The duty of disclosure is a fundamental rule regarding the accused’s right to material held by the prosecuting authorities. This right extends to exculpatory material as well as to material detrimental to the credit of prosecution witnesses.
The common law principles are codified at s142 of the Criminal Procedure Act 1986, which requres that the prosecutor disclose "a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person"
Full and complete disclosure is essential if the accused’s right to a fair trial is to be protected. It is generally considered to include, as minimum, the following:
- All statements of witnesses, including witnesses not proposed to be called
- Advance notice of discrepancies between a witnesses statement and evidence expected to fall from that witness
- All other materials that may assist the defence
- All material relevant to the credit of prosecution witnesses
This duty is tempered in several ways, principally through statute (see, for example, the list of offences in respect of which a brief of evidence is not required to be served at r24 of the Criminal Procedure Regulation 2017) and through public interest immunity and legal professional privilege.
R v Ward  2 All ER 577
Summarises the rules surrounding disclosure in the English courts
Grey v R  HCA 65
“And although it might also be possible to say that a lucky (if extremely risky) question of him might have elicited an answer which revealed the existence of the letter of comfort and perhaps even its contents, there was no reason why the defence in a criminal trial should be obliged to fossick for information of this kind and to which it was entitled”
R v Reardon, Michael Leonard  NSWCCA 197
“It seems to me 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”
“My tentative view, further, is that it is going too far to suggest that it is part of the prosecution’s function to anticipate any defence that might be raised, examine its documents for reference or entries or items that might be of assistance in pursuing that defence, and make an evaluation as to their potential usefulness in that respect.”
R v Spiteri  NSWCCA 321
“The Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice, and cannot be expected to foresee.”
“While it would not be proper for the Crown to create a trap for an accused person, there is no Crown obligation to deter an accused person from creating a trap for himself; nor need it anticipate that he will do so.”
Regina v Richard Lipton  NSWCCA 247
“As is apparent from the foregoing discussion, subject to any public interest immunity, that duty obliges the prosecution to make available, in the sense of disclose the contents of, all material which may prove helpful to the defence.”
Bradley v Senior Constable Chilby  NSWSC 145
“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”
Edwards v The Queen  HCA 28
“As the appellant observed, the prosecution was able to mine the Cellebrite Download for useful information prior to the trial and ultimately the prosecution identified relevant, and arguably critical, evidence by searching the Download. On that basis, the appellant argued that there was an inequality of arms: the appellant's lawyers, who did not have a copy of the Download (although they could have asked for one), did not have the same ability. No doubt, the ODPP could have provided a copy of the Download to the appellant cheaply and easily, without waiting for any request from him and thereby obviating any perception of unfairness. On the other hand, if the appellant gave instructions suggesting inquiries that could have been pursued by searching his telephone, there was no impediment to the appellant calling for a copy of the Download, readily searchable, because its existence had been clearly identified by the ODPP.”
The Court (Glidewell, Notal and Steyn LJJ – judgment delivered by Glidewell LJ)
On 3 October 1974 the appellant, Judith Theresa Ward, was arraigned at Wakefield Crown Court before Waller J and a jury on an indictment containing 15 counts. These charged her as follows. Count 1: causing an explosion likely to endanger life or property on 10 September 1973 at Euston station. Count 2: a similar count relating to the explosion of the motor coach on the M62 on 4 February 1974. Counts 3 to 14: 12 counts of murder relating to each of the persons killed in the explosion on the motor coach. Count 15: causing an explosion as before on 12 February 1974 at the National Defence College at Latimer.
The appellant pleaded not guilty to all counts. On 4 November 1974 she was convicted on all counts, by a majority of 10 to 2 on count 1, unanimously on all the others. She was sentenced by Waller J to 5 years’ imprisonment on count 1, 20 years’ imprisonment concurrently on count 2, to life imprisonment for the murder counts 3 to 14, and to 10 years on count 15 to be served consecutively to the 20 years on count 2, making a determinate sentence of 30 years.
It is clear from the two opening paragraphs of the grounds of appeal that the issue of non-disclosure lies at the heart of the appellant’s case. First, it is submitted that evidence which should have been disclosed at the trial, taken together with the fresh evidence now available and added to the evidence which was given at the trial, shows that the appellant’s admissions and confessions were unreliable and that the scientific evidence adduced against her was worthless, with the result that her convictions are unsafe and unsatisfactory for the purposes of s 2(1)(a) of the Criminal Appeal Act 1968. Secondly, and in the alternative, it is submitted that the non-disclosure at trial of relevant evidence which should have been disclosed by or on behalf of the Crown amounts to a material irregularity in the course of the trial for the purposes of s 2(1)(c) of the 1968 Act. The first of these submissions is self-explanatory and calls for no further comment at this stage. The second requires further examination.
