4.1 New South Wales does not have a legislative regime requiring general pre-trial disclosure in criminal trials. The position varies in other jurisdictions. England and Victoria have both implemented statutory regimes requiring general pre-trial disclosure by the prosecution and the defence, while disclosure is required in criminal trials in the Supreme Court of Western Australia by rules of court. This chapter examines the existing law in New South Wales, the reforms undertaken in other jurisdictions, the policy arguments for and against compulsory pre-trial disclosure and contains the Commission’s proposals at this stage for reform of pre-trial disclosure.
PRE-TRIAL DISCLOSURE IN NEW SOUTH WALES
4.2 Pre-trial disclosure in New South Wales is regulated by a combination of common law rules, legislation, guidelines issued by the Director of Public Prosecutions, rules issued by the Bar Association and the Law Society and standard practice directions issued by the Supreme Court of New South Wales.
Common law
4.3 There is no general common law right to discovery by either party in criminal trials in Australia.1 The prosecution is not generally required to provide the defence with copies of statements of persons whom the prosecution does not intend to call as witnesses, even if the statements could provide the defence with relevant evidence.2 However, it is considered good practice to disclose this type of material.3 At common law, courts have a discretion to require disclosure in particular cases on the ground of fairness, and in particular cases non-disclosure can amount to a miscarriage of justice.4
4.4 The defence can also subpoena the prosecution to provide material in relation to the investigation and prosecution of the charge, including witness statements.5 Subpoenas are limited to material which has a bona fide evidentiary purpose and can be challenged on the basis they do not.6 In deciding whether to uphold the subpoena, the court must consider whether there is a legitimate forensic purpose in the production of the documents sought by the defence. In assessing whether there is a legitimate forensic purpose in criminal cases, the test is whether it is “on the cards” that the documents would materially assist the defendant.7 Subpoenas cannot be used to achieve one-sided discovery against the police or as a delay tactic.8 An initial decision to refuse access to documents is open to review during the course of the trial.9
4.5 The subpoena procedure can reveal a significant amount of information about the prosecution case. However, the full potential of this mechanism is rarely realised. In New South Wales, legal aid is not generally available to finance preparation for committal proceedings.10 This significantly limits defence resources for pursuing disclosure via subpoenas. Further, the subpoena procedure cannot assist the defence to obtain material if it is unaware of its existence.11
4.6 The defence may seek further and better particulars. The prosecution is required to disclose such particulars as are necessary to reasonably inform the defence of the charges the defendant faces.12
4.7 If the prosecution intends to call a witness at trial who was not called at the committal, the defence should be given sufficient notice and a copy of the relevant witness statement.13 There is no corresponding duty on the defence to give notice to the prosecution at the committal of the issues it intends to raise at trial or the nature of the defence.14
Legislation
4.8 The common law is modified by statutory disclosure requirements in relation to alibi evidence in trials for indictable offences.15 The defence must give written notice of particulars of intended alibi evidence, including the names and addresses of proposed witnesses or, where the defence does not have this information, information which might assist the prosecution to locate the witness, to the Director of Public Prosecutions within 10 days of the committal. This obligation continues to apply where the defence obtains further information about the identity or location of alibi witnesses after complying with the initial requirement.
4.9 If this requirement is not fulfilled, the proposed alibi evidence cannot be introduced without the leave of the court.16 The New South Wales Court of Criminal Appeal has held that the prosecution is also entitled to cross-examine the defendant where the defence does not comply with this requirement until the last available opportunity.17
4.10 In murder trials, the defence is required to give notice of the defendant’s intention to raise the defence that he or she is not guilty due to substantial impairment by abnormality of mind.18 The defence is also required to disclose the names and addresses of proposed witnesses on this issue and particulars of their evidence.19 There is a prescribed form for giving notice,20 which must be given at least 35 days before trial.21 If these requirements are not fulfilled, the evidence cannot be introduced without the leave of the court.22
4.11 Similarly, if either party intends to lead evidence of tendency or coincidence, or first-hand hearsay evidence, that party must generally give advance notice of that intention.23
4.12 Legislation also requires that the prosecution serve a brief of evidence on the defendant for indictable offences in the Local Court. Since 30 March 1998, this requirement has been extended to include most summary offences and indictable offences tried summarily.24
Barristers’ and Solicitors’ Rules
4.13 The New South Wales Barristers’ Rules and the Law Society of New South Wales Solicitors’ Rules require that prosecutors disclose to the defence as soon as practicable all relevant material, including the names and means of locating potential witnesses. Disclosure is not required where it would seriously threaten the administration of justice or a person’s safety.25 In addition, a prosecutor who reasonably believes that evidence which the prosecution intends to use may have been illegally or improperly obtained must promptly inform the defence and make a copy of the evidence available to the defence.26
4.14 The Rules do not empower the courts to impose sanctions for non-compliance. To enforce the Rules, an aggrieved person must lodge a complaint with the Bar Association or Law Society. A disciplinary tribunal determines the complaint and is empowered to impose sanctions if it determines that the lawyer is guilty of professional misconduct.27
Prosecution Guidelines
4.15 The New South Wales Director of Public Prosecutions has issued guidelines for the conduct of all prosecutions and appeals by the Office of the Director of Public Prosecutions (“the DPP Guidelines”).28 The DPP Guidelines operate subject to law and to the Barristers’ Rules and the Solicitors’ Rules.29
4.16 The DPP Guidelines provide that prosecutors must make full disclosure to the defence of all facts and circumstances and the identity of all witnesses reasonably to be regarded as relevant to any issue likely to arise at trial. This extends to the disclosure of any statement by a witness that may be inconsistent with the witness’ intended evidence.30 Tactical considerations are not to be taken into account in assessing what material will be disclosed to the defence. The overriding interests of justice may require withholding of information. This will be rare and material should only be withheld with the approval of the Director or Deputy Director of Public Prosecutions. Prosecutors should not disclose sensitive material to the defence without first consulting with the police officer in charge of the case.31 Where the prosecution intends to lead evidence which appears on reasonable grounds to have been illegally or improperly obtained, the prosecutor must inform the defendant within a reasonable time.32
4.17 The DPP Guidelines also require extensive disclosure by police in matters referred by the Commissioner for Police to the Director of Public Prosecutions for prosecution. Police must notify the Director of Public Prosecutions of the existence of, and if requested disclose, all documentation, material and other information, including concerning any proposed witnesses, which might be relevant to either the prosecution or the defence.33
4.18 The DPP guidelines do not prescribe conduct.34 They do not have statutory force and do not empower the courts to impose sanctions for non-compliance.
Supreme Court Standard Directions
4.19 The Supreme Court has introduced Standard Directions for pre-trial disclosure in criminal trials.35 Under the Standard Directions, criminal matters committed for trial were originally fixed for mention before the list judge one month after the committal. Following the severe increase in the delay in hearing criminal trials in the Supreme Court, this now takes place approximately six months prior to the expected trial date. At the mention, the prosecution tenders a draft Crown case statement, which sets out the facts the prosecution proposes to prove at trial and the questions of law the prosecution considers likely to arise, invites the defence to admit particular facts and identifies matters considered suitable for informal proof.36 At the mention, the Court also ensures that the Crown brief (including witness statements) has been served on the defence.
4.20 At the listing callover, a timetable is set for disclosure of a list of proposed prosecution exhibits, copies of documentary exhibits, and, if necessary, an amended Crown case statement. A date for delivery of a defence response to the Crown case statement is also set. The defence response identifies facts which the defence will admit, additional questions of law identified by the defence, additional facts which the defence asserts require proof, matters considered suitable for informal proof and proposed prosecution exhibits which the defence objects to being tendered, stating the ground of objection. The Standard Directions also provide for disclosure of all psychiatric reports in cases involving psychiatric issues.
