The operation of the law

What is the scope and purpose of Section 611C, and how did it change the operation of the law that existed in WA before it was introduced? What are the possible consequences of a failure to meet the requirements of this section? In September 1999, the Law Reform Commission of Western Australia (LRCWA) recommended widespread reforms to 'increase the accessibility and efficiency of the justice system in this State. ' One suggested reform recommended the abolishment of preliminary hearings – in which a magistrate determined whether sufficient evidence existed for a defendant to be committed for trial.

The LRCWA contended that 'the majority of preliminary hearings resulted in a trial;' and while very few defendants elected to have preliminary hearings, those that did 'consumed a significant amount of time and resources. ' The Criminal Law (Procedure) Amendment Bill 2002 presented by Attorney-General Jim McGinty gave effect to the LRCWA's recommendations. The Bill urged the Government to amend the Justices Act 1902 and the Criminal Code WA, in order to demonstrate 'the Government's commitment to the reduction of unnecessary court delays and the realisation of greater efficiencies in the criminal justice system.

' McGinty's recommendations sought to replace preliminary hearings with a 'regime of disclosure by the prosecution and, to a lesser extent, by the defence. ' The Bill was passed, and became the Criminal Law (Procedure) Amendment Act 2002 (WA). This introduced, among other provisions, Section 611C of the Criminal Code (WA), entitled 'Disclosure by the accused person. ' Between 1993 and the introduction of this legislation, criminal trials in the Supreme Court of Western Australia were subject to 'a non-statutory reciprocal disclosure regime under draft Criminal Practice rules.

' Before trial these rules required the prosecution to serve the defence with 'a case statement summarising the facts and legal propositions it intended to rely on, copies of statements of all proposed witnesses, and any documentary evidence. ' Prior to the introduction of Section 611C of the Criminal Code (WA), disclosure by the accused was limited to a response addressing 'the matters of fact and law in the prosecution summary, any objections to the admissibility of documentary evidence, and the particular grounds on which the defence contests guilt.

' Essentially, the enactment of legislation sought to formalise these rules, putting in place 'an onerous and ongoing statutory disclosure requirement of the police and the Director of Public Prosecutions, and limited formal pre-trial disclosure requirements for defendants. ' According to Geoff Flatman QC, the principal reason similar legislation was passed in Victoria was 'concern regarding the unreasonable delay in the presentation of cases and the inefficient conduct of trials.

' He highlighted the unnecessary use of witnesses to 'prove formal matters [or to] establish issues which are not substantially contested' as one of the central factors causing delay. Flatman also added that, despite the obvious economic advantages of shorter trials, there was a 'purer basis for requiring defence disclosure. ' He questioned the meaningful objective of the criminal trial, citing HJ Rothwax – '… arguably, a system committed to truth would not permit one side to hide information that is relevant to the truth-seeking process.

' (HJ Rothwax, Guilty, p 181) 'Early and ongoing disclosure is central to the proposed new system set out in this Bill' urged McGinty in his Second Reading speech. He claimed that fuller disclosure by the police, the DPP and defendants will 'ensure that parties are thoroughly prepared at an earlier stage and will encourage earlier resolution of criminal charges. ' The introduction of similar Bills throughout Australasia raised concern among some commentators.

Kevin Dawkins, in his criticism of the defence disclosure model presented by the New Zealand Criminal Law Reform Committee, contended that it is 'incompatible with the nature of the adversarial system and the basic protections accorded a defendant by the presumption of innocence. ' Flatman argued that this view involved 'the mistaken assumption that the imposition of a legal duty to do something implies fault or blame,' and gives numerous examples of the distinction between culpability and duty. He adds that 'the disclosure requirements do not compel accused to take any measures that were not already necessary, only to hasten them.

' Dawkins conceded that the implementation of such an Act would 'include more efficient use of court time with fewer and shorter trials… and savings in legal aid. ' However, he presented a flip side to this benefit, arguing that 'establishing and operating a formal reciprocal disclosure regime would inevitably involve substantial institutional costs… and [place] additional demands on defence resources in meeting new statutory obligations. ' The above commentariess indicate the legal and political climate in which the Criminal Law (Procedure) Amendment Act 2002 (WA) was enacted.

We have examined the scope and purpose of formal reciprocal disclosure by the accused. It is now useful to consider what the Section entails and the possible consequences of a failure to meet the requirements of the Section. Flatman highlighted that one of the downfalls of the disclosure requirement prior to legislative change in Victoria was that 'it contained insufficient sanctions. ' Along with section 611C, the Criminal Law (Procedure) Amendment Act 2002 (WA) included a number of sanctions for a failure to comply with the disclosure obligations – these are set out in Section 636A of the Criminal Code (WA).

Subsection 5 states 'A failure to comply with a disclosure requirement may be the subject of adverse comment to the jury by the court, counsel for the accused person, or the prosecution. ' The court also has the power to adjourn the trial. According to Flatman, should s/he be convicted, an accused's failure to comply with the disclosure requirements may also result in a heavier penalty, on the basis that it 'evinces a lack of remorse. ' Regardless of the opinion one forms in relation to whether Section 611C of the Criminal Code (WA) should have been introduced, full pre-trial reciprocal disclosure is now a reality in our court system.

The most important inquiry regarding the desirability of the accused disclosure provisions is the likely effect of protecting the community from crime. To this end, one possible consequence is that 'more guilty people will be convicted of criminal offences. ' The prosecution are now informed at an earlier time of the accused's line of attack and the possibility of the accused 'opportunistically seizing upon a technical flaw that emerges in the prosecution case will be reduced. ' It is difficult to see how this is in any way detrimental to the realisation of justice.