Committals: Report (html)

9. Disclosure

Introduction

9.1 Fair trials, and fairness in the conduct of pre-trial negotiations, require early and adequate disclosure. This ensures that the accused understands the evidentiary basis for the charge and is able to prepare a defence. Inadequate disclosure can be ‘a potent source of injustice’.^[554] The Charter of Human Rights and Responsibilities Act 2006 (Vic) recognises that a person charged with a criminal offence is entitled to be ‘informed promptly and in detail of the nature and reason for the charge’.^[555]

9.2 Disclosure helps to redress the imbalance that would otherwise characterise an adversarial system in which investigators and prosecution have the backing of the state. As Justice Kevin Bell points out, the prosecution usually ‘enters a criminal trial with two advantages: having superior resources and having conducted the investigation that led to the charges being brought’.^[556] Requiring the prosecution to disclose all relevant material to the accused, including material that may undermine the prosecution case,^[557] goes some way to achieving ‘equality of arms’ between the parties, and thus a fair trial.^[558]

9.3 Aside from its importance for fair trial rights, disclosure can facilitate early resolution and early identification of the issues in dispute. Victoria Legal Aid told the Commisison it is of ‘critical’ importance that:

the case against the accused be adequately disclosed [early in the pre-trial stage of proceedings]. This ensures that the accused and their legal representative has sufficient information to enable them to enter into meaningful negotiations and potentially enter an early guilty plea.^[559]

9.4 This chapter describes Victoria’s current disclosure regime, including the prosecution’s general duty of disclosure at common law and the distinct disclosure obligations imposed by the Criminal Procedure Act 2009 (Vic) (CPA) on the informant and the prosecution. The chapter outlines current approaches in New South Wales and the United Kingdom, where reforms have been introduced to improve disclosure. It discusses the problem of inadequate disclosure in Victoria and concludes by considering ways to improve disclosure.

Current disclosure regime

Disclosure at common law

9.5 In R v Farquharson, the Victorian Court of Appeal said:

It is axiomatic that there must be full disclosure in criminal trials. The prosecution has a duty to disclose all relevant material. A failure of proper disclosure can result in a miscarriage of justice.^[560]

9.6 The scope of the duty to disclose extends beyond material that the prosecution intends to rely on for its own case. In Ragg v Magistrates’ Court of Victoria, Justice Bell set out an extensive list of material that is disclosable at common law, including material in the possession of or known to the prosecution that may:

• undermine the prosecution case

• assist the defence case

• exculpate the accused

• affect the credit of prosecution witnesses.^[561]

Additional disclosable material includes:

• statements of material witnesses whom the prosecution does not intend to call

• ‘documents, photographs and other real evidence, including scientific analysis’.^[562]

9.7 While emphasising the breadth of the prosecution’s disclosure obligations, Justice Bell noted that:

[they do] not require the disclosure of material that might undermine the defence case, such as matters affecting the credibility of defence witnesses: the defence is responsible for making its own inquiries in this regard.^[563]

9.8 The prosecution’s duty of disclosure extends beyond material in its possession or that is known to it. The duty encompasses an obligation to seek out material likely to be relevant, and therefore disclosable. In Anile v The Queen, the Victorian Court of Appeal noted that:

the rule requiring disclosure applies in relation to material both in the possession of the prosecution, and material which it should obtain. In other words, the obligation to disclose includes, in an appropriate case, an obligation to make enquiries.^[564]

9.9 When considering whether non-disclosure has infringed on an accused’s right to a fair trial, it is immaterial whether the failure to disclose material is attributable to the informant or the prosecution. This was confirmed in Farquharson.^[565] One of the grounds of appeal in that case was the informant’s failure to disclose, to either the prosecutor or the accused, pending criminal charges against the prosecution’s key witness. The Court accepted the Director of Public Prosecutions’ concession that ‘there is no distinction for disclosure purposes to be drawn between the prosecution … and the police informant’.^[566]

9.10 The Policy of the Director for Public Prosecutions for Victoria (Director’s Policy) guides disclosure by the Director of Public Prosecutions (DPP). Based on the test set out in R v Spiteri^[567] and adopted by the Supreme Court of Victoria in Farquharson,^[568] the Director’s Policy requires prosecutors to disclose to the accused ‘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 [the] above.’^[569]

9.11 Also mirroring the position at common law,^[570] the Director’s Policy notes that the prosecution’s duty of disclosure does not extend to disclosing material:

• ‘relevant only to the credibility of the defence (as distinct from prosecution) 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 purposes 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’.^[571]

9.12 Nor are prosecutors required by the Director’s Policy to disclose material that is subject to a claim of public interest immunity or legal professional privilege, or if there is a statutory basis for not disclosing the material.^[572] These exceptions are discussed further below.

Statutory disclosure requirements –

9.13 Part 4.4 of the CPA outlines how the prosecution case is to be disclosed during committal proceedings. Part 5.5 includes further provisions relating to disclosure after an accused is committed for trial or a direct indictment is filed.

