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Supreme Court 27 February 2020

Bradley v Senior Constable Chilby

[2020] NSWSC 145

Assault & violencePublic order & justice offences
CRIME APPEAL AND REVIEW STAY OF PROCEEDINGS ALLEGED INADEQUACY OF PRE TRIAL DISCLOSURE BY POLICE PROSECUTOR TEMPORARY STAY GRANTED CRIME

Citation: Bradley v Senior Constable Chilby [2020] NSWSC 145
Court: Supreme Court of New South Wales
Date: 27 February 2020
Judge(s): Adamson J

Background

The accused faced a charge of assault occasioning actual bodily harm in the Local Court at Wollongong. The prosecution alleged the accused bit the complainant's finger, severing it to the bone. The accused maintained he acted in self-defence, and issues of the complainant's credibility, drug use, and propensity for violence were squarely in dispute from the time of his recorded interview with police.

Before the hearing, the accused's solicitor sought disclosure from the police prosecutor of several categories of material. These included facts sheets for offences of which the complainant had been convicted or with which she was charged, and records of conversations between the prosecutor and other officers about why the accused had been released without charge after his arrest and interview before later being served with a court attendance notice. The police prosecutor declined to provide this material.

The accused applied in the Local Court for a temporary stay of proceedings pending disclosure. The magistrate dismissed that application. The accused then sought leave to appeal to the Supreme Court under the Crimes (Appeal and Review) Act 2001 (NSW), arguing the magistrate had misapplied the law governing the prosecutor's duty of disclosure.

Legal Issues

  • Whether the prosecutor's duty of disclosure applies to police prosecutors conducting summary proceedings in the Local Court, and what that duty requires
  • Whether the magistrate erred in law by finding a fair hearing could be conducted without the disputed documents
  • Whether the magistrate erred in law by finding that the accused's solicitor had sought disclosure for an improper purpose and that compliance would impose oppressive burdens on police resources
  • Whether leave to appeal should be granted and, if so, whether a stay of the Local Court proceedings was warranted

Decision

Ground 1: Scope and Content of the Prosecutor's Duty of Disclosure

The court confirmed that because no express statutory provision governs disclosure by police prosecutors in summary proceedings, the common law duty applies. That duty, established in authorities including R v Reardon (No 2) and Gould v DPP (Cth), requires disclosure of material that is or might be relevant to an issue in the case, raises a new issue not apparent from the prosecution case, or holds out a real prospect of providing a lead on evidence in either of those categories. The prosecutor must take a broad view of relevance (at [40]-[41], [46]-[47]).

The court found that the complainant's facts sheets fell squarely within this duty. They were potentially relevant to self-defence and to the complainant's credibility, and might provide investigative leads for the defence (at [65]-[66]). Records of conversations between the prosecutor and other officers about the decision to release the accused without charge were equally disclosable as they would likely explain why a charge was ultimately laid after he had been released following his interview (at [67]).

The court held the magistrate's reasoning was legally unreasonable. The magistrate's four stated reasons for non-disclosure, namely that facts sheets might contain errors, that the accused could cross-examine on the criminal history already disclosed, that production would be oppressive, and that the request was made for improper purposes, none provided a valid basis for declining disclosure (at [68], [73]-[74]). The High Court decisions in Grey v The Queen and Mallard v The Queen confirm that the availability of cross-examination does not relieve a prosecutor of the duty to disclose material that might assist the defence (at [74]). Ground 1 was established as involving a question of law alone and was made out (at [72], [75]).

Ground 2: Mischaracterisation of the Defence's Purpose

The magistrate found the accused's solicitor had sought disclosure for the improper purpose of frustrating the prosecution by diverting police resources. The court found this characterisation flowed directly from the magistrate's misapprehension of the law. Had the magistrate correctly understood the duty of disclosure, it would have been apparent that the material sought was clearly disclosable and that no improper purpose existed. Ground 2 was also a question of law alone and was made out (at [76]-[77]).

Leave to Appeal and Stay of Proceedings

The court found the question raised was of considerable importance both to the accused and to the administration of justice in New South Wales generally. The prosecutor's conduct fell far short of what the law required. The court also drew an adverse inference, under the principle in Jones v Dunkel, from the prosecutor's decision not to call either of two available officers to give evidence at the hearing below (at [69], [80]).

Proceeding to the stay, the court found both relevant thresholds were satisfied: the hearing without the disputed material was likely to be unfair, and there was at least a tangible risk it would be unfair. Without the facts sheets and conversation records, the accused would be left to rely on cross-examination of a complainant who might choose to lie or claim not to recall events, depriving the defence of the ability to test her account with precision (at [82]). The proceedings were stayed until the prosecutor complied with her duty of disclosure (at [86]-[87]).

Orders Made

  • Leave granted to appeal on grounds 1 and 2
  • Appeal allowed
  • The magistrate's decision dismissing the notice of motion set aside
  • In lieu thereof, proceedings in the Local Court stayed until the prosecutor complies with the duty of disclosure
  • Matter remitted to the Local Court to be heard by a magistrate other than Clisdell LCM
  • The prosecutor (defendant in the Supreme Court proceedings) to pay the accused's costs of the Supreme Court proceedings, within 14 days of agreement or certification of the amount

Key Takeaways

  • Police prosecutors conducting summary proceedings in the Local Court are subject to the same common law duty of disclosure as other prosecutors. Because no express statutory provision governs their obligations, the duty is defined by cases including Reardon and Gould, and requires disclosure of material that is or might be relevant, raises a new issue, or provides a real prospect of a lead on relevant evidence (at [40]-[41], [46]).

  • A prosecutor's duty of disclosure is not discharged simply because the accused can cross-examine on material already provided. As confirmed in Grey v The Queen and applied here, the availability of cross-examination is not a substitute for pre-trial disclosure of documents that might assist the defence in preparing its case (at [74]).

  • The possibility that facts sheets may contain inaccuracies does not remove them from the scope of the duty. Potentially unreliable material may still provide useful investigative leads for the defence, and this is sufficient to bring it within the disclosure obligation (at [74]).

  • Resource constraints and administrative burden are not recognised bases for withholding disclosable material. Where no evidence of actual burden is adduced, it is legally erroneous for a court to treat compliance as oppressive (at [69]-[70]).

  • A temporary stay of proceedings is the appropriate remedy where non-disclosure renders the hearing likely to be unfair, or where there is a tangible risk of unfairness. The court has no power to order the prosecutor to produce specific documents, but can and will stay proceedings until the duty is properly performed (at [51], [86]-[87]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 53 55, 72
- Criminal Procedure Act 1986 (NSW), s 183
- Director of Public Prosecutions Act 1986 (NSW), s 15A
- Evidence Act 1995 (NSW), s 165
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99

Cases
- Bimson, Roads and Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827
- Cunningham v Cunningham (No 2) [2012] NSWSC 954
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142
- Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
- Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
- Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
- Marwan v Director of Public Prosecutions [2019] NSWCCA 161
- Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
- New South Wales v Robinson [2019] HCA 46; (2019) 94 ALJR 10
- R v Garofalo [1999] 2 VR 625; [1998] VSCA 145
- R v Jenkin (No 2) [2018] NSWSC 697
- R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247
- R v Mokbel (Ruling No 1) [2005] VSC 410
- R v PL [2009] NSWCCA 256; (2009) 261 ALR 365
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
- R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321
- Re K [2002] NSWCCA 374
- Wilson v Police [1992] 2 NZLR 533; [1991] NZCA 179