LLB197 Lecture Notes - Lecture 9: Crimes Act 1958, Legal Ethics, Affirmative Defense
TOPIC 8: Duty to the Court and Administration of Justice
Duty to the profession (topic one)
DUTY TO THE COURT
Uniform Conduct Rules (Solicitors): rr 3, 17-29
Duty to client is a fundamental duty – HOWEVER if duty to client and duty the Court conflict, the duty to
the Court prevails.
This mirrors long-held principle at common law – Giannarelli v Wraith (1988) 165 CLR 543.
“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask
every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the
court concerned in the administration of justice, he has an overriding duty to the court, to the standards of
his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or
with what the client thinks are his personal interests. Counsel must not mislead the court” – Rondel v
Worsley [1969] 1 AC 191 at 227
Turning to the questions at the end of Chapter 16…
It is recommended that you try to follow the ILAC method of problem solving in composing your answers.
Remember to include appropriate sources…
- Uniform Law
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 –ie the Uniform Conduct Rules
(Solicitors) OR Legal Profession Uniform Conduct (Barristers) Rules 2015 – ie Uniform Conduct Rules
(Barristers).
- Relevant cases
MUST do this with exam problem questions.
Chapter 16 BACKGROUND INFO NEEDED
What is an affidavit?
An affidavit is a written statement of evidence which the witness has sworn or affirmed to be true.
A lawyer will draft the affidavit but it must be in the witness’ own words.
An affidavit must be sworn or affirmed before a person such as a justice of the peace or a legal
practitioner.
Giving written evidence, rather than oral evidence in the witness box, saves a lot of time. Some
jurisdictions require evidence to be via affidavit (eg family law).
Signing the affidavit
The person making the affidavit must first take an oath or make an affirmation in front of a solicitor or
Justice of the Peace. Only after the oath or affirmation has been taken can the affidavit be signed. The
solicitor or Justice of the Peace must then also sign and date the affidavit and any annexures to it.
What is perjury? Punishment?
In addition to breaching duty (and Rule) not to mislead court, lying in court or giving a false
testimony by affidavit can be perjury – a criminal offence.
Perjury: the intentional act of swearing a false oath or of falsifying an affirmation to tell the truth, whether
spoken or in writing, concerning matters material to judicial proceedings (eg court hearing)
Crimes Act 1900 (NSW):
s327 – false statement material to proceeding = perjury - 10 yrs imprisonment.
s330 – false statement (other than in connection with judicial proceedings) - 5yrs imprisonment.
Courtesy to the Court and Undertakings
When is lack of courtesy to the court likely to be viewed as professional misconduct and
lead to disciplinary sanction?
What is meant by lawyers being ‘officers of the court’ and where is that provided for in the law?
What is an ‘undertaking’? What requirements apply? Why is compliance with an undertaking so
important?
Prosecutors’ Duties to the Court? (add info)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Topic 8: duty to the court and administration of justice. Duty to client is a fundamental duty however if duty to client and duty the court conflict, the duty to the court prevails. This mirrors long-held principle at common law giannarelli v wraith (1988) 165 clr 543. Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client"s case. Counsel must not mislead the court rondel v. Turning to the questions at the end of chapter 16 . It is recommended that you try to follow the ilac method of problem solving in composing your answers. Legal profession uniform law australian solicitors" conduct rules 2015 ie the uniform conduct rules (solicitors) or legal profession uniform conduct (barristers) rules 2015 ie uniform conduct rules (barristers). An affidavit is a written statement of evidence which the witness has sworn or affirmed to be true.
