The Duty of Disclosure on the Prosecution

Transcription

1 CRIMINAL TRIAL REFORM CONFERENCE Paper 4 The Duty of Disclosure on the Prosecution Ms Wendy Abraham QC* A prosecutor must play his or her part in securing a fair trial for persons accused of criminal offences. A fair trial is one that results in justice being done, ie conviction of the guilty as well as acquittal of the innocent. A fair trial may be described as one where all relevant credible evidence is presented, tested and adjudicated upon according to law. The obligations of the prosecution to the various parties flow from those concepts. i It is well established and accepted that the disclosure of material which is in the possession of the prosecution which might be relevant to the defence case, is an important and fundamental ingredient of a fair trial. The failure of the prosecution to provide disclosure of such material may see a conviction overturned on appeal where a miscarriage of justice arises: In conformity with this conception of a fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present, or which he would have desired to present had he not been prevented by such causes from being aware of its existence or its significance, then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice. ii There have been a number of committees convened, reports written and conferences held to address the problems of the criminal justice system. iii Invariably each has been focussed, at least to

2 - 2 - some degree, on the pre-trial phase of the system. The prosecution obligation to disclose has correctly been recognised as fundamental to that process. In Australia there are limited statutory requirements imposed on the prosecution to provide pre-trial disclosure to the defence. iv Largely the prosecution s disclosure obligations are governed by the common law and the various prosecution policies that have been published by each of the Directors of Public Prosecutions. v The existence of the obligation is now beyond question. The Directors of Public Prosecution are committed to a policy of full disclosure. Such commitment is evidenced in the document entitled A Best Practice Model for the Determination of Indictable Charges - a joint proposal by the Directors of Public Prosecution and National Legal Aid to achieve reform in the criminal process. vi It was acknowledged in that document - The first and essential step [to reform] is to strive to obtain credible prosecution disclosure. Unless defence counsel is confident that there has been prosecution disclosure, it is unlikely that there will be any specific defence disclosure. vii Further, this commitment is reflected by the terms of the various prosecution policies and guidelines, and the fact that in relatively recent times each of the Directors has promulgated policies, many for the first time or in far greater detail than had previously been available. viii benefit in this approach. There is considerable 1. It is a public acknowledgment by the Directors of their acceptance of the disclosure responsibility and their commitment to ensuring its compliance. 2. The process has now been made much more transparent. 3. The detail in which the policies are published should ensure consistency of approach. A number of the policies ix outline the types of material which would ordinarily be provided to

3 - 3 - the defence and provide guidance to those bearing the responsibility as to how to discharge their duties, eg enumerating various factors which are relevant to making the decision to disclose. The arguments traditionally raised against disclosure, x which have now lost favour, remain of concern. These arguments have included the concern that with full disclosure an accused can tailor his or her defence to the evidence provided. xi A further concern, is that this can give rise to challenges on issues and topics which are not genuinely in dispute. In that event disclosure of material does not shorten but rather has the potential to lengthen the trial process and detract from the real issues to be determined. It has been argued that there are resource implications xii for all parties concerned, particularly where the material being requested appears to have no relevance to the proceedings (this is particularly so given the nature of current policing methods). xiii These remain issues of concern in that they provide, in some respects, possible explanations for delays and inefficiencies within the system. That, however, relates more to imbalance in the criminal justice system than to arguments against full disclosure. Although each of the prosecution policies are in differing terms, each recognises the duty of the prosecution to disclose all information in its possession that is relevant to the guilt or innocence of an accused person. xiv This duty is subject only to considerations of public policy, and the safety of the State and its citizens. Whilst the obligation to disclose is well established, its implementation can be contentious and problematic. Any attempt to precisely define the obligation is fraught with inherent difficulties. Regardless of these difficulties the ultimate test must be fairness, namely Does the accused have all the necessary material to ensure the fairness of his or her trial? This must be the starting point. However, the prosecutor s duty of disclosure is to be viewed in the context of other competing duties. In the recent English decision of R v Brown xv Lord Hope commented - the principle of fairness lies at the heart of all the rules of common law about the disclosure of material by the prosecutor. But that principle has to be seen in the context of the public interest in the detection and punishment of

