New Zealand Law Commission
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193 A PERSON ACCUSED OF A CRIME must be made aware of the
nature and extent of the allegation; without adequate disclosure, a defendant will be unable to prepare their defence properly. The extent to which defendants should be entitled to disclosure of information from the prosecution depends upon a fair balance between the general public interest and important personal rights of individual citizens. Defendants should not be handicapped by a lack of relevant information and by an imbalance of resources available to them in preparing a case compared with those resources at the disposal of the State. In the 1990 Report, the Commission concluded that all relevant information in the hands of the prosecution should be made available to the defence subject only to exceptions needed to avoid prejudice to the wider public interest. The real question is how do we achieve adequate disclosure?
194 The 1990 Report recommended the introduction of a comprehensive criminal code to regulate disclosure in criminal cases. A comprehensive code was considered necessary because such rights as presently exist are strewn through a number of enactments that have differing policies informing them, such as the Official Information Act 1982, and the Privacy Act 1996. The Commission also agrees with the Disclosure Consultation Paper that a clear and enforceable regime for disclosure is particularly important when access to a preliminary hearing is restricted. That is because of the reduced effectiveness of the streamlined preliminary hearing as a mechanism for pre-trial disclosure, and the diminished importance of preliminary hearings generally as a filter for unwarranted prosecutions.
195 We now reiterate our recommendations, made 10 years ago, that a comprehensive disclosure code be introduced. The draft bill contained within the 1990 Report remains a workable starting point for the proposed legislation. In this chapter we examine some of the key features that a new disclosure code should have, and evaluate some of the proposals advanced by other law reform bodies.
196 The New Zealand Police Court Based Resolution Project: Process Design envisages that the new police prosecution service briefing centres will have the responsibility for disclosure (see paragraph 115 above). The police consider that disclosure could perhaps be more satisfactorily dealt with by the formulation of guidelines rather than legislation.
197 The Commission agrees with the suggestions in the Disclosure Consultation Paper, that the outstanding problems in relation to criminal disclosure, which a disclosure statute could solve, are:
• consistency of practice across the country;
• lack of clarity/certainty of rights – especially for unrepresented defendants;
• obtaining timely disclosure;
• court enforcement of rights; and
• comprehensive coverage of both public and private prosecutions (the Official Information Act 1982/Privacy Act 1993 and common law regime may not be adequate to cover private prosecutions).
198 Some of the existing problems with criminal disclosure are illustrated in Allen v Police. The appellant had been apprehended after crashing a car he was driving. His defence counsel made a written request for disclosure of certification, maintenance and calibration records of all breath testing devices used in this case. This request was not complied with by the police. The defence had intended to challenge the accuracy of the device at trial – a legitimate and recognised defence. Defence counsel alleged at trial that there had been an unjustified refusal or failure on the part of the police to provide the requested information. Nonetheless, the appellant was convicted. He challenged the conviction on the basis that the refusal of the police to provide the requested information was an abuse of process for which the sanction should have been dismissal of the information.
199 Justice Giles decided that the prosecutor had, without acceptable explanation, failed to comply with a legitimate defence request for pre-trial discovery. This refusal had infringed the defendant’s rights under section 24(d) of the New Zealand Bill of Rights Act 1990, which provides that a person charged with an offence has the right to adequate time and facilities to prepare a defence. The defence was entitled to be provided with the records, or be given access to them, in advance of the trial, so as to form a view as to whether an issue of reliability of the device arose. Justice Giles held that the appropriate sanction was dismissal of the information. He made the decision on the grounds of abuse of process and denial of a right to a fair trial.
If, upon a timely request the prosecution elects not to respond, then, in my view, there are fatal consequences for the prosecutor since, in most cases, a ground for dismissal for abuse of process or prejudice to the process of a fair trial will have been per se established. The abuse lies in deliberate failure/refusal to supply; the prejudice lies in denial of the ability to assess the history and reliability of the device in order to determine whether there is a defence point open to be taken.
200 Justice Giles also considered the legal position in situations ranging from a deliberate failure to make legitimate disclosure, to an accidental default accompanied by an explanation. Regrettably, this kind of complexity is caused by the lack of a coherent regime controlling criminal disclosure. A complete legislative code would provide guidance to prosecutors about their obligations to make discovery. This in turn should result in fewer cases before the court turning upon purely procedural objections. Overall efficiency of the criminal justice system will be improved by freeing up more judicial time for consideration of cases on the merits, rather than discovery and procedure.
201 Because of problems with the existing regime (illustrated by Allen v Police), the 1990 Report recommended a tailor-made statutory criminal disclosure scheme enshrined in legislation, applying to both summary and indictable cases. Draft legislation was included in the 1990 Report but has not been enacted.
202 The Commission also recommended that notice should be given of an intention to call an expert witness, and that defence disclosure of alibi evidence should occur in summary, as well as indictable, cases. The requirement to give notice of intention to call an expert witness is contained in section 225 of the Commission’s draft Evidence Code. We endorse the recommendation that defence disclosure of alibi evidence should occur in summary cases, and expect that this will be contained in the final reform proposals on disclosure now being prepared by the Ministry of Justice (see paragraph 178 above).
