2023 Criminal Law CPD Series: Gratuitous Concurrence and the Role of the Prosecutor – Presenting a Fair and Firm Crown Case in the Face of Sociolinguistic Challenges

Ethics & Professional Responsibility

CPD Points: 1.5

About

A unique challenge faced in the adversarial system is that the prosecution only ‘wins’ when justice is done. An agreeable witness may, prima facie, seem like a blessing for those bringing the prosecution case. However, the presentation of a fair and firm prosecution in the criminal justice system must be reconciled with three distinct considerations:

1. The over-representation of Indigenous Australians interacting with the criminal justice system;
2. The phenomena of gratuitous concurrence – that is, the Indigenous Australian cultural practice of agreeing to direct questions to placate or appease the questioner; and
3. A prosecutor’s obligation to act fairly to the accused, act with integrity, and be mindful of cultural sensitivities – especially those relating to Aboriginal and Torres Strait Islander people.

How, then, are a prosecutor’s obligations discharged in the face of appeasement? The presentation aims to give an overview of the role of the prosecutor, as a minister of justice, and the distinct ethical framework the Crown operates in. From that overview, authorities which have developed and considered the phenomena of gratuitous concurrence are discussed. These decisions, and ‘practical’ applications, are contrasted with research and analyses of the phenomena within academia. The synthesis of academia and common law development are considered in extant justice stakeholder and law reform bodies, and what recommendations have been made, and are on foot.

Presenters

Shannon Matchett is a solicitor employed by the NSW ODPP, who currently practises in Wagga Wagga. Previously, he prosecuted in Parramatta and the Sydney West Trial Courts. Shannon graduated from the University of New England in 2018 whilst employed as a researcher in criminology, focusing on Family Law and judicial interpretations of the ‘best interests of the child’. Shannon’s major research interest concerns how psychology and the law intersect. He has previously presented CPDs on extra-curial punishment, tribal punishments (and their status/recognition within statutory framework) – and is working towards a later presentation on assessing demeanour/body language, and the perils of armchair psychology in the jury room.