A closing address for the prosecution is crucial as it is the final opportunity to address and persuade the judge or jury of the Crown’s case. A closing address parallels the opening address where the facts are reviewed and is the argument in favour in which the important evidence supporting the prosecution’s position is selected, and re-examined witness by witness, to support the theory of the case in relation to the disputed facts. It is important for the prosecution to make a fair, proper and impartial closing address in order to avoid a miscarriage of justice.
However, on occasions, closing addresses are flawed. Prosecutorial error in closing addresses include:
- inflammatory or inappropriate language;
- arguing a proposition that was never put to a witness;
- making an argument on material not in evidence;
- expressing personal opinions;
- referring to evidence that was expressly excluded from the evidence either by ruling or agreement;
- undermining trial judge’s directions;
- commenting on the accused failing to give evidence;
- raising the impermissible rhetorical question “why would the complainant lie?”
Livermore v R  NSWCCA 334 is a case in which the Crown Prosecutor’s closing address had resulted in a miscarriage of justice. During the closing address the Crown told the jury, inter alia, that the defence case was “bizarre” and “silly and that he had “not seen a plot this bad even on that “Desperate Housewives””. The Court referred to number of features of a Crown address that have, either alone or in combination, consistently been held to justify the censure. They are:
“(i) A submission to the jury based upon material which is not in evidence.
(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
(iii) Comments which belittle or ridicule any part of an accused’s case.
(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.
(v) Conveying to the jury the Crown Prosecutor's personal opinions.”
These 5 features are the established principles in which prosecutors must avoid in order for there to be no miscarriage of justice. A Crown address that contains a number of these features there will be a very real risk that unfairness will be occasioned to the accused. It was held that the Crown in this case engaged in conduct falling into each of these categories, except for (iv).
Rule A64 of the Revised Professional Conduct and Practice Rules 1995 (NSW) provides that a prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused. For example, in McCullough v R, a murder case, Crown counsel:
- emphasised the sanctity of life;
- emphasised the horrible nature of the crime of murder;
- characterised the accused as a “despicable” and “disgusting” man who felt no remorse and who was prepared to kill as another person might “swat a fly” or “flick out a match”; and
- compared the accused to the Yorkshire Ripper, who were he not restrained by law might be responsible for having “half the community wiped out”.
The Tasmanian Court of Criminal Appeal held that these remarks were calculated to prejudice the jury against the accused by arousing feelings of disgust and revulsion against him, and to engender in the jury feelings of fear and apprehension. It ruled that a miscarriage of justice had occurred because there was a real risk that the jury was improperly influenced by those remarks, and quashed the conviction.
However, in reaching this conclusion, a balancing exercise is required:
“Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions.”
In R v Rugari the prosecutor must represent the interest of the State (and thus of the entire community). In Libke v R Kirby and Callinan JJ stated “The role of prosecuting counsel is not to be passive. He or she may be robust, and be expected and required to conduct the prosecution conscientiously and firmly”.
Less extreme lack of personal detachment by a prosecuting lawyer can also cause a miscarriage of justice. In R v Liristis, for instance, the New South Wales Court of Criminal Appeal held the prosecutor’s comments were inappropriate because, inter alia, he inappropriately provided his own reaction to the evidence given by the accused. His reaction was, according to their Honours, irrelevant as he was appearing as an advocate, not as a witness.
This balance does not mandate a complete absence of emotive conduct and language by a prosecuting lawyer. It is unrealistic to expect prosecutors to perform their work without any passion, and without reference to human emotion. As explained by Thomas JA, with whom Pincus and Davies JJA concurred, in R v Day:
“… criminal trials deal with human situations and it is the duty of counsel to elicit answers which will give the jury appropriate insights into the conduct which will facilitate the drawing of inferences on issues such as motive, intention, knowledge and state of mind of various actors. It is counsel’s duty to do so, and to try to do so persuasively. The statements made in the above cases condemning inflammatory and emotive conduct by counsel are not in my view intended to deny counsel their proper role in these respects.”
Nor does it necessarily prevent prosecutors from advancing a case inconsistent with a significant portion of the available evidence that is favourable to the accused, and in fact prosecutors frequently do so.
 Professor Dan Howard, ‘Subject Outline LWPD Prosecutorial Practice’ (2012) University of Wollongong.
 Livermore at .
  Tas R 43
 Ibid at 58-9.
 Ibid at 57.
 (2001) 122 A Crim R 1;  NSWCCA 64; BC200101379 at ,  per Carruthers AJ (prosecutors not to be inhibited in presenting the Crown case “in a firm and positive manner”, and must discharge their obligations fearlessly in the interests of the Crown, acting on behalf of the community).
 (2007) 235 ALR 517; (2007) 230 CLR 559; 81 ALJR 1309;  HCA 30; BC200704641.
 Ibid at .
  NSWCCA 287; BC200405456
 Ibid at 
 R v Day  QCA 313 at . Also R v Deriz (1999) 109 A Crim R 329;  WASCA 267 at   per Parker J; R v Attallah  NSWCCA 277; BC200506357 at ,  per James J, with whom Buddin and Rothman JJ concurred.
 R v Calway (2005) 157 A Crim R 322;  VSCA 266; BC200509868 at  per Nettle JA.
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