4.21 The Standard Directions do not have statutory force, are not part of the rules of court and are made only by consent. There is no penalty for non-compliance.
International law
4.22 The International Covenant on Civil and Political Rights (“the Covenant”) does not expressly impose disclosure obligations in criminal trials. However, the Covenant requires that those accused of committing criminal offences be guaranteed a fair trial, including adequate time and facilities for the preparation of the defence and communication with counsel.37 It has been suggested that this extends to access to prosecution material.38
OTHER JURISDICTIONS
4.23 The common law pre-trial disclosure rules discussed in paragraphs 4.3 to 4.7 above apply throughout Australia. All Australian jurisdictions have introduced legislative requirements for disclosure of particular types of evidence. Several jurisdictions have also implemented compulsory general pre-trial disclosure regimes. This section of this paper discusses these various requirements.
Victoria
4.24 Since 1993 in Victoria, a legislative pre-trial disclosure regime has operated in criminal trials in the County Court and the Supreme Court.39 This regime imposes mutual compulsory disclosure requirements, although a higher standard of disclosure is required of the prosecution. The defence is required to respond to the presentment by indicating which elements of the offence are admitted. Thereafter, the timetable for disclosure is set by the court at a pre-trial hearing. The prosecution must file in court and serve on the defence a case statement. This includes a summary of the facts and inferences the prosecution will seek to prove at trial, copies of prosecution witness statements, including expert witnesses, a list of exhibits the prosecution intends to produce, copies of documentary exhibits and statements of law the prosecution intends to rely on. The prosecution must also give the defence a reasonable opportunity to inspect prosecution exhibits.40
4.25 The defence is required to file and serve a defence response replying to the matters raised in the prosecution case statement, providing copies of expert witness statements and including statements of law the defence intends to rely on. The defence is not required to disclose the identity of its witnesses, other than expert witnesses.41
4.26 The consequences of non-compliance with the regime also differ for the prosecution and the defence. Non-compliance does not affect the admissibility of defence evidence, but the prosecution is not permitted to introduce evidence which was not disclosed in accordance with the regime, or departs from the disclosed prosecution case, without the leave of the court.42 The trial judge is permitted to comment on non-compliance and the parties may also comment, with the leave of the court, having regard to the relevance of the proposed comment and the likelihood of it producing a miscarriage of justice.43 The court can also award costs against the parties and their legal representatives personally for unreasonable non-compliance with the regime.44
4.27 The defence is also required to disclose intended alibi evidence to the prosecution.45 Notice must be given during the committal or in writing to the Director of Public Prosecutions on the day the defendant is committed for trial, or, if no committal is held, on the day the presentment is served on the defendant. The particulars required are similar to those required in New South Wales.46 If this requirement is not fulfilled, the proposed alibi evidence cannot be introduced without the leave of the court.47 The prosecution and the police are prohibited from communicating with proposed defence alibi witnesses in relation to the case, except in the presence and with the consent of the defendant’s legal representative. Contravention of this requirement constitutes contempt.48
4.28 One submission identified several problems with the operation of the Victorian regime, including inadequate funding of both the Victorian Office of Public Prosecutions and Legal Aid, the inexperience of legal practitioners with the regime and the failure of legal practitioners to accept the requirements of the regime due to a general culture of combat rather than co operation.49 The Australian Institute of Judicial Administration has also concluded that there are considerable problems with the regime, including defence exploitation of drafting deficiencies in the case statement, defence responses which consist of a global denial with no detail whatsoever, the inability of unrepresented defendants to comply and judicial reluctance to impose sanctions for non-compliance.50
Northern Territory, South Australia, Tasmania, Australian Capital Territory
4.29 Defence disclosure requirements also apply in respect of alibi evidence in trials for indictable offences in these jurisdictions.51 The defence is required to give written notice of particulars of intended alibi evidence to the Director of Public Prosecutions. The particulars are similar to those required in New South Wales.52 The period within which disclosure is required in these jurisdictions varies. In the Northern Territory and the Australian Capital Territory, it is within 14 days of the committal. In South Australia, it is within seven days of the committal. In Tasmania, disclosure is required within seven days of receiving notice of the requirement.53 In the Northern Territory, the Australian Capital Territory and Tasmania, if this requirement is not fulfilled, the proposed alibi evidence cannot be introduced without the leave of the court. In South Australia, leave is not required but non-compliance can be the subject of comment to the jury.
Western Australia
4.30 Since 1993, criminal trials in the Supreme Court of Western Australia have been the subject of a disclosure regime implemented by draft Criminal Practice Rules.54 The prosecution is required to provide the defence with a statement of facts and propositions of law on which it intends to rely and copies of prosecution witness statements.
4.31 The defence is required to provide disclosure by way of a statement indicating which facts alleged by the prosecution will be admitted and which facts will be disputed, the legal grounds of any defence which will be relied on and copies of statements of any expert witnesses who the defence proposes to call.
4.32 The trial judge is empowered to comment to the jury on non-compliance with any requirement of this regime, inviting the jury to draw inferences which are adverse to the party in default.
4.33 In criminal trials for indictable offences, the defence is also required by legislation to disclose intended alibi evidence to the prosecution.55 Fewer particulars are required in Western Australia than in other Australian jurisdictions, including New South Wales.56 Disclosure is required no later than 10 days before trial. If this requirement is not fulfilled, the court may adjourn the trial to enable the prosecution to investigate the alibi or adjourn the trial and discharge the jury.
Queensland
4.34 In criminal trials for indictable offences, the defence is required to disclose intended alibi evidence to the prosecution.57 Disclosure is required in the form of written notice of particulars of the alibi to the Director of Public Prosecutions. The particulars are similar to those required in New South Wales.58 Disclosure is required within 14 days of committal. If this requirement is not fulfilled, the proposed alibi evidence cannot be introduced without the leave of the court.
