Chapter 14

Introduction

Term of reference 4 required the Royal Commission to inquire into and report on the current use of information in the criminal justice system from human sources who are subject to legal obligations of confidentiality or privilege. Term of reference 4 also directed the Commission to examine a very specific aspect of disclosure in criminal cases; namely, the appropriateness of Victoria Police’s practices for the disclosure or non-disclosure of the use of such human sources to prosecuting authorities.

Term of reference 5b required the Commission to consider measures that may be necessary to address any systemic or other failures arising from the use of information obtained from human sources subject to legal obligations of confidentiality or privilege in the criminal justice system, and how such failures may be avoided in the future.

It is important to acknowledge that the disclosure practices that existed throughout the period that Ms Nicola Gobbo was providing information to Victoria Police differ in many respects to current practices. Some of those historical practices and their application to the events relevant to terms of reference 1 and 2 are discussed in Chapter 9.

This chapter does not address these historical practices but instead sets out how the current law and policy operate and the Commission’s conclusions about the adequacy and appropriateness of current practices. As required by term of reference 4, this chapter also considers whether there are adequate safeguards for how:

• Victoria Police prosecutes summary proceedings
• the Victorian Office of Public Prosecutions (OPP) prosecutes indictable proceedings on behalf of the Victorian Director of Public Prosecutions (DPP).

Prosecutors play a vital role in ensuring that criminal proceedings are conducted fairly. They have several well-defined duties, including the duty of disclosure. For a prosecutor to fulfil their role effectively, it is critical that they have knowledge of material that is relevant to an accused person’s case. This includes any information that could undermine that person’s right to a fair trial. The prosecution needs all relevant information to assess whether a fair trial can occur. Without this information, the prosecution is unable to safeguard against the risk of an unfair trial.

The importance of the prosecution being aware of all matters relevant to an accused person’s case is starkly illustrated in the events that led to this inquiry. The Court of Appeal of the Supreme Court of Victoria observed that because the matters relating to Ms Gobbo’s role as a human source were subject to a public interest immunity (PII) claim and Victoria Police did not disclose this information to the DPP or the court before the relevant convictions, there was no possibility of a prosecution being withdrawn or trial being stayed (stopped either temporarily or indefinitely). As the Court of Appeal stated, the failure of the Chief Commissioner to disclose the relevant matters to the DPP resulted in a ‘very difficult and unfortunate situation’.¹

In Victoria, the law of PII typically operates to prevent the police and the prosecution from disclosing to an accused person that a human source has provided information relevant to their case. This is based on the need to protect the safety of the human source as well as the community benefits to be gained from the continued use of human sources, who may only provide information to police if confident that their identities will be protected. In most criminal proceedings in Victoria, police do not generally disclose to the prosecution the existence of a human source.²

Victoria Police’s practices for disclosing information from human sources who have legal obligations of confidentiality or privilege are essentially covered by the same laws and policies that regulate the use of human source information more generally in the criminal justice system. To address this term of reference, the Commission has therefore had to examine:

• how disclosure operates in the criminal justice system more broadly
• general principles that apply to the disclosure of human source information.

It is important to note the limits of term of reference 4 and therefore the discussion in this chapter. Human sources can be used in the criminal justice system as either sources of information only or sources of information who are also witnesses. Term of reference 4 related to the use of human sources with legal obligations of confidentiality or privilege as sources of information only. Situations when a human source is involved as a co-accused in the criminal acts of the accused person, or when a human source becomes a witness, are outside the scope of term of reference 4.

Having reviewed the current law and practice in this area and considered stakeholders’ views and experience, as well as the approach taken in other jurisdictions, the Commission considers that there is scope for reform in the conduct of criminal proceedings when an investigation has involved information from a human source. In particular, the Commission considers that Victoria Police’s processes for disclosing relevant material to prosecuting authorities should be strengthened. It recommends that disclosure certificates be introduced to remind Victoria Police officers of their disclosure obligations and encourage them to provide information to prosecuting authorities clearly and transparently.

The Commission also considers that there is scope to improve disclosure practices more broadly; in particular, positive cultural change, effective leadership and improved training of Victoria Police officers are crucial to achieving sustained and long-term improvements in disclosure practices.

Current context and law

This section sets out current law and practice in Victoria regarding the use and disclosure of information from human sources who are subject to legal obligations of confidentiality or privilege.

It outlines:

• the prosecution’s duty of disclosure in Victoria, including how disclosure operates more broadly in the criminal justice system and the key principles that govern the disclosure of human source information
• the current processes and procedures for the disclosure of information subject to a PII claim
• how police disclose information to prosecuting authorities in other Australian jurisdictions.

The prosecution’s duty of disclosure

In Victoria, as in other Australian jurisdictions, the prosecution’s duty of disclosure comes from a combination of legislation, common law and professional guidelines.³ Further, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) recognises that a person charged with a criminal offence in Victoria is entitled to be ‘informed promptly and in detail of the nature and reason for the charge’.⁴

Prosecutors have a significant role in the proper administration of justice. They represent and exercise the powers of the state; therefore, they have a duty to ensure that the prosecution’s case is presented fairly and impartially.⁵ The High Court of Australia recently described this duty as involving the prosecutor presenting to the court all ‘available, cogent and admissible evidence’.⁶ In criminal proceedings, the prosecutor’s role is not to obtain a conviction by any means necessary. Instead, it is to give the court all relevant and reliable evidence surrounding a case and to address the jury about how to use that evidence according to the law.⁷

The duty of disclosure is a key part of the prosecution’s duty to conduct cases fairly and to make an accused person aware of the case against them. Accordingly, the prosecution has a duty to disclose all evidence that is relevant to the case against the accused person, even if that evidence might undermine the prosecution’s case or help the accused person.⁸

For example, in a case where an accused person is charged with an armed robbery at a convenience store and their defence is that they were not present at the time of the robbery, evidence from a witness that identifies the accused person as the person who committed the robbery is relevant and supports the prosecution case. If another witness asserts that a different person committed the robbery, the prosecution should also disclose this information to the accused person, even if it undermines the prosecution case by showing that someone else may have committed the robbery.

The duty of disclosure applies to ‘the prosecution’ in a broad sense. This includes police prosecutors, the DPP and other lawyers who act on behalf of the DPP to prosecute a criminal offence. This also means that for the purposes of the prosecution’s duty of disclosure, police are part of the prosecution.⁹ The reason for this is that the prosecutor can only fulfil their duty of disclosure to the extent that they know about the information that must be disclosed to the accused person, because they have been given the information.¹⁰ The prosecution therefore has a duty to disclose all relevant material that the police possess, regardless of whether the individual prosecutor is also aware of that information.

Disclosure helps to make the legal system more equitable. Police and the prosecution have the resources of the state behind them, so requiring the prosecution to disclose all relevant material to an accused person helps achieve ‘equality of arms’ between the prosecution and the defence, and therefore a fair trial for the accused person.¹¹

The prosecution must disclose to an accused person any material that is known to them that, on their assessment:

• is relevant or possibly relevant to an issue in the case
• raises or possibly raises a new issue that is not apparent from the evidence the prosecution proposes to use
• holds out a ‘real as opposed to fanciful prospect’ of providing a line of inquiry that may lead to material that is relevant to an issue in the case or raise a new issue.¹²

There are exceptions to this duty to disclose all relevant known material. These are:

• claims of PII
• claims of legal professional privilege
• laws that restrict providing certain information (also known as statutory prohibitions).¹³

This chapter is primarily concerned with exceptions to disclosure based on PII claims. The significance of PII to the disclosure of human source information is discussed further below.

The consequences of the prosecution failing to disclose relevant material to an accused person can be serious. It can result in a conviction being successfully appealed with a resulting retrial, an acquittal or an order for a ‘permanent stay’, which means the proceedings are stopped by the court. This may occur even when there is an ‘innocent failure to disclose relevant material’; that is, when the failure to disclose was not intentional.¹⁴

The police and prosecutor’s roles in fulfilling disclosure requirements

The prosecution does not play an investigative role in the criminal justice system. Prosecutors must act based on the evidence that police supply: that is, they rely on police investigators providing all relevant information to enable them to comply with their duties of disclosure to an accused person and the courts.¹⁵ This is why the duty of disclosure extends to police.¹⁶

The relationship between the police and the prosecution is one of interdependence and cooperation and it starts early in the prosecution process. There are some differences between the process for indictable offences, which must be prosecuted by the OPP and the process for summary offences, which can be prosecuted by police.

Some of the key differences between summary and indictable proceedings are outlined in Box 14.1.

Regardless of the type of proceeding, summary or indictable, the law specifies the disclosure obligations of police. In Victoria, these are primarily set out in the Criminal Procedure Act 2009 (Vic) (Criminal Procedure Act) and help ensure that disclosure occurs in an efficient and timely way.²⁰

A police officer who is responsible for fulfilling the disclosure obligations in the Criminal Procedure Act is referred to as an ‘informant’.²¹

The informant is responsible for starting criminal proceedings and has a range of responsibilities. The scope of an informant’s disclosure responsibilities varies depending on the nature of the criminal proceedings (that is, whether it is an indictable or a summary proceeding). There are slightly less onerous disclosure obligations in summary proceedings than in indictable proceedings.²² The next section explains the disclosure obligations for both types of proceedings.

Disclosure requirements in summary proceedings

In summary proceedings, police can disclose material to an accused person through a preliminary brief and, if the accused person requests it, through a full brief.

A preliminary brief must include materials such as a copy of the charge-sheet, which outlines the alleged offence; a notice about legal representation; the informant’s statement of the evidence that supports the charge; and a copy of the accused person’s criminal record, if they have one.²³ Even at this early stage, a police officer should disclose an outline of any material helpful to the accused person.

The informant must check boxes on a form indicating that the brief contains all required information available at the time the brief is prepared.²⁴ This form is prescribed by the Magistrates’ Court Criminal Procedure Rules 2019 (Vic).

An accused person can also request a full brief. A full brief is a more comprehensive form of disclosure. It must include basic material that has to be given in all cases (for example, the charge-sheet and a notice about legal representation), all material that the prosecution intends to rely on, and—crucially—material relevant to the charge that the prosecution possesses but does not intend to rely on at court.²⁵

Disclosure requirements in indictable proceedings

Generally, in indictable proceedings, after police have concluded their investigation, they will provide a brief to the OPP containing the material the police consider relevant to the charges. The brief will not include any material that the police consider is subject to a PII claim. The ordinary process of dealing with material that police identify as subject to a PII claim is described later in this chapter.

After charges are laid, the police and the prosecution continue to work together to ensure that all the relevant material that must be disclosed to the accused person is identified and then disclosed in accordance with the applicable legislation. For example, the Commission was advised that after the first hearing of an indictable matter, the OPP sends an information sheet to the police officer with responsibility for the case to help them fulfil their disclosure obligations. The information sheet also invites the officer to contact OPP solicitors about any questions or concerns they have about disclosure.²⁶ The pre-trial consultation process is outlined in Figure 14.1.

Figure 14.1: Pre-trial consultation between police and the prosecution ²⁷

In indictable proceedings, police disclose relevant material to an accused person through a hand-up brief. The hand-up brief must include material such as a copy of the charge-sheet, a summary of the key facts, any information or document that the prosecution intends to rely on (including diaries and notes kept by police investigating the offence, photos, statements from witnesses and transcripts of interviews) and any other relevant material that the prosecution possesses but does not intend to rely on.²⁸ The hand-up brief process is outlined in Figure 14.2.

Figure 14.2: Hand-up brief process ²⁹

If the accused person consents, the informant may also serve—that is, formally deliver—a plea brief to the accused person. The informant can do this at any time before a hand-up brief is served. The plea brief can be used instead of the full hand-up brief in cases when the prosecution and the accused person have had early discussions and the accused person has agreed that they will plead guilty to a charge or charges. The content of a plea brief will usually be much less extensive than a hand-up brief.

A plea brief must also include a copy of any statement from an alleged victim about the circumstances of the offence and any other statement relevant to the charge.³⁰

Continuing obligation of disclosure

Police have a continuing obligation of disclosure regardless of the nature of the proceedings.³¹ That obligation requires an informant to serve on the accused person and provide to the court any information that must be disclosed when it comes into the informant’s possession or notice. This needs to be done as soon as practically possible. The duty continues after the prosecution has completed the disclosure requirements under the Criminal Procedure Act outlined above.³²

The duty of disclosure starts when police first lay a criminal charge against an accused person. During the court proceedings, the duty requires police to provide to the accused person (or to the prosecution to provide to the accused person) any information that is relevant or possibly relevant to the case. This means that if the case against an accused person changes in the course of the proceedings, sometimes the information that must be disclosed to the accused person will likewise change as new issues arise.

The duty of disclosure continues even after the proceeding has been finalised.³³ For example, if an accused person has been convicted and police later become aware that a pivotal prosecution witness lied, police must provide this information to the DPP so that it can be disclosed to the accused person. Information that should have been, but was not, disclosed prior to conviction can lead to that conviction being set aside by a court.³⁴

Public interest immunity and the prosecution’s duty of disclosure

As noted earlier, both the common law and legislation outline exceptions to disclosure obligations. For the Commission, the most significant exception to disclosure obligations and the one that has featured in this inquiry concerns material that is subject to a PII claim.

PII is a principle recognised by the common law and is also a rule of evidence that allows relevant material not to be disclosed when:

• disclosing it would damage the public interest; and
• the need to avoid this damage outweighs the accused person’s right to have all relevant material made available to them.³⁵

The court is responsible for determining whether material should be withheld. In doing so, it must engage in a balancing exercise, considering whether the public interest in withholding disclosure outweighs the public interest in the proper administration of justice. If the court determines that the PII claim is made out, the material is not disclosed to the accused person and cannot become evidence in the case.

If the court finds the material is covered by PII, but it would assist an accused person to defend themselves in criminal proceedings, the proper course may be for the prosecution to abandon the prosecution or for the court to stay proceedings rather than to risk an unfair trial.³⁶

Process for claiming public interest immunity

As part of their disclosure obligations, police are required to inform the prosecutor and the accused person of the existence of material that is subject to a PII claim. As noted above, that material is ordinarily not provided to prosecutors in the brief prepared by police, unless it is requested by the prosecutors at the conclusion of the investigation stage. Rather, any PII claims made over that material are managed separately by Victoria Police, which may seek advice from the Victorian Government Solicitor’s Office (VGSO).

Often a court will hold a hearing about that material, in which it will decide whether to uphold the PII claims police have made. If a PII claim is litigated, the police are typically assisted by the VGSO in that proceeding. In some cases, Victoria Police invites the prosecutors to review the material, either before or after a PII claim has been determined by a court, in order to determine what, if any, significance it may have to a criminal proceeding. When police do this before a court has determined the PII claim, the material will generally be provided on the basis that it be treated confidentially until the claim is determined.³⁷ The prosecutors may decline to accept this invitation, consistent with their discretion to decide when it is appropriate to review PII material (explained below). Key steps in the ordinary process for the treatment of PII material in indictable proceedings are depicted in Figure 14.3.

Figure 14.3: Treatment of public interest immunity material in indictable proceedings ³⁸

• about the nature of the material and the basis of the claim
• whether a court has ruled on the claim—if so, police should give the prosecutor a copy of the ruling and the court’s reasons³⁹
• whether, in the opinion of police, the material, on a sensible appraisal, substantially weakens the prosecution’s case or substantially strengthens the accused person’s case.⁴⁰

In addition to the common law doctrine of PII outlined above, the Criminal Procedure Act sets out a number of public interest grounds on which the police officer who commences the criminal proceeding may refuse to disclose information to an accused person that they would otherwise need to disclose.⁴¹ This includes if the police officer considers that the disclosure would, or would be reasonably likely to:

• reveal the identity of a confidential source of information in relation to the enforcement or administration of the law or enable a person to find out that identity⁴²
• reveal policing methods in a way likely to compromise their effectiveness⁴³
• endanger the lives or physical safety of persons engaged in law enforcement or persons who have provided confidential information.⁴⁴

If police have material that is relevant to an accused person’s case but consider that the material should be withheld pursuant to a claim for PII, they can describe on a document the grounds for refusing disclosure. They do not have to specify the nature of the material. For instance, if police take a statement from a witness that refers to a meeting with a human source, this information could alert the accused person that there is a human source, and place the human source in danger. In these circumstances, police can describe the document—in this case, a witness statement—more generally, without specifying its nature. For example, the police could simply note that ‘other material relating to the proceeding has been withheld because of claims of PII’.

Police then provide this document to the accused person with the brief of evidence. The requirements for summary and indictable proceedings differ:

• In summary proceedings, the informant must provide the accused person with:
  • a document known as the ‘Form 10’ when the informant is required to serve a preliminary brief
  • a document known as the ‘Form 11’ when the informant is required to serve a full brief.⁴⁵
• In indictable proceedings, this document is known as the ‘Form 30’ and the informant must provide it to the accused person with the hand-up brief.⁴⁶

In all cases, the form should indicate that the brief accompanying it contains a written notice of ‘any information, document or thing’ that is relevant to the alleged offence but that the prosecution does not intend to use at the hearing.⁴⁷

In both summary and indictable proceedings, the form must be completed and signed by the informant. In indictable proceedings, in addition to providing the accused person with a hand-up brief and a Form 30, the police officer must also provide copies of both documents to the DPP.⁴⁸

If the accused person wishes to obtain further information about certain materials that police hold, including materials identified on the form, they can issue a subpoena seeking more information or request further disclosure. The Criminal Procedure Act sets out processes for an accused person to request further disclosure in both summary and indictable proceedings.

