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Pre-Trial Defence Disclosure: Background to the Criminal Procedure Amendment (Pre-Trial Disclosure) Bill 2000

Pre-Trial Defence Disclosure: Background to the Criminal Procedure Amendment (Pre-Trial Disclosure) Bill 2000

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 12/2000 by Gareth Griffith

The purpose of this paper is to present a commentary upon the background to the Criminal Procedure (Pre-trial Disclosure) Bill 2000 and the draft copy of the Criminal Procedure Amendment (Pre-trial Disclosure) Regulation 2000. Its main findings are as follows:
  • In the Second Reading speech for the Bill it was said that its purpose ‘is to introduce a process where courts, on a case-by-case basis, may impose pre-trial disclosure requirements on both the prosecution and the defence to reduce delays and complexities in criminal trials’. This makes it clear that the debate about pre-trial disclosure is part of the wider discussion about court delays and the general efficiency of the criminal justice system (page 1).
  • The debate about pre-trial disclosure generally, and the compulsory defence disclosure in particular, has a long history in NSW, stretching at least as far back as the mid-1980s. It has been considered on a number occasions by the NSW Law Reform Commission, most recently in relation to its inquiry into the right to silence. In its discussion paper of May 1998 the Commission said that it ‘is presently minded to accept’ the arguments supporting compulsory defence pre-trial disclosure (page 22) .
  • In the run-up to the general election of March 1999, the Labor Government promised it would introduce pre-trial defence disclosure. The President of the NSW Law Society, Mr John North, was among those who criticised the proposed reform, saying: ‘It is another attempt to attack one of the great principles of justice; that is, it is up to the Crown to prove guilt beyond reasonable doubt and not the responsibility of the defence to prove innocence’. The NSW Law Society’s spokesman on criminal law, Trevor Nyman, argued that the problem it was intended to cure was ‘more perceived than real’. ‘More than 95 per cent of criminal cases involve pleas of guilty’, he stated, adding that ‘Of those that do go to jury trial, more than 90 per cent are straightforward and speedy. If cases are unduly lengthy, it is almost always because the prosecution witnesses are numerous and detailed’ (pages 23-24).
  • Between September 1999 and June 2000 the Working Group of the Australian Standing Committee of Attorneys-General (SCAG) on Criminal Trial Procedure, the SCAG Deliberative Forum on Criminal Trial Reform and the Law Reform Commission of Western Australia released reports recommending reciprocal pre-trial disclosure for the defence and prosecution (pages 27-29).
  • At present in NSW barristers’ and Solicitors’ Rules, DPP guidelines and Supreme Court Standard Directions are all relevant to the issue of pre-trial disclosure by either the prosecution and/or the defence in criminal cases. However, the actual statutory modification of the common law position as far as defence disclosure is concerned is relatively marginal, being limited to giving notice of an alibi and, in murder trials, the defendant is required to give notice of an intention to raise the defence that he/she is not guilty due to substantial impairment by abnormality of mind (pages 1-2).
  • In Victoria a detailed regime of compulsory, reciprocal pre-trial disclosure has been established, originally in 1993, and more recently under the Crimes (Criminal Trials) Act 1999. Under the Victorian scheme, the requirements associated with the pre-trial ‘directions hearings’ are set out in the 1999 Act, whereas in NSW much of the detail of the proposed pre-trial disclosure regime is found in the Regulations (pages 4-7).
  • To a large extent the argument against defence disclosure focuses on issues of principle, in particular on the bundle of rights associated with the presumption of innocence, the right to silence and the protection against self-incrimination. On the other side, the case for defence disclosure focuses more on practical issues, especially as these relate to the efficiency of the criminal justice system. However, the case for defence disclosure can also be presented in theoretical terms. For example, it can be said that such disclosure facilitated the fundamental purpose of a criminal trial which is to discover ‘the truth’. Alternatively, arguments against defence disclosure can also take a practical turn, especially when countering the empirical claims made about what are called ‘ambush defences’ (page 9).
  • Among other things, the Criminal Procedure (Pre-trial Disclosure) Bill 2000 would establish: a case-management model of reciprocal pre-trial disclosure on a compulsory basis, much of the detail of which is set out in the draft Regulations; a regime of sanctions for non-compliance with pre-trial disclosure requirements; an incentive-based penalty reduction scheme for pre-trial disclosure; statutory provisions to facilitate voluntary pre-trial disclosure; and the amendment of the Director of Public Prosecutions Act 1986 to impose a general duty of disclosure upon police officers involved in the investigation of an offence (pages 29-34).
  • Most commentators agree that the issue of sanctions is the most difficult where defence disclosure is concerned. Both the SCAG Working Group and the SCAG Deliberative Forum opposed the introduction of formal sanctions for breaches of disclosure obligations, preferring to rely instead on a sentencing discount scheme as an incentive for co-operation. This option is also available under the Pre-trial Disclosure Bill 2000. However, the Bill provides the court, in addition, with an extensive range of sanctions where a party has failed to comply with the requirements of compulsory disclosure (page 35).
  • Both the SCAG Working Group and the Pre-trial Disclosure Bill 2000 would require the defence to disclose such specific defences as self-defence and automatism. On the other hand, the SCAG Deliberative Forum report commented that other pre-trial procedures would adequately indicate if these kinds of specific defences were going to be raised by the defence. ‘Thus’, the report concluded, ‘the requirements on the defence may not realise any benefits of real significance and may only serve to upset the balance between prosecutor and defence’ (pages 38-39).
  • It can be argued that, after the issues relating to the efficiency of the court system have been addressed, it is the question of the fairness of the criminal justice system which must ultimately be answered in the debate about compulsory pre-trial defence disclosure.