4 - 4 - crime The prosecutor s duty is to prosecute the case fairly and openly in the public interest. defence. xvi It is not part of his duty to conduct the case for the

5 - 5 - Recommendations of the Working Group The Working Group on Criminal Trial Procedure xvii has recommended that the obligation on the prosecution of disclosure be embodied in legislation. The recommendations are :- 1. The prosecution obligation of disclosure should be given a statutory basis. 2. The statutory obligation should be specifically identified as applicable to both prosecutors and investigators. 3. Internal disciplinary sanction should exist in respect of investigators who fail to comply with their statutory obligations. 4. Disclosure should be required prior to committal proceedings unless the requirement for disclosure is waived at the first or subsequent mention of the matter. 5. Recognition should be given to the ongoing nature of the obligation. 6. The obligation could be expressed in terms similar to those contained in the policy promulgated by the Commonwealth Director of Public Prosecutions. When considering the merit of the recommendations, a number of questions need to be addressed. These include :- 1. What is the purpose that is sought to be achieved by enacting the prosecution obligation into legislation? 2. Would that purpose be achieved? However, involved with that, is a consideration of what other consequences would flow from legislation, and whether acceptance and implementation of the recommendations would improve the

6 - 6 - administration of criminal justice. In that context a question which could be asked is whether a statutory obligation will achieve credible prosecution disclosure xviii over and above that which can be achieved as a result of prosecution policies and guidelines. These questions must be addressed in the current environment of the criminal justice system. On the one hand there is the commitment by the Directors to a policy of full disclosure. The necessity for disclosure and the merits of that occurring at the earliest possible time, are unchallengeable. xix On the other hand, police investigations by their very nature, are ongoing and police resources are often limited by the demands placed upon them. Disclosure is made not knowing what the issues at trial will be. At the same time an accused s aim may be to try to delay, hinder and frustrate the criminal process hoping to avoid facing proceedings. Indeed, the notion of identification of relevant issues and agreement of non contentious evidence, may be contrary to the beliefs of some defence counsel. All these issues are occurring in a climate of limited financial resources. This paper is designed to highlight the issues raised by these questions and to promote discussion. The purpose sought to be achieved by the recommendations The Working Group comments that there are significant differences between the various disclosure guidelines by each of the Directors, but recognises the fundamental principles are consistent throughout. Whilst the obligation of disclosure is well established, the Working Group recognises, in my view correctly, that the legal profession remains sceptical, and at times distrusting, of investigative agencies xx on the issue of disclosure. It is considered that if the obligation were to be given statutory imprimatur with sanctions imposed on investigators for non-compliance, then the mistrust by the profession would ultimately be alleviated. Further, it is said that this would lead to a greater understanding and appreciation by the investigative agencies of their roles in this regard. Those views xxi and that reasoning process as a

7 - 7 - basis for disclosure legislation are not new. xxii Indeed, any barrister who has appeared for the prosecution will no doubt have heard those views expressed by defence counsel. Whether enacting the obligation in statute will have this effect upon the investigative agencies, or on the legal profession, is a moot point. One must not be too quick to simply resort to legislation as a remedy without fully considering the implications. Legislation may be used and abused to generate litigation with the consequence of criminal proceedings being delayed. That is particularly so where the details of the topic on which legislation is being considered are inherently difficult to define. Moreover, as was recognised by Glynn, xxiii it is impossible to prevent breaches of the disclosure obligation by people who are determined to do so. I agree. If the legal profession s mistrust and scepticism of the police practices is on the basis that the police deliberately withhold material, then it is hard to imagine how this mistrust will be eased by the enacting of legislation. If internal disciplinary sanctions for breach of the obligation is seen as the key in this, it must be borne in mind that under the current system, if a police officer acts inappropriately in relation to the provision of material to the Director or to the courts, one presumes the officer would be able to be dealt with by internal disciplinary proceedings. xxiv sanctions must be viewed in that context. Any impact of a threat of internal disciplinary If the real issue is education of investigative agencies there are other, and arguably more effective, ways to achieve that aim. In the United Kingdom the disclosure obligation is now embodied in statute with the enactment of the Criminal Procedure and Investigation Act xxv Coinciding with the implementation of this Act was a significant education and training program for all involved, including the investigative agencies. The structure of the legislation is as follows :-

