On 1 October, 1971, the Illinois Supreme Court introduced new rules relating to criminal discovery. These rules provide for extensive discovery of the prosecution case⁸⁷ and give the prosecutor access to matters in the hands of the defence.⁸⁸ The State must generally disclose to defence counsel the information set out below and overleaf.

The names and last known addresses of the States’ witnesses must be disclosed, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements and a list of memoranda reporting or summarizing their oral statements. The requirement that the State furnish any substantially verbatim report of any oral statement is an enlargement of the American Bar Association Standards. The issue regarding production of these memoranda is raised initially by a defence motion alleging their existence with the request that they be produced and examined by the court in camera.

Any written or recorded statements must be disclosed as must the substance of any oral statements made by the accused or by a co-defendant, with a list of witnesses to the making and acknowledgment of such statements.

A transcript is required of grand jury minutes containing testimony of the accused and relevant testimony of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.

Any reports or statements of experts made in connection with the particular case are to be disclosed, including results of physical or mental examinations and of scientific tests, experiments or comparisons. The rule explicitly calls for the production of negative and positive results, although the requirement to disclose negative results seems superfluous in view of Brady v. Maryland⁸⁹ which punishes the failure of a prosecutor to provide information from his file tending to negate guilt or mitigate punishment.

Any books, papers, documents, photographs or tangible objects which the prosecuting attorney intends to use at the hearing or trial or which were obtained from, or belong to, the accused, must be disclosed.

Any record of prior criminal convictions which may be used for impeachment of the persons whom the State intends to call as witnesses at the hearing or trial is to be disclosed under the rules.

Disclosure is also required of any electronic surveillance, including wiretapping, of conversations to which the accused was a party, or of his premises.

Any material or information within the possession or control of the State, tending to negate the guilt of the accused or to support a reduced punishment should be disclosed. As noted above, this is an application of the doctrine in Brady v. Maryland.

Relevant material and information not covered by the rules must be discovered if so ordered by the court in its discretion.

Upon defence counsel’s request and designation of material or information, which would be discoverable if in the possession or control of the State, and which is in the possession or control of governmental instrumentalities, the State is required to make a bona fide effort to cause this material to be made available to defence counsel. If the State’s efforts are unsuccessful and the material or instrumentalities are subject to the jurisdiction of the court, the court may in its discretion use any of its inherent powers to ensure compliance with its orders.

Discovery is not a matter of right. It is initiated only on the presentation of a written motion. Moreover, the rules apply only to felony cases after an indictment or the filing of an information. The rules are not applicable in juvenile proceedings.

There are some matters not subject to disclosure. First, disclosure is not required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories, or conclusions of the State or members of its legal or investigation staffs. Second, disclosure of an informant’s identity is not required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Third, disclosure is not required where it involves a substantial risk of grave prejudice to national security and where a failure to disclose will not infringe the constitutional rights of the accused.

The court may also deny disclosure authorized by the rules if it finds there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, unnecessary annoyance or embarrassment resulting from the disclosure and outweighing any usefulness of the disclosure to counsel. For a long time the prime reason for denying discovery in the criminal area was the fear that discovery would be abused by unscrupulous defence counsel. It was argued that prosecution witnesses would be bribed or subjected to undue harassment or embarrassment. Discovery is regarded as an extraordinary remedy to be used only in the most exceptional circumstances.

The introduction of the new discovery rules has had four principal results.⁹⁰ First, there has been a dramatic speed-up in the time required to prepare a case for trial. Cases which used to take from 75 to 90 days to bring to trial can now be brought in no more than 45 days.

Second, the new rules have shortened the trial itself. Prior to the adoption of the rules Illinois did not require the prosecution to furnish the defence with a copy of any statements of witnesses until the witnesses had actually testified. Frequently, recesses to chambers were necessary after each prosecution witness testified in order to transfer his statement to the defence. Defence counsel had to be given time to read the statement before beginning his cross-examination. Where statements were lengthy or complicated the case might be recessed overnight, or a witness withdrawn from the stand and cross-examination postponed until defence counsel had fully digested the contents of the statement. Under the new rules defence counsel can begin his cross-examination immediately.

