Should prosecutors take the oath?

Andrew L. Urban.

 The truth, the whole truth and nothing but the truth … that’s the oath taken by witnesses in criminal trials. But not by prosecutors. In our adversarial system, the truth can be an incidental benefit to a conviction. 

Last week, another example, when Hannah Quinn, 28, was acquitted on appeal, of being an accessory after the fact to manslaughter after her boyfriend killed a man with a samurai sword in Sydney’s inner west five years ago.

The court of Criminal Appeal found the verdict unreasonable. Chief Justice Bell ordered that Quinn’s conviction be quashed and entered a verdict of acquittal.

Quinn’s solicitor Lauren MacDougall told the Sydney Morning Herald the prosecution case at trial was that her client was “dishonest” when she said a gun had been pointed at her. “The Court of Criminal Appeal reviewed the evidence from the trial and determined that the other evidence did not necessarily undermine her version of what happened,” MacDougall said.

But this is by no means an example of the worst excesses of Crown prosecutors. I don’t mean to smear them all with the same accusatory brush. She was Deputy Senior Crown Prosecutor in NSW when I took Margaret Cunneen SC to lunch to persuade her to work with me on a book about her stellar career (Boxing Butterfly, Wilkinson Publishing).

Former prosecutor Tony Jacobs was Principal Crown Counsel & a Crown Law Officer for over 30 years before he sliced open the trial of Sue Neill-Fraser to reveal errors worthy of being labelled an egregious miscarriage of justice. His analysis is included in my latest book, The Exoneration Papers – Sue Neill-Fraser (Wilkinson).

These are but two (former) prosecutors I’ve come across in the course of writing about wrongful convictions, who are model litigants. I’m not totally blinded by bias against prosecutors…but I am weary. It is implied in the guidelines for prosecutors that they tell the truth, but perhaps could it be usefully emphasised if they also took the oath?

Many of the cases explored in this blog show evidence of prosecutors veering away from their sworn duty to deliver justice, not convictions. Outstanding are the cases of Robert Xie, Sue Neill-Fraser and Bruce Lehrmann – who was denied a trial to establish his innocence by the process driven by the DPP of the ACT, Shane Drumgold. The inquiry into the matter resulted in its chair Walter Sofronoff delivering a scathing report about the DPP’s failures.

Among others, also of deep concern is the case of Robert Farquharson, convicted of murdering his young boys, a tragedy supercharged by a prosecution that failed to find the truth even when it was staring it in the face. Chris Brook’s scientifically rigorous book, Road to Damnation, is the result of a two year investigation into the case, revealing how nothing in the Crown case withstands scrutiny.

For the past six months I’ve been researching the case of Noel Greenaway, convicted of historic child sex abuse nearly half a century earlier, thanks to the zeal of the police and the say-so of the claimants – with no corroborative evidence. See here for a preliminary report.

As we reported earlier this month, Sydney human rights barrister Felicity Graham, who specialises in police and government accountability and hosts The Wigs podcast, ran a survey in late July, 2023, at the Legal Aid NSW Criminal Law Conference, which comprised mostly experienced criminal lawyers and “a handful” of prosecutors and barristers, asking: in criminal proceedings in NSW, how frequently does the prosecution fail to comply with its duty of disclosure?

Of the lawyers there, 93 per cent said the prosecution failed to comply with its disclosure obligations in NSW either routinely or frequently. Only 6 per cent said it was ­occasionally or rarely and 1 per cent said not sure.




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9 Responses to Should prosecutors take the oath?

