Criminal disclosure relating to homicide and serious crime investigations Flashcards
Executive Summary
Criminal disclosure is the process through which all relevant material pertaining to a prosecution case is released/made available to the defence. It is an integral part of any criminal prosecution and ensures that the process is fair and transparent.
Police accountabilities in regard to disclosure are governed primarily by the Criminal Disclosure Act 2008 (hereafter the ‘CDA’). Police staff must adhere to the requirements set out in the CDA, and the supporting guidance outlined in this chapter.
The governing principle of disclosure under the CDA is that of ‘relevance’; all relevant information must be disclosed, unless there is a legally justified reason to withhold it. Failure to disclose the appropriate information, at the appropriate time, in accordance with the requirements of the CDA, may have negative consequences for the case and those involved in it, the individual responsible for disclosure, and NZ Police.
The OC case (i.e. the staff member who files the charge/s) with the oversight of their supervisor, is the primary responsibility holder for the case. The OC may be supported in aspects of this work (including disclosure), by groups such as the Criminal Justice Support Unit.
Disclosure responsibilities begin at the time criminal proceedings are commenced, and continue throughout the duration of a prosecution (or until all relevant material has been disclosed). There are various stages of disclosure, characterised as: initial disclosure, full disclosure, and additional (requested) disclosure.
The stages of the CDA (i.e. initial and full disclosure) place particular disclosure requirements and timeframes on Police. For example, initial disclosure responsibilities are triggered by the commencement of proceedings, are to be delivered no later than 15 working days from that time, and involves the disclosure of certain proscribed materials). To enable the timely progression of a case, it is considered best practice to take a proactive approach to mandatory disclosure responsibilities. It is also considered best practice to action requests for additional disclosure (e.g. those made by defence counsel) in a timely manner. However, this proactivity and efficiency must not be at the expense of privacy obligations.
Disclosure can be provided in electronic or hard copy format, although the Police preference (except for small files) is for electronic disclosure.
Where aspects of the information contained within documents are withheld, all care must be taken to ensure that the correct (electronic) redaction process is followed, and that such information is fully and permanently removed from the disclosed material.
Effective disclosure is only possible with effective file management. There are two main Police systems that support disclosure:
the National Intelligence Application (hereafter ‘NIA’), contains a prosecution file form set that enables the creation/building of a file. This material can then be disclosed manually or electronically
the Investigation Management Tool (hereafter ‘IMT’), is an electronic file management system that enables electronic (or manual) disclosure.
Police has a number of prosecution processes – operating within districts – through which disclosure is managed. This chapter provides high-level guidance, which should be read through the lens of local practice.
Part 1: Overview
Purpose of this chapter
This Police chapter outlines the duties and responsibilities of NZ Police staff in regard to criminal disclosure.
The primary audiences for this chapter are:
The Officer in Charge of the Case [hereafter ‘OC case’]
Police staff who have supervisory responsibilities towards staff undertaking disclosure activity
Criminal Justice Service Centre (hereafter ‘CJSU’) or other service centre staff involved in disclosure activity
Police Prosecution Service (hereafter ‘PPS’) staff and managers, and
All other Police staff who are involved in criminal disclosure work.
Strategic importance of disclosure
Prosecution is the most formal resolution mechanism available to Police, and the prosecution process has significant implications for all those involved – including defendants, complainants/victims, whānau, police, and the courts. As such, the decision to prosecute is of great significance, and is only taken in those instances where the extent of alleged offending justifies this response (i.e. where there is deemed to be a sufficient level of public interest in bringing the case before a court).
In cases of more serious offending, prosecution is the resolution process that enables the courts to hold offenders appropriately to account, enhance public safety, and seek restorative and rehabilitative solutions that target re-offending.
The prosecution case is built on a set of evidence – adduced through the police investigation – which seeks to prove (beyond reasonable doubt) that the alleged offending has been perpetrated by the defendant/s. This set of evidence is then tested by the prosecution and defence through the prosecution process, to enable the court to reach a suitable determination and resolution.
Disclosure is the process through which all parties comply with their legal obligations to provide and share the evidence upon which the prosecution case is built. Disclosure therefore provides the evidential foundation of the case. Compliance with disclosure requirements and timeframes is intended to facilitate the efficient and effective delivery of justice; whereas inadequate disclosure practices can delay (and in some instances undermine) this outcome.
