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15 August 2017
The High Court(1) recently aborted the trial of four company directors of two failed finance companies after the prosecution disclosed an unprecedented number of previously undisclosed documents at an advanced stage of the trial. The court's careful examination of the principles for aborting a single-judge trial will be useful in similar cases, in light of the fact that, because complex commercial criminal cases involve immense numbers of documents, disclosure failures can occur.
The trial began in August 2016. In October 2016, during the prosecution's case, the crown disclosed a further 171 documents following cross-examination of a prosecution witness. However, when it did so, it failed to provide a list of the further 14,619 documents, which it considered were able to be withheld under the Criminal Disclosure Act 2008. The failure was conceded to be a breach of the act, which entitles defendants to know "as soon as is reasonably practicable" of withheld documents so that they may challenge the grounds on which they have been withheld.
The list was not provided to defence counsel until late March 2017 at which point the prosecution had closed its case and the evidence of the third defence witness was drawing to a close. The trial was then adjourned to enable counsel to consider the list and resolve disclosure issues. Over the ensuing few months, disclosure of over 5,000 of the listed documents was given. It was expected to take a further two months to address issues of disclosure of the remaining documents and rulings were likely to be required. In May 2017, the defence applied to abort the trial on the grounds of prejudice.
As mistrials were rare in single-judge proceedings, there were few precedents. To establish the relevant principles, the judge considered other remedies, such as stays of prosecution, mistrials in jury trials and appeals against convictions arising from single-judge trials. He held that the power to declare a mistrial was within the court's inherent jurisdiction; although less extreme than a stay, a mistrial was nevertheless an extreme remedy, the exercise of which required caution. The following principles applied:
In order to assess whether the breach of disclosure requirements in the present case met the test for aborting the trial, the judge considered the potential impact of three example documents that had recently been disclosed, as well as the wider consequences of the breach:
In his view, each document demonstrated the potential impact of the breach.
More generally, the judge noted that, if the trial were to proceed, there would be a further delay of several months before it could resume, and it was unclear how long it would then take if it did so. He considered that unnecessary delay had already caused needless complexity in the trial. In this respect he contrasted the present trial with that in Kellard v R,(2) in which the UK Court of Appeal held that, while the range and weight of evidence was large, its summary and presentation meant that it could be readily understood. The present trial had not featured a straightforward presentation of evidence and a clear issue to be decided. The changes to the evidence called, and the numerous adjournments, had already made it increasingly complex and difficult to understand. The disclosure problems were still not resolved and future adjournments, recall of witnesses and disjointed revisiting of evidence would make matters worse.
Even if the crown were correct that the number of undisclosed documents was exaggerated by several thousand (because of duplicates in the list), the cumulative effect of the undisclosed documents could have made a difference to the defence. In reaching this conclusion, the judge took the following into account:
Accordingly, the judge considered that the crown's breaches of the Criminal Disclosure Act had restricted the choices open to the defence in respect of the presentation of their case, both in manner and extent. A mistrial was declared accordingly.
As the judge noted at the beginning of the judgment, quoting the lord chief justice of England,(3) the quantity of documents in fraud cases are liable to be immense and problems of disclosure intractable. Defendants have a right to disclosure of relevant documents, but equally the burden of disclosure on the prosecution is enormous. The volume of late disclosure in this case was described as "seemingly unprecedented", and the issues with which the judge grappled as a result will be a useful benchmark in future cases. In addition to drawing together key principles from analogous cases to set out a test for aborting single-judge trials for non-disclosure, it sets out some of the practical considerations that might be relevant in relation to specific documents, in determining whether the threshold for prejudice has been met.
For further information on this topic please contact Chris Browne at Wilson Harle by telephone (+64 9 915 5700) or email (firstname.lastname@example.org). The Wilson Harle website can be accessed at www.wilsonharle.com.
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