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District Court of New Zealand
Criminal Procedure (Simplification) Project Testing in Manukau and Tauranga District Courts
GUIDELINES ON
INITIAL DISCLOSURE
AND
INSTRUCTIONS
July 2008
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INTRODUCTION |
PURPOSE
Timely and efficient disposal of cases is the joint responsibility of participants in the court process. These guidelines represent best practice for those participants to address issues around progression of cases arising from multiple adjournments. Agencies are expected to make reasonable attempts to adhere to these Guidelines in the spirit of making improvements in the summary court process.
The Guidelines on Initial Disclosure and Instructions (the Guidelines) identify best practice for the provision of initial disclosure and instructions to counsel from defendants for cases in the District Court, and clarifies the roles and responsibilities for the different agencies involved in the process. The Guidelines identify what steps should occur, by whom, to whom, in what timeframe, and any record keeping required.
The purpose of the Guidelines is twofold:
- to enable sufficient disclosure being made in sufficient time to allow proper and timely instructions / advice between Counsel and the Defendant; and
- to allow the Counsel and Defendant to be fully informed so that they can make decisions in respect to the next hearing event;
- to enable plea and charge discussions.
BACKGROUND
The Interagency Advisory Group on Summary Court Improvement (IAG) has sponsored the development of Guidelines on Police disclosure (focusing on initial disclosure) and Instructions (enabling instructions to counsel from the defendant).
Previous case analysis undertaken has identified that provision of Police initial disclosure and defendants instructions to counsel was among the top five reasons for adjournments in the administration stage in the summary jurisdiction.
APPLICATION
These Guidelines apply to all Police prosecution cases that are in the list stage of a case i.e. those having a first or second appearance. For the purposes of testing the Guidelines apply to charges laid in the test Courts within the period of testing that are not indictably laid.
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OVERVIEW OF GUIDELINES |
The Guidelines contain three parts:
- Best practice for content and provision of initial disclosure (including a record of disclosure and provision of adjournments);
- Best practice measures to facilitate instructions and enable the case to progress along the appropriate track in a timely manner;
- Best practice for roles and responsibilities.
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PART ONE: Best Practice for content and provision of Initial Disclosure |
The Guidelines on Initial Disclosure identify best practice for the provision of initial disclosure, and focus on:
- timeframes for the provision of initial disclosure;
- the content of initial disclosure, including the provision of two types of disclosure packs;
- a receipting process and receipting document;
- adjournments in the list stage.
When disclosure should occur
Provision of disclosure:
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Where possible disclosure should be provided prior to the court hearing taking place. This is to help enable Counsel to receive disclosure, have discussions with their client, take instructions and be ready for the court hearing. The Courthouse provides a venue where all parties can be present and therefore it makes sense to tie the provision of disclosure to court hearings, however, when available, it is best practice for Assigned Counsel to uplift the assigned Counsel initial disclosure pack from the PPS office well before the second court appearance date.
Content of Initial Disclosure for Assigned Counsel / Self Represented Defendant
The Initial Disclosure Pack will be provided to Assigned Counsel or Self – Represented Defendants. Please note Duty Solicitors will be provided with a different disclosure pack as identified below.
| Content of Initial Disclosure Pack:
The minimum content for initial disclosure pack will be:
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As noted above, the initial disclosure pack will include information regarding access to New Zealand Police personnel for disclosure and on plea and charge discussion. In summary, it covers:
- Contact details for, and availability of, the person to contact regarding disclosure provided in Initial Disclosure Pack and any subsequent disclosure.
- Note that assigned Counsel queries e.g. subsequent disclosure should not be directed to O/C case and should be directed to the Police Prosecution Service identified.
- An address, Facsimile number and telephone number will be provided for the identified PPS office.
Note: For the purposes of the project the PPS will have two prosecution officers in Manukau and one in Tauranga dedicated to the disclosure and CMM processes.
