DISCLOSURE BY BOTH SIDES

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1 DISCLOSURE BY BOTH SIDES P. J. L. ROFE Q.C. Director of Public Prosecutions South Australia INTRODUCTION There is no more contentious area for a prosecutor than disclosure. Every prosecuting authority in Australia has been subjected to critical examination whether by way of subpoena or an application for or a stay of proceedings on the basis of a failure to make full or adequate disclosure. The prosecution policies of all Directors of Public Prosecution recognise the duty of the prosecution to disclose all information in its possession relevant to the guilt or innocence of an accused person subject only to considerations of the safety of the State or its citizens. However, any formulation of the prosecution duty is fraught with inherent difficulties. As it is stated above one needs only to ask a series of questions to highlight the problems. What information is considered to be in the possession of the prosecution? Who decides what information is relevant to guilt or innocence? How and when should disclosure be made? and so on. It is suggested that however the duty is described, it can be properly discharged only if there is some equivalent duty of disclosure on defence. It is no longer realistic for defence to claim an all embracing right to silence or point to the vast resources of the Crown. Case loads, case flow management requirements and strained resources of police, prosecutors and courts require a cooperative approach to the issue of disclosure. If there is to be proper disclosure by the prosecution, there must be effective disclosure by the defence. It is no longer realistic to allow an accused person to delay disclosure of his or her defence until the prosecution has presented its case at trial, a case that necessarily must cover all possible defences. There must be disclosure by both sides. PROSECUTION DISCLOSURE As a basis for discussion I incorporate a paper prepared for my office by Ms Wai-Quen Chan, now a Federal Court associate. It is a thoughtful, well researched analysis with which I am in basic agreement although I do not necessarily endorse all the recommended guidelines. The Conference of Australian Directors of Public Prosecution (CADS) has had uniform prosecution guidelines on its agenda for some time and it is hoped these will be agreed and published in 1996.

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3 - 3 - REPORT OF MS WAI-QUEN CHAN PRE-TRIAL PROSECUTION DISCLOSURE INTRODUCTION Prosecuting counsel have a duty to ensure that the prosecution case is presented properly and with fairness to the accused. It is often stated that the prosecutor's duty is not to obtain a conviction at all means, but simply to lay before the jury the whole of the facts which compose the case, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts. 1 In R v Stinchcombe [1991] 3 SCR 326, for example, Sopinka J stated that: the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to ensure that justice is done. It is now recognised in various prosecution policies that there is a general duty upon the Crown to disclose the case-in-chief for the prosecution to counsel for the accused as well as other relevant material which the Crown does not intend to adduce which may be of assistance to the defence. 2 The purpose of disclosure by the Crown is threefold: (a) (b) to ensure that the defence is aware of the case-in-chief for the prosecution and all other evidence relevant to the guilt or innocence of the accused; to resolve non-contentious and time-consuming issues in advance of the preliminary hearing or trial in an effort to ensure more efficient use of court time; See, for example, WA Statement of Prosecution Policy and Guidelines (issued 1 November 1992), para 53, in Office of the DPP, Annual Report , p 87; David Gates and Gerard Normand, `Pre-Trial Disclosure' (unpublished paper, Canada), pp From the NSW Director's Guidelines as at 30 June 1994, para 11, Office of the DPP, NSW, Annual Report , Appendix 1, pp 29-31; NT Director's Guidelines, para 22, DPP, NT, Annual Report , p 51; WA Statement of Prosecution Policy and Guidelines, paras 57-58; A-G, UK, Guidelines for the Disclosure of "Unused Material" to the Defence in Cases to be Tried on Indictment (1982) 74 Cr App R 302. See also R v Ward [1993] 1 WLR 619; R v Stinchcombe [1991] 3 SCR 326.

4 - 4 - (c) to encourage the resolution of cases including where appropriate the entering of guilty pleas at a date early in the proceedings. 3 The purpose of this paper is to provide a survey of the rules and practices relating to the Crown's obligations of pre-trial disclosure in South Australia, as compared with the Crown's obligations in other Australian states, and overseas jurisdictions, namely, that of the United Kingdom, Canada and New Zealand. My focus is primarily on the content of material subject to Crown disclosure obligations. THE SCOPE OF DISCLOSURE REQUIREMENTS Rules and practices regarding disclosure vary according to jurisdiction and court. While there is no comprehensive legislative or judicial statement in Australia which requires the production of evidence to be relied upon by the Crown at trial, as a matter of practice and/or policy, full disclosure is routinely provided to the defence. 4 The accepted guiding principle is full disclosure of the case-in-chief for the prosecution and all other evidence relevant to the guilt or innocence of the accused. Such full disclosure may only be limited where there is a real need to protect the integrity of the administration of justice, including the need to prevent the endangerment of the life or safety of witnesses or interference with the administration of justice. 5 Statutory requirements (Australia) Statutory requirements are provided in a number of states in relation to pre-trial disclosure obligations of the prosecution. New South Wales Sections 48A and 48B of the Justices Act 1902 provide that the defendant must be served with a copy of witnesses' statements, and a copy of the proposed exhibits identified in the statement on which the prosecution relies in committal proceedings. Western Australia Section 100(1) of the Justices Act 1902 provides that in charges not summarily dealt with, the defendant must be supplied with: See also Kathy Mack and Sharyn Roach-Anleu, Pleading Guilty: Issues and Practices (forthcoming, AIJA, 1995), p 87. As above. See also NSW and NT Director's Guidelines; and WA Statement of Prosecution Policy and Guidelines. As stated in the NSW and NT prosecution policies.

