Understanding disclosure certificates in Victorian criminal proceedings

Criminal investigation in Victoria has changed radically in the past 10 years, particularly with the combined effect of increased digital tools and greater expectation regarding prosecution disclosure. There is no escaping the reality that prosecution disclosure obligations are onerous. There have been many high-profile cases over the past decade concerning disclosure, yet failure to disclose is a persistent problem.

One mechanism to address this was the introduction in Victoria of the disclosure certificate, now found at ss 41A and 110A of the Criminal Procedure Act 2009 (Vic). This post unpacks what disclosure certificates are, why they matter, and how they fit into the broader disclosure regime.

What Is a disclosure certificate?

A disclosure certificate is a formal document completed by a relevant officer — typically the informant or the law enforcement officer who prepared the brief of evidence. The certificate outlines any relevant information, documents, or items that are not included in the brief due to:

• Claims of legal privilege or public interest immunity
• Statutory immunities or prohibitions
• Restrictions that legally prevent disclosure to the prosecution or defence

The certificate must also describe the nature of the exemption and be filed with the court, served on the accused, and forwarded to the Director of Public Prosecutions (DPP, where the DPP has conduct of the matter). It must be served on the accused with the brief, and provided to the court and DPP within seven days of brief service.

Why disclosure certificates matter

Disclosure certificates are part of a broader effort to uphold the right to a fair trial. They:

• Ensure the accused is aware of what information and documents exist, even if they cannot be disclosed
• Promote accountability in the prosecution process
• Help courts assess whether non-disclosed material should be revealed or protected
• Support the principle of ‘equality of arms’ between prosecution and defence

The duty of disclosure is ongoing—it does not end with the filing of the brief. Prosecutors and informants must continue to disclose relevant material throughout the life of the case (even, arguably, beyond the expiration of the appeal period).

Preparing a disclosure certificate

A disclosure certificate must be drafted in accordance with the template provided at Schedule 2 (for full summary briefs) or Schedule 3 (for hand-up briefs) of the Criminal Procedure Regulations 2020 (Vic) (see r 27).

A disclosure certificate must be completed and signed by the relevant officer (again, usually the informant). It is a significant obligation of that officer. It is usually the case that the officer, at least when a government investigator, will be assisted by the advice of a solicitor in terms of complying with requirements (both substance and form) for disclosure certificates.

General tips for drafting include:

• Understand the law concerning disclosure obligations – which is found both in statute and at common law. In particular, the disclosure obligations explicitly apply to exculpatory information or documents.
• List the information / documents specifically and clearly; an ambiguous disclosure certificate will offer little protection to a subsequent allegation of failure to disclose.
• Remember that a defence case theory may not be obvious to an investigator: take a broad view of what is relevant.
• Err on the side of disclosing, even where the information or document is of apparently peripheral relevance.
• Disclosure does have important limitations, including legislative prohibitions on disclosing witness contact details. This is commonly disclosed and improperly so. Be careful also to preserve litigation privilege as well as legal advice privilege.
• Be self-critical when asserting claims of relevance, privilege or immunity, including asking the question: does the claim apply to all of the information/document or only some of the information/document?

Impact of recent reforms

The disclosure certificate requirement was introduced as part of reforms stemming from the Royal Commission into the Management of Police Informants. These reforms, effective from 1 October 2022, aimed to:

• Strengthen the transparency of criminal investigations
• Clarify the responsibilities of informants
• Ensure that disclosure obligations are documented and reviewed by senior officers

Final thoughts

Disclosure certificates are more than idle paperwork—they are a safeguard against miscarriages of justice. By formally acknowledging what evidence exists but cannot be disclosed, they help courts, public prosecutors and defence teams navigate the complex terrain of criminal litigation with greater clarity and fairness. A disclosure certificate is a document to be taken seriously and drafted with care.