What Disclosed to Duty Solicitor
If Counsel have not been assigned and a Duty Solicitor is representing the Defendant, the Duty Solicitor will be provided with a "Duty Solicitor Pack" for initial disclosure. This will be provided on the day of the first appearance.
| Duty Solicitor Pack
A Duty Solicitor pack will contain the following:
Note: Additional documents such as statements and EBA exhibits may also be included. |
Record of Disclosure
The Record of Disclosure is a mechanism for Police and the Judicial Officer / Registrar to know what has been provided to whom and when. There are two ways in which the provision of disclosure packs will be recorded (both Initial Disclosure Pack and Duty Solicitor Pack):
| 1. Initial Disclosure Record (See Appendix One)
When Assigned Counsel / Self Represented Defendant obtains the Assigned Counsel initial disclosure pack from the Prosecutor at court or the Prosecution Support Officer at the relevant PPS office, the initial Disclosure Receipt will be used to record the provision of disclosure:
2. Record on Prosecution File of Provision of Disclosure or Initial disclosure not collected?
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Best Practice for Adjournments
If parties identify that disclosure has not been provided as a reason for an adjournment the Judicial Officer or Registrar should follow up with the parties on why the adjournment is needed and how long it will take. If an adjournment is provided the period given should be as long as required for the action to take place (i.e. the disclosure being provided). However, it is recommended that the adjournment period be for a maximum of two weeks (10 working days). It is important that when an adjournment is granted that the reason is noted on the court file. More information on best practice for adjournments is included in Part Three of the Guidelines.
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PART TWO: Best Practice for Enabling Counsel to Receive Instructions from the Defendant and Case Progression |
The Guidelines identify best practice for enabling Instructions to counsel from the defendant, by providing:
- Clarification around who to contact to discuss charge and plea discussions;
- Measures to enable charge and plea discussions (outside of the CMM Process);
- Best practice for adjournments in the list stage.
Instructions
Defence Counsel should give initial advice and obtain instructions from the defendant before court hearings and prior to any charge and plea discussions. Defence Counsel should make themselves available to the Defendant to enable instructions to be given.
Contact within New Zealand Police for Discussing Case Progression
Any charge and plea discussions (including charge determination) should be with a Police Prosecutor rather than to the Officer in Charge of the case or Criminal Justice Support Unit. An address, facsimile number and telephone number will be provided for the PPS office on the disclosure receipting document.
Contact Person
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Enabling Case Resolution / Charge Determination Discussions
To enable discussions between Police Prosecutors and Defence Counsel in the list stage it will be best practice for Police Prosecutors to be available for discussions with Defence Counsel on the day of the first and second appearances, and in between the court hearings at PPS Office’s. If a Prosecutor is not available for discussions Defence Counsel should leave a message containing their contact details and the relevant case.
Availability
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Best Practice for Adjournments
All matters relating to instructions in the list stage should be resolved by the second appearance. If parties identify that an adjournment is needed for advice and instructions, where possible, a Judicial Officer or Registrar should discuss with the parties what is needed to occur to gauge how long it will take and be able to schedule the next court event more effectively. If an adjournment is provided the period given should be as long as required for the action to take place and a stand down may be more appropriate. However, it is recommended that the adjournment period be for a maximum of two weeks (10 working days). It is important that when an adjournment is granted that the reason is noted on the court file. More information on best practice for adjournments is included in the procedure section below.
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PART THREE: Roles and Responsibilities |
OVERVIEW
Where possible the list court stage should be limited to two list hearings and a period of two weeks (i.e. first event and an adjournment for the maximum of 10 working days, if required, and then the second event). All matters relating to initial disclosure should be resolved by the second appearance. The diagram below summarises the procedure for the Guidelines on Initial Disclosure.
Prior to the day of the first court appearance it is recommended that the following will occur:
Criminal Justice Support Unit (If operating at test site)
1.1 Preparation of the Police File and disclosure packs (if not done by the Officer in Charge of the case).
1.2 Provision of the prepared disclosure packs to the Prosecutor or Prosecution Support Officer (Provided on prosecution file).
Officer in charge of the case:
1.3 Preparation of the Police File and disclosure packs (if not done by the Criminal Justice Support Unit).
1.4 Provision of prepared disclosure packs to the Police Prosecutor or Prosecution Support Officer (Provided on prosecution file).
1.5 An Officer in Charge of the case may also provide initial disclosure via PPS if first appearance is >21 days from commencement.
Prosecutor:
1.6 rosecutors will ensure that the Duty Solicitor Pack and Initial Disclosure Packs are prepared and ready to be given to Counsel, where possible, on the day of the first appearance.
1.7 It will be best practice for Prosecutors to be available in the PPS Office to answer any queries from Defence Counsel if contacted by Counsel prior to the day of first appearance.