Overview of disclosure obligations
The following sections provide an overview of Police disclosure obligations, as the prosecutor in criminal proceedings, which are then outlined in further detail in subsequent parts of the chapter.
The Criminal Disclosure Act 2008
The disclosure of materials relevant to criminal proceedings in New Zealand is primarily governed by the Criminal Disclosure Act 2008 (hereafter ‘CDA’). The purpose of the CDA is ‘to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings’ (s3). All Police staff who are involved in criminal proceedings must be familiar with the content of the CDA.
The governing principle of disclosure within the CDA is ‘relevance’; all relevant information must be disclosed, unless there is a justified reason to withhold it. Failure to disclose relevant information in accordance with the requirements of the CDA may have negative consequences for the case and those involved in it, the individual responsible for disclosure, and NZ Police (e.g., through cost awards and/or reputational damage).
As outlined in the CDA, there are three disclosure stages required of Police as the prosecutor:
Initial disclosure (s12(1))
Full disclosure (s13)
Additional disclosure (at any time after criminal proceedings are commenced, if requested by the defendant in writing (s12(2)), or at any time after the duty to make full disclosure has arisen (s14)).
Police responsibilities in respect of these disclosure stages are outlined in more detail in this chapter.
Note on best practice
While the CDA stipulates timeframes within which disclosure is to be made, Police staff are encouraged to disclose required materials as proactively as possible (and to action requests for additional disclosure in a timely manner). Earlier, fuller disclosure helps the defence to become familiar with the case, promoting more efficient case progression and resolution. However, in doing so, all care must be taken to comply with necessary privacy responsibilities associated with the disclosure of information.
Information recording obligations
Section 15 of the CDA provides that Police is not required to disclose information, if it:
is not in possession or control of that information at the time, or
does not hold the information in recorded form at the time.
However, beyond these exclusions, Police must still record all information relevant to an investigation and associated Police activities. Written materials provide the foundations of the Police case against the defendant. Information that is not recorded cannot be used in the prosecution, and the recording of all information relevant to the case against the defendant ensures that Police presents its fullest and strongest possible case in support of its decision to prosecute.
The Public Records Act 2005 requires Police to create and maintain full and accurate records of its affairs, in accordance with normal prudent business practice. The variety of digital methods of communication are expanding the information collection and exchange options available to police officers. For example, text messages, audio-visual platforms utilised by Police, and various other messaging services, are increasingly being used. It is important to remember that these mechanisms all generate business records, and if the communication and information exchange they generate is relevant to the case, it must be preserved, attached to the investigation file, considered for disclosure, and included in the disclosure index (whether disclosed or not).
If relevant information is retained in unwritten form for the purposes of avoiding disclosure, this will likely constitute a breach of the NZ Police Code of Conduct.
Disclosure obligations are the same for all investigations
Within the post-charge arena, Police deals with a wide spectrum of cases, some of which are very serious and/or complex in nature (e.g. those involving homicide, serious violent offending, fraud, and organised crime). It is recognised that the responsibilities and activities associated with disclosure are likely to be more significant and challenging in larger and/or more complex investigations. In such situations, it is the size of the case file, and the number of potentially disclosable documents produced by the investigation, which poses the greatest challenge to the efficient management of disclosure. It is also likely that more serious and complex cases will be managed by a Crown Solicitor (either in a District Court, or, in some cases, the High Court), which means that the OC case will need to liaise closely with an external party regarding the ongoing disclosure work associated with the case.
Notwithstanding the challenges associated with the management of more serious and complex cases, regardless of case specifics, Police is required to comply with the disclosure timeframes and responsibilities outlined in the CDA in all cases. Therefore, it is particularly important, that when dealing with more complex and involved cases, the OC case is well organised and efficient so as to meet disclosure requirements. Failure to disclose the appropriate information at the required time can negatively impact the case, public and stakeholder confidence in Police, and the individual Police employee personally responsible for the failure.
