A fault in the monitoring system that records emergency phone calls has thrown at least one court case into jeopardy and could have implications in future court proceedings, according to a lawyer.

Defence lawyer Saul Dismont claims that defendants before the courts may be able to get the charges against them thrown out if their defence relies on information that would have been contained in an emergency phone call recording. In the absence of such evidence, he argues, a fair trial cannot be assured.

The system that records calls to 911, including police, has been out of order for more than a month, leaving one man unable to obtain information allegedly relevant to his court case that normally would have been available.

In an e-mail exchange, the man, who asked for anonymity because of his pending court case, formally requested from the Commissioner of Police information that would have been retained by the monitoring system after making two calls to 911 and two calls to the police operations number one morning last month. However he was told such information could not be provided because of a failure in the monitoring system.

Confirming the system failure, a police spokesman said that after installing a new recording system in December last year, further problems arose.

The spokesman said: “[A] fault was subsequently discovered in the new system, which means that we cannot currently record incoming telephone calls. We are currently evaluating options including engaging new vendors to resolve the problem.”

The system failure will not have any effect on the ability of emergency services to respond to calls, according to police.

“The prosecution has a duty to disclose all relevant evidence,” said Mr Dismont.

A precedent-setting decision by a UK magistrate in 2001 found that in cases where there “has been a breach of the obligation to obtain and/or retain the relevant material, it will be necessary to decide whether the defence has shown, on a balance of probabilities, that owing to the absence of the relevant material, the defendant would suffer serious prejudice to the extent that a fair trial could not take place.”

In 2004 the European Court of Human Rights upheld the magistrates’ decision, ruling that “the right to a fair trial would only be violated as a result of the destruction of evidence where the loss of evidence put the defendant at a disadvantage compared with the prosecution”.

If the lack of such evidence would put a defendant at a disadvantage compared with the prosecution, said Mr Dismont, ‘natural justice’ cannot take place.

“The court could find — where it’s relevant to somebody’s defence that 911 recordings have been lost, or there’s been a failure to disclose them to the defence — that could be a breach of ‘natural justice’”, he said. “Everybody expects a fair hearing and a right to a fair trial, against bias.”

Police would not say how long the system has not been operational, however almost a month after originally filing his request, the man said he had yet to receive the relevant information, calling the situation a case of “police department incompetence affecting legal cases”.

“I still have not gotten a list of police officer names with whom I spoke with, and provided call times and numbers for, 20 days after I sent the request to the Commissioner of Police,” he said.

Requests for comment by the Department of Public Prosecutions had not been returned by press time.