4. Prosecutors’ duties

4.1 Duties in general

Prosecutors shall at all times:

• maintain the honour and dignity of their profession
• conduct themselves professionally, in accordance with the law
• exercise the highest standards of integrity and care
• keep themselves well informed and abreast of relevant legal developments
• strive to be, and be seen to be, consistent, independent and impartial
• protect an accused person's right to a fair trial and, in particular, ensure that evidence favourable to the accused is disclosed in accordance with the law or the requirements of a fair trial. Where, in rare circumstances, there is evidence that should not be disclosed to an accused, that is favourable to an accused, for lawful reasons such as public interest immunity (s130 of the Evidence Act 2001) the Director must be informed in order to determine whether the evidence will be disclosed, or whether the fact that material is being withheld from the accused and the reasons for that will be disclosed and, finally, the public interest in continuing with the prosecution in light of the undisclosed evidence (see 21. Disclosure).
• serve and protect the public interest (see Prosecution guidelines on the discretion to prosecute)
• maintain professional confidentiality

The use of prosecutorial discretion should be exercised independently and be free from interference, political or otherwise. Prosecutors shall perform their duties without fear, favour or prejudice. In particular, they shall:

• carry out their functions impartially
• remain unaffected by individual or sectional interests and public or media pressures and have regard only to the public interest
• act with objectivity
• have regard to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the accused

At all times prosecutors' duties are to the court and they must not deceive or recklessly mislead the court.

4.2 Duties in the trial process

Prosecutors are to present the case against an accused person fairly and honestly and to seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

Prosecutors must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case. Of course, the manner in which a prosecution is conducted will often depend on the nature and character of the case.

Prosecutors must not, by language or other conduct, seek to inflame or bias the court against the accused (see McCullough v R [1982] Tas R 43). However, prosecutors are not obliged to “pander to the idiosyncratic or hypercritical sensibilities of defence counsel”. Prosecutors “are not required to reduce their rhetoric to dull and lifeless factual propositions. They are advocates, albeit their role is special in that they should not fight for a conviction at all costs”. (see Lyons v R (1992) 1 Tas R 193 per Wright J at 199).

Prosecutors should only exercise the right to stand a juror aside, pursuant to s34 of the Juries Act 2003, if there is a reasonable cause to do so. This right should never be exercised in an attempt to select a jury that is not representative of the community as to age, sex, ethnic origin, religious belief, marital status, economic, cultural or social background, nor should a juror be stood aside merely because he or she has been on a jury that acquitted an accused person. Please note, in certain circumstances, prosecutors may be required to show cause as to why a juror has been stood aside (see s34(4) of the Juries Act 2003).

Prosecutors who have reasonable grounds to believe that certain material available to the prosecution may have been unlawfully or improperly obtained must promptly:

• inform the defence if they intend to use the material
• make available to the defence a copy of the material if it is in documentary form
• inform the defence of the grounds for believing that such material was unlawfully or improperly obtained

Prosecutors must not confer with, or interview, an accused except in the presence of the accused’s representative.

In cases where an accused is unrepresented, prosecutors should not communicate with the accused other than in the presence of a third party. Conversations should be noted. Prosecutors must not advise an unrepresented accused on legal issues or the general conduct of the defence. In the event that there is evidence the prosecutor intends to lead that is arguably inadmissible this should be raised with the trial judge prior to the evidence being called.

All materials and witness statements must be provided in the usual manner and the accused should acknowledge receipt in writing. Telephone communications should be kept to a minimum and recorded in writing immediately. The notes should be kept on the file. In the event of a trial, the witnesses should be advised that the accused is unrepresented and informed of the procedures that will be adopted in the court.

Prosecutors must not inform the court or the defence that the prosecution has evidence supporting an aspect of its case unless they believe on reasonable grounds that such evidence will be available from material already available to them.

Prosecutors who have informed the court of matters referred to in the paragraph above, and who later learn that such evidence will not be available, must immediately inform the defence of that fact and must inform the court of it when the case is next before the court.

Prosecutors have a duty to call all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, unless they form the view that the interests of justice would be prejudiced rather than served by calling a witness. The fact that a witness will give an account inconsistent with the prosecution case is not sufficient reason for not calling that witness. In those circumstances, a witness should only not be called where there is clear, objective material that all admissible accounts by that witness lack any credibility (see R v Ashton, Farmer & Randall [2003] TASSC 140 at [29]). Where a prosecutor decides not to call a witness in these circumstances, the reasons should be recorded in writing and placed on the file. Without limiting the circumstances where a witness will not be called, they may include where an issue is not in dispute and other witnesses have already given evidence regarding that issue, the failure to call a witness is consented to by counsel for the accused, or where a witness is unavailable. Other considerations may include the physical and mental health of a witness. Where possible when a decision has been made not to call a witness that witness should be made available to the defence.

Prosecutors must not coach a witness prior to them giving evidence, in that they should not direct them as to what they should say. However, it is perfectly proper to ask a witness what their evidence would be on a point. It is also proper to point out any inconsistencies or prior inconsistent statements and request an explanation but care should be taken not to suggest answers to a witness.

Prosecutors must fairly conduct the cross-examination of an accused as to credit. Material put to an accused must be considered on reasonable grounds to be accurate and its use justified in the circumstances of the trial.

Prosecutors have a duty to acquaint the judge and jury in ordinary language with those aspects of an expert’s discipline and methods necessary to put the court in a position to make an evaluation of the opinion that the expert expresses, to demonstrate the scientific reliability of the opinion expressed, and to strip forensic evidence of its mystery so far as is possible.

An accused person cannot be put on trial unless a Crown Law Officer forms the view that on the available relevant and admissible evidence there is a reasonable prospect of conviction. If at any stage during a trial a prosecutor forms the view that there may no longer be a reasonable prospect of conviction, e.g. due to loss of evidence or new evidence becoming available, he or she must consult with the Director, or in his absence the Deputy Director, as to whether the trial should continue.

4.3 Duties in the sentencing process

Prosecutors shall present the facts in a fair and balanced way, identifying relevant aggravating and mitigating factors where appropriate.

Prosecutors should provide victims, as defined by the Sentencing Act 1997, with the opportunity to submit, provide and/or read a victim impact statement (VIS). All statements should comply with the VIS guidelines (see Witness Assistance Service).

Prosecutors should refer the sentencing judge to any relevant legislation, authorities or sentencing principles applicable to the particular case, including (where necessary) the appropriateness of different types of sentences or the general range of sentences (if any) for a particular type of crime (s 80(2) of the Sentencing Act 1997). Care should be taken not to suggest a particular sentencing range within which the court could sentence an individual before it in the exercise of its discretion (see Barbaro & Zirilli v R [2014] HCA 2).

Where an accused person relies on expert evidence, e.g. psychiatric evidence, the prosecutor should scrutinise it with care and where appropriate challenge the report as to the adequacy of the material contained in it or its conclusions (see DPP v O’Neill [2015] VSCA 325 at [8]).