Evidentiary Discretion, Advocacy Ethics and the Search for Truth
How does the barrister’s exercise of evidentiary discretion within the adversarial system expose the tension between moral neutrality, truth-seeking, and the law’s aspiration to operate as a force for good?[1]
Introduction
The adversarial system entrusts barristers with significant control over the flow, shape and quality of evidence placed before the court. This evidentiary discretion is both a technical and moral power. It determines not only how facts are presented but how justice is done. This essay examines whether that discretionary capacity supports or undermines the law’s aspiration to operate as a force for good.
Without entering a full philosophical exegesis, it is necessary to clarify what ‘good’ might mean in this context. The philosopher G. E. Moore [2] famously argued that ‘goodness’ is a simple, indefinable, non-natural property apprehended through intuition.[3] Alasdair MacIntyre distinguished between the internal goods of practices (justice, truth, excellence) and the external goods of institutions (victory, status, profit).[4] In the adversarial setting, barristers risk privileging the external good of winning over the internal good of truth-seeking. Aristotle[5] believes that good is found in human flourishing, and justice itself is a moral virtue. [6] If truth is obscured, moral goodness collapses.[7]
In the context of the operation of the law, the 2005 Australian Law Reform Commission report [8] observed that evidentiary rules are not merely technical devices for barristers to exploit but function to seek the truth, protect individual rights, and ensure that the State’s coercive power is exercised only through fair and rational proof. By situating evidentiary practice within this broader institutional design, the ALRC highlights that the moral stakes of evidentiary decision-making are inherent to the adversarial model itself.
It is within this intersection of philosophy, doctrine and advocacy that the present essay locates the tension between moral neutrality, truth-seeking and the ethical burden placed upon barristers.
Tension between evidentiary discretion and the adversarial system
Because the principles of professionalism and capitalism are dominant within our democratic, liberal-capitalist society,[9] the legitimacy of the courts rests on the public perception that the adversarial system is capable of producing truth, or at least a reliable approximation of it.[10] Finkelstein J argues that the law’s moral authority depends on its ability to deliver both truth and fairness, which together constitute the law’s claim to operate as a force for good. Yet he identifies a deep contradiction at the heart of the adversarial model: while the system aspires to truth-seeking, the barrister’s role is defined by a form of qualified partisanship, obliging them to advance their client’s interests to the fullest extent permitted by law.[11] This contradictory tension becomes most visible in the exercise of evidentiary discretion,[12] where strategic decisions about disclosure, admissibility, witness management and expert evidence can sit uneasily alongside the barrister’s paramount duty to the court and the administration of justice.[13] The very mechanisms designed to ensure fairness can therefore place the lawyer’s truth-seeking obligations in direct conflict with their partisan duties, exposing the structural fragility of adversarial justice. The difficulty lies in determining where partisanship ends and the duty to justice begins. This tension is so acute that both the Barristers’ and Solicitors’ Conduct Rules [14] devote substantial attention to managing conflicts between client loyalty, confidentiality, and evidentiary ethics.[15] It is within this space – between zealous advocacy and the ideal of truth-seeking – that the moral strain of evidentiary discretion becomes most visible.
Why this research question matters
The question matters because the legitimacy of the adversarial system and the rule of law itself depend on the public belief that courts seek truth through fair and principled procedures. Although the barrister has a paramount duty to the court, the adversarial model creates an intentionally amoral role for the barrister, whose prime loyalty is to the client.[16] While this is constrained by the paramount duty to the court and the administration of justice, the system’s design often rewards strategic and technical manoeuvres that can obscure or distort the factual foundation of a case. Only when partisan advantage does not require the barrister to compromise the truth is justice achieved. Similarly, when countervailing safeguards, such as the Responsible Barrister ideal, [17] or the judge’s exclusionary discretion, prevent strategy from eclipsing integrity does justice also prevail. When these structural safeguards fail, the system relies heavily on the barrister’s conscience and their ethical restraint in pursuit of victory. This reliance on character rather than structure exposes a fragility at the heart of adversarial practice and raises the central concern of this commentary. Can evidentiary discretion genuinely support the law’s aspiration to operate as a force for good?
