Advocacy and litigation

18.1 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.

Terms of informal personal familiarity

Solicitors should respect the independence and integrity of the administration of justice and deal with the court formally. Solicitors should avoid using familiar terms with the court and avoid being alone with a judge or magistrate during a matter. With consent from the other side a solicitor could seek private audience with a judge or magistrate,³⁹¹ but should not raise matters with the court beyond what was agreed.

A New South Wales decision has warned against ‘salutations by advocates’ and advised that this conduct ‘should be completely abandoned in all contentious litigation’.³⁹² In this 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. Justice Palmer noted that this may have caused a ‘misapprehension in the mind’ of one of the self-represented litigants of the case.³⁹³

391. Charisteas v Charisteas [2021] HCA 29, [16].
392. Wilson v Department of Human Services – re Anna [2010] NSWSC 1489, [106].
393. Clive Wall, ‘Good morning, Your Honour’ (Conference Paper, Central Queensland Law Association Conference, 26–28 October 2012); see also more recently Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949.

19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.

19.2 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. 

19.3 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.

19.4 A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:

19.4.1 are within the solicitor's knowledge; 

19.4.2 are not protected by legal professional privilege; and

19.4.3 the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

19.5 A solicitor who has knowledge of matters which are within Rule 19.4 must:

19.5.1 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

19.5.2 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.

19.6 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:

19.6.1 any binding authority;

19.6.2 where there is no binding authority, any authority decided by an Australian appellate court; and

19.6.3 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.

19.7 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 judgment 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.

19.8 A solicitor who becomes aware of matters within Rule 19.6 after judgment 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:

19.8.1 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

19.8.2 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.

19.9 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.

19.10 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.

19.11 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.

19.12 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.

Duty not to deceive or mislead the court

A solicitor must make any reasonable argument that the evidence supports if it aids their client.³⁹⁴ However, a solicitor who knowingly or recklessly deceives or misleads the court undermines the confidence that the court and members of the profession can place in that solicitor.³⁹⁵ It is also conduct inconsistent with a solicitor’s duties of candour and honesty³⁹⁶ and so will trigger the court’s disciplinary jurisdiction.³⁹⁷

Truth of the client’s statements

A solicitor must not assist a client if they suspect:

• the client is being dishonest,
• the client has ulterior and improper reasons for the proceedings, or
• the court process is likely to be abused.

Solicitors may typically presume that their client’s instructions are truthful unless it becomes known that the initiation of proceedings is an abuse of process.³⁹⁸ This may warrant ‘caution, even mild scepticism, to a client’s narrative’.³⁹⁹ This mild scepticism might lead the solicitor to ‘take reasonable steps to verify the client’s contentions’, especially where serious allegations are made towards another person.⁴⁰⁰ A solicitor should ‘press’ the client until uncertainty about instructions is removed and, in the interim, refuse to make the ‘potentially misleading’ submissions in court.⁴⁰¹ If the client persists, the lawyer may have ‘just cause’ to terminate the retainer.⁴⁰²

Duty to correct a misleading statement

Rule 19.2 mirrors the common law obligation to correct an error, unintentional or otherwise, at the earliest available opportunity.⁴⁰³ The duty was held to apply in Perpetual Trustee Company Limited v Cowley.⁴⁰⁴ In this case, the solicitor had stated in his affidavit that his client’s mortgage payments had been made which 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.⁴⁰⁵

A solicitor’s obligation to correct a misleading statement is not subject to instructions.

Errors of opponents

The duty to the court is not so great that a solicitor is required to correct a statement of an opponent or another person in the court. Rule 19.3 provides this exception to the duties set out in rules 19.1 and 19.2. 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’.⁴⁰⁶

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 fairness and good faith and ensure that all relevant matters, whether for or against the application, are brought to the attention of the court.⁴⁰⁷

The solicitor must provide ‘all the material facts which [the absent] party would presumably have brought forward in his defence to that application’.⁴⁰⁸ 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.⁴⁰⁹

See to rule 22.5 for further discussion about communications with the court outside an ex parte application or hearing.

Duty not to withhold authorities

Rule 19.6 requires that a solicitor must ensure the court is informed of all relevant legislation, binding authority, and Australian appellate court decisions. Rule 19.7 provides an exception to the rule which applies when the opponent concedes the case. Rule 19.6 is in place to assist the court to apply the relevant law. Solicitors 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’.⁴¹⁰

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 seeking relisting of the matter. In both cases, the opponent must first be consulted. Rule 19.9 applies only in criminal law matters to preserve certain rulings about inadmissible evidence.

Client’s previous convictions

At common law, the defence is not under a positive duty to disclose prior convictions.⁴¹¹ 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’.⁴¹²

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.⁴¹³ Accordingly, a prior conviction should not be disclosed to the prosecutor or the court without the client’s instructions.

