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Director of Public Prosecutions

21. Disclosure

21.1 General

Where a person has been charged with an indictable crime, s56(3) of the Justices Act 1959 requires the relevant Commander of Police to disclose to the defendant any statement or interview he or she may have made and the statements of all witnesses that police have obtained investigating the offence. This is to occur during the adjournment after the defendant’s first appearance.

If further statements are obtained after this time the Commander is to provide copies of such statements as soon as is reasonably practicable (s57(3)).

The Office of the Director of Public Prosecutions is not subject to the Right to Information Act 2009 (s6). However, with indictable crimes, prosecutors are under a continuing obligation prior to trial to make full disclosure to the accused of all material known to the prosecutor which can be seen on a sensible appraisal to:

  • be relevant or possibly relevant to an issue in the case
  • raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use
  • hold out a real (as opposed to a fanciful) prospect of providing a lead to evidence which goes to either of the previous two situations

In R v Keogh (No. 2) [2015] SASC 180 at [54], Blue J summarised the position:

The prosecution owes a duty to disclose to the defence on a timely basis:

(a) evidence proposed to be adduced by the prosecution including the evidence of witnesses and proposed exhibits;

(b) evidence of witnesses who the prosecution does not propose to call;

(c) material that tends to reflect materially on the credibility of prosecution witnesses;

(d) material that tends to weaken the prosecution case or assist the defence case;

(e) material that is relevant to an issue in the case.

It should be noted that the “prosecution” in this context collectively includes both the Office of the Director of Public Prosecutions and Tasmania Police (See Brawn v The King [2025] HCA 20 at [29]). If it is found, after a conviction, that there has been a breach in the duty of disclosure, due to material in the possession or knowledge of Police, it could result in a successful appeal against that conviction, even if the DPP were not aware of the material. Police must therefore be vigilant to ensure that disclosure is seriously and thoroughly considered in every matter, including in the context of the accused’s defence, if or when that becomes known.

The prosecution duty of disclosure does not extend to disclosing material:

  • relevant only to the credibility of defence (as distinct from prosecution) witnesses
  • relevant only to the credibility of the accused person
  • relevant only because it might deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false
  • concerning the accused’s own conduct to prevent an accused from creating a trap for himself or herself, if at the time the prosecution became aware of that material it was not seen as relevant to an issue in the case or otherwise disclosable pursuant to the above criteria
  • private information of witnesses, where that information is not seen as relevant to an issue in the case or otherwise disclosable pursuant to the above criteria

The duty of disclosure also does not obligate the prosecution to go out into the world and investigate matters that might reflect upon the credibility of prosecution witnesses and to then disclose those matters (see Tasmania v Farhat [2017] TASSC 42 at [16]).

21.2 Counselling records

S127B of the Evidence Act 2001 restricts the disclosure of counselling communications. Counselling communications are defined as

communication made before, on or after the commencement of this Act [the Evidence Act] in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality if the communication is made –

(a) by a victim of a sexual offence to a counsellor in the course of counselling or treatment of the victim by the counsellor for any emotional or psychological harm suffered in connection with the offence; or

(b) to, or in relation to, that victim for the purposes of that counselling or treatment;

Counselling communications meeting the above definition must not be disclosed in any criminal proceeding unless the victim has consented to the disclosure.

A person must not be required, in connection with a criminal proceeding, to produce a document that records a counselling communication, unless the victim has consented to the production of the document.

Evidence of a counselling communication must not be adduced or admitted in any criminal proceeding unless the victim has consented to the adducing or admission of the evidence.

The victim is under no obligation to provide consent, regardless of whether it is the Prosecution or Defence seeking such records. Any consent provided by the victim is to be recorded in writing.

