Evidence Disclosure


Get informed about evidence disclosure rules and exceptions

It is a fundamental part of a fair trial that an accused person has the opportunity to know the particulars of the charge they face as well as the potential witnesses and evidence. Evidence disclosure is an essential part of the criminal justice system. Failure to disclose critical evidence can lead to miscarriages of justice, resulting in convictions being quashed.

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Evidence Disclosure

Anderson Legal assists people facing criminal charges to get the evidence relevant to the allegation against them.

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Evidence Disclosure

Anderson Legal assists people facing criminal charges to get the evidence relevant to the allegation against them.

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View our growing library of articles and webinars, which are accessible no matter the time of day or night.

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Anderson Legal provides a free, no-obligation consultation to understand whether this firm can assist you.

Evidence Disclosure in Queensland

Evidence disclosure rules create obligations for defendants as well as the prosecution.
This section deals with the following:
Criminal Defence Image

Evidence Disclosure in Queensland

Evidence disclosure rules create obligations for defendants as well as the prosecution.
This section deals with the following:
Criminal Defence Image

Principles of evidence disclosure

For anybody facing a criminal allegation, it is critical to know the particulars of the charge, as well as the potential witnesses and other evidence that may support the police case. For that reason, proper and fulsome disclosure of the police investigation to a defendant forms an essential part of the criminal justice system. Failure to disclose critical evidence can lead to miscarriages of justice, resulting in convictions being quashed.

Fundamental principles

Disclosure to a defendant of information and evidence gathered by police during an investigation is crucial to a fair trial. In R v Ernst [2020] QCA 150, the Court of Appeal stated in paragraph [35]:

The administration of criminal justice depends heavily upon the work of police. In this sphere, the investigative work of police culminates in the evidence led at a criminal trial because it is the function of police, not the Director of Public Prosecutions, to investigate an alleged offence and to collect and assemble relevant evidence. Judges and juries depend utterly upon the integrity of that process. To a great degree, that integrity depends upon the assumption that police investigators have been objective and have attempted to uncover all relevant evidence that can reasonably be assembled, whether it is inculpatory or exculpatory.

In the High Court case of Edwards v The Queen [2021] HCA 28, Justices Edelman and Steward summarised the fundamental principles that apply to evidence disclosure obligations on the prosecution in paragraph [48]:

The common law required, and still requires, disclosure of all material that, on a sensible appraisal by the prosecution: (i) is relevant or possibly relevant to an issue in the case; (ii) raises or possibly raises a new issue that was not apparent from the prosecution case; and (iii) holds out a real (as opposed to fanciful) prospect of providing a lead in relation to evidence concerning (i) or (ii). Further, since the disclosure can occur prior to any crystallisation of the defence case, or any refinement of the prosecution case, expressions in relation to common law disclosure rules, such as “an issue in the case” or “all relevant evidence of help to the accused”, must be given a broad interpretation.

(References omitted)

The failure by the prosecution to properly disclose evidence ahead of a criminal trial can see any convictions quashed.

Given the importance of evidence disclosure to a fair trial, it is common for criminal defence lawyers to seek further disclosure from the prosecution, as well as to bring legal arguments to seek rulings and orders from the court with respect to the non-disclosure of certain information.

The common law principles that underpin evidence disclosure obligations are complemented and refined in Queensland by a number of key laws and guidelines. They include:

Criminal Code 1899 (Qld)

The Criminal Code 1899 (Qld) sets out clear disclosure obligations on police and prosecutors, which applies to numerous charges in Queensland. Section 590AB of the Criminal Code states that disclosure is mandatory with respect to:

  • all evidence the prosecution proposes to rely on in the proceeding; and,
  • all things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to the public interest, that would tend to help the case for our client.

While disclosure of the above must be made in all cases, there are numerous other forms of evidence that must be disclosed on request from the defence. Criminal defence lawyers have an important role in evaluating whether there appear to be information gaps in a police investigation, or whether requests for specific disclosure ought to be made. For an accused person, there are possible risks as well as benefits in requesting the disclosure of certain information, which is why it can be crucial for anybody facing a criminal charge to obtain legal advice at an early time.

Police Operations and Procedures Manual

in Queensland, paragraph 3.8.1 of the Operations Procedures Manual of the Queensland Police Service states:

When preparing a brief of evidence, arresting officers are to ensure all admissible and relevant information, including information which might be considered advantageous to the defence case, is compiled and provided to the relevant prosecution corps to allow for full disclosure.

