Andrew L. Urban
Prosecutors in the room described the speech as “the ethical reset we all needed”. They refer to Wayne Martin AC KC’s keynote speech “The Prosecutor’s Duty and the Prosecutor’s Conscience at the Australian Association of Crown Prosecutors Conference, Darwin, 8 Aug. 2024.
Former Senior Crown Prosecutor Mark Tedeschi KC was admonished by Justice Elizabeth Fullerton for “straining impermissibly for a conviction” in his prosecution of Gordon Wood. Wrongful convictions should be “a prosecutor’s worst nightmare,” according to Margaret Cunneen SC.
If that is true, we have learnt through several cases that there are some prosecutors who should be having nightmares. Cunneen was herself NSW Deputy Senior Crown Prosecutor before retiring and setting up in chambers as successful defence counsel. (See The Boxing Butterfly by Urban & Cunneen, Wilkinson Publishing).
Wayne Martin AC KC is former Chief Justice of Western Australia. For the benefit of those prosecutors who missed it (or ignore its content), here are the 10 key points from his keynote speech, in order :
- You are not the punisher “The prosecutor is a minister of justice, not an avenger. Your job is to help the court arrive at the truth, not to secure a conviction at all costs.”
- The conscience test Before every decision ask: “If this accused were my child, would I still think this charge/evidence/tactic is fair?” If the answer is no, stop.
- Conviction integrity trumps win-rate “A 100% conviction rate is not a badge of honour; it is a red flag that you may be over-charging, under-disclosing, or both.”
- Disclosure is non-negotiable Even material that obliterates your case must be handed over immediately. Delay = ethical breach. He quoted Lord Judge: “Late disclosure is worse than non-disclosure because it misleads.”
- Plea offers must be morally defensible Never pressure an accused into pleading guilty to something they didn’t do just to clear a backlog. “A plea extracted by fear is no plea at all.”
- The “oddball” witness If the only thing standing between an accused and a life sentence is a drug-addicted sex-worker with three personalities — you still call her. Suppressing inconvenient truth corrodes your soul and the system.
- Victim pressure is real but irrelevant “Victims want justice, not vengeance. If you confuse the two, you betray both the victim and the rule of law.”
- The Gilham principle is alive Cited R v Gilham (2016) where the NSW DPP stayed murder charges after fresh evidence emerged. Martin: “That decision took more courage than 100 guilty verdicts.”
- Personal cost of getting it wrong He read the suicide note of a prosecutor who had withheld exculpatory DNA results. The room went silent. Message: a stained conscience can kill you.
- Final line (standing ovation moment) “When you walk out of court after a not-guilty verdict, if your first thought is ‘we lost’, you have already lost something far more important than the case.”
The 2025 Conference was held on 10 July, 2025 in Melbourne. The opening address was given by the Hon Chief Justice Niall of Victoria, saying “This morning I will speak about justice in the regions.”
No details are available for the 2026 Conference.
Andrew and g. churchill. Seems amazing that these characters have risen to the glorious level of crown prosecutor – yet need to attend a lecture on proper ethical behaviour!
The first step would have been – to not accept a tax payer funded junket to Darwin in August !
(heat/malarial mosquitoes) And with him/her indoors in tow ..cheap hotel..and flying cattle class too ! Like infering that a blonde can’t change a light bulb – or Pope URBAN needing further bible studies..
Very good article, but the Gilham appeal was heard in late 2011 with the write up in 2012 not 2016, ref https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCCA/2012/131.html?context=1;query=Gilham;mask_path=au/cases/nsw/NSWCCA.
I sat next to Jeff Gilham’s wife at the Gordon Wood appeal hearing in 2011. She told me that she thought Jeff and Gordon might well be the only two innocent people in Goulburn jail. It’s to the credit of the Chief Judge at both appeals – Peter McClellan – that both the Gilham and Wood appeals were correctly upheld. Both had their first trial prosecuted by the almost invincible Mark Tedeschi.