21.3 Continuing obligation to disclose

The prosecutor’s duty of disclosure is a continuing obligation owed to the court to ensure an accused person receives a fair trial (see Smith & Madden v R [2003] TASSC 91; Tasmania v Farhat [2017] TASSC 42 at [18]). There is a continuing obligation to disclose material if it would assist a convicted person’s appeal, or if it may amount to fresh evidence that could be used for a second appeal (s402A of the Criminal Code) or an application for a prerogative of mercy (s419 of the Criminal Code) (see AB v CD [2017] VSCA 338). However, the continuity of the obligation to disclose should be seen as also imposing upon the defence an obligation to make timely disclosure of any defence or issue, not immediately apparent on the prosecution case, which may make otherwise irrelevant material relevant. For example:

  • The prosecution should not be required to provide details of prior convictions or records of police disciplinary proceedings against a prosecution witness until the defence has indicated that the credibility of that witness is to be attacked and the prior convictions, etc, are relevant unless it is readily apparent that witness’ credibility is an issue at trial. Obviously the defence does not have to disclose its case but where it is not readily apparent that a witness’ credibility is in issue and prior convictions have not been disclosed if the defence requests the prior convictions of a particular witness they will be disclosed.
  • The validity of a warrant or other authority should, unless an indication of challenge is given, be proven in a formal way. Any evidence establishing the correctness of the process, etc, should only be provided if an indication of challenge is given unless it is specifically known by the prosecutor that the warrant is invalid.

Further, it is not the practice of the Office to routinely disclose all police notes, records or documents or the notes or documents of expert witnesses as, in the majority of cases, they are not relevant to an issue at trial. To do so would add a considerable cost and burden to the State without any benefit to an accused person. If, however, they are requested by the defence or it is apparent they are relevant, they are to be disclosed. Tasmania Police should be vigilant to ensure that where such notes might be relevant to a case they are brought to the attention of the prosecutor with conduct of the file. Tasmania Police should also bring to the attention of the prosecutor any other material that is in its possession, or it is aware of, which may be relevant to the prosecution or defence including the credibility of witnesses. Forensic Science Service Tasmania records and notes are available upon request.

The duty of disclosure extends to any record of a statement by a witness that is inconsistent with the witness’ previously intended evidence or adds to it significantly, including any statement made in conference (recorded in writing or otherwise) and any victim impact statement.

If a witness makes any such statement in conference (adding significantly to or inconsistent with any previous statement/s), the prosecutor present must note that fact and arrange for a supplementary written statement to be made. That supplementary statement should be disclosed to defence counsel.

Subject to public interest immunity consideration, such material, if assessed as relevant in the way described above, should be disclosed and, where practicable, made available, to the defence. Failure to do so may cause a miscarriage of justice (see Mallard v R (2005) 224 CLR 125).

21.4 Public interest immunity

Public interest immunity is governed by s130 of the Evidence Act 2001 and the common law. In summary, public interest immunity protects from compulsory disclosure of information where disclosure would be injurious to the public interest (see Sankey v Whitlam (1978) 142 CLR 1 per Gibbs J at 38-9). Possible claims for public interest immunity includes information or documents that contain confidential information, reveal the identity of an informant, reveal police investigative techniques, limiting their ability to detect crime, or relate to an ongoing police investigation.

In determining a claim of public interest immunity the court is required to weigh the public interest that would be harmed by the production of the information against the possible injustice if the information was withheld (see Ryan v State of Victoria [2015] VSCA 353). In so determining, the nature of the offence, the likely effect of adducing the information and the means available to limit its publication are relevant considerations (s130(c) & (d)).

Where a claim of public interest immunity is asserted care must be taken to identify the basis of the immunity with precision. In Tasmania v Farhat [2017] TASSC 42 Pearce J said at [26]:

In this case, the balancing exercise must weigh the extent of any legitimate forensic purpose in disclosure, whether non-disclosure would impede the accused's right to a fair trial and the evidentiary value and importance of the document to the accused with the public interest against disclosure asserted by the claimant. The categories of public interest are not closed: Sankey v Whitlam at 60; D v National Society for the Prevention of Cruelty to Children at 230. However, a party, that asserts a claim of public interest immunity to protect a document or information from disclosure, is required to identify, with precision, the basis upon which it is claimed.

Where a prosecutor receives, directly or indirectly, sensitive documentation, material or information, or material that may possibly be subject to a claim of public interest immunity, the prosecutor should not disclose that documentation, material or information to the defence without first consulting with the investigating officer in charge of the case. The purpose of the consultation is to give that officer the opportunity to raise any concerns as to such disclosure. Accordingly, the officer should be allowed a reasonable opportunity to seek advice if there is any concern or dispute.