It is now settled law, in this court at least, that the failure of the prosecution to disclose to the defence evidence which ought to have been disclosed is an ‘irregularity in the course of the trial’ within the meaning of s 2(1)(c). We refer in this connection to R v Maguire  2 All ER 433 at 446,  QB 936 at 957, where, after a reference to earlier authorities, the judgment continues:
‘The court has now consistently taken the view that a failure to disclose what is known or possessed and which ought to have been disclosed, is an “irregularity in the course of the trial”. Why there was no disclosure is an irrelevant question, and if it be asked how the irregularity was “in the course of the trial” it can be answered that the duty of disclosure is a continuing one.’
It follows that if the irregularity is ‘material’, then for this reason alone the appeal must be allowed unless the proviso applies. In the sentence immediately following the passage which we have quoted from R v Maguire the court said:
‘If categorisation is necessary we are content to categorise a failure to disclose as a “procedural” irregularity, and because that which was not disclosed ought to have been disclosed, we would expect the irregularity to be one which usually satisfied the adjective “material”.’
We share this expectation. The obligation to disclose only arises in relation to evidence which is or may be material in relation to the issues which are expected to arise, or which unexpectedly do arise, in the course of the trial. If the evidence is or may be material in this sense, then its non-disclosure is likely to constitute a material irregularity. The proviso makes it plain that ‘material’ means something less than ‘crucial’, because it contemplates that although there may have been a material irregularity, yet a verdict of ‘guilty’ can be upheld on the ground that it involves no miscarriage of justice.
On the broad basis of this right, the defendant is plainly entitled (subject to statutory limitations on disclosure, and the possibility of public interest immunity, which we discuss below) to be supplied with police evidence of all relevant interviews with him. We would adopt the words of Lawton LJ in R v Hennessey (1978) 68 Cr App R 419 at 426 where he said that the courts must—
‘keep in mind that those who prepare and conduct prosecutions owe a duty to the Courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence. We have no reason to think that this duty is neglected; and if ever it should be, the appropriate disciplinary bodies can be expected to take action. The judges for their part will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution.’
That statement reflects the position in 1974 no less than today. We would emphasise that ‘all relevant evidence of help to an accused’ is not limited to evidence which will obviously advance the accused’s case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led.
It is perhaps understandable that the West Yorkshire Police should have been reluctant to burden the Director of Public Prosecutions with the statements of 1,700 witnesses, the vast majority of whom, no doubt, were unable to contribute anything really significant, but it must be made clear that the course adopted was wholly wrong and led to the suppression of information which the appellant was entitled to receive. The principal relevance of the statements in question lies in their bearing on the appellant’s proclivities for attention-seeking, fantasy and the making and withdrawal of untrue confessions. The West Yorkshire Police may well have been fully justified, on the information before them, in taking the view that the statements were of little or no relevance to the offences with which the appellant was charged. Even the Director of Public Prosecutions might only have appreciated their relevance as the trial proceeded and the full scope of the defence of unreliability became clear. But this simply shows why it was wholly wrong for the statements to be withheld from the Director.
The inference must be that the motive for the decision to withhold the interview from disclosure, and to refer to them in correspondence in terms which can only be described as misleading, was concern for the safety of Det Chief Insp Wilson and fear of jeopardising the anti-terrorist activities upon which he was engaged. The motive was right. The decision was wrong. There should have been no difficulty in putting the substance of the interviews before the jury with the co-operation of the defence, or by direction of the judge, without Det Chief Insp Wilson being involved. Indeed, there is no apparent reason why Det Supt Edington and Det Chief Supt Nevill should not have dealt with, at any rate, the bulk of the interviews in their evidence (both of them were called as witnesses, but did not refer to the interviews) without Det Chief Insp Wilson making an appearance. It was wholly wrong for Mr Walsh to draft, and for Mr Bibby to adopt, the language of the letter of 26 September 1974. This letter seriously misrepresented the position. It was calculated to give the impression to the defence that the interviews were of no material significance and that is precisely what it did. Mr Ollier told us: ‘Having regard to the contents of that paragraph I took the view, rightly or wrongly, that [the interviews] were not relevant.’
It is necessary to consider the impact of the legal rules governing the disclosure by the prosecution of material scientific evidence. An incident of a defendant’s right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. Moreover, this duty is continuous: it applies not only in the pre-trial period but also throughout the trial. The materiality of evidence on the scientific side of a case may sometimes be overlooked before a trial. If the significance of the evidence becomes clear during the trial there must be an immediate disclosure to the defence. These propositions were already established in 1974, and decisions such as R v Leyland Magistrates, ex p Hawthorn  1 All ER 209,  QB 283 merely served to reinforce the generality of the legal duty of fair disclosure.
At 631 to 633
It is now convenient to summarise the principles of law and practice which at the present time govern the disclosure of evidence by the prosecution before trial.
