What is a Preliminary Brief of Evidence?

A brief of evidence is a document which the police prepare and serve on a person who is charged with criminal and/or traffic offences. The prosecution then relies on the contents of the brief of evidence should the matter proceed to a hearing or be committed for trial. Even if an accused intends to plead guilty, it is crucial that they seek advice on the contents of the brief of evidence prior to doing so.

Police will sometimes serve the brief of evidence on an accused at the time they are charged. Other times, the police will require time to prepare the brief and serve it on the accused. However, the Criminal Procedure Act 2009 sets out a strict timetable of when the preliminary brief of evidence is to be served.

A copy of the brief of evidence can be obtained by contacting the Informant (the police officer in charge of a matter i.e. the person who conducted the interview with the accused). A request to obtain a copy of the brief of evidence can be made under Part 3.2 of the Criminal Procedure Act 2009.

What Does a Brief of Evidence Contain?

Typically, a preliminary brief of evidence contains the following documents:

Orders and Applications Sought

The brief of evidence will include a list of orders and/or applications the prosecution seeks to make at a mention or hearing. Depending on the charges these can include, but are not limited to:

• An order to impound the accused’s vehicle; or
• An order for the accused to forfeit anything that has been seized; or
• An order that the accused be placed on the Sex Offenders Registry; or
• An order for restitution; or
• An application for forensic sample, or
• Whether a Victim/Complainant wishes to provide a Victim Impact Statement.

Charge Sheet

The Charge Sheet is a document which outlines the charges which are to come before the court. The Charge Sheet will contain details about the legislation and the section that the accused has allegedly breached.

If the accused is on summons, the charge sheet will also include the time and location of their first court mention.

Summary

The summary is a description of the offending. It will include the day and approximate time of the offence when the police were called, and it will include a background of alleged facts which support the charges against the accused.

If the accused pleads guilty, the Magistrate will hear the summary from the Prosecution. Considering the Magistrate hears the summary. During case conferences with the prosecutions, in some circumstances, negotiations can be had with the prosecution to request that the summary be amended to exclude words or sentences or even paragraphs.

Evidence

The next set of documents will include a list of people the people can call as witnesses and things that they can tender (produce to the court) as evidence to support the charges against an accused. If witnesses have made formal statements these will be included, as well as any photographs or evidentiary certificates which have been issued (i.e., the findings following a breath test).

Prior History

The brief of evidence will also include a copy of the accused’s prior criminal and traffic history. The police can access and include the prior history the accused may have had in other states.

Further to the above, the defence can request that the Informant provide additional material, including:

• Details and copies of any police interviews conducted,
• Copies of any CCTV footage (including body-worn camera or dash camera footage),
• Copies of still photographs,
• Copies of triple zero calls,
• Copies of all statements of witnesses (including expert witnesses) even if the police do not intend to call them to give evidence at a hearing,
• Written summaries of the substance of any evidence likely to be given by persons who have not made a statement, and
• Details of the prior convictions and/or finding of guilt of all witnesses the police intend to call.