New South Wales Bar Association Rules — Extracts

Note:

The following extracts are reproduced with the kind permission of the New South Wales Bar Association.

[70-000] Frankness in court

21.

A barrister must not knowingly make a misleading statement to a court on any matter.

22.

A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.

23.

A barrister must take all necessary steps to correct any express concession made to the court in civil proceedings by the opponent in relation to any material fact, case-law or legislation:

(a) 

only if the barrister knows or believes on reasonable grounds that it was contrary to what should be regarded as the true facts or the correct state of the law;

(b) 

only if the barrister believes the concession was an error; and

(c) 

not (in the case of a concession of fact) if the client’s instructions to the barrister support the concession. [Substituted Gazette No 7 of 21 January 2000 p 348]

24.

A barrister seeking any interlocutory relief in an ex parte application must disclose to the court all matters which:

(a) 

are within the barrister’s knowledge;

(b) 

are not protected by legal professional privilege; and

(c) 

the barrister has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

25.

A barrister must, at the appropriate time in the hearing of the case and if the court has not yet been informed of that matter, inform the court of:

(a) 

any binding authority;

(b) 

any authority decided by the Full Court of the Federal Court of Australia, a Court of Appeal of a Supreme Court or a Full Court of a Supreme Court;

(c) 

any authority on the same or materially similar legislation as that in question in the case, including any authority decided at first instance in the Federal Court or a Supreme Court, which has not been disapproved; or

(d) 

any applicable legislation;

which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.

28.

A barrister need not inform the court of any matter otherwise within Rule 25 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence. [Amended Gazette No 66 of 20 June 1997 p 4553 and Gazette No 88 of 8 August 1997 p 6111]

29.

A barrister will not have made a misleading statement to a court simply by failing to disclose facts known to the barrister concerning the client’s character or past, when the barrister makes other statements concerning those matters to the court, and those statements are not themselves misleading.

30.

A barrister who knows or suspects that the prosecution is unaware of the client’s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.

31.

A barrister must inform the court in civil proceedings of any misapprehension by the court as to the effect of an order which the court is making, as soon as the 07/05/01 barrister becomes aware of the misapprehension.

[70-020] Delinquent or guilty clients

33.

A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty:

(a) 

may return the brief, if there is enough time for another legal practitioner to take over the case properly before the hearing, and the client does not insist on the barrister continuing to appear for the client;

(b) 

in cases where the barrister keeps the brief for the client:

(i) 

must not falsely suggest that some other person committed the offence charged;

(ii) 

must not set up an affirmative case inconsistent with the confession; but

(iii) 

may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;

(iv) 

may argue that for some reason of law the client is not guilty of the offence charged; or

(v) 

may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged. [Amended Gazette No 66 of 20 June 1997 p 4554]

34.

A barrister whose client informs the barrister that the client intends to disobey a court’s order must:

(a) 

advise the client against that course and warn the client of its dangers;

(b) 

not advise the client how to carry out or conceal that course; but

(c) 

not inform the court or the opponent of the client’s intention unless:

(i) 

the client has authorised the barrister to do so beforehand; or

(ii) 

the barrister believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety.

[70-040] Responsible use of court process and privilege

35.

A barrister must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the barrister or on the barrister’s advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:

(a) 

are reasonably justified by the material already available to the barrister;

(b) 

are appropriate for the robust advancement of the client’s case on its merits;

(c) 

are not made principally in order to harass or embarrass the person; and

(d) 

are not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court

36.

A barrister must not allege any matter of fact in:

(a) 

any court document settled by the barrister;

(b) 

any submission during any hearing;

(c) 

the course of an opening address; or

(d) 

the course of a closing address or submission on the evidence;

unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so. [Substituted Gazette No7 of 21 January 2000 p 348]

37.

A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:

(a) 

available material by which the allegation could be supported provides a proper basis for it; and

(b) 

the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out. [Substituted Gazette No 7 of 21 January 2000 p 348]

38.

A barrister must not make a suggestion in cross-examination on credit unless the barrister believes on reasonable grounds that acceptance of the suggestion would diminish the witness’s credibility. [Substituted Gazette No 7 of 21 January 2000 p 348]

39.

A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which Rules 36 and 37 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence). [Substituted Gazette No 7 of 21 January 2000 p 348]

40.

A barrister who has instructions which justify submissions for the client in mitigation of the client’s criminality and which involve allegations of serious misconduct against any other person not able to answer the allegations in the case must seek to avoid disclosing the other person’s identity directly or indirectly unless the barrister believes on reasonable grounds that such disclosure is necessary for the robust defence of the client. [Previously Rule 42, Renumbered Gazette No 7 of 21 January 2000 p 348]

[70-060] Efficient administration of justice

42.

A barrister must seek to ensure that work which the barrister is briefed to do in relation to a case is done so as to:

(a) 

confine the case to identified issues which are genuinely in dispute;

(b) 

have the case ready to be heard as soon as practicable;

(c) 

present the identified issues in dispute clearly and succinctly;

(d) 

limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client’s interests which are at stake in the case; and

(e) 

occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case.9 [Substituted Gazette No7 of 21 January 2000 p348]

42A.

