Is it time for a minimum standard of disclosure in criminal cases?

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The assumption that police investigators have been objective and have attempted to uncover all relevant evidence, like any assumption, is dangerous.

It is time that Queensland introduced a minimum standard of disclosure for indictable offences. The minimum standard of disclosure might include, for example, mobile telephone downloads, body camera footage and CCTV footage.

A case study

In 2017 in the United Kingdom, Mr A was on trial for sexual offences. Once the trial commenced, police revealed text messages obtained from the alleged victim’s mobile phone, which had not been previously disclosed. Counsel for the defendant informed the Court, “The officer in charge told me that he had it, but that it was clearly not disclosable as it just contained very personal material; nothing capable of undermining the prosecution case or assisting the defence.” Police had seized the alleged victim’s mobile telephone as evidence and downloaded thousands of text messages, however they were withheld from both the prosecution and the defence for more than two years. Once the newly disclosed evidence came to light, messages were found that undermined the case, including admissions that the interactions were consensual. The trial collapsed and Mr A was acquitted of all charges. 

The argument for reform

In the Queensland criminal justice system, the disclosure of evidence is the task of the arresting officer. At the time of charging a defendant, the arresting officer has to determine whether there is sufficient, available, and admissible evidence to obtain a conviction for the offence charged. The officer then determines what evidence is retained and whether it’s considered relevant.

The disclosure of relevant evidence is reliant upon sound judgements by those in possession of the material, and the ability of the defence to predict what additional material the police or prosecution may possess, and to request it.[1]

The law in relation to disclosure by the prosecution is governed by provisions of the Criminal Code. Section 590AB(2)(b) relevantly provides, the prosecution must give to an accused person full and early disclosure of:

  1. All evidence the prosecution proposes to rely upon in the proceedings, and
  2. All things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person.

The notion of evidence being available but not in the prosecution’s possession is a dangerous impediment to the administration of justice. Crucial evidence can be lost or destroyed if police investigators do not retain the evidence at early stage. The failure to retain evidence can sometimes be so unfair that it leads to a fundamental defect, which goes to the route of the trial.[2] Rule 29.5 of the Australia Solicitor Conduct Rules creates a higher burden and requires prosecutors to disclose all material of which the prosecutor becomes aware, which could constitute evidence relevant to the guilt or innocence of the accused. 

What happens when a complainant refuses to disclose the evidence? What happens when an officer says “I did not think to include it”? What happens when exculpatory evidence is simply ignored and lost? These issues lead to longer delays and adjournments, and the loss of evidence can erode public confidence in the justice system. It does not happen all of the time, but in some cases it does.

It is time that serious consideration be given to reforming our disclosure laws. Reforms may:

  1. Protect complainants,
  2. Provide guaranteed minimum standard of fairness to defendants, and
  3. Improve efficiency in the justice system.

It is argued that Queensland should introduce a minimum standard of disclosure, in relation to indictable charges, that officers must retain certain pieces of evidence and disclose them, whether relevant or not. This might include, for example, mobile phone downloads, body camera footage and CCTV footage. Digital evidence is often the most reliable evidence of where a person was and what they did or said at the time of an event. 

In R v Ernst[3], the Court of Appeal enunciated a fundamental principle that underpins the entire criminal justice system. The Court held at [35]:

[35] The administration of criminal justice depends heavily upon the work of police. In this sphere, the investigative work of police culminates in the evidence led at a criminal trial because it is the function of police, not the Director of Public Prosecutions, to investigate an alleged offence and to collect and assemble relevant evidence. Judges and juries depend utterly upon the integrity of that process. To a great degree, that integrity depends upon the assumption that police investigators have been objective and have attempted to uncover all relevant evidence that can reasonably be assembled, whether it is inculpatory or exculpatory. Indeed, sometimes a prosecution case can gain unassailable strength in the eyes of a jury if it is evident that the evidence that has been put forward has been the result of an utterly objective investigation and one in which, having regard to the truth of the Crown case, the investigators did not fear to find and put forward evidence that might exculpate an accused person. That is why paragraph 2.5.1 of the Police Operations Procedures Manual provides: 

“When conducting investigations, officers are to remain objective and impartial and consider their initial appreciation of an occurrence, based on the preliminary information provided by complainants, witnesses or informants, may differ to what has occurred.”

A minimum standard of disclosure in relation to indictable offences would guarantee anyone charged with a serious offence a minimum standard of justice. With clearer evidence more defendants may plead earlier, fewer trials would be aborted due to late disclosure and the Courts and the State could save significant time and money. The clearer the whole of the evidence becomes, the more likely a charge will resolve. It is time to stop accepting the dog ate my homework” when the stakes for individuals are so high.

 


[1] A discussion paper from Legal Aid Queensland, no further citation provided

[2] Jago v District Court (NSW) (1989) 168 CLR 23 at 34

[3] [2020] QCA 150


  1. Photo credit: August de Richelieu

This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact the Fisher Dore team.

 

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