Brawn v The King - [2022] SASCA 96

Supreme Court of South Australia
(Court of Appeal: Criminal)
BRAWN v THE KING
[2022] SASCA 96
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
15 September 2022
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - NOTICE AND DISCLOSURE TO ACCUSED
The appellant was found guilty by jury of one count of maintaining an unlawful sexual relationship with a child. The defence case at trial was that the victim was lying as to the identity of her abuser.
Soon after the trial, the appellant’s lawyers were told by counsel for the Director for the first time that the appellant’s father had previously been charged with six counts of unlawful sexual intercourse with another girl. About a year before the appellant’s trial, the charges laid against his father were withdrawn.
The appellant appeals against his conviction, contending that the prosecution’s failure to make proper disclosure of the charges against his father denied him the opportunity to conduct his case differently, with the result that he was denied a fair trial, causing a miscarriage of justice.
Held (the Court) dismissing the appeal:
1.The prosecution failed to disclose material which might, as a reasonable possibility, have materially assisted the conduct of the defence case.
2.By no later than the defence opening, the undisclosed material was relevant to the defence case that it was reasonably possible that the appellant was not the offender. The duty to disclose arose because, at the least, the undisclosed and unused material may have assisted the appellant’s cross-examination of various witnesses at the trial on the topic of the identity of the offender.
3.However, had the prosecution disclosed the charges laid against the appellant’s father that would not have altered the forensic contest at trial. The appellant has not demonstrated that his trial might have been conducted differently.

4. The appellant has not been denied a fair trial and there has been no miscarriage of justice.
Australian Solicitors Conduct Rules (2015) r 29.5 ; Criminal Law Consolidation Act 1935 (SA) ss 49(3), 50(1); Criminal Procedure Act 1921 (SA) ss 122, 123(2), 125, 158(1); Director of Public Prosecutions Act 1991 (SA) s 10A(1); Joint Criminal Rules 2022 (SA) r 92.5, referred to.
AJ v The Queen [2011] VSCA 215; Ali v The Queen (2005) 79 ALJR 662; Alister v The Queen (1984) 154 CLR 404; Cannon v Tahche (2002) 5 VR 317; Carter v Hayes (1994) 61 SASR 451; Director of Public Prosecutions v Selway (No 2) (2007) 16 VR 508; Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65; Filippou v The Queen (2015) 256 CLR 47; Grey v The Queen (2001) 75 ALJR 1708; Helps v The Queen (No 3) [2021] SASCFC 10; Hunt v De Pinto (1995) 63 SASR 402; Hunt v Wark (1985) 40 SASR 489; In Re Van Beelen (1974) 9 SASR 163; King v The Queen (2012) 245 CLR 588; Mallard v The Queen (2005) 224 CLR 125; McIlkenny (1991) 93 Cr App R 287; Noack v General Motors-Holden’s Ltd (1985) 11 FCR 122; Nudd v The Queen (2006) 80 ALJR 614; R v Brown [1998] AC 367; R v Drummond (No 2) [2015] SASCFC 82; R v Forrest (2016) 125 SASR 319; R v H and C [2004] 2 AC 134; R v K (1991) 161 LSJS 135; R v Keane [1994] 2 All ER 478; R v Lucas [1973] VR 693; R v Spiteri (2001) 61 NSWLR 369; R v Storey (1978) 140 CLR 364; R v Ward [1993] 1 WLR 619; Ratten v The Queen (1974) 131 CLR 510; Roberts v The Queen (2020) 60 VR 432; Sobh v Police Force of Victoria [1994] VR 41; Strazdins v Birch Carroll & Coyle Ltd (2009) 178 FCR 300; TKWJ v The Queen (2002) 212 CLR 124; Weiss v The Queen (2005) 224 CLR 300; Wilde v The Queen (1988) 164 CLR 365, considered.

BRAWN v THE KING
[2022] SASCA 96
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:
Introduction

On 1 July 2021, the appellant was found guilty by a unanimous jury of one count of maintaining an unlawful sexual relationship with a child, a girl aged between 5 and 8 years in the period 1 April 2016 to 1 January 2019, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
Soon after the trial, the appellant’s lawyers were told for the first time that the appellant’s father had previously been charged with six counts of unlawful sexual intercourse with another girl, aged between 15 and 16 years in the period 10 November 2018 to 24 May 2019, contrary to s 49(3) of the CLCA. The complainant was the niece of the appellant’s father.
About a year before the appellant’s trial, the charges laid against his father were withdrawn and no prosecution proceeded to a trial or verdict.
Nonetheless, the appellant’s case is that the failure by the prosecution to make proper disclosure of the charges against his father denied him the opportunity to conduct his case differently, with the result that he was denied a fair trial. Accordingly, the appellant appeals against his conviction on the ground that the failure by the prosecution to make disclosure has resulted in a miscarriage of justice within the scope of s 158(1)(c) of the Criminal Procedure Act 1921 (SA) (the CPA).
