Legal columnist HUGH SELBY explains why disclosure of information by prosecutors is vital for a just criminal justice system.

Around Australia the police and prosecutors are required to disclose to the defence before trial all relevant material that they have about a case.

This article explains the reasons for this rule and the consequences of its breach.

Examples are drawn mostly from the saga that is the Tasmanian case of Sue Neill-Fraser. Prepare to be appalled.

Disclosable material includes not only the material that supports the prosecution, but also material that is useful to the defence.

This requirement reflects our fundamental belief that we follow a fair process to ensure a fair trial.

Prosecutors must be exemplars of conduct that gives the community confidence that a finding of either “guilt beyond reasonable doubt” or “not guilty” properly reflects not just some of the available evidence but all of it. 

Although the practical task is to provide the defence with all that material, the prosecution’s duty of such disclosure is to the court that will hear the case. 

This is because it is the obligation of all lawyers to uphold the dignity of, and community confidence in our courts. The effect of non-disclosure is to cause injustice, including wrongful convictions, and those results engender a lack of confidence in our courts.

Example of breach: Around Australia Day 2009 when Sue Neill-Fraser’s partner, Bob Chappell, disappeared from their yacht on the Derwent River, Hobart, the police were investigating recent break-ins and thefts from moored boats in that area. A fire-extinguisher was missing from the yacht, which had been scuttled. The prosecution claimed at trial that Ms Neill-Fraser used it to weigh down her partner’s body.

The prosecution failed to adequately disclose to the defence those break ins, that the police had suspects, that the police failed to properly investigate those suspects, that one suspect had ready access to a boat with which to reach moored yachts, that a suspect had the experience to scuttle a yacht, and that they searched the room of a suspect looking for that fire-extinguisher. 

Had that information been disclosed the defence could, for example, have pointed to intruders, not the accused, being on the yacht, attempting to sink it, the disappearance of the fire extinguisher being explicable as theft, and the shortcomings in the police inquiries as inexcusable: Neill-Fraser was charged because it suited police ineptness.

Why tactics, but not fairness, support non-disclosure

The obligation to disclose continues both during and after the trial. For example, the prosecution may be given information by the police during the trial that helps the prosecution. To be allowed to use that new material they must get the permission of the court.

That permission will not be given if the court forms the view that the late disclosure was an unfair ploy to gain a trial advantage.

This approach to “fair dealing” emerged only late last century. Earlier prosecutors, like defence lawyers in compensation cases, loved to give unpleasant surprises. A few examples will show why it detracts from either or both just outcomes and court efficiency:

The first example is a civil case seeking money compensation for a work or car accident. The applicant tells their lawyer what caused the accident, what treatment they have had, and what incapacity they still suffer. Based on that information the lawyer commences litigation and claims an amount of compensation that is based on comparable previous cases.

Traditionally the applicant gave evidence at the hearing about their pain and diminished ability to perform daily tasks. When cross-examined by the insurer’s lawyer they confirmed that pain and the physical limitations. The cross examiner then played a recent video made by an investigator showing the “disabled” applicant happily playing football or basketball or cleaning the gutters on the upper floor of their home. The applicant (and their lawyer) is taken by surprise.

What may have looked like a strong case was now, if not hopeless, weak.

The common result was that the case then settled with the applicant getting little, and possibly nothing. One of the factors leading to that outcome is that the applicant’s lawyers now know that the applicant has given them false instructions. The effect of being caught out with a brazen lie is that everything said by the liar client is now suspect: what else was not true? Better to settle, and at least recover enough for lawyer fees, than go on to disaster.

A key difference between civil and criminal cases is that good criminal defence lawyers, unlike civil lawyers for compensation applicants, do not get their client to give them all the facts.

Keep in mind that the civil applicant has to prove their case and they go first. Hence their lawyer needs the full story. But in a criminal case the prosecution goes first, which means that the defence counsel cross-examines the prosecution witnesses.

A lawyer must never knowingly mislead a court by making an argument they know to be untrue, or asking a question they know to have no proper basis.

Therefore, the best criminal defence lawyers are very selective about what they allow their clients to tell them before trial. This ensures that when cross-examining prosecution witnesses they are able to explore possibilities that will raise a reasonable doubt about the prosecution case. If their client told them the full story some of those possibilities might disappear.

Knowing and weighing up those possibilities depends upon the defence being fully informed as to the prosecution case and having been given any prosecution material that helps the defence. 

When the prosecution was permitted to “surprise” the defence by calling a “new” witness the effect upon the defence was to upend their case strategy. While experienced and talented defence counsel might be able to quickly adjust their approach to a case and go with the new flow, that adaptability is beyond most lawyers.

Being “blindsided” or “sandbagged” by a prosecutor is an awful experience for both the inexperienced defence lawyer and their accused client. I know, because it happened to me twice. On the first occasion, an appeal case, I “froze” in disbelief because on my instructions (this was an appeal so I knew my client’s factual case from his evidence at the earlier trial) this witness could not exist, let alone give evidence. 

Fortunately, the judge, long experienced in criminal cases, took pity and guided me out of that frozen mental state. That done I was able to effectively cross-examine. But if the judge had stayed silent then we would have lost the appeal. Looking back over decades I think it likely that the “new” witness was known for their availability to help police with perjured evidence in exchange for a favour or two, and that the judge recognised the signs.

The second instance was a jury trial. My client was accused of fraud. The case looked good until the prosecution called as a surprise witness a long time colleague of the accused who spilled the beans, all of them.

No cross-examination of that witness would have been effective. However, if we had known of that evidence before the trial then there would have been a plea of guilty and much time and public money would have been saved. 

