Does Rule 30 require a defence lawyer to disclose a client’s prior convictions when the prosecution has failed to do so?

On occasions a prosecutor may not have a defendant’s complete criminal history and you may be aware that your client does have priors. As a defence lawyer are you required to disclose to the Court the information you have?

The general proposition is that as a defence lawyer we are not required to disclose to the court our client’s adverse criminal history ('the general principle’). Our duty is to act in our client’s best interests (Rule 4.1.1 Australian Solicitors Conduct Rules 2012 (ASCR)) and as a consequence we should not make such a disclosure to the prosecutor or the court unless our client specifically instructs us to do so and the client understands the consequences of doing so (refer to the obligation of confidentiality in Rule 9 ASCR, the obligation to provide clear and timely advice to permit a client to make informed choices in Rule 7.1 ASCR and the need to follow a client’s lawful, proper and competent instructions in Rule 8.1 ASCR). In R v Bourchas [2002] NSWCCA 373 Giles JA (with whom Levine and Sperling JJ agreed) noted that in sentencing the Crown and defence act within the adversary system. His Honour also said that "[I]t is not consistent with that system that the offender is under a duty to bring forward everything adverse to the offender’s interests on sentencing”.¹

The rationale for this was best explained by Thomas J (with whom Connolly and Ambrose JJ agreed) in Boyd v Sandercock; Ex parte Sandercock (1990) 2 QdR 26 (‘Boyd’):

A court is bound to decide a case on the evidence before it. The penalty that was imposed was entirely in conformity with both the facts and the law. All that happened was that the prosecutor failed to provide evidence to the court of a relevant fact. The consequence of this should be no different from that in any other case where a party fails to call relevant evidence. It makes no difference whether the proceedings follow a plea of guilty or not guilty. The court is to decide the case on the evidence before it. Of course where a party deliberately misleads the court, other remedies may exist … Nothing like that happened in the present case in which the prosecutor was simply not aware of the previous conviction and elected to proceed on the assumption that there were no previous convictions. The solicitor for the appellant was in the circumstances under no positive duty to bring it to the attention of the court.²

We cannot knowingly or recklessly mislead a court (Rule 19.1 ASCR) by either the words we use or by omitting what may be necessary to be said. This is to avoid being either misleading or deceptive to the court.³ So as long as we do not put before the court misleading statements or half-truths, it is not our duty to disclose matters detrimental to our client, for example, prior convictions, or adverse aspects of his or her antecedents or character. In these circumstances we walk a fine line in how we craft our submissions. We cannot put submissions that would suggest the client has not previously offended in the manner disclosed to us by the client but of which the court is unaware.⁴

Rule 30 ASCR provides:

A solicitor must not take unfair advantage of the obvious error of another solicitor or other person, if to do so would obtain for a client a benefit which has no supportable foundation in law or fact.

This rule is directed to sharp practices. If a prosecutor is either, not aware of the prior convictions or fails to provide evidence to the court of a relevant fact Rule 30 ASCR does not alter the general principle. In the adversarial setting of the sentence hearing it is for the prosecution to establish the relevant facts and not the client. This is not a situation where our client is taking unfair advantage of the "obvious error” of the prosecutor to obtain a benefit which has no supportable foundation in law or fact. As noted in Boyd the court is bound to decide the case on the evidence before it. A penalty imposed by a court, where the prosecution has not provided evidence of prior convictions, is in conformity with both the facts and the law. Rule 19.10 ASCR reinforces our ethical duty and Rule 30 ASCR does not detract from it. There is no positive duty to bring prior convictions or adverse antecedents or character issues to the court’s attention. The solicitor in those circumstances cannot be said to be taking unfair advantage of the obvious error of another person. On the facts described in the first paragraph a defence lawyer would not be in breach of Rule 30 ASCR.

Remember there may be occasions, after the client has considered and understood the relevant legal issues, for the client to make an informed choice to make disclosure of prior criminal history; but, that is for the client to decide.⁵

1 R v Bourchas [2002] NSWCCA 373, [92].