GOVERNMENT Senator K D Knight yesterday cautioned the Parliamentary Committee deliberating the proposed Committal Proceedings Act against sanctioning a provision in the Bill which would put an obligation on the defence to disclose material to the prosecution in committal proceedings.

“That has never been the case so it is a shift where this obligation is being placed on the defence and it just seems to me that this is not the statute to do that; that is a major change and it would seem there ought to be some greater consideration because this is now placing an obligation on the defence that was never there,” Senator Knight told the House committee yesterday.

Senator Knight was supporting a concern raised earlier by Government Committee Member Sharon Ffolkes-Abrahams who was perturbed by a proposed provision in the Bill stating that copies of statements should be served on other parties to the proceedings.

“Although I know that generally there is a disclosure requirement for all documentation that will be relied on from the prosecution and those which may go against the prosecution, when we put it in a statute like this to say only those that are being relied on should be given to the accused or to all parties, I think that that might be going against disclosure requirements for all statements even those that may not support the prosecution’s case,” Ffolkes-Abrahams noted.

Senator Knight, commenting further on the issue said the proposal gave him an ill-feeling. “In support of my colleague’s position the prosecution may have material which is not necessary to the committal but such material may contain information which could prevent a committal and if not disclosed the person is put in peril when he or she should not have been. So in truth whatever the material is, whether it be favourable or unfavourable, it should be disclosed to the defence.

“There is a little queasiness in me through this door to put an obligation on the defence to disclose, it is a radical departure and radical departures should enter through the front door,” Senator Knight said.

Committee Chairman, Justice Minister Mark Golding, who said he accepted the point raised by Senator Knight, noted that the provision has been in the Bill for some time.

“The defence is not obliged… but if they have material they intend to put before the magistrate to facilitate the process running smoothly and for there to be nothing by ambush, the idea is that that information will be shared,” Senator Golding said. He noted that the provision, which was of concern, had been passed already by the Lower House.

“Senator Knight has said that is a fairly substantial change from what now obtains where the defence has no obligations to disclose anything and I don’t wish to take issue with him on this because the purpose of this is not to overhaul the rules around disclosure so I don’t mind that adjustment to it,” Senator Golding said.

Senator Golding also told the committee that the Office of the Director of Public Prosecutions was in the process of publishing a disclosure protocol that would cover their disclosure obligations and codify them.

“Case law over the years has elucidated the breadth of the disclosure obligations that are imposed on the prosecution. This is really dealing specifically with matters that are to be disclosed for the purposes of the Committal Proceedings, which are documents that are intended to be considered during the proceedings. It wasn’t our intention in this particular legislation to try to develop an overall disclosure regime for criminal case management,” he said.

“That is something I think will come in time. This is really focusing on the obligation that the prosecution and defence should share with each other any material that is going to be considered in the Committal proceedings itself and that is as far as it goes in this legislation,” Senator Golding added.

The Act seeks to abolish preliminary enquiries in Resident Magistrate’s courts and reduce the backlog of cases by introducing a new procedure called “committal proceedings”. According to the Memorandum of Objects and Reasons, the Bill seeks to reduce the “unnecessary delay and expense” in bringing criminal proceedings to conclusion.

Legislators hope that its introduction will alleviate or reduce problems caused by the unavailability of witnesses to give evidence as well.

The Bill was drafted by the previous government under former Attorney General and Minister of Justice Dorothy Lightbourne, and tabled in 2011. It was, however, hampered by a row between Senator Lightbourne and then Opposition senators who wanted it to be sent to a joint select committee, a delay which the minister was trying to avoid as it was meant to support efforts to speed up the course of justice in the courts.

The Bill was eventually tabled in the House of Representatives in August 2011 by Lightbourne’s successor, Delroy Chuck. But although a debate started in October 2011 it was not concluded.

The Bill proposes the use of written statements in committal proceedings as evidence “to the same extent and effect” as if the person had given real evidence before a resident magistrate. On the basis of this evidence alone, the resident magistrate may commit an accused person to stand trial in the circuit court.