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Pre-trial Disclosure Imposed on Complex Criminal Trials

This paper was written by Chrissa Loukas
Public Defender


'Anyone who loves the law or sausages should not enquire too deeply into how either are made'.
Otto von Bismarck 1815-98


INTRODUCTION
Common Law
The traditional common law rule is that there is no right to discovery in criminal trials. Prosecution non disclosure, however, can result in a miscarriage of justice.

All Directors of Public Prosecutions in Australia have issued guidelines dealing with disclosure by prosecutors to the defence.

At present pre-trial disclosure by criminal practitioners in New South Wales is regulated by a combination of:

  • The common law.
  • The Prosecution Policy and Guidelines of the NSW DPP and the Commonwealth DPP.
  • The Rules of the Law Society and the Bar Association respectively.
  • Some statutory provisions, for example the provisions in the Justices Act requiring service of briefs, and the alibi notice provisions and those relating to the defence of
  • substantial impairment.
  • The Practice Directions of the Supreme Court.

PRE-TRIAL DISCLOSURE IN OTHER JURISDICTIONS
Victoria
The Crime (Criminal Trials) Act 1999 (Vic) contains a number of new pre-trial procedures for the Victorian Supreme and County Courts.

The defence is required to file and serve a defence response to the prosecution disclosure outlined in the Act.

Amongst other provisions the trial judge, and with leave of the court, the other party, can comment to the jury on non disclosure or departure from the disclosed case. Crimes (Criminal Trials) Act 1999 (Vic) s16(1).

The Crimes (Criminal Trials) Act 1999 (Vic) replaces an earlier reciprocal disclosure regime. The earlier regime was 'not widely used ... and criticised by judges and commentators.'  Right to Silence, Report of the NSW Law Reform Commission; p87. Inadequate legal aid funding, inexperienced legal practitioners and the combative culture of the legal profession were factors cited to explain its ineffectiveness. Right to Silence, Report of the NSW Law Reform Commission, p87..

England, Wales, Northern Ireland
As a result of the Criminal Procedure and Investigations Act 1996 (UK) England, Wales and Northern Ireland are now subject to a reciprocal pre-trial disclosure regime.

Some commentators have argued that the prosecution disclosure requirements under the Act are less onerous than the previous common law. Law Reform Commission Report, op cit, p91.

The court may stay a trial where it considers that the defendant has been denied a fair trial as a result of non disclosure. CPIA. S10.

The English High Court of Justice has indicated that late prosecution disclosure does not, on its own, constitute an abuse of process unless it involves such delay that the defendant is denied a fair trial. R v Stratford Justices [1999] ENJ 356; IDPP v Melten [1999] ENJ 566

United States
The American Bar Association now supports reciprocal disclosure and consequently reciprocal disclosure regimes have expanded at the state level. Law Reform Commission Report: Right to Silence, p97.

NSW LAW REFORM COMMISSION REPORT - THE RIGHT TO SILENCE - JULY 2000
The issue of the right to silence including mandatory defence disclosure was referred to the NSW Law Reform Commission in August 1997. In May 1998, the Commission produced a Discussion Paper on 'The Right to Silence'. In July 2000 the Commission produced its final report.

The Report covers three main issues regarding the right to silence:
A. The suspect's right to remain silent when questioned by the police;
B. Pre-trial disclosure duties; and
C. The defendant's right to remain silent at the hearing or trial.

RECOMMENDATIONS
Briefly, the Commission recommended that the current right to silence regarding accused persons when questioned by police or at hearing and trial remain.

A. The suspect's right to remain silent when questioned by the police
The current position in NSW is that suspects are entitled to remain silent when questioned by police. Under s.89 of the Evidence Act 1995, which substantially reflects the common law position, adverse inferences must not be drawn from the defendant's failure or refusal to answer questions put in the course of official questioning.

Recommendation 1 of the Report recommends that s.89 be retained in its current form.

B. The defendant's right to remain silent at the hearing or trial
Currently defendants may give evidence at trial but cannot be compelled to do so. Under s.20 of the Evidence Act 1995, the trial judge and any party other than the prosecutor may comment to the jury on the defendant's election not to testify, but must not suggest the defendant failed to testify due to his or her guilt.

Recommendation 14 provides that the present law should be retained, subject to recommendation 15, which provides for the removal of the prohibition on prosecution comment regarding the defendant's election not to testify at trial. Under this recommendation, the prosecution would have to obtain the court's leave before making a comment to the jury. Leave could be granted subject to conditions on the content of the proposed prosecution comment. This recommendation has not been taken up in the legislation.

