The duty of disclosure of “all matters within their knowledge” applies to all those who represent the Crown – and is a duty in perpetuity, write BIBI SANGHA and Dr BOB MOLES of Flinders University, in their December 21, 2022, briefing paper that may hold the key to overturning the murder conviction of Sue Neill-Fraser  – and others. (Edited extracts below) 

 We would all like to think that all those lawyers who appear in criminal trials, whether defending the accused or prosecuting for the Crown, are fully aware of the profound responsibilities entailed in conducting a fair trial. From experience, that isn’t to be taken for granted. These points describing the relevant rules may help litigants and even judges to adhere to the rule of law in criminal trials.

The Crown’s Duty of Disclosure in Australia

The duty of disclosure applies broadly to ‘the Crown’ in criminal trials in Australia. It extends to all those who may assist in the prosecution of a case. Whilst prosecutors take the lead in prosecutions, they must ensure that all of those assisting them understand and comply with this duty. This includes police investigators, expert witnesses, forensic experts, other witnesses and any people acting on behalf of the Crown who may have relevant information.

The role of the prosecutor

An early Canadian case [1955] stated the key principles applying to prosecutors in _criminal trials. They were taken up and applied in Britain and Australia and are contained in the barrister’s and prosecutor’s rules and guidelines which are in common form in Australia.

The prosecutor:

• must provide the court with all relevant evid­ence;
• must not use inflammatory or vindictive language;
• must not express a personal opinion or belief in the case

Prosecutors must be guided by the principles of:

Fairness at all times: This starts from the pre-trial period and continues even after any trials and appeals have been concluded. The goal must be to ensure that any trial was fair and in accordance with the rule of law. The motivation must not be to obtain a conviction ‘at all costs’.

Independence and equality: prosecutors must apply the law to all without fear or favour and without influence from police, complainants, victims, or politicians.

Impartiality: prosecutors are ‘minister of justice’, and must act in a consistent, objective and transparent manner in all cases.

Failure to disclose

A failure to make an appropriate disclosure would likely give rise to a wrongful conviction except where the matter is trivial or insignificant. This is because the loss of the opportunity to cross-examine witnesses about the non-disclosed material is in itself indicative of a miscarriage of justice. It is important to emphasise that a single significant failure to disclose may require the conviction to be set aside. The test is whether there is a reasonable likelihood that the material, if disclosed, may have influenced the jury in arriving at its verdict. If it may have done, the conviction must be set aside. The creation of a reasonable doubt is not consistent with the upholding of a guilty verdict.

Lack of full disclosure of relevant material in the possession of the Crown is becoming increasingly important as all jurisdictions are beginning to recognise the extent of past failures. The High Court of Australia has said the prosecution is obliged to disclose to the defence all material available to it which was relevant or possibly relevant, in order for there to be a fair trial.

The Crown as an indivisible entity

What constitutes the Crown for the purposes of disclosure may extend to any relevant departments, including forensic services and the police service, or any other government agencies, which may have relevant exculpatory information. The courts do not draw a distinction between the prosecution, the police or another government agency for the purposes of prosecution disclosure (or any failure to disclose).

It has been said that if material is known to the police, for example, the accused is entitled to it, whether or not its existence was known to prosecuting counsel. In such a case, it is not necessary for the court to determine whether the failure to disclose was due to any fault on the part of the prosecutor. When determining fairness to the accused in a criminal trial the court is not concerned with the question as to whether a prosecutor has complied with their professional obligations, but whether the prosecution (and those supporting the prosecution team) have failed to disclose any relevant material or issues.

Legal professional privilege

It is accepted that the prosecutor has a duty to disclose material which might assist an accused person in the conduct of their defence or which might reasonably lead to assisting the defence through exposing a relevant line of inquiry. However, there may be circumstances where meetings with expert witnesses, who might be called by the prosecution, may be subject to legal professional privilege. It has been accepted that if relevant information was provided in the course of such a meeting, the duty of disclosure takes precedence over the legal professional privilege, requiring disclosure be made to the defence. This includes anything which might go to the credibility of a witness, the reliability of the procedures or any other matter which might open up a new line of inquiry for the defence.

Prosecutors have sometimes suggested that they would have been willing to disclose relevant information ‘if requested to do so’. However, this presupposes sufficient knowledge on the part of the accused on which to base such a request. Often that knowledge will be lacking and the accused person will be unaware that such information exists. That position is not consistent with a ‘duty to disclose’ and which requires disclosure in the absence of any such request.

Prosecutors have sometimes said that they regarded the duty as being satisfied by the provision of all reports and that records of intermediate consultations were usually not handed over. It has been acknowledged that such a practice falls short of the required duty of disclosure. It has also been recognised that where such a ‘systemic error’ is identified in one case, the appropriate institutional response is to conduct an inquiry to identify other possibly deficient cases in order to rectify them. There should have been no distinction between file notes of conversations and more formal expressions of opinions in statements and reports.

Failure to disclosure to the defence, the jury, or to the court?

