The late Renee Rivkin’s chauffeur Gordon Wood was recently acquitted by the NSW Court of Appeal of pushing his girlfriend Carolyn Byrne off a cliff at Sydneysiders’ favoured spot for suicide, The Gap: Wood v R  NSWCCA 21. He spent more than three years in jail. The Court was not terribly impressed by the conduct of the prosecutor. It provided a handy restatement of the obligations of prosecutors in criminal cases. At least insofar as the obligations referred to by the unanimous Court are sourced in the Bar’s conduct rules and are equivalent to Victoria’s obligations, Victorian barristers prosecuting disciplinary cases have the same obligations by virtue of the definition of ‘prosecutor’ and ‘criminal proceedings’ in the Bar’s conduct rules (r. 9(f)).
Here is what McClelland CJ at CL said:
574. The second issue … is concerned with the Crown Prosecutor’s invitation to the jury to consider a list of fifty questions which the prosecutor told the jury were “the salient questions in order to decide the outcome of the case.” The fundamental submission was that by adopting this approach to his address the prosecutor committed the error discussed in R v Rugari  NSWCCA 64; (2001) 122 A Crim R 1 at .
- The examination by an appellate court of whether a miscarriage of justice occurred was considered in Libke v The Queen  HCA 30; (2007) 230 CLR 559. At , Hayne J considered whether submissions made by the Crown Prosecutor were “comments that suggested (whether directly or indirectly by appealing to prejudice or passion) that the jury should follow some impermissible path of reasoning”: see R v DDR (1999) 99 A Crim R 327 at 340-343;  3 VR 580.
- At the time of the trial, the duties of a Crown prosecutor were set out in Rules 62-65 (now rules 82-85) of the New South Wales Barristers’ Rules . The Barristers’ Rules then in force were made by the Bar Council under s 702 of the Legal Profession Act 2004 and were binding on legal practitioners by virtue of s 711 of that Act. Rules 62-65 were as follows:
62. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
63. A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.
64. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
65. A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.”
- Section 13 of the Director of Public Prosecutions Act 1986 empowers the Director to furnish guidelines to Crown prosecutors in respect of the prosecution of offences. Section 15(2) further provides that prosecutors to whom the Director has furnished guidelines are obligated to comply with those guidelines. The current Guidelines were in force at the time of the applicant’s trial, and the Barristers’ Rules set out above were incorporated into Appendix B to the Guidelines. Relevantly, Guideline 2 sets out the “Role and Duties of the Prosecutor” as follows:
“A prosecutor is a “minister of justice”. The prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness.
A prosecutor is not entitled to act as if representing private interests in litigation. A prosecutor represents the community and not any individual or sectional interest. A prosecutor acts independently, yet in the general public interest. The “public interest” is to be understood in that context as an historical continuum: acknowledging debts to previous generations and obligations to future generations.
In carrying out that function:
‘it behoves him – Neither to indict, nor on trial to speak for conviction except upon credible evidence of guilt; nor to do even a little wrong for the sake of expediency, or to pique any person or please any power; not to be either gullible or suspicious, intolerant or over-pliant: in the firm and abiding mind to do right to all manner of people, to seek justice with care, understanding and good countenance.’
(per RR Kidston QC, former Senior Crown Prosecutor of New South Wales, in “The Office of Crown Prosecutor (More Particularly in New South Wales)”, (1958) 32 ALJ 148).
It is a specialised and demanding role, the features of which need to be clearly recognised and understood. It is a role that is not easily assimilated by all legal practitioners schooled in an adversarial environment. It is essential that it be carried out with the confidence of the community in whose name it is performed.
‘It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’
(per Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 CCC 263 at p 270).
In this State that role must be discharged in the environment of an adversarial approach to litigation. The observance of those canons of conduct is not incompatible with the adoption of an advocate’s role. The advocacy must be conducted, however, temperately and with restraint.
The prosecutor represents the community generally at the trial of an accused person.
‘Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.’
(per Deane J in Whitehorn v The Queen (1983) 152 CLR 657 at pp 663-664).
Nevertheless, there will be occasions when the prosecutor will be entitled firmly and vigorously to urge the prosecution’s view about a particular issue and to test, and if necessary to attack, that advanced on behalf of an accused person or evidence adduced by the defence. Adversarial tactics may need to be employed in one trial that may be out of place in another. A criminal trial is an accusatorial, adversarial procedure and the prosecutor will seek by all proper means provided by that process to secure the conviction of the perpetrator of the crime charged.”
- The duty to present a case fairly, completely and with fairness to the accused was emphasised in Livermore v The Queen  NSWCCA 334; (2006) 67 NSWLR 659 at  where this Court cited with approval the dicta in McCullough v The Queen (1982) 6 A Crim R 274;  Tas R 43 at 57:
“[It is] quite impermissible [for a Crown Prosecutor] to embark upon a course of conduct calculated to persuade the jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial.”