5 - 5 - (d) a statement of the material facts relevant to the charge; (e) a copy of - (i) any statement signed by the defendant; (ii) any record of interview with the defendant (signed or unsigned by the defendant); or (iii) the substance of anything said by the defendant to a member of the Police Force that is material to the charge, in the possession of the prosecution; and (iv) notice of any tape or videotape recording of conversations between the defendant and a person in authority in the possession of the prosecution. Further, s 101A(e) provides that where the defendant does not plead guilty to the charge, the prosecutor must serve on the defendant a copy of the written statement of each person which the prosecution proposes to tender in evidence. Victoria Section 8 of the Crimes (Criminal Trials) Act 1993 requires the prosecution to prepare a case statement which includes an account of facts and inferences, and any other material the court considers desirable on which the prosecution case is based; as well as propositions of law applicable to the case at hand on which the prosecutor proposes to rely. It must be accompanied by a copy of the presentment; copies of the statements of witnesses 6 and expert witnesses whom the prosecutor intends to call at trial; and a list of exhibits and copies of documentary exhibits that the prosecutor intends to produce at trial. Section 10 provides that: (1) The accused must be given a reasonable opportunity to inspect the exhibits referred to in the prosecution case statement. (2) A failure to comply with this section will not make ineffective the service or filing of the prosecution case statement if the court is satisfied that the accused is not substantially prejudiced by the failure. South Australia Section 104 of the Summary Procedure Act 1921 (SA) requires the prosecutor to file in Court and supply to the defendant: (i) statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant; (ii) copies of any documents on which the prosecutor relies as tending to establish the guilt of the defendant; (iii) a document describing any other evidentiary material on which the prosecutor relies as tending to establish the guilt of the defendant together with a statement of the significance that the material is alleged to have; and (iv) any other material relevant to the charge that is available to the prosecution. Prior to the introduction of this section, it was the law that in order to establish a prima facie case and have a defendant committed for trial, the prosecution need not tender before an 6. See also R v Charlton [1972] VR 758.

6 - 6 - examining magistrate its entire case, it was sufficient if the statements of all material witnesses were put in evidence. 7 It seems that s 104 is cumulative on these obligations and does not operate as an all encompassing code governing the disclosure of material prior to a defendant's trial: Goldsmith v Newman (1992) 59 SASR 404 at 409, per King CJ. It was also established in Goldsmith that s 104(1)(a)(iv), which refers to material on which the prosecution does not rely, includes only to admissible material. It does not include material which goes only to the credit of the witness, and `is no more than a statutory recognition of the well-recognised responsibility of the prosecution to place before the court all relevant and admissible material available to it irrespective of whether it assists the prosecution case.' 8 Further, King CJ thought that it did not abrogate the discretion of the prosecution to refrain from tendering evidence the truthfulness or reliability of which the prosecution distrusts. 9 In the case of matters proceeding summarily, there are provisions in the Magistrates Court Rules 1992 (SA) designed to ensure that the defendant is put fairly upon notice of the essential allegations which they face. Rule 21.04, for example, provides that the prosecution must `unless an election has been made... upon the request of the defence or direction of the Court... provide the defence with a summary of the evidence in support of each charge.' 10 Rule 21.04, however, applies only to matter proceeding by way of information. Use of the subpoena process to obtain disclosure The court has power to order the production to the defence of material in the prosecution's possession of power if the interests of justice so require: Carter v Hayes (1994) 61 SASR 451 at 456, per King CJ; Sobh (1993) 65 A Crim R 466 at 474, per Brooking J (`inherent power'); at , per Ashley J. This may often be in response to a subpoena issued by the defence. In Carter v Hayes, King CJ (at 455) considered that `There is nothing in the Act which precludes a subpoena requiring production of material to the Court before the hearing of charges.' Although a subpoena cannot be used to obtain discovery in a criminal process, it may be used to obtain disclosure of evidentiary material, that is, any document, object or substance of evidentiary value: Magistrates Court Act 1991 (SA), s 20; District Court Act 1991 (SA), s 25, as defined in s 3 of each Act Richardson v R (1974) 131 CLR 116; R v Harry; Ex parte Eastway (1985) 39 SASR 203; Basha (1988) 39 A Crim R 337, cited in Hinton, `Preliminary Hearings in South Australia: Reflections on Reading Goldsmith' (1993) 15 Adel LR 105 at 118. Perry J agreeing, at 414. CF Perry J, at 414. See Carter v Hayes (1993) 68 A Crim R 469.

