3.1 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. Other jurisdictions have implemented statutory regimes requiring extensive pre-trial disclosure by the prosecution and the defence, with a range of sanctions for non-compliance. This chapter examines the existing law in New South Wales, the position in other jurisdictions both in Australia and overseas, the policy arguments for and against pre-trial disclosure and the options for reform. It includes the Commission’s recommendations for reform of pre-trial disclosure in New South Wales.
PRE-TRIAL DISCLOSURE IN NEW SOUTH WALES
Common law
3.2 There is no general common law right to discovery by either party in criminal trials in Australia, although courts have a discretion to require disclosure on the ground of fairness, and in particular cases non-disclosure can amount to a miscarriage of justice.1
3.3 At common law the prosecution is required to disclose its intention to call a witness at trial who was not called at the committal, and to give the defence a copy of the relevant witness statement.2 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), although it is considered good practice to do so.3 A decision by the prosecution not to call a particular person as a witness can constitute a ground for setting aside a conviction if it gives rise to a miscarriage of justice.4
3.4 The High Court has emphasised that, at common law, a defendant has no obligation to disclose information about the defence to the Crown until the trial.5
Disclosure by police to the prosecution
3.5 One of the critical sources of pre-trial disclosure in New South Wales is a document issued by the New South Wales Office of the Director of Public Prosecutions, the DPP Prosecution Guidelines.6 The DPP Prosecution Guidelines provide that, in all matters prosecuted by the Office of the Director of Public Prosecutions, investigating police must disclose to the prosecutor all material and information in their possession relevant to the proof of the charge (the brief of evidence).7 Police are also required to identify, in the form of a written certificate, all other material and information of which they are aware which might be relevant to either the prosecution or the defence.8
3.6 Compliance with the DPP Prosecution Guidelines requires both initial and continuing assessment by investigating police of what is required to be disclosed. Disclosure of material which is identified by police as sensitive is referred to senior prosecutors and police officers for consideration.9 Breach of these requirements can be a ground for disciplinary action.
3.7 A majority of the judges, magistrates, legal practitioners and police prosecutors surveyed by the Commission for this reference reported a high level of compliance by investigating police with these requirements.10 However, the New South Wales Director of Public Prosecutions, Mr Nicholas Cowdery QC, has commented:11
All too often the required certificate is not provided; and even when obtained (as often emerges later and usually during the hearing) is inaccurate. Investigators in many cases still do not disclose all relevant material known to them, sometimes through incompetence or guile or a mixture of both – the old attitude of winning at all costs dies hard in some quarters – and sometimes because the relevance is not immediately apparent.
This latter problem is more likely to arise with limited testing of the prosecution case at committal.12
Prosecution disclosure
Service of briefs
3.8 The other most important component of pre-trial disclosure in New South Wales is the requirement under the Justices Act 1902 (NSW) that the prosecution serve a brief of evidence on the defence.13 This requirement applies in respect of most summary offences and indictable offences triable summarily.14 The brief of evidence consists of all prosecution witness statements, exhibits and all other documents relevant to the prosecution. The brief must be served at least 14 days before the hearing.15 Where proposed prosecution evidence is not served on the defence in accordance with these requirements, the Court can grant an adjournment16 or refuse to admit the evidence.17
Committal hearings
3.9 The committal hearing is a process where a magistrate examines the prosecution evidence and determines whether there is sufficient evidence to commit a defendant to trial in a superior court.18 Although the main purpose of committals is to act as a filtering process to identify and dispose of weak prosecution cases, it also provides an opportunity for the parties to identify and confine the issues to be dealt with at trial.19
3.10 Paper committals were first introduced in New South Wales in 1983. In 1987 they were made compulsory, subject to provision for cross-examination of witnesses where ordered by the magistrate. In 1992, further changes were made to the committal process with the inclusion of s 48EA in the Justices Act 1902 (NSW). Section 48EA (now repealed) required that the court be satisfied that special reasons exist before consenting to hear oral evidence by an alleged victim of a violent crime at a committal hearing.
3.11 In 1996, s 48EA was repealed and replaced with s 48E. Section 48E also provides that the court be satisfied that special reasons exist before consenting to hear oral evidence by an alleged victim of a violent crime at a committal hearing.20 In addition, under s 48E, substantial reasons in the interests of justice must be established before a witness other than a victim in an offence of violence is required to attend to give oral evidence during a committal hearing.21 The circumstances in which cross-examination of witnesses should be permitted under s 48E have been the subject of considerable judicial consideration.22 However, in practice s 48E is now more liberally construed and cross-examinations are more often permitted than earlier.
Barristers’ and Solicitors’ Rules
3.12 The New South Wales Barristers’ Rules and the Law Society of New South Wales Solicitors’ Rules (together “the Rules”) require prosecutors to disclose to the defence as soon as practicable all material which might be relevant to the guilt or innocence of the defendant, including the names and means of locating potential witnesses.23 Prosecutors who reasonably believe that proposed evidence may have been illegally or improperly obtained must promptly inform the defence and make a copy of the evidence available to the defence.24 Disclosure is not required, or can be restricted, where it would seriously threaten the administration of justice, or a person’s safety.25 In some cases, disclosure of particular evidence may be confined to the defendant’s legal representatives.
3.13 The Rules do not include a mechanism for the parties to resolve disputes about prosecution disclosure, or empower the courts to impose sanctions for non-compliance. To enforce the Rules, an aggrieved person must lodge a complaint with the Office of the Legal Services Commissioner, the Law Society of New South Wales or the New South Wales Bar Association.26 There is, however, no reason why the trial or appellate court could not investigate the consequences of a breach of the Rules in order to determine whether it has affected the fairness of the trial.27
DPP Prosecution Guidelines
3.14 The DPP Prosecution Guidelines also provide that prosecutors must disclose to the defence all facts and circumstances and the identity of all witnesses reasonably to be regarded as relevant to any issue likely to arise at trial.28 This extends to the disclosure of any statement by a witness that may be inconsistent with the witness’s intended evidence.29 Tactical considerations are not to be taken into account in assessing what material will be disclosed to the defence.30 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.31
3.15 The overriding interests of justice may require withholding of information, which requires the approval of the Director or Deputy Director of Public Prosecutions.32 This power is rarely exercised.33 Prosecutors should not disclose sensitive material to the defence without first consulting with the police officer in charge of the case.34
3.16 The DPP Prosecution Guidelines operate subject to law and to the Barristers’ Rules and the Solicitors’ Rules.35 They do not have statutory force and do not empower the courts to impose sanctions for non-compliance. The Supreme Court of New South Wales has held that decisions of prosecuting authorities on the conduct of prosecutions are not reviewable by the courts.36
3.17 A majority of the participants in the survey conducted by the Commission for this reference reported that prosecutors almost always complied with these pre-trial disclosure duties.37
Subpoenas
3.18 The defence can subpoena the prosecution to disclose material, including witness statements, which has a bona fide evidentiary purpose in relation to the investigation and prosecution of the charge.38 In deciding whether to uphold a subpoena, the test is whether it is “on the cards” that the documents would materially assist the defence.39 Subpoenas cannot be used to achieve one-sided discovery against the police or as a delay tactic.40 Thus the procedure is limited in that it can only be used where the defence is aware of the existence or potential existence of particular material which has not been disclosed. In New South Wales, legal aid is not generally available to finance preparation for or the conduct of committal proceedings.41 This also significantly limits defence resources for pursuing disclosure via subpoenas.
Defence disclosure
Alibi evidence
3.19 The common law rule that there is no right to discovery in criminal trials is modified by statutory disclosure requirements in relation to alibi evidence in trials for indictable offences.42 The defence is required to give written notice to the Director of Public Prosecutions 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. Notice is required within 10 days of the committal. This is a continuing obligation.
3.20 If this requirement is not satisfied, the proposed alibi evidence cannot be introduced without the leave of the court. Leave is by no means automatically granted, and the New South Wales Court of Criminal Appeal has declined to interfere in a number of cases where leave has been refused.43 The Court of Criminal Appeal has also held that, where the defence does not comply with this requirement until the last available opportunity, the prosecution is entitled to cross-examine the defendant about this delay.44 The Commission’s research suggests that, while alibi notices are generally given, the time frame for this requirement is not always met.45
Substantial impairment by abnormality of mind
3.21 In murder trials, the defence is required to notify the Director of Public Prosecutions of the defendant’s intention to raise the partial defence of substantial impairment by abnormality of mind, including the names and addresses of proposed witnesses on this issue and particulars of their evidence.46 Notice must be given at least 35 days before trial.47 If these requirements are not satisfied, the defence can only lead the relevant evidence with the leave of the court.48 The Commission’s research for this reference indicated that this requirement was always complied with in the small number of cases in which it applied.49
Defence opening address
3.22 Defence counsel are able to address the jury at the beginning of the trial, immediately after the prosecution opening address.50 The Commission has considered whether this should be made compulsory,51 but it is not persuaded that this is an appropriate time for compulsory defence disclosure. If disclosure is to improve the process, it must occur before the trial commences.
Reciprocal disclosure by the prosecution and the defence
Expert evidence
3.23 There is no requirement for pre-trial disclosure of expert evidence in criminal trials, except in relation to expert evidence about the defence of substantial impairment by abnormality of mind.52 However, a party who seeks to lead expert evidence using the certificate procedure under the Evidence Act 1995 (NSW) is required to disclose the evidence to the other party 21 days before the hearing.53
Tendency, coincidence and first-hand hearsay evidence
3.24 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.54
Supreme Court Practice Directions
3.25 In all Supreme Court trials, the Crown is required to disclose a statement of the Crown case, a list of prosecution witnesses and all witness statements before the arraignment.55 At the arraignment, the defence should inform the Court which facts asserted by the Crown are agreed, which facts are in issue, and which prosecution witnesses the defence intends to cross-examine.56 This practice note has not been effective in procuring disclosure. Although the Crown usually complies, it is effectively ignored by the defence in almost all trials. Having regard to the lack of sanctions and the character of the privilege of silence, this is not surprising. It is the experience of most Supreme Court judges that the more competent and experienced counsel are in any event likely to provide a high level of informal disclosure.
PRE-TRIAL DISCLOSURE IN OTHER JURISDICTIONS
3.26 The common law rule that there is no right to discovery in criminal trials, and the subpoena process described in paragraph 3.18, apply in all Australian jurisdictions. All Australian Directors of Public Prosecutions have issued guidelines dealing with disclosure by police to prosecutors and by prosecutors to the defence, and all jurisdictions in Australia have introduced statutory defence disclosure requirements relating to particular types of evidence. In Victoria and especially the United Kingdom, comprehensive and reciprocal statutory pre-trial disclosure requirements have been enacted.
Australia
Victoria
3.27 Reciprocal disclosure regime. The Crimes (Criminal Trials) Act 1999 (Vic), which commenced operation on 1 September 1999,57 establishes a number of new pre-trial procedures for the Victorian County and Supreme Courts.58 Under this Act, the presentment must be filed in all cases.59 The prosecutor is required to file and serve a summary of the prosecution opening address, together with a notice of pre-trial admissions, at least 28 days before trial.60
3.28 The defence is required to file and serve a defence response to these documents. The defence response must identify the acts, facts, matters and circumstances in the summary of prosecution opening with which issue is taken and the basis on which issues is taken, as well as what evidence identified in the prosecution notice of pre-trial admissions is agreed to be admitted without further proof, what evidence is in issue and on what basis issue is taken.61 The defence is also required to file and serve copies of expert witness statements at least 14 days before trial.62 Where either party intends to raise a question of law, the party must notify the court of this at least 14 days before trial.63 There is provision for the Court to resolve such questions on the basis of written submissions, where all parties agree.64
3.29 Evidence which was not disclosed as required under this Act, or which involves a substantial departure from the disclosed case, can be introduced at trial, but the leave of the court is required.65 The trial judge, and, with the leave of the court, the other party, can comment to the jury on non-disclosure or departure from the disclosed case.66 The Court may make costs orders for non-disclosure, departure from the disclosed case or where a party has unreasonably prolonged the trial, including orders against a party or a party’s legal practitioner.67 The Act also provides that the court can institute professional complaints against legal practitioners for non-disclosure.68
3.30 The trial judge can order that copies of the summary of the prosecution opening and the defence response, and the parties’ opening and closing speeches themselves, be given to the jury to help the jury understand the issues.69
3.31 The Crimes (Criminal Trials) Act 1999 (Vic) repeals an earlier, more extensive, reciprocal disclosure regime.70 The previous regime, which was not widely used, had been criticised by judges and commentators.71 One submission argued that inadequate funding of both the Victorian Office of Public Prosecutions and Legal Aid, the inexperience of legal practitioners and the combative culture of the legal profession are responsible for the problems with the previous Victorian regime.72
3.32 Alibi evidence. The defence is also required to disclose alibi evidence.73 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.74 If notice is not given, the evidence cannot be introduced without the leave of the court.75 Police and the prosecution 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.76
3.33 Pegasus Two initiative. A Supreme Court of Victoria criminal list practice direction provides for a pre-trial hearing, known as a “Pegasus Two Hearing”, before the commencement of every criminal trial.77 At the Pegasus Two Hearing, the parties exchange an agreed list of prosecution witnesses, a chronology of agreed facts, a list of issues to be resolved prior to the empanelment of the jury and an agreed statement of the legal elements of the charges and issues. The defence is also required to provide a statement of the matters admitted by the defendant. The practice direction notes that realistic preparation for trials will require that the counsel who actually appear at the trials attend the Pegasus Two Hearing.
Western Australia
3.34 Court of Petty Sessions Pilot. A pilot prosecution pre-trial disclosure regime is currently operating for summary prosecutions in the Perth Court of Petty Sessions. The Law Reform Commission of Western Australia, in its recently completed review of the criminal and civil justice system, noted that it received a number of submissions commenting on the success of this pilot.78
3.35 Alibi evidence. In criminal trials for indictable offences, the defence is required to disclose alibi evidence.79 Fewer particulars are required in Western Australia than in New South Wales and other Australian jurisdictions.80 Disclosure is required at least 10 days before trial. If this requirement is not satisfied, the court may adjourn the trial to enable the prosecution to investigate the alibi or discharge the jury.