In summary proceedings, an accused person may apply to the Magistrates’ Court for an order requiring disclosure if the informant:

• has served on the accused person a statement of grounds for refusing disclosure; or
• has failed to disclose in accordance with the relevant provisions in the Criminal Procedure Act.⁴⁹

In indictable proceedings, further disclosure of the prosecution case may take place through the case direction notice process. A case direction notice, known as a ‘Form 32’, must be jointly completed by the accused person and the prosecution.⁵⁰ It outlines whether the accused person seeks any item listed in the hand-up brief that the informant has refused to produce. The Magistrates’ Court usually resolves these matters at a committal mention hearing.⁵¹ The County Court or the Supreme Court may exercise similar powers at a directions hearing as well as prior to and during trial.⁵²

Confidentiality of human source information

PII generally applies to prevent the disclosure of information identifying a human source, except when the identity of the human source needs to be disclosed because it is relevant to an accused person’s defence.⁵³ As noted earlier, this principle is based on the need to protect the human source’s identity and safety as well as the community benefits to be gained from the continued use of human sources, who require confidence that their identities will be protected.

The DPP Policy explains that a prosecutor’s disclosure obligations to an accused person are subject to any PII claim.⁵⁴ The prosecution may refuse to disclose material on the basis of PII, when, for example, disclosure of the material may place a person in danger or reveal the identity of a human source. The exception is where, as in Ms Gobbo’s case, the public interest in disclosing the human source’s identity and conduct is greater than the public interest in the human source’s anonymity.⁵⁵

In most Victorian criminal proceedings, police do not tell prosecutors whether human sources are being used, unless the source is involved in the accused person’s criminal acts (that is, they are a co-accused person or a witness).⁵⁶ In many cases, the informant who brings the charges against the accused person will also be unaware that a human source is involved. This may occur because the information has been deliberately quarantined within a separate area of Victoria Police of which the informant is not a part. As discussed further below, this occurred in relation to some cases affected by Ms Gobbo’s conduct, as the police officers who obtained information from Ms Gobbo about certain individuals’ criminal offending were often not the police informants or officers preparing the brief to the DPP.

This practice of police protecting the identity of a human source is consistent with the public interest position outlined above. Ms Gobbo’s role as a human source plainly demonstrates the tension between two key principles. On the one hand, the prosecution must disclose material of assistance to the defence, but on the other, they must ensure the human source is protected.⁵⁷

Resolving public interest immunity claims

PII claims can be brought before a court for determination in several ways. One way in Victoria, as in other Australian jurisdictions, is when an accused person challenges a PII claim where police have refused to disclose material that is relevant to the accused person’s case. Another way is when police apply to a court to seek a PII ruling.

Current practice is that, when a PII claim is argued in court, Victoria Police is typically represented by the VGSO. Within the VGSO, there is a police advisory branch (PAB) that focuses exclusively on matters related to Victoria Police. The PAB in most cases advises police on matters involving PII claims, as well as assisting police to litigate PII claims.

The DPP does not advise Victoria Police on PII issues; nor is it involved in resolving these claims in court. The DPP Policy specifically provides that when material is withheld from an accused person on the basis of a PII claim or other statutory prohibition, the person or agency that holds the material—not the prosecutor— must make any application or submission to a court to support that claim.⁵⁸

If the DPP knows what type of material police have withheld and believes that the material should be disclosed to the accused person as a matter of fairness, police can apply to the court to prevent the DPP from making such a disclosure.⁵⁹

In certain circumstances, the court can hear PII claims in an ex parte application (when an accused person is not notified and does not participate in the court proceedings). This approach is used rarely by courts, because it is effectively a hearing that the accused person has no knowledge or notice of, with a resulting risk of denying them a fair hearing.⁶⁰ When a PII application is heard ex parte, a court may appoint a special counsel or amicus curiae (friend of the court) to assist the court, making submissions conscious of the interests of the accused person.

If a PII claim is successful, the prosecution will not be required to disclose otherwise relevant material to the accused person. If the claim is rejected, as noted earlier, the prosecution may need to withdraw the case, or the court may need to stay proceedings, rather than risk an unfair trial with the information undisclosed.⁶¹

This is because the law recognises that there is a public interest in certain information remaining secret, but that there is also a public interest in the proper administration of justice. As outlined earlier in this chapter, the proper administration of justice involves ensuring that an accused person is aware of the case against them and that criminal proceedings are conducted fairly. The High Court has stated that the processes of criminal justice should not be distorted to prevent an accused person from defending themselves properly.⁶²

The prosecution’s duty of disclosure in other jurisdictions

Requirements for police disclosure of information to prosecuting authorities are broadly similar across all Australian jurisdictions. There are, however, some variations and each jurisdiction has its own statutory framework, practices and procedures.

The following section provides an overview of how police disclose information to prosecuting authorities across Australia.

Commonwealth

The Commonwealth Director of Public Prosecutions (CDPP) requires the informant to provide a list or copy of all materials that are disclosable. The informant is also required to notify the prosecutor if there is any material that is subject to a PII claim or other statutory prohibition.⁶³ In addition, the informant needs to complete a disclosure certificate, certifying their compliance with their disclosure obligations, and provide this to the prosecution.⁶⁴

The CDPP has its own procedures for disclosing to the defence that relevant material has been withheld from the accused person.⁶⁵ Often, the prosecution will disclose to the accused person the existence of the material and the nature of the claim through a letter.⁶⁶ How much information they can provide depends on the nature of the material.⁶⁷

Australian Capital Territory

In all matters where an accused person enters a plea of not guilty, the Australian Capital Territory Office of the DPP requires the informant to complete a certificate that is prepared with and attached to the full brief of evidence.⁶⁸ The certificate must provide information about any evidence not contained in the brief that may be relevant to the accused person, as well as any information about relevant witnesses who have not provided a statement.⁶⁹

The accused person is provided with a copy of the certificate. If the prosecution is aware of the existence of disclosable material that has been withheld and not referred to in the certificate, the prosecution must write to the accused person to notify them of this material.⁷⁰

New South Wales

The Director of Public Prosecutions Act 1986 (NSW) (New South Wales DPP Act) requires police to notify the New South Wales DPP of the existence of all relevant ‘information, documents or other things’ that might reasonably be expected to assist the case for the prosecution or the case for the accused person.⁷¹ If requested, police must disclose material to the prosecution, including material subject to a PII claim.⁷²

Police must also sign a disclosure certificate certifying that they have notified the prosecution of all such material and other information. This rule applies whenever a brief of evidence is provided to the DPP for advice, regardless of whether the matter is summary or indictable.⁷³

The disclosure certificate is not provided to the accused person. Instead, the accused person is notified by a letter of disclosure drafted by the prosecution. The letter of disclosure informs the accused person about the existence of material relevant to their case, including material that may be subject to a PII claim.⁷⁴

Northern Territory

The Northern Territory Office of the DPP requires police to provide a schedule—a list of extra information— itemising any potentially disclosable material that they consider is immune from disclosure to the defence. It must outline why it believes the particular material is immune from disclosure on public interest grounds, together with why it believes that the material is subject to PII.⁷⁵ Police also need to complete a disclosure certificate certifying that they have notified the prosecution of the existence of all relevant material.⁷⁶

If the prosecutor decides not to disclose material on the basis of a PII claim, the prosecutor should notify the accused person that material has been withheld and claim an immunity against disclosure in respect of that material.⁷⁷

Queensland

The Director of Public Prosecutions Act 1984 (Qld) requires a police officer investigating an alleged offence to disclose to the DPP all relevant ‘information, document or other things’ that might tend to help the case for the prosecution or the case for the accused person.⁷⁸ The Queensland Office of the DPP requires police to disclose to the prosecution material that is part of the brief of evidence and is relevant to the accused person’s case.⁷⁹ When police alert the prosecution to material that is subject to a PII claim, the prosecution decides whether to disclose that material to the accused person.

If the prosecution decides to withhold the material, it must inform the accused person in writing that this has occurred.⁸⁰

South Australia

The South Australian Office of the DPP requires the police officer in charge of an investigation in indictable matters to provide a list of ‘all documentary material collected or created’ during an investigation that may reasonably be expected to assist the case for the prosecution or the accused person.⁸¹ Police also need to complete a disclosure certificate that certifies they have complied with their disclosure obligations and provide it to the prosecution.⁸²

The prosecution does not provide the accused person with the disclosure certificate. When there is material relevant to the accused person’s case that is subject to a PII claim, the prosecution advises the defence of this in a letter.⁸³

Tasmania

The Tasmanian Office of the DPP requires police to disclose to the prosecution all material that is relevant to the case of the accused person, even if the material is subject to a PII claim.⁸⁴

Prosecutors must disclose to the accused person all material they believe to be relevant to the person’s case.⁸⁵ If a PII claim is made over the material, though, the prosecution will not disclose the material without first consulting the investigating officer in charge of the case.⁸⁶

Western Australia

The Western Australia Office of the DPP requires police to disclose to the prosecution all material that is relevant to the accused person’s case and to certify that they have done so.⁸⁷

The prosecution gives the accused person a list of all relevant material. If material is subject to a PII claim, the prosecution must provide to the accused person a short description of the material, the nature of the claim and the reason for the claim.⁸⁸

There is a detailed statutory regime for disclosure in Western Australia, and an application can be made to the court for a non-disclosure order under section 138 of the Criminal Procedure Act 2004 (WA) (Western Australia Criminal Procedure Act).⁸⁹

Challenges and opportunities

This section sets out the main issues that were raised with the Commission about the appropriateness of Victoria Police practices in relation to disclosure of human source information to prosecuting authorities. The section also highlights relevant aspects of the disclosure regimes in New South Wales, the United Kingdom and Western Australia. The Commission examined the models in these jurisdictions because stakeholders suggested that aspects of them could be applicable in Victoria. The United Kingdom has also introduced significant reforms to improve disclosure practices in recent years.

Before outlining these issues, challenges and opportunities, it is important to address two other Victorian reviews in 2020 that explored issues relevant to disclosure obligations and processes:

• Committals Review—a review by the Victorian Law Reform Commission (VLRC) of the committals process.⁹⁰ Under its terms of reference, the VLRC was asked to consider several matters, including ways of improving early disclosure processes in indictable criminal proceedings. Some matters considered by the VLRC overlapped with aspects of the Commission’s inquiry. Unlike the VLRC, however, this Commission is concerned with disclosure specifically as it relates to the use of human source information in criminal proceedings.
• Operation Gloucester—a review by the Independent Broad-based Anti-corruption Commission (IBAC) into police conduct in the Victoria Police Lorimer investigation, which concerned the murders of Sergeant Gary Silk and Senior Constable Rodney Miller in 1998.⁹¹ IBAC’s public hearings, held from 4 February to 1 March 2019, focused on Victoria Police’s witness statement-taking practices and compliance with the obligation to disclose evidence during the Lorimer investigation. The review also examined police statement-taking and disclosure practices in other Victoria Police investigations.

The conclusions and recommendations of the Committals Review and Operation Gloucester are outlined below where relevant.

Police disclosure obligations to prosecuting authorities

As noted earlier in this chapter, police have a general duty to provide the prosecution with all relevant material and information required for the prosecution case.⁹² This duty extends to advising the prosecution of the existence of any other material not relied upon that might be relevant to the accused person’s case.

Some stakeholders drew the Commission’s attention to perceived deficiencies in how police fulfil their disclosure obligations to prosecuting authorities.⁹³ For example, in a submission to the Commission, the Criminal Bar Association stated:

The Commission’s inquiry illuminates the deficiencies in proper and ongoing disclosure by police, particularly in the area of public interest immunity (PII), under which police fail to disclose to prosecutors relevant aspects of the investigation. The consequence is that prosecutors are ill-equipped to comply with their duty of disclosure.⁹⁴

As well as identifying perceived deficiencies, stakeholders also suggested reforms to improve police disclosure obligations. Several submissions supported the approach to police disclosure that operates in New South Wales.⁹⁵

A statutory duty to disclose relevant material to prosecuting authorities

In a submission to the Commission, the DPP stated that:

For the purpose of conducting proceedings on indictment and the performance by the DPP of its other functions, it is essential that investigators disclose to the prosecution the existence of all information that is relevant to an alleged offence, so that the prosecutor can then make the requisite disclosure to the defence (if it has not already been made).⁹⁶

The DPP emphasised that investigators should not decide to conceal the existence of relevant information on their own. Instead, they should inform the DPP when relevant information exists, even if investigators believe that this information cannot be disclosed (whether because of PII, a statutory prohibition or for some other reason).⁹⁷ The DPP submitted that the DPP Policy reflects this position.⁹⁸

To avoid potential disclosure failings arising from information not being provided to prosecutors, the DPP submitted that a provision should be introduced in Victoria similar to section 15A of the New South Wales DPP Act but adapted so that it is consistent with the disclosure requirements in the Criminal Procedure Act.⁹⁹

The requirements of section 15A are outlined in Box 14.2.

According to the Victorian DPP, introducing a provision similar to section 15A of the New South Wales DPP Act in Victoria would encourage better decision making about relevant material that is subject to a claim of privilege or immunity or a statutory publication restriction. The DPP further stated that the need to identify such material, and the basis of the claim, would remind investigators of the relevant legal principles—in particular, that they have no right to make unilateral decisions to conceal the existence of relevant material, and that even material that a court finds to be privileged or immune from disclosure may affect prosecution decisions.¹⁰⁸

In an initial submission to the Commission, Victoria Police submitted that there is no need to introduce a provision such as section 15A, on the basis that the existing statutory framework adequately provides for appropriate disclosure from Victoria Police to the DPP.¹⁰⁹ In a later submission, Victoria Police supported the adoption of a provision similar to section 15A, but considered that the accompanying legislation would need to impose relevant obligations on both police and the prosecution to maintain confidentiality of the material (for example, to only disclose that material if the court determines that PII does not apply and police believe that the matters should continue to trial). Victoria Police considered that these safeguards would ensure that a charge could be withdrawn in circumstances when PII is not granted, without jeopardising the safety of a human source.¹¹⁰

Other stakeholders, including the Criminal Bar Association, said that police alone and unassisted should not decide whether relevant information should be disclosed to an accused person.¹¹¹ The Criminal Bar Association stated that police should be required to disclose all potentially disclosable material to the DPP so that there is some oversight of police views about what is relevant or irrelevant to an accused person and what material should be disclosed, and whether police are making a valid PII claim.¹¹²

In its Committals Review, the VLRC recommended that the Criminal Procedure Act be amended to provide that the informant’s disclosure obligations to the DPP apply regardless of claims of privilege, PII or statutory immunity, but where such claims are made, the material that is subject to these claims need not be produced to the DPP. The VLRC recommended that the informant must also indicate to the DPP the grounds on which they are refusing to produce the material.¹¹³

In its report on Operation Gloucester, IBAC recommended that the Victorian Government introduces a statutory obligation of disclosure in similar terms to section 15A, to reinforce the common law duty of disclosure.¹¹⁴ The report noted that section 15A specifically clarifies that New South Wales law enforcement officers investigating alleged offences have an ongoing duty to disclose to the New South Wales DPP all relevant information that might reasonably assist the case for the prosecution or the accused person.¹¹⁵ The report concluded that while the introduction of such a provision would not materially change the current common law duty of disclosure, recognising it in legislation would be a further means to ensure compliance with that duty.¹¹⁶

Disclosure certificates and disclosure documentation

A number of stakeholders also submitted that police should be required to certify that they have disclosed all relevant material to the prosecution.¹¹⁷

There was substantial support among stakeholders for the introduction of a disclosure certificate similar to that used in New South Wales,¹¹⁸ although some stakeholders said that the introduction of a disclosure certificate regime would not by itself resolve all of the issues relating to disclosure.¹¹⁹

The New South Wales disclosure certificate regime is outlined in Box 14.3 below, and a similar system used in Western Australia and a separate New South Wales Supreme Court procedure are outlined in Box 14.4.

Both the DPP and Victoria Police suggested to the Commission that they consider the use of disclosure certificates in Victoria, as in New South Wales, as a way to facilitate the disclosure process in indictable matters.¹²⁸ The DPP also pointed to the disclosure certificate requirements in Western Australia as a model for Victoria.¹²⁹

In a submission to the Commission, the DPP noted that adding a requirement for informants to certify to a court that there has been full disclosure would focus their minds on the need for full compliance with their disclosure obligations.¹³⁰ The DPP also considered that it may be desirable to include an obligation to provide the accused person with an updated list of material withheld on grounds of privilege or immunity or statutory prohibition grounds if that list has changed since the hand-up brief was served.¹³¹

Deputy Commissioner Wendy Steendam, APM, Specialist Operations, in her evidence to the Commission on behalf of Victoria Police, said that having different schedules in a disclosure certificate would help informants work through the complexities of what is relevant and what is not, as well as making sure that they have properly considered the issues that need to be disclosed.¹³²

The DPP also submitted that any legislative requirement to provide these schedules of withheld material should be accompanied by appropriate Victoria Police internal policies or procedures that provide guidance to police investigators on how to describe withheld material and on the corresponding claims of privilege, immunity or statutory prohibition.¹³³

Other stakeholders, including Victoria Legal Aid, the Law Institute of Victoria and the Criminal Bar Association, also supported introducing a requirement for police to complete disclosure certificates.¹³⁴ Some, however, cautioned that the success of any certification process would depend on police making complete disclosure in a timely manner.¹³⁵

In a submission to the Commission, Victoria Police identified that the introduction of a disclosure certificate would not by itself resolve all issues relating to disclosure. Like the DPP, it submitted that the introduction of a disclosure certificate must be accompanied by other measures. These measures include dedicated disclosure officers and improvements in information technology systems.¹³⁶

While Victoria Police indicated support for using disclosure certificates in indictable matters, it did not consider them necessary for summary matters. It noted that this requirement would place considerable strain on the resources of Victoria Police and the criminal justice system, especially given the huge volume of summary matters.