Later, I met Gordon Wood at a Wrongful Convictions seminar run by Flinders Uni and Bob Moles in Adelaide in 2014, and then I first met Jeff at a wrongful convictions evening at Sydney Uni Law School a couple of years later. One of my current wishes is that someone with time to spare (thus, not me) contacts David Hamer, Jason Chin et al at Sydney Uni Law School nowadays to try to get more get-togethers at Sydney Uni Law School with people like Andrew Urban, Michael Kirby et al as a starting point to get NSW back on track towards a CCRC and other much-needed reforms such as improving how expert evidence is handled in NSW (in criminal cases in NSW I mean, because Peter McClellan’s good ideas in this area have (I think) been brought in only for civil trials in NSW), By the way, Peter McClellan’s reward after handling the Gilham and Wood appeals so well – each appeal having some unique features – was to head up the infamous successful Royal Commission into Sexual Abuse in the Catholic Church and elsewhere. Peter McClellan’s latest effort is a 800 page Report into how Dilwynia jail handled the sexual abuse of Keli Lane (an innocent woman still in jail who was prosecuted by Tedeschi) and many others by a guard named Wayne Astill, ref https://www.nsw.gov.au/departments-and-agencies/the-cabinet-office/resources/special-commissions-of-inquiry/astill . My point is that there are good people like Peter McClellan on the other side of the fence from us outsiders, but he’s kept very busy doing good things.
My wife and I are the victims of false claims , police corruption and prosecutorial misconduct. We are now the survivors of such a miscarriage of Justice , and wondering just how long we’ll survive. I can prove all I say now , but no one opens the door.
My faith in my family and a few friends and my faith in God , in spite of all the pain , has not diminished. Even that I cannot understand !!!
Pv
You might mention Pv case Andrew.
You once called it a perfect storm of injustice , incompetence and self protection by our
Courts and courts of appeal. How can anyone be found guilty with nothing more than hearsay. I was as you know. !
Andrew. Might be a trifle macabre ? But – Who was the police prosecutor who committed suicide after knowingly doing over an innocent citizen ?
With the flexible forensics and the other diabolical tactics very commonly used in “our” readings of your wrongful convictions report – why are harakiri screams not more commonly heard..?
Those involved in the South Australian State murder of Ray Bailey will not even apologise – much less carry out ritual disembowellment…the death penalty imposed on Darryl Beamish wasn’t later followed by grovelling shame – Michael Chamberlain likewise…
Absolutely as expected from that mob of chunts.
Andrew I write this in support of your article The “ethical reset needed” for prosecutors
“Justice Before Victory: Rethinking the Culture of Prosecution in Australia”
By Steven Fennell
When former Chief Justice of Western Australia, Wayne Martin AC KC, stood before a room of prosecutors in Darwin last year and delivered what many described as “the ethical reset we all needed,” he was not just offering professional guidance. He was issuing a moral call to arms.
His ten-point keynote, The Prosecutor’s Duty and the Prosecutor’s Conscience, stripped away the comforting myths surrounding the role of the Crown and forced an uncomfortable truth into the open: Australia’s prosecutorial culture is drifting away from justice, and too often towards conviction at all costs.
Andrew L. Urban, in his article “The Ethical Reset Needed for Prosecutors” (November 2025), echoes this call with urgency and clarity. Urban’s writing is neither anti-law nor anti-prosecution; it is pro-justice. He points to the uncomfortable pattern emerging across jurisdictions — a pattern where disclosure failures, performance-driven prosecutions, and the pressure to “win” have too often led to wrongful convictions and public distrust.
If Martin’s speech was the conscience of the courtroom, Urban’s commentary is its echo chamber — amplifying the reminder that the prosecutor is not an avenger but a minister of justice. The ethical reset they both call for is not an optional seminar topic; it is an existential necessity for the integrity of Australia’s criminal justice system.
The Prosecutor’s True Role: Minister of Justice, Not Punisher
Wayne Martin’s first principle — that prosecutors are not punishers — cuts against a pervasive cultural current. In a legal environment increasingly driven by metrics, media narratives, and internal “win rates,” many prosecutors have come to equate success with conviction. Yet, as Martin noted, “The prosecutor’s job is to help the court arrive at the truth, not to secure a conviction at all costs.”