3.36 Draft Criminal Practice Rules. Western Australia also has draft Criminal Practice Rules which establish a pre-trial disclosure regime for indictable offences. Under the draft Rules, the prosecution is required to file and serve a statement summarising the facts and legal propositions it proposes to rely on and copies of statements of all proposed prosecution witnesses. Where witnesses have not given statements, their identity and relevance to the prosecution case must be disclosed. The prosecution is also required to disclose its documentary evidence and provide the defence with a copy of the criminal history of the defendant. Disclosure of these matters is required to be disclosed as soon as is practicable.81
3.37 The draft Rules require the defendant to file and serve a statement disclosing any admissions, the defence attitude to the facts and law disclosed by the prosecution, any objections to the admissibility of documentary evidence and particular grounds upon which the defendant contends that he or she is not guilty. This statement must be filed and served within 28 days of filing and service of the prosecution disclosure statement.82 The defendant is also required to file and serve, as soon as practicable, copies of expert witness reports and documentary evidence.83 The Law Reform Commission of Western Australia has recommended that the Rules be incorporated into a statutory pre-trial disclosure regime.84
Northern Territory, South Australia, Tasmania, Australian Capital Territory
3.38 Defence disclosure requirements also apply in respect of alibi evidence in trials for indictable offences in these jurisdictions.85 The defence is required to give written notice of particulars of intended alibi evidence to the Director of Public Prosecutions.
The particulars required are similar to those required in New South Wales.86 The period within which disclosure is required in these jurisdictions varies. The Territories require disclosure within 14 days of the committal. In South Australia, disclosure is required within seven days of the committal. In Tasmania, disclosure is required within seven days of receiving notice of the requirement.87 In the Territories and Tasmania, if this requirement is not satisfied, the alibi evidence cannot be introduced without the leave of the court. In South Australia, non-compliance can be the subject of comment to the jury.
Queensland
3.39 In criminal trials for indictable offences, the defence is required to disclose intended alibi evidence in the form of written notice of particulars of the alibi given to the Director of Public Prosecutions.88 The particulars required are similar to those required in New South Wales.89 Disclosure is required within 14 days of committal. If this requirement is not satisfied, the proposed alibi evidence cannot be introduced without the leave of the court.
3.40 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.90
England, Wales, Northern Ireland
Reciprocal disclosure regime
3.41 All alleged offences charged in England, Wales and Northern Ireland into which an investigation has commenced since 1 April 1997 are subject to a reciprocal pre-trial disclosure regime established by the Criminal Procedure and Investigations Act 1996 (Eng) (“the CPIA”).91 The CPIA expressly excludes the previous common law rules relating to pre-trial disclosure.92 Commentators have argued that the prosecution disclosure requirements under the Act are less onerous than the previous common law requirements.93
3.42 Disclosure by police to prosecution. The CPIA provides for a Code of Practice which regulates disclosure by investigating police to prosecutors of information and material obtained during criminal investigations.94 The Code of Practice requires investigating police to pursue all reasonable lines of inquiry, including those which point away from the suspect. A series of ongoing obligations are imposed on investigating police to record, retain and disclose to prosecutors all information and other material which may be relevant to the investigation, including, in the form of a schedule, material which will not form part of the prosecution case. “Sensitive material”, which the police consider should not be disclosed to the defence, must also be identified in a separate schedule.
3.43 Primary prosecution disclosure. The CPIA imposes a continuing duty on prosecutors to disclose any material to the defence which it does not intend to use at trial and which the prosecution considers might undermine the prosecution case (a subjective test) (“primary prosecution disclosure”).95 The prosecution can apply to the court for an order exempting it from primary prosecution disclosure on public interest grounds.96 Primary prosecution disclosure is required as soon as reasonably practical.97 In relation to indictable offences, primary prosecution disclosure is required after the defendant has been committed to trial.98 However, there is authority that some prosecution disclosure may be required before then.99
3.44 Defence disclosure. In trials for indictable offences, where the prosecution provides primary disclosure, the defence is required to disclose the general nature of the defence and the aspects of the prosecution case which the defence will dispute, giving reasons.100 If the defence involves alibi evidence, particulars are required.101 Defence disclosure must be supplied within 14 days of the defence receiving primary prosecution disclosure, although the defence can apply to the court for an extension of this time limit.102 Voluntary defence disclosure can also be given for summary offences and offences tried in the Youth Court.103
3.45 Secondary prosecution disclosure. Defence disclosure under the CPIA triggers a further prosecution duty to disclose any additional undisclosed material which might reasonably be expected to assist the case disclosed in the defence statement (an objective test) (“secondary prosecution disclosure”).104 As with primary prosecution disclosure, the prosecution can apply to the court for an order exempting it from secondary prosecution disclosure on public interest grounds.105 Secondary disclosure is required as soon as reasonably practicable.106 The prosecution’s disclosure duties continue until the conclusion of the trial.107
3.46 The CPIA requires the defence to treat material disclosed by the prosecution confidentially. Contravention of this requirement constitutes contempt of court.108 The court is also empowered to resolve disputes about the adequacy of prosecution disclosure,109 disclosure of sensitive prosecution material110 and public interest immunity.111
3.47 The court may stay the trial where it considers that the defendant has been denied a fair trial as a result of non-disclosure.112 While not conclusively excluding the possibility of granting a stay, the English High Court of Justice has so far been unwilling to do so, emphasising that late prosecution disclosure does not on its own constitute an abuse of process unless it involves such delay that the defendant is denied a fair trial.113 No doubt other remedies, such as adjournment or orders for production, will be appropriate in many cases.
3.48 Where the defence breaches its disclosure duties,114 the court, or (with the leave of the court) the prosecution, is permitted to comment to the jury, and the jury is permitted to draw such adverse inferences as it considers appropriate.115 There is no limit on the type of comment permitted. However, a defendant cannot be convicted solely on the basis of non-compliance.116
3.49 One submission reported that this regime was generally supported by the vast majority of criminal barristers in England and Wales.117 The practical effect of the regime is not yet clear, and there is little relevant case law.
3.50 Expert evidence. If either the prosecution or the defence intends to lead expert evidence at trial, they are required to disclose in writing the finding or opinion of the expert as soon as practicable, and, if requested to do so, give the other party copies of expert reports.118 The leave of the court is required in order to admit expert evidence where notice is not given.119
Serious, complex or long cases
3.51 Serious fraud office. The investigation and prosecution of serious and complex fraud offences in England and Wales is undertaken by the Serious Fraud Office.120 In Northern Ireland, serious and complex fraud offences can be taken over by the Crown Court.121 In each case, the court can order the prosecution to disclose the principal prosecution facts and legal propositions, witness statements and exhibits. If the prosecution complies, the judge can order the defence to disclose the general nature of the defence, statements of law, the principal aspects of the prosecution case which the defence disputes, and any objections taken by the defence.122
3.52 The court, or (with the leave of the court) a party, can comment to the jury on non-disclosure or departure from the disclosed case and the jury can draw such inferences as it considers proper.123 The Serious Fraud Office has argued that these sanctions are inadequate.124 Commentators have concluded that there are significant problems with the regime which are similar to the problems identified with the Victorian pre-trial disclosure regime which existed prior to 1 September 1999.125
3.53 CPIA. The CPIA also includes a pre-trial disclosure procedure for long or complex cases, which can be invoked by either party or the Court.126 The trial judge can order the prosecution to disclose a summary of the prosecution evidence and the inferences the prosecution will argue should be drawn from the evidence. The trial judge can also order the prosecution to provide further explanatory material and further and better particulars.127 The defence disclosure requirements under this system are similar to the general CPIA defence disclosure provisions.128
United States
3.54 The United States introduced limited prosecution disclosure obligations in 1946, when Rule 16 of the Federal Court Rules of Criminal Procedure was passed.129 Since then, the Supreme Court has expanded these requirements, holding that due process required the prosecution to disclose “evidence favourable to an accused ... where the evidence is material whether to guilt or to punishment”.130 Subsequent Supreme Court decisions have gradually limited the effect of this doctrine.131 Prosecution disclosure requirements are also limited by legislation which prevents the defence from obtaining information on Crown witness lists and witness statements before trial.132
3.55 The Fifth Amendment privilege against self incrimination has long restricted the prosecution’s ability to obtain defence pre-trial disclosure. However, the decision of the Supreme Court in Williams v Florida,133 that alibi notice requirements are consistent with the Fifth Amendment, paved the way for expansion of defence disclosure obligations.134
3.56 The American Bar Association now supports reciprocal disclosure, and is credited as a major influence on the growth of reciprocal disclosure regimes at the state level.135 These regimes differ from jurisdiction to jurisdiction. For example, in Michigan and New Jersey, a full reciprocal disclosure regime is enforced by way of rules of court.136 In contrast, the Okalahoma regime is purely common law.137
Canada
3.57 The Canadian Supreme Court has held that alibi notice requirements are consistent with the Canadian Charter of Rights and Freedoms.138 Unlike the United States, in Canada this exception has been strictly limited, and there are no broader defence disclosure requirements. The Supreme Court has, however, held that the Crown is required to disclose all relevant evidence, including inculpatory and exculpatory evidence to the defence as part of the right to a fair trial.139
REFORM OF PRE-TRIAL DISCLOSURE
3.58 In DP 41 the Commission raised three alternative options for reform of defence disclosure. Option one involved defence disclosure of expert evidence. The second option required disclosure of defence expert evidence and certain defences. The third option was for disclosure of expert evidence and the general nature of the issues which the defence intended to raise at trial.
Submissions
3.59 The majority of submissions received during the course of this reference focussed on the right to silence during police questioning. Most submissions did not deal with pre-trial disclosure. No submissions opposed the introduction of a legislative prosecution pre-trial disclosure regime.140 Many submissions favoured the introduction of additional defence pre-trial disclosure requirements.141 There was support for all three options for defence disclosure raised in DP 41 in May 1998. Other submissions favoured compulsory pre-trial disclosure of all statutory defences; tighter notice requirements for alibi evidence; defence disclosure of the nature of the defence and the evidence in support of the defence; restricting defence disclosure to complex cases and the defence disclosure requirements under the Crimes (Criminal Trials) Act 1993 (Vic). Other submissions opposed any change to the existing legal requirements for defence disclosure.142
Previous inquiries and proposals for reform
Australia
3.60 The Commission’s Discussion Paper on Criminal Procedure, published in 1986, included proposals for mandatory pre-trial disclosure by the prosecution and mutual disclosure of expert evidence.143 The Commission proposed that defence disclosure should be encouraged (but not compelled) by allowing the prosecution to reply to defence evidence which could have been disclosed before the trial without prejudice to the defendant.144
3.61 In a 1989 discussion paper on reforms to the criminal justice system, the New South Wales Attorney General’s Department proposed that all defendants should be required to indicate the general nature of the defence and the areas of the prosecution case which the defence intended to dispute at trial.145
3.62 In 1992, Aronson, in a report on managing complex criminal trials for the Australian Institute of Judicial Administration, recommended the introduction of mandatory reciprocal disclosure duties.146
3.63 In a 1993 report to the New South Wales Government on complex criminal trials, Mr John Nader QC recommended that the prosecution should be required to disclose the full prosecution case, including all prosecution facts and statements of law, a summary of all prosecution circumstantial evidence, the identity of all prosecution witnesses, and copies of all witness statements.147 This proposal did not extend to disclosure of relevant material which the prosecution did not intend to rely on at trial.148 Nader recommended defence disclosure of any positive defence and defence legal principles, as well as a defence response to the facts and statements of law disclosed by the prosecution.149 The Nader report also recommended compulsory disclosure of expert evidence by both parties.150
3.64 In a 1995 report on guilty pleas for the Australian Institute of Judicial Administration, Mack and Roach Anleu also recommended the introduction of compulsory prosecution disclosure of all information relevant to the charge, including information which the prosecution did not intend to use, inconsistent witness statements and information only relevant to the credibility of witnesses.151 Mack and Roach Anleu rejected the imposition of additional defence disclosure duties in ordinary criminal matters, but left open the question of defence disclosure in complex white collar or financial cases.152
3.65 In 1997, Corns published a report on long criminal trials for the AIJA which recommended reciprocal pre-trial disclosure in accordance with the provisions of the Crimes (Criminal Trials) Act 1993 (Vic) in all long and complex criminal cases. Corns also considered requiring the prosecution to produce a schedule of facts cross-referenced to the evidence, to which the defendant would be required to respond.153
United Kingdom
3.66 The Working Group on the Right to Silence, which published its report in 1989, recommended a pilot reciprocal pre-trial disclosure in complex Crown Court cases identified as suitable by a judge.154 The prosecution would be required to disclose the principal facts and statements of law of its case, the identity of its witnesses and its exhibits.155 The defence would be required to disclose the general nature of its case, legal principles and the matters on which the prosecution intends to take issue with the prosecution.156
Proposal by the Premier and Attorney General of New South Wales
3.67 In January 1999, the Premier and the Attorney General released a joint proposal for defence pre-trial disclosure to be made “a reasonable period” before the commencement of the trial.157 The Attorney General subsequently indicated that the position of unrepresented defendants would be taken into account in implementing any defence pre-trial disclosure duties.158
3.68 Under the Government’s proposal, defendants who intended to plead self defence, provocation, lack of intent, accident or duress would be required to disclose this (in addition to the requirements for alibi evidence and evidence of substantial impairment by abnormality of mind).
3.69 Under this proposal, the defendant would be required to disclose the reports of all proposed expert witnesses. The defendant would also be required to disclose whether issue is taken with any prosecution expert evidence, and if so, in what way. In addition, the defence would be required to disclose the identities and addresses of character witnesses, and which prosecution witnesses were required in relation to surveillance evidence.
3.70 The defendant would be required to disclose any issues as to continuity in respect of prosecution exhibits and whether the defence intended to dispute the admissibility of any prosecution evidence, particularly surveillance evidence and charts, diagrams and schedules. Where the admissibility or accuracy of prosecution exhibits, listening device transcripts, charts, diagrams or schedules was not disputed, these would be prima facie admissible and could be tendered without formal proof. The defendant would also be able (but not compelled) to disclose exhibits, documents, diagrams, transcripts and schedules and require the prosecution to disclose whether it objects to their admissibility or accuracy. Where the prosecution did not object, these would also be prima facie admissible without formal proof.