4.35 If either the prosecution or the defence intends to lead expert evidence at trial, they are required to give the other party written notice of the name and finding or opinion of the expert, followed by a copy of the expert report, as soon as practicable before the trial.59
United Kingdom
4.36 All alleged offences in England, Wales and Northern Ireland into which an investigation has commenced since 1 April 1997 are subject to a general, legislative pre-trial disclosure regime.60 This regime imposes compulsory pre-trial disclosure on both the prosecution and the defence, although a higher standard of disclosure is required of the prosecution. The prosecution is required to disclose any material to the defence which the prosecution considers might undermine the prosecution case.61 This is known as “primary disclosure”. Primary disclosure is required as soon as reasonably practical.62 The obligation on the prosecution to provide primary disclosure to the defence continues until the conclusion of the trial.63
4.37 In trials for indictable offences, where the prosecution undertakes primary disclosure, the defence is required to provide the court and the prosecution with a defence statement setting out the general nature of the defence and the matters which the defence will dispute, giving reasons. If the defence involves alibi evidence, particulars are required.64 The defence statement must be supplied within 14 days of the defence receiving primary disclosure from the prosecution, although the defence can apply to the court for an extension of this time limit.65
4.38 The prosecution is required to disclose any additional undisclosed material which might reasonably be expected to assist the case disclosed in the defence statement. This is known as “secondary disclosure”.66 Where the prosecution does not provide secondary disclosure, but the defence has reasonable cause to believe that the prosecution has material which might reasonably be expected to assist the defence case, the defence can apply to the court for an order for secondary disclosure.67 The regime requires unused prosecution material which is disclosed to the defence to be treated confidentially. Contravention of this requirement is a contempt of court.68
4.39 The court may stay the trial where it considers that the defendant has been denied a fair trial as a result of non-compliance with prosecution disclosure obligations.69 The court, or (with the leave of the court) the prosecution, is permitted to comment to the jury on non-compliance with the defence disclosure obligations, and the jury is permitted to draw such adverse inferences as it considers appropriate. Departure from the disclosed defence case and nominating inconsistent defences in the defence statement are both considered non-compliance with the pre-trial defence disclosure regime.70 However, a defendant cannot be convicted solely on the basis of non-compliance. 71
4.40 The legislation provides for a code of practice designed to ensure that all reasonable lines of inquiry in criminal investigations are pursued and that material obtained in the course of investigations is recorded and disclosed to the defence.72
4.41 One submission reported that this regime was generally supported by the vast majority of criminal barristers in England and Wales.73
4.42 If either the prosecution or the defence intends to lead expert evidence at trial, they must provide a copy of the expert’s witness statement to the other party as soon as possible.74 In Magistrates’ Courts, the right to disclosure of expert evidence can be waived.75 There is specific provision for non-disclosure due to the risk of intimidation of witnesses.76 Evidence not disclosed in accordance with the requirements cannot be introduced without the leave of the court.77
Serious fraud
4.43 In 1987, a separate scheme was established for the investigation, charging and trial of serious and complex fraud in England, Wales and Northern Ireland.78 This scheme empowers the trial judge to order that a preparatory hearing be held in relation to cases involving serious or complex fraud. At the preparatory hearing, the trial judge can make orders for pre-trial disclosure by both the prosecution and the defence. The prosecution can be ordered to supply the court and the defence with a case statement, setting out the principal facts and propositions of law relied on by the prosecution, and the prosecution witnesses and exhibits.79
4.44 If this is complied with, the judge can order the defence to supply the court and the prosecution with a defence response stating the general nature of the defence and the propositions of law relied on by the defence, the principal matters in the prosecution case statement which the defence disputes, and any objections taken by the defence.80
4.45 The court, or (with the leave of the court) a party, can comment to the jury on non-compliance with these requirements or departure from the disclosed case and the jury can draw such inferences as it considers proper.81 In a submission to the Royal Commission on Criminal Justice, the Serious Fraud Office argued that these sanctions were inadequate.82 The Australian Institute of Judicial Administration has concluded that there are significant problems with the regime which are similar to the problems identified with the Victorian pre-trial disclosure regime.83
4.46 The Australian Institute of Judicial Administration and Nader have both recommended that a pre-trial disclosure regime be introduced for complex trials in New South Wales.84
REFORM OF COMPULSORY PRE-TRIAL DISCLOSURE
4.47 The main arguments for introducing a general compulsory pre-trial disclosure regime in New South Wales are that disclosure would improve the efficiency of the criminal justice system and would be fairer to defendants and to the prosecution.
4.48 Compulsory prosecution pre-trial disclosure was recommended by the Royal Commission on Criminal Procedure,85 while both the Working Group on the Right to Silence86 and the Royal Commission on Criminal Justice87 proposed mutual disclosure regimes. The New South Wales Law Reform Commission has also previously proposed mutual pre-trial disclosure.88
Compulsory prosecution pre-trial disclosure
Arguments for disclosure
4.49 There are several critical decisions which the defendant is required to make before trial, the most fundamental being to decide how to plead. It is argued that compulsory prosecution pre-trial disclosure enables the defendant to properly evaluate the evidence in making this decision, ensuring that guilty pleas are based on the facts which can be proven. This is particularly important in a system where most criminal charges are resolved by way of guilty plea. 89
4.50 The next major decisions required of the defendant who decides to plead not guilty relate to preparation of the defence. It is argued that compulsory prosecution pre-trial disclosure would assist the defence to prepare for trial by ensuring that the defence was fully aware of the prosecution case it was required to meet,90 and by ensuring that the defence would have access to material which the prosecution held, but did not intend to use. The fairness of the trial requires that the verdict be reached in the light of all relevant and admissible evidence. The defence is in the best position to determine the relevance of such material to the defence case. However, it is extremely difficult for the defence to discover the existence of, or obtain access to, this type of material unless the prosecution is compelled to disclose it.91 O’Connor points out that the major miscarriages of justice revealed in England since the early 1990s resulted from non-disclosure by the prosecution of material which was inconsistent with the prosecution case.92
4.51 Another argument is that the police and prosecution have access to superior financial resources and investigations expertise to defendants. Requiring the prosecution pre-trial disclosure would compensate for the unfairness created by this inequality of resources.93 The Commission has previously recommended compulsory prosecution pre-trial disclosure on the basis that it redresses this imbalance to some extent.94
4.52 On the other hand, proponents of a mutual compulsory pre-trial disclosure regime justify compulsory prosecution pre-trial disclosure on the basis of reciprocity. It is argued that compulsory prosecution pre-trial disclosure would encourage voluntary defence pre-trial disclosure,95 or that compulsory defence disclosure requirements are far more likely to work in practice if the requirements also apply to the prosecution.96
4.53 It is also argued that compulsory prosecution pre-trial disclosure would improve the efficiency of the criminal justice system by discouraging defendants from contesting very strong prosecution cases.97
Arguments against disclosure
4.54 One argument against compulsory prosecution pre-trial disclosure is that it would provide the defence with an opportunity to tailor its case to meet the disclosed prosecution case, by fabricating evidence, procuring perjured testimony and intimidating prosecution witnesses.98
4.55 It is also argued that compulsory prosecution pre-trial disclosure rules would be misused by the defence to force the prosecution to comb through large amounts of material as a tactic to delay the trial,99 in the hope that the prosecution will be induced to withdraw the charges rather than have to disclose particular material,100 or simply in order to conduct a fishing expedition for potential defence evidence or lines of argument.101
4.56 It is also argued that disclosure of certain prosecution material would undermine the administration of justice. For example, information which reveals the identity of undercover police officers or informants would jeopardise their effectiveness and may well endanger their safety. Similarly, where the police suspect a defendant of involvement in organised crime, disclosure may jeopardise police operations into other offences or offenders.102 This problem can be addressed by providing for exemptions from disclosure, requiring limited disclosure which protects the sensitive aspect of such information, imposing confidentiality obligations in relation to disclosed information, restricting access to sensitive material to defence legal representatives and prosecuting perjury offences and offences relating to interference with witnesses.103 However, there is always a risk that this type of material may be disclosed, even where protective measures are in place.104
4.57 Another argument is that compulsory prosecution pre-trial disclosure would actually reduce efficiency because of the additional preparation costs, the cost of counsel settling disclosure and the additional judicial resources required to resolve disputes about disclosure.105 Prosecution authorities require adequate resources in order to properly meet disclosure obligations. One submission emphasised that this requires strong government commitment to provide financial support.106
Compulsory defence pre-trial disclosure
Arguments for disclosure
4.58 Several submissions argued that compulsory defence pre-trial disclosure would improve the efficiency of the criminal justice system by early identification of which issues were actually in dispute, so that the prosecution did not waste time and resources preparing evidence in relation to issues which the defendant did not dispute. This would make estimates of trial lengths more accurate, improving trial listing procedures. Resolving non-contentious issues before trial would also result in more efficient use of court time, the time of counsel and less inconvenience to witnesses whose evidence was not in dispute. Adjournments in response to unexpected developments in the course of the trial would be eliminated, also shortening trials. Finally, disclosure would discourage the pursuit of weak prosecutions, reducing congestion in the court system by reducing the number of trials.107
4.59 One submission also argued that since legislation and policy require considerable prosecution pre-trial disclosure, defence disclosure would place the parties on a more level playing field,108 although this argument is problematic in that it does not address the question of what level of disclosure is appropriate.