The informant’s statutory disclosure obligations

9.14 Unless the accused consents to service of a plea brief,^[573] the informant must prepare a hand-up brief containing the evidence in the case.^[574] The hand-up brief must be served on the accused,^[575] filed with the court, and forwarded to the DPP.^[576]

9.15 The brief must include both:

• copies of material on which the prosecution intends to rely in the committal proceeding

• copies or details of other material in the possession of the prosecution that is relevant to the alleged offending but which the prosecution does not intend to tender at the committal hearing, or on which the prosecution does not intend to rely.^[577]

9.16 The informant’s disclosure obligations are continuing.^[578] If, after service of the hand-up brief, the informant obtains or becomes aware of material that should have been included or listed in the hand-up brief, the informant must serve copies of this material on the accused as soon as practicable.^[579] Copies must also be filed with the court and forwarded to the DPP.^[580]

9.17 Through the case direction notice, which must be filed jointly by the parties before the committal mention hearing,^[581] the accused may request:

• the production of material that was listed in the hand-up brief^[582]

• copies of material not included in the hand-up brief but that the accused considers ought to have been included.^[583]

9.18 The informant may object to the production of material requested by the accused on any ground:

• referred to in section 45 of the CPA, which covers material the informant considers would, or would be reasonably likely to:

– prejudice the investigation of a contravention or possible contravention of the law or prejudice the enforcement or proper administration of the law in a particular instance

– prejudice the fair hearing of the charge against a person or the impartial adjudication of a particular case

– disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law

– disclose policing methods in a way likely to prejudice the effectiveness of those methods

– endanger the lives or physical safety of people engaged in or connected with law enforcement, including those who have provided confidential information

– endanger the life or physical safety of a person or a family member in cases involving family violence

– result in the disclosure of child abuse material to the accused personally^[584]

• referred to in section 114 of the CPA, which provides that the informant must not, with limited exceptions, disclose in materials provided to the accused the address or telephone number of any person.^[585]

9.19 In addition, the informant may claim public interest immunity over certain material. The informant may withhold material on the basis of public interest immunity if the material relates to ‘matters of state’ and the court determines that the public interest in preserving the material’s secrecy or confidentiality outweighs the public interest in disclosing it.^[586] In criminal cases, public interest immunity is most commonly claimed in respect of material that may identify police informers or policing methods.

9.20 If the accused seeks the production of material and the informant objects to its production, the Magistrates’ Court may hear and determine the objection at the committal mention.^[587]

The prosecution’s statutory disclosure obligations

9.21 Section 185 of the CPA places a continuing obligation of disclosure on the prosecution commencing after an accused is committed for trial or a direct indictment is filed.^[588] The prosecution must serve on the accused copies of (or provide a list of) any material that comes into its possession that would have been required to be included in the hand-up brief.^[589]

9.22 The prosecution is not, however, required to disclose material that it is required or permitted to withhold under any statute or rule of law.^[590] This captures cases in which the prosecution may object to producing material on the basis of public interest immunity or on any of the grounds set out in sections 45 and 114 of the CPA and discussed earlier in relation to the informant’s statutory disclosure duties.

9.23 The CPA expressly states that nothing it contains ‘derogates from a duty otherwise imposed on the prosecution to disclose to the accused material relevant to the charge.’^[591] Thus the prosecution’s statutory disclosure obligations co-exist with its disclosure obligations at common law.

Approaches to disclosure in other jurisdictions

New South Wales

9.24 In New South Wales, the prosecution is responsible for serving the brief of evidence on the accused.^[592] Informants prepare the brief and since 2001 have had a statutory duty of disclosure to the New South Wales DPP.^[593] The Director of Public Prosecutions Act 1986 (NSW) imposes a duty on law enforcement officers investigating alleged offences:

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.^[594]

9.25 The law enforcement officer must complete and sign a disclosure certificate acknowledging:

• the officer’s duty to disclose all relevant material to the DPP, and explaining that the officer understands the meaning of ‘relevant material’ to include:

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.

• that the duty to disclose continues until the DPP decides not to prosecute the accused for the alleged offence, the accused is found guilty or acquitted, or the prosecution is terminated

• that the duty to disclose is subject to claims of privilege, public interest immunity, statutory immunity, and statutory publication restrictions.^[595]

9.26 The disclosure certificate also includes a statement that the officer certifies the truth of information provided in attached schedules.^[596] These schedules acknowledge the existence of, and describe, relevant material not contained in the brief of evidence that:

• is the subject of a claim of privilege, public interest immunity or statutory immunity

• is the subject of a statutory publication restriction and can be disclosed without contravening the restriction

• is not the subject of a claim of privilege or immunity or a statutory publication restriction.^[597]

9.27 Where relevant material is the subject of a privilege, public interest immunity or statutory immunity, the officer is required to:

• disclose to the DPP ‘the existence and nature of all such material’

• retain the material for as long as the officer’s duty to disclose exists

• provide the material to the DPP on request.^[598]

9.28 The disclosure certificate must also be signed by the law enforcement officer’s superior officer. The merits of disclosure certificates are discussed below.

