Part 3.2 – Procedure before summary hearing Division 2 - Pre-Hearing Disclosure of Prosecution Case Flashcards
S35 – when PB is to be serve
● (1) If required to by s 24 (PB to be served if charge-sheet filed - 21 days), informant must serve PB on A
● (2) Accused can make written request for service of PB at any time after commencement of proceeding
● (3) inform. must serve PB in 14 days of receiving request
● (4) nothing prevents informant from serving PB on accused at any other time
● Must be served personally unless inf satisfied ordinary service appropriate in all the circs (SF s36(1))
S36 – how PB must be served
(1) Personally per s 391 unless satisfied OS appropriate in all the circs (2) consider all known circumstances including (a) nature/gravity of alleged offence; (b) whether A has previously been FG or convicted of any similar offence; (c) period of time that has elapsed since A address for service was ascertained (d) manner of service of summons to answer charge
37 - Contents of the preliminary brief - Part 1
(1) PB must include
(a) charge sheet copy
(b) court-prescribed notice
(i) explaining this section and section 84
(ii) importance of getting LP
(iii) possible legal aid right (iv) how to contact VLA
(c) personal statement from informant complying with (2) / s 38;
(d) any evidentiary certificate likely to be relevant that’s available
(e) copy of the CR of the A that’s available at the time PB is served or statement A has no known cnvctns/infrngmnt convictins
(f) Also if informant refuses to disclose anything a notice per s 45 setting that out and identifying grounds for refusing disclosure
(g) list of any orders that are/will be sought, as known at time of preparation of preliminary brief.
37 - Contents of the preliminary brief - Part 2
(2) Statement by informant in a PB must be a complete and accurate statement of the material available to the P at time statement is sworn/affirmed, signed/attested and must include-
(a) statement of alleged facts + references to supporting material
(b) description of background to /consequences of alleged offence, if known
(c) summary of any statements made by the A concerning the alleged offence, including any confession or admission
(d) a list of the names of all persons who, at the time the statement is signed, may be called by the prosecution as witnesses at the hearing of the charge, indicating whether those persons have made statements; and
(e) a list of any things the prosecution may tender as exhibits, indicating whether they are in the possession of the prosecution at the time the statement is signed.
(3) PB may include any other info/doc/thing relevant to the alleged offence that may assist the accused in understanding the evidence against the accused that is available to the P.
S38 Requirements for informant’s statement in PB
A statement by informant in a PB must be
(a) in affidavit form; OR
(b) signed by informant in Sch 3 person presence that statement is true/correct made in belief person making false statement liable to perjury penalties
(c) in form, and attested to in a manner, prescribed by rules of crt.
39 When full brief must be served
(1) A can request service of FB in writing from informant
(1A) Request may be made
● (a) If PB has been served within 21 days after day on which the charge sheet being filed, then any time after summary case conference held
● (b) In any other case, any time after the crim proceeding has commenced
● (2)(a) Then informant has to serve FB at least 14 days before contest mention hearing or
(b) if no contest mention, the summary hearing
● (3) Mag Ct can vary this time by order
● (4) Nothing prevents more limited disclosure than what is required in FB
●
How?
● S40(1) By personal service unless satisfied ordinary is appropriate in all of the circumstances
S40 How full brief must be served
(1) A FB must be served personally on the accused in accordance with section 391 unless the informant is satisfied that ordinary service is appropriate in all the circumstances.
(2) consider all known circumstances including (a) nature/gravity of alleged offence; (b) whether A has previously been FG or convicted of any similar offence; (c) period of time that has elapsed since A address for service was ascertained (d) manner of service of summons to answer charge
Contents of full brief s41
(1) Unless earlier disclosed already, whether in PB, at summary case conference or otherwise, FB must contain
(a) notice in the form prescribed by the rules of court
(i) explaining this section and s 83; (ii) importance of A obtaining LR; (iii) advising potential VLA right; (iv) how to contact VLA.
