: Mandatory defence disclosure in NSW

Mandatory defence disclosure in NSW

David Hamer
New South Wales

The Evidence of Silence reforms (above), were accompanied by amendments to the Criminal Procedure Act 1986 requiring more extensive prosecution disclosure, and making it mandatory for the defence to disclose its case ahead of trial. Whereas the silence reforms were largely a rhetorical exercise, the disclosure reforms have far-reaching practical significance.

The Government has held out the disclosure reforms as advancing case-management and bringing efficiency gains. However, these claims are questionable. Prior to the amendments, defendants were already required to disclose certain defences, such as alibi and mental impairment. Courts already had the power to order more extensive defence disclosure where it appeared appropriate.

The NSW Trial Efficiency Working Group considered the current balance was right. In its 2009 report which identified the causes of unnecessary length of criminal trials, and determining possible solutions, the Working Group indicated that many cases were relatively straightforward, and advance disclosure was unnecessary. Blanket disclosure requirements, it suggested, would ‘introduce inefficiencies’. The Working Group, recalled to consider the Government’s proposals over the summer, maintained its view. It does not support these reforms.

The reforms will place increased demands on the prosecution and the defence. Poor and disadvantaged defendants in particular will struggle to meet these demands, as the failure to comply may carry serious consequences. A defendant who has not given proper notice of his or her defence may be prevented from raising it at trial.

One of the chief functions of the presumption of innocence and right to silence is to redress the imbalance in power and resources between the state-sponsored prosecution and the individual defendant. These reforms tilt the playing field of NSW criminal justice.

DAVID HAMER teaches Law at the University of Sydney.

(2013) 38(2) AltLJ 129
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