The Australian Professional Liability Blog
By Stephen Warne -Barrister
Stephen Warne on
professional negligence, regulation and discipline around the world
Posted: 01 Mar 2012 03:51 AM PST
What follows are my rambling first thoughts about value
pricing, penned without having read any of the leading treatises on the
question, and without having read any sophisticated value pricing-based
retainers. I am most willing to be shown the nuances and possibilities
overlooked in my preliminary explorations. I am not wedded to any of the
positions. I put them up for discussion. I think the hourly rate as
currently applied is dreadful in many ways, but I have anxieties about how
fixed fees and value billing would apply in practice outside the relatively
even bargaining ground of major firms and major corporations’ in-house legal
teams in which it seems often to be discussed. I have this anxiety that
it is not going to do anything to remedy the most basic problem causing the
cost of access to justice to be too great, the rapacity of mediocre lawyers,
and may in fact exacerbate it. I suspect that well-drafted,
well-regulated fixed fees will crap on the current regime, but think the
current regime might be greatly improved, narrowing the gap. And I worry about
the regulation of fixed fees, given our legal system’s prima facie reluctance
to interfere in fairly negotiated contractual arrangements. In other
words, I worry that the sanctity of contract will inhibit the adjustment by the
courts of fees rendered by lawyers to clients.
When I think of fixed fees, I tend to think of them in very
simple terms: ‘I will do your case for $100,000, including disbursements and
counsel’s fees.’ There is a tendency to think of the $100,000 as a cap,
but in a simple agreement like this, the lawyer will get the fee if the other
side dies and the cause of action dies with him, or the other side settles a
few days into the retainer, or the client stumbles across a smoking gun which
renders their prospects of victory at nil. Galling as paying anyone $550
per hour for a job which may go on and on and on may be, paying someone
$100,000 for next to nothing must be even more galling. Of course value
pricing retainers may be very sophisticated, and I am guilty of myopia.
There is also, I think, a tendency to think of fixed fees as
giving certainty at the outset in a way unique to this method of
charging. In Victoria (and, I think, everywhere else in Australia),
solicitors must by law estimate at or near the start of a matter its total
costs — their fees, witness fees to be charged as disbursements, counsel’s
fees, and other disbursements such as trial and transcript fees — or, if that
is not practicable a range of the possible total costs. So clients should be
entitled to be placed into the same position as the solicitor in terms of
knowledge of how much their matter will cost, with the advantage of fixed fee
being no more than the apportioning to the client the risk of the matter
turning out to be simpler than the price justifies and to the solicitor the
risk of it being more complex.
Because of the poverty of solicitors’ compliance with the
obligation to give a good faith considered estimate of total costs at the
outset (and the almost complete non-enforcement of the obligation), fixed fees
represent a great improvement to clients who fix them in their interests.
But at least some of that improvement could be achieved by fixing the current
system by enforcing the requirement for good faith carefully considered
estimates of total costs, rather than moving to fixed fees. Quite a bit
more could be achieved by introducing penalties for solicitors who exceed
estimated total fees without justification
. More again by stamping out fraud. And I
suspect that the very real practical advantage of fixed fees begins to diminish
somewhat as soon as the fixed fee becomes a series of fixed fees, and subject
to scopes of work such that disputes over variations assume all the
difficulties of construction law, except that one party will be a lawyer who
will not have to engage lawyers to have the dispute on his behalf.
Especially is that so in the case of the ad hoc user of legal services who have
no commercial relationship with the lawyers within which to negotiate.
I have this anxiety that what fixed fees are really about is
allowing lawyers to sell their learning (aka ‘intellectual capital’) for fees
much greater than usual rates would allow for the time involved in solving the
client’s problem, or advising or representing them. This is where ‘value’
comes in, I worry: where the value of the lawyer’s services to the client
exceeds the product of the lawyer’s time multiplied by usual fees, the client
should be charged more to reflect the value to the client of the services.
And I think I have a problem with the entrepreneurial
professional. No doubt some people think I am an entrepeneurial professional,
what with my blog and all, but from time to time prospective clients inform me
of their problem, I send them a seminar paper that covers what they know, and
they get what they want with a few minutes of my time at no fee. More
often, I provide advice for a few hundred dollars which a non-expert charging
on time would be likely to charge substantially more for. I think of this
as the upside of time based billing, a manifestation of the proposition of the
profession as a public service. I want to make a good living, but if I
can assist without spending too much time, then I feel some sort of duty to do
so. Of course there is nothing about time billing which makes it
inherently favourable to giving away your intellectual capital. Value
pricers can be kind too. But I just get the impression that value pricing
as a mindset will tell lawyers that they must charge a premium whenever a good
chunk of their ‘intellectual capital’ is let loose.
