Decoding Criminal Case Disclosure: Procedures & Obligations

Jun 15, 2023

Criminal Case Disclosure Conferences

What is the purpose of a Criminal Case Disclosure Conference?

A Criminal Case Disclosure Conference (“CCDC”) facilitates the trial process by providing a procedure for the exchange of information between the Prosecution and the Defence.

A CCDC serves the purpose of settling the following matters:

• The filing of the Case for the Prosecution and Case for the Defence;
• The issues to be tried by the trial judge;
• The list of witnesses to be called by the parties to the trial;
• The evidence intended by the parties to the case to be admitted at the trial;
• The trial date.
  
  

When do Criminal Case Disclosure procedures apply?

Criminal Case disclosure procedures (“CCDC procedures”) apply by default where the offence falls under the Second Schedule to the Criminal Procedure Code (CPC) and is to be tried in a District Court (see The Courts). CCDC procedures also apply by default where the offence must be tried in the High Court (see The Courts) or where the offence falls under the Second Schedule to the CPC and the Public Prosecutor designates the General Division of the High Court to try the case. However, the Accused retains the discretion to “opt-out” of the CCDC procedures.

In any other case, the Prosecution and the Defence must “opt-in” to the CCDC procedures.

What happens if CCDC procedures do not apply?

When CCDC procedures do not apply, and if on the date where the Accused is asked by the Court how he wishes to plead and the Accused refuses to plead guilty/claim trial, the Court may proceed to try the Accused immediately (or on such day it directs) or transfer the case to another court of equal jurisdiction for trial.

If CCDC procedures do not apply, the Court may also fix the date for a PTC to be conducted (see Pre-Trial Conferences).

CCDC in the State Courts

To aid understanding, the timeline for the CCDC will be illustrated with a fictitious example. The timeline for the CCDC is as follows:

The Accused is asked by the Court how he wishes to plead on 1st January, and the Accused refuses to plead guilty or does not plead guilty or claims trial. In such a circumstance, the first CCDC will be fixed on or after 1st March. (i.e., no earlier than 8 weeks from the date on which the Accused is asked by the Court how he wishes to plead).

The First CCDC

The first CCDC is fixed for 1st March. At the first CCDC, the Defence does not indicate the Accused’s desire to plead guilty. The Prosecution must then file and serve a copy of the Case for the Prosecution (“CFP”) by 15th March (i.e., no later than 2 weeks from the date of the first CCDC). The second CCDC may then be fixed by the Court on or after 22nd March (i.e., not earlier than 7 days from the date the CFP is to be filed).

The Second CCDC

The second CCDC is fixed for 22nd March. At the second CCDC, if the Defence does not indicate that the Accused wishes to plead guilty, the Defence must then file and serve a copy of the Case for the Defence (“CFD”) by 5th April (i.e., no later than 2 weeks after the date of the second CCDC). After the CFD is served on 5th April, the Prosecution and Defence must respectively provide each other with the Prosecution’s Supplementary Bundle (“PSB”) and a list of the exhibits (as stated in the CFD) that are intended by the Defence to be admitted at trial by 19th April. (i.e., no later than 2 weeks after the CFD is served).

The Third CCDC

The PSB is served on 19 April. The third CCDC may then be fixed by the Court at any time after 19th April. (i.e., at any time after the CFP and CFD is served) If, at the third CCDC, the Defence does not indicate that the Accused wishes to plead guilty, the Court may fix a date for trial.

Documents provided by the Prosecution

The Prosecution must provide the Defence with the CFP, and, within 2 weeks upon being served the CFD, the PSB.

Contents of the CFP:

The CFP must contain the following:

• the charge(s) which the Prosecution intends to proceed with at the trial;
  
• a summary of the facts in support of the charge;

• a list of the names of the witnesses for the Prosecution;

• a list of the exhibits that are intended by the Prosecution to be admitted at the trial;

• any written statement made by the accused at any time and recorded by an officer of a law enforcement agency under any law, which the Prosecution intends to adduce in evidence as part of the case for the prosecution;

• a list of every statement (and the corresponding transcripts), made by the Accused at any time to an officer of a law enforcement agency under any law, that is recorded in the form of an audiovisual recording, and that the Prosecution intends to adduce in evidence as part of the case for the prosecution. Where the Defence requests, the Prosecution must arrange for the Defence to view the audiovisual recordings of each statement at a police station.