Recommendation of the Victorian Law Reform Commission

In its Committals Review, the VLRC considered whether a disclosure certificate based on the New South Wales disclosure certificate should be introduced in Victoria. The report noted that some stakeholders (including the Law Institute of Victoria, the County Court and Victoria Legal Aid) supported the introduction of a disclosure certificate.¹³⁷

The VLRC indicated that a benefit of introducing such a certificate in Victoria would be to reiterate police disclosure obligations and routinely remind police of those obligations.¹³⁸ On the other hand, the VLRC noted that inadequate disclosure by police remains a problem in New South Wales, despite the use of disclosure certificates.¹³⁹ The VLRC further stated that disclosure certificates are frequently signed by police despite disclosure not being complete.¹⁴⁰

Accordingly, the VLRC considered that introducing a disclosure certificate requirement in Victoria may be a costly reform that is also hard to administer, with little real benefit.¹⁴¹

Instead, the VLRC recommended that the Criminal Procedure Act be amended to require informants to provide evidence at an ‘issues hearing’ (a proposed replacement for a committal mention hearing).¹⁴² This would require informants to give sworn evidence that they have met their disclosure obligations and provide an opportunity for the accused person to cross-examine them regarding disclosure.¹⁴³

Disclosure to accused persons

As set out earlier in this chapter, for both summary and indictable matters in Victoria, currently police must complete a form to accompany either the full brief in the case of a summary hearing (Form 11) or the hand-up brief in the case of an indictable proceeding (Form 30). In either case, the form should list anything relevant to the alleged offence that the prosecution does not intend to use. As with a disclosure certificate, police can use the Form 11 and the Form 30 to indicate that they are withholding relevant information from the accused person, and their reasons.

The Commission heard from some stakeholders that there is scope to improve how accused persons are informed that relevant material has been withheld.

According to Victoria Legal Aid, the existing mechanisms (Forms 11 and 30) are inadequate, as police rarely provide reasons to justify PII claims.¹⁴⁴ In a submission to the Commission, Victoria Legal Aid submitted that Forms 11 and 30 are rarely used to their full extent and do not adequately draw informants’ attention to their disclosure obligations. It considered that this may be linked to the weight police give to their disclosure obligations. In particular, Victoria Legal Aid noted that:

• often, police believe disclosure only extends to witness statements that lead to establishing the criminal charges and not to other material
• police give limited weight to the need to disclose all evidence in their possession and even less weight to evidence that may mitigate the accused person’s involvement in the offending or assist them to defend charges.¹⁴⁵

In a submission to the Commission, the Criminal Bar Association stated that Forms 11 and 30 are appropriate if police complete them properly and consider carefully all the material they have that is, or may be, relevant.¹⁴⁶ The Association also noted, however, that investigating police often appear to fill in these forms as an afterthought, once they have compiled the brief. It submitted that ideally, police should prepare these forms progressively while compiling a brief, so that all relevant materials that do not end up in the brief are properly listed in the forms.¹⁴⁷

In New South Wales, although police do not serve a copy of a disclosure certificate on the accused person, the NSW Police Force Handbook states that the DPP may show the disclosure certificate to the accused person.¹⁴⁸ In practice, after receiving the disclosure certificate and associated schedules of materials from police, the New South Wales DPP assesses the material identified and works with police to ensure that all relevant material and other information is accurately documented and disclosed. The DPP then drafts a letter of disclosure to the defence that includes information about all relevant materials included in the schedules of materials and disclosure certificate that the police have provided.

In contrast to the position in New South Wales, in Western Australia, the section 45 certificate of disclosure must be provided to the accused person.¹⁴⁹

In its Operation Gloucester report, IBAC noted that despite existing disclosure obligations in Victoria, there is a significant risk that some police officers do not understand their disclosure obligations, especially that they must disclose all relevant material regardless of whether it helps or hinders the prosecution’s case.¹⁵⁰

Court processes for determining public interest immunity claims

As discussed above, if police make a PII claim, it is for the court to determine whether that claim should be upheld. The DPP usually plays no part in determining the claim, although it might be involved to the extent that it is necessary for the court to understand how the prosecution is putting its case.¹⁵¹

The Commission heard from some stakeholders that the existing process for resolving PII claims is unclear and should be clarified in legislation. Stakeholder views about the potential for reform in this area are discussed below, along with the relevant case law.

Adequacy of current processes for determining public interest immunity claims

The present practice in Victoria is to disclose to an accused person the existence of relevant material that is privileged or subject to a PII claim, if this can be done without revealing its confidential contents, usually through the Form 11 in summary proceedings or the Form 30 in indictable proceedings.¹⁵² If relevant material is withheld and is not disclosed, an accused person can issue a subpoena and seek to have the court determine the issue. This means that ordinarily a court does not test or determine a PII claim unless an accused person is aware that material is being withheld and initiates a court challenge.

In a submission to the Commission, the DPP submitted that the procedure in Victoria for resolving disclosure issues is unsatisfactory for a number of reasons.¹⁵³

The DPP submitted that there should be a clear process for investigating agencies or the prosecution to initiate a court determination of PII, privilege and disclosure issues.¹⁵⁴ The current statutory and subpoena processes under the Criminal Procedure Act are initiated as defence challenges to a PII claim. The DPP considered that the prosecution or an investigating agency should be able to initiate determinations of such claims. It referred to human source-related material as a prime example of material about which it is important for an investigating agency to be able to actively obtain early guidance from the courts.¹⁵⁵

The DPP further noted that in some circumstances, revealing the material may risk disclosing its contents. To deal with this, the DPP proposed that there could be legislation enabling the claim of privilege or immunity to be determined in court ex parte; that is, without the defence present or knowing about the application.¹⁵⁶

In Australia, there is common law suggesting that ex parte applications can be used to determine PII.¹⁵⁷ This draws on the approach that courts in the United Kingdom have taken. This approach is outlined in Box 14.5.

Several aspects of the law of disclosure in the United Kingdom are similar to the law in Australia. For example, the legislation in the United Kingdom imposes a duty on the prosecution in equivalent terms to those imposed under the relevant Australian legislation, like the Criminal Procedure Act discussed above.¹⁶⁸

When engaging in a comparison between the jurisdictions it is important to note, however, that there are some key differences between Australian and United Kingdom disclosure practices. One is that in the United Kingdom the prosecutors, not the police, are responsible for making PII applications. This makes it even more important that prosecutors are made aware of all the material that is relevant to an investigation, including all material that may be subject to PII. Guidelines assist in ensuring this occurs, even in relation to particularly sensitive information derived from human sources.¹⁶⁹

In Scotland, for example, where a police investigation resulting in prosecution has been informed by intelligence from a human source, the police must reveal that intelligence to the prosecution if it is relevant to the investigation.¹⁷⁰ The prosecutor does not need to be advised of the true identity of a human source as a matter of routine, though they might request this information in certain circumstances.¹⁷¹

A statutory scheme for determining public interest immunity claims

In a submission to the Commission, the Supreme Court suggested that, if the Commission were to consider a statutory scheme that provides for court rulings on PII issues, it should be mindful of the need to preserve a court’s ability to:

• regulate its own procedures to ensure fairness and ensure that proceedings are compatible with an accused person’s applicable Charter rights
• make orders that meet the needs of different cases and to address changing circumstances.¹⁷²

Options that are presently available to the courts in hearing and determining PII claims include:

• requiring that the accused person be joined in the proceedings (and if appropriate, placing restrictions on an accused person’s access to material that is the subject of the PII claim)
• requiring that a special advocate or special counsel be appointed to represent the accused person in the PII application proceedings only (and requiring that appointed person to give non-disclosure undertakings)
• allowing the proceedings to be determined ex parte, but appointing a contradictor or amicus curiae to assist the court to make submissions in the interests of the accused person
• making suppression orders or closed court orders for part of the proceedings.¹⁷³

In its submission, the Supreme Court stressed the need to ensure that any new statutory scheme introduced to deal with PII issues is compatible with the existing provisions in the Criminal Procedure Act. It also emphasised the need to consider whether the scheme is in all cases optional for the prosecutor or law enforcement agency, or if it becomes mandatory when another avenue of dealing with PII is not used.¹⁷⁴

The DPP submitted that there should be a clear statutory power for the prosecution to make an ex parte application to resolve disclosure issues in circumstances where giving the accused person notice would risk disclosing the material in question. The DPP noted that sometimes revealing the mere fact that information is held would allow an accused person to work out what the information is or where it came from.¹⁷⁵ For example, the DPP noted that even an apparently bland reference to a diary entry made by a particular police officer on a particular day could, together with other knowledge that the accused person has, confirm their suspicion that an associate has provided information to police.¹⁷⁶

The DPP considered that:

The existence of a flexible and effective procedure by which disclosure issues can be resolved, ex parte if necessary, would provide a valuable safeguard in relation to the disclosure of sensitive material generally, and of human source material in particular.¹⁷⁷

According to the DPP, a statutory procedure in Victoria should allow police to apply to the court to determine legal professional privilege or PII claims. If police could make the application ex parte, the DPP submitted that they should be provided with a copy of any order made so that they can independently assess its impact on the prosecution.¹⁷⁸ The DPP also argued that the court should be able to make an order subject to any conditions it considers necessary.¹⁷⁹ For example, the court may wish to order that material be made available for inspection only by the accused person’s lawyers.¹⁸⁰

The DPP further submitted that the Public Interest Monitor could be authorised to act as contradictor in ex parte applications made by police. Such a role would be similar to the Public Interest Monitor’s functions in relation to warrants under the Major Crimes (Investigative Powers) Act 2004 (Vic) and the Surveillance Devices Act 1999 (Vic).¹⁸¹

Victoria Police similarly indicated that courts should have a clear way to identify complex and controversial PII issues at an early stage.¹⁸² It suggested that, in appropriate cases, it should be possible to make applications in the absence of the accused person and defence lawyers and with an affected person (such as a human source) being able to appear. Victoria Police submitted that having a procedure to allow early judicial oversight of particularly complex PII issues would help build confidence in the administration of criminal justice.¹⁸³

The DPP and Victoria Police referred to section 138 of the Western Australia Criminal Procedure Act as a possible model from which to develop a statutory procedure for Victoria.¹⁸⁴ Section 138 is described in Box 14.6.

In a submission to the Commission, the DPP submitted that, similar to the Western Australian example, any new statutory provision in Victoria should give the court power to make a wide range of orders in relation to disclosure requirements, including powers to dispense with disclosure requirements and shorten or extend the time allowed for obeying requirements. It proposed that such a power should provide that a court could dispense with disclosure requirements on specific recognised grounds, such as PII, privilege, a statutory provision or a court order.¹⁸⁷

The CDPP also referred to section 138 of the Western Australia Criminal Procedure Act, suggesting that it provides a fast and effective procedure for disclosure rulings. It noted that this procedure has been used effectively in federal criminal cases and that a similar procedure in Victoria may be useful.¹⁸⁸

Other stakeholders, such as Victoria Legal Aid, endorsed the approach taken in the United Kingdom to determining PII claims. It submitted that prosecutors are well placed to recognise whether sensitive evidence should be protected or disclosed, to have responsibility for establishing the charges, and to ensure the procedures are fair.¹⁸⁹ This approach is outlined in Box 14.7.

Early involvement of the prosecution in resolving public interest immunity claims

As explained above, consistent with the DPP Policy, Victoria Police and the OPP consult on issues relating to disclosure and PII from early in the prosecution process. Some stakeholders suggested that Victoria Police and the prosecution should engage with each other even earlier and to a greater extent in relation to PII claims made by Victoria Police.

Victoria Police told the Commission that the system of disclosure in Victoria could be improved by enhancing the degree of consultation between investigators and prosecutors.¹⁹⁴

In a submission to the Commission, Victoria Police submitted that early engagement between its officers and the DPP in relation to complex legal issues concerning disclosure, relevance and PII, would strengthen the overall approach to disclosure in the system. Victoria Police also noted that the early involvement of prosecutors would provide the opportunity for Victoria Police officers to consult with and seek advice from prosecutors in relation to these matters.¹⁹⁵ Victoria Police further observed that one benefit of the approach in the United Kingdom, outlined in Box 14.7, is that it makes clear that the Crown Prosecution Service may be consulted on questions of disclosure.¹⁹⁶

In Victoria, the DPP Policy does not provide any specific guidance about police consultation with the OPP in relation to PII claims or questions of disclosure more broadly. In a submission to the Commission, Victoria Police indicated it would not be necessary to consult with the prosecution in relation to all disclosure or all PII issues and did not propose that the Chief Commissioner of Victoria Police should stop independently making PII claims. Rather, Victoria Police suggested that when it identifies especially complex disclosure issues that might impact on the fairness of the prosecution, there should be a clear and consistent process enabling Victoria Police to engage with the DPP at the earliest possible time.¹⁹⁷

Victoria Police submitted that it does not routinely discuss assessments relating to disclosure with DPP prosecutors. It told the Commission that, unlike in New South Wales, the policy of the DPP does not provide for conferences to take place between prosecutors and police officers to consider PII claims, and that it would welcome the DPP’s early involvement.¹⁹⁸

New South Wales model

In New South Wales, the initial decision about whether material should be subject to a PII claim is made by police. That decision will only be reviewed if the DPP asks to review the material itself. As in Victoria, where the VGSO argues PII claims on Victoria Police’s behalf, in New South Wales, the Crown Solicitor’s Office, not the DPP, asserts and argues PII on behalf of the police.

Under the New South Wales model, if a prosecutor receives information or material that may be subject to a PII claim, the prosecutor should not disclose that information or material to an accused person without first consulting with the officer in charge of the case. The purpose of the consultation is to give that officer the opportunity to raise any concerns about such disclosure. The officer should be allowed a reasonable opportunity to seek advice if there is any concern or dispute.¹⁹⁹

If, in a case being prosecuted by counsel, a prosecutor and the police disagree about what, if any, of the sensitive information or material should be disclosed and there is no PII claim, the matter must be referred to the New South Wales DPP or a Deputy DPP. In cases being prosecuted by lawyers, the matter is referred to the New South Wales Solicitor for Public Prosecutions or Deputy Solicitor.²⁰⁰ In cases where police pursue a PII claim, the question of disclosure will depend on the outcome of that claim.²⁰¹

While the process in Victoria also provides for some consultation between police and prosecutors, there is no formal equivalent to the process in New South Wales.

The Prosecution Guidelines of the Office of the Director of Public Prosecutions for NSW state that rare occasions may arise when the overriding interests of justice—for example, a need to protect the integrity of the administration of justice or the identity of a human source (covered by PII) or a need to prevent danger to life or personal safety—require disclosable information to be withheld. Such a course would only be taken with the approval of the New South Wales DPP or a Deputy Director.²⁰²

In a submission to the Commission, Victoria Police noted that the New South Wales disclosure certificate provides that police officers may request a conference with the responsible prosecuting solicitor to discuss the reasons why the police officer objects to disclosure.²⁰³ In completing the disclosure certificate, officers must tick ‘yes’ or ‘no’ to the question of whether they have requested a meeting with the prosecuting solicitor.²⁰⁴

Commonwealth model

Victoria Police observed that there is inconsistency between approaches taken by the Victorian OPP and the CDPP on early engagement with investigators on questions of disclosure.²⁰⁵ Victoria Police argued that it is important for any proposed reforms to set out clearly the respective roles of police and prosecutors in the disclosure regime, making the division between these roles clear. It also argued that such reforms should facilitate a greater degree of consultation between the agencies.²⁰⁶

The Australian Federal Police (AFP) told the Commission that it communicates the existence of all potentially disclosable material to the CDPP in accordance with the CDPP’s disclosure guidelines.²⁰⁷ The AFP case officer and the prosecutor will regularly communicate in relation to all matters concerning the case.²⁰⁸ The AFP, in partnership with the CDPP, has developed a ‘Model Brief’ that contains templates that conform with the CDPP’s guidelines for preparing briefs of evidence in each state and territory.²⁰⁹

The CDPP informed the Commission of its approach to early engagement with law enforcement agencies on PII issues. An investigative agency advises the CDPP, usually at an early stage, if relevant material is subject to a PII claim.²¹⁰ When necessary and appropriate, the CDPP may consider the material in question and discuss PII and disclosure issues with the investigative agency. Those discussions may include matters such as:

• the basis for the PII claim
• the significance of the material for the case
• appropriate procedures for resolving the claim.

Consideration is also given to whether and when the existence of the material can be disclosed to the accused person and how much information can be provided about it and the basis for the claim.²¹¹

The CDPP, however, is not itself involved in pursuing claims for PII.²¹² As in Victoria, the practice in Commonwealth prosecutions is for police to make and argue their own PII claims.