4.60 It is also argued that compulsory defence pre-trial disclosure would lead to more just trial outcomes by preventing the defence from taking the prosecution by surprise at trial, leading evidence which the prosecution could not reasonably have anticipated and did not have any opportunity to investigate. The Working Group on the Right to Silence concluded that in a “significant number” of cases defence pre-trial disclosure would have prevented ambush defences.109 It should however be pointed out that, for most cases, the issues to be raised are clear simply from the nature of the case itself and it will only be infrequently that an experienced Crown prosecutor will be unaware of or be unable to anticipate a defence. The real point here is that it may be a waste of time and resources to attempt to anticipate every defence which the circumstances might suggest.
4.61 The defendant will already be aware of the whole of the prosecution case and will have had adequate time for reflection and legal advice before being required to provide disclosure. This position could not be more different from the position of the defendant when questioned by police.
Arguments against disclosure
4.62 It is argued that requiring defence pre-trial disclosure would infringe several fundamental principles of our criminal justice system. Requiring the defendant to provide information about the defence case before trial would be inconsistent with the principle that the burden of proving the defendant’s guilt is on the prosecution, which is required to establish guilt without any assistance from the defendant. Compulsory defence pre-trial disclosure might also operate in practice as a form of compulsion on the defendant, inconsistent with the defendant’s privilege against self-incrimination. It is also argued that compulsory defence pre-trial disclosure would be inconsistent with the presumption of innocence.110 The Australian Institute of Judicial Administration has acknowledged that pre-trial defence disclosure would infringe these principles, but considered that a disclosure regime was still justified on the basis of efficiency.111 However, the Royal Commission on Criminal Justice concluded that compulsory pre-trial disclosure did not involve a breach of fundamental principles, because the only difference between pre-trial disclosure and advancing a defence at trial was timing.112
4.63 Another argument is that, like prosecution disclosure, compulsory defence pre-trial disclosure would impose an unacceptable burden on defence resources.113 The Working Group on the Right to Silence considered that any additional cost could well be offset by savings resulting from focusing the defence on the real issues in the case.114 One submission emphasised that legal aid organisations require adequate resources in order properly to meet disclosure obligations, again relying on government commitment.115 Other submissions argued that compulsory defence disclosure would amplify the effects of the unbalanced resources available to the prosecution and the defence.116 It is clear that it would be impossible for most unrepresented defendants to fairly and fully comply with compulsory defence pre-trial disclosure.117
4.64 Like compulsory prosecution disclosure, defence disclosure is criticised on the basis that it could lead to injustice by giving the prosecution an opportunity to tailor its case in response to the disclosed defence, or intimidate defence witnesses, or fabricate evidence.118 A related argument is that being contacted and questioned by police is itself an intimidating experience for many potential defence witnesses. Potential witnesses who have a criminal history, particularly those on bail or parole, may feel extremely vulnerable to the police.119 Again, in response to this argument it is argued that these criticisms can be adequately addressed by the protective measures discussed in paragraph 4.56 above. One submission argued that compulsory defence disclosure would promote less investigation by police in the initial stages of the criminal justice system.120
4.65 It is also argued that compulsory defence pre-trial disclosure may cause injustice because there may be reasons for departure from the disclosed defence at trial which are not the responsibility of the defendant, including errors by the defendant’s legal representatives, late briefing of counsel, different advice received by new solicitors or counsel, and changes in response to adjustments to the prosecution case. It is argued that it would be unfair to impose sanctions on the defence for non-disclosure in these circumstances.121
4.66 Finally, compulsory defence pre-trial disclosure is criticised on the basis that it is likely to be ineffective. Research into the limited existing defence disclosure requirements indicates judges are generally reluctant to impose sanctions for non-compliance with these requirements. It is argued that there is no reason to expect that a general disclosure regime would be more rigorously enforced by the judiciary.122
OPTIONS FOR REFORM
4.67 The Commission tends to the view at this stage that the arguments in favour of pre-trial disclosure discussed in paragraphs 4.49-4.53 and 4.58-4.61 above justify the introduction of compulsory disclosure in criminal trials in the District Court and Supreme Court. Despite the recent increase in the sentencing powers of the Local Court, the onerous nature of disclosure would not be appropriate in relation to short, relatively uncomplicated summary proceedings in the Local Court.
Compulsory prosecution pre-trial disclosure
4.68 The limited common law prosecution pre-trial disclosure obligations are already augmented by professional duties. The Commission considers that there is merit in the view that these duties require more formal recognition and reinforcement with appropriate sanctions. A legislative regime, unlike the existing Supreme Court Standard Directions, would have the advantage of providing enforceable consequences for non-compliance.
Material to be disclosed
4.69 The Commission tends to the view that the prosecution should be required to disclose its case and all relevant material which does not form part of its case to the defendant before trial. The following information would need to be disclosed:
- A summary of the conceptual nature of the prosecution case, including the acts alleged to be the foundation of the defendant’s criminal liability and the facts which the prosecution will rely on to establish the elements of the offence.
- The facts which the prosecution considers suitable for informal proof.
- The facts which the prosecution invites the defence to admit.
- A summary of the propositions of law which the prosecution intends to rely on at trial.
- The names and addresses of all persons who are able to give relevant evidence, including persons whom the prosecution does not intend to call as witnesses at trial. Where the person has made a statement, this would be required to be provided to the defendant. This would include copies of statements made by the defendant, co-accused, and expert statements and reports. The fact that particular prosecution witnesses have been given an indemnity would also be required to be disclosed. Copies of the criminal record of all persons able to give relevant evidence at trial should also be provided to the defence.
- A list of all exhibits the prosecution intends to produce at trial, and copies of all relevant documents, including documents which the prosecution does not intend to produce as exhibits at trial. Where it is not practical to provide copies, the prosecution would be required to give the defence an opportunity to inspect documents. The defence should also be afforded an opportunity to inspect all relevant real and personal property, including items which the prosecution does not intend to produce as exhibits at trial, and (subject to conditions ensuring their safekeeping) to conduct tests on such property.
- In addition to disclosure of this specific information, there would be a residual requirement that the prosecution disclose any other relevant information or object.
- The existing disclosure requirements in relation to evidence of tendency, coincidence and first-hand hearsay would be retained.
Timing
4.70 The prosecution would be required to provide pre-trial disclosure before the defendant is required to elect the mode of trial or plead to the charge, within a time frame to be established by Rules of Court.
4.71 The defence should be entitled to inspect evidence which the prosecution acquires after initial disclosure. Accordingly, the obligation to disclose all relevant information to the defendant would continue throughout the trial.
Unrepresented defendants
4.72 Unrepresented defendants would be informed of the right to prosecution disclosure and the defence disclosure obligations when first appearing before a court in connection with the charge. The extent of disclosure and its mode would need to be carefully controlled by the trial judge.
Protective measures
4.73 The prosecution would have a discretion to decline to disclose specific material, to provide limited disclosure, or to require that access to disclosed material be restricted to defence lawyers on the basis of the public interest in the circumstances of the case. The fact that the prosecution has exercised these discretions should be disclosed to the defence, with reasons. This requirement will ensure that the defence is aware of the existence of such material.
4.74 The courts would be empowered to review decisions by the prosecution to adopt these protective measures, and have the discretion to make orders in relation to disclosure on application by the prosecution, the defence, any other person, or of its own motion. Non-disclosure, limited disclosure or restricted access to disclosed prosecution material could be ordered. For example, where the court was satisfied that disclosure would lead to the risk of intimidation of prosecution witnesses by the defendant or the defendant’s associates, an order exempting the prosecution from disclosure of the material or restricting access to disclosed material to defence lawyers would be available. Similarly, where disclosure would reveal the identity of a police informant or undercover police officer, an order exempting the identifying material from disclosure may be appropriate. The courts would also have a residual discretion where disclosure would undermine the administration of justice for other reasons.
