Duty Of Disclosure: Prosecution Disclosure Obligations And Guidelines

What is the Prosecution Duty of Disclosure Obligations?

The prosecution has an ongoing duty both under the common law and legislation to disclose all material evidence to the defence that could be relevant to the case, regardless of whether or not it helps the defence case or the prosecution case.  In this article, our  criminal lawyers Sydney team outline this ongoing duty which continues at least until the conclusion of the prosecution.

This means that the prosecution is required by law to disclose all relevant evidence to the person accused of a crime or his or her legal defence team except if it falls within certain exceptions, including public interest immunity; sensitive evidence under Part 2A of Chapter 6 of the Criminal Procedure Act; sexual assault communications evidence under Part 5 of Chapter 6 of the Criminal Procedure Act; or pre-recorded interviews with vulnerable witnesses under Part 6 of Chapter 6 of the Criminal Procedure Act.

Prosecution Failure to Disclose Evidence

Failure by the prosecution to disclose evidence that results in an unfair trial to the accused person can result in the permanent or temporary stay of the criminal proceedings. This has the effect of either temporarily or permanently putting a stop to the prosecution from proceeding further against the accused person. There are other remedies provided by the law to ensure that the accused person does not get an unfair trial. This is outlined further in this article.

Prosecution's Disclose Duty: Common Law Duty of Disclosure

The prosecution's role is not to obtain a conviction or to win or lose. The prosecution role is a public duty to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of judicial proceedings. This role is well outlined in the case of Boucher v The Queen (1955) S.C.R 16 at paragraph [24].

With that in mind, the prosecution has a duty to disclose all relevant evidence to the defence under the common law and is reflected in the case of Mallard v R (2005) 224 CLR 125.

There is a requirement that the prosecution may not supress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially where the material evidence may cast a significant light on the credibility or reliability and truthfulness of exculpatory evidence by or for the accused person.

As the prosecution is required to disclose documents which are material. evidence will be considered 'material' if it can be seen, on a sensible appraisal by the prosecution:

1. To be relevant or possibly relevant to an issue in the case,
2. To raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or
3. To hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going either to the above two (a) or (b).

An 'issue in the case' must be given a broad interpretation. The duty is not limited to matters that would be admissible in evidence.

Examples of Common Law Prosecution Duty of Disclosure

Examples of the non-exhaustive evidence/material that the prosecution has a duty to disclose include:

1. Witness statements proposed or not proposed to be called to court to give evidence by the prosecution.
2. Prior criminal convictions of prosecution witnesses and other material relevant to credibility.
3. Any material which could reasonably be seen as capable of assisting the defence case and material relevant that could mitigate a sentence.
4. Alleged victim's overseas mental health records. The prosecution is required to inquire into information which may affect the credibility of potential prosecution witnesses if there is sound reason to suspect that material exists which might impinge upon credibility or reliability.

Prosecution's Disclose Duty: Court's Implied Power

The courts have an implied power to order the production of materials to the defence if that material is in the prosecution's possession or power if the interest of justice require it. This includes an obligation for the prosecution to disclose material which would tend to assist the defence case in light of the duty of the prosecution to ensure that their case is presented with fairness to the accused person. The case authorities for this principle comes from Gaffee v Johnson (1996) 90 A Crim R 157 and Carter v Hayes (1994) 61 SASR 451.

Prosecution's Disclose Duty: Investigating Officer or Law Enforcement

Section 15A(1) of the Director of Public Prosecutions Act 1986 (NSW) creates a duty to the investigating officer for alleged offences to disclose to the Director (ie DPP) all relevant information or documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the accused person.  This duty only arises when the DPP are prosecuting, not the matters that remain in the local court summarily disposed of.

This duty does not require the DPP to disclose material after receiving it from the police.

Section 36B of the Criminal Procedure Act imposes the same duty on investigating officers or law enforcement officers for alleged offences to disclose to the prosecutors (ie police prosecutors). However this duty only arises when the prosecutor is not the DPP, and it applies only in local court summary proceedings.

Prosecution Guidelines on Prosecution's Disclose Duty | Practice Directions

The office of the director of public prosecutions (DPP) have guidelines to comply with concerning disclosure obligations. Section 13 of the Director of Public Prosecutions Act 1986 (NSW) outlines their disclosure obligations, including the following:

1. Prosecutors are under a continuing obligation to make full disclosure to the accused person in a timely manner of all material known to the prosecutor which can be seen on a sensible appraisal by the prosecution:
   1. To be relevant or possibly relevant to an issue in the case;
   2. To raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
   3. To hold out a real as opposed to a fanciful prospect of providing a lead to evidence which goes to either of the previous two situations.

