3.1 Pre-trial and pre-hearing disclosure in New South Wales is regulated by a combination of common law, legislation and guidelines and rules issued by the Director of Public Prosecutions, the Bar Association and the Law Society. There are extensive requirements for disclosure by investigating police to the prosecution, and by the prosecution to the defence. In limited circumstances, the accused is also required to disclose information about certain defences to the prosecution before the hearing or trial.

3.2 In matters prosecuted by the Office of the Director of Public Prosecutions, investigating police are required to disclose to Crown prosecutors a brief of evidence, consisting of all material and information in their possession relevant to the proof of the charge. Police are also required to provide a written certificate notifying the Director of Public Prosecutions of the existence of all other material which might be relevant to either the prosecution or the defence.¹

3.3 In most offences prosecuted in the Local Courts, the prosecution is required to disclose the brief of evidence to the defence at least 14 days before the hearing.² For offences prosecuted by the Office of the Director of Public Prosecutions, the prosecution is required to disclose to the defence all material which might be relevant to any issue likely to arise at the hearing or trial, including material relevant to either the guilt or innocence of the accused.³

3.4 In addition to these requirements, the defence can subpoena the prosecution to disclose material in certain circumstances.⁴

3.5 In hearings and trials in the District and Supreme Courts, the defence is required to notify the prosecution of proposed alibi evidence.⁵ In murder trials, the defence is also required to give notice of the intention to raise the defence of substantial impairment by abnormality of mind.⁶

OTHER JURISDICTIONS

3.6 Disclosure requirements vary considerably both within Australia and overseas. Victoria and the United Kingdom have enacted legislation imposing extensive, reciprocal disclosure duties on the prosecution and the defence, with a range of different sanctions for non-compliance.⁷ In Queensland and the United Kingdom, the prosecution and the defence are required to give notice of proposed expert evidence and exchange copies of expert reports.⁸ Disclosure of proposed alibi evidence is also required in all Australian States and Territories, as well as in the United Kingdom.⁹

THE COMISSION’S FINDINGS

Police and prosecution disclosure

3.7 The Commission asked judges and magistrates to rate the general level of police and prosecution pre-trial and pre-hearing disclosure to the defence in pleas, hearings and trials they presided over. Defence lawyers were asked to rate the general level of police and prosecution disclosure in pleas, hearings and trials they conducted.¹⁰ Their responses to this question are set out in Table 3.1.

Table 3.1: General level of police and prosecution pre-trial and pre-hearing disclosure

3.8 Overall, the most common response was that the level of police and prosecution pre-trial and pre-hearing disclosure was generally adequate. Magistrates were most likely to give this response, with 82% of magistrates responding that the level of pre-hearing disclosure by police and police prosecutors was generally adequate. Defence lawyers were least likely to respond that disclosure was generally adequate, and most likely to respond that the level of disclosure was sometimes adequate and sometimes inadequate. 33% of defence lawyers gave this response.

3.9 Judges, magistrates and defence lawyers were also asked about the type of material which was not disclosed by police and the prosecution to the defence. The responses to this question are set out in Table 3.2.

Table 3.2: Type of material not disclosed

3.10 Most judges, magistrates and defence lawyers responded that pre-trial and pre-hearing disclosure by police and prosecutors was always adequate. Most of those who answered this question on the basis that there were instances where disclosure was inadequate responded that the type of material not disclosed to the defence was sometimes material which assisted the prosecution and sometimes material which assisted the defence. 27% of defence lawyers responded that material which was not disclosed was generally material which assisted the defence case.

Disclosure by investigating police to the prosecution

3.11 Judges and magistrates were asked how often investigating police complied with their pre-trial disclosure obligations to the prosecution, in pleas, hearings and trials they presided over. Prosecutors and defence lawyers were asked this question in relation to pleas, hearings and trials they conducted. Their responses to this question are set out in Table 3.3.

Table 3.3: How often investigating police complied with their disclosure duties

3.12 Overall, most participants responded that investigating police often or almost always satisfied these requirements. Prosecutors and magistrates reported the highest level of compliance. 47% of prosecutors and 42% of magistrates responded that investigating police almost always complied with these duties, while only 25% of defence lawyers gave this response.

