Criminal Disclosure

Question 1

What are the initial actions of the Disclosure Manager?

Answer 1

• Read the disclosure manager’s desk file
• Access the current serious crime template downloaded to the local district shared drive for use during the investigation
• Report to the 2IC to receive a briefing, tasking, and establishing what information is and is not discoverable, and ongoing supervision

Question 2

What are the key responsibilities of the Disclosure Manager?

Answer 2

• Ensure all relevant and discoverable material is provided to defence counsel
• Ensure all relevant and non-discoverable material is identified, listed, and defence advised
• Continually asses the risk to ensure that non-discoverable material is identified and not disclosed
• Continually review to ensure that ongoing lawful justification to withhold exists for each document that is withheld
• Ensure that robust auditable systems are employed to record disclosure decisions and actions (this includes compiling and maintaining the disclosure index)
• Manage disclosure timeframes within the provisions of the Act, or as otherwise directed by the Courts
• Retain and file all correspondence with the defence counsel, both incoming and outgoing, in the 50000 series document category
• Create a record in NIA of the fact of disclosure against the charge(s) and make a brief record of delivery of initial disclosure in NIA. Record in NIA that the Disclosure Index is held in. The operation file and the location of that file

Question 3

What information should the Disclosure Manager provide to the Crown Solicitor regarding disclosure?

Answer 3

The Crown should be provided with an identical copy of all material that is disclosed to defence counsel. The Crown should also review an unedited copy of the material, where appropriate.

Question 4

What does s10(4) of the Disclosure Act 2008 impose?

Answer 4

• Information required to be disclosed under this Act may be disclosed in whatever form (including electronically) that the person disclosing the information holds it in at the time the obligation to disclose arises and that is readily accessible to the defendant
• Consideration must be given to whether a defendant has ‘ready’ access to a computer with which to access electronic disclosure documents, particularly if remanded in prison

Question 5

What are Police’s obligations when counsel is reassigned?

Answer 5

Police have an obligation where the legal representative of a defendant is replaced, to ensure the replacement counsel is provided with all material previously disclosed.

This may be achieved by obtaining confirmation in writing from the replacement counsel that they have received all material previously disclosed from the outgoing counsel, or by providing them with a fresh copy.