Disclosure

Question 1

Principles of the disclosure regime (5)

Answer 1

Disclosure Managers should be guided by these principles:

1. 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.
2. 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.
3. 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.
4. The disclosure process must be auditable, accountable and record disclosure decisions that are made in relation to a particular document.
5. 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.

Question 2

Initial actions (3)

Answer 2

On appointment to the role, the Disclosure Manager must:

1. read the Disclosure Managers desk file
2. access the current Serious Crime Template downloaded to the local district shared drive, for use during the investigation
3. report to the 2IC to receive a briefing, tasking, establishing what information is and is not discoverable, and ongoing supervision.

Question 3

Key responsibilities (8)

Answer 3

The Disclosure Manager must:

1. ensure all relevant and discoverable material is provided to defence counsel
2. ensure all relevant and non-discoverable material is identified, listed and defence advised
3. continually assess the risk to ensure that non-discoverable material is identified and not disclosed
4. continually review to ensure that ongoing lawful justification to withhold exists for each document that is withheld
5. ensure that robust auditable systems are employed to record disclosure decisions and actions (this includes compiling and maintaining the Disclosure Index)
6. manage disclosure timeframes within the provisions of the Act, or as otherwise directed by the Courts
7. retain and file all correspondence with defence counsel, both incoming and outgoing, in the 50000 series document category
8. 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

Question 4

Defence counsel relationships

Answer 4

All communication with defence counsel should be conducted through the 2IC, or Crown solicitor, where engaged.

Question 5

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 the replacement counsel with a fresh copy.

Question 6

Format of disclosure material

Answer 6

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.