Statement on Disclosure
Statement on Disclosure
The Commonwealth Director of Public Prosecutions Statement on Disclosure in Prosecutions Conducted by the Commonwealth sets out the CDPP’s expectations on how the prosecution should fulfil its duty of disclosure.
The disclosure test is set out at paragraph 3 and provides:
Subject to any claim of public interest immunity, legal professional privilege, or any statutory provision to the contrary, in prosecutions conducted by the Commonwealth, the prosecution must, in accordance with this Statement:
a) first, fulfil any applicable local statutory obligations relating to disclosure; and
b) second, if not already required by the applicable state or territory provisions, also disclose to the accused,
any material which can be seen on a sensible appraisal by the prosecution:
(i) to be relevant or possibly relevant to an issue in the case; or
(ii) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
or to hold out a real as opposed to a fanciful prospect of providing a lead to evidence which goes to (i) or (ii) above.
Paragraph 4 contains various new exceptions to the duty to disclose material, as follows:
- relevant only to the credibility of defence (as distinct from prosecution) witnesses;
- relevant only to the credibility of the defendant;
- relevant only because it might deter the defendant from giving false evidence or raising an issue of fact which might be shown to be false;
- relevant in that it might alert and prevent the defendant from creating a trap for himself/herself based on suspect evidence (i.e. a suspect alibi), if at the time the prosecution became aware of the material it was not a relevant issue or a potentially relevant issue in the contemplated proceedings
Paragraph 7 makes it clear that the CDPP is available to assist and work with agencies in discharging the Prosecution’s duty of disclosure.
Paragraph 12 provides that other material which meets the Disclosure test may be held by the prosecution and needs to be disclosed i.e. gathered or come to the attention of investigators or otherwise held within any part of the agency or third party agency.
Paragraphs 20-21 specifically cover disclosure issues relating to expert/scientific witnesses.
CDPP Summary of State and Territory Disclosure regimes
The State and Territory statutory disclosure obligations referred to in that Statement are set out in the “CDPP Summary of State and Territory Disclosure Regimes”