Andrew L. Urban
Wielding more power than judges and enjoying professional immunity, some Crown prosecutors fail to act in accordance with the responsibilities that come with that power. Any attempt to improve the legal system should start by enforcing the existing guidelines. That’s up to the prosecutors themselves and judges – but judges can intervene only after misconduct becomes visible.
We don’t need more rules, as Flinders University legal academic Dr Bob Moles points out: “On one occasion when I attended a meeting in parliament concerning the adequacy of medical board inquiries (which we found to be woefully inadequate in the case of our complaint about Dr Manock) I was asked by [then Senator] Nick Xenophon for my view about how the rules or regulations governing their conduct should be changed or improved.
“My reply was to say that the first priority must be to ensure that they act in accordance with the existing provisions – because if they are not obeying the legal requirements at present – there can be no point in enacting new or additional provisions.
“Clearly the same applies to prosecutors, judges and expert witnesses – unless we have ‘fidelity to law’ as our most basic commitment, then the law simply becomes a plaything of the powerful who can change or adapt ‘the rules’ to suit their preferred outcomes.
“Perhaps Evan Whitton was on the right track when he published his series of books about the common law legal system – Serial Liars, The Cartel, Our Corrupt Legal System, Trial by Voodoo.
He took the view that the European inquisitorial system was much less likely to end up with wrongful convictions as I noted on my Evan Whitton webpage.”
Indeed, former High Court judge Michael Kirby has warned that prosecutors possess enormous power because the fairness of the system depends heavily on their professional restraint.
Prosecutors are sometimes described as “ministers of justice” rather than advocates for conviction. Their duties include presenting the case fairly, disclosing exculpatory evidence, avoiding improper arguments, withdrawing charges if the case collapses. But these obligations are largely self-policed through professional ethics.
In Australia, the decision about whether a person is charged, what charges are laid, and whether a prosecution proceeds lies almost entirely with prosecutors. Kirby once also observed that the prosecutor is “the most powerful officer in the criminal justice system” because they determine whether the machinery of the state is deployed against an individual at all. So although judges theoretically “hold the ring” (supervise without involvement) prosecutors can shape the case long before the judge becomes involved.
When a prosecutor breaks the ethical rules by which they are bound and the judge fails to intervene the result is a catastrophic failure of the legal system. The Sue Neill-Fraser murder trial is only one of the most egregious examples of such failure. In short; the prosecutor presented the jury with his unfounded speculation of the murder scenario in his effort to obtain a guilty conviction and the trial judge allowed this without either stopping him or directing the jury to ignore it.
That flies in the face of how the High Court famously described the role of a prosecutor in Whitehorn v The Queen: “The prosecutor’s role is not to obtain a conviction but to assist the court to arrive at the truth.”
Judges are apparently cautious about disciplining prosecutors because of the separation of institutional roles. Prosecutors belong to the executive branch. Appeal courts are considered the main safeguard. Direct judicial intervention can risk appearing biased against one party. Complaints about misconduct are usually handled by the relevant DPP office the legal profession regulator appellate courts. We can see the inbuilt problems here: if the defendant has to rely on the appeal courts, it’s far too late (and not reliable). If the defendant has to rely on the DPP themselves … not only is it too late (post-verdict) but the DPP is the subject of the complaint to start with.
There are a number of well-documented Australian cases where courts later criticised prosecutorial conduct as unethical or improper. What is striking is that judicial intervention during the trial itself is often limited, with the correction occurring only on appeal, as mentioned above.
Australian appellate courts have occasionally delivered blunt criticisms of prosecutors, especially where misconduct risked a miscarriage of justice. But these are all AFTER the trial. For example: In the wrongful conviction of Andrew Mallard, the High Court of Australia condemned the prosecution’s failure to disclose key evidence. The Court said the prosecution had not complied with its duty of disclosure, leading to a fundamentally unfair trial.
The Supreme Court of New South Wales condemned a prosecutor’s jury address for inflammatory rhetoric. The court said the Crown’s address was “a grossly improper address which should never have been made.” The prosecutor had appealed to prejudice, suggested facts not in evidence and used emotive language designed to inflame the jury. The conviction was quashed. Again, this came AFTER the trial.
In reviewing the conviction of Matthew Libke, the High Court criticised aspects of the prosecution’s approach to the jury. The Court said parts of the Crown’s argument were “calculated to prejudice the accused.” The conviction was set aside.
In R v Apostilides, the High Court criticised the Crown’s approach to calling witnesses. The Court emphasised that prosecutors must not manipulate witness selection to disadvantage the defence.
