Catherine Kirkpatrick talks to Trial Advocate, Sevinch Morkaya about the importance of the duty of disclosure.
While it’s important for prosecutors to understand their duties of disclosure, defence solicitors should also have a thorough understanding of the rules of disclosure. Trial Advocate for the NSW Office of Director of Public Prosecutions (“ODPP”), Sevinch Morkaya says that prudent defence solicitors will be proactive about disclosure and work with the Crown early in criminal proceedings to ensure any problems are resolved before a hearing or trial.
A good starting point to understanding the Crown’s duty of disclosure is the ODPP Prosecution Guidelines. Guideline 18 states:
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.
Importantly the Criminal Procedure Act 1986 (NSW) also sets out the Crown’s duties with s 142 requiring the prosecution to disclose the whereabouts of any information that is not in its possession that may be relevant to the case, any information relevant to the reliability or credibility of a prosecution witness and any information that would reasonably be regarded as adverse to the credit or credibility of the accused person.
These obligations are ongoing both before and during a criminal trial. It is important that practitioners understand that situations can arise when trial lawyers conduct conferences with witnesses on the morning they are to give evidence. Unfortunately while these conferences are necessary, at times new information is disclosed and there is no time to obtain an additional police statement. In these situations the Crown should disclose the new/additional information as soon as possible either orally or in written form to defence. In some instances the conference notes are provided subject to the Director waiving any legal professional privilege.
Ms Morkaya says that it’s equally as important to understand the exceptions to the Crown’s obligations of disclosure, in particular the inability of the Crown to serve information subject to an immunity such as Public Interest Immunity (“PII”), Sexual Assault Communications Privilege (“SACP”) or Legal Professional Privilege. In these instances the Crown is not entitled to access the information and therefore, Ms Morkaya states it is very important that prosecution and defence practitioners work together to understand whether information can be obtained and the best way it can be obtained.
In situations where PII is claimed by the police over a document or information, the Crown can assist by obtaining sufficient information from the police officer to enable defence to issue an adequately particularised subpoena. If defence decide to issue such a subpoena for any protected material it is important they do so as soon as possible (noting that leave should be sought if the material is protected by SACP) so the matter can be decided by the court in a timely fashion and to avoid delay in the hearing of the substantive matter.
Unlike material protected by immunities, the Crown are able to access certain sensitive material relevant to police informers that may be required to defend criminal proceedings. Again it is prudent that all criminal practitioners are across the relevant Prosecution Guidelines and law to understand what material defence are and are not entitled to. Defence solicitors should always be made aware of any advantage an informer has received for their evidence, but must bear in mind that they are not necessarily entitled to know the identity or location of the information, depending on the situation.
Finally Ms Morkaya says that it is necessary for practitioners to understand the test for when disclosure has not occurred. It was held in Grey v R that the test is whether the absence of the material has resulted in a miscarriage of justice. The appellate courts have said repeatedly that there is only a miscarriage of justice if it considers that there is a significant possibility that a jury/judge would have acquitted if the evidence had been before them (see for example Gallagher v R ).
Ms Morkaya says however that practitioners should not let the matter get this far and reiterates the real need for practitioners to work together from the very beginning of criminal proceedings. Crown and Defence practitioners should engage in discussions early on and defence should not be shy in calling upon material or seeking requisitions in the brief. By working together practitioners ensure that criminal matters are decided fairly on all the relevant available material within a timely fashion.
The opinions expressed in this article are that of the authors and do not necessarily express the views or opinions of the NSW Office of Director of Public Prosecutions (ODPP).
Originally published in June 2016.