7 - 7 - In Hunt v Russell (1995) 63 SASR 402 at 406, it was held that the determination of `evidentiary value' takes place as part of the first step of the subpoena process and does not require the judge to take the documents into custody. 11 Generally speaking, the propriety of the subpoena should be determined by reference to the judge's knowledge and understanding of the case, and the description of the document in the subpoena. A mere `fishing' expedition will not be allowed; it must be `on the cards' that the documents sought to be produced will be of `evidentiary value' in the proceedings: at , per King CJ, citing Alister (1984) 154 CLR 404. In other words, `There must be some reason to suppose that the documents sought will be capable of being used as evidence': Hunt v Wark (1985) 40 SASR 489 at 493, per King CJ; or, that the documents have some `legitimate forensic purpose': Saleam (1989) 39 A Crim R 406, approved in Carter v Hayes. A party's lack of knowledge as to the existence or contents of the material sought is not of itself a valid objection to a subpoena: Carter v Hayes, at 453, per King CJ. But a party's inability to indicate whether or not a file or document sought to be produced may or may not contain relevant material may suggest that the purpose of the subpoena is `purely fishing' although it is not determinative of that question: Hunt v Russell, at , per Perry J. In Saleam, Hunt J (at 409) considered that defence counsel should identify `expressly and with precision' the `legitimate forensic purpose' of the material sought. In Hunt v Russell, there was no indication that the personnel files of four police officers contained any material relevant to the case. However, the request to the Police Complaints Authority for the production of statements involving any complaint alleged against the police officers was valid in that such material might be relevant to the credit of the police officers. 12 A document may have evidential value not only if it is admissible in evidence, but also because it provides material of value for cross-examination: Carter v Hayes, at 453, , per King CJ, citing R v Saleam (1989) 39 A Crim R 406. And where the material is such that access to it is not so obviously necessary for a fair trial and especially where there are countervailing considerations, a judgment must be made by the court. In making that judgment, King CJ referred the court to a statement of Samuels JA in Maddison v Goldrick [1976] 1 NSWLR 651, commenting on the `disposing of the last vestiges of trial by ambush, and to enabling each side to start the context with the greatest possible knowledge of what is going to be alleged against him [sic]': at Step two being where the judge determines the preliminary use of the documents, including whether or not the defence may inspect them; and step three is the admission into evidence of the documents in whole or in part: at 406, referring to King CJ's judgment in Carter v Hayes (1994) 61 SASR 451 at 454. See also Edwards (1991) 93 Cr App R 48, although the Royal Commission on Criminal Justice disapproved of that part of the judgment which required prosecutors to disclose previous trials in which the police witness was disbelieved. Such a requirement was impossible given that juries do not give reasons for their verdict.

8 - 8 - From these principles, it is clear that the subpoena process is a powerful means of obtaining disclosure in criminal trials, especially in respect of material relevant to credit. 13 Cases such as Saleam; Hunt v Wark; and R v Ward (discussed below), however, suggest that the credibility of the witness should be a real issue before material relevant to their credit is disclosed to the defence. In Saleam, for example, it was stated (at 412) that: The test is whether that material is properly capable of acceptance, and if so accepted would so affect such credit that, having regard to the part played in the trial by the evidence of that witness, it is likely that a jury would have arrived at a different verdict. In that case, however, Hunt J allowed the subpoena in respect of documents relating to the investigation and prosecution of the offences with which the appellant had been charged, together with the reports of any investigation into allegations of perjury committed by the principal Crown witness, notwithstanding that there was no ground of appeal at the time to which the material would have been relevant. Hunt J thought that it was at least `on the cards' that the material sought would assist the appellant generally in his appeal. In Hunt v Wark, defence counsel sought the production of `all books, plans, papers, documents, articles, goods, and things likely to be material evidence'; memos, standing orders etc in regard to the use of informants; and communications between police officers in relation to the alleged activities of one such informant. However, in the absence of a live allegation of impropriety, King CJ considered that the subpoena was irrelevant and oppressive in the present context of the case: at Most importantly, King CJ stated that `The subpoena process may not be used as a means of obtaining discovery of documents... or as a means of obtaining information in the hope that it may lead to the ascertainment of witnesses or evidentiary documents: at Thus, in SA Police v Begley (Unreported, Supreme Court, SA, Lander J, 20 December 1994, J.No. 4995), it was held that a list of the particulars of persons spoken to at certain relevant premises was not itself relevant and did not provide information relevant to cross-examination. It was a merely a source of potential witnesses for the defence. Freedom of Information Freedom of information legislation opens police documents to public scrutiny unless they fall within exempt classes (being those documents the disclosure of which would prejudice the investigation of a breach of law or the enforcement or proper administration of the law in a particular instance). In Victoria, the disclosure of the police brief to the defendant has been upheld by the Court of Criminal Appeal: Sobh, at 476, per Brooking J; at , per Nathan J; and at , per Ashley J CF Goldsmith v Newman. See also Commissioner of Police v Ombudsman [1988] 1 NZLR 385, referred to in Sobh.