Indefensible examples of non-disclosure

If the new information during the trial assists the defence then it must be shared with them. There may have to be an adjournment to consider how that information affects the trial. Witnesses may have to be recalled. The trial may have to be aborted.

In the 2010 Neill-Fraser murder trial the key witness to place her and the yacht dinghy at the yacht at the right time was a witness who was exercising on shore. He phoned police to describe what he saw and the officer took proper notes.

It is clear from those notes that the witness was observing another yacht and another dinghy. He had nothing to offer.

However, he was induced to sign a statement prepared by a second police officer that, falsely, had him identify the Neill-Fraser dinghy at the yacht. That statement was disclosed. The earlier notes were not.

At trial he agreed that he had signed the statement. The defence had no knowledge of his prior phone chat with the first officer. They had no information with which to counter his “identification”. Please note that there is no suggestion that this witness ever intended to mislead. What was in the mind of the second police officer is unknown. 

The first officer advised a member of the prosecution team in court of the original notes.

That should have resulted in the prosecutor being told of this “new” evidence, that new evidence being immediately shared with the defence lawyers, and the judge then being asked to decide whether the trial should proceed (with the witness being recalled) or be aborted.

None of that happened. 

An accused may be convicted and then the police and prosecution obtain new material unknown to the accused or their lawyers which clears the convicted accused or casts significant doubt upon the safety of the conviction. It is the duty of the prosecution service to facilitate an appeal, or a fresh appeal (if there has been an earlier appeal by the convicted person that was lost).

For several years before Neill-Fraser’s unsuccessful second appeal in 2021, the forensic services of the Tasmania Police were making inquiries, at the request of the prosecutor’s office, about the implications of the DNA of a young woman found on the deck of the scuttled yacht in late January, 2009.

Issues of interest included: first, whether the DNA was left by her, or left by way of a transfer from her to another person and then to the deck; second, whether it was left on the day of the killing or some days later; and, third, how long could the DNA survive on that metal deck in those weather conditions.

Forensic services made inquiries of another Australian forensic laboratory. They also made inquiries overseas. They received replies a long time before the 2021 appeal hearing. We know all this because of Freedom of Information requests and titbits of released information over a couple of years. 

Neither the inquiries nor the responses were disclosed to Neill-Fraser’s lawyers then or at any later time. The appeal court, to whom the duty of disclosure is owed, was told nothing.

Thanks to other research, we know why it was not disclosed. Forensic science has evolved since the 2010 trial when the prosecution told the jury that the DNA was left by transfer. At the 2021 appeal they claimed that if not Australia Day it was left a few days later when the yacht was at a marine yard. 

The better scientific explanation in 2026 is that it was left by the young woman on Australia Day.

This is a lay-down case of a serious breach of the duty of disclosure. It is a breach that is exacerbated by the failure since the 2021 appeal to not only come clean about the science developments, but to go to great lengths to resist any and all freedom of information requests. 

There is another intriguing aspect to this saga of misadventure that raises the issue of how active does a prosecution have to be in ensuring disclosure.

Around the same period when forensic services were making inquiries about those DNA issues, one of its staff prepared two reports on the DNA issue. The latter report (which updated the first) was clear that the DNA could have been left on Australia Day. It drew that conclusion without reference to several papers published in respected journals that supported that result. 

The report was included in the appeal papers, that is, it was disclosed to Neill-Fraser’s legal team. The prosecution, as respondent to the appeal, indicated in court that they would call the author. However, they then failed to do so. Neill-Fraser’s legal team, for reasons unknown, did not demand that they do so.

The result was that the report was not disclosed to the court. This is a separate breach of the prosecution duty.

Consequences of failure to disclose

The consequences of a failure to disclose can range from nothing to an appeal court entering an acquittal.

A trial court may find that the non-disclosure is of no consequence, that it can be cured by further questioning or that the trial should be aborted.

An appeal court can find the non-disclosure of no consequence, that the effect of the non-disclosure is not enough to change the finding of guilt, that it is serious enough that the verdict of guilty should be set aside and the DPP can decide to go to a retrial or do nothing, or that it is so serious that a verdict of acquittal should be entered.

Taken together, the non-disclosures in Sue Neill-Fraser’s case are so significant that her conviction cannot stand. It is a matter for an appeal court to decide whether there should be the option of a new trial or an acquittal.

The Tasmanian Director of Public Prosecutions, Daryl Coates SC, has stood by for years while these non-disclosures have come to light. This has an obvious and continuing negative impact on the reputation of the Tasmanian courts. 

It follows that it is up to the attorney-general to immediately instruct other solicitors and counsel to liaise with Neill-Fraser’s lawyers to expedite a fresh appeal. The attorney-general must also fund the full costs of Neill-Fraser’s lawyers. This is not a political question. It is a fundamental legal issue affecting not just Sue Neill-Fraser and her family and the late Bob Chappell’s family, but all Tasmanians.

Separately, a motion to set up a Royal Commission to inquire into the debacle and scandal that stems from the flawed police investigation into the disappearance of Bob Chappell from his yacht on Australia Day 2009, and continues to today, is to be debated in the Tasmanian Legislative Council on Tuesday, March 24.

This is a political issue, but it is one that goes to the heart of Tasmania’s legal system. Doing nothing, or standing on the sidelines waiting for others, is no longer a credible stance. The evidence of inadequate inquiry, blinkered thinking and failure to follow the rules is overwhelming.

The reasons for these failures must be explored, explained, and be the bases for necessary reforms.

Politicians, whatever their party or independent alignment, ought to demand the setting up of that inquiry with wide-ranging terms of reference, conducted by a highly regarded, interstate sitting or former judge with a wealth of criminal practice experience.

Hugh Selby, a former barrister, is the CityNews legal columnist.