By Ugur Nedim and Zeb Holmes
The Supreme Court of New South Wales has compelled the Commissioner of Police to serve the criminal histories of prosecution witnesses, despite objections by police.
The judgment serves as a reminder that the prosecution is legally required to serve all relevant materials upon the defence.
Facts of the case
The accused was charged with murder, conspiracy to murder or solicit another person to murder.
An argument available to the defence was that other persons – who were to be called as prosecution witnesses – assaulted the deceased and caused his death.
The prosecution served the defence with criminal histories of five out of approximately 30 civilian witnesses in the lead-up to the trial.
Seeking the histories of the remaining witnesses, the defence filed and served a subpoena for “all criminal records” of all named witnesses. The document directed the Commissioner of Police to produce the materials on the fifth day of trial.
Police objected to production on the basis that it was a “fishing expedition” and had no legitimate forensic purpose.
Lawyers for the police submitted that access should not be granted to the criminal histories because the fact that a person has criminal convictions does not mean they are an unreliable witness.
They additionally asserted that it is in the public interest to keep the information from the defence, because “these citizens of New South Wales… have an entitlement to their records to remain private”.
The police lawyers two alternatives to providing full access, which were:
- For the documents to be produced to the Court but not made available to the parties “until such time as in the course of cross-examination it becomes relevant for them to be seen by the accused”; or
- That police “redact as much of the material as is not relevant to making false statements, dishonesty on the face of the offence”. It was suggested that offences of violence might be left visible on the redacted records given that part of the accused’s case was that other people may have caused the death.
The defence lawyers submitted that the Crown is required to serve the criminal histories of prosecution witnesses as part of its legal duty of disclosure.
They emphasised the seriousness of the charges faced by their client and submitted that the defence is entitled to review and assess the histories and make a determination regarding whether it may affect the credibility of witnesses, as well as bolster any submission that someone else may have been responsible for the offence.
Criticism of Police Commissioner
Supreme Court Justice Hamill criticised the grounds for the prosecution objections, making clear it is unrealistic to impose a requirement that the defence prove they know, or have grounds to suspect, that a witness has a criminal record and that such an inquiry should not be seen as a fishing expedition.
His Honour further rejected the submission that a defendant needs to establish the relevance of a criminal history on the issues in dispute.
He further noted that the Supreme Court of Victoria noted in the case of R v Mokbel (Ruling No 1)  VSC 410:
“Defence lawyers are in a far better position than a judge to make an appraisal of the value of information contained… A more liberal approach to the question is required in a criminal proceeding. Experience shows that full examination of documents by defence counsel sometimes produces relevant material for cross-examination, material which may to others not fully conversant with all the factual matters, be not important.”
His Honour additionally noted that a general right to privacy is not recognised by the law as a basis for privilege or immunity. of the right to privacy is forfeited when a person commits a criminal offence.
The Justice ultimately agreed with the defence submissions, stating:
“it is difficult to imagine a case where it could sensibly be asserted that an accused person had no legitimate forensic purpose in seeking production of material that ought to have been subject to Crown disclosure.”
He emphasised the importance of the Crown’s disclosure requirements and granted access to all requested criminal records.