Third, an increase in the number of pleas of guilty has been noted since the adoption of the new rules. Conversely, in more cases a nolle prosequi has been filed by the State, or the charges have been dismissed. The rules have thus benefited both sides.

Fourth, plea bargaining has been more meaningful and productive because each side knows the other side’s evidence and can accurately evaluate its own case. A more realistic compromise may be achieved.

Caution must be exercised in interpreting these results. As noted above, new rules in Illinois, expanding discovery by the defence, were introduced at the same time as those requiring a more complete discovery of the prosecution case. The benefits described must therefore be seen as resulting from extensions in mutual discovery. Reservations must be held concerning the applicability of these results to New South Wales because, as I have argued elsewhere in this report,⁹¹ the type of discovery by the defence practised in Illinois would be anathema to the legal profession in New South Wales.

Nevertheless, I can say that, on the basis of my discussions about prosecutorial discovery, there is growing support for the proposition that broad discovery by the prosecution contributes greatly to the administration of criminal justice. I cannot support this proposition statistically; indeed, it is a very difficult matter to measure. However, numerous discussions in the common law countries, particularly the United States, leave me in no doubt that the criminal process works best when the prosecution puts all its cards on the table.

At present in New South Wales full discovery of the prosecution case, as a matter of right, occurs only in respect to offences tried on indictment. It is accepted that one of the primary purposes of committal proceedings is that they should give to the accused full notice, not only of the charge against him, but of the evidence which will be called to support the charge. The accused is always provided with a copy of the depositions taken at the committal. If the depositions do not disclose the whole of the prosecution case, it is the practice of the Clerk of the Peace to provide copies of the statements of additional witnesses prior to the trial.

Discovery of the prosecution case may occur in other ways. First, a magistrate during a committal, if satisfied that a request by defence counsel for the statements of prosecution witnesses has some legitimate forensic purpose, may direct that these statements be supplied in order that the accused may make “full answer and defence”.⁹² Second, whilst in a summary matter it is not usual practice for an accused person to be supplied with particulars of the offence charged, he is entitled to such particulars of the alleged offence as are reasonably necessary to enable him to defend himself.⁹³ Third, it is not uncommon for policemen or police prosecutors to allow solicitors or defence counsel to see copies of the statements of witnesses prior to trial. However, it is only in respect to offences tried on indictment that the accused is entitled to full discovery of the prosecution case prior to trial and, even then, discovery does not occur before the committal.

I now deal with some preliminary issues before coming to my recommendations about the widening of discovery by the prosecution in criminal cases.

One issue concerns the form in which the prosecution is to provide its evidence. The most satisfactory method of acquainting the accused with the case against him is by supplying him with copies of the statements of witnesses. An alternative method is to provide the accused with a written summary of the facts which the prosecution alleges against him. I have rejected this alternative. A statement of facts does not reveal the identity of the witnesses and this may be a matter of some importance to the defence.

Secondly, a statement of facts represents the prosecution’s appraisal of the evidence whereas the statements of the prosecution’s witnesses may, from the accused’s point of view, be capable of a different construction.

A third issue is that the preparation of a separate document, to serve as the statement of facts, is likely to involve more work for police than the making of an additional copy of the statements of prosecution witnesses. One objection advanced against additional criminal discovery is the extra burden that it places on the prosecuting authorities in preparing statements. My recommendations for additional discovery in New South Wales will not involve much additional work because they are confined to indictable offences and to the more serious summary offences where statements are already prepared; an extra copy is all that is required.

Of course, these statements must be edited to exclude irrelevant, inadmissible and prejudicial material. The necessity to edit the statements has been raised as another objection to the provision of statements to the defence, primarily because of the extra burden placed on the prosecuting authorities. Evidence before the James Committee on the extent to which it was necessary to edit statements for the purpose of committals under section 1 of the Criminal Justice Act 1967 (U.K.) was conflicting; in some areas most statements are edited, but in others it is found to be necessary only exceptionally.⁹⁴

My recommendation presupposes that the statements will be provided only at the request of the accused. In my view the provision of statements in most criminal cases in New South Wales will not be required. Police in New South Wales make regular use of a question-and-answer technique called a “record of interview”. In most criminal cases the accused admits his guilt and the record of interview records his admissions. Whether or not the accused signs the record of interview he is provided with a copy of the document. His legal representative, with the assistance of this document, is able to advise the accused about the wisdom of contesting the charges. It seems to me, therefore, that requests for statements of prosecution witnesses in advance of trial will be limited.