(i) ‘Where the prosecution have taken a statement from a person whom they know can give material evidence but decide not to call him as a witness, they are under a duty to make that person available as a witness for the defence …’(see Archbold’s Pleadings, Evidence and Practice in Criminal Cases (44th edn, 1992) para 4–276). It is part of the same passage as is quoted with approval in this court in R v Lawson (1989) 90 Cr App R 107 at 114 from the preceding edition. ‘Material evidence’ means evidence which tends either to weaken the prosecution case or to strengthen the defence case.
(ii) Unless there are good reasons for not doing so, the duty should normally be performed by supplying copies of the witness statements to the defence or allowing them to inspect the statements and make copies: see R v Lawson. Where there are good reasons for not supplying copies of the statements, the duty to disclose can be performed by supplying the name and address of the witness to the defence.
(iii) In relation to statements recording relevant interviews with the accused, as we have already said, subject to the possibility of public interest immunity, the defence are entitled to be supplied with copies of all such statements.
(iv) In relation to the evidence of expert witnesses, both for the prosecution and the defence, the Crown Court (Advance Notice of Expert Evidence) Rules 1987 now require that any party to the proceedings in the Crown Court who proposes to adduce expert evidence must, as soon after committal as possible, furnish the other party with a written statement of any finding or opinion of which he proposes to give evidence and, where a request in writing is made by that other party, either supply copies of, or allow the other party to examine, the record of any observation, test, calculation or other procedure on which such finding or opinion is based. There is an exception in r 4, which is not here relevant. What the rules do not say in terms is that if an expert witness has carried out experiments or tests which tend to disprove or cast doubt upon the opinion he is expressing, or if such experiments or tests have been carried out in his laboratory and are known to him, the party calling him must also disclose the record of such experiments or tests. In our view the rules do not state this in terms because they can only be read as requiring the record of all relevant experiments and tests to be disclosed. It follows that an expert witness who has carried out or knows of experiments or tests which tend to cast doubt on the opinion he is expressing is in our view under a clear obligation to bring the records of such experiments and tests to the attention of the solicitor who is instructing him so that it may be disclosed to the other party. No doubt this process can often be simplified by the expert for one party (usually the prosecution) supplying his results, and any necessary working papers, to the expert advising the other party (the defence) directly.
(v) It is true that public interest immunity provides an exception to the general duty of disclosure. For present purposes it is not necessary to attempt to analyse the requirements of public interest immunity. But in argument the question arose whether, if in a criminal case the prosecution wished to claim public interest immunity for documents helpful to the defence, the prosecution is in law obliged to give notice to the defence of the asserted right to withhold the documents so that, if necessary, the court can be asked to rule on the legitimacy of the prosecution’s asserted claim. Mr Mansfield’s position was simple and readily comprehensible. He submitted that there was such a duty, and that it admitted of no qualification or exception. Moreover, he contended that it would be incompatible with a defendant’s absolute right to a fair trial to allow the prosecution, who occupy an adversarial position in criminal proceedings, to be judge in their own cause on the asserted claim to immunity. unfortunately, and despite repeated questions by the court, the Crown’s position on this vital issue remained opaque to the end. We are fully persuaded by Mr Mansfield’s reasoning on this point. It seems to us that he was right to remind us that when the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrongto allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.
(vi) For the avoidance of doubt we make it clear that we have not overlooked the Attorney General’s guidelines for the disclosure of ‘unused’ material to the defence in cases to be heard on indictment: see Practice Note  1 All ER 734. It is sufficient to say that nothing in those guidelines can derogate in any way from the legal rules which we have stated. It is therefore unnecessary for us to consider to what extent the Attorney General’s guidelines relating to ‘sensitive material’ (the phrase used in those guidelines) are in conformity with the law as we have expounded it in the judgment.
Gleeson CJ, Gummow and Callinan JJ (would allow the appeal and order a retrial)
1. The issue in this case is whether a criminal trial miscarried because the accused was not provided with a copy of a letter of comfort which had been given by an investigating police officer to a person who had had an involvement in the events giving rise to the charges against the appellant and was a key prosecution witness against him at his trial.
15. In substance then, it was the submission of the respondent that notwithstanding the prosecution's failure, inadvertent as it was, to disclose that Mr Reynolds had been given the letter of comfort that he had, the appellant had not really been deprived of a full opportunity to discredit Mr Reynolds who was, it was conceded, a key Crown witness against him.
16. In our opinion, this submission cannot be accepted. Mr Reynolds was presented by the Crown as a reliable witness and, by implication, a witness whose involvement, if any, in the events in respect of which the appellant was charged was non-existent or entirely innocent. This was a disingenuous basis upon which to present Mr Reynolds. As the letter of comfort makes clear, he had in fact had a widespread and deep involvement in the theft and conversion of Ford motor vehicles. The letter recorded this:
"At the present time the prisoner is assisting us with our inquiries in relation to the activities of a group in the Central West of this State, involving the theft and conversion of Ford motor vehicles, on a widespread basis."