C. Pre-trial disclosure duties
Recommendations 2-13 of the Report provide for increased levels of pre-trial disclosure in criminal trials.

These recommendations formed the basis for the Criminal Procedure Amendment (Pre-Trial Disclosure) Act.

There are, however, variations between the Law Reform Commission Report recommendations on pre-trial disclosure and the legislation. For example, the legislation does not take up the recommendation that 'the defendant disclose the general nature of the case he or she proposes to present at trial' nor does the legislation take up the Law Reform Commission recommendation of 'disclosure requirements for the Local Court'.

CRIMINAL PROCEDURE AMENDMENT (PRE-TRIAL DISCLOSURE) ACT 2001
In January 1999, a joint statement was released by the Premier of New South Wales, Bob Carr and the then Attorney General, Jeff Shaw QC: 'Overhaul of Criminal Trial Process - Defence required to outline its case before trial'.

The Pre-Trial Disclosure Bill 2000 was introduced by the Attorney General, Bob Debus on 16 August 2000. It was assented to on 18 April 2001. It is due to commence on 1 September 2001.

Pre-Trial Disclosure - Case Management (s47A)
The purpose of the Act is to enable the court on a case by case basis to impose pre-trial disclosure requirements on both the prosecution and the defence in order to reduce delays in complex criminal trials. Section 47A

In the Second Reading Speech for the Bill the Attorney General emphasised that pre-trial disclosure provisions do not alter or qualify the fundamental principle that it is the Crown's responsibility to prove the accused's guilt beyond a reasonable doubt.

The Attorney General also emphasised that
'Pre-trial disclosure carries significant benefits for the parties involved in a case, the courts and the criminal justice system generally. It enables the parties to focus on issues that are in contention, rather than having to prepare evidence in relation to issues that are not in dispute. This will result in the more efficient use of court time, the time of counsel and less inconvenience to witnesses whose evidence would not in any event be challenged. Adjournments in response to unexpected developments in the course of a trial would be minimised.' NSW PD, (Hansard Proof; Legislative Assembly) 16 August 2000 p.73.

Court may order pre-trial disclosure in particular case (S47C)
It is important to note that pre-trial disclosure is not mandatory in every case. The District Court or the Supreme Court may order pre-trial disclosure after the indictment is presented if the court is satisfied it will be a complex criminal trial having regard to certain factors (see s47c(2)) and if the court is satisfied that the accused person will be represented by a legal practitioner.

Section 47C provides:
(1) After the indictment is presented in any criminal proceedings, the court may order both the prosecuting authority and the accused person to undertake pre-trial disclosure in accordance with this Division.
(2) The court may order pre-trial disclosure only if the court is satisfied that it will be a complex criminal trial having regard to:
(a) the likely length of the trial, and
(b) the nature of the evidence to be adduced at the trial, and
(c) the legal issues likely to arise at the trial.
(3) The court may order pre-trial disclosure on application of any party or on the court's own initiative.
(4) The court may order pre-trial disclosure only if the court is satisfied that the accused person will be represented by a legal practitioner.
(5) The court may limit pre-trial disclosure to any specified aspect of the proceeding.

Pre-trial disclosure regime (S47D)
The pre-trial disclosure regime consists of:

(a) pre-trial disclosure of the case for the prosecution;
(b) pre-trial disclosure of the defence's response to the case for the prosecution;
(c) pre-trial disclosure of the prosecution's response to the response by the defence. S47D

Time within which indictment to be presented (s 54)
As already mentioned, the pre-trial disclosure regime applies only to complex trials in the District Court or Supreme Court. Additionally, however, under the legislation the prosecution must present an indictment within four weeks after the committal of the accused person for trial; Section 54(2). This of course, applies in all matters in the District or Supreme Court, not just complex criminal trials.

The time within which the indictment is to be presented may be extended by the regulations, rules of the relevant court or by order of the court.

Amendment of indictment (s63A)
An indictment may not be amended after it is presented except with the leave of the court or the consent of the accused.

Sanctions for non-compliance with pre-trial disclosure requirements (s47O)
Where pre-trial disclosure requirements are not complied with, the Court may exercise certain sanctions which operate as an incentive for both parties to comply. These sanctions include the following:

(1)Exclusion of evidence
The court may refuse to admit evidence in any criminal proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with pre-trial disclosure requirements.

