Clause 23

In this Part, “unused material” means any material —

in the prosecution’s possession, other than —

any written statement made by an accused at any time and recorded by an officer of a law enforcement agency under any law; or

any other statement given by the accused and recorded, in the form of an audiovisual recording, by an officer of a law enforcement agency under any law, including a transcript (if any) of the audiovisual recording of that statement;

that the prosecution —

does not include either in the list of exhibits mentioned in section 162(1)(d) or 214(1)(c) or in a notice mentioned in section 231, where the criminal case disclosure procedures apply; or

does not intend to adduce in evidence at the trial of any charge or charges in a case where the criminal case disclosure procedures do not apply in relation to the charge or charges;

that is —

likely to be admissible and is prima facie credible and relevant to the guilt or innocence of an accused; or

likely to be inadmissible, but would provide a real (not fanciful) chance of pursuing a line of inquiry that leads to material that falls within the description in sub‑paragraph (i); and

that either tends to —

undermine the prosecution’s case; or

support the accused’s defence as stated by the accused in —

the accused’s statement or statements to the relevant law enforcement agency;

the Case for the Defence; or

the accused’s testimony in court.Illustrations(a)A and B are charged with the murder of C in C’s house. A witness D gave a statement to the police that only one intruder was in C’s house at the time of the murder. If D’s statement is in the prosecution’s possession and the prosecution did not include the statement in either the list of exhibits mentioned in section 214(1)(c) or a notice mentioned in section 231, D’s statement constitutes unused material if —

the prosecution’s case is that both A and B broke into C’s house and killed C;

A’s statement or statements to the relevant law enforcement agency or Case for the Defence states that A was not at C’s house at the time of the murder; or

A gives testimony in court that A was not at C’s house at the time of the murder.(b)An anonymous letter to a police officer investigating an offence that contains a bare assertion that the accused is not guilty of the offence does not constitute unused material if the police is unable to trace the identity of the person who wrote the letter.(c)A photograph of a room where a murder was committed taken a long time after the murder, and after the room has been renovated such that it no longer resembles what it looked like at the time of the murder, does not constitute unused material.(d)A statement of a person (A) that A had committed the offence of voluntarily causing grievous hurt, instead of the accused, does not constitute unused material if it is incontrovertible that A was not at the scene of the crime when the offence was committed.(2) In this Part, “material witness” means any witness (other than a prosecution witness) who may confirm or contradict, in material respects, an accused’s defence as set out in —

the accused’s statement or statements to the relevant law enforcement agency;

the Case for the Defence; or

the accused’s testimony in court.(3) For the purpose of determining what the accused’s defence is for the purposes of subsection (1)(d)(ii) or (2) or section 221B(2), any defence that cannot reasonably be ascertained from the accused’s statement or statements to the relevant law enforcement agency, the Case for the Defence or the accused’s testimony in court is to be disregarded.(4) In subsections (1)(d)(ii), (2)(a) and (3) and section 221B(2), “accused’s statement” means —

any written statement made by the accused at any time and recorded by an officer of the relevant law enforcement agency; or

any statement made by the accused at any time to an officer of the relevant law enforcement agency, that is recorded in the form of an audiovisual recording.(5) In this section, “Case for the Defence” and “criminal case disclosure procedures” have the meanings given by section 157 or 172, as the case may be.Prosecution’s obligation to serve certain materials on defence221B.—

