8 |
Disclosure |
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General Statement |
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| 8.1 |
The Crown has a continuing obligation to make full disclosure in a timely manner of the prosecution case to the offender. This includes disclosure of all material which on sensible appraisal: |
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(1) |
is relevant or possibly relevant to an issue in the case and being either inculpatory or exculpatory material; |
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(2) |
raises or possibly raises a new issue whose existence is not apparent from the evidence the prosecution proposes to use; and/or |
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(3) |
holds out a real as opposed to a fanciful prospect of providing a lead to evidence which goes to either of the previous two situations. |
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| 8.2 |
Inappropriate disclosure of confidential information may affect the safety or privacy of individuals, compromise ongoing investigations or undermine confidence in the Office. There will be circumstances when disclosure should be conditional, delayed or withheld. Where a prosecutor considers one or more of these options to be appropriate then the police officer-in-charge should be consulted. |
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| 8.3 |
Sensitive material must be carefully secured. It must not be left unattended in court, in cars or in any place where it could be accessed by unauthorised people. |
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Specific matters of which there should be disclosure |
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| 8.4 |
In all cases, disclosure should include (but is not limited to) the following: |
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(1) |
particulars of the offender’s prior convictions; |
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(2) |
copies of all written statements of all witnesses to be called (addresses and telephone numbers may be deleted), a copy of an audio taped record of interview, and an opportunity to examine electronically recorded interviews; |
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(3) |
a copy of any prior inconsistent or additional statement of a witness (including any statement made in conference, recorded or otherwise and the Victim Impact Statement); |
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(4) |
a copy of any written or electronically recorded statement obtained from the offender by a person in authority; |
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(5) |
copies of any photographs, plans, documents or other representations which will be tendered by the prosecution at trial; |
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(6) |
an opportunity to examine exhibits which will be tendered; |
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(7) |
copies of statements and reports of any expert witnesses to be called and, by appointment through the prosecution, an opportunity for a defence expert from the same or similar discipline to speak with that expert pre-trial; |
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(8) |
a copy of any warrant or details of any other statutory authority used in the gathering of evidence to be adduced at trial. However, an affidavit in support of any such warrant by a police officer should not normally be disclosed; |
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(9) |
an opportunity to inspect bank records, books of account or other records or documents relevant to the prosecution case-in-chief even though they may not be introduced into evidence or relied upon; |
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(10) |
where a decision has been made not to call a witness, contact details for the witness; |
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(11) |
any information in the possession of the Crown which reflects materially upon the credibility of prosecution witnesses including: |
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(a) |
a previous conviction, for example for perjury and offences involving dishonesty; |
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(b) |
an adverse finding in other criminal proceedings or in non-criminal proceedings (such as disciplinary proceedings, civil proceedings or a Royal Commission); |
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(c) |
evidence before a Royal Commission which reflects adversely on a prosecution witness; |
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(d) |
any physical or mental condition which may substantially affect reliability; |
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(e) |
any concession which has been granted to a witness in order to secure that person’s testimony for the prosecution, including the details of any grant of immunity or indemnity from prosecution and discount on sentence if applicable; and |
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(f) |
where there is reason to believe that the credibility of a prosecution witness may be in issue, a request for a criminal history check should be made and any relevant convictions disclose |
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Discretion to withhold or delay disclosure on Public Interest Grounds |
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| 8.5 |
A prosecutor may withhold or delay disclosure of specific material where the prosecutor is of opinion that, in the public interest, the material should be immune from disclosure. |
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| 8.6 |
Where the prosecutor declines to disclose material, or alternatively delays disclosure of material, the prosecutor should advise the defence that material has been withheld and claim an immunity against disclosure in respect of that material. |
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| 8.7 |
In determining whether to claim public interest immunity, some of the factors to be considered are whether: |
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(1) |
the material is clearly irrelevant; |
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(2) |
withholding is necessary to preserve the identity of an informant; |
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(3) |
withholding is necessary to protect the safety or security, including protection from harassment, of persons who have supplied information to the police; |
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(4) |
the material is protected by legal professional privilege; |
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(5) |
the material, if it became known, might facilitate the commission of other offences or alert a person to police investigations; |
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(6) |
the material discloses some unusual form of surveillance or method of detecting crime; |