3.13 Prosecutors were asked the reasons investigating police did not comply with their disclosure duties.¹¹ The most common reasons involved resource constraints, particularly the high work loads of police officers and delays in receiving scientific reports. The next most common reason given was that individual police officers did not understand the obligation to provide disclosure, due to lack of training.

3.14 Administrative problems were also cited as a common reason. In particular, prosecutors described communication breakdowns where police officers responsible for disclosure took leave or resigned from the police service. Other common reasons cited included human error, laziness by individual police, and the failure of investigating police to recognise the relevance of particular material, primarily due to inexperience.

3.15 All participants were asked how compliance with these duties affected the efficiency of the hearing or trial process. Their responses are set out in Table 3.4.

Table 3.4: Effect of police disclosure on efficiency

* This category only relates to the prosecutors.

3.16 Most participants answered that police disclosure generally improved the efficiency of the process. Defence lawyers and magistrates were most likely to responded that these requirements improved efficiency. It was widely commented that disclosure by investigating police enabled the prosecutor to realistically assess the strength of the prosecution case. Prosecutors also reported that full and timely disclosure by investigating police enabled them to identify the need for further investigation while there was still time for this to be undertaken.

3.17 Many defence lawyers, especially barristers, also commented that police disclosure was important in avoiding miscarriages of justice.

Prosecution disclosure

3.18 All participants were asked how often the prosecution complied with its disclosure duties to the defence in pleas, hearings and trials they presided over or conducted. Their responses are set out in Table 3.5.

Table 3.5: Compliance with prosecution disclosure duties

3.19 Overall, most participants responded that the prosecution almost always complied with its pre-trial and pre-hearing disclosure obligations. 13% of defence lawyers reported that the prosecution only complied about half the time. A further 10% of defence lawyers responded that prosecution pre-trial and pre-hearing disclosure requirements were complied with less than half the time.

3.20 Prosecutors were asked for reasons for non-compliance with prosecution disclosure duties.¹² The most common reason given was that the prosecutor received an incomplete brief from the investigating police. Other common reasons were resources constraints, administrative problems, delays in obtaining expert reports and problems locating the accused person or identifying his or her solicitor. A small number of prosecutors stated that non-compliance was a result of inefficiency or uncertainty as to the scope of prosecution disclosure duties. Many prosecutors emphasised that non-compliance generally consisted of late disclosure rather than non-disclosure.

3.21 All participants were also asked about the effect of compliance with prosecution pre-trial and pre-hearing disclosure duties on the efficiency of the hearing or trial process. Their responses to this question are set out in Table 3.6.

Table 3.6: Effect of prosecution disclosure on efficiency

* This category only relates to the prosecutors.

3.22 Most participants answered that prosecution disclosure generally improved the efficiency of the process. It was reported that disclosure assisted with pre-trial and pre-hearing preparation, improved the court listing process, shortened the length of hearings and trials and reduced the number of matters which proceeded to hearing or trial.

3.23 Many defence lawyers commented that prosecution disclosure made it easier for them to obtain instructions from their clients:

Your client generally can not remember the facts or cannot instruct you or does not want to tell you. Disclosure takes you straight to what the issues and allegations are. Many good solicitors run their whole cases on briefs.

Full disclosure allowed me to accurately inform and advise my client of the case against him or her. Early disclosure of the material allowed the client time to realistically assess his or her situation.

3.25 It was also reported that prosecution disclosure resulted in fewer hearing and trial dates being vacated because the defence was not ready to proceed, and enabled the parties to estimate the length of hearings and trials more accurately, particularly where disclosure resulted in agreement that certain witnesses would not be required to given evidence. This improved the accuracy and efficiency of court listing:

The prosecution in this court serves the brief of evidence before the matter is set for hearing. On the return date the defence advise how many prosecution witnesses are required. This helps the court in allotting time for the hearing.

