8. Análisis de Riesgos e Intangibles
8.4 Riesgo Tecnológico
Although courts cannot always remedy the denial of human rights occurring outside the judicial system, they cannot tolerate it within that system.103 Those charged with criminal offences, faced with DNA evidence in the case against them must be assured of this protection. The prosecutor also has a special role to play in protecting accused persons’ human rights.
This responsibility is reflected in the entire conception of the modern prosecutor and consequent duties imposed on prosecutors. For example, former DPP and current ACT Supreme Court judge Richard Refshauge SC has stated that the prosecutor has a duty not only to prosecute persons charged with crimes but also to balance this duty by ensuring that prosecutions are not conducted at any cost. This means that DPPs must develop policies and guidelines to achieve the requisite fair balance.104 Where DNA evidence is concerned, such guidelines will have particular relevance in cases where the only, or most significant, inculpatory evidence is DNA evidence or where the DNA evidence involves a new or emerging area of analysis.105
By seeking to ensure that the trial is not just a bare fisted knuckle fight where ‘anything goes’, the right to a fair trial effectively determines the nature of the prosecutor’s role within the adversarial criminal trial. It assigns to the prosecutor the role of a ‘Minister of Justice’ and imposes certain consequent duties upon the prosecution.106 One aim of these duties is to achieve equality of arms107 between the prosecution and the defence. In this regard, perhaps the most important of these duties
restrictive interpretation in AG (NSW) v Milat (1995) 37 NSWLR 370. A more recent case is that of Cornelius Stevens v Emily Mccallum [2006] ACTCA 13 (Higgins CJ, Crispin P and North J).
103 McInnis v The Queen (1979) 143 CLR 575, 593 (Murphy J).
104 Richard Refshauge, ‘Victim’s Rights and the Role of the Prosecutor’ (Paper presented at International Society for Reform of Criminal Law Conference, Brisbane, July 2006) 19. Also seen by the High Court in Mallard v The Queen [2005] HCA 68, 82.
105 See 5.5 for discussion on the decision to prosecute in cases where DNA is the only or the most significant part of the evidence brief.
106 David Plater and Sangeetha Royan, ‘The Development and Application in Nineteenth Century Australia of the Prosecutor’s Role as a Minister of Justice: Rhetoric or Reality?’ (2012) 31 University of Tasmania Law Review 78; David Plater, ‘The Development of the Prosecutor’s Role in England and Australia with Respect to its Duty of Disclosure: Partisan Advocate or Minister of Justice?’ (2008) 25 University of Tasmania LawReview 111; David Plater, ‘The Development of the Role of the Prosecuting Lawyer in the Criminal Process: “Partisan Persecutor” or “Minister of Justice”?’ [2006] Australia and New Zealand Law and History E-Journal 1. 107 Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8; Human Rights Act 2004 (ACT) s 8.
(and for this research) is the duty of disclosure.108 The right to a fair trial imports the equality of arms principle into criminal trials and provides the basis of the prosecutors’ duty to disclose certain information to the defence.
The equality of arms principle is founded on the inherent and unbalanced allocation of resources between an accused and the State. In many cases this may create an unequal playing field regarding forensic experts and DNA reports because the prosecution has access to State forensic laboratories.
In the Australian adversarial system where the provision of forensic science for solving crime is provided almost exclusively by the State (unlike the private system in the United Kingdom),109 the courts cannot take sole responsibility for addressing the resource implications of the fair trial principle — like those created by the availability and allocation of resources involved in acquiring and presenting DNA evidence. This makes the designated role of the prosecutor and the duty of disclosure crucial elements in achieving fair trials in this regard.
