Criminal Disclosure and the Unused Material
You act for the accused, Mr Nguyen, charged with robbery of a service station. The prosecution has served the brief, which includes the complainant's statement, CCTV footage from inside the store, and a witness statement from an employee. The CCTV shows a person in a hooded jumper, but the face is not visible. The prosecution has not disclosed: (a) the first statement of the employee, which was given two days after the incident and which, according to your instructing solicitor, described the offender as 'about 180 cm, slim'; (b) a second statement from the employee given three weeks later describing the offender as 'about 170 cm, stocky'; and (c) a note that the complainant was shown a photo board and did not identify Mr Nguyen. The trial is in six weeks. Mr Nguyen is 165 cm and of stocky build.
1. Identify the disclosure obligations engaged and assess whether the undisclosed material should be disclosed.
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The prosecution owes a continuing duty of disclosure of all relevant material in its possession, including material that may undermine the prosecution case or assist the defence. The three items are plainly relevant. The employee's first statement is a prior inconsistent description that bears on identification. The second statement, given three weeks later, differs materially and raises questions about the reliability of the identification and the circumstances in which the description changed. The photo board note is significant because a failure to identify is exculpatory: it supports the defence that Mr Nguyen was not the offender. Each item should be disclosed. The prosecution cannot withhold material merely because it is not part of the case it intends to lead. The duty is to disclose relevant material, and the test is relevance, not whether the prosecution believes the material is credible. The inconsistent descriptions and the non-identification are directly relevant to the central issue of identity.
2. Explain the steps you should take to obtain the material and any application you may need to make.
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You should write to the prosecution identifying the three items and requesting disclosure, setting out why each is relevant. If the material is not disclosed promptly, you should apply to the court for an order for disclosure or for production of the material. The application should be supported by an affidavit from your instructing solicitor setting out the basis of the belief that the material exists, including the source of the information about the first statement and the photo board. You should also seek confirmation of whether any other material exists, such as the photo board itself, the photographs used, and any record of the identification procedure. Given the trial is in six weeks, file the request immediately and, if necessary, seek a short return date. Consider whether the non-disclosure affects the trial date and whether an adjournment may be needed if the material is produced late. Keep a record of all correspondence.
3. Assess how the undisclosed material would affect the defence case and trial strategy.
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The material goes to the heart of identity, which is the only real issue. The employee's first description of a slim person about 180 cm is inconsistent with Mr Nguyen, who is 165 cm and stocky. The later description of a stocky person about 170 cm is closer but still inconsistent in height, and the change in description over three weeks invites scrutiny of the employee's memory and any influence on it. The failure of the complainant to identify Mr Nguyen on a photo board is powerful exculpatory evidence. Together, the material supports a submission that the identification evidence is unreliable and that the prosecution cannot exclude the possibility that another person committed the robbery. The CCTV does not show the face, so the prosecution case depends heavily on the descriptions. You should prepare to cross-examine the employee on the two statements and the complainant on the photo board, and consider whether to seek a direction on identification evidence. You should also consider whether the non-disclosure itself should be raised with the court.