Public Defenders’ Conference
Taronga, 8 May 2004
THE PROSECUTOR’S DUTY OF DISCLOSURE
Nicholas Cowdery AM QC
Director of Public Prosecutions, NSW
President, International Association of Prosecutors
In the beginning there was not a duty. There was (and even now there is) no general common law right to discovery by either party to criminal proceedings in England or Australia – and in the beginning the prosecution held all the aces (which it dealt very sparingly).
That situation changed over time. By 19 November 2001 prosecution disclosure in NSW was regulated by:
- common law rules (principally associated with the need to ensure a fair trial and that the prosecutor acts fairly)[i];
- Prosecution Guidelines[iii];
- practice directions issued by the courts; and
- notices under the Evidence Act 1995 in relation to tendency, coincidence and first hand hearsay evidence and of the intention to rely upon a certificate stating an expert’s opinion as evidence of opinion.
On that date additional requirements commenced which apply to declared “complex criminal trials”.
The framework that has now been erected for prosecution disclosure is adequate, in my view; but occasionally, through human fallibility, the requirements are not met.
DUTY OF DISCLOSURE
A rather neat statement of the position of the prosecutor is to be found in the Canadian case of R v Stinchcombe (1991) 68 CCC (3d) 1 @ 7:
“… the fruits of the investigation which are in possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.”
The nature of the prosecutor’s duty was discussed in Cannon et anor v Tahche  VSCA 84. The Victorian Court of Appeal (Winneke P, Charles and Chernov JJA) said:
“56 What is sometimes called the ‘prosecutor’s obligation to act fairly’, one aspect of which is the prosecutor’s ‘duty of disclosure’, does not spring from any statutorily given power, but from practices established by judges over the years which have been designed to ensure that an accused person receives a fair trial. Those practices have included a requirement that notice be given by the Crown of additional witnesses proposed to be called beyond those whose names are on the ‘back of the presentment’; providing to the accused names of material witnesses (and, perhaps, their statements) whom it is not proposed to call; the provision of medical reports by prison doctors about the state of mind of accused persons in custody; providing particulars of relevant prior convictions of witnesses whom the Crown intends to call; and making sure that the defence is informed of previous convictions of the accused, so that a view can be formed as to the advisability of putting the character of the accused in issue. These rules of practice, calculated to enhance the administration of criminal justice by ensuring that accused persons have a ‘fair trial’, are collected in the speech of Lord Devlin in Connelly v Director of Public Prosecutions  AC 1254 @ 1347ff. As his Lordship noted, it is the court itself which carries the responsibility of ensuring that an accused has a ‘fair trial’, and, to that end, will enforce practices such as those which extend to controlling the form of presentment or indictment to prevent abuses of the court’s process which involve unfairness to the accused…
57 The prosecutor’s ‘duty of disclosure’ has been the subject of much debate in appellate courts over the years. But, as it seems to us, authority suggests that, whatever the nature and extent of the ‘duty’, it is a duty owed to the court and not a duty, enforceable at law at the instance of the accused. This, we think, is made apparent when the so-called ‘duty’ is described (correctly in our view) as a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be. The responsibility is, thus, dependent for its content upon what the prosecutor perceives, in the light of the facts known to him or her, that fairness in the trial process requires.”
The Court stressed in its judgment that by reason of its historical development, its discretionary nature and the variability of the circumstances which will inform its content, the duty is owed to the courts and not to the public at large or to the accused. A breach is not enforceable at law at the instance of the accused.
Some obligations of disclosure are now regulated by statute and by rule; but a large area remains discretionary, dependent upon “what the prosecutor perceives, in the light of the facts known to him or her, that fairness in the trial process requires”.
The prosecutor’s perception will be influenced by his or her state of knowledge of the case and of the contest as it proceeds. The defence therefore has great influence on this perception. At one end of the scale, if there is no statement from or interview with the accused and no indication at all from the defence of what the issues will be at trial, then the prosecutor’s perception (and judgment of what is relevant) will be based upon the police version of events and the prosecutor’s educated guess (from personal professional experience) as to the likely issues.
It is obvious that if the defence at least identifies the issues to be litigated, then the prosecutor will be in a much better position to discharge his/her obligation to the court to treat the accused fairly.
