ABSTRACT
In addition to the many changes made by the Criminal Procedure and Investigations Act (CPIA) 1996 to the prosecution’s duty of investigation and disclosure, the act also created certain obligations on the defence. The defence is required, in matters triable on indictment, to provide a statement to the prosecution stating the nature of the defence, issues in the prosecution case that are in dispute and the reason for placing the issues in dispute.1 It is instructive to explore the issues surrounding the disclosure of the defence, first by considering the position at common law, and then by noting the incremental erosion by legislation of that position in the years before the CPIA 1996. This necessitates a description of the arguments for and against disclosure of the defence, as well as a description of the practice of informal discovery of the defence and the quasi-formal obligations arising out of certain local court initiatives. A brief statement will be made regarding the situation in Canada, where the common law position remains in force. The discussion will then concentrate on the provisions of the CPIA 1996, and provide a report on the experience to date. This chapter will conclude with a comment regarding the propriety of the obligation on the defence in the light of the evidence that some investigators and prosecutors are not complying with the CPIA 1996.