The CDPP stated that there are very good reasons for this practice; namely:

• it is doubtful that the CDPP has power to appear on behalf of another agency to make a PII claim²¹³
• a conflict may arise between the interests of the CDPP as prosecutor and those of the relevant agency²¹⁴
• there may be circumstances in which the CDPP cannot have access to the material in question without compromising its position as prosecutor²¹⁵
• PII claims being pursued by the relevant agency with its own legal representation tends to better maintain the prosecution authority’s independence and the appearance of that independence. It is therefore more likely to promote public confidence in the administration of justice.²¹⁶

Commentary on the Victorian model

In a submission to the Commission, the Criminal Bar Association supported the DPP being involved at an early stage in assessing material over which police may wish to make a PII claim, stating that this would assist Victoria Police to grapple with the often difficult issues surrounding PII.²¹⁷

Victoria Legal Aid similarly expressed support for the early involvement of the DPP in assessing and advising police about making a PII claim.²¹⁸ Victoria Legal Aid indicated that, presently, when police seek to claim PII over evidence, they enlist the VGSO. Victoria Legal Aid has observed that the VGSO is often engaged at a late stage, just prior to significant hearings. It further noted that, frequently, once the VGSO is engaged to consider evidence, the information is disclosed because PII does not apply, or the information is released in a way that mitigates any PII risks.²¹⁹ Victoria Legal Aid argued that the VGSO should be engaged at an early stage, prior to the initial directions hearing, to enable discussion of the matter at a special pre-trial hearing.²²⁰

The DPP and OPP submitted that in cases potentially affected by Ms Gobbo’s use as a human source, there were numerous failures to make proper disclosure to the accused persons at the initial stage of the proceedings due to police not alerting prosecutors to the existence of material that may have been subject to a PII claim.²²¹ The DPP noted that these failures did not result from the OPP solicitors not taking a greater role in assessing the actual content of the material subject to the PII claims, but because the police did not bring the existence of information potentially covered by PII to the prosecutors’ attention. The DPP and OPP submitted that it is therefore crucial that police understand the kinds of material that need to be subject to a PII claim so that the existence of that material is brought to prosecutors’ attention.²²²

The DPP submitted that many of the problems that emerged from the recruitment and use of Ms Gobbo as a human source, and from the failure to disclose her conduct, could have been avoided had the police obtained timely legal advice from the VGSO or other experienced counsel.²²³

The DPP further stated that in more routine investigations, officers may benefit from obtaining early independent legal advice about their disclosure obligations during the investigation.²²⁴ It suggested that an advantage of doing this is that police would be better prepared to promptly take any necessary steps to protect information subject to PII.²²⁵ It argued that Victoria Police should encourage officers to obtain independent advice and increase their opportunities to do so.²²⁶

The DPP submitted that OPP solicitors and police informants already work together closely on indictable matters. Current practice involves informants being expressly invited by email, after the first hearing of an indictable matter, to contact OPP solicitors in relation to any doubts or concerns about disclosure.²²⁷ The DPP also emphasised that OPP solicitors can and do respond to certain police queries about prosecutions, including those where PII is in issue; about the way in which the Crown case is to be put; and about issues raised by the accused person.²²⁸ In providing that assistance to police, prosecutors are not usually required to review the PII material itself.²²⁹ The DPP submitted that legal advice about complex disclosure issues, including PII, should be sought from Victoria Police’s own independent legal advisers, such as the VGSO, and not from the DPP.²³⁰

The DPP also submitted that there should be no general rule that all material that is not disclosed due to a PII claim must be assessed by the DPP.²³¹ It stated that this would be inconsistent with the DPP Policy, unnecessary and a potential source of unfairness, because:

• it would not be consistent with an efficient use of the DPP’s resources
• it risks undermining the DPP’s independence
• in some circumstances, providing this information to the DPP may lead to the DPP deriving an unfair advantage over the accused person.²³²

In relation to the last point, the DPP submitted that material should be withheld by police from the prosecution if the material derives from human sources with obligations of confidentiality. The DPP suggested that is because it may be difficult to assess the potential impact of any unfair advantage on the trial if the prosecutor has knowledge of that material.²³³

Police ability to fulfil disclosure obligations

The Commission heard from some stakeholders that the ability of police to fulfil their disclosure obligations is constrained by factors including:

• their understanding of their disclosure obligations, including their understanding and assessment of relevant material and PII
• the informant’s awareness of all relevant material that investigators hold
• the volume and complexity of material that must be reviewed and disclosed.

These issues are discussed in turn below.

Police understanding of their disclosure obligations

Understanding and assessing relevance

The DPP told the Commission that police investigators sometimes struggle to determine whether material satisfies the broad test of whether it is relevant to the accused person’s case. The DPP noted that it is inherently challenging for investigators to look critically at information obtained during an investigation and identify material that may undermine the prosecution case or strengthen the accused person’s case.²³⁴

In a submission to the Commission, Victoria Police informed the Commission that assessing whether material is ‘relevant to the case of the accused’ often involves a complex and time-consuming analysis of the factual and legal elements of a criminal prosecution.²³⁵ Victoria Police noted that these complexities are typically compounded in the case of human source information.²³⁶

Victoria Police suggested that, in such circumstances, the OPP may be able to assist Victoria Police officers to make appropriate assessments about the relevance of material for disclosure.²³⁷ It also noted that, in certain circumstances, given the importance of ensuring the safety of human sources, it may be appropriate for Victoria Police to provide prosecutors with only relevant extracts of human source files.²³⁸

Victoria Police also indicated in a submission to the VLRC’s Committals Review that the OPP’s assistance in assessing material for relevance and advising police is crucial in the disclosure process. This is particularly the case given that police officers may not be legally trained and consequently rely on the OPP’s guidance and advice in determining relevance.²³⁹

Understanding public interest immunity

In a submission to the Commission, the DPP commented that investigators sometimes inappropriately withhold otherwise relevant material on the basis of PII. The DPP explained that this is particularly problematic when the existence of such material is not disclosed to the prosecutor or the accused person, as it means that the asserted claim of PII cannot be tested by the accused person.²⁴⁰ The DPP further stated that underlying this problem is a common misconception that an investigative agency may determine for itself whether relevant material is subject to PII.²⁴¹

In a submission to the VLRC’s Committals Review, Victoria Police stated:

The increased involvement of the OPP in assessing public interest immunity (PII) material at an early stage and assisting with appropriate court applications would also improve efficiencies in the disclosure process. The common law requires police to provide prosecutors with material subject to a claim of PII so that the prosecutor is aware of any exculpatory material in the possession of investigating agencies and can consider the effect of a successful claim of PII on the overall fairness of a trial. For example, considerations of fairness may require the prosecutor to charge a lesser or different offence if the accused would not receive a fair trial without the material subject to PII.²⁴²

The Victorian Aboriginal Legal Service, in a submission to the VLRC, noted that problems with disclosure practices may be accentuated in regional and rural areas, where police may have less experience in disclosure.²⁴³

Informant’s awareness of all relevant material

An informant may not be aware of all relevant material the police hold.

The DPP told the Commission that its public hearings have shown that those Victoria Police officers who had information or material relating to certain prosecutions of people connected to Ms Gobbo were not the same as the informants or those helping to put together the brief to the OPP.²⁴⁴

These issues arise as a result of information being quarantined between different areas within a policing agency. This situation, called the ‘sterile corridor’, can occur when one section of the police service obtains information in an intelligence operation and the investigating officer works in a different section of the police service. The sterile corridor is often considered a necessary safeguard in police work involving human sources. A consequence of this, however, is that the police officer responsible for preparing the brief of evidence may only hold fragments of information relevant to an investigation.

The need for, and issues surrounding the maintenance of a sterile corridor in using and managing human sources, are discussed in Chapter 12.

Volume and complexity of material

Some stakeholders told the Commission that the volume of material that may be obtained during an investigation can make it more difficult for police to comply with their disclosure obligations.

The Criminal Bar Association observed that there is little doubt that due to the complexity and size of modern criminal investigations, along with advancements in technology, police and prosecutors find it more challenging to meet their obligations when PII issues arise.²⁴⁵ In a submission to the Commission, the Association further stated that generally, briefs of evidence have greatly increased in size over the last 20 years. In addition, the volume of material that is disclosable but that the prosecution does not rely on has grown exponentially. By way of example, the Criminal Bar Association pointed to cases involving drug importations, drug trafficking, white collar fraud, foreign bribery and terrorism.²⁴⁶

The DPP also stated that police may be overwhelmed by the volume of material obtained during an investigation (for example, data downloaded by mobile phones, or recordings of telephone conversations). Because of the volume of material, police may not adequately assess all of it for relevance. This can mean that police do not provide relevant material with a hand-up brief, or subsequently, as required by the Criminal Procedure Act. The DPP indicated that this is an increasing problem, particularly because the volume of electronic data obtained during an investigation, even in relatively simple cases, is growing rapidly.²⁴⁷

Police training and guidance on disclosure obligations

Training on disclosure obligations for Victoria Police officers is embedded within certain training modules provided to new recruits at the Police Academy.²⁴⁸ Additional training on disclosure is also delivered to newly appointed detectives and Sergeants and Senior Sergeants.²⁴⁹ Police prosecutors also receive additional, and more specific, training on disclosure as part of attaining the Graduate Certificate in Police Prosecutions.²⁵⁰

The VGSO provides ongoing training on disclosure and PII issues to officers in the Victoria Police Detective Training School several times a year. The VGSO has also delivered presentations on these topics to other relevant work units within Victoria Police. With these and some other limited exceptions, it appears that most of the current training on disclosure within Victoria Police is provided by police officers, rather than external providers with legal training and experience with disclosure and PII issues.²⁵¹

Victoria Police told the Commission that a dedicated project team is examining its existing disclosure training to identify and analyse training needs and gaps. Following this analysis, the existing training will be strengthened.²⁵²

Some guidance for police on disclosure obligations has also been set out in the Victoria Police Manual—Human Sources (Human Source Policy) since May 2020.²⁵³ The scope of this guidance is relatively limited. It addresses, at a high level, the circumstances in which information from a human source can be disseminated, including for the purpose of a legal process. It also deals with the procedural steps that Victoria Police officers must take when they are asked to confirm or deny the existence of a human source in a court or tribunal.²⁵⁴

A number of stakeholders informed the Commission that the training and guidance police officers receive in relation to their disclosure obligations could be improved.

The DPP submitted that substantial improvements could be made to the training and guidance available for Victoria Police officers in relation to their disclosure obligations, and that senior officers’ efforts to introduce improvements in these areas should be supported.²⁵⁵

The Law Institute of Victoria, in a submission to the VLRC’s Committal Review, suggested that poor disclosure practices may be addressed with targeted education and training for police officers and more rigorous oversight by the DPP.²⁵⁶

The Criminal Bar Association suggested that improving the current system relies on properly training all police who investigate and compile briefs in relation to:

• relevance (to the prosecution case and for an accused person’s defence to that case)
• when it is proper and appropriate to make a claim of PII or legal professional privilege
• the duty of disclosure
• ethical approaches to investigating criminal conduct—in other words, the end result does not always justify the means used to get there.²⁵⁷

These stakeholder comments echo some of the conclusions reached by IBAC in its Operation Gloucester report regarding Victoria Police’s inadequate policies and training about disclosure practices and the use of evidence. IBAC found that this had reinforced improper practices, which had been at least tacitly supported by the culture of Victoria Police over a long period of time.²⁵⁸ While IBAC’s investigation spanned police practices over three decades, it found that ‘significant gaps’ in policy and guidance remained at the time of Operation Gloucester.²⁵⁹

IBAC made two recommendations for Victoria Police to review and improve its policies and training to ensure that police officers understand and comply with their disclosure obligations under the laws of evidence.²⁶⁰

Victoria Police officers who participated in focus groups conducted by the Commission also highlighted the challenges involved in managing disclosure when using a human source. They suggested that officers should be provided with more training on the interaction between disclosure and human source management. The outcomes of the focus groups held by the Commission are discussed further in Chapter 12.

Victoria Police informed the Commission that it is introducing a number of measures to enhance its disclosure practices and has developed an Action Plan that outlines steps that have been completed or are underway.²⁶¹ Measures taken by Victoria Police include:

• development of an instructional model and video presentation that highlight the importance of disclosure
• revising human source management training to specifically cover issues related to:
  • the use of human source information in prosecutions
  • human sources becoming witnesses.²⁶²

In addition, Victoria Police is currently rolling out an organisation-wide disclosure handbook. This handbook is intended to provide general guidance on disclosure obligations to police officers acting as informants in criminal proceedings. It highlights the importance of disclosure in the criminal justice system. It also provides guidance in assessing and identifying relevant material, emphasising that:

• the duty of disclosure extends not only to material that helps the prosecution but also to material that could help the accused person
• material can be relevant even if it was obtained solely for investigative (rather than evidentiary) purposes
• both police and prosecution carry the obligation of disclosure
• if an informant is unsure about what to disclose, they should seek further legal advice.²⁶³

Improvement to disclosure practices in the United Kingdom

Efforts to improve disclosure practices in the United Kingdom have also focused on the importance of guidance and training. A 2020 report by Her Majesty’s Crown Prosecution Service Inspectorate observed that, however good police training on disclosure is, unless those tasked with putting together the files are regularly and frequently exposed to disclosure issues, the benefits of training will not become embedded and improvements may not happen.²⁶⁴

The Commission has also heard that using dedicated disclosure officers, as is done in the United Kingdom, may improve disclosure practices. This model is outlined in Box 14.8.

In a submission to the Commission, the CDPP suggested that dedicated disclosure officers may be beneficial when used appropriately, and noted that some federal investigative agencies already use these officers. As part of its recent updating of disclosure practices, the CDPP specifically noted that prosecutors should encourage the appointment of dedicated disclosure officers in large and complex matters.²⁷¹

Victoria Police submitted to the Commission that in cases involving human sources, it is important to have disclosure officers embedded in investigations teams, the Human Source Management Unit (HSMU) (the unit responsible for overseeing human source registrations and management) and dedicated source teams (units specifically responsible for managing and interacting with human sources). Victoria Police suggested that disclosure officers may overcome the challenge to effective disclosure that can result from the implementation of a sterile corridor, when police investigators are not aware of the source of information, let alone whether the source has legal obligations of confidentiality or privilege and the circumstances in which those obligations may be engaged.²⁷²

Victoria Police informed the Commission that it is piloting the use of disclosure officers, who will be embedded on both sides of the sterile corridor and be responsible for compiling documents and conducting assessments of relevance, including seeking legal advice and liaising with the informant and/or the OPP when appropriate.²⁷³ Victoria Police advised the Commission that two dedicated disclosure officers have been appointed for a 12-month period to test the value of the model. These officers are legally qualified sworn members and report to the Superintendent, Legal Prosecutions Specialist Branch.²⁷⁴

Monitoring police compliance with disclosure obligations

The DPP noted that at present, Victoria Police’s compliance with its disclosure obligations is not subject to any system of auditing or monitoring.²⁷⁵ According to the DPP, the lack of independent monitoring of the disclosure process has contributed to the compliance failures that this Commission has highlighted.²⁷⁶

The DPP stated that an effective system for independent auditing and review of Victoria Police compliance with disclosure obligations is essential to any system-wide response to the failures the Commission has identified. The DPP believes that without such auditing and review, it will never be known whether other measures to change police culture and to improve compliance with disclosure obligations are working.²⁷⁷

In a submission to the Commission, the DPP proposed that the Commission should recommend an independent body responsible for monitoring and reporting on Victoria Police disclosure of (a) disclosable material to accused persons; and (b) the existence of potentially disclosable unused material to the OPP.²⁷⁸ The main aims of the proposed independent body, described as the ‘Disclosure Monitor’ in the DPP’s submission, should be to improve overall compliance by Victoria Police with its disclosure obligations, identify general shortcomings in disclosure practices and improve guidance to police for future cases.²⁷⁹

Among other things, the DPP suggested that the Disclosure Monitor could be tasked with reviewing cases in which evidence came from a human source with an obligation of confidentiality.²⁸⁰

The DPP further submitted that the Disclosure Monitor should be a body created by legislation with the powers it needs to conduct its own affairs. To ensure its independence it should not be part of, or report to, the DPP or Victoria Police. In addition, neither the Disclosure Monitor nor its staff should hold positions with the OPP or Victoria Police.²⁸¹

Under the model proposed by the DPP, the Disclosure Monitor’s reports would be expected to address overall police compliance with disclosure requirements, identify specific areas for improvement and suggest changes to police practices, procedures and guidelines as appropriate.²⁸² In addition to its auditing role, the Disclosure Monitor would be involved in training Victoria Police to properly identify PII claims and to comply with the certification process proposed.²⁸³

Leadership and cultural change to improve disclosure practices

During the Commission’s consultations, some stakeholders emphasised the need for leadership and cultural change within Victoria Policeto improve disclosure practices.

Victoria Legal Aid indicated that the present culture of Victoria Police gives limited weight to the need for police to disclose all of the evidence in their possession and even less weight to evidence that may mitigate the accused person’s involvement in the offending.²⁸⁴ The DPP also stated that the most important goal of any measures to improve police compliance with disclosure is to improve the culture of compliance with disclosure obligations within Victoria Police.²⁸⁵

In its Committals Review, the VLRC stressed that cultural change is needed within Victoria Police so that the importance of early disclosure of all relevant materials, and the obligation to inquire about the existence of relevant material, is recognised and becomes entrenched in its operating procedures.²⁸⁶

In her evidence to the Commission on behalf of Victoria Police, Ms Steendam said that Victoria Police is focused on creating a ‘culture of confident humility’, which she submitted comprises an ‘ethical culture and a culture that’s committed to good service delivery’.²⁸⁷ She noted that the disclosure reforms being undertaken by Victoria Police are informed by these cultural values.²⁸⁸

Additionally, Victoria Police emphasised that it is ‘absolutely committed’ to ensuring that it meets its disclosure obligations, and to enhancing its own processes to improve disclosure in the Victorian criminal justice system.²⁸⁹

Victoria Police is currently considering the establishment of a disclosure governance committee.²⁹⁰ The role of this proposed committee is ‘to achieve a consistent and transparent approach to disclosure … by promoting the effective management of disclosure’.²⁹¹ Victoria Police indicated that this committee would consist of relevant internal stakeholders, such as the HSMU and Crime Command, and that ‘extending to external stakeholders such as the Office of Public Prosecutions will be considered’.²⁹²

Various reviews conducted in the United Kingdom have also recognised the importance of cultural change. The United Kingdom House of Commons Justice Select Committee report, Disclosure of Evidence in Criminal Cases, and evidence gathered in the Attorney-General’s Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System, assert that to resolve problems with disclosure there needs to be a shift in culture, driven by clear leadership.²⁹³

The House of Commons Justice Committee report did not propose any fundamental changes to the legislation or the principles of disclosure. Instead, the report recommended a shift in culture towards viewing disclosure as a core justice duty, and not as an administrative add-on.²⁹⁴ This echoes a growing concern in the United Kingdom that police tend to see their core function as investigating criminal offences and that they regard disclosure as a less important, administrative task to be completed at the end of the investigation, rather than as a duty that is central to ensuring fairness to an accused person. The report also reflects the findings of the Mouncher Investigation Report, which concluded:

… disclosure errors were not designed to pervert the course of justice; they were the consequence of inexperience, poor decision making and inadequate training, leadership and governance.²⁹⁵

As a result of these reviews, reforms to disclosure practices in the United Kingdom have focused on the importance of leadership and cultural change.