Methodology
I have adopted a primarily qualitative and analytical methodology, combining doctrinal analysis with narrative case studies to explore how evidentiary law and advocacy ethics interact in practice. The doctrinal component examines the Evidence Act 1995 (NSW), [18] selected judicial decisions (including IMM, Bunning v Cross, Kadir, Swaffield, Dasreef), [19] and the Legal Profession Uniform Conduct Rules, [20] to interpret how principles of admissibility, privilege, fairness and expert opinion shape the barrister’s role in truth-seeking. Complementing this, the research draws on a range of jurisprudential and ethical theories, including Finkelstein’s critique of adversarial truth-seeking; Parker’s models of lawyerly morality; Mortensen’s account of professional culture; Wasserstrom’s analysis of role-differentiated ethics; and relevant commentary from Frankel, Millett and Edmond on the fragility of evidence. These materials will be examined through an interpretive lens to evaluate how notions of truth, fairness and integrity function as moral foundations of justice, and how they shape the lawyer’s evidentiary obligations. To bridge theory and practice, the commentary incorporates two constructed narrative case studies, one from the perspective of defence counsel and one from the prosecution. These vignettes operate as applied ethical case studies, illustrating how doctrinal rules, professional duties and moral reasoning collide in real forensic decision-making. Analysed qualitatively, they expose the tensions between the duty to the client and the duty to the court, and reveal how evidentiary discretion can either sustain or undermine the law’s claim to operate as a force for good. [21]
The Barrister’s Role and Evidentiary Discretion
Intrinsic to the barrister’s role in NSW is the ethical framework within which advocacy must operate. A barrister’s status as an officer of the Supreme Court constrains the extent of their loyalty to the client. The traditional image of extreme partisanship is epitomised by Lord Brougham’s declaration in 1820, that a barrister’s interests are solely to their client, regardless of ‘the alarm, the suffering, the torment, the destruction’ caused to others, [22] but this has been decisively qualified in Australian law. In 1988, Chief Justice Mason in Giannarelli v Wraith [23] stated that ‘the duty to the court is paramount and must be performed even if it conflicts with the client’s instructions.’ [24] The barrister’s judgment in exercising evidentiary discretion therefore affects not only the client’s prospects but also ‘the speedy and efficient administration of justice.’[25] This doctrinal framing positions evidentiary discretion as a site where the barrister’s competing duties inevitably converge.
Duties to the client, the Court and the Administration of Justice
The barrister’s professional obligations are threefold: a duty of loyalty and confidentiality to the client; a paramount duty to the court; and a duty to uphold the administration of justice. Tensions emerge because the adversarial system depends on robust client-centred representation, yet it simultaneously requires candour and fairness to the court. Evidentiary discretion, whether to object, disclose, challenge, or refrain, becomes the practical mechanism through which these duties are balanced. This is not merely a technical exercise, it is the ethical axle around which justice, fairness, and truth can turn. The philosopher MacIntyre’s description of barristers being the ‘clergy of liberalism’ [26] who have over time elevated the Enlightenment’s ‘individual’ within the legal system, may be a fitting label for Australian barristers whose partisanship toward their individual client is central to the ethical dilemma faced by them on a daily basis.
Partisanship and the Limits of Moral Neutrality
In practice, partisanship and non-accountability are the core principles of the adversarial advocate approach and the underlying assumption of the barrister’s role-differentiated behaviour.[27] Wasserstrom has observed that this leads to the barrister’s expertise being for the benefit of the client regardless of the moral value of the outcome or the character of the client.[28] Mortenson similarly describes this as a form of moral neutrality that is deeply ingrained in the role-differentiated behaviour of the barristers in liberal democracies.[29] If a barrister were to screen clients based on moral judgement, they would usurp the role of the judge. As such, neutrality is treated as a professional virtue.[30] Ultimately, the barrister is forced to inhabit what Wasserstrom suggests is an amoral universe.[31] This allows barristers to operate within a simplified world of clear duties and structured roles which is far less morally ambiguous than ordinary life.[32] Moral dilemmas are easily turned aside when the barrister is enticed by the notion that their job is not to judge the rights and wrongs of client or cause. It could be argued that this is for the good of the complex system in which the barrister participates. The law depends on barristers adhering to their assigned roles, but the integrity of the system depends on how they navigate the moral limits of those roles. Ironically or indeed thankfully, the barrister’s amorality or moral neutrality guarantees all defendants will have their day in court.[33]
Evidentiary Discretion as the moral pressure point
Evidentiary discretion is the point at which the barrister’s competing duties are most sharply felt. Decisions about admissibility, disclosure, cross-examination and the handling of expert evidence require the barrister to weigh partisan advantage against the integrity of the fact-finding process. As Finkelstein notes, the adversarial system aspires to truth, but its structure encourages strategic behaviour capable of distorting it.[34] Within the barrister’s discretionary space, this distortion or tension between moral neutrality and justice becomes practically and morally acute.
