Author: Martin, B. Date: 03/07/1998 Venue: Reforming Court Process for Law Enforcement - new directions: a conference on reform of court rules and procedures in criminal and civil law enforcement cases, Brisbane, 3 - 4 July 1998 (AIJA)
1. Should a disclosure obligation be imposed upon defence?
The financial cost to the community of administering the criminal justice system is substantial. While the public has an interest in ensuring that the proceedings are fair to an accused, it is also concerned that proceedings be efficient and provide the jury with the best possible assistance. The United Kingdom has introduced a disclosure regime as has Victoria (summaries of those regimes from the NSW Law Reform Commission's Discussion Paper 41 on the right to silence are attached). As Doyle CJ pointed out in R v Ling (1996) 90 A CRIM R 376 at p.382; "It may be that the time has come for some limits to be placed upon the right of silence and for some obligation to be imposed upon the defence to join in the identification of and limiting of issues in criminal proceedings to an extent inconsistent with the maintenance of the right of silence. It is well known that criminal courts in Australia and in other countries are struggling to cope with the volume of work coming before them. It is equally well known that the length of trials is tending to increase. These matters are a cause for real concern. It is equally well known that the effectiveness of current methods of case flow management is limited because, among other things, under rules such as those that exist in South Australia, the court has no power to require the defence to disclose the nature and extent of the defence case. The appropriate balance between the responsibility of the court for the efficient conduct of cases before it, and so the width of its powers of case management on the one hand, and the operation of the right of silence on the other hand, is an important issue." The need for defence disclosure is acute. Although the origins of the momentum for change in Australia may be found in the adverse reactions to the difficulties created for courts and juries by the lengthy and complex fraud trials, the obligation to disclose should not be limited to such trials. the clarification of issues and evidence for juries is essential in all trials. Substantial savings can be achieved in the vast majority of trials thereby easing the financial burden on the community and creating the opportunity for more funds to be made available to assist those who are genuinely disadvantaged. The critical question is whether an obligation of disclosure can be imposed on an accused consistently with the public interest in ensuring that every accused receives a fair trial.
2. When should the obligation arise?
I have concerns about modification at the investigative stage. We should learn from the UK experience over a reasonable period. There are obvious difficulties associated with imposing the obligation at the investigative stage and, if imposed, effective protective mechanisms would be required. In this context it is important to bear in mind that adverse comments can already be made if an accused gives a version in evidence inconsistent with a version given to investigators. It is only if an accused declines to answer questions that adverse comment is not permitted. Different considerations apply when an accused is before the trial court. The committal proceedings and any other material provided will have enabled the accused to see the full extent of the prosecution case. Assuming legal representation, ample opportunity will have existed to obtain advice, consider options and give instructions. Subject to exceptional cases and the ability to cater for an unrepresented and genuinely disadvantaged accused, the appropriate time for the imposition of the obligation is in the pre-trial process under the control of the trial court.
3. Extent of the obligation
The aims are to assist the jury in arriving at a decision as to whether the prosecution has proved its case and to ensure the most efficient conduct of trials consistent with ensuring the accused receives a fair trial. Requiring an accused to identify the essence of the defence, admit uncontested evidence, identify the issues in dispute and give notice of particular matters such as alibis and expert evidence is consistent with those aims. Such an obligation is not a reversal of or a diminution of the onus of proof. It is not an adequate response to cry foul on the basis that it amounts to an abrogation of a "fundamental right". There are many "rights" that must be qualified in the overall interests of the community. Those opposing defence disclosure should identify why disclosure is unfair to an accused or is inconsistent with a fair trial. The qualification I support can achieve its purposes consistently with a fair trial.
4. Sanctions for non-compliance
The Victorian experience demonstrates the need for a compulsory system and an effective sanction for non-compliance. S15 of the Victorian Crimes (Criminal Trials) Act 1993 enables the presiding judge or, with leave, a party to comment if the accused or the prosecutor (with leave) introduces evidence at the trial which was not disclosed prior to the trial and which represents a departure from the case disclosed prior to trial. S19 empowers the court to award costs against either party or a party's counsel or solicitor personally if the court is satisfied there has been an unreasonable failure by the party or the party's counsel or solicitor to comply with the act or an order made under the act. S5 of the Sentencing Act 1991 (Vic.) provides a basis for a limited sanction in respect of sentence. If, having declined to concede or agree facts or elements of an offence, the defence subsequently does not seriously contest the evidence, the judge may have regard to that matter in sentencing as indicating a lack of remorse on the part of the offender. The only effective sanction is to permit the judge and the prosecutor to comment adversely both in the circumstances already prescribed in Victoria and in the event that an accused declines to disclose the essence of the defence and/or to agree evidence and identify issues. Should consideration be given to making non-compliance directly relevant to the sentencing process as an aggravating feature?
5. Protective mechanisms
The legislation should expressly confer a discretion upon the trial judge both with respect to the imposition of the obligation and the sanctions for non-compliance. Disclosure should be regarded as the norm and the sanction of adverse comment should ordinarily be permitted following non-compliance. The discretion to dispense with compliance or modify the obligation of disclosure and to refuse to permit adverse comment should be the exception that requires a basis for the exercise of that discretion. Broadly speaking, the discretion should be based upon consideration of unfairness to an accused other than the tactical disadvantage of having to make disclosure. Particular care is needed in this regard with respect to the unrepresented accused.
6. Towards a solution
I recommend the adoption of the Victorian model with the addition of an obligation to disclose the essence of the defence and an effective sanction for non-compliance in the form of adverse comment as discussed. The regime should be mandatory and not dependent upon whether the parties wish to make an application or the decision by a Judge to invoke the procedures. Control by the Court through a series of compulsory pre-trial hearings/conferences and discretionary protective mechanisms is essential. Rulings should be generally binding on the trial judge unless the interests of justice require that a ruling be varied or discharged. No appeal should be possible until the conclusion of the trial.