Criminal Law - Witnesses - Power of Crown to call or refuse to call witnesses - Notice and disclosure to accused - Non-disclosure of evidence affecting manner in which defence conducted.

McCullough v R [1982] Tas R 43; R v Smith [2007] QCA 447; (2007) 179 A Crim R 453; R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim 531; Mahmood v Western Australia [2008] HCA 1; (2008) 180 A Crim R 142; Ragg v Magistrates Court (Vic) [2008] VSC 1; (2008) 179 A Crim R 568, referred to.

Criminal Rules 2006 (Tas), r3H.

Judgment Number: [2008] TASSC 87

1 The accused was indicted on one count of assault alleged to have been committed in company on 6 October 2007 in Elizabeth Street, North Hobart. A second man, jointly charged on the same indictment with the assault and a second act of intentional bodily harm, has been dealt with separately. During the course of trial the jury was discharged and a retrial ordered.

2 The prosecution case as presented at trial was that an inebriated man who had approached three men seated in a motor vehicle, became engaged in a confrontation with the third man and was then assaulted by the other two. The assault alleged was that of punching and kicking. There was cogent evidence in support of the allegation. A significant matter supportive of the prosecution case was the extent of the injuries suffered by the complainant. Those injuries included grazes and bruises to the face, cuts to the lip, chipped teeth and "a fracture to [the] left orbit which required surgical repair". The medical practitioner who gave evidence based on hospital records, stated:

"It was what we call a pure orbital blow out fracture which involves a fracture of the orbital floor, so that's the eye socket, the floor of the eye socket. Usually it requires blunt trauma to induce it basically"

and gave as her opinion that in relation to the fractured orbit:

"No mechanism's characteristic of any particular injury but more likely to be a direct blow from front on."

3 Counsel for the accused examined the doctor on the hospital records in the following exchange:

"I see and the history that Mr Heffernan relates of the evening was that he consumed some alcohol, about 8 stubbies, is that correct?.............That's what's written on his page, yes.

And it was also reported that he was assaulted by a group of people. Is that what the document said?.............Yes.

And the document also says that he'd fallen through glass window and in brackets 'as per TAS' which would be 'as per Tasmanian Ambulance Service'...........Correct.

Yes, is there any other information in your records about him falling through a glass window. Is there anything to say what window he fell through or what store he - .........No.

No. Are you able to say what, if any injury was caused by Mr Heffernan falling through the glass window?.............No."

4 I interrupted counsel and raised the question of hearsay in the terms:

"HIS HONOUR: Well, assuming he did - you've secondary hearsay and tertiary hearsay. There's a report the he, in the hospital, which says 'assaulted by a group of people' and then it seems in your notes there something which says 'fell through glass window, TAS' meaning reported to the hospital by the ambulance service. That's how this works, is it?

WITNESS: Correct.

HIS HONOUR: Now, you've - haven't got those two links, we've now got established as a fact that he fell through glass windows and which injury did he suffer?

MR BEARMAN: Well, I might take that -

HIS HONOUR: Were there any injuries suffered by - were there any injuries observed by the admitting staff consistent with cuts or consistent with cuts which could be caused by broken glass or windows and if you -

WITNESS: No, those injuries are more consistent with blunt trauma."

5 The jury was discharged before the conclusion of the prosecution case, thus the import of the above line of questioning was not then disclosed. The extent of the injury and its cause might have been relevant to the questions of the degree of force used in the assault by kicking and/or lawful self-defence.

6 The complainant had given evidence that he had "walked through a bunch of people and then got pushed and then got knocked out". His next recollection was waking up in an ambulance "and that's all I remember". In cross-examination he stated that he could not recall telling any ambulance officer that he had fallen through a window.

7 The last witness called by the prosecution was a Detective Constable who had conducted the investigation and interviewed the accused. Counsel attempted to establish the subsequent event of falling through a glass window through the witness, an attempt objected to by prosecuting counsel which is evidenced in the following exchanges:

"MR BEARMAN: Detective did you read Mr Heffernan's statement?......Yes.

And do you agree that it refers to police officers being at the scene when he's in the ambulance?..........I don't recall but it's in the statement I would've heard.

