Criminal Disclosure Relating to Homicide and Serious Crime Investigations

Question 1

Key Responsibilities

Answer 1

The Disclosure Manager must:

• Ensure all relevant and discoverable material is provided to Defence Council
• 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 exist for each document that is withheld
• Ensure that robust audible systems are employed to record disclosure decisions and actions (disclosure index)
• Manage disclosure time frames within the provisions of the Act, or as directed by the Courts
• Retain and file all correspondence with defence counsel, both incoming and outgoing, in the 5000 series document category
• Create NIA record of Disclosure.

Question 2

Defence Counsel Relationships

Answer 2

All communication to be conducted through 2IC or Crown Solicitor.

Question 3

Format of Disclosure Material

Answer 3

Hard copy, electronic or combination of both (10(4) Criminal Disclosure Act) provide it is readily accessible to the Defendant (e.g. if in prison)

Disclosure selected will depend on the:

• Scale of investigation
• Scale of the material to be disclosed
• Resources available
• Technical ability of Disclosure Manager
• Investigation file in hard/electronic copy
• Sensitive material
• Any agreement with Defence.

Question 4

Disclosure to Defence

Answer 4

• No requirement to supply a list of Material disclosed
• Exact duplicate copy of material disclosed to Defence must be retained (electronic/hard copy)
• Crown to be supplied duplicate copy to Defence
• Multiple Defendants provided with same disclosure pack to each. A single disclosure index for all.
• Out Source Printing for large scale operation (redacted material only)
• Description of 50000 series documents only be recorded in general terms in Disclosure Index (e.g. do not put CHIS information).

Question 5

Alibi Enquiries

Answer 5

Police are not obliged to provide disclosure regarding alibi enquiries.

Question 6

Electronic Disclosure of 50000 Series Documents

Answer 6

Generally, documents that have been edited, such as Search Warrant Affidavits, CHIS Material, Covert Investigative Material must never be disclosed in electronic format.

Extreme care must be taken when editing sensitive information.

• Text should be blacked, printed, blacked, photocopied, and repeated to ensure edited material cannot be seen.
• Peer reviewed and disclosure must be approved by DSS
• Highlighting text black electronically and printing is a significant risk due to the original text being underneath the black highlight. manual Blocking needed
• Must be edited using Adobe Acrobat Pro.

Question 7

Managing Email

Answer 7

• Email to/from Crown, Police Legal are privileged
• Dedicated operation email folder for all staff so emails can be collated and later assessed for disclosure purposes (time consuming process and Defence should be advised of the fact).

Question 8

Page Numbering (Pagination)

Answer 8

Rationale for page numbers to disclosure:

• Effective auditing
• Provides reference for all parties including court members
• Disprove claims of lack of disclosure
• Accurate records to be kept for updated material (eg updated FWS).