Defence Lawyers Denied the Right to Evidence

Recent changes to court legislation have meant that defence lawyers no longer have certain rights they previously had regarding summary offences.

Until recently, defence lawyers had the right to receive a ‘brief of evidence’ from the prosecution at least 14 days before the date of a scheduled hearing.

This covered all criminal and major traffic offence types and provided a valuable tool to help defending lawyers prepare a strong case on behalf of their clients.

A brief of evidence is a summary of all the statements and other evidence that the prosecution intends to use against the defendant.

Having this in advance gives the defence lawyers the chance to go through the evidence and challenge anything that is inaccurate.

Knowing the evidence against the defendant beforehand also helps the defending lawyer to prepare a stronger defence.

According to Section 183 of the Criminal Procedure Act 1986, the prosecutor is required to serve the brief of evidence upon the accused person if they have pleaded not guilty, and this must be done at least 14 days before the defended hearing.

This must include any written statements, along with any proposed exhibits that will be used as evidence against the defendant.

The local court practice note for local court proceedings actually states that if the defendant pleads not guilty, the brief of evidence should be served on the defence within four weeks of the first court date, giving them even more time to prepare a strong case and assess the strength and validity of the evidence against their client.

When it comes to ensuring a fair trial, the more time the defence has to review the statements and other evidence, the more likely they are to present a strong case.

But recent changes to the regulations have granted the prosecution a number of exemptions against providing a brief of evidence, a move that could significantly disadvantage defendants in summary offence matters.

Section 187 of the Criminal Procedures Act gives the prosecution an exemption from providing a brief of evidence in cases where there is a compelling reason not to, and where a brief of evidence can’t reasonably be served on the accused.

The regulations specify that these exemptions can be for a number of reasons, including offences where penalty notices can be issued, offences that come under Section 4 of the Summary Offences Act and in cases where there is a summary offence with a monetary penalty only.

Other circumstances include certain Road Transport Act offences and proceedings for offences under section 10 dismissals or conditional release orders of the Drugs Misuse and Trafficking Act 1985, and section 16 of the Poisons and Therapeutic Drugs Act.

This amendment to the Criminal Procedure Regulation means that defendants facing any of these charges could be significantly disadvantaged when it comes to preparing a strong defence, and assessing the accuracy and validity of the charges against them.

If an alleged offender has been charged with any of the exempt offences, police aren’t required to serve a brief of evidence to their lawyer until the morning of the defended hearing.

This means that it is impossible for the defence lawyers to investigate the accuracy of any statements made against their client.

Under these circumstances it is also very difficult for the defence to properly prepare for the trial and take full instructions from their client.