83. Admissibility of evidence in absence of accused where full brief served

83. Admissibility of evidence in absence of accused where full brief served

(1) If-

(a) under section 25(1) or 80 the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused; and

(b) the informant has served a full brief on the accused in accordance with Division 2 of Part 3.2-

the following are, subject to subsections (2) and (3), admissible as if their contents were a record of evidence given orally-

(c) any statement a copy of which has been served in the full brief;

(d) any exhibit or document referred to in a statement which is admissible.

(2) The Magistrates' Court may rule as inadmissible the whole or any part of a statement or of any exhibit or document referred to in a statement.

(3) The criminal record of the accused or a statement that the accused has no previous convictions, when served in a full brief, is only admissible for the purpose of sentencing in accordance with section 86.

(4) Subsection (1) does not limit the power of the Magistrates' Court to proceed to hear and determine the charge in the absence of the accused under section 25(1) or 80on the basis of sworn evidence given by or on behalf of the informant if the informant has not served a full brief on the accused.

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49. Informant may place material on database

49. Informant may place material on database

(1) This section applies if-

(a) the informant is a member of the police force or an officer of a prescribed agency; and

(b) the accused's legal practitioner is authorised by the Secretary to the
Department of Justice to access electronically the information, documents and things referred to in section 43; and

(c) it is practicable to transmit electronically the information, documents and things that are required to be disclosed.

(2) Subject to this Division, the informant must place on the prescribed database a copy of-

(a) the preliminary brief, if any; and

(b) the full brief; and

(c) all additional information, documents and things, if any, requested by the accused under section 43; and

(d) all additional information, documents and things required to be disclosed under section 42.

(3) Placement of copies of material on the prescribed database under subsection (2) is deemed to be service for the purposes of this Division.

Note

Time limits provided in this Division for service of a preliminary brief,
a full brief or particular information, documents or things still apply.

(4) A statement by the informant in a copy of a preliminary brief placed on
the prescribed database need not be sworn or attested as required by section 38 if-

(a) the database technology does not permit placement of the copy in that form; and

(b) a physical copy of the preliminary brief complies with section 38.

(5) An informant who places an unsworn or unattested preliminary brief on the prescribed database must retain the physical copy of the preliminary brief that is sworn or attested for a period of 12 months after the termination of the charge.

Note

Section 414 provides for acknowledgment of false statements.

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48. Disclosure of address or telephone number of witness

48. Disclosure of address or telephone number of witness

(1) The informant must not disclose the address or telephone number including a private, business or official address or telephone number) of any person in any information, document or thing provided to the accused under this Division unless-

(a) the informant believes that-

(i) the information, document or thing does not identify the address or telephone number as that of any particular person; or

(ii) the address or telephone number is relevant to the offence charged and disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or

(b) the Magistrates' Court permits the disclosure in accordance with subsection (3) on application made by the informant or the accused.

(2) For the purposes of subsection (1), the informant may delete, or render illegible, an address or telephone number included in the information, document or thing before service on the accused.

(3) The Magistrates' Court may grant an application made under subsection(1)(b) if the court is satisfied that-

(a) the address or telephone number is relevant to the offence charged; and

(b) one of the following applies-

(i) disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or

(ii) having regard to the matters referred to in subsection (4), the interests of justice outweigh any risk referred to in subparagraph (i).

(4) For the purposes of subsection (3)(b)(ii), the Magistrates' Court must
have regard to-

(a) the right to privacy of the witness; and

(b) the right of the accused to prepare properly for the hearing.

Note

See section 14 of the Victims' Charter Act 2006 as to victims' privacy.

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47. Rules with respect to statements

47. Rules with respect to statements

(1) Subject to subsection (5), a statement referred to in section 41 which the informant intends to tender at the hearing of the charge if the accused does not appear must be-

(a) in the form of an affidavit; or

(b) signed by the person making the statement and contain an acknowledgment signed in the presence of a person referred to in Schedule 3 that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury; or

(c) in a form, and attested to in a manner, prescribed by the rules of court.

(2) If a person under the age of 18 years makes a statement which the informant intends to tender as mentioned in subsection (1), the statement must include the person's age.

