29. Prosecutor's duties

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 the charge against the accused to which such material is relevant should be withdrawn; or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).