Published by Geoff Harrison | 22 September 2023
The disclosure of evidence is a fundamental principle in relation to an accused being able to receive a fair trial. This is particularly so where the Crown's case rests upon the credibility of a vital prosecution witness: see Grey v R at [55] - [56] and JB v R.
The prosecutor has an ongoing duty of disclosure at common law and through the relevant legislative requirements in the prosecution of an accused. The relevant legislative requirements are set out below. Law Enforcement Officers or Investigating Officers have a statutory duty of disclosure to the DPP as per s15A of the Director of Public Prosecutions Act 1986 and are generally required to sign a Disclosure Certificate as per Schedule 1 of the Director of Public Prosecutions Regulations 2020.
The duty of disclosure applies equally to police prosecutors: see Bradley at [50}. In Summary matters police are required to serve the brief of evidence, which includes written statements of proposed witnesses and copies of documents/exhibits that are proposed to be relied upon, at least 14 days prior to the hearing as per s183(3) of the Criminal Procedure Act 1986 ('the Act'). Police are not required to serve a brief of evidence for matters that fall within s187 of the Act or Regulation 24 (below).
Other Resources:
Board of Inquiry Report into the Criminal Justice System in the Australian Capital Territory (pp63-97)
Ethics: The Prosecutor's Duty of Disclosure in the Local Court by: Madeleine Avenell, Felicity Graham and Tim McKenzie, 2020.
Cases:
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Extracted Legislation:
Indictable Matters:
CRIMINAL PROCEDURE ACT 1986 - SECT 61
Requirement to disclose evidence
(1) The prosecutor must, after the commencement of committal proceedings and on or before any day specified by order by the Magistrate for that purpose, serve or cause to be served on the accused person a brief of evidence relating to each offence the subject of the proceedings.
(2) This Division is subject to, and does not affect the operation of, section 15A of the Director of Public Prosecutions Act 1986 or any other law or obligation relating to the provision of material to an accused person by a prosecutor.
Note : Examples of such a law are laws about privilege and immunity in relation to evidence.
CRIMINAL PROCEDURE ACT 1986 - SECT 62
Matters to be disclosed in brief of evidence
(1) The brief of evidence must contain the following--
(a) copies of all material obtained by the prosecution that forms the basis of the prosecution's case,
(b) copies of any other material obtained by the prosecution that is reasonably capable of being relevant to the case for the accused person,
(c) copies of any other material obtained by the prosecution that would affect the strength of the prosecution's case.
(2) The material contained in the brief of evidence may be, but is not required to be, in the form required under Part 3A of Chapter 6 or in any particular form otherwise required for the material to be admissible as evidence.
(3) The regulations may specify requirements for material included in a brief of evidence.
(4) The Minister is to consult with the Minister for Police before a regulation is made under subsection (3).
CRIMINAL PROCEDURE ACT 1986 - SECT 63
Additional material to be disclosed
(1) The prosecutor must serve or cause to be served on the accused person copies of material obtained by the prosecutor and not included in the brief of evidence, if the material is of a kind required to be included in the brief of evidence.
(2) The prosecutor must serve or cause the material to be served as soon as practicable after it is obtained by the prosecutor.
CRIMINAL PROCEDURE ACT 1986 - SECT 64
Exceptions to requirement to provide copies of material
(1) The prosecutor is not required to include a copy of a thing required to be provided under this Division, or to serve or cause it to be served, if--
(a) it is impossible or impractical to copy the thing, or
(b) the accused person agrees to inspect the thing in accordance with this section.
(2) However, in that case the prosecutor is--
(a) to serve or caused to be served on the accused person a notice specifying a reasonable time and place at which the thing may be inspected or other reasonable means by which the thing is to be provided for inspection, and
(b) to allow the accused person a reasonable opportunity to inspect each thing referred to in the notice.
CRIMINAL PROCEDURE ACT 1986 - SECT 141
Mandatory pre-trial disclosure
(1) After the indictment is presented or filed in proceedings, the following pre-trial disclosure is required--
(a) the prosecutor is to give notice of the prosecution case to the accused person in accordance with section 142,
(b) the accused person is to give notice of the defence response to the prosecution's notice in accordance with section 143,
(c) the prosecution is to give notice of the prosecution response to the defence response in accordance with section 144.
(2) Pre-trial disclosure required by this section is to take place before the date set for the trial in the proceedings and in accordance with a timetable determined by the court.
Note : Practice notes issued by the court will guide determinations of the timetable for pre-trial disclosures and related matters.
(3) The court may vary any such timetable if it considers that it would be in the interests of the administration of justice to do so.
(4) The regulations may make provision for or with respect to the timetable for pre-trial disclosure.
