kennedy (1997) 94 A Crim R 341, 353. Prosecutors are 'ministers of justice' and 'ought not to struggle for a conviction nor be betrayed by feelings of professional rivalry': R v Lucas [1973] VR 693, 705.⁸¹

29.3  Inflaming the court

Prosecutors should avoid the use of language that would lead a jury to base its verdict on 'prejudice, sympathy, fear or irrelevant emotion': R v Day (2000) 115 A Crim R 80 ('Day'), 86, see also Rule 21. Whether the prosecution uses prejudicial language necessitating a re-trial depends on the particular circumstances of the case: R v Knuth [1998] QCA 161 (Lee J). Particular care must be taken to avoid unduly inflammatory or emotive language in cases such as child sexual abuse: Day.⁸² In R v Livermore (2006) 67 NSWLR 659, the prosecutor continually described the accused as an 'idiot.' This might have given the impression the jury were idiots to believe the complainant would have had consensual sexual intercourse with the accused seeing as the prosecution made the submission and they represented community interests and the State: at [36]-[38]. The submission was 'insidious' as it inflamed the jury's prejudice towards the Crown witness, rather than resorting to ‘balanced and rational argument based upon the evidence in the trial'.

The Rule does not preclude prosecutors addressing the jury with spontaneity or with the occasional flourish that doesn’t otherwise breach the Rule:

"[U]nless we are to interrupt criminal trials so that counsel may first write out their speeches, closing addresses must remain at least partly driven by adrenalin. Spontaneity is a valuable asset in criminal trials even if it leads to the occasional flourish that would be deleted on more mature reflection": Thomas JA in Day at 86-7.

29.5  Prosecutor's duty of disclosure

A prosecutor must disclose to the opponent all relevant evidence (including witnesses), unless:

• it is subject to statutory immunity, or
• the prosecutor believes the disclosure would seriously threaten personal safety or the administration of justice.

The decision not to disclose will put the charge itself into question: see Rule 29.6. 

The duty reinforces Criminal Code 1899 (Qld) s 590AB, which requires the prosecution to give full and early disclosure of:

• all evidence the prosecution proposes to rely on in the proceeding; and
• all things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person.

The duty of disclosure is a necessary incident of the 'power imbalance' between the resources available to the prosecution against that of the defence. It overcomes or mitigates the  'defence's inability to investigate matters as thoroughly as the prosecution', and makes certain each side is fully informed of the strengths and weaknesses of the evidence: R v Ulman-Naruniec (2003) 143 A Crim R 531, [136-7]. 

A failure to comply with the duty of disclosure can lead to disciplinary proceedings: Legal Profession Complaints Committee v Bates [2012] WASAT 150. It was alleged that the practitioner had failed to comply with his duty of disclosure in that he failed to disclose what he had been told by an investigating officer as to certain injuries not matching the sketch of a wrench. The Tribunal, in determining penalty, accepted that the conduct occurred almost 17 years ago and that there was no suggestion of any deliberate misconduct. The practitioner was fined $10,000 and reprimanded.

29.7  Duty to call witnesses

Having disclosed relevant witnesses (see Rule 29.5), the prosecutor must call them, unless:

• the opponent consents
• the prosecutor has informed the opponent that the matter has been already adequately dealt with or that the prosecutor believes the testimony is plainly untruthful or unreliable.

"The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown." It is 'a lonely responsibility, but also a heavy one'. The trial judge may question the prosecutor to discover the reasons for the decision, but cannot adjudica1te the sufficiency of those reasons: R v Apostilides (1984) 154 CLR 563, 575-576 ('Apostilides'). In making his or her decision, the prosecution may take into account:

"… whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention just a few [factors]": Richardson v R (1974) 131 CLR 116, 119 per Barwick CJ, McTiernan and Mason JJ.

For disciplinary cases, a refusal to call a witness is only justified in the circumstances outlined in Rule 27.9. At common law, the decision may be made 'only by reference to the overriding interests of justice'; the decision will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice: Apostilides at 576. In both cases, that the evidence does not assist the prosecution is not a ground for refusal: Seneviratne v R [1936] 3 All ER 36.

29.12  Sentencing

The duty of fairness requires that submissions on sentence are made 'fairly and in an even-handed manner', and the prosecution should 'not, as an adversary, press the sentencing court for a heavy sentence': R v Tait and Bartley (1989) 46 FLR 386, 389. Rule 29.12 sets out obligations of the prosecutor to assist in fair sentencing that would withstand appeal.

The duty to assist the court to avoid appealable error (see Sub-Rule 29.12.3) applies 'whether at trial or on sentencing': R v S [2007] VSCA 134, [39]. Among the prosecution roles is to assist the court by making submissions about 'the range of sentences… appropriately open' (R v Casey (1986) 20 A Crim R 191, 196) or even any relevant principles of sentencing: Tait and Bartley at 389.

A prosecutor may submit that a custodial or non-custodial sentence is appropriate: R v Wilton (1981) 28 SASR 362, 368 (King CJ);  R v Economedes (1990) 58 A Crim R 466.

81 See also: R v Puddick (1865) 176 ER 662, 663 (Crompton J); King v R (1986) 161 CLR 423, 426 (Murphy J).

82 See also: R v M [1991] 2 Qd R 68, 82-3 (Cooper J).