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Code of Practice and Ethics for the Office of the Public Prosecutor 2004

Commencement: 10 August 2004

CODE OF PRACTICE AND ETHICS FOR THE
OFFICE OF THE PUBLIC PROSECUTOR

Published Gazette No. 24 of 2004

1 CONDUCT OF PROCEEDINGS

1.1 Prosecutor’s duties
(1) A Prosecutor’s primary interest is that the right person is convicted, the truth is revealed and justice is done.

(2) A prosecutor must:

(a) fairly assist a court to arrive at the truth; and

(b) seek impartially to have the whole of the relevant evidence placed intelligibly before the court; and

(c) seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

(3) A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.

(4) A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.

(5) 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.

1.2 Disclosure
(1) Subject to subclause (2), a prosecutor must disclose to the opponent as soon as practicable:

(a) all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor which could constitute evidence relevant to the guilt or innocence of the accused; or

(b) any such material of which the prosecutor becomes aware during the course of a proceeding which could constitute evidence relevant to the guilt or innocence of the accused.

(2) Disclosure under paragraph (a) or (b) of subclause (1) is not required if the prosecutor believes on reasonable grounds that:

(a) the disclosure would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person; and

(b) such a threat could not be avoided by limiting the disclosure to the legal practitioner representing the accused on appropriate conditions (for example, an undertaking by the legal practitioner representing the accused not to disclose certain material to the accused or any other person).

1.3 Witnesses
(1) Subject to subclause (2), a prosecutor must call as part of the prosecution’s case a witness if:

(a) the testimony of the witness is admissible and necessary for the presentation of the whole picture; or

(b) the testimony of the witness provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue; or

(c) the testimony or statements of the witness were used in the course of any preliminary hearings; or

(d) a statement from the witness has been obtained in the preparation or conduct of the prosecution’s case.

(2) The prosecutor is not obliged to call a witness if:

(a) the opponent consents to the prosecutor not calling the witness; or

(b) the only matter with respect to which the witness can give admissible evidence has been dealt with by an admission on behalf of the accused; or

(c) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling the witness to establish a particular point already adequately established by another witness; or

(d) the prosecutor believes on reasonable grounds that the testimony of the witness in unreliable.

(3) In deciding whether the testimony of a witness is unreliable, the prosecutor must use appropriate techniques such as conferring with the witness and satisfying himself or herself of the capability of the witness to give relevant and truthful evidence.

(4) The prosecutor must inform the opponent as soon as practicable of the identity of a witness if the prosecutor intends not to call the witness on any ground referred to in subclause (2) together with the grounds on which the prosecutor has reached that decision.

(6) Despite subclause (2), the prosecutor must call a witness if the opponent requests the prosecutor to do so for the purpose of permitting the opponent to cross-examine that witness.

1.4 Unlawfully or improperly maintained material
A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully or improperly obtained must promptly:

(a) inform the opponent if the prosecutor intends to use the material; and

(b) make available to the opponent a copy of the material if it is in documentary form; and

(c) inform the opponent of the grounds for believing that such material was unlawfully or Improperly obtained.

1.5 Contact with accused
A prosecutor must not confer with or interview any of the accused except in the presence of the accused’s representative.

1.6 Informing court of supporting evidence
(1) A prosecutor must not inform the court or the opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that such evidence will be available from material already available to the prosecutor.

(2) A prosecutor who has informed the court of matters within subclause (1), and who has later learnt that such evidence with not be available, must immediately inform the opponent of that fact and must inform the court of it when next the case is before the court.

1.7 Sentencing
(1) A prosecutor must not seek to persuade the court to impose a vindictive sentence or a sentence of a particular magnitude.

(2) However, a prosecutor must:

(a) correct any error made by the opponent in address on sentence; and

(b) inform the court of any relevant authority or legislation bearing on the appropriate sentence; and

(c) assist the court to avoid appealable error on the issue of sentence.

(3) A prosecutor may:

(a) submit that a custodial or non-custodial sentence is appropriate; and

(b) inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant appellate authority.

2 CONTACT WITH THE MEDIA
In proceedings in which the Deputy Public Prosecutor, Assistant Prosecutor, and State Prosecutors appear, they are appearing on behalf of the Public Prosecutor. As such there is a relationship akin to a lawyer-client relationship between the prosecutor (the lawyer) and the Public Prosecutor (the client). As such the prosecutor appearing in a particular matter must act in accordance with the following rules:

2.1 There is no general obligation to provide information to the media.

2.2 Consent from the Public Prosecutor must be obtained prior to providing information on the case in which the prosecutor is appearing.

2.3 It is permissible and appropriate if requested by the media for a prosecutor to give his or her name and indicate that the prosecution is being conducted by the Office of the Public Prosecutor.

2.4 It is not appropriate to discuss with the media the likely result of proceedings or the prospect of appellate proceedings being instituted, a matter being no billed or discontinued or an ex officio indictment being filed.

2.5 It is not appropriate to comment to the media on the correctness or otherwise of any determination of the court.

2.6 Prosecutors should abide by any ruling made by the Court to not publish the names of any persons concerned in a particular matter (eg. where an order is made by a Court to prohibit the publication of names associated with a case to protect the reputation and otherwise of a victim of a serious sexual assault).

2.7 The names and addresses of victims and addresses of other witnesses who are to be or have been called should not be supplied to the media. Information given in open court (including names and addresses) may be confirmed. Care should also be taken in any case to ensure that the identities of witnesses such as prisoners, informers, and others who are giving evidence at some personal risk are kept confidential (so far as is possible) and are not disclosed to the media.

2.8 True copies of open exhibits (including photographs but excluding videotapes and audiotapes of recorded interviews, re-enactments, demonstrations and identifications) may be inspected by the media after being admitted as evidence (if convenient). Discretion should be exercised in relation to sensitive material (eg. medical reports) or material produced under compulsion, where it may be more appropriate to direct inquiries to the court. Medical (including psychiatric and psychological) reports on offenders and victims should generally not be made available to the media.

2.9 Upon charges being laid or the first court appearance of a defendant, the terms of the charge may be disclosed to the media subject to the various restrictions and provisions referred to above.

2.10 Statements, summaries, criminal histories, exhibits or copies (including documents, photographs, plans and the like) are not usually to be given or lent to the media.

2.11 Disclosure of documentation or information, other than that permitted in accordance with the above guidelines, is not to occur unless approved by the Public Prosecutor or the Deputy Director.