A key United Kingdom initiative, the National Disclosure Improvement Plan (NDIP) was introduced in January 2018 by the Crown Prosecution Service, the National Police Chiefs’ Council and the College of Policing.²⁹⁶ The NDIP represents a commitment between police and the Crown Prosecution Service to work together in governing disclosure in the United Kingdom. The stated purpose of the NDIP is to bring together the shared commitment of police and the Crown Prosecution Service to make sustainable changes to the way they meet their disclosure duties.²⁹⁷

A key action the NDIP facilitated was the creation of the National Disclosure Standards, a statement of national standards for completing disclosure schedules and certificates. The standards state that:

We must foster a culture in which disclosure is not a separate exercise, discrete from the criminal investigation. Investigators must apply their minds to disclosure from the very outset of the case and not view disclosure as an adjunct to be undertaken only once they have formed the view that a suspect should be charged with an offence. Proper disclosure of unused material is vital if there is to be a fair trial, which is in the interests of the complainant, the accused and the whole community.²⁹⁸

The NDIP has provided an unprecedented level of senior leadership and oversight to disclosure improvements in the United Kingdom. Collectively, police and the Crown Prosecution Service acknowledged that an investigation culture had developed in which disclosure was devalued. Likewise, the NDIP suggested that a mindset had developed in which disclosure had been viewed as an administrative add-on to investigations. It also noted that confidence in the disclosure process had been further undermined by a series of high-profile cases in which disclosure had not been done as it should, and that these brought into sharp focus the very serious consequences of not getting disclosure right.²⁹⁹

The Attorney-General’s Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System stated that:

Police and [Crown Prosecution Service] leadership must ensure that the practical steps taken to deliver culture change that have started to be driven through the NDIP are sustained and permanently embedded in both services.³⁰⁰

One of the main benefits of the NDIP program is said to be its joint ownership by police and prosecution senior leaders.³⁰¹ The success of the NDIP reflects the need for consistent leadership in the area of disclosure.³⁰²

Disclosure in summary proceedings

Most of the submissions that the Commission received related to potential reform in relation to indictable proceedings. The Commission’s terms of reference also required consideration of current practices and the adequacy of safeguards in relation to summary proceedings—that is, the cases Victoria Police typically prosecutes in the Magistrates’ Court.

Although summary prosecutions make up the majority of Victorian prosecutions, Victoria Police has indicated that use of human sources in summary prosecutions is rare.³⁰³ Victoria Police also informed the Commission that, although not impossible, the use of information from a human source with legal obligations of confidentiality or privilege in a summary proceeding is extremely unlikely.³⁰⁴

Victoria Legal Aid indicated that it supports procedures that would assist in ensuring the timely disclosure of all evidence in summary prosecutions.³⁰⁵ It also noted that as the vast majority of criminal matters are heard summarily, it is essential that any oversight and monitoring systems developed for indictable proceedings are also effective for summary investigations and prosecutions.³⁰⁶

As noted above, Victoria Police submitted that while disclosure certificates might be used in Victoria to facilitate disclosure for indictable proceedings, it does not consider these certificates to be necessary for summary proceedings.³⁰⁷

Victoria Police informed the Commission that a major challenge officers face is the sheer volume of summary matters. It noted that without a document management system capable of linking all relevant investigation material to a brief, effective disclosure will remain an inefficient and time-consuming process.³⁰⁸ Victoria Police noted that without appropriate systemic support, any introduction of heavier disclosure obligations may make managing large volumes of material even more challenging—and that this is particularly so in relation to summary matters. It noted that this could result in significant delays in finalising summary matters, especially in uncontested cases.³⁰⁹

The Criminal Bar Association stated that introducing a disclosure certificate along the lines of the New South Wales model and requiring its completion in both indictable and summary prosecutions would mean police have to deal with these issues consistently.³¹⁰

Other disclosure issues raised with the Commission

While the Commission has not been asked to review disclosure more generally, during the Commission’s consultations, some stakeholders raised broader issues regarding disclosure. These issues are outlined below.

Legislative clarity in relation to disclosable material

The DPP informed the Commission that the subjective perception of experienced prosecutors in Victoria is that failures to disclose the existence of relevant unused witness statements, unused telephone or listening device material or unused forensic tests have become less common over time. This, they believe, is due to developments in criminal procedure and investigators’ increasing awareness of their obligations. The DPP contended that such problems may still arise, but do not appear to be widespread or systemic issues in Victoria.³¹¹

According to the DPP, the harder to solve problems tend to concern material that may be relevant to a prosecution witness’ credibility, such as relevant criminal history (including outstanding charges), or the provision of letters of assistance, charge reductions or other favourable treatment in criminal proceedings as a result of cooperation with investigators.³¹²

The DPP recommended that this material should be specifically listed in section 110(e) of the Criminal Procedure Act as disclosable with a hand-up-brief, to make it clear that this type of material should be disclosed.

As outlined earlier in this chapter, section 110 applies in indictable proceedings (see especially Figure 14.2). Section 41 is a similar provision that applies in summary proceedings and lists the material that the prosecution must include in a full brief to an accused person. Like section 110(e), section 41(e) requires that any information, document or thing in the possession of the prosecution that is relevant to the alleged offence must be in the full brief, and specifies the kinds of material subject to the requirement.

Early and appropriate disclosure to the accused person

In a submission to the Commission, Victoria Legal Aid drew the Commission’s attention to its submission to the VLRC Committals Review, in which it recommended introducing several mechanisms to improve early and appropriate disclosure.³¹³

Victoria Legal Aid emphasised that delays resulting from late disclosure of evidence in summary proceedings have a more profound impact on accused persons who are in custody. When an accused person is unlikely to apply successfully for bail and chooses to challenge the prosecution case, the delays associated with disclosure could result in the accused person’s time on remand exceeding the period they are ultimately sentenced to serve, if they are convicted.³¹⁴

Upgrade of information systems

A major theme arising from reviews of disclosure issues in the United Kingdom is that better use of technology is critical in improving disclosure.³¹⁵

Victoria Police does not have a single repository for all information that forms part of a criminal investigation. Victoria Police submitted that in part this is because its existing ICT systems are not able to support an organisation-wide document management system. As a result, information and documents created during an investigation may be spread over different locations, making it difficult for an informant or other Victoria Police officers to identify all relevant information.³¹⁶

Increasingly, as noted earlier, the use of modern reporting and data recording means that investigations tend to produce large volumes of material. New forms of data and documentation, such as mobile phone applications and body-worn camera footage, are now created in investigations. As recently as a decade ago, these were uncommon.³¹⁷

Noting that this large volume of material forms part of the challenge officers face in complying with disclosure obligations, Victoria Police submitted that technology should be a major part of any reform to strengthen the Victorian disclosure regime.³¹⁸

The DPP submitted that more efficient, effective, stable and secure information management systems should be developed across Victoria Police.

Victoria Police submitted that it currently has over 30 information capture technology initiatives in progress that are aimed at reducing waste, improving efficiency and modernising its operations, including a business case for a new case management system that would ultimately integrate with an electronic document and record management system.³¹⁹

Some of the information and document management issues are being addressed to a degree by the implementation of an intelligence management system that connects some data sources across the organisation. This assists in managing disclosure obligations by enabling broader searches to identify disclosable information.³²⁰

Victoria Police acknowledged, however, that this new system is not a substitute for a fit for purpose electronic information and document management system that would best help it meet its disclosure obligations.³²¹

As a well-designed system of this kind would enable Victoria Police to better capture, use, manage and share information right through the investigation and prosecution processes, Victoria Police submitted that a system of this kind is critical to achieving its broader objectives (including meeting demands associated with inquiries and royal commissions) but the costs of implementing it are likely to be significant.³²² It emphasised that any significant reform to the disclosure framework should take into account the current limitations of Victoria Police’s information systems, and the investment required to address these limitations.³²³ Victoria Police did not tell the Commission what level of investment would be required to address these limitations.

Conclusions and recommendations

If everything else is done properly in recruiting, handling and managing a human source, risks relating to the use of human source information in the criminal justice system should be significantly reduced. For example, if police had obtained legal advice about whether it was appropriate to register Ms Gobbo as a human source, it is conceivable that she would never have been registered, or if registered, so carefully monitored that her misuse as a human source would have been avoided.³²⁴

In Chapters 12 and 13, the Commission makes several recommendations aimed at strengthening safeguards relating to Victoria Police’s use and management of human sources. If these changes are introduced, the Commission considers that the risks of improperly using a human source to obtain confidential or privileged information would be substantially reduced.

Even with these changes, however, it is important to consider whether there are adequate safeguards in place for the prosecution of cases in Victoria when the investigation has involved information from a human source, including those where legal obligations of confidentiality or privilege may arise.

In effect, current policy and practice allow Victoria Police to determine whether PII should apply to the disclosure of human source information. A court may well uphold a PII claim made by Victoria Police, because—as observed earlier—PII generally prevents the existence of human sources being disclosed. But the issue should not be determined by police. Victoria Police should notify prosecuting authorities of the existence of PII material and, if necessary, the question of whether PII applies should be determined by the court. If the DPP has no knowledge that Victoria Police is withholding information on the basis of a PII claim, it is not in a position to understand the grounds for that claim or to prevent any arising unfairness to the accused person.

If Victoria Police had made timely and frank disclosure to the DPP of Ms Gobbo’s role as a human source, it is far less likely that the Victorian criminal justice system would have been corrupted in the way identified by the High Court. Defence lawyers also play a vital role in safeguarding against the improper use of human source information in the criminal justice system. An accused person’s lawyer can challenge a PII claim, provided they know that information is being withheld on PII grounds. This important safeguard of independent legal representation was often absent in the cases in which Ms Gobbo acted as a human source.

The circumstances that have given rise to this Commission are unprecedented. The Commission is reluctant to recommend safeguards that apply only to the narrow category of human sources with legal obligations of confidentiality or privilege. To do so may create anomalies, ineffective policy outcomes or unintended consequences: applying different protocols and requirements to this narrow category of information may lead to a distortion in how existing legal principles and administrative practices concerning the law of disclosure are applied.

The Commission heard that there are several areas where improvements can be made. It makes a number of recommendations aimed at:

• strengthening police disclosure obligations to prosecuting authorities
• improving training and support for Victoria Police in meeting its disclosure obligations
• ensuring effective leadership and cultural change within Victoria Police.

These recommendations are interconnected and interdependent. Measures to strengthen police disclosure obligations to prosecuting authorities, such as the introduction of a disclosure certificate, are unlikely to improve disclosure practices unless police officers are provided with appropriate training, guidance and support, including from senior leadership across the justice system.

The Commission has set timeframes for each recommendation, having regard to several factors, including the urgency and complexity of the reforms, whether they involve legislative change and the extent of stakeholder consultation required.

The recommendations to amend aspects of the current legislative regime governing disclosure in Victoria are relatively straightforward. As such, the Commission considers they can be implemented within 12 months, alongside complementary changes to Victoria Police and DPP policies.

While the recommendation regarding the adequacy of court powers to make non-disclosure orders raises complex issues, the Commission considers that six months provides sufficient time to review these issues and consult with relevant stakeholders about the need for legislative reform. It also considers this an appropriate timeframe for Victoria Police to implement training and various other measures and supports aimed at improving disclosure practices, noting that some of these measures are already underway.

This section sets out the Commission’s conclusions and recommendations.

Strengthening and clarifying Victoria Police’s disclosure obligations

As a matter of principle, Victoria Police should inform prosecuting authorities of the existence of all material that is relevant to the case of an accused person, including material that is subject to a PII claim. The prosecution has a duty to disclose relevant material to an accused person and a duty to conduct proceedings fairly. If the prosecution does not know about all relevant material, its ability to fulfil these duties is constrained. The Commission is aware that this involves several practical challenges, including:

• the complexity and volume of material police obtain in many investigations and their ability to review this material
• the difficulties associated with determining whether material is relevant and needs to be disclosed.

Disclosure of human sources involves the additional complexity of the need to protect the source’s identity.

The Commission considers that there is scope to strengthen and clarify Victoria Police’s disclosure obligations to prosecuting authorities. One way to achieve this is to introduce a statutory requirement for police to:

• provide the DPP with all material obtained during an investigation that may be relevant to either the prosecution or the accused person’s case, except any material that is subject to a claim of PII, privilege or a legislative immunity or publication restriction;
• notify the DPP of the existence and nature of any material subject to a claim of PII, privilege or a legislative immunity or publication restriction, and provide the DPP with that material if requested.

This follows the New South Wales approach outlined above. The Commission notes that the VLRC made a similar recommendation, namely that the Criminal Procedure Act be amended to provide that:

• the informant’s disclosure obligations to the DPP apply regardless of privilege, public immunity or statutory immunity claims
• when immunity claims are made, the informant does not have to provide to the DPP the material that is subject to these claims
• the informant must tell the DPP why they object to providing the material.³²⁵

The Commission further recommends that police should be required to disclose the withheld material to the DPP (or if necessary, in highly sensitive matters, a court) if the DPP requests that material. This requirement is important to ensure that the DPP or a court can assess whether that material should be disclosed to the accused person or whether a failure to disclose the material affects the DPP’s ability to conduct a fair trial.

The Commission also recommends that police disclosure obligations to prosecuting authorities be supported through the use of a disclosure certificate, as in New South Wales (see Box 14.3 above). Currently, the existence of material relevant to an accused person’s case but subject to a PII claim can be disclosed to an accused person and the DPP through the Form 30 (for indictable proceedings) or the Form 11 (for summary matters). The Commission agrees with some stakeholders’ submissions that these forms do not adequately draw informants’ attention to their disclosure obligations, and considers that they should be accompanied by a separate disclosure certificate.

The disclosure certificate would require the police officer completing the form to indicate the existence of the material that is being withheld and to describe that material. The Commission is aware that when a PII claim is made, care needs to be taken to ensure that the description of the item withheld does not reveal to the accused person the information over which the claim is made. This is particularly relevant when police are seeking to protect the identity of a human source.

A copy of the disclosure certificate should be provided to the accused person and the DPP in indictable proceedings.

The Commission agrees with the DPP’s submission that the legislative requirement to provide these schedules of withheld material in a disclosure certificate should be accompanied by complementary Victoria Police internal policies or procedures. These would guide police investigators on how to describe withheld material and on the corresponding claims of PII, privilege or a legislative immunity or publication restriction.

The Commission believes that providing such guidance will be integral to the effective operation of the proposed new disclosure certificate regime.

The Commission is mindful that the VLRC’s Committals Review did not recommend introducing a disclosure certificate regime for Victoria, noting that inadequate disclosure remains a problem in New South Wales despite the use of disclosure certificates. Instead, the VLRC recommended other measures that are similarly aimed at strengthening police disclosure practices. These included requiring informants to give sworn evidence in court that they have met their disclosure obligations and allowing the accused person to cross-examine. While understanding the reasons for the VLRC’s views, the Commission is concerned that the implementation of the recommendations may present practical issues, unnecessarily prolong the court process and require significant resources. It may also disadvantage some self-represented accused persons.

The Commission accepts that introducing a disclosure certificate regime alone is not enough to adequately strengthen disclosure practices, but considers that it is a simple and clear mechanism for police to provide effective disclosure of relevant withheld material to the DPP and the accused person if it is accompanied by rigorous training, guidance and support on how to comply with disclosure obligations. It would enable those relatively rare cases requiring the court’s determination to be identified. The need for effective training of police officers in disclosure obligations is discussed in more detail below.

The VLRC recommended other measures aimed at strengthening police disclosure to the DPP and the accused person in cases where police withhold relevant material on the basis of claims of PII, legal professional privilege or a statutory prohibition.³²⁶ The Commission notes that, in this regard, the goals and principles underlying the VLRC’s recommendations and this Commission’s recommendations are broadly aligned.

Application to summary proceedings

Victoria Police has informed the Commission that the use of human source information in summary proceedings is rare. It has also advised that the use of information from a source with legal obligations of confidentiality or privilege, while not impossible, is extremely unlikely.

Even so, the same principles apply to police disclosure in both summary and indictable matters. In summary proceedings, police should inform police prosecutors of the existence of all material relevant to the accused person’s case, including the existence of material subject to a PII claim.

Victoria Police submitted that the volume of summary matters presents a major challenge in relation to disclosure and that more onerous disclosure obligations may make managing this workload even more challenging without appropriate system supports.

The Commission appreciates that disclosure obligations must be practical and workable. The proposed disclosure certificate broadly reflects existing police obligations under the Criminal Procedure Act regarding the provision of relevant information. It would not alter the obligation to disclose material but rather clarify how police inform prosecuting authorities and the accused person of: (a) the existence of relevant withheld material; and (b) the reasons why they are withholding that material. Properly trained police officers should find the concept of full disclosure so embedded in the investigative process that it will not be an arduous additional task, even in summary proceedings.