9 - 9 - Common law requirements Australia There is no common law right of discovery in respect of criminal proceedings: see Sobh; Clarkson v DPP [1990] VR 745. However, there is much judicial recognition of a general obligation of disclosure to the defence: eg. Clarkson; R v Ward [1993] 1 WLR 619; 15 see also R v Stinchcombe [1991] 3 SCR 326. The Crown is obliged to call relevant witnesses: R v Apostilides (1984) 154 CLR 563; R v Lucas [1972] VR 693. The Crown is obliged to disclose what is known about an accomplice/informer, which may bear on the credibility and reliability of the witness, including grants of indemnity or immunity: R v Booth [1982] 2 NSWLR The Crown has a duty to disclose prior criminal convictions of crown witnesses when it considers that cross-examination based upon such convictions might elicit answers materially affecting the credibility of the witnesses: R v K (1991) 161 LSJS 135 at 140, per King CJ, citing R v Paraskava (1983) 76 Cr App R 162. In R v K, King CJ also thought that prosecutors might be expected to make reasonable enquiry of those instructing them, namely police officers, as to matters potentially affecting the credibility of witnesses for the prosecution. However, there is no obligation to disclose `every speculative and scurrilous rumour which may have come to the ears of investigating officers.' In that case, the information about the witness (who was also an accomplice) which was not communicated to the prosecutor was that the witness had been under suspicion in relation to his possible involvement in the production of a marijuana crop in NSW. There was insufficient evidence to charge him, though, and King CJ doubted that information so vague and tenuous would have given rise to an obligation to disclose even if it had been communicated to the prosecutor. England Where there is a request by an accused person to the prosecution that they be given particulars of descriptions first given to the police by an identification witness, the prosecution should supply such particulars: R v Turnbull [1977] 1 QB 224 at 228. Further, the prosecutor has a duty Cited with approval in R v Cheung Ying Lun (Unreported, Court of Criminal Appeal, NSW, 4 December 1992). Both the Commonwealth and SA prosecution policies require the terms of the agreement or understanding between prosecution and accomplice to be disclosed to the court: paras 5.7 and 4.7 respectively. The SA Prosecution Policy is reproduced in the Director's Annual Report , Appendix B, pp

10 to advise the accused where there is a material discrepancy between the description of the accused given by the witness and the actual appearance of the accused. Where a prosecution witness gives evidence materially inconsistent with a previous statement the prosecutor should inform the defendant and provide him with a copy of the previous inconsistent statement: R v Hall (1958) 43 CAR 29; R v Gouldham [1970] WAR 119; Baksh v R [1958] AC 167; Berry v R [1992] 3 All ER 881. The recent case of Ward has established an extensive duty of disclosure resting not only upon prosecutors but also upon the police and other investigating agencies as well as forensic laboratories and other experts engaged by them. In that case, the Court stated that the obligation would arise in relation to evidence `which is or may be material in relation to the issues which are expected to arise or which unexpectedly do arise, in the course of the trial. (at 642)' As such, prosecutors `owe a duty to the courts to ensure that all relevant evidence is either led by them or made available to the defence.' 17 `All relevant evidence' is not limited to evidence which will obviously advance the accused's case; it is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led: at This includes: 1. Information about witnesses from whom statements were taken but who were not called to give evidence; 2. Copies of those witnesses' statements; 3. Interviews with the accused; 4. Evidence from expert witnesses; and 5. Notice that a public interest immunity is being claimed in relation to documents helpful to the accused so that, if necessary, the court can be asked to rule on the legitimacy of the prosecution's asserted claim. In respect of a claim of immunity, the Court stated that if the prosecution was not prepared to have the issue of public interest determined by the court, `the result must inevitably be that the prosecution will have to be abandoned.' Further, the Court also made it clear that nothing in prosecution guidelines could derogate from the legal rules which they stated: at 681. The specific issue at trial centred on the reliability of the accused's admissions to the police. Evidence of the interviews with the accused showing that she had lied, and medical reports detailing a suicide attempt and diagnosing the accused as suffering from an acute psychotic depression, were not disclosed to the defence. Neither was doubtful (in light of the accused's propensity to make a false confession) forensic evidence linking the accused to the scene of the crime disclosed to the defence Quoting from Lawton LJ in R v Hennessey (1978) 68 Cr App R 419 at 426. Material matters should be disclosed even if they would be inadmissible: R v Preston [1993] 4 All ER 638.