(2)Dispensing with formal proof
The court may allow evidence to be adduced by a party to criminal proceedings without formal proof of a matter if the evidence was disclosed to the other party and the other party did not disclose an intention to dispute or require proof of the matter as required by the pre-trial disclosure requirements.

(3)Adjournment
The court may grant an adjournment to a party if the other party seeks to adduce evidence in the criminal proceedings that the other party failed to disclose information in accordance with pre-trial disclosure requirements that would prejudice the case of the party.

(4)Comment to jury
The judge or, with the leave of the court, any party may comment on a failure by a party to comply with pre-trial disclosure requirements in any criminal proceedings. However, the comment must not suggest that an accused person failed to comply because the accused person was, or believed that he or she was, guilty of the offence concerned.


Application of sanctions
The powers of the court in applying sanctions may not be exercised to prevent an accused person adducing evidence or to comment on any non-compliance by the accused person unless the prosecuting authority has complied with the pre-trial disclosure requirements: S47O(5)

It is important to note in relation to the application of sanctions that no comment by the prosecutor on the non-compliance by the accused will be allowed unless the prosecution has complied with its pre-trial disclosure obligations.

Disclosure of case for prosecution (s47E)
The notice of the case for the prosecution is to contain the following:
(a) a copy of the indictment,
(b) an outline of the prosecution case,
(c) copies of statements of witnesses proposed to be called at the trial by the prosecuting authority,
(d) copies of any documents or other exhibits proposed to be tendered at the trial by the prosecuting authority,
(e) if any expert witnesses are proposed to be called at the trial by the prosecuting authority, copies of any reports by them that are relevant to the case,
(f) a copy of any information in the possession of a prosecuting authority that is relevant to the reliability or credibility of a prosecution witness,
(g) a copy of any information, document or other thing provided by police officers to the prosecuting authority, or otherwise in the possession of the prosecuting authority, that may be relevant to the case of the prosecuting authority or the accused person, and that has not otherwise been disclosed to the accused person,
(h) a copy of any information, document or other thing in the possession of the prosecuting authority that is adverse to the credit or credibility of the accused person.

DEFENCE RESPONSE SECTION 47F

1. The notice of the defence response is to contain the following:
(a) notice as to whether the accused person proposes to adduce evidence at the trial of any of the following contentions:
(i) insanity,
(ii) self-defence,
(iii) provocation,
(iv) accident,
(v) duress,
(vi) claim of right,
(vii) automatism,
(viii) intoxication.
(b) if any expert witnesses are proposed to be called at the trial by the accused person, copies of any reports by them proposed to be relied on by the accused person,
(c) the names and addresses of any character witnesses that are proposed to be called at the trial by the accused person (but only if the prosecution has given an undertaking that any such witness will not be interviewed before the trial by police officers or the prosecuting authority in connection with the proceedings without the leave of the court),
(d) the accused person's response to the particulars raised in the notice of the case for the prosecution (as provided for by subsection (2)).

2. The accused person's response to the particulars raised in the notice of the case for the prosecution is to contain the following:
(a) if the prosecuting authority disclosed an intention to adduce expert evidence at the trial, notice as to whether the accused person disputes any of the expert evidence and which evidence is disputed,
(b) if the prosecuting authority disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecuting authority to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,
(c) notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecuting authority,
(d) if the prosecuting authority disclosed an intention to tender at the trial any transcript, notice as to whether the accused person accepts the transcript as accurate and, if not, in what respect the transcript is disputed,
(e) notice as to whether the accused person proposes to dispute the accuracy of admissibility of any proposed documentary evidence or other exhibit disclosed by the prosecuting authority,
(f) notice as to whether the accused person proposes to dispute the admissibility of any other proposed evidence disclosed by the prosecuting authority and the basis for the objection,
(g) notice of any significant issue the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges.

