Criminal Law

By Peter Woodhouse


Show us what you’ve got! – the importance of prosecutorial disclosure.

A NSW Local Court Magistrate and police prosecutors from the Illawarra had their knuckles collectively rapped by the NSW Supreme Court this week in defence of the prosecutorial duty of disclosure.  The decision is Bradley v Senior Constable Chilby [2020] NSWSC 145] and the full text can be read here.  

The duty of a prosecutor to disclose is something we defence lawyers consider invaluable.  Unfortunately, it is not always held in the same regard or taken as seriously as it should be by police or prosecutors.

The law on the prosecutorial duty of disclosure is well-settled.  Unfortunately, it is not always well-understood or well-followed.  In short compass, the accusatorial system in criminal proceedings imposes a duty on a prosecutor to disclose material which, first, is or might be relevant to an issue in the case; secondly, raises a new issue, the existence of which is not apparent from the prosecution case; or, thirdly, holds out a real prospect of providing a lead on evidence in the first two categories.

The obligation also requires the prosecutor to take a “broad view of relevance”.

In Bradley, the accused man made no secret he was relying on self-defence as an answer to a charge of assault.  The accused sought the disclosure of a number of documents including records relating to the prior convictions of the alleged victim, particularly in relation to her propensity for violence, drug-taking and history of falsehoods.  All of which were particularly important to whether the accused may have been acting in self-defence.

After the request for documents was stonewalled by police and prosecutors, the accused man’s legal team sought a conditional stay of proceedings from the Local Court.  If granted, that would mean the proceedings could not progress until the prosecution disclosed the requested documents.

In a spectacular (and not in a good way) judgement, the presiding magistrate refused the request for the stay.  Amongst other things, his Honour considered the disclosure request to be a fishing expedition.  He went on to suggest that if he were to insist the prosecution disclose material to the extent sought “would be to put a burden on the prosecution which would bring the criminal justice system in New South Wales potentially to a grinding halt.”

His Honour even contemplated an appeal of his decision, noting:

“If it turns out that a superior court decides that that is the way the criminal justice system is to be run then I am happy for them to be courageous enough to make that decision, that is not a decision that I am prepared to entertain as a matter of practicality.”

Well the Supreme Court was courageous enough to make that decision.  In a Judgement published this week, his Honour Justice Adamson was critical of the approach taken by the prosecutor and the magistrate in the Local Court.  His Honour noted:

“The Prosecutor’s position in the Local Court… was that if a hearing could be conducted without the material in respect of which disclosure was sought, there was no obligation on the Prosecutor to disclose such material. This submission was adopted by the Court below. This proposition finds no support in the authorities. The magistrate’s finding that the accused could have a “fair” hearing without access to such documents was legally unreasonable…and was based on the erroneous premise engendered by the Prosecutor, which reflected the flawed approach taken by NSW Police to its duty of disclosure in the present case.

The magistrate’s concern for the resources of NSW Police was misplaced. Even on the assumption that questions of resources could be relevant, there was no evidence to suggest that there was any particular difficulty in locating the documents sought by the accused.”

In my experience, from time-to-time prosecutors appearing in Courts of summary jurisdiction, particularly on regional circuits, forget or become complacent about the formal requirements of ensuring a fair trial to an accused person.  Defence practitioners should insist that full and frank disclosure is delivered in all matters, whatever the level of seriousness – from low-level assault to murder.  All prosecutors (and even some magistrates), particularly those who regularly appear in regional areas, should read the recent decision in Bradley and remind themselves of their duty.