On the 27 of March 2026, criminal law practitioners from across the country gathered in Sydney for the annual Australian Criminal Lawyers Conference. The conference is an excellent opportunity to hear from industry experts across the Australian jurisdictions, on key developments and emerging challenges in the criminal law landscape.
This year, Terry O’Gorman AM, civil rights advocate and co-founder of Robertson O’Gorman Solicitors, was invited to present a paper addressing significant and systemic issues in the way disclosure is handled within the criminal justice system.
The paper began with a cross-jurisdictional analysis of existing disclosure regimes across Australia’s states and territories, identifying key deficiencies that contribute to the persistent problem of late and missing disclosure.
The paper proceeded to discuss practical strategies defence practitioners can adopt within the constraints of the existing system, to mitigate the risks associated with inadequate disclosure. The following ten strategies were drawn from Terry O’Gorman’s extensive experience in addressing failures by prosecution to provide relevant material, as well as from discussions with other practitioners:
- Be proactive. Invoke the right to disclosure expressly, from an early stage and in writing. The defence should not rely on informal assumptions.
- Particularise the defence theory early. Where appropriate, articulating the defence case at an early stage can help shape and direct the scope of disclosure.
- Inquire specifically about credibility and inducement material. A striking number of miscarriage cases involve undisclosed benefits, informer status, payments, criminal histories, prior inconsistent statements or other impeachment material.
- Force the Prosecution to disclose what enquiries have and have not been made. Do not just ask “have you disclosed everything?”. Ask what sources were checked, what devices were downloaded, what third parties were approached, what overseas or agency records were sought and what was not pursued. This strategy helps turn a vague assurance into something testable.
- Use subpoenas strategically. Defence practitioners should take an active role in identifying and obtaining potentially relevant material—such as hospital, agency, telecommunications, or institutional records—rather than waiting for the prosecution to disclose it.
- Challenge Prosecution claims of privilege or public interest immunity. In practical terms the Defence should press for a proper identification of the material and if necessary judicial inspection rather than accepting a prosecution bare refusal.
- Treat digital evidence as a disclosure project of its own. Recent reviews show that digital evidence is where disclosure often breaks down. Be scrupulous in requesting extraction reports, search terms, audit trails and a clear explanation of what collections were searched, and which were not.
- Put the issue before the court early, not just on appeal. Case law demonstrates that late discovery of non-disclosure can overturn convictions. It is clear that the Defence should use interlocutory and pre-trial processes to force the issue before trial.
- Keep a detailed disclosure record. A Defence team that keeps a dated schedule of requests, response, omissions and challenged assumptions is much better placed both to force compliance at trial and to prove unfairness later.
- Do not assume the Prosecutor already knows what police or agencies hold. The Defence should frame requests and Subpoenas not only to the prosecutor’s brief but also requests should be directed to material held by the police, other agencies and individual investigators.
The paper emphasised that, while practical strategies can mitigate the risks of inadequate disclosure, any effective long-term solution ultimately requires systemic reform supported by legislative change. Drawing on recent reviews of the disclosure regime in the United Kingdom – particularly the Fisher Review – the paper identified several key pathways for reform:
- Stronger, more comprehensive legislative frameworks across Australia to clearly define and articulate disclosure obligations, reducing ambiguity in their scope and application.
- Robust accountability mechanisms at all levels, including disciplinary consequences for police officers who fail to comply with disclosure duties.
- Mandatory verification of disclosure compliance, such as requiring both prosecutors and arresting officers to formally certify that all disclosure obligations have been satisfied prior to the submission of a prosecution brief.
- Improved training for police investigators, prosecutors, and model litigants, ensuring a thorough and consistent understanding of disclosure obligations and eliminating misconceptions about their scope.
- Greater prosecutorial oversight of disclosure practices. Given that disclosure is largely police-controlled, prosecutors currently rely heavily on investigators to identify relevant material. Increased prosecutorial involvement is necessary to ensure compliance with disclosure requirements.
- Ongoing monitoring and evaluation of recent reforms, particularly in jurisdictions such as New South Wales and the Australian Capital Territory, to assess their effectiveness and inform future improvements.
The paper ultimately serves as a call to action, cautioning that attendance at conferences of this kind risks becoming a hollow exercise if not followed by concrete steps. Meaningful reform requires more than mere recognition of the problem; it demands sustained commitment, ongoing oversight, and deliberate, practical action.