VIC What Happens When Presenting Only Part of the Evidence?

[Timboz]

If the defence shows/mentions (part) of documentary evidence, can the prosecution then demand all of it?

If a defence lawyer mentions a document or shows a document to:

- the prosecution, before a case goes ahead, to show there is no case
- the court, during a hearing

How much (if at all) does that result in the prosecution being able to access (more of) that document?

Specifically:

1. Bank statement:

- The defence wants to show payments were made.
- Before any trial they tell the prosecution they have this evidence or actually show them a statement for the relevant period.
- Or they bring the relevant statement to court

Would any of these scenarios result in the prosecution being able to get access to bank statements from years before for the same account?

2. Facebook conversation:
- Part of a Facebook conversation (between the defendant and another) is beneficial
- Before trial they tell the prosecution they have this or show them the section
- Or they show the section at court
- Can the prosecution demand to see the whole conversation?
and
- What about if the defence mentions/shows the whole of one convo? Can the prosecution demand to see all the person's Facebook conversations (with everybody)?

3. SMS - ditto:
- rely on one or two SMS between the defendant and another = demand all SMS between them?
- rely on SMS exchanges between the defendant and one other = see all the person's SMS, to/from everybody?

 

[Rod]

Homework?

 

[Timboz]

If a defendant mentions a document to their solicitor, can the lawyer safely omit it from communications with prosecution and the court later?

A lawyer must be honest to the court.

If a (potential) defendant mentions the existence of a document to a lawyer but then decides later that the document doesn't help appearances and, therefore, is better not mentioned to:

- the prosecution, before the case
- the court

Is there any way that the solicitor would be obliged to mention its existence due to the honesty provisions?

Can they safely omit mention of such document?

 

[Sophea]

It depends on what the document contains. Lawyers are officers of the court and therefore owe an overriding duty to the court which prevails over all other duties, including the duty to the client.

Civil Procedure Rule (VIC) Reg 29.01.1 states.....
Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given—

(a) documents on which the party relies;

(b) documents that adversely affect the party's own case;

(c) documents that adversely affect another party's case;

(d) documents that support another party's case.

Therefore if a document is relevant, the lawyer must disclose it to the other parties and to the court. It doesn't matter whether it benefits your case or not.

 

[Sophea]

If the prosecution really think that they need to see the whole conversation then (I don't know about criminal but in civil litigaion) you need to make an application to the court and the court will decide whether its relevant to the case or not. If its relevant then it must be disclosed. They can't simply demand to see it though.

 

[Timboz]

Criminal procedure is different.

I must correct the above in order to allay the fears of future defendants.

It turns out that:
"Principles of discovery in civil litigation have no place in criminal proceedings" (except in cases of contempt) as stated in this guide: Victorian Criminal Proceedings Manual

So far from what I can discover, it's mostly the prosecution that must reveal, in criminal cases.