General provisions about disclosure of information
10 Service
- (1) Information required to be disclosed to, and any notice or application required to be given to or served on, any person under this Act may be given to or served on the person—
- (a) by personal delivery to that person or, if the person refuses to accept the document or notice, by bringing the document or notice to that person's attention; or
- (b) by post or facsimile addressed to that person, or by electronic means, at an address nominated by the person or, if no such address has been nominated, at the person's last known postal address or place of residence or business.
(2) Information required to be disclosed to, and any notice or application required to be given to or served on, a defendant under this Act may, if the defendant is represented by counsel, be given by any of the methods described in subsection (1) to the defendant's counsel.(3) If information or a notice or application is posted to any person (whether physically or by electronic means), it will be treated as having been received by that person not later than 4 days after the date on which it was posted, unless the person proves that, otherwise than through fault on the person's part, it was not so received.(4) Information required to be disclosed under this Act may be disclosed in whatever form (including electronically) that the person disclosing the information holds it in at the time the obligation to disclose arises and that is readily accessible to the defendant.
11 Exercise of defendant's rights and duties by defendant's counsel
- (1) A right or duty conferred on a defendant by this Act may be exercised or performed by counsel representing the defendant.(2) A notice or report purporting to be given under this Act on behalf of the defendant by his or her counsel is, unless the contrary is proved, deemed to be given with the authority of the defendant.
Disclosure by prosecutor
12 Initial disclosure
- (1) At the commencement of criminal proceedings, or as soon as practicable after that time, and in any event not later than the applicable date, the prosecutor must disclose the following information to the defendant:
- (a) a summary that is sufficient to fairly inform the defendant of the facts on which it is alleged that an offence has been committed and the facts alleged against the defendant; and
- (b) a summary of the defendant's right to apply for further information under subsection (2) before entering a plea; and
- (c) the maximum penalty, and the minimum penalty (if one is provided for), for the offence; and
- (d) a list of the defendant's previous convictions that are known to the prosecutor; and
- (e) a list of any previous offences proved to have been committed by the defendant and of a kind to which section 284(1)(g) of the Children, Young Persons, and Their Families Act 1989 applies, that are known to the prosecutor.
(2) At any time after criminal proceedings are commenced or, in the case of a child or young person who appears in a Youth Court in relation to the commission or possible commission of an offence, at any time after that person's first appearance in the Youth Court, the prosecutor must, if requested by the defendant in writing, as soon as is reasonably practicable disclose the following information to the defendant:- (a) the names of any witnesses whom the prosecutor intends to call at the hearing or trial; and
- (b) a list of the exhibits that are proposed to be produced on behalf of the prosecution at the hearing or trial; and
- (c) a copy of all records of interviews with the defendant; and
- (d) a copy of all records of interviews of prosecution witnesses by a law enforcement officer that contain relevant information; and
- (e) a copy of job sheets and other notes of evidence completed or taken by a law enforcement officer that contain relevant information; and
- (f) a copy of any records of evidence produced by a testing device that contain relevant information; and
- (g) a copy of any diagrams and photographs made or taken by a law enforcement officer that contain relevant information and are intended to be introduced as evidence as part of the case for the prosecution; and
- (h) a video copy of any video interview with the defendant; and
- (i) a copy of relevant records concerning compliance with the New Zealand Bill of Rights Act 1990; and
- (j) a copy of any statement made by, or record of an interview with, a co-defendant in any case where the defendants are to be proceeded against together for the same offence; and
- (k) a list of any information described in paragraphs (a) to (j) that the prosecutor refuses under section 15, 16, 17, or 18 to disclose to the defendant, together with—
- (i) the reason for the refusal; and
- (ii) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 16, 17, or18 and (in the case of the interests protected by section 18) there is no overriding public interest.
(3) This section does not apply to a defendant who is charged with a minor offence as defined in section 20A(12) of the Summary Proceedings Act 1957 or with an infringement offence as defined in section 2(1) of that Act.(4) In this section, applicable date means—- (a) the date that is 21 days after the commencement of criminal proceedings:
- (b) in the case of a child or young person who is required to appear in a Youth Court in relation to the commission or possible commission of an offence, the date on which that person first appears in that Court:
- (c) any later date that the Court or Registrar allows, on application by the prosecutor, for the purposes of disclosure under this section.
