List of Subheadings
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Section 16A(2)(fa) provides that a court must take into account the extent to which a person has failed to comply with certain orders or obligations relating to disclosure.
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(fa) the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903
about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence …
Section 16A(2)(fa) has not been directly applied in a reported case to date. Presumably the failure to comply with such directions would be an aggravating factor. However, the extent to which it would adversely impact a sentence has not been considered.
1.1 Federal Court of Australia: Obligations relating to pre-trial or ongoing disclosure
Under s 23CD(1) of the Federal Court of Australia Act 1976 (Cth), certain orders may be made by the court for compliance with existing obligations under ss 23CE–23CH:
(1) After the indictment is filed in the Court and before a trial on the indictment starts, the Court may order:
(a) the prosecutor to give the accused notice of the case for the prosecution in accordance with section 23CE; and
(b) the accused, after having been given notice of the case for the prosecution, to give the prosecutor notice of the accused’s response in accordance with section 23CF; and
(c) the prosecutor, after having been given notice of the accused’s response, to give the accused notice of the prosecution’s response to the accused’s response in accordance with section 23CG; and
(d) the prosecutor and the accused to make ongoing disclosures in accordance with section 23CH until, for each count in the indictment relating to the accused, the accused is either:
(i) convicted of the offence covered by the count; or
(ii) discharged in relation to the count.
The order may specify the time within which each disclosure is to be made. …
1.2 State or Territory: Obligations relating to pre-trial or ongoing disclosure
All States and Territories impose statutory obligations relating to pre-trial or ongoing disclosure.1 If there is a failure on behalf of a defendant to comply with any State or Territory disclosure provisions that are ‘picked up’ by s 68(1) of the Judiciary Act this failure could be taken into account under s 16A(2)(fa)(iii) of the Crimes Act.
- See, eg, Criminal Procedure Act 1986 (NSW) ss 141–3; Criminal Procedure Act 2009 (Vic) ss 183, 184, 189, 190, 200; Criminal Procedure Act 1921 (SA) ss 123–5; Criminal Procedure Act 2004 (WA) ss 35, 42, 95, 96, 97, 137A, 138; Court Procedure Act 2004 (ACT) Div 8.3; Local Court (Criminal Procedure) Act (NT) ss 60AD, 60AE, 60AM, 60AN, 60AO, 60AQ; Criminal Code Act 1924 (Tas) sch 1 368A–B.