In determining whether police are bound by obligations to disclose material to the Court, the preferred position in Victoria seems to be the adoption of a logic of classifying the police as part of the ‘total apparatus of the prosecution’. This is demonstrated in cases in which police or investigators withheld information from the Court, the defence and the relevant prosecutors, ultimately undermining the Crown case.
Accepting that the police are part of the ‘apparatus of prosecution’ they are bound by the disclosure obligations contained in legislation, case law and prosecutorial guidelines (discussed below). This is particularly the case in respect of high-level investigative officers and the informants.
The policy rationale for this position is clear. If the Court was prepared to overlook the non-disclosure of significant material by the prosecution on the basis that the police or prosecution expert witness had never made the prosecution aware of such material, it would not encourage a climate of candour and transparency and would undermine frank disclosure of the prosecution case. 1
Support is found for the proposition that the police are part of the total apparatus of the prosecution in the following cases:
R v Maxwell 2
In R v Maxwell, police informer “C” was the main witness for the prosecution in the defendant’s trial. “C” was provided monetary benefits, attendance at brothels, permission to consume drugs and failure to prosecute “C’s” conduct by police in return for the evidence. “C” denied that he had been expecting any benefits by giving evidence against the defendant. A PII application was made on an ex parte basis by the prosecution at which the police admitted that £10,000 had been set aside for “C”. These facts were not disclosed to the accused.
Lord Rodger of Earlsferry JSC held as follows:
[The other Judges have] outlined the appalling history of misconduct by officers of West Yorkshire Police when the witness Karl Chapman was a resident informant of that force and right up until Mr Maxwell’s arrest appeal to the Court of Appeal. That misconduct can be described as prosecutorial misconduct,3 but it is important to notice that the Crown Prosecution Service and prosecuting counsel were lied to and duped just as much as the defence, the trial court and the Court of Appeal at the hearing of Mr Maxwell’s arrest appeal. So this is not a case where the Crown Prosecution Service or prosecuting counsel abused their power, or indeed were in any way at fault in conducting the prosecution.4
R v Ward 5
In R v Ward, material witnesses’ statements and police interviews of the appellant were not disclosed to the police. The English Court of Appeal stated that when it spoke of “the prosecution”, it included police organisations, the DPP and counsel who advised the DPP, the medical experts and forensic scientists who provided evidence for the prosecution.6 The material facts are analogous to Orman insofar as material pertaining to a specific witness, “Thomas”, was not disclosed to Orman or the Court in his prosecution for Peirce or Kallipolitis.
R v Mallard 7
In R v Mallard, evidence relating to the murder weapon was not disclosed to the accused. The material facts are relevant to Orman insofar as the First Defendant denies at [25J] of its defence that officers were obliged to disclose specific matters to the Court, DPP or the plaintiff. The High Court stated that:
It also became apparent that a deal of it had been in the possession of investigating police before, and during the trial, and had not then been disclosed to the appellant. (Whether any of it was in the possession of the Director of Public Prosecutions is a question that is unnecessary to investigate.) 8
Visser v The Queen 9
The Court of Appeal recently discussed the problems that arise in fragmenting disclosure obligations of agencies contained within the apparatus of the prosecution.
Visser was implicated in the ‘tomato tins’ drug operation and was convicted of a drug offence in April 2014 and was sentenced to 11 years’ imprisonment.
In 2020, Visser appealed the conviction and sentence on grounds including the revelation of new evidence pertaining to Ms Gobbo’s involvement in providing the information which led to the identification of the ‘tomato tins’ container of drugs.