Additional disclosure hearing (Judicial Disclosure Conference) in High Court cases
Effective 8 March 2023, and in consultation with Police, Practice Note HCPN 2023/1 ‘Criminal Disclosure in High Court Trials’ outlines that a Judicial Disclosure Conference will be scheduled by the Judge at the Case Review Hearing or first call in the High Court (where deemed necessary) to consider compliance with disclosure obligations. This process applies only to High Court cases. Further details are available at the Courts of NZ webpages at the link below:
https://www.courtsofnz.govt.nz/assets/6-Going-to-Court/practice-directions/practice-notes/high-court/20230307-High-Court-Practice-Note-Crim-Trial-Disclosure.pdf
It is also available on the PPS Practice Notes and Guidelines page here.
Official information vs criminal disclosure
The CDA is the applicable legislation which governs the disclosure of information in criminal proceedings. Disclosure obligations under the CDA are triggered by the ‘commencement of proceedings’ and continue throughout the entirety of the criminal proceedings.
As outlined in section 13(6) CDA:
“The entitlement of a defendant to information under this section (i.e. that of s13, relating to full disclosure) continues while the criminal proceedings are in progress (including any appeal against conviction) and during the period from the conviction until the expiry of the time for lodging an appeal against the conviction.”
Requests for information that are covered by s12 or s13 of the CDA should be managed in accordance with this legislation. Requests made through the Official Information Act 1982 (hereafter ‘OIA’) and/or the Privacy Act 2020 (hereafter ‘PA’), should only be considered as a basis for releasing information when that request:
is not covered by CDA provisions (e.g., requests made prior to the commencement of proceedings, or after the conclusion of proceedings)
has not already been disclosed to, or withheld from, the defendant (through s38 and s39 of the CDA)
does not relate to criminal proceedings.
The relevant refusal grounds are: s53(g) of the Privacy Act 2020, and/or s18(da) of the Official Information Act 1982.
Summary of disclosure roles and responsibilities
The following sections (and FIG 1 below), provide a brief summary of the disclosure roles and responsibilities of the different Police parties to a prosecution.
Role of OC case in disclosure
The general terminology of the CDA refers to the responsibilities of the ‘Prosecutor’ in respect of disclosure. For the purposes of the CDA, ‘Prosecutor’ means “the person who is for the time being in charge of the file or files relating to a criminal proceeding, and includes:
Any other employee of the person or agency by whom the prosecutor is employed who has responsibilities for any matter directly connected with the proceedings; and
Any counsel representing the person who filed the charging document in the proceedings; and
In the case of a private prosecution, the person who filed the charging document and any counsel representing that person” (CDA s6).
Given the role of the OC case as the main responsibility holder for the prosecution file, disclosure responsibilities primarily rest with them. The OC case (with the support, oversight, and approval of their supervisor) leads the process of considering, preparing, and providing disclosure. Therefore, the terminology of ‘Prosecutor’ often refers to the role of the OC case.
Note on OC case primary responsibility, and local arrangements
This chapter notes that OC case has primary responsibility for the prosecution file and associated activity (including disclosure). However, in some districts, other service groups (e.g., Criminal Justice Support Units) may undertake some disclosure responsibilities. Disclosure activity should be read through the lens of local practice.
Role of supervisors in disclosure
Supervisors, OC Stations, and Senior Sergeants play an integral leadership role in the prosecution process (including the disclosure aspects of this process). Beyond general leadership, coaching, and mentoring of junior staff, supervisors are directly accountable for the standard of prosecution files advanced by their staff, and for reviewing and approving associated disclosures. As such, in instances where their staff member is managing the disclosure process, they hold accountability for those disclosure standards, and liability for failure to meet those standards.
Supervisors are required to take an active role in overseeing and reviewing the disclosure materials prepared by their staff. Reviewing disclosure materials provides an opportunity to ensure statutory requirements are being met, to identify any gaps or further lines of inquiry to be followed up, to resolve problems, and to coach and mentor the OC case. Without this oversight, relevant information could be inadvertently withheld or overlooked, and this could undermine the Prosecutor’s case at court.
Supervisors also have a responsibility to ensure sensitive content is not disclosed if withholding grounds apply.
It is also critical that supervisors ensure electronic disclosure and redaction procedures are properly followed - see Electronic redaction chapter. Non-compliance with this process, particularly in relation to sensitive or informant information, may jeopardise an individual’s safety and/or privacy, and may lead to an employment investigation.
