CONTINUING PROFESSIONAL DEVELOPMENT # 69

Venue: ATSILS (Brisbane office) Presenter: Andrew Hackett

Topic: Disclosure by the Prosecution and Defence Date: 29th

June ‘10

"Nothing in the universe can travel at the speed of light, they say, forgetful of the shadow's speed." ~Howard Nemerov

We are not barbarians. When one of our number is accused of falling foul of our

laws, we give them a chance to defend themselves. We spend grand sums providing

stately buildings where justice is dispensed. We marshal armies of lawyers, judges,

magistrates, police and juries to bend themselves to the task of determining whether

a citizen has breached our law. And we set aside time to do this important work. Yet

history tells us regularly and painfully that our system can and does fail. A fertile

ground for injustice is the deliberate or accidental failure by the prosecution to (fully)

disclose relevant or helpful material to the defence. My paper examines the

mechanisms for Disclosure under Chapter 62 Division 3 of the Criminal Code and the

thankfully few situations in which defence disclosure is mandated.

The Prosecutors Role and Duties at common law

The prosecutor occupies centre stage in the drama of a criminal trial but with great

power comes great responsibility. As President McMurdo put it in R v Smith (2007)

QCA 447:-

“The role of prosecuting counsel is of institutional significance in the criminal justice

system. It differs from that of an advocate representing an accused person in a

criminal matter or a party in civil litigation. A prosecutor represents the state. They

should make any evidence which could be in the interests of an accused person

available to the accused person or their counsel. Their duty is not to obtain a

conviction by all or any means. It is to fairly and impartially place before the jury all

relevant reliable evidence."

In Mallard v The Queen (2005) 224 CLR 125 at 155-156 Kirby J stated:-

"The applicable principles. The foregoing review of the approach of the courts, in

national and international jurisdiction, indicates the growth of the insistence of the

law, particularly in countries observing the accusatorial form of criminal trial, of the

requirement that the prosecution may not suppress 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 is this so where the material evidence may

cast a significant light on the credibility of material prosecution witnesses or the

acceptability and truthfulness of exculpatory evidence by or for the accused (italics

added)."

The underpinning and obvious rationale for the prosecutor’s disclosure duties is the

disparity of power and resources between the accused and the State. But in the light

of pithy judicial pronouncements such as these, it might be wondered whether good

cause existed for introducing Chapter 62 Division 3 into the Criminal Code ("Division

3") on 5 January 2004.

The scheme of Division 3.

The division begins with statements of principle and key definitions (see 590AB and

590AD respectively). It then sets out the disclosure that is mandatory for the

prosecution (see 590 AH and 590 AI) and that which must be made on request (see

590 AJ and 590 AK).

There are provisions dealing with how and when mandatory or requested disclosure

is to occur (see 590AL and 590 AN) and further provisions about the limitations on

disclosure (see 590 A0, 590 AP and 590 AQ). Some general provisions follow from

590 AR to 590 AX and then 590 AX which creates an offence for unauthorised

copying of sensitive material (as defined).

Is Division 3 a Code?

In the second reading speech by the then Attorney general on 13 May 2003 he said:-

“…the Bill also sets out a comprehensive codified regime for prosecution disclosure.

Until now there has been no easily referenced code setting out these rules.”

The Attorney General also referred to the Explanatory Notes to the Bill which

stated:-

“The prosecution disclosure provisions….are a statutory codification of the existing

prosecution disclosure obligations.”

The intent therefore of parliament is that Division 3 is a code. Some caution should

be used however in the interpretation of the above extract from the Explanatory

Notes in as much as the Notes suggest the Division does not change the law. The

reality is that Division 3 went beyond the existing law in many ways. An example is

the regime in 590AQ that limits disclosure to the defence on public interest grounds.

Another example is 590 AO which restricts the disclosure of “sensitive evidence.”

It is true that s.590AC (1) provides that nothing in this chapter division “…affects an

accused person’s right to a thing under another law.” However my view is that the

section refers to rights under another statute and not to the common law. Contrast

this section with the express saving of the common law powers of a police officer in

s.9 of the Police Powers and Responsibilities Act.

What are the governing principles for prosecution disclosure?

S .590AB (1) and 590 AB (2) set out the over-arching principles for prosecution

disclosure.