3.26 It was also widely reported that prosecution disclosure produced considerably shorter hearings and trials, and reduced the number of part-heard hearings. Disclosure enabled undisputed evidence to be proved informally by agreement. Clarification of the issues reduced the number of witnesses, particularly police, expert and corroborative witnesses:

Prosecution disclosure enable the defence to consent to matters in advance, for example I can tell the prosecution that I am satisfied with statements from particular prosecution witnesses and they do not have to give evidence. This never used to happen when I only got briefs on the day.

One benefit is reduced court time in cross-examining prosecution witnesses, because you don’t need to second guess the Crown.

3.27 Another common observation was that prosecution disclosure reduced the number of cases which proceeded to hearing or trial. It was reported that disclosure opened the way to earlier negotiations between the prosecution and the defence:

Prosecution disclosure creates an atmosphere of being able to rely on your opponent and the police.

Prosecution disclosure makes for better interaction between defence and prosecution teams.

Where full prosecution disclosure occurs, I can be more confident of advising my client to plead guilty – I have less reason to run “loser” cases.

3.30 26% of prosecutors responded that compliance with prosecution disclosure requirements sometimes improved efficiency and sometimes reduced efficiency. Prosecutors who responded in this way reported that on occasion, the defence tended to misuse prosecution disclosure as an opportunity to embark on a fishing expedition for further prosecution evidence using the subpoena process (often issued immediately before or during the hearing or trial, leading to delays).

3.31 Several police prosecutors who responded in this way observed that in the Local Courts, non-compliance usually consisted of late service of the brief. However, defence lawyers sometimes applied for and were granted adjournments, even though the late disclosure did not prejudice the accused. It was also reported that defence lawyers responded to prosecution disclosure by fabricating defence evidence to meet the prosecution case.

3.32 A number of police prosecutors, defence lawyers and magistrates observed that the time frame for prosecution disclosure in the Local Courts (14 days before the hearing) is too short. It was argued that 14 days is too late to have a positive effect on the efficiency of preparations for hearings in the ways discussed in paragraphs 3.23 to 3.28 above.

3.33 It was also argued that prosecution disclosure does not improve the efficiency of the pre-hearing process in the Local Courts because police prosecutors are generally only allocated matters just prior to the hearing:

In summary matters, it is unusual for a police prosecutor to have looked at the brief before the morning of the hearing – thereby minimising the effectiveness of pre-trial disclosure by the prosecution.

3.35 Some judges and defence lawyers made similar comments in relation to the late briefing of Crown prosecutors in matters prosecuted by the Offices of the Director of Public Prosecutions. It was observed that often, Crown prosecutors were not assigned to cases early enough for the parties to discuss these issues until the day of the hearing or trial:

There should be a greater level of communication between Crown prosecutors and defence lawyers. I often seek to have discussions but the matter has not been assigned so there is no communication. Often Crowns when changed will not adhere to previous arrangements made with the defence.

The major problem is the way the DPP allocates Crowns. Crowns do not seem to get the brief until the last minute. Then non-disclosure is identified, leading to adjournments and trials being vacated. This is more of a problem in the city than country.

The only problem with prosecution disclosure is that the prosecutor only gets to question investigating police about the case just prior to trial. Failure by police to disclose evidence or properly investigate often comes after much time has already been spent on defence preparation.

3.37 Overall, most participants responded that investigating police generally provided adequate disclosure to prosecutors, although defence lawyers reported lower levels of satisfaction with disclosure by investigating police than other participants in the survey. Where disclosure by investigating police to the prosecution was inadequate, it was reported that this was caused by resource, training and administrative factors rather than deliberate concealment of evidence by investigating police.

3.38 Most participants also reported that disclosure by the prosecution to the defence was generally adequate, although there was room for some improvement. It was reported that inadequate disclosure occurred due to non-disclosure by investigating police to prosecutors and resources and administrative problems.

3.39 It was widely reported that police and prosecution pre-trial and pre-hearing disclosure improved the efficiency of the criminal justice system.

Defence disclosure

Alibi notice requirement

3.40 27% of participants in the survey presided over or conducted trials in the District or Supreme Court where the defence led alibi evidence. These judges, prosecutors and defence lawyers were asked how often the defence complied with the alibi notice requirement.¹³

3.41 Most defence lawyers responded that this requirement was always fulfilled. Most judges responded that the defence often complied with this requirement. Equal numbers of Crown prosecutors responded that the defence almost always, almost never or never complied.