3.71 The defence would be required to disclose issues concerning the form of the indictment, the severability of charges and separate trials.159
Law Council of Australia proposal
3.72 The Law Council has also formulated principles for reform of pre-trial criminal procedure. The Law Council argues that obligations should be imposed on investigating authorities to pursue all reasonable lines of inquiry and to retain and disclose to the prosecution all material which may be relevant to the investigation.160 The principles provide for prosecution pre-trial disclosure of all prosecution evidence.161 The Council also proposes compulsory prosecution disclosure, a reasonable time before trial, of all material which may be relevant, and further prosecution disclosure in response to defence disclosure, where this occurs.162 Defence pre-trial disclosure would not be compulsory but would be encouraged by empowering the trial judge to take defence disclosure into account in consideration of costs awards to defendants who are acquitted and as a mitigating circumstance in sentencing proceedings.163
National Legal Aid/Directors of Public Prosecution Best Practice Model for the Determination of Indictable Offences
3.73 National Legal Aid and the various Directors of Public Prosecution support compulsory disclosure by police to the prosecution, and by the prosecution to the defence, of all material relevant to the guilt or innocence of the defendant, including further prosecution disclosure in response to defence disclosure.164 The Best Practice Model also favours defence disclosure. At the listing mention, the defendant would be required to disclose which prosecution witnesses were not required, which prosecution facts the defence admits and the essence of the defence.165
Law Reform Commission of Western Australia
3.74 In October 1999, the Law Reform Commission of Western Australia published a report on the criminal and civil justice system in Western Australia.166 This Report includes a number of pre-trial disclosure recommendations. The Commission recommended the introduction of statutory disclosure requirements for the police to the prosecution, along the lines of the requirements in the Western Australia Office of the Director of Public Prosecutions Prosecution Guidelines.167
3.75 The Commission also recommended that the prosecution should be required, by statute, to provide disclosure to the defence. The prosecution disclosure recommendations are also based on the Prosecution Guidelines, as well as the draft Criminal Practice Rules discussed at paragraphs 3.36 to 3.37. In all cases, the prosecution would be required to provide “initial disclosure”, consisting of a simply expressed statement of the material facts and law, the defendant’s criminal record and any confessional material. This would be required to be disclosed with the complaint, before the defendant’s first court appearance.168 The extent of disclosure would be at the discretion of the prosecution, and should be determined by the seriousness of the offence, particularly whether imprisonment was a potential outcome.169 Disclosure would be facilitated by the Commission’s proposed system for electronic exchange of information.170
3.76 In all cases where imprisonment was a potential consequence of conviction, the prosecution would also be required to disclose copies of all expert witness statements and expert reports. This requirement, known as “full prosecution disclosure”, would only be required where the defendant did not plead guilty after initial prosecution disclosure.171 Finally, the Commission also discussed the need for further prosecution disclosure in response to defence disclosure, although no formal recommendation for this was made.172
3.77 The Commission recommended that the courts should be empowered to rule that non-disclosure by the prosecution resulted in a miscarriage of justice or a wrongful conviction.173
3.78 The Commission recommended that the requirement that the defence give notice of proposed alibi evidence should apply to all offences. The Commission also recommended that the defence should be required to disclose statements of expert witnesses.174 Where full prosecution disclosure occurred (effectively, only in cases where imprisonment was a possible sentence), the defence would be required to disclose the factual elements of the offence or particular proposition of law identified by the prosecution upon which it may be contended that guilt may not be proved, the documents disclosed by the prosecution to which objection will be taken, specifying the grounds, and any particular ground upon which it may contend that guilt will not be proved.175 Again, these requirements are based on the draft Criminal Practice Rules.
3.79 The Commission recommended that where the defence failed to provide disclosure, the trial judge and, with leave, the prosecution, should be permitted to make adverse comment, and the prosecution should be permitted to re-open its case.176 The Commission noted that special consideration should be given to the position of self-represented defendants when determining whether to impose sanctions for non-compliance with the defence disclosure requirements.177
3.80 The Commission also recommended that, where non-disclosure by either the prosecution or the defence was the responsibility of party’s legal representative, the court should be able to make a finding of professional misconduct.178
3.81 The Commission recommended that the courts be empowered to excuse compliance with these disclosure requirements where good reason was given.179
3.82 The Commission also recommended that pre-trial negotiations between the prosecution and the defence should be formalised. One of the purposes of this would be to facilitate voluntary disclosure of witness statements (other than expert witness statements) by the defence, voluntary notice of what prosecution witnesses the defence required to attend in person and any possible admissions.180
Federal Government Working Group
3.83 A Federal Government Working Group on reform to the criminal justice system, established by the Standing Committee of Attorneys General, has also made a number of recommendations for pre-trial disclosure.181 The Working Group recommended the introduction of statutory prosecution pre-trial disclosure, based on the Commonwealth Office of the Director of Public Prosecutions Prosecution Guidelines, and extending to investigators as well as prosecutors. The Working Party recommended that the prosecution should be required to file and serve a case statement, outlining the acts, facts, matters and circumstances relied on by the prosecution, and, where appropriate, to disclose how the prosecution case will be presented, as well as a notice of pre-trial admissions.182
3.84 The Working Group recommended that the defence should be required to indicate which aspects of the prosecution case the defendant agrees to admit without further proof, which prosecution evidence is in issue, and to give notice of any additional matters in respect of which the defendant is willing to make admissions or dispose with formal proof. The defendant would be required to disclose whether he or she intended to rely on the defences of self defence, substantial impairment of mental responsibility, automatism, claim of right, duress or intoxication. The defence would be required to disclose copies of expert witness reports. Notices would also be required in relation to whether the defence required prosecution witnesses to be called regarding surveillance evidence, any issues as to continuity of exhibits, whether the accuracy of listening device transcripts is in issue and whether the admissibility or accuracy of charts, diagrams and schedules is in issue.183
Arguments for reform of prosecution pre-trial disclosure
Fair trial
3.85 The Law Council submitted that the risk that inadequate disclosure will lead to unfair trials is one compelling reason for compulsory police and prosecution pre-trial disclosure.184 The Commission agrees that thorough disclosure is necessary for the defendant to decide how to plead. The defendant should understand the facts alleged by the prosecution and the case which he or she would be required to meet.185 This aspect of police and prosecution pre-trial disclosure is especially important because the majority of criminal charges are resolved by guilty pleas (65% of persons charged in Local Court appearances and 67% of persons charged in the District and Supreme Courts).186
3.86 A fair trial also requires that defence be informed of all material available to the prosecution, whether or not it is formally admissible, which may be of assistance to the defence, including that which the prosecution does not intend to use as part of its case. It is often difficult for the defence to discover the existence of, or obtain access to, this type of material unless the prosecution is specifically compelled to disclose it.187 This is illustrated by the significant and highly publicised miscarriages of justice revealed in England since the early 1990s, which resulted from non-disclosure by the prosecution of material which was inconsistent with the prosecution case.188
3.87 The New South Wales Director of Public Prosecutions, Mr Nicholas Cowdery QC, has acknowledged that the role of the prosecutor and the organs of the criminal justice system associated with the prosecutor is to assist the court to arrive at the truth and to do justice according to law. Mr Cowdery has noted that all material in the possession of the prosecutor, including material which is inconsistent with the prosecution case, remains public property for the purpose of achieving this goal.189
3.88 It has also been argued that, as a rule, the police and prosecution have access to superior financial resources and investigations expertise than defendants.190 The Commission has previously recommended compulsory prosecution pre-trial disclosure on the basis that it addresses this inequality of resources to some extent.191 On the other hand, some 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,192 or that compulsory defence disclosure requirements are far more likely to work in practice if the requirements also apply to the prosecution.193 The Commission’s view is that this approach is not appropriate. The crucial question is not equality of disclosure between the parties, but rather the public interest in ensuring that the trial is a fair one.
3.89 The International Covenant on Civil and Political Rights (“the Covenant”) does not refer to prosecution pre-trial disclosure. The Covenant does guarantee persons accused of criminal offences the right to a fair trial.194 This guarantee expressly includes the right to adequate time and facilities for the preparation of the defence.195 It has been argued that this includes an implied right to full prosecution pre-trial disclosure.196 The Covenant is not part of the domestic law of New South Wales197 but its provisions may nevertheless be of persuasive assistance to courts when expressing the common law.198 The New South Wales Director of Public Prosecutions has also acknowledged that the right to full prosecution pre-trial disclosure is an incident of the right to a fair trial.199
Efficiency
3.90 Another convincing reason for prosecution pre-trial disclosure is that it improves the efficiency of the criminal justice system.200 Pre-trial disclosure enhances plea discussions and identifies charges to which the defendant might plead, increasing the number of defendants who plead guilty and encouraging guilty pleas at an earlier stage. According to research conducted by Mack and Roach Anleu for the Australian Institute of Judicial Administration, most people plead guilty because they are given persuasive legal advice that the prosecution case is strong.201 Properly conducted committal proceedings, which are not a mere rehearsal for the trial, are a significant element of this process. Early identification of guilty pleas also improves the accuracy of court lists, reduces time wasted by all parties preparing for trial, minimises time wasted by all parties on unnecessary court attendances and also reduces wasted court time.
3.91 Prosecution disclosure also has important efficiency consequences where charges proceed to trial. It leads to earlier and improved identification of the issues, facilitating more efficient trial preparation for both parties. This in turn shortens trials and minimises the number of adjournments sought by and granted to the defence in response to unexpected evidence. The number of defence witnesses required is also reduced.
3.92 It has been suggested that prosecution disclosure actually creates inefficiency in the criminal justice system by imposing additional preparation costs on prosecuting authorities and by consuming additional court resources in resolving disclosure disputes.202 There is no empirical research on the impact of the existing regimes in other jurisdictions. However, a majority of participants in the Commission’s survey for this reference considered that police and prosecution pre-trial disclosure generally improved efficiency.203 It is clear that police prosecutors and the Office of the Director of Public Prosecutions require adequate resources in order to properly meet their disclosure obligations.204 The Commission considers that this is an important issue which must be resolved if any system of pre-trial disclosure is to be effective.
Arguments against prosecution pre-trial disclosure
Reasons for non-compliance
3.93 One cogent objection to compulsory prosecution pre-trial disclosure is that that it is open to misuse by the defence. It is arguable that early disclosure of the substance of the prosecution case gives the defence an opportunity to tailor its case to meet the disclosed prosecution case, by fabricating evidence, procuring perjured testimony, and intimidating prosecution witnesses.205 It is also argued that compulsory prosecution pre-trial disclosure rules can be, or are, misused by the defence to force the prosecution to comb through large amounts of material as a tactic to delay trials, or simply in order to conduct a fishing expedition for potential defence evidence or lines of argument.206
3.94 It is also fairly argued that disclosure of certain sensitive prosecution material which reveals the identity of undercover police officers or informants, may endanger their safety or jeopardise the effectiveness of police investigations.207 In particular cases, the defence may insist on full prosecution disclosure in the hope that the prosecution will be induced to withdraw the charges rather than have to disclose particular material.208
3.95 Various measures can be taken to minimise these risks. The current Barristers’ and Solicitors’ Rules and DPP Prosecution Guidelines provide that prosecutors can decline or limit disclosure which is not in the interests of justice in a particular case. For example, the names of police officers or informants can be withheld while the substance of their evidence can be disclosed. The defendant and his or her legal advisers can be required to treat prosecution material confidentially. In particular circumstances, access to sensitive material may be restricted to the defendant’s legal representatives, although the Commission acknowledges that this would hinder the ability of defendants to properly instruct their legal representatives.209
3.96 Prosecutors can be required to notify the defence of the non-disclosure of particular material, and the court can be given jurisdiction to hear challenges by the defence to non-disclosure. The Commission notes that the misuse of prosecution disclosure by fabricating evidence, procuring perjured testimony and interfering with prosecution witnesses are already criminal offences in themselves.210 However, there is always a risk that this type of material may be misused, even where protective measures are in place.211
The Commission’s view
3.97 The Commission is satisfied that there is a high level of compliance by prosecutors with the current professional guidelines relating to pre-trial disclosure. However, the Commission’s research and consultations indicate that prosecution disclosure is not always complete. This is usually the responsibility of investigating police rather than prosecutors.
3.98 The Commission’s view is that these duties require more formal recognition in legislation, including reinforcement with appropriate, enforceable sanctions for non-compliance. The Commission therefore recommends the introduction of a number of statutory prosecution disclosure requirements for Supreme and District Court trials. These requirements would not apply to all prosecutions, but rather the courts would be able to invoke them where appropriate. The parties would also be able to apply to the court for an order for statutory disclosure. The timetable for compliance would be set by the court in each case.
3.99 It must, of course, be kept in mind that 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. This is especially so where witnesses have not given evidence at committal proceedings. In some cases, it is not possible for prosecutors to predict before the commencement of the trial that particular evidence may be relevant or whether a witness will come up to proof. These uncertainties do not, however, justify reducing the duty of the prosecution to make full disclosure of its case. A material omission or change may well affect the significance of an alleged inadequacy of defence disclosure. The court has an ample discretion to deal with these matters.
Recommendation 2
The Commission recommends that the prosecution must be required to disclose the following material and information, in addition to the existing prosecution pre-trial disclosure requirements:
(a) All reports of prosecution expert witnesses proposed to be called at trial. In accordance with the general rule, such reports must clearly identify the material relied on to prepare them.
(b) Where the defence discloses its expert evidence, whether issue is taken with any part and, if so, in what respects.
(c) Whether defence expert witnesses are required for cross- examination. In this event, notice within a reasonable time must be given.
(d) In respect of any proposed defence exhibits of which notice has been given, whether there is any issue as to provenance, authenticity or continuity.
(e) Where notice is given that charts, diagrams or schedules are to be tendered by the defence, whether there is any issue about either admissibility or accuracy.
(f) Any substantial issues of admissibility of any aspect of proposed defence evidence of which notice has been given.
Recommendation 3
(a) Where no issue is taken by the defence as to the provenance, authenticity, accuracy, admissibility or continuity of prosecution exhibits, charts, diagrams or schedules, the evidence will be prima facie admissible and may be tendered without formal proof.
(b) Where no issue is taken by the defence as to the admissibility of expert reports disclosed by the prosecution, this evidence will be prima facie admissible and may be tendered without formal proof.