13 Full disclosure
- (1) The prosecutor must disclose to the defendant the information described in subsection (2) as soon as is reasonably practicable after a defendant has—
- (a) pleaded not guilty to an offence proceeded against summarily; or
- (c) if the information has been laid indictably, made his or her first appearance in Court in relation to the offence.
(2) The information referred to in subsection (1) is—- (a) any relevant information, including, without limitation, the information (standard information) described in subsection (3); and
- (b) a list of any relevant information that the prosecutor refuses under section 15, 16, 17, or 18 to disclose to the defendant together with—
- (i) the reason for the refusal; and
- (ii) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 16, 17, or18 and (in the case of the interests protected by section 18) there is no overriding public interest.
(3) The standard information referred to in subsection (2)(a) is—- (a) a copy of any statement made by a prosecution witness; and
- (b) a copy of any brief of evidence that has been prepared in relation to a prosecution witness; and
- (c) the name and, if disclosure is authorised under section 17, the address of any person interviewed by the prosecutor who gave relevant information and whom the prosecutor does not intend to call as a witness; and—
- (i) any written account of the interview, whether signed or unsigned, and any other record of the interview; and
- (ii) any statement made to the prosecutor by the person; and
- (d) any convictions of a prosecution witness that are known to the prosecutor and that may affect the credibility of that witness; and
- (e) a list of all exhibits that the prosecutor proposes to have introduced as evidence as part of the case for the prosecution; and
- (f) a list of all relevant exhibits in the possession of the prosecutor that the prosecutor does not propose to have introduced as evidence; and
- (g) a copy of any information supplied to the prosecutor in connection with the case by any person or persons whom the prosecutor proposes to call to give evidence as an expert witness or witnesses; and
- (h) a copy of any relevant information supplied to the prosecutor by a person or persons whom the prosecutor considered calling to give evidence as an expert witness or witnesses, but elected not to do so.
(4) The obligation to disclose information to the defendant under this section as soon as is reasonably practicable is subject to any order made under section 30 or 32.(5) If information referred to in subsection (2) comes into the possession or control of the prosecutor, or is prepared in recorded form, after the prosecutor has disclosed information in accordance with subsection (1) and before the hearing or trial is completed, the prosecutor must disclose the information to the defendant as soon as is reasonably practicable.(6) The entitlement of a defendant to information under this section continues while the criminal proceedings are in progress (including any appeal against conviction) and during the period from the conviction until the expiry of the time for lodging an appeal against conviction.(7) To avoid doubt, a reference in subsection (1) to pleading not guilty includes—- (a) denying the charge under, or in accordance with, section 20A(5) of the Summary Proceedings Act 1957; or
- (b) requesting a hearing in accordance with section 21(6) of that Act (unless the request is accompanied by an admission of liability); or
- (c) denying the charge during any appearance before the Youth Court under Part 4 of the Children, Young Persons, and Their Families Act 1989.
14 Request for additional disclosure
- (1) At any time after the duty to make full disclosure has arisen under section 13, the defendant may request that the prosecutor disclose any particular information, identified by the defendant with as much particularity as possible.(2) The prosecutor must disclose information requested by the defendant under subsection (1) unless—
- (a) the information is not relevant; or
- (c) the request appears to be frivolous or vexatious.
(3) If a request under subsection (1) is declined by the prosecutor under subsection (2), the prosecutor must, as soon as is reasonably practicable after making the decision to decline the request, inform the defendant of that decision, together with—- (a) the reason for the decision; and
- (b) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 15, 16, 17, or 18and (in the case of the interests protected by section 18) there is no overriding public interest.
15 Prosecutor not required to record information or to obtain information for sole purpose of disclosure
- (1) Nothing in this Act requires a prosecutor to disclose information if, at the time a disclosure obligation would, but for this section, arise or at the time a request for disclosure is made, as the case may be,—
- (a) the prosecutor is not in possession or control of that information; or
- (b) the prosecutor does not hold the information in recorded form.