Defence Counsel:
1.8 If contacted by a Defendant who has been charged and summonsed or police bailed to appear on a future date, contact can be made with the PPS Office to arrange for pick up of the Initial Disclosure Pack (if available). If appropriate a legal aid application can be made prior to the first appearance.
1.9 Defence Counsel should make full use of the time set aside by Police Prosecutors for discussions on case progression and charge determination prior to the day of first appearance. If a Prosecutor is not available for discussions Defence Counsel should leave a message containing their contact details and the relevant case.
2 Day of First Appearance (Prior to Court Event)
On the day of the first appearance, prior to the court event, it is recommended that the following occur:
Police Prosecutor:
2.1 Police Prosecutors will ensure that the initial disclosure packs as prepared by the Criminal Justice Support Unit or Officer in Charge are made available to Defence Counsel / Duty Solicitor or Self-Represented Defendant. Police prosecutors (or delegated person) will complete the receipting requirements if assigned Counsel seek the assigned counsel initial disclosure pack.
2.2 It is best practice for Police Prosecutors to be available at court or at the PPS office on the day of a first appearance for plea and charge discussions with Counsel. This may be after Counsel has uplifted the Initial Disclosure Pack and has been able to have discussions with the defendant.
Police Prosecution Service Support Officer (PSO):
2.3 Prosecution Support Officers will be responsible for issuing prepared assigned Counsel Initial Disclosure Packs (including packs prepared by Criminal Justice Support Unit) at the PPS office.
2.4 Prosecution Support Officer’s will request that when Initial Disclosure Packs are issued, the Defence Counsel / Self Represented Defendant check the contents of the pack against the Initial Disclosure Record Sheet, and then acknowledge receipt by signing the bottom of the Initial Disclosure Record Sheet and recording their name and the date that the pack was uplifted. The Prosecution Support Officers will also sign the receipt document and date it.
2.5 If Defence Counsel or a Self Represented Defendant are provided with an Initial Disclosure Record Sheet and will not sign copies of the Sheet the Prosecution Support Officer is to check the content of the Initial Disclosure Pack and formally record with signature that provision was made on three copies of the Initial Disclosure Record.
2.6 The Prosecution Support Officer will ensure the Initial Disclosure Record Sheet will be placed on the Prosecution file and a copy will be given to the Registrar for the Court file.
Defence Counsel:
2.7 Where the defendant wants to apply for legal aid the Counsel should assist the defendant in completing the application and filing it as soon as possible.
2.8 Defence Counsel should make full use of the time set aside by Police Prosecutors for plea and charge discussions prior to the first appearance.
2.9 Where possible Counsel should obtain instructions for their client prior to the first appearance.
2.10 Upon receiving the Initial Disclosure Pack, Defence Counsel should check the contents of the pack against the Initial Disclosure Record Sheet, acknowledge receipt by signing the bottom of the Initial Disclosure Record Sheet (three copies), and record their name and the date that the pack was uplifted.
2.11 Advise Prosecution Support Officer or Police Prosecutor as soon as possible if there is a dispute about the disclosure material provided.
Duty Solicitor
2.12 Where the defendant wants to apply for legal aid the Duty Solicitor should assist the defendant in completing the application and filing it as soon as possible.
2.13 Duty Solicitors should make full use of the time set aside by Police Prosecutors for discussions and negotiations prior to the first appearance.
2.14 Where possible Duty Solicitors should obtain instructions for their client prior to the first appearance.
2.15 If the Defendant is unrepresented at the first appearance and seeks advice from the Duty Solicitor, the Duty Solicitor will approach the Police Prosecution Service representative to uplift the Duty Solicitor Pack.
Registrar
2.16 If the Defendant is not represented by Counsel to refer the Defendant to a Duty Solicitor as soon as possible, prior to the first appearance.
2.17 When a defendant has been arrested and is given police bail or summoned to court, the first appearance time should always be 9am. This is to allow time for the defendant to receive legal advice prior to the hearing and to appear before a registrar if appropriate. Likewise any person who has been arrested and is in custody and awaiting a court hearing should be brought to court and be available for a 9am appearance.
2.18 The Registrar will place a copy of an Initial Disclosure Record Sheet on the Court File when provided to them.
3 First Appearance
At first appearance it is recommended that the following occur:
Police Prosecutor:
3.1 Where the Initial Disclosure Pack is not available or not completed prior to the first appearance of the defendant, the Police Prosecutor will advise the Judicial Officer / Registrar when it will be available / completed.