17. But what was worse, and what underlined the presentation of Mr Reynolds as a reliable witness, was the further assertion in the letter in these words:
"There is no evidence to indicate that the prisoner is an active participant in this current inquiry."
18. It is not difficult to imagine a fertile area of cross-examination that could have been tilled by the appellant on the basis of this false statement to whose makers Mr Reynolds was patently beholden. The letter should have been provided to the appellant, as is correctly conceded in this Court by the respondent. Its revelation and admission into evidence could have put a quite different complexion on the case for the appellant and the way in which it was conducted.
23. For the reasons that we have given, there has been a miscarriage of justice in this case. It was not a miscarriage to which the fresh evidence rule applied. It is one thing to say that the defence knew or could have found out about various aspects of unsavoury behaviour on the part of Mr Reynolds but an altogether different thing to say that it knew of the special relationship between Mr Reynolds and the police. And although it might also be possible to say that a lucky (if extremely risky) question of him might have elicited an answer which revealed the existence of the letter of comfort and perhaps even its contents, there was no reason why the defence in a criminal trial should be obliged to fossick for information of this kind and to which it was entitled. Nor can we accept, in any event, as the Court of Criminal Appeal held, that reasonable diligence before or during the trial would have unearthed the letter.
Kirby JJ (would allow the appeal and order a retrial)
50. In the present case the appellant's complaint is that Ex G, or some indication of its contents, ought to have been provided by police to the DPP and by the prosecution to the appellant's legal representatives. To treat this case simply as one amenable to the rules governing "fresh" or "new" evidence following a criminal trial is effectively to convert the prosecutor's duty to disclose into an accused's obligation to find out. Because the DPP has conceded that there was a duty to disclose which was not fulfilled, the reasoning of the majority of the Court of Criminal Appeal is incorrect. If the police and prosecution duties had been properly discharged, the appellant's representatives would have been supplied with Ex G or information as to its contents. The appellant would thus have had the necessary materials available to him. No occasion would then have arisen for the present arguments.
62. departure from the requirement of fair trial as to make the proviso inapplicable in this case should be rejected. Within the evidence adduced, the trial was conducted with fairness and accuracy.
63. Because of the concession Ex G or its contents should have been disclosed to the defence by the prosecutor, and would have been disclosed if it had been known, it is clear that a miscarriage occurred. It was a miscarriage that affected the justice of the trial. This is so because it deprived the appellant of knowledge of a relationship between the investigating police and Mr Reynolds. Such knowledge was relevant both to the appellant's endeavours, by cross-examination, to discredit Mr Reynolds' testimony but also to the request for a direction to the jury sought from the trial judge pursuant to s 165 of the Evidence Act.
78. It follows that a miscarriage of justice occurred in the appellant's trial. It cannot be said that the appellant's convictions were inevitable. Nor has the DPP proved that the case was otherwise one for the application of the proviso. I therefore agree in the orders proposed in the joint reasons.
Hayne J (would allow the appeal and order a retrial)
83. The letter of comfort was material which the appellant could have invited the jury to take into account in considering whether Mr Reynolds was to be accepted as a witness of truth. It follows that, no matter what other attacks could have been, or were mounted against Mr Reynolds and his evidence, the jury, taking account of what was revealed by the letter, might have entertained a reasonable doubt about his veracity. If that had been so, given the way the trial was conducted, the appellant would have been entitled to be acquitted.
84. The issue in this Court having been formulated and argued as it was, there is no occasion to consider any wider question about the construction and application of the proviso. The appeal should be allowed, and consequential orders made in the form proposed by Gleeson CJ, Gummow and Callinan JJ.
Hodgson JA (would dismiss the application to reopen the appeal on the basis that the appellant had not lost a real chance of acquittal)
8. The submissions sought to be advanced on behalf of Mr. Reardon were to the effect that entries in running sheets kept by the National Crime Authority (NCA) should have been disclosed by the Crown prior to the trial; and that the Crown’s failure to do so has caused a miscarriage of justice, because Mr. Reardon thereby lost a reasonable chance of acquittal by not having the support to his “rip-off” defence that access to some entries in those running sheets would have provided.
48. In R v. Keane  2 All ER 478, the Court of Appeal held that, subject to the question of public interest, the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v. Brown (Winston)  UKHL 33;  AC 367 at 376-7, with the comment that “an issue in the case” must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence.
49. However, in Brown it was also held that the duty did not extend to disclosing material relevant only to the credibility of defence (as opposed to prosecution) witnesses.
54. It is not necessary in the present case to determine whether all the principles stated in the English cases should be adopted here; but in my opinion, the principles stated in Keane and Brown should be taken as applying in New South Wales.