590 AB (1) materially states:-

".....it is a fundamental obligation of the prosecution to ensure criminal proceedings

are conducted fairly with the single aim of determining and establishing truth"

590 AB (2) sharpens the point:-

"Without limiting the scope of the obligation......the obligation includes an ongoing

obligation for the prosecution to give an accused person full and early disclosure of:-

(a) all evidence the prosecution proposes to rely on in the proceeding: and

(b) all things in the possession of the prosecution, other than things the disclosure of

which would be unlawful or contrary to public interest, that would tend to help the

case for the accused person."

There are some important points to make about the wording of s.590 AB.

First, the obligation is "ongoing". Section 590 AL, on which I will touch later,

elucidates the meaning of "ongoing."

Second, section 590 AB (2) (a) and (b) respectively distinguish between 'evidence

relied upon' by the prosecution and 'things that tend to help' the defence. Whilst

"evidence" has a concrete meaning, the same cannot be said for "things", covering in

ordinary use matters tangible and intangible.

Third, as lawyers you will have already noted in 590 AB (2) (b) the qualification that

the things must be "...in the possession of the prosecution".

Fourth, you will see in 590 AB (2) (b) that the Legislature has used “would" instead of

"could”. I think (perhaps disingenuously) that if an accused can be committed for

trial because a reasonable jury could convict, then could should also be used in

assessing whether material is helpful and disclosable to the defence.

In the important case of Rollason v Jenkins: ex parte A-G (2007) QCA 65, the Court of

Appeal referred to subsection 590 AB (1) and (2) in construing the prosecutions

obligations of disclosure in 590 AH (2) and 590 AJ at page 7 (paragraph 21) , noting:-

“It is, we think, sufficient to state that, in our opinion, the obligation cast upon the

prosecution by this provision is to be performed in light of the guiding principles

stated in 590AB. This means that, at a practical level, the particular question for

assessment in each case is whether the statement is something "that would tend to

help the case for the accused person", or is otherwise required in the interests of

fairness and establishing the truth".

Section 590 AB is therefore a touchstone for assessing the prosecutions compliance

with its disclosure obligations and it has real substance. It is also a source of

obligations for the prosecution, independently of the other sections that impose

disclosure burdens (i.e. 590 AH and 590 AJ).

To what proceedings does Division 3 apply?

Division 3 applies to “relevant proceedings”. In the definitions section of 590 AD,

“relevant proceeding” is defined exclusively as a committal proceeding, a prescribed

summary trial or a trial on indictment.

Perplexingly, “prescribed summary trial” is not defined. Despite this lacuna, in

practice most police prosecutors accept the efficacy of the disclosure provisions for

summary hearings. The Civil and Criminal Reform and Modernisation Amendment

Bill 2010 (“The Moynihan Reforms Bill”) will cure this odd deficiency with the

insertion of a new definition in 590 AD.

What disclosure must always be made by the prosecution?

Section 590 AH stipulates the mandatory disclosure obligations of the prosecution,

including:-

1 A copy of the bench charge sheet, complaint or indictment;

2 A copy of the accused’s criminal history;

3 A copy of any statement of the accused;

4 A copy of any statement of any proposed witness for the prosecution;

5 A copy of any forensic report;

6 A copy of any other thing on which the prosecution intends to rely at the

proceeding.

When must mandatory disclosure occur (s.590 AI)?

The prosecution must provide mandatory disclosure at least 14 days before evidence

starts to be heard at a committal proceeding or prescribed trial. For a trial on

indictment , the prosecution has 28 days after the presentation of the indictment or

before evidence starts to be heard if the trial starts less than 28 days after the

presentation of the indictment.

A court may shorten or extend the time limits for disclosure.

What disclosure must be made by the prosecution upon defence request (s.590

AJ)?

Once requested, the prosecution must give the defence the following:-

1 Particulars if a proposed witness is an affected child;

2 Any criminal history of any proposed witness;

3 Copy or notice of anything that may reasonably be considered to be adverse

to the reliability or credit of a proposed witness;

4 Notice of any thing relating to the competence of a proposed witness;

5 A copy of any statement of any person relevant to the proceeding but on

which the prosecution does not intend to rely;

6 A copy or notice of any other thing that is relevant to the proceeding but on

which the prosecution does not intend to rely.

