Criminal disclosure relating to homicide and serious crime investigations Flashcards
Legal obligation with disclosure?
The Act creates a legal obligation for the prosecutor to disclose relevant material to the defence. It promotes fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non‐parties relevant to criminal proceedings in New Zealand. Co‐operation is required between the Disclosure Manager, other investigation team members and Crown Solicitors, in order to ensure the disclosure system operates efficiently and effectively.
Principles of the disclosure regime
Disclosure Managers should be guided by these principles:
‑ The governing principle of disclosure is relevance. 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. Section 15 of the Act refers.
‑ 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, i.e. you cannot disclose a document if you do not know that it exists.
Key responsibilities of a disclosure manager
The Disclosure Manager must:
‑ 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 (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 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 ‐ e.g. File Path Name
Format of disclosure material
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:
‑ 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.
Note: Historically, case law supported the right of defence counsel to receive disclosure in any format requested by them (Commissioner of Police v District Court at Manukau, CIV 2006‐404‐3305 refers).
More recently, section 10(4) of the Act provides 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. 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.
Mulitiple Defendants disclosure
As a general principle, where two or more defendants are charged, the same disclosure package should be provided to each defendant. A single Disclosure Index should preferably be used for all defendants.
A column for each defendant is marked with an ‘x’ to indicate that a particular document has been provided to that defendant.
The columns of the Disclosure Index which do not relate to that defendant (i.e. any columns relating to other defendants), can be hidden before the Disclosure Index is printed and then provided to defence counsel.
Where it is necessary to withhold some of the material from some of those charged, a separate Disclosure Index may be maintained for each defendant.
It is critical all material is paginated using the same page numbers, even though some of those pages may be withheld from a particular defendant.
Alibi Enquries disclosure
Police are not obliged to provide disclosure regarding alibi enquiries. R v Shaqlane (unreported, Court of
Appeal, 5 March 2001) and R v Hitchings (9/3/07 SC98/2006) refer.
Official information requests
Requests for information made by a defendant or their legal representative that are covered by sections 12 and 13 of the Criminal Disclosure Act 2008 and are “relevant” to the matter before the Court must be considered under the Criminal Disclosure Act, as detailed within this section.
Guidance on how to deal with requests made by any other person under OIA and Privacy Act are provided by the Police Manual chapter ‘Disclosing personal and official information’ (Chapter ARCHIVED).
Requests relating to currrent investigation
Where the request relates to information concerning an active criminal investigation, the information
should be withheld where making it available would be likely to lead to any of the consequences provided
in sections 51, 52 or 53 of the Privacy Act 2020 or sections 6 or 9 of the OIA, e.g. section 6(c) “prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to
a fair trial.
Other statutory rights to withhold information
Some statutory provisions contain specific grounds for withholding information including:
‑ 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).
Initial actions of disclosure manager
On appointment to the role, the Disclosure Manager must:
‑ 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.