58. It was accepted for the Crown that there is no onus on the defence to demonstrate a forensic purpose in relation to material said to be subject to the Crown’s duty of disclosure. This is clearly correct: the defence is simply not in a position to know what this material is. It seems to me 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. The Crown has all the material available to it, and one basis of the rule about disclosure is that it is to ameliorate the inequality of resources as between the Crown and the accused. In those circumstances, 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. See generally the article “Unused Material and the Prosecutor’s Duty of Disclosure” by Martin Hinton in (2001) 25 (3) Criminal Law Journal 121.
59. In my opinion, the circumstance that contemporary documents created by the police in the course of surveillance or undercover operations contain information which is otherwise disclosed is not of itself a ground for not disclosing such documents. All such documents, in my opinion, have to be assessed according to the Keane/Brown principles and, unless disclosure is excused because of legal professional privilege or public interest considerations, should be disclosed if they fall within those principles.
60. If such documents merely repeat in second or third hand ways information which is otherwise disclosed, it seems likely that they would not fall within the Keane/Brown categories. But if they do fall within those categories, and if they are not protected by legal professional privilege or public interest considerations, then they should be disclosed, even if the information they contain has been otherwise disclosed.
Simpson J (would dismiss the application to reopen the appeal on the basis that the appellant had not lost a real chance of acquittal)
95. The first issue for determination is whether the running sheets were documents of a kind which ought to have been disclosed by the prosecution. Although there is no doubt that the prosecution is under a duty to disclose relevant material in its possession, just what is encompassed in that duty is not clearly defined and is, in my opinion, still evolving. I am conscious that there is something of an amalgamation of two separate issues: one is the prosecution duty of disclosure as a matter of fairness to an accused person, a duty which exists independently of any active procedures instigated on behalf of that person to obtain access to documents; and the other is the duty of the prosecution, under subpoena, to produce documents which might not otherwise fall into that class. This latter matter is, in this case, complicated by the negotiations between the parties of which Mr Bonnici gave evidence, which resulted in an agreement, apparently satisfactory to the applicant’s legal advisors, that no call on the subpoena would be made. Further, it may be possible to distinguish between the prosecution’s duty to provide copies of documents, as part of the prosecution brief, and its duty to disclose the existence of documents, and to make them available to the legal representatives of an accused person to inspect should they choose to do so. It should not be overlooked that an extravagant supply of material may be oppressive, and as productive of unfairness as improper non-disclosure. Having said that, and without wishing to be definitive, it is my view that, in the normal course (and subject to legitimate and properly considered claims for privilege or public interest immunity) running sheets fall into the category of documents the existence of which ought to be disclosed, and which ought at least to be made available for inspection. My tentative view, further, is that it is going too far to suggest that it is part of the prosecution’s function to anticipate any defence that might be raised, examine its documents for reference or entries or items that might be of assistance in pursuing that defence, and make an evaluation as to their potential usefulness in that respect. Yet that is what at one point was her put on behalf of the applicant – that is, that the prosecution ought to have anticipated the “rip-off” defence, and disclosed those two entries recording corresponding suspicions on the part of unidentified Chilean police.
104. For the present contention to be accepted, it would be necessary that the applicant establish that, had those entries in the running sheets been available to him at the time of the trial, they may have provided some basis of support for his defence, which was rejected by the jury, that his mind was not engaged in the conspiracy and that his purported involvement was no more than a charade. Further, he would have to establish that this material was of itself of probative value, or such as to give rise to lines of enquiry that may have produced material of such probative value, that, by reason of its non-disclosure, he was deprived of a reasonable chance of acquittal. No such ground of appeal was ever formulated and no such contention was ever made in the course of the rather diffuse argument. The references to the “rip-off” suspicions could not be said to have been more than glancing. The most that was said was that the material “would have been relevant”; and that counsel who appeared for the applicant at the trial would have “attempted to use it in furtherance of the defence case”.
105. I am quite satisfied that no such ground of appeal was ever raised and that the submissions made on behalf of the applicant on 5 April cannot reasonably be interpreted as having raised such an issue. Some support for that view can be obtained from the absence of any application to amend, or reformulate, the grounds of appeal. For this reason I would reject at the threshold the argument that the applicant was denied procedural fairness by the failure of this Court to deal with an issue raised on his behalf.
Barr J (wouild dismiss the application to reopen the appeal on the basis that the appellant had not lost a real chance of acquittal)
113. I have had the advantage of reading the draft judgments of Hodgson JA and Simpson J. I agree, for the reasons given by Hodgson JA, that the application should be dismissed because the Court has no power to reopen the appeal.
1. I agree with Simpson J.
2. The appellant appeals against his conviction by a jury in the Bega District Court on 23 September 2003 following a trial which began on 18 September. He was convicted on one count of aggravated sexual assault and one of sexual intercourse without consent, both alleged to have been committed on 17 November 2002 at Moruya and to have involved the same complainant.
6. Significantly, the appellant claimed that he had, on 18 May 2002, been involved in a motorcycle accident, in which he had seriously injured his left arm, and that, in November 2002, he retained significant disability in that arm, as a consequence of which it would have been physically impossible for him to restrain the complainant in the way she had described in her evidence. He also gave evidence that, even as at the date of trial, he retained significant disability in his left arm. Medical records establishing injury to his arm on the date alleged were tendered.
