The recently released Sofronoff Report into the ACT Criminal Justice System’s handling of the Brittany Higgins rape allegation against Bruce Lehrmann recommends legislation to codify the scope and content of the obligation of disclosure owed by the prosecution in criminal proceedings. That suggestion is too narrow, writes former ACT barrister HUGH SELBY.
Experience shows that the “disclosure obligations” start with the police and then continues for the prosecution. Hence any legislation must bind both police and prosecutors. I suggest that it must also make clear that a failure to disclose will entail:
- A decision by the trial judge if the non-disclosure is discovered during the trial, or the appeal court if the non-disclose is uncovered post trial, as to whether the non-disclosure could or could not significantly affect the course of the trial and its outcome;
- If the non-disclosure is significant then the trial judge have the power to direct the jury to acquit, or an appellate court to overturn the conviction without needing to rule upon any other grounds of appeal;
- that in the event of a directed verdict at trial or the conviction being set aside on appeal for this reason, that the defendant/accused be entitled to their legal costs on a full recovery basis (known as indemnity costs). This would be an exception to the usual rule in criminal cases that the prosecution neither seeks nor pays costs.
The Report reminds us that a prosecutor’s duty of disclosure is aptly described as a “golden rule”. The duty of disclosure serves to ensure that the trial of an accused is fair. In part, the duty reflects the imbalance of resources, as between the prosecution and an accused, to investigate a matter.
A fair trial requires not only that the accused should have access to material in the prosecution’s possession that sets out the prosecution case, but also material which may bear upon the defence of the charges (paragraph 273).
The failure of a prosecutor to comply with this obligation may lead to a miscarriage of justice. A failure to disclose material that should be disclosed will not automatically result in a conviction being set aside. However, a demonstrated failure normally has the effect that, on an appeal against conviction, the burden will shift to the prosecution to show that there would inevitably have been a conviction even if proper disclosure had been made.
This is often an insuperable burden because appellate judges are loathe to speculate what a hypothetical jury might do (paragraph 274).
The principles as stated in the Report are clear. However, the failure to follow them is inevitable whenever the seeking of a conviction (the desired end) overrides proper process (the means).
For example, if a police officer conducts three interviews with an important witness but only discloses two of them to the prosecution – because the third one conflicts with the police case – then the prosecution, the defence, the judge and the jury are all misled.
This article is part of a longer column in City News (9 August, 2023) exploring various aspects of the Sofronoff report.