Of course, other benefits also flow from identification of the issues in advance: the list of witnesses may be shortened or their evidence expedited and the hearing more finely focused, with consequential advantages to all of time, trouble and cost.
THE DUTY APPLIED
The formulation of the obligation of prosecution disclosure that is most widely adopted in NSW is a requirement to disclose material which can be seen on a sensible appraisal by the prosecution:
- to be relevant or possibly relevant to an issue in the case;
- to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; or
- to hold out a real, as opposed to fanciful, prospect of providing a lead to evidence which goes to the above issues.
It applies not just to evidence (in admissible form) but to a variety of information. One problematic area (perhaps) is the question of the disclosure by the prosecution to the defence of material relevant to the credibility of a defence witness[vi]. In the UK such disclosure is not required. In NSW that is also likely to be the position; but care must be taken by the prosecution to ensure that the material is not disclosable for some other reason.
It remains open to the defence to subpoena material from the prosecutor, from the investigating agency and from third parties, but there must be able to be demonstrated a legitimate forensic purpose in the production of the material sought. Subpoenas are not to be used as a means of obtaining discovery (ie “fishing”).
Particulars of elements of charges may also be sought from the prosecution and the obligation is to provide such particulars as are necessary to reasonably inform the accused of the charges faced.
Briefs of evidence must be served by the prosecution in both indictable and summary matters in the Local Court.
If a witness not revealed at committal is to be called at trial, the witness statement must be served on the defence in a timely manner. In certain circumstances evidence may be examined pre-trial in Basha inquiries.
Parties, generally, must give notice of tendency, coincidence or first hand hearsay evidence, and of their intention to rely upon a certificate stating an expert’s opinion as evidence of a person’s opinion.
[This paper is not concerned with the limited obligations upon the defence to disclose matters to the prosecution. It examines only the prosecution’s duty at the present time.]
POLICE TO PROSECUTOR
The beginning of the process leading to criminal prosecution, in most cases, is a police investigation. In our system the process of investigation is entirely separate from prosecution by the ODPP (although legal advice may be given during an investigation, such advice being confined to the sufficiency of evidence and the appropriateness of charges). During the investigation process, information and material are identified, gathered, analysed, stored and sometimes transferred.
Section 15A of the Director of Public Prosecutions Act 1986 (inserted in November 2001) is a key provision and provides that, in addition to other duties imposed upon police in connection with the investigation and prosecution of offences, “Police officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.”
That duty of disclosure is expressed to continue until a direction is given that the person will not be prosecuted, the prosecution is terminated or the person is convicted or acquitted. There is an express duty to retain such things while the duty of disclosure continues.
The DPP Amendment (Pre-trial Disclosure) Regulation 2001 prescribes a form of Disclosure Certificate (Police form P. 516) and, if necessary, Disclosure Schedule (P. 517) for non-sensitive material, that must be completed by police in every case of an alleged indictable offence, and the information to be included. It is a Police disciplinary offence not to comply with these requirements. In addition to the brief of evidence, police must disclose to the prosecution the existence of material which may be described as “non-sensitive” or “sensitive” and any “witness informers” and they must acknowledge their obligation to do so.
Police Service Circular 01/24 on Disclosure (published in the Police Service Weekly of 19 November 2001) amends the “Court Matters” guideline in the Police Service Handbook by imposing obligations on the OIC of a case to ensure that the police prosecutor (in a summary case) or the DPP is informed of all relevant information or material not included in the brief of evidence. Police prosecutors (in summary matters) must be “told” of it; in summary matters prosecuted by the DPP it must be “disclosed” to the DPP. In indictable matters copies of any relevant non-sensitive material must be provided and a Disclosure Certificate provided.
The obligation is not confined to police “involved in the actual investigation”. Such material, when it becomes available to any police officer, must be reported in the first instance to the OIC of the matter.
