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This is a Bill, not an Act. For current law, see the Acts databases.
Criminal Procedure Amendment
(Mandatory Pre-trial Defence
Disclosure) Bill 2013
No , 2013
A Bill for
An Act to amend the Criminal Procedure Act 1986 in relation to mandatory pre-trial
defence disclosure in indictable proceedings; and for other purposes.
Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure)
Clause 1 Bill 2013
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Criminal Procedure Amendment (Mandatory Pre-trial 3
Defence Disclosure) Act 2013. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
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Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure)
Bill 2013
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
Schedule 1 Amendment of Criminal Procedure Act 1
1986 No 209 2
[1] Section 136 Directions for conduct of proceedings 3
Omit ", including a direction as to the time by which notice of the prosecution 4
case is to be given under section 137 and notice of the defence response is to 5
be given under section 138". 6
[2] Section 137 Notice of prosecution case to be given to accused person 7
Omit the section. 8
[3] Section 138 Notice of defence response to be given to prosecutor 9
Omit the section. 10
[4] Section 139 Pre-trial hearings 11
Omit section 139 (3) (c). Insert instead: 12
(c) determine the timetable for pre-trial disclosure under 13
section 141, 14
[5] Sections 141-143 15
Omit the sections. Insert instead: 16
141 Mandatory pre-trial disclosure 17
(1) After the indictment is presented or filed in proceedings, the 18
following pre-trial disclosure is required: 19
(a) the prosecutor is to give notice of the prosecution case to 20
the accused person in accordance with section 142, 21
(b) the accused person is to give notice of the defence response 22
to the prosecution's notice in accordance with section 143, 23
(c) the prosecution is to give notice of the prosecution 24
response to the defence response in accordance with 25
section 144. 26
(2) Pre-trial disclosure required by this section is to take place before 27
the date set for the trial in the proceedings and in accordance with 28
a timetable determined by the court. 29
Note. Practice notes issued by the court will guide determinations of the 30
timetable for pre-trial disclosures and related matters. 31
(3) The court may vary any such timetable if it considers that it 32
would be in the interests of the administration of justice to do so. 33
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Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure)
Bill 2013
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
(4) The regulations may make provision for or with respect to the 1
timetable for pre-trial disclosure. 2
142 Prosecution's notice 3
(1) For the purposes of section 141 (1) (a), the prosecution's notice 4
is to contain the following: 5
(a) a copy of the indictment, 6
(b) a statement of facts, 7
(c) a copy of a statement of each witness whose evidence the 8
prosecutor proposes to adduce at the trial, 9
(d) a copy of each document, evidence of the contents of 10
which the prosecutor proposes to adduce at the trial, 11
(e) if the prosecutor proposes to adduce evidence at the trial in 12
the form of a summary, a copy of the summary or, where 13
the summary has not yet been prepared, an outline of the 14
summary, 15
(f) a copy of any exhibit that the prosecutor proposes to 16
adduce at the trial, 17
(g) a copy of any chart or explanatory material that the 18
prosecutor proposes to adduce at the trial, 19
(h) if any expert witness is proposed to be called at the trial by 20
the prosecutor, a copy of each report by the witness that is 21
relevant to the case, 22
(i) a copy of any information, document or other thing 23
provided by law enforcement officers to the prosecutor, or 24
otherwise in the possession of the prosecutor, that would 25
reasonably be regarded as relevant to the prosecution case 26
or the defence case, and that has not otherwise been 27
disclosed to the accused person, 28
(j) a list identifying: 29
(i) any information, document or other thing of which 30
the prosecutor is aware and that would reasonably 31
be regarded as being of relevance to the case but that 32
is not in the prosecutor's possession and is not in the 33
accused person's possession, and 34
(ii) the place at which the prosecutor believes the 35
information, document or other thing is situated, 36
(k) a copy of any information in the possession of the 37
prosecutor that is relevant to the reliability or credibility of 38
a prosecution witness, 39
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Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure)
Bill 2013
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
(l) a copy of any information, document or other thing in the 1
possession of the prosecutor that would reasonably be 2
regarded as adverse to the credit or credibility of the 3
accused person, 4
(m) a list identifying the statements of those witnesses who are 5
proposed to be called at the trial by the prosecutor. 6
(2) The regulations may make provision for or with respect to the 7
form and content of a statement of facts for the purposes of this 8
section. 9
(3) In this section, law enforcement officer means a police officer, 10
or an officer of one of the following agencies: 11
(a) the Police Integrity Commission, 12
(b) the New South Wales Crime Commission, 13
(c) the Independent Commission Against Corruption. 14
143 Defence response 15
(1) For the purposes of section 141 (1) (b), the notice of the defence 16
response is to contain the following: 17
(a) the name of any Australian legal practitioner proposed to 18
appear on behalf of the accused person at the trial, 19
(b) the nature of the accused person's defence, including 20
particular defences to be relied on, 21
(c) the facts, matters or circumstances on which the 22
prosecution intends to rely to prove guilt (as indicated in 23
the prosecution's notice under section 142) and with which 24
the accused person intends to take issue, 25
(d) points of law which the accused person intends to raise, 26
(e) notice of any consent that the accused person proposes to 27
give at the trial under section 190 of the Evidence Act 1995 28
in relation to each of the following: 29
(i) a statement of a witness that the prosecutor proposes 30
to adduce at the trial, 31
(ii) a summary of evidence that the prosecutor proposes 32
to adduce at the trial, 33
(f) a statement as to whether or not the accused person intends 34
to give any notice under section 150 (Notice of alibi) or, if 35
the accused person has already given such a notice, a 36