The phrase “minister of justice” should not be an archaic formality; it should define every prosecutorial act. A conviction obtained through omission or manipulation is not a triumph of justice — it’s a betrayal of it. The public is rarely aware that prosecutors hold an extraordinary asymmetry of power. They control disclosure, the framing of charges, and often the narrative that reaches a jury. That power demands humility, not hubris.
The Conscience Test — Justice as a Personal Responsibility
Martin’s “conscience test” — “If this accused were my child, would I still think this charge, evidence, or tactic is fair?” — transforms an abstract duty into a personal one. It reminds prosecutors that their ethical obligations do not stop at the courtroom door. The true measure of fairness is not procedural compliance, but moral integrity.
For too long, prosecutorial culture has insulated itself from empathy. When human consequences are reduced to case files, the temptation to rationalise harsh or unfair decisions grows. A justice system that forgets compassion breeds its own cruelty.
Conviction Integrity Over Win Rates.
Martin’s third point — “A 100% conviction rate is not a badge of honour; it is a red flag” — strikes at the heart of Australia’s institutional problem. Prosecutorial performance is often assessed by outcomes rather than ethics. Internally, “win rates” are celebrated. Publicly, media outlets report verdicts as if they were sporting results. Politicians reward toughness rather than truthfulness.
The result is a quiet corrosion of purpose. When prosecutors begin to see acquittals as losses rather than as proof that the system works, justice itself becomes collateral damage.
Disclosure Failures — The Achilles’ Heel of Justice
Martin was uncompromising on disclosure: “Even material that obliterates your case must be handed over immediately. Delay equals ethical breach.” This point cannot be overstated. Disclosure failures are not clerical oversights — they are ethical violations with life-altering consequences.
Few Australian cases illustrate this more starkly than the prosecution of Sue Neill-Fraser in Tasmania. Convicted in 2010 for the alleged murder of her partner, Bob Chappell, her case has since become emblematic of prosecutorial and investigative failure. Evidence was withheld, expert opinions were selectively framed, and alternative hypotheses were dismissed.
Urban and other commentators have documented how a “win first” mentality overwhelmed the duty of fairness.
Regardless of one’s view of Neill-Fraser’s guilt or innocence, the case demonstrates a system allergic to admitting error. When exculpatory material surfaces late or is downplayed, the prosecutor’s role mutates from seeker of truth to protector of narrative. That shift corrodes public confidence and, as Martin warned, stains the conscience.
The Pressure to Plead — When Efficiency Becomes Coercion
Martin’s warning that “a plea extracted by fear is no plea at all” should resonate deeply. Australia’s clogged courts and chronic underfunding have created fertile ground for coercive plea bargaining. Prosecutors, often under pressure to reduce caseloads, may offer plea deals that present accused persons with an impossible choice: plead guilty to a lesser charge, or risk a devastating sentence if they dare to defend themselves.
This utilitarian efficiency masks moral failure. Justice rushed is justice denied , and when the prosecutor’s duty is subordinated to administrative convenience, the system ceases to serve truth.
Systemic Forces Behind Prosecutorial Overreach
Urban is right to argue that an ethical reset cannot occur in isolation; the culture must change systemically. Prosecutors do not operate in a vacuum; they are shaped by institutional incentives that quietly reward conviction and discourage reflection.
1. Performance Metrics – Internal reviews often focus on conviction rates, creating subconscious pressure to avoid losing cases, even when the evidence is weak.
2. Media Influence – Prosecutors, especially in high-profile cases, face public scrutiny that rewards dramatic narratives over due process. The “tough on crime” image plays well on evening news but corrodes impartial judgment.
3. Political Pressure – Elected officials, reliant on public perception of law and order, subtly signal to prosecution services that leniency equals weakness. This breeds an adversarial mindset inconsistent with the “minister of justice” role.
4. Institutional Inertia – The fear of reputational damage discourages offices from admitting mistakes. Wrongful conviction reviews remain rare and slow, reinforcing a culture of defensive denial rather than self-correction.
