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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Criminal Procedure Amendment
(Pre-trial Disclosure) Bill 2001
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Criminal Procedure Act 1986 No 209 2
4 Amendment of Director of Public Prosecutions Act 1986
No 207 2
5 Amendment of Crimes (Sentencing Procedure) Act 1999
No 92 2
6 Review of pre-trial disclosure provisions enacted by this
Act 2
Schedules
1 Amendment of Criminal Procedure Act 1986 3
2 Amendment of Director of Public Prosecutions Act 1986 16
3 Amendment of Crimes (Sentencing Procedure) Act 1999 17
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2001
New South Wales
Criminal Procedure Amendment
(Pre-trial Disclosure) Bill 2001
Act No , 2001
An Act to amend the Criminal Procedure Act 1986 with respect to pre-trial
disclosure by the prosecution and the defence; to make related amendments to the
Crimes (Sentencing Procedure) Act 1999 and the Director of Public Prosecutions
Act 1986; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Criminal Procedure Amendment (Pre-trial Disclosure)
Act 2001.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Criminal Procedure Act 1986 No 209
The Criminal Procedure Act 1986 is amended as set out in Schedule 1.
4 Amendment of Director of Public Prosecutions Act 1986 No 207
The Director of Public Prosecutions Act 1986 is amended as set out
in Schedule 2.
5 Amendment of Crimes (Sentencing Procedure) Act 1999 No 92
The Crimes (Sentencing Procedure) Act 1999 is amended as set out in
Schedule 3.
6 Review of pre-trial disclosure provisions enacted by this Act
(1) The Attorney General is to review the pre-trial disclosure procedures
enacted by this Act to determine:
(a) whether they are utilised by the courts and whether they have
been effective in reducing delays in complex criminal trials, and
(b) the cost impacts of the procedures.
(2) The review is to be undertaken as soon as possible after the period of
18 months after the commencement of this section.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of that 18-month period.
Page 2
Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Amendment of Criminal Procedure Act 1986 Schedule 1
Schedule 1 Amendment of Criminal Procedure
Act 1986
(Section 3)
[1] Section 42 Listing for mention following committal for trial
Omit the section.
[2] Part 3, Division 2A
Insert after Division 2 of Part 3:
Division 2A Pre-trial disclosure--case management
47A Purpose
The purpose of this Division is to enable the court, on a case by
case basis, to impose pre-trial disclosure requirements on both
the prosecution and the defence in order to reduce delays in
complex criminal trials.
47B Definitions
In this Division:
court means the Supreme Court or District Court.
criminal proceedings means proceedings before the Supreme
Court or District Court relating to the trial of a person on
indictment.
pre-trial disclosure requirements means requirements for pre-
trial disclosure imposed by the court in accordance with this
Division.
47C Court may order pre-trial disclosure in particular case
(1) After the indictment is presented in any criminal proceedings,
the court may order both the prosecuting authority and the
accused person to undertake pre-trial disclosure in accordance
with this Division.
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Schedule 1 Amendment of Criminal Procedure Act 1986
(2) The court may order pre-trial disclosure only if the court is
satisfied that it will be a complex criminal trial having regard
to:
(a) the likely length of the trial, and
(b) the nature of the evidence to be adduced at the trial, and
(c) the legal issues likely to arise at the trial.
(3) The court may order pre-trial disclosure on application of any
party or on the court's own initiative.
(4) The court may order pre-trial disclosure only if the court is
satisfied that the accused person will be represented by a legal
practitioner.
(5) The court may limit pre-trial disclosure to any specified aspect
of the proceedings.
47D Pre-trial disclosure requirements--general
(1) Pre-trial disclosure is to be made as follows:
(a) the prosecuting authority is to give the accused person
notice of the case for the prosecution,
(b) after the accused person has been given notice of the
case for the prosecution, the accused person is to give
the prosecuting authority notice of the defence
response to the case for the prosecution (referred to in
this Division as the defence response),
(c) after the prosecuting authority has been given notice of
the defence response, the prosecuting authority is to
give the accused person notice of the prosecution
response to the defence response.
(2) Pre-trial disclosure is to be made in accordance with a timetable
determined by the court.
(3) For the purposes of the pre-trial disclosure requirements, a
reference to the accused person is to be read as including a
reference to the legal practitioner of the accused person.