United Kingdom

9.29 In the United Kingdom, investigating agencies and their officers have duties of disclosure to the Crown Prosecution Service (CPS), which is responsible for disclosing material to the accused.^[599] The investigating agencies and the CPS are expected to work collaboratively to ensure full disclosure to the accused^[600] and to engage with disclosure issues from an early stage in proceedings, especially in large or complicated cases.^[601]

9.30 Material is disclosable to the accused, subject to public interest considerations, if:

• it is relevant

• it has not previously been disclosed

• it ‘might reasonably be considered capable of undermining the case for the prosecution … or of assisting the case for the accused.’ ^[602]

9.31 Material is relevant if it appears to have ‘some bearing on [an] offence under investigation or [a] person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case’.^[603]

9.32 Dedicated police disclosure officers are appointed in all criminal investigations.^[604] In order to identify material that may be disclosable, they examine or listen to all relevant material retained by the investigator that does not form part of the prosecution case.^[605] They prepare schedules of materials that are potentially disclosable for provision to the prosecutor.^[606] They must certify to the prosecutor that the existence of all relevant material retained in the case has been revealed to the prosecutor.^[607]

9.33 The prosecutor must review the schedules and decide what material is disclosable and must be provided to the accused.^[608] The schedules themselves are also provided to the accused, with the exception of schedules of material subject to public interest immunity.^[609] If the prosecutor believes it is not in the public interest to disclose the material, the prosecutor must either withdraw the prosecution or apply to the court for a ruling as to whether the public interest requires disclosure.^[610]

9.34 If the accused believes that the prosecution has failed to disclose material that should have been disclosed, the accused may apply to the court for a disclosure order.^[611]

9.35 The investigating agency’s disclosure duties to the prosecution^[612] and the prosecution’s disclosure duties to the accused continue at least until the accused is acquitted or convicted or the prosecutor decides not to proceed with the case.^[613] Where the accused is convicted and a custodial sentence is imposed, relevant material must be retained until after the convicted person has been released from custody.^[614] If an appeal against conviction is in progress when the person is released from custody,^[615] all material that may be relevant must be retained until the appeal is determined.^[616]

9.36 Disclosure failures in the United Kingdom have been a cause of concern and the subject of public inquiries since at least 2011. The House of Commons Justice Committee’s report, Disclosure of Evidence in Criminal Cases, lists ‘six reports in as many years that have highlighted issues and made recommendations’ for improved disclosure.^[617] The Justice Committee’s consideration of the issue was prompted by a series of cases in 2017 and 2018 that collapsed or had guilty verdicts overturned on appeal because of errors in the disclosure process.^[618]

9.37 After reviewing the United Kingdom’s disclosure regime, the Justice Committee concluded that the legislative framework and basic principles governing disclosure were adequate but that these principles were not applied consistently by police officers and prosecutors. The Committee attributed the failures to:

• a culture within both police and prosecution that views disclosure as ‘an administrative add on’ rather than ‘a core justice duty’

• inadequate skills and technology to review the large volumes of digital material that are now routinely collected by the police

• inadequate guidelines for handling sensitive material^[619]

• inadequate funding for the police, Crown Prosecution Service, criminal defence and legal aid.^[620]

Problems with disclosure

9.38 Failure to provide the accused with early and adequate disclosure is a widely acknowledged and persistent issue in Victoria, but the problem is not unique to this state—ensuring adequate disclosure is a challenge in most common law jurisdictions. In Victoria, the Magistrates’ Court notes that:

Disclosure is always an issue, especially in complex matters … Disclosure issues in the higher [courts] are frequently commented upon as an expensive cause of delay. Experience in other jurisdictions … shows that no matter the legislative requirements for disclosure, the lack of it is a major cause of trial delay and length.^[621]

9.39 The DPP believes there are three main reasons why adequate and timely disclosure is not consistently provided in Victoria:

• police sometimes misunderstand their disclosure obligations

• police often wait to see whether the defence requests disclosure of specific items rather than providing appropriate disclosure up-front

• police tend to merge the concepts of disclosure and public interest immunity.^[622]

9.40 The DPP’s views were echoed by others, who attributed inadequate disclosure to:

• lack of clarity among investigating agencies, particularly police informants, about their disclosure obligations to the accused and the DPP, especially about what material is disclosable^[623]

• failure by investigating agencies, particularly Victoria Police, to prioritise their disclosure obligations to the accused and the DPP, and to devise appropriate internal systems to facilitate adequate and early disclosure^[624]

• delay in seeking and obtaining forensic reports, particularly those provided by Victoria Police forensic services.^[625]

9.41 The Commission heard there is a tendency among police informants to define ‘relevant’ evidence narrowly, with reference primarily to evidence that corroborates the allegations.^[626] The result is that exculpatory evidence is not routinely disclosed. The Law Institute of Victoria cited ‘numerous’ cases where cross-examination of a witness at a committal hearing revealed the witness had taken part in a photo-board identification process during which the witness failed to identify the accused, yet no reference to this was made in the hand-up brief.^[627]

9.42 Another issue is apparent systemic failure by Victoria Police to ensure that the DPP and the accused are told about the existence of material that may be subject to statutory or public interest immunity claims. The Royal Commission into the Management of Police Informants is currently inquiring into matters relating to Victoria Police’s use and management of human sources. One of its terms of reference is to consider the appropriateness of Victoria Police practices around the disclosure or non-disclosure to prosecuting authorities of the use of human sources.^[628]

9.43 Victoria Police acknowledged that inconsistent disclosure by police informants is an issue but told the Commission there is a need for ‘improved transparency, predictability and guidance for investigators’ regarding what materials should routinely be disclosed.^[629] It pointed out that disclosure is an onerous task, particularly in complex cases and those involving extensive digital evidence. It stated that increased resources would allow it to implement better electronic document management systems, which would speed up the disclosure process.^[630]