However, as stated in Boyd v Sandercock; ex parte Sandercock, ‘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’.⁴¹⁴ This general principle shifts in circumstances where a defence solicitor suggests otherwise, for example, by ‘ask[ing] a prosecution witness whether there are previous convictions … in the hope of receiving a negative answer’ or submitting that ‘his client is a man of good character’.⁴¹⁵ In these circumstances, a solicitor would be breaching his duty not to mislead the court (rule 19.1).⁴¹⁶ Rule 19.10 therefore prohibits such questions, to protect the accused.

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’.⁴¹⁷ However, rule 19.11 requires that if the court is making an order with a misapprehension as to its effect, a solicitor must so inform the court.

Duty to correct mistaken concessions

While rule 19.3 does not require a solicitor to correct an error or another person, 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 concession about evidence, case law, or legislation that the solicitor knows is mistaken.

394. Tuckiar v The King (1934) 52 CLR 335, 346.
395. New South Wales Bar Association v Thomas (No 2) (1989) 18 NSWLR 193, 205.
396. See above for rule 4 commentary about the standard of conduct and dishonest or disreputable conduct.
397. Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56, 58.
398. Orchard v South Eastern Electricity Board [1987] QB 565, 572.
399. Dal Pont (n 8) 593.
400. GE Dal Pont, Lawyer’s Professional Responsibility (Law Book Company, 1st ed, 1996) 354–5, cited with approval by Santow J in Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839, [2].
401. Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839, [2].
402. Ibid. See also above rule 13 commentary about completion or termination of engagement. 
403. Myers v Elman [1940] AC 282, 294.
404. [2010] QSC 65.
405. Ibid [17], [132]. 
406. Khudados v Hayden [2007] EWCA Civ 1316, [38].
407. Re Cooke (1889) 5 TLR 407, 409.
408. Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, 682.
409. Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, 667. 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.
410. Rondel v Worsley [1969] 1 AC 191, 227–8, cited with approval in Giannarelli v Wraith (1989) 165 CLR 543, 556.
411. Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289, 297.
412. R v Bourchas [2002] NSWCCA 373, [92].
413. Boyd v Sandercock; ex parte Sandercock [1990] 2 Qd R 26, 28.
414. Ibid, citing Hallahan v Campbell; Ex parte Campbell [1964] Qd R 337, 348.
415. Dal Pont (n 8) 646–7.
416. Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289, 297.
417. Vernon v Bosley (No 2) [1999] QB 18, 38.

Related content

Your duty to inform the court of legal authorities

What are my duties in interlocutory applications?

20.1    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 judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:

20.1.1    has lied in a material particular to the court or has procured another person to lie to the court;
20.1.2    has falsified or procured another person to falsify in any way a document which has been tendered; or
20.1.3    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 -

20.1.4    omitted 
20.1.5    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.

20.2    A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty:

20.2.1    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, 
20.2.2    must not falsely suggest that some other person committed the offence charged,
20.2.3    must not set up an affirmative case inconsistent with the confession,
20.2.4    must ensure that the prosecution is put to proof on its case,
20.2.5    may argue that the evidence as a whole does not prove that the client is guilty of the offence charged,
20.2.6    may argue that for some reason of law the client is not guilty of the offence charged, 
20.2.7    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
20.2.8    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.

20.3    A solicitor whose client informs the solicitor that the client intends to disobey a court’s order must:

20.3.1    advise the client against that course and warn the client of its dangers;
20.3.2    not advise the client how to carry out or conceal that course; and
20.3.3    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.

Falsehoods learned during hearing 

Rule 20.1 applies where the solicitor learns of the client’s or witness’s lie, falsification, or suppression ‘during a hearing or after judgment or the decision is reserved and while it remains pending’. In that case, the solicitor must refuse to take any further part unless the client authorises the solicitor to inform the court of the lie, falsification, or suppression and upon receiving those instructions, must promptly inform the court. 

The solicitor cannot inform the court of the lie, falsification, or suppression without the client’s instructions when withdrawing from the case.⁴¹⁸ Although other parties and the judge may suspect the reason of the solicitor’s withdrawal, the fact of the withdrawal should not be taken as disclosure of the solicitor’s knowledge of the perjury.

Falsehoods known prior to hearing

A solicitor cannot prepare and file an affidavit that they know would be a perjury.⁴¹⁹ Similarly, a lawyer must not prepare pleadings that contain allegations of fact that the lawyer knows to be false.⁴²⁰ In these circumstances (the filing of an affidavit known to be false and the pleading of allegations known to be false) the solicitor would be in breach of their duty to the court unless the solicitor disclosed to the court ‘the true position’.⁴²¹

Amendment to rule 20 

Rule 20.1.4 previously required the solicitor to advise the client that the court should be informed of the falsehood. This was omitted because there was no equivalent obligation in the Barristers’ Rules. The rationale was that this requirement is implicit in rule 20.1.5 and the harmonisation of the Barristers’ Rules with the ASCR ‘would avoid any suggestion that there are intended differences between these equivalent Rules’.⁴²²

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 can only continue to act in the client’s defence subject to the client accepting the constraints set out in rules 20.2.2–20.2.8.

