Duties of a solicitor as the prosecutor in relation to disclosure

The role of the prosecutor is unusual in that the prosecutor has an adversarial relationship with the accused, but also simultaneously owes a duty to the court to establish the whole truth. Because of this peculiarity, the prosecutor’s role attracts a duty of fairness to the accused and impartiality in the conduct of the proceeding, more so than a lawyer in any other adversarial litigation. This can result in a difficult balancing act for prosecuting solicitors.

For prosecutors who are solicitors, there are specific ethical duties set out in rule 29 of the Australian Solicitors Conduct Rules 2012 (ASCR) (and in the comparable rules for barristers in Queensland and for solicitors and barristers in most other States and Territories).

In this article, we set out those rules in the ASCR relevant to the prosecuting solicitor’s ethical duties of disclosure, and provide some practical tips for government and council prosecutors for complying with them.

Duty of disclosure

Rule 29.5 of the ASCR outlines the prosecuting solicitor’s duty of disclosure. It requires the prosecuting solicitor to disclose to the accused, as soon as practicable, all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity. The only exceptions in rule 29.5 are where the prosecuting solicitor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten:

• the integrity of the administration of justice in those proceedings; or
• the safety of any person.

The duty of disclosure in rule 29.5 should be read alongside section 590AB of the Criminal Code 1899 (Qld) (Criminal Code), which provides that:

• it is a fundamental obligation of the prosecution to ensure criminal proceedings are conducted fairly with the single aim of determining and establishing truth; and
• the prosecution has an ongoing obligation to give full and early disclosure to the accused of:
  • all evidence the prosecution proposes to rely on in the proceeding; and
  • all things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused.

The broad duty of disclosure of prosecutors in the ASCR and the Criminal Code reflect the power imbalance between the prosecution and the accused, particularly the accused’s ‘inability to investigate matters as thoroughly as the prosecution’ due to their more limited powers and resources (R v Ulman-Naruniec (2003) 143 A Crim R 531, [136-7]).

The requirement in rule 29.5 of the ASCR for the prosecuting solicitor to disclose all material which could constitute evidence relevant to the guilt or innocence is also much wider than disclosure required in civil cases, which is limited to documents in the party’s possession or control that are directly relevant to issues in dispute. This rule, and the requirement in section 590AB(2)(b) of the Criminal Code for the prosecution to disclose all things that would tend to help the case for the accused, reflect the fact that it is inappropriate for the prosecutor to take a narrow view as to what:

• defence or defences the accused may seek to rely on;
• might prove useful to the accused; or
• might open up useful lines of inquiry to the accused.

Rule 29.5 of the ASCR also extends to all material available to the prosecuting solicitor, or of which the prosecuting solicitor becomes aware. The words ‘becomes aware’ reflect the ongoing nature of the prosecutor’s duty of disclosure. However, the application of rule 29.5 to all material ‘available’ to the prosecutor is broader than the reference to all things in the ‘possession’ of the prosecution in section 590AB(2)(b) of the Criminal Code. To ensure compliance with the wider obligation in rule 29.5 of the ASCR, prosecuting solicitors should be mindful of considering and exercising their evidence-gathering powers to obtain and disclose all available evidence that may be relevant, or possibly relevant, to an issue in the case.

Where a prosecuting solicitor has decided not to disclose material to the accused under rule 29.5 of the ASCR, rule 29.6 provides that the prosecutor must consider whether the charge against the accused to which this material is relevant should be withdrawn, or if the accused should be faced only with a lesser charge to which such material would not be relevant. This rule serves as a reminder to prosecuting solicitors to give continuous consideration to the evidence in support of charges in a prosecution and the broader discretion to prosecute.

Failure to comply

If a prosecuting solicitor fails to comply with their duty of disclosure, there is no cause of action available to the accused against the prosecutor in civil law for damages.

However, failing to comply with the prosecutor’s duty of disclosure can result in:

• disciplinary action taken against the prosecuting solicitor;
• action by the trial judge to ensure that the accused receives a fair trial. For example, a trial judge may be more likely to grant an adjournment to an accused if the accused can point to conduct by the prosecutor that falls short of the ethical standards. In jury trials, there can also be consequences in the trial judge’s summing up to the jury, or the jury could be discharged; or
• a possible avenue for appeal against conviction on the question of whether the conduct of the prosecutor resulted in a miscarriage of justice.

Practical tips for prosecutors

In practice, and having regard to the potential consequences of failing to comply with the duty of disclosure, it is critical to ensure that all evidence and witness details that may be even possibly relevant to an issue in the case are disclosed to the accused as early as possible in a prosecution.

As a first step, it is critical to ensure that the brief of evidence provided to the accused contains all currently available:

• evidence that is potentially relevant to an issue; and
• details of witnesses who may give evidence that is potentially relevant to an issue.

If the prosecuting solicitor becomes aware of further evidence or witnesses that may be relevant to the prosecution, they should also be disclosed to the defence as soon as possible in compliance with the ongoing duty of disclosure, and to minimise the prospect of delays with finalising the prosecution.