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Pre-trial defence disclosure in South Australian criminal proceedings: time for change?
Citation
Line, L and Wyld, C and Plater, D, Pre-trial defence disclosure in South Australian criminal proceedings: time for change?, Adelaide Law Review, 37 pp. 101-134. ISSN 0065-1915 (2016) [Refereed Article]
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Copyright Statement
Copyright 2016 The Authors
Official URL: http://www.adelaide.edu.au/press/journals/law-revi...
Abstract
The issue of defence disclosure in criminal proceedings has come under
renewed focus as a result of the recent Criminal Procedure Amendment
(Mandatory Pre-Trial Defence Disclosure) Act 2013 (NSW) which
imposes comprehensive duties similar to those that exist in Victoria and
England. This article argues that South Australia also needs legislative
reform to implement broader requirements for pre-trial defence disclosure.
This article suggests that cultural change amongst lawyers and judges
is also required. South Australia would benefit from such reforms as it
would improve the efficiency of the criminal trial process. The increased
complexity and length of modern criminal trials, combined with the current
financial climate, means that criminal procedural reform must be shaped by
considerations for efficacy. The legislature must be willing to take a more
managerialist approach to criminal procedure, while still preserving an
accused’s rights within the adversarial system. It is suggested that the traditional
arguments against defence disclosure are more rhetorical than real
and that current resistance to South Australia’s existing pre-trial defence
disclosure regime is explicable by a wider cultural resistance within the
legal community to mandated defence disclosure. In order for a stricter
regime of defence disclosure to be successfully implemented, Parliament
needs to be mindful of this culture and provide incentives for an accused
to participate in pre-trial disclosure, rather than relying solely on sanctions
for noncompliance. Despite the challenges in this controversial area, a
scheme for fair, effective and enforceable pre-trial defence disclosure can
be identified and should be adopted in South Australia.
Item Details
Item Type: | Refereed Article |
---|---|
Research Division: | Law and Legal Studies |
Research Group: | Law in context |
Research Field: | Criminal law |
Objective Division: | Expanding Knowledge |
Objective Group: | Expanding knowledge |
Objective Field: | Expanding knowledge in law and legal studies |
UTAS Author: | Plater, D (Dr David Plater) |
ID Code: | 111645 |
Year Published: | 2016 |
Deposited By: | Law |
Deposited On: | 2016-09-27 |
Last Modified: | 2017-10-17 |
Downloads: | 0 |
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