A prosecutor must act as a ‘Minister of Justice’ and must not embrace notions of ‘winning’ or ‘losing.’110 This means that although prosecutors have at their disposal the resources of the State as State government agencies, this is balanced somewhat by their onerous duty of disclosure.111 The
108 See for example, Prosecution Policy of the Australian Capital Territory, Office of the Director of Public Prosecutions (ACT), 12 <http://www.dpp.act.gov.au/__data/assets/pdf_file/0006/715506/PROSECUTION- POLICY-OF-THE-AUSTRALIAN-CAPITAL-TERRITORY.pdf>:
Disclosure 4.1: The prosecution is under a continuing obligation to make full disclosure to the accused in a timely manner of all material known to the prosecution which can be seen on a sensible appraisal by the prosecution:
• to be relevant or possibly relevant to an issue in the case;
• to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; or
• to hold out a real as opposed to fanciful prospect of providing a lead to evidence which goes to either of the previous two matters.
4.2: The prosecution is also under a duty to disclose to the defence information in its possession which is relevant to the credibility or reliability of a prosecution witness, for example:
• a relevant previous conviction or finding of guilt;
• a statement made by a witness which is inconsistent with any prior statement of the witness; • a relevant adverse finding in other criminal proceedings or in non-criminal proceedings; • evidence before a court, tribunal or Royal Commission which reflects adversely on the witness; • any physical or mental condition which may affect reliability;
• any concession which has been granted to the witness in order to secure the witness’s testimony for the prosecution.
109 Since the closure of the FSS (UK).
110 See for example Plater and Royan, above n 106.
111 In the ACT this legislation is governed by a number of statutes, including the Legal Profession (Solicitors) Rules
2008 (ACT) r 23.5-23.7. In Victoria, it may be found in the Victorian Bar Inc Practice Rules 2009Rules 141- 142.
obligation of disclosure is only one aspect of the prosecutor’s broader obligation of a ‘Minister of Justice.’112 Rand J in the Canadian case of Boucher v The Queen113 aptly describes the role of the prosecutor as being:
not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.114
In fulfilling their duty to ensure that a trial is fair,115 the prosecution must disclose to the defence pre- trial any material pointing to the innocence or guilt of the accused. This includes DNA evidence that either excludes or fails to exclude a defendant in matching a DNA sample to a crime scene or victim. The case of R v Drummond(No 2)116 demonstrates the importance of defence counsel being notified in a timely manner about the DNA evidence that the prosecution counsel will adduce. In this case, it was a point that was entirely germane to the conduct of the defence case as the DNA evidence in question had been mentioned in reports but defence counsel did not believe it would be adduced by the prosecution nor did they realise the significance of the evidence for this case.117
Examples of the duty to disclose may be found in several statutes, rules of procedure and prosecutorial policy in Australian jurisdictions. Some examples include the Australian Capital Territory Barristers’
Rules,118 the Victorian Bar Incorporated Practice Rules119 and the Crimes (Criminal Trials) Act 1999 (Vic).120 These provisions mirror the UK’s Crown Prosecutor’s Disclosure Manual.121 Also of relevance
112 See further discussion of the role of the prosecutor as a minister for justice in David Plater and Lucy De Vreeze, ‘Is the Golden Rule of Full Prosecution Disclosure a Modern Mission Impossible?’ (2012) 14 Flinders Law Journal 133.
113 Boucher v The Queen (1955) SCR 16. 114 Ibid 24.
115 Mallard v The Queen [2005] 224 CLR 125, 155. 116 R v Drummond (No 2) [2015] SASCFC 82.
117 Though in this case the evidence in question was mentioned in forensic reports and counsel did not realise it would be adduced, nor the significance of the evidence if it were produced in court.
118 See rr 66–72. 119 See rr 141–142. 120 See ss 6–7.
121 Keir Starmer and Jim Barker-McCardle, Disclosure Manual, Crown Prosecutors Service, <http://www.cps.gov.uk/legal/d_to_g/disclosure_manual/disclosure_manual_foreword/>.