A second issue is the scope of criminal discovery. Impressions formed on my research tour suggest to me that, wherever discovery is to be made, it ought to be as complete as possible. I do not propose in this report to discuss this issue in detail, but it is my view that, where discovery is ordered, it should be full discovery of the prosecution case. Thus, in addition to the statements of prosecution witnesses, discovery may include the inspection of any books, papers, documents, photographs or tangible objects which the prosecution proposes to tender at the hearing or which were obtained from or belong to the accused.

A third issue concerns the means whereby the accused person is to receive copies of the statements. I suggest that in the interests of uniformity the court will inform the accused, when he first appears in court, of his right to have the statements. At the first hearing his solicitor or counsel will sign and hand to the magistrate a form requesting the prosecution’s statements. At the same time a copy will be served upon the police prosecutor. Some provision must be made for the magistrate to refuse the request if it is in the interests of justice to do so’ It may be that, in a rare case, the prosecution believes that the prosecution witnesses may be intimidated or that for some other reason it would be contrary to the interests of justice to provide the statements requested.

If the magistrate accedes to the prosecution’s request a summary of the facts contained in the statement will be served on the accused. If the magistrate, however, does accede to the accused’s request, he will direct that the statements be served within a certain time, say one week, and will fix a further date for plea or mention, say two weeks. The accused, with legal advice, will determine in the intervening period what course of action he proposes to take. In the event that he requests and is provided with statements, the prosecution will, without further application by the accused, serve upon him copies of any additional statements upon which it intends to rely. If the prosecution calls a witness whose statement has not been served, the accused may waive his right to the statement or obtain an adjournment to enable the statement to be served.

It now remains to determine to what offences should discovery by the prosecution, in the form described above, apply. In New South Wales there are three categories of criminal offences: those triable only on indictment; indictable offences triable summarily with the consent of the magistrate and of the accused; and summary offences.

Elsewhere in this report⁹⁵ I have recommended changes to committal proceedings. In short, I have proposed that a person may be committed for trial upon evidence contained only in written statements, without consideration of the evidence by the magistrates, provided that he is legally represented and consents to this procedure. The discussion which follows presupposes the introduction of this reform.

I recommend that full discovery be made in offences triable only on indictment. Of course, discovery is now made in respect to offences triable by indictment but, as noted above, my recommendation is that discovery may be requested and granted when the accused first appears before a Court of Petty Sessions; at present, discovery takes place during the committal proceedings. If discovery takes place at the outset, the accused, with legal advice, is able to make an informed decision on the best course of action available to him. He may decide: to plead guilty and be committed for sentence to the District Court or to the Supreme Court; or to plead not guilty and to request committal proceedings with one, some, or all of the witnesses present; or to plead not guilty and to consent to committal for trial on the basis of the prosecution’s statements and without consideration of the evidence by the magistrate.

If early discovery is to be made with offences triable only on indictment, it follows that discovery should be made in those indictable offences triable summarily with the consent of both the magistrate and of the accused. Indeed, there is an even greater need for early discovery of the prosecution’s case, in that the accused’s election has a bearing on whether the case proceeds to the higher courts. The James Committee, in considering the distribution of business between the Magistrates’ Courts and the Crown Court, did not claim that a greater measure of disclosure would have a pronounced effect on the distribution of business, but believed that it would make a significant contribution towards preventing cases being committed for trial unnecessarily.⁹⁶

My second recommendation, therefore, is that full discovery be made, at the outset, in those offences triable summarily with the consent of the magistrate and of the accused. If this were done the accused might make an informed decision on whether: to plead guilty and be committed for sentence; to plead guilty and request that the matter be dealt with summarily; to plead not guilty and request that one, some or all of the prosecution’s witnesses attend for cross-examination at the committal; to plead not guilty and consent to committal for trial on the basis of written statements; or to plead not guilty and request that the matter be dealt with summarily.