The barrister’s discretionary power is most visible in disclosure, admissibility, witness preparation and expert evidence. Firstly, disclosure choices, including the ‘proviso’ shaped by privilege and the ‘put the Crown to proof’[35] principle, are found in R v Swaffield; Pavic v The Queen.[36] The case highlights the tension between strategic silence and the court’s truth-seeking function. The High Court recognised that the accused may require the Crown to prove its case while remaining silent about information that might assist the prosecution, provided counsel does not mislead the court.
Secondly, decisions regarding admissibility under the Evidence Act,[37] often require choosing whether maximising client advantage is compatible with fairness and reliability. Where evidence has been obtained unlawfully, the court has a discretion as to whether to admit the evidence. In Bunning v Cross, the High Court affirmed the judge’s discretion, stating that improperly or illegally obtained evidence is not necessarily inadmissible, however, on a judge’s discretion it may be rejected. [38]
Thirdly, cross-examination and witness preparation sit on the boundary between legitimate testing and impermissible coaching, revealing how easily advocacy can distort truth. The distinction is well illustrated in the frequently cited English case R v Momodou.[39]
Finally, IMM [40] and Dasreef, [41] expose the fragility of scientific testimony and the moral pressure placed on counsel to prefer persuasive experts over objective ones. The choice is ethical, not technical.
Narrative cases[42]
What follows are two hypothetical vignettes depicting counsel for the defence and prosecution under moral pressure. The simplicity of the issues does not intend to dilute the seriousness of the ethical dilemmas. The rules of the adversarial system will expose the character of the barristers as they struggle to navigate the amorality the system enables.[43]
R v Hartley – The Defence Moral Pressure Points
The defence brief arrives
Clara Vance, a seasoned Sydney defence barrister, received the brief for R v Hartley, a 29-year-old labourer accused of fracturing a man’s cheekbone outside a Bondi pub.The evidence consisted of grainy CCTV, intoxicated witnesses, and a solicitor’s note – Client denies punch but admits involvement. Clara knew immediately that this was the pressure point where truth, strategy and fairness collide.
The moral vacuum
At conference, Hartley muttered, ‘I didn’t punch him… I was there… just not like that.’ Clara saw the dilemma at once. Hartley would enter a not-guilty plea, forcing the Crown to prove its case, but he could not give evidence denying the punch because that would be untrue. The plea was legally permissible, yet it carried the practical effect of a denial the client could not honestly make.
A system that tolerates this morally neutral stand risks trading truth for process. In R v Swaffield, the High Court’s recognized the principle that an accused is entitled to remain silent and require the Crown to prove its case.[44]
Moral fragility of expert testimony
The prosecution’s expert ‘injury pattern analyst’ claimed the injury was consistent with a right-handed punch. Hartley was right-handed. The opinion was speculative, built on photographs. Clara considered instructing her own Dr Suresh, who would say the injury was equally consistent with a fall. Could she ‘massage’ Suresh’s report to emphasise uncertainty? She remembered Millet’s warning that expert evidence can easily drift from objectivity to partisan construction.[45]
Strategic concealment versus truth-seeking.
The solicitor discovered a second CCTV camera facing inside the pub that had not been obtained by police. When Clara mentioned it, Hartley panicked: ‘You can’t get that. It’ll ruin me.’ Clara understood that, as defence counsel, she had no duty to investigate or obtain evidence that might incriminate her client, nor any obligation to disclose unfavourable material unless it would render her own submissions or evidence misleading. Silence, in this context, was legally permissible. But ethically? Parker’s ‘Responsible Barrister’ urged integrity, and the ‘Adversarial Advocate’ urged silence.[46] Clara felt herself slide into Wasserstrom’s ‘amoral universe.’ [47]
Unravelling witness confidence
A drunk witness, Mark Tolley initially told police he saw Hartley punch the complainant but later admitted uncertainty. Clara could not coach him, but could ‘test’ his recollection, knowing that gentle probing might weaken his confidence. Where was the line between clarifying memory and shaping doubt?
