Crown prosecutor (Australia)

The office of the Director of Public Prosecutions (DPP) was derived from the United Kingdom in the 19th Century. Their role was created to further the separation of powers and remove prosecutorial decisions from the legislature and any political influence.[5] This was partly driven by the fact Attorney-General's are attached to the ministry and parliament. Thus to ensure integrity and fairness in the judicial process,[6] it was deemed prudent to develop an independent body to deal with, what can be, often controversial and politically damaging decisions.[5] Lastly, prosecutors main functions are statutorily derived from the Director of Public Prosecutors Act 1986 (NSW)[7]. From a procedural perspective, the ODPP has also absorbed the International Association of Prosecutor’s Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors[8], into their practices and guidelines.

Crown prosecutors are independent and perform a unique function. Their role is to represent the community[7] or 'the Crown' in criminal trials, and seek to assist the court and steer the jury toward the truth[9] as well as providing justice to the victim and the wider community. As their role is independent, they will always seek to provide the jury with all relevant and credible evidence that they have been presented with for an alleged crime,[10] without the intention of achieving victory or loss. This notion of not solely seeking to obtain a conviction was conveyed by the Canadian Supreme Court in Boucher v The Queen (1954) 110 CCC 263 at 270; “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.”

To clarify, the ODPP is the main prosecutorial body responsible for representing the Crown in criminal trials. Crown prosecutors are barristers who are briefed, by the ODPP, to appear on behalf of the Crown and perform prosecutorial and other ancillary functions. Further, the ODPP and by extension crown prosecutors do not investigate crimes. The respective police force in each state or territory is responsible for the investigative aspect of an alleged criminal offence. The prosecutors role is to firstly, determine whether the evidence is strong enough and/or admissible in a court proceedings. And secondly, to then use that brief of evidence and act for the Crown in presenting that evidence to the jury to deliberate and make a decision.

A growing conflict with prosecutorial duties is becoming the duty of disclosure.[11] As aforementioned, a major component of the prosecutorial function is the exercise of procedural fairness[12] and absolute adherence to judicial principles and prosecutorial guidelines. Duties of disclosures relate to instances whereby the police and/or prosecutors do not disclose all available information to the opposing counsel in an attempt to disguise the true appearance of the facts. Recent Australian cases where this has been an issue include R v Easterday (2003) 143 A Crim R 154 and R v Sonnet [2010] VSCA 315.

This section will focus on the appointment and eligibility requirements to become or be eligible to be appointed as a crown prosecutor. Each state has different legislation that is responsible for the appointment process. All prosecutors generally have the same requirements. Using NSW as a case study, appointments are made pursuant to the 'Crown Prosecutors Act 1986 (NSW). They firstly must be a qualified Australian legal practitioner. Secondly, crown prosecutors must also be members of the private bar, in NSW known as the New South Wales Bar Association. To be appointed at the bar as a barrister, one must receive the required standard of 75% in the NSW Bar Examination along with other administrative components.[13] Once a member of the private bar, barristers can be appointed by the Governor[2] to serve as Crown Prosecutors. The main condition of their appointment is viewed below:

Section 4(2A)[14] - 'A Crown Prosecutor is to be appointed by the Governor for a term of 7 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 72 years. A Crown Prosecutor is eligible (if otherwise qualified) for reappointment.'

At the moment, there is currently 124 Crown Prosecutors in NSW.

Another role that exists within this, is that of a Senior Crown Prosecutor. This follows a similar process of appointment to that of the Crown Prosecutors, outlined in section 4A[14]. Senior Crown Prosecutors have the same roles and responsibilities; however, they represent the Crown in the most serious and complex matters. Their remuneration and tenure is fixed, yet the remuneration is slightly higher to reflect the added seniority and complexity of the job.[15]

There have been recent instances where Crown and Senior Crown Prosecutors have ended up on the ‘wrong side of the bench’ and been charged or publicly reprimanded. Particularly, Margareet Cunneen being summoned before ICAC and Mark Tedeschi being sued for malicious prosecution.

ICAC established ‘Operation Hale’[16] to investigate allegations that Margaret Cunneen had advised her eldest son’s girlfriend to fake chest pains to avoid a roadside breath test at the scene of a car crash. and also whether she lied about aspects of the accident to the insurance agency and DPP.[17] Cunneen vehemently denied the allegations that she acted improperly to her public function as a Senior Crown Prosecutor.

• Crown attorneys in Canada
• Crown Prosecution Service in England and Wales
• Crownies, an ABC television series about crown prosecutors.
• District attorneys in the United States
• Procurator fiscal in Scotland