Contents of the PSB

The PSB must contain the following:

• every other written statement (not part of the PSB) given by the Accused and recorded by an officer of a law enforcement agency under any law in relation to the relevant charges;

• every other statement (and its corresponding transcript) given by the Accused and recorded, in the form of an audiovisual recording, by an officer of a law enforcement agency under any law in relation to the relevant charges. Where the Defence requests, the Prosecution must arrange for the Defence to view the audiovisual recordings of each statement at a police station;

• each documentary exhibit mentioned in the CFP;

• criminal records (if any) of the Accused, upon payment of the prescribed fee.
  
  

Documents provided by the Defence

The Defence must provide the Prosecution with the CFD, which must contain:

• a summary of the defence to the charge and the facts in support of the Defence;
• a list of the names of the witnesses for the Defence;
• a list of the exhibits that are intended by the Defence to be admitted at the trial;
• if objection is made to any issue of fact or law in relation to any matter contained in the CFP:
• a statement of the nature of the objection;
• the issue of fact on which evidence will be produced; and
• the points of law in support of such objection.

Further, the Defence must, within 2 weeks after serving the CFD on the Prosecution, also serve on the Prosecution a copy of each documentary exhibit mentioned in the CFD which is in the possession, custody or power of the Accused.

Non-compliance with State Court Criminal Case Disclosure procedures

The importance of complying with CCDC procedures cannot be understated. The Court may draw an adverse inference if, for instance, the Defence fails to serve the CFD after the Prosecution has served its CFP.

An important point to note is that an adverse inference may also be drawn by the Court if the Prosecution or the Defence puts forward a case at the trial which differs from or is otherwise inconsistent with the CFP or CFD respectively.

CCDC in the High Court

Transmission of cases to the General Division of the High Court

Criminal cases which are heard in the State Courts can be transmitted to the General Division of the High Court. However, the Public Prosecutor must be of the opinion that the offence is one which ought to be tried in the High Court. If the Public Prosecutor is of this opinion, the Public Prosecutor, must by fiat in writing signed by the Public Prosecutor, designate the General Division of the High Court to try the offence.

First CCDC

After the case is transmitted to the High Court, the Prosecution and the Defence must attend a first CCDC no earlier than 4 weeks from the date of transmission. To aid understanding, the following CCDC timeline will be illustrated with a fictitious date:

The first CCDC is fixed for 1 January. At the first CCDC, the Defence does not indicate that the Accused wishes to plead guilty to the charge, the Prosecution must file in the High Court the CFP and serve a copy of this to the Accused (and any co-accused persons) by 15 January (i.e., no later than 2 weeks from the date of the first CCDC). The Registrar may then fix the second CCDC on or after 22 January (i.e., no earlier than 7 days from the date the CFP is to be filed).

Second CCDC

The Second CCDC is fixed for 22nd January. If, at the second CCDC, the Defence does not indicate that the Accused wishes to plead guilty, the Defence may file the CFD in the High Court and serve a copy of it on the Prosecution and every co-accused by 5th February (i.e., no later than 2 weeks from the date of the second CCDC). After the CFD is served on 5th February, the Prosecution and Defence must respectively provide each other with the PSB and a list of the exhibits (as stated in the CFD) that are intended by the Defence to be admitted at trial by 19th February. (i.e., no later than 2 weeks).

If the Defence indicates that the Accused does not wish to file the CFD, the Registrar may fix a date for trial in the High Court.

If the Accused is not represented by a Defence Counsel, the Registrar must explain to the Accused that (a) he may file a CFD; (b) the requirement of the Prosecution to serve on him the PSB (after service of his CFD); and (c) the power of the Court to draw an adverse inference should he/she fail to comply with CCDC procedures.

