Author: Martin, B. Date: 28/01/1999 Venue: DPP Advocacy Seminar, Sydney, 28 & 29 January 1999
Integrity and credibility are key features of our duty as prosecutors. We tend, perhaps, to focus upon competence and efficiency, but integrity and credibility must underlie our competence. We are often required to make hard decisions and, when its appropriate, we make no apologies for this. But at all times, we must be fair.
A proper attitude to disclosure will assist in building our credibility. The question often arises as to whether we should disclose something to the defence. If there is any doubt, err on the side of generosity. In general terms, if the defence ask for material and theres no problem such as public interest immunity, provide it to them. Our duty is one of fairness to the court and to the defendant: it is not a duty owed to the defendants lawyers. In our disclosure policy, point E12 is not limited to disclosure of material which would positively assist the defence. If, for example, the defence proposes calling a witness who we know has made a statement which inculpates the defendant, but for whatever reason we do not intend to call that witness, that statement should be provided to the defence. It is important to remember that our obligation is to be fair to the defendant, not the defence legal representatives. Whatever we may think of the lawyers and their tactics, we still need to be just to the defendant.
Assisting the court, jury and the defendant
It is our duty to assist the court, the jury and, within limits, the defendant. If we are seen to be fair, we will be well on our way to building a relationship with both judge and jury. If the defendant seeks admissions and its appropriate to make them, then we do so. If a legal point is dubious and it is not important to our case, let the point go in the defendants favour. This approach builds the relationship with the court so that when we maintain that a principle is crucial and we cannot concede it, our stance may well have more credibility. The jury watch us very closely, particularly in large trials. But we don't play to them. We just do our job well and properly. Juries do not like to feel that theyre being watched: it can be perceived by them as harassment. Always be prepared to laugh at ourselves. It advances no public interest and is counter productive for us to look petulant and self important.
The opening is a powerful piece in our armoury, if we use it properly. It is essential to convey to the jury that it is our job to help them understand what the case is all about and, if they don't understand, it is our fault. In the opening, always refer to the burden of proof and any possible defence that emerges from the interview by investigators. Tell the story of the case indicating how witnesses link together to display the story. Avoid the boring recitation "Mr X will tell you" unless it is a key witness who will be relating a "whole" episode. Such recitations create problems when the witness fails to come up to proof. I do not favour using adjectives in opening to describe the strength of the Crown case. If it is a strong case, the jury will see that from a dispassionate opening. It is much better to understate our case. This deprives the defence of the useful attack in closing that we have failed to produce that which we promised. It is obvious that we should talk to juries on their own level: we neither talk up to them nor down to them. However, a bored jury is a risk to the Crown. The limited use of exhibits in opening will assist in maintaining their interest. Leave then something to discover. That is, rather than point everything out to them in detail, allow them to find some things out for themselves as the case progresses. Occasionally, commence the questions with "Please tell the jury".
Advocacy in the trial
It builds our credibility and advances the fairness of the trial, if we properly and frankly confront our weaknesses. Do not attempt to paper them over. Wells J referred to these as the "dangerous curves". If theres a difficulty with some feature of the evidence do not be afraid to ask the relevant question even if we do not know the answer. The jury are entitled to know and defence will almost certainly ask the question: so it is likely to emerge and it is better that we bring the issue into the open. I favour a similar attitude to re-examination. Vagueness or uncertainty should be addressed even if the answer may be unfavourable. In most circumstances, re-examination is a useful weapon. We also have a certain latitude as prosecutors. We can let the defendant go outside the strict bounds if a witness may not be reliable. Often it does not damage the Crown case. If we have a difficult witness, or one who does not come up to proof, we can face that and weave it into our closing by saying: "Yes, witness Smith did so that, but theres other evidence which shows fact X." That way, we are seen to be fair. You can even, if its justified, say: "You may think that thereve been so many lies on both sides that its hard to tell where the truth lies. But we rely upon whatever ". There are fundamentals to bear in mind. As Crown advocates we should strive to be:
- Direct and to the point
- Prepared to concede a point when appropriate to do so
There are also times when a need for caution arises. The appellate court or legal argument can often lead a judge in discussion to throw what appears to be a "lifeline". Sometimes they prove to be slippery. If something is suggested, weigh it carefully before adopting. Do not automatically accept a suggestion out of nervousness or courtesy. It may lead to a conclusion which is actually at variance with your argument. Try to develop a relaxed style of advocacy with judges, witnesses and juries. For example, there is no need to keep nervously repeating: "It is submitted ". Some people overdo the use of the phrase: "It is respectfully submitted that ". Our whole attitude should be respectful, but we do not need to elaborately assert it. There will, obviously, be instances where we need to tell the court that we disagree and it might be appropriate to say: "I respectfully disagree ". Putting witnesses at their ease is important. Perhaps ask a few easy questions early to give them a chance to get used to their surroundings and then lead into the meat of the matter. Juries are rarely helped by having the Crown Prosecutor read great slabs of the evidence to them. You could say that working as a prosecutor is all about:
There is more latitude for colour in closings. If you need adjectives to communicate the point to the jury, then do so. We can use some flair in describing the strength of the Crown case and the weakness of the defence. It doesnt mean that you use injudicious language. Far from it. But if you need to impress a point upon the jury, then do so.
Changes in the Role of Prosecutor
The role of prosecutor is changing. Our responsibility to what we call our client agencies is perceived differently. We can no longer just sit at the top of the tree and send back briefs because they are in poor shape. We need to educate the agencies so that the briefs are either supplemented to an acceptable standard or they understand why charges are not laid. What we do and how much we say is a matter of judgment on each occasion. We are becoming involved with investigations at an earlier stage. While we must preserve a proper degree of independence, this closer and earlier involvement with the client is the sort of change we cannot be reluctant to accept .
Tension between Judge and Defence
I have been asked whether we should become involved when "war breaks out" between the judge and defence. Generally we should not interfere unless it is to defuse the situation. At times this can be achieved by conceding a point in favour of the defence.