Disclosure is to be made as soon as practicable after the defence request is made

(see 590 AK).

When is a thing in the possession of the prosecution (s.590 AE)?

The disclosure obligations (both mandatory and on request) predicate that the thing

is in the possession of the prosecution. The meaning of “in the possession of the

prosecution" therefore marks an important boundary between prosecution

obligation on the one hand and defence responsibility on the other (i.e. use of

summons, subpoena, private investigator or FOI application).

In the definitions section (590 AD), a definition is not offered for "possession of the

prosecution" and the reader is instead referred to section 590AE. Section 590 AE is

definitive so that a thing cannot be said to be in the "possession of the prosecution"

if it is not caught by 590 AE (2) or (3).

590 AE (2) states:-

"A thing is in the possession of the prosecution if it is in the possession of the

arresting officer or a person appearing for the prosecution."

Further 590 AE (3) provides:-

"A thing is also in the possession of the prosecution if --

(a) the thing is in the possession of--

(i) for a prosecution conducted by the director of public prosecutions -- the

director; or

(ii) for a prosecution conducted by the police service-- the police service;

and

(b) the arresting officer or a person appearing for the prosecution--

(i) is aware of the existence of the thing; and

(ii) is, or would be, able to locate the thing without unreasonable effort.”

Due to recent decisions of single judges in the Supreme Court, there are 2 different

judicial interpretations as to the meaning of 590 AE. On the wide view, section 590

AE creates three situations where a thing is in the possession of the prosecution,

namely:-

1. Under 590 AE (2);

2. Under 590 AE (3) (a); or

3. Under 590 AE (3) (b).

In other words, according to the wide view 590 AE (3) fragments into three situations

where the prosecution is to be regarded as being in possession. And on this view 590

AE (3) (b) imposes an obligation on the prosecution to disclose a thing that ordinarily

would not be regarded as being in its possession. In other words, on the wide view

590 AE (3) (b) obliges the prosecution to disclose third party things.

The narrow view holds that 590 AE only creates two situations where a thing is in the

possession of the prosecution, namely:-

1. Under 590 AE (2); or

2. Under 590 AE (3).

The differing views turn on the hoary chestnut of whether "and" appearing at the

end of 590 AE (3) (a) (ii) means “and” or whether it means "or."

The wide view is to be found in the decision of Justice Fryberg in R v Hargraves,

Hargraves and Stoten (2008) QSC 267, delivered on 23 October 2008.

In that case the three accused were being prosecuted for a conspiracy to defraud the

Commonwealth with the prosecutions arising out of an investigation by the

Australian Crime Commission ("the ACC"). The defence sought disclosure of a

complete transcript of evidence given by a Mr Egglishaw under an examination

conducted by the ACC. The Commonwealth DPP had provided a transcript with many

pages that were blacked out or redacted. The prosecution argued that the

documents were in the possession of the ACC and were not in the possession of the

arresting officer (who was no longer seconded to the ACC) or the prosecutor

appearing. As such 590 AE (2) did not apply. It was common ground that the

prosecution were aware of the documents and is or would be able to locate them

without unreasonable effort.

At page 10 paragraph 20, Justice Fryberg held that:-

"The Act, it seems to me, clearly requires that paragraph (a) or paragraph (b) be

satisfied in order for a thing to be in the possession of the prosecution but does not

require both to be satisfied."

In other words, "and" meant "or" and the prosecution were ordered to disclose the

ACC's documents.

A contrasting and narrower view was taken by Justice Martin in the decision of The

Queen v Julian Ronald Moti (2009) QSC 293, delivered on 11 September 2009.

Mr Moti was charged with 7 counts of engaging in sexual intercourse with a person

under the age of 16 outside Australia in 1997. The defence subpoenaed documents

from the Department of Foreign Affairs and Trade (" DFAT "). The defence resisted

the application by the recipients to set the subpoenas aside. The defence also

applied for a direction under section 590 AJ (the disclosure upon request provision)

seeking that the prosecution disclose a broad range of documents. The DPP argued

that for a thing to be in the possession of the prosecution, it must satisfy both (a)

and (b) of 590AE (3). The defence argued the opposite, relying on R v Hargraves,

Hargraves and Stoten.

