The obligation for ongoing and complete disclosure by the prosecution is a core feature of the just resolution of all criminal matters, and a key mechanism for the recognition of the might of the Crown versus that of a defendant.
However, the disclosure regime in Queensland significantly lacks efficiency and accountability, and in the view of criminal defence lawyers is simply not working. As such, urgent reform is required.
Development of disclosure obligations in Queensland:
Disclosure obligations were first recognised legislatively in Queensland in 2003 with the insertion of Chapter 62 Division 3 ‘Disclosure by the Prosecutor’ in the Queensland Criminal Code. The disclosure law for criminal cases in both the Magistrates Court and the District and Supreme Courts is contained in this Division and is covered in sections 590AB to 590AX as well as sections 590D to 590G.
In 2008 Ex Supreme Court Judge Justice Martin Moynihan AO provided a report to the Queensland Government dealing with a review of the civil and criminal justice systems in Queensland. The report focused on, among other things, strengthening the disclosure provisions contained within the Criminal Code.1
The report set out an “important plank… a plan to secure ample disclosure of the information the police gather”.2
To do this the report recommended the Queensland Government implement:3
- Certification by Arresting Officer
Before submitting a prosecution brief, the arresting officer must certify sufficient evidence supports the charges and all disclosure obligations have been met; - Magistrate Oversight on Late Disclosure
If late or incomplete disclosure is discovered, the magistrate can require an affidavit from the certifying officer explaining the delay; - Police Training & Accountability
QPS should enhance officer training on disclosure duties. Non-compliance should lead to disciplinary action, and accurate QP9 reports must be emphasised; - Sanctions for Non-Compliance
If the explanation is unsatisfactory, the magistrate may impose penalties including: cost orders, disciplinary action, or staying the case unless justice demands otherwise.
The Queensland Government complied with some recommendations (for example implementing magistrate oversight), but did not act on key recommendations that go to the root of accountability and efficiency.
Following the report, the Queensland Law Society then made submissions to the government expressing “implacable/strong opposition” to the State Government’s response to the Moynihan “proposals about disclosure of information gathered by the Prosecution”.4
This submission again proposed a process of disclosure certification as a key solution to ongoing problems.
An example of how certification currently works in some other Australian jurisdictions in the trial context is contained in the ACT DPP Guidelines.5
Relevantly, at the 48th Annual QLS symposium Justice Byrne made the following observations in relation to those submissions:6
- The Government did not accept Moynihan’s recommendation that an arresting officer… (produce) a certification of compliance with disclosure requirements; and
- The Government response concerning disclosure certification has been characterised (by the QLS) in its recent submission (in 2010) as “concerning” mainly because of the perception by practitioners of recurring failures by police to comply with existing statutory obligations. (emphasis added).7
It needs to be said that criminal defence lawyers who contributed to the QLS submission to the State Government in 2010 did not just have a “perception” that there were recurring failures of police disclosure at that time. Even in 2010 there was a real concern amongst experienced criminal defence lawyers that the police disclosure scheme was problematic.
This was why the QLS at that time pushed for a scheme of certification by an arresting officer that they had complied with disclosure requirements. This simple proposal which Moynihan recommended following on the QLS submission in that regard which ought to have been easy to implement with no resource implications was rejected in 2010 by the State Government whose failure to implement the Moynihan proposed certification model has led to the current seriously problematic criminal cases disclosure scheme in Queensland.
The problems raised by the profession and ignored by the government in 2010 remain problems today, and the recommendations of the Moynihan report remain relevant to any contemplated solution.
The importance of fully compliant disclosure:
Justice and procedural fairness
Adequate and efficient disclosure goes to the root of procedural fairness in that a proper defence cannot reasonably be expected without the entirety of the evidence in a case being made available. To that end late disclosure is still adverse to a defendant in that a failure to disclose all relevant evidence will always impact a lawyer’s ability to strategise and provide competent advice to a client.