16 Reasons for withholding information
- (1) A prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if—
- (a) disclosure of the information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
- (b) disclosure of the information is likely to endanger the safety of any person; or
- (c) the information is—
- (i) material that is prepared by or for the prosecutor to assist the conduct of the hearing or trial; or
- (ii) a communication dealing with matters relating to the conduct of the prosecution and is between—
- (A) the prosecutor and another person employed by the same person or agency that employs the prosecutor; or
- (B) the prosecutor and any adviser to the prosecutor; or
- (iii) analytical or evaluative material prepared, in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor; or
- (d) the information is subject to sections 108 and 109 of the Evidence Act 2006 (which relates to information about undercover police officers); or
- (e) the information is subject to a pre-trial witness anonymity order under section 110 of the Evidence Act 2006 or a witness anonymity order under section 112 of the Evidence Act 2006; or
- (f) the information is subject to section 16 of the Victims Rights Act 2002 (which relates to information about witnesses’ addresses); or
- (g) the disclosure of the information would be likely to prejudice—
- (i) the security or defence of New Zealand or the international relations of the Government of New Zealand; or
- (ii) the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation; or
- (h) disclosure of the information would be likely to facilitate the commission of another offence; or
- (i) disclosure of the information would constitute contempt of Court or contempt of the House of Representatives; or
- (j) the information could be withheld under any privilege applicable under the rules of evidence; or
- (k) disclosure of the information would be contrary to the provisions of any other enactment; or
- (l) the information is publicly available and it is reasonably practicable for the defendant to obtain the information from another source; or
- (m) the information has previously been made available to the defendant; or
- (n) the information does not exist or cannot be found; or
- (o) the information—
- (i) reflects on the credibility of a witness who is not to be called by the prosecutor to give evidence but who may be called by the defendant to give evidence; and
- (ii) is not for any other reason relevant.
(2) If part only of the information may be withheld, the prosecutor must make the remainder of the information available if it is possible to protect the withheld information by deletion, summary, or otherwise.(3) If the prosecutor becomes aware that there has ceased to be any justification for withholding all or part of any information that has been withheld under this Act, the prosecutor must, if the criminal proceedings have not yet been completed, disclose that information to the defendant as soon as reasonably practicable.
17 Restriction on disclosing address of witness or informant
- (1) This section applies to information that identifies, or that may lead to the identification of, the address of the place where a witness or informant lives (for example, his or her postal address, residential address, email address, fax number, or phone number).(2) The information may be disclosed to the defendant only with the consent of the witness or informant or with the leave of the Court.(3) The Court—
- (a) must not grant leave unless it is satisfied that the disclosure of the information is necessary in the interests of justice and outweighs any prejudice to the witness's or informant's interests, or any harm to the witness or informant, that is likely to be caused by the disclosure of the information; and
- (b) may, if it grants leave, impose conditions in relation to the disclosure of the information.
(4) This section applies to an informant regardless of whether the prosecutor intends to call the informant as a witness.
18 Trade secrets may be withheld
- (1) The prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if disclosing the information—
- (a) would disclose a trade secret; or
- (b) would be likely to unreasonably prejudice the commercial position of the person who supplied, or who is the subject of, the information.
(2) Despite subsection (1), information must not be withheld under this section if, in the circumstances of the particular case, the interests in subsection (1) protected by the withholding of that information are outweighed by other considerations that make it desirable in the public interest to disclose the information._________________________________________________________________________
General powers of Courts in relation to disclosure
30 Court order for disclosure of information
- (1) The defendant may apply to the Court for an order that a particular item of information or type of information in the possession or control of the prosecutor be disclosed on the grounds that—
- (a) the defendant is entitled to the information under section 12, 13, or 14, as the case may be, and—
- (i) the prosecutor failed to disclose the information; or
- (A) none of the reasons described in section 16, 17, or 18 for which information could be withheld applies to the information; or
- (B) in the case of a refusal under section 17, the information ought to have been disclosed under section 17(3); or
- (C) in the case of a refusal under section 18, the information ought to have been disclosed under section 18(2); or
- (b) even though the information may be withheld under this Act, the interests protected by the withholding of that information are outweighed by other considerations that make it desirable, in the public interest, to disclose the information.
(2) If the Court is satisfied, on an application made under this section, that the defendant is entitled to the disclosure of any particular item of information or type of information, or that any particular item of information or type of information should be disclosed to the defendant under subsection (1)(b), the Court may order that the item or type of information be disclosed to the defendant.(3) An order made under this section may be made subject to any conditions that the Court considers appropriate.
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