In the ordinary course, the State charges the accused and then provides all material evidence (or a summary of that evidence) in their possession for or against the accused. The prosecutor’s duty of disclosure, arising out of the Crown’s obligation to conduct a criminal trial with fairness’ is owed to the court rather than to the accused, but is fundamental to the right of a fair trial, and consistent with the international human rights principle of ‘equality of arms.’ The duty is generally recognised as a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be. The Victorian Court of Appeal has noted in Cannon v Tahche that ‘The responsibility is, thus, dependent for its content upon what the prosecutor perceives, in the light of the facts known to him or her, that fairness in the trial process requires’ (see R v Benbrika (Ruling No 3) [2007] VSC 283, [8] per Bongiorno J).
The duty of disclosure extends to exculpatory material held by the prosecution, and material which may undermine its case or which tends to assist the defence case, including the criminal history or other material affecting the credit of prosecution witnesses.
However, criminal lawyers would be aware that the State in a criminal trial generally enters the trial with two advantages: having superior resources and having conducted the investigation that led to the charges being brought. That gives rise to the issue of disclosure — voluntary or enforced — of material by the prosecution to the defence. ‘Enforced’ disclosure at the request of the defendant (thereby leading to compulsion by the court) acknowledges equality of arms.
If the State does not voluntarily produce material, the remedy for a defendant is to seek it by summons, or subpoena, enforced by the court. This is, commonly, a subpoena duces tecum, to produce relevant documentation, or a subpoena ad testificandum. Failure to comply with a subpoena may precipitate a charge of contempt of court. Upon the return of the subpoena a claim of privilege or immunity may be made by or on behalf of the witness.
The balancing process adopted in public interest immunity does not violate the principle of equality of arms, as that principle is not regarded as absolute. The rights of the accused are balanced against competing public interests such as the protection of national security, or the identity of informers, or secret methods of investigation. This point was noted in the European Court of Human Rights case of Fitt v United Kingdom ((2000) 30 EHRR 480, [44]), but is entirely consistent with the modern Australian position.
The common law in Australia in relation to public interest immunity was framed in High Court of Australia cases such as Sankey v Whitlam and Others ((1978) 142 CLR 1).
In that case, the Court stated:
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. ((1978) 142 CLR 138-39 per Gibbs A-CJ (Stephen and Aickin JJ agreeing).
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