Chauvel Charles: Criminal Procedure Bill — In Committee 
Chauvel Charles: Criminal Procedure Bill — In Committee 
[Volume:638;Page:8297] 
CHARLES CHAUVEL (Labour) 
: 
 I am pleased to rise to speak in the Committee stage concerning Part 2. As previous speakers have indicated this part will create a codification of the existing disclosure regime in criminal cases. It is important in my view to undertake this exercise. The current law is loosely based on the regime that came into force with the Official Information Act. That legislation of course was never intended by its framers as a full statute relating to disclosure in criminal matters; it is legislation that the judges have had to fashion into that sort of disclosure regime. So rather than relying on legislation that was not really intended for the purpose and on judge-made law created under the legislation—somewhat imaginatively it might be said—we have the opportunity to fashion a custom-made disclosure regime in criminal cases. It is appropriate to take that opportunity. 
As the Minister indicated a fourfold disclosure regime is intended: initial disclosure on the part of the prosecution followed by full disclosure. It is pleasing to note that the legislation indicates that the continuing disclosure obligation on the part of the Crown and the prosecution in these matters is preserved and that it persists from the time of the commencement of a criminal proceeding right through the prosecution of the matter and through to the exhaustion of any appeals. It is appropriate that the State should bear that burden on a continuing basis at all times. 
 The legislation as has been said also sets out a regime regulating disclosure by the defence—a novel matter but a matter that ought to be dealt with by statute—and where as will be seen a number of competing interests are balanced. The disclosure regime relating to third parties is very significant because obviously in criminal matters third parties will often have access to important information that will potentially be of assistance to either the prosecution or the defence. It ought to be the case that the court has an orderly way in which to be able to bring that information before it following a hearing relating to its relevance and the court’s satisfying itself that the party intended or named in the application actually has possession of it. 
Mention was made of the diagram appearing after clause 18(2). In my view that diagram is a very helpful overview of the regime that applies. It will be of enormous assistance particularly to lay people trying to understand just how disclosure obligations operate in District Court trials. I think it is perhaps a somewhat novel way to describe and set out obligations in a statute but I think the Law and Order Committee is to be praised for having set it out in such clear terms. Clearly the diagram does not purport to create the obligations but simply to describe them and it does so in a helpful way. 
I point to another couple of provisions in Part 2 that I think are worthy of mention. Clause 25 relating to service of applications for disclosure clearly contemplates that such applications might be served by electronic means which is clearly appropriate in the modern era. Facsimile transmission is also mentioned and it is good to have that recognised explicitly in the statute. 
Clause 27 describes in detail the disclosure obligations on the prosecution which are to operate within 21 days. In my view clause 27 sets out a very comprehensive and appropriate code for initial disclosure. Clause 28 goes on to then describe the full disclosure obligations. Again there is a very full and fair description in the code that will apply to prosecution obligations. It is a far more satisfactory state of affairs than exists under the current attempt to fashion a judge-made code largely based on the Official Information Act. 
Clause 29 provides for additional disclosure. It indicates that the defendant can if he or she is dissatisfied with any aspect of the disclosure request additional disclosure from the prosecution. This clause provides for the additional disclosure that may be requested from the prosecution. Where a request that has been made is declined the prosecutor must give reasons for declining. 
Clause 30 makes it clear that there is no requirement to invent or come up with new information simply because of a disclosure request. Clause 31 sets out a very comprehensive code under which the reasons for withholding information are set out. They are more comprehensive than those set out in the Official Information Act. They are very clear and that will help parties to criminal litigation understand just why disclosure is declined in any particular case. 
Clauses 32 and 33 go on to provide for further restrictions. Addresses of witnesses and informants can be protected—clearly that is an appropriate balancing exercise on the part of the House and Parliament should go that way. Trade secrets are also protected in certain cases and the committee has clarified the definition there in a helpful way. 
Clause 35 deals with the disclosure obligations upon defendants. Again a comprehensive code is set out that will make it clear what obligations exist. If alibi defences are to be brought up then proper notice under clause 37 will need to be given allowing for preparation in advance of any such defence being advanced. Expert witnesses are subject to a similar notice requirement by clause 38. If expert evidence is to be relied upon then the prosecution is to have a chance to digest either the brief of evidence in advance or a fair summary of it so that again the interests of justice are preserved and there is not defence by ambush in these cases. 
Clause 39 and those clauses that follow in Part 2 deal with disclosure by non-parties. As I said it is a novel part of the regime. Clearly there will be situations where information that is vital to either the prosecution or the defence in criminal proceedings exists and that information is held by third parties. The legislation would set out a clear way for making an application for a party to disclose such material. 
Clause 40 sets out the tests on which the court must base its decision as to whether to grant a hearing for the disclosure of third-party material. It is a low threshold and it seems appropriate. The consequences and the procedures by which third-party disclosure should be dealt with are also set out in the relevant clauses. 
One other point I would make is that the legislation sets out a sensible test for admissibility in the event that information exists it is not disclosed and it is then sought to be relied upon at the hearing. This is not a rigid test. Clause 47 sets out an interest of justice test so that the court may determine whether in all fairness to admit the evidence grant an adjournment or to do anything else that does not prejudice the rights of the parties and the fairness of the procedure. It is unlike the inflexible test that operates for example in the US. There is not a “fruit of the poison tree” test. The court has all the powers it requires in the interests of justice to decide whether to admit the information to grant an adjournment or to allow other things to be done in fairness to the parties.