At page 16 (paragraph 50) Justice Martin referred to the Explanatory Note to the

relevant Bill that introduced Division 3 and stated:-

" That explanation makes clear the intention that there should be only two relevant

circumstances of possession and that "and" should be read as "and”."

Unfortunately, my view is that the narrower view is likely to prevail if the Court of

Appeal visits the issue.

How is disclosure to be an ongoing obligation (590 AL)?

If the prosecution cannot disclose a thing within time because it was not in its

possession, it must still disclose the thing as soon as practicable after it comes into

the possession of the prosecution (see 590 AL (1)). The section gives as an example

the situation where a thing did not exist but comes into existence and the possession

of the prosecution later.

The prosecutions disclosure obligations, other than for an exculpatory thing, end

with the finalisation of the court proceeding (i.e. discharge, conviction or acquittal of

the accused).

However, in the case of "an exculpatory thing", the prosecution are bound to

disclose it until the accused is discharged or acquitted or dies (see 590 AL (3)). An

"Exculpatory thing" is defined in 590 AD to mean:-

" ...reliable evidence of a nature to cause a jury to entertain a reasonable doubt as to

the guilt of an accused person.”

A more rubbery and subjectively framed definition would be hard to imagine. I

respectfully adopt Judge Moynihan’s comments in his Issues Paper (Chapter 5 of the

Review of the civil and criminal justice system in Queensland) at page 92 where he

said:-

“Moreover, definitions of this kind afford the prosecution an opportunity to make a

subjective judgement, for example, that materials relevant to issues in the case

against the defendant are not disclosed. This may be because from the perspective

of the prosecution the evidence is not reliable and therefore does not give rise to a

reasonable doubt."

The definition is far too dependant on prosecutors making value judgements than

should be the case in dealing with the disclosure of evidence, usually post trial, that

may reveal a miscarriage of justice.

What must not be disclosed by the prosecution (590 AN - 590AQ)?

The prosecution, for obvious reasons, does not have to disclose something already

disclosed to the defence (see 590AN).

It is also not obliged to disclose "sensitive evidence". That term basically refers to

anything containing an image of a person that would interfere with that person’s

privacy if disclosed or is obscene or indecent (see 590 AF). However an "appropriate

person" (see 590 AO (7)) may view the sensitive material on request (see 590 AO (2)

(f)). A court may direct the prosecution to allow an "appropriate person" to view the

thing (590 AO (3)) or even give a copy to an accused person (590 AO (6) & (7)). There

will invariably be strict conditions set by a court on the viewing or supply of sensitive

evidence to ensure that there is no unauthorised reproduction or circulation of the

sensitive evidence (590 AO (4) & (6)).

In the Moynihan Reforms Bill, the Court will be given a power to direct the defence

to return a thing given to it by the prosecution.

Generally, the prosecution is not to give "witness contact details" (see 590 AP (7)) to

the defence unless it is materially relevant to the proceedings (e.g. the address of a

complainant for a break and enter) or if the court so directs (see 590 AP (1), (2), (3) &

(4)).

At common law, a prosecutor who decides that a witness is not one of truth and is

thus not to be called has a duty to "......provide a copy of the statement of the

witness to the defence and ...the duty is not limited to furnishing the name and

address of the witness" (per Lord Hutton in R v Mills (1998) AC 382 at 406). Under

Division 3 the prohibition on disclosing witness contact details extends to proposed

witnesses only. A witness that a prosecutor has determined not to be one of credit is

arguably not a proposed witness so the disclosure of contact details would be

permissible and proper within 590 AB (2) (b).

The prosecution do not have to disclose something that it considers would be

contrary to the public interest (590 AQ (1) (a)). If the prosecution considers

disclosure would:-

1. prejudice the security, defence or international relations of Australia;

2. damage relations between the Commonwealth and a State or between two or

more States;

3. facilitate the commission of another offence;

4. prejudice the prevention, investigation or prosecution of an offence;

5. prejudice the usefulness of surveillance or other detection methods;

6. reveal the existence or identity of a confidential source;

7. cause unlawful or dishonest interference with potential witnesses;

8. prejudice the proper functioning of the government of the Commonwealth or a

State; or

9. breach the law (i.e. disclosure of a drug informant’s identity under the Drugs

Misuse Act);

then it can refuse disclosure (590 AQ (2)).