For the reasons that follow, though the prosecution failed to make proper disclosure, the appellant has not demonstrated that the trial would have been conducted differently. There has been no miscarriage of justice. The appeal should be dismissed.
The prosecution case at trial
The prosecution case was that the appellant engaged in the sexual abuse of a young girl who was a fellow member of the Sudanese community. The prosecution alleged that the appellant exploited the close relationship between his family and the victim’s family. They regularly spent time together in their respective homes.
The particulars of the alleged offending were that between 1 April 2016 and 1 January 2019 the appellant had engaged in two or more unlawful sexual acts with the victim. These were particularised as engaging in penetrating her anus with his penis, causing her to perform fellatio on him, performing cunnilingus upon her and causing her to touch his penis. The appellant turned 18 on 1 April 2016 and was therefore an adult during the period of the offending, a period of around two years and nine months.
During two police interviews, which were recorded on video and played to the jury as the victim’s examination-in-chief, the victim described eight separate acts of sexual abuse by the appellant, whom she identified. In her initial complaint she described the appellant as an “uncle”, but he was more accurately described within the Sudanese community as a “cousin”. These terms described the close nature of the relationship rather than any familial ties.
The first three acts of sexual abuse were alleged to have occurred in the appellant’s bedroom after the victim’s mother had gone to Africa. The fourth and fifth acts were also alleged to have occurred in the appellant’s bedroom on the day the victim’s mother came back from Africa. The sixth and seventh acts occurred in the victim’s bathroom at her new home. On the eighth and final occasion, the offending was alleged to have occurred in the lavatory of a public park at which the birthday of another child in the Sudanese community was being celebrated.
By the time of the trial, the victim was 10, nearly 11 years. Following the playing of the video recordings of the two interviews, the victim was cross-examined.
The prosecution also called witnesses to prove the victim’s initial complaint to teachers at her school. Family members were also called to give evidence to establish the appellant’s opportunity to undertake the offending.
The defence case at trial
It appears to have been common ground between the parties at trial that there was no scope for the victim to be mistaken about the identity of the offender. No suggestion was made that she was unable to see or identify the offender. So far as the appellant was concerned, she knew him well. During his record of interview, the appellant had described the victim as “like a sister” to him.
Immediately following the prosecution opening, senior counsel for the appellant addressed the jury. She made it clear that the real issue in the trial was whether it was the appellant who had abused the victim. As she then opened to the jury:[1]
By his plea of not guilty, Mathew Brawn is obviously telling you that he didn’t commit this offence, he didn’t have the sexual relationship with her. It’s not for him to identify or tell you who that person was or to explain to you why she is blaming him as opposed to somebody else. The issue for you in this trial is to listen carefully to the evidence … and ask yourselves whether those surrounding circumstances when objectively tested, when tested against other evidence, leave you with a reasonable doubt about whether [the victim] is accurate and whether [the victim] is reliable when she says it’s Mathew Brawn who abused her.
[1] T32.
The defence case at trial was that the victim was probably sexually abused, but by another Sudanese male and the victim was lying insofar as she accused the appellant of committing the abuse.
One of a number of factual issues addressed during the trial concerned the question whether there was a lock on the appellant’s bedroom door, as alleged by the victim, which had allowed much of the offending to occur without detection. At the trial the prosecution suggested that the appellant’s bedroom doorknob had been changed, and this suggestion was grounded in photographic evidence depicting that the defendant’s doorknob was different to others in the house, and scuffing that could be seen around the doorknob which was said to be consistent with it having been changed.
A further factual question was whether there was a mirror on the appellant’s wardrobe doors, another matter alleged by the victim. Finally, there was a question at trial as to whether the appellant attended the birthday party in the park for only a brief period near its conclusion, as it was being packed up.
The affidavit evidence from the appellant
The Court has before it two affidavits provided by the appellant’s solicitor.
These showed that soon after the trial the then counsel for the prosecution disclosed to the appellant’s legal representatives the fact that the appellant’s father had been charged. Counsel for the prosecution expressed some surprise when the appellant’s representatives explained that this information had not previously been disclosed to them.
The affidavit evidence also showed that the appellant knew that his father had been charged but that he had not disclosed this to his legal representatives because he did not then recognise the relevance of that information.
The seven charges laid against the appellant’s father were also addressed. Six of the charges alleged unlawful sexual intercourse with the complainant and a seventh alleged an aggravated assault on her.
The complainant and her brothers had been living with the appellant’s father in his home. Following a report made to the Department for Child Protection, the matter came to the attention of police during June 2019.
The police “facts of charge” records that the complainant alleged that between 10 November 2018 and 24 May 2019, a six-month period, she was approached by the appellant’s father on six occasions and, whether in her bedroom or in his bedroom, he put his hands underneath her clothes, touched her breasts and either placed a finger inside her vagina or, on the last two of the six occasions, put his penis inside her. Soon after the complainant made her report, she was removed from the home. Police approached the appellant’s father during July 2019, and he declined to answer any questions. He was served with an intervention order prohibiting him from coming within 150 metres of the complainant. He was given police bail.
