This decision concerns the prosecution’s disclosure obligations and the effect of a failure to disclose material. The reasons briefly canvas the relevant authorities and note that, where non-disclosure is raised, an appellant faces a low hurdle in terms of the proviso. Ultimately, the appeal was allowed.
Sofronoff P and Gotterson JA and Henry J
5 June 2018
The appellant was convicted of one count of unlawfully and indecently assaulting the complainant. At trial the central issue was the credit of the appellant and complainant, who gave radically different accounts of what had occurred. –.
Prior to trial, the Crown disclosed a file note indicating the complainant “[did] not want to proceed” and “said that the experience of going to court [made] her feel sick”. The Crown proceeded for public interest reasons. . Defence counsel sought a jury direction to the effect of the file note. . The learned judge ruled that it would be wrong to direct the jury about facts not in evidence and noted the complainant’s evident willingness to give evidence at the trial. .
After the close of evidence, the Crown disclosed a statement and formal “withdrawal of complaint” provided by the complainant six weeks previously. –. Among other things, the statement revealed the complainant had consulted Victims of Crime and a psychologist. . Defence counsel argued that the late disclosure had disadvantaged the appellant, but did not apply for a stay or to discharge the jury. –.
On appeal, Sofronoff P (Gotterson JA and Henry J agreeing) considered the prosecution’s disclosure obligations under ss 590AB, 590AH and 590AJ of the Criminal Code. . Leave was granted for the appellant to lead further evidence on appeal, being documentation obtained in reliance on the Crown’s late disclosure. That further evidence contained matters potentially relevant to the complainant’s credit. . The reasons briefly review the relevant authorities and the effect of non-disclosure. –. His Honour notes that, where the appellant raises non-disclosure, it is such a serious breach of the pre-suppositions of a fair trial that the hurdle in terms of the proviso for is a low one. . There was a real possibility that the appellant had been disadvantaged. . The conviction was set aside and a retrial ordered.
K Gover of Counsel