11 The judgment in Ward has been somewhat ameliorated by the later case of Johnson, Davies and Rowe (The Times, 19 January 1993). 19 In this case, the Court of Appeal held that the Ward went too far in saying that the general rule requiring notice to the defence of a claim to public interest immunity admitted no qualification or exception. It held that the proper approach should be as follows: (i) (ii) (iii) (iv) In general, it is the duty of the prosecution to comply, voluntarily and without more, with the requirements in para 2 of the Attorney-General's guidelines (which provides for the disclosure of all unused material not subject to exemption). If the prosecution wish to rely on public interest immunity or sensitivity to justify nondisclosure, then, whenever possible, which will be in most cases: (a) the prosecution must give notice to the defence that they are applying for a ruling by the court; (b) the prosecution must indicate to the defence at least the category of the material that they hold; and (c) the defence must have the opportunity to make representations to the Court. Where, however, to disclose even the category of the material in question would in effect be to reveal that which the Crown contends should not in the public interest be revealed, a different procedure will apply. The Crown should still notify the defence that an application to the Court is to be made, but the category of the material need not be specified and the application will be ex parte. If the Court, on hearing the application considers that the normal procedure under (ii) above ought to have been followed, it will so order. If not, it will rule on the ex parte application. It may be that, in a highly exceptional case, to reveal even the fact that an ex parte application is to be made, could reveal the existence of sensitive information to an extent which stultified the application. In that event, the prosecution should apply to the Court, ex parte, without notice to the defence. 20 Again, if the Court, on hearing the application, considered that at least notice of the application should have been given o the defence or even that the normal inter partes procedure should have been adopted, it will so order. A ruling in favour of non-disclosure is not necessarily final. In the course of hearing, issue might emerge so that the public interest of non-disclosure is eclipsed by the interests of securing fairness to the accused. The court would monitor this issue and notify the prosecution if it changed its view. The prosecution would then have to decide whether to disclose or offer not further evidence. It would seem that this approach strikes a more satisfactory balance between the public interest in protecting some information and the interest of fairness to the accused Discussed in the Royal Commission on Criminal Justice, Chairman: Viscount Runciman (London, July 1993), pp See also R v Davis [1993] 2 All ER 643; R v Keane [1994] 2 All ER 478.

12 Canada The Canadian Supreme Court has recognised the right of disclosure as one of the elements of the more general right of the accused to make full answer and defence protected by the Canadian Charter of Rights and Freedoms: Stinchcombe. In that case, a witness who gave evidence favourable to the accused at a preliminary inquiry was subsequently interviewed by the prosecution. The Crown, however, decided not to call the witness and would not provide the statement of the interview to the defence. The Court held that the prosecution is required, on request, to disclose to the accused, or counsel for the accused, all relevant information on which the Crown intends to rely at trial. In addition, there is an obligation to disclose any information which may assist the accused, whether intended to be adduced or not. If the accused is not represented, they should be informed of their right of disclosure. Further, the prosecution shall disclose in all cases, irrespective of whether a request has been received or not, any evidence tending to show that the accused may not have committed the offence charged. With respect to timing, initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. However, the obligation of disclosure is a continuing one and must be completed when additional information is received: at Existing Prosecution Policies The prosecution policies of NSW (and Barristers' Rule 66 and Solicitors' Rules A66, A66A, and A66B), NT, WA, and Canada all recognize a general duty of disclosure in respect of the casein-chief of the prosecution, and all other information relevant to the guilt or innocence of the accused. WA and Canadian prosecution guidelines also recognize that the Crown's duty of disclosure is a continuing obligation. 21 The UK Attorney-General has also formulated guidelines in respect of the disclosure of `unused material', that is, material which is not part of the prosecution case. Western Australia The WA prosecution policy goes further than other Australian prosecution policies in detailing the extent of the prosecution obligation of disclosure. It provides that when information which may be exculpatory comes to the attention of a prosecutor and the prosecutor does not intend adducing that evidence, the prosecutor will disclose to the defence `in good time': (a) the nature of the information; (b) the identity of the person who possesses it; and (c) when known, the whereabouts of the person: paras WA Guidelines for Disclosure of Material Additional to the Crown Case, para 11. See also NSW Bar Association, Rule 20A, as highlighted in the Director's Guidelines. At common law, this principle has been recognised in R v Apostilides (1984) 154 CLR 563; Richardson v R (1974) 131 CLR 116; R v Stinchcombe [1991] 3 SCR 326;