The expert, the witness, the CCTV
In cross-examination Clara dismantled Dr Fielding’s methodology.
‘You didn’t examine the complainant?’
‘You only relied on photographs?’
‘You cannot rule out a fall, can you?’
It was effective advocacy, but not necessarily the path to truth.The internal CCTV was never tendered. Clara remained silent.
On the stand, Tolley the witness faltered, ‘I… think it was him… maybe. I’m not sure.’ Clara had done nothing improper, but she knew her testing had sown the seeds of doubt.
The verdict
The jury acquitted.
Hartley embraced Clara: ‘You saved my life.’ Clara managed a faint smile. Had she served justice, or simply won the contest? The unseen CCTV lingered in her mind.Finkelstein’s critique rang true, ‘the adversarial trial often secures only an accidental approximation of truth.’[48] Clara realised that the barrister stands precisely where truth and justice may part ways.
The Case of R v Hartley – The Prosecution Moral Pressure Points
The briefing
Senior Crown Prosecutor Jayden Lu received the Hartley file late on a Thursday.Its contents contained the sketchy narrative of a pub fight, resulting in a fractured cheekbone, witnessed by a grainy street CCTV. It was obvious the police investigation had been rushed. Jayden knew from experience that weak investigations would pressure him into manufacturing coherence where little exists. He would create an illusion of consistency or truth by packaging messy facts into a neat, persuasive narrative. Juries can confuse a smooth persuasive story for the truth.[49]
The illegally obtained evidence dilemma
A junior officer had recorded a short, informal interview with Hartley outside the pub without caution or proper procedure. The recording captured Hartley saying, ‘I didn’t mean for it to go that far,’ followed by a muffled apology. Jayden winced. It was straight out of the Bunning v Cross playbook – improperly obtained, prejudicial, and likely to invite a s 138 exclusion application.[50] But it was also the strongest piece of anything resembling direct evidence.
The dilemma crystallised. The prosecution could tender it and risk the judge excluding it, damaging their credibility? Or withhold it and risk weakening an already fragile prosecution case? Jayden’s duty was to act as a ‘minister of justice,’ [51] not a partisan. However, for the victim’s sake winning would be good.
Taint v Integrity
The police had briefed Dr Fielding, an injury pattern analyst known for confident conclusions. Jayden knew Fielding’s opinions often skirted the boundary between science and advocacy. His report stated the injury was ‘consistent with a right-handed blow.’ This was technically true, but also just an opinion which prompted s 76(1)[52] and Dasreef v Hawchar to swirl through his mind.[53] Should he call Fielding? Without him, the case was thin. With him, the risk was presenting evidence vulnerable to a challenge based on Dasreef. According to Parker the prosecutor is expected to seek justice but will be judged by results.[54]
Clarity over truth.
The only eyewitness, Tolley, had been drunk and was unreliable, inconsistent and anxious. When Jayden met him at pre-trial, Tolley said, ‘I told police what they wanted to hear. I… don’t really remember.’ He knew he could not shape Tolley’s evidence and he could not encourage certainty. He could only clarify his memory. If Tolley was hesitant the case may survive. If he fell to pieces, the case would be irretrievable. Momodou supports making the witness familiar with the process, but not subtly coaching him.[55]
Undiscovered evidence
Jayden was unaware of the second camera inside the pub, he never inquired. No one in the police team mentioned additional footage. This was not misconduct. As the Law Society has observed this is a blind spot built into adversarial investigation.[56]The prosecution only discloses what exists, not what might exist. The system’s design according to scholars Findlay and Scott, encourages tunnel vision, and Jayden walked squarely through the tunnel.[57]
The Trial and Aftermath
Fielding struggled under cross-examination. Tolley the witness, wavered. The junior policeman’s illicit recording stayed in Jayden’s folder.
When the jury acquitted, Jayden felt complex relief. He had complied with his duty. He had not pushed tainted evidence, nor tried to bolster weak testimony. However, he also knew the full truth of what happened at the pub remained hidden.
The adversarial system required the prosecutor to walk a narrow path between partisanship and principle – and like Clara on the opposite side of the bar table, evidentiary discretion formed a critical moral pressure point determining whether law serves truth and justice – or collapses into a mere battle for strategic victory.
