A requirement for prosecution Disclosure certificates has been introduced for criminal matters.
The new s 41A of the Criminal Procedure Act 2009 requires the informant, or any other officer who prepared a full brief, to complete a Disclosure certificate and file it with the registry within 7 days of the brief being served. This certificate must be provided to the DPP, if they are conducting the matter, and served on the defence.
Disclosure certificates are required to set out anything that is not included in the full brief because it is subject to a claim for privilege, public interest immunity or other statutory immunity or restriction, and the nature of any such claim.
Sections 41-48 of the Criminal Procedure Act set out the ongoing disclosure requirements on the prosecution. The informant, usually a police officer, also has a general and ongoing duty of disclosure to the Director of Public Prosecutions where that office is conducting the prosecution. The informant must provide to the DPP any information, document or thing that is in the possession of, or known by, the informant that is relevant to the alleged offence, subject to any claims for statutory privilege or public interest immunity: s 415A Criminal Procedure Act 2009.
Disclosure certificates apply also to matters in the indictable stream that proceed by way of a hand-up brief.
The commentary in the By Lawyers Criminal – Magistrates’ Court (VIC) publication has been updated accordingly.
See the By Lawyers 101 Subpoena Answers publication for information about public interest immunity, statutory immunity, and other statutory restrictions.