This obligation continues after trial and the conclusion of any appeal.

The Local Court Practice Note directions create obligations on the prosecution in criminal matters dealt with in the local court 'summarily', including the following:

1. Pursuant to section 5.4(1) of the Local Court Practice Note Crime 1 Directions, in respect of non-domestic violence offences, upon a plea of not guilty being entered by the accused person in court on the first court date, the prosecution brief of evidence is to be served upon the accused person in 4 weeks and the matter is to be adjourned for a second court date for mention for this purpose in 7 weeks' time. The evidence must include a 'court listing advice' outlining the statements contained in the police brief of evidence, and under Part 5 of the Local Court Rules 2009, the prosecution is to effective service of the brief of evidence upon the accused person
2. Pursuant to section 10.3(a) and 10.3(d) of the same Local Court Practice Directions, in respect of domestic violence offences, the prosecution is required to serve to the defence, no later than the first court date listed for mention, with a copy of the 'mini brief' (copy of the facts, complainant's statement and any photos relied upon). Following a plea of guilty in court, the prosecution is required to serve the balance of the brief of evidence 14 days prior to the listed hearing date. This is also reflected in section 183 of the Criminal Procedure Act.

Failure by the prosecution to serve any police evidence that the prosecution otherwise seeks to rely upon permits the court to refuse to admit it pursuant to section 188 of the Criminal Procedure Act.

Pre-Trial Disclosure Obligations Under section 142 for District Court Proceedings

Sections 141 and 142 of the Criminal Procedure Act only apply in District Court and Supreme Court criminal cases after an indictment (charge) has been presented which requires mandatory pre-trial disclosure in trials. These provisions require the prosecutor to give notice of the prosecution case to the accused person and also requires the accused person to give notice of the defence response to the prosecution's notice in accordance with section 143 of the same Act.

Significantly, section 142 of this Act requires the prosecution to give the accused person a notice containing the following information:

• Copy of the indictment (the charge(s)),
• Statement of facts,
• Copy of a statement of each prosecution witness whose evidence the prosecution proposes to adduce in the trial,
• Copy of any recorded statement that the prosecutor intends to adduce at the trial,
• If the prosecutor proposes to adduce at the trial the transcript of an audio or visual recording, a copy of that transcript,
• Copy of each document or evidence of the contents of which the prosecutor proposes to adduce at the trial,
• If the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary,
• A copy of any exhibit that the prosecutor proposes to adduce at the trial,
• A copy of any chart or explanation material that the prosecutor proposes to adduce at the trial,
• If any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case,
• A copy of any information or document or other thing provided by the law enforcement or investigating officer to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person,
• A list identifying any information or document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor's possession and is not in the accused person's possession; and the place at which the prosecutor believes that information or document or other thing is situated,
• A copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness,
• A copy of any information or document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person,
• A list identifying the statements of those witnesses who are proposed to be called at the trial by the prosecutor.

Failure to comply with the above obligations can result in the court refusing to admit the evidence; or can allow adverse inferences to be made; or permit the court to adjourn the proceedings which may also result in an award for legal costs.

Disclosure Obligations Through Issuing a Subpoena

In the local court proceedings section 222 of the Criminal Procedure Act gives the Registrar the power if required to do so by a party to proceedings to issue to the person named, a subpoena to give evidence or to produce documents or both.

A subpoena can be issued by the accused person, or a prosecutor, or any other party to the proceedings.

The person to whom a subpoena has been issued is not required to produce any doc or thing if it's not specified or sufficiently described in the subpoena, or the person named would not be required to produce it on a subpoena for production in the Supreme Court.

A subpoena can be set aside under section 227 Criminal Procedure Act wholly or partly if there is no legitimate forensic purpose for which access is sought and/or it's not "on the cards" that the docs will materially assist the case. i.e. if it is a "fishing expedition".

In the event that the documents sought by the subpoena has a legitimate forensic purpose and on the cards, it may nonetheless be subject to objection on the grounds of public interest immunity as an exception to disclosure.

There are heavy consequences in the event of a failure to comply with a valid subpoena pursuant to  section 229 of the Criminal Procedure Act, including the power of the court to issue an arrest warrant against the person named in the subpoena.

Exceptions to Prosecution's Duty of Disclosure

The prosecution is not required to disclosure to the defence any material that falls within any one or more of the following circumstances:

Public Interest Immunity

Pursuant to section 130 of the Evidence Act 1995 (NSW): This exception to the duty of disclosure commonly arises if the material is caught within the breadth of a subpoena, or a common law or statutory duty of disclosure circumstance.

