Part 15 - Criminal Disclosure

Question 1

What is the purpose of the Criminal Disclosure Act 2008?

Answer 1

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

Question 2

What are the principles of the disclosure regime?

Answer 2

(1) The governing principle is relevance. All relevant material is discoverable, unless withholding is justified under s16, s17 or s18 of the Act
(2) There is no obligation for the Prosecutor to acquire material that is not already in Police possession or control (i.e. defence cannot demand Police to make enquiries for disclosure material)
(3) Disclosure is an ongoing process and the reasons for withholding material should be continually reassessed (if justification no longer exists, material must be disclosed)
(4) Disclosure process must be auditable, accountable and record decisions
(5) Effective file management systems are critical to the success of disclosure process

Question 3

Disclosure timeframes

Answer 3

If disclosure timeframes cannot be met, the Disclosure Manager must liaise with the 2IC and Crown Solicitor/PPS to make an application for an order to set out disclosure timetable (s32)

Question 4

Initial action - Disclosure Manager

Answer 4

(1) Read Disclosure Manager’s desk file
(2) Report to 2IC for a briefing and establish what information is / isn’t discoverable

Question 5

What are the key responsibilities of the Disclosure Manager? (8)

Answer 5

(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 are advised
(3) Continually assess the risk (regarding non-discoverable material)
(4) Continually review to ensure that ongoing lawful justification to withhold exists
(5) Ensure robust auditable systems are employed to record disclosure decisions and actions
(6) Manage disclosure timeframes
(7) Retain correspondence with defence counsel (50,000 series number)
(8) Update NIA with disclosure provided and record of delivery

Question 6

Obligations when counsel is reassigned

Answer 6

Police must ensure that replacement council is provided with all material previously disclosed

Question 7

Section 10(4), Criminal Disclosure Act 2008

Answer 7

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

Question 8

Disclosure Register / Index

Answer 8

A list of all material disclosed and withheld must be entered onto the Disclosure Register / Index. It must record the dates and details of all requests made by defence counsel and the date the requests were responded to.

Question 9

Examples of 10,000 series (admin) documents

Answer 9

• Formal written statements
• Transcripts
• SOF
• Notebook entries
• Job sheets

Question 10

Examples of 50,000 series documents (withheld documents)

Answer 10

• Search warrant applications
• CHIS information reports
• Analytical material (charts, schedules etc)
• Operation orders / briefing material
• Covert investigative techniques
• SDW applications
• Internal Police documents

Question 11

Alibi enquiries

Answer 11

Police are not obliged to provide disclosure regarding alibi enquiries