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Prosecution Guidelines

Chapter 2. The role of the prosecutor

This Chapter sets out the role and duties of the prosecutor, including at trial and sentence.

Published 29 March 2021

2.1 Introduction

This Chapter sets out the role and duties of the prosecutor, including at trial and sentence.

2.2 General principles

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 principles of fairness. A prosecutor must not argue the prosecution’s case for a conviction beyond a full and firm presentation of that case. 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 vigorously test, that advanced on behalf of an accused person or evidence adduced by the defence.

The ODPP adopts the International Association of Prosecutors’ Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors

A prosecutor must:

  1. act independently and impartially, without regard to individual or sectional interests or public or media pressure
  2. act fairly in relation to the  accused
  3. strive for the timely and efficient administration of justice
  4. assist the court with adequate submissions of law to enable the law to be properly applied to the facts
  5. assist the court to avoid appellable error
  6. shall not, by language or other conduct, seek to inflame or bias the court against the accused.
  7. observe the highest ethical and professional standards
  8. act with integrity and care
  9. be mindful of cultural sensitivities, especially but not limited to those relating to Aboriginal and Torres Strait Islander people
  10.  avoid any real, perceived or potential conflict of interest
  11.  comply with the Legal Profession Uniform Conduct (Barristers) Rules 2015 and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.

As a party to the proceedings, the prosecution is entitled to procedural fairness. This may mean, for example, that an  adjournment should be sought when the defence gives insufficient notice of alibi or expert evidence.

2.3 The role of the prosecutor in trials and summary hearings

General conduct

In trials and summary hearings a prosecutor:

  1. must present the prosecution case fairly and firmly
  2. must seek to adduce all relevant evidence in a clear and logical manner
  3. must refer in the opening address only to the evidence reasonably expected to be admitted at trial
  4. must confine the case to identified issues that are genuinely in dispute and present those issues clearly and succinctly.

Calling witnesses

  1. A prosecutor should generally call all  witnesses whose testimony:
    a.   is admissible and necessary to present the relevant circumstances
    b.  gives the prosecutor reasonable grounds to believe that it could provide evidence relevant to any matter in issue; unless:
       i.   the opponent consents to the prosecutor not calling a particular witness
       ii.   the only matter with respect to which the particular witness can give evidence has been dealt with by an admission on behalf of the accused
       iii.  the only matter with respect to which the particular witness can give evidence goes to establishing a particular point already adequately established by another witness or other witnesses
       iv.   the prosecutor believes on reasonable grounds that the testimony of a particular witness is untruthful or unreliable
       v.  the prosecutor, having the responsibility of ensuring that the prosecution case is presented properly and fairly, believes on reasonable grounds that the interests of justice would be harmed if the witness was called as part of the prosecution case
  2. A prosecutor must inform the defence as soon as practicable of the identity of any witness the prosecutor intends not to call on any grounds within i, ii, iii, iv or v above together with the relevant grounds, unless revealing the grounds to the opponent would harm the interests of justice

    If a decision is made not to call evidence from a material witness where there are identifiable circumstances clearly establishing that his or her evidence is unreliable, the prosecution, where the accused requests that the witness be called and where appropriate, should assist the accused to call such a witness by making him or her available or, in some cases, call the witness. Where appropriate, the Crown should make an application to cross-examine the witness 

A prosecutor must:

​3.  object to any question asked of a prosecution witness that:

  1. ​​​is misleading or confusing

  2. is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive

  3. is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate

  4. has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability)

4.  conduct cross-examination of the accused fairly and not suggest a reversal of the onus of proof when cross-examining the accused or addressing the court

A prosecutor must not:

  1. Appeal to prejudice or make emotional attacks on the accused. This does not mean, however, that the presentation of the prosecution case must be bland or unengaging.
  2. comment on answers witnesses give during the course of their evidence, while witnesses are in the witness box
  3. advance theories or make submissions not supported by evidence.