Did you make any enquiries of any police officers that may have attended the scene that night?.........I did speak to a few police officers but no one actually I believe actually went to the scene.

HIS HONOUR: Just wait. You may go on now counsel.

MR BEARMAN (resuming): Were you aware that Mr Heffernan had reported to staff at the Royal Hobart Hospital that he fell through a window?........I'm aware of that incident yes.

What can you tell the Court about that?.......Apparently after the assault -

MS BROWN: Well your Honour that's inviting a hearsay response. If this officer didn't attend that evening then he can't give evidence about (indistinct words) concern.

HIS HONOUR: The State's in possession of material, is it not, which relates to possible claim of falling through a window. Is it - the State in possession of that information?

MS BROWN: The, the -

HIS HONOUR: Is the State in possession of that form of information?

MS BROWN: Yes your Honour.

HIS HONOUR: Did the State supply it to the defence?

MS BROWN: Yes your Honour.

HIS HONOUR: Right so does the State have - the State chose not to lead evidence.

MS BROWN: We didn't - evidence was led to the extent that there was evidence your Honour. My concern is that this officer has been asked, do you know what was in the - what was reported.

HIS HONOUR: Yes, okay, I understand that, so you can call - the State can call evidence which is not hearsay evidence or you've supplied a statement to the defence relating to this matter. Well, have you?

MS BROWN: No, your Honour, just the medical report that my friend. The reference in the medical reports.

HIS HONOUR: Then there hasn't been full disclosure?

MS BROWN: Well, your Honour, we don't have a statement. I don't have a statement from, about the incident of the falling through the window or whatever may have occurred.

HIS HONOUR: Would you go to your room, please members of jury, and I'll try and sort this."

8 The defence had requested relevant material from police prosecutions on 8 April 2008 and some material was forthcoming. Ambulance and medical records were supplied to the defence on 21 November 2008, at which time counsel first became aware of the reported fall through a window. On 27 November, counsel spoke with Ms Brown who confirmed "that the complainant had actually fell [sic] through the window". Mr Bearman stated that there had been a discussion as to "who, if anyone, would be coming along to give evidence to that effect", to which Ms Brown replied "Simply that the doctor would along to give his evidence". Ms Brown told the Court:

"In relation to the conversation about the Doctor providing evidence and the window I suggest there was a window, contact with a window subsequent, I said:

You're not suggesting that these injuries are from there are you?

I didn't follow it up. I did ask for a statement to be provided, I haven't received that. In terms of where we go from here there is a CACCS record which counts as a business record, which, it's not in issue that there was a - some contact with a window subsequent."

"I have just asked my associate clerk, sorry, to go and find one of the officers who was there that evening. We will have a CACCS that this officer can speak to if we're unable to get one of those officers to give evidence that subsequent to this, not at the time of the assault, not in the vision of the taxi driver, subsequent to this there was contact with a window and we have evidence from the doctor that it's not likely that these injuries occurred as a result of a window and the jury know that the injuries aren't the essence of the charge so your Honour one way or the other we can appropriately put before the jury the facts about that -"

9 No proof had been supplied to the defence. On 27 November the prosecution requested, by email, the defence "to accept an agreed fact with regard to the complainant's injuries". On 1 December the defence requested the doctor's proof of evidence by 2 December and received a reply that "the medical material to be relied upon will be in terms of the report contained in the papers". There is no reference to the "window incident" in the papers.

10 The trial commenced on 8 December. The defence sought the discharge of the jury on the following day, a course opposed by the prosecution. In opposing the application Ms Brown submitted:

