REFORM OF CRIMINAL TRIAL PROCEDURE

Paper 1

The Duty of Disclosure on theProsecution

Ms Wendy Abraham QC*

"A prosecutor must play his or her part in securing afair trial for persons accused of criminal offences. A fair trial is one thatresults in justice being done, ie conviction of the guilty as well as acquittalof the innocent. A fair trial may be described as one where all relevantcredible evidence is presented, tested and adjudicated upon according to law. The obligations of the prosecution to the various parties flow from thoseconcepts".[1]

It is well established and accepted that the disclosure ofmaterial which is in the possession of the prosecution which might be relevantto the defence case, is an important and fundamental ingredient of a fair trial.The failure of the prosecution to provide disclosure of such material may see aconviction overturned on appeal where a miscarriage of justice arises:

"In conformity with this conception of a fairtrial, if an accused person can show that he has been prevented by surprise,fraud, malpractice or misfortune from presenting at his trial evidence ofsubstantial importance which he desired to present, or which he would havedesired to present had he not been prevented by such causes from being aware ofits existence or its significance, then ordinarily the fact that he has beentried and convicted without such evidence having been called involves that hehas been deprived of his right to a fair trial and that there has, in thatrespect, been a miscarriage ofjustice".[2]

There have been a number of committees convened, reportswritten and conferences held to address the problems of the criminal justicesystem.[3] Invariably each has been focussed, atleast to some degree, on the pre-trial phase of the system. The prosecutionobligation to disclose has correctly been recognised as fundamental to thatprocess.

In Australia there are limited statutory requirements imposedon the prosecution to provide pre-trial disclosure to thedefence.[4] Largely the prosecution’sdisclosure obligations are governed by the common law and the variousprosecution policies that have been published by each of the Directors of PublicProsecutions.[5]

The existence of the obligation is now beyond question. TheDirectors of Public Prosecution are committed to a policy of full disclosure. Such commitment is evidenced in the document entitled "A Best PracticeModel for the Determination of Indictable Charges" - a joint proposal bythe Directors of Public Prosecution and National Legal Aid to achieve reform inthe criminal process.[6] It was acknowledged inthat document -

"The first and essential step [to reform] is tostrive to obtain credible prosecution disclosure. Unless defence counsel isconfident that there has been prosecution disclosure, it is unlikely thatthere will be any specific defencedisclosure".[7]

Further, this commitment is reflected by the terms of thevarious prosecution policies and guidelines, and the fact that in relativelyrecent times each of the Directors has promulgated policies, many for the firsttime or in far greater detail than had previously beenavailable.[8] There is considerable benefit inthis approach.

1. It is a public acknowledgment by the Directors of theiracceptance of the disclosure responsibility and their commitment to ensuring itscompliance.

2. The process has now been made much moretransparent.

3. The detail in which the policies are published shouldensure consistency of approach. A number of thepolicies[9] outline the types of material whichwould ordinarily be provided to the defence and provide guidance to thosebearing the responsibility as to how to discharge their duties, eg enumeratingvarious factors which are relevant to making the decision to disclose.

The arguments traditionally raised againstdisclosure,[10] which have now lost favour,remain of concern. These arguments have included the concern that with fulldisclosure an accused can tailor his or her defence to the evidenceprovided.[11] A further concern, is that thiscan give rise to challenges on issues and topics which are not genuinely indispute. In that event disclosure of material does not shorten but rather hasthe potential to lengthen the trial process and detract from the real issues tobe determined. It has been argued that there are resourceimplications[12] for all parties concerned,particularly where the material being requested appears to have no relevance tothe proceedings (this is particularly so given the nature of current policingmethods).[13] These remain issues of concernin that they provide, in some respects, possible explanations for delays andinefficiencies within the system. That, however, relates more to imbalance inthe criminal justice system than to arguments against full disclosure.

Although each of the prosecution policies are in differingterms, each recognises the duty of the prosecution to disclose all informationin its possession that is relevant to the guilt or innocence of an accusedperson.[14] This duty is subject only toconsiderations of public policy, and the safety of the State and its citizens. Whilst the obligation to disclose is well established, its implementation can becontentious and problematic. Any attempt to precisely define the obligation isfraught with inherent difficulties. Regardless of these difficulties theultimate test must be fairness, namely "Does the accused have all thenecessary material to ensure the fairness of his or her trial?" Thismust be the starting point.