Limitations when continuing to act

If the solicitor continues to act, then they:

• must not falsely suggest that some other person committed the offence charged,
• must not set up an affirmative case inconsistent with the confession (for example, by calling evidence in support of an alibi),⁴²³
• must ensure that the prosecution is put to proof on its case,
• may argue that the evidence as a whole does not prove that the client is guilty of the offence charged,⁴²⁴
• may argue that for some reason of law the client is not guilty of the offence charged (for example, the defence of insanity), 
• may argue that, for another reason not prohibited by rules 20.2.2 or 20.2.3, the client should not be convicted of the offence charged, and
• 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.

The client ought to be informed of and must agree to these limitations before the solicitor proceeds on this basis. 

^{418 Rule 20.1.5. See also Perpetual Trustee Co Ltd v Cowley [2010] QSC 65.
419 Myers v Elman [1940] AC 282; Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56, 60 (Ipp J).
420 Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190; Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56.
421 Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56, [9].
422 Law Council of Australia 2024 Commentary (n 1) 92. 
423 New South Wales Bar Association v Punch [2008] NSWADT 78.
424 Tuckiar v R (1934) 52 CLR 335, 346.}

21.1    A solicitor must take care to ensure that the solicitor’s advice to invoke the coercive powers of a court:

21.1.1    is reasonably justified by the material then available to the solicitor;
21.1.2    is appropriate for the robust advancement of the client’s case on its merits;
21.1.3    is not given principally in order to harass or embarrass a person; and
21.1.4    is not given principally in order to gain some collateral advantage for the client or the solicitor or a third party out of court.

21.2    A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person:

21.2.1    are reasonably justified by the material then available to the solicitor;
21.2.2    are appropriate for the robust advancement of the client’s case on its merits; and
21.2.3    are not made principally in order to harass or embarrass a person.

21.3    A solicitor must not allege any matter of fact in:

21.3.1    any court document settled by the solicitor;
21.3.2    any submission during any hearing;
21.3.3    the course of an opening address; or
21.3.4    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.

21.4    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:

21.4.1    available material by which the allegation could be supported provides a proper basis for it; and
21.4.2    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.

21.5    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.
21.6    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).
 21.7    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.
21.8    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:

21.8.1    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

21.8.2    a solicitor must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks.

21.9    A solicitor does not infringe Rule 21.8 merely because:

21.9.1    the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of a statement made by the witness, or
21.9.2    the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.

Responsible use of court process

Rule 21.1 requires a solicitor to ensure that a matter 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.⁴²⁵ The rule supports the duty not to abuse court processes.⁴²⁶ A solicitor may face disciplinary proceedings or a personal costs order for supporting any abuse of the court’s process.

Cases without merit 

A solicitor must believe that the factual material available provides reasonable grounds, or a proper basis, for invoking the coercive powers of a court. They must apply independent judgment⁴²⁷ to decide whether the points the client wishes to argue can be argued.⁴²⁸

In Steindl Nominees Pty Ltd v Laghaifar, Davies JA said 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’.⁴²⁹

However, Williams JA (with Phillipides J agreeing) cited Lord Hobhouse in Medcalf v Mardell⁴³⁰ and found that:

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.⁴³¹

Baseless accusations or allegations

Rule 21.2 similarly requires that any allegations or suggestions under privilege must be reasonably justified and an advancement of the client’s case, and not made principally to harass someone.⁴³² Solicitors 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.⁴³³ The reasoning in Clyne v NSW Bar Association⁴³⁴ supports rules 21.1–21.4.

Allegations of criminality, fraud, or other serious misconduct

Allegations of fraud or other misconduct should not be made lightly.⁴³⁵ 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’.⁴³⁶

Courts have also ordered that solicitors pay or contribute to a party’s costs where claims were made in breach of rule 21.4.⁴³⁷

Witnesses

Solicitors face censure if they put to a witness any propositions that have no basis in evidence or are irrelevant to the witness’s credibility.⁴³⁸

Allegation of domestic violence

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

Solicitors should take care in questioning victims of alleged domestic or family violence, sexual assault, or indecent assault. Solicitors should pay attention to the special vulnerability of the alleged victims and have regard to improper questions set out in s 41 of the Evidence Act 1995 (Cth) when cross-examining alleged victims as witnesses.

Solicitors should also have regard to ss 102NA and 102NB of the Family Law Act 1975 (Cth).