- In Livermore at  this Court held that a number of features of a Crown address, either alone or in combination, might require censure by an appellate court. These include:
“(i) A submission to the jury based upon material which is not in evidence.
(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
(iii) Comments which belittle or ridicule any part of the accused’s case.
(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.
(v) Conveying to the jury the Crown Prosecutor’s own opinion.”
- Additionally, where submissions are made that contain matters which the appellant is asked to explain, the onus of proof is inappropriately reversed: Rugari at .
- When it is submitted that a trial has miscarried by reason of the prosecutor’s address, it is necessary to consider the whole of that address. Each case will depend on its particular circumstances: Causevic v The Queen  NSWCCA 238; 190 A Crim R 416 at  (McClellan CJ at CL; Barr and Price JJ agreeing).
- A Crown prosecutor has a role of great significance in ensuring that an accused person receives a fair trial. That role has been discussed most recently in Livermore at - . It is appropriate to repeat what the court said on that occasion:
“The Role of the Crown Prosecutor and the Limits of Trial Advocacy
24 This Court recently had occasion to repeat those aspects of the decision in R v McCullough (1982) 6 A Crim R 274 (at 285), touching upon the duties of a Crown Prosecutor, in KNP v Regina  NSWCCA 213 at . McCullough has also been referred to, with approval, in the course of this Court’s decisions in R v Joseph Attallah  NSWCCA 277, R v Liristis (2004) 146 A Crim R 547 at 563ff and R v Rugari (2001) 122 A Crim R 1 at 10. For present purposes, it is necessary to set out the following aspects of the dicta in McCullough :-
It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. …However, it should also be said that the observance of those canons of conduct is not incompatible with the adoption of an advocate’s role. Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint , bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions. As the New Zealand Court of Appeal said in Roulston … ‘it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused.’
The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial (emphasis added).
25 A seminal statement of the responsibilities of a Crown Prosecutor in a criminal trial appears in Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 per Deane J:-
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with a consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered. (Italics not in original)
26 In R v Callaghan (1993) 70 A Crim R 350 at 356, the Queensland Court of Appeal held that it was not appropriate that Crown Prosecutors use the dignity of their office to tell a jury something that is not in evidence and that counsel’s role is to make submissions, not express personal opinions or enter the fray as a contestant.
27 In R v Kennedy (2000) 118 A Crim R 34 at 41;  NSWCCA 487, Studdert J, with whom Heydon JA and James J agreed, found submissions by the Crown Prosecutor, which were critical of a Crown witness who was not sought to be declared unfavourable, improper. It was held that the submissions may well have influenced the jury to reject evidence that the witness gave which was favourable to the accused’s case and which impacted on the credibility of the complainant. This was said to be a “serious irregularity” resulting in a miscarriage of justice.
28 In Rugari , Carruthers AJ, with whom Spigelman CJ and Sperling J agreed, explored a number of breaches by the Crown Prosecutor of the “reasonable restraints” imposed upon him. In particular, an expression by the Crown Prosecutor of his own view of the quality of the evidence was said to be inappropriate. There were other inappropriate comments, which when taken together, gave rise to the prospect that in convicting the accused, the jury was “actuated, partly at least, by the inappropriate and prejudicial remarks made by the Crown Prosecutor” (at 12).
29 In Liristis , the description by the Crown Prosecutor of the accused’s evidence as “pathetic” and comments in the course of the Crown’s address which included his own reaction to the evidence given by the accused were said not to exhibit the fairness and detachment which a Crown Prosecutor is expected to have, in accordance with Deane J’s statement in Whitehorn.
30 Similarly, in KNP , the introduction in the closing address of the Crown Prosecutor’s personal thoughts was said to be “a gross breach of his duty to present the Crown case in an impartial and fair manner. By imposing his own view on the jury there was a risk that they might believe that they were required to decide whether the prosecutor was correct in his personal views rather than assessing for themselves whether the evidence proved the Crown case.” (per McClellan CJ at CL at ).”
- In GDD at , Grove J said:
“[T]here must remain a risk that a jury would consider a Crown Prosecutor a figure of public authority and whose expressed personal opinions were therefore of particular weight and reliable. It is to avoid that risk that the law requires counsel to make submissions based upon the evidence and proscribes the expressions of personal opinion.”
- When a prosecutor fails to comply with the required standards of fairness an accused person may be denied a fair trial. Whitehorn v The Queen  HCA 42; (1983) 152 CLR 657 at 663-4. See also Cittadini v The Queen  NSWCCA 302 at - (McClellan CJ at CL, Fullerton and Schmidt JJ agreeing); Causevic at , (2008) 190 A Crim R 416 at 418  (McClellan CJ at CL, Barr and Price JJ agreeing); GDD at , . I am satisfied that this occurred in the present case.’