203 The Disclosure Consultation Paper proposal was along similar lines, although it raised particular issues of timing and scope of disclosure, which we now consider.
204 The Commission believes, as outlined in its 1990 Report, that there should be two types of disclosure – initial and full. The 1990 Report referred to initial disclosure as “discovery at the time of charge”, and suggested that before defendants are required to plead or elect jury trial in summary cases, and at, or near, the first appearance in indictable cases, there should be automatic disclosure of the charge, its statutory authority, the maximum (and any minimum) penalties upon conviction, and a summary of facts. We note that police summaries of fact invariably include this information, but we believe that it should be a standardised requirement prescribed by legislation. In addition, initial disclosure should include the original complaint, whether police (such as a constable’s notebook entry, or traffic offence check list) or civilian (such as a written statement obtained from a complainant). Information that may be relevant to sentence, such as a list of the defendant’s previous convictions, should be made available at this time. Legislation should be enacted to place a positive obligation to disclose these items. However, such legislation would constitute the minimum disclosure required and the accused would still be entitled to request any further material relevant in his or her case. The same obligation and standardised summary should be used by all prosecuting agencies.
205 The defendant should also be given written notice that in the event of a plea of not guilty he or she has a statutory entitlement to full and ongoing disclosure.
No further disclosure at the initial stage
206 Unlike the Disclosure Consultation Paper, the Commission remains of the view (expressed by implication in its 1990 Report) that, apart from the items listed in paragraph 204 above, further initial disclosure, such as the names of prosecution witnesses and an index of exhibits is unnecessary and, in most cases, impracticable at an initial stage. For example, a full list of exhibits might not be available until after forensic testing is completed, which may take several weeks. Initial disclosure of the listed items before pleading, followed by full and ongoing disclosure, is a more practical solution that will adequately meet a defendant’s need for information.
Timing of initial disclosure
207 Initial disclosure should be made as soon as possible before a defendant is asked to enter a plea; or as soon as practicable and in no cases beyond 14 days after service of a summons. The Commission does not see the need for any flexibility in timing of initial disclosure, but does see a need for flexibility in ongoing disclosure.
Scope of full disclosure
208 The 1990 Report recommended that the scope of full disclosure should be governed by a general relevance test, relevant information being that which tends to support or rebut or has a bearing on the prosecution case. The Disclosure Consultation Paper adopted that recommendation but also suggested including a non-exhaustive list of types of information that will always be relevant. The Commission initially believed that such a list would be useful. However, it is now concerned that a list, although expressed to be non-exhaustive, might encourage narrow construction by prosecutors and may be counter-productive.
209 The 1990 Report listed the categories of information that the prosecutor may withhold, in the public interest, if disclosure would create a real and substantial risk of:
• prejudice to methods of investigating and detecting offences;
• prejudice to the investigation and detection of another alleged offence;
• facilitating the commission of an offence;
• causing any person to be intimidated or physically endangered;
• prejudice to national security; or
• a breach of an evidentiary privilege.
210 In addition, the Commission considers that the existence of such information, a description of its nature, and the grounds on which it is claimed to be properly withheld must be disclosed to the defendant. Moreover, as recommended in the Commission’s 1990 Report, if it is possible to make partial disclosure of information while protecting exempted, sensitive material then clearly it should be done. There must also be an obligation on the prosecution to disclose the existence of relevant information known to exist even if it is not in its possession, and therefore not in its power to disclose. This obligation would be of particular importance in private prosecutions.
Obligation to make full disclosure
211 The Crown’s obligation to make full disclosure must be ongoing, from the time of initial disclosure until the trial is over, and should be an automatic obligation on the person in charge of prosecuting a case at any given time.
212 The Disclosure Consultation Paper noted that, as indictable cases progress, the conduct of the prosecution passes from the police to the Crown Solicitor, and asked whether the Crown Solicitor is then the appropriate person from whom to seek disclosure. The Commission believes that the police officer in charge of the case remains the appropriate person from whom to seek disclosure at all stages of the trial. The police carry out any ongoing investigation and have physical custody of the evidence, the Crown Solicitor does not. However, to the extent that the Crown Solicitor holds relevant information that is not held by the police and not legally privileged, the disclosure regime must be sufficiently robust to ensure that such information is disclosed. The structure of the new Police National Prosecution Service (see paragraph 115 above) will incorporate briefing centres that will have responsibility for ensuring disclosure is made.
Timing of full disclosure
213 The Commission considers that full and ongoing disclosure should be automatically triggered for summary offences by entry of a not guilty plea or election of trial by jury, and for indictable offences by the first appearance. All relevant information should be disclosed as soon as reasonably practicable after entitlement arises. However, the court should retain an express power to set timetabling orders where necessary in order to facilitate disclosure and to monitor progress. Legislation establishing the disclosure regime should confer a specific power upon the District Court to make time-tabling orders.