Analysis
These two narratives demonstrate that evidentiary discretion is the mechanism by which barristers choose to differentiate between competing moral worlds. Personal conscience is fundamental to ethical decisions that determine strategy or restraint. The system is primarily designed to resolve disputes rather than purely discover the truth.[58] The paramount duty to the court, exclusionary discretion and the ban on misleading conduct, provide strength and boundaries.
Clara’s discretion facilitated a strategic victory by exploiting the ‘amoral universe’ of partisanship.[59] Finkelstein insists that the adversarial trial is at best an accidental approximation of the truth. Clara’s use of procedural loopholes and factual interpretation exposed the ‘approximation’ lying at the heart of adversarial justice. Clara acted ethically within the rules but was still able to obscure material facts that were essential to moral truth and the enforcement of substantive law.[60] The discrediting of truth during the process of resolving a dispute is enabled by the system and permits barristers to adjust their behaviour accordingly.[61] Within the system it is commonplace for opposing testimony to be discredited regardless of its veracity; for opposing counsel’s lack of skill to be exploited; for facts to be omitted or withheld due to privilege; [62] for the exclusion of probative evidence; and for barristers to use rhetorical techniques to obscure the truth.[63]
Jayden’s failure to pursue the second CCTV (no breach of the DPP Guidelines), demonstrates how the system’s legitimacy depends on conscientious inquiry that the law does not strictly demand. Here, too, the rules do not guarantee truth; they merely create conditions in which truth-seeking is possible if counsel chooses to pursue it.
Both barristers operate within the bounds of professional and evidentiary doctrine, yet both face moments where strategic advantage conflicts with fuller disclosure or more robust truth-testing. The adversarial system embeds a moral neutrality that permits advocates to prioritise partisan goals over epistemic integrity. The barrister is encouraged to suppress moral judgment in favour of their professional role’s fidelity,[64] which makes ethical restraint contingent rather than assured.[65] By locating this tension in the concrete ethical choices made by Clara and Jayden, the narratives reveal the space where the adversarial system’s aspirations may fail to meet its reality. For the overall system to operate as a force for good, we must examine the universe of amorality that sustains this status quo.
Does the adversarial system operate as a force for good
What if a barrister is asked to draft a will disinheriting children because of their beliefs; or to represent a person who has committed the indefensible; or to help establish a business manufacturing arms or ammunition for war? [66] In these situations, the lawyer’s response is typically amoral. Does this moral neutrality transform the barrister into a mercenary of procedure, battling cause without questioning the morality of the outcome?
On the contrary, although the pressures can produce the ethically questionable acquittal of the guilty, as in the foregoing narratives, the outcomes ultimately generate systemic ‘goods’ such as the checking of state power, ensuring rational fact finding and preserving individual autonomy. The good arising from the moral pressure to suspend personal moral judgement guarantees equal access to the legal system. The amoral approach by barristers which manifests as ‘the cab rank rule’, maintains the rights of the unpopular or morally contentious to have their day in court,[67] preventing the legal system becoming the exclusive tool of the morally popular.[68]
The moral pressure to exclude relevant evidence or suppress the truth can be seen as essential for controlling state power. The pressure to exclude illegally obtained evidence, balances crime control considerations against the public interest in deterring police illegality and maintaining judicial legitimacy. The ALRC cites the concerns in Bunning v Cross [69] that damning unlawfully obtained evidence would encourage the view that the end justifies the means.[70] This makes sense of Wasserstrom’s argument that the vast resource of the state justifies zealous advocacy in criminal cases where loss of liberty is grave and demands that the state prove its case according to the law.[71]
The ‘good’ that comes from these moral pressures is institutional and procedural rather than immediate and substantive. By adhering to the pressure of moral neutrality, the adversarial system prevents the state from acting illegally.[72] It guarantees that all citizens, regardless of moral worth, have access to rights.[73] It maintains the long-term integrity and legitimacy of the legal framework.[74] In this sense, the adversarial system’s moral value lies in the principled constraints it imposes on power, even when those constraints produce uncomfortable individual outcomes.