Page 4
Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Amendment of Criminal Procedure Act 1986 Schedule 1
47E Disclosure of case for the prosecution
The notice of the case for the prosecution is to contain the
following:
(a) a copy of the indictment,
(b) an outline of the prosecution case,
(c) copies of statements of witnesses proposed to be called
at the trial by the prosecuting authority,
(d) copies of any documents or other exhibits proposed to
be tendered at the trial by the prosecuting authority,
(e) if any expert witnesses are proposed to be called at the
trial by the prosecuting authority, copies of any reports
by them that are relevant to the case,
(f) a copy of any information in the possession of the
prosecuting authority that is relevant to the reliability or
credibility of a prosecution witness,
(g) a copy of any information, document or other thing
provided by police officers to the prosecuting authority,
or otherwise in the possession of the prosecuting
authority, that may be relevant to the case of the
prosecuting authority or the accused person, and that has
not otherwise been disclosed to the accused person,
(h) a copy of any information, document or other thing in
the possession of the prosecuting authority that is
adverse to the credit or credibility of the accused person.
47F Defence response
(1) The notice of the defence response is to contain the following:
(a) notice as to whether the accused person proposes to
adduce evidence at the trial of any of the following
contentions:
(i) insanity,
(ii) self-defence,
(iii) provocation,
(iv) accident,
(v) duress,
(vi) claim of right,
(vii) automatism,
(viii) intoxication,
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Schedule 1 Amendment of Criminal Procedure Act 1986
(b) if any expert witnesses are proposed to be called at the
trial by the accused person, copies of any reports by
them proposed to be relied on by the accused person,
(c) the names and addresses of any character witnesses who
are proposed to be called at the trial by the accused
person (but only if the prosecution has given an
undertaking that any such witness will not be
interviewed before the trial by police officers or the
prosecuting authority in connection with the
proceedings without the leave of the court),
(d) the accused person's response to the particulars raised
in the notice of the case for the prosecution (as
provided for by subsection (2)).
(2) The accused person's response to the particulars raised in the
notice of the case for the prosecution is to contain the
following:
(a) if the prosecuting authority disclosed an intention to
adduce expert evidence at the trial, notice as to whether
the accused person disputes any of the expert evidence
and which evidence is disputed,
(b) if the prosecuting authority disclosed an intention to
adduce evidence at the trial that has been obtained by
means of surveillance, notice as to whether the accused
person proposes to require the prosecuting authority to
call any witnesses to corroborate that evidence and, if
so, which witnesses will be required,
(c) notice as to whether the accused person proposes to
raise any issue with respect to the continuity of custody
of any proposed exhibit disclosed by the prosecuting
authority,
(d) if the prosecuting authority disclosed an intention to
tender at the trial any transcript, notice as to whether the
accused person accepts the transcript as accurate and, if
not, in what respect the transcript is disputed,
(e) notice as to whether the accused person proposes to
dispute the accuracy or admissibility of any proposed
documentary evidence or other exhibit disclosed by the
prosecuting authority,
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Amendment of Criminal Procedure Act 1986 Schedule 1
(f) notice as to whether the accused person proposes to
dispute the admissibility of any other proposed evidence
disclosed by the prosecuting authority and the basis for
the objection,
(g) notice of any significant issue the accused person
proposes to raise regarding the form of the indictment,
severability of the charges or separate trials for the
charges.
47G Prosecution response to defence response
The notice of the prosecution response to the defence response
is to contain the following:
(a) if the accused person has disclosed an intention to
adduce expert evidence at the trial, notice as to whether
the prosecuting authority disputes any of the expert
evidence and, if so, in what respect,
(b) if the accused person has disclosed an intention to
tender any exhibit at the trial, notice as to whether the
prosecuting authority proposes to raise any issue with
respect to the continuity of custody of the exhibit,
(c) if the accused person has disclosed an intention to
tender any documentary evidence or other exhibit at the
trial, notice as to whether the prosecuting authority
proposes to dispute the accuracy or admissibility of the
documentary evidence or other exhibit,
(d) notice as to whether the prosecuting authority proposes
to dispute the admissibility of any other proposed
evidence disclosed by the accused person, and the basis
for the objection,
(e) a copy of any information, document or other thing in
the possession of the prosecuting authority, not already
disclosed to the accused person, that might reasonably
be expected to assist the case for the defence,
(f) a copy of any information, document or other thing that
has not already been disclosed to the accused person
and that is required to be contained in the notice of the
case for the prosecution.