Director’s Guidelines (Qld)

Guideline 29 of the Director’s Guidelines (Qld) deals with disclosure under sections 590AB to 590AX Criminal Code 1899 (Qld) and gives guidance to police and prosecutors in Queensland about how to comply with the evidence disclosure obligations of the prosecution. It makes clear the “Crown has a duty to make full and early disclosure of the prosecution case to the defence”. The guidelines deal with a range of evidence disclosure issues, including:

  • Criminal histories
  • Immunity
  • Exculpatory information
  • Inconsistent statements
  • Particulars
  • Sensitive evidence
  • Original evidence
  • Public interest exceptions
  • Committal hearings
  • Legal professional advice
  • Witness conferences
  • Disclosure forms
  • Ongoing obligation of disclosure
  • Confidentiality

Commonwealth Prosecution Policy

The prosecution of Commonwealth offences by the Commonwealth Director of Public Prosecutions (CDPP) has a published Prosecution Policy that sets out a guideline with respect to prosecution disclosure. It makes clear that the ‘Statement of Disclosure’ sets out the expectations as to how the prosecution should fulfil its duty of disclosure.

Exceptions to prosecution obligations

Appeals and reviews are proceedings that can be complex and technical in nature, often requiring a specialist focus on appellate practice. Unlike the starting point for a criminal proceeding when a person accused of an offence is presumed innocent, criminal appeals require the appellant to prove their case. Having the right legal team to provide advice and representation for an appeal can be all the difference between a miscarriage of justice being overturned or not.

Sensitive evidence exceptions

Section 590AO Criminal Code 1899 (Qld) limits evidence disclosure obligations on the prosecution with respect to “sensitive evidence”.

Sensitive evidence is defined in section 590AF Criminal Code 1899 (Qld) as follows:

590AF Meaning of sensitive evidence

(1) Sensitive evidence means anything containing or displaying an image of a person (the imaged person)—

(a) that, disregarding the fact the thing was brought into existence, or is in the possession of the prosecution, for the purpose of providing evidence of an offence, is obscene or indecent; or

(b) the disclosure of which to another person, without the imaged person’s consent, would interfere with the imaged person’s privacy.

(2) Child exploitation material under chapter 22, or material alleged to be child exploitation material, is sensitive evidence.

As a result of section 590AO, if something is reasonably considered sensitive evidence, then the prosecution is obliged to give notice to the defence of what the sensitive evidence is as well as outline how the accused person or criminal defence lawyers may view it if necessary. In the event there is a dispute between the prosecution and defence about access to sensitive evidence, a court may give any directions considered appropriate.

Public interest exceptions

Section 590AQ Criminal Code 1899 (Qld) limits the disclosure obligations with respect to things considered contrary to the public interest. The law sets out a number of bases upon which such a claim may be made:

(a) there are reasonable grounds for considering disclosure of the thing would—

(i) prejudice the security, defence or international relations of Australia; or

(ii) damage relations between the Commonwealth and a State or between 2 or more States; or

(iii) facilitate the commission of another offence; or

(iv) prejudice the prevention, investigation or prosecution of an offence; or

(v) prejudice the usefulness of surveillance or other detection methods; or

(vi) disclose, or enable a person to find out, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or

(vii) cause unlawful or dishonest interference with potential witnesses; or

(viii) prejudice the proper functioning of the government of the Commonwealth or a State; or

(b) disclosure of the thing to the accused person is prohibited by law.

Arguments based on public interest immunity exceptions to disclosure are often complex. While a court cannot order the disclosure of something that is prohibited by law, it can order the prosecution to disclose the evidence if it is satisfied, on the balance of probabilities, that disclosing it is not contrary to the public interest.

Disclosure obligations on defendants

While an accused person generally has the right to silence when dealing with police or during a criminal trial, Queensland law does require defendants to disclose evidence in certain instances.

Police powers to compel information

In Queensland, there are a number of laws that give police officers the power to require answers. This includes:

  • Under section 41 of the Police Powers and Responsibilities Act 2000 (Qld), a police officer may require a person to provide their name and address to police in prescribed circumstances, such as if they are reasonably suspected of having committed an offence.
  • Under section 55 of the Police Powers and Responsibilities Act 2000 (Qld), a police officer may require information that will help identify or help identify the person in control of a vehicle during a suspected contravention of road laws in Queensland.
  • Under section 56 of the Police Powers and Responsibilities Act 2000 (Qld), a police officer may make any reasonably necessary inquiry, investigation, inspection, examination or test in relation to a relevant traffic incident (ie, where death or injury is caused to a person, or damage is caused to property), which may including requiring a person to answer any relevant questions or provide information relevant to the incident.
  • Under section 156 of the Police Powers and Responsibilities Act 2000 (Qld), a police officer may be permitted under a search warrant to require a specified person to give access information (eg, a password or code) to enable the officer to gain access to the device.

Alibi notice obligations

Section 590A Criminal Code 1899 (Qld) creates an obligation for an accused person facing trial on indictment to give to the prosecution, within 14 days after the date of the committal for trial, notice of evidence in support of an alibi. If a notice of alibi is not given within the prescribed period, then the accused person cannot rely on it at their trial without the leave of the court.