However, the prosecutor’s duty of disclosure is to beviewed in the context of other competing duties. In the recent English decisionof R v Brown[15] Lord Hopecommented -

"... the principle of fairness lies at the heart ofall the rules of common law about the disclosure of material by the prosecutor. But that principle has to be seen in the context of the public interest in thedetection and punishment of crime ... The prosecutor’s duty is toprosecute the case fairly and openly in the public interest. It is not part ofhis duty to conduct the case for thedefence".[16]

Recommendations of the Working Group

The Working Group on Criminal TrialProcedure[17] has recommended that theobligation on the prosecution of disclosure be embodied in legislation. Therecommendations are :-

1. The prosecution obligation of disclosure should be given astatutory basis.

2. The statutory obligation should be specifically identifiedas applicable to both prosecutors and investigators.

3. Internal disciplinary sanction should exist in respect ofinvestigators who fail to comply with their statutory obligations.

4. Disclosure should be required prior to committalproceedings unless the requirement for disclosure is waived at the first orsubsequent mention of the matter.

5. Recognition should be given to the ongoing nature of theobligation.

6. The obligation could be expressed in terms similar to thosecontained in the policy promulgated by the Commonwealth Director of PublicProsecutions.

When considering the merit of the recommendations, a number ofquestions need to be addressed. These include :-

1. What is the purpose that is sought to be achieved byenacting the prosecution obligation into legislation?

2. Would that purpose be achieved?

However, involved with that, is a consideration of what otherconsequences would flow from legislation, and whether acceptance andimplementation of the recommendations would improve the administration ofcriminal justice. In that context a question which could be asked is whether astatutory obligation will achieve "credible prosecutiondisclosure"[18] over and above thatwhich can be achieved as a result of prosecution policies andguidelines.

These questions must be addressed in the current environmentof the criminal justice system. On the one hand there is the commitment by theDirectors to a policy of full disclosure. The necessity for disclosure and themerits of that occurring at the earliest possible time, areunchallengeable.[19] On the other hand, policeinvestigations by their very nature, are ongoing and police resources are oftenlimited by the demands placed upon them. Disclosure is made not knowing whatthe issues at trial will be. At the same time an accused’s aim may be totry to delay, hinder and frustrate the criminal process hoping to avoid facingproceedings. Indeed, the notion of identification of relevant issues andagreement of non contentious evidence, may be contrary to the beliefs of somedefence counsel.

All these issues are occurring in a climate of limitedfinancial resources.

This paper is designed to highlight the issues raised by thesequestions and to promote discussion.

The purpose sought to be achieved by therecommendations

The Working Group comments that there are significantdifferences between the various disclosure guidelines by each of the Directors,but recognises the fundamental principles are consistent throughout. Whilst theobligation of disclosure is well established, the Working Group recognises, inmy view correctly, that the legal profession "remains sceptical, and attimes distrusting, of investigativeagencies"[20] on the issue ofdisclosure.

It is considered that if the obligation were to be givenstatutory imprimatur with sanctions imposed on investigators for non-compliance,then the mistrust by the profession would ultimately be alleviated. Further, itis said that this would lead to a greater understanding and appreciation by theinvestigative agencies of their roles in this regard. Thoseviews[21] and that reasoning process as a basisfor disclosure legislation are not new.[22] Indeed, any barrister who has appeared for the prosecution will no doubt haveheard those views expressed by defence counsel.

Whether enacting the obligation in statute will have thiseffect upon the investigative agencies, or on the legal profession, is a mootpoint.

One must not be too quick to simply resort to legislation as aremedy without fully considering the implications. Legislation may be used andabused to generate litigation with the consequence of criminal proceedings beingdelayed. That is particularly so where the details of the topic on whichlegislation is being considered are inherently difficult to define.

Moreover, as was recognised byGlynn,[23] it is impossible toprevent breaches of the disclosure obligation by people who are determined to doso. I agree. If the legal profession’s mistrust and scepticism of thepolice practices is on the basis that the police deliberately withhold material,then it is hard to imagine how this mistrust will be eased by the enacting oflegislation.

If internal disciplinary sanctions for breach of theobligation is seen as the key in this, it must be borne in mind that under thecurrent system, if a police officer acts inappropriately in relation to theprovision of material to the Director or to the courts, one presumes the officerwould be able to be dealt with by internal disciplinaryproceedings.[24] Any impact of a threat ofinternal disciplinary sanctions must be viewed in that context.