9. The Crown sought, and was permitted, to call a case in reply. The sole witness called in reply was Mark Stanley Duncan, an officer of the Department of Corrective Services. Mr Duncan’s evidence in chief was brief. It was that, on Tuesday 16 September 2003 (that is, six days before the appellant gave evidence) he (Mr Duncan) was on duty at the cells of the Batemans Bay Court where the appellant was in custody. At about 3.30 pm on that day he observed the appellant in his cell, doing push-ups. Mr Duncan described these as
“close grip push-ups as opposed to a wide grip push-up”.
10. Mr Duncan demonstrated the appellant’s hand position as he had observed it. This was described by the Crown Prosecutor for the transcript without dissent from counsel for the appellant as:
“... hands in front of himself and thumbs splayed and about what, 25 centimetres between the middle of the two hands.”
11. Batemans Bay cell complex is under 24 hour video surveillance. Tendered into evidence was a videotape taken in the cell occupied by the appellant on 16 September 2003. This showed the appellant performing exercises of the kind described by Mr Duncan. In cross-examination it emerged that the videotape shown was taken at about 5.00 pm on that day. Mr Duncan acknowledged that what was depicted on the videotape was not the incident he had observed at 3.30 pm. During the course of the appeal, counsel agreed that what could be seen on the 5.00 pm videotape accorded with what Mr Duncan had said he had observed at 3.30, that is, the appellant performing push-ups in his cell. (Thus, the jury had evidence of two occasions on one day when the appellant was able to, and did, perform push-ups.)
14. Detective Michael MacPherson gave evidence that he had been called in to investigate the complainant’s allegations on the evening of 17 November. Having regard to the limited nature of the grounds of appeal, it is unnecessary to canvas the bulk of the evidence given by Detective MacPherson. However, one aspect of the cross-examination needs to be noted. It was put to him that, by 27 November 2002, he had known that there had been raised on the appellant’s behalf a question about the alleged injury to his left arm. Detective MacPherson agreed that he knew that as at the date of giving evidence (22 September 2003) but could not recall when that had first come to his attention. Nor could he recall the circumstances in which he had become aware of the appellant’s assertion. This cross-examination was the last evidence given in the Crown case (Detective MacPherson having given evidence in chief, but not in cross-examination, on 19 September, and having been recalled for further evidence in chief and cross-examination on 22 September). Immediately after Detective MacPherson had retired from the witness box the appellant commenced his evidence.
15. He appears to have done this as a result of having heard the cross-examination of the complainant. Mr Duncan made a statement on Sunday 21 September setting out his observations. Neither the contents of the statement nor the existence of the video tape was disclosed to the appellant’s legal representatives until after the appellant had completed his evidence.
17. Although it cannot be doubted that the prosecution is under a duty to disclose to the defence relevant material in its possession, the precise scope of that duty cannot be so clearly defined. Perhaps the most succinct, and commonly adopted, statement of the obligation was that originally derived from a 1993 UK decision in a matter identified as Melvin and Dingle (20 December 1993) and adopted by the English Court of Appeal in R v Keane  2 All ER 478, which is in the following terms:
“I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:
(1) to be relevant or possibly relevant to an issue in the case;
(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).”
This test was again adopted by the English Court of Appeal in R v Brown (Winston)  UKHL 33;  AC 367. I take the second category to be intended to refer to a new issue that would not be apparent to the accused person from the evidence the prosecution proposes to use – that is, a new issue that becomes apparent by reason of the material whose disclosure is in question.
25. The reference to material which might assist the defence has to be considered in the context of the trial under consideration. The Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice, and cannot be expected to foresee. Here, the appellant declined to be interviewed by police and did not expressly reveal what his defence might be. That said, having regard to the DNA and fingerprint evidence, the Crown might reasonably have foreseen that, if the appellant were to persist in defending the charge, the only avenue of defence open to him was to claim that the activity was consensual. But that is not an answer to the question of what it was that it is now suggested the Crown ought reasonably to have foreseen. What it is now suggested the Crown ought to have foreseen was that the appellant would assert that he condition of his left arm in November 2002 rendered him physically incapable of restraining the complainant as she alleged he did, and, further, that he would seek to support that assertion by claiming that, as at the date of trial, that incapacity remained with him. Then, it is suggested, the Crown ought, in discharge of its duty of disclosure, have alerted the appellant to its knowledge of his capacity, in 16 September 2003, to do push-ups, in order to deflect him from making that false assertion.
