The NSW Government has introduced the Criminal Procedure Amendment (Pre-trial Disclosure Bill 2018 (NSW) (‘the Bill’) on 15 August 2018. The Bill reflects the recommendations of the 2017 review of the
Criminal Procedure Act 1986 (NSW) to revisit the mandatory pre-trial disclosure provisions by the prosecutor and the accused person.
Background to the Bill
The provisions of the Criminal Procedure Act 1986 (NSW) relate to mandatory pre-trial disclosures that were brought in by the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 (NSW). In 2017, the NSW Department of Justice conducted a review of the amending
Act. This Bill proposes to amend the Criminal Procedure Act 1986 (NSW) to incorporate the recommendations of the review of the amending Act.
The Bill proposes to amend the Criminal Procedure Act 1986 (NSW) to make the following provisions:
- Requiring the prosecutor to provide the accused with a copy of the transcript of an
audio or visual recording, if the prosecutor proposes to adduce the transcript at
- Requiring the defence response to the prosecution’s case to include matters such as
copies of reports of expert witnesses that the accused intends to call at trial, any
issue that is proposed to be raised by the accused with respect to any exhibit disclosed
by the prosecutor, and any request or the editing of recordings or transcripts that
the prosecutor intends to adduce at the trial.
- Requiring the prosecution response to the defence response to contain notice as to
whether the prosecutor wishes to dispute the editing of recordings or transcripts.
Attorney-General Mark Speakman noted in his second reading speech:
‘The purpose of this bill is to reduce delays in criminal trials by expanding pre-trial
disclosure requirements for indictable criminal matters in the District Court of New
South Wales and the Supreme Court of New South Wales. Specifically, the bill requires
the defence to disclose four additional matters: any expert reports that it intends
to rely on, whether it intends to challenge the continuity of custody of a prosecution
exhibit, whether it will seek to amend the indictment or to make an application for
separate trials and whether it will seek edits to audio or video evidence that the
prosecutor intends to rely on. Courts already reserve discretion to require the defence
to disclose three of these matters. The Law Reform Commission has suggested that their
disclosure be made mandatory, a recommendation on which this bill delivers.’
He also observed that the Bill proposes to impose additional obligations on the prosecution
for the purpose of fulfilling a policy objective for mandatory pre-trial disclosures:
‘By expanding mandatory pre-trial disclosure in these selective ways, the bill seeks
to make trials more efficient and transparent. There is a strong policy rationale
for mandatory pre-trial disclosure. As the Law Reform Commission noted in a 2012 report,
pre-trial disclosure "can result in shorter and more streamlined trials" by focusing
the trial, and prosecution and defence resources on the main issues in contention.
Late disclosure of disputed matters can lead to trials being delayed, adjourned or
vacated, sometimes on their first day. This impacts court backlogs as well as prosecution
and defence resources, and places strain on victims and witnesses who are on stand-by
to give evidence.’
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