Conclusion [75]
Evidentiary discretion emerges from this analysis not as a peripheral procedural device but as the central site where the adversarial system’s moral aspirations meet their greatest strain. The narratives of Clara and Jayden demonstrate that the law’s commitment to truth, fairness and the restraint of state power depends not merely on the structural architecture of evidentiary rules but on how individual barristers navigate the morally charged space between partisanship and principle. Although the system aspires to rational fact-finding, the adversarial model embeds a form of moral neutrality that permits, and at times encourages, the strategic shaping of evidence in ways that may distance the outcome from substantive truth.
Yet the commentary also reveals that this tension is not a flaw but a defining characteristic of adversarial justice. The protections that safeguard autonomy, constrain executive power, and preserve the presumption of innocence are the same mechanisms that enable silence, selective disclosure and aggressive testing of evidence. These safeguards achieve systemic ‘goods’ even when they produce uncomfortable outcomes in individual cases. Their moral value is institutional and enduring, not dependent on whether a particular trial produces perfect truth.
The contribution of this research lies in foregrounding evidentiary discretion itself as the underexamined mechanism through which these moral tensions materialise. While existing scholarship explores advocacy ethics or the philosophy of adversarialism in the abstract, little attention has been paid to how discrete evidentiary decisions function as the operational hinge between moral neutrality and truth-seeking. By combining doctrinal analysis with narrative case studies, this commentary demonstrates that the barrister’s practical judgment – not the rules alone – ultimately determines whether evidentiary discretion strengthens or strains the law’s claim to operate as a force for good.
The adversarial system does not promise perfect truth. It promises a structured contest constrained by principles that protect dignity, fairness and liberty. Whether the system fulfils its moral ambition depends on the conscientious restraint of those who wield evidentiary discretion. This commentary therefore concludes that the law’s aspiration to be a force for good is both enabled and endangered by the barrister’s moral neutrality: sustained when discretion is exercised with integrity and weakened when it is used only as a tool of partisan victory. The moral destiny of the law rests, ultimately, in the ethical hands of its advocates.
BIBLIOGRAPHY
Articles/Books/Reports
Aristotle, Nicomachean Ethics (Project Gutenberg, translated ed, 2008) https://www.gutenberg.org/files/8438/8438-h/8438-h.htm
Bagaric, Mirko and Penny Dimopoulos, ‘Legal Ethics is (Just) Normal Ethics: Towards a Coherent System of Legal Ethics’ (2003) 3(2) QUT Law and Justice Journal 367
Cameron, Alan, ‘Dooyeweerd on Law and Morality: Legal Ethics – A Test Case’ (1998) 28 Victoria University of Wellington Law Review 263
Cossins, Annie, ‘The Legacy of the Makin Case 120 Years On: Legal Fictions, Circular Reasoning and Some Solutions’ (2013) 35 Sydney Law Review 731
Edmond, Gary, ‘Trial by Cognitive Ordeal: Irrational Approaches to the Opinions of Investigators, Trial Integrity and Proof’ (2024) 87(3) The Modern Law Review 535
Frankel, Stephen M, ‘Search for Truth: An Umpireal View’ (1975) 123 University of Pennsylvania Law Review 1032
Finkelstein, Ray, ‘The Adversarial System and the Search for Truth’ (2011) 37(1) Monash University Law Review 135
Hamer, David and Gary Edmond, ‘Judicial Notice: Beyond Adversarialism and into the Exogenous Zone’ (2016) 25(3) Griffith Law Review 291
Henry, Alistair, ‘Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies’ (Book Review, 2009) 13(3) The Edinburgh Law Review 550
Hutchins, Robert M and Donald Slesinger, ‘Some Observations on the Law of Evidence’ (1928) 28 Columbia Law Review 432
Lancaster, Richard, ‘IMM v The Queen: A Response from Richard Lancaster SC’ (Winter 2016) Bar News 60