Lack of clarity about objecting to disclosure

9.44 Section 110 of the CPA provides that copies of disclosable material must be provided in the hand-up brief. Section 110 does not, however, specify how material should be included or referred to where the informant objects to the production of that material.^[631]

9.45 The hand-up brief must be accompanied by a list of its contents, signed by the informant.^[632] The prescribed form for the list of hand-up brief contents does not include any field for material that the informant objects to producing.^[633]

9.46 Section 110 also provides that a notice containing information about committal proceedings must be included in the hand-up brief. The prescribed notice is Magistrates’ Court Form 29.^[634] Form 29 directs the parties to engage in discussions about the case before the committal mention hearing, and to prepare a case direction notice explaining the outcome of their discussions.^[635] Form 29 explains that during these discussions, the accused may notify the informant they wish to inspect items listed in the hand-up brief and the informant may object to this inspection.^[636]

9.47 In some cases, however, the accused may be unaware of the existence of material that the informant objects to producing, given it has not been included nor its existence mentioned in the hand-up brief. Currently there is no clear mechanism enabling notification by the informant in the hand-up brief of the existence of such material.

Commission’s conclusions: improving disclosure

9.48 The statutory regime for disclosure in indictable stream matters in Victoria does not provide clear guidance for informants. It could be improved by clarifying:

• that the informant is required to disclose all relevant material, including exculpatory material or material that otherwise assists the case for the defence or undermines the case for the prosecution, and including material on which the prosecution does not intend to rely

• the process by which an informant may object to disclosure on public interest immunity or other grounds, including those set out in section 45 of the CPA.

9.49 The DPP should also provide greater assistance to informants in relation to the nature of their disclosure obligations. Practitioners in the Office of Public Prosecutions are legally trained and have expertise in this regard. While some informants have legal training, and all should receive training in relation to their disclosure obligations, their investigative role means they are less likely to focus on disclosure as a fundamental aspect of every prosecution and an overriding duty.

9.50 Although the problems with disclosure are attributed by stakeholders primarily to Victoria Police, the Commission’s recommendations for strengthening disclosure obligations should apply to all informants, including those working for agencies such as WorkSafe and the Environmental Protection Authority. The potential consequences of disclosure failures by these agencies are as significant as in the case of Victoria Police.

9.51 Flowing from its earlier recommendation that the DPP should have prosecutorial responsibility for indictable stream matters from the filing hearing onwards, and should be actively involved in providing informants with guidance in relation to discharging their obligations during committal proceedings, the DPP should have formal responsibility for disclosure to the accused. The informant’s disclosure obligations should be to the DPP rather than directly to the accused. Further detail is provided below.

Strengthen the prosecution’s statutory disclosure obligations

9.52 The DPP should have formal prosecutorial responsibility for indictable stream matters from the filing hearing onwards. As well as advising on or reviewing charging decisions at an early stage, the DPP should assume responsibility for disclosure to the accused, and the informant’s disclosure obligations should be to the DPP rather than directly to the accused.

9.53 While the informant will be obliged to prepare the brief of evidence, as is currently the case, it should be the DPP’s responsibility to file and serve it. The informant will be able to seek advice from the DPP in relation to preparation of the brief and will be expected to communicate with the DPP about the progress of its preparation. The DPP should also be formally empowered, through amendments to the Public Prosecutions Act 1994 (Vic), to make enquiries of the informant in relation to disclosure, and the informant should be required to respond to those enquiries. This means that the DPP should not require extensive additional time to review the brief, once it is complete, before filing it with the court and serving it on the accused.

9.54 Where material exists that the informant objects to producing on statutory or public interest immunity grounds, the DPP should be required to ensure the existence of the material is communicated to the accused via the hand-up brief.

9.55 The CPA should be amended to specify that the prosecution’s disclosure obligations are continuing from the filing hearing until the death of the accused, regardless of the outcome of the prosecution and even in circumstances in which the prosecution is discontinued. This is necessary to capture situations in which relevant evidence comes to light after a prosecution has been finalised. This material may be significant for the accused even if the charges were withdrawn or there was a verdict of not guilty. The potential consequences of having been the subject of indictable charges include not being eligible for a Working with Children check, despite a finding of not guilty.^[637]

9.56 Assuming disclosure obligations at an earlier stage in proceedings will place a resource burden on the DPP. The DPP should be provided with adequate funding to ensure these recommendations are implemented effectively in a way that addresses the deficiencies with disclosure discussed earlier.

Recommendations

24 While the informant should be required to prepare the brief of evidence, the Criminal Procedure Act 2009 (Vic) should be amended to require the Director of Public Prosecutions (DPP) to file and serve the brief and assume all obligations of disclosure to the accused currently imposed by the Act on the informant. The DPP should ensure the existence of material that the informant objects to producing is communicated to the accused.

25 The Criminal Procedure Act 2009 (Vic) should be amended to specify that the Director of Public Prosecutions’ disclosure obligations continue from the filing hearing until the death of the accused, regardless of the outcome of the prosecution.

26 The Public Prosecutions Act 1994 (Vic) should be amended to empower the Director of Public Prosecutions to make enquiries of the informant in relation to disclosure, and to require the informant to respond to those enquiries.

27 Additional resources should be provided to the Office of Public Prosecutions to allow it to manage its increased disclosure obligations.