Arguments for reform of defence pre-trial disclosure
Fair trial
3.100 One of the most common arguments for introducing defence pre-trial disclosure requirements is that it will address the problem of defendants “ambushing” the prosecution at trial with defences which the prosecution was not able to anticipate or investigate, leading to the acquittal of guilty persons.212 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.213
3.101 There is no agreement as to the meaning of the term “ambush defence”. Leng defines “ambush defence” as a defence raised for the first time in court, based on evidence which could have been disclosed to police during interrogation, where the late disclosure of the defence hampered the investigation or prosecution of the offence, and the defendant benefited from the extra preparation time gained from delayed disclosure.214 English research suggests that the incidence of defences raised for the first time at trial which succeed is between 1.5% and 5%.215 This research also suggests that a defendant who raises an “ambush” defence as defined by Leng is more likely to be convicted than acquitted.216 In one study, every defendant who adopted an ambush defence was convicted.217
3.102 The Commission’s preferred definition of “ambush” defence is a defence, raised for the first time at trial, which could not reasonably have been anticipated by a competent and experienced prosecutor. The Commission’s view is that such defences only arise infrequently. Frequently, the likely or potential defences are obvious from the nature of the prosecution case itself. This was supported by several submissions.218 The majority of judges, magistrates, legal practitioners and police prosecutors surveyed by the Commission reported that defences with these characteristics rarely arose.219 Participants considered that, where such defences did occur, they did not contribute to an acquittal in most cases.220
3.103 The Commission, however, is of the view that it is unreasonable and wasteful of limited resources that the prosecution should have to prepare against all foreseeable eventualities and conduct an unnecessarily elaborate and unwieldy prosecution against the possibility of a foreseen defence which does not, in the event, arise. The mere fact that a particular defence might reasonably be anticipated does not mean that the defendant should not be required to make the disclosures which we recommend, including, where appropriate, a defence which might well be foreseeable, so that the prosecution can focus on the factual issues that will actually be in dispute.
3.104 Moreover, the Commission considers that it is not a legitimate consequence of the right to silence that a defendant can run opportunistic and spurious defences which take advantage of some matter against which, in the result, the prosecution failed to guard. It may be worth noting in this context, however, as is made clear in Chapter Four of this Report, the Commission is not suggesting that there should be any qualification of the fundamental principle that it is the responsibility of the Crown to prove the defendant’s guilt beyond reasonable doubt. The Commission’s view is that its recommendations do not do so.
3.105 Submissions from judges and magistrates argued that defence disclosure would facilitate the determination of objections to the admissibility of particular evidence on the grounds of relevance.221 This view was also expressed by members of the magistracy during consultations, and by a number of judges and magistrates who participated in the survey conducted by the Commission for this reference. The Commission’s view is that, for the purpose of ruling on questions of admissibility, the trial judge will often need information about the defence case in order to determine the relevance of evidence. Research conducted on juries in New Zealand222 shows that juries were greatly assisted in understanding the evidence if they were informed at an early stage of the issues in the trial.223 This can often only be effectively done if the issues in the trial have been ascertained by some kind of pre-trial procedure.
3.106 The New South Wales Police Service and the Police Association of New South Wales argued that, since significant prosecution disclosure obligations exist under legislation, guidelines and rules, defence disclosure should be introduced in order to place the parties on a more level playing field.224 However, this argument does not address the question of what level of defence disclosure is appropriate. Moreover, this raises in a pointed way the limited nature of the resources available to the defence because of extreme restrictions on, and delays in considering applications for, legal aid.
Efficiency
3.107 Another argument raised in many submissions and by judges and commentators is that defence pre-trial disclosure, like disclosure by the police and prosecution, would improve the efficiency of the criminal justice system, which is struggling to cope with the volume of work coming before it. It would motivate both the prosecution and the defence to evaluate the strength of the charge at an earlier time, leading to earlier and increased guilty pleas, pleas to lesser charges and withdrawal of charges. Early and improved identification of issues would improve the efficiency of prosecution preparation for trial and avoid wasting resources on anticipating, investigating and disproving matters which are not ultimately in issue. It would also shorten trials, minimise the incidence of adjournments to allow the prosecution to prepare for unexpected defence evidence and reduce the number of prosecution witnesses called whose evidence was not contested by the defence.225 A majority of participants in the Commission’s research for this reference reported that, although voluntary defence disclosure was infrequent in New South Wales, where it occurred it generally improved efficiency.226
3.108 However, other submissions argued that police would be less likely to conduct a thorough initial investigation of their own initiative if they knew they could rely on defence disclosure at a later stage.227 The Commission does not accept that the introduction of mandatory defence disclosure requirements would result in less thorough initial investigations by police. If the defendant is obliged to disclose information about his or her defence after the committal and only a short time before trial, the improvement will be in relation to the trial, rather than the investigation which will not be affected. Other submissions and commentators have argued that the efficiency gains produced by compulsory defence disclosure requirements would be outweighed by the resources consumed in complying with any requirements and the additional litigation produced in determining disclosure disputes.228 It is reasonable to consider that there is a risk of this occurring, although it does not appear to have been the experience in the United Kingdom.
Arguments against defence pre-trial disclosure
Fundamental principle
3.109 Numerous submissions argued that imposing any compulsory disclosure requirements on the defence would infringe several fundamental principles of the criminal justice system.229 It is argued that requiring the defendant to disclose information about the defence case before trial would undermine the presumption of innocence and would operate in practice as a form of compulsion to assist the prosecution, infringing the burden of proof and the right to silence.230 Several submissions also argued that compulsory defence disclosure requirements would breach the right to a fair trial under the International Covenant on Civil and Political Rights.231 Although it is a matter of degree, the Commission considers that these submissions go too far.232
3.110 There are many cases in which the substantial defence (and reasonably so) is that the facts adduced by the prosecution do not prove the defendant’s guilt of the offence charged beyond reasonable doubt and where there otherwise is no positive defence. However, the right to silence should not be used to provide an opportunity to a defendant to create a spurious defence in response to the way in which the prosecution case ultimately unfolds.
3.111 The Royal Commission on Criminal Justice rejected the argument that compulsory defence pre-trial disclosure infringes these fundamental principles, concluding that pre-trial defence disclosure was similar to advancing a defence at trial, except for the timing.233 The Commission considers that this is a reasonable view, depending on the extent of the disclosure required. At the stage when defence disclosure would be required as part of a pre-trial procedure under the Commission’s recommendations, the defendant would be aware of the whole of the prosecution case as a result of the police and prosecution pre-trial disclosure duties. It should be borne in mind, however, that in the absence of full committal proceedings there will remain some degree of speculation as to the precise content of the prosecution case.
3.112 The Commission has recommended that these duties be codified, specified and reinforced with sanctions for non-compliance. The defendant will have had adequate time to reflect on his or her position and obtain appropriate legal advice (assuming legal aid to have been provided) before being required to provide disclosure. Disclosure would occur in the context of judicial supervision. The position of the defendant at this stage is completely different to the position of the suspect when questioned by police.
Lawyer’s duty to client
3.113 The Law Society makes the point that in many cases comprehensive defence pre-trial disclosure cannot properly occur. Often the defence does not have the opportunity to cross-examine prosecution witnesses at the committal hearing and, since the overwhelming majority of cases now proceed as paper committals, it is often not possible to evaluate the prosecution case satisfactorily until it is presented at the trial. Therefore, it is argued that it very difficult for defence lawyers responsibly to provide pre-trial disclosure of the defence case which would involve abandoning any particular issue. For example, oral evidence given by prosecution witnesses at trial may materially differ from the witness statements included in the brief served on the defendant. Similarly, it is not always possible to determine the credibility of prosecution witnesses or cogency of their evidence from an examination of their witness statements.234
3.114 Whilst the Commission considers that this problem can be a very real one in some cases, the situation will vary from case to case, and the Commission’s recommendations assume that appropriate adjustments can be made. The problem is likely to arise only in the relatively rare case where, for example, an issue of fact, not in the defendant’s own knowledge, is thought to be established by apparently cogent evidence but, in the result, it is not. The defendant should be able to point to the failure and to rely on the weakness (if it be one) of the Crown case in that respect, even if, in some respects, this “defence” has not been raised. It would be otherwise where the defendant took no issue as to a matter which was within his own knowledge: to change the defence would then be an example, almost certainly, of the opportunistic raising of a spurious defence. The essence of the procedure is its focus on practical and realistic communication.
Limits on prosecution contact with disclosed witnesses
3.115 Whilst it is not recommended that the defence must identify proposed witnesses, except for those called as to character and experts, it may be that the disclosures that are required will enable other defence witnesses to be identified by the prosecution. Being contacted and questioned by police is itself an intimidating experience for many potential defence witnesses, including timid, uncertain or uncooperative potential defence witnesses, and potential witnesses with a criminal history, particularly if on bail or parole. Contact by investigating police may make such people feel extremely vulnerable and discourage them from giving evidence for the defence, even if this is not the intention of the investigating police.
3.116 The Commission notes that the misuse of defence disclosure by fabricating evidence and interfering with defence witnesses are criminal offences.235 However, it is acknowledged that, while suspicions may exist, it is extremely difficult to prove these offences. Also, prosecuting these offences after the fact does not assist in securing a fair trial for the defendant.236 One option for addressing these risks, adopted in Victoria in relation to alibi evidence, is to prohibit police and prosecutors from communicating with proposed defence witnesses before the trial in relation to the case, except in the presence and with the consent of the defendant’s legal advisers. Contact otherwise than in compliance with that requirement in Victoria constitutes contempt.237 The Commission considers that a more appropriate approach is to provide that the prosecution must seek leave of the Court before contacting witnesses who may be identified by the disclosure process.
Reasons for non-disclosure or departure from disclosed case
3.117 As a number of submissions noted, 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 to the defence case in response to adjustments to the Crown case. The defendant may be remanded in custody in a distant Corrections Centre, making it difficult for the lawyer to conduct conferences necessary to obtain the information required to be disclosed.238 The Commission accepts that it would be unfair to impose sanctions on the defence for non-disclosure in these circumstances. This could be addressed by permitting the defence to depart from its disclosed case with the leave of the court. The application for leave should be required to be made upon evidence given in the absence of the jury.
3.118 The Commission’s proposal for defence disclosure of expert evidence239 was also criticised in submissions. It was argued that defence lawyers often delay obtaining expert reports until the last possible opportunity before trial in order to ensure that the material covered is up to date and to avoid the expense of obtaining a supplementary report. It is reasonable that reports cannot be obtained until the Crown case on the relevant issue is fully exposed. However, where the defence proposes to rely on expert evidence that is not in response to expert evidence proposed to be led by the prosecution, there is no reason for delay. In other situations, the decision to lead evidence might not be made until the close of the prosecution case at trial. Forensic experts may not be able to produce reports any sooner due to their own work pressures. In cases where the defence strategy changes during the course of the trial, expert material disclosed to the prosecution may not ultimately be relied on and disclosure may harm the defence case.240 Late briefing of counsel can also cause difficulties. Again, if the reason for departure is legitimate, leave would be granted to do so and any comment would be unfair.
3.119 These arguments do not persuade the Commission that the Commission’s proposal requiring pre-trial disclosure of expert evidence is inappropriate. Rather, they highlight the need for trial judges to take into account the circumstances of the case and, also, having taken those circumstances into account, to ensure that the defence complies with the time set for compliance with the disclosure required.
Resources
3.120 Numerous submissions argued that compulsory defence pre-trial disclosure would impose an unacceptable burden on defence resources, or amplify the effects of the existing imbalance of resources available to the prosecution and the defence.241
The Law Society argued that defence disclosure could not occur until legal aid was secured. Legal aid is not currently available for committal proceedings. The Court of Criminal Appeal has held that, where a defendant exhausts his or her private funds on legal representation at the committal, this affects his or her application to have the trial postponed relying on Dietrich v The Queen. Defendants funding their own defence would need to have secured representation and entered into a costs agreement with their legal advisers before disclosure could occur.
3.121 In all cases, trial defence counsel would have to be properly briefed at an early stage to allow adequate opportunity to review the brief and confer with the defendant. Both the Crown and defence counsel require an opportunity to consider the possibility of accepting a plea to lesser charges.242 Legal Aid New South Wales currently pays for only two pre-trial conferences for Supreme and District Court trials. The rates are $91.00 per conference for solicitors, $101.00 for junior counsel and $146.00 for senior counsel.243 These fees were increased for the first time since 1994 as of 1 July 2000.
3.122 The Commission accepts that satisfactory defence disclosure regime would require timely and adequate legal representation of defendants before trial. The significant additional burden of compliance with disclosure obligations could not be adequately undertaken having regard to the present level of legal aid funding. No pre-trial defence disclosure requirements could work in practice unless legal aid covered pre-trial conferences and preparation time. The issue of funding compliance with defence disclosure requirements must be resolved if real, as opposed to theoretical, advances in efficiency are to occur. In the Commission’s view, it is likely that the provision of additional legal aid resources to fund defence disclosure duties will ultimately save costs in relation to trials. If the cost to the community of even one day’s hearing could be saved in even a small proportion of cases, considerable increases in legal aid fees could easily be justified.
3.123 Several submissions argued that it would be impossible for most unrepresented defendants to fairly and fully comply with compulsory defence pre-trial disclosure.244 The Commission accepts that any defence disclosure regime would need to be modified by the trial judge in its application to unrepresented defendants.
Sanctions
3.124 Compulsory defence pre-trial disclosure is also criticised on the basis that it is likely to be ineffective. It is argued that judges are generally reluctant to impose sanctions for non-compliance with the limited existing requirements, and that there is no reason to expect that a general disclosure regime would be more rigorously enforced by the judiciary.245
3.125 As with prosecution disclosure requirements, due to the fluid nature of criminal trials, it will not always be possible for defence lawyers to anticipate before a trial starts that particular evidence may be relevant.246 However, the Commission is satisfied that this can be met by making the consequences of non-disclosure by the defence subject to the judicial discretion applying also to prosecution non-disclosure. The Commission is satisfied that leave should be required to admit evidence not disclosed as required, even though it will only be in rare cases that leave would be refused. Most usually, the appropriate response to non-disclosure would be to grant the prosecution an adjournment and, if necessary, discharge the jury, with possible bail consequences for the defendant. If the non-disclosure occurred for reasons of tactical advantage alone, it might well be that comment should be permitted.
The Commission’s view
Disclosure of alibi evidence
3.126 The most common reason for non-compliance with the time frame for the alibi notice requirement given by defence lawyers who participated in the Commission’s survey was that they had not been instructed by their client by the time notice was required.247 This recommendation ties the notice requirement to the trial date, rather than the committal, when it is more likely that the defendant will be legally represented.
Recommendation 4
The Commission recommends that notice of alibi evidence should be required at least 35 days before trial in all indictable matters tried in the Supreme and District Courts.
Other defence disclosure requirements
3.127 The Commission recommends the introduction of a number of defence disclosure requirements for trials in the Supreme and District Courts. These duties would not apply in all cases. Rather, the court would be able to invoke them in appropriate cases, and the parties would also be able to apply for an order for statutory disclosure where appropriate. The timetable for compliance would be set by the court.