The appellant’s father was charged on 29 July 2019 and committed for trial on 23 July 2020, but a “white paper” was signed and filed on 13 August 2020.[2]
[2] A “white paper” or a “Certificate of Prosecution Declining to Prosecute” records that the matter was committed for trial but, before arraignment, the Director determined not to prosecute and no Information would be laid. See r 92.5 of the Joint Criminal Rules 2022 (SA) and s 122 of the Criminal Procedure Act 1921 (SA).
It is not suggested that the solicitors in the Office of the Director of Public Prosecutions who instructed counsel at the trial of the appellant were aware that charges had been laid against the appellant’s father. How counsel for the prosecution came to learn of these charges against the appellant’s father remains unclear.
The prosecution’s obligation to make disclosure
The Crown accepts that, as between the police and the Office of the Director of Public Prosecutions, it is immaterial whether the matter was known to police but not disclosed to the Office of the Director. Indeed, it is accepted that the reason for the failure to make disclosure is immaterial.[3] Accordingly, it is conceded that the prosecution “constructively” knew that the appellant’s father was charged with unlawful sexual intercourse.[4]
[3] R v Ward [1993] 1 WLR 619.
[4] See R v Forrest (2016) 125 SASR 319, [63] (Kourakis CJ, with whom Kelly and Lovell JJ agreed): “The Director cannot, as a general proposition rely on a distinction between his Office and SA Police. The erection of a bamboo curtain between the two will be conducive to miscarriages of justice. The effect on a trial of material non-disclosure is the same whether the agency responsible is the State’s investigating or prosecuting authority.”
Where there has been a failure to make disclosure, the usual common law principles concerning fresh or further evidence do not apply.[5]
[5] Grey v The Queen (2001) 75 ALJR 1708, [5]-[18] (Gleeson CJ, Gummow and Callinan JJ); R v Drummond (No 2) [2015] SASCFC 82, [172]-[174] (Peek J): “where the evidence … should have been disclosed by the prosecution at trial, miscarriage of justice may be demonstrated directly by reference to the failure to disclose rather than by the route of satisfaction of a “fresh evidence” test”.
The question for this Court is whether there was a failure by the prosecution to make disclosure which has resulted in a miscarriage of justice.[6]
[6] Grey v The Queen (2001) 75 ALJR 1708.
Sub-section 158(1)(c) of the CPA authorises this Court to allow an appeal where “on any ground there was a miscarriage of justice”. This limb of the common form criminal appeal provisions extends to cases where, whether as the result of an irregularity or otherwise, the defendant has not received a fair trial, being a trial according to law.[7] In Ratten v The Queen Barwick CJ addressed what was meant by a “miscarriage of justice”:[8]
Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court’s mind upon its review and assessment of the evidence which is the operative consideration.
That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused.
[7] Weiss v The Queen (2005) 224 CLR 300, [45] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Filippou v The Queen (2015) 256 CLR 47, [13] (French CJ, Bell, Keane and Nettle JJ).
[8] Ratten v The Queen (1974) 131 CLR 510, 516 (Barwick CJ); see also Weiss v The Queen (2005) 224 CLR 300, [17]-[18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Nudd v The Queen (2006) 80 ALJR 614, [2]-[8] (Gleeson CJ); King v The Queen (2012) 245 CLR 588, [53] (French CJ, Crennan and Kiefel JJ).
Accordingly, it is first necessary to determine whether there was a failure to make disclosure and, if there was, whether that has resulted in a miscarriage of justice.
The Court of Criminal Appeal in R v Forrest addressed the failure by the prosecution to disclose information relevant to the character, credibility and reliability of two witnesses, particularly their previous criminal offending and connections with outlaw motorcycle gangs.[9] At trial the prosecution presented them as witnesses of good character.
[9] R v Forrest (2016) 125 SASR 319.
The Court commenced with the statutory obligation in the police officer in charge of an investigation of an indictable offence to make disclosure to the Director of Public Prosecutions under s 10A(1) of the Director of Public Prosecutions Act 1991 (SA) (the DPP Act):
A police officer in charge of the investigation of an indictable offence (the chief investigator) has a duty to disclose to the Director all documentary material collected or created in the course of the investigation that might reasonably be expected to assist the case for the prosecution or the case for the defence.
As Kourakis CJ explained in R v Forrest:[10]
Even though the judicial enforcement of the obligation imposed by s 10A(2) of the DPP Act on the chief investigator may be problematic, it does provide a statutory foundation for extending the prosecutorial obligation to disclose material which might reasonably be expected to assist the case for the defence beyond material which is in the actual possession of the Director’s office to material which the chief investigator was duty bound to disclose to the Director pursuant to s 10A of the DPP Act. As a general proposition the Director’s duty to disclose cannot be excused on the ground that the chief investigator did not discharge his or her s 10A duty, because s 10A(2) of the DPP Act provides the Director with a mechanism to enforce that duty.
[10] R v Forrest (2016) 125 SASR 319, [65] (Kourakis CJ, with whom Kelly and Lovell JJ agreed).