“Sensitive material” is material that might attract a bona fide claim of privilege (including legal professional and other privileges), public interest immunity or statutory immunity. It may include material in the following categories (which are not exhaustive):
- involving or disclosing the identity of an informant;
- involving or disclosing the identity of witnesses who might be in danger if their identities became known;
- possibly facilitating the commission of other offences;
- statements supplied only on the condition that their contents would not be disclosed;
- statements relating to other offences by, or serious allegations against, persons other than the accused;
- material containing private and confidential information about the maker of the statement or which might promote domestic strife;
- admissions made to offending that is not yet the subject of any charge;
- information disclosing the location of police surveillance sites;
- vital information revealing police investigation methods;
- information which, if disclosed, would be likely to adversely affect the security, discipline or good order of a correctional institution, etc;
- anything dealing with national security.
If the existence of sensitive material is disclosed to the prosecutor, normally the OIC will be asked to confer in order to explain the nature and relevance of that material. The material may be described in general terms for such purposes. If the prosecutor requests access to it, a reasonable opportunity will be given to the OIC to enable the issue to be determined, on a case by case basis, by the General Manager, Court and Legal Services and, if the Police indicate that they wish to make a claim for public interest immunity, advice of the Crown Solicitor may be sought by them as to whether there is a sound basis for such a claim.
It should be noted that all these provisions apply only to NSW Police officers. They do not apply to investigators from other agencies, such as the ICAC, PIC, NSW Crime Commission, Australian Crime Commission or the Australian Federal Police.
If the material originated from another government agency (eg. DOCS, Department of Health, Department of Corrective Services) then advice will be sought from that agency’s lawyers.
If the prosecutor advises the OIC that sensitive information should be disclosed to the defence and the OIC disagrees, the OIC must seek urgent advice. If there is no claim of legal professional privilege or public interest immunity available but the OIC is still concerned about disclosure, it can be requested that the matter be reviewed at a higher level in the ODPP. In some cases it may be feasible to disclose to the defence part only of the sensitive information.
If there remains a proper basis for not disclosing information, the ultimate question remains whether the trial would be fair in the absence of the undisclosed material. In some circumstances a matter may not be able to proceed at all in such circumstances.
The ODPP maintains an Adverse Mentions List of police who have been adversely named at the Police Royal Commission or the Police Integrity Commission. The list, which contains the relevant transcript of proceedings, should be searched in every matter. Disclosable material, once checked for accuracy and currency, must be disclosed to the defence.
ODPP PROSECUTION GUIDELINES
There are a number of Guidelines that bear directly or indirectly on the prosecutor’s duty of disclosure. The Guidelines should all be read together, since they are intended to be inter-related and to operate in combination.
Prosecutors are under a continuing obligation to make full disclosure to the accused in a timely manner of all material known to the prosecutor which can be seen on a sensible appraisal by the prosecution:
· to be relevant or possibly relevant to an issue in the case;
· to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; and/or
· to hold out a real as opposed to fanciful prospect of providing a lead to evidence which goes to either of the previous two situations.
In all matters prosecuted by the Director, police, in addition to providing the brief, must notify the Director of the existence of, and where requested disclose, all other documentation, material and other information, including that concerning any proposed witness, which documentation, material or other information might be of relevance to either the prosecution or the defence in relation to the matter and must certify that the Director has been notified of all such documentation, material and other information. Procedures are in place for such certification to occur.
Subject to public interest immunity considerations, that material should be disclosed and, where practicable, made available, to the defence.
Where a prosecutor receives, directly or indirectly, sensitive documentation, material or information, or material that may possibly be subject to a claim of public interest immunity, the prosecutor should not disclose that documentation, material or information to the defence without first consulting with the police officer-in-charge of the case. The purpose of the consultation is to give that officer the opportunity to raise any concerns as to such disclosure. Accordingly, the officer should be allowed a reasonable opportunity to seek advice if there is any concern or dispute.
Where there is disagreement between a prosecutor and the police as to what, if any, of the sensitive documentation, material or information should be disclosed and there is no claim of public interest immunity, then in cases being prosecuted by counsel, the matter is to be referred to the Director or a Deputy Director and in cases being prosecuted by lawyers, the Solicitor for Public Prosecutions or a Deputy Solicitor.
In cases where a claim of public interest immunity is to be pursued or is being pursued, then the question of disclosure will be determined by the outcome of that claim.