3.128 The principal justification for these recommendations is the argument that the due administration of justice does not justify permitting defendants simply to put 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. The prosecution case is frequently more complicated and unwieldy than it would be if the actual issues are disclosed at the pre trial stage. The Commission’s recommendations focus on the scope for improving the efficiency of the presentation of the prosecution case, by identifying and confining the issues in order to avoid unnecessary multiplication of prosecution witnesses and evidence.
3.129 The Commission’s proposals fall into three categories. The first is the requirement to disclose matters conventionally (but not strictly accurately) described as “defences”. These disclosures must be made in every case to which they apply. There is a practical difficulty that arises as to disclosure of the line of defence that the defendant committed the relevant act by accident. It is somewhat anomalous to require the defendant to disclose this matter, since the prosecution bears the onus of proving both voluntariness and causation, in substance, disproving accident. However, this is exactly what happens with the existing alibi notice requirement, and the Commission is satisfied that the requirement is acceptable in this context.
3.130 The same argument applies by analogy to the other matters which are not “defences” strictly so called, such as consent in sexual assault cases, where the course of the Crown case may well substantially differ from what it might otherwise comprise if consent is not in issue248 and where it is obviously desirable to minimise distress or embarrassment to a complainant from unnecessary questioning by either prosecution or defence. The recommendation is aimed not only at preventing the litigation of spurious defences, but also at ensuring that the issues in the trial are clearly identified, to avoid the calling of unnecessary evidence and the agitation of false issues.
3.131 The second category is the recommendation that, in particular cases, the defence may be required to state in general terms the case intended to be presented as to why he or she is not guilty, identify those aspects of the Crown case which are in issue and indicate in general terms the factual nature of the case to be made in respect of each of those aspects. The defendant should not be obliged to disclose the specific non-expert evidence which the defence intends to adduce. Disclosures are not to be taken, for the purposes of the trial, to be admissions of any facts. The proposed sanctions for non-compliance are discussed at paragraphs 3.142-3.147.
3.132 This requirement is aimed at the same objects as the first category but will be applied only in those cases where the first category of disclosure is inapplicable or insufficient, in the particular circumstances, to achieve them. It is of no real assistance to the prosecution to know, for example, that a defendant charged with murder intends to raise provocation – an issue which, when raised on the evidence, the prosecution must exclude beyond reasonable doubt in circumstances where usually the defendant is the only witness who remains alive able to describe what occurred – unless it is told in general terms the nature of the acts of the deceased which are claimed to have provoked the defendant.
3.133 In the event of a failure to comply with either form of required disclosure, a number of sanctions may be applied, including adverse comment to the jury where the trial judge is positively satisfied that such a course is fair and appropriate. Although the second requirement is, to some degree, stated in general terms, the Commission is of the view that, as it will be applied on a case by case basis, and the judge ordering the disclosure will have to specify clearly the extent of disclosure required, there can be no justifiable basis for subsequent dispute as to the defendant’s obligations as to create unfair prejudice should the proposed sanctions be applied for non compliance.
3.134 The third category may be described as machinery provisions designed to deal efficiently and fairly with expert evidence and unwieldy material of which, often, only part is both relevant and disputed.
3.135 Under the Victorian regime, the court has the power to order that the jury be given copies of the disclosure documents for the purpose of helping them to understand the issues.249 However, the Commission’s view is that there is a risk that this could lead to documents being drafted for the purpose of presentation to the jury, rather than for the purpose of identifying and confining the issues to be determined at the trial. Any such documents would ordinarily be admissible by consent. The Commission considers that this is sufficient to enable such documents to be given to the jury in appropriate cases.
3.136 The Commission emphasises that the primary means of both prosecution and defence disclosure in all cases should be voluntary, informal disclosure. The existence of a clear regime of pre-trial disclosure will facilitate this process, which will obviously be most efficiently and cheaply undertaken without intervention by a court. However, compulsory powers are also necessary to ensure compliance as a last resort. The Commission notes that defence disclosure should always be based on a thorough understanding of the prosecution case. The Commission also favours a requirement that an assigned prosecutor have responsibility for the conduct of every case from preparation to verdict, facilitating informal communication between the parties.
3.137 The Commission’s recommendations constitute 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. The Commission does not support the application of those powers to ordinary criminal cases at any stage of the proceedings. 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. At this later stage, there is no legitimate prejudice suffered by the defendant in requiring pre-trial disclosure of the defence. The only advantage which will be lost is that of surprise.
Recommendation 5
The defendant shall be required to disclose the following material and information, in writing, unless the Court otherwise orders:
(a) In addition to the existing notice requirements for alibi evidence and substantial impairment by abnormality of mind, whether the defence, in respect of any element of the charge, proposes to raise issues in answer to the charge, eg accident, automatism, duress, insanity, intoxication, provocation, self-defence; in sexual assault cases, consent, a reasonable belief that the complainant was consenting, or that the defendant did not commit the act constituting the sexual assault alleged; in deemed supply cases, whether the illicit drug was possessed other than for the purpose of supply; in cases involving an intent to defraud, claim of right.
(b) In any particular case, whether falling within Recommendation 5(a) or not, the trial judge or other judge charged with the responsibility for giving pre-trial directions may at any time order the defendant to disclose the general nature of the case he or she proposes to present at trial, identifying the issues to be raised, whether by way of denial of the elements of the charge or exculpation, and stating, in general terms only, the factual basis of the case which is to be put to the jury.
(c) All reports of defence expert witnesses proposed to be called at trial In accordance with the general rule, such reports shall clearly identify the material relied on to prepare them.
(d) Where the prosecution discloses its expert evidence, whether issue is taken with any part and, if so, in what respects.
(e) Whether prosecution expert witnesses are required for cross- examination. In this event, notice within a reasonable time shall be given.
(f) Where the prosecution relies on surveillance evidence (electronic or otherwise), whether strict proof is required and, if so, to what extent.
(g) In respect of any proposed prosecution exhibits of which notice has been given, whether there is any issue as to provenance, authenticity or continuity.
(h) In respect of listening device transcripts proposed by the prosecution to be used or tendered, whether they are accepted as accurate and, if not, in what respects issue is taken.
(i) Where notice is given that charts, diagrams or schedules are to be tendered by the prosecution, whether there is any issue about either admissibility or accuracy.
(j) Where it is proposed to call character witnesses, their names and addresses. The purpose of this requirement is to enable the prosecution to check on the antecedents of these witnesses. Character witnesses or other defence witnesses identified directly or indirectly by disclosures made by the defence shall not be interviewed by the prosecution without the leave of the court.
(k) Any issues of admissibility of any aspect of proposed prosecution evidence of which notice has been given.
(l) Any issues concerning the form of the indictment, severability of the charges, separate trials or applications for a “Basha” inquiry.250
Recommendation 6
(a) Where no issue is taken by the prosecution as to the provenance, authenticity, accuracy, admissibility or continuity of defence exhibits, listening device transcripts, charts, diagrams or schedules, the evidence will be prima facie admissible and may be tendered without formal proof.
(b) Where no issue is taken by the prosecution as to the admissibility of expert reports disclosed by the defence, this evidence will be prima facie admissible and may be tendered without formal proof.
(c) Disclosures made pursuant to these requirements, are not admissions and are not admissible into evidence without leave of the judge except for the purpose of determining on the voire dire any procedural matter arising from an alleged omission to provide any required disclosure or alleged change of case.
Scope
3.138 The exercise of the discretion to order disclosure would depend on a range of factors including the timing of the trial, whether the defendant was on bail or in custody and the adequacy of legal aid, the adequacy of police and prosecution disclosure, including the extent of disclosure at the committal hearing, the nature of the evidence, for example, where it depends on the availability of overseas witnesses.
3.139 In relation to Recommendation 5(b), the crucial question will be whether the orders for disclosure being sought, which will need to be directed to the particular case, are necessary or desirable in order to ensure a fair trial in which the Crown is sufficiently seized of the real issues to enable its case to be efficiently undertaken. If the case is otherwise within Recommendation 5(a), the judge will need to be satisfied that the disclosure required under that paragraph is inadequate in the circumstances of the case.
Recommendation 7
The Commission recommends that, in appropriate cases, the court should be able to invoke the requirements outlined in Recommendations 2 and 5. The parties should also be able to apply to the judge to order compliance with Recommendation 5(a) and disclosure under Recommendation 5(b).
Relevant jurisdictions
3.140 The Commission does not favour extending the full range of disclosure requirements outlined in Recommendations 2 and 5 to the Local Courts. The Commission considers that, given the nature of summary proceedings, it would not be cost effective to provide for the imposition of these formal disclosure requirements in this jurisdiction. However, the Commission again emphasises the importance of informal, voluntary defence disclosure in the Local Courts. The procedures recommended will require amendment of s 48 of the Criminal Procedure Act 1986 (NSW)251 , which applies presently to notices of alibi in trials on indictment, and to the Justices Act 1902 (NSW).
Recommendation 8
The Commission recommends that the proposed disclosure requirements be applied in the Supreme Court and District Court. The Commission also recommends the following limited disclosure requirements for the Local Courts:
(a) The defence should be required to give notice of proposed alibi evidence a reasonable time before the hearing, subject to the imposition of a more specific time frame by a magistrate.
(b) Magistrates should also be empowered to order the parties to exchange expert reports.
Timetable
3.141 The Commission envisages that, at some appropriate time well before the trial, the Office of the Director of Public Prosecutions would provide its disclosure and would require the defence to provide disclosure by a specified date, failing which disclosure orders would be sought. There is no reason why the defence could not also take this initiative.
Recommendation 9
The Commission recommends that the court be given the power to set a time for compliance with the disclosure requirements set out in Recommendations 2 and 5.
Consequences of non-compliance with the disclosure duties
3.142 The Commission recommends that judges should be given a discretion to impose a number of sanctions for non-disclosure or departure from the disclosed case. These sanctions include refusal to admit material not disclosed in accordance with the requirements and the granting of adjournments to a party whose case would otherwise be prejudiced. In jury trials, the judge and, with leave, counsel would be permitted to comment on non-compliance with the disclosure duties.
3.143 The comment should not suggest any reversal of the onus of proof or that the failure to make the required disclosure was that the defendant was or believed that he or she was guilty of the offence. For reasons which are given in Chapter 4 of this Report, in the context of comment on the failure of a defendant to give evidence, a judge should be able to grant leave in an appropriate case for the prosecution to make appropriate submissions to the jury about a failure to make a timely disclosure or a variation in the case actually presented and that disclosed. The requirement of leave is to ensure that the circumstances both of the pre-trial proceedings and of the trial itself, including any variation in the Crown case from that foreshadowed, are evaluated to ensure that it is fair to permit comment to be made and to limit that comment to appropriate language.
3.144 The nature of permitted comment would depend on the circumstances. Where the defence changed its case, comment inviting the jury to draw an inference adverse to the credibility or reliability of the evidence may well be justified in an appropriate case. Such comment has always been permitted252 and is, in principle, no different from any comment which might be made in relation to a prior inconsistent statement.253 Where the defence raises inconsistent defences, the nature of permitted comment would fall into the same category.
3.145 However, the situation where the defence raises at trial a hitherto undisclosed defence is more difficult. The Commission considers that the proper approach, where the judge is satisfied that it is fair in all the circumstances to do so, is to permit the jury to consider the late disclosure of the defence in evaluating its weight. Fairness will require that the judge to ensure, at the pre-trial stage, that there is clear understanding by the parties as to the extent of the disclosure required and not to permit comment on a failure to disclose or a suggested change of case unless the judge is positively satisfied that there has been a substantial omission or change and that such a comment is justified. Even where comment is permitted, the significance of the non-disclosure or change of case is a matter for the jury to evaluate and it might be appropriate to instruct the jury that there may have been good reasons for non-disclosure or change and give examples of such reasons.254
3.146 If it were proposed to comment to the jury about non-compliance, an appropriate evidentiary ground for so doing would need to be laid. Any determination of the relevance of such evidence (for example, by cross-examination of the defendant) would in the ordinary course require a determination of whether in the circumstances it is fair to permit that line of inquiry. Such a determination would always occur in the absence of the jury unless, perhaps, it is relevant to some issue in the case other than the nature of the comment which may be made.
3.147 The extent of legal representation of the defendant before the trial is a factor which the judge should take into account in determining how to exercise this discretion in the case of non-compliance by the defence. Another relevant factor is the extent to which the prosecution case presented at the trial differed from that disclosed. For example, where prosecution witnesses did not adhere to their witness statements, or unexpected prosecution witnesses came forward during the course of the trial, it may well be unfair in the particular circumstances to impose a sanction on the defendant for departing from the disclosed defence case.
Recommendation 10
The Commission recommends that judges be given a discretion to impose any of the following consequences for non-disclosure or departure from the disclosed case during the trial:
(a) A discretion to refuse to admit material not disclosed in accordance with the requirements.255
(b) A discretion to grant an adjournment to a party whose case would be prejudiced by material introduced by the other party which was not disclosed in accordance with the requirements.
(c) In jury trials, a discretion to comment to the jury or to permit counsel to comment, subject, if appropriate, to any conditions imposed by the trial judge.
(d) In trials without jury, the trial judge may have regard to the failure to comply with the disclosure requirements in the same way as a jury would be entitled to do so.
Restricted use of information disclosed to the defence
3.148 The English pre-trial disclosure regime includes restrictions on the use of information disclosed to the defence. The defendant is required to obtain a court order granting permission to use or disclose material for any other purpose. The Commission’s view is that most such material should be freely available, without any restrictions on its use which is why this recommendation adopts the reverse position to that which applies in England and Wales. In general, where the prosecution is concerned to restrict the use which may be made of particular material to be disclosed to the defence, this should be indicated to the defence immediately before or when the material is actually disclosed. The role of the court should be to determine disputes where agreement cannot be reached between the parties.
3.149 This aspect of the English system also includes provision for interested third parties to apply to the court for a right to be heard in proceedings to resolve the permitted use of particular material. The Commission’s view is that a formal provision to this effect will not be necessary so long as prosecutors remain sensitive to the interests of third parties, as is currently the practice in relation to subpoenas.
3.150 The Commission’s view is that it is not necessary to enact specific procedures or court powers for this situation. Courts already have adequate powers to restrict publication of proceedings or evidence, and, in relation to very sensitive material, the practice already adopted for disputes about public interest immunity might well be an appropriate model for hearings to determine disputes about the permitted use of disclosed material.
Recommendation 11
The Commission recommends that the court should be empowered to make orders concerning the communication, use and confidentiality of material disclosed to the defence.