13 However, if the prosecutor forms the opinion that the potential witness is not credible, they are not obliged to call that witness: para 61. In either case, the Crown, if requested by the defence, should subpoena the person: para 62. Where the prosecution forms the opinion that exculpatory information is not credible or contentious, the prosecutor is not obliged to disclose the contents of the statement to the defence, but should inform the defence of the existence of the information and its general nature. Where the prosecutor is of the opinion that the statement is credible and not contentious, a copy of the statement should be made available to the defence in good time: paras Where a witness gives evidence on a material issue and the prosecutor has an earlier statement which may be inconsistent with the present testimony, the prosecutor should inform the defence of that fact and make available the statement: para 65. There are additional guidelines in WA relating to the disclosure of material not directly relevant to the Crown case which provide for certified police disclosure of all documentation, material and any other information held by them concerning any proposed prosecution witnesses, which might be of assistance or interest to either the prosecution or defence: paras The prosecution are also obliged, upon request by the defence, and subject to any claim of public interest immunity, to disclose all such documentation, material or information by either making copies available or allowing inspection: paras 4-6. The prosecution has a discretion to withhold disclosure where: (a) the material is clearly irrelevant; 24 (b) withholding is necessary to preserve the identity of an informant; (c) withholding is necessary to protect the safety or security, including protection from harassment, of persons who have supplied information to the police; (d) the material is protected by legal professional privilege; (e) the material, if it became known, might facilitate the commission of other offences or alert a person to police investigations; (f) the material discloses some unusual form of surveillance or method of detecting crime; (g) the material is supplied to the police only on condition that the contents will not be disclosed; (h) the material contains details of private delicacy to the maker; (i) the material relates to the internal workings of the police force; (j) the material relates to national or State security Issued 1 November 1993, reproduced in Annual Report , pp This is also the position in Canada. See `Pre-Trial Disclosure Policy'; and the report of the Attorney-General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, Chair: Hon. Arthur Martin (Ontario, 199?), hereinafter Martin Report, Recommendation 41(3).

14 Where a prosecutor declines to disclose material or delays disclosure, the prosecutor should advise the defence that material has been withheld and claim an immunity against disclosure in respect of that material. This is reviewable by the Court: paras 8-9. If required, a prosecutor may seek an undertaking that the material will not be disclosed to parties other than the accused's legal advisers and the accused: para 10. New South Wales Rule 57 of the NSW Bar Association provides that where a barrister appearing for the prosecution believes that a document or record included in their brief or instructions may have been unlawfully obtained, they shall, in the interests of justice: (a) inform the opponent of their intention to use such document or record; and/or (b) make a copy of such document or record available to the opponent. 25 Canada In Canada, the federal pre-trial disclosure policy reflects the requirements formulated in Stinchcombe and the Martin Report. In most cases, the defence will be given at least the following: 26 (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) particulars of the circumstances surrounding the offence; copies of the text of all written statements concerning the offence which have been made by a person with relevant evidence to give;... an appropriate opportunity to examine any electronically recorded statement of a witness to a person in authority; a copy of all written and recorded statements concerning the offence which have been made by the accused to a person in authority;... particulars of the accused's criminal record; copies of all expert witness reports relating to the offence, except to the extent that they may contain privileged information; copies of all documents and photographs that Crown counsel intends to introduce into evidence during the case-in-chief for the prosecution, and an appropriate opportunity to inspect any case exhibits, whether Crown counsel intends to introduce them or not; a copy of any search warrant relied on by the Crown and, if intercepted private communications will be tendered, a copy of the judicial authorization or written consent under which the private communications were intercepted; a copy of the information or indictment; particulars of similar fact evidence that Crown counsel intends to rely on at trial; particulars of any procedures used outside court to identify the accused; As highlighted in the Director's Guidelines, para 13. As set out in Gates and Normand, `Pre-Trial Disclosure', pp See also A-G, British Columbia, Crown Counsel Policy Manual: Disclosure to Defence (issued 1 August 1993), which provides similar disclosure obligations.

15 (l) particulars of any other evidence on which Crown counsel intends to rely at trial, and any information known to Crown counsel which the defence may use to impeach the credibility of a Crown witness in respect of the facts in issue in the case. The Canadian guidelines also recognize that the obligation to disclose is not absolute. Crown counsel has the discretion, subject to review by the trial judge, to withhold or delay the disclosure of specific information in certain circumstances. Clearly irrelevant or privileged information my be withheld. Disclosure of information may be delayed to complete an investigation. It may also be delayed or withheld to protect the identity of persons from harassment or injury. 27 England The Crown Prosecutor's Code does not provide for prosecution disclosure. However, the Attorney-General has formulated guidelines in respect of `unused material': (1982) 74 Cr App R 302. The guidelines state that all unused material should normally be made available to the defence solicitor if it has some bearing on the offence(s) charged and the surrounding circumstances of the case: para 2. However, there is a discretion not to make disclosure (although the name and address of the witness should normally be supplied) - at least until further consideration or advice - in the following circumstances (para 6): (i) (ii) (iii) (iv) (v) 27. There are grounds for fearing that disclosing a statement might lead to an attempt being made to persuade a witness to make a statement retracting their original one, to change their story, not to appear at Court or otherwise to intimidate them. The statement... is believed to be wholly or partially untrue and might be of use in crossexamination if the witness should be called by the defence. The statement is favourable to the prosecution and believed to be substantially true but there are grounds for fearing that the witness, due to feelings of loyalty or fear might given the defence solicitor a quite different and false story favourable to the defendant. If called as a defence witness upon the basis of this second account, the statement to the police can be of use in cross-examination. The statement is quite neutral or negative and there is no reason to doubt its truthfulness. There are however, grounds to believe that the witness might change their story and give evidence [favourable to] the defence. The statement is... `sensitive' and... it is not in the public interest to disclose it. For example, it deals with matters of national security; it discloses the identity of an informant or witness which may place them in danger; it contains details which might facilitate the commission of other offences, alert someone not custody that they are a suspect or disclose some unusual form of surveillance or method of detecting crime; it is supplied only on condition that the contents will not be disclosed, at least until a subpoena is served; it relates to other offences by or serious allegations against someone As above, p 95.