If the real issue is education of investigative agencies thereare other, and arguably more effective, ways to achieve that aim.

In the United Kingdom the disclosure obligation is nowembodied in statute with the enactment of the Criminal Procedure andInvestigation Act 1996.[25] Coinciding withthe implementation of this Act was a significant education and training programfor all involved, including the investigative agencies. The structure of thelegislation is as follows :-

"1. The police officer investigating an offence isplaced under a statutory duty to record and retain information and materialgathered or generated in the course of the investigation.

2. The prosecution must make "primarydisclosure" to the defence of certain categories of such material whichthey do not intend to use at trial.

3. Compliance by the prosecution with the duty of primarydisclosure triggers off an obligation to the defence to make disclosure of thecase which it does intend to present at trial.

4. Once the defence has made disclosure the prosecutionmust present other categories of material to the defence - secondarydisclosure".[26]

This legislation was enacted at a time where there wereconcerns about miscarriages of justice havingoccurred.[27] Despite that, the obligation ofdisclosure is placed on the prosecution with no parallel obligation beingimposed on the police.[28] The terms of thelegislation appear to place more responsibility for making the decision ofdisclosure in the hands of the investigators than had previously been the case. It has been acknowledged that disclosure under the Act is intended to be lessextensive than at common law.[29] To cover theobligations of the police to disclose to the CPS a code of practice pursuant tosections 23 and 25 of the Act, was issued by the Secretary of State whichrelates to the recording and retaining of material obtained during the course ofa criminal investigation and the responsibility of the police to provide thatmaterial to the prosecution.[30] Interestingly, the application of these disclosure obligations only comes intoeffect after a matter is committed fortrial.[31]

In Australia, the prosecution policies of theCommonwealth,[32] New SouthWales,[33]Tasmania,[34] the NorthernTerritory[35] and Western Australia makeexplicit reference to the obligation on the police. Some of those Statesrequire certification by the police that they have provided all relevantmaterial to the Director of Public Prosecutions. In South Australia, theguideline simply refers to the Director being committed to ensuring that thepolice deliver to the department a full brief including sufficient informationto enable the disclosure guidelines to be properly implemented.

Despite misgivings about the Working Group’s basis forrecommending that disclosure be embodied in legislation, and their perceivedimpact of this, in my view it is nevertheless necessary, whether the disclosureobligation is embodied in policy or statute, that it expressly include theobligation on investigators to provide all relevant material to the prosecution.This is a fundamental recognition of the criminal justice system where thepolice investigate the crime and gather the evidence and the Director of PublicProsecutions prosecutes.

The difficult problem, however, arises when there is anattempt to precisely formulate the obligation. The various terms whichcurrently appear in prosecution policies including"relevant"[36] or"potentially disclosablematerial"[37] or"reasonably to be regarded asrelevant",[38] all involve asubjective assessment. No criticism can be made of that, as it is unavoidablegiven the nature of the obligation. It does involve a subjective assessment andwhat might be relevant and required to be disclosed in one case might not inanother.

In the United Kingdom the Criminal Procedure and InvestigationAct 1996, for the process of primary disclosure, uses the terminology if"in the prosecution opinion the material might undermine the casefor the prosecution"[39] which isalso subjective. Although the secondary disclosure, which is considered to bemore objective, is based on "what might reasonably be expected toassist the accused as disclosed by the defencestatement",[40] this isconfined by the extent of the details provided by the defence and is based onthe schedule of material provided by thepolice.[41]

Further, any attempt to define what matters reflect on thecredibility and reliability of a witness and what type of material is includedwithin the concept "unused material" is problematic. Likewise, the issue of material in the hands of third parties presentsparticular problems. Although guidance can be given on these topics it willnever cover every situation. One only needs to consider recentcases[42] to illustrate the dilemmas and typesof situations that can arise. Whether the material and/or information needs tobe disclosed, ultimately depends on the circumstances of the case.

