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Prosecution Guidelines

Chapter 13. Disclosure

The purpose of this Chapter is to set out the prosecution’s continuing duty of disclosure and also how the duty of disclosure interacts with the Director’s legal professional privilege and other claims of privilege by third parties.

Published 29 March 2021

13.1 Introduction

The purpose of this Chapter is to set out the prosecution’s continuing duty of disclosure and also how the duty of disclosure interacts with the Director’s legal professional privilege and other claims of privilege by third parties.

13.2 The duty of disclosure

Prosecutors are under a continuing obligation to fully disclose to the accused all material known to them in a timely manner that on their sensible appraisal:

  1. is relevant or possibly relevant to an issue in the case
  2. raises or possibly raises a new issue that is not apparent from the evidence the prosecution proposes to rely on
  3. holds out a real as opposed to fanciful prospect of providing a lead to evidence that goes to either of the previous two situations.

The prosecution’s duty of disclosure continues after trial and the conclusion of any appeal.

 

The prosecution’s duty of disclosure does not extend to disclosing material relevant only:

  1. to the credibility of defence (as distinct from prosecution) witnesses
  2. because it might deter the accused from leading false evidence in his or her case in respect of a fact not otherwise in issue, and therefore not foreseeably relevant to the proceedings at the time the prosecution became aware of the material.

All due care must be taken to protect the security of sensitive documents and other material and information, particularly where its disclosure may:

 

  1. affect the safety of individuals
  2. jeopardise continuing investigations
  3. potentially affect the flow of confidential information to and between justice agencies
  4. otherwise prejudice the criminal justice process or diminish public confidence in the criminal justice system.

The Criminal Procedure Regulations provide that material served on the accused must not disclose the address, date of birth or the telephone number of witnesses unless that information is relevant or an order has been made for those details to be disclosed. 

 

13.3 Disclosure of material by Police and other investigative agencies

In all matters prosecuted by the ODPP, police and other investigative agencies must, in addition to providing the brief of evidence:

  1. notify the ODPP of all other documentation, material and information, including that concerning any proposed witness, that might be relevant to either the prosecution or the defence
  2. disclose such documentation, material or information to the ODPP, if requested
  3. certify that the DPP has been notified of all such documentation, material and other information (s15A Director of Public Prosecutions Act 1986; Schedule 1, Director of Public Prosecutions Regulation 2015).

 

Legal privilege and public interest immunity

Where a prosecutor receives material that may be subject to a claim of legal privilege (other than that over which the Director has claim), public interest immunity or statutory immunity, the prosecutor should not disclose that documentation, material or information to the defence without first consulting with the officer-in-charge. The officer-in-charge should be given a reasonable opportunity to seek advice.

Subject to any claim of privilege or immunity, such material, if assessed as relevant in the way described above, should be disclosed to the defence.

Where the prosecutor and the police disagree as to what should be disclosed, and there is no claim of public interest immunity, the matter is to be referred to the Director or a Deputy Director.

The prosecution must put the defence on notice of any known material over which a claim of privilege or immunity has or is being made, so as to allow the defence the opportunity to contest the relevant claim and seek access to the material via subpoena. Generally, this will be achieved by the service of a s15A disclosure certificate by Police.

Where a claim of privilege or immunity is pursued, the question of disclosure will be determined by the outcome of that claim in court.

On rare occasions the overriding interests of justice may require the existence of otherwise disclosable information to be withheld – for example where disclosure may pose a threat to the personal safety of a person, or to protect an ongoing investigation. Such a course can only be taken with the approval of the Director or a Deputy Director.

In such cases, consideration must be given to whether the charge against the accused to which the material is relevant should be withdrawn and/or whether the accused should be charged with a lesser offence to which such material would not be relevant. (rule 88, Legal Profession Uniform Conduct (Barristers) Rules 2015; rule 29.6, Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015).

Unless any unfairness caused to the accused by withholding notice of the existence of such material can be ameliorated, the prosecution must be discontinued. In extraordinary circumstances delayed notice of the existence of such material may be approved by the Director or a Deputy Director. Any decision to delay notice should be for a finite period of time and regularly reviewed.

Where the ODPP gains knowledge or comes into possession of documents or material over which the accused has a claim or potential claim of legal privilege, that material must be disclosed by the ODPP to the accused as soon as reasonably practicable.

Where the ODPP comes into possession of documents or materials (whether by police or another third party) over which a claim or potential claim of sexual assault communication privilege applies, the ODPP must return those documents or material and notify the defence of its existence and any claim or potential claim of sexual assault communication privilege as soon as reasonably practicable.

13.4 The Director’s legal privilege

Legal privilege will ordinarily be claimed against the production of any document in the nature of an internal ODPP advice, such as a submission to the Director and submissions between solicitors and Crown Prosecutors. Only the Director or a Deputy Director may approve any waiver of privilege.

The Director’s legal privilege extends to documents containing material created or gathered for the dominant purpose of providing legal advice to the Director, including internal advice, memoranda, summaries, internal emails, conference notes and file notes.

There is no implied or automatic waiver of legal privilege on  conference notes when a witness makes a disclosure that significantly adds to or is inconsistent with a previous statement. If a witness discloses information in a conference that warrants disclosure to the defence, as best practice, an arrangement should be made for the witness to make a supplementary statement with police, where practicable, which will then be disclosed to the defence. In urgent circumstances, this may be by way of signing a police notebook statement. A request may be made for a direction to waive legal privilege over relevant disclosures.

The giving of reasons for prosecutorial decision making generally does not constitute a waiver of legal privilege in respect of matters in which reasons have been given. Internal legal advice must not be released when reasons are given.