Procedural considerations
3.151 Having regard to the qualifications of the right to silence which the pre-trial disclosures effect, they require legislative authority for their implementation. Appropriate provisions can be inserted in the Criminal Procedure Act 1986 (NSW). The Commission considers that the appropriate form of detailed implementation, authorised by statute, would be by Rules of Court. This will enable adjustments to be more readily made as the need arises, for example, in response to changes in or refinements of the elements of offences, the creation of new offences, or changes in related procedures. The Commission has made recommendations concerning the elements of particular offences. It may be that experience will suggest disclosure of defence issues involving other offences. There should be a power to extend the requirements of disclosure to those offences.
Recommendation 12
The Criminal Procedure Act 1986 (NSW) should be amended to insert a provision to permit the Supreme Court and the District Court to make Rules requiring disclosure as recommended and such other similar disclosure as might be appropriate in respect of other offences.
Disclosure as a mitigating factor
3.152 The Crimes (Sentencing Procedure) Act 1999 (NSW) already provides that a plea of guilty must be taken into account as a mitigating factor in sentencing convicted persons.256 This reflects the long established common law view of the relevance of a guilty plea to sentence. Although a plea will, in most cases, be taken to indicate contrition, its use as a mitigating factor is not confined to this consideration. A plea of guilty may also be taken into account as an independent factor, as mitigation for the cooperation of the defendant in saving the time and cost of a trial. The Supreme Court of New South Wales has said that the leniency thus afforded is based on “purely utilitarian considerations ... in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay”.257
3.153 The Commission considers that the same utilitarian consideration applies to the conduct of trials. It is important to note that, whilst cooperation may be taken into account in mitigation, the failure to cooperate is not an aggravating factor. This reflects the sentencing principles relating to pleas of guilty.
Recommendation 13
Judges should also be given a discretion to consider compliance with the defence disclosure duties as a mitigating factor when sentencing a defendant who is ultimately convicted.
FOOTNOTES
1. Maddison v Goldrick [1976] 1 NSWLR 651; R v Saleam (1989) 16 NSWLR 14; R v Wesley (1990) Tas R 256; Sobh v Police Force of Victoria (1994) 1 VR 41; Carter v Hayes (1994) 16 SASR 451; Jamieson v The Queen (1993) 177 CLR 574 (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. For a discussion of the circumstances in which the courts will order disclosure and when non-disclosure amounts to a miscarriage of justice, see J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice (Butterworths, Sydney, 1995) at 190.
2. 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) 51 FLR 42; R v Utanis (1982) 29 SASR 592.
3. R v Lawless (1979) 142 CLR 659. 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 per Wells J, Full Court; Gouldham v The Queen [1970] WAR 119 at 122 per Virtue SPJ; at 133 per Wickham J.
4. R v Apostilides (1984) 154 CLR 563 at 575; R v Kneebone [1999] NSWCCA 279.
5. Petty v The Queen (1991) 173 CLR 95 at 108 per Brennan J.
6. NSW, Office of the Director of Public Prosecutions, Prosecution Guidelines (March 1998) furnished pursuant to the Director of Public Prosecutions Act 1986 (NSW) s 13 (“DPP Prosecution Guidelines”).
7. DPP Prosecution Guidelines, Guideline 11 and Appendix D; NSW Police Service, Commissioner’s Instructions, (“Commissioner’s Instructions”) Instruction 92.07.
8. DPP Prosecution Guidelines, Appendix D; Commissioner’s Instructions, Instruction 92.05
9. DPP Prosecution Guidelines, Appendix D; Commissioner’s Instructions, Instruction 92.05. For a discussion of police disclosure obligations by the current NSW Director of Public Prosecutions, see N Cowdery, “Pre-trial Disclosure by the Prosecution to the Defence”, paper presented at the conference Human Rights and the Criminal Process: Is the Right of an Accused to a Fair Trial Being Eroded? (Strasbourg, 15-16 May 1997).
10. New South Wales Law Reform Commission, The Right to Silence and Pre-trial Disclosure in New South Wales (Research Report 10, 2000) at Table 3.3. See also Table 3.1 and para 3.7-3.14.
11. Cowdery at 4.
12. See para 3.9-3.11.
13. Justices Act 1902 (NSW) s 66A(1) and see s 51B, 66A-66H, as amended by the Justices Amendment (Briefs of Evidence) Act 1997 (NSW) s 3 and Sch 3; Justices (General) Regulation 1993 (NSW) cl 13A-13C.
14. The Local Courts can exempt the prosecution from complying with this requirement in exceptional circumstances: Justices Act 1902 (NSW) s 66E.
15. Justices Act 1902 (NSW) s 66B(2).
16. Justices Act 1902 (NSW) s 66G.
17. Justices Act 1902 (NSW) s 66F.
18. Justices Act 1902 (NSW) Part 4 Division 1 Subdivision 7.
19. Committals Review Committee, Report of the Committals Review Committee (New South Wales Attorney General’s Department, Criminal Law Review Division, 1999) at para 3.1-3.3.
20. Justices Act 1902 (NSW) s 48E(2)(a), inserted by the Justices Amendment (Committals) Act 1996 (NSW).
21. Justices Act 1902 (NSW) s 48E(2)(b).
22. R v Kennedy (1997) 94 A Crim R 341; Losurdo v DPP (New South Wales, Supreme Court, 10 March 1998, Hidden J, unreported); Hanna v Kearney (New South Wales, Supreme Court, No 30046/98, 28 May 1998, Studdert J, unreported); DPP v Tanswell (New South Wales, Court of Criminal Appeal, 2 October 1998, unreported); Leahy v Price (New South Wales, Supreme Court, No 11756/98, 28 September 1998, Adams J, unreported). For an evaluation of these amendments, see Committals Review Committee.
23. Law Society of NSW, Solicitors’ Rules (“Solicitors’ Rules”) r A66; NSW Bar Council, NSW Barristers’ Rules (“Barristers’ Rules”) r 66.
24. Solicitors’ Rules, r A67; Barristers’ Rules, r 67. Under r A67 of the Solicitors’ Rules, prosecutors must also inform the defence of the reasons for believing that the evidence may have been obtained illegally or improperly.
25. Solicitors’ Rules, r A66; 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. The Office of the Legal Services Commissioner’s Annual Report for 1996-1997 includes a detailed breakdown of complaints against legal practitioners. There is no reference to complaints against prosecution counsel for non-compliance with disclosure requirements. There are no reported decisions of the Legal Services Tribunal dealing with this.
27. R v Kneebone [1999] NSWCCA 279.
28. DPP Prosecution Guidelines, Guideline 11. For a discussion of the scope of this obligation, see Cowdery at 5-7.
29. DPP Prosecution Guidelines, Guideline 11.
30. DPP Prosecution Guidelines, Guideline 11.
31. DPP Prosecution Guidelines, Guideline 14.
32. DPP Prosecution Guidelines, Guideline 11.
33. N Cowdery, comments at the seminar The Right to Silence (New South Wales Law Reform Commission, Law Week 1998, Sydney, 12 May 1998).
34. DPP Prosecution Guidelines, Guideline 7.
35. DPP Prosecution Guidelines, Introduction.
36. M v DPP (New South Wales, Supreme Court, No 30015/96, Dunford J, 6 March 1996, unreported).
37. NSWLRC RR 10 at Table 3.5. See also Table 3.1 and para 3.7-3.10 and 3.18-3.21.
38. Alistair v The Queen (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14. For a discussion of subpoenas see Hunter and Cronin at 190-200.
39. R v Saleam (1989) 16 NSWLR 14 at 17-18 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.
40. R v Saleam (1989) 16 NSWLR 14 at 17 and 19 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.
41. Hunter and Cronin at 190. Legal aid is available in this situation in murder cases.
42. Criminal Procedure Act 1986 (NSW) s 48 (formerly Crimes Act 1900 (NSW) s 405A).
43. R v Trad (New South Wales, Court of Criminal Appeal, No 60734/94, 19 February 1996, unreported) at 32-33; R v Visser (New South Wales, Court of Criminal Appeal, No 322/94, 21 November 1985, unreported) at 3-5.
44. Lattouf v The Queen (1980) 2 A Crim R 65 at 73-74 per Street CJ, with whom Moffit P and Cantor J agreed. 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.
45. NSWLRC RR 10 at para 3.40-3.43.
46. Crimes Act 1900 (NSW) s 23A, Criminal Procedure Act 1986 (NSW) s 49 (formerly Crimes Act 1900 (NSW) s 405AB).
47. Crimes (General) Regulations 1995 (NSW) reg 4A.
48. Criminal Procedure Act 1986 (NSW) s 49(1) (formerly Crimes Act 1900 (NSW) s 405AB(1)).
49. NSWLRC RR 10 at para 3.44.
50. Criminal Procedure Act 1986 (NSW) s 97 (formerly Crimes Act 1900 (NSW) s 405).
51. See the Crimes (Criminal Trials) Act 1999 (Vic) s 8, 13 and 14. The Law Reform Commission of Western Australia has recently recommended the introduction of compulsory defence opening addresses: Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System (Final Report, 1999) Recommendation 318 and see discussion at para 29.20-29.21.
52. See para 3.21.
53. Evidence Act 1995 (NSW) s 177.
54. Evidence Act 1995 (NSW) s 67, 97, 98.
55. Supreme Court of NSW, Supreme Court Practice Note 103 (1998) 44 NSWLR 184.
56. Supreme Court of NSW, Supreme Court Practice Note 103 (1998) 44 NSWLR 184. There is no equivalent practice direction in the District Court.
57. Crimes (Criminal Trials) Act 1999 (Vic) s 2.
58. Crimes (Criminal Trials) Act 1999 (Vic) s 3.
59. Crimes (Criminal Trials) Act 1999 (Vic) s 4. In general, the presentment must be filed at least 14 days before the first directions hearing. In trials for sexual offences, the presentment must be filed at least 28 days before trial.
60. Crimes (Criminal Trials) Act 1999 (Vic) s 6. This is not required where there has been a properly recorded post-committal conference.
61. Crimes (Criminal Trials) Act 1999 (Vic) s 7.
62. Crimes (Criminal Trials) Act 1999 (Vic) s 9.
63. Crimes (Criminal Trials) Act 1999 (Vic) s 10(1).
64. Crimes (Criminal Trials) Act 1999 (Vic) s 10. The Court is also empowered, but not required, to hold directions hearings designed to increase the capacity for judicial management of the trial process: see s 5.
65. Crimes (Criminal Trials) Act 1999 (Vic) s 15.
66. Crimes (Criminal Trials) Act 1999 (Vic) s 16(1). The trial judge’s discretion to allow a party to comment is regulated, as is the nature of comment permitted: s 16(2) and (3).
67. Crimes (Criminal Trials) Act 1999 (Vic) s 24-27.
68. Crimes (Criminal Trials) Act 1999 (Vic) s 28.
69. Crimes (Criminal Trials) Act 1999 (Vic) s 19.
70. Crimes (Criminal Trials) Act 1993 (Vic). R v Garner [1994] 1 VR 400 at 403, 405; R v Smith [1995] 1 VR 10 at 36.
71. R v Garner [1994] 1 VR 400 at 403, 405; R v Smith [1995] 1 VR 10 at 36; Victoria, Scrutiny of Acts and Regulations Committee, Inquiry into the Right to Silence (Final Report, 1999) Recommendation 7 and para 2.4; C Corns, Anatomy of Long Criminal Trials (AIJA, Melbourne, 1997) at 62-65; K Mack and S Roach Anleu, Pleading Guilty: Issues and Practices (AIJA, Melbourne, 1995) at 125; M Pedley, “The Problems with Court Rules and Procedure in Criminal Cases – A Prosecution Perspective” paper presented at the conference Reform of Court Rules and Procedures in Criminal Cases (AIJA, Brisbane, 3-4 July 1999).
72. C Corns, Submission at 2.
73. Crimes Act 1958 (Vic) s 399A and 399B; Crimes (Criminal Trials) Act 1993 (Vic) s 11(3)(c).
74. See para 3.19.
75. Crimes Act 1958 (Vic) s 399A.
76. Crimes Act 1958 (Vic) s 399B.
77. Supreme Court of Victoria, Pegasus Two Initiative (Criminal List Practice Direction, 3 August 1998).
78. Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System (Final Report, 1999) at para 24.13.
79. Criminal Code (WA) s 636A.
80. See para 3.19.
81. Western Australia, Draft Criminal Practice Rules, Order 6(1).
82. Western Australia, Draft Criminal Practice Rules, Order 6(2).
83. Western Australia, Draft Criminal Practice Rules, Order 6(3). The Draft Rules provide for the judge to comment to the jury on non-disclosure.
84. See para 3.74-3.82.
85. Criminal Code (NT) s 331; Criminal Code (Tas) s 368A; Criminal Procedure Act 1986 (NSW) s 111 (as it applies in the ACT) (formerly Crimes Act 1900 (NSW) s 406); Criminal Law Consolidation Act 1935 (SA) s 285C. In South Australia, disclosure is not required where the substance of the alibi was disclosed at the committal.
86. See para 3.19.
87. 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.
88. Criminal Code (Qld) s 590A. Note that the Criminal Code (Qld) s 458 inserted provisions in respect of notice of alibi into the Evidence Act 1977 (Qld). Part 7A s 129A-F of the Evidence Act 1995 (Qld) were never proclaimed, however, and were subsequently omitted by the Criminal Law Amendment Act 1997 (Qld) s 121.
89. See para 3.19.
90. Criminal Code (Qld) s 590B.
91. Criminal Procedure and Investigations Act 1996 (Eng) (“CPIA”) s 1. The provisions of the CPIA are modified in their application to Northern Ireland: see s 79 and Sch 4. For a discussion of the CPIA see D Corker, “Maximising Disclosure” (1997) 147 New Law Journal 885, 961 and 1063; N Purnell, “A Brief Guide to Part 1 of the Criminal Procedure and Investigations Act 1996” (1997) 1 Archbold News 4; J Sprack, “The Criminal Procedure and Investigations Act 1996: (1) The Duty of Disclosure” [1997] Criminal Law Review 308; A Edwards, “The Criminal Procedure and Investigations Act 1996: (2) The Procedural Aspects” [1997] Criminal Law Review 321.
92. CPIA s 21. For a discussion of the previous common law rules see M Aronson and J Hunter, Litigation, Evidence and Procedure (6th ed, Butterworths, Sydney, 1998) at para 14.74-14.77.