In Australia there are only limited examples where theprosecution obligation to disclose is already embodied in the statute. One arearelates to the committal proceedings which is an area of the systemtraditionally associated with the disclosure process. Although the principalpurpose of such proceedings is to ensure there is sufficient evidence to supporta charge and put the accused on trial,[43] ithad been argued that such proceedings have the additional purpose of"acquainting the accused with the case which is to be made against himat trial and affording him the opportunity to question witnesses with a view toeliciting evidence which may assist the defence attrial".[44]

The nature of the committal proceedings in some States,including South Australia, has been altered bystatute.[45] This is an area where legislationnow imposes a statutory obligation on the prosecution to disclose. In SouthAustralia the statutory obligation appears in s104(1) of the Summary ProcedureAct 1921 -

"Where a charge of an indictable offence is toproceed to a preliminary examination the prosecution must at least fourteen (14)days before the date appointed for the defendant’s appearance to answerthe charge -

(a) file in Court in accordance with the rules-

(i) statements of witnesses for the prosecution on whichthe prosecutor relies as tending to establish the guilt of thedefendant;

(ii) copies of any documents on which the prosecutor reliesas tending to establish the guilt of the defendant (other than documents that inthe opinion of the prosecutor, are only of peripheral relevance to the subjectmatter of the charge);

(iii) a document describing any other evidentiary material(including documents of peripheral relevance that have not been filed in theCourt) on which the prosecutor relies as an end to establish the guilt of thedefendant together with a statement of the significance that the material isalleged to have; and

(iv) any other material relevant to the charge that isavailable to the prosecution."[46]

The current system is based on a hand-up process, althoughthere does remain a limited ability to cross-examine witnesses on theapplication of either the defence or the prosecution, if it can be establishedthat there are "special reasons" for doingso.[47] In this State it has been suggestedthat the procedure was altered as a direct result of the previous system havingbeen abused by accused persons, or the legal profession, orboth.[48]

Whilst it is recognised[49]that the ability to cross-examine a witness at committal proceedings ought to beretained, it must be acknowledged that the committal process in somejurisdictions now takes place in a criminal justice system which in recent yearshas changed significantly. For example, in South Australia -

Although the committal proceedings in some States have becomevery much a hand-up or paper committal, the disclosure role is stillfulfilled.

Whether acceptance of the recommendations will achieve thedesired outcome

The reason for disclosure is that an accused person isentitled to know what the case against him is, and all other evidence relevantto his guilt or innocence. That is based on an accused’s right to a fairtrial. However, two additional benefits to the criminal justice system are saidto flow from that.

The first is that it encourages those accused who are going toplead guilty to do so at the earliest possible opportunity. The strength of theprosecution case is a primary motivating factor to an accused pleadingguilty.[52] If an accused has been providedwith all relevant materials this enables them to receive advice as to theirlegal position. If the strength of the prosecution case can be demonstrated atan early stage, together with the acknowledged reduction in any sentence imposedfor an early plea, this is said to encourage pleas to be entered.

Secondly, it enables the genuine issues in dispute to beidentified with non contentious matters being resolved prior to trial.

These benefits, if they can be achieved, have the potential tosignificantly impact on the criminal justice system. This impact ranges fromreducing the number of trials through to trials being conducted where theissues, and only the issues genuinely in dispute, are before the jury.

However, when considering whether these recommendations, ifaccepted, will achieve their desired outcome, it is artificial to look at theissues of prosecution disclosure in isolation. If full disclosure is providedat the earliest opportunity, the achievement of these two benefits to the systemare dependent on the accused and defence counsel. This involves a commitment bydefence counsel to provide advice at the earliest stage of proceedings and anacceptance and willingness by them to identifying issues and reaching agreementas to non contentious matters. It is only if there is such co-operation byaccused and the legal profession that these aims can beachieved.[53]

Whether the recommendations 1-6 would achieve the desiredpurpose, is dependant upon what that ultimate purpose is.

If the aim is to achieve full disclosure and a trust in thesystem by the profession, then achieving that by these means is debatable. There is no evidence to support that proposition.

However, if the recommendations are part of a wider schemewhich is designed to reform the system in a manner to reduce delay and ensuretrials are conducted effectively and fairly, that is a different matter.