Without affecting any requirement imposed under any rule of law (so far as it is not inconsistent with this Code or any other written law) relating to the prosecution’s obligation to serve on the defence any type of material in the prosecution’s possession, or the time of service of such material, the prosecution must serve the following materials on the defence in accordance with this section:

any unused material in relation to the charge or charges to be, or that are, proceeded with at the trial;

any statement of any material witness that relates to the charge or charges to be, or that are, proceeded with at the trial;

any written statement made by the accused at any time and recorded by an officer of a law enforcement agency under any law in relation to the charge or charges to be, or that are, proceeded with at the trial, which the prosecution did not —

adduce in evidence at the trial at any time before the accused has completed his or her testimony in court or has elected not to testify, whichever is applicable; or

serve on the defence under section 161(2), 166(1), 213(1) or 218(1);

a transcript (if any) of any other statement given by the accused and recorded, in the form of an audiovisual recording, by an officer of a law enforcement agency under any law in relation to the charge or charges proceeded with at the trial, which the prosecution did not —

adduce in evidence at the trial at any time before the accused has completed his or her testimony in court or has elected not to testify, whichever is applicable; or

serve on the defence under section 161(2), 166(1), 213(1) or 218(1).(2) To avoid doubt, the prosecution is not required to serve any statement of a prosecution witness who may confirm or contradict, in material respects, an accused’s defence as set out in the accused’s statement or statements to the relevant law enforcement agency, the Case for the Defence, or the accused’s testimony in court, unless the statement constitutes unused material.(3) Where in relation to the charge or charges against an accused that the prosecution intends to proceed with at the trial, the criminal case disclosure procedures apply by virtue of section 159 or 211A, the prosecution is required to serve on the defence the following materials at the following times:

the materials mentioned in subsection (1)(a) that relate to the charge or charges at the same time that the Case for the Prosecution is served on the defence under section 161(2) or 213(1);

the materials mentioned in subsection (1)(b) that relate to the charge or charges —

in the case where the Case for the Defence has been served on the prosecution in accordance with section 163(1) or 215(1) — at the same time as the service of the documents under section 166(1) or 218(1); or

in the case where the Case for the Defence has not been served on the prosecution in accordance with section 163(1) or 215(1) — after the accused has testified in court or has elected not to testify in court;

the materials mentioned in subsection (1)(c) and (d) that relate to the charge or charges, after the accused has testified in court or has elected not to testify in court.(4) Where in relation to the charge or charges against an accused that the prosecution intends to proceed with at the trial, the criminal case disclosure procedures do not apply by virtue of section 159 or 211A, the prosecution is required to serve on the defence the following materials at the following times:

the materials mentioned in subsection (1)(a) that relate to the charge or charges, before the commencement of the trial of the charge or charges;

the materials mentioned in subsection (1)(b), (c) or (d) that relate to the charge or charges, after the accused has testified in court or has elected not to testify in court.(5) This section does not affect the operation of any written law or rule of law concerning privilege, secrecy or the protection or non‑disclosure of any information.No obligation on prosecution to serve list of materials in prosecution’s possession221C. To avoid doubt, the prosecution is not obliged by any written law or rule of law to serve on the defence a list of all materials in the prosecution’s possession that the prosecution does not intend to adduce in evidence as part of the prosecution’s case during the trial.Continuing obligation of prosecution to serve unused material or statement of material witness, etc.221D.—

If during the period —

after any unused material, or statement of any material witness, that relates to any charge or charges to be, or that are, proceeded with at the trial against an accused, has been served on the defence pursuant to the time for service under section 221B; and

before the accused is convicted or acquitted of the charge or charges, or where there is an appeal, before any appeal in relation to the charge or charges is finally disposed of,the prosecution becomes aware of any unused material, or statement of any material witness, that relates to the charge or charges and that is in the prosecution’s possession and has not been served on the defence, the prosecution must serve such other unused material or statement (as the case may be) on the defence as soon as reasonably practicable after becoming so aware.(2) If in respect of any charge or charges to be, or that are, proceeded with at the trial against an accused person —

any material witness is identified within the period mentioned in subsection (1); but(b)the prosecution is not in possession of any statement recorded from that material witness by any law enforcement agency,there is no obligation on the prosecution to require any law enforcement agency to record a statement from that material witness.(3) This section does not affect the operation of any written law or rule of law concerning privilege, secrecy or the protection or non-disclosure of any information.”.