The current system of lawyers charging for their costs
doesn’t work very well for those responsible for paying them. There are
two problems:
First, many lawyers charge too much. This explains to
a large degree why we are not very well liked. I doubt that value pricing
is going to do much to change this. It’s not like lawyers are going to
say ‘As this does not represent a very big problem for you, we won’t charge you
as much as we usually do.’ (I suppose that where clients and lawyers
enter into a costs agreement in respect of all work by a client for a year, the
firm may structure itself so as to have a division doing the low-end work for
less than they would otherwise in order to attract the high end work. And
in those retainers simple enough to justify a true fixed fee, the ability to
shop around may bring the price of legal services in those areas down, in a way
which the mandatory estimate of total fees required by law does not, since it
is often not provided with any accuracy or in good faith.) The exponents of
value pricing are forever going on about how the move to value pricing enhanced
profitability. It is talked about in terms of the tax expert who dreams
up a solution to a client’s problems in the shower, rings the client, and says
‘I have an idea which will save you $1 million a year. I’ll sell it to you for
$22,000.’
Secondly, clients get dragged into transactions and disputes
without understanding how much it’s going to cost them in legal fees. It
is this problem that the regulation of legal costs in practice exclusively
addresses, and is the problem to which, as I understand it, the value pricers
propose the solution. There is already a very strong protection available
to clients and others who have to pay legal fees.
First, they can obtain taxation by the Costs Court, almost always at the
lawyer’s considerable expense: clients need only (a) reduce the solicitor’s
bill by one-sixth in order to have their costs paid by the lawyer (and there
are a hell of a lot of bills which slicing a sixth off would be just the entree),
or (b) demonstrate some non-compliance with the regime which requires lawyers
to disclose information about their costs in advance, including how much ‘the
matter’ is going to cost in terms of solicitors’ fees, barristers’ fees, and
other disbursements. Very few solicitors manage to comply to the letter
with the costs disclosure regime, with the extraordinary further result that
the client need not pay the fees until there has been a taxation of them by the
Supreme Court, and the solicitors may not sue for them pending the
outcome. In the taxation, the solicitor is penalised by a percentage —
regularly 15%, and up to 50% in relatively bad cases — for their disclosure
default. Second, in cases of serious disclosure defaults, the Costs Court
But for some reason, clients do not often exploit these
tools available to them, so that the system so weighted towards the client on
paper, may be declared a failure in practice. In a submission to the
government the members of the now-abolished Legal Profession Tribunal once
expressed their surprise at the paucity of applications to set aside costs
agreements. I do not really know why it is so. Costs law remains
somewhat arcane. It is surprising that there is no annotated Legal
Profession Act 2004. Lawyers expert in lawyer-client costs disputes are
comparatively rare. Many costs lawyers are good at party-party disputes
but not so good at lawyer-client disputes, being much more mainstream
commercial disputes outside of the traditional purview of costs law. In
part this is a reflection of the fact that prior to the Legal Practice Act
1996 there were comparatively few time costed retainers, while between
1996 and 2006 the law did not allow for taxations of costs agreements providing
for hourly rates.
As noted, severe disadvantages accrue to solicitors who do
not accurately make disclosure about their costs at the outset, but exceeding
the originally estimated total fees for the matter does not necessarily result
in disadvantage to the solicitor so long as they conscientiously re-estimate
the fees as things change, and as soon as they realise their original estimate
was too optimistic. There should be a whole jurisprudence around how good
an estimate of the total costs needs to be before it can be considered a compliant
disclosure, but the law in that regard is hopelessly undeveloped. The only case
I know is Casey v Quabba [2005] QSC 356, where the statement ‘it is estimated the
possible range of fees and costs recoverable will be between nil and $250,000
(approximately)’ did not satisfy the NSW correlate of s. 3.4.9(1)(c) as not
being a ‘genuine attempt to inform the client as required by the [correlate
provision].’
So the client in the real world ought to be delighted by a
proposition that lawyers will fix
their fee in advance. And I do believe the hype
about the benefits of value pricing for employee solicitors. One of the
things I have most enjoyed about coming to the Bar is being able to price my
own services. Barristers agree lump sum fees more than solicitors — often
one gets a brief to appear on an application, and agrees a fee which is marked
on the front of the brief for preparation and the appearance, however long it
takes. Once I have done so, I am much happier about spending as long as
it takes to do a good job, unshackled from the anxiety about over-charging the
client for excessive research. Writing hourly fees for many young lawyers
in medium sized firms is demoralising:
young lawyers do not actually believe they are worth the
rates they are charged out at (because they’re not), and feel bad that their
clients have to pay so much for their services;
they see their clients getting dragged into transactions and
disputes they can’t afford or wouldn’t have got into had they known how much it
was going to cost;
they see disputes being resolved as the result of inability
to pay fees rather than any normative adjudication by the justice system, or a
compromise properly informed by the likely range of outcomes of such an
adjudication;
they get a tiny fraction of the fees for themselves, so they
feel exploited by their already unduly wealthy partner bosses;
but unless they keep charging their clients liberally (fraudulently
in some cases), what pay they do receive is at risk; and
they receive inadequate training, and end up charging their
clients for their own education.