93. See Sprack at 309-310; Cowdery at 8-9; Association of Chief Police Officers, Criminal Procedure and Investigations Act 1996 – A Guide to the Disclosure of Unused Material (1996) at 1-2; S Sharpe, “Disclosure, Immunity and Fair Trials” (1999) 63 Journal of Criminal Law 67. See also R v DPP; ex parte Lee [1999] 2 All ER 737.
94. CPIA s 23 and 24. For a discussion of the Code of Practice and defence strategies in response to it, see Corker.
95. CPIA s 3, 4, 9. For a discussion of the scope of this requirement, see Corker.
96. CPIA s 3(6). Material intercepted under a warrant under the Interception of Communications Act 1985 (Eng) is also exempted from disclosure: s 3(7). For a discussion of the scope of public interest immunity in this context see Corker at 962; Edwards.
97. CPIA s 3(8), 12 and 13.
98. CPIA s 1(2)(a).
99. R v DPP; ex parte Lee [1999] 2 All ER 737 (QBD).
100. CPIA s 5(6). For a discussion of the scope of the defence disclosure requirements, see Sprack at 311-312. Corker at 961-962 and 1063-1064; Edwards at 328.
101. CPIA s 5(7). Note that s 74 and 80 of the CPIA repeal the previous alibi evidence disclosure requirements in the Criminal Justice Act 1967 (Eng) s 11.
102. CPIA s 5, 12; Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 (Eng) reg 2-5. For a discussion of the practical implications of the right to apply for an extension, see Corker at 961; Edwards at 326-327.
103. CPIA s 6. For a discussion of the position in summary cases where the defence elects not to invoke the CPIA, see Sprack at 318.
104. CPIA s 7. Note that this is an objective test, in contrast to the subjective test which applies in relation to primary prosecution disclosure.
105. CPIA s 7.
106. CPIA s 3(8), 12, and 13.
107. CPIA s 9. See also DPP v Metten [1999] EWJ 566; Corker at 962.
108. CPIA s 17, 18.
109. CPIA s 8. However, the defence can only challenge primary prosecution disclosure after it has complied with the defence disclosure requirements. For a discussion of the defence’s right to challenge the adequacy of prosecution disclosure see Corker at 962.
110. CPIA s 3(6) (primary prosecution disclosure), s 7(5) (secondary prosecution disclosure), s 8(5) (secondary disclosure pursuant to a court order), s 9(8) (continuing disclosure). The defence can apply for a review of decisions on the disclosure of sensitive material: s 14 and the court is specifically required to keep under review decisions on the disclosure of sensitive material: s 15. Third parties can also apply to be heard on applications for the disclosure of sensitive material in certain circumstances: s 16. See Edwards at 327.
111. CPIA s 14, 15.
112. CPIA s 10. See Edwards at 327.
113. R v Stratford Justices [1999] EWJ 356; DPP v Metten [1999] EWJ 566.
114. CPIA s 11 provides that failing to give a defence statement, failing to do so within the time limit, nominating inconsistent defences, and departing from the disclosed defence case are all breaches of the defence disclosure requirements.
115. CPIA s 11.
116. CPIA s 23. For a discussion of these sanctions, see Sprack at 312-313; Edwards at 328.
117. The Hon DK Malcolm AC, Chief Justice of the Supreme Court of Western Australia, Submission at 5.
118. Crown Court (Advance Notice of Expert Evidence) Rules 1987 (Eng) r 3, as amended by the Crown Court (Advance Notice of Expert Evidence) (Amendment) Rules 1997 (Eng) r 3; Magistrates’ Courts (Advance Notice of Expert Evidence) Rules 1997 (Eng) r 3. In summary trials in the Magistrates’ Courts, disclosure is required as soon as practicable after the defendant has pleaded.
119. Crown Court (Advance Notice of Expert Evidence) Rules 1987 (Eng) r 3; Magistrates’ Courts (Advance Notice of Expert Evidence) Rules 1997 (Eng) r 5.
120. Criminal Justice Act 1987 (Eng) s 9.
121. Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (Eng) art 3.
122. Criminal Justice Act 1987 (Eng) s 9. Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (Eng) art 8.
123. Criminal Justice Act 1987 (Eng) s 10; Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (Eng) art 9.
124. G Santow, “Corporate Crime: Complex Criminal Trials — Commentary” (1994) 5 Current Issues in Criminal Justice 280 at 287; M Aronson, Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure (AIJA, Melbourne, 1992) at 40.
125. Corns at 55-56; Aronson at 40; Mack and Roach Anleu (1995) at 124-125; Director of Public Prosecutions (Cth), Annual Report (1992-1993) at 92; Santow at 287; M Hill, “The Seduction of the Fix – Reforming Court Process for Law Enforcement – New Directions” paper presented at the Conference Reform of Court Rules and Procedures in Criminal Cases (AIJA, Brisbane, 3-4 July 1998) at 143. See para 3.31.
126. CPIA s 28-34.
127. CPIA s 31(4) and (5).
128. CPIA s 31(6) and (7). For a discussion of this system, see Corker at 1064; Edwards at 322.
129. M Esqueda, “Reciprocal Criminal Discovery Rule” (1997) 74 University of Detroit Mercy Law Review 317 at 324.
130. Brady v Maryland 373 US 83 (1963) at 87.
131. See L Sarokin and W Zuckerman, “Presumed Innocent?” (1991) 43 Rutgers Law Review 1089 at 1105-1106.
132. The Jencks Act 18 USC s 3500(a) (1988).
133. Williams v Florida 300 US 78 (1970).
134. Esqueda at 325.
135. Esqueda at 326.
136. See New Jersey Rules Governing Criminal Practice r 3.13, discussed in Sarokin and Zuckerman at 1108-1109; Michigan Court Rules r 6.021 discussed in Esqueda at 327.
137. Allen v District Court 803 P 2d 1164 (1990), discussed in R Uphioff, “Criminal Discovery in Okalahoma: A Call for Legislative Action” (1993) 46 Okalahoma Law Review 381.
138. R v Cleghorn [1995] 3 SCR 175.
139. R v Stinchcombe [1991] 3 SCR 326; R v Cook [1997] 1 SCR 1113; R v Dixon [1998] 1 SCR 244; R v Chaplin [1995] 1 SCR 727; R v Carosella [1997] 1 SCR 80.
140. The submissions which supported statutory prosecution pre-trial disclosure requirements were: Law Society of NSW, Submission 2 at 1; NSW Bar Association, Submission at para 2; Youth Justice Centre, Submission at 4; C Corns, Submission at 2; J Fleming, Submission at 1.
141. Australian Securities Commission, Submission at 2; B Bright, Submission at 2; C Corns, Submission at 2; J Cramond, Submission at 1-2; A Clarke, Submission at 2; T Cleary, Submission at 2; E Elms, Submission at 2; B Kennedy, Submission at 2; Law Society of NSW, Submission 2 at 2; The Hon DK Malcolm AC, Chief Justice of the Supreme Court of Western Australia, Submission at 3-4; Marsdens, Submission 2 at 3; R Miller, Submission at 4 ; NSW Police Service, Submission at 2; Police Association of NSW, Submission 1 at 6; Police Association of NSW, Submission 2 at 3; K Rogers, Submission at 2; D Shillington, Submission at 1-2; M Tedeschi, Submission at 3; C Levingston, Submission at 2; G Jones, Oral Submission; Carroll and O’Dea, Submission at 3; J Fleming, Submission at 3.
142. A Arafas, Submission at 3; R Jones, Submission at 2; J Gallagher, Submission at 6; Justice Action, Submission at 1-2; Marsdens, Submission 1 at 3; Mt Druitt Community Legal Centre, Submission at 1-2; NSW Bar Association, Submission at 1; NSW Council for Civil Liberties, Submission at 3; UTS Community Law and Legal Research Centre, Submission at 5; Youth Justice Coalition, Submission at 4-5; S Doumit, Oral Submission; NSW Young Lawyers, Submission at 5.
143. New South Wales Law Reform Commission, Criminal Procedure – Procedure from Charge to Trial: A General Proposal for Reform (DP 13, 1986) at para 19, 33, 44, 68, 69, 72.
144. NSWLRC DP 13 at para 74.
145. NSW Attorney General’s Department, Discussion Paper on Reforms to the Criminal Justice System (1989) at 51-56. Judicial comment and adverse inferences would be available for non-compliance with this requirement.
146. Aronson at 39, 41.
147. J Nader, Submission to the Honourable Attorney General Concerning Complex Criminal Trials (1993) at 37-39.
148. Nader at 37-39. Where the prosecution departed from its disclosed case, the trial judge and defence counsel would be permitted to comment to the jury (at 44). The prosecution would be permitted to reopen its case in the case of defence departure (at 44). The recommended sanctions for non-compliance by the defence included costs orders (at 52-53) and judicial and prosecution comment (at 44). The judge would also be empowered to award sentencing discounts where defence disclosure reduced the issues (at 48).
149. Nader at 40-42.
150. Nader at 42.
151. Mack and Roach Anleu (1995) Recommendation 11 and see 87-91. The Report recommended that the requirements for prosecution disclosure be continuing, that the prosecution should be required to verify compliance with the requirements, that the courts be empowered to resolve disputes about prosecution disclosure and that provision be made for restricted disclosure on the basis of public interest immunity. See also Recommendations 3 and 14.
152. Mack and Roach-Anleu (1995) Recommendation 19 and see 124-126.
153. Corns at para 6.2.1-6.2.4.
154. Working Group on the Right to Silence, Report of the Working Group on the Right to Silence (London, 1989) at para 102.
155. Working Group on the Right to Silence at para 103 and see para 104-105.
156. Working Group on the Right to Silence at para 106 and see para 107-108. The Working Group recommended at para 110 that the trial judge and the prosecution should be permitted to comment to the jury and that the jury be able to draw adverse inferences where the defence did not comply with this requirement.
157. Joint Statement from the Premier of NSW, Mr Bob Carr, and the Attorney General, Mr Jeff Shaw QC, Overhaul of Criminal Trial Process – Defence Required to Outline its Case Before Trial (10 January 1999).
158. J Shaw, “Justice Can be Faster and Fairer” The Australian (21 January 1999) at 11.
159. Carr and Shaw. The trial judge would have a discretion to refuse to admit defence evidence not disclosed in accordance with these requirements. See also J Shaw, “Justice Can be Faster and Fairer” The Australian (21 January 1999) at 11; F Hampel, “Put Legal Rights Before Rhetoric” The Australian (21 January 1999) at 11; J Shaw, “Justice Made Quicker and Simpler” Sydney Morning Herald (13 January 1999) at 11; “Justice Will be Served” (Editorial) Sydney Morning Herald (19 January 1999) at 12; A Bernoth, “Carr ‘Puts Fair Trials at Risk’” Sydney Morning Herald (11 January 1999) at 5.
160. Law Council of Australia, Draft Principles for the Reform of Pre-trial Criminal Procedure (1999) at 4-5.
161. Law Council of Australia at 2-3. The Law Council proposes at 3 that evidence which is not disclosed by the prosecution should not be admitted except in exceptional circumstances.
162. Law Council of Australia at 5.
163. Law Council of Australia at 5.
164. National Legal Aid / Australian Directors of Public Prosecution, Best Practice Model for the Determination of Indictable Charges (1999) at 2 and 4.
165. National Legal Aid / Australian Directors of Public Prosecution at 3-4. It is proposed that defence disclosure be taken into account at sentencing.
166. Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System (Final Report, 1999).
167. WALRC, Recommendation 252(1). See discussion at para 24.12-24.14; Western Australia Office of the Director of Public Prosecutions, Prosecution Guidelines (1993).
168. WALRC, Recommendation 280 and 282. See discussion at para 27.11-27.13 and 27.19-27.21.
169. WALRC, Recommendation 286.
170. WALRC, Recommendation 281.
171. WALRC, Recommendation 287. See discussion at para 27.21.
172. WALRC at para 24.21.
173. WALRC, Recommendation 252(2).
174. WALRC, Recommendation 253(1).
175. WALRC, Recommendation 253(2). See discussion at para 24.15-24.20.
176. WALRC, Recommendation 253(4).
177. WALRC, Recommendation 253.
178. WALRC, Recommendation 254. See discussion at para 24.14.
179. Recommendation 289. See discussion at para 27.24.
180. WALRC, Recommendations 257, 259 and see Chapter 25.
181. Standing Committee of Attorneys-General, Federal Government Working Group on Criminal Trial Procedure, Report (1999).
182. Federal Government Working Group on Criminal Trial Procedure, Recommendations 1-6, 12, 29. The Working Party recommends that the prosecution be required to obtain the leave of the court in order to lead evidence which was not disclosed in accordance with these requirements.
183. Federal Government Working Group on Criminal Trial Procedure, Recommendations 27, 30. The Working Group recommends that the defendant should be required to obtain leave to lead evidence not disclosed in accordance with these requirements. The trial judge should also be empowered to restrict the cross-examination of prosecution witnesses in relation to defences which the defendant did not identify as required. The Working Party also favoured sentencing discounts for defendants who provided full disclosure.
184. Law Council of Australia at 2, 4-5.
185. This view was also expressed by C Corns, Submission at 2; New South Wales Law Reform Commission, Criminal Procedure: Procedure from Charge to Trial 1- Specific Problems and Proposals (Discussion Paper 14, 1987) at 95.
186. New South Wales, Bureau of Crime Statistics and Research, “NSW Criminal Court Statistics” (as at 23 April 1999) [http://www.lawlink.nsw.gov.au/bocsar/courtstat.html]. See also K Mack and S Roach Anleu, “Reform of Pre-trial Criminal Procedure: Guilty Pleas” (1998) 22 Criminal Law Journal 263 at 264 and 270; Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981) at para 8.12.
187. See also Royal Commission on Criminal Procedure at para 8.18; NSWLRC DP 14 at paras 4.2, 4.6, 4.7, 4.58, 4.59, 4.65, 4.66; “Disclosure and Disequilibrium” (Editorial) [1995] Criminal Law Review 585 at 586; Mack and Roach Anleu (1995) 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; Law Society of the ACT, Submission at para 4.1.
188. See also O’Connor at 464. In the case of Rendell, who had been convicted of murder but was pardoned following an Inquiry under s 475 of the Crimes Act 1900 (NSW), vital ballistics tests which supported the defence case were concealed both from the Crown and the defence.