Meyerson, Denise, ‘Three Versions of Liberal Tolerance: Dworkin, Rawls, Raz’ (2012) 3(1) Jurisprudence 37
Millett, Stephan, ‘Ethics of Expert Evidence’ (2013) 87(9) The Australian Law Journal 628
Moore, G E, Principia Ethica (Cambridge University Press, 1903)
Mortensen, Reid, ‘Professional Legal Ethics in Australia’ (2018) 192 Advances in Social Science, Education and Humanities Research 12
Odgers, Stephen, ‘The Probative Value of Evidence’ (Winter 2016) Bar News 58
Parker, Christine, ‘A Critical Morality for Barristers: Four Approaches to Lawyers’ Ethics’ (2004) 30(1) Monash University Law Review 49
Schofield, Philip, ‘Jeremy Bentham and the Origins of Legal Positivism’ in The Cambridge Companion to Legal Positivism (Cambridge University Press, 2019)
Smyth, Tom and Christian Strauch, ‘Rebuttable Presumption: The Way Forward for Legal Professional Privilege?’ (2008) 91 Reform 59
Wasserstrom, Richard, ‘Lawyers as Professionals: Some Moral Issues’ (1975) 5(1) Human Rights 1
Cases
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Giannarelli v Wraith (1988) 165 CLR 543
IMM v The Queen [2016] HCA 14
Kadir v The Queen; Grech v The Queen [2020] HCA 1
R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159
Legislation
Evidence Act 1995 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015
Legal Profession Uniform Law (NSW) No 16a of 2014
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
Others
‘Aristotle’ (Stanford Encyclopedia of Philosophy, 2023) https://plato.stanford.edu/entries/aristotle/
‘G. E. Moore’ (Stanford Encyclopedia of Philosophy, 2023) https://plato.stanford.edu/entries/moore/
Dahlstrom, Fernanda, ‘Discretion to Exclude Evidence: Bunning v Cross’ on Armstrong Legal https://www.armstronglegal.com.au
Griffiths, John, ‘Some Ethical Issues for Legal Practitioners’ (Speech, The College of Law Professional Skills Development Programs, 19 November 2015)
Halsall, Stephen James, Being a Barrister (PhD Thesis, University College London, 2016)
Ho, Hock Lai, ‘The Legal Concept of Evidence’ in Stanford Encyclopedia of Philosophy (13 November 2015)
Livesey, Mark C, ‘The Effectiveness of Expert Evidence’ (Conference Paper, Australian Bar Association Conference, 6 July 2017)
New South Wales Bar Association, Barristers Conduct Guidelines 2022
Venice, Harry, ‘IMM v The Queen HCA 14: The High Court rules on “probative value”’ on Venice Crime (23 November 2016)
Top of Form
Bottom of Form
[1] OpenAI, ChatGPT (GPT-5.1) (artificial intelligence model, assistance to author in formulating research question, 15 November 2025).
[2] G E Moore, ‘G. E. Moore’ (Internet Encyclopedia / Stanford Encyclopedia of Philosophy, last updated [date you accessed]) https://plato.stanford.edu/entries/moore/.
[3] G E Moore, Principia Ethica (Cambridge University Press, 1903) ch 2, 37.
[4] Alasdair MacIntyre, Whose Justice, Which Rationality? (South Bend, Ind, 1988) 344.
[5] Aristotle, ‘Aristotle’ (Stanford Encyclopedia of Philosophy, ed E N Zalta, 22 August 2023) https://plato.stanford.edu/entries/aristotle/.
[6] Aristotle, Nicomachean Ethics (Project Gutenberg, translated ed, 2008) https://www.gutenberg.org/files/8438/8438-h/8438-h.htm.
[7] Ibid.
[8] Australian Law Reform Commission, Uniform Evidence Law (Report No 102, 2005) [16.5], [16.10].
[9] Richard Wasserstrom, ‘Barristers as Professionals: Some Moral Issues’ (1975) 5 Human Rights 1.
[10] Ray Finkelstein, ‘The Adversarial System and the Search for Truth’ (2011) 37 Monash University Law Review 73, 136 (Finkelstein).
[11] Reid Mortensen, ‘Professional Legal Ethics in Australia’ (2018) 192 Advances in Social Science, Education and Humanities Research 12, 14 [4] (Mortensen).
[12] Ibid [7].
[13] See Giannarelli v Wraith (1988) 165 CLR 543, 555-6.
[14] Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 114–18; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 9
[15] Mortensen (n 11) 15 [2].
[16] Stephen M Frankel, ‘Search for Truth: An Umpireal View’ (1975) 123 University of Pennsylvania Law Review 1032, 1035 [4].
[17] Christine Parker, ‘A Critical Morality for Barristers: Four Approaches to Lawyers’ Ethics’ (2004) 30 Monash University Law Review 49, 55 [4] (Parker).