4.75 Where the defendant was unrepresented, this would be taken into account by the court in determining whether to make orders in relation to prosecution disclosure.
Confidentiality
4.76 The defence would be permitted to use the material in connection with the trial and also to the extent that the material has been revealed in open court. Apart from these permitted uses, the defence would not be permitted to use or disclose the material. Contravention of this requirement would constitute contempt.
Consequences of non-compliance
4.77 The prosecution would be prohibited from introducing evidence which was not disclosed as required, without the leave of the court. Alternatively, the court could grant the defence an adjournment to enable it to prepare for unexpected prosecution evidence. The trial judge would also be permitted to comment to the jury on the inferences which it was entitled to draw from non-disclosure. The defence would also be entitled to comment to the jury, although perhaps the leave of the court should be required. Of course, the extent of non-compliance and whether there is any justification in the circumstances of the case will be relevant. A voir dire, held without the jury present, may be an appropriate forum for the trial judge to examine the reasons for departure from the disclosed case and determine the consequences of non-compliance in the circumstances. The court should consider whether the prosecution applied for any orders in relation to the material which was not disclosed, and the reasons for refusal of any such application.
4.78 The reason for this approach, rather than the prescriptive approach of automatically excluding evidence which was not disclosed, is the Commission’s recognition of the need for flexibility in this context. The course of criminal trials is fluid, changing as new facts and issues arise, which can completely change the context of the evidence before the court.
4.79 In many situations, it would be inappropriate to exclude evidence on the basis of non-disclosure where the relevance of the evidence was not reasonably foreseeable before the trial. For example, in R v Lozano,123 the defendant was charged with several property offences. A prosecution witness, who had given a statement to police immediately after the commission of the offences and testified at the committal hearing, claimed at trial that she had no recollection of the relevant events. The Court of Criminal Appeal upheld the decision of the trial judge to grant leave to the prosecution to cross-examine the prosecution witness on the basis that she was an unfavourable witness.124 The unpredictable course of the prosecution evidence would make exclusion of the evidence ultimately given by the witness inappropriate in this situation.
Compulsory defence pre-trial disclosure
4.80 The Commission is presently minded to accept that the arguments in paragraphs 4.58-4.61 justify an increase in the level of defence pre-trial disclosure obligations. The main emphasis of the right to silence lies in a suspected person’s right to refuse to answer questions during the investigative stage, without adverse inference being drawn against the suspect from the exercise of that right,125 the need for which the Commission fully accepts at this stage notwithstanding the inroads which have been made in relation to that right overseas. The importance of the right to silence after the defendant has been committed for trial does not, however, rest upon the same basis as that which exists before the event. As Lord Mustill said in R v Director of Serious Fraud Office; Ex p Smith,126 few will dispute that the curtailment of the right to silence is indispensable to the stability of society; the issue is one as to where the line should be drawn, and the resolution of that issue must take into account the fact that the reasons for the right to silence at different stages are themselves different. The privilege against compulsory pre-trial disclosure of the nature of the defence case is of quite recent origin.127
4.81 At this stage, the Commission raises three options for further consideration. Option 1 would require the defence to disclose the expert evidence it intends to rely on at trial. Under option 2, the defence would be required to disclose expert evidence and the intention to raise certain defences. Under option 3, the defence would be required to disclose both expert evidence and the nature of the issues which will be litigated at trial.
Option 1: Disclosure of expert evidence
4.82 There have been many criticisms over the last few years at the increasing polarisation within the medical profession between those doctors who give evidence for the prosecution and those who give defence evidence. In practice, the prosecution is already obliged to provide the defendant with the reports of its experts so that defence counsel can obtain sufficient assistance from defence experts in order to cross-examine the prosecution’s experts. As stated in paragraphs 4.68, the Commission considers that there is merit in the view that this practice be reinforced by a legislative requirement. The Commission at this stage accepts that the Crown (prosecuting as it does on behalf of the community) should be placed in a similar position in relation to the cross-examination of the defendant’s experts. There cannot be a fair trial if the defence evidence is not properly tested. The Commission has already stated the need for such disclosure in relation to the partial defence of substantial impairment by abnormality of mind (diminished responsibility)128 and Parliament has enacted this obligation.129 Although substantial impairment by abnormality of mind is an affirmative defence in which the defendant bears the onus of proof, there is no difference in principle so far as concerns the desirability of the prosecution being able to properly test other defence expert evidence.
4.83 Under this option, the defence would be compelled to disclose the names and addresses of proposed expert witnesses, and copies of expert reports upon which the defence proposed to rely at trial. This requirement is a logical step from the existing defence disclosure requirements in relation to alibi evidence and the recently introduced requirement of disclosure of substantial impairment by abnormality of mind, which require disclosure of material which is only within the knowledge of the defendant and which the prosecution could not otherwise discover. This consideration applies equally to defence expert evidence.
4.84 Disclosure of the names and addresses of experts or copies of expert reports which the defence did not intend to use at trial would not be required. The defence would not be required to disclose the identities of witnesses other than expert witnesses.
4.85 Disclosure of expert evidence by the defence would be required at least 35 days before the commencement of the trial, reflecting the existing disclosure requirement for evidence of substantial impairment by abnormality of mind.130 The prosecution would be subject to the same confidentiality obligations as the defence in relation to disclosed material.131
4.86 The judge (and, with the leave of the court, the prosecution) would be permitted to comment that, in judging what weight should be afforded to defence evidence which was not disclosed as required, or which was inconsistent with the disclosed defence evidence, the jury should be permitted to take into account the non-disclosure or inconsistency. A voir dire, held without the jury present, may be an appropriate forum for the trial judge to examine the reasons for departure from the disclosed case and determine the consequences of non-compliance in the circumstances. However, it appears to the Commission that a defendant should not be able to be convicted solely on the basis of an adverse inference drawn under the court’s powers to sanction non-compliance with compulsory disclosure requirements.132 Consideration will need to be given as to how best to guarantee this.133 Non-disclosed evidence would not be admissible except with the leave of the court.
Option 2: Disclosure of expert evidence and the intention to raise certain ‘defences’
4.87 Under this option, the defence would be required to provide notice of the defendant’s intention to raise intoxication, provocation, duress or self-defence, in addition to the existing notice requirements in relation to alibi and substantial impairment by abnormality of mind defences. The Commission has already expressed the view that there are strong arguments in favour of compulsory defence disclosure that the issue of provocation is to be raised.134
4.88 The defence would also be required to disclose the expert evidence upon which it intended to rely at trial, as in option 1.
4.89 The consequences of non-compliance with the disclosure obligations raised in this option would be the same as the consequences of non-compliance set out in option 1.
Option 3: Disclosure of the issues which will be litigated at trial and expert evidence
4.90 This option would require the defence to disclose the general nature of the issues to be raised at trial - whether by denial of the elements of the charge or by way of exculpation. The Commission does not, at this stage, consider that the level of disclosure proposed in this option should extend to specific responses to the particular facts and inferences listed in the Crown case statement. For example, the defence would be required to disclose whether the defendant disputes that he or she did the physical act alleged by the prosecution as an ingredient of the offence charged, whether the defence intends to challenge the admissibility of admissions alleged by the prosecution to have been made, the general nature of the objection to be taken, and whether issues such as intoxication, duress, self-defence or provocation are to be raised. This list is intended to be illustrative only and not exhaustive.
4.91 At this stage, the Commission does not accept that it would be appropriate that the defendant be compelled to provide the prosecution with copies of the statements of proposed defence witnesses. The purpose of disclosure is not to qualify the prosecution’s responsibility for proving its case, but to permit trials to proceed expeditiously and the prosecution to concentrate on the real issues.
4.92 The Commission considers that restricting the required disclosure to the identification of issues recognises the very different position between the prosecution and the defence so far as resources are concerned.
