By Blake O’Connor and Ugur Nedim
Prosecutors in NSW are required to follow a range of rules, which include duties of fairness and disclosure to the defence.
They are meant to act to a high ethical standard in the performance of their duties, recognising that a well-resourced prosecution carries immense power over those whose liberty is on the line after being accused of criminal offences.
A prosecutor’s job is certainly not to secure a conviction at all costs; rather, the ‘NSW Solicitors Rules’ requires that:
“29.1 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.
29.2 A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.
29.3 A prosecutor must not by language or other conduct, seek to inflame or bias the court against the accused.
29.4 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.”
However, unscrupulous prosecutors have been known to act in an unethical or even illegal manner to secure a conviction or, in some cases, to help a friend.
Indeed, the latter occurred in the case of prosecution lawyer Abubakhar Braimah-Mahamah, who was convicted last month of eight counts of ‘accessing restricted data held in a computer’ contrary to s308H of the Crimes Act 1900 (NSW)’. The offence carries a maximum penalty of 2 years imprisonment.
Mr Braimah-Mahamah was employed by the Office of the Director of Public Prosecutions (DPP) when he unlawfully accessed material relating to convicted drug supplier Mr Hudu Abdulai Alhassan, who he had a personal relationship with.
Without authority, the prosecutor accessed a range of restricted files relating to Mr Alhassan on 127 separate occasions on 61 days between 3 May 2012 and 13 December 2013.
The prosecutor was convicted in Downing Centre Local Court and sentenced to 100 hours of community service. He appealed against that sentence, and his appeal was heard by former Attorney-General and current District Court Judge John Hatzistergos, who noted that:
“it is inconceivable that the offender was not aware that a conflict of interest existed … There is a clear public interest in the ODPP staff meeting high standards of conduct. By not doing so, the offender not only breached the obligations of his position but potentially compromised himself, undermined the confidences of the public and more specifically, the confidence of those who in their dealings rely on the integrity of ODPP staff to ensure compliance with the required standards”.
In the result, the Judge allowed Mr Braimah-Mahamah’s appeal, but confirmed the conviction and – instead of community service – imposed a 16-month good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999. The sentence comes with a criminal conviction.
Win at all Costs
Australia is not the only country where prosecutors have been known to act unethically.
Indeed, the New York Times has described prosecutorial misconduct in America as ‘rampant’, with 42 per cent of wrongful convictions being the result of official misconduct, according to the National Registry of Exonerations.
Concerns over systemic prosecutorial misconduct are reflected in the decision of the United States Fifth Circuit Court of Appeals where the Court granted a new trial after questionable prosecution tactics had been exposed. In that case, several police officers were indicted on charges including conspiracy, obstruction of justice, firearms and civil rights violations arising from events during Hurricane Katrina. Police were found to have leaked a range of information to the press, all of which was highly favourable to the prosecution and prejudicial to the defendants. It became apparent that Senior Trial Counsel, Sal Perricone, was making ‘inflammatory, highly opinionated, and pro-prosecution statements about the case under multiple assumed names’.
The Court described the events as ‘shocking breaches of prosecutorial ethics, cyber bullying, and lying to the Court’.
Unfortunately, these occurrences, both in Australia and in other countries, are not altogether rare.
In a recent NSW case, a 15 year old boy who spent more than seven years in prison, had his murder conviction was quashed after it was revealed that the DPP lawyer, Prosecution Barrister and even his own defence lawyer ‘failed to disclose’ information which significantly undermined the credibility of the main witness against him.
That case exemplified the lengths prosecutors are willing to go in order to secure a conviction, and the things some unscrupulous defence lawyers are prepared to do to make more money.