To achieve the latter purpose there must be some correspondingduty of disclosure imposed on the defence. To ensure full disclosure by theprosecution there must be some identification by defence of the issues that arerelevant to a particular trial. Whilst there have been attempts through variouspre-trial conference systems to encourage both identification of the issues andresolution of non contentious matters, success of these systems has depended onthe co-operation of the legal profession. As was observed by Doyle CJ inLing v Police [54] -

"It may be that the time has come for some limits tobe placed upon the right to silence and for some obligation to be imposed uponthe defence to join in the identification of and limiting of issues in criminalproceedings to the extent inconsistent with the maintenance of the right ofsilence. It is well known that the criminal courts in Australia and in othercountries are struggling to cope with the volume of work coming before them. Itis equally well known that the length of trials is tending to increase. Thesematters are a cause for real concern. It is equally well known that theeffectiveness of current methods of case flow management is limited because,among other things, under Rules such as those that exist in South Australia thecourt has no power to require the defence to disclose the nature and extent ofthe defence case". [55]

It may have reached the stage where to achieve thisco-operation some form of legislation is required. No doubt this would meetsome resistance.[56]

If the prosecution obligation of disclosure is embodied instatute without some meaningful defence disclosure also being required, thiswould not improve the criminal justice system or overcome the fundamental areasof concern in the system, namely delay, late pleas, length of trials etc. Rather, this would provide a further avenue on which to challenge theprosecution process often with the purpose, and invariably with the consequence,of delaying the proceedings. Further, if prosecution disclosure is embodied instatute without any meaningful defence disclosure, this would only entrench whatis perceived by some in the community to be an imbalance in thesystem.[57]

Conclusion

As the High Court recognised in Apostolides, aprosecutor’s responsibility is "not only a lonely responsibility,but a heavy one".[58]

It would be naïve to underestimate the impact of thoseduties and the seriousness and conscientiousness with which that task isapproached. The prosecution fulfilling their obligation to disclose isfundamental to an efficient and just criminal justice system.

However, to achieve any reform in the system there must begoodwill, co-operation and professionalism by all relevant parties.

If legislation is enacted it must be realistically balancedand must not be used to further exacerbate the problems that currentlyexist.

There will always be what is regarded as the "roughand tumble"[59] of a criminal trial. Against that whatever system is ultimately adopted it is important to bearfirmly in mind that the criminal justice system is about achieving justice. Theinterests of justice are not just the interests of the accused but also thevictims of crime, the community, the witnesses, the courts and thejurors.[60] Although it might sound trite, nosystem ought to be implemented or interpreted in such a way as to defeat thatpurpose. To do so might save time but would undermine the criminal justicesystem.

[1]* Associate Director ofPublic Prosecutions, South Australia

Director of Public Prosecutions (SA) Statement of ProsecutionPolicy and Guidelines issued July 1999

at p.4

[2] R v Ratten (1994) VR201 at 214; cited with approval in R v Reci (1997) 70 SASR 78 per DoyleCJ at 97

[3] For example Aronson"Managing Complex Criminal Trials: Reform of the Rules of Evidence andProcedure"

AIJA Incorporated - published 1992; Sallman "Reporton Criminal Trials" Shorter Trials Committee of

Victorian Bar - AIJA published 1985; Law Reform Commissionof New South Wales - "Procedure from

Charge to Trial: Specific Problems and Proposals"Discussion Paper No 14 of 1987; Corns "Anatomy of

Long Criminal Trials" AIJA Incorporated published1997; Reform of Court Rules and Procedures in Criminal

Cases - Conference - Brisbane July 1998; Law ReformCommission of Western Australia "The Right to

Silence" published November 1998; Best Practice Modelfor the Determination of Indictable Charges -

National Legal Aid and Conference of Australian Directors ofPublic Prosecutions published August 1998;

Law Council of Australia - Reform of Pre-trial CriminalDraft Principles - Law Council of Australia

published September 1998

[4] See for example SummaryProcedure Act 1921 (SA) s104; Crimes (Criminal Trials) Act (Vic) 1999,ss6-10;

Justices Act 1902 (NSW) ss 48A and 48B; Justices Act 1902(WA) s100(1)

[5] Director of PublicProsecutions (SA) Statement of Prosecution Policy & Guidelines issued July1999;

Director of Public Prosecutions (NSW) Prosecution Policy& Guidelines issued March 1998; Director of

Public Prosecutions (Commonwealth) Statement on ProsecutionDisclosure issued October 1998; Director of

Public Prosecutions (WA) Statement of Prosecution Policy& Guidelines issued 1 November 1992; Director

of Public Prosecutions (NT) Prosecution Disclosure AnnualReport 1998/99; Director of Public Prosecutions

(Vic) Director’s Policy with Respect to Disclosure1998 OPP Information Bulletin No 73; Director of Public

Prosecutions (Tasmania) Guidelines for ProsecutionDisclosure; Director of Public Prosecutions (ACT)

Prosecution Guidelines

[6] Published August1998

[7] "A Best PracticeModel for the Determination of Indictable Charges" - footnote 5

[8] For example, the SouthAustralian Prosecution Policy issued in July 1992 made no reference to the topicof

disclosure. South Australia’s Prosecution Policy& Guidelines issued July 1999 contains a specific guideline

on the topic of disclosure.