All materials proposed for disclosure by the OC case must be signed off by their supervisor prior to being delivered to defence counsel. Before approving and signing off materials, supervisors must review all documents (not simply view the Disclosure Index) and then sign the Disclosure Index to signify that a review has been conducted and approval given.
The importance of supervisors to disclosure
Timely disclosure (together with, and enabled by, file quality, currency, and completeness) allows the court to efficiently and effectively advance a prosecution case. What is more, efficient case advancement is directly linked to the delivery of Police strategic goals such as the protection of public and victim ‘safety’, the ‘prevention’ of further harm, and enhancing public and partner ‘trust and confidence’. Therefore, the work of supervisors in reviewing, overseeing, and supporting file quality and compliance with prosecutorial processes (including disclosure), makes a key contribution to the core strategic goals of NZ Police, as set out in Our Business.
Role of Criminal Justice Support Units (CJSUs) or other service centres
As noted above, while the OC case is/remains the primary responsibility holder for their prosecution case and file, in some districts (varying by district), for some staff (varying by district), and at certain stages of the disclosure process (varying by district), CJSUs or other service centres may assist with the preparation and delivery of criminal disclosure.
Role of Station OC/Senior Sergeants
Station OCs (at a station level) and Senior Sergeants (in respect of the staff under their reporting lines) play a key role leadership and overseeing role in regard to file quality and case management (including the management of disclosure responsibilities). They ensure that supervisors are conducting their disclosure role effectively, that localised disclosure issues and challenges are understood, and that there is an on-going focus on improvement. Station OCs and Senior Sergeants also provide confidence to senior leaders within the district (e.g., Area Commanders) regarding the careful and efficient management of disclosure.
Role of Police Prosecutors
Police prosecutors conduct the prosecution on behalf of Police as it moves through the district court process (or in some instances this role is performed by a Crown Solicitor). Within this role, and in order to facilitate the efficient advancement of the case, Prosecutors have a number of file and disclosure-related responsibilities and obligations, as follows.
File review
The prosecutor has a general obligation to review all cases before they reach a court event – e.g., to ensure that:
The Test for Prosecution continues to be met, in accordance with the Solicitor General’s Prosecution Guidelines
Charges are appropriate and justified given the facts of the case
All required information is contained on the file
The necessary disclosures have been made.
Police staff (including the OC case and/or supervisors) may seek guidance from Police Prosecutors on matters relating to a specific case – e.g., procedural issues, charging decisions, and/or pre-trial applications. Police prosecutors will endeavour to offer this type of mentoring assistance wherever possible, as it will improve the officer’s understanding of both the specific case and general prosecution processes.
Receiving and actioning disclosure requests
Police prosecutors must play an active role in supporting the OC case, to ensure that the disclosure process operates efficiently and effectively (and in compliance with legislative timeframes). This may include:
Providing initial disclosure to defence counsel at first appearance, when necessary
Ensuring any disclosure requests received by the Police prosecutor from defence are forwarded to the OC case (via a NIA tasking)
Providing notice of delays and estimates of time for disclosure delivery to defence, as necessary
Checking whether previously withheld information has become disclosable after any change in circumstances (note: this task is the primary responsibility of the OC case; the prosecutor’s role here is supplementary only).
Applications and submissions
Police prosecutors play a key role in making any necessary applications and submissions to the court to ensure that Police presents its best quality prosecution case, including:
Applications for extensions to initial disclosure delivery, and conditions on access to exhibits
Submissions on non-party disclosure, requests for disclosure, or timetabling orders.
Note: When Police prosecutors make applications or submissions, they must provide the court with two copies of the documents: one copy for the court itself, and another for the court’s service of these documents on defence.
Challenges to disclosure
Police prosecutors also play a key role in managing challenges to disclosure, including:
In court work – e.g., making applications for court-ordered disclosure, and appealing court decisions
Advocating the prosecution position, by conveying Police disclosure decisions (and reasons) to defence counsel and the court
Out of court work – e.g., advising defence counsel about delays in releasing materials, intentions to withhold information, and conditions on viewing exhibits.
