The new Criminal Procedure Act 2009 (Act) has been proclaimed and applies to all criminal proceedings commenced after 1 January 2010.
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 brief.
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 prosecution.
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 alleged offence;
- a summary of any statements made by the accused including admissions;
- a list of the names of all persons who may be called by the prosecution and indicating whether they have made statements; and
- 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.
Please click 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; or
- 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; or
(b) the Magistrates' Court permits the disclosure on application made by the informant or the accused.
Please click here to contact a member of our Prosecution & Enforcement Team for further information.
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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.
