Criminal Disclosure Flashcards
What is the governing principle of the CDA?
Relevance! All relevant information must be disclosed unless there is a legally justifiable reason to withhold it
What triggers initial disclosure?
The commencement of court proceedings
Hard copy vs electronic -what is the police preference?
Electronic
What is the purpose of the CDA?
To promote fair, effective, and efficient disclosure of relevant information between the prosecution and defence, for the purpose of criminal proceedings.
In the CDA there are 3 disclosure stages required of Police… what are the 3 stages
- Initial disclosure
- Full disclosure
- Additional disclosure
Under s15 of the CDA, the police is not required to disclose info if it…? (2)
- is not in the possession/control of that info at the time
- does not hold the information in recorded form at the time
Requests for information under the OIA or PA should only be considered as a basis for releasing info when the request….? (3)
- is not covered by the CDA
- has not already been disclosed to the defendant
- does not relate to criminal proceedings
The OC is responsible for what ?
Accountable ownership and management of prosecution case including disclosure requirements
What are the implications of early cases of non-disclosure
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
What are the implications of more serious instances of non-disclosure
- excluding the evidence
- adjourn hearing
- admit the evidence if it is in the interests of justice to do so
What are the implications of significant disclosure failures without reasonable excuse?
- the exclusion of evidence
- order for retrial
- dismissal of charges
- costs order to the prosecutor
Mandatory initial disclosure must be delivered?
- 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
Name the requirements of initial disclosure?
- 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)
When must full disclosure be provided?
Within no more than 3 weeks of a not guilty plea being entered.
How long after a not guilty plea is entered is CRH?
No more than 45 working days (30 for lower seriousness stuff)
On what grounds can Police decline a request for additional disclosure?
- Info is not relevant
- The info can be withheld legally under s15,16,17or18
- The request appears frivolous or vexatious
What does the defence have to do if they intend to call evidence in support of an alibi?
Provide Police with a notice containing the particulars of any alibi witness within 10 working days after NG plea
Whenever a defendant puts forward an alibi under the CDA, the OC must ensure the ________ and a ______ are prepared on the witness.
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
What is the procedure of interviewing an alibi witness?
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
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?
- 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
Define relevance (under the CDA)
Information or an exhibit that tends to support or rebut, or has material bearing on, the case against the defendant.
What two questions might you ask yourself to determine relevance?
- 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
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?
- 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
If you’re withholding info under sections 15-18 of the CDA, do you have to specify why?
YES! You should list the specific withholding ground and reasons for withholding it as it may be challenged
Reasons for withholding information under s15 of the CDA?
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)
Reasons for withholding under section 16 CDA (the big whopper a-o)
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
Reasons for withholding under section 17 CDA
Information that identifies the address of a witness/informant
What is an identification witness?
And what is the rule under s14 around ID witness disclosure?
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
What is an identification witness?
And what is the rule under s14 around ID witness disclosure?
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!
Reasons for withholding under section 18 CDA
Trade secrets may be withheld
What governs the disclosure of CHIS/confidential informant info?
Section 64 of the Evidence Act 2006
Human source/informer have legally recognised privilege under this section which protects their identity from disclosure
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?
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
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?
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
When do you have to disclose a witnesses previous convictions?
If those convictions are relevant to the credibility of the witnesses
What kind of previous witness convictions are likely to be relevant (and therefore disclosable)?
- 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)