Criminal Procedure Regulation 2017:
CRIMINAL PROCEDURE REGULATION 2017 - REG 9I
Endorsement of written statements
(1) For the purposes of section 283B (3) of the Act, a written statement must be endorsed as follows--
This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.
(2) In the case of a person who is under the age of 18 years, or an adult who is apparently of appreciably below average intelligence, it is sufficient if the endorsement includes--
(a) words to the effect that the statement is true, or
(b) words to the effect that the statement contains no lies.
(3) A written statement that is in a language other than English and has a document purporting to contain an English translation of the statement or part annexed to it in accordance with section 283B (5) of the Act must also have annexed to it a certificate by the translator stating his or her qualifications and certifying that the translation is a correct translation of the document.
CRIMINAL PROCEDURE REGULATION 2017 - REG 9J
Addresses, dates of birth and phone numbers not to be disclosed on written statements
(1) A copy of a written statement served on an accused person must not disclose the address, date of birth or telephone number of the person who made the statement or of any other living person, unless--
(a) the address, date of birth or telephone number is a materially relevant part of the evidence, or
(b) a Magistrate makes an order permitting the disclosure in the statement.
(2) An application for an order permitting the disclosure may be made by the accused person or the prosecutor.
(3) The Magistrate must not make the order unless satisfied that the disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the accused person's right to prepare properly for the hearing of the evidence for the prosecution) outweigh any such risk.
(4) This clause does not prevent the disclosure of an address in a written statement if the statement does not identify it as a particular person's address, or it could not reasonably be inferred from the statement that it is a particular person's address.
(5) An address, date of birth or telephone number that must not be disclosed may, without reference to the person who made the written statement, be deleted from the statement, or rendered illegible, before the statement is served on the accused person.
(6) In this clause,
"address" includes residential address, business address, email address and web-based address.
CRIMINAL PROCEDURE REGULATION 2017 - REG 9K
Signing of written statements by maker or another person on the maker's behalf
(1) A written statement must be signed by the person who made the statement.
(2) If the person is unable to sign the written statement, the statement may be signed by another person with the consent of and in the presence of the person who made the statement.
(3) The other person must sign an endorsement on the statement to the effect that the person signed the statement on behalf of, with the consent of and in the presence of the person who made the statement.
(4) A written statement must also be signed, as a witness, by a person who witnessed the signing of the statement by the person who made the statement or by another person signing on the maker's behalf (if applicable).
CRIMINAL PROCEDURE REGULATION 2017 - REG 9L
Presumptions about age and language
(1) In any proceedings it is presumed, if there is no evidence to the contrary, that the age specified in a statement is in fact the age of the person who made the statement at the time the statement was made.
(2) In any proceedings it is presumed, if there is no evidence to the contrary, that the language in which a written statement or an endorsement is written is a language of which the person who made the statement or endorsement has a reasonable understanding.
(3) In any proceedings it is presumed, if there is no evidence to the contrary, that the English translation of a statement or part statement is an accurate translation of the statement or part.
CRIMINAL PROCEDURE REGULATION 2017 - REG 9M
Presumptions about signatures on written statements
(1) In any proceedings it is presumed, if there is no evidence to the contrary, that a signature on a written statement purporting or appearing to be the signature of the person who made it, or a person who signed on behalf of the maker, or a witness to the signing of the statement, is the signature of the person concerned.
(2) In any proceedings it is presumed, if there is no evidence to the contrary, that a statement purporting or appearing to be signed by another person on behalf of the person who made the statement in accordance with this Division has been so signed.
Summary Matters:
CRIMINAL PROCEDURE ACT 1986 - SECT 183
Brief of evidence to be served on accused person where not guilty plea
(1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence.
(2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include--
(a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and
(b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit.
(3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution.
(4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it.
CRIMINAL PROCEDURE ACT 1986 - SECT 184
Exhibits
(1) Despite section 183, the prosecutor is not required to include a copy of a proposed exhibit identified in the brief of evidence if it is impossible or impractical to copy the exhibit.
(2) However, in that case the prosecutor is--
(a) to serve on the accused person a notice specifying a reasonable time and place at which the proposed exhibit may be inspected, and
(b) to allow the accused person a reasonable opportunity to inspect each proposed exhibit referred to in the notice.
CRIMINAL PROCEDURE ACT 1986 - SECT 185
Recording of interviews with vulnerable persons
(1) If the prosecutor intends to call a vulnerable person to give evidence in proceedings, the brief of evidence may include a transcript of a recording made by an investigating official of an interview with the vulnerable person, during which the vulnerable person was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in section 306R).
(2) A copy of the transcript of the recording must be certified by an investigating official as an accurate transcript of the recording and served on the accused person in accordance with section 183.
(3) A brief of evidence that includes a transcript of a recording of an interview with a vulnerable person is not required also to include a written statement from the vulnerable person concerned.
