Bradley v Senior Constable Chilby [2020] NSWSC 145
Bradley v Senior Constable Chilby [2020] NSWSC 145 · Read the judgment on AustLII
Catchwords: Disclosure – Police
The Supreme Court has reiterated that the duties of disclosure are broad, and a failure to comply with them can (and here, did) result in a temporary stay of proceedings, where police refused to produce a criminal history, Facts Sheets, and records of conversations between police officers and the police prosecutors.
The appellant was charged with Assault Occasioning Actual Bodily Harm: he was alleged to have bitten the complainant’s finger down to the bone while they were at a friend’s house. Six weeks later the complainant gave a statement to police, and a couple of weeks after that the appellant was interviewed in relation to the allegation. He agreed that he’d bitten the complainant, but responded that the complainant was drug-affected, and it was done in self-defence. The Officer in Charge (‘OIC’ – referred to throughout the judgment as ‘the prosecutor’ in a way which might rankle for some criminal practitioners, and so isn’t adopted in this summary) had a conversation with a more senior officer, as well as with police prosecutors (presumably about the decision to prosecute). The appellant was released pending further investigations. The OIC was eventually advised to get some photos of the injuries from the complainant, then charged the appellant shortly after receiving those photos.
The accused pleaded not guilty and was listed for hearing in the Local Court. In advance of that hearing, the solicitor for the accused issued a subpoena, and when the subpoena was not complied with satisfactorily sent the OIC, the police prosecutors, and the solicitors representing the Commissioner of Police correspondence setting out in some detail the prosecution’s duty of disclosure by reference to authority. The documents sought were, broadly: the complainant’s criminal history and a range of Police Facts Sheets relating to her, all other material held by police relating to her credibility, records of conversations between the OIC and either the superior officer or the police prosecutors, Custody Management Records, and anything else ‘which could reasonably be seen as capable of assisting the defence case’. When the documents still weren’t satisfactorily produced, the accused put on a Notice of Motion seeking orders that the material be disclosed or, in lieu, a temporary stay of the proceedings until the prosecution complies with its duty of disclosure.
The Magistrate dismissed the Notice of Motion for reasons including that it was said to involve a ‘fishing expedition’, and that it was said to be an attempt to frustrate the prosecution of the matter by putting the police to additional work. The accused appealed to the Supreme Court, upon grounds asserting that the magistrate erred in finding the items were not within the prosecution’s duty of disclosure, by finding it was a fishing expedition and was for an improper purpose, and that the magistrate had taken into account irrelevant considerations by including the resources of the police.
The appeal was heard by Adamson J, sitting alone. Her Honour found that the Magistrate erred in several ways. As a result of the interview the accused had done, it must have been plain to the OIC that the issues in the hearing would be self-defence, the complainant’s propensity to violence, her drug use, and hence her credibility and reliability (at [6]). From [46] onwards, the judgment then sets out a summary of the duty of disclosure, how breaches are dealt with pre-trial (at [51]ff), and how they are dealt with if discovered after conviction (at [54]ff), providing a useful whistle-stop tour of some of the authorities on this important subject. The earlier decision which seemed to be the fulcrum of this decision was R v Reardon (No 2) (2004) 60 NSWLR 454 (‘Reardon’) at [46]-[54], which provides that the prosecutor must disclose material which, first, is or might be relevant to an issue in the case; secondly, raises a new issue, the existence of which is not apparent from the prosecution case; or, thirdly, holds out a real prospect of providing a lead on evidence in the first two categories.
Her Honour considered that the facts sheets for any offences for which the complainant had been convicted and with which she had been charged might have shown whether the complainant had a propensity to be aggressive without provocation, and was accordingly likely to fall into one of the categories set out by Reardon (at [66]). Any record of the conversations between the OIC and the more senior officer or the police prosecutors was also likely to fall within one or more of the categories from Reardon (at [67]).
The position taken by the prosecution in the Local Court (and adopted by the Magistrate) was that if the hearing could be conducted without the material sought, then there was no obligation to disclose it. That proposition finds no support in the authorities, and the Magistrate’s finding was erroneous (at [68]). Moreover, the Magistrate’s concern for the resources of the NSW Police was misplaced. Even assuming that resources could be relevant, there was no evidence suggesting that there was any particular difficulty in locating the documents sought, nor was there any foundation for the finding that the accused’s solicitor had sought the disclosure for the improper purpose of diverting the prosecution’s resources (at [69]-[70]).
In all those circumstances, her Honour granted a temporary stay of proceedings until such time as the prosecutor complied with their duty of disclosure.
Despite the obvious importance of this decision, practitioners should be aware that although here the Court found that discussions between this particular OIC and police prosecutors were disclosable, that may not universally be the case. In particular, not discussed is the question of what is disclosable where the police prosecutor is legally-qualified and providing legal advice to an officer about a prosecution – in which case there may be a question of Legal Professional Privilege.