29. Prosecutors duties
- 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.
- A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.
- A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
- 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.
- 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.
- A prosecutor who has decided not to disclose material to the opponent under Rule 29.5 must consider whether:
- the charge against the accused to which such material is relevant should be withdrawn; or
- the accused should be faced only with a lesser charge to which such material would not be so relevant.
- A prosecutor must call as part of the prosecution’s case all witnesses:
- whose testimony is admissible and necessary for the presentation of all of the relevant circumstance;
- whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;
- the opponent consents to the prosecutor not calling a particular witness;
- 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;
- 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
- 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.
- A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully or improperly obtained must promptly:
- inform the opponent if the prosecutor intends to use the material; and
- make available to the opponent a copy of the material if it is in documentary form.
- A prosecutor must not confer with or interview any accused except in the presence of the accused’s legal representative.
- 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.
- 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.
- A prosecutor:
- must correct any error made by the opponent in address on sentence;
- must inform the court of any relevant authority or legislation bearing on the appropriate sentence;
- must assist the court to avoid appealable error on the issue of sentence;
- may submit that a custodial or non-custodial sentence is appropriate; and
- may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant decisions.
- 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.
This Guidance Statement raises the ethical issues practitioners should consider when engaging in social media.