New disclosure obligations for informants in criminal proceedings commence on 1 October 2022. These obligations arise from the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022 (Vic) introduced as a result of the Royal Commission into the Management of Police Informants.
Some changes have already occurred as a result of parts of this legislation coming into effect on 16 February 2022 including provisions relating to:
- DPP proceedings and informants’ obligations to notify the DPP of the existence and nature of information, documents or things even where they cannot be provided; and
- Processes for applying for a non-disclosure order from the Court.
From 1 October 2022, further changes will come into effect including new sections 41A, 110A and 119(fa) of the Criminal Procedure Act 2009 (Vic). These changes aim to focus the informant’s mind on their important existing obligations of disclosure by requiring a disclosure certificate to be completed, served and filed.
These changes are particularly important as the prosecution's duty of disclosure continues throughout the entire life of a prosecution and is critical to ensure fairness in all prosecutions and safe convictions.
Section 41A will requires a relevant officer to complete a disclosure certificate in any proceeding in which a full brief is served. This certificate must:
- Be in the form prescribed;
- Acknowledge the relevant officer is aware of their disclosure obligations and that the certificate has been reviewed by a more senior officer;
- Describe relevant information, documents or things not contained in the full brief because they are subject:
- to a claim of privilege or public interest immunity; or
- immunity conferred by statute; or
- a prohibition or restriction provided by statute
The relevant officer is required to serve a copy of the certificate on the accused at the time the brief is served on them and file a copy of the certificate with the registrar within 7 days of service of the full brief.
In DPP matters, the relevant officer must also forward a copy of the disclosure certificate to the DPP within 7 days after serving the brief on the accused.
These new obligations apply to the ‘relevant officer’ which is either:
- the informant; or
- if the informant did not investigate the offence that is the subject of the proceeding, the law enforcement officer who prepared the full brief.
Section 110A will reflect the same obligations as section 41A but in relation to hand-up briefs.
Subsection 119(fa) will require the prosecution to describe in a case direction notice any information, document or thing which was not described in a disclosure certificate under section 110A.
For further information
If you are an informant agency and want to discuss how best to meet your disclosure obligations please get in contact with Kylie Walsh or Daniel Silfo.
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