statement that the notice has been given, 37
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Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure)
Bill 2013
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
(g) a statement as to whether or not the accused person intends 1
to give any notice under section 151 (Notice of intention to 2
adduce evidence of substantial mental impairment). 3
(2) The notice of the defence response is also to contain such of the 4
following matters (if any) as the court orders: 5
(a) a copy of any report, relevant to the trial, that has been 6
prepared by a person whom the accused person intends to 7
call as an expert witness at the trial, 8
(b) if the prosecutor disclosed an intention to adduce evidence 9
at the trial that has been obtained by means of surveillance, 10
notice as to whether the accused person proposes to require 11
the prosecutor to call any witnesses to corroborate that 12
evidence and, if so, which witnesses will be required, 13
(c) notice as to whether the accused person proposes to raise 14
any issue with respect to the continuity of custody of any 15
proposed exhibit disclosed by the prosecutor, 16
(d) if the prosecutor disclosed an intention to tender at the trial 17
any transcript, notice as to whether the accused person 18
accepts the transcript as accurate and, if not, in what 19
respect the transcript is disputed, 20
(e) notice as to whether the accused person proposes to 21
dispute the authenticity or accuracy of any proposed 22
documentary evidence or other exhibit disclosed by the 23
prosecutor, 24
(f) notice of any significant issue the accused person proposes 25
to raise regarding the form of the indictment, severability 26
of the charges or separate trials for the charges, 27
(g) notice of any consent the accused person proposes to give 28
under section 184 of the Evidence Act 1995. 29
[6] Section 144 30
Omit "--court-ordered pre-trial disclosure" from the heading to the section. 31
[7] Section 145 Dispensing with formal proof 32
Omit "section 143 (d)" from section 145 (2). 33
Insert instead "section 143 (1) (c)". 34
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Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure)
Bill 2013
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
[8] Section 146A 1
Insert after section 146: 2
146A Drawing of inferences in certain circumstances 3
(1) This section applies if: 4
(a) the accused person fails to comply with the requirements 5
for pre-trial disclosure imposed by or under this Division 6
on the accused person, or 7
(b) the accused person is required to give a notice under 8
section 150 (Notice of alibi) and fails to do so. 9
(2) If this section applies: 10
(a) the court, or any other party with the leave of the court, 11
may make such comment at the trial as appears proper, and 12
(b) the court or jury may then draw such unfavourable 13
inferences as appear proper. 14
(3) A person must not be found guilty of an offence solely on an 15
inference drawn under this section. 16
(4) Subsection (2) does not apply unless the prosecutor has complied 17
with the requirements for pre-trial disclosure imposed by or 18
under this Division on the prosecution. 19
(5) This section does not limit the operation of section 146. 20
[9] Section 147 Disclosure requirements are ongoing 21
Insert after section 147 (2): 22
(3) An accused person may, with the leave of the court, amend the 23
notice of the defence response given under section 143 if any 24
information, document or other thing is obtained from the 25
prosecution after the notice of the defence response was given 26
that would affect the contents of that notice. 27
(4) The accused person must give the amended notice of the defence 28
response to the prosecutor. 29
[10] Section 148 Court may waive requirements 30
Insert ", but only if the court is of the opinion that it would be in the interests 31
of the administration of justice to do so" after "Division" in section 148 (1). 32
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Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure)
Bill 2013
Schedule 1 Amendment of Criminal Procedure Act 1986 No 209
[11] Section 148 (4) and (5) 1
Insert after section 148 (3): 2
(4) The court is to take into account whether the accused person is 3
represented by an Australian legal practitioner when considering 4
whether to make an order under this section. 5
(5) The court is to give reasons for the making of an order under this 6
section. 7
[12] Section 149 Requirements as to notices 8
Insert after section 149 (5): 9
(6) A reference in this section to a notice includes a reference to an 10
amended notice. 11
[13] Schedule 2 Savings, transitional and other provisions 12
Insert at the end of clause 1 (1): 13
Criminal Procedure Amendment (Mandatory Pre-trial Defence 14
Disclosure) Act 2013 15
[14] Schedule 2 16
Insert at the end of the Schedule with appropriate Part and clause numbering: 17
Part Provisions consequent on enactment of 18
Criminal Procedure Amendment 19
(Mandatory Pre-trial Defence Disclosure) 20
Act 2013 21
Definition 22
In this Part, amending Act means the Criminal Procedure 23
Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013. 24
Case management provisions 25
(1) An amendment of Division 3 of Part 3 of Chapter 3 by the 26
amending Act applies only in respect of proceedings in which the 27
indictment was presented or filed on or after the commencement 28
of the amendment. 29
(2) Accordingly, a provision of Division 3 of Part 3 of Chapter 3, as 30
in force before its amendment by the amending Act, continues to 31
apply in respect of proceedings in which the indictment was 32
presented or filed before the commencement of the amendment. 33
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Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure)
Bill 2013
Amendment of Criminal Procedure Act 1986 No 209 Schedule 1
Review of policy objectives of amending Act 1
(1) The Minister is to review the amendments made by the amending 2
Act to determine: 3
(a) whether they have been effective in reducing delays in 4
proceedings on indictment, and 5
(b) whether they have been effective in promoting the efficient 6
management and conduct of trials, and 7
(c) whether the interests of justice have been affected in 8
relation to parties to proceedings on indictment, and 9
(d) the cost impacts of the procedures. 10
(2) The review is to be undertaken as soon as possible after the period 11
of 2 years from the commencement of this clause. 12
(3) A report on the outcome of the review is to be tabled in each 13
House of Parliament within 12 months after the end of the period 14
of 2 years. 15
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