The duty of disclosure extends to any record of a statement by a witness that is inconsistent with the witness's previously intended evidence or adds to it significantly, including any statement made in conference (recorded in writing or otherwise) and any victim impact statement. Subject to public interest immunity considerations, the Director will not claim legal professional privilege (including client legal privilege) in respect of such statements recorded in writing or on tape, provided such records serve a legitimate forensic purpose. If a witness makes any such statement in conference (adding significantly to or contradicting any previous statement/s), the lawyer present must note that fact and arrange for a supplementary written statement to be taken by investigators. That supplementary statement should be disclosed to the defence.
Rare occasions may arise where the overriding
interests of justice - for example, a need to protect the integrity of the
administration of justice, the identity of an informer (covered by public
interest immunity) or to prevent danger to life or personal safety - require
the withholding of disclosable information. Such a course should only be taken
with the approval of the Director or a Deputy Director.
Legal professional privilege will be claimed against the production of any document in the nature of an internal ODPP advising (eg. a submission to the Director, submissions between lawyers and Crown Prosecutors).
Reference should be made to Barristers’ Rules 66, 66A and 66B and Solicitors Rules A66, A66A and A66B (Appendix B). The requirement of Barristers’ Rule 66 and Solicitors Rule A66 to disclose “the means of finding prospective witnesses” may be satisfied by making the witnesses available to the opponent where possible, subject to public interest immunity considerations. It remains the practice of the ODPP not to include addresses or telephone numbers of witnesses in statements provided to the defence (except where they are material to an issue in the proceedings).
Regard should be had to the protection of the privacy of victims. (See also point 8, Charter of Victims Rights, Victims Rights Act 1996 – Appendix D.)
All due care must be taken to protect the security of sensitive documents and other material, the inappropriate disclosure of which may affect the safety of individuals, jeopardise continuing investigations or potentially affect the flow of confidential information to and between justice agencies. This includes the locking away of such material when the workplace is not attended and not leaving the material unattended at court, in motor vehicles or other non-secure places or exposing it to casual perusal by unauthorised observers.
An informer is a person (not being a victim in the matter) who:
- has given assistance to police or investigators as a consequence of knowledge that has come into his or her possession through direct personal contact with an alleged offender; and
- is a co-offender, prisoner, civilian undercover operative, or a person bargaining such knowledge for the advantage of himself or herself or another person.
As far as is possible, care must be taken to ensure that the tribunal of fact is aware of all matters that would assist the proper evaluation of the evidence of an informer. In every such case a decision must first be made whether or not an informer should be called at all.
If it is contemplated that an informer be called as a witness, approval should be sought from the Assistant Solicitor (Sydney) or, if a Crown Prosecutor is briefed in the matter, the Crown Prosecutor.
In all cases the ODPP index of informers should be accessed and considered before approval to call an informer is given. Requests for access should be in writing, identifying the matter in which it is contemplated the informer will be called and accompanied by a Witness Informer Report from the police and a copy of the informer’s statement/s. The matter will then be recorded on the index.
When a decision has been made whether or not to approve the calling of the informer, that decision is to be notified in writing to those who maintain the index. If the decision is not to approve the calling of the informer, that notification is to include the reasons.
In the case of a prison informer (a prisoner or former prisoner who provides evidence of an admission made by a fellow prisoner), the approval of the Director or a Deputy Director must first be obtained.
Independent evidence that supports the account given by the informer or other independent evidence proving guilt should be identified (and some independent evidence of the making of an admission will generally be required in the case of a prison informer).
The ODPP index of informers records informers who have given evidence or been proposed to give evidence and any known public evaluation of their evidence by the courts. Such information assists in the determination whether or not to call such witnesses. The relevant entry/ies generally will be made available to the defence if such a witness is to be called.
The accused person should be informed in advance of the trial of:
(a) the informer's criminal record;
(b) whether or not the Police or Corrective Services Department has any information which might assist in evaluating the informer's credibility, particularly as to:
(ii) previous animosity against accused persons,
(iii) favourable/different treatment by Corrective Services,
(iv) mental health/reliability,
(v) the extent to which public officers have given evidence or written reports on behalf of the informer (eg. to courts, Parole Board);
(c) whether any monetary or other benefit has been claimed, offered or provided;
(d) whether the informer was in custody at the time of giving assistance;
(e) whether an immunity has been granted or requested;
(f) whether any discount on sentence has been given for assistance in the matter; and/or
(g) other current or former criminal proceedings in which the informer has given evidence or was proposed to give evidence.