"In my submission, even aside from all of that your Honour, my submission is the injuries are primarily at the end of the day a matter for the - if there is to be a sentencing hearing a matter for that time because it's - I know it's trite to say, but it's an assault and we have evidence of an assault and we have evidence from the accused that he did punch this person. The issue's whether it was lawful, not whether certain injuries were sustained as a result of both of those assaults and later on a punch to a window. Was this man assaulted unlawfully? We have two eye witnesses saying, these are the terms of the assault. There was definitely contact. We have the accused saying there was definitely contact and then we have the two eye witnesses saying there was contact whilst he was on the ground. That, in my submission, is not, the fact that the complainant then punches a window does not take away from those issues and does not go to those issues. I'm not saying that it's not, that injuries, if he had sustained injuries later it may not have been relevant but the evidence as it is, is that the injuries are consistent with blunt force trauma as opposed to going through a window. We now have material before us, whilst it's not before the jury, that there was a punch to the window as opposed to falling through. We have no evidence that Mr Heffernan ever told anyone that he fell through, we just had that it was recorded by the Tas Ambulance Services and we have the police officer who was there on the night who's able to assist to put the proper picture before the jury and I submit that there's no prejudice should that be allowed to be done that if we're unable to deal with the BASHA [sic] this morning and move on, that we adjourn for a short period of time to enable that. If it please, those are my submissions."

11 On 9 December prosecuting counsel provided additional documentation. Ms Brown had obtained:

(1) An incident report which recorded that the complainant had "been assaulted, he then walked down the street and punched the window".

(2) A copy of a summons dated 18 November 2007 alleging that the complainant had on 6 October 2007 at North Hobart unlawfully destroyed property, namely one window.

(3) Three witness statements made on 7 October, 1 and 11 November 2007, taken from persons who had witnessed the "window incident" or its surrounding circumstances.

(4) A supplemental proof of a police officer who had attended the scene of the assault, taken one of the witness statements referred to above, observed an injury to the complainant's hand, and who, some days later, advised the complainant that "he would be proceeded with by way of summons" in respect of the window incident.

12 The defence claimed that the earlier provision of that material could have been used to challenge the credit or credibility of the complainant and put in issue the cause of the injury or injuries suffered by the complainant. The defence did not accept that the recall of the witness and the medical practitioner, and a preliminary examination of the witnesses in the absence of the jury, remedied the unfairness caused by the failure to disclose potential relevant material. Mr Bearman further claimed that no material had been provided by a second attending police officer or either of the ambulance officers, and a further proof was required of a medical practitioner as to causation. The remedy of a more lengthy adjournment, given the stage of the trial, was not a feasible option for the Court. Accordingly the jury was discharged.

13 The defence had twice written to the prosecution seeking disclosure of what it regarded as relevant evidence. Defence counsel had spoken with prosecuting counsel and raised the matter further. The material provided by the prosecution on 21 November did not adequately respond to the request by defence counsel. This was not a case of the defence complaining of omission of matters accidentally stumbled across during a trial or volunteered by a witness.

14 The response by the prosecution that the material sought would have added little to the case does not sufficiently address the question of fairness. It is not for the prosecution to determine the parameters of the issue or issues open to a person on trial. It is not for the prosecution to determine relevance from its vantage. The evidence of the "window incident" might have advantaged the prosecution by showing the complainant to have been harmed by the preceding assaults and was but a hapless automaton who fell through a window. The "window incident" might have advantaged the defence. It was not for the prosecution or this Court to determine potential use at trial. Relevance, admissibility and the like remained the province of the Court in dealing with proposed evidence, but its intended import remained the responsibility of the parties. In many instances a missing piece of evidence can be placed before the jury, by agreement between counsel, through questioning of an investigating officer as to material obtained in the course of that investigation. Defence counsel attempted this course but was met with objection made by prosecuting counsel. The problem might, with accommodation, have been dealt with simply.

15 The general question of the duty to disclose relevant material to an accused person before trial was raised during this hearing. Here the defence had identified potential material, but the request was not dealt with appropriately. When defence counsel attempted to rectify the omission in cross-examination, his form of questioning was objected to by the prosecutor. Prosecuting counsel opposed the application for the discharge of the jury and objected to anything other than a brief adjournment of some hours. This case is not a vehicle for any detailed examination of the obligations and limitations of disclosure. But it is apposite to state some general principles. The starting point is that it is neither the duty of the State nor prosecuting counsel to seek a conviction by any means (McCullough v R [1982] Tas R 43; R v M [1992] 1 Qd R 68; R v Smith [2007] QCA 447; (2007) 179 A Crim R 453). The duty is to ensure that a person charged is afforded a fair trial (R v Horseferry Road Magistrates' Court, Ex p Bennett [1993] UKHL 10; [1994] 1 AC 42; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292). The extent of disclosure might vary according to the seriousness and/or complexity of the particular case but the initial obligation for disclosure is that of prosecuting counsel (R v Vincent and Franklyn [1993] WLR PC; R v Stinchcombe [1991] 3 SCR 326). In some Australian jurisdictions there are statutory requirements, (eg, Crimes (Criminal Trials) Act 1999 (Vic); R v Fisher and Broster [2003] NSWCCA 41) and in others adherence to common law principles, (R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim 531). It is not appropriate for investigating officers to determine disclosable material which ought remain the province of the Director of Public Prosecutions (R v Solomon (2006) 92 SASR 331).