  1. Ted says:

    Peter – The ccrc observer sitting down the back on the cold hard seat-might slowly start to smoke from the ears – Could this observer send both the dpp and the judge to the sin bin?
    After all- both the little dears are jointly cooking some poor little victims goose- eg. Sue Neil-Fraser . Every persecuting court in south australia knew Manock was not qualified – The political attorney generals and other little darlings knew for 10 years of this south australian government fraud – 40 years later and Derek Bromley is still in prison – Are the little darlings considering an appology to Ray Bailey’s family – no ! The south australian government courts murdered their daddy- little innocent Ray- dangled him with a south australian goverment rope- using a tortured confession (written and rewritten) -achieved by the famous highly regarded (by themselves) queensland criminal police force defective hallahan (a rat pack member) – I was driving trucks in central australia in 1959 era – it was common knowledge that that Ray Bailey was innocent – The police were held in a pretty low regard by many decent ordinary citizens who later knew Lindy Chamberlain’s conviction was also the work of the scurrilous police and dpp swine – Would it not be criminal negligence for a forensics genius to inform a jury – holden paint is babies blood-sprayed around the interior of the famous car – The west australian police commisioner who achieved the death sentence for Darryl Beamish- using a well known torture technique – was furious Darryl wasn’t strung up – all that work to write and rewrite that confession- make it suitable to fool a gullible jury . Was the defective under oath- that oath means nothing to the police scoundrels ?

  2. Father Ted Whalensky says:

    Andrew – Strange that Policeymens Commissioners are in no way obliged “To speak the truth” to the mug punters – We Poor Little Lambs . A Previous Queensland Police Commissioner had to leave the state – death threats from his collegial brethren. Pack of Organised Criminals. One of Australia’s top defectives had to “take the waters” in Switzerland? Fear of other Policeymens. (Southern Justice) Speak the truth ! There is no evidence whatsoever that Stacy Train was lying on the ground wounded “firing with the best of them”- There is actually evidence of she being not armed – Police Helicopter spotter recorded voice communication – Poor stacy was what we called “collateral” in Nam- Euphemism for incompetent killing -Four armed Police in Two Cars motored to Wieambilla with an Arrest Warrant – Crossing the Queensland Border without a Permit – (Covid) Missing Person Enquiry – a stupid lie ! Lying on the ground wounded firing with the best of them – That’s would be – in a different context- VC Material . Unfortunately is the usual Blue Rag Bullshit .

    • andrew says:

      Moderator’s comment to Father Ted Whalensky: please re-read your comments carefully before posting to ensure that punctuation, sentence clarity etc ensures that your post is clearly expressed. Also suggest you reduce your use of capitalised letters to make your post more readable. Thanks.

  3. Peter Gill says:

    I think prosecutors should be under oath.

    I also think that the high standards applied at sports such as Rugby league could be applied to court cases too. Judges could send prosecutors to the sin bin. Their deputy could fill in for a while.

    Andrew – is the word “persecutors” in the middle of your article a typo, or deliberate?

  4. John S says:

    Great idea, but sadly can’t see it happening without the right levers being pulled.

    Wouldn’t think all prosecutors would be on board with it, reckon many would sooner be quitting!

  5. FATHER TED says:

    The Outpourings of a Sanctimonious Git. To be fair- have sat beside a Codger driving in a complete trance – eyes open – but oblivious – Not apnoea – Something else .Us humans can do some things – eg. sorting multi digit account files while off on a tropical Island – In my codgers case – I think it was extreme extreme fatigue ! We all know one shouldn’t drive when fatigued- SO one is still liable – a possible explanation – doesn’t even begin to excuse most Wrongful Convictions – deliberate dishonest bastardary !

  6. Robert Greenshields says:

    The quip ascertained to probably the most successful of our nations earliest Governors Lachlan Macquarie, the NSW Governor from 1810 to 1821, a distinct leader who granted just shy of 2000 absolute and conditional pardons, along with another couple of thousand “tickets of leave”, would sit more than comfortably within communities across much of Australia today. “That there were two classes of individuals in that country, those who had been transported and those who ought to have been”.
    Over two hundred years down the track and there is still those within our population who desire to maintain the bludgeoning colonial status quo regarding policing, judicial administration and practices, and perceived positions of prominence, are still as centric valued and guilty and greedy as was John Macarthur and his cringe worthy ally of that era, Major Johnston.

    • Ted says:

      My Bloody Oath they should ! More importantly- they should NOT EVER read a Spanner Laced Screenplay to a Jury – Just the Truth- Nothing but the Truth – None of this –
      Authentication of a novella by Flexable Forensics – a Screenplay is a Fiction – so may be the Forensics- Like sleep apnoea when blotto – DNA on your boots – not to mention bloody dinghies on the Derwent .

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