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
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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.
