221D. Continuing obligation of prosecution to serve unused material or statement of material witness, etc.

Terms defined in this Act

• accused person

  accused person

  Defined · s 40E

  “accused person” means any person who has been concerned in an offence or is reasonably suspected of having been involved in one, or against whom a reasonable complaint has been made or credible information has been received of the person having been so concerned or involved;

  Open s 40E
• law enforcement agency

  law enforcement agency

  Defined · s 2

  “law enforcement agency” means any authority or person charged with the duty of investigating offences or charging offenders under any written law;

  Open s 2
• material witness

  material witness

  Defined · s 221A

  “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 —(a)the accused’s statement or statements to the relevant law enforcement agency;(b)the Case for the Defence; or(c)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 —(a)any written statement made by the accused at any time and recorded by an officer of the relevant law enforcement agency; or(b)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,

  Open s 221A
• statement

  statement

  Defined · s 257

  “statement” includes any representation of fact, whether made in words or otherwise.

  Open s 257
• unused material

  unused material

  Defined · s 221A

  “unused material” means any material —(a)in the prosecution’s possession, other than —(i)any written statement made by an accused at any time and recorded by an officer of a law enforcement agency under any law; or(ii)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;(b)that the prosecution —(i)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(ii)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;(c)that is —(i)likely to be admissible and is prima facie credible and relevant to the guilt or innocence of an accused; or(ii)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(d)that either tends to —(i)undermine the prosecution’s case; or(ii)support the accused’s defence as stated by the accused in —(A)the accused’s statement or statements to the relevant law enforcement agency;(B)the Case for the Defence; or(C)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 —(i)the prosecution’s case is that both A and B broke into C’s house and killed C;(ii)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(iii)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,

  Open s 221A