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Defence Disclosure in ACT

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Published under Law Reform, News, Proposals

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May 22, 2015

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The ACT Government has proposed a revamp of court procedures that have the potential to impact heavily upon a citizen’s right to a fair trial.

The proposals require an accused person to:

  1. Tell the Prosecution what legal and factual issues the accused person has with the Prosecution’s expert evidence.
  2. Give the Prosecution advance notice of the expert reports that the accused person may seek to use at trial.

While noting that such a change might be justified on the basis of avoiding delay and noting also it would be easy to come to the belief that what is disclosed early would have been disclosed eventually anyway, the ACT Bar Association notes some fundamental concerns for the carriage of justice.

“The basic premise of a criminal trial is that the accused is presumed innocent,” Bar Association president Shane Gill writes to ACT Attorney-General Simon Corbell (and all ACT Legislative Assembly parties) ahead of the parliamentary debate on the new measures. “Trial judges regularly tell juries that there is no obligation upon the accused to do or say anything.

“The Bill changes this by obliging an accused to assist the Prosecution in the preparation of its case. This is contrary to the fundamental concept that it is the responsibility of the Prosecution to prove what it alleges.”

The ACT is one of only two Australian human-rights jurisdictions and the Territory’s Human Rights Act enshrines and declares (at Section 22(1)) the presumption of innocence throughout the ACT, including the right of an accused person “to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses” (Section 22(2)(g)).

Mr Gill said the proposed legislation undermined “a basic common-law safeguard designed to deal with the inequality of position of the accused vis-à-vis the prosecution”.

The Prosecution is served by the police (who are equipped with a forensic laboratory), professional prosecutors and all the resources of the state. The Prosecution is at liberty to determine what charges will be laid, at what time and on what factual basis,” Mr Gill writes. “By virtue of this, it is the prosecution who largely frames the ground upon which a trial is contested.”

The High Court has acknowledged that, because of this imbalance, a duty of disclosure of the evidence upon which it will rely is imposed on the prosecution. It is a duty not imposed on the accused.

Mr Gill says the ACT changes strike at the balance: “At its heart, the proposal is about the accused assisting, out of the accused’s limited resources, the prosecution to improve its case against the accused.”

The ACT proposal includes sanctions for non-compliance with pre-trial disclosure requirements. Chief among these sanctions is the power to refuse to admit expert evidence if an accused person fails to disclose the evidence beforehand or if he or she fails to give the prosecution a copy of a report from an expert witness.

The law in NSW, not a human-rights jurisdiction, stipulates that accused people have to provide a notice of the defence’s response to the Prosecution Brief of Evidence.

The NSW Criminal Procedure Act says that the defence response has to include “the nature of the accused person’s defence” and the “the facts, matters of circumstances” in the Brief of Evidence with which the accused intends to take issue – as well as a copy of any expert witness report as well.

The rider in the NSW Act (at Section 141(3)) is that, “The court may vary any such timetable if it considers that it would be in the interests of the administration of justice to do so.”

The proposed ACT Act also includes a rider: “A court may, by order, waive any of the pre-trial disclosure requirements … if the court considers that it would be in the interests of justice to do so”.

There is a body of opinion, certainly including the ACT Bar, that believes that not including the onerous disclosure requirements on accused people in the first place would be the better way to proceed.

About the Author

Andrew represents clients in the ACT Supreme and Magistrates Courts as well as the NSW Local and District Courts of the Canberra region. He appears also before the ACT Civil and Administrative Tribunal in licensing, mental-health and other matters. His breadth of experience allows him to tailor his advice and submissions to ensure the best possible results for his clients. View Andrew's profile

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