8 The police officer investigating an offence is placed under a statutory duty to record and retain information and material gathered or generated in the course of the investigation. 2. The prosecution must make primary disclosure to the defence of certain categories of such material which they do not intend to use at trial. 3. Compliance by the prosecution with the duty of primary disclosure triggers off an obligation to the defence to make disclosure of the case which it does intend to present at trial. 4. Once the defence has made disclosure the prosecution must present other categories of material to the defence - secondary disclosure. xxvi This legislation was enacted at a time where there were concerns about miscarriages of justice having occurred. xxvii Despite that, the obligation of disclosure is placed on the prosecution with no parallel obligation being imposed on the police. xxviii The terms of the legislation appear to place more responsibility for making the decision of disclosure in the hands of the investigators than had previously been the case. It has been acknowledged that disclosure under the Act is intended to be less extensive than at common law. xxix To cover the obligations of the police to disclose to the CPS a code of practice pursuant to sections 23 and 25 of the Act, was issued by the Secretary of State which relates to the recording and retaining of material obtained during the course of a criminal investigation and the responsibility of the police to provide that material to the prosecution. xxx Interestingly, the application of these disclosure obligations only comes into effect after a matter is committed for trial. xxxi In Australia, the prosecution policies of the Commonwealth, xxxii New South Wales, xxxiii Tasmania, xxxiv the Northern Territory xxxv and Western Australia make explicit reference to the obligation on the police. Some of those States require certification by the police that they have provided all relevant material to the Director of Public Prosecutions. In South Australia, the guideline simply refers to the Director being committed to ensuring that the police deliver to the department a full brief including sufficient information to enable the disclosure guidelines to be properly implemented.

9 - 9 - Despite misgivings about the Working Group s basis for recommending that disclosure be embodied in legislation, and their perceived impact of this, in my view it is nevertheless necessary, whether the disclosure obligation is embodied in policy or statute, that it expressly include the obligation on investigators to provide all relevant material to the prosecution. This is a fundamental recognition of the criminal justice system where the police investigate the crime and gather the evidence and the Director of Public Prosecutions prosecutes. The difficult problem, however, arises when there is an attempt to precisely formulate the obligation. The various terms which currently appear in prosecution policies including relevant xxxvi or potentially disclosable material xxxvii or reasonably to be regarded as relevant, xxxviii all involve a subjective assessment. No criticism can be made of that, as it is unavoidable given the nature of the obligation. It does involve a subjective assessment and what might be relevant and required to be disclosed in one case might not in another. In the United Kingdom the Criminal Procedure and Investigation Act 1996, for the process of primary disclosure, uses the terminology if in the prosecution opinion the material might undermine the case for the prosecution xxxix which is also subjective. Although the secondary disclosure, which is considered to be more objective, is based on what might reasonably be expected to assist the accused as disclosed by the defence statement, xl this is confined by the extent of the details provided by the defence and is based on the schedule of material provided by the police. xli Further, any attempt to define what matters reflect on the credibility and reliability of a witness and what type of material is included within the concept unused material is problematic. Likewise, the issue of material in the hands of third parties presents particular problems. Although guidance can be given on these topics it will never cover every situation. One only needs to consider recent cases xlii to illustrate the dilemmas and types of situations that can arise. Whether the material and/or information needs to be disclosed, ultimately depends on the circumstances of the case.

