Disclosure Manual: Chapter 10 - The Disclosure Officer's Report

The contents of the MG6E

The disclosure officer should use the MG6E to bring to the prosecutor's attention any material that could reasonably be considered capable of undermining the prosecution case against the accused or of assisting the case for the accused. This also applies to sensitive material.

The disclosure officer should also explain on form MG6E (by referring to the relevant item's number on the schedule) why he or she has come to that view. The MG6E schedule should be completed in accordance with the National Standards of Disclosure.

Any material that supports or is consistent with a defence put forward in interview or before charge or which is apparent from the prosecution papers, should be included. It also includes anything that points away from the accused, such as information about a possible alibi. Items of material viewed in isolation may not satisfy the test; however, several items together can have that effect. In applying the disclosure test, disclosure officers and prosecutors should not be judgmental about the merits of a defence and any doubt should be resolved in favour of disclosure.

Such material should be brought to the prosecutor's attention regardless of any views about the accuracy or truth of the information, although where appropriate the disclosure officer may express a reasoned opinion on whether in fact the prosecutor should disclose it. A wide interpretation should be given when identifying material that might satisfy the disclosure test and may well save resources later. The disclosure officer should consult with the prosecutor where necessary to help identify material that may require disclosure, and must specifically draw material to the attention of the prosecutor where the disclosure officer has any doubt as to whether it might satisfy the disclosure test.

Dealing with sensitive material that investigators believe may satisfy the disclosure test

To assist the prosecutor to decide how to deal with sensitive material which the investigator believes may meet the disclosure test, the investigator should provide detailed information dealing with the following issues:

• the reasons why the material is said to be sensitive;
• the degree of sensitivity said to attach to the material, in other words, why it is considered that disclosure will create a real risk of serious prejudice to an important public interest;
• the consequences of revealing to the defence
  1. the material itself
  2. the category of the material
  3. the fact that an application may be made
• the apparent significance of the material to the issues in the trial;
• the involvement of any third parties in bringing the material to the attention of the police;
• where the material is likely to be the subject of an order for disclosure, what the police view is regarding continuance of the prosecution, and;
• whether it is possible to disclose the material or information, whether redacted or in another form, without compromising its sensitivity.

To assist in determining the degree of sensitivity as above, consideration should be given to the fact that the public interest may be prejudiced either directly or indirectly through incremental or cumulative harm. Examples of direct harm are:

• exposure of secret information to enemies of the state;
• death of or injury to an intelligence source through reprisals;
• revelation of a surveillance post and consequent damage to property or harm to the occupier; and
• exposure of a secret investigative technique.

Examples of incremental or cumulative harm include:

• exposure of an intelligence source that does not lead to a risk of death or injury, or any reprisal, to that intelligence source, but which discourages others from giving information in the future because they lose faith in the system;
• revelation of a surveillance post leading to a reluctance amongst others to allow their premises to be used;
• exposure of an investigative technique that makes the criminal community more aware and therefore better able to avoid detection;
• exposure of material given in confidence, or for intelligence purposes, that may make the source of the material, or others, reluctant to cooperate in the future; and
• an active denial that a source was used in the instant case, leading to the inability to deny it in future cases where one was used, thereby impliedly exposing the use of a source. The Crown should neither confirm nor deny the use of a source.

Revelation of the material to the prosecutor

Revealing material to the prosecutor does not mean automatic disclosure to the defence. The prosecutor will only disclose material to the defence if it satisfies the disclosure test. If the material is sensitive, and satisfies the disclosure test, the prosecutor will either disclose the material after consultation with police, apply to the court for a ruling as to whether the public interest requires disclosure or withdraw the prosecution.

The disclosure officer should:

• promptly send the completed schedules to the prosecutor;
• identify on form MG6E any material which might satisfy the disclosure test explaining the reasons for coming to that view;
• copy that material to the prosecutor to include:
  • material which in the opinion of the disclosure officer satisfies the disclosure test (para 7.3 & 7.4 of the Code),
  • material which falls into the following categories (para 7.4 of the Code):
    • information provided by an accused person which indicates an explanation for the offence with which they have been charged;
    • any material casting doubt on the reliability of a confession;
    • any material casting doubt on the reliability of a prosecution witness.
  • any material which falls within the categories for the rebuttable presumption (para 7.5 of the Code), and;
  • allow the prosecutor to inspect material.