(b) copy of CS relating to alleged offence
(c) crim record or statement of no priors/infringements
(d) any IDT on which P intends to rely at hearing of charge including
(i) copy of any statement relevant to charge signed by accused, or a record of interview of A, that is in possession of the informant
(ii) copy/transcript of audio/AV recording
(iii) copy / statement of any other evidentiary material that is in the possession of the informant relating to a confession or admission made by the A relevant to the charge
(iv) list of the persons the P intends to call as witnesses at the hearing, together with a copy of each of the statements made by those persons
(v) legible copy of any document which the P intends to produce as evidence;
(vi) list of any things the P intends to tender as exhibits;
(vii) a clear photograph, or a clear copy of such a photograph, of any proposed exhibit that cannot be described in detail in the list
(viii) description of any forensic procedure, examination or test that has not yet been completed and on which the prosecution intends to rely as tending to establish the guilt of the accused
(ix) any evidentiary certificate issued under any Act that is likely to be relevant to the alleged offence; and
(e) any other information, document or thing in the possession of the P that is relevant to the alleged offence including:
(i) list of persons who’ve made statements or given relevant information that P doesn’t intend to call
(ii) copy of every statement in (i) or if no statement, written summary of substance of evidence likely to be given by that person
(iii) copy of every Doc relevant to alleged offence that P doesn’t intend to tender as exhibit at hearing or a list of those docs
(iv) list containing descriptions of any things P doesn’t intend to tender as exhibits at hearing
(v) a clear photograph, or a clear copy of such a photograph, of any proposed exhibit that cannot be described in detail in the list
(vi) copy of (A) medical exam records; (B) forensic procedure records; (C) results of any tests, carried out on behalf of the P and relevant to alleged offence but on which P doesn’t intend to rely
(vii) copy of any other IDT required to be in FB
(f) Also if informant refuses to disclose anything a notice per s 45 setting that out and identifying grounds for refusing disclosure
(2) S 48 applies to info and other material supplied in full brief
Continuing obligation of disclosure s42
(1)(a)-(b) section Applies to any IDT that comes into informant’s possession/notice after service of PB/FB that would have been required to be listed/copy included in that brief (2) informant must serve doc or list on accused ASAP after comes into possession/notice
OR
(3) give s 45 notice, identifying grounds for refusing disclosure
Accused can make request for material etc.not provided s43
44 Informant must comply with request or state grounds of refusal
● (1) A can give informant written request for
(a) copies of any statements/information given by persons listed in FB
(b) copy of any things listed in FB
● (c) subject to S 43A, inspection of the exhibits at a time and place agreed between the accused and the informant
● (d) copy of any IDT specified by the A that is required by/under this Act to be in PB or FB that was not included
● (e) particulars of previous convictions of any witness who the prosecution intends to call at the hearing
● (2) can make request any time post-service of PB or FB, whichever occurs first,
● (3)(a) but unless MC orders otherwise, Must be made at least 7 days before the contest mention hearing or
(b) if no “” hearing held, the summary hearing
● S 44(1) Informant must comply or give written notice of grounds for refusal within 7 days of receiving request
● (2) MC can vary this time limit
Inspection of exhibits with child abuse material where A is legally represented s43A
● (1) Section applies if (a) request for exhibits includes child abuse material; (b) A is LR
● (2) A may request inspection of exhibit or part by the A’s LP (but not A personally).
Grounds on which informant can refuse disclosure s45 (prejudice investigation; prejudice fair hearing; disclose confidential source; disclose investigation methods; endanger law enforcement/confidential sources; disclose CAM); irrelevant convictions; but must advise existence
S 45(1) Informant can refuse required disclosure of any IDT if considers it would, or would be reasonably likely to:
● (a) Prejudice an investigation of a (possible) contravention of law or prejudice enforcement or proper admin of the law
● (b) Prejudice fair hearing of the charge against a person or the impartial adjudication of a particular case
● (c) Disclose or enable person to ascertain identity of confidential source of information in relation to the enforcement or admin of law
● (d) disclose criminal investigation methods the disclosure of which would/would be reasonably likely to, prejudice effectiveness of those methods or procedures
(e)(f) Endanger law enforcement persons or confidential sources or of FB witness of family member of such
● (g) Result in disclosure of CAM to A personally
(1A) (1)(g) above doesn’t give grounds for refusing LP inspection of exhibits (but not by A personally)
(2) informant may refuse to disclose any IDT that is requested under section 43(1)(d) on any ground on which informant would be entitled to refuse to produce IDT under a witness summons.
(3) informant may refuse to disclose the particulars of any previous conviction of any witness who the informant intends to call at the hearing if the previous conviction is, because of its character, irrelevant to proceeding but informant must advise the accused of the existence of any undisclosed previous convictions.
S46 - Accused may apply for order requiring disclosure (if non-compliance or s 45 notice served)
(1) A may apply to MC for order under (2) requiring disclosure if
● (a) informant has served on A under s 45 a statement of grounds for refusing disclosure; OR
● (b) the informant has failed to give disclosure in accordance with this Division
(2) MC may order on application that informant disclose the thing
(3) If relates to 45(1)(g) ground (child abuse material), MC, having regard to whether A is LR, may order that disclosure be made to
(a) LP but not to the A personally, OR (b) to the A personally.
Rules with respect to statements s47
47(1) Statement in s 41 which informant will tender at hearing of charge if the A does not appear must be
(a) in form of affidavit (b) before Sch 3 person, ack. is true/correct
(c) in form, and attested to in manner, prescribed by rules of court
(2) If person is under 18, must include their age
(3) If talker illiterate –(a) must read statement to them
(b) acknowledgement to state statement was read to person before he/she signed it.
s48 Disclosure of address or telephone number of witness
● 48(1) Must not disclose “” of any person in any IDT provided to the A unless (a) informant believes that
(i) the IDT does not identify the address or phonenumber as that of any particular person, OR
● (ii) relevant to the offence charged and not likely to present reasonably ascertainable risk to welfare/physical safety of any person; OR
● (1)(b) MC can grant application for release of this info if satisfied is (3)(a) relevant and that:
○ (b)(i) disclosure unlikely to present r’bly ascert’ble risk to welfare/physical safety of any person; or
○ (b)(ii) Having regard to (4)(a) right to witness privacy and (4)(b) right of accused to prepare properly for the hearing, interests of justice outweigh said risks.
● (2) for (1) purposes, informant may delete, render illegible, an address or telephone number included in the IDT before service on the A.