^{425 Re Majory [1955] Ch 600.
426 White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169.
427 See above for rule 17.2 commentary about forensic judgment.
428 Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683.
429 Ibid 689.
430 [2003] 1 AC 120, 143–144.
431 Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683, 692.
432 See also below page 101 for rule 29.3 commentary about prosecutor duties not to seek to inflame or bias the court against the accused.
433 Clyne v NSW Bar Association (1960) 104 CLR 186, [23].
434 Ibid.
435 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 NSW Bar Association (1960) 104 CLR 186.
436 Minister Administering the Crown Lands Consolidation Act and Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201.
437 Kaji Australia Pty Ltd v Glover (No. 5) [2020] NSWSC 1576 (upheld on appeal in Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180); Young v Hughes Trueman Pty Ltd (No. 4) [2017] FCA 456; Descon Group Australia Pty Ltd v Rodd [2023] FCA 1494.
438 Vella v R (1990) 47 A Crim R 119, 124 (Malcolm CJ)}

22.1    A solicitor must not knowingly make a false or misleading statement to an opponent in relation to the case (including its compromise).

22.2    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.

22.3    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.

22.4    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.

22.5    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:

22.5.1    the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
22.5.2    the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

22.6    A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.

22.7    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.

22.8    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.

Communicating with opponents

Rules 22.1 to 22.3 prohibit a solicitor from making false or misleading statements to opponents. This rule applies during negotiations.⁴³⁹ These rules were recently amended by replacing each reference to the term ‘false statement’ with the term ‘false or misleading statement’.

Where the opponent individual is insured, rule 22.4 requires a solicitor to obtain the consent of the insurer and the individual opponent before communicating with the insured party. 

Communication with the Court

Rules 22.5 to 22.7 prohibits a solicitor from communicating with the court in the opponent’s absence on matters of substance. The only exceptions are where the opponent’s solicitor has provided consent before the communication takes place or the limited situation described in rule 22.5.1 exists (see further commentary below). These rules reflect the ‘fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other’.⁴⁴⁰ Whether the communication in question is a ‘matter of substance’ should be assessed in the context of the relevant proceedings.⁴⁴¹

Practitioners should note that merely copying in the opponent in email correspondence to the court does not mean the communication is effectively made in their presence. It also does not satisfy the requirement to give the opponent ‘proper notice’ required by rule 22.5.⁴⁴² The few exceptions include ex parte applications and non-contentious housekeeping or logistical questions.⁴⁴³

There may be occasions where communication under rule 22.5.1 will also need to comply with rule 22.5.2. This means that even if a solicitor is contacted by the court and asked to respond, they may need to ensure the opponent is aware of this and has agreed to the way the response is to be made. An example might be where the court has communicated on an issue of substance as opposed to a mere administrative issue. Solicitors should refer to specific practice directions in determining when email communication is possible.⁴⁴⁴

Compliance with rules 22.5.2 and 22.7 will not remove the requirement of compliance with rule 22.6.⁴⁴⁵

Courts have criticised parties for ex parte communications with a tribunal.⁴⁴⁶

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.⁴⁴⁷

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.

^{439 Legal Services Commissioner v Mullins [2006] LPT 12; Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352; Legal Services Commissioner v Garrett [2009] LPT 12. 
440 Re JRL; Ex parte CJL (1986) 161 CLR 342, 346. See also Porter v Australian Prudential Regulation Authority [2009] FCA 1148, [20].
441 Richard Lilley and Justin Carter, ‘Communications with the Court’ (2013) 87(2) Australian Law Journal 121, 122.
     Legal Services Commissioner v Trost [2019] QCAT 357; FAL Management Group Pty Ltd v Denham Constructions Pty Ltd [2015] NSWSC 1035; Heritage Bank Limited v Gleeson & Anor (No 4) [2020] QDC 224.
442 Hughes v Janrule Pty Ltd [2011] ACTCA 23, [27].
443 Mark Steele and Kirsty Gothard, ‘Communicating with the court’, QLS Proctor (Web Page, 27 July 2023) <https://www.qlsproctor.com.au/2023/07/communicating-with-the-court/>.
444 Ibid. 
445 R v Fisher (2009) 22 VR 343; John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221.
446 Justice Margaret McMurdo, ‘Address to Cooper Grace Ward Technical Excellence Program’ (Speech, Cooper Grace Ward, 3 September 2013) 11.}

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Practitioners should not use the phrase “Off the Record”

Should I communicate with the Court?

23.1    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.
23.2    A solicitor does not breach Rule 23.1 simply by:

23.2.1    telling a prospective witness or a witness that the witness need not agree to confer or to be interviewed, or
23.2.2    advising the prospective witness or the witness about relevant obligations of confidentiality.

