1. Introduction

The Office of the Director of Public Prosecutions was established in 1973. (Initially the Office was called the Crown Advocate but in 1986 the name was changed to Director of Public Prosecutions).

The primary function of the Director of Public Prosecutions is to determine whether to institute proceedings on behalf of the State against a person for an offence or a crime on indictment and, if so, conduct those proceedings. The Director is an independent statutory officer but reports to Parliament through the Attorney-General.

The Director acts independently of the government and of political influence. The Director also acts independently of inappropriate or sectional interests in the community and of inappropriate influence by the media. The Director is independent of police and other investigating bodies and agencies.

As Kirby J (as he then was) said in Price v Ferris (1994) 34 NSWLR 704 at 707- 8 the object of having a Director of Public Prosecutions:

…is to ensure a high degree of independence in the vital task of making prosecution decisions and exercising prosecution discretions… the purpose of so acting is to ensure that there is manifest independence in the conduct of the prosecution. It is to avoid the suspicion that important prosecutorial discretions will be exercised otherwise than on neutral grounds. It is to avoid the suspicion, and to answer the occasional allegation, that the prosecution may not be conducted with appropriate vigour…It was to ensure that in certain cases manifest integrity and neutrality were brought to bear upon the prosecutorial decisions that the Act was passed by parliament affording large and important powers to the DPP who, by the Act, was given a very high measure of independence

The Director’s functions are also carried out independently of the courts:

Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial. (per Dawson and McHugh JJ in Maxwell v R (1995) 184 CLR 501)

The Director is assisted in carrying out his functions by the Deputy Director (who acts in his absence), Crown prosecutors and administrative staff employed in the Office.

In 2015 amendments to the Director of Public Prosecutions Act 1973 gave the Director a statutory power to issue guidelines to prosecutors, persons acting on the Director’s behalf, the Commissioner of Police and prosecutorial agencies with regard to prosecutions and the class of prosecutions which are required to be referred to the Director. These guidelines apply only to prosecutors employed by the Office unless it is stated, or clearly implied, that they apply to Tasmania Police or other agencies. In considering appropriate guidelines, it should be remembered the obligations of the Director of Public Prosecutions are no different from those imposed on every prosecutor or prosecuting agency in the common law system

The primary obligation on a prosecutor is one of fairness. Fairness must eventually dictate the discharge of all the functions of a prosecutor. But the question must be asked as to whom these obligations are owed. Obviously a prosecutor must be fair to an accused but that cannot be the sole consideration. There are other parties with legitimate interests who are also entitled to expect a prosecutor to act in a particular way. Sometimes these interests will conflict with those of the accused.

A prosecutor has varying degrees of obligation to the following:

• the court (judge and jury)
• the community
• the accused
• victims
• witnesses
• defence counse

A prosecutor must play his or her part in securing a fair trial for persons accused of criminal offences. A fair trial is one that results in justice being done, i.e. conviction of the guilty as well as acquittal of the innocent. A fair trial may be described also as one where all relevant credible evidence is presented, tested and adjudicated upon according to law. The obligations of the prosecution to the various parties flow from those concepts.

The purpose of these guidelines is to provide a standard by which the Office and its prosecutors will conduct criminal proceedings on behalf of the State to ensure transparency and maintain a consistency of approach. Where necessary, the guidelines also set out the law and the procedure to follow to assist prosecutors in the Office in their work. The purpose of publishing these guidelines is to enable the judiciary, the legal profession, Tasmania Police, victims, accused persons, persons engaged with the criminal justice system and interested members of the public to understand the actions of the Office. They form part of the uniform prosecution policy adopted in 1990 by the Directors of Public Prosecutions of all States and Territories and the Commonwealth of Australia.

These guidelines do not attempt to cover all questions that can arise in the prosecution process and the role of the prosecutor in their determination. It is sufficient to say that throughout a prosecution the prosecutor must conduct himself or herself in a manner which will maintain, promote and defend the interests of justice, for in the final analysis the prosecutor is not a servant of government or individuals: he or she is a servant of justice. At the same time it is important not to lose sight of the fact that prosecutors discharge their responsibilities in an adversarial context. Accordingly, while the case must at all times be presented to the court fairly and justly, the community is entitled to expect that it will also be presented fearlessly, vigorously and skilfully.

In Wood v R [2012] NSWCCA 21, McClennan CJ at common law said at [577] in respect of the role of the prosecutor:

It is a specialised and demanding role, the features of which need to be clearly recognised and understood. It is a role that is not easily assimilated by all legal practitioners schooled in an adversarial environment. It is essential that it be carried out with the confidence of the community in whose name it is performed.

‘It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’ (per Rand J in the Supreme Court of Canada in Boucher v R (1954) 110 CCC 263 at 270)

In this State that role must be discharged in the environment of an adversarial approach to litigation. The observance of those canons of conduct is not incompatible with the adoption of an advocate’s role. The advocacy must be conducted, however, temperately and with restraint. The prosecutor represents the community generally at the trial of an accused person.

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.’ (per Deane J in Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 at 663-664)

Nevertheless, there will be occasions when the prosecutor will be entitled firmly and vigorously to urge the prosecution’s view about a particular issue and to test, and if necessary to attack, that advanced on behalf of an accused’s person or evidence adduced by the defence. Adversarial tactics may need to be employed in one trial that may be out of place in another. A criminal trial is an accusatorial, adversarial procedure and the prosecutor will seek by all proper means provided by that process to secure the conviction of the perpetrator of the crime charged.

(see also Lyons v R (1992) 1 Tas R 193)

These guidelines are published to provide an indication to the community at large of the nature of the task undertaken by the Office of the Director of Public Prosecutions in determining whether or not an indictment should be filed and a prosecution undertaken in the Supreme Court.

Finally, it should be remembered the guidelines published here are just that, they are not rules of law. Although compliance with these guidelines should generally be expected there will be times, for good reason, when they cannot be followed

Daryl Coates SC
Director of Public Prosecutions