Provided disclosure of a thing is not prohibited by law, a court can make a disclosure

direction if it is satisfied, on balance, that disclosure to the accused is not contrary to

the public interest (590 AQ (3)). Non-exhaustive lists of the matters the court must

take into account are set out in 590 AQ (6).

Plainly the refusal to disclose on public interest grounds under 590 AQ derives from

the doctrine of public interest immunity. The leading case on that doctrine is the

decision of the High Court in Sankey v Whitlam (1978) 142 CLR 1. It would be worth

reading if anyone is facing a refusal of disclosure under 590 Q on public interest

grounds.

What is the effect of the Moynihan Reforms Bill?

A new proceeding known as a “disclosure obligation direction” (a “Dod”) will be

created by new Chapter division 4A. A Dod means a “…direction or ruling under

section 590AA (2) (ba), to the extent it relates to compliance with a disclosure

obligation”. “Disclosure obligation” means:

“the obligation of the prosecution……… to comply with the requirements of that

chapter division for disclosure” (see proposed 590E).

Among other things, a Dod can allow the court to:

examine the arresting officer to decide whether the prosecution has a

disclosure obligation;

require the arresting officer to file an affidavit to allow the court to

decide whether the prosecution has a disclosure obligation;

order that the accused or his lawyer can cross-examine the arresting

officer on the affidavit referred to above to determine whether the

prosecution has a disclosure obligation (see proposed 590 F).

The Moynihan Reforms Bill will insert a new Chapter 9A into the Criminal Practice

Rules dealing specifically with Dods. Before a party can file an application for a Dod,

Rule 43C requires a notice to be sent to the respondent and it must:

“(a) advise the respondent of the following-

(i) what the applicant says the respondent should have done , but has not

done, in relation to the disclosure obligation that is to be the subject of

the disclosure obligation direction to be sought by the applicant;

(ii) the disclosure obligation direction to be sought by the applicant; and

(b) give the respondent a brief statement about what the applicant considers the

respondent should give the applicant to satisfy the applicant that the respondent has

complied with the disclosure obligation.”

Rule 43 C also requires that the notice specify a nominated time for a response (not

less than 7days).

If the applicant does not receive a response or is not satisfied with it, Rule 43 D

allows the applicant to file an application for a Dod accompanied by the

correspondence generated under Rule 43C. The application is to be served on the

respondent.

The application may be determined on the papers unless either party insists on

making verbal submissions (Rule 43D).

What are the consequences and remedies for non-disclosure presently and under

the Moynihan Reforms Bill?

Much of the case law dealing with the present division 3 arises in the situation where

a defendant was convicted after trial and is pursuing prosecutorial non-disclosure as

a ground of appeal.

A failure by the prosecution to comply with a disclosure obligation in division 3 does

not invalidate the relevant proceeding (590AC). A court may waive non disclosure for

good reason and if waiver will not result in a miscarriage of justice (590 AU)

However there are four decisions of the Queensland Court of Appeal that are worth

considering.

In the decision of R v OL (2004) QCA 439 (delivered 19.11.2004) the defendant was

charged with various sexual offences against his daughter. Despite several requests

by the appellant’s lawyers (before committal and before trial) for the supply of

medical reports and related material, nothing was supplied until day 13 after the

close of evidence and completion of the defence address.

President McMurdo stated (page 6 paragraph 13) that:

“….a failure to comply with those provisions in a trial does not affect the validity of

the trial; the court may waive any requirement for disclosure if it is satisfied there is

good reason and that the waiving will not result in a miscarriage of justice.”

Her Honour was not persuaded that the Appellants lost opportunity to explore the

medical evidence deprived the Appellant of the chance of an acquittal or that the

refusal to grant a mistrial to allow the defence to investigate the medical evidence

resulted in a miscarriage of justice (page 7, paragraph 17). The medical records

would have established that the daughter was sexually active with her boyfriend

during some of the time of the alleged offending. There was however no basis for an

application to cross-examine the complainant on her sexual history with her

boyfriend. The court noted the medical evidence did not provide any direct support

for the defence case.