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.⁴⁴⁸ If there were, one party may be able to ‘buy up all possible experts’ in a certain area.⁴⁴⁹ A prospective witness has no obligation to give evidence. If no statement is provided, the witness can be subpoenaed.⁴⁵⁰

<sup>448. Harmony Shipping Co SA v Davis [1979] 3 All ER 177, 180 (Lord Denning MR).
449. Ibid 184.
450. Commonwealth Bank of Australia v Cooke [2000] 1 Qd R 7, 12.</sup>

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Access to witnesses and fairness to an opposing party

24.1    A solicitor must not:

24.1.1   advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or 
24.1.2   coach a witness by advising what answers the witness should give to questions which might be asked. 

24.2    A solicitor will not have breached Rules 24.1 by:

24.2.1   expressing a general admonition to tell the truth;
24.2.2   questioning and testing in conference the version of evidence to be given by a prospective witness; or
24.2.3   drawing the witness’s 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.

False or misleading evidence

In addition to rule 24.1.1, see s 127(1) of the Criminal Code Act 1899 (Qld) for the criminal consequences of inducing a witness to give false testimony or withhold true testimony.

No coaching

A solicitor’s role when taking evidence requires protecting the integrity of the evidence. This is part of their duties in the administration of justice and to promote confidence and trust in the legal profession.⁴⁵¹

In interviewing witnesses and preparing proofs of evidence, solicitors need to be mindful of not crossing the line between ‘proofing’ a witness and ‘coaching’ the evidence to be given by the witness. Coaching evidence can lead to a breach of rule 24.1.2.

The distinction between ‘proofing’ and ‘coaching’ a witness can be a difficult line to draw in practice.⁴⁵² The difference has been described in Majinski v The State of Western Australia which quotes with approval R v Momodu:⁴⁵³

There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of the well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness … The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids, any possibility that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so.

 In Re Equiticorp Finance Ltd; Ex parte Brock [No 2] Young J noted that a witness might confer with their lawyer or the lawyer for the party calling the witness. During such conferences, the lawyer or lawyers may provide the witness with advice. That advice may include:

• advice that the witness should refresh their memory from contemporaneous documents,
• directing the witness’s mind to the point about which questions may be asked,
• giving the witness a sketch of court procedure,
• directing the witness’s attention to points in their evidence which appear to be contradictory or fantastic,
• reminding the witness to bring all relevant documents,
• advising the witness as to the manner of answering questions (for example, when cross-examined, listen to the question and answer the question as concisely as possible), and
• giving advice as to appropriate dress and grooming.⁴⁵⁴

The Law Council of Australia 2024 Commentary noted⁴⁵⁵ that: 

Questioning of a witness moves beyond 'proofing’ to impermissible ‘coaching’ when the witness’ true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness.⁴⁵⁶

Amongst other things, a solicitor must not:

• suggest to a prospective witness evidence that the witness should give,
• encourage or coach the witness to give evidence different to that which the witness believes to be true,
• suggest answers to questions that might be asked of the witness,
• counsel a witness to be forgetful and evasive in giving evidence,⁴⁵⁷ or
• advise a client or a witness of the consequences of giving particular evidence with the hope or intention of encouraging the witness to legitimately avoid those consequences.⁴⁵⁸

In Re Equiticorp Finance Ltd; Ex parte Brock [No 2], Young J held that a solicitor advising the witness on how to answer questions went over the line. Other cases that help describe the dividing line are:

• In R v Noble,⁴⁵⁹ 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,⁴⁶⁰ the Committee 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,⁴⁶¹ the defendant's solicitors prepared a detailed document for their client with potential lines of questioning to be shared with respective witnesses with suggestions as to appropriate responses. The solicitors also held pre-trial conferences where witnesses discussed evidence to be given at trial. Together this was taken to undermine the trial and ‘tainted’ the defendant’s case. 
• In Kennedy v Council of the Incorporated Law Institute of New South Wales,⁴⁶² Mr Kennedy had his name struck from the roll of solicitors after attempting to influence a witness to change her testimony. The same outcome occurred in Attorney-General and Minister of Justice v Gregory,⁴⁶³ in which the solicitor’s conduct of offering money 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’,⁴⁶⁴ and involved an absence of ‘honesty, objectivity, respect for the court and respect for the process’.⁴⁶⁵
• In Legal Practitioners Complaints Committee v Pepe,⁴⁶⁶ the solicitor was in an abusive and violent relationship with her client. She attempted to dissuade another witness from giving evidence against her client fearing personal repercussions from her client. Having earlier been convicted of attempting to pervert the course of justice, the solicitor was struck off.

Questioning of witnesses 

Rule 24.2.2 makes clear that questioning or testing in conference the version of evidence to be given from a prospective witness does not contravene rule 24.1.