4.93 The principal justification for this option is the argument that the community (on whose behalf the Crown prosecutes) can no longer afford the luxury of defendants simply putting the Crown to proof of its case (where there is no real reason to dispute much of it) and having the right to raise issues for the first time during the trial itself when the Crown will have either no opportunity or only an inadequate opportunity to investigate those issues. This is far less an incursion upon the right to silence than that which Parliament has permitted by questioning under compulsory powers by various special investigative bodies.135 The Commission does not at this stage support any extension of those powers generally in the investigative stage.
4.94 If compulsory pre-trial disclosure of the general nature of the defence is required, the defendant will not be personally interrogated (the position of the unrepresented defendant is left to one side for the moment). The whole of the prosecution case will already have been disclosed to the defendant at the time when such disclosure is required, even the statements of its witnesses. The defendant will have had adequate time for reflection, with the benefit of legal advice, upon the material disclosed by the prosecution before having to nominate the issues to be litigated at the trial. The position of the defendant at this stage could not be more removed from that which he or she is in when being interrogated by the police. There is no legitimate prejudice suffered by the defendant in requiring disclosure of the defence at this later stage. The only advantage which will be lost is that of surprise.
4.95 The defence would also be required to disclose the expert evidence upon which it intended to rely at trial, as in option 1.
4.96 The consequences of non-compliance with the disclosure obligations raised in this option would be the same as the consequences of non-compliance set out in option 1.
4.97 Unrepresented defendants are a special case. Where the defendant is unrepresented, the obligation of disclosure should be imposed upon him or her only by order of the court in the particular case, when the court will be in a position to investigate with the unrepresented defendant whether modified disclosure would be appropriate. The fact that the absence of representation results from the defendant’s own choice would be relevant to determining the extent of disclosure which would be appropriate.
4.98 A satisfactory regime of compulsory defence disclosure would require timely and adequate legal representation. It is very doubtful whether, in legally aided cases, the significant additional burden of compliance with disclosure obligations could be adequately undertaken having regard to the present level of funding. The likely prospect of increased numbers of unrepresented defendants is a further significant obstacle to efficient trial processes. These issues must be resolved if real, as distinct from merely theoretical, advances in efficiency can be made. It is likely that the extra cost of the provision of additional legal representation will ultimately save costs in relation to the trial.
FOOTNOTES
1. Maddison v Goldrick [1976] 1 NSWLR 651; R v Saleam (1989) 16 NSWLR 14; 39 A Crim R 406; R v Wesley (1990) Tas R 256; Sobh v Police Force of Victoria (1994) 1 VR 41; Carter v Hayes (1994) 16 SASR 451; 72 A Crim R 387.
2. R v Lawless (1979) 142 CLR 659; 26 ALR 161. Contra In Re Van Beelan (1974) 9 SASR 163 at 248-249 per the Full Court; R v Perry (No 1) (1981) 27 SASR 166; R v Easom (1981) 28 SASR 134 at 148; 4 A Crim R 171 at 186 per Wells J, Full Court; Gouldham v R [1970] WAR 119 at 122 per Virtue SPJ; at 133 per Wickham J.
3. R v Lawless (1979) 142 CLR 659; 26 ALR 161.
4. Jamieson v The Queen (1992) 60 A Crim R 68, (prosecution did not disclose to defence that prosecution witness had been granted a limited immunity. On the facts, the trial had not miscarried); R v CPK (NSW Court of Criminal Appeal, No 60330/94, 21 June 1995, unreported) (prosecution failure to disclose psychiatric reports to defence resulted in miscarriage of justice); Carew v Carone (1991) 5 WAR 1 (prosecution failure to disclose identity of witness to defence did not result in a miscarriage of justice on the facts); Clarkson v DPP [1990] VR 745; J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice (Butterworths, Sydney, 1994) at 190.
5. Alistair v The Queen (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14; 39 A Crim R 406; Hunter and Cronin at 190.
6. Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 at 503 per Barr AJ.
7. R v Saleam (1989) 16 NSWLR 14 at 17-18; 39 A Crim R 406 at 409 per Hunt J, with whom the other members of the Court agreed; Attorney-General (New South Wales) v Stuart (1994) 34 NSWLR 667 at 681 and 682-684 per Hunt CJ at CL with whom Studdert J agreed.
8. R v Saleam (1989) 16 NSWLR 14 at 17 and 19; 39 A Crim R 406 at 410 per Hunt J, with whom the other members of the Court agreed; Attorney-General (New South Wales) v Stuart (1994) 34 NSWLR 667 at 681 per Hunt CJ at CL with whom Studdert J agreed.
9. R v Saleam (1989) 16 NSWLR 14 at 18; 39 A Crim R 406 at 409 per Hunt J, with whom the other members of the Court agreed.
10. Hunter and Cronin at 190. Legal aid is available in this situation in murder cases.
11. Hunter and Cronin at 199.
12. King v The Queen (1986) 161 CLR 423; R v Saffron (1988) 17 NSWLR 395 at 447-448.
13. R v Pearson [1953] QWN 18; R v Devenish [1969] VR 737 at 739 per the Full Court; In Re Van Beelan (1974) 9 SASR 163 at 248-249 per the Full Court; R v Russell-Smith (1981) 35 ACTR 31; 51 FLR 42; R v Utanis (1982) 29 SASR 592; 5 A Crim R 315.
14. R v Birks (1990) 19 NSWLR 677 at 689; 48 A Crim R 385 at 396; Petty v The Queen (1991) 173 CLR 95 at 102; 55 A Crim R 322 at 325; 102 ALR 129 at 132-133; 65 ALJR 625 at 627 per Mason CJ, Deane, Toohey, McHugh JJ; (1991) 173 CLR 95 at 110; 55 A Crim R 322 at 331; 102 ALR 129 at 138-139; 65 ALJR 625 at 630 per Brennan J.
15. Crimes Act 1900 (NSW) s 405A, inserted by the Crimes and Other Acts (Amendment) Act 1974 (NSW) s 8(a).
16. There is English authority that where the English version of this requirement is not complied with, the proper course it to permit the defence to provide late notice and to grant the prosecution an adjournment to enable the alibi to be investigated: R v Cooper (1979) 69 Cr App R 229.
17. Lattouf v The Queen (1980) 2 A Crim R 65 at 73-74 per Street CJ, with whom Moffit P and Cantor J agreed.
18. Crimes Act 1900 (NSW) s 23A, 405AB(1).
19. Crimes Act 1900 (NSW) s 23A, 405AB(2).
20. Crimes (General) Regulations 1995 (NSW) Schedule 1, form 4.
21. Crimes (General) Regulations 1995 (NSW) r 4A.
22. Crimes Act 1900 (NSW) s 405AB(1).
23. Evidence Act 1995 (NSW) s 67, 97, 98.
24. Justices Act 1902 (NSW) Part 4 Division 1 subdivision 7A (indictable offences); Division 2 subdivision 6A (summary offences).
25. Law Society of New South Wales Solicitors’ Rules (“Solicitors’ Rules”), r A66; New South Wales Barristers’ Rules (“Barristers’ Rules”), r 66. The Solicitors’ Rules provide that disclosure is not required where the prosecutor reasonably believes that the threat could not be avoided by conditional disclosure such as obtaining an undertaking from defence counsel not to disclose the material to the defendant or any other person: r A66. Prosecutors must also consider whether non-disclosure could prejudice the defence and whether the charge to which the material relates should be withdrawn or replaced with a lesser charge: r A66A.
26. Solicitors’ Rules, r A67; Barristers’ Rules, r 67. Under the Solicitors’ Rules, the prosecutor must also inform the defence of the reasons for believing that the evidence may have been obtained illegally or improperly: r A67.
