L16 - Disclosure Flashcards
Where do the sources of Prosecution’s disclosure obligation come from?
Common Law - R v FARQUAHARSON
Legislation- Criminal Procedure Act 2009
Ethical obligation- Legal Profession Uniform Law, Australian Solicitor’s Conduct Rules 2015, Legal Profession Uniform Conduct Barristers Rules 2015
Discuss some of the points raised pertaining to the Crown’s duty to disclose material as applied in R V FARQUHARSON
a) to be relevant or possibly relevant to an issue in the case
b) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use
c) to hold out a real (as opposed to fanciful) prosect of providing a lead on evidence which goes to (a) or (b)
You have 2 x prosecution witnesses. Witness (a) has recent priors for theft/perjury/dishonesty offences and witness (b) has priors for speeding and a shop steal from 30 years ago. Are the priors for witness a + b disclosable to defence?
Witness A’s priors would be disclosable to defence, as p s 41(1) (viii) it is ‘relevant to the credibility of a witness for the prosecution’, however witness B’s are likely not disclosable as it is unlikely to affect the credibility of the witness.
You are prosecuting a hearing for an assault matter where the Accused has punched the Victim. The Accused is claiming self-defence, the Victim has priors for assault and the Witness has priors for traffic related matters. Are the Victim’s and Witness’ priors disclosable to defence?
Yes the Victim’s priors are likely disclosable as they are likely relevant however the Witness’ priors are unlikely to be relevant for disclosure.
You’ve had a long week, it’s a Friday and you’re about to knock off for the day, when you get a call from an Informant. The Informant says, defence have asked for priors for a whole bunch of witnesses for an upcoming hearing, but all of the witnesses have irrelevant/historical priors. The informant wants to know what to tell defence, should he just ignore the email?
The Informant needs to tell defence, that the witness has undisclosed prior convictions that are deemed irrelevant pursuant to section 45(3) of the CPA.
Defence wants the priors for some of the defence witnesses, do we have an obligation to give them?
The CPA states prosecution only needs to disclose relevant priors for the prosecution witnesses, there is no obligation to provide defence witnesses other than the accused.
When does the disclosure obligation start and when does it end?
Starts at the commencement of the legal proceeding, and never ends.
You spent hours working on a brief that was Not Authorised. The Accused has asked for a copy of the brief anyway. Do we have an obligation to disclose under the CPA to give it to them?
No we don’t because the disclosure obligation starts from the commencement of the legal proceeding. If a brief wasn’t authorised, the legal proceeding had not yet commenced.
The Informant has served a full brief, but then obtains further information relevant to the offence. What timeframe must it be disclosed?
As soon as practicable after the information, document or thing comes into the informants possession or comes to the informant’s notice. See S42(1) of the CPA.
A Prosecution Witness has priors in New Zealand that are relevant. But given that they aren’t Australian Law priors, you are thinking to tell defence there are no relevant priors. Are you on the right track?
Absolutely not. The Informant must make enquiries with NZ Police with the view of obtaining them and giving them to defence. CPA 41(1)(E8) states you must disclose anything that is relevant to the credibility of the prosecution witness including their priors, therefore we cannot refuse to disclose. As found in AJ v The Queen this includes the obligation to make enquiries.
Do V.I.S need to be disclosed?
Yes absolutely but do not identify witness personal details when disclosing i.e phone, address, d.o.b
What are some statutory prohibition on disclosure?
Witness personal detail
Child abuse material to accused personally
Public Interest disclosure
Details of person in witness protection
Prohibition under section 45(1) of the CPA
PII
Defence are asking for the D.O.B for a witness to conduct conflict of interest checks, do you give them the witnesses D.O.B
Refuse this request at the first instance, and provide middle name instead, but failing that may have to provide year of birth
What are witness details the Informants must not disclose unless exceptions apply?
Address, telephone number, d.o.b
You come across material pertaining to improper conduct by a MOPF. Do you disclose this information?
No this is material covered by Public Interest Disclosure and must not be disclosed. Immediately contact the Disclosure Support Unit.
What can happen if there is a failure to disclose?
Costs, improper conviction, appeals, breach of ethical obligation, damage to reputation, effect community confidence
Are the execution of the search warrant, result/finding of s/w and affidavit for search warrant disclosable?
The execution of s/w and finding is but the affidavit is not disclosable because the court has already adjudicated on the contents of the affidavit and the warrant is deemed to have been validly issued. However, there are EXCEPTIONS:
Affidavit disclosable when validity of sw is called into question i.e when there are defects on the face of the warrant such as incorrect address for POI or other plainly apparent jurisdiction errors i.e such as administrative tribunal issues criminal search warrant or fraud misrepresentation in search warrant
What is relevant material in regards to disclosure?
Relevant material includes material that:
a) is relevant to the prosecution case
b) can be seen to undermine the prosecution case
c) might reasonably be expected to assist or strengthen the accused’s case
d) is relevant to the credibility of a prosecution witness
e) lends weight to a reasonable hypothesis consistent with the accused’s innocence
f) suggests he existence of an alternate suspect
g) opens a line of enquiry going to any of these factors
Informant is refusing to disclose information relating to a case as it would disclose sensitive police methodology. What does the Informant have to do?
If INFT refuses to disclose before a written request for disclosure from defence; a written notice must be served, as soon as practicable, and must state the grounds for non-disclosure identified.
If following a written request for disclosure from defence, Inft must provide written notice within 7 days and grounds for non disclosure identified.