10 In Australia there are only limited examples where the prosecution obligation to disclose is already embodied in the statute. One area relates to the committal proceedings which is an area of the system traditionally associated with the disclosure process. Although the principal purpose of such proceedings is to ensure there is sufficient evidence to support a charge and put the accused on trial, xliii it had been argued that such proceedings have the additional purpose of acquainting the accused with the case which is to be made against him at trial and affording him the opportunity to question witnesses with a view to eliciting evidence which may assist the defence at trial. xliv The nature of the committal proceedings in some States, including South Australia, has been altered by statute. xlv This is an area where legislation now imposes a statutory obligation on the prosecution to disclose. In South Australia the statutory obligation appears in s104(1) of the Summary Procedure Act Where a charge of an indictable offence is to proceed to a preliminary examination the prosecution must at least fourteen (14) days before the date appointed for the defendant s appearance to answer the charge - (a) file in Court in accordance with the rules - (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 (other than documents that in the opinion of the prosecutor, are only of peripheral relevance to the subject matter of the charge); (iii) a document describing any other evidentiary material (including documents of peripheral relevance that have not been filed in the Court) on which the prosecutor relies as an end 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. xlvi

11 The current system is based on a hand-up process, although there does remain a limited ability to cross-examine witnesses on the application of either the defence or the prosecution, if it can be established that there are special reasons for doing so. xlvii In this State it has been suggested that the procedure was altered as a direct result of the previous system having been abused by accused persons, or the legal profession, or both. xlviii Whilst it is recognised xlix that the ability to cross-examine a witness at committal proceedings ought to be retained, it must be acknowledged that the committal process in some jurisdictions now takes place in a criminal justice system which in recent years has changed significantly. For example, in South Australia - The establishment of the Committal Unit by the Director of Public Prosecutions has enabled the Director to be involved in indictable matters from, at the very latest, shortly after charging. This ensures the appropriate assessment of evidence and the laying of charges which otherwise previously might not have occurred until after committal. The standard to which a magistrate in South Australia must be satisfied to commit a matter for trial is if the evidence if accepted would prove every element of the offence. l This is lower than a test of no reasonable prospect of conviction which is the standard applied by the Director of Public Prosecutions in deciding whether a prosecution should commence or proceed. li The obligation of disclosure at common law, and as outlined in the Prosecution Policy, is greater than that required by statute. Therefore, the Director complies with the broader common law obligation in addition to the narrower statutory obligation. A policy of disclosure combined with the earlier role of the DPP, enables disclosure to occur at the earlier possible time in the process.

12 Although the committal proceedings in some States have become very much a hand-up or paper committal, the disclosure role is still fulfilled. Whether acceptance of the recommendations will achieve the desired outcome The reason for disclosure is that an accused person is entitled to know what the case against him is, and all other evidence relevant to his guilt or innocence. That is based on an accused s right to a fair trial. However, two additional benefits to the criminal justice system are said to flow from that. The first is that it encourages those accused who are going to plead guilty to do so at the earliest possible opportunity. The strength of the prosecution case is a primary motivating factor to an accused pleading guilty. lii If an accused has been provided with all relevant materials this enables them to receive advice as to their legal position. If the strength of the prosecution case can be demonstrated at an early stage, together with the acknowledged reduction in any sentence imposed for an early plea, this is said to encourage pleas to be entered. Secondly, it enables the genuine issues in dispute to be identified with non contentious matters being resolved prior to trial. These benefits, if they can be achieved, have the potential to significantly impact on the criminal justice system. This impact ranges from reducing the number of trials through to trials being conducted where the issues, and only the issues genuinely in dispute, are before the jury. However, when considering whether these recommendations, if accepted, will achieve their desired outcome, it is artificial to look at the issues of prosecution disclosure in isolation. If full disclosure is provided at the earliest opportunity, the achievement of these two benefits to the system are dependent on the accused and defence counsel. This involves a commitment by defence counsel to provide advice at the earliest stage of proceedings and an acceptance and willingness by them to identifying issues and reaching agreement as to non contentious matters. It is only if there is such co-operation by accused and the legal profession that these aims can be achieved. liii

