Legal Aid NSW solicitor Tim McKenzie emailed Wollongong police senior sergeant Ryan on 4 April 2019 to remind the most senior police prosecutor at the local station about the duty of disclosure requirements that prosecutors in NSW Local Courts must adhere to.
The prosecution in general must follow a duty of disclosure when undertaking a criminal case, which requires them to disclose all information in their possession that could be of relevance in any way to a defendant’s case. This duty is established both in common law and it’s set out in legislation.
The case that McKenzie’s email was drafted in relation to concerned his client Harley Bradley, who allegedly bit the finger of Katie O’Connor in a quite substantial manner. And as the defendant was claiming self-defence, McKenzie was seeking O’Connor’s records.
The police prosecution refused to hand over all documentation. The magistrate supported the prosecution’s decision, claiming that McKenzie was undertaking “a classic fishing expedition”.
However, on appeal, in the NSW Supreme Court, Justice Christine Adamson thought otherwise.
In February 2020, her Honour found the prosecution’s position of releasing only the material needed to conduct a fair hearing was “legally unreasonable”, and, as is well established in common law, the prosecution must take a broad view of what might be relevant in undertaking its disclosure duty.
Clearing up confusion
Following the Bradley decision in the NSW Supreme Court, McKenzie, along with Black Chambers barrister Felicity Graham and Public Defenders barrister Madeleine Avenell, produced an ethics paper outlining ten points relating to a prosecutor’s duty of disclosure in the Local Court.
The paper begins by pointing out that the duty of disclosure in the lower court mirrors the same duty as in the higher courts.
“The duty is largely governed by established common law principles – which are of particular significance where criminal proceedings are prosecuted summarily by police,” the paper reads.
Statutory provisions regarding duty of disclosure in summary proceedings are set out in chapter 4 part 2 division 2 of the Criminal Procedure Act 1986 (NSW), as well as in sections 24 and 25 of the Criminal Procedure Regulation 2017 (NSW).
The second point the legal eagles raise is that the duty of disclosure the prosecution is obliged to undertake is not owed to the accused, but it is owed to the court itself. Therefore, the prosecution must deliver fully on its duty to the court – along with all other duties – “as a minister of justice”.
Another key aspect to the duty of care is it doesn’t mean the prosecution can withhold certain information until the defence happens to ask enough probing questions to discover the evidence exists.
“The defence is not obliged to fossick for information of a kind to which they are entitled,” the lawyers make clear, “by subpoena or otherwise.”
The three lawyers go on to list materials that must be released under duty of disclosure, which they assert “cannot be stated exhaustively”.
This includes material that is or might be relevant, that raises a new issue, or material that might hold prospect of providing a lead on evidence.
The authors outline that all material generated through the investigation, along with witness statements – both those to be called and those not to be – notices of any evidence discrepancies, and prior convictions, criminal records or factsheets relating to any witnesses, should be produced.
Other materials include all information that could assist in a defence case and act as a mitigating factor in sentencing. And further, any materials that aren’t admissible as evidence, including that obtained in contravention of the law, must be handed over.
The police are the prosecutors
According to the defence lawyers, the prosecution has a duty to hand over all evidence regardless of its implications. They underscore that the integrity of an investigation is based on its impartiality, so full disclosure of evidence can often be perceived as a prosecutorial strength.
It’s further expected that the prosecution has taken a broad view of what materials could be relevant, and it’s understood that the individual who performs the duty must be familiar with the details of the case.
A police officer with no connection to an investigation should not carry out the duty of disclosure.
“Prosecution should not take a narrow view… as to what might prove useful to the defence” or “might open up useful lines of enquiry to the defence”, the lawyers set out.
Another avenue the prosecution should not take in order to foil the duty of disclosure is in having a Crown solicitor or a police sergeant claim that they don’t have any relevant documents in their possession, when, in fact, this evidence may be in the hands of other investigators.
The distinction between members of a law enforcement agency and those serving on the prosecution is a “fallacy”, the authors maintained, and they further outlined that the law perceives both the investigating agency and the prosecuting agency as making up the prosecution.
Enforcing the duty
Another point the defence should be aware of is that the accused can enforce the duty of disclosure via various means.
The first avenue is to obtain a court order to require materials under the provisions of the Criminal Procedure Act.
If there is still a refusal to produce certain documents, then the defence can call for a stay on proceedings, which was the action taken by McKenzie in relation to the Bradley case.
Then, as a last resort, there is the possibility of obtaining a subpoena to enforce compliance with the duty of disclosure.
And if a breach of disclosure is revealed post-trial, it can warrant an appeal, which may see a conviction quashed and a retrial ordered.
Tips for securing disclosure
The three criminal defence lawyers end with a few pieces of advice for other legal professionals approaching a case, which includes considering duty of disclosure early on, and making oneself familiar with past cases that have led to miscarriages of justice.
Other key tips involve being aware of the mechanisms that can be applied to push back against resistance to disclosing material, being clear on what sort of documents and evidence to request and doing some internal investigation of potential witnesses.
Further, when attempting to obtain documents that are warranted, the defence team should check request compliance pre-trial, and if not satisfied lawyers should start a separate hearing to apply for a stay to obtain what is owed before the trial begins.
“If stay refused or otherwise appropriate, seek issue of a subpoena to commissioner of police,” the lawyers conclude. “It is not over until it is really over. Don’t give up!”