No change to the prosecution’s common law disclosure obligations

9.57 The prosecution’s disclosure obligations at common law exist alongside the informant’s and the prosecution’s distinct statutory disclosure obligations. The Commission recommends retaining explicit recognition that nothing in the CPA removes or reduces the duty of the prosecution to disclose to the accused material relevant to a charge.^[638]

Strengthen the informant’s statutory disclosure obligations

9.58 There is a need to provide Victoria Police with greater clarity about the nature of an informant’s disclosure obligations, the meaning of ‘relevant’ material, and how and when to object to the production of material on public interest or other grounds. There is also a need for cultural change within Victoria Police, so that the importance of early disclosure of all relevant materials, and the obligation to make enquiries about the existence of relevant materials, is recognised and becomes entrenched in the force’s operating procedures.

9.59 Along with other investigative agencies, Victoria Police should establish internal procedures to ensure that informants are made aware of, or able to obtain information concerning, potentially disclosable material that exists or is known about within other parts of the agency. Informants should be obliged to retain potentially disclosable material for as long as their disclosure obligations continue, and systems should be established at investigating agencies to ensure potentially disclosable material is retained and not destroyed.

9.60 Early and active oversight by the DPP will assist informants to understand and meet their disclosure obligations. The informant should continue to have disclosure obligations in relation to all indictable stream matters under the CPA, but these should be to the prosecution rather than the accused and should be continuing from the filing hearing until the death of the accused.

9.61 The informant should remain responsible for preparation of the brief of evidence. The informant should liaise directly with the DPP about preparation of the brief, provide all brief materials to the DPP as soon as they are available, and should respond to the DPP’s disclosure enquiries.

Recommendations

28 Part 4.4 of the Criminal Procedure Act 2009 (Vic) should be amended to make it clear that the informant has a continuing obligation of disclosure to the Director of Public Prosecutions (DPP). This obligation commences at the filing hearing and includes preparation of the hand-up brief, which must be provided to the DPP before the date specified by the Magistrates’ Court at the filing hearing for service of the hand-up brief on the accused.

29 The Criminal Procedure Act 2009 (Vic) should be amended to specify that the informant’s disclosure obligations continue from the filing hearing until the death of the accused, regardless of the outcome of the prosecution.

30 The Criminal Procedure Act 2009 (Vic) should be amended to specify that informants have an obligation to retain potentially disclosable material for as long as their disclosure obligations continue.

31 Systems should be established at investigating agencies to ensure that:

(a) informants are made aware of, or able to obtain information concerning, potentially disclosable material that exists or is known about within other parts of the agency

(b) potentially disclosable material is retained and not destroyed.

Require the informant to give disclosure evidence at the issues hearing

9.62 Unless the prosecution and defence agree otherwise, the informant should be required to appear at the issues hearing^[639] and provide sworn evidence to the court that the informant has discharged their disclosure obligations. When setting the date for an issues hearing, the court should take into account the informant’s availability. The defence may also seek leave to cross-examine the informant regarding their disclosure evidence. Any cross-examination should be narrow, targeted, and properly managed by the presiding magistrate.

Recommendation

32 The Criminal Procedure Act 2009 (Vic) should be amended to require the informant, unless excused by the court, to appear at the issues hearing and provide evidence that:

(a) all available relevant material has been disclosed to the Director of Public Prosecutions

(b) all reasonable enquiries have been made by the informant to determine if there is any additional relevant material in existence.

The process for objecting to disclosure

9.63 If the informant believes material should not be disclosed or produced because it is subject to a public interest immunity claim, or on the basis of one of the grounds set out in sections 45 and 119 of the CPA, the informant should be required to disclose in general terms the existence of the material to the DPP. The informant should not be obliged to describe the specific contents of the material. The informant should, however, explain the nature of the objection to production, including whether it is on the grounds of public interest immunity or with reference to section 45 if the objection is made under that section.

9.64 In the hand-up brief, the informant should note the existence of material in relation to which a statutory objection to production is made, and to the degree feasible, the grounds on which an objection is made.

9.65 The informant need not produce the material in relation to which the objection relates to the DPP or the accused unless directed by order of the court.

9.66 After service of the hand-up brief on the accused, if the accused seeks production of material that has been withheld, the informant should be responsible for making an application to the court for an order that the material does not need to be produced.

9.67 When considering an objection to production on the grounds of public interest immunity or any of the grounds set out in sections 45 or 119 of the CPA, the Magistrates’ Court may choose to refer the matter to a higher court for determination of the objection if in its view it is more appropriate that the trial court makes the determination.

Recommendations

33 The Criminal Procedure Act 2009 (Vic) should be amended to provide that the informant’s disclosure obligations to the Director of Public Prosecutions (DPP) apply regardless of claims of privilege, public interest immunity, or statutory immunity, but where such claims are made, the material that is the subject of these claims need not be produced to the DPP. The informant must indicate to the DPP the grounds on which the objection to production is made.

34 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to require reference in the hand-up brief to the general existence of material that the informant objects to producing and the grounds for the objection.

35 The Magistrates’ Court Rules 2019 should be amended to clarify that the list of contents that must accompany the hand-up brief and be signed by the informant (currently Magistrates’ Court Form 30) includes a field noting the existence of material, if any, that the informant objects to producing.

Relevant material includes exculpatory material

9.68 In order to provide greater clarity to informants about the nature of their disclosure obligations, the CPA should be amended to explain that relevant material includes exculpatory material and that any such material must be included in the hand-up brief.