Waste of resources caused by late disclosure
Failures of disclosure should also be of concern when considering the costs of a matter. If a matter proceeds through the entirety of the criminal justice system, only to be undone at trial due to late disclosure, the costs incurred by the court for adjournments that have to be granted at that late stage is high. Furthermore, the cost to a defendant where a trial has to be adjourned, particularly mid trial, is considerable.
Role of the police in aiding the Director of Public Prosecutions
In R v Ernst8, the Queensland Court of Appeal noted that officers of the Director of Public Prosecutions can only fulfil the duty (to prevent a miscarriage of justice) and promote a fair trial to the extent that they are knowingly placed in possession of the impugned material in the case. To this end the interaction between the Police and the Director of Public Prosecutions (and the maintenance of accountability for both) is critical to effective disclosure.
Case examples
Robertson O’Gorman is currently preparing a submission to the Queensland Attorney-General in relation to the abovementioned issues concerning the Queensland criminal disclosure regime. As part of this submission numerous experienced criminal defence practitioners have informed me that failures of disclosure, especially (but not solely) in sexual assault charges, are a real and serious problem.9 This is best illustrated by R v Ernst in which “The Court” (comprising Sofronoff P and Mullins JA and Davis J) noted “a gross investigative failure of disclosure which constituted a serious breach of the presumption of a fair Trial” had occurred.10
In that case a potential witness called the Police before the trial and gave information which the Court of Appeal found was highly material to the Jury’s view of the credibility of the complainant. The Court of Appeal found none of what the witness told the investigating officer was communicated to the DPP and as a result none of this information was disclosed to the defence.
The Court noted that in the “investigating officer’s evidence on the appeal the police officer’s attention was only upon facts which might assist the Prosecution. He was only interested to find out if the witness might be able to give evidence to strengthen the credit of the complainant. He was uninterested in learning there may be issues about the reliability of the complainant and so he ignored (or did not hear) what the witness had to say. He made some desultory, sparse and useless notes of the conversation (with the witness) and failed to record any of the highly important things that (the witness) was earnestly attempting to convey to him
… As a result of this gross investigative failure there has to be a retrial”.11
Accountability
It is not known if the investigating police in R v Ernst were disciplined or charged for this blatant breach of the Criminal Code disclosure provisions. However, it is noted that section 204 of the Criminal Code “Disobedience to statute law” provides that a person who omits to do any act which the person is by the provision of any such statute required to do is guilty of a misdemeanour and is liable to imprisonment for one year.
R v Ernst strongly highlights the necessity for accountability at every stage in the disclosure process. Very late disclosure, including part way through a trial, happens far too often because police know they will not suffer any consequence or penalty for not complying with their duty to disclose all relevant evidence.
The experience of criminal defence practitioners is that there are three categories of police who do not carry out their statutory duty of disclosure…
In November 2019 Robertson O’Gorman made a complaint to the CCC about a rape case where a tape recording of the complainant containing a version inconsistent with her statement and evidence before the jury was disclosed to the DPP by the investigating officer only after the complainant had given her evidence before the jury. After hearing this formerly suppressed evidence the jury acquitted the accused. The CCC referred the matter for investigation back to the police and the investigation of the complaint was carried out by the OIC of the same police station as the errant investigating officer and resulted in that officer being “counselled”, i.e. spoken to.
This is a risible penalty.
R v Ernst is only one of the frequent number of instances where police fail to comply with their statutory duty of disclosure. The outcome of this complaint demonstrates police need have no fear of the consequences of failing to comply with their statutory disclosure obligations because there are none.
The experience of criminal defence practitioners is that there are three categories of police who do not carry out their statutory duty of disclosure:
- those who are ignorant of their obligations;
- those who are aware of their obligations but cannot be bothered to carry out proper disclosure; and
- those who deliberately do not disclose because they want to get a conviction and do not want proper disclosure to get in the way of that goal.
Lessons from other jurisdictions:
Insofar as my research reveals, there has been no systemic review of the problems with disclosure regimes in Queensland or in any of the other seven State, Territory and Commonwealth jurisdictions.
