The Duty of Disclosure in Criminal Cases


By Zeb Holmes and Ugur Nedim

Under both the common law and professional conduct rules, Australian prosecutors are required to serve upon the defence all material in their possession that is relevant to determining the guilt or innocence of the defendant.

That requirement extends to material that is adverse to the prosecution case, and is fundamental to ensuring the defendant receives a fair trial.

The duty of disclosure was recently in the media spotlight due to an investigation into the Keli Lane case, where the prosecution was accused of withholding relevant evidence from the defence.

Keli Lane case

In 2010, former Australian water polo player Keli Lane was convicted of murdering her newborn baby Tegan.

Her final application for appeal was rejected by the High Court of Australia in August 2014.

But a recent investigation suggested serious abuses of police powers and even claims of prosecution failures to meet professional obligations – due to an estimated 2,000 intercepts of Ms Lane’s telephone communications being withheld from the defence – a state of affairs which came to light as a result of efforts by the Bridge of Hope Innocence Initiative.

The Initiative has now made a freedom of information request to access the undisclosed recordings, with a view to determining whether they may suggest Ms Lane’s innocence.

Australian law

In the High Court case of Mallard v R (2005), Justice Kirby explained there is a common law requirement in Australia for the prosecution to provide the defence with all material which, “…may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused”.

That case concerned the wrongful conviction in 1995 of Andrew Mallard, in circumstances where the prosecution failed to serve a series of crucial exculpatory evidence upon the defence.

Mr Mallard was exonerated after spending 12 years behind bars, when among other things it came to light that another man’s palm print was found at the crime scene.

Professional conduct rules

The law regarding the duty to disclose is reflected in professional conduct rules throughout the country.

For example, rule 29.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provides that:

“A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.”

The rule is mirrored in rule 87 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, which means it applies equally to prosecuting barristers – known as ‘Crown Prosecutors’.

What needs to be disclosed?

Information that is ordinarily subject to disclosure includes:

  • Statements of witnesses, whether or not the prosecution intends to call them to testify in court,
  • Advance notice of any discrepancies between what is contained in witness statements and the evidence to be led,
  • Information that calls into question the credibility of witnesses, including their criminal record where relevant,
  • Expert evidence, including forensic and medical evidence,
  • Relevant transcripts of interviews, video and audio recordings, photographs, telephone and listening device intercepts, and
  • All other material that might tend to suggest that the accused person is innocent.

UK investigation

A recent report by a House of Commons Select Committee found that “disclosure errors” were widespread throughout the United Kingdom’s criminal justice system.

The report found that police fully complied with their disclosure obligations in only 734 out of a snapshot of 1,290 cases, or just 56.9% of the time.

Prosecution compliance was “not much better than that of the police”, with prosecutors meeting their obligations in just 557 out of 954 cases, or 58.4% of the time.

The report found a common but mistaken belief amongst prosecutors that compliance is “common courtesy” rather than a legal requirement, and that many saw themselves as having a duty to achieve a conviction rather than understanding that their job is to promote justice.

The report recommended:

  • a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add-on,
  • teaching the skills required to review large amounts of material, and
  • providing clear guidelines on handling sensitive material.

Many feel Australia would do well to adopt those recommendations, in order to avoid the devastating impact of wrongful convictions.


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