Until these systemic currents are reversed, individual conscience alone cannot carry the load.
The Courage to Admit Error — The Gilham Principle
Martin’s reference to the Gilham case, in which the NSW DPP courageously stayed charges after new evidence emerged, highlights the kind of institutional bravery that must be normalised, not exceptional. Admitting error should be seen as ethical strength, not weakness. Yet, such acts remain rare precisely because career incentives punish humility. The prosecutor who reopens a conviction risks political embarrassment and professional backlash. The culture must evolve so that integrity, not infallibility, defines professional honour.
Victims, Vengeance, and the Rule of Law.
Another of Martin’s vital reminders is that “victims want justice, not vengeance.” The modern prosecution narrative, however, too often conflates the two. Victim advocacy is crucial, but justice cannot be contingent upon emotion. When prosecutors align themselves with vengeance rather than impartiality, they cease to represent the public interest.
True justice demands distance, not indifference, but principled restraint. A prosecutor who becomes emotionally invested in “winning for the victim” risks Weaponising empathy against fairness.
The Human Cost of Ethical Failure
Martin’s ninth point — the suicide of a prosecutor haunted by withheld evidence — is perhaps the most haunting of all. Ethical breaches are not just professional missteps; they inflict spiritual injury. The internal dissonance between one’s public duty and private conscience can become unbearable.
If the system continues to value results over righteousness, we may see more careers — and lives — destroyed by that dissonance. The ethical reset Martin and Urban call for is as much about saving the soul of the justice system as it is about protecting the innocent.
A New Ethic for the Crown
An ethical reset must begin with education and transparency. Prosecutors should receive mandatory training in ethical decision-making, not merely legal compliance. Disclosure failures should trigger disciplinary review, not quiet correction. Internal culture should reward those who speak up when cases lack integrity. Moreover, wrongful conviction inquiries — like those surrounding Sue Neill-Fraser — must become vehicles for systemic learning, not institutional defensiveness.
Every proven miscarriage of justice should trigger a national conversation about what went wrong and how to prevent recurrence.
Losing Rightly
Perhaps the most powerful line in Martin’s address came at the end: “When you walk out of court after a not-guilty verdict, if your first thought is ‘we lost,’ you have already lost something far more important than the case.”
That sentiment captures the entire moral architecture of prosecution. A not-guilty verdict is not a loss for the Crown — it is a vindication of the system’s integrity. When prosecutors relearn to see acquittals as victories for justice rather than defeats, the public can begin to trust the system once more.
Conclusion — Justice Over Victory
Andrew Urban’s call for an ethical reset is not an indictment of all prosecutors. It is a plea to remember who they are meant to be. Prosecutors wield immense power, the power to destroy reputations, separate families, and alter lives forever. That power demands not aggression, but grace.
The ethical reset must begin with humility: a recognition that justice is not a scoreboard, and truth cannot be subordinated to conviction. As Wayne Martin KC and Andrew Urban both remind us, the prosecutor’s true victory lies not in the number of people convicted, but in the number of times conscience prevailed.
If Australia’s justice system is to restore public trust, it must remember this simple truth: the pursuit of justice is not about winning ; it is about being right. And being right, in the moral sense, means sometimes having the courage to lose.
Excellent essay, thanks Steven. Just one point re the Sue Neill-Fraser trial: the most disturbing aspect of this was the prosecutor’s speculation about how the murder occurred, what weapon was used, what injuries he sustained and how she disposed of Bob Chappell’s body (it has never been found) …all without evidence. And condoned by the trial judge.
a gigantic miscarriage of justice, and a showcase of imperfection, bias, and downright falsification of the truth…….I would keep out of the clutches of the Tasmanian legal system, political system, and government at all costs. Leave Tasmania while you can.
This is terrifying for us, about to enter the coliseum of the courtroom. How can the accused keep the prosecution ‘honest’ with charges of false accusations? We fear the police investigation has wilfully omitted evidence that helps the defence and the ODPP will succumb to complainants pressure for vengeance.
I just hope you have a really good lawyer and top counsel…