By Bill Rowlings, CEO of Civil Liberties Australia
There’s a new, go-to technique for getting judge and jury mistakes overturned: search out how much the police and/or the director of public prosecutions failed to disclose to the defence.
In trials, the DPP is legally obligated to gives copies of any relevant evidence discovered during a crime investigation – by the police, the DPP or any other government agency or expert involved – to the defence lawyers.
They must do so, even if handing over the material would help the defendant “get off”. Dr Bob Moles explains the rules in this seminal paper on Failure To Disclose (FTD), just released.
It’s a basic fairness issue. The reason is people alleged to have committed a crime should not have facts withheld from the jury or judge that might skew their judgement.
Disclosure helps to redress the imbalance that would otherwise characterise an adversarial system in which investigators and prosecution have the backing of the state. …the prosecution usually ‘enters a criminal trial with two advantages: having superior resources and having conducted the investigation that led to the charges being brought’
– Victorian Law Reform Commission
But major cases throughout Australia have been overturned because the police or the DPP failed to provide the mandatory information. It means people wrongfully committed spend many years in jail, innocent. The Crown’s FTD – Failure To Disclose – can also cost the taxpayer big sums. For example, there are cases like:
Mallard in WA, 12 years wrongly jailed because a prosecutor had information that proved Mallard’s “confession” about the murder weapon was a total fantasy, and so he could not be guilty. Two police officers were also found to have acted wrongly. Compensation in 2009: $3.25 million.
Keogh in SA, 19 years in jail, more than nine of them because the Crown failed to hand over a forensic report it had commissioned which led, within a day’s laboratory testing after it was released, to Keogh being freed from jail. Compensation in 2017: $2.6 million.
Eastman in the ACT, 19 years in jail, even though the Australian Federal Police and the DPP failed to provide information that included alleged “expert” forensic testing of gun and bullet test firings was wholly unsatisfactory. Compensation in 2019: $7m.
In current cases in SA, Tasmania and NSW, lawyers for people appealing long sentences are striving to hold police and DPPs accountable for what the lawyers claim are, or may be, failures to disclose vital information.
In Tasmania, the Upper House of Parliament has tabled a series of studies – the Etter-Selby Papers– which at face value show at least five major matters kept from the original judge and jury, and never revealed in two Tasmanian appeal court hearings and two applications for special leave to appeal to the High Court of Australia by Sue Neill-Fraser.
She is out on parole, having served 13 years of a 23-year sentence. She has always denied killing her husband, Bob Chappell, whose body has never been found after going missing from a yacht in Sandy Bay in January 2009. She has a further 10 years of parole conditions to endure before satisfying the original judge’s legally inexplicably long sentence of 26 years, which was reduced on appeal.
Included in material it is alleged the Tasmanian Police have not disclosed is that, for at least three days, they lost a key exhibit of a wind cheater jacket they claimed helped prove the woman’s guilt. It had apparently spent days lying on the floor or benches of the main Hobart police station’s car garage, contaminated by who knows how many unrecorded contacts by hands or tyres.
The police also have never disclosed before any court that potential key suspects in the case had been breaking into moored yachts in the vicinity, stealing alcohol, in the weeks and months before Chappell disappeared.
The duty to disclose is on police and the DPP primarily
Again, it is the responsibility of the police, the DPP and forensic scientists to disclose information that may help the defence, or that could assist a convicted person to appeal.
In the current SA case, Derek Bromley is appealing to the High Court to be acquitted of a crime he was convicted for 38 years ago. He remains in jail because, in SA, he cannot be freed unless he shows “remorse”. He says he cannot show “remorse” for a crime he did not commit.
The case is complicated, and will be decided by the High Court on whether medical discoveries in relation to a person with schizophrenia being capable of a reliable witness should be taken into account. But for decades, the SA government has known that its chief forensic pathologist, Colin Manock, whose “expert” evidence was relied on to convict, was not qualified to give such an opinion. The SA Crown even said so itself in a pay and promotion dispute with Manock.
In any legal case involving evidence by Manock, the SA Crown would appear to have a duty to explain that fact to the court, and to ensure Manock’s evidence was not relied on.
The SA government has failed to disclose this fact to any court in any criminal appeal, ever…not just in Bromley’s case. SA and world-renowned miscarriage of justice expert, Dr Moles, believes 400 criminal cases, dating back half a century, should be reviewed. In some of those cases, people may have got away with murdering babies based on Manock’s unqualified evidence.
Are governments and courts ‘looking the other way’?
SA governments run by both major political parties have refused for decades to act. Presumably, they are embarrassed by how the state’s justice system failed. Shortly, the High Court will be tested in the Bromley case to see whether Australia’s highest national court is prepared to look the other way when judging justice.
In NSW, the conviction of Simon Gittany for what the Crown claimed was throwing his girlfriend off a balcony in central Sydney’s Hyde Park area is being studied to see whether – and, if so, how much – NSW authorities failed to disclose to the defence.
Gittany has never appealed his conviction to the High Court. Discovering something his defence lawyers were not told by the Crown may be his way to achieve a delayed chance to demonstrate his jailing was a mistake.
Then, of course, there’s the Bruce Lehrmann–Brittany Higgins alleged rape in Parliament House, Canberra. Disclosure matters are a source of dispute in this abandoned case.
Unusually, the dispute is between the ACT DPP Shane Drumgold and the AFP’s ACT Policing ‘business unit’, which provides policing services to the Australian Capital Territory.
The high profile dispute in Canberra shows how poorly understood between DPPs and police are the rules and requirements about disclosure.
As recently as late-November 2022, an ACT historical sexual abuse trial was shocked to learn a leading AFP senior constable withheld a fundamental document from the ACT DPP…and the defence legal team.
“The officer said she made copies of the various documents, except for the complainant’s timeline of events, which were then sent to the DPP. She also said that omitting the timeline could have impacted the trial and agreed it was a possibility that her failing in her duties ‘have hamstrung the accused’ in his defence,” as reported by the Canberra Times on 25 November 2022. ENDS
The Victorian Law Reform Commission said, in 2021:
In R v Farquharson, the Victorian Court of Appeal said:
It is axiomatic that there must be full disclosure in criminal trials. The prosecution has a duty to disclose all relevant material. A failure of proper disclosure can result in a miscarriage of justice.
The scope of the duty to disclose extends beyond material that the prosecution intends to rely on for its own case. In Ragg v Magistrates’ Court of Victoria, Justice Bell set out an extensive list of material that is disclosable at common law, including material in the possession of or known to the prosecution that may:
• undermine the prosecution case
• assist the defence case
• exculpate the accused
• affect the credit of prosecution witnesses.
Additional disclosable material includes:
• statements of material witnesses whom the prosecution does not intend to call
• ‘documents, photographs and other real evidence, including scientific analysis.
R v Farquharson  VSCA 307 , (2009) 26 VR 410,
Ragg v Magistrates’ Court of Victoria  VSC 1 , (2008) 18 VR 300 cited in BA v Attorney-General  VSC 259, 266.
– ‘Disclosure’, Victorian Law Reform Commission, July 2021: https://www.lawreform.vic.gov.au/publication/committals/9-disclosure/
- Barbara Etter was for five years Sue Neill-Fraser’s pro bono lawyer. She is a former Assistant Commissioner of police in WA, and was the inaugural CEO of Tasmania’s Integrity Commission. Hugh Selby is a noted ACT-based barrister and trainer of barristers for national legal entities. ↑