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Schedule 1 Amendment of Criminal Procedure Act 1986
47H Disclosure requirements are ongoing
(1) The obligation to undertake pre-trial disclosure continues until
any of the following happens:
(a) the accused person is convicted or acquitted of the
charges in the indictment,
(b) the prosecution is terminated.
(2) Accordingly, if any information, document or other thing is
obtained or anything else occurs after pre-trial disclosure is
made by a party to the proceedings, that would have affected
that pre-trial disclosure had the information, document or thing
been obtained or the thing occurred before pre-trial disclosure
was made, the information, document, thing or occurrence is to
be disclosed to the other party to the proceedings as soon as
practicable.
47I Court may waive requirements
(1) A court may, by order, waive any of the pre-trial disclosure
requirements that apply under this Division.
(2) The court may make such an order on its own initiative or on
the application of the prosecuting authority or the accused
person.
(3) An order may be made subject to such conditions (if any) as
the court thinks fit.
47J Requirements as to notices
(1) A notice under this Division is to be in writing.
(2) Any notice purporting to be given under this Division on behalf
of the accused person by his or her legal practitioner is, unless
the contrary is proved, taken to have been given with the
authority of the accused person.
(3) A notice under this Division that is required to be given to a
prosecuting authority may be given to the prosecuting authority
in the following manner, or as otherwise directed by the court:
(a) by delivering it to the prosecuting authority,
(b) by leaving it at the office of the prosecuting authority,
(c) by sending it by post or facsimile to the prosecuting
authority at the office of the prosecuting authority,
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Amendment of Criminal Procedure Act 1986 Schedule 1
(d) by sending it by electronic mail to the prosecuting
authority, but only if the prosecuting authority has
agreed to notice being given in that manner.
(4) A notice under this Division that is required to be given to an
accused person may be given to the accused person in the
following manner, or as otherwise directed by the court:
(a) by delivering it to the accused person,
(b) by leaving it at the office of the legal practitioner of the
accused person,
(c) by sending it by post or facsimile to the legal
practitioner of the accused person at the office of the
legal practitioner,
(d) by sending it by electronic mail to the legal practitioner,
but only if the legal practitioner has agreed to notice
being given in that manner.
47K Copies of exhibits and other things not to be provided if
impracticable
(1) A copy of a proposed exhibit, document or thing is not required
to be included in a notice under this Division if it is impossible
or impractical to provide a copy.
(2) However, the party required to give the notice:
(a) is to specify in the notice a reasonable time and place at
which the proposed exhibit, document or thing may be
inspected, and
(b) is to allow the other party to the proceedings a
reasonable opportunity to inspect the proposed exhibit,
document or thing referred to in the notice.
47L Personal details not to be provided
(1) The prosecuting authority is not to disclose in any notice under
this Division the address or telephone number of any witness
proposed to be called by the prosecuting authority, or of any
other living person, unless:
(a) the address or telephone number is a materially relevant
part of the evidence, or
(b) the court makes an order permitting the disclosure.
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Schedule 1 Amendment of Criminal Procedure Act 1986
(2) An application for such an order may be made by the accused
person or the prosecuting authority.
(3) The court must not make such an order unless satisfied that the
disclosure is not likely to present a reasonably ascertainable risk
to the welfare or protection of any person or that the interests
of justice (including the accused person's right to prepare
properly for the hearing of the evidence for the prosecution)
outweigh any such risk.
(4) This section does not prevent the disclosure of an address if the
disclosure does not identify it as a particular person's address,
or it could not reasonably be inferred from the matters
disclosed that it is a particular person's address.
(5) An address or telephone number that must not be disclosed
may, without reference to the person who made the statement
being disclosed, be deleted from that statement, or rendered
illegible, before the statement is given to the accused person.
47M Requirements as to statements of witnesses
(1) A statement of a witness that is included in a notice under this
Division may be in the form of questions and answers.
(2) If a notice includes a statement that is, wholly or in part, in a
language other than English, there must be annexed to it a
document purporting to contain a translation of the statement,
or so much of it as is not in the English language, into the
English language.
47N Exemption for matters disclosed in brief of evidence
The prosecuting authority is not required to include in a notice
under this Division anything that has already been included in
a brief of evidence served on the accused person in accordance
with section 25.