In R v Robinson (2007) QCA 349 (delivered 19.10.2007), the prosecution failed to

disclose in a timely way forensic evidence of the finding of a semen sample (not

referable to the defendant) on bedding where a rape occurred. The relevant

information was not disclosed until after the complainant finished her evidence and

had left court. The jury were informed of the forensic result.

The defence unsuccessfully argued on appeal that the late disclosure deprived the

defence of the opportunity to explore the matter with the complainant and to

exclude, for example, the possibility that the boyfriend was the source of the stains.

In short the defence said that the appellant was deprived of a real prospect of an

acquittal.

The decision of the court was delivered by Justice Keane. The defence case was the

complainant had consensual sex with the appellant and that someone other than the

appellant but unknown to the complainant was the perpetrator of the rape. It was

not the defence case that the complainant had been raped by someone known to

her but covered up by blaming the appellant. The defence counsel did not seek to

have a voir dire to question the complainant about the new evidence. Nor was a

mistrial or adjournment sought.

His Honour inferred that the appellants counsel made a forensic judgement, gaining

a real forensic advantage for his client from the jury being informed of the

unexplained presence of the semen (see page 4, paragraph 17).

Ultimately His Honour concluded (page 5, paragraph 18):

“It simply cannot be said that the late disclosure of the forensic evidence placed the

appellant in a position of disadvantage from which the appellant could not be

extricated. In truth, however, the emergence of the forensic evidence of the semen

stains in the way it did, and the circumstances in which that evidence was left to the

jury , were, serendipitously perhaps, distinctly advantageous to the appellant.”

In R v Hau (2009) QCA 165 (delivered 16.06. 2009), the appellant argued that he was

deprived of a fair trial because the DPP failed to disclose a victim impact statement

and a doctors statement before the pre-recording of the complainants evidence.

The allegations concerned unlawful sexual activity when the complainant was 14.

The victim impact statement was inconsistent with the complainant’s pre-recorded

evidence in that in the statement the complainant alleged she was overborne and

that force was used. The medical report demonstrated that the complainant was

suffering from depression and was on anti-depressants.

Justice Keane noted at page 9 (paragraph 37) that the view has been taken in

Queensland that:

“….non –compliance by the prosecution with its disclosure obligations “is such a

serious breach of the presuppositions of the trial as to deny the application of the…

proviso”, at least where the material not disclosed “might well have influenced the

result of the trial.”

His Honour found (page 10, paragraphs 41 & 42) a real possibility that the appellant

suffered some forensic disadvantage in the loss of the opportunity to cross-examine

the complainant on the inconsistencies and that “…the loss of this opportunity

because of the failure of the prosecution to perform its obligations goes to the root of

the fairness of the trial.” The proviso was not applied and the appeal upheld.

In R v Cornwell (2009) QCA 294 (delivered 6.10.2009) the leading judgement was

given by Justice Muir. The appellant was convicted after trial of unlawful assault

causing bodily harm whilst in company. The victim impact statement was not

provided to the defence until after the jury had begun deliberating. Upon receiving

the document, defence Counsel unsuccessfully sought the discharge of the jury.

The impact statement contained significant inconsistencies as to the manner of

assault and its impact upon him.

Muir J referred to R v Hau and after reviewing the trial evidence found at page 9

(paragraph 40) “….that the appellant was denied an opportunity to conduct his case

in a way which “could have made a difference to the verdict…...” The appeal was thus

upheld.

For a different result in an appeal against a rape conviction where a victim impact

statement was not supplied until after the jury found the appellant guilty, please

refer to R v BBU (2009) QCA 385 ( delivered 15.12.2009).

In R v Martens (2009) QCA 351, the petitioner sought a pardon after unsuccessfully

appealing his conviction of engaging in sexual intercourse with a person under 16

outside Australia. The case against the petitioner was that in 2001 the petitioner flew

the complainant twice from Morehead to Port Moresby. After arrival on the second

flight between 10 and 16 September 2001, it was alleged that he took the

complainant to his home where an act of sexual intercourse occurred.

Together with other fresh evidence, the petitioner relied on Civil Aviation flight

records of the plane in question. The records demonstrated that the flight alleged by

the complainant had not occurred.