The Commission is mindful that the whole notion of summary proceedings is that they be dealt with quickly. It therefore considers that in summary proceedings, police should only use the proposed new disclosure certificate when required to provide the accused person with a full brief. That is not to undermine, however, the importance of police officers’ disclosure obligations in all summary cases, even where an accused person pleads guilty.

It is important that police take their disclosure obligations seriously in all summary matters, including properly completing the forms and statements they are required to provide to an accused person as part of the preliminary brief procedure.

Any proposed legislative changes should be preceded by meaningful consultation with legal stakeholders and Victoria Police.

The provision proposed in Recommendation 62 is based on section 15A of the Director of Public Prosecutions Act 1986 (NSW).

The provision proposed in Recommendation 63 is based on the New South Wales disclosure certificate in Schedule 1 of the Director of Public Prosecutions Regulation 2015 (NSW).

Greater legislative clarity about certain kinds of disclosable information

The Commission agrees with the DPP that there appear to be ongoing issues in the identification of relevant disclosable material relating to the credibility of a prosecution witness (such as relevant criminal history, or the provisions of letters of assistance, charge reductions or other favourable treatment in criminal prosecutions as a result of the witness’ cooperation with police). The Commission considers it critically important for police to understand that this category of information is disclosable. To that end, the Commission recommends that the Criminal Procedure Act be amended to provide greater clarity on this issue.

A statutory procedure for courts to determine public interest immunity claims in relation to disclosure

The Commission heard from the DPP that:

• a statutory procedure for a court to determine disclosure issues should be introduced in the Criminal Procedure Act
• this power should provide that a court can dispense with disclosure requirements on specific grounds, including PII.

Victoria Police also submitted that there should be a clearer mechanism to have complex PII claims determined by a court at an early stage. Both the DPP and Victoria Police proposed that there should be a statutory procedure to enable the prosecution or police to apply to a court to determine a PII claim.

Currently, courts most commonly determine police PII claims when the accused person issues a subpoena for the production of material, or challenges a decision not to disclose, rather than in response to an application from the party claiming PII.

Some stakeholders suggested models for Victorian courts to determine a PII claim on an application by the prosecution or police. For example, the DPP and Victoria Police referred to section 138 of the Western Australia Criminal Procedure Act a possible model—see Box 14.6 above.

The Commission has examined the Western Australian provision and considers that it provides only limited guidance for Victoria. First, the test courts apply when determining whether to dispense with a disclosure requirement differs from that used to determine PII claims in Victoria, and second, it would limit the power of police to apply for non-disclosure orders in summary proceedings.

To elaborate, in the Western Australian provision, the test for deciding whether to dispense with a disclosure requirement is whether:

• there is a good reason to dispense with it; and
• no miscarriage of justice will result.

On its face, this broad and simple test is not the more nuanced test Victorian courts use to determine whether material is covered by PII (and, as outlined earlier in this chapter, therefore does not have to be disclosed).

In addition, the Western Australian provision allows a party to a proceeding to apply for a non-disclosure order. Police are not a party to indictable proceedings; therefore, the provision does not easily allow police to apply for a non-disclosure order in indictable proceedings. In Victoria, as the police not the prosecutor litigate PII claims, the Western Australian procedure is not a useful analogy.

The approach taken in the United Kingdom to the prosecutor making a PII application to a court (outlined in Box 14.7 above) also provides only limited guidance for Victoria, for a similar reason. This is because, unlike in the United Kingdom, Victorian PII claims are brought by lawyers representing the police, not the DPP.

The Commission suggests caution before introducing a statutory procedure for a court to determine disclosure issues when the law operating in Victoria appears adequate. It was not an inadequacy in Victorian law but Victoria Police’s failure to adhere to that law that led to this inquiry. Further, given the VLRC’s recommendations relating to the determination of pre-trial issues as part of its Committals Review, the Commission considers that any changes to court powers relating to disclosure should be reviewed in the context of any broader reforms to the committals system in Victoria.

The Commission is also reluctant to recommend a statutory provision that would empower Victoria Police to routinely apply to dispense with disclosure requirements without giving notice to the accused person. Such applications in criminal proceedings without notifying the accused person are apt to present very real risks to the proper administration of justice. In the Commission’s view, these applications should be made only in exceptional cases, and the court should have flexibility to control those proceedings to take steps to minimise unfairness to the accused person. The common law in Victoria already allows for this.

When applying the law to determine PII claims, courts perform a balancing exercise. This is an evaluative process. As outlined earlier in this chapter, in deciding whether relevant material should be withheld, the court must consider whether the public interest in withholding disclosure is in the interests of the administration of justice. A court’s ability to engage in this evaluative exercise is likely to be more difficult if it only hears submissions from Victoria Police. While a court may appoint a special counsel or amicus curiae (friend of the court) and provide some protection to the interests of the accused person, these roles do not directly represent the interests of an accused person.

Moreover, the Commission considers that if laws were enacted to specifically allow Victoria Police to apply to a court to determine a PII claim in the absence of the accused person, it should consult with the DPP before making any such application. The desirability of early consultation with the DPP is discussed further below.

Encouraging involvement of the prosecution in assisting police with public interest immunity claims

Victoria Police indicated that an effective way to improve the system of disclosure in Victoria would be to enhance the degree of consultation between police investigators and prosecutors. In particular, Victoria Police submitted that early engagement between its officers and the OPP in relation to complex legal issues concerning questions of disclosure, relevance and PII would strengthen disclosure practices. For Victoria Police, the early involvement of prosecutors would include the opportunity for officers to consult and seek advice from prosecutors about these matters.

The DPP emphasised that prosecutors and police already consult early in the prosecution process regarding PII issues, in accordance with the DPP Policy.³²⁷ The DPP also submitted that current practice involves the OPP and Victoria Police working together in indictable matters and considered that these practices are sufficient.³²⁸ That view of the current practice was not universally held among key stakeholders. The Commission considers that, for this reason alone, there is scope to reflect on the current practices and consider opportunities for improvement.

Victoria Police, as well as other stakeholders, identified a number of matters, including the nature of disclosure obligations, PII and assessing relevance of disclosable material, that police officers routinely find complex to assess and resolve.³²⁹ These elements overlap and are crucial to the proper functioning of the criminal justice system.

It is critical that key stakeholders work together and develop disclosure processes and procedures that support Victoria Police to navigate and make decisions about these complex issues, including through the provision of legal advice. That support may be provided by the VGSO (for example, in relation to Victoria Police’s PII claims) and/or the OPP (for example, in relation to disclosure issues and obligations more generally). Most importantly, there must be a clear understanding by Victoria Police officers that these are not matters that they should, or are expected to, navigate alone. The Commission is not satisfied that the existing processes and policies provide that clarity.

Because of their interdependent roles, a cooperative, respectful and functional working relationship between the DPP and Victoria Police is essential to the operation of an effective and fair criminal justice system. The Commission considers that the DPP and Victoria Police must jointly establish clearer and more transparent protocols and procedures to facilitate early and effective discussion of issues relating to PII claims.

The Commission considers that these protocols and procedures should:

• ensure Victoria Police has adequate and early support, including legal advice, when making complex decisions about relevant and disclosable information that may be subject to PII
• tailor the level of support provided to Victoria Police so that greater support is provided in respect of complex PII and disclosure issues, recognising the potential resourcing implications
• ensure the DPP’s independence is maintained (for example, by specifying that Victoria Police will continue to be responsible for litigating PII claims assisted by separate legal representation such as the VGSO).

The VLRC Committals Review also considered that the DPP should provide greater assistance to informants in relation to their disclosure obligations, noting, as the Commission does, that OPP practitioners are legally trained and have the relevant expertise.

The Commission appreciates that there are important reasons why prosecutors may not consider it necessary or appropriate to review the actual material that is the subject of a PII claim. Chief among those reasons is the need to protect the independence of the DPP’s role in fulfilling its prosecutorial functions.

Generally, it will be sufficient for the DPP to be aware of the existence of PII material and the nature of the claim. Although, as the events the subject of this inquiry demonstrate, there will be cases where police are required to deal with complex and atypical PII issues. The Commission encourages police to promptly obtain independent legal advice on issues relating to PII, for example from the VGSO, including to assist it in understanding whether, and how, material should be brought to the attention of prosecutors. In such circumstances, it may be appropriate for the DPP to consider relevant material that is subject to a PII claim and to discuss PII issues and disclosure issues with police.

The Commission notes that at the Commonwealth level, consultation between police and prosecutors commences soon after a charge is laid and involves early engagement and discussion of disclosure and PII issues. Those discussions may cover:

• the basis for the PII claim
• the significance of the material to the case
• appropriate procedures for resolving the PII claim.

The Commission notes that the DPP Policy is regularly reviewed and updated to reflect relevant changes to the law. It is a valuable public document that helps to promote an open and accountable prosecution service and supports members of the public to understand how important aspects of the criminal justice system operate. To help the DPP and police work together, the Commission considers that the DPP should amend the DPP Policy to provide clearer guidance on what is expected of police and the DPP in relation to consultation about claims of PII, with a particular focus on PII matters that potentially raise complex issues—for example, matters involving information from a human source where legal obligations of confidentiality or privilege may arise.

The policy could also set out processes and procedures to better guide and facilitate discussion of relevant issues between police and the OPP. This would complement the recommendations made above to strengthen police disclosure obligations to prosecuting authorities and supplement the proposed new legislative requirements. It would also provide clarity and transparency about when and how police should engage with the OPP.

The Commission notes the DPP’s concerns about the resourcing implications if its prosecutors were to have greater and earlier engagement with police in relation to PII and disclosure issues. The Commission acknowledges that substantially increased engagement and any structural changes to facilitate this would likely require additional resources. As noted above, however, this more in-depth engagement need only occur in limited cases involving complex PII and disclosure issues, not in all cases. Consequently, the Commission is of the view that it should not pose significant resourcing issues.

Improving training and support

Ensuring that police have a proper understanding of their disclosure obligations as well as the capacity to fulfil these obligations is an essential safeguard against unfairness to an accused person.

The Commission accepts that disclosure can be a complex and time-consuming task. To assess whether material is relevant to the case of the prosecution or the case of the accused person, police officers need to have a good understanding of issues related to relevance, legal professional privilege and PII, all of which can be legally complex and technical.

The Commission considers that ongoing training and support should be provided to enable Victoria Police officers to properly understand and meet their disclosure obligations to prosecuting authorities and to accused persons. Stakeholders suggested a number of possible initiatives to improve the training and support provided to Victoria Police, including:

• improved training resources
• piloting the use of dedicated disclosure officers
• strengthening Victoria Police’s information management systems.

Each of these initiatives is discussed further below.

Improving training for Victoria Police

Disclosure is not necessarily straightforward. On the contrary, it can be very complex and difficult. To ensure that police have the capability and capacity to meet their disclosure obligations properly, it is imperative that Victoria Police provides its recruits and officers with initial and ongoing training and support. Victoria Police recognises that its current disclosure training needs improvement. The Commission acknowledges, and is encouraged by, Victoria Police’s plans to achieve this, including:

• the development and implementation of an appropriate training video on the Victoria Police internal video portal
• finalisation and roll-out of a comprehensive organisation-wide disclosure handbook
• plans for human source management training to be changed so that it specifically and effectively covers issues related to using human source information in prosecutions, and human sources becoming witnesses.

It is also critical that Victoria Police provides comprehensive and ongoing disclosure training and support not only to police investigators but also to officers who work in human source management. A lack of understanding of disclosure obligations on the part of officers who work in human source management may result in unfairness to the accused person, an unsuccessful prosecution or a miscarriage of justice.

Those who work in human source management need to approach their work with a thorough understanding of the importance of disclosure to the integrity of the criminal justice system. Training should be delivered by external providers with legal expertise who have an understanding of both the law relating to disclosure and PII and its practical application to modern policing; for example, the VGSO, the OPP and criminal law defence practitioners.

While Victoria Police’s new proposed training initiatives look promising, given that they are either in the planning stage or in the very early stages of implementation, it is too soon to determine whether they will be effective in improving police understanding and delivery of their disclosure obligations. The value of these initiatives can only be properly assessed when they have been trialled over a period of time. For this reason, the Commission recommends that these initiatives be independently reviewed two years after their implementation to ensure they are effective in improving police understanding and delivery of their disclosure obligations. It also considers that an additional external review should be conducted five years after the initial review to ensure that the effectiveness of the measures can be properly assessed over a longer period.

Piloting the use of disclosure officers

The Commission heard that, during Victoria Police investigations, information is collected from human sources by officers in a separate area of the organisation to officers who investigate offences and prepare briefs of evidence, and the information provided is ‘sanitised’ (deidentified) before it is disseminated to investigating officers (as mentioned earlier, this process is called the sterile corridor). As a result, the police officer who is responsible for disclosing relevant material to an accused person may not have all the information relevant to the investigation. This lack of awareness can fundamentally impede police ability to disclose to the defence, the DPP and the courts the existence of all relevant material.

The existence of the sterile corridor and the associated need to protect the identity of human sources presents one of the most significant challenges to ensuring that police disclose all relevant human source information to prosecuting authorities.

Victoria Police’s proposal to have dedicated disclosure officers working across the HSMU and the investigation team has merit. It could help facilitate continuity throughout an investigation and during any criminal proceeding that results from that investigation. The Commission therefore supports Victoria Police’s piloted use of dedicated disclosure officers but notes that exactly how the model will operate is yet to be determined. The Commission also notes that the pilot is currently limited to two disclosure officers and investigations involving human sources (as opposed to, for example, the United Kingdom model, which uses dedicated disclosure officers across a much broader range of investigations).

Given that this initiative is in its very early stages, the Commission considers that it will be important for it to be independently reviewed after it has been in operation for 12 months. If it proves to be successful in the view of both the police and other stakeholders in the criminal justice system, it should be expanded. The Commission believes it is important for the initiative to be reviewed again after an additional five years, to ensure it adequately achieves its objectives. Given that, to the best of the Commission’s knowledge, this proposed approach of having dedicated disclosure officers working across the HSMU and the investigation team is not replicated in other similar jurisdictions, these independent reviews will be particularly important.

Strengthening Victoria Police’s information management systems

The success of any measures to strengthen police disclosure practices depends largely on the extent to which Victoria Police prioritises and emphasises the importance of disclosure across the organisation. This includes having the necessary information and document management systems in place.

Victoria Police told the Commission that a key factor affecting its disclosure practices is the lack of a comprehensive electronic information and document management system; however, it did not specify with precision the limitations in the existing systems, nor the functionality any new system would need to address the current problems. As a result, the Commission is not in a position to make specific recommendations for reform in this area.

The Commission acknowledges that Victoria Police’s ability to improve its disclosure practices may rely on enhancements to its information management capability. It therefore considers that Victoria Police should undertake further work, to assess with specificity:

• the extent to which the implementation of recent systems reforms will adequately enable it to fulfil its disclosure obligations (for example, the introduction of an intelligence management system that connects some data sources across the organisation)
• remaining gaps and issues in the current systems
• the necessary functionality to address any identified gaps and issues
• the investment required to develop and implement any additional required functionality.

This will enable Victoria Police to advise the Victorian Government clearly on the reforms needed in this area and the resourcing required.

Enhancing oversight, leadership and cultural change

Embedding within Victoria Police a strong awareness and understanding of how disclosure is essential to a functional and fair criminal justice system is one of many important safeguards that would help to prevent the misuse of human source information.

Victoria Police has emphasised its commitment to working cooperatively with other stakeholders to improve disclosure practices. During this inquiry, Victoria Police introduced some measures to strengthen these practices. It has also outlined a number of training measures that it proposes to implement. The Commission is encouraged by these proposals, but emphasises the importance of continuous review and improvement beyond the conclusion of this inquiry.

As discussed earlier in this chapter, the Commission considers that current police disclosure practices could be strengthened through increased cooperation and communication between the DPP and Victoria Police. These agencies are best placed to lead and facilitate this cooperation.

The Commission is fortified in this view by the United Kingdom’s efforts to improve disclosure practices, which highlight the importance of change being led by the agencies who are responsible for implementation.

The Commission hopes that the conduct of this inquiry has contributed to a stronger awareness of the importance of police disclosing the existence of relevant human source information to prosecuting authorities. This did not occur in the cases that gave rise to this inquiry.

Overall, the Commission believes that its recommendations—including the introduction of disclosure certificates, improving police training and support and encouraging the earlier involvement of the prosecution in resolving complex PII claims—should contribute to a culture within Victoria Police where disclosure obligations are an integral part of officers’ duties and the organisation’s commitment to upholding a functional and fair criminal justice system.

Long-lasting cultural change regarding the importance of disclosure will take time to permeate across the organisation, as better training practices and systemic changes take root. Chapter 17 makes recommendations aimed at establishing effective governance, monitoring and reporting mechanisms to drive and oversee implementation of the Commission’s recommendations. These mechanisms will be important in facilitating effective implementation and regular review of the recommendations made in this chapter, and in so doing, will help to bring about the necessary cultural shift.

The Commission has carefully considered the DPP’s proposal for the establishment of an independent Disclosure Monitor to conduct ongoing system-wide audits and reviews of Victoria Police’s compliance with its disclosure obligations. The DPP submitted that the proposed Disclosure Monitor would not have the power to review the merits of individual police disclosure decisions, but rather would focus on systemic reviews in order to improve guidance to police for future cases. The DPP also submitted that the proposed Disclosure Monitor would have a role in training police officers about disclosure.