Whilst the obligation to make proper disclosure is imposed on prosecutors at common law,[11] it is also adverted to by statute,[12] by the Director’s own policies and guidelines,[13] and by r 29.5 of the Australian Solicitors Conduct Rules (2015):
A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.
[11] See Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ with whom McTiernan, Stephen and Jacobs JJ agreed).
[12] See ss 123(2) and 125 of the Criminal Procedure Act 1921 (SA).
[13] Director of Public Prosecutions of South Australia, Statement of Prosecution Policy & Guidelines (2014), guideline 9, p 20.

These must be understood in the context that the criminal law recognises no right to discovery.[14] Rather, the obligation to make disclosure is imposed on the prosecutor, the impartial “minister of justice”,[15] recognising that in this adversarial setting the parties are “not evenly matched in resources”.[16]
[14] Noack v General Motors-Holden’s Ltd (1985) 11 FCR 122; Sobh v PoliceForce of Victoria [1994] VR 41.
[15] Alister v The Queen (1984) 154 CLR 404, 429-430 (Murphy J); Martin Hinton, ‘Unused Material and the Prosecutor’s Duty of Disclosure’ (2001) 25 Criminal Law Journal 121, 122.
[16] McIlkenny (1991) 93 Cr App R 287, 312 (Lloyd, Mustill, Farquharson JJ).
The common law obligation in the prosecution to make disclosure has been described as having its origin in the elementary right of every defendant to a fair trial.[17] Accordingly, it is elemental to the conduct of a fair trial that the defendant be given adequate notice of the case to be made by the prosecution and, as a concomitant, the prosecution cannot withhold from the defendant material which might undermine the prosecution case or which might assist the defence case. This has been described as part of the “great principle of … open justice”.[18] In Roberts v The Queen the Victorian Court of Appeal explained:[19]
It is now accepted that it is fundamental that there must be full disclosure in criminal trials.[20] It is a ‘golden rule’.[21] The duty is to disclose all relevant material of help to an accused.[22] It is owed to the court, not the accused.[23] It is ongoing.[24] It includes, where appropriate, an obligation to make enquiries.[25] It is imposed upon the Crown in its broadest sense.[26] And a failure in its discharge can result in a miscarriage of justice.[27]
[17] R v Brown [1998] AC 367.
[18] R v Keane [1994] 2 All ER 478, 483 (Lord Taylor of Gosforth CJ, Auld and Mitchell JJ). Upheld in R v Brown [1998] AC 367, 374 (Lord Hope of Craighead, with whom Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde and Lord Hutton agreed).
[19] Roberts v The Queen (2020) 60 VR 432, [56] (Osborn, Forrest JJA, Taylor AJA).
[20] As to the position as a matter of history see the judgment of Brooking J in Sobh v Police Force of Victoria [1994] 1 VR 41.
[21] R v H and C [2004] 2 AC 134, 147.
[22] Cannon v Tahche (2002) 5 VR 317, 340–341 [58].
[23] Cannon v Tahche (2002) 5 VR 317, 340–341 [58].
[24] It subsists even after the appellate process has been exhausted. See R v Ward [1993] 1 WLR 619.
[25] A J v The Queen [2011] VSCA 215, [22] citing R v Garofalo [1999] 2 VR 625, 637 (Ormiston JA).
[26] R v Lucas [1973] VR 693; A J v The Queen [2011] VSCA 215.
[27] Ward [1993] 1 WLR 619; Mallard v The Queen (2005) 224 CLR 125; Grey v The Queen (2001) 75 ALJR 1708.
As can be seen, the obligation to make disclosure is framed as a duty owed to the court, which requires that the prosecutor disclose as soon as practicable all material available to the prosecutor, or of which the prosecutor becomes aware, which could constitute evidence relevant to the guilt or innocence of the accused.
The prosecution duty to make disclosure extends to the disclosure of material that may undermine the prosecution case, which has been described as direct exculpatory evidence, as well as material that may cast doubt on the credibility or reliability of prosecution witnesses, which has been described as indirect exculpatory evidence.[28]
[28] R v Brown [1998] AC 367, 377 (Lord Hope of Craighead, with whom Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde and Lord Hutton agreed); Mallard v The Queen (2005) 224 CLR 125, [81] (Kirby J); Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65, [343] (Osborn, Whelan and Priest AJJ); R v K (1991) 161 LSJS 135, 140 (King CJ, with whom Cox and Debelle JJ agreed).
The prosecutor’s duty to the court also extends to the disclosure of material which is even possibly relevant to an issue, as well as to material which is capable of raising a new issue, even where the possibility of that new issue may not be apparent from the evidence that the prosecution proposes to lead.[29] The duty usually extends to what has been described as “unused material” available to the prosecution.[30]
[29] R v Spiteri (2001) 61 NSWLR 369, 374 (Simpson J, with whom Grove and Shaw JJ agreed).