There have however been numerous reviews in the United Kingdom attempting to grapple with the issues that result from inadequate disclosure with 17 of these reviews occurring since 1976. These reviews have varied in style and findings, some being comparable to a Royal Commission and others have been by police and prosecution oversight bodies. They have largely arisen from cases in which a failure by the prosecution to effect proper disclosure becomes obvious mid trial.12 The most recent of these reviews was conducted by Jonathan Fisher KC titled “The Independent Review of Disclosure and Fraud Offences – Disclosure in the Digital Age”.13
Because the United Kingdom has reviewed its disclosure procedures a number of times over almost 50 years, the United Kingdom disclosure regime is a good comparative example for Queensland to adopt.
Steps that must be taken:
It is time for the Government to implement Judge Moynihan’s recommendations of 17 years ago and adopt a certification system concerning disclosure. The State Government’s then rejection of the certification process is a significant cause of many of the current problems with disclosure in Queensland criminal cases.
A further change (which would involve no resource implications for the State Government to implement) would be to permit the defence as of right to cross-examine the principal investigating officer at committal as to any topic going to the issue of disclosure obligations. This would not lengthen Magistrates Court committal hearings but would go a long way to addressing the problem of late disclosure, particularly in cases in the Queensland District Court where issues of late disclosure cause significant expense problems.
An administrative direction should also be issued by the Attorney-General and the police minister to the DPP and police prosecutors that any issues which arise from the failure to comply with disclosure requirements by police should be the subject of a memorandum by the prosecutor. This would ensure that a bank of actual case examples of disclosure problems can be established both at Magistrates Court and District and Supreme Court level. This would serve as a mechanism to build up case examples of disclosure problems which can be used to identify and correct ongoing systemic disclosure problems in the Queensland criminal justice system.14
Finally, there is a strong case for the Queensland Attorney-General to refer the issue of disclosure to the Queensland Law Reform Commission. A referral to the QLRC would benefit from the huge amount of work undertaken in the United Kingdom concerning disclosure and could adapt current UK procedures which are considerably more advanced than Australian disclosure measures. Any QLRC referral of the disclosure issue should also closely examine how the disclosure regime is working in other Australian jurisdictions.
- See the Hon Martin Moynihan AO “Review of the Civil and Criminal Justice System in Queensland”, Dec 2008. ↩︎
- See Notes of a paper presented to the Queensland Law Society at the 48th annual symposium, 20 March
2010 by the Hon Justice Byrne, Senior Judge Administrator, Supreme Court of Queensland Page 1. ↩︎ - See the Hon Martin Moynihan AO “Review of the Civil and Criminal Justice System in Queensland”, Dec 2008 pages 99-103. ↩︎
- See Justice Byrne Notes referred to in footnote 2 (page 1) ↩︎
- See the guideline at www.dpp.act.gov.au ↩︎
- See Justice Byrne notes (above) at Page 2. ↩︎
- Ibid, p.2 ↩︎
- See R v Ernst [2020] QCA 150. ↩︎
- Practitioners can contact Robertson O’Gorman to submit de-identified case
examples. ↩︎ - R v Ernst [2020] QCA 150 at [37] ↩︎
- Ibid at [36] and [37] ↩︎
- Ibid, see paras 47 to 82. ↩︎
- This report was produced March 2025 and can be viewed GovUK website. ↩︎
- This reflects a recommendation of the Qld 1977 Report of the Committee of Inquiry for the Enforcement of Criminal law in Queensland (known as the Lucas Inquiry) which proposed that “Prosecutors should be asked to report any challenges to confessional material and all allegations of unlawful conduct towards accused persons by police officers together with short particulars of the case and its outcome” (see p.244 of the Lucas Report). ↩︎
This article featured in the 2025 Proctor Annual. The 2026 edition of the Proctor Annual is now in development – and QLS members are invited to contribute fresh thinking, thought leadership, and unique perspectives to this flagship publication. More here.
Share this article