Once the exception in section 130 Evidence Act is raised in court, the court will view the disputed material sought to be protected with an annexed affidavit outlining the basis for the public interest immunity claim. The court has the power to uphold the claim and prevent its disclosure, in which case the defence legal team can apply for a permanent stay of the prosecution or seek the discontinuance of the matter if the accused person will not get a fair trial as a result of the material not being disclosed. An alternative is for the prosecution to discontinue proceedings if they do not want the court to judge the claim for public interest immunity.

The court may direct that the information or documents subject to the claim by the prosecution is not to be admitted into court as evidence if and only if the public intertest in admitting it into evidence that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to it.

The information or document subject to the claim is considered to 'relate to matters of state' if by admitting it into evidence it would have the following non-exhaustive effect:

• Prejudice the prevention, investigation, or prosecution of an offence,
• Prejudice the security, defence or international relations of Australia,
• Damage relations between the Commonwealth and the State or between two or more States,
• Prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law,
• Disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State or administration of a law of both,
• Prejudice the proper functioning of the Government of the Commonwealth or a State.

When making the determination as to the public interest immunity claim, the court can also take into account a non-exhaustive matters including the importance of the information or documents in the criminal proceedings; whether the party seeking to adduce the evidence is the prosecution or defence; the nature of the offence or defence to which the information or document relates, and the nature of the subject matter of the proceedings; the likely impact of admitting the evidence of the information or document, and the means available to limit its production; whether the substance of the information or document has already been published; when concerning criminal proceedings and the party seeking to adduce the evidence of the information or document is a defendant, then the court can consider whether the direction is to be made subject to the condition that the prosecution be stayed.

Sensitive Evidence

A prosecuting authority is not required and cannot be required even by way of a subpoena or any other procedure, in connection with any criminal investigation or criminal proceedings, to give an accused person a copy of anything the prosecuting authority reasonably considers to be 'sensitive evidence' pursuant to section 281C of the Criminal Procedure Act. Instead, the prosecution must give the accused person a written notice (sensitive evidence notice) describing the thing that the prosecuting authority considers to be sensitive evidence; indicate that it considers it sensitive evidence and therefore is not required to give the accused person a copy of it; indicate that the accused person will not be given a copy of it; contain information that entitled the accused person to view or listen to it at a nominated place by the prosecuting authority and under the supervision of the same; and set out the name and contact details of the person who is responsible for arranging the viewing of, or listening to it on behalf of the prosecuting authority. The accused person can elect to conduct a view of the sensitive evidence and the police must give reasonable access to the accused person to do this.

The meaning of sensitive evidence is found in  section 281B of the Criminal Procedure Act as anything that contains or displays an image of the protected person if the image is obscene or indecent; if providing a copy of it to another person without the protected person's consent would interfere with the protected person's privacy; or the image was taken after the death of the protected person. An audio recording of a person committing an offence against another person (the protected person) is sensitive evidence if the contents of the audio recording are obscene or indecent, or if providing a copy of it to another person without the protected person's consent would interfere with the protected person's privacy. The fact that the contents of an audio recording merely contain obscene or indecent language does not constitute obscene or indecent content here.

Sexual Assault Communications

unless the court grants leave, a document recording a 'protected confidence' in criminal proceedings cannot be compelled for production or adduced as evidence in criminal proceedings, pursuant to sections 297 and 298 of the Criminal Procedure Act. A 'protected confidence' is defined in section 296 of the Criminal Procedure Act as a 'counselling communication' that's made to or about a victim or alleged victim of a  sexual assault offence. A 'counselling communication' is defined in s296(4) of the same Act as communication made in confidence by the counselled person to the counsellor who is counselling the person in relation to any harm the person may have suffered; or communication made in confidence to or about the counselled person by the counsellor in the course of that counselling; or communication made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process; or communication made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person.

Pre-recorded Interviews with Vulnerable Witnesses

Evidence of a recording given by a vulnerable person in criminal proceedings is not required to be served on the accused person or his or her defence team pursuant to  section 306S(1) Criminal Procedure Act. Instead the prosecution is otherwise required to serve to the defence or accused person a written statement reflecting the recording.

A 'vulnerable person' means a child or a person who is cognitively impaired, which includes intellectual disability, developmental disorder such as autistic spectrum disorder, dementia, severe mental illness, brain injury or a neurological disorder.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.