47O Sanctions for non-compliance with pre-trial disclosure
requirements
(1) Exclusion of evidence
The court may refuse to admit evidence in any criminal
proceedings that is sought to be adduced by a party who failed
to disclose the evidence to the other party in accordance with
pre-trial disclosure requirements.
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Amendment of Criminal Procedure Act 1986 Schedule 1
(2) Dispensing with formal proof
The court may allow evidence to be adduced by a party to
criminal proceedings without formal proof of a matter if the
evidence was disclosed to the other party and the other party
did not disclose an intention to dispute or require proof of the
matter as required by the pre-trial disclosure requirements.
(3) Adjournment
The court may grant an adjournment to a party if the other party
seeks to adduce evidence in the criminal proceedings that the
other party failed to disclose in accordance with pre-trial
disclosure requirements and that would prejudice the case of
the party.
(4) Comment to jury
The judge or, with the leave of the court, any party may
comment on a failure by a party to comply with pre-trial
disclosure requirements in any criminal proceedings. However,
the comment must not suggest that an accused person failed to
comply because the accused person was, or believed that he or
she was, guilty of the offence concerned.
(5) Application of sanctions
Without limiting subsection (6), the powers of the court may
not be exercised under this section to prevent an accused
person adducing evidence or to comment on any non-
compliance by the accused person unless the prosecuting
authority has complied with the pre-trial disclosure
requirements.
(6) Regulations
The regulations may make provision for or with respect to the
exercise of the powers of a court under this section (including
the circumstances in which the powers may not be exercised).
47P Miscellaneous provisions
(1) A statement about any matter that is made by or on behalf of
the accused person for the purposes of complying with the pre-
trial disclosure requirements does not constitute an admission
of that matter by the accused.
(2) The court may make orders to resolve any dispute between the
parties to criminal proceedings about:
(a) pre-trial disclosure requirements, or
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Schedule 1 Amendment of Criminal Procedure Act 1986
(b) the use of anything disclosed under this Division
(including restrictions on publication or further
disclosure).
(3) This Division does not affect the obligations or powers under
Division 3 (Pre-trial disclosure--general).
(4) Nothing in this Division prevents any voluntary pre-trial
disclosure by the accused person to the prosecuting authority of
any information, document or other thing that the accused
person proposes to adduce in evidence in the proceedings.
(5) This Division does not limit any obligation (apart from this
Division) for pre-trial disclosure, but this Division prevails to
the extent of any inconsistency with any such obligation. Any
such obligation extends to obligations imposed by the common
law, the rules of court, the rules of practice of barristers or
solicitors and prosecution guidelines issued by the Director of
Public Prosecutions.
(6) However, this Division does not affect any immunity that
applies by law to the disclosure of any information, document
or other thing, including, for example, legal professional or
client legal privilege, public interest immunity and sexual
assault communications privilege under Part 7.
[3] Part 3, Division 3, heading
Omit the heading. Insert instead:
Division 3 Pre-trial disclosure--general
[4] Section 48 Notice of alibi
Omit "the period of 10 days commencing at the time of the accused
person's committal for trial" from the definition of prescribed period in
section 48 (8).
Insert instead "the period commencing at the time of the accused person's
committal for trial and ending 21 days before the trial is listed for hearing".
Page 12
Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Amendment of Criminal Procedure Act 1986 Schedule 1
[5] Section 53A
Insert after section 53:
53A Manner of presenting indictments
The regulations and (subject to the regulations) the rules of
court may make provision for or with respect to the manner of
presenting indictments (including by the filing of the indictment
in a court registry).
[6] Section 54
Omit the section. Insert instead:
54 Time within which indictment to be presented
(1) In this section, relevant court, in relation to a matter, means the
Supreme Court or the District Court before which the matter
has been listed for trial or mention.
(2) An indictment is to be presented within 4 weeks after the
committal of the accused person for trial, except as provided by
this section.
(3) The time within which the indictment is to be presented may be
extended:
(a) by the regulations or (subject to the regulations) the
rules of the relevant court, or
(b) by order of the relevant court.
(4) If an indictment is not presented within the time required by
this section, the relevant court may:
(a) proceed with the trial if an indictment has been
presented, or
(b) adjourn the proceedings, or
(c) take such other action as it thinks appropriate in the
circumstances of the case.
