CRIMINAL PROCEDURE ACT 2004 - SECT 35
CRIMINAL PROCEDURE ACT 2004 - SECT 35
35 . Initial disclosure by prosecutor
(1) In this section,
unless the contrary intention appears —
confessional material of an accused charged with
an offence, means —
(a) any
written statement signed by the accused;
(b) any
written record of interview with the accused (signed or unsigned by the
accused);
(c) any
interview (as that term is defined in the Criminal Investigation Act 2006
section 115) that has been electronically recorded,
that is relevant to the charge and that is in the
possession of the organisation that investigated the offence;
police prosecutor means a prosecutor who is a
member of the Police Force or who is employed in the department principally
assisting in the administration of the Police Act 1892 ;
prescribed simple offence means a simple offence
that is prescribed to be a prescribed simple offence for the purposes of this
section;
serve an accused, means to serve the accused in
accordance with Schedule 2 clause 2, 3 or 4.
(2) The operation of
this section is subject to —
(a) any
order made under section 138; and
(b) the
Sentence Administration Act 2003 section 119C(2)(a); and
(c) the
Young Offenders Act 1994 section 16D(2)(a).
(3) This section does
not affect the operation of the Criminal Investigation Act 2006 section 117.
(4) When or as soon as
practicable after a prosecution notice that contains one or more indictable
charges is served on an accused, the prosecutor must serve the accused with
the following —
(a) a
written statement of the material facts of each such charge;
(b) an
approved notice of the existence or non-existence, as the case may be, of any
confessional material of the accused that is relevant to each such charge;
(c) an
approved notice that the accused does or does not have a criminal record, as
the case may be;
(d) any
document that is prescribed.
(5) When or as soon as
practicable after a prosecution notice that contains one or more charges of
prescribed simple offences is served on an accused, the prosecutor must serve
the accused with the following —
(a) a
written statement of the material facts of each such charge;
(b) an
approved notice of the existence or non-existence, as the case may be, of any
confessional material of the accused that is relevant to each such charge;
(c) if
the prosecutor is a police prosecutor, an approved notice that the accused
does or does not have a criminal record, as the case may be;
(d) if
the prosecutor is not a police prosecutor and intends to tender any of the
accused’s criminal record to the court, an approved notice of the
criminal record and of the prosecutor’s intention;
(e) any
document that is prescribed.
(6) When or as soon as
practicable after a prosecution notice that contains one or more charges of
simple offences that are not prescribed simple offences is served on an
accused, the prosecutor must serve the accused with the following —
(a) if
the prosecutor is a police prosecutor, an approved notice that the accused
does or does not have a criminal record, as the case may be;
(b) if
the prosecutor is not a police prosecutor and intends to tender any of the
accused’s criminal record to the court, an approved notice of the
criminal record and of the prosecutor’s intention;
(c) any
document that is prescribed.
(7) An approved notice
advising an accused of the existence of any confessional material of the
accused must also advise the accused of the effect of subsection (11).
(8) An approved notice
advising an accused that the accused does have a criminal record must also
advise the accused of the effects of subsections (11) and (12) and
section 168.
(9) The material
referred to in this section must be served before or at the time of the
accused’s first appearance in the court in relation to the prosecution
notice unless it is impracticable to do so.
(10) If material is
not served in accordance with subsection (9) in respect of a charge, the court
may —
(a)
adjourn the charge to a new court date that allows a reasonable time for the
prosecutor to serve the material; and
(b)
order the prosecutor to serve the material before that new court date; and
(c) if
the prosecutor does not obey the order, adjourn the charge again or dismiss it
for want of prosecution.
(11) As soon as
practicable after an accused is served with notice —
(a) of
the existence of confessional material of the accused that is relevant to a
charge; or
(b) that
the accused has a criminal record,
the prosecutor must
make available a copy of the material or the record or both (as the case may
be) to the accused or the accused’s legal practitioner.
(12) If before or at
an accused’s first appearance in court in relation to a prosecution
notice the accused requests the prosecutor to give the accused a copy of the
accused’s criminal record, the prosecutor must, if practicable, obey the
request before or at the appearance.
(13) If the prosecutor
serves the accused with a written statement of the material facts of a charge,
the prosecutor may serve the accused with another version of the statement
—
(a) if
the charge —
(i)
is an either way charge that is to be dealt with
summarily; or
(ii)
is of a simple offence,
at any time before the
accused is asked to plead to the charge by a court of summary jurisdiction or,
with the court’s leave, at any time after a plea of not guilty by the
accused; or
(b) in
any other case — at any time before the accused is asked to plead to the
charge by the court to which the accused is committed for sentence or trial,
irrespective of whether the accused has pleaded before a court of summary
jurisdiction.
[Section 35 amended: No. 59 of 2006 s. 43; No. 21
of 2008 s. 657(5); No. 14 of 2022 s. 42.]