27. New South Wales Law Reform Commission, Scrutiny of the Legal Profession: Complaints Against Lawyers (Report 70, 1993) at paras 2.19 and 2.20.
28. Office of the Director of Public Prosecutions, New South Wales, Prosecution Guidelines, December 1995, furnished pursuant to the Director of Public Prosecutions Act 1986 (NSW) s 13.
29. DPP Guidelines, Introduction.
30. The requirement of the Solicitors’ Rules that the means of locating prospective witnesses be disclosed (Rule A66) may be satisfied by making the witness available to the defence where possible. Addresses and telephone numbers of witnesses will not generally be supplied to the defence.
31. DPP Guidelines, Appendix D. See also DPP Guidelines, Guideline 7.
32. DPP Guidelines, Guideline 14. See Barristers’ Rules (Rule 67) and Solicitors’ Rules (Rule A67); para 4.13.
33. DPP Guidelines, Appendix D.
34. DPP Guidelines, Introduction.
35. Standard directions dated 25 March 1994. See also J Wood, “The Changing Face of Case Management: The New South Wales Experience” (1995) 4 Journal of Judicial Administration 121 at 140-142; H Figgis, Dealing With Court Delay in New South Wales (New South Wales Parliamentary Library Research Service Briefing Paper No 31/96, Sydney, 1996) at 20 and 27-30.
36. Under a proposed practice note, the Crown case statement would be required to state the conceptual nature of the Crown case rather than each fact the prosecution proposes to prove at trial.
37. International Covenant on Civil and Political Rights Art 14(3)(b).
38. S Bronitt and M Ayres, “The Administration of Criminal Justice and Human Rights Law: A Legal Practitioner’s Guide” in D Kinley (ed), Human Rights in Australian Law: Practice and Potential (forthcoming, Federation Press, 1998) at 8; Law Society of the Australian Capital Territory, Submission at 4.
39. Crimes (Criminal Trials) Act 1993 (Vic) s 3.
40. Crimes (Criminal Trials) Act 1993 (Vic) s 8, 9, 10.
41. Crimes (Criminal Trials) Act 1993 (Vic) s 4, 11.
42. Crimes (Criminal Trials) Act 1993 (Vic) s 15.
43. Crimes (Criminal Trials) Act 1993 (Vic) s 15.
44. Crimes (Criminal Trials) Act 1993 (Vic) s 19.
45. Crimes Act 1958 (Vic) s 399A and 399B. This requirement is imposed separately from the general pre-trial disclosure regime: Crimes (Criminal Trials) Act 1993 (Vic) s 11(3)(c).
46. See para 4.8.
47. Crimes Act 1958 (Vic) s 399A.
48. Crimes Act 1958 (Vic) s 399B.
49. C Corns, Submission at 2.
50. C Corns, Anatomy of Long Criminal Trials (AIJA, Victoria, 1997) at 62-65; K Mack and S Roach Anleu, Pleading Guilty: Issues and Practices (AIJA, Victoria, 1995) at 125.
51. Criminal Code (NT) s 331; Criminal Code (Tas) s 368A; Crimes Act 1900 (ACT) s 406; Criminal Law Consolidation Act 1935 (SA) s 285C. In South Australia, disclosure is not required if the substance of the alibi was disclosed at the committal.
52. See para 4.8.
53. Except for the offence of maintaining a relationship with a minor, where notice must be given after committal but before the close of the prosecution case at trial.
54. The Hon DK Malcolm AC, Chief Justice of the Supreme Court of Western Australia, Submission at 6-7.
55. Criminal Code (WA) s 636A.
56. See para 4.8.
57. Criminal Code (Qld) s 590A.
58. See para 4.8.
59. Criminal Code (Qld) s 590B.
60. Criminal Procedure and Investigations Act 1996 (Eng). The provisions of this Act are modified in their application to Northern Ireland: see s 79 and Schedule 4.
61. Criminal Procedure and Investigations Act 1996 (Eng) s 3.
62. Criminal Procedure and Investigations Act 1996 (Eng) s 3, 13.
63. Criminal Procedure and Investigations Act 1996 (Eng) s 9.
64. Criminal Procedure and Investigations Act 1996 (Eng) s 5. A defence statement can also be provided for offences which are tried summarily, but this is voluntary: s 6. Note that the Criminal Procedure and Investigations Act 1996 (Eng) s 74, 80 repeal the previous alibi evidence disclosure requirements in the Criminal Justice Act 1967 (Eng) s 11.
65. Criminal Procedure and Investigations Act 1996 (Eng) s 5, 12; Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 (Eng) r 2-5.
66. Criminal Procedure and Investigations Act 1996 (Eng) s 7.
67. Criminal Procedure and Investigations Act 1996 (Eng) s 8.
68. Criminal Procedure and Investigations Act 1996 (Eng) s 17, 18.
69. Criminal Procedure and Investigations Act 1996 (Eng) s 10.
70. Criminal Procedure and Investigations Act 1996 (Eng) s 11.
71. Criminal Procedure and Investigations Act 1996 (Eng) s 23; Criminal Procedure and Investigations Act 1996 (Eng) s 10.
72. Criminal Procedure and Investigations Act 1996 (Code of Practice) (No 2) Order 1997 (Eng).
73. The Hon DK Malcolm AC, Chief Justice of the Supreme Court of Western Australia, Submission at 5.
74. Crown Court (Advance Notice of Expert Evidence) Rules 1997 (Eng) r 3; Magistrates’ Courts (Advance Notice of Expert Evidence) Rules 1997 (Eng) r 3.
75. Magistrates’ Courts (Advance Notice of Expert Evidence) Rules 1997 (Eng) r 3(2).
76. Magistrates’ Courts (Advance Notice of Expert Evidence) Rules 1997 (Eng) r 3(4).
77. Magistrates’ Courts (Advance Notice of Expert Evidence) Rules 1997 (Eng) r 5.
78. Criminal Justice Act 1987 (Eng); Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988; see para 3.25.
79. Criminal Justice Act 1987 (Eng) s 9.
80. Criminal Justice Act 1987 (Eng) s 9.
81. Criminal Justice Act 1987 (Eng) s 10.
82. G Santow, “Corporate Crime: Complex Criminal Trials — A Commentary” (1994) 5 Current Issues in Criminal Justice 274 at 287; M Aronson, Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure (AIJA, Victoria, 1992) at 40.
83. Corns, Anatomy of Long Criminal Trials at 55-56; Aronson at 40; Mack and Roach Anleu at 124-125; Director of Public Prosecutions (Cth), Annual Report (1992-1993) at 92; Santow at 287; see para 4.28.
84. Aronson, chapter 2; J Nader, Submission to the Honourable Attorney General Concerning Complex Criminal Trials (1993) at 37-53.
85. Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981) at paras 8.12-8.23.
86. Working Group on the Right to Silence, Report of the Working Group on the Right to Silence (London, 1989) at paras 92-116.
87. Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London, 1993) at 84-100.
88. New South Wales Law Reform Commission, Criminal Procedure: Procedure from Charge to Trial: A General Proposal for Reform (Discussion Paper 13, 1986) at 9-32; Criminal Procedure: Procedure from Charge to Trial: Specific Problems and Proposals, Volume 1 (Discussion Paper 14, 1987) at paras 4.89-4.100.
89. Royal Commission on Criminal Procedure at para 8.12; Mack and Roach Anleu at 87, 112.
90. C Corns, Submission at 2; New South Wales Law Reform Commission (1987) at 95.
91. Royal Commission on Criminal Procedure at para 8.18; New South Wales Law Reform Commission (1987) at paras 4.2, 4.6, 4.7, 4.58, 4.59, 4.65, 4.66; “Disclosure and Disequilibrium” (Editorial) in [1995] Criminal Law Review 585 at 586; Mack and Roach Anleu at 90; A Zuckerman, “Bias and Suggestibility: Is There an Alternative to the Right to Silence?” in D Morgan and G Stephenson (eds), Suspicion and Silence: The Right to Silence in Criminal Investigations (Blackstone Press, London, 1994) at 118; P O’Connor, “Prosecution Disclosure: Principle, Practice and Justice” [1992] Criminal Law Review 464 at 473.