16 The extent of the obligation for disclosure has been described as including:

(1) (a) subject to privilege, all material documents that are relevant or possibly relevant;

(b) material which raises or possibly raises a new issue the evidence of which is not apparent from the evidence the prosecution intends to use;

(c) material which might provide an intimation or commencing point for evidence which goes to the above;

(2) the duty does not extend to material relevant only to the credibility of an accused;

(3) the prosecution cannot be expected to disclose material in its possession that might assist a defence of which it has no notice and cannot be expected to foresee;

(4) it would not be proper for the prosecution to use non-disclosure to create a trap for an accused person;

(5) contemporary documents created by police in the course of surveillance or undercover operations should be disclosed if they come within proposition (1) stated above;

(6) non-disclosure can result in a miscarriage of justice (see generally R v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117; R v Reardon (No 2) [2004] NSWCCA 197; (2004) 146 A Crim R 475; R v Spiteri [2004] NSWCCA 321; (2005) 61 NSWLR 369).

17 Partial or selective disclosure, especially for a purpose not disclosed until late in the trial, might raise an appellate question of whether the jury should have entertained a reasonable doubt about the guilt of the accused (Mahmood v Western Australia [2008] HCA 1; (2008) 180 A Crim R 142). The obligation extends to "unused material" which weakens the prosecution case or strengthens that of a defendant, but which is not relied on as part of the formal case of the prosecution (R v H [2004] UKHL 3; [2004] 2 AC 134; Ragg v Magistrates Court (Vic) [2008] VSC 1; (2008) 179 A Crim R 568).

18 There is a useful compilation of statements of principle or guidelines in the publication of the Commonwealth Director of Public Prosecutions, Statement on Prosecution Disclosure, a copy of which is appended to this ruling.

19 Following discharge of the jury, the Court conducted a directions hearing in accordance with the Criminal Rules 2006, r3H, and the problems raised by the defence were addressed. These rules are the appropriate vehicle for determining the necessary ambit of disclosure and will require counsel to consider the issues of general principle and identify expressly, and with precision, the forensic purpose for which access to documents sought or disclosure required, Ragg v Magistrates Court (Vic) (supra).

2.1 In summary matters 2

2.2 In indictable matters 2

3. Disclosure affecting credibility or reliability of a prosecution witness 3

3.1 Previous convictions 3

3.2 Adverse findings in non-criminal proceedings 4

3.3 Concessions to witnesses 4

3.4 Timing of disclosure affecting credibility or reliability of a prosecution witness 4

4.1 Obligation to disclose unused material 5

4.2 Exceptions to the requirement to disclose unused material 5

4.3 Timing of disclosure of unused material 5

4.4 How unused material should be disclosed 6

4.5 Unused material held by third parties 6

4.6 Other material 6

This statement sets out the CDPP's disclosure obligations in the cases it prosecutes.

• any information in relation to the credibility or reliability of the prosecution witnesses; and

• any unused material (see section 4.1).

Disclosure requirements continue throughout the prosecution.

The requirements imposed by this statement are to be complied with subject to any laws which are applicable in the prosecution of Commonwealth offences, including State and Territory laws and the National Security Information (Criminal and Civil Proceedings) Act 2004.

There are exceptions to the requirement to disclose material to the defence. These exceptions include situations where the material is immune from disclosure on public interest grounds, where the disclosure of the material is precluded by statute or where legal professional privilege applies to the material. These exceptions to disclosure are discussed below.

There is no general disclosure obligation imposed under this policy where a defendant intends to plead guilty to charges in the summary jurisdiction.