The Commission was not asked to review Victoria Police’s disclosure practices more broadly but has heard during its inquiry that there is scope to improve present police disclosure practices in Victoria. Given the Commission’s limited terms of reference it has not heard evidence of systemic failures in current disclosure practices.

Accordingly, based both on the terms of the Commission’s inquiry and the information received, the Commission does not consider it is in a position to recommend establishing an independent Disclosure Monitor.

The Commission notes Victoria Police has recently implemented, or is in the process of implementing, some systemic changes to its disclosure practices. These include the potential establishment of a disclosure governance committee to monitor disclosure issues and failures and to implement systemic improvements across the organisation. The Commission notes that at the time of finalising this report, Victoria Police has not confirmed the committee’s terms of reference or its membership.

The Commission considers that this committee would greatly benefit from the membership of external stakeholders such as the OPP, the VGSO, the Department of Justice and Community Safety and Victoria Legal Aid, all of which have expertise in the complex legal issues around disclosure and PII in the context of modern policing and prosecutions.

While the governance and other disclosure reforms proposed by Victoria Police appear promising, they are all in very early stages. The Commission considers it important that Victoria Police commits to establishing a governance mechanism so that the committee can inform and monitor the implementation of Victoria Police’s proposed reforms, along with the reforms recommended by the Commission. The Commission considers that this will help to promote lasting cultural change and an effective and cooperative inter-agency approach to improving disclosure processes and practices.

Endnotes

_{1 AB v CD & EF [2017] VSCA 338, [66] (Ferguson CJ, Osborn and McLeish JJA).}

_{2 See John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 21 [124].}

_{3 See Criminal Procedure Act 2009 (Vic) ss 42, 111, 185; Roberts v The Queen (2020) 60 VR 431, [57]. See also Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 87–8.}

_{4 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(a).}

_{5 See Nguyen v The Queen (2020) 94 ALJR 686; R v Puddick (1865) 176 ER 662; R v Apostilides (1984) 154 CLR 563. See also Christopher Corns and Steven Tudor, Criminal Investigation and Procedure: The Law in Victoria (Thomson Reuters, 2009) 322 [10.210].}

_{6 Nguyen v The Queen (2020) 94 ALJR 686, [36].}

_{7 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [21].}

_{8 Cannon v Tahche (2002)5 VR 317; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; R v Garofalo [1999] 2 VR 625; Clarkson v DPP [1990] VR 745; Mallard v The Queen (2005) 224 CLR 125; Grey v The Queen (2001) 75 ALJR 1708.}

_{9 See Cannon v Tahche (2002) 5 VR 317, 339–41 [56]–[60]; R v Mallard (2005) 224 CLR 125, 132–3. See also David Plater and Lucy De Vreeze, ‘Is the “Golden Rule” of Full Prosecution Disclosure a Modern “Mission Impossible”?’ (2012) 14 Flinders Law Journal 133, 141.}

_{10 R v Ernst [2020] QCA 150, [34].}

_{11 Ragg v Magistrates’ Court of Victoria [2008] VSC 1, [45]-[62].}

_{12 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (27 March 2019) 7 [15]. ‘A real as opposed to fanciful prospect’ is one that is realistic and is not hopeless or bound to fail: Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, [29] (Warren CJ and Nettle JA) (Neave JA agreeing).This includes material that if investigated further, may realistically lead to new material relevant to the case or raise new issues that are not apparent from the evidence that the prosecution proposes to use.}

_{13 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (27 March 2019) 7 [15]. An example of a statutory prohibition on disclosure is a restriction on disclosing to the accused person the address and telephone numbers of any person: Criminal Procedure Act 2009 (Vic) ss 48, 114.}

_{14 Clarkson v Director of Public Prosecutions [1990] VR 745, 755 (Murphy J). See also R v Farquharson [2009] VSCA 307.}

_{15 Christopher Corns, Public Prosecutions in Australia: Law Policy and Practice (Thomas Reuters, 2009) 225.}

_{16 Grey v The Queen (2001) 184 ALR 593.}

_{17 Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii).}

_{18 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020), 19 [56].}

_{19 Australian Government Productivity Commission, Report on Government Services 2020 (Report, 29 January 2020), 7 Courts data tables, 7A.1 < www.pc.gov.au/research/ongoing/report-on-government-services/2020/justi…;. Figures for 2019–20 were not available at time of finalising this report.}

_{20 Section 27 of the Public Prosecutions Act 1994 (Vic) also specifies that police must provide the DPP with all relevant documents and certain other material in limited circumstances. This includes where a person has been charged with an offence or class of offence that the DPP or Director’s Committee has directed should be referred to them for starting and conducting proceedings: see Explanatory Memorandum, Public Prosecutions Bill 1994 (Vic).}

_{21 An informant is responsible for starting criminal proceedings and has a range of responsibilities, including signing the charge-sheet.}

_{22 Criminal Procedure Act 2009 (Vic) ss 36, 40, 106. See also R v Garofalo [1999] 2 VR 625, [63], [67] (Ormiston JA).}

_{23 Criminal Procedure Act 2009 (Vic) s 37.}

_{24 Magistrates’ Court Criminal Procedure Rules 2019 (Vic), r 19: This document is known as ‘Form 10’.}

_{25 Criminal Procedure Act 2009 (Vic) s 41.}

_{26 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45]; Exhibit RC1938 Statement of Ms Abbey Hogan, 11 September 2020, [3]–[4], Annexure B.}

_{27 Based on ‘The prosecution process’, Office of Public Prosecutions Victoria (Web Page) < www.opp.vic.gov.au/getattachment/4201036f-eadf-4b1f-bf12-23e8c777e530/T…;. >.}

_{28 Criminal Procedure Act 2009 (Vic) s 110. If the charges are for a sexual offence and the complainant is a child or cognitively impaired, additional ‘Standard Disclosure items’ must also be served together with the brief.}

_{29 Based on ‘Criminal Procedure Act 2009—Legislative Guide by chapter’, Department of Justice and Community Safety, (Web Page) < www.justice.vic.gov.au/criminal-procedure-act-2009-legislative-guide-by…;.}

_{30 Criminal Procedure Act 2009 (Vic) s 117.}

_{31 Criminal Procedure Act 2009 (Vic) s 111.}

_{32 Criminal Procedure Act 2009 (Vic) ss 42, 111; R v Farquharson (2009) 26 VR 410.}

_{33 Roberts v The Queen (2020) 60 VR 431,[56]; R v Ward [1993] 1 WLR 619.}

_{34 Grey v The Queen (2001) 75 ALJR 1708; Mallard v The Queen (2005) 224 CLR 134.}

_{35 Evidence Act 2008 (Vic) ss 130, 131A; Sankey v Whitlam (1978) 142 CLR 1, 38 (Gibbs ACJ).}

_{36 Alister v The Queen (1984) 154 CLR 404, 431 (Murphy J), 457 (Brennan J).}

_{37 Email from Victorian Government Solicitor’s Office to the Commission, 21 October 2020.}

_{38 Based on information provided to the Commission by the Victorian Government Solicitor’s Office; Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [17]–[19].}

_{39 Unless the prosecutor was present in court for the PII proceedings or a non-publication order prevents the information being provided.}

_{40 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [18]. The DPP Policy and whether it complies with the prosecutor’s obligations under the common law was recently discussed in Director of Public Prosecutions v Kent Westbrook (A Pseudonym) [2020] VSC 290, 6 [14]–[21].}

_{41 The common law doctrine of PII as it applies in court proceedings is largely replicated in section 130 of theEvidence Act 2008 (Vic).}

_{42 Criminal Procedure Act 2009 (Vic) s 45(1)(c).}

_{43 Criminal Procedure Act 2009 (Vic) ss 45(1)(c), 122(2).}

_{44 Criminal Procedure Act 2009 (Vic) ss 45(1)(e), 122(2).}

_{45 Rule 19 of the Magistrates’ Court Criminal Procedure Rules 2019 (Vic) provides that for the purpose of section 37(1)(b) of the Criminal Procedure Act 2009 (Vic), the prescribed form of notice to be included in the preliminary brief is notice in Form 10. Rule 20 of the Magistrates’ Court Criminal Procedure Rules provides that for the purposes of section 41(1)(a) of the Criminal Procedure Act the prescribed form of notice to be included in the full brief is notice in Form 11.}

_{46 Rule 57(2) of the Magistrates’ Court Criminal Procedure Rules 2019 (Vic) provides that a list of information or other documents contained in a hand-up brief under section 110 of the Criminal Procedure Act 2009 (Vic) must be in Form 30.}

_{47 Criminal Procedure Act 2009 (Vic) ss 37(1)(f), 41(1)(f).}

_{48 Criminal Procedure Act 2009 (Vic) s 109.}

_{49 Criminal Procedure Act 2009 (Vic) s 46(1).}

_{50 The ‘Form 32’ is prescribed for the purposes of section 119(a) of the Criminal Procedure Act 2009 (Vic).}

_{51 Criminal Procedure Act 2009 (Vic) s 125(1)(e).}

_{52 Criminal Procedure Act 2009 (Vic) s 181(1).}

_{53 See, eg, Marks v Beyfus (1890) 25 QBD 494; Jarvie v Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84; Signorotto v Nicholson [1982] VR 413, 419; R v XZ (2000) 116 A Crim R; Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 34[50] (Maxwell P), 46 [102]–[103] (Charles JA); D v National Society for the Prevention of Cruelty to Children [1978] AC 171,218(Diplock LJ), cited by Meagher JA in Derbas v The Queen [2012] NSWCCA 14, [22].}

_{54 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 6 [15].}

_{55 AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1, 5 [12] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).}

_{56 See John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 21–2 [124].}

_{57 John Champion, Report to the Director of Public Prosecutions in Relation to Recommendation 12 of the Kellam Report (Report, 5 February 2016) 21–2 [124].}

_{58 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [17]. The exception is when the DPP holds the privilege (for example, if the material is protected by legal professional privilege and the DPP is the client that received the legal advice).}

_{59 See, eg, AB v CD & EF [2017] VSCA 338.}

_{60 See, eg, R v Mokbel (Ruling No 1) (2005) VSC 410, 7 [24].}

_{61 Alister v The Queen (1984) 154 CLR 404, 431 (Murphy J), 457 (Brennan J).}

_{62 Jago v District Court (NSW) (1989)168 CLR 23, 29 (Mason CJ) citing Bunning v Cross (1978) 141 CLR 54 and R v Sang [1980] AC 402; Dietrich v The Queen (1992) 177 CLR 292, 299–300 (Mason CJ and McHugh J).}

_{63 Submission 143 Commonwealth Director of Public Prosecutions, 4 [24].}

_{64 Submission 143 Commonwealth Director of Public Prosecutions, 4 [24].}

_{65 Submission 143 Commonwealth Director of Public Prosecutions, 8 [44].}

_{66 Submission 143 Commonwealth Director of Public Prosecutions, 8 [44].}

_{67 Submission 143 Commonwealth Director of Public Prosecutions, 8 [44].}

_{68 Office of the Director of Public Prosecutions, The Prosecution Policy of the Australian Capital Territory (13 April 2015) 13 [4.9].}

_{69 Office of the Director of Public Prosecutions, The Prosecution Policy of the Australian Capital Territory (13 April 2015) 13 [4.9].}

_{70 Office of the Director of Public Prosecutions, The Prosecution Policy of the Australian Capital Territory (13 April 2015) 13 [4.9].}

_{71 Director of Public Prosecutions Act 1986 (NSW) s 15A(1).}

_{72 Director of Public Prosecutions Act 1986 (NSW) s 15A(7).}

_{73 New South Wales Police Force Handbook (2 October 2019) 61.}

_{74 Consultation with New South Wales Office of Director of Public Prosecutions, 16 September 2019.}

_{75 Northern Territory Office of the Director of Public Prosecutions, Guidelines of the Director of Public Prosecutions (2016) 12 [8.12].}

_{76 Northern Territory Office of the Director of Public Prosecutions, Guidelines of the Director of Public Prosecutions (2016) 13 [8.19].}

_{77 Northern Territory Office of the Director of Public Prosecutions, Guidelines of the Director of Public Prosecutions (2016) 11 [8.6].}

_{78 Director of Public Prosecutions Act 1984 (Qld) s 24C(2).}

_{79 Queensland Office of the Director of Public Prosecutions, Director’s Guidelines (30 June 2016) 41 [29(viii)].}

_{80 Queensland Office of the Director of Public Prosecutions, Director’s Guidelines (30 June 2016) 41 [29(viii)].}

_{81 Director of Public Prosecutions Act 1991 (SA) s 10A(1).}

_{82 Director of Public Prosecutions Act 1991 (SA) s 10A(2)(a).}

_{83 Director of Public Prosecutions South Australia, Statement of Prosecution Policy and Guidelines (October 2014) 21.}

_{84 Tasmania Director of Public Prosecutions, Prosecution Policy and Guidelines (23 October 2019) 120.}

_{85 Tasmania Director of Public Prosecutions, Prosecution Policy and Guidelines (23 October 2019) 120.}

_{86 Tasmania Director of Public Prosecutions, Prosecution Policy and Guidelines (23 October 2019) 121.}

_{87 Western Australia Office of the Director of Public Prosecutions, Statement of Prosecution Policy and Guidelines (1 September 2018) 15 [97].}

_{88 Western Australia Office of the Director of Public Prosecutions, Statement of Prosecution Policy and Guidelines (1 September 2018) 15 [97].}

_{89 Criminal Procedure Act 2004 (WA) s 138.}

_{90 Victorian Law Reform Commission, Committals (Report, March 2020).}

_{91 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020).}

_{92 Mallard v The Queen (2005) 224 CLR 125.}

_{93 Submission 097 Criminal Bar Association, [10]; Submission 145 Victorian Legal Aid, 7–8; Submission 146 Law Institute of Victoria, 5.}

_{94 Submission 097 Criminal Bar Association, [10].}

_{95 Submission 142 Director of Public Prosecutions (Victoria), 44–6; Submission 146 Law Institute of Victoria, 5; Submission 147 Criminal Bar Association, 3–4.}

_{96 Submission 142 Director of Public Prosecutions (Victoria), 44 [168].}

_{97 Submission 142 Director of Public Prosecutions (Victoria), 44 [169].}

_{98 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [18].}

_{99 Submission 142 Director of Public Prosecutions (Victoria), 48 [184].}

_{100 See, eg, Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 30–2.}

_{101 See, eg, Criminal Procedure Act 1986 (NSW) ss 141, 147; Director of Public Prosecutions Act 1986 (NSW) s 15A; Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) (Guideline 18); Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 29.5; Legal Profession Uniform Conduct (Barristers) Rules 2015, r 87.}

_{102 Director of Public Prosecutions Act 1986 (NSW) s 15A(1); Director of Public Prosecutions Regulation 2015 (NSW), sch 1.}

_{103 New South Wales Police Force Handbook (2 October 2019) 61.}

_{104 Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria (17 September 2020) 7 [18].}

_{105 Director of Public Prosecutions Act 1986 (NSW) s 15A(6).}

_{106 Director of Public Prosecutions Act 1986 (NSW) s 15A(7).}

_{107 Consultation with New South Wales Office of Public Prosecutions, 16 September 2019.}

_{108 Submission 142 Director of Public Prosecutions (Victoria), 49 [188].}

_{109 Submission 144a Victoria Police, [41].}

_{110 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 90–1 [385]–[387].}

_{111 Submission 147 Criminal Bar Association, 1.}

_{112 Submission 147 Criminal Bar Association, 2.}

_{113 Victorian Law Reform Commission, Committals (Report, March 2020) 106 (Recommendation 33).}

_{114 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020) 19 (Recommendation 3).}

_{115 The Operation Gloucester Report also drew attention to section 10A of the Director of Public Prosecutions Act 1991 (SA), which imposes a very similar statutory duty: Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020) 61.}

_{116 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 61.}

_{117 Submission 144a Victoria Police, [58]; Submission 145 Victoria Legal Aid, 6; Submission 147 Criminal Bar Association, 3.}

_{118 Submission 142 Director of Public Prosecutions (Victoria), 52 [205]; Submission 144a Victoria Police, [60].}

_{119 Submission 144a Victoria Police, [58].}

_{120 New South Wales Police Force Handbook (2 October 2019) 61.}

_{121 Director of Public Prosecutions Regulation 2015 (NSW) cl 5(b).}

_{122 Director of Public Prosecutions Regulation 2015 (NSW) cl 5(c).}

_{123 Director of Public Prosecutions Regulation 2015 (NSW) sch 1.}

_{124 New South Wales Police Force Handbook (2 October 2019) 61.}

_{125 Criminal Procedure Act 2004 (WA) s 45(6).}

_{126 Criminal Procedure Act 2004 (WA) s 95(6).}

_{127 Supreme Court of New South Wales, Practice Note SC CL 2: Criminal Proceedings, 15 December 2016, [9].}

_{128 Submission 142 Director of Public Prosecutions (Victoria), 52 [198]; Submission 144a Victoria Police, [58].}

_{129 Submission 142 Director of Public Prosecutions (Victoria), 52 [196].}

_{130 Submission 142 Director of Public Prosecutions (Victoria), 50 [192].}

_{131 Submission 142 Director of Public Prosecutions (Victoria), 52 [205].}

_{132 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14933.}

_{133 Submission 142 Director of Public Prosecutions (Victoria), 40 [149].}

_{134 Submission 145 Victoria Legal Aid, 6; Law Institute of Victoria, Submission to the Victorian Law Reform Commission, Committals (2 October 2019) [4.12]; Submission 147 Criminal Bar Association, 3.}

_{135 See, eg, Submission 145 Victoria Legal Aid, 5.}

_{136 Submission 144a Victoria Police, [63].}

_{137 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.73].}

_{138 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.76].}

_{139 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.77].}

_{140 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.77].}

_{141 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.77].}

_{142 Victorian Law Reform Commission, Committals (Report, March 2020) 105 (Recommendation 32).}