Enforcement of full disclosure
214 There need to be sanctions to ensure compliance with disclosure requirements and timetable orders. There are currently remedies available to punish non-compliance, because the High Court has both inherent power to deal with non-disclosure, and the function of giving effect to the rights of the accused under section 24 of the Official Information Act 1982 to have access to personal information and the District Courts have implied powers in respect of each. One of the advantages of a statutory regime would be to clarify the exact requirements and bring the remedies for non-compliance into sharp focus. We recommend that any disclosure regime provide for disclosure to be enforced by way of timetabling orders (from which there should be no appeal), and if those orders are not complied with, the following sanctions to be available:
• further timetabling orders;
• orders for the prosecuting agency to contribute to the costs incurred by the defendant;
• as a last resort, dismissal of the case.
215 In relation to an order for costs, we note that the Costs in Criminal Cases Act 1967 does not provide for costs orders at an interlocutory stage, and therefore separate provision would be required in a disclosure statute. In our recent review of the Costs in Criminal Cases Act, we recommended that costs under that Act should be recoverable by the Legal Services Board as this encourages high prosecution standards. For the same reason, we would recommend that a provision for costs in a disclosure statute should also be exercisable by the Legal Services Board. There should also be a provision analogous to section 7 of the Costs in Criminal Cases Act 1967, so that where a prosecution is conducted by or on behalf of the Crown, the costs shall be paid out of money appropriated by Parliament for that purpose or, if the court is of the opinion that the failure to disclose arises from negligence or bad faith, by the prosecuting agency itself.
216 Where the failure to disclose is discovered after a case has been concluded, effective remedies already exist: the court may quash the conviction and order a rehearing, the police and the Crown Law Office have internal procedures to investigate and discipline, and in appropriate cases a criminal charge of conspiring to defeat the course of justice may be laid. No further remedies are required.
217 In relation to the scope of disclosure before trial, if full disclosure is not made, upon application the court could order disclosure of particular items of evidence. In relation to indictable offences, the Commission agrees with the Disclosure Consultation Paper’s suggestion that section 379A Crimes Act 1961 would be
the appropriate provision for appeals against such an order in indictable cases. An analogous procedure should be available in summary cases.
218 The Commission agrees with the suggestion of the Disclosure Consultation Paper that, when the prosecution seeks to adduce undisclosed evidence at trial, the court should have the power to exclude or accept it, to adjourn and/or order costs.
219 The Commission believes that it is not necessary that the disclosure regime deal specifically with issues raised by the existence of material held by third parties. At present the prosecution is under a duty to disclose to the defendant the existence of all relevant information in the hands of third parties. Once a defendant has been apprised of the identity of the holder of the information, the defendant is able to compel the evidence through the normal means of witness summonses and subpoena duces tecum. It would be impossible to regulate third party disclosure coherently given the limitless number of circumstances where it might arise. It is better left to the general law to determine the extent to which a defendant can compel relevant evidence from a third party, counter-balanced by the third parties’ rights to privacy.
220 An example of the complexity of third party disclosure is evidence of a sensitive nature. Such a claim must remain to be decided by the courts, balancing the competing interests. Section 67 of the Commission’s draft Evidence Code would create a discretion to prohibit the disclosure of confidential information in a proceeding. In our view, section 67 provides the flexibility necessary to ensure that the interests of justice are served.
Relationship of proposed disclosure code to Official Information Act 1982 and Privacy Act 1993
221 The Commission recommends that the disclosure regime should operate alongside the Official Information and Privacy Acts before and during trial. Any conflict between those Acts and the disclosure statute would be resolved under section 52 of the Official Information Act 1982 and section 7 of the Privacy Act 1993, both of which provide that neither Act derogates from other provisions that require or authorise the disclosure of information.
222 The Commission considers that if the post-trial use of the Official Information and Privacy Acts reveals relevant evidence that was not disclosed pre-trial, the defendant must retain his or her current right to apply for a rehearing. In addition, there needs to be
some sanction against the prosecuting authority if evidence is uncovered post-trial that should have been disclosed pre-trial, for example, the failure to disclose evidence that tended to rebut the prosecution case.
223 The Commission considers that post-trial disclosure performs an important role in the review of cases and therefore recommends that section 31 of the Privacy Act 1993 (although yet to come into effect), which denies inmates access to personal information related to their conviction, should be repealed.
224 The Commission recommends that, in tandem with the legislation amending preliminary hearings, the Government introduce a disclosure bill that:
• takes account of the Commission’s 1990 draft disclosure bill amending the Summary Proceedings Act 1957;
• applies equally to summary and indictable offences and to prosecutions by the State and by private prosecutors;
• requires defence disclosure of alibi evidence in summary as well as indictable cases;
• ensures that the disclosure regime operates alongside the Official Information Act 1982 and the Privacy Act 1993; and
• repeals section 31 of the Privacy Act 1993.