performed by counsel who is briefed and conducts the prosecution. It would be unduly restrictive to say that the duty is confined to prosecuting counsel. See Reg v. Preston at 152G-H, per Lord Mustill.”
59. Of the extent of the duty, he said:[1]
“The prosecution’s duty is to disclose to the defence material (including information) in its possession or control. That will ordinarily include materials that have been gathered by the investigating agency (the police) and it is the responsibility of the prosecution to make the investigating agency aware of the need to make available all relevant materials. In this sense, the prosecutor’s duty is to disclose to the defence all relevant material in its possession or control and in the possession or control of the investigating agency.”
60. Of the duty and role of prosecution counsel, Sir Anthony Mason NPJ said:[2]
“In order to ensure that all disclosable material is provided to the defence, prosecuting counsel should instruct investigating officers and, where appropriate, witnesses to bring to counsel’s attention any material that may be disclosable. In other words, disclosable material known to a witness, including an expert witness, should be channelled through prosecuting counsel who should take appropriate steps to facilitate that happening.” [Italics Added.]
61. Of the concomitant duty to ascertain the existence of disclosable material, Sir Anthony Mason PJ said:[3]
- ↑ HKSAR v Lee Ming Tee (No 1), paragraph 161.
- ↑ HKSAR v Lee Ming Tee (No 1), paragraph 162.
- ↑ HKSAR v Lee Ming Tee (No 1), paragraph 168.