189. Cowdery at 3.
190. WALRC at para 24.16.
191. NSWLRC DP 14 at para 4.66. This view was also expressed by C Levingston, Submission at 3. See also O’Connor at 464; Mack and Roach Anleu (1995) at 87; McIlkenny v The Queen (1991) 93 Cr App R 287 at 312; Law Council of Australia at 2; Sprack at 319.
192. Royal Commission on Criminal Procedure at para 8.23.
193. Working Group on the Right to Silence at para 93.
194. International Covenant on Civil and Political Rights art 14.
195. International Covenant on Civil and Political Rights art 14(3)(b).
196. 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 (Federation Press, Sydney, 1998) at 8; Law Society of the ACT, Submission at 4.
197. Dietrich v The Queen (1992) 177 CLR 292 at 305, 321, 348, 359-360.
198. Dietrich v The Queen (1992) 177 CLR 292 at 321, 348-349.
199. Cowdery at 3 in relation to the European Convention on Human Rights art 6.
200. This reason was also relied on by the Working Group on the Right to Silence at para 93; Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London, 1993) at 97; NSWLRC DP 14 at para 4.6, 4.60, 4.62-4.64; Mack and Roach Anleu (1995) at 87, 111-112; Crimes (Criminal Trials) Act 1993 (Vic) s 1; Nader at 37-38; Mack and Roach Anleu (1998) at 264-265; Cowdery at 3. See also National Legal Aid/Australian Direcotrs of Public Prosecution Best Practice Model for Determination of Indictable Charges at 3, which discusses the need for early involvement by both prosecution and defence counsel with authority to make decisions and obtain instructions for the resolution of the charge.
201. Mack and Roach-Anleu (1998) at 264-265.
202. Corns at 53-54; Aronson at 61.
203. NSWLRC RR 10 at Table 3.4 and 3.6. See para 3.15-3.17 and 3.21-3.36.
204. This was also emphasised by C Corns, Submission at 2.
205. NSWLRC DP 14 at para 4.70; O’Connor at 471. (This argument is not relevant in relation to material which the prosecution does not intend to use as evidence.)
206. “Disclosure and Disequilibrium” at 589; R v Saleam (1989) 16 NSWLR 14 at 17, 19.
207. Royal Commission on Criminal Justice at 93; NSWLRC DP 14 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 para 300-301; “Disclosure and Disequilibrium” at 585; Santow at 285.
208. Royal Commission on Criminal Justice at 93; Cowdery at 6.
209. See also NSWLRC DP 14 at para 4.70; Mack and Roach Anleu (1995) at 112; “Disclosure and Disequilibrium” at 585; Committee of Inquiry into the Enforcement of Criminal Law in Queensland at para 300-301.
210. Crimes Act 1900 (NSW) Part 7 s 314-326.
211. The Royal Commission on Criminal Justice also acknowledged this at 93.
212. R v Alladice (England, Court of Appeal, 12 May 1988, unreported); Police Association of New South Wales, Submission 1 at 4; E Elms, Submission at 2; B Kennedy, Submission at 2; L Davies, Submission at 4, NSWLRC DP 14 at para 5.11; Royal Commission on Criminal Procedure at para 8.22; Royal Commission on Criminal Justice at 97; G Davies, “Justice Reform: A Personal Perspective” [1996] Bar News (Summer) 5 at 11; Cowdery at 2 and 7; “Justice Will be Served” (Editorial) Sydney Morning Herald (19 January 1999) at 12; J Shaw, “Justice Can be Fairer and Faster” The Australian (21 January 1999) at 11; M Pedley, “The Problems with Court Rules and Procedure in Criminal Cases – A Prosecution Perspective”, Paper presented at the conference Reform of Court Rules and Procedures in Criminal Cases (AIJA, Brisbane, 3-4 July 1999); N Vass, “Carr to Ban Courtroom ‘Ambush’” Sunday Telegraph (10 January 1999) at 3; “New Procedures in Criminal Trials” The Advocate (12 January 1999) at 4; P Faris QC, “Disclosure and Discovery in the Criminal Trial” paper presented at the 6th International Criminal Law Congress (Melbourne, 9-13 October 1996). One submission argued that the defence was entitled to surprise the prosecution at trial: Mt Druitt Community Legal Centre, Submission at 2 and one submission argued that while defence disclosure assists the credibility of the defence, the defendant should be entitled to choose whether to disclose the defence case: R Jones, Submission at 2.
213. Working Group on the Right to Silence at para 101 and see para 20 and 93.
214. R Leng, “The Right to Silence Debate” in D Morgan and G Stephenson (eds), The Right to Silence in Criminal Investigations (Blackstone Press, London, 1994) at 29.
215. Leng at 28-30; D Dixon, “Politics, Research and Symbolism in Criminal Justice: The Right of Silence and the Police and Criminal Evidence Act” (1991-1992) 20-21 Anglo-American Law Review 27 at 37; D Dixon, Law in Policing: Legal Regulation and Police Practices (Clarendon Press, Oxford, 1997) at 234; I Dennis, “The Criminal Justice and Public Order Act 1994 – The Evidence Provisions” [1995] Criminal Law Review 4 at 12-14; D Brown, PACE Ten Years On: A Review of the Research (Home Office, London, 1997) at 184-185.
216. Dixon (1997) at 233; Dennis at 12-14; Leng at 30.
217. Dixon (1997) at 233; Dennis at 12-14; Leng at 30. It has been suggested that this reflects the lack of credibility such defences have in the view of the court or jury: see Royal Commission on Criminal Procedure at para 8.20; NSWLRC DP 14 at para 5.13, 5.44. However, under the present law, the court or jury is unlikely to become aware of the fact that a defence was raised for the first time at trial, because the Crown is not permitted to lead evidence of this: Petty v The Queen (1991) 173 CLR 95.
218. T Dalla, Oral Submission; Law Society of NSW, Submission 1 at 8 and 13-15; Submission 2 at 2; NSW Young Lawyers, Submission at 5; UTS Community Law and Legal Research Centre, Submission at 6. See also Victoria, Scrutiny of Acts and Regulations Committee at para 2.3.3; M Ierace, “A Response to Justice Davies’ Paper [1999] Bar News (Spring) 33 at 39.
219. NSWLRC RR 10 at Tables 3.10 and 3.11. See para 3.64-3.67.
220. NSWLRC RR 10 at Table 3.12. See para 3.68-3.69.
221. K Rogers, Submission at 2; The Hon DK Malcolm AC, Chief Justice of the Supreme Court of Western Australia, Submission at 4.
222. New Zealand, Law Commission, Juries in Criminal Trials (Preliminary Paper 37, 1999) vol 2.
223. Adverse comments were made by jurors on the lack of any statement by way of opening the defence case and some jurors responded to the lack of a clearly articulated defence case by assuming that the defendant was guilty and that counsel’s efforts should not be taken too seriously: NZ Law Commission at para 2.29-2.42.
224. NSW Police Service, Submission at 2; Police Association of NSW, Submission 2 at 3-4. See also B Bright, Submission at 2; A Bernoth, “Carr ‘Puts Fair Trials at Risk’” Sydney Morning Herald (11 January 1999) at 5; Davies at 11.
225. J Cramond, Submission at 1; A Arafas, Submission at 3; NSW Police Service, Submission at 2; Police Association of NSW, Submission 2 at 3; C Corns, Submission at 2; DS Shillington, Submission at 1; The Hon DK 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; NSWLRC DP 14 at para 4.2, 4.6, 4.60, 4.62-4.64, 5.10-5.14; Mack and Roach Anleu (1995) at 87, 122; Corns at 112-113; Crimes (Criminal Trials) Act 1993 (Vic) s 1; Pedley; Fraud Trials Committee, Report of the Fraud Trials Committee (London, 1986) at para 6.72; Faris QC; 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; Cowdery at 7-8; National Legal Aid/Australian Directors of Public Prosecution Best Practice Model for the Determination of Indictable Charges at 1; “Justice Will be Served” (Editorial) Sydney Morning Herald (19 January 1999) at 12; K Lyall, “Courts to Fast-track Criminal Trials” The Australian (3 August 1998) at 5; C Milburn, “Judges Told to Shorten Long Trials” The Age (27 June 1998) at 3; “Criminal Trial Reform Offers Benefits for All” (Editorial) The Australian (19 June 1998) at 12; L Olsson, “To How Much Silence Ought an Accused be Entitled?” (1999) 8 Journal of Judicial Administration 131.
226. NSWLRC RR 10 at Tables 3.7, 3.8 and 3.9. See discussion at para 3.45-3.59.
227. A Arafas, Submission at 3. It has also been argued that police do not tend to investigate alibi evidence disclosed to them in accordance with the existing requirements, and that wider defence disclosure requirements would not produce efficiency gains because it is unlikely that the police would investigate any other information disclosed to them: see NSW Council for Civil Liberties, Submission at 3.
228. Law Society of New South Wales, Submission 2 at 2; Youth Justice Coalition, Submission at 4-5. See also WALRC at 34-35.
229. S Doumit, Oral Submission; J Fleming, Submission at 2; Mt Druitt Community Legal Centre, Submission at 1-2; Marsdens, Submission 1 at 3; Justice Action, Submission at 1; NSW Council for Civil Liberties, Submission at 1 and 3; Youth Justice Coalition, Submission at 4 and 6; UTS Community Law and Legal Research Centre, Submission at 1, 5 and 6; Law Society of NSW, Submission 2 at 2; A Arafas, Submission at 3. See also Law Council of Australia Draft Principles for the Reform of Pre-trial Criminal Procedure at 1-2 and 7-8; Legal Aid Victoria, Submission to Victorian Scrutiny of Acts and Regulations Commitee, Inquiry into the Right to Silence at 2-3; F Hampel, “Put Legal Rights Before Rhetoric” The Australian (21 January 1999) at 11; “Lawyers Slam Defence Move” Daily Telegraph (13 January 1999) at 5.
230. 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 (1995) at 125; Corns 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, Melbourne, 1985) at para 4.101; Mack and Roach Anleu (1998) at 272-273; NSWLRC DP 14 at para 4.69, 5.1, 5.15, 5.42; R v Ling (1996) 90 A Crim R 376.
231. Justice Action, Submission at 1; NSW Council for Civil Liberties, Submission at 1 and 3; UTS Community Law and Legal Research Centre, Submission at 1 and 5. See also S Sharpe, “Article 6 and the Disclosure of Evidence in Criminal Trials [1999] Criminal Law Review 273.
232. See the decision of the High Court in McKinney v The Queen (1991) 171 CLR 468, where Dawson J at 488 observed that a fair trial is one which is fair to both sides.
233. Royal Commission on Criminal Justice at 97-98. See also Corns, Submission at 2; Cowdery at 7-8; WALRC at 31.
234. S Doumit, Oral Submission; J Fleming, Submission at 2; Law Society of NSW, Submission 2 at 4. See also NSW Council for Civil Liberties, Submission at 1; O’Gorman at 25.
235. Crimes Act 1900 (NSW) Part 7 s 314-326.
236. The UTS Community Law and Legal Research Centre, Submission at 6 also made this point.
237. See para 3.32.
238. Marsdens, Submission 1 at 3; Law Society of NSW, Submission 2 at 3. See also Royal Commission on Criminal Justice at 100; Mack and Roach Anleu (1995) at 125.
239. New South Wales Law Reform Commisison, The Right to Silence (Discussion Paper 41, 1998) at para 4.82.
240. Law Society of NSW, Submission 2 at 2 and 3; Youth Justice Coalition, Submission at 5.
241. A Arfaras, Submission at 3; C Corns, Submission at 2; S Doumit, Oral Submission; J Fleming, Submission at 1; Youth Justice Coalition, Submission at 4-6; UTS Community Law and Legal Research Centre, Submission at 5; Law Society of NSW, Submission 2 at 2-4; Justice Action, Submission at 1; NSW Council for Civil Liberties, Submission at 1. But contra B Hocking and L Manville, Submission at 20, who suggest that it is arguable that following Dietrich there is a degree of equality between the prosecution and the defence. See also Working Group on the Right to Silence at para 92, 102; Royal Commission on Criminal Justice, dissent by Zander at 222-223; NSWLRC DP 41 at para 4.67; Mack and Roach Anleu (1995) at 125; P Gibson, “Government’s False Conviction” Daily Telegraph (14 January 1999) at 12; T Nyman, “Changes in Trials will be Hardest on the Vulnerable” Sydney Morning Herald (12 January 1999) at 11.
242. C Corns, Submission at 2; Law Society of NSW, Submission 1 at 12; Submission 2 at 1. One submission suggested that the introduction of a custody solicitor scheme at the police station would also assist the pre-trial disclosure process: G Kellner, Submission at 6.
243. Legal Aid Commission, Scale of Fees in Criminal Matters (July 2000).
244. S Doumit, Oral Submission; J Fleming, Submission at 1; Youth Justice Coalition, Submission at 4-5; Law Society of NSW, Submission 2 at 1; Justice Action, Submission at 1; NSW Council for Civil Liberties, Submission at 1; B Bright, Submission at 2; UTS Community Law and Legal Research Centre, Submission at 6; J Gallagher, Submission at 6. See also Corns at 63; Santow at 286; WALRC at 35.
245. Royal Commission on Criminal Justice, dissent by Zander at 222-223; Greer (1994) at 107 and 109; Mack and Roach Anleu (1995) at 125; NSWLRC DP 14 at para 5.40; Corns at 53-55; Aronson at 61.
246. Youth Justice Coalition, Submission at 5; Marsdens, Submission 1 at 3; J Gallagher, Submission at 6.
247. NSWLRC RR 10 at para 3.40-3.43.
248. See, for example, R v BD (1997) 92 A Crim R 168.
249. See para 3.30.
250. R v Basha (1989) 39 A Crim R 337; R v Sandford (1994) 33 NSWLR 172 at 180-181.
251. Formerly Crimes Act 1900 (NSW) s 405A.
252. See Petty v The Queen (1991) 173 CLR 95 at 101-102 per Mason CJ, Deane, Toohey, McHugh JJ.
253. See the discussion in Chapter 4 of this Report of Weissensteiner v The Queen (1993) 178 CLR 217.
254. RPS v The Queen [2000] HCA 3 at para 15.
255. This power is analogous to the sanction for non-compliance with the alibi notice requirement provided for by s 48 of the Criminal Procedure Act 1986 (NSW) (formerly s 405A of the Crimes Act 1900 (NSW)). The circumstances in which this sanction will be invoked have been the subject of judicial consideration. See para 3.20.
256. Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 (formerly Crimes Act 1900 (NSW) s 439).
257. R v Winchester (1992) 58 A Crim R 345 at 350.
