The Criminal Procedure Act 2009 (“CP Act”) changes the old Magistrates’ Court Act 1989 Schedule 2 disclosure process a fair bit, but not necessarily in the way expected by those involved in its introduction.
In Part 2, I discuss the current disclosure provisions and a few details that seem to have escaped attention thus far.
Preliminary and full briefs
The content of a preliminary brief is prescribed in CP Act s 37. CP Act s 35 says the police must serve a preliminary brief when required by s 24, itself requiring a preliminary brief within 7 days after a charge-sheet is filed (s 22) following issue of a notice to appear (s 21). (Alternatively, the police can give notice under s 23 the accused isn't required to attend and the notice has lapsed or will lapse. If they don't, they might incur costs under s 402.)
So far (at least, as far as I know), the Notice to Appear is not being used. Yet.
But this isn’t the only way a preliminary brief can be used. CP Act s 35(4) permits the police to serve a preliminary brief if they file a charge-sheet without relying on the Notice to Appear procedure. This is the basis for the current summary case conference process...
Full briefs: ‘put your cards on the table’
Under s 39(1A)(b), the accused may require a full brief anytime after a criminal proceeding commences. Under CP Act s 39(2) the police aren’t required to provide the full brief until 14 days before a contest mention, or a summary hearing (defined in s 3 as a contested hearing conducted under Part 3.3).
I’m not sure how this might work if the police refused to disclose a full brief until 14 days before a contest-mention or contest hearing! But I reckon very few judicial officials would force the accused on at a contest-mention or summary hearing if, after requesting a full brief, they only received one 14 days before the hearing. Perhaps except for a very simple case.
Full briefs still required most of the time
Even though the new preliminary brief process is hoped to reduce the need for police to prepare full briefs, the accused can still require one, except a summary case conference must happen first when:
- A Notice to Appear was issued, or
- A charge-sheet was filed
The police — and the Magistrates’ Court itself in its Practice Note 3 of 2010 — Summary case conference procedure — suggest all charges must go to a summary case conference first before the accused can obtain a full brief, and point to CP Act s 54(2), which relevantly provides:
(2) If a preliminary brief is served within 7 days after the day on which the charge-sheet is filed, a summary case conference must be conducted before—But that sub-section is conditional: note the ‘if’ at the start! It applies only if the police serve a Notice to Appear and then a preliminary brief within 7 days as required by CP Act s 24, or, the police commence a criminal proceeding in the first instance by filing a charge-sheet and are fast enough to serve a preliminary brief within 7 days of filing.
(a) the charge is set down for a contest mention hearing or a summary hearing; or
(b) a request for a full brief is made under section 39(1).
In all other cases, the accused can request a full brief without participating in a summary case conference.
(Note also that s 24 has no role to play when criminal process commences other than by ‘filing’ a charge sheet i.e. the ‘instant’ summons process in s 14.)
The Criminal Procedure Act 2009 – Legislative Guide suggests the same on pages 81 – 2, noting that only for cases commenced by Notice to Appear must a summary case conference occur before a contest-mention or summary hearing is set and full brief requested.
In short, the accused is generally still entitled to a full brief.
Additionally, it seems the new process isn’t working quite as well as hoped. The VLA summary criminal procedure update page recent bulletin mentions some of the problems. The Law Institute’s criminal law section recently advised its members it wrote to the Magistrates’ Court to say it supports the reforms but considers the summary case conference system isn't working efficiently. The Section provided template letters for requests of the Court to adjourn cases to a contest-mention if lawyers haven’t been able to conduct out-of-court negotiations with prosecutions units because of a shortage of prosecutors, and notes that VLA doesn't fund court attendances by practitioners for summary case conferences.
Disclosure and the full brief
CP Act s 54(1)(a) provides that a summary case conference is intended to identify and provide to the accused any:
- document or
Additionally, the CP Act s 41 prescribes what a full brief must contain.
The Criminal Procedure Act 2009 – Legislative Guide p 73 neatly outlines the three categories of material covered by s 41:
- Basic material required in all cases e.g. charge-sheets and prescribed notices: s 41(1)(a) – (c)
- Relevant material the prosecution intends to rely upon at Court: s 41(1)(d)
- Relevant material the prosecution does not intend to rely upon at Court: s 41(1)(e)
Section 41(1)(e) provides:
41. Contents of full briefA parallel disclosure regime also exists at CP Act Part 4.4 for committal briefs, and both operate in conjunction with the subpoena power in Part 8.1 at s 336.
