Lawless v The Queen - Duties of a Prosecutor: Disclosure of Material Evidence.

Australian cases such as Bradshaw have applied aspects of English common law such as Ward and Brown, however, it is unclear as to what extent the “generous disclosure pronouncements” of English law are reflected in Australian law. Nevertheless, it was held in Bradshaw that “if material was available to the Crown… the accused is entitled to it”, however, that in setting aside a conviction, the ultimate test is whether a miscarriage of justice had occurred. In CPK, the court in applying the English case, Maguire, held that the prosecution had an obligation to disclose material to the defence that discredited prosecution witnesses. This was later applied in JGO.

In recent times, Australian common law has gone further. In Spizzirri, de Jersey CJ noted at [10] and [12] that the “last three decades have seen a substantial change… [and that the] modern trend strongly favours early disclosure” and as such, the “Crown is obliged to disclose its statements and other potentially relevant evidence to the defence”.

Moreover, in the case of Grey, the current High Court held that there was a duty on the prosecution to disclose. In a joint judgment, Gleeson CJ, Gummow and Callinan JJ at [23] found that such disclosure cases should not be resolved by means of the fresh evidence rule and that “there was no reason why the defence in a criminal trial should be obliged to fossick for information… to which it was entitled”. Kirby J, in a concurring judgment, at [49] added that to do so would “effectively convert the prosecutor’s duty to disclose into an accused’s obligation to find out”. Conseqeuently, the fresh evidence rule employed by the Court in Lawless in non-disclosure situations is no longer applicable.

Despite finding that there was a prosecutorial duty of disclosure, the Court did not automatically infer that such a breach meant that the appeal should be allowed, but that such a result would depend on whether a substantial miscarriage of justice occurred. Thus, it is an unlikely conclusion that solely on the duties of a prosecutor, a new trial would have been ordered, but that the undisclosed evidence must also be considered.

The suppressed evidence – Telford’s statement and fact that Joyce was in a mental institution before trial – would appear to be relevant to the defence case in discrediting Joyce – the central Crown witness. Kirby J held at [72] that although a jury would not necessarily have altered their views had the suppressed evidence been admitted, it was a definite possibility, and was “one of which the appellant was deprived” of because of the failure of the prosecution. Hence, in applying Grey at [25] and [27], that had the suppressed elements “been made available to the appellant so that he could… introduce it into evidence, he would [not] inevitably have been convicted. He has lost thereby a fair chance of acquittal”. According to present common law, it is reasonable to conclude that a new trial would have been ordered in Lawless.

Legislation.

In the past, legislation outlining prosecution duties were few if any, and as such, there has been no clear legal obligations upon prosecutors to disclose evidence before trial. Common law, Director of Public Prosecution guidelines and Barrister Rules have generally been the governing bodies, however, common law has been rather unclear and the professional rules are not directly enforceable.

Section 13 of the Director of Public Prosecutions Act 1986 (NSW) has provided that the Director may “furnish guidelines” to prosecutors, nevertheless, such policy and guidelines are not directly enforceable and hence are not of much practical legal use. However, recent legislation has been enacted to codify prosecution disclosure duties and “reduce delays in complex criminal trials”, namely the Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 (NSW) which prevails over common law and professional guidelines.

The Amendment affects only “complex trials”, determined according to length of trial, nature of evidence, and legal issues (s47C(2)), and only where the accused has legal representation (s47C(4)). It provides that the prosecutor must disclose, among other things, copies of witness statements (s47E(C)), or any other material in the possession of the prosecutor that may be relevant to the prosecutor or the accused (s47E(g)) or might reasonably be expected to assist the defence case (s47G(e)). Sanctions for non-compliance include adjournment of trial, comment to the jury, and/or exclusion of evidence not disclosed (s47O), however, the amendment provides no specific grounds for a miscarriage of justice.