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(7) |
the material is supplied to the police only on condition that the contents will not be disclosed; |
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(8) |
the material contains details of private delicacy to the maker; |
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(9) |
the material relates to the internal workings of the police force; and/or |
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(10) |
the material relates to national or state security |
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| 8.8 |
The extent to which any of these factors will affect the decision whether or not to disclose particular material will vary. Application of these factors will always be subject to the over-riding duty to ensure that the Crown case is presented with fairness. The matter should be referred to the Director’s Chambers for consideration as to whether it is appropriate to delay or withhold disclosure. |
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| 8.9 |
In cases where a claim of immunity is pursued then the question of disclosure will be determined by the outcome of that claim. |
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| 8.10 |
In cases where a claim for immunity is upheld and the Director is of the view that non-disclosure could prejudice the defence at trial, the Director will determine whether the charge or charges to which the material is relevant should be withdrawn. The Director will determine whether the offender should be charged with an alternative or lesser offence, the prosecution of which will not necessitate the production of the withheld material. |
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| 8.11 |
In the event that a claim for immunity is unsuccessful the Director will consider, following consultation with police officer-in-charge, whether the overall interests of justice require that the material be disclosed or, alternatively, that the prosecution be abandoned. |
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| 8.12 |
Police should provide the ODPP with a separate schedule listing any potentially disclosable material which the police consider may be immune from disclosure to the defence on public interest grounds, together with the reasons why it is considered that the particular material is subject to public interest immunity. Examples of such material are: |
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(1) |
material relating to the identity or activities of informants, undercover police officers or other persons supplying information to law enforcement authorities; |
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(2) |
material revealing the location of any premises or other place used for surveillance, or the identity of any person allowing a law enforcement officer to use any premises or other place for surveillance; |
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(3) |
material revealing, either directly or indirectly, investigative techniques and methods relied upon by law enforcement agencies in the course of a criminal investigation (for example, covert surveillance techniques) or other methods of detecting crime; |
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(4) |
material the disclosure of which might facilitate the commission of other offences or hinder the prevention or detection of crime; |
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(5) |
material relating to national security; |
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(6) |
material received from an intelligence or security agency; and/or |
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(7) |
material given in confidence. |
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This list is not intended to be exhaustive. |
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Confidential Communications |
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| 8.13 |
In criminal proceedings for sexual offences communications with a counsellor are privileged to the extent provided by Part VIA Evidence Act. Prosecutors are to be familiar with and apply the provisions of that Part when applicable. Confidential communications are privileged and are not to be disclosed unless there is a court order for disclosure or as the provisions of the Part otherwise allow. |
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Legal Professional Privilege |
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| 8.14 |
Legal professional privilege will be claimed by a prosecutor against the production of any document in the nature of an internal ODPP (for example a submission or opinion and advice to the Director, submissions between lawyers and Crown Prosecutors). Only the Director or Deputy Director may approve the waiver of the privilege. |
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Conditional Disclosure |
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| 8.15 |
Wherever material contains an image of a person which is obscene or indecent or would otherwise violate the person’s privacy: including video taped interviews with complainants of sexual offences, child pornography, police photographs of naked complainants, video tapes or photographs of sexual offences being committed and autopsy photographs, then such material: |
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(1) |
must not be copied, other than for a legitimate purpose connected with a proceeding; |
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(2) |
must not be provided to the defence but must be made available for viewing by the defence upon a request if the evidence is relevant to either the prosecution or defence case; and |
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(3) |
may be made available for analysis by an appropriately qualified expert (for the prosecution or defence) upon such conditions as thought appropriate. |
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| 8.16 |
In appropriate cases a prosecutor may seek an undertaking from defence that material will not be disclosed to parties other than the offender’s legal advisers and the offender. |
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Disclosure Certificate |
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| 8.17 |
The duty on the prosecution to disclose material to the offender imposes a concomitant obligation on the police to notify the prosecution of the existence and location of all such material. If required police shall, in addition to providing the brief of evidence, certify that the prosecution has been notified of the existence of all such material. |
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| 8.18 |
Should any documentation, material or information additional to the Crown case be either sensitive or of a nature which requires protection or limited disclosure, the police officer-in-charge of the investigation should identify that information at the time it is made available to the ODPP. |