[30] See generally, McIlkenny (1991) 93 Cr App R 287, 312 (Lloyd, Mustill, Farquharson JJ); Patrick O’Connor, ‘Prosecution disclosure: principle, practice and justice’ [1992] Criminal Law Review 464; Martin Hinton, ‘Unused Material and the Prosecutor’s Duty of Disclosure’ (2001) 25 Criminal Law Journal 121.
Was the further material relevant?
When addressing the scope of the prosecution obligation to make disclosure in a particular case, it is necessary to commence with the potential relevance of the undisclosed material.
The appellant emphasises that the issue joined between the parties at trial was the identity of the victim’s abuser. Although the victim clearly identified the appellant as the offender, her identification was attacked by the appellant. It was put to the jury that the victim was lying about the identity of the abuser, though not about whether sexual abuse had occurred. As the argument was put to the jury in final address by senior counsel for the appellant:[31]
But remember two things. Using your world experience and your experience as adults, you’ll know that even little children are capable of lying and they're capable of being convincing liars. Sometimes little children lie and we don't know why, but you use your common sense and you'd know that sometimes kids will not shift from a lie, even when faced with strong evidence to the contrary.
The second thing is, as I've made the submission to you already, that [the victim], having created this huge turmoil and maelstrom in the lives of [the victim’s] family, the Sudanese community, having raised that huge problem, how difficulty [sic] would it be for a little girl of [the victim’s] age to retract.
[31] T436.
Accordingly, the appellant submitted, whether the victim’s identification should be accepted fell to be determined by reference to a close analysis of the circumstances surrounding the victim’s account. The appellant accepted that this raised matters which arise in many trials, such as various inconsistencies in the victim’s evidence. These arose in her interview with police as well as in her cross-examination and they were, the appellant accepted, understandable in a child of the age of the victim.
Nonetheless, it was submitted that the fact that the appellant’s father may have abused another young girl in the same home in which the appellant lived, at around the same time, may have supported the contention that it was reasonably possible that the appellant was not the offender.
For the respondent, it was contended that the fact that charges were laid does not render evidence about those charges admissible. The fact of charges did not, standing alone, prove anything.
The respondent emphasised that there was no evidence before this Court to suggest that the appellant was in any position to call evidence from the complainant concerning the allegations made against the appellant’s father, or to explain any inability to gather evidence of that kind, with the result that there is no basis to assume that the appellant has been denied the opportunity to call relevant and admissible evidence regarding the alleged offending of his father.
In our view, it may be accepted that the fact that charges were laid against the appellant’s father cannot be confused with proof that he had in the past offended against a young girl and, thereby, demonstrated a propensity to sexually abuse young girls. Indeed, as the appellant’s father has neither admitted to nor been convicted of any offending, the charged offending could not be proved by tendering the Information or the police apprehension report or by asking questions of a police officer. Any answer given by a police officer on that topic remained inadmissible hearsay.
As the appellant has not demonstrated on appeal to this Court that he was in any position to call admissible evidence, including from the complainant, there is no reason to think that, by reason of non-disclosure, the appellant has been denied any opportunity to call relevant and admissible evidence on the topic of his father’s alleged offending at the appellant’s trial.
If the appellant had been in a position to call evidence to prove the allegations against the appellant’s father, the extent to which these demonstrated a propensity which was relevant to the appellant’s case that he was not the abuser would depend upon the evidence and particular circumstances of that other offending.
Assuming that evidence of that kind was found to be admissible in the appellant’s trial, it would be a matter for the jury to carefully analyse and contrast the nature of the sexual abuse, as alleged against the appellant and against his father, to consider the extent of any similarity or otherwise in the sexual activity alleged, as well as the circumstances in which each was alleged to have occurred. The jury would also need to consider the difference in age between the two girls. The complainant in the case of the appellant’s father was 15 or 16 years of age whereas the victim in the appellant’s case was between 5 and 8 years of age.
Nonetheless, questions such as these would have been matters for the jury and, if the appellant had demonstrated to this Court that, but for non-disclosure, relevant evidence could have been called, it may have been difficult to refute the proposition that he had been denied “a real chance of acquittal”.[32]
[32] R v Storey (1978) 140 CLR 364, 376 (Barwick CJ); Wilde v The Queen (1988) 164 CLR 365, 371-372 (Brennan, Dawson and Toohey JJ); Grey v The Queen (2001) 75 ALJR 1708, [25] (Gleeson CJ, Gummow and Callinan JJ).
Concessions by the parties: forensic utility of the undisclosed material
The appellant conceded at the hearing of this appeal that any failure by the prosecution to make disclosure had not deprived him of any opportunity to adduce admissible evidence that his father had engaged in unlawful sexual intercourse with another child. He accepted that he could not directly deploy the undisclosed material at his trial. Rather, the appellant shifted his focus to the proposition that the failure to make disclosure deprived him of a fair trial because he did not, as a result, use the material indirectly, to emphasise the opportunities his father had to offend against the victim in the cross-examination of the witnesses called at the trial.
For the respondent, it was conceded for the first time at the hearing of this appeal that the prosecution had failed to make disclosure. That concession was made on the basis that the charges laid against the appellant’s father which were not disclosed were not admissible but that, by the time of the defence opening, they should have been regarded as material that was possibly relevant to the defence case.
