Prosecutorial Ethics and Duty of Disclosure

Posted by Barbara Etter APM on 5 July 2013 | 0 Comments

When I was at the criminal lawyers conference in Bali last week (June 2013), SA District Court Judge Sydney Tilmouth referred to what he considered to be an excellent online legal resource. I have now discovered, and subscribed to, the CLE Criminal Lawyers website which has a wealth of useful information. See

Although the site deals primarily with criminal law in NSW, it still has material relevant to other jurisdictions, such as Tasmania. I was particularly taken with a March 2013 paper by Peter Hastings QC on Prosecutorial Ethics and Duty of Disclosure.  See The paper analyses three recent NSW Court of Criminal Appeal decisions on this topic. The decisions are R v Lipton [2011] NSWCCA 247, Wood v R [2012] NSWCCA 21 and Gilham v R [2012] NSWCCA 131.

The paper also looks at the evolution over the last 20 years of an obligation upon the prosecution to disclose all relevant material and considers issues associated with the status of informers in criminal investigations and prosecutions. The paper argues that the principles of fairness applicable to prosecutors upon which the convictions of Wood and Gilham were quashed are not novel, but provide a timely reminder of their importance in the modern trial context.

The paper refers to the statement of Deane J in Whitehorne v The Queen (1983) 152 CLR 657 at pp.663-664:

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 of helping to ensure that the accused's trial is a fair one.

The other leading case referred to is Livermore v The Queen (2006) 67 NSWLR 659 at [31] which identified a number of features of a Crown address, which either alone or in combination, might require censure by an appellate court. They include:

(i) A submission to the jury based upon material which is not in evidence.

(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.

(iii) Comments which belittle or ridicule any part of the accused's case.

(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity or responding to an attack upon credit.

(v) Conveying to the jury the Crown Prosecutor's own opinion.

As an  example, a complaint in Gilham was made concerning the conduct of the Crown Prosecutor in wielding a knife before the jury and in having Gilham demonstrate his dexterity with the knife. The demonstration with the knife was found to  have had no relevance to the issues in the trial and, given the likely consequence that the demonstration would provoke a response adverse to Gilham, the court concluded that it was unfairly prejudicial. The use of the knife during the final address was also said to be without justification and should not have been allowed. Similarly, in Gilham, questions and submissions by the Crown Prosecutor such as her views on dealing with a child with problems and a person's need for "their mum and dad" were considered inflammatory and inappropriate.

While the court in Gilham were critical of the language of the Crown Prosecutor, in some respects it was mild compared with previous examples. In Libke v The Queen (2007) 230 CLR 559, comments by the prosecutor such as "I do not buy that explanation" and "we've heard about that one" and others were described as sarcastic and repeated commentary which went too far and was described by Heyden J as being cross examination of a "wild and uncontrolled and offensive character". In Livermore v R (2006) 67 NSWLR 659, the court considered that the use of the terms such as "idiot" in reference to a witness and "bizarre", "silly" and "reminiscent of a plot worse than an episode of Desperate Housewives" inappropriately conveyed the personal views of counsel.

In relation to disclosure, the paper points out that the law is that a prosecutor is obliged to make available to the defence all material which may prove helpful to the defence. It has become clear that the accused does not have to fossick for information to which he or she is entitled and that in order to constitute unfairness non-disclosure may be inadvertent, and it is immaterial where fault lies; the DPP has to live with it.

The paper also points out that in the Commonwealth DPP Disclosure Policy if material has been withheld from disclosure on public interest grounds the defence should be informed of this and the basis of the claim in general terms. Case law in Lipton would also seem to indicate that a prosecutor is under an obligation to gain access to material held by police over which a claim of public interest immunity is made, in order to determine whether the material should be disclosed or dealt with in some other manner.

The paper points out that there are significant issues concerning the reconciliation of older cases to the effect that public interest immunity applies to informers and with the modern law relating to the duties of a prosecutor to disclose relevant material, call all material witnesses and put all facts before the court.



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