13 Whether the recommendations 1-6 would achieve the desired purpose, is dependant upon what that ultimate purpose is. If the aim is to achieve full disclosure and a trust in the system by the profession, then achieving that by these means is debatable. There is no evidence to support that proposition. However, if the recommendations are part of a wider scheme which is designed to reform the system in a manner to reduce delay and ensure trials are conducted effectively and fairly, that is a different matter. To achieve the latter purpose there must be some corresponding duty of disclosure imposed on the defence. To ensure full disclosure by the prosecution there must be some identification by defence of the issues that are relevant to a particular trial. Whilst there have been attempts through various pre-trial conference systems to encourage both identification of the issues and resolution of non contentious matters, success of these systems has depended on the co-operation of the legal profession. As was observed by Doyle CJ in Ling v Police liv - It may be that the time has come for some limits to be placed upon the right to silence and for some obligation to be imposed upon the defence to join in the identification of and limiting of issues in criminal proceedings to the extent inconsistent with the maintenance of the right of silence. It is well known that the criminal courts in Australia and in other countries are struggling to cope with the volume of work coming before them. It is equally well known that the length of trials is tending to increase. These matters are a cause for real concern. It is equally well known that the effectiveness of current methods of case flow management is limited because, among other things, under Rules such as those that exist in South Australia the court has no power to require the defence to disclose the nature and extent of the defence case. lv It may have reached the stage where to achieve this co-operation some form of legislation is required. No doubt this would meet some resistance. lvi

14 If the prosecution obligation of disclosure is embodied in statute without some meaningful defence disclosure also being required, this would not improve the criminal justice system or overcome the fundamental areas of concern in the system, namely delay, late pleas, length of trials etc. Rather, this would provide a further avenue on which to challenge the prosecution process often with the purpose, and invariably with the consequence, of delaying the proceedings. Further, if prosecution disclosure is embodied in statute without any meaningful defence disclosure, this would only entrench what is perceived by some in the community to be an imbalance in the system. lvii Conclusion As the High Court recognised in Apostolides, a prosecutor s responsibility is not only a lonely responsibility, but a heavy one. lviii It would be naïve to underestimate the impact of those duties and the seriousness and conscientiousness with which that task is approached. The prosecution fulfilling their obligation to disclose is fundamental to an efficient and just criminal justice system. However, to achieve any reform in the system there must be goodwill, co-operation and professionalism by all relevant parties. If legislation is enacted it must be realistically balanced and must not be used to further exacerbate the problems that currently exist. There will always be what is regarded as the rough and tumble lix of a criminal trial. Against that whatever system is ultimately adopted it is important to bear firmly in mind that the criminal justice system is about achieving justice. The interests of justice are not just the interests of the accused but also the victims of crime, the community, the witnesses, the courts and the jurors. lx Although it might sound trite, no system ought to be implemented or interpreted in such a way as to defeat that purpose. To do so might save time but would undermine the criminal justice system.