Recommendation

36 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to include a section explaining that a hand-up brief must disclose all relevant material, including all information, documents or other things obtained during the investigation that are exculpatory or might reasonably be expected to:

(a) undermine the case for the prosecution or

(b) assist the case for the accused.

Expand the indicative list in section 110 of materials that must be included in the hand-up brief

9.69 Magistrates’ Court Practice Direction 3 of 2019 sets out certain procedural requirements relevant to section 123 matters, involving sexual offences where the complainant was a child or person with a cognitive impairment when proceedings commenced. The Practice Direction also sets out ‘standard disclosure material’ that the informant must serve on the accused and on the DPP at the time of service of the hand-up brief, in addition to the other material that section 110 directs must be included in the hand-up brief.

9.70 The standard disclosure material includes such things as copies of crime reports, attendance registers, police notes, diary and day-book entries, relevant INTERPOSE data entries and copies of relevant Victoria Police LEAP data-based entries.

9.71 Victoria Legal Aid suggests that as the Standard Disclosure Material is often requested ‘as a matter of course’ in all cases, not just section 123 cases, requiring that it be included in the hand-up brief would reduce the delay caused by the need to request it, which would ‘facilitate[…] pre-hearing negotiations and early resolution’.^[640]

9.72 The Law Institute of Victoria suggests including Standard Disclosure Material in the hand-up brief requirements would ‘improve consistency and reduce disclosure indiscretions and inordinate delay.’^[641]

Recommendation

37 Section 110 of the Criminal Procedure Act 2009 (Vic) should be amended to include, in addition to the other materials that a hand-up brief must contain, a list of the materials contained in the list of ‘Standard Disclosure Material’ currently set out in Magistrates’ Court Practice Direction No 3 of 2019.

A disclosure certificate regime should not be introduced

9.73 Some stakeholders supported the introduction of a disclosure certificate requirement similar to that established under section 15A of New South Wales’ Director of Public Prosecutions Act 1986.^[642]

9.74 The Law Institute of Victoria suggested that a disclosure certificate requirement would force the police, as the principal investigating agency and the agency in relation to which most disclosure issues arise, to focus on its disclosure obligations and to have systems in place to ensure these are met.^[643]

9.75 Victoria Legal Aid advocated for the introduction of a disclosure certificate requirement but suggested this would fall on the prosecution rather than the investigating agency. The Commission is of the view, however, that the DPP cannot be required to certify as to the adequacy of the investigating agency’s disclosure.

9.76 The NSW Disclosure Certificate explains the meaning of ‘relevant’ material and includes an acknowledgement by the informant that they have an ongoing duty of disclosure. Introducing a similar certificate in Victoria would mean that the police’s disclosure obligations are reiterated and the police are routinely reminded of these obligations.

9.77 On the other hand, inadequate disclosure by the police remains a problem in New South Wales, despite the disclosure certificate regime.^[644] Disclosure certificates are frequently signed despite disclosure not being complete.^[645] Given this is the case, introducing a disclosure certificate requirement may represent a costly reform in terms of the administrative burden on police, with little substantive benefit.

9.78 In light of the experience in New South Wales, a disclosure certificate regime should not be introduced in Victoria. A more proactive approach should be adopted to ensuring police informants, in particular, disclose all relevant material (or its existence, where there is an objection to production), to the prosecution. Requiring informants to give evidence on oath at an issues hearing that they have discharged their disclosure obligations, and providing the opportunity for the accused to cross-examine the informant regarding disclosure, will impose a stronger discipline on informants than a disclosure certificate.

554. R v Ward [1993] 2 All ER 577, 599.

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555. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(a).

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556. Ragg v Magistrates’ Court of Victoria [2008] VSC 1 [50], (2008) 18 VR 300.

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557. BA v Attorney-General [2017] VSC 259 [64], (2017) 319 FLR 329.

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558. Ragg v Magistrates’ Court of Victoria [2008] VSC 1 [45]–[62].

     ↑

559. Submission 13 (Victoria Legal Aid).

     ↑

560. R v Farquharson [2009] VSCA 307 [210], (2009) 26 VR 410, emphasis added. See also Metro Trains Melbourne Pty Ltd v Paciocco [2017] VSC 778 [57].

     ↑

561. Ragg v Magistrates’ Court of Victoria [2008] VSC 1 [73], (2008) 18 VR 300 cited in BA v Attorney-General [2017] VSC 259, 266.

     ↑

562. Ragg v Magistrates’ Court of Victoria [2008] VSC 1 [73], cited in BA v Attorney-General [2017] VSC 259, 266.

     ↑

563. Ibid, emphasis added.

     ↑

564. Anile v The Queen [2018] VSCA 235 [130], citing AJ v The Queen [2011] VSCA 215, (2011) 32 VR 614, 620 [22].

     ↑

565. R v Farquharson [2009] VSCA 307, (2009) 26 VR 410. See also Cannon v Tahche [2002] VSCA 84, (2002) 5 VR 317, 339–41 [56]–[60] and Mallard v The Queen [2005] HCA 68, (2005) 224 CLR 125, 132–3 [16].

     ↑

566. R v Farquharson [2009] VSCA 307 [212].

     ↑

567. R v Spiteri [2004] 61 NSWCCA 321, (2004) 61 NSWLR 369.

     ↑

568. R v Farquharson [2009] VSCA 307 [213], cited in Gild v The Queen [2018] VSCA 317 [49].

     ↑

569. Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 6 [15] <http://www.opp.vic.gov.au/Resources/Policies>.

