Criminal prosecutors have an important obligation to act fairly and impartially to ensure that an accused is properly afforded their right to a fair trial by assisting the court to arrive at the truth.

In the recent decision of Nelson (a pseudonym) v The King, the Victorian Court of Appeal re-affirmed that the prosecution’s duty of disclosure in criminal proceedings does not extend to actively seeking out material not in its possession, so that the material might be made available to the accused.

The findings in this case should reassure officers acting as informants in criminal prosecutions that they are not required to assist an accused to obtain documents or other evidentiary materials not in Council’s possession.

Background 

The offender had been found guilty of 18 sexual offences against three child complainants and sentenced to a total 12 years’ imprisonment with a non-parole period of 8 years and 6 months.

During the committal hearing, two of the complainants were cross-examined and denied that they had been in frequent contact with the offender after his offending.

After the hearing, the defence requested that the Office of Public Prosecutions (OPP) direct the Informant to obtain call charge records (CCRs) of phone communications between the offender and the complainants. The OPP and Informant declined to act on this request.

Subsequently, the defence subpoenaed the records, which revealed that there was significant communication between the offender and the complainants. According to the defence, this evidence stood in 'stark contrast' to that given by one of the complainants at the committal hearing.

At trial, neither the prosecution nor the Informant had examined the phone records to determine how often contact occurred between the offender and the complainants. The Informant gave evidence that the OPP told him that he was not to access the records ‘on behalf of the defence’.

Key issues on appeal 

On appeal, the offender submitted that the conduct of the prosecution with respect to the phone records caused substantial unfairness and a miscarriage of justice for the following reasons:

1. No efforts were made by the OPP to obtain what may have been exculpatory or relevant evidence to the issue of the complainants’ ongoing contact with the offender
2. The Informant failed to act with ‘fairness and detachment’ after being directed and advised by the OPP not to provide the phone records when requested by the defence
3. The prosecution disregarded its obligation to disclose and call evidence favourable and unfavourable to its case.

It was also submitted that the prosecution’s request for the judge to direct the jury to disregard the criticisms of the prosecution case ‘underscored the unfairness in the matter’.

Findings 

The Court of Appeal refused the offender’s application for leave to appeal. In its reasons, the Court held that there is no authority for the proposition that the Crown has a duty to actively seek out material not in its possession so that the material might be made available to the accused.

The Court confirmed that there is no obligation on the prosecution to investigate an accused’s case on their behalf, or to take over the burden of presenting that case to the jury.

As such, the prosecution in this case had no duty to obtain the phone records on behalf of the defence, or to introduce them into evidence through the Informant. The defence had full access to the phone records and was able to call evidence as to what they established. If the defence had sought to tender them, they would have been received in evidence and could be used to advance its case.

Key takeaways 

Informants responsible for criminal prosecutions conducted by local councils and other public authorities should be aware that they are not required to make enquiries on behalf of an accused. In other words, informants are not required to make the accused’s defence case. 

Where officers receive requests to obtain information or make enquiries on behalf of the accused, they may refuse to do so without fearing it may lead to an appeal against conviction.

However, it is important to note that the prosecution (including the informant and any person prosecuting the matter on their behalf) is obligated both at common law and under the Criminal Procedure Act 2009 to disclose any information, document or thing on which the prosecution intends to rely at the hearing of the charge or is otherwise relevant to the matter.

Evidence will be relevant where it tends to prove, or disprove, a fact in issue in the case. Therefore the informant remains under a duty to disclose evidence which assists the defence, where it has that information in its possession.

These duties are primarily fulfilled by serving a full brief of evidence upon the accused, containing all evidence that the prosecution proposes to tender at the trial as well as any other evidence in its possession which is relevant to the matter. The informant is required to complete a certificate describing any relevant information, document or thing not disclosed in the full brief due to privilege, public interest immunity, or statutory prohibition.

Further, if any information, document or thing comes into the informant’s possession or to their notice after the service of a brief on the accused, and it would have been required to be served, it must be disclosed to the accused as soon as practicable under the continuing obligation of disclosure.

Failure to comply with the duty of disclosure may result in a successful appeal against conviction.