28. There was no reason for the Crown to disclose the statement of Mr Duncan or the videotape until the appellant had given the evidence he gave of continuing incapacity. The only purpose of providing the statement or the videotape to the appellant prior to that evidence would have been to deter him from making a statement in evidence which the Crown had material to disprove. The Crown had no reason to anticipate that the appellant would embellish his evidence about his 2002 incapacity by asserting the same incapacity continuing to 2003. While it would not be proper for the Crown to create a trap for an accused person, there is no Crown obligation to deter an accused person from creating a trap for himself; nor need it anticipate that he will do so.
54. I agree with Simpson J.
"(1) That the proceedings against [the respondent] be stayed until such time as the Crown discloses to the Defence, materials relating to communications between member of the New South Wales Police Force and Melanie Brown in relation to the investigation into the matters which are the subject of the charges against [the respondent], currently in possession of the New South Wales Police.
(2) Such other orders as the Court sees fit."
RS Hulme J
“1. Magistrate Clisdell erred in finding that the items identified in paragraph 1.2, 1.3, 1.4, 1.6 and 1.8 of the notice of motion were not items required to be produced by the prosecution in compliance with its duty of disclosure.
“It was accepted for the Crown that there is no onus on the defence to demonstrate a forensic purpose in relation to material said to be subject to the Crown’s duty of disclosure. This is clearly correct: the defence is simply not in a position to know what this material is. It seems to me 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. The Crown has all the material available to it, and one basis of the rule about disclosure is that it is to ameliorate the inequality of resources as between the Crown and the accused. In those circumstances, 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….”
Kiefel CJ, Keane and Gleeson JJ (would dismiss the appeal as the duty to disclose was not enlivened)
"I have also enclosed an updated Crown brief index. If there are any outstanding items, please let me know as a matter of urgency and I will provide these items to you."
The appellant's lawyer did not respond to this request.
"Ms Birchill ... said that she attended boot camps conducted by the appellant in around 2012, including at Hudson Park early in the morning. In her statement, she said that people attending the class put their stuff near the toilet block, and that while she only used the toilet there once, the accused had a key to it. She said she had had a conversation with him 'where he told me he had applied to the Council for permission to use the park and that's why he had a key to the toilet block'."
Provision of the Cellebrite Download to the appellant's lawyer
Appeal to this Court
31 As the appellant observed, the prosecution was able to mine the Cellebrite Download for useful information prior to the trial and ultimately the prosecution identified relevant, and arguably critical, evidence by searching the Download. On that basis, the appellant argued that there was an inequality of arms: the appellant's lawyers, who did not have a copy of the Download (although they could have asked for one), did not have the same ability. No doubt, the ODPP could have provided a copy of the Download to the appellant cheaply and easily, without waiting for any request from him and thereby obviating any perception of unfairness. On the other hand, if the appellant gave instructions suggesting inquiries that could have been pursued by searching his telephone, there was no impediment to the appellant calling for a copy of the Download, readily searchable, because its existence had been clearly identified by the ODPP.
32 The appeal must be dismissed.
Edelman and Steward JJ (would dismiss the appeal as the failure to disclose was not productive of any miscarriage of justice)
Breach of the prosecution's obligation of disclosure
The common assumptions
62. A common assumption underlying the submissions in this Court was that the Cellebrite download was "any information, document or other thing" within the terms of s 142(1)(i). The respondent did not make any submission about whether the Cellebrite download, as a searchable database, fell within the category of information, document, or other thing, or whether it fell within more than one of those categories. Whether or not it also fell within other categories, Mr Edwards correctly submitted that the contents of the Cellebrite download fell within the category of "document" as defined in the Dictionary to the Evidence Act 1995 (NSW), which, like the Interpretation Act 1987 (NSW), defines a "document" as meaning "any record of information" and relevantly includes "anything from which sounds, images or writings can be reproduced with or without the aid of anything else". Clause 8 of Pt 2 of the Dictionary to the Evidence Act also provides that a reference in the Act to a "document" includes a reference to "any part of the document".
63. A further common assumption underlying the submissions in this Court was that, at the time of pre‑trial disclosure, the duty in s 142(1)(i) was engaged because the contents of the Cellebrite download "would reasonably be regarded as relevant to the prosecution case or the defence case". The whole of the respondent's argument concerning the scope of the exception in s 142(1)(i), which we consider below, was premised upon an assumption that the duty in s 142(1)(i) was engaged. This assumption was also correctly made. Like the approach taken by the common law to expressions such as "an issue in the case" or "all relevant evidence of help to the accused", the expression "would reasonably be regarded as relevant" must be applied at a high level of generality. This is particularly so because the prosecution might be required to assess relevance to the defence case for the purposes of the prosecution's notice before receiving the defence response and possibly even without the benefit of any substantial comments in a video record of interview.
64. Ascertaining what "would reasonably be regarded as relevant" for the purpose of s 142(1)(i) does not mandate an adjudication about the actual relevance of the information, document, or thing. Rather, it imposes a requirement to assess fairly the inherent likelihood that an item of evidence is going to be relevant to either the prosecution or defence case. The phrase "be regarded" directs attention to the potentiality of evidence to be relevant, and the phrase "would reasonably" excludes any necessity to disclose material that is only possibly or remotely relevant.