Witness conferences

A prosecutor may assist a witness prepare to give evidence by:

  1. advising the witness to read their statement prior to giving evidence
  2. explaining the court’s procedure (including the roles of the judge or magistrate), oath or affirmation  taking  and  the  order  of  examination  in  chief,  cross-examination  and re-examination
  3. informing the witness that they must answer all questions truthfully, however difficult the questions may be
  4. informing the witness that it is not a sign of weakness to not know or not recall the answer to a particular question and that they should not be afraid to say this if it is genuinely the case
  5. explaining to the witness that it is the role of defence counsel to put their client’s case and challenge the prosecution’s version of events, including by suggesting the witness is mistaken or lying and informing the witness that they must listen carefully to any such suggestion and clearly say whether they agree or disagree with it
  6. informing the witness that they should not be afraid to ask for a break if they genuinely need one, such as when they feel tired, are losing concentration or want to compose themselves emotionally
  7. explaining to the witness the importance of listening to each question carefully and making sure they understand it before answering it and encouraging them not to be afraid to ask the lawyer, judge or magistrate to repeat or rephrase any question they do not understand 

A prosecutor may:

  1. conference a witness by eliciting the account contained in their statement
  2. question and test the version of evidence to be given by the witness and
  3. if new and relevant information comes forward, request the officer-in-charge to obtain that information in statement form

A prosecutor must not:

  1. advise or suggest to a witness that they give false or misleading evidence
  2. coach a witness by advising what answers they should give to questions they might be asked.


A prosecutor must not inform the court or the defence that the prosecution has evidence supporting an aspect of its case without believing on reasonable grounds that such evidence exists or will be available, and must promptly inform the defence and the court if later learning that the evidence will not be available.

A prosecutor must promptly inform the defence if intending to use evidence that the prosecutor has reasonable grounds to believe may have been unlawfully or improperly obtained.

Where a witness is expected to give controversial evidence, or where their conduct is impugned in relevant ways in other parts of the prosecution brief, the prosecution should disclose that witness’s criminal history to the accused’s legal advisers at an early stage.

2.4 The role of the prosecutor in sentencing

The prosecutor has an active role to play in the sentencing process.

It is the duty of the prosecutor to present the facts of the case at  sentence. Whenever possible a statement of agreed facts should be submitted (see Guideline 4.4).

If the offender is being sentenced after trial or hearing, the prosecutor should prepare a summary of the facts capable of being found by the judge or magistrate that is consistent with the verdict.

Where facts are asserted on behalf of the offender that are contrary to the prosecutor’s position on a matter of some significance to sentence, the prosecutor should identify areas in agreement and those to be determined following a hearing (often referred to as a ‘disputed facts hearing’).

The prosecutor must:

  1. make submissions addressing the objective seriousness of the offence and the subjective circumstances of the offender where known
  2. inform the court of any relevant authority or legislation bearing on the appropriate sentence
  3. inform the court about the outcome of proceedings against any co-offender and provide copies of relevant material before the court that dealt with a co-offender
  4. fairly test the evidence or assertions advanced for the offender where necessary
  5. correct any error made on behalf of the offender during a sentence hearing
  6. assist the court to avoid appellable error on the issue of sentence. 

The prosecutor must provide reasonable notice to the defence of any witness required for cross-examination. If the prosecutor has been given insufficient notice of defence material to properly consider the prosecution’s position or verify defence assertions, an adjournment should be sought. Whether notice is insufficient will depend on the seriousness of the offence, the complexity and volume of the new material, the significance of the new allegations, the degree of divergence between the prosecution and defence positions and the availability of the means to check the material’s reliability.

A prosecutor may:

  1. that a sentence of full-time detention is appropriate or that a sentence other than full-time detention is within range, but must not suggest or recommend a numerical sentence or a sentencing range in a particular case, unless by reference to a guideline judgment
  2. provide statistical material and details of comparable cases where it would assist the court, indicating how the court would be assisted

A prosecutor must not in any way limit the discretion of the Director to appeal against the inadequacy of the sentence.