In large or complicated cases or in any case where particular difficulties are anticipated, an early discussion between the disclosure officer and/or OIC, and the prosecutor may be extremely beneficial. The disclosure officer or the officer in charge of the investigation should not hesitate to contact the prosecutor for early advice.

Certifications by the disclosure officer

The OIC must ensure that all relevant material that has been retained is either revealed to the disclosure officer, or in exceptional circumstances, revealed on a highly sensitive schedule directly to the prosecutor. If the disclosure officer is uncertain whether all the relevant retained material has been revealed, enquiries should be made of the OIC to resolve the matter.

The disclosure officer must provide different certifications in the course of the disclosure process, to cover:

• revelation of all relevant retained material;
• confirmation that no material falls within the categories to which the rebuttable presumption applies (if appropriate);
• whether material satisfies the disclosure test; and
• whether material satisfies the disclosure test following a defence statement as part of continuing duty.

The case against each accused must be considered and certified separately.

The purpose of certification is to provide an assurance to the prosecutor on behalf of the investigating team that all relevant material has been identified, considered, and revealed to the prosecutor. Where the disclosure officer (or deputy disclosure officer) believes there is no material that satisfies the disclosure test, the officer should endorse the MG6E in the following terms: "I have reviewed all the relevant material which has been retained and made available to me and there is nothing to the best of my knowledge and belief that might reasonably be considered capable of undermining the prosecution case against the accused or assisting the case for the accused." Local arrangements apply for informing the prosecutor where no material falls within the categories to which the rebuttable presumption applies.

Subsequent actions

Disclosure officers must deal expeditiously with requests by the prosecutor for further information about material which may lead to it being disclosed.

A prosecutor may ask to inspect material or request a copy of material where one has not been sent. The disclosure officer is responsible for arranging this. Material should be uploaded to the case management system on request unless it is too sensitive or too large or can only be inspected. This applies to disclosure throughout the life of the case.

After considering the schedule(s), the prosecutor will endorse them with the decisions as to whether each item described will be disclosed to the defence. A copy of the endorsed schedule(s) should be sent to the disclosure officer.

Amending the schedules

On occasions it may be necessary to amend the schedules. When the schedules are first submitted, the disclosure officer may not know exactly what material the prosecutor intends to use as part of the prosecution case. The prosecutor may create unused material by extracting statements or documents from the evidence bundle and may disclose material that satisfies the disclosure test directly to the defence without waiting for the disclosure officer to amend the schedule. In these circumstances, the prosecutor must advise the officer accordingly so that the schedule can be amended correctly

The CPIA Code of Practice places the responsibility for creating the schedules and keeping them accurate and up to date on the disclosure officer. Consequently, the prosecutor should not amend schedules.

The prosecutor is required to advise the disclosure officer of:

• items described on the MG6C that should properly be on the MG6D and vice versa;
• any apparent omissions or amendments required;
• insufficient or unclear descriptions of items;
• a failure to provide schedules at all.

In accordance with para 9.10 of DG6, failure to supply the correct material and information for a charging decision may result in the prosecutor being unable to apply the Code and refusing to charge immediately, or at all.

In circumstances where the schedules are wholly inadequate, the prosecutor will return them with a target date for resubmission. This is important that prosecutors do not deal with disclosure unless they are satisfied the schedules are adequate; to do so, risks undermining confidence in the prosecution. The disclosure officer must forthwith take all necessary remedial action and provide properly completed schedules to the prosecutor. Failure to do so may result in the matter being raised with a senior officer.

Continuing duty to disclose

After the prosecutor has purported to comply with s3 CPIA, the prosecutor has a continuing duty in relation to disclosure pursuant to section s7A CPIA. This duty continues whether or not the accused has served a defence statement in accordance with s6A (1) of the CPIA. The duties of the investigator also continue.

Any new material coming to light after initial disclosure has been completed should be treated in the same way as earlier material. The new material should be described on a further MG6C, MG6D or a continuation sheet. To avoid confusion, numbering of items submitted at a later stage must be consecutive to those on the previously submitted schedules.

A further MG6E should also be submitted irrespective of whether or not any of the new material is considered by the disclosure officer to satisfy the disclosure test.