A barrister must take steps to inform the opponent as soon as possible after the barrister has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try with the opponent’s consent to inform the court of that application promptly. [Inserted Gazette No 7 of 21 January 2000 p 348]

[70-080] Integrity of evidence

43.

A barrister must not suggest or condone another person suggesting in any way to any prospective witness (including a party of the client) the content of any particular evidence which the witness should give at any stage in the proceedings. [Amended Gazette No 66 of 20 June 1997 p 4555]

44.

A barrister will not have breached Rule 43 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not coach or encourage the witness to give evidence different from the evidence which the witness believes to be true. [Amended Gazette No 66 of 20 June 1997 p 4555–4556]

48.

A barrister must not confer with any witness (including a party or client) called by the barrister on any matter related to the proceedings while that witness remains under cross-examination, unless:

(a) 

the cross-examiner has consented beforehand to the barrister doing so; or

(b) 

the barrister:

(i) 

believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;

(ii) 

has, if possible, informed the cross-examiner beforehand of the barrister’s intention to do so; and

(iii) 

otherwise does inform the cross-examiner as soon as possible of the barrister having done so. [Amended Gazette No 66 of 20 June 1997 p 4556 and Gazette No 88 of 8 August 1997 p 6111]

49.

A barrister must not take any step to prevent or discourage prospective witnesses or witnesses from conferring with the opponent or being interviewed by or on behalf of any other person involved in the proceedings.

50.

A barrister will not have breached Rule 49 simply by telling a prospective witness or a witness that the witness need not agree to confer or to be interviewed. [Amended Gazette No 66 of 20 June 1997 p 4556]

[70-100] 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. [Amended Gazette No 66 of 20 June 1997 p 4558]

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. [Amended Gazette No 66 of 20 June 1997 p 4558]

66.

A prosecutor must disclose to the opponent as soon as practicable all material (including the names of an means of finding prospective witnesses in connexion with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused, unless:

(a) 

such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person; and

(b) 

the prosecutor believes on reasonable grounds that such a threat could not be avoided by confining such disclosure, or full disclosure, to the opponent being a legal practitioner, on appropriate conditions which may include an undertaking by the opponent not to disclose certain material to the opponent’s client or any other person. [Amended Gazette No 66 of 20 June 1997 p 4558]

66A.

A prosecutor who has decided not to disclose material to the opponent under Rule 66 must consider whether:

(a) 

the defence of the accused could suffer by reason of such non-disclosure;

(b) 

the charge against the accused to which such material is relevant should be withdrawn; and

(c) 

the accused should be faced only with a lesser charge to which such material would not be so relevant. [Inserted Gazette No 66 of 20 June 1997 p 4564–4565]

66B.

A prosecutor must call as part of the prosecution’s case all witnesses:

(a) 

whose testimony is admissible and necessary for the presentation of the whole picture;

(b) 

whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;

(c) 

whose testimony or statements were used in the course of any committal proceedings;

(d) 

from whom statements have been obtained in the preparation or conduct of the prosecution’s case; unless:

(e) 

the opponent consents to the prosecutor not calling a particular witness;

(f) 

the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused; or

(g) 

the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness or particular witnesses to establish a particular point already adequately established by another witness or other witnesses; provided that:

(h) 

the prosecutor is not obliged to call evidence from a particular witness, who would otherwise fall within (a)–(d), if the prosecutor believes on reasonable grounds that the testimony of that witness is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused; and

(i) 

the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (f), (g) and (h), together with the grounds on which the prosecutor has reached that decision. [Inserted Gazette No 66 of 20 June 1997 p 4564–4565, Amended Gazette No 7 of 21 January 2000 p 348]

67.

A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully obtained must promptly:

(a) 

inform the opponent if the prosecutor intends to use the material; and

(b) 

make available to the opponent a copy of the material if it is in documentary form.

68.

A prosecutor must not confer with or interview any of the accused except in the presence of the accused’s representative.

69.

A prosecutor must not inform the court or the opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that such evidence will be available from material already available to the prosecutor. [Inserted Gazette No 66 of 20 June 1997 p 4558]

70.

A prosecutor who has informed the court of matters within Rule 69, and who has later learnt that such evidence will not be available, must immediately inform the opponent of that fact and must inform the court of it when next the case is before the court.

71.

A prosecutor must not seek to persuade the court to impose a vindictive sentence or a sentence of a particular magnitude, but:

(a) 

must correct any error made by the opponent in address on sentence;

(b) 

must inform the court of any relevant authority or legislation bearing on the appropriate sentence;

(c) 

must assist the court to avoid appealable error on the issue of sentence;

(d) 

may submit that a custodial or non-custodial sentence is appropriate; and

(e) 

may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant appellate authority. [Amended Gazette No 66 of 20 June 1997 p 4559]