In Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620, Justice Ray Finkelstein, aka da Fink, sowed a seed for future courts to take up and declare that regulatory authorities bringing civil penalty proceedings should have the same duties as criminal prosecutors. Having cited the authority to say that they do not, his Honour said:
’35 A lay person might be forgiven for thinking that in the present context the distinction between civil and criminal proceedings is somewhat artificial and that in both kinds of proceedings the regulatory authority or prosecutor (as the case may be) is under a duty to ensure that the decider of facts (judge or jury) is best placed to arrive at the proper and just result.’
Then, with the judicial equivalent of biting sarcasm:
‘Perhaps the reason courts have rejected this approach is that in a criminal proceeding a conviction may result in imprisonment whereas in a civil penalty proceeding the worst that can happen is that the defendant’s career is ruined or his life is wrecked.’
His Honour continued:
’33 … The view I find attractive is that [information provided to a regulatory authority for the purpose of prosecuting a civil proceeding for a penalty] is public property to be made available to the defendant so that it can be used to ensure that justice will be done: R v Stinchcombe [1991] 3 SCR 326, 333. That is, I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused. Prosecutors are under a duty of disclosure. The principal purpose for the duty is to ensure that the accused is aware not only of the case in chief for the prosecution but also of all other evidence that bears on his guilt or innocence. In discharge of that duty the prosecutor is required to deliver to the accused, among other things, all witness statements, notes of interviews with witnesses, evidence from experts and so on: see eg Attorney-General (UK), Disclosure of Information to the Defence in Cases to be Tried on Indictment (1982) 74 Cr App R 302; R v Ward [1993] 1 WLR 619; Stinchcombe [1991] 3 SCR 326; R v Davis [1993] 1 WLR 613; Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657.’