15 * Associate Director of Public Prosecutions, South Australia i Director of Public Prosecutions (SA) Statement of Prosecution Policy and Guidelines issued July 1999 at p.4 ii R v Ratten (1994) VR 201 at 214; cited with approval in R v Reci (1997) 70 SASR 78 per Doyle CJ at 97 iii For example Aronson Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure AIJA Incorporated - published 1992; Sallman Report on Criminal Trials Shorter Trials Committee of Victorian Bar - AIJA published 1985; Law Reform Commission of New South Wales - Procedure from Charge to Trial: Specific Problems and Proposals Discussion Paper No 14 of 1987; Corns Anatomy of Long Criminal Trials AIJA Incorporated published 1997; Reform of Court Rules and Procedures in Criminal Cases - Conference - Brisbane July 1998; Law Reform Commission of Western Australia The Right to Silence published November 1998; Best Practice Model for the Determination of Indictable Charg es - National Legal Aid and Conference of Australian Directors of Public Prosecutions published August 1998; Law Council of Australia - Reform of Pre-trial Criminal Draft Principles - Law Council of Australia published September 1998 iv See for example Summary Procedure Act 1921 (SA) s104; Crimes (Criminal Trials) Act (Vic) 1999, ss6-10; Justices Act 1902 (NSW) ss 48A and 48B; Justices Act 1902 (WA) s100(1) v Director of Public Prosecutions (SA) Statement of Prosecution Policy & Guidelines issued July 1999; Director of Public Prosecutions (NSW) Prosecution Policy & Guidelines issued March 1998; Director of Public Prosecutions (Commonwealth) Statement on Prosecution Disclosure issued October 1998; Director of Public Prosecutions (WA) Statement of Prosecution Policy & Guidelines issued 1 November 1992; Director of Public Prosecutions (NT) Prosecution Disclosure Annual Report 1998/99; Director of Public Prosecutions (Vic) Director s Policy with Respect to Disclosure 1998 OPP Information Bulletin No 73; Director of Public Prosecutions (Tasmania) Guidelines for Prosecution Disclosure; Director of Public Prosecutions (ACT) Prosecution Guidelines vi Published August 1998 vii A Best Practice Model for the Determination of Indictable Charges - footnote 5 viii For example, the South Australian Prosecution Policy issued in July 1992 made no reference to the topic of disclosure. South Australia s Prosecution Policy & Guidelines issued July 1999 contains a specific guideline on the topic of disclosure. ix eg Director of Public Prosecution (Commonwealth) Statement on Prosecution Disclosure; Director of Public Prosecutions (SA) Statement of Prosecution Policy and Guidelines; Director of Public Prosecutions (Tas) Guidelines for Prosecution Disclosure; Director of Public Prosecutions (NT) Prosecution Disclosure x See for example the arguments referred to in R v Stinchombe (1991) 68 CCC(3d) 1 xi R v Stinchcombe (supra) at 8 xii Leng & Taylor Blackstone s guide to the Criminal Investigation and Prosecution Act 1996 at p.8 xiii eg methods of policing which are capable of producing a large amount of material include electronic surveillance and the use of Crime Stoppers and other public requests for assistance xiv Supra at note 5 xv [1998] 1 Cr App R 66 xvi Supra at xvii Report published September recommendations 1-6 xviii A Best Practice Model for the Determination of Indictable Charges - footnote 5 xix See discussion under Whether acceptance of the recommendations will achieve the desired outcome xx Working Group Report (supra) at p.25 xxi Mack & Anleu noted in their study of guilty pleas that it was generally accepted that the DPP comply with their obligations of disclosure but there were concerns expressed about police practices: Mack & Anleu Guilty Pleas: Discussion and Agreement (1996) 6 JJA 8 at 10; see PJL Rofe s QC The Obligations of the DPP paper presented to the Criminal Law Conference - Hahndorf 1997 xxii The view that legislation would increase the likelihood of a proper understanding by the police of their duty, was a view expressed in the United Kingdom prior to the implementation of the Criminal Procedures and Investigation Act 1996; see Glynn - Disclosure [1993] Crim LR 841 at 847. Glynn also cites the Royal Commission on Criminal Procedure (Report 1981) at paragraph 96 and O Connor Prosecution Disclosure; Principles Practice and Justice [1992] Crim LR 464 at 476 for this proposition xxiii Supra at 847

