26 / 6 / 2024

Prosecutor’s Duties

In our criminal justice system, any accused has a fundamental right to a fair trial. The role of the prosecutor is necessarily constrained by this right and there are several duties a prosecutor must comply as a matter of fairness.

The role of a prosecutor

The role of a prosecutor excludes any notion of winning or losing because their purpose is not to obtain a conviction. Rather, their role is to assist the court arrive at the truth by putting before the court all evidence relevant to an alleged crime. In doing so, a prosecutor must act with fairness and detachment. A prosecutor must not press the prosecution’s case for conviction beyond a full and firm presentation of that case, and must not, by language or conduct, seek to bias the court against the accused.

The prosecutor’s duty of disclosure

Consistently with the accused person’s right to a fair trial, prosecutors are subject to a duty of disclosure. This is a duty the prosecutor owes to the court and it requires the prosecution to fully disclose to the accused person prior to trial (ideally well before trial) all evidence that will be adduced by the prosecutor in support of the charges, so that an accused person can properly defend the charges they face.

The prosecutor is also required to disclose any material that assists the accused defending the charges or points away from the accused having committed the offence, including material relevant to the credibility of reliability of any prosecution witness. In Australia, the prosecution guidelines of each Office of the Director of Public Prosecutions reflect these principles and each State and Territory has legislative disclosure regimes.

In New South Wales, the Prosecution is required to give notice of the Prosecution case to the Accused. The notice of the prosecution case must contain:

  1. A copy of the indictment;
  2. A statement of facts;
  3. A copy of the statement of each witness whose evidence the prosecutor proposes to adduce at the trial;
  4. A copy of each document containing evidence which will be adduced;
  5. Summaries or outlines of summaries that have not been prepared;
  6. Copies of exhibits;
  7. Charts or explanatory material;
  8. Reports of expert witnesses proposed to be called at the trial;
  9. A copy of any information, document, or other thing provided by law enforcement or investigating officers to the prosecutor, or otherwise in the possession of the prosecutor, that would be reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused;
  10. A list identifying:
    1. Any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor’s possession and is not in the accused person’s possession; and
    2. The place at which the prosecutor believes the information, document, or other thing is situated;
  11. A copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness;
  12. A copy of information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused;
  13. A list identifying the statements of witnesses who are proposed to be called by the prosecution.

What happens if the prosecution fails to comply with the duty of disclosure?

Failure to comply with the duty of disclosure can have serious consequences. The court may refuse to admit evidence in proceedings which the prosecution failed to disclose. Failure to disclose evidence may also lead to a stay of the indictment in more extreme cases.

A serious failure to comply with the duty of disclosure may result in a miscarriage of justice and, in some circumstances, require the quashing of a guilty verdict and for a prosecutor, serious disciplinary consequences.

Joshua O’Rahilly-Hadley, Lawyer


1 Libke v The Queen (2007) 230 CLR 559 [71] citing Boucher v The Queen [1955] SCR 16 [23]-[24].

2 Ibid. See also Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 83.

3 Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 84-85

4 Commonwealth Director of Public Prosecutions, Statement on Disclosure in Prosecutions Conducted by the Commonwealth (March 2017).

5 Commonwealth Director of Public Prosecutions, Statement on Disclosure in Prosecutions Conducted by the Commonwealth (March 2017).

6 See for example s 142 of the Criminal Procedure Act 1986 (NSW).

7 s 146(1) Criminal Procedure Act

8 Mallard v The Queen (2005) 224 CLR 125 [17].