A judge lambasted the Department of Public Prosecutions for failing to disclose criminal evidence to defence lawyers in time.Puisne Justice Charles-Etta Simmons said the problem “has to stop” as serious cases may end up getting thrown out of court if prosecutors don’t get on top of the issue.She was speaking as a trial got delayed in her courtroom yesterday due to a sick witness and complaints about a lack of disclosure.Defence lawyer Elizabeth Christopher complained she only received the results from DNA tests done in February from the DPP’s office last Thursday.Addressing prosecutor Nicole Smith on the topic of disclosure by her office in general, Mrs Justice Simmons said: “There have been a number of cases that have come before the court where defence counsel have been crying foul because the Crown has not been serving documents consistent with the request for disclosure that has been made by the defence. This has to stop.”She noted that the then Chief Justice, Richard Ground, ruled “key evidence” inadmissible in the case of child killer Ze Selassie because it was not served on Ms Christopher in time. Selassie was convicted of the murder of schoolgirl Rhiana Moore in 2009.Mrs Justice Simmons warned: “We are beginning to see this more and more ... it’s been delay, and in some cases almost refusal to disclose.”She added: “The Crown has a duty to serve early disclosure. The consequence (of not doing so) will be that these cases are likely to get thrown out. It seems to be a pattern of conduct, and because I like to see the best in people I hope it’s not because Crown counsel are looking at their files too late in the day or just ignoring defence counsels’ requests. If it’s a failure in your system, the system needs overhauling.”She finished by telling the prosecutor: “I need to be loud and clear on the record that this cannot continue, particularly where we are dealing with the serious cases where defendants have been held in custody since the time of their arrest or charge, and where there’s great public interest in the guilty being found guilty and the innocent being acquitted. That’s why we are here. We are not here to play games or put on a show where we are talking about the liberty of an individual.”The judge’s remarks came hot on the heels of similar comments at the beginning of this month from a different judge, Carlisle Greaves.Responding on that occasion to concerns over disclosure aired by defence lawyer Charles Richardson, Mr Justice Greaves said: “I look forward to the day when we can impose some serious cost orders on prosecution and defence for failing to disclose information on time.”At present judges in criminal cases cannot impose financial penalties on lawyers if they fail to divulge information to the other side in good time. However, the defence can apply for the evidence to be thrown out or request a delay in the trial.Invited to respond, Director of Public Prosecutions Rory Field said: “While I will make no comment on the statement that has been attributed to Justice Charles-Etta Simmons, I can say that The Department of Public Prosecutions is committed to timely and efficient disclosure of evidence but operates within the constraints of the reality of day-to-day case preparation.”He the Crown disclosed the evidence in question to a defence expert in a “closely linked” case, but did not realise a different defence expert also needed the information for this case.“In the event, this meant that disclosure to the other defence team did not occur in a sufficiently timely manner. This was despite reasonable efforts being made by the department to ensure timely disclosure,” he said.“The department will continue to review disclosure and attempt to fulfill obligations in a timely manner. Inevitably though, due to a great variety of circumstances beyond the control of counsel within the department, this will not always happen, particularly since we face the additional challenge that most experts are not based in Bermuda.”Mr Field added: “The department is committed to giving defendants a fair trial and accordingly the department would in most cases not oppose a defence request for an adjournment for sufficient time to consider any disclosure which had been received late and which was of a complexity or seriousness that it required time to properly consider and respond to.”