Ethical issues in enforcement Krista Weymouth Senior Associate. 24 February 2015

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1 Ethical issues in enforcement Krista Weymouth Senior Associate 24 February 2015

2 Overview Model litigant guidelines and professional conduct rules Letters demanding compliance Investigation of complaints The decision to issue proceedings Prosecutor s role in sentencing 2

3 Enforcement functions and decisions Before, during and after proceedings For example: When and how to threaten proceedings When to prosecute and when not to When to proceed and when to withdraw Enforcing the outcome 3

4 Guiding the enforcement decisions Model litigant guidelines OPP/DPP guidelines Criminal Procedure Act 2009 Legal Profession Act and Rules 4

5 The model litigant guidelines Apply to the State government, its departments and agencies Based on the Commonwealth s obligation to act as a model litigant Common law origin concept of fair play

6 Common law origins Melbourne Steamship Ltd v Moorhead I am sometimes inclined to think that in some parts not all of the Commonwealth the old fashioned, traditional and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.

7 Common law origins (cont d) Hughes Aircraft v Airservices Australia There is, I consider much to be said for the view that, having no legitimate private interest in the performance of its functions, a public body (including a State owned company) should be required as of course to act fairly towards those with whom it deals at least in so far as this is consistent with its obligations to serve the public interest (or interests) for which it has been created

8 Obligation to act as a model litigant act fairly in handling claims and litigation brought by or against the State or an agency act consistently in the handling of claims and litigation pay legitimate claims without litigation, where it is clear that liability is at least as much as the amount paid

9 Obligation to act as a model litigant (cont d) do not rely on technical arguments do not take advantage of a claimant who lacks the resources to litigate a legitimate claim do not undertake and pursue appeals unless belief that there are reasonable prospects for success or the appeal is otherwise justified in the public interest.

10 Obligation to act as a model litigant (cont d) Responsibility Primarily responsibility of department / agency But lawyers need to act in accordance with the guidelines to assist their client to do so Scope More than honesty, compliance with law and rules

11 Professional Conduct and Practice Rules 2005 A practitioner must not, in the course of engaging in legal practice, engage in, or assist, conduct which is: (i) dishonest or otherwise discreditable to a practitioner; (ii) prejudicial to the administration of justice; or (iii) likely to diminish public confidence in the legal profession or in the administration of justice or otherwise bring the legal profession in disrepute.

12 Letters demanding compliance ACCC v Sampson [2011] FCA 1165 Potential misleading and deceptive conduct Don t overstate the consequences of noncompliance Don t claim costs that you have no legal entitlement to claim Non-English speaking recipients 12

13 Letters demanding compliance (cont d) Timing if threatening to issue proceedings Has that decision been made? Is there sufficient evidence? Clarity refer to the specific alleged breach / conduct

14 Letters demanding compliance (cont d) Give clear advice on how to comply Court may find them guilt and if so it may order fines of up to $ If successful, we would seek orders and/or costs

15 Investigating complaints All confessions or admissions must be given free from coercion Don t create expectations about the outcome of the investigation Witness statements Ensuring that witness is not influenced, separate interviews 15

16 Investigating complaints Powers of entry ID cards, announcements on entry, obtaining consent, times and places Physical evidence Collection, handling and return Search warrants Claims for privilege, collection of material beyond scope of warrant (computer files) 16

17 Investigating complaints Powers of entry ID cards, announcements on entry, obtaining consent, times and places Physical evidence Collection, handling and return Search warrants Claims for privilege, collection of material beyond scope of warrant (computer files) 17

18 The decision to issue proceedings OPP/CDPP Guidelines Model Litigant Guidelines Legal Profession Rules Policy of organisation

19 The decision to issue proceedings (cont d) Lawyer has a duty to comply with prosecutorial duties Independent no personal interest Duty to assist the court to achieve justice To only bring charges that are supported by admissible evidence To use the courts efficiently

20 Factors Evidence Due deliberation by a person experienced in weighing available evidence Admissible evidence

21 Factors Evidence (cont d) Credible evidence Personal agendas Experts reports Reliable evidence Witness willingness/availability Possible defences

22 Factors Public Interest Finite resources should not be wasted Seriousness (or lack of) Need for deterrence Mitigating circumstances

23 Factors Public Interest (cont d) Characteristics of offender - age, health Priors or background Age of offence Degree of culpability co-accused

24 Factors Public Interest (cont d) Alternatives to prosecution or civil penalty litigation Likely length and expense Co-operation by accused Need to maintain public confidence

25 Factors Considering the victim Attitude of victim Do not wish to participate Do not accept decision not to prosecute Entitlement of victim to statutory relief Public/stakeholder expectation

26 Factors NOT relevant Race, religion, sex, political preferences Victim s revenge or civil case Political advantage to government Decision maker s personal objectives

27 Making the decision Proper investigation Interview potential accused (or try to) Witness statements Applying a risk-based approach to enforcement

28 During enforcement litigation Prosecutor is an officer of the court and has a paramount and overriding duty to the court Legal practice rules and criminal practice rules place obligations on prosecutors re disclosure of all material even if it is adverse to the prosecution s case

29 The prosecutor s role in sentencing The role of the prosecutor on a plea and sentence is to represent the public interest in the prosecution of criminal offences To enable this role to be properly discharged, the prosecutor must participate actively at the plea and sentence stage of the proceedings

30 The prosecutor s role in sentencing Sentencing submissions should always be advanced in a fair and temperate manner Gravity and seriousness of offence Circumstances and history of offender Sentencing purposes Sentencing statistics and comparable cases

31 The prosecutor s role in sentencing Barbaro v The Queen No longer able to make submissions regarding the bounds of the available range of sentence it is for the sentencing judge, alone, to decide what sentence will be imposed [47] Ok to identify relevant sentencing statistics and comparable cases Where cases are comparable on some bases, but distinguishable on others, prosecutor must identify the distinguishing features and broadly indicate their consequences

32 Early resolution of prosecutions Agreeing on guilty plea Agreeing on facts Withdrawal of prosecution 32

33 Ethical Issues in Enforcement Krista Weymouth Senior Associate Direct krista.weymouth@maddocks.com.au 33