^{451 Dal Pont (n 8) [17.150]. See also Law Council of Australia 2024 Commentary (n 1) 97.
452 Re Equiticorp Finance Ltd; Ex parte Brock [No 2] (1992) 27 NSWLR 391.
453 R v Momodou [2005] 2 All ER 571, [61] (Judge LJ), quoted in Majinski v The State of Western Australia [2013] WASCA 10, [29]–[36] (references omitted).
454 Re Equiticorp Finance Ltd; Ex parte Brock [No 2] (1992) 27 NSWLR 391, 395. 
455 Law Council of Australia 2024 Commentary (n 1) 99. 
456 HKSAR v Tse Tat Fung [2010] HKCA 156.
 457 R v Sweezey (1987) 39 CCC (3d) 182 (Newfoundland Court of Appeal).
458 Dal Pont (n 8) 600–601. 
459 (2000) 117 A Crim R 541, [19].
460 [2010] WASAT 178, [142].
461 (2005) 62 NSWLR 731.
462 (1939) 13 ALJR 563.
463 [1998] QCA 409.
464 Ibid [4].
465 Ibid.
466 [2009] WASC 39.}

25.1 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:

25.1.1 about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing; and

25.1.2 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.

25.2 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.

One witness at a time

The purpose of rule 25.1 is to avoid the risk of evidence being contaminated through collusion.⁴⁶⁷ Several recent cases illustrate the nature of the rule and the consequences of its breach:

• Legal Profession Complaints Committee v Caine found that witnesses should give evidence which is ‘the product of their own independent knowledge and recollection unaffected by the views or evidence of others’.⁴⁶⁸ In this case the solicitor was found guilty of unsatisfactory professional conduct by encouraging a witness to confer with others to harmonise their evidence.
• In Day v Perisher Blue, the court expressed concern that 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.⁴⁶⁹ The court may set aside the verdict and judgment and order a new trial. In this case, the judgment and appeal papers were ultimately referred to the Legal Services Commissioner.⁴⁷⁰
• 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’.⁴⁷¹ In Legal Services Commissioner v Hansen,⁴⁷² 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’.⁴⁷³

For the same reason, a witness ought not to be shown another witness’s statement, although specific elements may be put to them for comment.⁴⁷⁴ 

Exceptions

Rule 25.2 provides an exception to provide that 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.

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 in accordance with the process of that conclave.

467. Dal Pont (n 8) 599.
468. [2010] WASAT 178, [143].
469. (2005) 62 NSWLR 731, [30]. 
470. Day v Perisher Blue Pty Ltd [No 2] [2005] NSWCA 125, [35], [37].
471. Legal Services Commissioner v Hansen [2008] LPT 7, [26].
472. [2008] LPT 7. 
473. Ibid [23].
474. Kylie Downes, ‘Witness Wisdom’ (2012) 32(11) Proctor 6.

26.1 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:

26.1.1 the cross-examiner has consented beforehand to the solicitor doing so; or

26.1.2 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.

Under cross-examination

Rule 26 is breached only if the communication occurs while the cross-examination is in progress.

In R v Shepherd,⁴⁷⁵ the prosecutor consulted with the complainant for an hour after cross-examination was adjourned. This was found to be highly irregular conduct but in the circumstances of that case did not lead to the possibility of a miscarriage of justice.

475. [2001] 1 NZLR 161, [17].

27.1 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.

27.2 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.

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 constitutes ‘material’ evidence. In Mitchell v Burrell, Brereton J in a 2008 case pre-dating the ASCR saw the rule as one supporting the general duty to avoid a conflict of interest (see now 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.⁴⁷⁶

Justice Brereton noted that there is no default presumption that a solicitor must be restrained from continuing to act for a client where the solicitor is a material witness, even if the matter is controversial. Case law indicates that there are circumstances in which an instructing solicitor may also give evidence as a witness. For example, in Scallan v Scallan,⁴⁷⁷ Windeyer J 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.⁴⁷⁸ 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 and to give evidence in those proceedings.

While there is no presumption against a solicitor continuing to represent a client when they witness a document such as an enduring power of attorney, solicitors should take care to avoid conflicts between duties to the client and duties to the court. For example, in Re MV the solicitors witnessed enduring powers of attorney and also represented the principal, and then had to appear before the Guardianship tribunal to give evidence in relation to the execution of the document.⁴⁷⁹ This case cautions solicitors risking conflicting duties. In Chapman v Rogers; ex parte Chapman, Rogers CJ observed that 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.⁴⁸⁰

Rule 27 applies to ‘material’ issues. Matters in which a solicitor is to give evidence on uncontested issues or matters of formality will not normally be considered ‘material’ for the purposes of the rule.