As it was put by the respondent at the hearing of this appeal, it was “on the cards” that this material may have been of some forensic utility to the defence.[33] That way of framing the issue of disclosure by the prosecution acknowledged that whether material should be disclosed is not determined by whether it comprises admissible evidence. The duty is broader than that. The material which must be disclosed by the prosecution may be of forensic utility even if it can only be used by the defence indirectly before or at the trial. That is, the material may be of indirect use where it is capable of informing a relevant line of inquiry or investigation, or where it assists to identify relevant witnesses, or where it assists in the formulation and framing of relevant questions to be put to witnesses called at the trial.
[33] The phrase “on the cards” has more commonly been associated with whether documents the subject of a subpoena would materially assist the defence, see Alister v The Queen (1984) 154 CLR 404, 414-415 (Gibbs CJ); Hunt v De Pinto (1995) 63 SASR 402, 412 (Perry J). Cf, Director of Public Prosecutions v Selway (No 2) (2007) 16 VR 508, [4] (Cummins J), where the preferred test was “whether it is reasonably possible that the sought-for material would materially assist the defence”.
The submission made by the respondent echoed the way in which the relevance of documents has been considered when examining a subpoena or a notice to produce. In that context it has been held that whether a subpoena should be struck out may depend on the way in which the material the subject of the subpoena could be deployed by the defence, and that the potential use of the material is not confined to whether it can be tendered as evidence.
The analogy is apt. In Carter v Hayes King CJ warned against taking any narrow view about how documents the subject of a subpoena might materially assist the defence case:[34]
A document may have evidential value, in my opinion, not only because it is admissible in evidence, but also, even if it is not so admissible of itself, because it provides material of value for cross-examination (Maddison v Goldrick [[1976] 1 NSWLR 651]) or discloses ‘information which may be established in some other admissible form’: R v Saleam [(1989) 16 NSWLR 14] (at 22).
[34] Carter v Hayes (1994) 61 SASR 451, 453 (King CJ, with whom Bollen and Mullighan JJ agreed). Cf Hunt v Wark (1985) 40 SASR 489, 493 (King CJ): “There must be some reason to suppose that the documents sought will be capable of being used as evidence”.
Although King CJ was addressing an application to set aside a subpoena issued by the defence, he recognised the obvious interrelationship between the material that might be made the subject of a subpoena and the material that could be expected from prosecution disclosure:[35]
The summons to produce evidentiary material is the means by which a party procures the material to be brought to the court. Access by the defence to the material is quite another issue. It is not directly in question in the present case as we are engaged upon judicial review of a decision to set aside the summons. Nevertheless as it has a bearing upon the requirement that material be produced before trial, I shall make some observations about it.
Disclosure by those conducting a prosecution of material in the possession or power of the prosecution which would tend to assist the defence case, is an important ingredient of a fair trial (Clarkson v Director of Public Prosecutions [1990] VR 745 at 755), and is an aspect of the prosecution’s duty to ensure that the “Crown case is presented with fairness to the accused”: Richardson v The Queen (1974) 131 CLR 116 at 119; R v Apostilides (1984) 154 CLR 563. Moreover the court has power to order the production to the defence of material in the prosecution’s possession or power if the interests of justice so require: R v Clarke (1930) 22 Cr App R 58; Mahadeo v The King [1936] 2 All ER 813; R v Hall (1958) 43 Cr App R 29; R v Xinaris [1955] Crim LR 437; R v Charlton [1972] VR 758. It will often be necessary, or at least desirable, in the interests of a fair trial that the defence have access to the statements of witnesses and other evidentiary material in the possession of the prosecution in advance of trial in order to prepare for cross-examination of prosecution witnesses and to prepare the defence generally.
[35] Carter v Hayes (1994) 61 SASR 451, 456 (King CJ, with whom Bollen and Mullighan JJ agreed).
Having regard to the concessions made, this appeal can be decided on the basis that the prosecution failed to disclose material which might, as a reasonable possibility, have materially assisted the conduct of the defence case. By no later than the defence opening, the undisclosed material was relevant to the defence case that it was reasonably possible that the appellant was not the offender. The duty to disclose arose because, at the least, the undisclosed and unused material may have assisted the appellant’s cross-examination of various witnesses at the trial on the topic of the identity of the offender.
Was there a miscarriage of justice?
Given the concessions made by the parties, the focus of this appeal then turned to whether there had been a miscarriage of justice.
There were, the appellant contended, significant aspects of the defence case which were affected by the prosecution’s failure to disclose the fact that charges had been laid against his father.
The first of these relied upon by the appellant concerned the last “foundation” offence which occurred in the toilet of a public park at a birthday party in 2016. In her evidence, the victim initially identified the wrong park and the wrong year. The appellant called evidence to demonstrate that he had worked all afternoon and only arrived at the party for the final 20 minutes, as the party was being cleared away. That evidence was supported by business records. Whilst evidence was also called from the victim’s mother, who had said that the appellant was at the party from the outset, the appellant emphasised that his father was at the party throughout the day.