(4) The transcript of the recording is taken, for the purposes of this Division, to be a written statement taken from the vulnerable person. Accordingly, any document or other thing identified in the transcript as a proposed exhibit forms part of the brief of evidence.
(5) Nothing in this Division requires the prosecutor to serve on the accused person a copy of the actual recording made by an investigating official of an interview with the vulnerable person.
(6) This section does not affect section 306V (2).
(7) In this section--
"investigating official" has the same meaning as it has in Part 6 of Chapter 6.
Note : Part 6 of Chapter 6 allows vulnerable persons (children and cognitively impaired persons) to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the vulnerable person. Section 306V (2) (which is contained in that Part) provides that such evidence is not to be admitted unless the accused person and his or her Australian legal practitioner have been given a reasonable opportunity to listen to or view the recording.
CRIMINAL PROCEDURE ACT 1986 - SECT 185A
Recordings of interviews with domestic violence complainants
(1) If the prosecutor intends to call a domestic violence complainant to give evidence in proceedings for a domestic violence offence, the brief of evidence may include a recorded statement relating to the offence.
(2) For the purpose of the service of a recorded statement included in a brief of evidence, the requirements of Division 3 of Part 4B of Chapter 6 in relation to service of, and access to, a recorded statement must be complied with.
(3) This Division (other than section 185 (1)) applies to a recorded statement included in a brief of evidence and the person whose representation is recorded in the recorded statement in the same way as it applies to a written statement included under this Division and the person who made the written statement.
(4) A brief of evidence that includes a recorded statement is not required also to include a written statement from the domestic violence complainant.
(5) This section does not affect section 289I (2).
CRIMINAL PROCEDURE ACT 1986 - SECT 186
Form of copy of brief of evidence
(1) The copy of the brief of evidence is to comply with any requirement applicable to it prescribed by the rules.
(2) A written statement contained in the brief of evidence is to comply with this Act and any requirement applicable to it prescribed by the rules.
CRIMINAL PROCEDURE ACT 1986 - SECT 187
When brief of evidence need not be served
(1) The court may order that all or part of the copy of the brief of evidence need not be served if it is satisfied--
(a) that there are compelling reasons for not requiring service, or
(b) that it could not reasonably be served on the accused person.
(2) The court may make an order under this section on its own initiative or on the application of any party.
(3) An order may be made subject to any conditions that the court thinks fit.
(4) Without limiting any other power to adjourn proceedings, the court may grant one or more adjournments, if it appears to it to be just and reasonable to do so, if the copy of the brief of evidence is not served in accordance with this Division. For that purpose, the court may extend the time for service of the brief of evidence.
(5) A prosecutor is not required to serve a brief of evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the regulations.
CRIMINAL PROCEDURE ACT 1986 - SECT 188
Evidence not to be admitted
(1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor.
(2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.
CRIMINAL PROCEDURE ACT 1986 - SECT 189
False statements or representations
(1) A person who made a written statement tendered in evidence in proceedings is guilty of an offence if the statement contains any matter that, at the time the statement was made, the person knew to be false, or did not believe to be true, in any material respect.
Maximum penalty--
(a) If the offence is dealt with summarily, 20 penalty units or imprisonment for 12 months, or both.
(b) If the offence is dealt with on indictment, 50 penalty units or imprisonment for 5 years, or both.
(1A) A person who made a representation given in evidence in proceedings in the form of a recorded statement is guilty of an offence if the representation contains any matter that, at the time the representation was made, the person knew to be false, or did not believe to be true, in any material respect.
Maximum penalty--
(a) If the offence is dealt with summarily, 20 penalty units or imprisonment for 12 months, or both.
(b) If the offence is dealt with on indictment, 50 penalty units or imprisonment for 5 years, or both.
(2) Chapter 5 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence under this section.
CRIMINAL PROCEDURE REGULATION 2017 - REG 24
Offences for which briefs of evidence not required
For the purposes of section 187 (5) of the Act, the following proceedings are prescribed as proceedings of a kind in which a prosecutor is not required to serve a brief of evidence--
(a) proceedings for an offence for which a penalty notice may be issued (other than an offence that is set out in Schedule 4 and that is not referred to below),
(b) proceedings for an offence under section 4 of the Summary Offences Act 1988 ,
(c) proceedings for an offence under any of the following provisions of the Road Transport Act 2013 (or a former corresponding provision within the meaning of that Act)--
(i) section 53 (3) or 54 (1) (a), (3) (a), (4) (a), (5) (a) (i) or (b) (i),
(ii) section 110, 111A or 112,
(d) proceedings for a summary offence for which there is a monetary penalty only,
(e) proceedings for an offence under section 10 of the Drug Misuse and Trafficking Act 1985 ,
(f) proceedings for an offence under section 16 (1) of the Poisons and Therapeutic Goods Act 1966 .