I can imagine that a firm operating on a value pricing model
could be a great relief for young lawyers, assuming that a greater collegiality
is fostered by the new model, and much more resources put into systematising
practice, training lawyers, sharing and storing knowledge, and that activities
are appropriately rewarded in a new remuneration model, though I am sure that
there are a whole new set of tensions and problems which would reveal
themselves, particularly in those firms which jump on the bandwagon, as opposed
to the brave pioneers experimenting with this model of practice at the moment,
embracing it with all the passion necessary in such a scenario.
But getting back to clients. In theory, lawyers are
already obliged to give good faith estimates of the cost of the entire matter —
costs to the end of a trial in a litigation matter, and so should know, to the
extent that the lawyer acting in good faith can tell, what they’re up for on a
worst case scenario. If things change so as to make them more
complicated, or time consuming, then it is going to cost more. But if a
quick settlement is reached, then they’re going to cost a great deal
less. What’s the lawyer going to do in such a situation? Price a bunch of
litigation retainers on the basis of the average cost of each one, take the
benefits from those which take less time than average and wear the losses of
those which take more time than average? I don’t see it happening, except
in sophisticated outfits. It would have the result that:
Lawyers would have a financial interest in looking for the
quickest settlement possible. Indeed, lawyers who charge on an hourly
basis sometimes tell me that where they use their contacts and relationships
with the players in their field to negotiate a resolution by a couple of
telephone calls which it would take a less-connected plodder months to achieve,
they should be remunerated at a rate approaching the plodder’s fees.
Clients would have less incentive to do likewise, because
they can force their lawyers to
forge on, leaving no rock unturned (or no avenue of
frustration of the counterparty unavailed of), until what the client considers
to be the ultimate negotiating position. Anyone who has done a reasonable
amount of pro bono work knows of the difficulty in obtaining appropriate
compromise when the client faces no financial cost in forging ever onwards in their
crusade to justice.
So of course there is going to be a system of staged fixed
fee retainers. Lawyers may agree to do the first few stages for
relatively little, effectively as loss leaders for the meaty subsequent
stages. And in negotiating the fees for the later stages, the clients
will be effectively locked in. Corporations with in-house counsel
familiar with litigation will be able to negotiate appropriate fees, but others
may not. All sorts of variations are possible, and the market may create
sophisticated models in time where super-profits and super-losses compared with
time based costing are prevented by caps on the minimum and maximum fees
chargeable over the course of the matter. But in a simple arrangement
providing for staged fix fee retainers, at least the client who has entered an
hourly rates costs agreement has certainty of price in one sense from the
outset of the matter: the lawyers will do the job until its end at rates the
client is prepared to pay. What is to stop a lawyer from saying that she
will do discovery only for a fee which is considerably greater than it would in
fact cost at the firm’s normal hourly rates?
And what if the lawyer does not perform? How will the fees
be treated upon termination by the client mid-retainer? Is it a
repudiation of the agreement so that the client has to pay the contract
price? What if, pre-retainer, the lawyer has parted with all the
intellectual capital justifying the fixed fee, and setting up the architecture
of the matter, so that what remains is just application which any schmuck can
do? What if the converse is true? All that has been done so far by
the lawyers is preparatory schmuck work, so that the really difficult
decisions, the expertise required to answer which justify the fee, has not even
started. All this would need to be carefully articulated in the retainer.
But it is always easier to perceive problems in change, and
difficult to see the problems which inhere in the status quo. Despite my
anxieties, I support value pricing and fixed fees. I just don’t want
anyone to get too starry eyed about them.
Posted: 01 Mar 2012 02:26 AM PST
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 [2012] 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 wa
s that by adopting this approach to his address the
prosecutor committed the error discussed in R v Rugari [2001] NSWCCA
64; (2001) 122 A Crim R 1 at [57].
The examination by an appellate court of whether a
miscarriage of justice occurred was considered inLibke v The Queen [2007]
HCA 30; (2007) 230 CLR 559. At [83], 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; [1998] 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 Act2004 and
were binding on legal practitioners by virtue of s 711 of that Act. Rules 62-65
were as follows:
“Prosecutor’s Duties
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 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 inLivermore v The Queen [2006] NSWCCA
334; (2006) 67 NSWLR 659 at [24] where this Court cited with approval the dicta
in McCullough v The Queen (1982) 6 A Crim R 274; [1982] 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
“(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.”
(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 [57].
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 [2008] NSWCCA 238; 190 A Crim R 416 at [6] (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 inLivermore at [24]-[30] . 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 inR v McCullough (1982) 6 A Crim R 274 (at 285), touching
upon the duties of a Crown Prosecutor, in KNP v Regina[2006] NSWCCA 213 at
[32].McCullough has also been referred to, with approval, in the course of
this Court’s decisions in R v Joseph Attallah [2005] 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;
[2000] 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
inWhitehorn.
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 [53]).”
In GDD at [55], 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 [1983] HCA 42; (1983) 152 CLR 657 at
663-4. See alsoCittadini v The Queen [2009] NSWCCA 302 at [99]-[101]
(McClellan CJ at CL, Fullerton
I fear that the sanctity of agreement will restrict the modification by the legal courts of charges made by lawyer to customers.
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