     ↑

570. R v Farquharson [2009] VSCA 307 [214], citing R v Spiteri [2004] 61 NSWCCA 321.

     ↑

571. Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 6 [16] <http://www.opp.vic.gov.au/Resources/Policies >.

     ↑

572. The issue of how and when objections may be made to disclosure on public interest immunity or other grounds is discussed below. [insert paragraph cross-reference] Director of Public Prosecutions, Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 6 [15] <http://www.opp.vic.gov.au/Resources/Policies>.

     ↑

573. Criminal Procedure Act 2009 (Vic) s 116.

     ↑

574. Ibid ss 107, 110.

     ↑

575. Ibid ss 107, 108.

     ↑

576. Ibid s 109. This requirement only applies if the DPP is conducting the committal proceeding.

     ↑

577. Ibid s 110. See Chapter 2 for the requirements of what must be included in a hand-up brief.

     ↑

578. Ibid s 111.

     ↑

579. Ibid s 111(2). This requirement only applies if the DPP is conducting the committal proceeding.

     ↑

580. Ibid s 111(2).

     ↑

581. Ibid s 118(1).

     ↑

582. Ibid s 119(e)(i).

     ↑

583. Ibid s 119(e)(ii).

     ↑

584. Ibid s 122(2); Criminal Procedure Act 2009 (Vic) s 45(1).

     ↑

585. Ibid s 122(2); s 114.

     ↑

586. Evidence Act 2008 (Vic) ss 130(1), 131A.

     ↑

587. Criminal Procedure Act 2009 (Vic) s 125(1)(e).

     ↑

588. Ibid s 185.

     ↑

589. Ibid s 185.

     ↑

590. Ibid s 416(2).

     ↑

591. Ibid s 416(1).

     ↑

592. Criminal Procedure Act 1986 (NSW) s 61.

     ↑

593. Director of Public Prosecutions Act 1986 (NSW) s 15A(1); in effect since 19 November 2001.

     ↑

594. Ibid s15A(1A). The duty only arises if the DPP is exercising a prosecutorial function, which may include providing advice to an informant about commencing criminal proceedings.

     ↑

595. Director of Public Prosecutions Regulation 2015 [NSW] sch 1, emphasis added.

     ↑

596. Ibid sch 1.

     ↑

597. Ibid.

     ↑

598. Ibid. The disclosure certificate also includes an acknowledgement that if the officer objects to the disclosure of material that is subject to a claim of privilege, public interest immunity or statutory immunity, the officer ‘can request a conference with the responsible solicitor in the Office of the Director of Public Prosecutions to discuss reasons for this.’

     ↑

599. The duties are set out in the Criminal Procedure and Investigations Act 1996 (UK) and the Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) (Code of Practice, March 2015). The application of the Code is limited to England and Wales: Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) (Code of Practice, March 2015) [1.4]. In addition to their statutory disclosure obligations, investigators have common law disclosure obligations to disclose at an early stage material that ‘would assist the accused in the preparation of the defence case, including the making of a bail application’: Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 9. See also R v DPP ex parte Lee [1999] 2 All ER 737.

     ↑

600. The prosecution team, which includes investigators and the CPS, should ‘have at an early stage an agreed strategy and plan, with sufficient resources attached, for completing the disclosure exercise.’ Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 22. If in doubt about what material to disclose to the prosecution, the officer responsible for disclosure should liaise with the prosecutor: Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 27.

     ↑

601. Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 29.

     ↑

602. Criminal Procedure and Investigations Act 1996 (UK) s 3(1)(a); Ministry of Justice (UK), Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 5.

     ↑

603. Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) (Code of Practice, March 2015) [2.1].

     ↑

604. The disclosure officer need not be a sworn police officer, but may be a ‘police support employee’: Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 11–13. Investigations conducted by agencies other than the police should follow the same disclosure procedures: Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018), 4–5.

     ↑

605. Director of Public Prosecutions, Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 12. The officer in charge of the investigation is responsible for ensuring that all relevant material is revealed to the disclosure officer, except in cases of highly sensitive material. The existence of this material should be revealed directly to the prosecutor: Director of Public Prosecutions, Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018), 29.

     ↑

606. Separate schedules are prepared for material that: could undermine the case for the prosecution or assist the case for the accused; is non-sensitive and which the prosecution does not intend to use; is sensitive (meaning that it may be subject to public interest immunity) and which the prosecution does not intend to use: Director of Public Prosecutions, Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018). As noted above (footnote 52), in exceptional circumstances, sensitive material need not be listed in a schedule. Instead, its existence may be revealed separately to the prosecution by the investigator who knows the details of the material.

     ↑

607. Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 12. A series of certifications are required to cover the fact the duty of disclosure is continuing: Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 29.

     ↑

608. Criminal Procedure and Investigations Act 1996 (UK) ss 3, 7A. The material may be provided in the form of copies or made available for inspection.

     ↑

609. Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 24.

     ↑

610. Ibid 29. Criminal Procedure and Investigations Act 1996 (UK) s 6 ‘Material must not be disclosed to…the extent that the court, on an application by the prosecutor, concludes that it is not in the public interest to disclose it and orders accordingly.’