CRIMINAL PROCEDURE REGULATION 2017 - REG 25
Short briefs of evidence required in certain circumstances
(1) The object of this clause is to reduce the time spent by police officers in producing statements of non-material witnesses for inclusion in certain briefs of evidence and, accordingly, a court is to have regard to that object when exercising its functions under this clause.
(2) This clause applies only to proceedings for summary offences (including proceedings for indictable offences specified in Table 2 to Schedule 1 to the Act that are being dealt with summarily) for which a brief of evidence is required to be served under section 183 of the Act.
(3) In this clause,
"prescribed statement" means, in relation to a brief of evidence required to be served under section 183 of the Act in proceedings, a statement of a non-material witness, including the following--
(a) a police officer who provides evidence that the preconditions of the exercise of a power have been satisfied or establishes that the evidence on which the prosecutor relies was obtained in accordance with the law (for example, the custody manager who cautions the accused person under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 ),
(b) a police officer who was responsible for the movement of, or recording the movement of, a thing connected with the offence or the investigation of the offence (for example, a police officer who conveys DNA or a drug sample to the Division of Analytical Laboratories),
(c) a police officer who operated a device that produced or caused the production of a document, photograph, video or any other thing relied on by the prosecutor to prove the prosecution's case,
(d) any other police officer who provides evidence that merely corroborates evidence of another police officer whose statement relates to a process or procedure and is included in the brief of evidence (for example, a police officer, other than the investigating police officer, who was present when the accused person was interviewed),
(e) a person who is a medical practitioner, nurse, paramedic or other health care professional if all the notes of the person (for example, doctor's treatment notes or ambulance officer's checklists) have been included in the brief of evidence.
(4) For the purposes of section 183 (2) of the Act, a brief of evidence need not include the following--
(a) any prescribed statement, but only if the brief includes a list of each prescribed statement that, but for this clause, would need to be included in the brief and a summary of what each listed statement would include,
(b) any document that was served on the accused person or the accused person's legal representative by or on behalf of the prosecutor after the court attendance notice in relation to the offence concerned was served.
(5) On application by the accused person in proceedings, the court may order that any prescribed statement, or any document referred to in subclause (4) (b), be served on the accused person by the prosecutor within a specified time before the hearing if the statement or document was not included in the brief of evidence. The court is to give reasons for the making of the order.
(6) The court may make an order under subclause (5) only if satisfied that--
(a) in the case of a prescribed statement, the making of the order would assist the accused person to respond to the charge or assist the court in determining the matter, or
(b) in the case of a document referred to in subclause (4) (b), the application for the order has been made in good faith.
DIRECTOR OF PUBLIC PROSECUTIONS ACT 1986 - SECT 15A
Disclosures by law enforcement or investigating officers
(1) Law enforcement or investigating officers for alleged offences have a duty 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.
(1A) The duty of disclosure arises only if the Director exercises any function under this Act or Part 2 of Chapter 3 of the Criminal Procedure Act 1986 with respect to the prosecution of the offence (including in connection with a law enforcement or investigating officer seeking advice from the Director under section 14A of the Criminal Procedure Act 1986 about the commencement of proceedings for an offence).
(2) The duty of disclosure continues until one of the following happens--
(a) the Director decides that the accused person will not be prosecuted for the alleged offence,
(b) the prosecution is terminated,
(c) the accused person is convicted or acquitted.
(3) Law enforcement or investigating officers for alleged offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things.
(4) The regulations may make provision for or with respect to the duties of law enforcement or investigating officers under this section, including for or with respect to--
(a) the recording of any such information, documents or other things, and
(b) verification of compliance with any such duty.
(5) The duty imposed by this section is in addition to any other duties of law enforcement or investigating officers in connection with the investigation and prosecution of offences.
(6) The duty imposed by this section does not require law enforcement or investigating officers to provide to the Director any information, documents or other things--
(a) that are the subject of a claim of privilege, public interest immunity or statutory immunity, or
(b) that would contravene a statutory publication restriction if so provided.
(7) The duty of a law enforcement or investigating officer in such a case is to inform the Director of--
(a) the existence of any information, document or other thing of that kind, and
(b) the nature of that information, document or other thing and the claim or publication restriction relating to it.
However, a law enforcement or investigating officer must provide to the Director any information, document or other thing of that kind if the Director requests it to be provided.
(9) In this section--
"statutory publication restriction" means a prohibition or restriction on publication that is imposed by or under--
(a) section 176 (Disclosure and use of examination material) or 177 (Disclosure and use of evidence given at examination) of the Law Enforcement Conduct Commission Act 2016 , or
(b) section 45 or 45A of the Crime Commission Act 2012 , or
(c) section 112 of the Independent Commission Against Corruption Act 1988 .
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