Defence Counsel
3.2 Defence Counsel will advise the Judicial Officer / Registrar if there is a dispute around the provision of disclosure.
3.3 Defence Counsel should advise the Judicial Officer / Registrar if an adjournment is needed for instructions to Counsel or for an application for Legal Aid to be processed, and how long this is likely to take.
Judicial Officer / Registrar
3.4 If there is a dispute on whether disclosure has been provided the Judicial Officer may refer to the Record of Disclosure document as part of his/her consideration of whether to adjourn the case.
3.5 If an adjournment is needed for instructions to counsel, for disclosure, or for legal aid, where possible a Judicial Officer / Registrar should discuss with the parties what is needed to gauge how long it will take and be able to schedule the next court event more effectively.
3.6 If an adjournment is needed it is recommended that the adjournment period be for a maximum of two weeks (10 working days). Some matters may only require a stand down.
3.7 Ensure that any cases that are adjourned for a second administrative list event should be bailed or remanded to 9am on the next date of hearing.
3.8 If an adjournment is made it should be documented on the court file, including the reason. The Judicial Officer should ensure that the reason for adjournment is clearly communicated to the Court Taker to note on the file.
4. Prior to Second Appearance (including on the Day of the Second Appearance)
After the first appearance and prior to the second appearance, including the day of the second appearance it is recommended that the following occur:
Criminal Justice Support Unit
4.1 Provision of the prepared disclosure packs to the Police Prosecutor or Prosecution Support Officer prior to the second appearance of the defendant in the case (Provided on prosecution file) (If not provided previously).
Officer in charge of the case:
4.2 Provision of prepared disclosure packs to the Police Prosecutor or Prosecution Support Officer prior to the second appearance of the defendant in the case (Provided on prosecution file) (If not provided previously).
Prosecutor:
4.3 Police Prosecutors will ensure that prepared initial disclosure packs are provided to Defence Counsel / Duty Solicitor or Self-Represented Defendant on the day of the second appearance. It will be best practice for the assigned Counsel to have uplifted the assigned Counsel initial disclosure pack from the PPS office well before this Court event.
4.4 It is best practice for a Police Prosecutor to be available at court or in the PPS office on the day of a second appearance to encourage case and charge discussions with Counsel. This may be after Counsel has uplifted the Initial Disclosure Pack and then been able to have discussions with the defendant and before the court event.
Police Prosecution Service Support Officer (PSO):
4.5 Prosecution Support Officer’s will be responsible for issuing prepared Initial Disclosure Packs from the PPS office (including packs prepared by Criminal Justice Support Unit) (if not issued earlier).
4.6 Prosecution Support Officer’s will request that when Initial Disclosure packs are issued, the Defence Counsel / Self Represented Defendant check the contents of the pack against the Initial Disclosure Record Sheet, and then acknowledge receipt by signing the bottom of the Initial Disclosure Record Sheet and recording their name and the date that the pack was uplifted. The Prosecution Support Officer will also sign the receipt document and date it.
4.7 Where Defence Counsel or a Self Represented Defendant will not sign copies of the Disclosure Record Sheet the Prosecution Support Officer is to check the content of the Initial Disclosure Pack and formally record with signature that provision was made on three copies of the Initial Disclosure Record.
4.8 The Prosecution Support Officer will ensure the Initial Disclosure Record Sheet will be placed on the Prosecution file and a copy will be given to the Deputy Registrar for the Court file.
Defence Counsel:
4.9 Advise Prosecution Support Officer or Police Prosecutor as soon as possible if there is a dispute about the disclosure material provided.
4.10 If the Initial Disclosure Pack is not obtained by Counsel at court on the day of the first appearance the Defence Counsel should obtain the Initial Disclosure pack from the PPS office.
4.11 Defence Counsel should make full use of the time set aside by Police Prosecutors for discussions on case progression and charge determination prior to the second appearance. If a Prosecutor is not available for discussions Defence Counsel should leave a message containing their contact details and the relevant case.
4.12 Defence Counsel should obtain instructions for their client prior to the second appearance (where possible).
4.13 Assigned Counsel should provide counsel acting as their agents or new counsel the initial disclosure pack they were provided.
5. At Second Appearance
It is expected that at the second appearance for the majority of cases the case should be ready to proceed to the next event e.g. a status hearing, defended hearing, pre-depositions hearing. At the second appearance a plea should be entered and an election given if applicable.
