The new Criminal Procedure Act 2009 (Act) has been proclaimed
and applies to all criminal proceedings commenced after 1 January
This e-alert is the first of a series of e-alerts designed to
assist you with preparing your proceedings in the Magistrates'
Court and complying with the Act.
Commencing a criminal proceeding
Section 6 of the Act regulates the commencement of criminal
proceedings. The process of filing a charge-sheet and summons with
the registrar of the Court has not changed.
However, the Act now provides alternative methods of commencing
a proceeding. The Act allows a public official (which includes a
person employed by a Council) to, after signing a charge-sheet,
issue a summons to answer to the charge.
An alternative method is to serve on the accused a notice to
appear. Subsequent e-alerts will discuss these processes and the
different ways that service can be effected.
Pre hearing disclosure
Regardless of the method chosen for commencing a criminal
proceeding, an accused is entitled to be served with a copy of the
brief. There is now what is called a preliminary brief and a full
Whether a preliminary brief or a full brief is required depends
on which process was used to commence proceedings. If a
charge-sheet and summons is served, the accused is entitled to
request in writing either a full brief or a preliminary brief. The
informant has 14 days from the date the request is received to
supply the brief. If a Notice to Appear has been served, the
informant must serve a preliminary brief on the accused within a
short time frame. We will also be discussing pre-hearing disclosure
at length in subsequent e-alerts.
The contents of a preliminary brief is set out in section 37 of
the Act. The contents of a full brief is set out in section 41 of
the Act. You should familiarise yourselves with these provisions.
Not only does the Act provide for the content of a brief of
evidence but it also regulates the form and content of informant
statements and the form of witness statements.
An informant statement for a preliminary brief must be a
complete and accurate statement of the material available to the
The informant statement must be in the form of an affidavit or
contain an acknowledgement signed in the presence of a person
authorised by the Act. It must also include the following:
a statement of the alleged facts on which charge is based
including reference to the material available to the prosecution to
support the alleged facts;
a description of the background to and consequences of the
a summary of any statements made by the accused including
a list of the names of all persons who may be called by the
prosecution and indicating whether they have made statements;
any list of things the prosecution may tender as exhibits.
A full brief must include a list of persons the prosecution
intends to call as witnesses at the hearing together with a copy of
each of the statements made by those persons. Section 47 of the Act
requires the witness statements to be in the form of an affidavit
or signed with an acknowledgement before a person authorised under
the Act otherwise the statement cannot be tendered in the absence
of the accused.
here to view a list of persons authorised by the Act.
Section 48 of the Act now prohibits the disclosure of the
address or telephone number (including private, business or
official address or telephone number) of any person in any
information, document or thing provided to the accused unless:
(a) the informant believes that:
the information, document or thing does not identify the
address or telephone number as that of any particular person;
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;
(b) the Magistrates' Court permits the disclosure on
application made by the informant or the accused.
here to contact a member of our Prosecution & Enforcement
Team for further information.
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