Edwards v The Queen [2021] HCA 28

Edwards v The Queen is a decision of the High Court of Australia, on an appeal brought by Mr Edwards from a decision of the New South Wales Court of Criminal Appeal.

While each State and Territory in the Commonwealth of Australia has a parliament which can pass laws which are applicable in that State only, the High Court has supervisory jurisdiction over all State and Territory courts exercising appellate jurisdiction.

For example, the Court of Appeal in South Australia is an “intermediate” appellate court, and a further appeal is available to the High Court, but only if the High Court grants leave (or permission) to appeal. Whether leave will be given may depend on whether the High Court takes the view that the issue which was the subject of the appeal is of such importance to all jurisdictions generally that the High Court should hear the case.

Because of this hierarchy of courts in Australia, a High Court judgment from an appeal in one State may well be relevant in another State, or all States, of the Commonwealth, depending upon the subject matter. Edwards v The Queen is one of those cases.

The case is important because it highlights one of the strict duties of a DPP in the Australian criminal justice system. It is a hallmark of that system that the DPP, as the prosecutor in a criminal trial, must disclose to the defence any information in the possession of the DPP or other State agency such as the police, which might be relevant to the case being tried, whether or not it may assist only the defence at trial and not the prosecution. This duty is closely related to the expectation that the DPP, as a model litigant, will not strive for a conviction at any cost, but, as a duty to the Court, will make every effort to ensure an accused person is provided with a fair trial.

The facts of the case

Mr Edwards (“the accused”) was a personal trainer convicted by a jury of aggravated sexual intercourse with a person, a female child under the age of 14 years. One issue at trial was whether the accused could have had access to a male toilet block adjacent to a public park. Two of the offences charged were alleged to have been committed in the toilet block.

Upon the accused’s arrest his mobile telephone was seized, and the files on it were downloaded by the police. There was a considerable amount of data comprising over 60,000 files including over 20,000 text messages. The hard drive containing the files from the telephone was given to the DPP by the police. The DPP informed in writing the defence lawyers acting for the accused of the fact of the download and the fact of the DPP’s possession of the hard drive and asked the defence if they wanted a copy of the hard drive. The defence did not respond.

In the time ensuing between that correspondence and the trial, the DPP came to discover text messages from the accused to a particular person which indicated that she might have information relevant to the charges laid against the accused. When she was contacted by the police, she provided a witness statement which, among other things, stated that the accused had told her that he had applied to a Council for permission to use the park to conduct a “boot” camp and that was why he had a key to the toilet block. In keeping with its general duty of disclosure, the DPP supplied a copy of the statement to the defence, but it was delivered very close to the trial date. The evidence led from the witness concerned was of considerable importance for the prosecution case. The accused was convicted of the offences charged.

On being informed by the DPP that they had discovered the identity of the witness as a result of searching the downloaded text messages, the defence brought an appeal to the NSW Court of Criminal Appeal, arguing that a miscarriage of justice had occurred because the DPP had not provided a copy of the downloaded material to the defence. That appeal was dismissed. The accused was given leave to appeal by the High Court.

The Judgment of the High Court

The High Court unanimously ruled that despite the material concerned being downloaded from a telephone used, owned and in possession of the accused there was a duty to make a disclosure of the material on the phone to the defence, and it was not a sufficient compliance to reveal only the fact that the DPP had possession. The DPP should have provided a copy to the defence as part of its disclosure of other relevant matters.

However, the High Court found that the accused could not point to any material which was on the phone that could have assisted him in his defence, and there had been no miscarriage of justice resulting from the DPP having failed to provide it. The accused’s appeal was dismissed.


It would follow that had there been material in the download that might have assisted the accused at his trial then the High Court could have declared that a miscarriage of justice had occurred because of that, and the conviction of the accused may have been set aside.

The case illustrates how strict is the duty of disclosure imposed on the DPP or other prosecutorial authority in the interests of ensuring a fair trial of an accused person.

Read the Judgement in full