Preliminary briefs and the full police brief

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Folder With Investigation LabelWritten by Bill Doogue. Partner, Doogue + George Defence Lawyers

Criminal Defence Lawyers are set to face new and incomprehensible difficulties defending driving matters with the recent notification that the Highway Patrol will not provide us with full briefs when we request them.  They will send the signed statement by the Informant. They will send the client’s prior criminal history. But, they will not send a copy of the person’s prior driving history (their Vicroads priors).

Highway Patrol’s position is that if the matter proceeds to case conference or contested hearing they will then send a full brief. They contend that we should cease to request a full brief initially. Apparently, the prosecution will have the priors in their briefs, but on their end all the traffic priors are deleted.

There are many reasons why this is a move that beggars belief.

1. This is contrary to the Criminal Procedure Act.
We have a right to ask for the full brief at any time as outlined in 39(b) of the Criminal Procedure Act (read below).

2. The Highway Patrol have no right to tell us when we can request the full brief.
If we have the charges then the matter has commenced.

3. It will save a lot of wasted Court time if we are provided the Vicroads priors before we go to Court. 
It is not so difficult for them to attach them to the preliminary brief or to keep a copy at their office. Or, Heaven forbid, print a copy when a lawyer asks to see what their client’s priors are.

4. Have the rights of the defendant become so diminished as to disclosure that we can not have a copy of their priors before attending Court? 
This procedure would result in the client having to pay us for unnecessary Court appearances.  There is a very real probability that we will have to adjourn the matter, for example, if their priors were worse than they remembered or if there is a disputed prior appearance.

5. Often, a client will not remember whether they were driving unlicensed or on a suspended licence on a previous Court appearance.
That distinction can make all the difference as to whether they are facing prison or not.

6. Clients applying for legal aid cannot do so.
Legal aid clients need to be assessed to ensure they meet the guidelines for funding. Without access to their Vicroads priors how could you assess if someone is likely to be facing a suspended gaol term, which is the test for legal aid in driving matters?

Providing the priors would save Court time and is fairer. It is hard to understand the position of the Highway Patrol on this one.

Criminal Procedure Act 2009 – SECT 39
When full brief must be served
39. When full brief must be served
(1) The accused, by written notice to the informant, may request that a full
brief be served.
(1A) A request under subsection (1) may be made-
(a)  if a preliminary brief is served within 7 days after the day on which
the charge-sheet is filed, at any time after a summary case conference
is held; or
(b)  in any other case, at any time after the criminal proceeding has
(2) If the accused gives a notice under subsection (1), the informant must
serve a full brief on the accused at least 14 days before-
(a)  the contest mention hearing; or
(b)  if a contest mention hearing is not held, the summary hearing.
(3) The Magistrates’ Court, by order, may vary the date for service of a full
brief to a specified date that is earlier or later than the date for service
required by subsection (2).
(4) Nothing in this section prevents agreement between the informant and the
accused to more limited disclosure than is required in a full brief.

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4 Responses

  1. s37 CPA requires disclosure of criminal priors and any evidentiary certificates that are likely to be relevant to the allegations as part of the preliminary brief.
    Vicroads priors are evidentiary certificates under s84 RSA.
    This decision is just silly.

  2. Dean Anderson says:

    It’s bad enough that the core of this legislation is to support the retraction of our fundamental right of innocent until proven guilty. But now it would seem, that there is no longer any obligation for the police to disclose their information prior to the hearing of the case.
    This is an outright indictment on the very fabric of our presupposed rights and I cannot fathom how, by any stretch, we as the people have allowed our rights to be systematically eroded to the point where we just say, “this is a silly decision”, without the inclination to fight back and take what is ours. Our god given human rights!

  3. Bill Doogue says:

    I agree with you both. We discussed it at the Criminal Law Section meeting this morning and it is going to be raised at the next Court meeting.
    A number of people are encountering it. It is particularly galling for private clients as we have to attend to be given a copy. Legal Aid clients generally have a duty lawyer present but it is still an issue for them

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