Where the defendant has entered a plea of not guilty in proceedings for summary conviction the CDPP should provide the defence with the following:

• copies of any written statements by persons whom the prosecution intends to call to give evidence at the hearing. If the prosecution intends to call a person who has not made a written statement, the defence should be so advised.

• reasonable access to inspect proposed exhibits and, where it is practicable to do so, photocopies or photographs of such exhibits.

This material should be provided to the defence with as much notice as is reasonably practicable.

In each Australian jurisdiction there is provision for disclosure of the evidence relied upon by the prosecution in matters proceeding on indictment. In most cases, this disclosure takes place in the course of committal proceedings.

When the prosecution intends to rely on evidence that was not disclosed during the committal, the additional evidence should be disclosed to the defence with as much notice as is reasonably practicable.

If the prosecution intends to call a witness whose evidence was not relied on at the committal, the defence should be provided with a copy of the witness's statement or, if the witness has not made a written statement, the defence should be informed of the essence of the witness's anticipated evidence. The defence should also be provided with reasonable access to any proposed exhibit which was not relied on at the committal hearing and, where it is practicable to do so, a photocopy or photograph of any such exhibit.

Where the prosecutor is of the opinion that to disclose evidence is likely to lead to a witness being intimidated or result in some other interference with the course of justice, the prosecutor may delay disclosing the evidence until a time more proximate to the witness giving evidence. In summary matters, the prosecutor may decline to disclose the evidence. Where particular information has been withheld in accordance with this paragraph the defence should be so informed.

3. Disclosure affecting credibility or reliability of a prosecution witness

The prosecution is under a duty to disclose to the defence information in its possession which is relevant to the credibility or reliability of a prosecution witness, for example:

• a relevant previous conviction or finding of guilt,

• a statement made by a witness which is inconsistent with any prior statement,

• a relevant adverse finding in other criminal proceedings or in non-criminal proceedings (such as disciplinary proceedings, civil proceedings or a Royal Commission),

• evidence before a court, tribunal or Royal Commission which reflects adversely on a witness (eg allegations in relation to civil penalty proceedings or dishonesty offences which are yet to be finalised),

• any physical or mental condition which may affect reliability,

• any concession which has been granted to a witness in order to secure that person's testimony for the prosecution.

It is not possible for investigating agencies to conduct criminal checks for all prosecution witnesses. Prosecutors should only request a criminal history check for a prosecution witness where there is reason to believe that the credibility of the prosecution witness may be in issue.

While the duty to disclose to the defence the previous convictions of a prosecution witness extends only to relevant prior convictions, a prior conviction recorded against a prosecution witness should be disclosed unless the prosecutor is satisfied that the conviction could not reasonably be seen to affect credibility having regard to the nature of, and anticipated issues in, the case. In that regard, previous convictions for perjury and offences involving dishonesty should always be disclosed.

The defence may request that the prosecution provide details of any criminal convictions recorded against a prosecution witness. Such a request should be complied with where the prosecutor is satisfied that the defence has a legitimate forensic purpose for obtaining this information, such as where there is a reason to know or suspect that a witness has prior convictions.

Where a prosecution witness has been the subject of an adverse finding in other criminal proceedings or in non-criminal proceedings (such as disciplinary proceedings, civil proceedings or a Royal Commission), the matter should be disclosed to the defence unless the prosecutor is satisfied that the finding could not reasonably be seen to affect credibility having regard to the nature of, and anticipated issues in, the case. Findings involving dishonesty should always be disclosed. On the other hand, it may not be necessary to disclose adverse findings, for example, of inefficiency, incompetence or disobedience to orders.

• any concession provided to a witness with respect to his or her involvement in criminal activities in order to secure his or her evidence for the prosecution, whether as to choice of charge, the grant of an undertaking under subsection 9(6) or subsection 9(6D) of the Director of Public Prosecutions Act 1983 or otherwise,

• any monetary or other benefit that has been claimed by, or offered or provided to, a witness. This does not include any payments made in the ordinary and usual course of securing the evidence of a witness (eg the payment of travel and accommodation expenses or the fees of expert witnesses) and disclosure will be subject to any legislative requirements such as witness protection legislation,

• where the witness participated in the criminal activity the subject of the charges against the defendant, whether the witness has been dealt with in respect of his or her own involvement and, if so, whether the witness received a discount on sentence as a result of undertaking to cooperate with law enforcement authorities in relation to the current matter.