It is said that, because of the failure by the prosecution to make proper disclosure, the issue of the presence of the appellant’s father was not explored to the appellant’s forensic advantage during the trial. Likewise, the appellant pointed to the prosecution’s failure to disclose as the reason why he did not explore at trial whether there was a lock on the door of his father’s bedroom or a mirror in his father’s wardrobe.
Finally, and similarly, it was said that the terms in which the victim made her initial complaint were not explored because of the prosecution’s failure to make disclosure. It will be recalled that the victim accepted that, initially, she had described her abuser as an “uncle”. Strictly, in the Sudanese community that term did not apply to the appellant but to someone such as the appellant’s father, an older male member of that community.
The respondent contended that there had been no miscarriage of justice because it was always the defence case that it was reasonably possible that the offending was committed by another male in the Sudanese community. The appellant’s father was, necessarily, always a member of that potential class of offenders.
Similarly, the respondent contended that on the occasions described by the victim, it was always open to the appellant and consistent with the defence case to inquire whether other males, including the appellant’s father, had the opportunity to offend against the victim or, indeed, whether other males in the appellant’s home, including the appellant’s father, had lockable doors or mirrors in their wardrobes.
In so far as it might be suggested that the appellant could have otherwise cross-examined the victim differently, for example by putting to her directly that the appellant’s father was the offender, it was submitted that this was always open to the appellant. The appellant had failed to demonstrate how his preparation or planning would have been materially different and that mere speculation that different forensic decisions might have been made did not establish a miscarriage of justice.
The respondent submitted that the appellant had failed to demonstrate how the presentation of his case would have been any different had the charges against his father been disclosed by the prosecution.
The question for this Court is whether the failure to disclose material relating to the charges laid against the appellant’s father, which were withdrawn around a year before the appellant’s trial, resulted in a miscarriage of justice. That is, has the appellant been denied his right to a fair trial?
In In Re Van Beelen the Court explained that “the conclusion that there was a miscarriage of justice follows directly from the adjudication that the accused was deprived of the right to a fair trial”.[36] In R v Forrest Kourakis CJ warned:[37]
When there is a failure to comply with the prosecutorial duty to disclose material which might reasonably be expected to assist the defence, the question to be determined is whether it has resulted in a miscarriage of justice. Plainly the failure to disclose trivial or insignificant information will not of itself show that there has been a miscarriage of justice. Beyond cases of that kind, care must be taken before finding that the material could not have changed the result. The reasoning of the jury is inscrutable. Many factors individually or in combination may leave a jury in doubt about a witness’s testimony. A substantial long-standing involvement in criminal activity may quite properly be viewed by a jury as a reason to reject or at least cast doubt on a witness’s testimony. Moreover it does not lie comfortably in the mouth of a prosecuting authority, who has breached a duty calculated to avoid a miscarriage of justice, to contend that the withholding of the material was of no consequence.
[36] InRe Van Beelen (1974) 9 SASR 163, 184 (Walters, Wells and Jacobs JJ).
[37] R v Forrest (2016) 125 SASR 319, [67] (Kourakis CJ, with whom Kelly and Lovell JJ agreed).

In R v Forrest, police information and court convictions going directly to the credit and motive to be involved with drug dealing were not disclosed. These were clearly relevant to a defence argument made at trial. Those cases, unlike this case, concerned failures to disclose material that was both relevant and admissible evidence in support of the defence case.
Whilst it cannot be said that the undisclosed material in this case was “trivial or insignificant”, it was not of the same kind as was considered in R v Forrest or, for example, in Mallard v The Queen.[38] In Mallard v The Queen, evidence concerning the testing of a potential murder weapon and method which was said to match the defendant’s admissions was not disclosed even though these issues were at the heart of the Crown case. The High Court held that it was not open to the Court of Criminal Appeal to consider alternative explanations for what was plainly admissible, undisclosed material:[39]
It was not for the Court of Criminal Appeal to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to explore and exploit forensically.
[38] Mallard v The Queen (2005) 224 CLR 125.
[39] Mallard v The Queen (2005) 224 CLR 125, [23] (Gummow, Hayne, Callinan and Heydon JJ).
It may be accepted that it is necessary to exercise particular care when evaluating whether, if proper disclosure had been made by the prosecution to the defence, the appellant’s trial may have been conducted differently. In some cases it will be obvious that the case may have been conducted differently, particularly in cases where the defence has been denied admissible, exculpatory evidence or evidence that may have enabled a challenge to be made to the credibility of a key prosecution witness.
In other cases, it may be much more difficult to say whether the case would have been conducted differently or whether any failure to make disclosure has not denied the defendant a fair trial. In this case, it was not suggested that the mere failure to make disclosure of itself resulted in a trial that was not fair. Rather, the argument was that the appellant had been denied the chance to conduct his trial differently and, only in that sense, was he denied a fair trial.