_{143 Victorian Law Reform Commission, Committals (Report, March 2020) 108 [9.78].}

_{144 Submission 145 Victoria Legal Aid, 4.}

_{145 Submission 145 Victoria Legal Aid, 4–5.}

_{146 Submission 147 Criminal Bar Association, 2.}

_{147 Submission 147 Criminal Bar Association, 2.}

_{148 New South Wales Police Force Handbook (2 October 2019) 62–3.}

_{149 Criminal Procedure Act 2004 (WA) s 95(6).}

_{150 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020) 61.}

_{151 Policy of the Director of Public Prosecutions for Victoria (17 September 2020) [17]-[18].}

_{152 Submission 142 Director of Public Prosecutions (Victoria), 62 [251].}

_{153 Submission 142 Director of Public Prosecutions (Victoria), 63 [255].}

_{154 Submission 142 Director of Public Prosecutions (Victoria), 63 [256].}

_{155 Submission 142 Director of Public Prosecutions (Victoria), 63 [256].}

_{156 Submission 142 Director of Public Prosecutions (Victoria), 63 [257].}

_{157 R v Andrews (2010) SASCFC 3, [25] (Gray J); R v Reardon (No 2) (2004) 60 NSWLR 454, 468 [47] (Hodgson JA); R v Lipton (2011) 82 NSWLR 123, 149 [89]–[91] (McColl JA); AB v CD & EF [2017] VSCA 338, [65]. While technically the PII claims in AB v CD & EF [2017] VSC 350 were inter-party proceedings (that is, there was an active respondent to those proceedings), the proceedings and the appeal proceedings were all determined without the persons affected being notified of the applications and/or having the opportunity to be heard by the Court. The Court appointed amici curiae to make submissions in the interests of the individuals not given notice of the proceedings.}

_{158 R v Davis [1993] 2 All ER 643, 647 (Lord Taylor CJ).}

_{159 R v Davis [1993] 2 All ER 643, 647–8; R v Keane [1994] 2 All ER 478, 483 (Lord Taylor CJ).}

_{160 R v H; R v C [2004] 1 All ER 1269, 1284 [35].}

_{161 R v H; R v C [2004] 1 All ER 1269, 1283 [35]–[36]. This view was influenced by the conclusion of the European Court of Human Rights that an ex parte application by the prosecution may contravene the right to a fair and public hearing in article 6 of the European Convention on Human Rights. The Charter of Human Rights and Responsibilities Act 2006 (Vic) provides that a person charged with a criminal offence has the right to a fair and public hearing. Section 25 of the Charter elaborates on the minimum requirements for a fair hearing in criminal proceedings.}

_{162 R v H; R v C [2004] 1 All ER 1269, 1280 [22], 1285 [37].}

_{163 See, eg, R v Reardon (No 2) (2004) 60 NSWLR 454, 468-9 [46]–[54] (Hodgson JA); R v Lipton (2011) 82 NSWLR 123, especially at 149 [89]–[91] (McColl JA). In both cases, as McColl JA noted, it was said that ‘the few Australian cases that have commented on the English cases have not suggested they are not applicable in Australia’.}

_{164 R v Andrews [2010] SASCFC 5.}

_{165 R v Andrews [2010] SASCFC 5 [29] (Gray J).}

_{166 R v Andrews [2010] SASCFC 5 [25] (Gray J).}

_{167 See R v Lodhi (2006) 163 A Crim R 475 [12]–[13]; Sands v State of South Australia [2015] SASR 195, 238–9 [169]–[172]; State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] 81 NSWLR 394.}

_{168 For example, Criminal Procedure and Investigations Act 1996 (UK) ss 3(1)(a), 7A; Criminal Justice and Licensing (Scotland) Act 2010 (UK) s 121.}

_{169 See generally Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015); Crown Office and Procurator Fiscal Service (Scot), Disclosure Manual (December 2014) ch 25.}

_{170 Letter from the Lord Advocate, Crown Office and Procurator Fiscal Service (Scotland) to the Commission, 30 October 2019, 4.}

_{171 Letter from the Lord Advocate, Crown Office and Procurator Fiscal Service (Scotland) to the Commission, 30 October 2019, 4.}

_{172 Submission 154 Supreme Court of Victoria, 9.}

_{173 Submission 154 Supreme Court of Victoria, 8–9.}

_{174 Submission 154 Supreme Court of Victoria, 9–10.}

_{175 Submission 142 Director of Public Prosecutions (Victoria), 63 [257].}

_{176 Submission 142 Director of Public Prosecutions (Victoria), 63-4 [257].}

_{177 Submission 142 Director of Public Prosecutions (Victoria), 64 [258].}

_{178 Submission 142 Director of Public Prosecutions (Victoria), 68 [274].}

_{179 Submission 142 Director of Public Prosecutions (Victoria), 70 [281].}

_{180 Submission 142 Director of Public Prosecutions (Victoria), 70 [8.4.6].}

_{181 The DPP suggests that the Public Interest Monitor’s powers and functions could reflect those set out in section 3D of the Major Crimes (Investigative Powers) Act 2004. See Submission 142 Director of Public Prosecutions (Victoria), 70 [282].}

_{182 Submission 144a Victoria Police, [35].}

_{183 Submission 144a Victoria Police, [35].}

_{184 Submission 142 Director of Public Prosecutions, 64 [259]; Submission 144a Victoria Police, [81].}

_{185 Criminal Procedure Act 2004 (WA) s 138(3)(a).}

_{186 Criminal Procedure Act 2004 (WA) s 138(3)(b)-(d).}

_{187 Submission 142 Director of Public Prosecutions (Victoria), 96–7 [371].}

_{188 Submission 143 Commonwealth Director of Public Prosecutions, 10 [52].}

_{189 Submission 145 Victoria Legal Aid, 3–4.}

_{190 Crown Prosecution Service, Disclosure Manual (2018) 41.}

_{191 Crown Prosecution Service, Disclosure Manual (2018) 35.}

_{192 Crown Prosecution Service, Disclosure Manual (2018) 41.}

_{193 Crown Prosecution Service, Disclosure Manual (2018) 41-2.}

_{194 Submission 144a Victoria Police, [26].}

_{195 Submission 144a Victoria Police, [26].}

_{196 Submission 144a Victoria Police, [34].}

_{197 Submission 144a Victoria Police, [27].}

_{198 Submission 144a Victoria Police, [62]–[63].}

_{199 Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 30.}

_{200 Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 30–1.}

_{201 Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 31.}

_{202 Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales (1 June 2007) 31.}

_{203 Submission 144a Victoria Police, [60].}

_{204 Submission 144a Victoria Police, [61].}

_{205 Submission 144a Victoria Police, [28].}

_{206 Submission 144a Victoria Police, [28].}

_{207 Consultation with Australian Federal Police, 10 July 2020, [50].}

_{208 Consultation with Australian Federal Police, 10 July 2020, [60].}

_{209 Consultation with Australian Federal Police, 10 July 2020, [51].}

_{210 Submission 143 Commonwealth Director of Public Prosecutions, 11 [54].}

_{211 Submission 143 Commonwealth Director of Public Prosecutions, 11 [55].}

_{212 Submission 143 Commonwealth Director of Public Prosecutions, 11 [56].}

_{213 Submission 143 Commonwealth Director of Public Prosecutions, 11 [58].}

_{214 Submission 143 Commonwealth Director of Public Prosecutions, 12 [59].}

_{215 Submission 143 Commonwealth Director of Public Prosecutions, 12 [60].}

_{216 Submission 143 Commonwealth Director of Public Prosecutions, 12 [61].}

_{217 Submission 147 Criminal Bar Association, 5.}

_{218 Submission 145 Victoria Legal Aid, 1.}

_{219 Submission 145 Victoria Legal Aid, 7.}

_{220 Submission 145 Victoria Legal Aid, 7.}

_{221 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 13–14 [44].}

_{222 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 13–14 [44].}

_{223 Submission 142 Director of Public Prosecutions (Victoria), 36 [133].}

_{224 Submission 142 Director of Public Prosecutions (Victoria), 36 [134].}

_{225 Submission 142 Director of Public Prosecutions (Victoria), 36 [134].}

_{226 Submission 142 Director of Public Prosecutions (Victoria), 36 [135].}

_{227 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45].}

_{228 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45]; Exhibit RC1938 Statement of Ms Abbey Hogan, 11 September 2020, [3]–[4], Annexure B.}

_{229 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45].}

_{230 Submission 142 Director of Public Prosecutions, 36 [136]. See also Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 23 [62].}

_{231 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 13 [34].}

_{232 Responsive submission Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 13 [34], 21–3 [58]–[61].}

_{233 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 22 [60]. The responsive submission noted that the rationales behind this policy were accepted in the recent decision of R v Westbrook [2020] VSC 290: Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 7 August 2020, 22–3 [61].}

_{234 Submission 142 Director of Public Prosecutions (Victoria), 17 [65].}

_{235 Submission 144a Victoria Police, [44].}

_{236 Submission 144a Victoria Police, [44].}

_{237 Submission 144a Victoria Police, [45].}

_{238 Submission 144a Victoria Police, [46].}

_{239 Victoria Police, Submission to the Victorian Law Reform Commission, Committals (4 October 2019) 6.}

_{240 Submission 142 Director of Public Prosecutions (Victoria), 18 [65].}

_{241 Submission 142 Director of Public Prosecutions (Victoria), 18 [65].}

_{242 Victoria Police, Submission to the Victorian Law Reform Commission, Committals (4 October 2019) 6.}

_{243 Victorian Aboriginal Legal Service, Submission to the Victorian Law Reform Commission, Committals (9 September 2019) 7.}

_{244 Submission 142 Director of Public Prosecutions (Victoria), 17–18 [65].}

_{245 Submission 147 Criminal Bar Association, 5.}

_{246 Submission 147 Criminal Bar Association, 5–6.}

_{247 Submission 142 Director of Public Prosecutions (Victoria), 18 [65].}

_{248 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 58 [267].}

_{249 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 58 [268], 59 [271], 60 [276]–[277].}

_{250 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 59–60 [267]–[275].}

_{251 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 58–60 [267]–[278]. Some ad hoc training days and sessions were run by the VGSO.}

_{252 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 58 [278].}

_{253 Victoria Police’s changes to Human Source Policy dated 15 April 2020 came into effect on 4 May 2020.}

_{254 Exhibit RC1531b Victoria Police Manual—Human Sources, 15 April 2020, 27–8 [7.6].}

_{255 Submission 142 Director of Public Prosecutions (Victoria), 36 [132].}

_{256 Law Institute of Victoria, Submission to the Victorian Law Reform Commission, Committals (2 October 2019) 13 [4.3].}

_{257 Submission 147 Criminal Bar Association, 5.}

_{258 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 63.}

_{259 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 63.}

_{260 Independent Broad-based Anti-corruption Commission, Operation Gloucester (Special Report, July 2020), 80 (Recommendations 1 and 2).}

_{261 Exhibit RC1536a Victoria Police and Prosecution Specialist Branch Disclosure Action Plan, 19 March 2020.}

_{262 Submission 144a Victoria Police, [13].}

_{263 Victorian Government Solicitor’s Office, Victoria Police Disclosure Handbook (undated).}

_{264 Her Majesty’s Crown Prosecution Service Inspectorate (UK), Disclosure of Unused Material in the Crown Court (Report, January 2020) 7 [1.10].}

_{265 Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015) [3.1].}

_{266 Crown Prosecution Service (UK), Disclosure Manual (2018) 11.}

_{267 Crown Prosecution Service (UK), Disclosure Manual (2018) 11.}

_{268 Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015) [6.15].}

_{269 Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015) [6.16].}

_{270 Ministry of Justice (UK), Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice (March 2015) [6.17].}

_{271 Submission 143 Commonwealth Director of Public Prosecutions, 11 [53].}

_{272 Submission 144a Victoria Police, [36].}

_{273 Submission 144a Victoria Police, [37].}

_{274 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 87 [372].}

_{275 Submission 142 Director of Public Prosecutions (Victoria), 54 [209].}

_{276 Submission 142 Director of Public Prosecutions (Victoria), 54 [209].}

_{277 Submission 142 Director of Public Prosecutions (Victoria), 54 [210].}

_{278 Submission 142 Director of Public Prosecutions (Victoria), 54 [213].}

_{279 Submission 142 Director of Public Prosecutions (Victoria), 55 [215].}

_{280 Submission 142 Director of Public Prosecutions (Victoria), 55 [217].}

_{281 Submission 142 Director of Public Prosecutions (Victoria), 59 [235].}

_{282 Submission 142 Director of Public Prosecutions (Victoria), 60 [246].}

_{283 Submission 142 Director of Public Prosecutions (Victoria), 61 [248].}

_{284 Submission 145 Victoria Legal Aid, [5].}

_{285 Submission 142 Director of Public Prosecutions (Victoria), 20 [72].}

_{286 Victorian Law Reform Commission, Committals (Report, March 2020) [9.58].}

_{287 Transcript of Deputy Commissioner Wendy Steendam, 7 May 2020, 14924.}

_{288 Responsive submission, Victoria Police, 20 September 2020, 19 [1.4(a)].}

_{289 Responsive submission, Victoria Police, 20 September 2020, 20 [1.5]–[1.6].}

_{290 Exhibit RC1536a Victoria Police and Prosecution Specialist Branch Disclosure Action Plan, 19 March 2020, 14.}

_{291 Exhibit RC1536a Victoria Police and Prosecution Specialist Branch Disclosure Action Plan, 19 March 2020, 14.}

_{292 Exhibit RC1536a Victoria Police and Prosecution Specialist Branch Disclosure Action Plan, 19 March 2020, 14.}

_{293 House of Commons Justice Committee, Disclosure of Evidence in Criminal Cases (Report, 20 July 2018) 23 [71]; Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018), 22.}

_{294 House of Commons Justice Committee, Disclosure of Evidence in Criminal Cases (Report, 20 July 2018) 49 [18].}

_{295 Richard Horwell, Mouncher Investigation Report (Report, July 2017) 81–2 [14.6].}

_{296 National Police Chiefs’ Council, College of Policing and Crown Prosecution Service, National Disclosure Improvement Plan (January 2018).}

_{297 National Police Chiefs’ Council, College of Policing and Crown Prosecution Service, National Disclosure Improvement Plan, Progress Update (October 2018) 1.}

_{298 National Police Chiefs’ Council and Crown Prosecution Service (UK), National Disclosure Standards (May 2018) 3[2.1.3].}

_{299 National Police Chiefs’ Council, College of Policing and Crown Prosecution Service, National Disclosure Improvement Plan, Progress Update (October 2018) 1.}

_{300 Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018) 46.}

_{301 Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018) 45.}

_{302 Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018) 3.}

_{303 Submission 144a Victoria Police, [66].}

_{304 Submission 144a Victoria Police, [66].}

_{305 Submission 145 Victoria Legal Aid, 6.}

_{306 Submission 145 Victoria Legal Aid, 6.}

_{307 Submission 144a Victoria Police, [58].}

_{308 Submission 144a Victoria Police, [72].}

_{309 Submission 144a Victoria Police, [73].}

_{310 Submission 147 Criminal Bar Association, 3.}

_{311 Submission 142 Director of Public Prosecutions (Victoria), 19 [68].}

_{312 Submission 142 Director of Public Prosecutions (Victoria), 19 [69].}

_{313 Submission 145 Victoria Legal Aid, 4.}

_{314 Submission 145 Victoria Legal Aid, 5.}

_{315 See, eg, Attorney-General’s Office (UK), Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (Report, November 2018) ch 6.}

_{316 Submission 144a Victoria Police, [47].}

_{317 Submission 144a Victoria Police, [48].}

_{318 Submission 144a Victoria Police, [31].}

_{319 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 66 [293].}

_{320 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 66 [294]–[296].}

_{321 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 67 [297]–[298].}

_{322 Exhibit RC1529b Statement of Deputy Commissioner Wendy Steendam, 16 April 2020, 67 [301].}

_{323 Responsive submission, Victoria Police, 20 September 2020, 20 [1.4(b)].}

_{324 The Comrie Review recommended that Victoria Police human source policy, associated instructions and practice guidelines be revised to clearly reflect that before registering any human source who may have a professional duty, appropriate legal advice must be obtained: Neil Comrie, Victoria Police Human Source 3838: A Case Review (Report, 30 July 2012) 20 (Recommendation 3(c)). The Comrie Review also recommended that when there are complex legal and ethical considerations, such as a human source having professional duties, then consultation must occur with the Victoria Police Director Legal Services before completing the risk assessment process: (Recommendation 5(b)). The same recommendations were made in the Kellam Report: Murray Kellam, Report Concerning Victoria Police Handling of Human Source Code Name 3838 (Report, 6 February 2015) (Recommendations 1(c) and 3(b)).}

_{325 Victorian Law Reform Commission, Committals (Report, March 2020) 106 (Recommendation 33).}

_{326 See Victorian Law Reform Commission, Committals (Report, March 2020) 68–8 (Recommendations 11 and 12).}

_{327 Responsive submission, Director of Public Prosecutions and the Office of Public Prosecutions (Victoria), 11 September 2020, 14 [45]; Responsive submission, Director of Public Prosecutions (Victoria), 15 September 2020, 6 [19].}

_{328 Responsive submission, Director of Public Prosecutions (Victoria), 15 September 2020, 3–6 [9]–[14].}

_{329 See Submission 144a Victoria Police, [44]–[46]; Submission 147 Criminal Bar Association, 5; Submission 142 Director of Public Prosecutions (Victoria), 17–18 [65].}