Sofronoff doesn’t go far enough on disclosure reform – Selby

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:

  1. 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;
  2. 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;
  3. 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.


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7 Responses to Sofronoff doesn’t go far enough on disclosure reform – Selby

  1. Don Wakeling says:

    My reference to the Chief Justice, was his concealment,as Solicitor General, in the case of Henry Keough.

  2. Garry Stannus says:

    Of course these are fair suggestions from Hugh Selby, though they wouldn’t be a panacea for all situations … and would still leave ‘wriggle room’ there for a judge:

    In the case of Sue Neill-Fraser, certain information was not disclosed until during the trial and – importantly – not disclosed until after a witness -the ‘homeless girl’- had given evidence. The newly disclosed information that came during the later evidence of a police detective seemed at odds with that of the ‘homeless girl’ [MV]. SNF’s counsel applied for MV to be recalled, however the prosecutor would not do so, and the judge refused to do so.

    As we all know, Sue lost her trial, was convicted and imprisoned for 13 years – she was released on parole last year, still convicted, wearing a leg bracelet to track her and has a number of restrictions placed on her … for the 10 ongoing years of her parole.

    While in prison, Sue appealed twice and applied to the High Court of Australia twice – all unsuccessful. Her first appeal had the failure to recall MV as its first ground of appeal.When at the trial the defence counsel applied for MV to be recalled, the judge responded:

    In my view the prospect of Meaghan Vass giving significant evidence if [recalled] is so slight as not to warrant the time taken to recall her. Having regard to how significant her evidence might be and how likely it is that she might say something of any relevance at all I think we’d be wasting time and that there’s no realistic prospect of it making any significant difference if she were recalled. So I won’t ask the prosecutor to recall her and I won’t take steps to order her recall, and the same goes for Mr Grosser.

    I’m suggesting that the weak link in Hugh Selby’s three suggestions is his second:

    2. 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;

    I call it a weak link because in such a situation the judge gets to decide what is significant and what is not. In the case of SNF, the jury were never given the chance to decide whether that undisclosed information was significant or not … the judge decided that question in the absence of the jury.

    At appeal, the CCA dismissed the Appeal Ground thus, in its last two paragraphs dealing with that ground:

    101 I do not ignore that when making submissions to the judge for the recall of Ms Vass, counsel said that what he might put to her in further cross-examination would depend on the nature and quality of her answers. But whether she might have given answers that would have significantly assisted the defence case is entirely speculative. His Honour has not been shown to have erred when he concluded that the prospect of Ms Vass giving significant evidence if recalled was slight, and that there was no realistic prospect of further evidence from her making any significant difference.
    102 The appellant has failed to establish that there is a significant possibility, one greater than a merely speculative one, that the jury would have acquitted her if Ms Vass had been recalled. It cannot be concluded that the verdict was unsafe or unsatisfactory, or that a miscarriage of justice resulted.

    Q: Was not the Appeal Court itself supporting an “entirely speculative” approach on the part of the trial judge?
    A: Oh, yes, the trial judge was certainly speculating, though the CCA in its decision took a ‘nothing to see here, move on‘ approach.

    Things did not improve when SNF applied to the High Court [HCA]. That court ate up the applicant’s allotted time with pointless questions, gave the respondent (State of Tas, represented yet again by the DPP) relatively ‘smooth sailing’ and then gave the following decision:

    In our view, this application does not give rise to a question suitable to a grant of special leave as the applicant has not shown that she was denied an opportunity to produce evidence on a point of substance which can be shown to have had a significant possibility of affecting the jury’s verdict. Accordingly, special leave is refused.

    Oh gee! Where MV was on the night of Bob Chappell’s murder is a point of substance. They can opine on esoteric legal questions such as the number of angels on the head of a needle, but they don’t see that MV’s whereabouts on the night of Bob Chappell’s murder was a point of substance?

    For a bit of light relief … it was High Court Justice, Susan Crennan, who delivered that High Court knockback. In 1956, I attended the ‘Our Lady of Mercy College’ in Heidelberg, Melbourne [they took boys in ‘bubs’]. Susan Creenan was also there (in Primary School) then. It’s strange how paths lead in different directions … and careers – or the lack of them – also do. And strange how lives can intersect, even if remotely.

  3. Robyn Milera says:

    Should logically extend to chief law officer of each Stste, the Attorney General, who gets away with hiding behind the so called independence of the DPP and trial/appeal process – even when they KNOW concealment has and is occurring! ( SA regarding the Bromley case before the High Court). K

  4. Owen allen says:

    Thanks Hugh, even I can understand your last paragraph.
    It is like when the taxi company radio operator was interviewed by Tasmania Detectives, after I called in by radio an assault on duty.
    Trevor, whom had worked for years nightshift radio operator, who must have called in 100’s of police over the years, told me. He thought it was very strange Detective asked Detective Sergant whether she should record any details, and Detective Sergant said no.
    The same case, the Tasmania Police who turned up on the night of the assault asked me some questions and said he would contact me next week. I gave them overc 2 months to respond. After another interview the Tasmania Police claimed my 2 interviews conflicted. That is tripe. And the Tasmania Police was kicked out of Detectives back to uniform because he was a bad man.
    It ain’t over yet Hugh, thanks, we are building momentum against corruption in the judiciary and government in Australia, and unfortunately Sue has been the victim of the lowest of the low scum in power.

    • Owen allen says:

      The Uniform who interviewed me was ex detective. Bad man. Cronyism in the system. Corruption protection, I was the victim. Great story.
      Thanks Hugh and your cowies for justice.

  5. Don Wakeling says:

    Non-disclosure, ie: Concealment, should be condemned, not only when committed by police or prosecutors ,
    but extended to all participants in the administration of the criminal justice system.Attorneys General, Solicitors General, and any legal officer in their service or employment
    Their Office, for example, the Chief Justice of South Australia, must not protect them from condemnation by the community, for deliberate concealment of exculpatory evidence, as in the case of that Chief Justice when he was Solicitor General of Sth Australia.

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