Solicitor, associate or law practice can nonetheless continue to act if no prejudice to justice

The Law Council of Australia 2024 Commentary provides the following guidance on rule 27.2:⁴⁸¹

Rule 27.2 deals with the question of whether or not an associate of a solicitor or the solicitor’s law practice may continue to act for the client where a solicitor representing a client is, or is likely to become, a material witness in the client’s case. Rule 27.2 requires the solicitor to carefully consider whether or not it is desirable that the solicitor should continue to act. The reason for this is that the solicitor would be in a position of apparent conflict between the duty to advance the interests of the client and the duty to the court to give impartial evidence⁴⁸² which may prejudice the administration of justice.⁴⁸³

The test to be applied in determining whether continuing to act would prejudice the administration of justice is an objective one.⁴⁸⁴ The question is whether a fair minded and reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitor should be prevented from continuing to act for the client, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

In making its determination on whether continuing to act would prejudice the administration of justice, a court must balance this apparent conflict of duties with other considerations affecting the due administration of justice, such as:

• due weight being given to the public interest in a litigant not being deprived of the solicitor of their choice without due cause; and
• the timing of the application, which may be relevant, in that the cost, inconvenience or impracticability of requiring a solicitor or law practice to cease to act may provide a reason for refusing to grant relief.⁴⁸⁵

The jurisdiction of a court to exercise its power to restrain a solicitor or law practice from acting is exceptional and is exercised with caution.⁴⁸⁶

476. [2008] NSWSC 772, [20].
477. [2001] NSWSC 1078.
478. Ibid [11].
479. Re MV [2005] QGAAT 46.
480. Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542, 545.
481. Law Council of Australia 2024 Commentary (n 1) 103.
482. D A Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 (January) Law Quarterly Review 63, 92.
483. See, eg, Paino v MDN Mortgages Pty Ltd [2009] NSWSC 898.
484. UTi (Aust) Pty Ltd v Partners of Piper Alderman [2008] NSWSC 219, [46]–[52].
485. Bufalo Corporation Pty Ltd v Lendlease Primelife Ltd [2010] VSC 672, [9].
486. Kallinicos v Hunt (2005) 64 NSWLR 561, [76].

28.1 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.

Publication

Publication of material concerning current proceedings could lead to the disclosure of confidential information⁴⁸⁷ and other information that may prejudice a fair trial.⁴⁸⁸ The rule is not limited to media publication.

In Legal Services Commissioner v Orchard,⁴⁸⁹ material was sent to the employer of a party to proceedings. In that case, the Tribunal said that the rule:

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.⁴⁹⁰

For Queensland practitioners, see Guidance Statement No. 32 – Solicitors commenting to the media.⁴⁹¹

487. See above page 30 for rule 9 commentary about confidentiality.
488. See also MG v R (2007) 69 NSWLR 20 for consideration of r 59 of the former New South Wales barristers’ conduct rule on media statements which was similar to r 28 of the ASCR. 
489. [2012] QCAT 583.
490. Legal Services Commissioner v Orchard [2012] QCAT 583, [21].
491. Queensland Law Society, Solicitors commenting to the media (Guidance Statement No. 32, 14 October 2022).

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29.1 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. 

29.2 A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.

29.3 A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.

29.4 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.

29.5 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.

29.6 A prosecutor who has decided not to disclose material to the opponent under Rule 29.5 must consider whether:

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

29.6.2 the accused should be faced only with a lesser charge to which such material would not be so relevant.

29.7 A prosecutor must call as part of the prosecution’s case all witnesses:

29.7.1whose testimony is admissible and necessary for the presentation of all of the relevant circumstances;

29.7.1 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.

29.8 A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully obtained must promptly:

29.8.1 inform the opponent if the prosecutor intends to use the material; and

29.8.2 make available to the opponent a copy of the material if it is in documentary form.

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

29.10 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.

29.11 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.

29.12 A prosecutor:

29.12.1 must correct any error made by the opponent in address on sentence;

29.12.2 must inform the court of any relevant authority or legislation bearing on the appropriate sentence;

29.12.3 must assist the court to avoid appealable error on the issue of sentence;

29.12.4 may submit that a custodial or non-custodial sentence is appropriate; and

29.12.5 may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant decisions.

29.13 A solicitor who appears as counsel assisting an inquisitorial body such as the Crime and Corruption 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.

Duty of prosecutorial fairness

Prosecutors must fairly assist the court to arrive at the truth and to enable the law to be properly applied to the facts. Rules 29.2–29.4 require them to present a full and firm case, but no more. In Whitehorn v R, Deane J 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.⁴⁹²

The Director of Public Prosecutions of Queensland has Guidelines outlining the duties of prosecutorial fairness.⁴⁹³

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’.⁴⁹⁴ 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’.⁴⁹⁵ Prosecutors are ‘ministers of justice’ and ‘ought not to struggle for a conviction nor be betrayed by feelings of professional rivalry’.⁴⁹⁶