(5) The prosecutor has no right to an adjournment merely because
an indictment has not been presented.
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Schedule 1 Amendment of Criminal Procedure Act 1986
(6) The relevant court must, in exercising any power under this
section, have regard to the fact that the Crown does not have a
right of appeal if the accused person is acquitted.
(7) This section does not affect the powers of the relevant court
under section 64.
[7] Section 63A
Insert after section 63:
63A Amendment of indictment
(1) An indictment may not be amended after it is presented, except
by the prosecuting authority:
(a) with the leave of the court, or
(b) with the consent of the accused.
(2) This section does not affect the powers of the court under
section 64.
(3) For the purposes of this section, an amendment of an
indictment includes the substitution of an indictment.
[8] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Criminal Procedure Amendment (Pre-trial Disclosure)
Act 2001
Page 14
Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Amendment of Criminal Procedure Act 1986 Schedule 1
[9] Schedule 2
Insert at the end of the Schedule with appropriate Part and clause numbers:
Part Provisions consequent on enactment of
Criminal Procedure Amendment (Pre-trial
Disclosure) Act 2001
Application of Division 2A of Part 3 (Pre-trial disclosure--case
management)
Division 2A of Part 3 extends to proceedings for an offence
that were instituted before the commencement of that Division,
but does not apply to any such proceedings if the accused
person was committed for trial before that commencement.
Application of amendments to section 48 (Notice of alibi)
The amendment made to section 48 by the Criminal Procedure
Amendment (Pre-trial Disclosure) Act 2001 applies to
proceedings in which the accused person is committed for trial
after the commencement of the amendment.
Application of substituted section 54 (Time within which
indictment to be presented)
Section 54, as substituted by the Criminal Procedure
Amendment (Pre-trial Disclosure) Act 2001, does not apply to
proceedings in which the accused person was committed for
trial before the substitution of that section.
Application of section 63A (Amendment of indictment)
Section 63A applies to indictments presented after the
commencement of that section.
Page 15
Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Schedule 2 Amendment of Director of Public Prosecutions Act 1986
Schedule 2 Amendment of Director of Public
Prosecutions Act 1986
(Section 4)
Section 15A
Insert after section 15:
15A Disclosures by investigating police officers
(1) Police officers investigating alleged indictable offences have a
duty to disclose to the Director all relevant information,
documents or other things obtained during the investigation that
might reasonably be expected to assist the case for the
prosecution or the case for the accused person.
(2) The duty of disclosure continues until one of the following
happens:
(a) the Director decides that the accused person will not be
prosecuted for the alleged offence,
(b) the prosecution is terminated,
(c) the accused person is convicted or acquitted.
(3) Police officers investigating alleged indictable offences also
have a duty to retain any such documents or other things for so
long as the duty to disclose them continues under this section.
This subsection does not affect any other legal obligation with
respect to the possession of the documents or other things.
(4) The regulations may make provision for or with respect to the
duties of police officers under this section, including for or with
respect to:
(a) the recording of any such information, documents or
other things, and
(b) verification of compliance with any such duty.
(5) The duty imposed by this section is in addition to any other
duties of police officers in connection with the investigation
and prosecution of offences.
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Criminal Procedure Amendment (Pre-trial Disclosure) Bill 2001
Amendment of Crimes (Sentencing Procedure) Act 1999 Schedule 3
Schedule 3 Amendment of Crimes (Sentencing
Procedure) Act 1999
(Section 5)
[1] Section 22A
Insert after section 22:
22A Power to reduce penalties for pre-trial disclosure
(1) A court may impose a lesser penalty than it would otherwise
impose on an offender who was tried on indictment, having
regard to the degree to which the defence has made pre-trial
disclosures for the purposes of the trial.
(2) A lesser penalty that is imposed under this section in relation
to an offence must not be unreasonably disproportionate to the
nature and circumstances of the offence.
[2] Schedule 2 Savings, transitional and other provisions
Insert at the end of the Schedule with appropriate Part and clause numbers:
Part Provisions consequent on enactment of
Criminal Procedure Amendment (Pre-trial
Disclosure) Act 2001
Application of section 22A (Power to reduce penalties for pre-
trial disclosure)
Section 22A extends to proceedings for an offence that were
instituted (but not finally determined) before the
commencement of that section.
Page 17
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