Where applicable, the following factors should be taken into account in determining the public interest issue:

  • the material is irrelevant
  • withholding is necessary to preserve the identity of an informer
  • withholding is necessary to protect the safety or security, including protection from harassment, of persons who have supplied information to police or person close to them
  • the material is protected by legal professional privilege
  • the material, if it became known, might facilitate the commission of other offences or alert a person to police investigations
  • the material discloses some unusual form of surveillance or method of detecting crime
  • the material is supplied to police only on condition that the contents will not be disclosed
  • the material contains details of private delicacy to the maker
  • the material relates to the internal workings of Tasmania Police, or other regulatory agencies
  • the material relates to national or State security
  • the material relates to a confidential counselling communication within the meaning of s127B of the Evidence Act 2001

Where there is disagreement between a prosecutor and police as to what, if any, of the sensitive documentation, material or information should be disclosed and there is no claim of public interest immunity, then in cases being prosecuted by counsel, the matter is to be referred to the Director or Deputy Director to determine whether the document should be disclosed or whether the charges should be reduced in order for the document to be no longer relevant or whether public interest immunity or legal professional privilege should be claimed.

If, after consultation with the Director or Deputy Director, a public interest claim is maintained in support of immunity against disclosure, the prosecutor must advise the defence that material, without specification, has been withheld on a claim of immunity. If the defence is not satisfied with that claim or any consideration of its submissions by the Office the matter should be submitted to the court for resolution prior to trial.

In cases where a claim of public interest immunity is to be pursued or is being pursued, then the question of disclosure will be determined by the outcome of that claim. However, where a claim is unsuccessful but the prosecutor is of the view the material should not be disclosed, he or she should seek advice from the Director as to whether the case should continue (see Prosecutors’ duties).

Similarly, if the claim is successful but the prosecutor is of the view that the non-disclosure of the material could seriously prejudice the defence at trial, the Director should be consulted to determine whether the charge or charges to which the material is relevant should be withdrawn or whether the accused should be charged with an alternative or lesser offence that would not necessitate the production of the withheld material.

Further, in some cases the mere disclosure of the claim of public interest immunity will disclose what is likely to be the material over which the claim is made. Again, in those circumstances, the Director is to be informed in order to decide whether the case should continue or not or whether alternative charges should be considered.

Regard should also be had to the protection of privacy of individuals. Unless relevant, care should be taken not to disclose personal information such as a person’s address. In particular, care should be taken in respect of medical records or reports to only disclose matters relevant to the offence.

21.5 Police informants

Generally speaking, the identity of a police informant is immune from disclosure (see AB v CD [2017] VSCA 338 at [45]). The reason for this is:

  • The protection of the identity of informants is necessary to maintain confidence in the ability of police to protect informants and to facilitate the ongoing use of informants
  • The protection of the individual informer

However, this rule is subject to the public interest in an accused person obtaining a fair trial. That situation will occur where there is good reason to believe that the disclosure of an informant’s identity may be of substantial assistance to an accused person (see AB v CD [2017] VSCA 338 at [47] and [59]; AB v CD (2018) 362 ALR 1 at [9]-[10]).

In some cases the assistance of the identity of the informant and the information provided may be great. However, the danger to the informant of disclosing his or her identity may be significant. In such cases the prosecution may elect not to proceed or the court may stay the prosecution (see AB v CD [2017] VSCA 338 at [66]; AB v CD (2018) 362 ALR 1 at [9]).

The identity of a police informant is not to be disclosed to anybody by a Crown prosecutor without the express authorisation of the Director. Where there are grounds to conclude that such a disclosure would materially assist an accused person, a risk assessment needs to be obtained from Tasmania Police as to the dangers to the informant of any such disclosure. The Director will then determine whether disclosure will be made or whether the prosecution will not proceed.

Finally, if it is determined that the disclosure will be made, the informant should be informed and given an opportunity to apply to the court to stay the Director from making such a disclosure (see AB v CD [2017] VSCA 338 at [88]).

Last updated: 31 July 2026

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