ABSTRACT

While the ability of the court to come to a just verdict is enhanced when it has access to all relevant information, it is recognised that other interests place limits on the amount of information that can reasonably be disclosed.1 Among these interests are national security, protection of informants and police investigation techniques, and legal professional privilege. The resolution of conflicts among public interests has a prominent role in fair trials and disclosure.

The Keane materiality test, if applied literally, would require the police and prosecutor to disclose a wide range of information. Some of the information might be embarrassing to a citizen or a police officer and yet be only marginally relevant to a particular criminal proceeding. Other information of marginal relevance might have been received on the basis that it was to be held in confidence. At the other end of the scale, a portion of the information might, if revealed, damage national security. It may or may not be material to the proceeding. Consequently, the public interest dictates that the prosecution’s duty of disclosure be limited in certain circumstances. The issues for discussion here include the nature of the information that is protected by public interest immunity (PIT) in contrast to information that is simply sensitive, and which sensitive information, if any, can be withheld from the defence. Also, one must be cognisant of the effects of the demarcation as between the public interest in the ‘fight against crime’, and the public interest in privacy and fair trials. Legal professional privilege is described in Pt 6.11.