How far must the prosecution dig for disclosure material?

The following post was written by Lachlan Mahon, barrister. Lachlan is an experienced criminal practitioner who signed the Victorian Bar roll last week. Click here for his profile and information about briefing him.

Summary

A prosecuting agency’s duty of disclosure is multifaceted. The common law has long recognised that the duty will in some cases include an obligation to make enquiries.¹ The outer limits of that obligation have been less clear. In the recent decision of Nelson (a pseudonym) v The King [2025] VSCA 226, the Court of Appeal offered some guidance, warning the obligation ‘should not be misunderstood’.² It is a confined obligation related to a witness’s credit.

The case

The offender was found guilty of 15 sexual offences involving a child and three incest offences. He was sentenced to a term of imprisonment.³

He sought leave to appeal against his conviction and sentence.

One of the key questions in the conviction appeal was whether the prosecution was obliged to obtain from a third party, and disclose to defence, call charge records that may have affected the credit of a prosecution witness.

The Court of Appeal held that no such duty exists, nor did it cause a substantial miscarriage of justice in this case.

The application for leave to appeal against conviction and sentence was, ultimately, unanimously dismissed. 

Facts

At a contested committal hearing, two of the three complainants asserted that – after the alleged offending – they had limited contact with the accused by telephone ([33]).

After the committal hearing, the defence requested the informant obtain call charge records of those witnesses phones. The informant did not do so ([35]).

The defence subpoenaed the call charge records for trial. The defence inspected this material, but the prosecution (including the informant) did not. The records revealed significant contact between the complainant and the accused after the alleged offending ([36]-[37]).

At trial, the defence sought to adduce the call charge records by cross-examining the informant about them. The prosecution successfully objected on the basis that the informant had not looked at the document, it could be tendered by agreement, and submissions could be made as to its effect ([38], [73]-[78]).

The defence called the defence instructing solicitor to adduce the call charge records ([39]). The prosecution did not cross-examine that solicitor. And so the records went into evidence unchallenged.

Appeal

On appeal, the offender asserted a substantial miscarriage of justice was caused by:

1. the prosecution failing to obtain, adduce and ‘engage’ with the call charge records ([41]-[46]);
2. the trial judge prohibiting defence counsel from cross-examining the informant on the call charge records, which required the defence to open its case ([79]); and
3. the trial judge directing the jury to disregard defence counsel’s criticism of the prosecution’s failure to obtain the call charge records ([90]).

Outcome

As to the first ground:

1. The prosecution’s duty of disclosure ‘includes, where appropriate, an obligation to make enquiries’ is only limited to an obligation to enquire into a witness’s prior convictions when that witness’s credibility is in issue ([54] and [56]).
2. 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. Indeed, it is not the prosecutor’s duty to investigate or present a case on behalf of an accused ([62]-[63]).
3. The prosecution was not obliged to obtain the call charge records, or introduce them into evidence. In any case, the offender had possession of the material, could have tendered them – which was not opposed by the prosecution – or could call evidence as to the effect of the material ([67]).

As to the second ground:

1. The trial judge was correct to say the informant was not under an obligation to satisfy himself of the contents of the call charge records ([81]).
2. The informant gave evidence he had ‘no idea’ about its contents and could not properly be cross-examined on it. The only limited way in which he could be cross-examined on it was found in s 43 of the Evidence Act 2008 (Vic) (regarding prior inconsistent statements) which was not utilised ([82]-[86]).
3. It was ‘unrealistic’ to say the offender suffered unfairness because the call charge records went into evidence unchallenged and there were correct directions to the jury about the onus and standard of proof remaining with the prosecution ([87]).

As to the third ground, the direction was correct because there was no duty on the prosecution to obtain the call charge records ([92]).

Other relevant points

• A direction pursuant to s 43 of the Jury Directions Act 2015 (Vic) (the equivalent of a Jones v Dunkel direction) was not required because the possible witness could not have observed something of relevance ([108]-[109]).

• Tendency evidence was properly admitted, and was not of a high generality such that it lacked significant probative value ([113]).

• The orders for cumulation on the sentence did not infringe the totality principle nor produce a manifestly excessive sentence. The orders for cumulation were moderate, if not lenient.

Conclusion

The case serves as a useful reminder of the prosecution’s ongoing duty of disclosure – a duty owed to the court, not the accused.

A sub-duty of disclosure requires prosecuting authorities to ‘make enquiries’ with third parties into a witness’s prior convictions, when that witness’s credit may be in issue. But the Court of Appeal unequivocally says that this sub-duty to ‘make enquiries’ goes no further.

Failing to comply with that sub-duty can cause substantial miscarriages of justice. To limit that risk, prosecuting authorities may wish to make these enquiries at an early stage and as a matter of course in their approach to disclosure.

When making requests for disclosure, defence practitioners should be mindful of the limits upon the prosecution in obtaining disclosure material from third parties. Other avenues of obtaining such material should be given close consideration, including voluntary requests for information from the third party, freedom of information requests, and subpoenas.

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1. See e,g, A J v The Queen [2011] VSCA 215, [22]; R v Garofalo [1999] 2 VR 625, 637. ↩︎
2. At [54]. ↩︎
3. A total effective sentence of 12 years’ imprisonment, with a non-parole period of eight years and six months was imposed. ↩︎