When the state wields its immense power to prosecute individuals for alleged criminal offences, it has a corresponding duty to ensure that justice is done. A cornerstone of this obligation is the prosecutorial duty of disclosure. This duty, deeply rooted in common law and bolstered by statutory obligations in New South Wales, serves to level the playing field by ensuring the accused has access to all relevant material.
Yet, despite its foundational role in a fair trial, disclosure is too often treated as an afterthought, causing delays, compromising the administration of justice, and putting individuals at risk of wrongful conviction.
Common Law Duty of Disclosure
The common law duty of disclosure requires prosecutors to provide the defence with all material that is relevant to the case, regardless of whether it assists or undermines the prosecution’s case. This principle ensures that justice is not a contest of ambushes but rather an open pursuit of truth.
The High Court has consistently affirmed the importance of this duty. In R v Mallard (2005) 224 CLR 125, the Court highlighted that the failure to disclose relevant material, including exculpatory evidence, can result in a miscarriage of justice. Similarly, in Grey v The Queen (2001) 184 ALR 593, the Court emphasised that prosecutors have a duty to act as ministers of justice, not simply as advocates for a conviction. These cases underline the necessity of full and frank disclosure to safeguard the accused’s right to a fair trial.
Statutory Obligations in NSW
In New South Wales, the Criminal Procedure Act 1986 outlines specific obligations to ensure the prosecution fulfills its duty of disclosure. These include:
- Section 36B – Disclosures by law enforcement or investigating officers: Law enforcement or investigating officers must disclose all relevant information and documents obtained during an investigation to prosecutors if it could assist the prosecution or the defence. (Note that the prosecutors and police then have a duty to disclose to the defence).
- Section 61 – Requirement to disclose evidence
The prosecutor must serve a brief of evidence on the accused after the commencement of committal proceedings and before the date specified by the Magistrate. This obligation is subject to other laws, including those on privilege and immunity. - Section 147 – Disclosure requirements are ongoing
The duty to disclose continues until the accused is convicted, acquitted, or the prosecution is terminated. If new material comes to light after pre-trial disclosure, it must be disclosed as soon as practicable, and the defence may amend their response accordingly.
These provisions are not merely procedural hoops but vital safeguards to ensure the accused can understand the case to answer, prepare their defence effectively and challenge the case against them.
The Real-World Impact of Delayed or Incomplete Disclosure
Despite these clear obligations, it is far too common for disclosure to be incomplete, delayed, or buried under mountains of irrelevant material. When police and prosecutors fail to serve evidence in a timely manner, they undermine the very foundation of justice.
For the accused, delays in disclosure mean delays in resolving their case. An individual who is presumed innocent may languish in custody awaiting trial or endure the stigma and restrictions of bail conditions. Many people accused of a criminal offence lose their employment and experience strain on relationships with family and friends while the criminal proceedings are on foot. For those whose liberty, livelihood and reputation are on the line, timely and complete disclosure is not just a procedural nicety—it is a necessity.
Equally concerning are instances where exculpatory evidence is withheld. Non-disclosure of critical material can lead to wrongful convictions, destroying lives and eroding trust in the justice system. R v Mallard is a stark example: Andrew Mallard’s murder conviction was ultimately overturned after it was revealed that crucial evidence pointing to his innocence had been withheld by the prosecution.
The Risks of Non-Disclosure
Non-disclosure is not merely an administrative failing; it poses serious risks to the integrity of the criminal justice system:
- Undermining the Right to a Fair Trial: Without full disclosure, the accused cannot mount an effective defence. The trial becomes a contest of guesswork rather than a pursuit of justice.
- Delaying the Resolution of Cases: Incomplete disclosure results in adjournments, wasting court time and public resources.
- Eroding Public Confidence: A justice system that tolerates non-disclosure risks losing the trust of the very people it is meant to serve.
A Call for Accountability
If police charge someone with a criminal offence, they owe it to the accused—and to the community—to serve the evidence they claim establishes the offence in a timely and comprehensive manner. Anything less undermines the principles of fairness and transparency that our justice system depends upon.
Prosecutors and law enforcement officers must be held to the highest standards in their disclosure obligations. This is not just about ensuring procedural compliance; it is about respecting the rights of the accused, preserving the integrity of the legal process, and protecting the public from the profound consequences of injustice.
Disclosure is not a favour; it is a duty. Timeliness and transparency are not luxuries; they are imperatives. An accused is entitled to demand nothing less.
At Hugo Law Group, we are dedicated to ensuring that your rights are fully protected. With our extensive experience in identifying and addressing disclosure issues, we provide a robust and thorough defence for our clients. Contact us today to discuss how we can assist with your criminal matter.
Helen Christinson
Partner
Hugo Law Group
Sydney