to the present study is the Prosecution Policy of the Australian Capital Territory122 and the DPP Prosecutions Policy, ‘Disclosure’ in Victoria.123 The prosecution duty of disclosure at common law is also extensive.124
The Crimes (Criminal Trials) Act 1999 (Vic), introduced several disclosure requirements for both prosecution and defence. The prosecutor must provide the defence with a summary of its opening and notice of pre-trial admissions 28 days before the trial date.125 The defence must, within 14 days of the trial date, file a response to the prosecution opening. This response must ‘identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issues is taken.’126 This displaces the common law defence right to remain silent in relation to the nature of its case. The rationales for imposing disclosure obligations on the defence relate primarily to case management and efficiency considerations.127 The most common criticisms of these provisions are that they may result in an accused being compelled to facilitate his or her own conviction and that they displace the accused’s right to silence.128 Flatman and Bagaric contend however, that these provisions do not require an accused to disclose any more than was previously the case; they simply ‘hasten’ disclosure.129 Also defending the defence disclosure provisions, Refshauge J argues that if they help to ensure that genuine issues in a trial are litigated, and that only genuine issues are litigated, then there
122 This Policy was created after the formation of the Director of Public Prosecutions Act 1990 (Vic). Office of the Director of Public Prosecutions (ACT), above n 8, 12 (see quoted text).
123 Director of Public Prosecutions (Vic), Director’s Policy:Disclosure (24 November 2014) Office of Public Prosecutions Victoria, <http://www.opp.vic.gov.au/getattachment/bf6aca19-dbf7-4044-a4f7- be7b835cc2c7/5Disclosure.aspx>:
PART 3 – Summary
3. Subject to any claim of public interest immunity or legal professional privilege, or any statutory provisions to the contrary, the prosecution must fulfil its disclosure obligations under the Criminal Procedure Act 2009 and disclose to the accused any other material which:
(a) is relevant or possibly relevant to an issue in the case; or
(b)raises or possibly raises a new issue whose existence is not apparent from the evidence the prosecution proposes to use; or
(c) holds out a real as opposed to fanciful prospect of providing a lead to evidence which goes to (a) or (b) above.
4. When in doubt about whether material should be disclosed, the matter should be discussed with a Crown Prosecutor or the DPP.
124 See, for example, R v Stinchcombe (1991) 68 CC (3d) 1; R v Ward [1993] 1 WLR 619; R v Keane [1994] 2 All ER 478; R v Gray (2001) 184 ALR 593 and R v Mallard (2005) 224 CLR 125.
125 Crimes (Criminal Trials) Act 1999 (Vic) s 6(1)(a). 126 Ibid s 7(2).
127 Geoff Flatman and Mirko Bagaric, ‘Accused Disclosure – Measured Response or Abrogation of the
Presumption of Innocence?’ (1999) 23 Criminal Law Journal 327, 328.
128 Geoff Flatman and Mirko Bagaric, ‘Accused Disclosure – Measured Response or Abrogation of the
Presumption of Innocence?’ (1999) 23 Criminal Law Journal 327. 129 Ibid 330.
is no doubt that they will reduce trial times and increase certainty for those involved in the criminal process.130
The prosecution duty of disclosure is extensive, because in the past, failures of disclosure have led to miscarriages of justice. In Mallard v The Queen,131 a principal authority on the matter, the High Court discussed the scope of this duty.132 This case also considered the role and responsibility of police in ensuring that the evidence given to the DPP is accurate and that no evidence has been withheld. One of the successful arguments in the High Court appeal was that the prosecution failed to disclose to the defence at the trial material which was relevant or potentially relevant to issues in the case, or which raised or possibly raised new issues not otherwise apparent, or which could have led to such matters being discovered.133
The difficulty for the DPP was that they were reliant on the police to handle the investigation and consequently hand over a brief of evidence that was representative of what was found during the investigation. Evidence that was contrary to the defendant’s apparent ‘confession’ and did not place him near the crime scene was omitted from police statements and reports. This would have prevented the prosecution from presenting a fair and impartial case from the outset of the trial. In the second ‘appeal’ in this case to the West Australian Court of Criminal Appeal, the prosecution conceded that, in several respects, material evidence should have been disclosed to the defence at trial but had instead been withheld.134 This concession arguably established the existence of an unreasonable or unsustainable verdict. Kirby J found that a miscarriage of justice had occurred in Mallard, because of the culmination, variety, number and importance of material evidence that was not disclosed or that was suppressed during the investigation and initial trial.135
130 Richard Refshauge QC, ‘Creating a Criminal Justice System for the 21stCentury’ (2000) 9 Journal of Judicial
Administration 185, 191.