92. O’Connor at 464.
93. O’Connor at 464; Mack and Roach Anleu at 87; McIlkenny v The Queen (1991) 93 Cr App R 287 at 312.
94. New South Wales Law Reform Commission (1987) at para 4.66.
95. Royal Commission on Criminal Procedure at para 8.23.
96. Working Group on the Right to Silence at para 93.
97. Working Group on the Right to Silence at para 93; Royal Commission on Criminal Justice at 97; New South Wales Law Reform Commission (1987) at paras 4.6, 4.60, 4.62-4.64; Mack and Roach Anleu at 87, 111-112; Crimes (Criminal Trials) Act 1993 (Vic) s 1; Nader (1993) at 37-38.
98. New South Wales Law Reform Commission (1987) at para 4.70; O’Connor at 471. O’Connor notes that this argument is not relevant in relation to material which the prosecution does not intend to use as evidence.
99. R v Saleam (1989) 16 NSWLR 14 at 19; 39 A Crim R 406 at 410.
100. Royal Commission on Criminal Justice at 93.
101. “Disclosure and Disequilibrium” at 589; R v Saleam (1989) 16 NSWLR 14 at 17; 39 A Crim R 406 at 408.
102. Royal Commission on Criminal Justice at 93; New South Wales Law Reform Commission (1987) at para 4.70; Committee of Inquiry into the Enforcement of Criminal Law in Queensland, Report of the Committee of Inquiry into the Enforcement of Criminal Law in Queensland (1977) at paras 300-301; “Disclosure and Disequilibrium” at 585; Santow at 285.
103. New South Wales Law Reform Commission (1987) at para 4.70; Mack and Roach Anleu at 112; “Disclosure and Disequilibrium” at 585; Committee of Inquiry into the Enforcement of Criminal Law in Queensland at paras 300-301; Crimes Act 1900 (NSW) Part 7 chapters 2 and 3.
104. Royal Commission on Criminal Justice at 93.
105. Royal Commission on Criminal Justice at 95; Corns, Anatomy of Long Criminal Trials at 53-54; Aronson at 61.
106. C Corns, Submission at 2.
107. C Corns, Submission at 2; DS Shillington, Submission at 1; J Jarratt, Submission at 2; The Hon DC Malcolm AC, Chief Justice of the Supreme Court of Western Australia, Submission at 3-4; B Bright, Submission at 2; B Kennedy, Submission at 2; Royal Commission on Criminal Procedure at para 8.12; Working Group on the Right to Silence at para 108; Royal Commission on Criminal Justice at 97; New South Wales Law Reform Commission (1987) at paras 4.2, 4.6, 4.60, 4.62-4.64, 5.10-5.14; Mack and Roach Anleu at 87, 122; Corns, Anatomy of Long Trials at 112-113; Crimes (Criminal Trials) Act 1993 (Vic) s 1; Nader (1993) at 37-38; Fraud Trials Committee at para 6.72; J Fife-Yeomans, “Accused ‘Should Disclose Defence’” The Australian (24 March 1998) at 6; J Fife-Yeomans, “Lawyers Agree Silence no Longer Golden in Courtroom” The Australian (25 March 1998) at 4.
108. J Jarratt, Submission at 2.
109. Working group on the Right to Silence at para 101 and see paras 20, 93; E Elms, Submission at 2; B Kennedy, Submission at 2; New South Wales Law Reform Commission (1987) at para 5.11; Royal Commission on Criminal Procedure at para 8.22; Royal Commission on Criminal Justice at 97; see para 3.45. However, one submission argued that the defence was entitled to surprise the prosecution at trial: R Williams, Submission at 2.
110. R Williams, Submission at 4; Marsdens, Attorneys, Solicitors and Barristers, Submission at 3; Royal Commission on Criminal Procedure at paras 8.12, 8.20; Working Group on the Right to Silence at para 92; New South Wales Law Reform Commission (1987) at paras 4.64, 4.69, 5.1, 5.15; 5.42; Royal Commission on Criminal Justice, dissent by Zander at 221; S Greer, “The Right to Silence, Defence Disclosure and Confession Evidence” (1994) 21 Journal of British Law and Society 102 at 107 and 109; T O’Gorman, “Right to Silence”, paper presented at session 24 of the 30th Australian Legal Convention, (Melbourne, 18-21 September 1997) at 24; Mack and Roach Anleu at 125; Corns, Anatomy of Long Trials at 112-113; G Black, “The Right Defence” [1989] Legal Action 9; S Greer and R Morgan (eds), The Right to Silence Debate (Bristol and Bath Centre for Criminal Justice, 1990) at 16 and 20; R Sallman, Report on Criminal Trials (AIJA, Victoria, 1985) at para 4.101.
111. Mack and Roach Anleu at 125; Corns, Anatomy of Long Trials at 112-113.
112. Royal Commission on Criminal Justice at 97-98.
113. Working Group on the Right to Silence at paras 92, 102; Royal Commission on Criminal Justice, dissent by Zander at 222-223; New South Wales Law Reform Commission (1987) at para 4.67; Mack and Roach Anleu at 125.
114. Working Group on the Right to Silence at para 108.
115. C Corns, Submission at 2.
116. A Arfaras, Submission at 3; B Hocking and L Manville, Submission at 20; Working Group on the Right to Silence at para 92.
117. Corns, Anatomy of Long Criminal Trials at 63; Santow at 286.
118. R Williams, Submission at 2; A Arfaras, Submission at 3; Working Group on the Right to Silence at para 92; Royal Commission on Criminal Justice at 98; New South Wales Law Reform Commission (1987) at para 5.16; O’Gorman at 25.
119. New South Wales Law Reform Commission (1987) at para 5.16.
120. A Arfaras, Submission at 3.
121. Marsdens, Attorneys, Solicitors and Barristers, Submission at 3; Royal Commission on Criminal Justice at 100; Mack and Roach Anleu at 125.
122. Royal Commission on Criminal Justice, dissent by Zander at 222-223; Greer (1994) at 107 and 109; Mack and Roach Anleu at 125; New South Wales Law Reform Commission (1987) at para 5.40; Corns, Anatomy of Long Criminal Trials at 53-55; Aronson at 61.
123. R v Lozano (NSW Court of Criminal Appeal, No 60487/96, 10 June 1997, unreported).
124. Evidence Act 1995 (NSW) s 38.
125. See, for example, Lam Chi-ming v The Queen [1991] 2 AC 212 at 221.
126. R v Director of Serious Fraud Office; Ex p Smith [1993] AC 1; [1992] 3 WLR 66.
127. R v Director of Serious Fraud Office; Ex p Smith [1993] AC 1 at 31, 42; [1992] 3 WLR 66 at 74, 85 per Lord Mustill.
128. New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility (Report 82, 1997) at para 3.102.
129. See para 4.10.
130. See para 4.10.
131. See para 4.76.
132. R v Cowan [1995] 4 All ER 939 at 949; 3 WLR 818 at 829; R v Condron (England, Court of Appeal, 4 November 1996, The Times); R v OGD (NSW Court of Criminal Appeal, No 60480/96, 3 June 1997, unreported) at 15-17.
133. See Criminal Justice and Public Order Act 1997 (Eng) s 38(3).
134. New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide (Report 83, 1997) at para 2.160.
135. See para 3.12.
