A question that we are often asked by new clients when they first come to see us in relation to is “when can I see the evidence against me?”. People are often under the impression that upon being charged with a criminal offence, they are entitled to see all of the evidence that the police have against them. This is incorrect. This misapprehension seems to come from American TV shows.
In Western Australia, the vast majority of criminal prosecutions commence in the Magistrates Court. The Magistrates Court has the power to deal with less serious charges. “Strictly indictable” charges must be dealt with in either the Supreme Court or the District Court.
In Western Australia, disclosure obligations are governed by the Criminal Procedure Act 2004.
The prosecutor (usually the police) must serve the following on the accused (or the defence lawyer if the accused is legally represented) before or at the time of the accused’s first appearance in court:
- a copy of the prosecution notice;
- a written statement of material facts;
- notice stating whether or not the accused has a criminal record;
- a notice disclosing the existence of any confessional material in relation to the charge(s).
These materials are to be served by the prosecution on the accused before or at the time of the accused’s first appearance in court unless it is impractical to do so.
“Confessional material” means:
- any written statement by an accused;
- any written record of an interview (such as a transcript);
- any electronically recorded interview such as a record of interview or search warrant video.
A prosecution notice is a fancy expression for a charge sheet. It must:
- be in the correct, prescribed form;
- identify the prosecutor;
- identify the accused;
- state with reasonable clarity the nature of the offence alleged;
- identify with reasonable clarity the date on which, or the date range within which the offence was committed;
- the place where the offence was committed;
- the written law creating the offence;
- be signed by the investigating officer.
Prosecution Notice vs Indictment
A prosecution notice and an indictment are essentially the same thing. They serve the same purpose insofar as they are formal charge sheets. The difference is that an indictment is the formal charge sheet in the District Court and the Supreme Court, whereas the prosecution notice is the formal charge sheet in the Magistrates Court.
As stated above, the vast majority of charges start in the Magistrates Court and will progress to either the Supreme Court or District Court if the Magistrates Court does not have the power to deal with the charge. In such cases, there will be a prosecution notice at first instance in the Magistrates Court which is eventually replaced by an indictment when the matter reaches the District Court or Supreme Court.
“Full Disclosure” is the legal terms describe what most people think of as “all of the evidence” in a criminal case. Full disclosure means all of the evidentiary material relevant to a charge. Under the Criminal Procedure Act 2004, this includes:
- a copy of every witness statement obtained in the course of the investigation;
- a copy of every document or object that the prosecution intends to tender a trial;
- a copy of every document or object that may assist the defence case.
If there is no witness statement from a person whom the prosecution intends to cause a witness at trial, the prosecution must provide a written summary of the evidence to be given by that person.
When Does the Prosecution Have to Provide Full Disclosure to the Defence?
In short, the prosecution is required to provide full disclosure when the accused pleads not guilty. For a charge that is proceeding to either the Supreme Court or District Court, this is at a disclosure committal hearing (“DCH”) which is often referred to as “committal mention”. A criminal lawyer can provide you with more detail advice about when disclosure is due and what should be provided to the defence by the prosecution.
Unless the court makes orders to the contrary, there is no hard deadline on when the prosecution must complete disclosure. As new evidentiary material comes into possession of the prosecution, it must be disclosed to the defence as soon as practically possible. This often means that the prosecution make disclosure during the course of the trial.
Prescribed Simple Offences
If an offence is a “prescribed simple offence”: there is no requirement for the prosecution to provide full disclosure. This is a measure that was put in place to make courts run more efficiently. It is possible to make an application to the court to obtain full disclosure for prescribed simple offences, however, this is discretionary and is not ordered simply because an application is made by a defence lawyer or the accused.
Prescribed simple offences include: stalking, breach of violence restraining order, breach of a police order and dangerous driving causing bodily harm.
Disclosure Obligations on the Defence
Criminal Procedure Act 2004 imposes a number of obligations upon the defence to disclose certain matters prior to trial. If the defence intends to rely upon alibi evidence or the evidence of an expert witness: the defence must disclose this prior to trial.
“Alibi evidence” is evidence that tends to show that the accused was not present when the offence is alleged to have occurred.
“Expert evidence” is essentially opinion evidence by a suitably qualified expert. It can cover a wide variety of subjects such as forensic evidence, medical evidence and technical evidence such as motor vehicles.
The defence is required to disclose any alibi or expert evidence at least 14 days before the trial date. The defence must serve the prosecution with;
- the accused’s intention to rely on such evidence;
- the details and all the nature of the evidence;
- the name of each witness the defence intends to call in support of the alibi or as an expert witness.
- Sufficient details allowing the prosecution to locate the witness.
These obligations can be confusing for anyone who doesn’t have specialist knowledge of the criminal law in Western Australia. We therefore recommend engaging the services of a criminal lawyer or barrister, particularly in relation to serious charges.
Consequences of Non-Disclosure or late Disclosure
There are a number of remedies available in circumstances where the prosecution or the defence fail to meet their disclosure obligations or when disclosure is not made in a timely manner. This includes an order by the relevant court can that disclosure be provided to the other party. A trial may be adjourned to allow the affected party enough time to properly investigate any late disclosure. The court can also refuse to admit late disclosure sought to be relied upon by the party in breach.
As you can see, the disclosure obligations under Western Australia’s criminal law a rather complex. A good criminal lawyer will make sure that the prosecution complies with its obligation to provide all relevant evidentiary material.
Oliver Paxman is the principal of Paxman & Paxman Barristers & Solicitors. We are firm of criminal defence lawyers in the Perth CBD specialising in criminal law, traffic law, and restraining orders. If you need a criminal lawyer or a traffic lawyer in Perth, give us a call on 1300 274 692 or fill out an online enquiry form today and one of our criminal barristers & solicitors will gladly provide you with legal advice on your matter. Our firm of criminal lawyers and barristers is one of the top firms in Perth providing representation on all types of criminal law matters including traffic law, assaults and drug cases.