65. In this case, at the time the prosecution's notice was given, and subsequently, the record of information contained in the Cellebrite download would reasonably have been regarded as relevant to the prosecution case or the defence case. It included, and should reasonably have been regarded as including, telephone contacts, GPS information, calendar entries, and text messages between Mr Edwards and clients of his boot camps. Some of that information proved to be very significant to the prosecution case.
The Cellebrite download was not otherwise disclosed
67 The respondent submitted that the prosecution was not required by s 142(1)(i) to provide Mr Edwards with a copy of the Cellebrite download because a copy of that download had "otherwise been disclosed" to him within the exception to the duty in s 142(1)(i). The respondent pointed out that the prosecution informed the defence of the existence of the Cellebrite download on numerous occasions prior to trial and that the Court of Criminal Appeal had treated this as sufficient disclosure:
(1) On 16 April 2018, the prosecution provided Mr Edwards' solicitor with a "notice of prosecution case", which included a brief index and cover page saying that "[a]ll statements and documents proposed to be relied upon at this time by the prosecution have been served as part of the brief of evidence". The index contained 27 items. One of those was "Hard-Drive containing: a) Phone Download Report – Scott Edwards (iphone 6 EFIMS X0002614993)". The hard drive itself had not been provided. In an email dated 17 April 2018, a solicitor at the OPP asked Mr Edwards' solicitor to "Please let me know if there are any brief items at Annexure C that you don't have". An updated brief was provided to Mr Edwards' solicitor on 3 May 2018, which also contained a reference to the hard drive.
(2) One of the statements contained in the prosecution brief was from Senior Constable Rowe, who referred to Mr Edwards' phone in his statement and said: "I utilised a Cellebrite phone downloading device to obtain information stored on this phone. This download was then created into an electronic report. I now produce download report". No download report was contained in the brief.
(3) On 8 May 2018, the prosecution supplied a "proposed witness/exhibit list" to Mr Edwards' solicitor and asked Mr Edwards' solicitor to confirm whether any of the witnesses marked "not required" by the prosecution were required by Mr Edwards. Senior Constable Rowe was listed as "not required".
70. The only possible textual indication to the contrary, upon which the respondent relied, is that s 149D exempts the prosecution from including in a notice anything that "has otherwise been provided or disclosed to the accused person". The respondent submitted that the use of "disclosed" as an alternative to "provided" meant that disclosure was more limited than "providing". That submission is not correct. The mandatory pre‑trial "disclosure" required by ss 141 and 142 cannot possibly be understood as requiring anything less than physical provision of documents including a copy of the indictment, a statement of facts, or a copy of the statement of each witness whose evidence the prosecutor proposes to adduce at trial. The expression "provided or disclosed" in s 149D uses "disclosed" in the same sense as its meaning in ss 141 and 142, overlapping with "provided" when a physical document or thing in the possession of the prosecution is concerned, but otherwise extending to merely providing the defence with information.
71. The respondent's submission is also inconsistent with the context and history of the concept of "disclosure" in s 142(1)(i), and the cognate provision in s 15A of the Director of Public Prosecutions Act. As explained above, disclosure in the Director of Public Prosecutions Act requires a physical document or thing to be provided. It is notable that the respondent eschewed any submission that the police had not been required to provide the Cellebrite download to the Director.
72. As to purpose, if the respondent's submission were correct then the functions of s 142(1)(i) concerning case management and reduction of delays would be substantially impaired. The prosecution would be obliged to inform an accused person of the existence of a large database repository of electronic information but not obliged to provide any of that information to the defence prior to trial. Since the prosecution is not required to interrogate any database in order to ascertain which items within it are relevant to the defence case, the consequence of the respondent's submission would be that the larger the field of potential disclosure, the more uncertainty would exist and the greater the potential for injustice for an accused person. In other words, in situations where the most clarity is required in the course of case management, s 142(1)(i) would provide the least clarity.
73. For these reasons, the failure of the prosecution to provide Mr Edwards with a copy of the Cellebrite download was a breach of the duty in s 141(1)(a) by reason of a failure to comply with s 142(1)(i) of the Criminal Procedure Act.
84 The evidence of Ms Elliott's text messages could not have had any impact upon the trial at all. Her messages concerned boxing training sessions that Mr Edwards would conduct for her and sometimes for her children. It appears from the texts that all the sessions were in the afternoon and most, if not all, were held at Mr Edwards' home. On the evidence before this Court, the only fact that Ms Elliott could have established was that Mr Edwards had clients, whom he generally trained at his home, separately from the boot camp sessions that he said in his video record of interview were conducted at Alder Park or the beach at 6 am. The existence of other clients of Mr Edwards who were trained at a different place from the boot camps was not capable of having any effect upon the case.
85 The appeal must be dismissed.