Criminal Disclosure

Question 1

What is the governing principle of the CDA?

Answer 1

Relevance! All relevant information must be disclosed unless there is a legally justifiable reason to withhold it

Question 2

What triggers initial disclosure?

Answer 2

The commencement of court proceedings

Question 3

Hard copy vs electronic -what is the police preference?

Answer 3

Electronic

Question 4

What is the purpose of the CDA?

Answer 4

To promote fair, effective, and efficient disclosure of relevant information between the prosecution and defence, for the purpose of criminal proceedings.

Question 5

In the CDA there are 3 disclosure stages required of Police… what are the 3 stages

Answer 5

1. Initial disclosure
2. Full disclosure
3. Additional disclosure

Question 6

Under s15 of the CDA, the police is not required to disclose info if it…? (2)

Answer 6

• is not in the possession/control of that info at the time
• does not hold the information in recorded form at the time

Question 7

Requests for information under the OIA or PA should only be considered as a basis for releasing info when the request….? (3)

Answer 7

• is not covered by the CDA
• has not already been disclosed to the defendant
• does not relate to criminal proceedings

Question 8

The OC is responsible for what ?

Answer 8

Accountable ownership and management of prosecution case including disclosure requirements

Question 9

What are the implications of early cases of non-disclosure

Answer 9

Defence counsel likely to apply to the court for:

— leave to disclose a witness address
— provision of disclosure not received
— court setting conditions for inspecting an exhibit
— timetabling directions relating to full disclosure

Question 10

What are the implications of more serious instances of non-disclosure

Answer 10

• excluding the evidence
• adjourn hearing
• admit the evidence if it is in the interests of justice to do so

Question 11

What are the implications of significant disclosure failures without reasonable excuse?

Answer 11

• the exclusion of evidence
• order for retrial
• dismissal of charges
• costs order to the prosecutor

Question 12

Mandatory initial disclosure must be delivered?

Answer 12

• at the commencement of criminal proceedings, or as soon as practicable after that time, and no later than 15 working days after commencement

*no later than first appearance if the defendant is a child or young person

Question 13

Name the requirements of initial disclosure?

Answer 13

• a copy of the charging document
• a summary of facts and the maximum penalty for the offence (POL262 SOF)
• summary of the defendant’s right to apply for further info (covering POL2125/initial disclosure record)
• a list of the defendants previous convictions & list of any previous offences proved under OT act (QHA)

Question 14

When must full disclosure be provided?

Answer 14

Within no more than 3 weeks of a not guilty plea being entered.

Question 15

How long after a not guilty plea is entered is CRH?

Answer 15

No more than 45 working days (30 for lower seriousness stuff)

Question 16

On what grounds can Police decline a request for additional disclosure?

Answer 16

1. Info is not relevant
2. The info can be withheld legally under s15,16,17or18
3. The request appears frivolous or vexatious

Question 17

What does the defence have to do if they intend to call evidence in support of an alibi?

Answer 17

Provide Police with a notice containing the particulars of any alibi witness within 10 working days after NG plea

Question 18

Whenever a defendant puts forward an alibi under the CDA, the OC must ensure the ________ and a ______ are prepared on the witness.

Answer 18

Previous conviction history and report of active charges.

The OC should also make inquiries to confirm or rebut the evidence of the alibi and provide this info the prosecutor ASAP

Question 19

What is the procedure of interviewing an alibi witness?

Answer 19

You should not do so unless the prosecutor requests it!

Advise defence of the proposed interview so they have to opportunity to view it. If they’re self represented then get a independent person to be present

Question 20

Expert evidence:
If the defence intends to call an expert witness this must be disclosed to the prosecutor together with _________(2 things)?

And by when?

Answer 20

• any brief of evidence to be given (ie the report etc
• if that’s not available then a summary of evidence to be given

At least 10 working days before trial

Question 21

Define relevance (under the CDA)

Answer 21

Information or an exhibit that tends to support or rebut, or has material bearing on, the case against the defendant.

