Criminal Disclosure

Question 1

Co-operation is required between who in order to ensure the disclosure system operates efficiently and effectively.

Answer 1

the Disclosure Manager, other investigation team members and Crown Solicitors,

Question 2

Disclosure Managers should be guided by these principles:

Answer 2

• All relevant material contained on an investigation file is discoverable, unless withholding or deletion of the material is justified under sections 16, 17 or 18 of the Act.
• There is no obligation to acquire, for the purpose of satisfying disclosure obligations, material that is not already in police possession or control, or that is not held in recorded form.
• Disclosure is an on-going process and the reasons for withholding a document should be continually reassessed. In the event that the justification withholding no longer exists, the material should be provided to defence counsel.
• The disclosure process must be auditable, accountable and record disclosure decisions that are made in relation to a particular document.
• Effective file management systems are critical to the success of the disclosure process,

Question 3

The role of Disclosure Manager requires a working knowledge of what act?

Answer 3

The Criminal Disclosure Act 2008

Question 4

Initial actions, on appointment to the role, the Disclosure Manager must:

Answer 4

• read the Disclosure Managers 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, establishing what information is and is not discoverable, and ongoing supervision.

Question 5

Key responsibilities - The Disclosure Manager must:

Answer 5

• 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 assess 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
• manage disclosure timeframes within the provisions of the Act, or as otherwise directed by the Courts
• retain and file all correspondence with 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 6

All communication with defence counsel should be conducted through

Answer 6

the 2IC, or Crown solicitor, where engaged.

Question 7

What is Police’s obligation where legal representation of the defendant is replaced?

Answer 7

to ensure the replacement counsel is provided with all material previously disclosed

Question 8

The formats used to disclose documents to the defence are hard copy, electronic disclosure, or a combination of both.
The disclosure method selected will depend on the:

Answer 8

• actual and anticipated scale of the investigation
• resources available to the Disclosure Manager
• technical ability of the Disclosure Manager
• investigation file being stored in electronic or hard copy format
• number of persons charged
• scale of the file/amount of material to be disclosed
• sensitivity of material
• defence counsel involved and any agreement reached for defence counsel to receive material in a particular format.

Question 9

What does section 10(4) of the Criminal Disclosure Act 2008 specify?

Answer 9

that disclosure may be supplied in whatever form, including electronically, that the person disclosing the information holds it in at the time of the request, provided this will be readily accessible to the defendant

Question 10

is there a requirement for the prosecutor to supply defence counsel with a list of the material provided to defence?

Answer 10

No but it is good to

Question 11

Does the prosecutor need to provide defence with a list of documents they wish to with hold?

Answer 11

Yes (sections 12(2)(k) and 13(2)(b) refer)

Question 12

What material relating to disclosure should be provided to the crown?

Answer 12

A copy of the redacted documents provided to defence as well as unredacted documents for them to review.

Question 13

What do the four pre-formatted disclosure letters relate to?

Answer 13

• initial disclosure
• further initial disclosure
• additional disclosure
• full disclosure.

Question 14

Who is responsible for maintaining the disclosure index?

Answer 14

Disclosure Manager

Question 15

What information needs to be recorded about requests made by defence relating to disclosure?

Answer 15

the Disclosure Index must be maintained to record the dates and details of all requests made by defence counsel and the date the requests were responded to.

Question 16

As a general principle, where two or more defendants are charged how is their disclosure prepared?

Answer 16

the same disclosure package should be provided to each defendant and a single Disclosure Index should preferably be used for all defendants.

Question 17

All investigation documents must be categorised into either

Answer 17

the 10000 or the 50000 document number series.

Question 18

Who is ultimately responsible for managing disclosure decisions including whether the matter should be referred to a senior Police officer, Police Legal Services or the Crown Prosecutor for evaluation as to whether the document should be disclosed

Answer 18

The 2IC Investigation. The Disclosure Manager will identify documents that may need to be withheld or have deletions made to them and advise the 2IC.

Question 19

10000 series documents are those documents where…

Answer 19

no justification for withholding them exists

Question 20

Examples of 10000 series documents may include

Answer 20

• Formal Statements, briefs of evidence and witness statements
• Visually Recorded Interview (VRI) transcripts
• Convictions of prosecution witnesses relevant to credibility
• Summaries of facts
• Notebook entries
• Job Sheets
• Specialists reports
• Expert evidence in the possession of the prosecution

Question 21

Other discoverable material which has not been assigned a document number must still be accounted for within the Disclosure Index. Examples of such documents may include:

Answer 21

• Chain of Custody sheets
• Documentary exhibits
• Area canvass documents
• Photographs
• DVDs, CDs and CCTV () material

Question 22

50000 series documents are those documents that ….

