Requirements under the Criminal Disclosure Act 

From 29 June 2009 the Criminal Disclosure Act 2008 will be in force and all local government prosecutors and enforcement officers should be aware of its requirements.

The purpose of the Act is to promote fair, effective, and efficient disclosure of information between all parties in criminal proceedings. The Act will replace the current system derived from the common law and various statutes, including the Local Government Official Information Act ("LGOIMA"), the Bill of Rights Act, and the Privacy Act, which are not specifically designed for criminal disclosure.

The critical matter for prosecutors is the mandatory requirement for disclosure at 2 key stages.

When criminal proceedings are commenced or as soon as practicable after that time (not to be more than 21 days) the prosecutor (being the person in charge of the file) must provide initial disclosure, namely (s12):

• a summary that is sufficient to fairly inform the defendant of the facts on which it is alleged that an offence has been committed and the facts alleged against the defendant; and
• a summary of the defendant's right to apply for further information under section 12(2) before entering a plea; and
• the maximum penalty, and the minimum penalty (if one is provided for), for the offence; and
• a list of the defendant's previous convictions that are known to the prosecutor.

As soon as practicable after the defendant pleads not guilty a prosecutor must provide full disclosure.  "Full disclosure" is all relevant information, including (s13):

• a copy of any statement made by a prosecution witness; and
• a copy of any brief of evidence that has been prepared in relation to a prosecution witness; and
• the name and, if consent has been given or leave granted by the Court, the address of any person interviewed by the prosecutor who gave relevant information and whom the prosecutor does not intend to call as a witness; and
• any written account of the interview, whether signed or unsigned, and any other record of the interview; and
• any statement made to the prosecutor by the person; and
• any convictions of a prosecution witness that are known to the prosecutor and that may affect the credibility of that witness; and
• a list of all exhibits that the prosecutor proposes to have introduced as evidence as part of the case for the prosecution; and
• a list of all relevant exhibits in the possession of the prosecutor that the prosecutor does not propose to have introduced as evidence; and
• a copy of any information supplied to the prosecutor in connection with the case by any person or persons whom the prosecutor proposes to call to give evidence as an expert witness or witnesses; and
• a copy of any relevant information supplied to the prosecutor by a person or persons whom the prosecutor considered calling to give evidence as an expert witness or witnesses, but elected not to do so.

Sections 16 and 17 identify reasons for withholding information. Of note are the following:

• the information was prepared by or for the prosecutor to assist the conduct of the hearing or trial; or is a communication dealing with matters relating to the conduct of the prosecution and is between the prosecutor and another person employed by the same person or agency that employs the prosecutor; or with an adviser to the prosecutor; or
• the information is analytical or evaluative material prepared, in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor; or
• the information is publicly available and it is reasonably practicable for the defendant to obtain the information from another source; or
• the information has previously been made available to the defendant; or
• the information does not exist or cannot be found; or
• the information is not relevant.

There is also provision for defendants to request additional information (s14) and for information to be disclosed by defendants (ss22, 23) and non-parties (s24).

In light of the significant provisions in the Act for orders to be sought by both the defendant and the prosecutor (ss 30, 32, and 33 in particular), and the power of the Court to exclude any evidence not properly disclosed (s34), we recommend that all prosecutors, and all officers briefing prosecutors, become familiar with the Act.

If you require any further information please contact us.

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Last updated: 25 June 2009

The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.