When documents are disclosed by the prosection is there any restriction on how the defence can use them? Harman obligations and the uncertain state of the law in Queensland.
What can an accused person in Queensland do with the statements in the police Brief of Evidence? Or the QP9 Court Brief? Can they copy it? Show it to their friends? Post parts of it on social media?
In a decision of the District Court of Queensland, Judge Loury said that these documents are not subject to the implied promise to only use the documents for the criminal case (sometimes called the Harman obligation – the Hearne v Street obligation – or the implied undertaking).
More specifically – the Court said that prosecution disclosure under the statutory scheme in the Criminal Code does not attract the Harman obligation.[1]
Interestingly, in the case before Judge Loury, the Director of Public Prosecutions submitted that the Harman obligation did not apply.
What Judge Loury said on this point may not be part of the basis for the ultimate decision (the ratio decidendi) because the tender of the documents at a committal hearing was held to remove any restriction that had applied until then.
However, there are other decided cases which have reached the opposite conclusion. These were not referred to in Judge Loury’s reasons. She said, “Neither the respondent nor applicant could find any authority to suggest that the Harman undertaking applies to criminal proceedings prosecuted by the State.”
In the NSW Supreme Court, Justice Ward accepted that a Brief of Evidence in a criminal case was subject to the obligation.[2] That acceptance followed a decision of the United Kingdom’s House of Lords.[3]
In the notorious defamation claim by Bruce Lehrmann (decided after TBA), the Federal Court proceeded on an assumption that an eBrief disclosed by the police to Mr Lehrmann in the criminal case was subject to the Harman obligation.[4] All parties seem to have agreed. The real issue was whether Mr Lehrmann lied about giving the material to a journalist. Even so, a finding was made that Mr Lehrmann “wrongly provided [the journalist] with access to the information” (my emphasis).[5]
The conflict in the authorities means that the law in Queensland is unsettled. That causes un-necessary angst and uncertainty for practitioners and their clients. Let us hope it is resolved soon.
In the meantime, it would be prudent to act as if certain the Harman obligation does apply. There are also other principles which may impose some restriction on the use of the material.
In our general lives, we’re used to warning labels, terms and conditions. But when the police give a self-represented defendant the QP9, or the Brief of Evidence, it comes with no warning about the use of the information.
Solicitors who receive Harman material (when it is Harman material) have a two-fold duty. 1. Respect the obligation themselves. 2. Warn the client about the client’s obligations.
Breach of the obligation can be punished as a contempt of court.
[1] R v TBA [2023] QDC 250 – The Court also found that, even if the Harman obligation had applied, it could no longer apply after the documents were tendered in evidence at a committal hearing in the Magistrates Court. But see British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2003] VSCA 43
[2] In the matter of Clarecastle Pty Ltd (in liq) [2011] NSWSC 553 at [22]
[3] Taylor and Others v Director of the Serious Fraud Office and Others [1998] UKHL 39; [1999] 2 AC 177; [1998] 4 All ER 801; [1998] 3 WLR 1040
Considered in some detail by Ryan J in Spalla v St George Motor Finance Ltd (ACN 007 656 555) [2004] FCA 1014. But as far as I can tell, without actually deciding the point.
Cited with approval in dicta by Blow CJ in EFG v Legal Profession Board of Tasmania [2020] TASSC 26 at [51] and in Edwards v Avant Insurance Ltd [2020] TASSC 8; 31 Tas R 32 at [13] & [14]
Cited with approval by Le Miere J in dicta Alcoa of Australia Ltd v Apache Energy Ltd (No 6) [2014] WASC 287 at [21].
[4] Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 in the “Spotlight Detour” from [172] to [179]
Mr Lehrmann came into possession of the relevant documents in an eBrief disclosed to him by the police in the criminal proceeding. This was set out in an agreed statement of facts which became Exhibit R888 in the defamation trial.
https://www.fedcourt.gov.au/__data/assets/pdf_file/0005/116906/Exhibit-R888.pdf
[5] Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 at [179]