FACT SHEET 5: DEFENCE IDENTIFICATION OF ISSUES IN DISPUTE

What is the general proposal?

As part of the new case-management approach, the defence will be required to give notice of the issues that are in dispute in a particular case.

Why change the law?

There is currently no requirement, before a trial begins, for the prosecution and defence to discuss or agree on those aspects of a case that will need to be determined by the court, and those which the defendant does not seek to challenge.

This means that cases must progress as if everything is disputed, unless the defence voluntarily identifies issues that are agreed. As a consequence:

The prosecution must undertake preparation that is ultimately not required.

Witnesses are called unnecessarily.

Trials are unnecessarily complex and the judge or jury’s job is made more difficult.

Some trials progress further than they should.

How?

As part of the new case-management approach, the defence will be required (before trial) to give notice of the issues that are in dispute. If the defence unreasonably fails to follow this requirement, the judge and jury are entitled to draw their own inferences about why the defendant did not do so. If, for example, a defendant raises a defence at trial that it could have done at the earlier stage, a judge or jury might draw an inference about the credibility of that defence. Such inferences would not, by themselves, be enough to determine guilt, but would be another of the matters a judge or jury could take into account in reaching their decision. To ensure this process is fair, a judge must give both parties a chance to be heard on any failure to identify issues in dispute before any comment is made to the jury.

Benefits of proposal

Prosecution and defence resources would be saved by ensuring they are not misdirected to irrelevant matters. It is estimated, for example, that requiring the defence to identify issues in dispute will save approximately 450 court days per year, or around 10 per cent of expected total judge-alone and jury time.

Victims and witnesses will be inconvenienced less because they will have to appear only when they are really needed.

Because they will know what the case is before the trial begins, the fact-finder (judge and juries, but particularly juries) will be in a better position to assess the significance of the evidence presented.

The number of trials required may also decrease because defence counsel may determine that the case has little prospect of success.

International comparisons

Similar regimes are in place in the United Kingdom1, Victoria2, New South Wales3, Western Australia4, and South Australia5. Of the Australian states, Victoria’s regime is the most comprehensive.

1 Criminal Procedure and Investigation Act 1996

2 Crimes (Criminal Trials) Act 1999

3 Criminal Procedure Act 1986

4 Criminal Procedure Act 2004

5 Criminal Law Consolidation Act 1935

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