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’.⁴⁹⁷ Whether a retrial is needed because of prejudicial language by the prosecution depends on the facts of the case.⁴⁹⁸ Care must be taken to avoid inflammatory or emotive language in cases such as child sexual abuse.⁴⁹⁹ In R v Livermore,⁵⁰⁰ a sexual assault case, the prosecutor continually described a witness for the accused as an ‘idiot.’⁵⁰¹ The Court held that prosecutor’s use of ridicule towards the witness went beyond fair advocacy, improperly pressuring the jury to dismiss the possibility of consent. This was because as a prosecutor is known to represent the community interests and the state, the jury may form the view that the prosecutor would also consider them ‘idiots’ for accepting the witness’s evidence for the defence.⁵⁰² The submission was ‘insidious’ as it inflamed the jury’s prejudice towards the witness, rather than resorting to ‘balanced and rational argument based upon the evidence in the trial’.⁵⁰³

The rule does not preclude prosecutors addressing the jury with spontaneity or with the occasional flourish:

[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.⁵⁰⁴

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.

Rule 29.6 provides that the decision not to disclose will put the charge itself into question. 

The duty reinforces s 590AB of the Criminal Code 1899 (Qld), 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.⁵⁰⁵

A failure to comply with the duty of disclosure can lead to disciplinary proceedings. In Legal Profession Complaints Committee v Bates,⁵⁰⁶ it was alleged that the solicitor in their former role as a prosecutor had failed to comply with his duty of disclosure in that he failed to disclose what he had been told by an investigating officer that certain injuries did not match a sketch of the wrench purported to have caused the injuries. The Tribunal 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.

Duty to call witnesses

Having disclosed relevant witnesses under rule 29.6, the prosecutor must call them, unless:

• the opponent consents, or
• 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.

In R v Apostilides, the Court stated that ‘[t]he Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown’.⁵⁰⁷ It is ‘not only a lonely responsibility but also a heavy one’.⁵⁰⁸ The trial judge may question the prosecutor to discover the reasons for the decision but cannot adjudicate the sufficiency of those reasons.⁵⁰⁹

In making their decision, the prosecution may consider

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 but a few [factors].⁵¹⁰

For disciplinary cases, a refusal to call a witness is only justified in the circumstances outlined in rule 29.7.

At common law, a conviction will only be set aside if the decision, viewed in the context of the whole trial, caused a miscarriage of justice.⁵¹¹

Both under the rule and at common law, it stands that the fact that the evidence does not help the prosecution is not a reason for the prosecutor to refuse to present it.⁵¹²

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’.⁵¹³ 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 rule 29.12.3) applies ‘whether at trial or on sentencing’.⁵¹⁴ Among the prosecution roles, one is to assist the court by making submissions about ‘the range of sentences… appropriately open’ or even any relevant principles of sentencing.⁵¹⁵ For example, a prosecutor may submit that a custodial or non-custodial sentence is appropriate.⁵¹⁶

Note that rule 29.12.5 was removed from the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 on 1 April 2022 by the Uniform States but retained in Queensland because of ss 3 and 5 of the Penalties and Sentences Act 1992 (Qld). 

492. (1983) 152 CLR 657, 663.
493. Queensland Director of Public Prosecutions, Director of Public Prosecutions guidelines (Guidelines, 30 June 2024). 
494. Croll v McRae (1930) 30 SR (NSW) 137, 143.
495. R v Kennedy (1997) 94 A Crim R 341, 353.
496. R v Lucas [1973] VR 693, 705; R v Puddick (1865) 176 ER 662, 663 (Crompton J); King v R (1986) 161 CLR 423, 426 (Murphy J).
497. R v Day (2000) 115 A Crim R 80, 86. See also rule 21.
498. R v Knuth [1998] QCA 161 (Lee J).
499. R v Day (2000) 115 A Crim R 80. See also R v M [1991] 2 Qd R 68, 82–3 (Cooper J).
500. (2006) 67 NSWLR 659.
501. Ibid [35].
502. Ibid [36]–[38].
503. Ibid [36].
504. R v Day (2000) 115 A Crim R 80, 86–7 (Thomas JA).
505. R v Ulman-Naruniec (2003) 143 A Crim R 531, [136]–[137].
506. [2012] WASAT 150.
507. (1984) 154 CLR 563, 575–6
508. Ibid.
509. Ibid.
510. Richardson v R (1974) 131 CLR 116, 119 (Barwick CJ, McTiernan and Mason JJ).
511. R v Apostilides (1984) 154 CLR 563, 576, cited in Nguyen v The Queen [2020] HCA 23.
512. Seneviratne v R [1936] 3 All ER 36.
513. R v Tait and Bartley (1989) 46 FLR 386, 389.
514. R v S [2007] VSCA 134, [39].
515. R v Casey (1986) 20 A Crim R 191, 196; R v Tait and Bartley (1989) 46 FLR 386, 389.
516. R v Wilton (1981) 28 SASR 362, 368 (King CJ); R v Economedes (1990) 58 A Crim R 466.