Police Prosecutors’ Duty of Disclosure in NSW Local Courts

by Paul Gregoire & Ugur Nedim

On 28 April 2018, Harley Bradley bit the finger of Katie O’Connor to the extent that it cut to the bone. And on the advice of a community caseworker she subsequently reported the incident, which had led to the need for hospitalisation.

Senior constable Deborah Chilby arrested Bradley on 17 June 2018 in relation to the matter, suspecting that he’d committed assault occasioning actual bodily harm,  which is an offence under section 59 of the Crimes Act 1900 (NSW) that involves the infliction of harm that is more than just ‘transient or trifling’.

Constable Chilby interviewed the suspect, who admitted having bitten O’Connor’s finger, but he asserted that he’d done so in self-defence, as the woman had him in a headlock and wouldn’t let go. Following the interview, Bradley was released pending further investigation.

The suspect charged and served with a court attendance notice on 3 September 2018, which formally commenced the criminal prosecution for the incident. And on 17 October, the defendant appeared in Wollongong Local Court where he pleaded not guilty.

Section 268 of the Criminal Procedure Act 1986 (NSW) lists assault occasioning actual bodily harm as a Table 2 offence, which means it is to be dealt with summarily in a NSW Local Court, unless the Director of Public Prosecutions (DPP) elects to take the matter to the District Court.

If the case remains in the Local Court, the offence carries a maximum penalty of 2 years imprisonment and/or a fine of $5,500.

Duty of disclosure

The defendant’s criminal defence lawyer wrote a letter to the senior Wollongong police prosecutor on 4 April 2019, reminding him of the prosecution’s duty of disclosure, which is set out both statutorily and within common law precedents.

In that regard, section 183 of the Criminal Procedure Act provides that when a defendant indicates a plea of not guilty, the prosecution must provide a brief of evidence to the defence, which includes written statements and copies of documents and exhibits that the prosecution intends to rely upon to support its case.

In addition to this, subsection 15A(1) of the Director of Public Prosecutions Act 1986 (NSW) reflects the common law duty of disclosure, by requiring law enforcement officers to provide prosecutors with “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”.

Within the legal letter, Bradley’s defence lawyer requested the disclosure of Katie O’Connor’s criminal history, NSW police ‘fact sheets’ relating to her criminal past and any local criminal proceedings against her, along with any other relevant police materials, entries about her in the COPS database, conversations between the prosecutor and other officers and prosecutors in relation to the case, her custody management record, and any other materials that could assist the defence.

Prosecutor Chilby responded to the letter in writing on 11 April 2019 assuring that the requested criminal history and COPS entries would be supplied. However, she denied there was a custody management record, prior to it being handed over a month later. She also took the position that she would not accede to requests for the rest of the material.

Bradley’s lawyer then filed a notice of motion in the Local Court requesting the sought materials, requesting a “temporary stay of proceedings until such time as the prosecution complies with its duty of disclosure” if the materials weren’t immediately forthcoming.

The Magistrate’s reaction

At the hearing of the notice of motion, NSW Local Court Magistrate Roger Clisdell referred to the defence’s request as a “classic fishing expedition”, making remarks to the effect that it was already well known that O’Connor had an extensive criminal record, which could be addressed during her cross-examination.

The magistrate added that some of the documents requested might be problematic, as they could include wrong facts and therefore be detrimental. His Honour ultimately ruled against the defence because, according to him, it was merely searching for anything it could get rather than having a legitimate forensic purpose for the request.

Magistrate Clisdell referred to the requests as a “catchall”, designed to cause the prosecution to engage in additional work and waste its time. His Honour said that if such information was requested in all cases, the NSW justice system could come to a “grinding halt”.

Supreme Court appeal

Mr Bradley appealed the magistrate’s decision to the NSW Supreme Court, and the matter was heard on 24 February 2020.

The defendant did so on three grounds, which involved his Honour erroneously finding that certain requested items weren’t in keeping with a duty of disclosure, mistakenly finding that the materials were requested in order to frustrate the prosecution, and taking into account “perceived resource and timing considerations”.

During the appeal proceedings, NSW Supreme Court Justice Christine Adamson considered the common law authorities, including the 2004 NSW Court of Criminal Appeal case R versus Reardon (No 2), in which Justice Hodgson made clear that “the correct view is that a decision by the Crown concerning what to disclose should take a broad view of relevance and of what are the issues in the case”.

His Honour added that “it would seem inappropriate for the prosecution authorities to take a narrow view as to what the defence might be or as to what might prove useful to the defence, as to what might open up useful lines of enquiry to the defence”.

Appeal Successful

Justice Adamson explained that the prosecutor submitted there was no reason to provide all the requested materials, as there was no need as long as it was possible to conduct a fair hearing without them. Her Honour disagreed with that submission, finding it “legally unreasonable”.

The justice further explained that the magistrate’s concerns over police time and resources were unfounded, as there was nothing to show that the resources weren’t readily available, nor that they were outside the scope of Reardon.

Her Honour found the first two grounds had been made out, and was unsure as to whether the third fell within the court’s jurisdiction, which is relegated to considering questions of law in such appeals.

“I consider that the document emailed to police prosecutors… accurately summarises the authorities,” her Honour remarked, adding that “the conduct of the Prosecutor in the present case falls far short of the duty required of her.”

The orders made

On the 27th of February 2020, Justice Adamson ordered that the appeal be allowed, and the Local Court matter be stayed until a police prosecutor satisfies the duty of disclosure as properly required. It was further ordered that the matter was then to be remitted to the Local Court to be heard by a judicial officer other than Magistrate Clisdell.

Significance of decision

The judgement makes clear that the duty of disclosure is not confined to DPP solicitors, but applies to investigating police officers and police prosecutors as well.

Authors

Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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