New disclosure procedure in Magistrates’ Court s53A of the Criminal Procedure Act
Written by Bill Doogue. Partner, Doogue + George Defence Lawyers
A new procedure has been introduced where the Police now provide a copy of the brief of evidence at the first mention hearing. This will lighten the Police administration load, but it will not help the immense strain the Courts are already under or reduce waiting periods for those in the Court system.
The legislation below is from the Criminal Procedure Act.
53A Documents to be provided by police at first mention hearing
1) This section applies if the informant is a member of the police force.
2) At the first mention hearing, the informant must have the following documents available for provision to the accused or the legal practitioner representing the accused—
a) a copy of the preliminary brief (if prepared);
b) a copy of the full brief (if prepared);
c) if neither a preliminary brief nor a full brief has been prepared—
i) a copy of the charge-sheet in respect of the alleged offence; and
ii) a statement of the alleged facts on which the charge is based; and
b) a copy of the criminal record of the accused that is available at the time of the first mention hearing; or
c) a statement that the accused has no previous convictions or infringement convictions known at that time.
Using the current procedure (the if-it-ain’t-broke kind) we would have a summons listed two months ahead and then apply for the brief of evidence. Typically the brief is received a couple of weeks ahead of the first mention date, giving us ample time to be prepared to begin our planned strategy on that date. Having those two or so weeks allows us time to discuss with the client their options; do they wish to plead guilty and can they abide by the version of events as described by the Informant? We seek character references for court that are informed by the seriousness and circumstances of the offending. The brief might establish the need for us to make an appointment for the client to see a psychologist.
And now, under the new procedure we are simply to wait out the two months, receive the brief at the first mention and start from there.
This results in extra appearances and costs for the clients and is not the best course for the Courts.
The Courts should insist that once defence counsel notifies the Prosecution/Police that we are acting in a case that is listed, we should be sent the brief as soon as possible.
There is no gain or improvement from this change other than the obvious benefit to the Police.
The Police position on briefs and disclosure is that –
“Police members have been instructed to attach a clearly marked copy to all briefs of evidence before forwarding to the relevant prosecutions unit. The prosecutor will then be in a position to provide the copy to the accused or the nominated legal representative at the first mention hearing.”
And we can be sure that we will not see a brief of evidence one minute before then.
So why is this change being implemented?
Check out Bill Doogue’s LinkedIn Profile.