16 who is not an accused, or discloses previous convictions or other matters prejudicial to them; or it contains details of private delicacy and/or might create a risk of domestic strife. The exercise of this discretion to withhold information should always be exercise with due regard to the extent to which the information might assist the defence: paras 8-9, REPORTS AND RECOMMENDATIONS Australia Kathy Mack and Sharyn Roach-Anleu recommend, in their recent report, Pleading Guilty: Issues and Practices, that Prosecution disclosure must include all information that is relevant to guilt or innocence, whether favourable or unfavourable to the accused. This includes information regarding witnesses and their credibility, information about the accused and the accused's criminal history, as well as information bearing directly on the facts of the case. Information which the prosecutor may regard as not persuasive should still be made available to the defence. 29 Full disclosure should be verified at the status conference. In regard to information affecting the credibility or reliability of witnesses, Eugene McGee recommends that the psychiatric history of the witness should be disclosed; physical injuries which may bear on the witness' reliability (for example, head injuries); previous statements which are not inconsistent as such but show a progressive exaggeration of the initial allegations; and previous allegations which have proved to be unfounded (ie. false complaints). 30 England The Royal Commission on Criminal Justice has recently considered the issue of prosecution disclosure in light of the strong judicial pronouncements which have extended the duty of disclosure in respect of `unused material'. The Royal Commission was most concerned with the implication in Ward that prosecutors could never claim a public interest immunity without giving notice to defence. The Royal Commission saw the effect of this ruling as increasing the risk that the prosecution might withdraw from prosecuting a case altogether for fear that if they The implementation of the AG's guidelines is provided for in National Operational Practice Bulletins for police officers, which set out standard form schedules for the listing of unused material and whether or not they should be disclosed to the defence. Mack and Roach-Anleu, Pleading Guilty, p 91. McGee, `Pre-Trial Discovery in Criminal Proceedings', Law Society Bulletin, February 1993, pp 11-13, at 13.

17 revealed that information existed that they were not prepared to disclose on public interest immunity or sensitivity grounds, that the defendant would be alerted sufficiently to put informants, undercover officers - and witnesses - at serious risk of injury or loss of life. 31 The subsequent case of Johnson, discussed earlier, was thought to provide a more satisfactory procedure. The Royal Commission recommended a two stage process of disclosure. 32 At the first stage, the prosecution's duty would be to supply to the defence copies of all material relevant to the offence or to the offender or to the surrounding circumstances of the case, whether or not the prosecution intends to rely upon that material. This includes information which raises questions about the defendant's mental state (as in Ward). The prosecution should also inform the defence of the existence of any other material (excluding internal memoranda) obtained during the course of the inquiry into the offence. The second stage of prosecution disclosure, however, would only be activated by defence disclosure of the substance of their case. The rationale for this is so that any subsequent request for further disclosure can be related to the line of defence disclosed, preventing defence from using disclosure as a delaying tactic. This is similar to the requirement of the subpoena process, discussed earlier, that the defence should be able to indicate the relevance of the material sought to its case. Canada The Martin Report makes the interesting recommendation that where the prosecution know that they will never be able to prove a material element of the case, they have a duty to disclose this to the defence. The prosecution may accept a plea of guilty in such circumstances provided the defence have been notified of this state of affairs. New Zealand The report of the Criminal Law Reform Committee on discovery in criminal cases found a very limited and piecemeal common law duty of disclosure in New Zealand. The Committee found also that there was much variation in practice. 33 Similar to the UK Royal Commission, it recommended a two stage process of disclosure. The first would take place before plea, and involve the disclosure of the essence of the prosecution case, namely, charge, penalty, and summary of facts alleged. On request, the defence would also be entitled to the names of known prosecution witnesses; an index of prosecution exhibits; a list of the defendant's previous convictions; all records of interview with the defendant; and any statement or record of interview with a co-defendant (with their consent only). The second stage of disclosure would take place before trial and include the disclosure of the prosecution brief of evidence and/or witnesses' statements; any expert evidence; prosecution exhibits whether or not to be produced Royal Commission on Criminal Justice, pp At p Report on Discovery in Criminal Cases, pp 5-15.