The Amending Act only commenced in November 2001 and as a result, a lack of cases has made it difficult to determine how common law will be affected. However, from a literal reading of the provisions, it is evident that the Amendment has defined prosecution disclosure obligations that are clearly opposing the findings in Lawless. Lawless, considering the conflicting evidence and issues that arose, can also be regarded a “complex trial”, and hence, the prosecutorial failures in this trial will be governed under the Amendment. However, breach of these statutory obligations do not force the trial to be automatically deemed miscarried, leaving the ultimate test in allowing an appeal, as a matter of whether a miscarriage of justice has occurred according to the Criminal Appeal Act 1912 (NSW), specifically, sections 5, 6 and 8. Nonetheless, statutory obligations will, it appears, make it easier for such a result to occur, or in the least, provide greater incentive for prosecutors to disclose relevant matters. Moreover, statutes function alongside and provide guidance to common law, and as seen in the recent cases determined already, the High Court found that a breach in prosecution disclosure duties resulted in a miscarriage of justice.

Ethics.

Traditionally, it was considered unacceptable for an accused to have any information in the possession of the Crown, however, as values and ethics change with time, traditional legal views are also subject to modification. In the case of prosecution disclosure, common law and statute law has seen a marked decline in the previously restrictive non-disclosure attitude and a steady and cautious incline of a more “pro-defence” position. 

The current professional rules provided by the Prosecutions Policy and Guidelines and the Barristers’ Rules, have provided for a general duty of prosecutorial pre-trial disclosure consistent with to the notion of an impartial and fair “minister of justice” in search for the truth. However, the guidelines are very optimistic in intent and although it provides for many moral principles, in practice, complete observance of these ideals is difficult. The very nature of an adversarial system – a stage for opposing counsel – demands that the prosecutor aim for a conviction – a victory – rather than in seeking the ‘truth’ as set out in the guidelines. Moreover, because the guidelines are not directly enforceable, as an American judge noted, prosecutors “employing [unfair] tactics [in breaching duties], are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking”.

Furthermore, it must be recognised that it is the prosecution that possesses the conveniences of State investigative resources and authority, not the defence. It seems only fair that if the prosecution were to discover exculpatory material, it would disclose it to the defence, or risk the gravest of outcomes – a wrongful conviction.

According to contemporary standards, the findings in Lawless would have to be deemed unfair, bearing in mind the moral and legal role of the prosecutor and the ideals that he sets out to uphold. It is evident however, the steadily changing Australian law has grown more accommodating of these standards of fairness and natural justice. Common law and statute law (as discussed earlier) has demonstrated a clear recognition of the prosecution duty to disclose material, in particular, exculpatory evidence.

However, as determined earlier, a breach of these duties does not automatically result in the ordering of a new trial. This approach is practical in that it accommodates to the fact that it is not the actual act of non-disclosure that is effectively relevant to the outcome of the trial, but the suppressed witnesses or evidence. Appellate courts have the option of assessing the non-disclosed material and from that, a judge can determine whether or not a miscarriage of justice has resulted rather than ordering a new trial each time a prosecutor breaches a duty. It is theoretically fair because judges are impartial and reasonable and possess the power of reviewing and inferring whether or not the suppressed evidence would have ultimately affected the outcome of the trial. However, determination of facts is the primary function of the jury and cannot be replaced by judges. Nonetheless, this is the present position of Australian law, and when taking all factors into consideration, prosecutorial disclosure obligations are fairer and more equitable than they were in 1979.

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Bibliography.

Books.

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Procedure, Australian Institute of Judicial Administration, Carlton, 1992.

Aronson M and Hunter J, Litigation: Evidence and Procedure, 6th ed, Butterworths, Sydney,

1998.

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Australia Legal Workers Group (NSW) and Legal Service Bulletin Co-operative, Sydney, 1982.

Brown D, Farrier D, Egger S and McNamara L, Criminal Laws, 3rd ed, The Federation Press,

Sydney, 2001.

Director of Public Prosecutions New South Wales: Prosecution Policy and Guidelines, Office

of the Director of Public Prosecutions NSW, Sydney, 1998.

Hunter J and Cronin K, Evidence, Advocacy and Ethical Practice: A Criminal Trial

Commentary, Butterworths, Sydney, 1995.

Journal Articles.

Loukas C, Criminal Law: Pre-trial Disclosure Imposed on Complex Criminal Trials (2001)

39 (10) LSJ 54.

Bartels L, Key features of the Criminal Procedure Amendment (Pre-trial Disclosure) Act

2001, Office of the Director of Public Prosecutions NSW, Sydney, 2001.

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