3.42 These responses indicate that defence lawyers, judges and Crown prosecutors have different perceptions of the level of compliance with this requirement. It is likely that one reason for this is different interpretations of what constitutes compliance with the requirement. A number of defence lawyers, who reported a high level of compliance with this requirement, commented that in hearings and trials they conducted, notice of proposed alibi evidence was always given, although sometimes late. On the other hand, several Crown prosecutors who responded that the defence never complied with this requirement observed that although notice was usually given, it was inevitably late.

3.43 Defence lawyers were asked for information on the reasons for non-compliance with this requirement.¹⁴ The most common reason was that the lawyer had not obtained instructions from the client at the stage when the alibi notice was required. A number of lawyers commented that their clients were seldom represented within 30 days of their committal, which is when the alibi notice is required. A small number commented that although they were representing the client at this stage, they had difficulty obtaining clear instructions. One defence lawyer stated that in one case the reason for non-compliance was that the alibi defence arose for the first time during the trial.

Substantial impairment by abnormality of mind notice requirement

3.44 The defence of substantial impairment by abnormality of mind is only available for murder charges. As would be expected, only a very small number of survey participants presided over or conducted trials in which this defence was raised. These Supreme Court judges, Crown prosecutors and defence lawyers were asked how often the defence complied with the notice requirement for this type of evidence.¹⁵ The majority of participants answered that the defence always complied with this requirement.

Voluntary defence disclosure

3.45 Throughout the questionnaires, the concept of voluntary defence disclosure was defined as the defence voluntarily disclosing substantial information about the defence case to the prosecution before the hearing or trial, other than through police interviews and the formal requirements for alibi and substantial impairment by abnormality of mind evidence.

3.46 All participants were asked how often voluntary defence disclosure occurred in hearings and trials they presided over or conducted. Responses to this question are set out in Table 3.7.

Table 3.7: Level of voluntary defence disclosure

3.47 Overall, most participants responded that the defence never or almost never provided voluntary defence disclosure. Most judges (28%) and prosecutors (41%) responded that this never occurred. Most magistrates responded that the defence almost never provided voluntary defence disclosure. Similar numbers of defence lawyers reported that the defence never, almost never, and sometimes did so.

3.48 Legal advice. Participants were asked whether, when voluntary defence disclosure occurred, the accused generally had legal advice at the time. Responses to this question are set out in Table 3.8.

Table 3.8: How often the accused had legal advice when voluntary defence disclosure occurred

3.49 Overall, the most common response was that the accused was always or almost always represented when voluntary defence disclosure was provided. This result was consistent across all categories of participants. This finding indicates that defence disclosure was more likely where the accused was legally represented before the hearing or trial.

3.50 Type of material disclosed. It was reported that expert scientific reports and disclosure of the general nature of the defence were the most common material voluntarily disclosed by the defence. It was also reported that the defence sometimes volunteered that it did not intend to dispute particular aspects of the prosecution case. This was most common in relation to drug and property offences. For example, in relation to property offences, the defence sometimes disclosed that ownership was not in issue.

3.51 Disclosure of the intention to dispute the admissibility of particular prosecution evidence, such as the accused’s electronically recorded statement to police, was also quite common. In jury trials, this enabled issues about the admissibility of evidence to be resolved before the jury was empanelled.

3.52 Numerous defence lawyers emphasised that voluntary defence disclosure was more likely to occur where the defence was confident that full police and prosecution disclosure had occurred. A number of magistrates also made this point.

I work in the country mostly with the same Crowns. We live and work in the same community; a level of trust exists which allows our trials to be fought on the issues.

I always ask the defence what the issues are. An answer can only be given if the brief has been served. The Local Courts could not function unless matters were shortened in this way. The prosecution and the defence are almost always co-operative and eager to assist.

3.54 Effect of voluntary defence disclosure. Participants were also asked how voluntary defence disclosure affected the efficiency of the hearing or trial process. Their responses are set out in Table 3.9.

