5: Disclosure Flashcards
What disclosure applies to bail application?
Common law disclosure applies to bail apps – common law disclosure TEST = just and fair.
What is the investigation stage for disclosure?
Police officer at centre disclosure, not lawyer.
“Police officers” =
investigators
“Disclosure officer” =
police officer responsible for examining material + revealing this to pros.
“Officer in charge of investigation” =
ensures proper procedures in place for recording info, retaining records + other material.
DUTY RECORD+RETAIN MATERIAL = Investigators MUST record –
WHAT?
durable or retrievable form all relevant material, incl negative info. Material is relevant unless no impact on case.
Material includes: material gathered (e.g. docs) and generated by investigation (e.g interview). Duty to retain material e.g. crime reports. BUT NOT if purely ancillary + no independent significance e.g. duplicates.
What is the duty to reveal to prosecution?:
If relevant to investigation, but disclosure off thinks wont form pros case, MUST be listed on schedule. Preparing sch occurs where case likely heard in CC and Mags where D likely plead not guilty.
What must be disclosed in:
CC - disclosure MUST prepare schedule.
Mags - where likely plead not guilty = streamlined disclosure certificate.
In disclosure:
Prosecution looks at
WHAT?
Pros looks @ schedules to see if material should be disclosed to D.
Sensitive material =
real risk of serious prejudice to important public interest if disclosed.
. Sensitive material should be listed in
separate schedule or disclosed separately. Investigator should draw pros attention to relevant material.
nvest MUST give pros info of D’s explanation and reliability of confession or witness. At end, disclosure officer MUST certify = complied with code.
Duty on pros = continuing. Pros should advise invest lines of inquiry to pursue + lack of defence statement. Pros can “dip sample” =
use search tool to satisfy disclosure ob. Disclosure with initial details with bail hearing if fair and just.
A pros must disclose if: TEST
: might reasonably undermine case for pros or assist D. It is objective. If no material, D must get written statement of this.
TEST for disclosure:
1.
- Undermine pros case; or
- Assist D’s case
NOT if material is neutral or adverse to D.
Factors for Pros:
- Material in cross-examin
- Can support exclusion of evidence, stay proceedings
- Explanation for D’s actions
- Scientific/medical evidence
TIME-LIMIT for disclosure:
CC =
NO time limit unused material. It is continuing.
TIME-LIMIT for disclosure:
Mags =
where streamlined disclosure certificate required, MUST be disclosed -) D at hearing plea entered, or ASAP following formal indication. If prelim hearing, jury should impose early timetable for disclosure
What is the disclosure:
Following conviction =
Between conviction + sentencing =
On appeal =
Following conviction = no duty to investigate.
Between conviction + sentencing = duty to disclose.
On appeal = disclose if relevant to ground of appeal.