Commentary on Sections Part 5: Disclosure Section 38: Application by defence for disclosure
211.This Section replaces subsections (1) and (2) of section 8 the 1996 Act. Section 8 enables the accused to apply to the court for further disclosure of unused prosecution material if certain conditions are met.
212.New subsection (1) of section 8 provides that the section applies when the defence has given a defence statement under sections 5, 6 or 6 B and the prosecutor has complied with his continuing duty to disclose or purported to comply with it or has failed to comply with it.
213.New subsection (2) of section 8 enables the accused to apply to the court for an order requiring the prosecutor to disclose material, to the accused, if the accused has reasonable cause to believe that there is prosecution material that should have been, but has not been, disclosed to the accused pursuant to the prosecutor’s continuing duty to disclose.