Prosecution response to defence response section 47G
The notice of the prosecution response to the defence response is to contain the following:
(a) if the accused person has disclosed an intention to adduce expert evidence at the trial, notice as to whether the prosecuting authority disputes any of the expert evidence and, if so, in what respect,
(b) if the accused person has disclosed an intention to tender any exhibit at the trial, notice as to whether the prosecuting authority proposes to raise any issue with respect to the continuity of custody of the exhibit,
(c) if the accused person has disclosed an intention to tender any documentary evidence or other exhibit at the trial, notice as to whether the prosecuting authority proposes to dispute the accuracy of admissibility of the documentary evidence or other exhibit,
(d) notice as to whether the prosecuting authority proposes to dispute the admissibility of any other proposed evidence disclosed by the accused person, and the basis for the objection,
(e) a copy of any information, document or other thing in the possession of the prosecuting authority, not already disclosed to the accused person, that might reasonably be expected to assist the case for the defence,
(f) a copy of any information, document or other thing that has not already been disclosed to the accused person and that is required to be contained in the notice of the case for the prosecution.

Court may waive pre-trial disclosure requirements (s47I)
The Court may also by order, waive any of the pre-trial disclosure requirements. The Court may make such an order on its own initiative and also on the application of the prosecution or defence.

MISCELLANEOUS PROVISIONS (S47P)
Pre-Trial Disclosure not an admission
A statement about any matter that is made by or on behalf of the accused person for the purposes of complying with the pre-trial disclosure requirements does not constitute an admission of that matter by the accused.

Immunities Section
Existing immunities do however apply despite the pre-trial disclosure regime, for example, legal professional or client legal privilege, public interest immunity and sexual assault communications privilege.

DISCLOSURE REQUIREMENTS ARE ONGOING SECTION 47H
The disclosure requirements are ongoing until the prosecution is terminated or the accused person is convicted or acquitted.

REQUIREMENTS AS TO NOTICES SECTION 47J
Include not only post and facsimile but also electronic mail but only if there has been agreement to such a course.

ALIBI
Section 48 of the Criminal Procedure Act is amended to provide that the relevant period is no longer than 10 days after committal but rather 21 days before the trial is listed for hearing.

COMMENCEMENT
The pre-trial disclosure provisions do not apply if the accused person was committed for trial before the commencement of the legislation.

REVIEW OF THE PRE-TRIAL DISCLOSURE PROVISIONS
The Act provides that the Attorney General is to review the pre-trial disclosure procedures 18 months after the commencement of the Section and that a report is to be tabled in each House of Parliament within 12 months after the end of the 18 month period.

AMENDMENTS TO OTHER ACTS
Amendment of Director Of Public Prosecutions Act1986: disclosures by investigating police officers (s15A)
A statutory duty is imposed on NSW police officers to disclose to the Director of Public Prosecutions. Police officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.

Additionally, police officers investigating alleged indictable offences have a duty to retain 'documents or other things (3).

Complete police disclosure to the prosecution is clearly critical to the success of a pre-trial disclosure regime.

Two matters that need to be examined on the subsequent review of this Act after 18 months are:
* possible sanctions for non-compliance by police officers; and
* possible extension of section to investigative officers of statutory bodies such as the Police Integrity Commission.

Amendment of Crimes (Sentencing Procedure) Act1999: power to reduce penalties for pre-trial disclosure (s22A)
The introduction of the Criminal Procedure (Pre-Trial Disclosure) Act has resulted in several consequential amendments to the Crimes (Sentencing Procedure) Act.

Courts may take into account a pre-trial disclosure in sentencing an offender. A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment, having regard to the degree to which the defence has made pre-trial disclosures for the purposes of the trial. (s22A(1))

Although, of course, a lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (s22A(2))

CONCLUSION: A SUMMARY OF KEY PROVISIONS

  • A statutory duty on NSW Police Officers investigating alleged indictable offences to disclose all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused.
  • A prosecution obligation to present an indictment within 4 weeks after the committal of the accused person, (subject to order of the court/regulations/rules of the court). An indictment may not be amended after presented except with leave of the court or consent of the accused.
  • The pre-trial disclosure amendments encompass not only defence pre-trial disclosure in complex cases but also a statutory duty of prosecution pre-trial disclosure in complex cases.
  • The purpose is to reduce delays in complex criminal trials (s47A).
  • Pre-trial disclosure orders can only be made in complex criminal trials (s47C).
  • The relevant factors in relation to complex criminal trials are:
    a) the likely length of the trial, and
    b) the nature of the evidence to be adduced at the trial, and
    c) the legal issues likely to arise at the trial.
  • Applies only to complex trials in the District Court or Supreme Court (s47B).
  • The pre-trial disclosure provisions prevail if inconsistent with common law, rules of court, rules of practice of Barristers or Solicitors and guidelines issued by the Director of Public Prosecutions (s47P).