[9] eg Director of PublicProsecution (Commonwealth) Statement on Prosecution Disclosure; Director ofPublic

Prosecutions (SA) Statement of Prosecution Policy andGuidelines; Director of Public

Prosecutions (Tas) Guidelines for Prosecution Disclosure; Director of Public Prosecutions (NT)

Prosecution Disclosure

[10] See for example thearguments referred to in R v Stinchombe (1991) 68 CCC(3d) 1

[11] R v Stinchcombe(supra) at 8

[12] Leng & Taylor"Blackstone’s guide to the Criminal Investigation and ProsecutionAct 1996" at p.8

[13] eg methods of policingwhich are capable of producing a large amount of material includeelectronic

surveillance and the use of "Crime Stoppers"and other public requests for assistance

[14] Supra at note5

[15] [1998] 1 Cr App R 66

[16] Supra at75-76

[17] Report publishedSeptember 1999 - recommendations 1-6

[18] "A Best PracticeModel for the Determination of Indictable Charges" - footnote 5

[19] See discussion under"Whether acceptance of the recommendations will achieve the desiredoutcome"

[20] Working Group Report(supra) at p.25

[21] Mack & Anleu notedin their study of guilty pleas that it was generally accepted that the DPPcomply with

their obligations of disclosure but there were concernsexpressed about police practices: Mack & Anleu

"Guilty Pleas: Discussion and Agreement" (1996) 6 JJA 8 at 10; see PJL Rofe’s QC "The Obligationsof

the DPP" paper presented to the Criminal LawConference - Hahndorf 1997

[22] The view thatlegislation would increase the likelihood of a proper understanding by thepolice of their duty,

was a view expressed in the United Kingdom prior to theimplementation of the Criminal Procedures and

Investigation Act 1996; see Glynn -"Disclosure" [1993] Crim LR 841 at 847. Glynn also cites theRoyal

Commission on Criminal Procedure (Report 1981) atparagraph 96 and O’Connor "Prosecution Disclosure;

Principles Practice and Justice" [1992] Crim LR 464at 476 for this proposition

[23] Supra at 847

[24] eg Police Regulations(SA) 1999 sections 11-15. It is difficult to envisage that conduct could not bedealt

with as an offence; there would also be sanctions as tothe use of evidence in court, eg R v Cox (1997) 196

LSJS 3

[25] In operation sinceApril 1997

[26] Sprack "TheCriminal Procedure and Investigations Act: (1) The Duty of Disclosure"(1997) Crim LR

308; for further information see Archibald 20 publicedition at paragraphs 12-45 ff

[27] See O’Connor"Prosecution Disclosure: Principal Practice and Justice" (1992)Crim LR 464; The argument

put by the Government in favour of the current Englishsystem was that it sought to redress the imbalance

in the criminal justice system - Leng and Taylor (1996)"Blackstones Guide to the Criminal Procedure and

Investigation Act 1996" at 8-10

[28] Hill QC - "TheSeduction of the Fix" conference paper AIJA Conference - Brisbane 1998

[29] R v Director ofPublic Prosecutions ex parte Lee [1999] 2 Crim App R 304 at317

[30] See Archibald’s2000th edition 12-100 ff

[31] R v Director ofPublic Prosecutions ex parte Lee (1999) 2 Crim App R 304; prior tothe enactment of

the Criminal Procedure and Investigation Act 1996, theAttorney General had issued guidelines in

relation to the obligation to disclosure which guidelinesare set out in (1982) 74 Crim App R 302. In

addition there was a pre-trial system which"encouraged" the defence counsel to identify issues. That

system is not dissimilar to that now adopted in SouthAustralia where counsel is required to complete a form

at the time of arraignment - although there is noreference to "issues" in the South Australian form