3.4 Timing of disclosure affecting credibility or reliability of a prosecution witness

Where the prosecution is in possession of information which is relevant to the credibility or reliability of a prosecution witness that information should be disclosed to the defence:

• in matters to be disposed of summarily - as soon as reasonably practicable after the defendant has entered a plea of not guilty and the case has been set down for hearing,

• in matters to be dealt with on indictment - prior to the committal proceedings.

The requirement to disclose information affecting the credibility of reliability of a prosecution witness continues throughout a prosecution. If the prosecution becomes aware of the existence of such information during the course of a prosecution which has not been disclosed, that information should be disclosed as soon as reasonably possible.

The prosecution should disclose to the defence unused material.

For the purposes of this statement "unused material" is all information relevant to the charge/s against the defendant which has been gathered in the course of the investigation and which:

(a) the prosecution does not intend to rely on as part of its case, and

(b) either runs counter to the prosecution case (i.e. points away from the defendant having committed the offence) or might reasonably be expected to assist the defendant in advancing a defence, including material which is in the possession of a third party (i.e. a person or body other than the investigating agency or the prosecution) (see section 4.5).

4.2 Exceptions to the requirement to disclose unused material

The prosecution should disclose to the defence all unused material in its possession unless:

• it is considered that the material is immune from disclosure on public interest grounds,

• disclosure of the material is precluded by statute, or

• it is considered that legal professional privilege should be claimed in respect of the material.

Where material has been withheld from disclosure on public interest grounds the defence should be informed of this and the basis of the claim in general terms (for example, that it would disclose the identity of an informant or the location of premises used for surveillance) unless to do so would in effect reveal that which it would not be in the public interest to reveal.

In some cases it will be sufficient to delay rather than withhold disclosure, for example if disclosure might prejudice ongoing investigations, disclosure could be delayed until after the investigations are completed.

In matters to be disposed of summarily the prosecution should disclose any unused material to the defence as soon as reasonably practicable after the defendant has entered a plea of not guilty and the case has been set down for hearing.

In matters to be dealt with on indictment the prosecution should disclose any unused material to the defence prior to the committal proceedings. If committal proceedings are not going to be conducted, the prosecution should disclose unused material to the defence as soon as is reasonably practicable after the defendant has been informed of the decision to proceed with a trial on indictment.

Where the defendant has entered a plea of guilty on indictment the prosecution should disclose to the defence any information in its possession which might reasonably be expected to be of assistance to the defence on the hearing of the plea.

The requirement to disclose unused material continues throughout a prosecution. If the prosecution becomes aware of the existence of unused material during the course of a prosecution which has not been disclosed, that material should be disclosed as soon as reasonably possible.

Where feasible the defence should be provided with copies of the unused material. If this is not feasible (for example because of the bulk of the material) the defence should be provided with a schedule listing the unused material, with a description making clear the nature of that material. The defence should then be informed that arrangements may be made to inspect the material.

If the prosecution has a statement from a person who can give material evidence but who will not be called because they are not credible, the defence should be provided with the name and address of the person and, ordinarily, a copy of the statement.

Where the prosecution is aware that material which runs counter to the prosecution case or might reasonably be expected to assist the defendant is in the possession of a third party, the defence should be informed of:

• the address of the third party (unless there is good reason for not doing so and if so, it may be necessary for the prosecutor to facilitate communication between the defence and the third party.)

• the absence of information available to the prosecutor as to the lines of defence to be pursued, and/or

• the nature, extent or complexity of the material gathered in the course of the investigation,

there may be special difficulty in accurately assessing whether particular material satisfies the description of unused material. In these cases, after consultation with the relevant investigating agency, the prosecutor may permit the defence to inspect such material.

5. Disclosure to CDPP by investigation agencies

This Statement on Prosecution Disclosure relates to information and material held by the CDPP, investigation agencies and third parties. In order for the prosecution to meet its disclosure obligations, the CDPP depends on investigation agencies informing it of information and material covered by this Statement.