Table 3.9: Effect of voluntary defence disclosure on efficiency of hearings and trials

3.55 Most participants responded that voluntary defence disclosure generally improved the efficiency of the hearing or trial process. It was reported that voluntary defence disclosure improved the efficiency of pre-trial and pre-hearing preparations, the court listing process, shortened the length of hearings and trials and reduced the number of matters which proceed to hearing and trial, in the same ways described in paragraphs 3.23 to 3.28 in relation to prosecution disclosure. Police prosecutors also commented that defence disclosure of expert scientific reports gave them a better opportunity to understand this evidence fully:

[Defence disclosure of expert evidence] allows the prosecutor time to appraise the content and relevance of complex medical and psychological reports rather than reading them on the run in court.

3.57 A minority of defence lawyers (14%) responded that disclosure sometimes improved efficiency and sometimes reduced efficiency. It was commented that defence disclosure tended to create further delays while further police investigations were undertaken.

3.58 On the other hand, several magistrates, prosecutors and defence lawyers stated that efficiency gains did not occur because police did not investigate information disclosed by the defence before the hearing or trial. For example, it was reported that where the defence disclosed the identity of defence witnesses, the prosecution often did not arrange for statements to be taken from these witnesses. While some prosecutors commented that police resources constraints were responsible for this, others reported that defence disclosure often occurred too late to be of any use.

3.59 Several defence lawyers reported that the prosecution responded to voluntary defence disclosure by preparing objections to the admissibility of the disclosed aspects of the defence case, where objection would not otherwise be taken. It was also commented that the prosecution modified its case to meet the disclosed information.

Summary

3.60 The compulsory notice requirements for alibi and substantial impairment by mental abnormality defences applied in a small number of cases. While overall, participants reported a high level of compliance with these notice requirements, many prosecutors indicated that the defence never or almost never complied with the timing of the alibi notice requirement.

3.61 Most participants reported that the defence did not generally provide voluntary defence disclosure. It was reported that where voluntary defence disclosure occurred, it improved the efficiency of the criminal justice system.

Defences raised for the first time at the hearing or trial

3.62 One of the most common arguments for introducing compulsory defence disclosure duties is that accused persons frequently “ambush” the prosecution with defences raised for the first time at the hearing or trial. It is argued that such defences frequently are fabricated, and that this practice denies the prosecution an opportunity to investigate such defences, leading to the acquittal of offenders.¹⁶

3.63 The term “ambush defence” has no generally accepted meaning. For the survey, the Commission focussed on defences with the following characteristics:

• the defence was raised for the first time at the hearing or trial;
• the accused could have disclosed information about the defence during police questioning;
• a competent prosecutor could not have anticipated the defence; and
• the late disclosure of the defence hampered the prosecution or benefited the defence.

3.64 Judges and magistrates were asked how often in trials and hearings they presided over, the accused raised a defence with these characteristics. Prosecutors and defence lawyers were asked how often this occurred in hearings and trials they conducted. Responses to this question are set out in Table 3.10.

Table 3.10: “Ambush” defences

3.65 Overall, the most common response to this question was that “ambush” defences never arose. Most defence lawyers and judges responded that such defences were never raised. Most magistrates (30%) and prosecutors (31%) responded that such defences are sometimes raised. A further 29% of prosecutors responded that the accused often or almost always raised a defence with these characteristics.

Legal representation

3.66 Judges, magistrates and prosecutors were also asked whether, in hearings and trials they presided over or conducted, the accused generally had legal representation when a defence with these characteristics was raised at the hearing or trial.¹⁷ Responses to this question are set out in Table 3.11.

Table 3.11: How often accused was legally represented where he or she raised “ambush” defence

3.67 Most judges, magistrates and prosecutors answered that the accused was always or almost always legally represented in this situation.

Effect on the outcomes of hearings and trials

3.68 Participants were asked how defences with these characteristics generally contributed to the outcome of hearings and trials. Judges, prosecutors and defence lawyers’ responses to this question depended on their impressions of what significance magistrates and juries attributed to such defences. Their responses are set out in Tables 3.12.