     ↑

611. Criminal Procedure and Investigations Act 1996 (UK) s 8. The accused may only do so after the accused has provided a ‘defence statement’, setting out in general terms the nature of the accused’s defence: see Criminal Procedure and Investigations Act 1996 (UK) s 5).

     ↑

612. Director of Public Prosecutions, Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 29, 30.

     ↑

613. Criminal Procedure and Investigations Act 1996 (UK) s 7A; Crown Prosecution Service (England and Wales), Disclosure Manual (Report, 14 December 2018) 5.

     ↑

614. Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) (Code of Practice, March 2015) [5.9]. In other instances, relevant material must be retained at least until six months from the date of conviction: ibid.

     ↑

615. Or at the end of the six-month period after conviction if a custodial order has not been imposed.

     ↑

616. Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) (Code of Practice, March 2015) [5.10].

     ↑

617. House of Commons Justice Committee, Parliament of the United Kingdom, Disclosure of Evidence in Criminal Cases (Final Report, 17 July 2018)11 [22].

     ↑

618. Ibid 4 [2].

     ↑

619. Ibid 3 [9].

     ↑

620. House of Commons Justice Committee, Parliament of the United Kingdom, Disclosure of Evidence in Criminal Cases (Final Report, 17 July 2018) 3, 12–17. The National Police Chiefs’ Council, College of Policing, and CPS have collaborated on a ‘National Disclosure Improvement Plan’ to, among other things: modernise the prosecution’s data management systems; review how sensitive material is handled, stored and disclosed; provide specialised disclosure training to investigators and disclosure officers; and update the disclosure training provided by the College of Policing: National Police Chiefs’ Council, College of Policing and Crown Prosecution Service (UK), National Disclosure Improvement Plan (Report, January 2018), National Police Chiefs’ Council, College of Policing and Crown Prosecution Service (UK), National Disclosure Improvement Plan—Progress Update (Report, Spring 2019); Crown Prosecution Service (England and Wales), ‘Joint National Disclosure Improvement Plan—June update’, Publications (Web Page, 2019) <https://www.cps.gov.uk/publication/joint-national-disclosure-improvement-plan-june-update>

     ↑

621. Submission 14 (Magistrates’ Court of Victoria). The Magistrates’ Court refers specifically in this quote to other jurisdictions that ‘have abolished committals’. In the view of the Magistrates’ Court, this points to the need to retain the opportunity to cross-examine witnesses during committal hearings in Victoria. The Court says that cross-examination frequently alerts the court and the defence to material that has not been fully or adequately disclosed. This argument is addressed separately in Chapter 11.

     ↑

622. Submission 4 (Director of Public Prosecutions (Victoria)).

     ↑

623. Consultations 10 (Law Institute of Victoria), 19 (Victoria Police); Submissions 11 (Criminal Bar Association (Victoria)), 13 (Victoria Legal Aid), 24 (Law Institute of Victoria).

     ↑

624. Consultations 10 (Law Institute of Victoria), 12 (Shepparton Magistrates’ Court); Submission 11 (Criminal Bar Association (Victoria)).

     ↑

625. Consultation 1 (Victorian Aboriginal Legal Service); Submission 13 (Victoria Legal Aid).

     ↑

626. Submissions 11 (Criminal Bar Association (Victoria)), 24 (Law Institute of Victoria).

     ↑

627. Submission 24 (Law Institute of Victoria).

     ↑

628. The Royal Commission’s report will be delivered on 1 July 2020: Royal Commission into the Management of Police Informants (Web Page, 21 February 2020) <https://www.rcmpi.vic.gov.au/>.

     ↑

629. Consultation 19 (Victoria Police).

     ↑

630. Ibid.

     ↑

631. Under section 122(2) of the Criminal Procedure Act 2009 (Vic), the informant may object to the production of an item on any ground referred to in sections 45 or 114. The informant may also object to the production of material on the grounds of public interest immunity.

     ↑

632. Magistrates’ Court Criminal Procedure Rules 2019 r 57(2).

     ↑

633. Ibid r 57(2) (Form 30).

     ↑

634. Ibid r 57(1) (Form 29).

     ↑

635. In accordance with sections 118 and 119 of the Criminal Procedure Act 2009 (Vic).

     ↑

636. The case direction notice includes a field allowing the parties to state that ‘The accused seeks the production of an item or items listed in the hand-up brief and the informant objects to the production of the item or items’. The item or items must be listed and the grounds for objection provided.

     ↑

637. Working with Children Act 2005 (Vic) ss 14 (1) (d), 14 (2), 14 (3).

     ↑

638. Criminal Procedure Act 2009 (Vic) s 416(1).

     ↑

639. Or committal mention hearing if the Commission’s recommendation to replace committal mention hearings and committal hearings with a single issues hearing is not implemented.

     ↑

640. Submission 13 (Victoria Legal Aid).

     ↑

641. Submission 24 (Law Institute of Victoria).

     ↑

642. Submissions 13 (Victoria Legal Aid), 20 (County Court of Victoria), 24 (Law Institute of Victoria).

     ↑

643. Submission 24 (Law Institute of Victoria).

     ↑

644. Consultations 33 (Director of Public Prosecutions (New South Wales)), 34 (Legal Aid New South Wales), 36 (Police Prosecutions Command New South Wales).

     ↑

645. Consultations 33 (Director of Public Prosecutions (New South Wales)), 36 (Police Prosecutions Command New South Wales).

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