(3) If a person who cannot read makes a statement which the informant intends to tender as mentioned in subsection (1)-

(a) the statement must be read to the person before he or she signs it; and

(b) the acknowledgment must state that the statement was read to the person before he or she signed it.

Note

Section 414 provides for acknowledgment of false statements.

Subsection (4), dealing with false acknowledgments, was in congflict with s 414 and has been repealed.

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46. Accused may apply for order requiring disclosure

46. Accused may apply for order requiring disclosure

(1) The accused may apply to the Magistrates' Court for an order under subsection (2) requiring disclosure if-

(a) the informant has served on the accused under section 45 a statement of grounds for refusing disclosure; or

(b) the informant has failed to give disclosure in accordance with this Division.

(2) On application under subsection (1), the Magistrates' Court may order that the informant disclose to the accused any information, document or thing in accordance with a request under section 43 or a requirement of this Division.

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45. Grounds on which informant may refuse disclosure

45. Grounds on which informant may refuse disclosure

(1) The informant may refuse to disclose any information, document or thing
that is required by this Division to be disclosed to the accused if the informant considers that disclosure would, or would be reasonably likely to-

(a) prejudice the investigation of a contravention or possible contravention of the law or prejudice the enforcement or proper administration of the law in a particular instance; or

(b) prejudice the fair hearing of the charge against a person or the impartial adjudication of a particular case; or

(c) disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law; or

(d) disclose methods or procedures for preventing, detecting, investigating or dealing with matters arising out of contraventions or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

(e) endanger the lives or physical safety of persons engaged in, or in connection with, law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law; or

(f) endanger the life or physical safety of a person referred to in section 43(1)(a) or of a family member, as defined in the Family Violence Protection Act 2008, of such a person.

(2) The informant may refuse to disclose any information, document or thing that is requested under section 43(1)(d) on any ground on which the informant would be entitled to refuse to produce the information, document or thing under a witness summons.

(3) The 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 the
proceeding but the informant must advise the accused of the existence of any undisclosed previous convictions.

Notes

1. See section 14 of the Victims' Charter Act 2006 as to victims'
privacy.

2. See section 416 as to the prosecution's general obligation of
disclosure.

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44. Informant must comply with request or state grounds of refusal

44. Informant must comply with request or state grounds of refusal

(1) Within 7 days after the informant receives a request under section 43, the informant must comply with the request or serve on the accused a written notice that the informant refuses to comply with the request, identifying the grounds for refusing disclosure.

(2) The Magistrates' Court may vary a time limit referred to in this section

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43. Accused may make request for material etc. not provided

43. Accused may make request for material etc. not provided

(1) The accused may give to the informant a written request for-

(a) a copy of any statements made or information given by persons listed in a full brief;

(b) a copy of any things listed in a full brief;

(c) inspection of the exhibits at a time and place agreed between the accused and the informant;

(d) a copy of any information, document or thing specified by the accused that is required by or under this Act to be included in a preliminary brief or a full brief, as the case may be, and was not so included;

(e) particulars of previous convictions of any witness who the prosecution intends to call at the hearing.

(2) Subject to subsection (3), a request under subsection (1) may be made at any time after service of the preliminary brief or the full brief, whichever first occurs.

(3) Unless the Magistrates' Court otherwise orders, a request under subsection (1) must be made at least 7 days before-

(a) the contest mention hearing; or

(b) if a contest mention hearing is not held, the summary hearing.

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42. Continuing obligation of disclosure

42. Continuing obligation of disclosure

(1) This section applies to any information, document or thing that-

(a) comes into the informant's possession or comes to the informant's notice after the service of a preliminary brief or a full brief, as the case may be; and

(b) would have been required to be listed, or a copy of which would have been required to be served, in the preliminary brief or the full brief.

(2) The informant must serve on the accused a copy of the document or list as soon as practicable after the information, document or thing comes into the informant's possession or comes to the informant's notice.

(3) If the informant refuses to disclose any information, document or thing that is required to be disclosed under this section, the informant must serve on the accused as soon as practicable a written notice that the informant refuses disclosure under section 45, identifying the ground for refusing disclosure.