[18] Evidence Act 1995 (NSW).
[19] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 269 CLR 568; R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159.
[20] Legal Profession Uniform Law (NSW) No 16a of 2014; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) [2015-244].
[21] OpenAI, ChatGPT (GPT-5.1) (artificial intelligence model, assistance to author in formulating this methodology paragraph, 15 November 2025).
[22] The Queen’s Trial (1820) 1 St Tr (NS) 1348.
[23] Cf Giannarelli v Wraith (1988) 165 CLR 543, 555-6.
[24] Mortensen (n 11) 14 [4].
[25] (1988) 165 CLR 543, 555-6.
[26] Alasdair MacIntyre, Whose Justice, Which Rationality? (South Bend, Ind, 1988) 344.
[27] Parker (n 17), 57 [2].
[28] Wasserstrom (n 9), 6 [1].
[29]Mortensen (n 11) 15 [2].
[30] Ibid 16 [1].
[31] Wasserstrom (n 9), 2 [2].
[32] Ibid 9 [2].
[33] Ibid 10, [1].
[34] Finkelstein (n 10), 136 [6].
[35] Mirko Bagaric and Penny Dimopoulos, ‘Legal Ethics Is (Just) Normal Ethics: Towards a Coherent System of Legal Ethics’ (2003) 3(2) QUT Law and Justice Journal 1, 25 [1]-[2].
[36] R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159, 162–3 (Kirby J).
[37] Evidence Act 1995 (NSW) ss 135-138.
[38] Australian Law Reform Commission, Uniform Evidence Law (Report No 102, 2005) https://www.alrc.gov.au/publication/uniform-evidence-law-alrc-report-102/16-discretionary-and-mandatory-exclusions/ (ALRC).
[39] R v Momodou [2005] EWCA Crim 177.
[40] IMM v The Queen [2016] HCA 14.
[41] Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 601 [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[42] OpenAI, ChatGPT (GPT-5.1) (artificial intelligence model, assistance to author in formulating research narrative vignettes, 15 November 2025).
[43] Mortensen (n 11), 14 [4].
[44] R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159, [144]-[145].
[45] Stephan Millett, ‘Ethics of Expert Evidence’ (2013) 87(9) Australian Law Journal 628, 631.
[46] Parker (n 17), 56 (Table 1).
[47] Wasserstrom (n 9), 2 [2].
[48] Finkelstein (n 10), 137 [1].
[49] Finkelstein (n 10), 136 [5].
[50] ALRC (n 38), 16.81.
[51] Parker (n 17), 57 [3].
[52] Evidence Act 1995 (NSW).
[53] Dasreef Pty Ltd v Hawchar [2011] HCA 21.
[54] Parker (n 17), 65 [2].
[55] R v Momodou [2005] EWCA Crim 177.
[56] Law Society of New South Wales, Prosecutorial Disclosure in Criminal Cases in NSW (14 October 2022)1, 6.
[57] Keith A Findley and Michael S Scott, ‘The Multiple Dimensions of Tunnel Vision in Criminal Cases’ (2006) 2006 Wisconsin Law Review 291).
[58]Finkelstein (n 10), 135 [4].
[59] Wasserstrom (n 9), 2 [2].
[60] Parker (n 17), 60 [2].
[61] Ibid.
[62] Tom Smyth and Christian Strauch, ‘Rebuttable Presumption: The Way Forward for Legal Professional Privilege?’ (Australian Law Reform Commission, 2011) 57 https://www.alrc.gov.au/wp-content/uploads/2009/11/Reform-91.pdf.
[63] Finkelstein (n 10), 136.
[64] Mortensen (n 11), 15 [2].
[65] Parker (n 17), 57 [2].
[66] Wasserstrom (n 29), 8.
[67] Ibid.
[68] Mirko Bagaric and Penny Dimopoulos, ‘Legal Ethics Is (Just) Normal Ethics: Towards a Coherent System of Legal Ethics’ (2003) 3(2) QUT Law and Justice Journal 1, 19-22.
[70] Ibid [16.83].
[71] Wasserstrom (n 9), 12 [3].
[72] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
[73] Wasserstrom (n 9); Parker (n 19).
[75] OpenAI, ChatGPT (GPT-5.1) (artificial intelligence model, assistance to author in formulating research conclusion, 5 December 2025).
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