Answer 22

may be withheld pursuant to sections 16, 17 or 18 of the Act.

Question 23

Examples of 50,000 series documents may include

Answer 23

• Search warrant applications
• CHIS () Information Reports
• analytical material
• Operation Orders / briefing material
• conference notes
• notes in relation to covert investigative techniques
• surveillance device warrant (interception) applications
• material that is commercially sensitive
• material regarding alibi enquiries
• internal Police reports and instructions.

Question 24

Are police obliged to provide disclosure regarding alibi enquiries?

Answer 24

No

Question 25

How should 50000 series documents be described in the disclosure index?

Answer 25

In general terms

Question 26

How should 10000 series documents be described in the disclosure index?

Answer 26

Consistently to allow easier searching

Question 27

Extreme care must be taken when editing documents that contain sensitive information. In particular, disclosure of documents containing CHIS information must only be undertaken in accordance with the ‘CHIS Criminal Disclosure Practice Note’:

Answer 27

-Text should be blacked, printed, blacked, photocopied and then repeatedly blacked and photocopied until the discloser can be assured the edited material is not readable under any conditions
-Prior to proposed disclosure of documents containing CHIS () information, a peer review must be undertaken by an experienced investigator. In any event no disclosure of documents containing CHIS information is to be undertaken without the approval a Detective Senior Sergeant.
-Highlighting text black electronically and printing the original document is a significant risk to the disclosure of CHIS () information as the original text is still contained underneath the black highlight. This practice must not be undertaken without repeated additional manual blacking and photocopying as outlined above.
-Disclosure of edited search warrants or any other documents that contain CHIS information must not be undertaken electronically without authorised redacting software such as Adobe
Acrobat 9 Pro. Sensitive information must be redacted with Adobe, then printed and then scanned to ensure that the sensitive information cannot be retrieved either at the time or in the future.

Question 28

How are emails sent to or from the Crown Solicitor, Crown Law or Police Legal Section seen?

Answer 28

As privileged and should not be disclosed.

Question 29

How should staff be briefed about their emails at the start of an investigation?

Answer 29

To save all emails relating to the investigation into a folder.

Question 30

Processing investigators’ emails is a time consuming process and defence counsel should be advised in writing at an early stage of the investigation of

Answer 30

the existence of such e‑mails, and of the fact they have yet to be assessed to determine whether they meet the relevance test as discoverable material

Question 31

The rationale for applying sequential page numbers to disclosed material is:

Answer 31

• It facilitates effective auditing of disclosed material.
• It provides a reference for material which does not fall within the document numbering system
• The Court process is expedited because all parties including the Court, Jury, Crown Prosecutor and defence counsel can refer to material by a unique page reference.
• Any illegitimate claims made by defence counsel that particular material was not disclosed, can be promptly resolved by providing an exact copy of the numbered page that was disclosed and a reference page number.
• It enables accurate records to be maintained, even when different versions o``f the same document have been disclosed on separate occasions

Question 32

Some statutory provisions contain specific grounds for withholding information including

Answer 32

• section 16 Victims’ Rights Act 2002 (restriction on disclosing victim’s precise address)
• section 23 Victims’ Rights Act 2002 (prohibition on providing copy of victim impact statement to offender to keep)
• section 179 Search and Surveillance Act 2012 (offence to disclose information acquired through search or surveillance)
• section 20 Financial Transactions Reporting Act 1996 (suspicious transaction reports not to be disclosed).

Question 33

Some government departments have a specific statutory power to require you to provide the information sought. These powers override the general prohibitions in the Privacy Act from disclosing personal information and include:

Answer 33

• section 17 of the Tax Administration Act 1994
• sections 274 and 275 of the Immigration Act 2009
• section 161 of the Customs and Excise Act 1996
• section 11 of the Social Security Act 1964
• section 5 of the Serious Fraud Office Act 1990
• section 66 of the Children, Young Persons, and Their Families Act 1989
• section 62 of the Health and Disability Commissioner Act 1994.