131 Mallard v The Queen (2005) 224 CLR 125.
132 This was also considered in detail in Lawless v The Queen (1979) 142 CLR 659, where the majority found that
‘fresh evidence’ relied upon would not have been likely to have led to a different result in a new trial. Murphy J dissented in that case. This was because the trial judge had directed the prosecution to hand over copies of all statements by all witnesses to the applicant and this was not done with a statement that Murphy J believed could have been useful to the applicant. This, his Honour believed meant that the applicant suffered a miscarriage of justice on the ground of the suppression of the evidence in and of itself (at 683). See also R v Apostilides (1984) 154 CLR 563 where the High Court affirmed the responsibility borne by a prosecutor in the conduct of a criminal trial.
133 Mallard v The Queen (2005) 224 CLR 125, 126. 134 Mallard v The Queen (2003) 28 WAR 1, 25, 29, 32. 135 Mallard v The Queen (2005) 224 CLR 125, 145.
Although it is difficult to define exhaustively the material that must be disclosed by the prosecution to the defence and to the court, the list would certainly include several obligations. These are:
• To provide statements of witnesses proposed to be called;
• To provide notice of discrepancies between a statement and the evidence proposed to be led; • To provide statements of witnesses not proposed to be called;
• To provide prior convictions of prosecution witnesses and other material relevant to credit; • To provide other material which could reasonably assist the defence case; and
• To provide all material relevant to mitigation of sentence.
In relation to DNA evidence, the duty of disclosure clearly requires all expert reports to be provided to the defence. If a prosecutor is given a forensic biology report on DNA evidence and that report excludes or does not exclude the accused, this information is likely to fall under the category of information that must be presented to the defence. The English Court of Appeal case R v Maguire136 held that in the forensic context, a forensic scientist who is an expert for the prosecution is under a duty to disclose material which he or she is aware may have some bearing on the offence alleged, or the more general circumstances of the case:
The disclosure will be to the authority which retains him and which must in turn (subject to sensitivity) disclose the information to the defence. We hold that there is such a duty because we can see no cause to distinguish between members of the prosecuting authority and those advising it in the capacity of a forensic scientist. Such a distinction could involve difficult and contested inquiries as to where knowledge stopped but, most importantly, would be entirely counter to the desirability of ameliorating the disparity of resources as between the Crown and the subject.137
Beyond the provision of a DNA profile and the statistical evaluation of a match between a sample and a random member of the population however, is the importance of providing further information, as demonstrated by the case of Jama. This arguably includes information beyond the forensic report and could extend to the forensic file compiled during the investigative phase by police officers and by forensic biologists collecting, testing, analysing and presenting DNA evidence in criminal trials. The duty of disclosure may even extend to enabling the defence to have access to prosecution experts who wrote the reports and compiled the evidence to facilitate their understanding of the contents of the reports and their implications. The extent of the prosecution duty of disclosure vis à vis DNA
136 R v Maguire [1992] 2 WLR 767 (QB). 137 Ibid 958.
evidence is yet to be tested and/or fully defined. This means that current professional practices derived from the adversarial criminal justice culture are likely to fill this void not necessarily to the advantage of the defence or in ways that advance the defence ability to understand or challenge DNA evidence either in general or in particular cases.
In any event, the duty of disclosure must be adhered to in a timely manner. If information is presented only shortly before trial, the defence team has a much more limited ability to understand and challenge that evidence. If the prosecutor fails to fulfil these duties, then a fundamental tenet of the adversarial system, and indeed the right to a fair trial, are undermined and the consequences, as in
Mallard, may be a miscarriage of justice.
Expert evidence and the opinion rule
Your Honour, I swore to tell the truth, the whole truth and nothing but the truth, but every time I try that barrister over there complains.138
Both Victoria139 and the ACT140 have enacted the uniform evidence legislation.141 This legislation governs the admissibility of expert opinion in both Victoria and the ACT and overrides any previously applied common law rules. Accordingly, the common law rules were not considered in this research.