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1/ The Prosecutor’s Duty of Disclosure in the Local Court: what you should know when you don't know what you don't know. Full paper by PD Madeleine Avenell, @timjmckenzie83 and me coming soon on http://criminalcpd.net.au .
Tips for securing disclosure in practice in thread. #auslaw
Tips for securing disclosure in practice in thread. #auslaw
2/ Think about disclosure often and early on. Read the disclosure cases. Recall your own experiences where potentially relevant and even critical evidence has been disclosed late, or not at all. There are too many cases where a grave miscarriage of justice has occurred.
3/ An entrenched attitude of non-disclosure by police and prosecuting authorities is dangerous. It puts our whole system of justice in peril. Remind yourself frequently that the accused does not know what the accused does not know.
4/ And that a breach of disclosure can result in unjust convictions and the lengthy and unwarranted loss of liberty of a human being; and that we must all be vigilant to avoid unfairness and injustice.
5/ Arm yourself with the legal principles to push back against any institutional reluctance to honour the obligation of disclosure. Insisting on the minimum standards of fairness is not “attempting to break the entire criminal justice system”.
6/ There is power in collective insistence on behalf of accused persons that disclosure obligations are met in criminal proceedings for offences determined summarily to the most serious of indictable crimes. Cultural change can be achieved through such collective insistence.
7/ Always have in mind that at a hearing or trial it is for the prosecution to prove the charges beyond reasonable doubt, not an inquiry into truth.
Ascertain issues from the brief and instructions.
Ascertain issues from the brief and instructions.
8/ Do your own investigating – of witnesses, of the scene, in relation to the types of documents that one would expect to exist given certain facts etc.
Work out what you want and why.
Work out what you want and why.
9/ Build disclosure requests and compliance checks into your case management practices, particularly where your client has entered a plea of not guilty or is otherwise entitled to a brief of evidence.
10/ Keep an eye on the practicalities – is your client on bail or not, what is the likely hearing date, apply to re-list the proceedings to deal with any non-disclosure so that timeframes are not blown out to the disadvantage of your client.
11/ Raise the issue with the prosecution as early as possible. Write to the prosecutor/OIC early or upon entering PNG. Whilst the onus is firmly on the pros to ensure that they comply, in many cases it will be necessary or prudent to take steps to ensure there is compliance.
12/ Seek disclosure in general terms and as relevant to particular issues you may be able to identify or reveal from instructions, and set out parameters of issues at hearing (or trial) to the extent possible or appropriate. Initial correspondence can be done by a quick email.
13/ It is not uncommon for requests to be rebuffed with a response that the accused should issue a subpoena or obtain documents through an FOI avenue. This is not a proper answer to a request that the prosecution make disclosure of material that accused is entitled to.
14/ It may be necessary to point out that the duty extends to material which the prosecution has in its possession or available to it. It is not an answer that the police prosecutor or OIC or DPP solicitor personally does not hold the document(s) or does not know about them.
15/ Reasonable inquires of the COPS database and other police records must be made.
16/ If a request for material is refused in circs where you can prove that disclosable material is likely to exist, or where the prosecutor confirms it does exist, or where the prosecutor refuses to confirm that it does not exist, the next step should be seeking a court order.
17/ The paper trail is likely to be very significant for any subsequent application to the court.
18/ Check compliance with procedural requirements and court orders. Raise issue in court early, for Local Court hearings at reply-to-brief stage or ahead of hearing, or pre-committal if lack of compliance or not satisfied with compliance.
19/ If not satisfied with the result from requests to the prosecution, list for separate hearing on temporary stay application ahead of the defended hearing (or trial). As for form of the application – notice of motion, affidavit in support from solicitor, written subs ideally.
20/ Establish evidentiary basis for the relief sought, for example, by way of tender of correspondence relevant to disclosure requests and sufficient evidence from brief of evidence, or as to your instructions to bear upon the disclosure issue; XX of OIC may also be appropriate.
21/ Formal adducing of evidence and written submissions in support will protect the accused’s interests below and in the event appellate litigation is necessary as in Bradley v Chilby [2020] NSWSC 145.
22/ On XX of OIC, note the requirements of objectivity of the investigator as explained in R v Ernst [2020] QCA 150. In that case – the police officer gave evidence that his attention was only upon facts that might assist the prosecution case.
23/ If stay refused or otherwise appropriate, seek issue of a subpoena to Commissioner of Police. A subpoena as a first resort is arguably perpetuating and further entrenching a culture of non-disclosure by police and prosecutors and acquiescing to a 2nd rate system of justice.
24/ It is not over until it is really over. Don’t give up! A late discovered breach of disclosure can be a basis for appeal or conviction inquiry. JB v R (No 2) [2016] NSWCCA 67 - released and acquitted after spending 6 yrs and 8 months in jail.
