From the moment that Police commence an investigation, they will start compiling materials, some of which will ultimately form part of the brief of evidence if the person is charged. The brief of evidence contains the materials which the Police will rely upon in their prosecution of the accused. However, and importantly, the brief of evidence does not contain all of the evidence gathered in the course of the investigation. This evidence is usually produced to the accused by way of disclosure. It is evidence which the Police do not propose to rely upon but which the accused should have access to, in order to assess whether it is useful to their case.
How is a Brief of Evidence Compiled?
The brief of evidence is compiled by the officer in charge of the investigation into the accused. They are referred to as the “Informant”. The Informant then instructs the Prosecution in relation to the case. In more serious matters, the Informant is essential to the prosecution of the offences because the evidence can be voluminous and complex. The Informant is also essential to ensuring that witnesses are summonsed to come to Court and that the evidence is available in the proceedings.
What is Included in the Brief of Evidence?
A brief of evidence, whether for a summary (less serious) matter or an indictable (serious) matter will always include:
- The charge sheets: These contain the name of the accused, their address, their date of birth, the description of the charge (for example, ‘Joe Blogs on 4 December 2022 did unlawfully assault Dan Brown’) and the legislation that makes it a criminal offence. The charge sheet will be signed by the Informant, with all of their information contained on the sheet. In summary matters, the charge sheet may also contain the court date for the first Mention of the matter;
- The Informant’s summary: This is a summary of the alleged offending, essentially outlining what the Informant says has occurred. It is a narrative that allows the Prosecution and Defence to understand who the accused is and what they are alleged to have done and, if relevant, why;
- The witness statements of all witnesses who gave evidence to the Informant of what they saw and heard; and
- The prior criminal history of the accused person.
How is the Brief of Evidence Used?
Briefs of evidence must be served before the matter can proceed through the criminal justice system. Where the matter is a summary matter, briefs of evidence in the form of preliminary briefs must be served on the accused within 14 days of the accused receiving a notice to appear in Court. Preliminary briefs are served in less serious criminal matters and include the most relevant materials, but not everything. They are served in order for the accused to see the primary evidence against them. More often than not, the accused will be satisfied that the contents of the preliminary brief are enough to inform their decision to plead guilty or not guilty. If they elect to plead not guilty, they can request a full Brief of Evidence. Preliminary briefs can be served a number of ways, but usually they are emailed to the lawyer representing the accused person or served in person on the accused (if they do not have a lawyer).
In indictable matters, the Informant must serve the accused with the brief of evidence, which is referred to as the ‘hand up brief’. Section 110 of the Criminal Procedure Act 2009, requires that the brief include a long list of items, including witness statements, transcripts, witness lists, forensic test results and lists of exhibits. Because indictable offences are more serious than summary offences, they require a full brief. A preliminary brief cannot be served in these kinds of proceedings. You will know whether your matter is an indictable matter because you will have been required to appear at a Filing Hearing before a Magistrate, where the Magistrate made orders for brief service and considered your bail status. If you are confused about the status of your matter, however, you should speak with your lawyer to get all of the information about your matter and the process that is being adopted.
Our website has helpful videos explaining the difference between summary matters and indictable matters”
- Summary Matters: https://galballyparker.com.au/introduction-to-summary-stream/
- Intictable Matters: https://galballyparker.com.au/introduction-to-indictable-stream/
Notwithstanding that Police may not rely on evidence in their possession, they must disclose it to the Court and the defence. This includes (and is particularly important) evidence that is helpful to the defence. For example, they must disclose prior criminal histories for important witnesses as well as any evidence that might contradict the prosecution case. The Court of Appeal in the case of Roberts v The Queen referred to the rule of disclosure as the “golden rule”. It is absolutely essential to the proper administration of justice. In preliminary briefs the Police will usually not disclose audio-visual materials, such as body worn camera footage. In some circumstances, this footage may be critical to the defence. An experienced criminal lawyer will know what materials to request by way of disclosure. In indictable matters, the Hand Up Brief will contain a form that summarises the other evidence in the possession of the Police so that the defence is on notice and can request the materials. An experienced criminal lawyer will always be suspicious of whether full disclosure has in fact occurred and may seek to subpoena material from the Police to ensure that everything is produced.
Get In Touch with Galbally Parker Criminal Lawyers
If you are concerned about the progress of your matter or have recently been charged with a criminal offence, you should contact our office in order to arrange an Initial Client Consultation with one of our experienced lawyers. Information about how you can arrange a Consultation can be found on our website at: https://galballyparker.com.au/fees-charges/.
The team at Galbally Parker Lawyers specialise in contesting criminal charges and in preparing pleas. We have experience across a wide range of practice areas, including sexual offences, murder, manslaughter, theft and intervention orders. Contact us today if you are facing criminal charges.