Whilst often treated as an issue of a failure to disclose to the defence, the courts have made it clear that the fundamental question is whether there has been a failure to disclose ‘to the jury’ – or to ‘the court’. In some cases, there may have been in existence facts or evidence which were either ignored or overlooked by the defence. In such cases, it is important to bear in mind that where a miscarriage of justice is said to arise from a failure of process, it is the process that is judged, not the performance of the participants in the process. Where the conduct of counsel is said to give rise to a miscarriage of justice, it is what was done or omitted that is of significance, rather than why that occurred.

The duty to disclose must be timely: it is a continuing obligation

The duty must be timely which means other parties, especially the defence, must be notified without delay, so as to enable them to make a proper assessment of the issue before other relevant evidence may be lost or mislaid. To say the duty continues after the trial, means that it continues in perpetuity, until the matter is effectively resolved.

Professional people should disclose all matters within their knowledge – whether they believe they are relevant or not – which other relevant professionals may wish to take into consideration. The duty is based upon the expectation between experts that they will at all times be full and frank in their dealings with each other.

Professional reports should be of a high standard in presentation and appropriate to the purpose for which they are intended. They should include detailed descriptions of issues considered, how the conclusions interpret those issues, and any other relevant investigations. The findings should be laid out in clear, concise language, which will be readily understood by lay persons.

It is clear that an individual expert’s subjective opinion as to relevance or significance could not be a sufficient reason for not disclosing results which other experts might reasonably wish to consider. If additional test results are not referred to at all, then the report will not contain information which others may need to evaluate. If an expert was entitled not to disclose information just because it was considered to be not relevant or potentially relevant, then the underlying reasons for requiring disclosure would be liable to be defeated. This is not just common sense and good practice; it is also good law.

If an expert were able to say that because they were able to discount certain factors, nobody else would need to consider them, the inherent danger would be obvious. The suggestion that a failure to disclose results because the reports on them were produced by other experts is also entirely without merit. So too is the claim that results were not disclosed because they were thought to be known to other experts.

Prosecution concessions

Once in possession of evidence that the trial process was inappropriately compromised, prosecutors, forensic and police services have a duty to ensure appropriate remedial steps are taken.

Whilst it may not be the responsibility of the prosecution to tell an appeal court that they think the appeal should be allowed, they may well tell the court that they do not object to such a course.

Australian prosecutors have generally been reluctant to make such concessions. By way of comparison, the practice in other countries is somewhat different.

In the UK for example, the prosecution conceded that where a conviction was supported by a jailhouse confession, the fact that the informant had been the recipient of a previous confession in another case ought to have been disclosed.

The prosecution stated that whilst recognising that the ultimate responsibility lies with the court, the view taken on behalf of the prosecution is that the court should concede that the conviction is unsafe and therefore needs to be set aside. It accepted that if there is material that ought to have been available to the defence which might have caused doubt to be cast about the witness, then the fact that that evidence was not available at the trial must lead to the conclusion that the resulting conviction was unsafe.

The duty of disclosure and the expert witness

The duty of an expert instructed by the prosecution is to act in the cause of justice, not solely in the cause of the Crown.

If, while investigating, an expert does a test which casts doubt on the evidence against an accused person, or a laboratory test shows a result favourable to the accused, there is a duty on the expert to disclose the fact to those instructing him or her.  They, in turn, have a duty to disclose the result favourable  to the defence, to the defence. This duty exists irrespective of any request by the defence: that is, whether the defence “asks the right questions” or not. It is not confined to the documentation or other materials upon which the findings of the expert are based. It extends to anything which might arguably assist the defence. It is a positive duty which, in the context of scientific evidence, obliges the prosecution to make full and proper inquiries from forensic scientists to ascertain whether there is discoverable material.

The fact that information may ultimately be found to be of no real significance should be wholly excluded from the minds of the prosecution when the question of disclosure is being considered. Relevant evidence may go beyond that which is obviously of help to the accused or which will obviously advance the accused’s case. It may be of help to the accused to be able to consider additional material evidence which the prosecution has gathered.

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The DPP who refuses to disclose…

This page has the correspondence with the various South Australian Attorneys-General, requesting them to ensure that proper disclosure is made by the DPP in the matter of R v Bromley which is currently (in 2023) proceeding before the High Court. To date, the chief prosecutor in South Australia has not disclosed to this court (or any other court in the last 50 years) that the former chief pathologist was not qualified to conduct autopsies or to give evidence in court as an expert witness. Such a situation concerning a persistent refusal by a chief prosecutor to comply with a clear legal duty has never arisen before in Australia, Britain, Canada, the USA or New Zealand.

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A program dealing with some of these issues will be broadcast nationally in Australia (and on YouTube) early in February 2023 – See Channel Nine “Under Investigation” for further details.

See also the briefing papers, research reports and other materials in relation to the following cases:

The Case of Susan Neill-Fraser in Tasmania – and recent briefing paper on this case.

The Case of Kathleen Folbigg in New South Wales and recent briefing paper on this case.

 Calling for disclosure – why mobiles matter