Full brief not complete

Court proceedings and Legal Process
nofines
Posts: 156
Joined: Tue Jun 17, 2014 11:29 am

Full brief not complete

Postby nofines » Sun Jun 07, 2015 10:27 pm

Hi guys,

Someone I know received a full brief for a simple traffic offence that doesn't contain a list of priors. According to section 41 (1) (C) of the Criminal Procedure Act 2009 this information must be in the full brief.

If this person turns up in court and asks the magistrate to disallow the brief and dismiss the case for lack of evidence, is the Magistrate obliged to dismiss the case?

BN2
Posts: 179
Joined: Fri Aug 12, 2011 1:18 pm

Re: Full brief not complete

Postby BN2 » Mon Jun 08, 2015 11:02 am

Lack of evidence? What evidentiary value do the priors hold? Unless its a drive whilst suspended case, they are not really relevant until there is a finding of guilt.

Hardy
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Re: Full brief not complete

Postby Hardy » Mon Jun 08, 2015 4:47 pm

First, it is a preliminary brief.
Second, if it does not allege any priors, then the police are not going to allege any priors. Perhaps because there aren't any?? Ask the person how many times they have been to court - maybe never?
if the police have forgotten to allege priors that should be alleged the last thing you should do is remind them to allege them.
There is no requirement that the police serve on you a preliminary brief, or a full brief, unless you explicitly request them to.

I think you have got it all around the wrong way. The only reason you want the brief of evidence is so you can prepare your case to respond to the allegations made against you - especially to help you work out if you should plead guilty or not guilty.

nofines
Posts: 156
Joined: Tue Jun 17, 2014 11:29 am

Re: Full brief not complete

Postby nofines » Mon Jun 08, 2015 9:46 pm

It is not a preliminary brief, it is a full brief. There is a Form 11 (titled: Notice accompanying full brief), Form 3, statements and other correspondence attached to the brief.

First court date has come and gone, defendant pleaded not guilty so case now goes to a hearing.

According to the Criminal Procedure Act if there are no priors, the full brief must include a statement saying there are no priors. So, the full brief is not complete, so back to the original question: If the full brief is incomplete, is this grounds to prevent the brief from being used in court or even have the case dismissed? Section 27 of the CPA 2009 says "A charge for a summary offence is to be heard and determined summarily in accordance with this Chapter or, if the case requires, Division 1 of Part 5.8." It can be argued that as section 41 and section 27 are part of the same chapter and section 41 has not been fulfilled, the case cannot be heard. However not being a lawyer or even a defendant before, I don't know what a Magistrate will do when this is pointed out to him.

BN2 wrote:Lack of evidence? What evidentiary value do the priors hold? Unless its a drive whilst suspended case, they are not really relevant until there is a finding of guilt.
The value of priors is not the issue. My query is a technical law query. If the brief is not complete, can the brief be prevented from being adduced because it doesn't follow the requirements of the Criminal Procedure Act 2009, specifically section 41 (1) (c), or the case dismissed?

Hardy
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Re: Full brief not complete

Postby Hardy » Mon Jun 08, 2015 11:23 pm

The full brief is only ever used in court if you fail to appear at the hearing.
It is pointless appearing at the hearing to complain about deficiencies in the full brief. If you managed to do it, all the police would do is ask for an adjournment to remedy the problems you raised. The time to complain about deficiencies in the brief is at summary case conference or contest mention.
The full brief is provided to you prior to the hearing so you are ready for the hearing. If the brief does not contain priors, then the time to complain about that is after judgement and prior to sentencing when they try to allege priors that were not disclosed in the full brief.

If a client is advised to plead guilty on the presumption that there are no priors alleged, but after entering a plea of guilty and having the case found proved the police then produce 9 pages of priors including 5 priors for xpca and 4 x dws plus a breach of suspended sentence, then you could withdraw your plea of guilty and request the case to be adjourned for a PNG.

Usually there is nothing to gain from complaining to anyone about the police failing to provide you with the information you were expecting. There is no value in reminding the police to get their case better prepared.
The main thing you want to avoid is being unprepared at the hearing, so provided you are aware of which witnesses are coming and know what they are likely to say, then that should be enough info to prepare your case. Usually you do not need the priors to prepare your defence. You only need them to prepare a plea in mitigation of penalty.

nofines
Posts: 156
Joined: Tue Jun 17, 2014 11:29 am

Re: Full brief not complete

Postby nofines » Thu Jul 09, 2015 12:13 am

Update:

Person went to court, self represented. Sat in courtroom from 2pm to 3:55 pm. Case called at 3:55pm.

Magistrate said court closes in 5 mins, will adjourn case.

Defendant asks if they change their plea to guilty, will the court give a S76 decision.

Court says they can give a sentencing indication and asks a couple more questions of both defendant and prosecution, then hesitates 15 secs and says yes they will.

Defendant changed plea to guilty, Magistrate give a S76 verdict with no costs. Case over in 5 mins.

Defendant happyish. 2 half days in court, no payment or record.


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