Q: for the police re disclosure

[Tank]

My son (as some of you may remember) is up on a EBA charge.

We have just received the "disclosure" pack.

I was more than a little surprised how little was in it - nothing other than a caption sheet.

I thought that there would have been print outs of the breath reading, forms being signed by my son turning down blood test etc. In fact under exhibits it simply states "Documentary"

The whole sheet is as follows:
Name *
Address *
DOB*
Occupation*
Charges Drives with Excess Breath Alcohol
Witnesses: 1 x Police
Exhibits: Documentary

Summary of facts:
At about X.XX on XXXX the defendant XXXX was the driver of a Nissan motor vehicle registration XXX on XXX st Auckland City.

The Defendant was stopped where he exhibited signs of recent alcohol consumption

Breath test procedures were carried out, with the defendant recording a result of 528 micrograms of alcohol per litre of breath.

When spoken to the police the defendant said that he was on his way home.

The defendant is a 22 year old male who is currently employed at XXXX and has not appeared before the court before.

---------------

A couple of questions: Why are there no exhibits - I would have thought that there would have been printouts / accepting no blood test forms etc that would be submitted as evidence?

I dont know where they got his job from - but the details they entered on the form works at XXX is not where he works and he never has.

Does anything stand out? Is this normal?

[Winston001]

I share your surprise. If your son obtained disclosure personally (as opposed to through his solicitor), you should ask for the full info.

[Grub]

In fact i believe that if they have not disclosed the information to you, they cannot use it in evidence.

Here's an appeal Court decision which touches on the issue. There's more, Google is your friend

Commissioner of Police v Ombudsman [1988] 1 NZLR 385 (CA); also reported as Pearce v Thompson (1988) 3 CRNZ 268.

The judgments of the Court of Appeal (five member court) in this case established the present system, based upon the Official Information Act 1982, of disclosure by the prosecution in criminal cases.

The case brought to an end the unsatisfactory position that had previously applied in a summary hearing of a defended criminal case in the District Court, where the defendant had no advance disclosure of the evidence to be adduced against him. It also introduced the regime under which the Crown, in a trial on indictment, makes disclosure of material from the police file including statements made by witnesses to the police.

Mr Pearce had made application to the police, in relation to charges brought against him in the Upper Hutt District Court, for access to the briefs of evidence of the witnesses to give evidence against him. The request, which was made under the Official Information Act, was refused. The Ombudsman found in favour of Mr Pearce but the High Court took the contrary view and ruled that the briefs did not have to be disclosed (Commissioner of Police v Ombudsman [1985] 1 NZLR 578)

However, in this hearing, a five judge Court of Appeal decided that there is a general obligation on the prosecution, in summary proceedings, to disclose, on request, briefs of evidence, witness statements and police job sheets. The principles enunciated in the case applied equally to witness statements and job sheets in trials on indictment.

Don't say a thing now just turn up in court with a copy of this judgement, say you asked for the evidence and show that you haven't received it.

[Tank]

I share your surprise. If your son obtained disclosure personally (as opposed to through his solicitor), you should ask for the full info.

He asked for the disclosure at the initial hearing this morning when we received a 2 week extension in order to seek legal advise. The single sheet of paper was given in an envelope by the court / police at the hearing. It was recorded on the sheet that the public defendant has that disclosure was requested.

In fact i believe that if they have not disclosed the information to you, they cannot use it in evidence.

I thought that - but that just dosnt make sense - why would they only have a "documentary" as the sole exhibit - since this is something fairly common I thought that they would have all the paperwork as standard - perhaps they dont require it?

[Grub]

thought that they would have all the paperwork as standard - perhaps they dont require it?

See the Court of Appeal item I just added. It specifies "police job sheets"

[henry]

It's the polices job to convict you. They are not going to give up anything that is going to help you without you asking.

[Matt_TG]

It's the polices job to convict you. They are not going to give up anything that is going to help you without you asking.

Just a comment, I thought it was the judge who was the one that convicts you, the Police bring the matter to the judge.

[scumdog]

See the Court of Appeal item I just added. It specifies "police job sheets"

The only extras would be the E.B.A. check list (ask for it) and the Q.H.A. (if your son has any criminal record - I don't think he has)

Job-sheets are rarely done for standard E.B.A. files, only if something is exceptional in the case.

Normally in a lot of cases the Summary of Facts and Q.H.A. are all that are initially disclosed as for anything else to be disclosed wastes time due to most drunk-drivers not even bothering with even the S.O.F and Q.H.A.

With defended hearing more is disclosed.

I disclose all I have but that's my choice 'cos it saves losers clutching at straws trying to defend the indefensible....

[Winston001]

Hmmmm......I know Grub is being helpful but a 1988 case isn't always relevant in 2008. It might be - but I wouldn't bet the whole defence on it. For example, this decision pre-dates the NZ Bill of Rights Act 1990 and the Land Transport Act 1998.

Yes, it is arguable to defend on the basis of insufficent disclosure but if the police ask for an adjournment on the basis of it being overlooked..... Its a legal argument, not for the layman.

[madbikeboy]

Instead of fighting something that looks like it is correct - meaning that his blood/alcohol exceeds the limit, and at 528, he's well over the limit - why aren't you instead telling your son to get his shit together and not drive drunk. That way people like those who I have lost as a result of moronic people who choose to drink and drive, would be alive and I'd be a happier person.

Red bling accepted gracefully (as I'm sure it's on its way).

[sunhuntin]

Just a comment, I thought it was the judge who was the one that convicts you, the Police bring the matter to the judge.

its the prosecutors [polices] job to prove guilt beyond reasonable doubt.

[jrandom]

My son (as some of you may remember) is up on a EBA charge.

Presumably he actually dunnit. Right? It was him driving the car, and there's no reason to suspect that the BA measurement was inaccurate?

So why isn't he just pleading guilty?

If the facts of a matter allow it to be argued in court, well and good, but I personally have no time for people who try to weasel out of shit they actually did. A fair cop is a fair cop.

[SPman]

... A fair cop is a fair cop.

But - society is to blame!

[jrandom]

But - society is to blame!

Precisely.

Not to mention that, as we all know, there is no moral culpability associated with drunk driving unless the police get the paperwork right.

[Skyryder]

I don't think any charge no matter what calls for a guilty plea based soley on guilt. If this was the case then the police, courts, etc would simply just get slack with the result that an innocent person may be convicted because of sloppy police or court procedures. If a defendent chooses to query the evidence that is their right. Personly if he is found guilty then he needs the book thrown at him but untill that happens dad or anyone else for that matter has the right to query the evidence or the lack of it.


Skyryder