Evidence in support of an alibi is defined as follows in the Criminal Code 1899 (Qld):

evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

The law sets out the particulars required to be given to the prosecution by the accused person. The disclosure of an alibi to the prosecution allows it to have the alibi investigated. In some cases, it may result in the prosecution discontinuing the charge if the alibi appears reliable. In other cases, the prosecution may tender evidence to disprove an alibi, which may occur before or after evidence is given in support of the alibi.

Expert evidence disclosure obligations

Section 590B requires an accused person to give notice of expert evidence intended to be adduced at their trial. The law states:

590B Advance notice of expert evidence

(1) If an accused person intends to adduce expert evidence in relation to an issue in the person’s trial, the person must—

(a) as soon as practicable—give the other parties to the trial written notice of the name of the expert, and any finding or opinion he or she proposes to adduce; and

(b) as soon as practicable before the trial date—give the other parties to the proceeding a copy of the expert report on which the finding or opinion is based.

(2) The directions judge under section 590AA or trial judge may fix times for compliance with subsection (1).

Representations by people who are unavailable

Section 93B of the Evidence Act 1977 (Qld) allows, in certain criminal trials, evidence of about what another person said if that person is unavailable to give evidence about it because they are dead or mentally or physically incapable of giving the evidence. Evidence of this kind is common in homicide trials, in which statements and representations by the deceased person may be relevant. For instance, in cases where the deceased knew the accused person, statements or representations from the deceased about prior acts of violence or intimidation by the accused person may be relevant. There are strict rules around when such evidence may be admissible in a criminal trial.

If an accused person wishes to rely on evidence falling into the category of section 93B of the Evidence Act 1977 (Qld), then they are required to give notice of it to the prosecution under section 590C of the Criminal Code 1899 (Qld).

Compelled evidence

Coercive hearings are held by law enforcement agencies in Australia whereby people are compelled to attend and answer questions and produce records. A coercive hearing differs from standard police interviews because unlike a police interview, there is no right to silence nor privilege against self-incrimination. As such, coercive hearings are designed to elicit information and answers that may otherwise remain secret. There are often obligations placed on individuals called to coercive hearings to keep the fact of their attendance and the nature of their evidence confidential (communication with a lawyer to obtain legal advice about a coercive hearing is generally an exception). Failure to comply with laws applying to coercive hearing often carry criminal penalties, which generally involve terms of imprisonment.

There are a number of law enforcement bodies with coercive powers, including:

There are other bodies, such as Royal Commissions and the Coroners Court, which also have the power to compel testimony in certain circumstances. If you are facing a coercive hearing or have been served a notice to produce documents or records, contact Anderson Legal for confidential advice and guidance.

Although based in Brisbane, Anderson Legal is frequently engaged to assist people dealing with criminal allegations across Queensland. If you need advice and representation for a criminal law issue, Anderson Legal provides comprehensive criminal defence services to its clients. This includes:

  • providing advice relating to allegations made or documents served on our clients;
  • identifying the strengths and weaknesses of the case alleged against our clients;
  • advising clients on options relating to obtaining evidence, including expert evidence;
  • communicating on behalf of its clients with police, courts, and others;
  • resolving, where appropriate, criminal charges through negotiation;
  • applying to the courts for orders and rulings, including to exclude police evidence;
  • representing clients in trials and sentences before all courts; and,
  • filing and litigating appeals against wrongful convictions and unjust sentences.

This firm places an emphasis on providing clear guidance so that our clients are placed in a real position to make informed decisions about their options and their preferred path forward. Anderson Legal provides clear, transparent disclosure of its legal costs at every stage.

  • Andrew Anderson, Legal Director, is an experienced lawyer who has been independently described by the Courier Mail as “one of the best legal minds” and a “leading corporate and white-collar crime lawyer” (16 December 2021).
  • Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions, and multiple other courts dealing with trials and other hearings, Andrew Anderson has a demonstrated record of success in complex and difficult cases.
  • Prior to operating a law firm, Andrew Anderson worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from straightforward cases right through to complex homicide trials and appeals.
  • Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Limitations on general information

Each legal issue is unique. The information on this page and website cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature if you want to learn more about evidence disclosure, particularly as it relates to anybody dealing with a criminal law issue in Queensland. Anybody seeking to deal with evidence disclosure issues ought to obtain expert legal advice and guidance as soon as possible.

No content accessible on the website is created to provide specific legal answers or advice. It is designed to provide general information about legal matters and related concepts. It should not be used as, or in substitute of, your own legal advice or other advice as appropriate.

To the extent allowed by law, no warranty, condition, or guarantee is provided in relation to the accuracy or reliability of any information contained on this site. Content may be changed from time to time without notice.

If you face an investigation or charge and need advice and representation, contact Anderson Legal. This firm provides expert advice and representation for people needing assistance to defend themselves against unjust accusations.

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