This Court is not bound to act on the assertion of counsel that the case would have been conducted differently. Even if counsel genuinely believes that the case could have been conducted differently there may be a range of reasons for that belief which are not necessarily related to the significance or otherwise of the undisclosed material. Ultimately the Court must make its own assessment, taking into account, but not being bound by, how counsel says the trial might otherwise have been conducted had proper disclosure been made.[40]
[40] See, for example, Strazdins v Birch Carroll & Coyle Ltd (2009) 178 FCR 300, [212]-[217] (Lander J).
The primary difficulty with demonstrating a miscarriage of justice in this case is that the undisclosed material, if disclosed, could not have altered the forensic contest which was marked out by the cases for the prosecution and the defence at the trial.
Senior counsel for the appellant submitted that closer attention might have been directed to the appellant’s father. The difficulty with that submission is that the appellant’s father was always one of a number of Sudanese men to whom the defence could point, in circumstances where it must always have been part of the defence strategy to point to the opportunities that he and others had to interact with the victim and offend in the manner alleged.
The contention that closer attention might have been given to the opportunities the appellant’s father had to engage in the abuse of the victim must also confront the proposition that, regardless of any disclosure issue, that task could have been undertaken but it was not. It was not undertaken even though the appellant’s father was an older male living in the appellant’s home at the time of the offending who, within the Sudanese community, was properly described as an “uncle”, the term used by the victim when referring to the offender in her initial complaint.
It must be concluded that, as the appellant now accepts that the charges laid against his father could not be tendered or put into evidence “directly”, the potential questions or avenues of inquiry now identified by the appellant were always open to be asked or explored at the appellant’s trial. For example, so far as the birthday party in the park was concerned, other Sudanese males, including the appellant’s father, were present. There was no impediment to the appellant asking questions about whether other males, including his father, were with the victim at or near the toilet block or elsewhere during the party. To do so was always consistent with the defence case and any failure to do so cannot be attributed to the failure to make disclosure.
This is not a case where there is any failure by senior counsel to act with diligence and skill in the defence of the appellant at trial. On the contrary, a reading of the transcript demonstrates that the defence was undertaken with considerable care, skill and good judgment.
The objective, rational explanation,[41] for the defence strategy of not narrowing the defence focus to any one member of the Sudanese community, including the appellant’s father, was that the victim’s account, whilst affected by some inconsistencies, was specific to the appellant and to those places the appellant had been seen to attend.
[41] TKWJ v The Queen (2002) 212 CLR 124, [16]-[17] (Gleeson CJ), [107], [112] (Hayne J); Ali v The Queen (2005) 79 ALJR 662, [23]-[25] (Hayne J, with whom McHugh J agreed); Nudd v The Queen (2006) 80 ALJR 614, [9]-[10] (Gleeson CJ); Helps v The Queen (No 3) [2021] SASCFC 10, [145] (Peek J).
In this setting, it would not have been credible to simply substitute another male as the offender who committed the offending that the victim described, in the places she described it. For example, it could not credibly have been suggested that another male had offended against the victim on numerous occasions inside the appellant’s bedroom. Similarly, the offending that occurred in the victim’s new home did not always occur when the appellant’s father was present.
Whilst the defence could point to other males and other places, apart from the offending in the public toilet at the birthday party these potential possibilities were necessarily shorn of any detail which could credibly narrow the focus to any particular male or to any particular place. It may be debated whether the undisclosed material provided a proper basis to put the suggestion that the appellant’s father was the offender to the victim. However, even if the defence had suggested that the appellant’s father was responsible for the abuse, and assuming the victim denied the suggestion, there was no admissible evidence available to the defence to undermine that denial.
The defence was, accordingly and advisedly, more diffuse in its focus at trial. Against the appellant’s identification it was necessary to point, without being specific, to other males in the victim’s community when advancing the propositions that the victim was lying about the identity of the abuser and that it was reasonably possible that it was not the appellant but one or more of those other males, including but not limited to the appellant’s father, who had committed the offending.
The defence case that the victim was lying, and that it was not the appellant who had offended in any of the places she had described, was made clear by the following exchange, which occurred near the end of the victim’s cross-examination:[42]
Question: You see, what I’m suggesting … is this: I’m not suggesting to you that you haven’t been abused in the way that you say you've been abused, and I think everyone in the courtroom thinks the things that you describe must have been awful for you, but what I’m saying to you is that it was not Mathew Brawn and it was not in his bedroom or any other places that you talk about who was your abuser. What do you say to that?
Answer: I think that’s not true.
[42] T91.
The appellant has conceded that, notwithstanding non-disclosure, he has not been denied the opportunity to adduce admissible evidence that the appellant’s father engaged in the offending with which he was charged. Having regard to the way in which the forensic contest was framed at trial, it must be concluded that the appellant has failed to demonstrate that his defence would have been conducted differently and, on that account, been denied a fair trial.
Conclusion
In circumstances where the appellant cannot demonstrate that his trial might have been conducted differently had the charges against his father been disclosed by the prosecution, he has not been denied a fair trial and there has been no miscarriage of justice.
The appeal should be dismissed.