NSW Proposes Amendments to Mandatory Pre-Trial Disclosures

Monday 20 August 2018 @ 10.40 a.m. | Legal Research

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.

Main Amendments

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 trial;
  • 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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Criminal Procedure Amendment (Pre-Trial Disclosure) Bill 2018 (NSW) and second reading speech, as published on TimeBase LawOne.

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