If a prosecutor makes inflammatory remarks or refers to facts not in evidence or shifts the burden of proof, defence counsel should ask the judge to give the jury a corrective instruction. Defendants should feel confident demanding such instruction (through their instructing solicitor) if they recognise such ethical failures and the judge fails to intervene.
I see even earlier problems when the prosecutor relies on a police investigation that is insufficient, and biased. Is there a solid system whereby the prosecutor is expected to ensure a fair and thorough investigation?
Beyond Rules: The Practical Enforcement Gap in Criminal Trials
What sits just beneath the surface of Andrew Urban’s piece and what deserves in my opinion equal attention is not the creation of new rules, but the mechanics of how existing obligations are actually enforced in real time, particularly in the treatment and presentation of witnesses.
It is easy to speak in broad terms about prosecutorial duty, disclosure, and fairness. It is far harder to operationalise those principles in the one place that matters most: in front of a jury, where credibility is currency and perception often eclipses fact.
Take, for example, the issue of inducements. The system presently tolerates a quiet, almost procedural acceptance that witnesses may receive tangible benefits, reduced sentences, immunity arrangements, relocation assistance, or other forms of consideration. Benefits without any consistent or mandatory framework ensuring that a jury fully understands the nature and extent of those benefits.
Disclosure may technically occur, but it is often buried, diluted, or strategically softened. This is not a call for additional regulation; it is a call for clarity. A jury cannot properly assess credibility if it is left to infer motive. If a witness stands to gain, that fact should not merely exist in the background it should be made explicit, unavoidable, and plainly understood. The integrity of the trial depends not on whether such arrangements exist, but on whether they are transparently exposed.
Closely aligned to this is the question of witness reliability, not in the moral sense so often exploited in adversarial theatre, but in the cognitive and psychological sense that is far less visible and far more consequential.
Courts have long accepted the probing of character where it suits a narrative. Yet there remains a curious reluctance to apply the same scrutiny where a witness’s capacity to perceive, recall, or withstand pressure is genuinely in question. It is one thing to challenge a witness’s past; it is another to ensure they are anchored in the present.
There are, undeniably, individuals who, when placed under sustained questioning, drift whether through confusion, suggestion, or a more fundamental disconnect from reality. The system currently has no consistent, pre-emptive mechanism to test for this. Instead, it relies on performance under fire, leaving juries to interpret behaviour they are not equipped to assess.
A practical solution lies not in expanding legal doctrine, but in introducing a neutral, pre-trial filtering process. A standing pool of independent, court-recognised assessors aligned to neither prosecution nor defence. So court-recognised assessors, neither aligned to prosecution nor defence could be engaged where credibility concerns are properly raised. Each side would present a concise written position, and the assessor would evaluate whether the witness meets a baseline threshold of reliability.
Such a mechanism would serve two purposes. It would protect the court from a measure of unreliable testimony before damage is done, and it would deter tactical abuse. If a party raises an objection without substance, there should be consequence financial or procedural. If the concern is justified, the system absorbs the cost. Accountability, in this sense, becomes symmetrical.
Bias, too, remains an under-policed reality. Relationships, personal, financial, or adversarial all are often acknowledged but insufficiently interrogated. An estranged partner, a former associate, a business rival: these are not peripheral details. They are central to how evidence should be weighed. Yet too often, when a case lacks stronger material, such concerns are minimised rather than rigorously excluded. The result is a quiet lowering of the evidentiary bar; not by law, but by necessity. And necessity, in this context, is a dangerous thing.
Finally, there is the uncomfortable category of the “apparently competent” witness. Apparently competent those who, through lack of formal diagnosis, pass unchallenged into the courtroom despite observable deficiencies in comprehension, reasoning, or stability. The absence of a medical label should not be a substitute for functional assessment. Courts deal in reality, not paperwork.
All of this leads back to the central point: the issue is not the absence of rules, but the absence of structured, practical enforcement where it matters most. Qualified immunity, often justified as a protection for honest decision-making, becomes problematic when it shields a lack of diligence. It should operate as a safeguard, not a barrier. When those entrusted with selecting and presenting witnesses do so without adequate care, the consequences should not be theoretical or retrospective, they should be immediate and tangible.
Urban is correct: fidelity to law is the foundation. But fidelity is not a passive state. It requires systems that test, verify, and, where necessary, correct before a verdict is ever reached. Because once the jury has spoken, the damage is no longer procedural; it is personal. And by then, the system is no longer preventing injustice. It is merely documenting it.
We write and debate ideas, but who will put forward this conversation? Where will the birth of change spring from; and when?