My third recommendation concerns discovery in cases triable summarily. In my submission there are a number of compelling reasons for discovery of the prosecution case in charges triable summarily.

First, whilst a minimal supply of particulars may occasion no injustice to a guilty person who may be presumed to know the precise circumstances in which the offence was committed, it is otherwise with an innocent person who lacks knowledge of the facts and circumstances of the alleged crime with which he is charged. Without this knowledge he will be unable to instruct his legal advisers properly or to take steps to marshal the evidence necessary to establish his innocence. The guilty are usually unlikely to be assisted by the disclosure of the nature of the case since, having committed the offence, they must have full knowledge of the crime. It follows that the procedure would be unlikely to facilitate the preparation of dishonest defences and interference with prosecution witnesses. This opinion is supported by the fact that this risk is already taken in all cases in which there is a committal for trial, without untoward results.

Second, the quality of advocacy suffers by reason of the disparity between summary trial and trial on indictment. The conduct of a defence by an advocate both in terms of presentation and cross-examination depends substantially for its effectiveness on careful prior consideration and decision. The barrister who conducts a defence in the higher courts has full knowledge in advance of the trial of the prosecution case, including details of the testimony and sight of the exhibits. When a barrister or solicitor is required to conduct a case before magistrates, he must formulate a policy and improvise his cross-examination whilst he is learning for the first time the evidence of the prosecution witnesses and whilst he is making his own record of it. Similarly, whilst the barrister in the higher court may prepare in advance of the trial objections on points of law or as to the admissibility of evidence with a general outline of his address to the court, all of these matters must be performed ex tempore by the solicitors and barristers in Courts of Petty Sessions.

Third, the prior communication to the accused of the case for the prosecution on summary trial would probably increase the number of pleas of guilty. One of the strongest impressions from my investigations overseas is that the revelation of the prosecution case at an early stage speeds the criminal process through its encouragement of guilty pleas. I think, too, that practitioners in the criminal jurisdiction in New South Wales are of the same opinion.

Finally, the current practice, by which the defence must depend not upon the rights of the accused but upon the goodwill of the police prosecutor, is inadequate. An unrepresented accused, or one whose legal adviser is persona non grata with a particular prosecutor, is subject to a substantial disadvantage. Surely, matters which affect so seriously the liberty of the individual should be matters of right, not of grace.

In my submission, the case for discovery of the prosecution case in summary matters is a strong one. I propose that the procedure for discovery be the same as that proposed for indictable offences. If, at the accused’s first court appearance,. the magistrate accedes to his request for copies of the prosecution’s statements, the magistrate fixes a date for compliance with his order and a further date for plea or mention, to enable the accused to determine his course of action.

However, my recommendation must be qualified in two ways. First, the proposal should be confined to the more serious of the summary matters. It would be absurd in trivial cases to impose upon police the responsibility of providing statements of the prosecution witnesses, or a summary of the facts. If the proposal were, however, to be confined to the more serious offences, the police need only make and supply an additional copy of statements already taken. Second, my proposal should not be implemented immediately. My recommendations concerning discovery in indictable offences would require substantial innovations, and it would be desirable to see how they work in practice. If they are generally acceptable and contribute to the disposition of criminal cases more efficiently an extension of discovery to summary offences might then be considered.

Footnotes

87. Rule 412.

88. Rule 413

89. 373 U.S. 83 (1963).

90. Strayhorn, “Full Criminal Discovery in Illinois: A Judge’s Experience”, (1973) 56 Judicature pp. 279, 280.

91. Heading XV.

92. Attorney General for N.S.W. v. Findlay (1976) 50 A.L.J.R. 637.

93. See Ex parte Grinham; Re Sneddon, (1961) 78 W.N. (N.S.W.), 203 at 204 and the authorities there cited.

94. Op. cit. note 76, para. 223.

95. Heading XII, pp. 53-55.

96. Op. cit. note 76, para. 212.