Note

See section 416 as to the prosecution's general obligation of disclosure.

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41. Contents of full brief

41. Contents of full brief

(1) Unless earlier disclosed to the accused, whether in a preliminary brief, at a summary case conference or otherwise, a full brief must contain-

(a) a notice in the form prescribed by the rules of court-

(i) explaining this section and section 83; and

(ii) explaining the importance of the accused obtaining legal
representation; and

(iii) advising that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and

(iv) providing details of how to contact Victoria Legal Aid; and

(b) a copy of the charge-sheet relating to the alleged offence; and

(c) a copy of the criminal record of the accused or a statement that the accused has no previous convictions; and

(d) any information, document or thing on which the prosecution intends to rely at the hearing of the charge including-

(i) a copy of any statement relevant to the charge signed by the accused, or a record of interview of the accused, that is in the possession of the informant; and

(ii) a copy, or a transcript, of any audio-recording or audiovisual recording required to be made under Subdivision (30A) of Division 1 of Part III of the Crimes Act 1958; and

(iii) a copy or statement of any other evidentiary material that is in the possession of the informant relating to a confession or admission made by the accused relevant to the charge.

(iv) a list of the persons the prosecution intends to call as witnesses at the hearing, together with a copy of each of the statements made by those persons; and Note See section 47 for requirements for statements
.
(v) a legible copy of any document which the prosecution intends to produce as evidence; and

(vi) a list of any things the prosecution intends to tender as exhibits; and

(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; and

(viii) a 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; and

(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 prosecution that is relevant to the alleged offence including-

(i) a list of the persons (including experts) who have made statements or given information relevant to the alleged offence but who the prosecution does not intend to call as witnesses at the hearing; and

(ii) a copy of every statement referred to in subparagraph (i) made by each of those persons or, if the person has not made a statement, a written summary of the substance of any evidence likely to be given by that person or a list of those statements or written summaries; and

(iii) a copy of every document relevant to the alleged offence that the prosecution does not intend to tender as an exhibit at the hearing or a list of those documents; and

(iv) a list containing descriptions of any things relevant to the alleged offence that the prosecution does not intend to tender as exhibits at the hearing; and

(v) a clear photograph, or a clear copy of such a photograph, of any thing relevant to the alleged offence that cannot be described in detail in the list; and

(vi) a copy of-

(A) records of any medical examination of the accused; and

(B) reports of any forensic procedure or forensic examination conducted on the accused; and

(C) the results of any tests- carried out on behalf of the prosecution and relevant to the alleged offence but on which the prosecution does not intend to rely; and

vii) a copy of any other information, document or thing required by the rules of court to be included in a full brief; and

(f) if the informant refuses to disclose any information, document or thing that is required to be included in the full brief, a written notice that the informant refuses disclosure under section 45,identifying the ground for refusing disclosure.

(2) Section 48 applies to information and other material supplied in a full
brief.

Notes

1. See section 416 as to the prosecution's general obligation of disclosure.

2. Section 39(4) enables an informant and an accused to agree to the provision of less material in the full brief than is required by section
41.

3. If the Magistrates' Court hears and determines a charge in the absence
of the accused, section 83 provides that certain documents in a full brief
served on the accused are admissible in evidence.

4. See section 86 as to proof of criminal record in the absence of the accused.

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40. How full brief must be served

40. How full brief must be served

(1) A full brief 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.

Note

Section 394 provides for ordinary service.

(2) In considering whether to effect service of a full brief by ordinary service, the informant must consider whether it is an appropriate method of service in all the circumstances as known by the informant including-

(a) the nature and gravity of the alleged offence;

(b) whether the accused has previously been found guilty or convicted of any similar offence;

(c) the period of time that has elapsed since the accused's address for service was ascertained;

(d) the manner of service of the summons to answer to the charge.

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39. When full brief must be served

39. When full brief must be served

(1) At any time after a criminal proceeding has commenced or, if a preliminary brief is served under section 24, at any time after a summary case conference is held, the accused, by written notice to the informant, may request that a full brief be served.

Note

Section 54 provides for summary case conferences.

(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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