One of the grounds of appeal was as follows:
The failure by the CDPP and the AFP to comply with their obligations of disclosure resulted in an unfair trial and in a manifest miscarriage of justice. 10
The Court of Appeal reiterated the common law position with respect to disclosure, stating that:
Subject to any claim of public interest immunity or legal professional privilege or any statutory provisions to the contrary, the prosecution must disclose to the accused any material known to the prosecution which, on sensible appraisal, falls within at least one of three categories: (a) if it is relevant or possibly relevant to an issue in the case; (b) if it raises or possibly raises a new issue whose existence is not apparent from the evidence the prosecution proposes to use; and (c), if it holds out a real (as opposed to a fanciful) prospect of providing a line of enquiry as to evidence that falls within either the first or second categories.11
Further, the Court of Appeal made plain that the duty of disclosure may extend beyond what is known to the DPP, including information held by investigating police. Citing, R v Forrest,12 McLeish, Emerton and Osborn JJA endorsed the position that:
[T]he Director cannot, as a general proposition, rely on a distinction between his Office and SA Police. The erection of a bamboo curtain between the two will be conducive to miscarriages of justice. The effect on a trial of material non-disclosure is the same whether the agency responsible is the State’s investigating or prosecuting authority.13
The Court went on to say that, notwithstanding there were not analogous statutory requirements on police to disclose all documentary material to the director, “reliance on a ‘bamboo curtain’ of the kind described by the South Australian Supreme Court would be conducive to the same miscarriage of justice, irrespective of where it occurred.” 14
Attorney General (NSW) v Lipton 15
In this proceeding, the accused had entered pleas of guilty in respect of two offences involving the supply of not less than a large commercial quantity of prohibited drugs. The accused, Mr Lipton, suspected his partner, Ms Brown, had been providing information to police. The accused issued a subpoena to the CCP seeking documents.
The NSW Court of Appeal held as follows:
[110] The Police could, if they wished when producing the material, inform the DPP that they wished to claim public interest immunity for it, but the DPP is obliged to form his own view about whether the material is relevant to an issue in the case and so advise the respondent including, where applicable, advising him of any claim of public interest immunity. The question of the indivisibility of the Crown, onto which the DPP/Attorney General claimed the primary judge's order entrenched, is irrelevant in circumstances where s 15A required the Police to disclose the actual material to the DPP.
The Western Australian Supreme Court has insisted that the police are part of the prosecution for the purposes of disclosure:16
It was submitted that the duty of disclosure included the obligation to make enquiry to ascertain whether discoverable matter existed and to ensure its preservation. Further, if material was available to the Crown, on the basis that it was known to the police, for example, the accused was entitled to it, whether or not its existence was known to prosecuting counsel. I accept these submissions. In such a case, however, it is not necessary for the appellate court to determine whether there was any fault on the part of the prosecutor in this respect. Innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice. If after conviction it came to the offender's knowledge that the Crown had in its possession or available to it during his trial documentary material which he had requested, but which had been innocently denied by the Crown, that is a situation which could lead to a miscarriage of justice, if the availability of the material might have influenced the result of the trial.
Statute
The Criminal Procedure Act 2009 (Vic). contains provisions requiring disclosure by the prosecution to the defence. Section 416 of the Criminal Procedure Act makes clear that the duty is not limited in scope to the terms of the specific disclosure provisions contained therein.
Cases
R v H and C 17
The English Court of Appeal, per Lord Bingham, held that:
Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made. 18
Roberts v State of Victoria 19
In Roberts, the Court of Appeal adopted this proposition and succinctly summarised the Victorian position in relation to disclosure obligations on the prosecution: 20
It is now accepted that it is fundamental that there must be full disclosure in criminal trials. It is a ‘golden rule’. The duty is to disclose all relevant material of help to an accused. It is owed to the court, not the accused. It is ongoing. It includes, where appropriate, an obligation to make enquiries. It is imposed upon the Crown in its broadest sense. And a failure in its discharge can result in a miscarriage of justice.
The duty is mandated by a combination of statute, prosecutorial guidelines and judicial authority.
Prosecutorial guidelines
The Victorian prosecutorial guidelines and policy relating to the resolution of complex issues arising from disclosure obligations and public interest immunity claims reflect the common law and statutory position. These documents indicate that prosecutors are required to disclose any material which is known to them which, on their sensible appraisal:
- is relevant or possibly relevant to an issue in the case; or
- raises or possibly raises a new issue that is not apparent from the evidence the prosecution proposes to use; or
- holds out a real as opposed to fanciful prospect of providing a line of inquiry which goes to (i) or (ii) above.
