It is a fundamental principle of our criminal justice system that accused persons are informed of the evidence against them and have the opportunity to investigate the veracity of that material before their cases reach contested hearings or jury trials.
In New South Wales, this principle is embodied in section 183 of the Criminal Procedure Act 1986, which provides that:
"(1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence.
(2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include–
(a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and
(b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit.
(3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution.
(4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it."
The rule is intended to ensure that defendants are abreast of the evidence against them before their cases reach defended hearings, and to provide them with the opportunity to make inquiries about the reliability of that material and rebut it, before their cases are decided.
This may be seen as essential to ensuring procedural fairness and a component of a fair trial; the latter of which has been found by the High Court of Australia to be "a fundamental element of our criminal justice system".
Despite this, the NSW parliament has passed laws which allow police and other prosecutors to take cases to defended hearings without having to serve defendants with the evidence against them beforehand.
Court's discretion to dispense with brief service orders
One of those laws is section 187 of the Act, which provides in part that:
"(1) The court may order that all or part of the copy of the brief of evidence need not be served if it is satisfied–
(a) that there are compelling reasons for not requiring service, or
(b) that it could not reasonably be served on the accused person.
(2) The court may make an order under this section on its own initiative or on the application of any party.
(3) An order may be made subject to any conditions that the court thinks fit."
The section gives the court broad discretion to dispense with the requirement to serve all or some of the statements otherwise required to be served on defendants, if it believes there are "compelling reasons" to do so, or there is some reason that the prosecution is unable to serve the material.
Offences for which the prosecution is not required to serve a brief
In addition to this, section 187(5) of the Act has the effect of removing the requirement to serve evidence on the defendant for a range of offences.
The section states that:
"A prosecutor is not required to serve a brief of evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the regulations."
In that regard, clause 24 of the Criminal Procedure Regulation 2017 (NSW) (the Regulation) provides that prosecutors are not required to serve briefs of evidence for the following offences:
- Offensive Conduct under section 4 of the Summary Offences Act 1988;
- Drug Possession under section 10 of the Drug Misuse and Trafficking Act 1985;
- Possessing a Prescribed Restricted Substance under section 16(1) of the Poisons and Therapeutic Goods Act 1966;
- The following offences under the Road Transport Act 2013:
- Driving without a licence under section 53(3)
- Driving whilst suspended or disqualified under section 54(1)(a), (3)(a), (4)(a) and (5)(a)(i) or (b)(i);
- Driving with a prescribed concentration of alcohol (or 'drink driving') under section 110; and
- Driving under the influence under section 112.
- Proceedings for any summary offence (ie one that can only be prosecuted in the Local or Children's Court, rather than referred to a higher court) which attracts a monetary penalty only; and
- Proceedings for an offence for which a penalty notice may be issued (see below).
Bypassing the courts
There are hundreds of offences in New South Wales for which police are empowered to issue penalty notices – also known as on-the-spot fines – rather than refer the cases to courts for determination, effectively making police officers the judges, jurors and executioners when it comes to the determination of guilt.
Materials are not required to be served for these 'penalty notice offences', even if a defendant elects to take them to court.
Some of these offences are listed in Schedule 4 of the Regulation, and include:-
Crimes Act 1900 offences:
- Larceny under section 117, where the amount of the property does not exceed $300; and
- Goods in Custody under section 527(1).
Summary Offences Act 1988 offences:
- Offensive Conduct under section 4(1);
- Offensive Language under section 4A(1);
- Obstructing Traffic under section 6;
- Unauthorised Entry of Vehicle or Boat under section 6A; and
- Continuation of Intoxication After a Move on Direction under section 9.
Drug Misuse and Trafficking Act 1985 offences:
- Possessing not more than the 'small quantity', or 1 gram, of MDMA ('ecstasy') in capsule form,
- Possessing not more than the 'traffickable quantity', or 0.75 grams, of MDMA in any other form (eg tablet form), or
- Possessing not more than the small quantity of any other prohibited drug.
Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) lists the quantities applicable to prohibited drugs.
The small quantities for some of the most common illicit drugs are:
- Amphetamines – 1 gram
- Cocaine – 1 gram
- Heroin – 1 gram
- Ketamine – 2.5 gram
- Buprenorphine – 4 grams
- Mescaline – 3 grams
- Steroids – 50 grams
- Cannabis oil – 2 grams
- Cannabis resin – 5 grams
The Schedule does not apply to the possession of cannabis leaf.
Traffic penalty notice offences
Additionally, schedule 5 of the Road Transport (General) Regulation 2013 lists several dozen other penalty notice offences – most of which are traffic offences – for which material is not required to be served, even if a driver elects to take the matter court.
These include negligent driving (not occasioning death or grievous bodily harm), speeding offences, red light camera and safety camera offences, driver licence offences, heavy vehicle offences, seat belt offences and vehicle defect offences.
So in summary, the NSW parliament has made sure to pass laws which remove the ability of defendants to properly investigate the reliability of the evidence against them in the lead-up to a defended hearing, despite what the High Court has said about the right to a fair trial
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.