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Calls for pre-trial hearings on disclosure of sensitive material in sex offence cases

The Law Reform Commission says difficulties have emerged in specific cases.

Image: Shutterstock/Africa Studio

PRE-TRIAL HEARINGS, where a judge decides if sensitive material like a victim’s counselling records need to be disclosed in sexual offence cases, need to be held, the Law Reform Commission has said.

A new report published today recommends legislation to clarify how the prosecution duty of disclosure should operate to ensure fair trials.

The report finds that while the current arrangements for disclosure generally work well, difficulties have emerged in specific cases and with particular types of offence, such as in sexual offence cases involving children.

Counselling records 

It said concerns have been expressed about how the current disclosure process deals with therapeutic and counselling records, including whether disclosure of these records is actually relevant to a trial and whether disclosure may adversely affect a child’s recovery.

In a criminal case, the prosecution must disclose to the defence all relevant evidence that it has gathered in its investigations. This might include witness statements, CCTV footage, forensic reports etc.

This includes everything that the prosecution intends to rely on in the trial as well as all material that it has decided not to use but which may be of use to the defence.

The purpose of the prosecution duty of disclosure is to ensure that the accused receives a fair trial and to prevent any possible miscarriage of justice.

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The Disclosure and Discovery in Criminal Cases report finds in a sexual offence case, the court should have regard to society’s interest in encouraging the reporting of sexual offences; society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and the public interest in ensuring that adequate records are kept of counselling communications, should be taken into account.

This is along with consideration of the seriousness of the charge; the importance of the prosecution material; whether the accused has already been adequately informed of the nature and substance of the accusation; and the likelihood of a risk of injustice from non-disclosure.

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