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.