(1) Unless earlier disclosed to the accused, whether in a preliminary brief, at a summary case conference or otherwise, a full brief must contain—
(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; (given the wide meaning of ‘document’ in the Evidence Act and Interpretation of Legislation Act, this provision is potentially very broad indeed) 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; andcarried out on behalf of the prosecution and relevant to the alleged offence but on which the prosecution does not intend to rely; and
(B) reports of any forensic procedure or forensic examination conducted on the accused; and
(C) the results of any tests—
(vii) a copy of any other information, document or thing required by the rules of court to be included in a full brief; and
Reading those provisions, it’s clear the CP Act intends providing more material to an accused than previous disclosure schemes required, and to reduce the need for subpoenas in many cases.
The Criminal Procedure Act 2009 – Legislative Guide commentary for s 336 states:
As discussed throughout this guide, the Act now creates clearer statutory disclosure obligations at each level of criminal proceedings. Importantly, the courts have been given express powers to resolve disputes about disclosure, which may lead to less reliance on witness summons/subpoena processes. The location of statutory disclosure obligations at each level of criminal proceedings is indicated below.
The availability of an express power to resolve disclosure disputes removes much of the need for the (comparatively cumbersome) subpoena process to be used, particularly where the material is in the prosecution’s possession (DPP or police). It will be open for such disclosure disputes to be resolved by simple application to the court and hearing of the issue on the merits. Having examined the contested material (if necessary to resolve the dispute) the court may order either disclosure, partial disclosure, or non-disclosure of the material that is the subject of the application.
CP Act s 42 imposes a continuing obligation of disclosure upon the prosecution. The Criminal Procedure Act 2009 – Legislative Guide commentary for that section notes:
As the Act harmonises provisions across jurisdictions, similar sections exist at the committal and trial stages (see sections 111 and 185).
The Criminal Procedure Act 2009 – Legislative Guide commentary for s 185 (the continuing disclosure obligation for indictable proceedings) notes:
This section is a central part of the Act’s approach to disclosure in trial proceedings. It is designed to clearly articulate disclosure obligations and provide a simple process to resolve disclosure disputes as an alternative to the use of subpoenas.
Because of the harmonised approach across jurisdictions, noted above, the legislative intent discussed at s 185 applies to summary cases too. (Otherwise, we'd have the ludicrous position where an accused person can obtain material without the expense and inconvenience of subpoena in the indictable stream, but not the summary stream.)
The disclosure provisions in the CP Act are deliberately intended to operate as an alternative to the use of subpoenas. Subpoenas are probably now required only when third-parties hold relevant material: Criminal Procedure Act 2009 – Legislative Guide commentary for s 336, discussed above.
I understand anecdotally from colleagues that some Magistrates’ Court registries are suggesting lawyers rely on these disclosure provisions in preference to issuing subpoenas, if not outright declining to issue subpoenas until the disclosure process is exhausted.
Of course, s 41(1)(e) doesn't provide open slather to the accused to gain whatever they want: it’s still founded on the touchstone of relevance, meaning cases discussing relevance of material sought by subpoena will be useful when considering what to seek and what to disclose. The most recent subpoena case on this point is Johnson v Poppeliers (2008) 20 VR 92, where Kyrou J held the test for release of material was if there’s a reasonably possibility it will materially assist the defence.
 In my view, the authorities discussed above establish that in Victoria, the test for determining whether evidence sought on summons by a defendant has a legitimate forensic purpose, is whether there is a reasonable possibility that the evidence would materially assist the defence. The test of “within the range of probability” set out in Fitzgerald does not correctly state the law. The authorities also establish that while a fishing expedition is insufficient, the test of “reasonable possibility” must be applied flexibly (and, I would add, with common sense) in order to give the accused a fair opportunity to test the Crown’s case and take advantage of any defences available to the accused. Where the accused wishes to rely on a statutory defence, the absence of evidence from which an inference can be drawn that the documents sought will satisfy the requirements of the defence does not necessarily mean that the reasonable possibility test is not met. This is particularly so where there is only one statutory defence available to the accused and that defence involves technical information exclusively in the possession of the Crown; insistence by the court that the accused present evidence which provides a basis for a positive inference that the documents sought will satisfy the requirements of the defence may effectively “eviscerate” the defence.
The end result is an accused may require and the prosecution ought to provide relevant material if it’s reasonably possible it will materially assist the accused. I expect that documents like running sheets, reports, notes and diaries are covered by this provision, rather than requiring a subpoena.
The effect of CP Act ss 41 and 42 is that disclosure material must be provided as part of a full brief as a matter of course. In some cases, it probably won’t be necessary, and if the accused doesn’t take issue with non-disclosure nothing will come of it. Otherwise, the accused may request non-disclosed material under s 43, and if refused, apply under s 46 to the Court for disclosure.
The whole disclosure process is bolstered too by Charter of Human Rights and Responsiblities Act 2006 s 25(2)(a) which provides:
(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—
(a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; ...(emphasis added)
No doubt there are a few skirmishes ahead before we get cases from appellate courts declaring how the provisions operate. Until then, careful reading of what the legislation says will help resolve some of the disputes.