What is a Brief of Evidence?
Have you been charged with a criminal offence? As part of your criminal proceedings, the prosecution will draft a preliminary brief of evidence. This group of documents states the evidence available to the informant and provides comprehensive details of alleged facts and evidence supporting the charges. The brief is ‘preliminary’ because while it states the evidence available to the informant, it may not contain a copy of all witness statements.
If you have received a preliminary brief of evidence, this article aims to assist you in understanding what it means. We recommend seeking legal advice from our experienced criminal defence lawyers if you want more specific information about your preliminary brief of evidence. Additionally, if you have yet to receive a preliminary brief of evidence from the police informant, this article will outline when you should expect it and how you can request access before proceedings continue.
Contents of a Brief of Evidence
As summarised above, a preliminary brief of evidence is a collection of documents that outlines what the prosecution intends to rely upon in court to prove the validity of any charges brought against an accused person. A brief will contain the following, as outlined in section 37 of the Criminal Procedure Act 2009 (Vic).
Police Informant Statement
This is a summary of events to be drafted by the police officer in charge of the particular instance of offending. The summary will outline:
- The alleged facts of the offending;
- The background to and consequences of the offending;
- Any statements or confessions of the accused; and
- A list of witnesses the prosecution intends to call to support their case.
The charge sheet will outline the charge(s) against the accused to be tried in court, including the acts and associated sections the accused is alleged to have breached. This will also include the time and location of the first court mention if the accused is on summons.
Accused’s Criminal history
The accused’s criminal history before the particular instance of offending, or if it is not applicable, a statement that no such prior convictions exist.
Orders and applications sought
The brief will outline any orders the prosecution seeks alongside the charges brought. This may include, but is not limited to, orders relating to forensic sampling, orders relating to the property of the accused, and orders relating to the legal status or movement of the accused.
As mentioned with regard to the police informant’s summary, a list of witnesses will be tendered (produced to the court) as part of the brief of evidence. Additionally, any other documents used as evidence will be tendered alongside any photographs or evidentiary certificates the prosecution intends to use.
The preliminary brief will also include appropriate attachments such as:
VicRoads certificates (for driving-related offences);
repair quotes (if damage is alleged);
medical evidence of an injury or serious injury (if an injury is alleged in an assault case, for example).
Obtaining a Brief of Evidence
It is important to know when a preliminary brief of evidence will or should be served. According to section 24 of the Criminal Procedure Act 2009 (Vic), a preliminary brief of evidence must be served within 21 days of the accused’s charge sheet being filed. As discussed above, an accused’s charge sheet outlines which offences they have breached and will list the specific sections of those offences.
A charge sheet will typically be filed after the police serve a separate notice to appear on the accused; section 22(1) requires the police to file it within 14 days of serving a notice. Otherwise, the notice will expire. So, if we presume that everything has been completed correctly, the police have a maximum of 5 weeks (35 days) to serve an accused with their preliminary brief of evidence, but this will likely be shorter.
Once proceedings have commenced, the accused can request the preliminary brief of evidence be served again. This is to be done by written notice to the police informant in charge, and the brief is to be served within 14 days of receiving the request from the accused.
Requesting additional material
The defence can also request that the police informant provide additional material, such as:
- copies of any police interviews;
- copies of all witness statements, even those that the prosecution does not intend to call at a hearing;
- summaries of evidence likely to be given by any witnesses who have not made a statement;
- copies of any CCTV footage (such as body-worn camera or dash cam footage);
- copies of photographs;
- copies of triple zero call recordings; and
- criminal records of witnesses the prosecution intends to call.
Whenever you are faced with a criminal matter, you should engage a lawyer. However, this is when you really need to engage a lawyer. Lawyers will assess when something is missing from a brief, even in circumstances when you think all materials have been provided, it is often the case that they havent.
There is a long list of materials that can be important when attempting to secure a withdrawal in relation to a charge or mitigate a factual circumstance. For example, sometimes it will be important to obtain a prior history of the complainant or obtain the electronic investigative notes.
Criminal law is complex, so it is important to engage experienced criminal defence lawyers.
What should I do next?
If you have received a preliminary brief of evidence, we recommend you seek legal advice from an experienced criminal lawyer. Regardless of whether you intend to plead guilty or not guilty in your legal matter, contact one of our criminal defence lawyers. Let our criminal lawyers assess your case and advise you of the next steps to achieve the best possible outcome for your circumstances. The information outlined in the brief can prove vital to conducting proceedings and so should be considered as soon as possible before proceeding any further.