Question 22

What two questions might you ask yourself to determine relevance?

Answer 22

• does it support or rebut the case against the defendant?
• does it have a material bearing on the case?

Assessments of relevance are an ongoing thing that should be constantly reevaluated etc

Question 23

Regardless of whether info supports the Police position, all info with a material bearing on the case has to be disclosed. including rebuttal info

What are some examples of rebuttal info?

Answer 23

• CCTV footage that did not record the crime consistent with the prosecution case
• a police notebook of a person present at an alternative location etc
• a fingerprint from the scene that cannot be identified/inability to match crime scene prints to samples from the defendant

Question 24

If you’re withholding info under sections 15-18 of the CDA, do you have to specify why?

Answer 24

YES! You should list the specific withholding ground and reasons for withholding it as it may be challenged

Question 25

Reasons for withholding information under s15 of the CDA?

Answer 25

15(1)(a) the prosecutor is not in possession or control of that info

15(1)(b) the prosecutor does not hold the information in recorded form

(Ie you don’t have to record info solely for the purpose of disclosure)

Question 26

Reasons for withholding under section 16 CDA (the big whopper a-o)

Answer 26

A) likely to prejudice maintenance of the law
B) likely to endanger safety of any person
C) prepared to assist prosecutor in conduct of trial/admin comms between prosecutor and police etc/evaluative reports
D) subject to s108-109 undercover police
E) subject to pre-trial witness anonymity order
F) subject to s16 VRA victim contact details
G) likely to prejudice NZ defence/security
H) facilitate commission of another offence
I) constitute contempt of court
J) info could be withheld through privilege
K) contrary to another enactment
L) publically available…reasonably practical to obtain for yourself
M) previously disclosed
N) does not exist/can’t be found
O) reflects on credibility of a (non-prosecution) witness

Question 27

Reasons for withholding under section 17 CDA

Answer 27

Information that identifies the address of a witness/informant

Question 28

What is an identification witness?

And what is the rule under s14 around ID witness disclosure?

Answer 28

An ID witness is a person who claims to have seen the offender in the circumstances of the offence

Defence can, at any time after charging, request
- name and address of an ID Witness
- statements made by them
- any identikit pictures/sketches etc

Question 29

What is an identification witness?

And what is the rule under s14 around ID witness disclosure?

Answer 29

An ID witness is a person who claims to have seen the offender in the circumstances of the offence

Defence can, at any time after charging, request
- name and address of an ID Witness
- statements made by them
- any identikit pictures/sketches etc

BUT! S14A(3) enables prosecutor to be excused from this. If safety is an issue. You should still use this section and not s16-17 to withhold though!

Question 30

Reasons for withholding under section 18 CDA

Answer 30

Trade secrets may be withheld

Question 31

What governs the disclosure of CHIS/confidential informant info?

Answer 31

Section 64 of the Evidence Act 2006

Human source/informer have legally recognised privilege under this section which protects their identity from disclosure

Question 32

Regulations 21 & 22 (Evidence Regulations 2023) stipulate a defence lawyers entitlements to witness video interviews

What can a defence lawyer do and not do with a video record?

Answer 32

May not allow the defendant to view unsupervised

May show to experts, but need permission from the judge for an especially sensitive video record.

Typed transcripts must be provided asap after a NG plea

Question 33

Regulations 21 & 22 (Evidence Regulations 2023) stipulate a defence lawyers entitlements to witness video interviews

What can a defence lawyer do and not do with a video record?

Answer 33

May not allow the defendant to view unsupervised

May show to experts, but need permission from the judge for an especially sensitive video record.

Typed transcripts must be provided asap after a NG plea

Question 34

When do you have to disclose a witnesses previous convictions?

Answer 34

If those convictions are relevant to the credibility of the witnesses

Question 35

What kind of previous witness convictions are likely to be relevant (and therefore disclosable)?

Answer 35

• convictions for perjury/perverting course of justice
• convictions for assault/violent offending when the witness is the victim
• dishonesty convictions (they show a propensity to be untruthful)