It does not extend to disclosing material:
- relevant only to the credibility of defence witnesses
- relevant only to the credibility of the accused
- relevant only because it might deter an accused from giving false evidence or raising an issue of fact which might be shown to be false
- for the purpose of preventing an accused from creating a trap for themselves if at the time the prosecution became aware of the material it was not a relevant issue at trial.
If material is not disclosed under paragraph 15 above on the basis of a claim of public interest immunity or legal professional privilege or a statutory prohibition, any application or submission to a court in support of that claim should be made by the person or body which holds the material or the privilege, as the case may be. A prosecutor should not represent that person or body, except in relation to a privilege held by the DPP or OPP.
Subject to paragraph 19 below, if an investigative agency has not disclosed to the accused relevant material on the basis that it is subject to a claim of public interest immunity or legal professional privilege or a statutory prohibition, the agency should inform the prosecutor:
- of the nature of the material and the basis of the claim;
- whether a ruling has been made by a court on the claim and, it so, provide to the prosecutor a copy of the ruling and the reasons given by the court (unless the prosecutor was present in court or a non-publication order prevents the information being provided
- whether, in the opinion of the agency, the material, on a sensible appraisal, substantially weakens the case for the prosecution or substantially strengthens that of the defendant.
So far as practicable, the prosecutor should not be provided with, or informed of the content of, any material to the extent that it is subject to a claim of public interest immunity, unless the prosecutor so requests. Click here to access the protocol for consulting the DPP in relation to complex disclosure issues involving Public Interest Immunity.
Other Australian jurisdictions
Statute
Criminal procedure legislation in each state contains various provisions relating to disclosure obligations on the Crown.21
Lipton (discussed below) was the basis for the inclusion of s 15A in the Director of Public Prosecutions Act 1986 in New South Wales. That provision imposes a duty on investigating officers to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.
Other jurisdictions have also included such a requirement, see for example in South Australia as discussed in R v Forrest (above), the South Australian Director of Public Prosecutions Act 1991 (SA) imposes a duty on the chief investigator of an indictable offence to disclose to the director all documentary material collected or created in the course of the investigation which might reasonably be expected to assist the case for the prosecution or the case for the defence.22
There is no analogous provision in the Victorian Public Prosecutions Act 1994.
Prosecutorial guidelines
Other states have prosecutorial guidelines to similar effect in respect of disclosure obligations. See examples here:
1 David Plater and Lucy de Vreeze, 'Is the Golden Rule of Full Prosecution Disclosure a Modern Mission Impossible' (2012) 14(2) Flinders Law Journal 133, 142.
2 R v Maxwell [2011] 1 WLR 1837 (R v Maxwell).
3 Emphasis added.
4 R v Maxwell, 1848.
5 [1993] 1 WLR 619 (R v Ward).
6 Ibid, 643.
7 R v Mallard (2005) 224 CLR 125 (R v Mallard).
8 Ibid, 132-3 (emphasis added).
9 Visser v CDPP [2020] VSCA 327 (Visser).
10 Ibid, [30].
11Ibid, [36].
12(2016) 125 SASR 319.
13Ibid, [62]-[63].
14Visser (n 9), [40].
15(2012) 224 A Crim R 177.
16R v Button [2002] 25 WAR, 382 [58] citing Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997 (citations omitted, emphasis added).
17[2004] 2 AC 134
18R v H and C [2004] 2 AC 134, 147, affirmed in Roberts v The Queen (2020) 60 VR 431.
19(2020) 60 VR 431.
20Ibid, 444 [56]-[57] (citations omitted).
21Criminal Procedure Act 1986 (NSW); Criminal Procedure Act 1921 (SA); Criminal Practice Rules 1999 (Qld); Criminal Procedure Act 2004 (WA); Justices Act 1959 (Tas)
How can I learn more?
Ella is a lawyer in our Police Misconduct Team. She brings her extensive understanding of Victoria’s court system to representing victims of abuse by the police.
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