The Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Bill 2021, is currently before the legislative council where debate as to amendments proposed by the legislative assembly will continue.
If the bill is passed with amendments several aspects of criminal procedure will be impacted. In this article, we provide an overview of some of the proposed changes, namely: disclosure requirements, sentence indications, and remote evidence requirements for complainants in family violence proceedings.
Prosecution disclosure requirements
The Royal Commission into the Management of Police Informants resulted in a number of recommendations. One of the many recommendations made was to clarify the disclosure obligations the prosecution has in the running of a criminal case.
As was noted in the second reading speech to the bill, "disclosure obligations play a vital role in ensuring criminal proceedings are conducted fairly. Both informants (usually the police) and prosecutors have legal obligations to disclose to a person accused of a criminal offence all information that is relevant to the alleged offence".
Whilst the obligation to disclose is well established at common law and under the Criminal Procedure Act 2009 (Vic) the proposed changes require greater accountability on the prosecution (police and prosecutors) to ensure fair disclosure is made.
Information relating to the credibility of witnesses for the prosecution
Section 41 of the Criminal Procedure Act sets out the requirement as to what disclosure material is to be provided in a 'full brief'. A new requirement proposed relates to the provision of information bearing upon the credibility of a prosecution witness, the proposed sub-paragraph provides:
"subjection to section 32C of the Evidence (Miscellaneous Provisions) Act 1958, a copy of any information, document or thing that is relevant to the credibility of a witness for the prosecution"
The example provided in the bill as an aid to interpretation states:
"The witness' criminal history (including pending charges), or the giving of a letter of assistance to the witness, the reduction of criminal charges against the witness, other favourable treatment in a criminal proceeding, or any payment or reward provided, as a result of the witness' cooperation with police"
At common law all of this information was relevant and could be adduced as being relevant to an assessment of the credibility of a prosecution witness, however making it a statutory requirement to provide such information and at an early stage increasing the transparency of the criminal prosecution.
A police member with carriage of the investigation (the Informant) must provide a disclosure certificate
Another addition to the requirements of what must be contained in a full brief is a disclosure certificate signed by the Informant with carriage of the investigation. A new proposed section, 41A sets out the contents of the disclosure certificate including "any relevant information, document or thing not contained in the full brief".
A non-disclosure order may be sought by the Informant, or a party to the proceeding, or a law enforcement officer, or a person with a direct or special interest in the making of any order or other decision (new section 416A). It is worth noting that in exceptional circumstances, an application for a non-disclosure order may be made without giving notice to the accused. The right of a review of a non-disclosure order is provided under a proposed section 416C which states that a court may review a non-disclosure order:
on its own motion; or
on the application of a person referred to in section 416 (i.e. a party to the proceeding)
The outcome of a review may result in the court:
confirm the non-disclosure order
vary the non-disclosure order
revoke the non-disclosure order
Expanded Scope for Sentence Indications in County and Supreme Courts Under the Proposed Changes
Sentencing indications are a feature of our criminal justice system, particularly in the Magistrates' Court and to a lesser extent the County and Supreme Courts.
Sentence indication can be given more than once
Currently, under the Criminal Procedure Act (section 208) where a proceeding is before either the County or Supreme Court, a sentence indication may only be given once during the proceeding unless the prosecutor otherwise consents.
A new proposed subsection (3A), provides that:
"A second or subsequent sentence indication may be given if there has been a change in circumstances since the previous sentence indication that is likely to materially affect the sentence indication previously given"
Remote Witness Evidence the Default Position for Family Violence Proceedings (criminal and intervention orders)
The requirement for a complainant to give evidence via closed-circuit television or other facilities n a criminal proceeding that relates wholly or partly to a charge for a sexual offence is the subject of section 363 of the Criminal Procedure Act 2009 (Vic). A new subsection expands the requirement to a complainant in a criminal proceeding that relates (wholly or partly) to a change for an offence where the conduct constitutes family violence within the meaning of the Family Violence Protection Act 2008 (Vic).
Identical proposed changes for proceedings relating to Family Violence Intervention Orders are set out under a new section 69(1A) of the Family Violence Protection Act 2008 (Vic).
Although these changes create a default position in regard to complainants giving evidence remotely, a complainant may still elect to give evidence in Court if they wish to.