Marwan v Director of Public Prosecutions [2019] NSWCCA 161

Marwan v Director of Public Prosecutions [2019] NSWCCA 161 · Read the judgment on AustLII

Catchwords: Prosecution duty of disclosure – ‘disclosure’ of overseas records – absence of general duty to make investigations

In this decision the CCA has assumed, without deciding, that at least sometimes there is an obligation on the Crown to make further inquiries. But that obligation, if it exists, is reserved for an ‘appropriate case’ (whatever that might mean), and calling upon it poses a number of hurdles for an accused person.

The applicant was charged with sexual intercourse without consent. The complainant was on holiday from the United Kingdom and she engaged in some consensual sexual activity with the applicant in a laneway near a nightclub. It was alleged that at some point in that activity the complainant withdrew her consent. The principal issue in the trial was consent: whether it had been withdrawn, and if so whether the accused was aware of that fact. An ambulance officer noted after the event that the complainant reported having anxiety and depression, and that the complainant had been off her medication for four months since coming to Australia. The complainant was also observed after the incident having what a layperson described as a panic attack. At trial the applicant sought a temporary stay of the proceedings, pending the disclosure by the prosecution of (relevantly to this summary) the complainant’s U.K. mental health records. A District Court judge declined to grant the temporary stay, and an interlocutory appeal was lodged to the CCA.

The main issue in the appeal was accordingly the scope of the duty of disclosure in cases where the prosecution do not have the documents in question, and they are not even arguably under their control. The Court (Leeming JA, R A Hulme J agreeing; Adamson J agreeing with the outcome, but distancing herself from the reasons of the plurality) held that, even if there is a duty which extends to making further inquiries, it did not extend to the facts of this case (at [76]). His Honour examined the history of the ‘duty’ of disclosure, and held that actually it is no more than an extension of the entitlement of the accused to a fair trial, rather than a directly enforceable right (at [33]). Thus the ‘right’ of an accused turns on the risk of unfairness of the trial; an applicant must establish that the duty of disclosure extends to a duty to make further inquiries in the present case, and further that only if the inquiry occurs and the results are disclosed will the risk of unfairness be avoided (at [38]). There is a lack of binding authority on the obligation to make further inquiries; authority did suggest, obiter, that it might arise in an ‘appropriate case’, but provided no guidance about what that appropriate case might look like (at [45]-[47]). The obligation, if it exists, gives rise to a number of complicated issues, some of which are summarised at [54]-[59]. Assuming that the obligation exists as a matter of law, it nevertheless remains necessary for the applicant to identify the inquiries that might be made, and what might result from them (at [40]). In this case there was no evidence of what form mental health records from the U.K. might take, how they might be obtained, or how long it might take (at [41]). There was no particular authority pointed to where the duty of disclosure had been held to extend to further inquiries to seek to obtain mental health records of a complainant (at [67]). That said, there was some authority for the proposition that it might arise where there is sound reason to suspect that material exists which might impinge upon credibility or reliability (quoted at [68]). In this particular case, the Court held that the circumstances did not come close to giving rise to a ‘sound reason’ (at [72]). The fact that the complainant had been diagnosed with anxiety and depression, and had not been taking her medication for four months was disclosed. The defence was able, if it so chose, to deploy that information in the course of the trial. The defence had the same material as the Crown and there could be no suggestion that there was an unreasonable attempt to refrain from inquiries (at [73]). Thus, assuming that there is a duty of disclosure extending to making further inquiries, it did not extend to the facts of this case (at [76]).