Table 3.12: Effect of “ambush” defences on hearing and trial outcomes

3.69 Overall, 36% of participants responded that defences with these characteristics generally contribute to the acquittal of the accused. 31% responded that such defences sometimes contributed to acquittals, sometimes contributed to convictions, and sometimes did not affect trial outcomes. Prosecutors were more likely than judges, magistrates or defence lawyers to respond that such defences generally contributed to acquittals. 47% of prosecutors gave this response, compared to 33% of defence lawyers, 31% of judges and only 19% of magistrates.

Summary

3.70 Participants reported that “ambush defences” did not occur in the majority of cases. Where such a defence was raised, participants considered that most contributed to the acquittal of the accused.

2. Justices Act 1902 (NSW) s 66A-66H. Where evidence is not served in accordance with this requirement, the Court can adjourn the hearing or refuse to admit the evidence in question.

3. Law Society of NSW, Solicitors’ Rules, r A66, A66A, A67; NSW Bar Council, NSW Barristers’ Rules, r 66, 67; DPP Guidelines, Guideline 11. There is no sanction for breach of these requirements, although professional complaints can be made to the Office of the Legal Services Commissioner, the Law Society of New South Wales and the New South Wales Bar Association.

4. Alistair v The Queen (1984) 154 CLR 404.

5. Criminal Procedure Act 1986 (NSW) s 48.

6. Crimes Act 1900 (NSW) s 23A; Criminal Procedure Act 1986 (NSW) s 48. Where these notice requirements are not complied with, the relevant evidence can only be admitted with the leave of the court.

7. Crimes (Criminal Trials) Act 1999 (Vic); Criminal Procedure and Investigations Act 1996 (Eng) Part 1. This Act applies in England and Wales.

8. Criminal Code (Qld) s 590B; 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 and 5.

9. Crimes Act 1958 (Vic) s 399A and 399B; Criminal Code (WA) s 636A; Criminal Code (NT) s 331; Criminal Code (Tas) s 368A; Crimes Act 1900 (NSW) s 406 (as it applies in the ACT); Criminal Law Consolidation Act 1935 (SA) s 285C; Criminal Code (Qld) s 590A. In England and Wales, the alibi notice requirement is part of the reciprocal disclosure regime: Criminal Procedure and Investigations Act 1996 (Eng) s 5(7), 74, 80.

10. This question was designed to capture general information about police and prosecution disclosure from judges, magistrates and defence lawyers who could not answer the more detailed questions discussed at para 3.11-3.39. Prosecutors were not asked this general question as it was assumed that they would be able to respond to the more detailed questions.

11. Other participants were not asked this question as they would be unlikely to have information about the reasons for non-disclosure.

12. Other participants were not asked this question as they would be unlikely to have information about the reasons for non-disclosure.

13. See para 3.5.

14. Only defence lawyers were asked this question as it is unlikely that other participants would have information about the reasons for non-compliance with the alibi notice requirement.

15. See para 3.5.

16. L Davies, Submission at 4; E Elms, Submission at 2; B Kennedy, Submission at 2; Police Association of New South Wales, Submission 1 at 4. See also New South Wales Law Reform Commission, Criminal Procedure: Procedure from Charge to Trial 1: Specific Problems and Proposals (Discussion Paper 14, 1987) at para 5.11; Royal Commission on Criminal Procedure, Report of the Royal Commission on Criminal Procedure (London, 1981) at para 8.22; Working Group on the Right to Silence, Report of the Working Group on the Right to Silence (London, 1989) at para 101 and see para 20 and 93; Royal Commission on Criminal Justice, Report of the Royal Commission on Criminal Justice (London, 1993) at 97; G Davies, “Justice Reform: A Personal Perspective” [1996] New South Wales Bar Association Bar News (Summer) 5 at 11; R v Alladice (England, Court of Appeal, 12 May 1988, unreported). One submission argued that the defence was entitled to surprise the prosecution at trial: Mt Druitt Community Legal Centre, Submission at 2 and another submission argued that while defence disclosure assists the credibility of the defence, the accused person should be entitled to choose whether to disclose the defence case: R Jones, Submission at 2.