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.

Read more...

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.

Read more...

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.

Read more...

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.

Read more...

38. Requirements for informant's statement in preliminary brief

38. Requirements for informant's statement in preliminary brief

A statement by the informant in a preliminary brief must be-

(a) in the form of an affidavit; or

(b) signed by the informant 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.

Note

Section 414 provides for acknowledgment of false statements.

Sub-section (2) used to specify that an informant who acknowledged a statement described in subsection (1) knowing the statement to be false is liable to the penalties for perjury. The provision has been removed as it is redundant, as described in the amended note.

Read more...

37. Contents of preliminary brief

37. Contents of preliminary brief

(1) A preliminary brief must include-

(a) a copy of the charge-sheet in respect of the alleged offence; and

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

(i) explaining this section and section 84; 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

(c) a statement made by the informant personally that complies with subsection (2) and section 38; and

(d) any evidentiary certificate issued under any Act that is likely to be relevant to the alleged offence and is available at the time the preliminary brief is served; and

(e) a copy of the criminal record of the accused that is available at the time the preliminary brief is served or a statement that the accused has no previous convictions known at that time; and

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

(g) a list of any other orders that are or will be sought, as known at the time of preparation of the preliminary brief.

(2) A statement by the informant in a preliminary brief must be a complete and accurate statement of the material available to the prosecution at the time the statement is sworn, signed or attested and must include-

(a) a statement of the alleged facts on which the charge is based, including reference to the material available to the prosecution to support the alleged facts; and

(b) a description of the background to and consequences of the alleged offence, if known; and (c) a summary of any statements made by the accused concerning the alleged offence, including any confession or admission; and

(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) A preliminary brief may include any other information, document or thing that is relevant to the alleged offence and may assist the accused in understanding the evidence against the accused that is available to the prosecution.

Example

Statements of key witnesses may be included in the preliminary brief.

Notes

1. If the Magistrates' Court hears and determines a charge in the absence of the accused, section 84 provides that certain documents in a preliminary brief served on the accused at least 14 days before the hearing date are admissible in evidence.

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

Read more...

36. How preliminary brief must be served

36. How preliminary brief must be served

(1)A preliminary 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 preliminary 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.

It is noticeable (and presumably intentional) that the conditions for service of a preliminary brief is couched in identical terms to those at section 17 concerning service of summonses.

Read more...

35. When preliminary brief is to be served

35. When preliminary brief is to be served

(1) If required to do so by section 24, the informant must serve a preliminary brief on the accused.

(2) At any time after the commencement of a proceeding, the accused, by written notice to the informant, may request that a preliminary brief be served.

(3) If the accused gives notice under subsection (2), the informant must serve on the accused a preliminary brief within 14 days after receipt of the notice.

(4) Nothing in this section prevents the informant from serving a preliminary brief on the accused at any other time.

Read more...