Public interest immunity in some circumstances may prevent the disclosure of the identity of an informer (see Guideline 18).
The prosecution should generally call all apparently credible witnesses whose evidence is admissible and essential to the complete unfolding of the prosecution case or is otherwise material to the proceedings. Unchallenged evidence that is merely repetitious should not be called unless that witness is requested by the accused.
If a decision is made not to call evidence from a material witness where there are identifiable circumstances clearly establishing that his or her evidence is unreliable, the prosecution, where the accused requests that the witness be called and where appropriate, should assist the accused to call such a witness by making him or her available or, in some cases, call the witness for the purpose of making him or her available for cross-examination without adducing relevant evidence in chief (see Rule A.66B(j) of the Solicitors Rules - Appendix B).
Mere inconsistency of the testimony of a witness with the prosecution case is not, of itself, grounds for refusing to call the witness. A decision not to call a witness otherwise reasonably to be expected to be called should be notified to the accused a reasonable time before the commencement of the trial, together with a general indication of the reason for the decision (eg. the witness is not available or not accepted as a witness of truth). In some circumstances, the public interest may require that no reasons be given. Where practicable the prosecution should confer with the witness before making a decision not to call the witness.
There should be disclosure of any information, including any criminal convictions, in the possession of the prosecutor that reflects materially on the credibility of a prosecution witness or where cross-examination based upon it might reasonably be expected to materially affect that credibility.
The mere unwillingness or unavailability of a witness to testify is not ordinarily required to be disclosed unless the matter proceeds to a contested hearing.
Any immunity (indemnity or undertaking) - granted or approved in principle - or inducement provided to a prosecution witness should be disclosed to the accused in advance of the trial.
Child witnesses are to be treated, so far as practicable, consistently with the provisions of the UN Convention on the Rights of the Child (excerpts from which are Appendix G).
If the prosecution is aware that there are relevant DOCS or Health Department records or other relevant records available, usually the defence should be informed of the existence of the documents. It is then a matter for the defence to pursue their production and access if it chooses. However, if the prosecution is aware that the information held by a third party warrants disclosure, then the prosecution should obtain access and make disclosure of relevant material. (Care must be taken in this area, however, as such material may contain protected confidences.)
Section 296 of the Criminal Procedure Act 1986 defines a protected confidence as “a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence”. It does not matter when or in what connection it was made. “Counselling communication” is also defined[vii].
Section 297 provides that a person cannot be required (by subpoena or otherwise) to produce a document recording a protected confidence in or in connection with any preliminary criminal proceedings. Section 298 prescribes the way in which a court may override the protection in a hearing. The rest of Division 2 of Part 5 of the Act deals with other aspects of such disclosures.
These provisions are given full effect in the consideration of prosecution disclosure to the defence.
PROFESSIONAL CONFIDENTIAL RELATIONSHIP PRIVILEGE
Division 1A of Part 3.10 of the Evidence Act 1995 in section 126B provides for a court to prevent the adducing of evidence that would disclose a protected confidence or protected identity information.
Again, such provisions need to be considered when disclosure is being considered.
COMPLEX CRIMINAL TRIALS
The legislation that commenced on 19 November 2001 was notable for its introduction of a disclosure regime to apply to “complex criminal trials”. To date six matters in the Supreme Court and three in the District Court have been declared complex. Pre-trial disclosure orders have been made in eight of those cases.
The Legislative Council Standing Committee on Law and Justice is reviewing the operation of this regime.
[i] Whitehorn v The Queen (1983) 152 CLR 657 @ 665
[ii] Director of Public Prosecutions Act 1986; Criminal Procedure Act 1986; Criminal Procedure (Pre-Trial Disclosure) Amendment Act 2001
[vi] See: R v Brown (1997) 3 All ER 769; R v Jamieson, Elliott and Blessington (1992) 60 A Crim R 68
[vii] “… a communication:
(a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered, or
(b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or
(c) 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
(d) 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.”