16 xxiv xxv xxvi xxvii xxviii xxix xxx xxxi eg Police Regulations (SA) 1999 sections It is difficult to envisage that conduct could not be dealt with as an offence; there would also be sanctions as to the use of evidence in court, eg R v Cox (1997) 196 LSJS 3 In operation since April 1997 Sprack The Criminal Procedure and Investigations Act: (1) The Duty of Disclosure (1997) Crim LR 308; for further information see Archibald 20 public edition at paragraphs ff See O Connor Prosecution Disclosure: Principal Practice and Justice (1992) Crim LR 464; The argument put by the Government in favour of the current English system was that it sought to redress the imbalance in the criminal justice system - Leng and Taylor (1996) Blackstones Guide to the Criminal Procedure and Investigation Act 1996 at 8-10 Hill QC - The Seduction of the Fix conference paper AIJA Conference - Brisbane 1998 R v Director of Public Prosecutions ex parte Lee [1999] 2 Crim App R 304 at 317 See Archibald s 2000th edition ff R v Director of Public Prosecutions ex parte Lee (1999) 2 Crim App R 304; prior to the enactment of the Criminal Procedure and Investigation Act 1996, the Attorney General had issued guidelines in relation to the obligation to disclosure which guidelines are set out in (1982) 74 Crim App R 302. In addition there was a pre-trial system which encouraged the defence counsel to identify issues. That system is not dissimilar to that now adopted in South Australia where counsel is required to complete a form at the time of arraignment - although there is no reference to issues in the South Australian form xxxii Director of Public Prosecutions (Commonwealth) Statement of Prosecution Policy issued October section F) xxxiii Director of Public Prosecutions (NSW) Prosecution Policy and Guidelines issued March guideline 11 - a specific guideline was issued to police pursuant to section 14 of the Director of Public Prosecutions Act 1986 which is annexed as Appendix D to the Prosecution Policy and Guidelines xxxiv Director of Public Prosecutions (Tas) Prosecution Guidelines xxxv xxxvi xxxvii xxxviii xxxix xl xli xlii xliii xliv xlv xlvi xlvii xlviii xlix l li lii liii Director of Public Prosecutions (NT) Prosecution Disclosure Annual Report Director of Public Prosecutions (Commonwealth) Statement of Prosecution Disclosure issued October 1998 Parts D and E; Director of Public Prosecutions (NSW) Prosecution Policy and Guidelines issued March 1998 guideline 11; Director of Public Prosecution (NT) Prosecution Disclosure Director of Public Prosecutions (Commonwealth) Statement of Prosecution Policy Disclosure - Part F Director of Public Prosecutions (NSW) Prosecution Policy and Guidelines issued March guideline 11 Section 3 (1)(a) Section 7(2)(a) Sprack The Criminal Procedure and Investigation Act 1996(1) The Duty of Disclosure (1997) Crim LR 308 at 316 In R v Brown (1998) 1 Crim App R 66 the court considered the issue of material that related to the credibility of a defence witness; in R v Reci (1997) 70 SASR 78, the court considered material which had been provided to the prosecution by a co-accused s counsel in an attempt to resolve the matter relating to their accused, which material was provided to the DPP on the undertaking that it would be returned to the defence counsel Barton v R (1980) 147 CLR 75 at 79; R v Harry ex parte Eastway (1985) 39 SASR 203 at 208 R v Harry ex parte Eastway (supra) at 208 per King CJ eg Summary Procedure Act 1921 (SA) s104; Justices Act 1902 (NSW) ss 48A & 48B; Justices Act 1902 (WA) section 100 (1) For information on this section see Goldsmith v Newman (1992) 59 SASR 404 Summary Procedure Act (SA) 1921 section 106 PJL Rofe QC Fair Trial and Reform of Criminal Law paper presented to the Law Society in South Australia - April 1995 A Best Practice Model for the Determination of Indictable Charges Summary Procedure Act (SA) 1921 section 107(1a) Director of Public Prosecutions (SA) Statement of Prosecution Policy and Guidelines - decision to prosecute Mack & Anleu - Guilty Pleas: Discussion and Agreement (1996) 6 JJA 8 at 11; Mack & Anleu - Reform of Pre Trial Criminal Procedure: Guilty Pleas (1998) 22 Crim LR 263 and see R v Stinchcombe (supra) at 7-8 For examples of what can occur without co-operation see R v Wilson & Grimwade (1995) 1 VR 163; Phillips: Practical Advocacy (1994) 68 ALJ 384; Ipp Lawyers Duties to the Court (1998) 114 LQR 63 at

17 liv lv lvi lvii lviii lix lx Ling v Police (1996) 188 LSJS 488 Supra at 494; for further arguments on this topic - the Honourable Justice J Badgery - Parker The Criminal Process in Transition: Balancing Principle and Pragmatism Part 2 (1995) 4 JJA 193 For example Flatman QC and Bagaric Accused s Disclosure - Measured Response or Abrogation of the Principle of the Presumption of Innocence? (1999) 23 Crim LJ 327 Flatman QC and Bagaric (supra) at 329; in the United Kingdom it was this imbalance which was argued as the basis for the enactment of the Criminal Procedure and Investigation Act - Leng & Taylor Blackstone s Guide to the Criminal Procedure and Investigation Act 1996 at 8-10 R v Apostolides (1984) 154 CLR 563 at R v Cox (1998) 196 LSJS 3 at 8 His Honour Justice J Badgery - Parker The Criminal Process in Transition: Balancing Principles and Pragmatism Part 1 (1995) 4 JJA 171 at 172; Director of Public Prosecutions (SA) Prosecution Policy and Guidelines at p.4