The prosecution argued that the flight record should be disregarded or discounted

because they were not fresh evidence and the petitioner could have produced them

at the trial.

His Honour gave this argument short shrift, stating at page 43 paragraph 165:

“The submission does little credit to the Commonwealth Director of Prosecutions.

The records are of critical importance. The petitioner, and his advisors, have asserted

that fact ever since his arrest in 2004. The evidence, some of which I will mention

shortly, indicates that the petitioner has consistently requested the prosecutor to

obtain the records which he claimed would exonerate him by establishing that (the

complainant) was unreliable. The prosecutor did not provide the records. Instead it

told the petitioner they did not exist. They were found after the petitioner’s

conviction as a result of efforts made by his wife.”

His Honour continued (paragraphs 170 -171);

“The records have always existed and have now been produced. It is a poor reflection

upon the two organisations that one should have failed to find them, and denied

their existence, and the other object to their use in the reference on the ground that

the petitioner should have obtained them earlier…….”The evidence is such that it

would probably have had an influence on the result of the trial, and it is inherently

credible.”

Not surprisingly, the conviction was quashed. It is noteworthy that it was the

petitioner’s wife that found the records and not the police or prosecution.

In the brave new order to be ushered in by the Moynihan Reform Bill, the new s.590

AAA of the Code and 83B of the Justices Act will allow the court to make a costs

order if the court is satisfied that non-compliance with a disclosure direction was

“….unjustified , unreasonable or deliberate….”. In each case the power to deal with

the non-compliant party for contempt is preserved. Even self incrimination will not

prevent or excuse a failure to file an affidavit for a Dod although the affidavit cannot

be used in a criminal proceeding or for contempt. It may however be used for a

perjury charge.

The court would also still have available to it the remedy of a stay although for the

defence there is the usual difficulty that a stay is an exceptional remedy and

effectively a remedy of last resort.

It also seems possible, in theory at least, that a refusal to disclose material pursuant

to an obligation in Division 3 may be a breach of 2.204 of the Criminal Code.

“Disobedience to statute law

(1) Any person who without lawful excuse, the proof of which lies on the person, does

any act which the person is, by the provisions of any public statute in force in

Queensland, forbidden to do, or omits to do any act which the person is, by the

provisions of any such statute, required to do, is guilty of a misdemeanour, unless

some mode of proceeding against the person for such disobedience is expressly

provided by statute, and is intended to be exclusive of all other punishment.

(2) The offender is liable to imprisonment for 1 year.”

When does the defence have disclosure obligations?

The defence have disclosure obligation in 3 situations.

First under s.590A, an accused person must disclose details of any evidence of alibi

to the Crown within 14 days after their committal, failing which an accused may be

prevented from leading the alibi at trial. If the accused does not do so within time,

leave of the trial judge is required to adduce evidence of the alibi. However, usually

even extremely late alibis are not precluded from being lead. Instead the

prosecution are given sufficient time to investigate the alibi.

The second situation for defence disclosure applies where the defence intends to

adduce expert evidence at trial. Section 590B requires that the defence give to the

prosecution, as soon as practicable, written notice of the name of the expert and any

opinion to be adduced. As soon as practicable before the trial date, the defence

must supply a copy of the report grounding the opinion to the prosecution.

Thirdly, as soon as practicable before the trial the defence must notify prosecution

and co-accused persons of its intention to lead evidence of a representation under

93B of the Evidence Act. There are various other details to be supplied (590 C (2) (a)

(b) (c) (d)). 93 B relates to the leading of representations about asserted facts where

the person is dead or mentally or physically incapable of giving evidence.

What does the future hold for the defence?

If I were to be preparing this paper in, say, 5 years time, I believe that I would have

to substantially expand my meagre exposition on defence disclosure. I have made

available the recommendations in Chapter 3 (pages 94-96) of the Queensland Law

Reform Commission in its discussion paper, “a review of jury directions.”

It seems that the push is on for the introduction of substantial defence disclosure.

Now before we all get comfortable and say ‘that will never happen’, it is already

happening in England – the spiritual home of our common law and system of

jurisprudence. And look at what is about to happen to committals. Watch out –

reform is nigh!