[32] Director of PublicProsecutions (Commonwealth) Statement of Prosecution Policy issued October 1998-

section F)

[33] Director of PublicProsecutions (NSW) Prosecution Policy and Guidelines issued March 1998 -guideline

11 - a specific guideline was issued to police pursuant tosection 14 of the Director of Public Prosecutions

Act 1986 which is annexed as Appendix D to the ProsecutionPolicy and Guidelines

[34] Director of PublicProsecutions (Tas) Prosecution Guidelines

[35] Director of PublicProsecutions (NT) Prosecution Disclosure Annual Report 1998-1999

[36] Director of PublicProsecutions (Commonwealth) Statement of Prosecution Disclosure issued October1998

Parts D and E; Director of Public Prosecutions (NSW)Prosecution Policy and Guidelines issued March

1998 guideline 11; Director of Public Prosecution (NT)Prosecution Disclosure

[37] Director of PublicProsecutions (Commonwealth) Statement of Prosecution Policy Disclosure - PartF

[38] Director of PublicProsecutions (NSW) Prosecution Policy and Guidelines issued March 1998 -guideline 11

[39] Section 3(1)(a)

[40] Section7(2)(a)

[41] Sprack "TheCriminal Procedure and Investigation Act 1996(1) The Duty of Disclosure"(1997) Crim LR

308 at 316

[42] In R v Brown(1998) 1 Crim App R 66 the court considered the issue of material that relatedto the credibility

of a defence witness; in R v Reci (1997) 70 SASR78, the court considered material which had been provided

to the prosecution by a co-accused’s counsel in anattempt to resolve the matter relating to their accused,

which material was provided to the DPP on the undertakingthat it would be returned to the defence counsel

[43] Barton v R(1980) 147 CLR 75 at 79; R v Harry ex parte Eastway (1985) 39 SASR 203at 208

[44] R v Harry exparte Eastway (supra) at 208 per King CJ

[45] eg Summary ProcedureAct 1921 (SA) s104; Justices Act 1902 (NSW) ss 48A & 48B;

Justices Act 1902 (WA) section 100 (1)

[46] For information on thissection see Goldsmith v Newman (1992) 59 SASR 404

[47] Summary Procedure Act(SA) 1921 section 106

[48] PJL Rofe QC "FairTrial and Reform of Criminal Law" paper presented to the Law Society inSouth

Australia - April 1995

[49] "A Best PracticeModel for the Determination of Indictable Charges"

[50] Summary Procedure Act(SA) 1921 section 107(1a)

[51] Director of PublicProsecutions (SA) Statement of Prosecution Policy and Guidelines - decision toprosecute

[52] Mack & Anleu -"Guilty Pleas: Discussion and Agreement" (1996) 6 JJA 8 at 11; Mack & Anleu -

"Reform of Pre Trial Criminal Procedure: GuiltyPleas" (1998) 22 Crim LR 263 and see R v Stinchcombe

(supra) at 7-8

[53] For examples of whatcan occur without co-operation see R v Wilson & Grimwade (1995) 1 VR163;

Phillips: "Practical Advocacy" (1994) 68 ALJ384; Ipp "Lawyers Duties to the Court" (1998) 114 LQR

63 at 96-102

[54] Ling v Police(1996) 188 LSJS 488

[55] Supra at 494; forfurther arguments on this topic - the Honourable Justice J Badgery - Parker"The

Criminal Process in Transition: Balancing Principle andPragmatism Part 2" (1995) 4 JJA 193

[56] For example Flatman QCand Bagaric "Accused’s Disclosure - Measured Response or Abrogationof

the Principle of the Presumption of Innocence?"(1999) 23 Crim LJ 327

[57] Flatman QC and Bagaric(supra) at 329; in the United Kingdom it was this imbalance which was arguedas

the basis for the enactment of the Criminal Procedure andInvestigation Act - Leng & Taylor 1996 -

"Blackstone’s Guide to the Criminal Procedureand Investigation Act 1996" at 8-10

[58] R v Apostolides(1984) 154 CLR 563 at 575-576

[59] R v Cox (1998)196 LSJS 3 at 8

[60] His Honour Justice JBadgery - Parker "The Criminal Process in Transition: BalancingPrinciples and

Pragmatism Part 1" (1995) 4 JJA 171 at 172; Director of Public Prosecutions (SA) Prosecution Policy and

Guidelines at p.4