Third CCDC

The Prosecution serves the PSB on 19th February. The Registrar may then fix a date for the Third CCDC at any time after 19th February. If, at the third CCDC, the Defence does not indicate that the Accused wishes to plead guilty, the Registrar may fix a date for trial.

Non-Compliance with High Court Criminal Case Disclosure procedures

Non-compliance of High Court CCDC procedures may result in the High Court drawing an adverse inference against the Defence or Prosecution.

However, such an inference will not be drawn where there is a mere failure to serve the CFD. This is an important difference between the State Court and High Court CCDC procedure.

Common Law Disclosure Obligations

Apart from the statutory disclosure regime (as stated above), the law also places other disclosure obligations on the Prosecution. These disclosure obligations are commonly known as the Kadar and Nabill disclosure obligations (Common Law Disclosure Obligations). The Prosecution is expected to fulfil these obligations regardless of the applicability of the CCDC procedures.

If CCDC procedures were to apply, the Prosecution is expected to fulfil its Common Law Disclosure Obligations when it files and serves the CFP on the Accused.

Kadar Disclosure Obligations

The disclosure requirements set out in Kadar requires the disclosure of material to the Defence which takes the form of:

• any unused material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused; and

• any unused material that is likely to be inadmissible, but would provide a real (not fanciful) chance of pursuing a line of inquiry that leads to material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused.

However, this will not include material which is neutral or adverse to the Accused. Only unused material that tends to undermine the Prosecution’s case or strengthen the Defence’s case need to be disclosed.

This obligation is a continuing one and only ends when the case has been completely disposed of. Importantly, there is no such corresponding duty of disclosure placed on the Defence.

A failure to discharge this duty of disclosure in a timely manner should lead to the overturning of a conviction if such an irregularity can be considered to be a material irregularity that occasions a failure of justice, or renders the conviction unsafe.

The following is an illustration of the operation of the Kadar Disclosure Obligation

Items to Disclose

Items that do not need to be disclosed

– Witness statements; – Expert reports; – Co-accused statements; – Expert reports – Records compiled by law enforcement authorities: field diary, investigation diary.

– An anonymous letter mailed to investigators stating that the accused is not guilty (not credible); – the statement of a person saying that he himself had committed the crime instead of the accused, except that it cannot be denied that the person was not at the place of the crime at the time (not credible); – a photograph of the scene of the crime a long time after it was committed (not relevant)

Nabill Disclosure Obligations

The Nabill obligations imposes upon the Prosecution a duty to disclose to the Defence a material witness’s statement which may be expected to either confirm or contradict the Accused’s defence.

The Nabill obligations differ from the Kadar obligations in 2 key ways:

• Where the Nabill obligations are concerned, it does not matter whether the statement in question is (a) favourable (and so triggers the Kadar obligations); (ii) neutral; or (iii) adverse to the accused person.

• The Nabill obligations do not require the Prosecution to carry out a prior assessment of whether a material’s witness’s statement is prima facie credible and relevant to the guilt or innocence of the accused person.

The duty of identifying a “material witness” rests on the Prosecution, although this is only assessed by reference to such defences as the Defence may have disclosed at each stage of trial.

Like the Kadar obligations, the Nabill obligations only end when the proceedings against the Accused (including any appeal) have been completely disposed of.

Value of Defence Counsel throughout the Disclosure Process

The statutory disclosure process ensures the facilitation of a smooth and just trial. However, it might appear convoluted for most laypersons. It bears reminder that a failure to comply with CCDC procedures might lead to the Court drawing an adverse inference against an Accused person. In this regard, an able Defence Counsel, or criminal lawyer, would ensure full compliance with any disclosure procedures.

A Defence Counsel would also take steps to ensure that the Prosecution abides by their disclosure obligations. Ultimately, this would result in an impartial trial, and would go a long way in obtaining the best possible result for an Accused person.