18 at trial; prior convictions of prosecution witnesses; names and addresses of all persons interviewed by the prosecution and not called as witnesses; and any statements from a codefendant (with their consent). 34 The usual exceptions - exposure of informants and witnesses to danger; interference with police investigations; national security - would apply at both stages. 35 The report also included the views of the Chief Inspector, who made the pertinent observation that as job sheet (essentially, notes) records of interviews were not signed by the witness, the record occasionally an error or unintended emphasis. EFFECTS OF NON-DISCLOSURE If the withholding of material constitutes a miscarriage of justice when viewed against the conduct of the whole trial - or, as stated in Ward, a material irregularity (at ) - the conviction may be set aside: Clarkson; Saleam. RECOMMENDED GUIDELINES FOR PROSECUTION DISCLOSURE 1. The purpose of prosecution disclosure is threefold: (a) (b) (c) to ensure that the defence is aware of the case-in-chief for the prosecution and all other evidence relevant to the guilt or innocence of the accused; to resolve non-contentious and time-consuming issues in advance of the preliminary hearing or trial in an effort to ensure more efficient use of court time; to encourage the resolution of cases including where appropriate the entering of guilty pleas at a date early in the proceedings. 2. The prosecution has a general duty to disclose its case-in-chief, as well as any other relevant material, favourable or unfavourable to the defence, which the Crown does not intend to adduce but which may be of assistance to the defence. 3. Where an accused is represented, their right to disclosure is activated by a written request from defence counsel. Where an accused is unrepresented, the prosecution must inform them of their right to disclosure and how to obtain it. 4. In most cases, the prosecution should provide at least the following to defence: As above, pp As above, pp

19 (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) particulars of the circumstances surrounding the offence; copies of all written statements concerning the offence which have been made by a person with relevant evidence to give; an appropriate opportunity to examine any electronically recorded statement of a witness to a person in authority; a copy of all written and recorded statements concerning the offence which have been made by the accused to a person in authority; particulars of the accused's criminal record; copies of all expert witness reports relating to the offence, except to the extent that they may contain privileged information; copies of all documents and photographs that the prosecution intends to introduce into evidence during its case-in-chief, and an appropriate opportunity to inspect any case exhibits, whether the prosecution intends to introduce them or not; a copy of any search warrant relied on by the prosecution and, if intercepted private communications will be tendered, a copy of the judicial authorization or written consent under which the private communications were intercepted; a copy of the information or indictment; particulars of similar fact evidence that the prosecution intends to rely on at trial; particulars of any procedures used outside court to identify the accused; any previous inconsistent statements of prosecution witnesses; particulars of any other evidence on which the prosecution intends to rely at trial, and any information known to the prosecution relating to the credibility of a prosecution witness in respect of the facts in issue in the case. 5. The prosecution has a discretion to withhold or delay disclosure where: (a) (b) (c) the material is clearly irrelevant; withholding is necessary to preserve the identity of an informant; withholding is necessary to protect the safety or security, including protection from harassment, of persons who have supplied information to the police;

20 (d) (e) (f) (g) (h) (i) (j) the material is protected by legal professional privilege; the material, if it became known, might facilitate the commission of other offences or alert a person to police investigations; the material discloses some unusual form of surveillance or method of detecting crime; the material is supplied to the police only on condition that the contents will not be disclosed; the material contains details of private delicacy to the maker; the material relates to the internal workings of the police force; the material relates to national or State security. 6. Where a prosecutor receives from the police or any other person, directly or indirectly, sensitive information or material, that lawyer should not disclose that information or material to the defence without first consulting with the police officer in charge of the case. The purpose of consultation is to give that officer the opportunity to raise any concerns as to such disclosure, and to seek advice if there is any dispute. 7. Where a prosecutor declines to disclose material or delays disclosure, the prosecutor should advise the defence that material has been withheld and claim an immunity against disclosure in respect of that material. This is reviewable by the Court. 8. Where, however, to disclose even the category of the material in question would in effect be to reveal that which the prosecution contends should not in the public interest be revealed, the prosecution should still notify the defence that an application to the Court is to be made, but the category of the material need not be specified and the application should be ex parte. 9. Where, in a highly exceptional case, to reveal even the fact that an ex parte application is to be made, could reveal the existence of sensitive information to an extent which stultifies the application, the prosecution should apply to the Court, ex parte, without notice to the defence. If the Court, on hearing the application, considers that notice of the application should have been given to the defence, it will so order. 10. The prosecution's duty to disclose is a continuing one.