The placing of the decision about the disclosure of exculpatory evidence to the accused in the hands of the prosecutor is based in the concept of the prosecutor as a 'minister of justice,' who can be trusted to ensure that justice is done; however, the High Court has recently emphasized that a criminal trial is an adversary process, with the prosecutor's role being that of obtaining a conviction. This calls into question the view of the prosecutor as a minister of justice. While some claim that the balance of advantage in the adversarial system lies with the accused because of due process rights, the nature of the formal investigative powers and the forensic resources available to the prosecution counter any advantage for the accused. Evidence-gathering powers, however, can be brought into balance through the process of criminal discovery. The non-disclosure of exculpatory evidence undermines this balancing process. A formal mechanism must be introduced which establishes for the accused a legally enforceable right to disclosure. The type of material to be disclosed must be defined as precisely as possible, and any right of the prosecution to invoke exceptions to disclosure, whether based on Crown privilege or public policy, should be subject to judicial scrutiny and appeal. Ultimately, the responsibility to ensure that an accused's right to a fair trial is respected lies with appeal courts. By avoiding a proper analysis of prosecutorial non-disclosure, the High Court has given the impression of being unduly pragmatic at the expense of procedural fairness. Fifty-seven notes are provided.