VIC Magistrates Court Summary Offence - Incomplete Brief?

[Rod]

Hi guys,

Someone I know has a minor summary offence and just received their full brief and the brief is incomplete as it does not include a statement of prior convictions.

The Vic Criminal Procedure Act 2009 details the contents of the full brief and says in section 41 (1) (c)

a copy of the criminal record of the accused or a statement that the accused has no previous convictions or infringement convictions; and​

So, this information MUST be provided according to the Criminal Procedure Act 2009. But I don't know what happens in court when this is explained to the magistrate.

Question: If the brief is incomplete in this way, can the accused ask the magistrates court to throw out the brief and have the case dismissed for lack of evidence?

 

[Tracy B]

Hi Rod,

Perhaps:

• Contact the Prosecution/Police and see if they can deliver a copy of the criminal record before the hearing begins
• If not, tell the Magistrate at the beginning that you have not received a copy of the Defendant's criminal history and ask the Magistrate to direct to Prosecution/Police to deliver this document forthwith and the matter be adjourned for a later date

The hearing should not proceed without this document as this constitutes a breach of the Prosecution's duty to disclose and may be grounds to appeal if the Prosecution fails to deliver the information throughout trial.

 

[Rod]

This person has no priors though, and doesn't feel it is his role to tell the prosecution how to do their job and help prosecute him (I sympathise with this attitude). Rather than asking for an adjournment, can he ask the court to dismiss the case? He will turn up and be in court ready to have his case heard. If the prosecution is derelict in their job, is this grounds to have the case dismissed?

 

[Tracy B]

Hi Rod,

Unfortunately, I don't think it would be grounds to dismiss the case based on failure or delay to disclose, particularly if the person has no prior criminal history.

If the magistrate is alerted to the fact during hearing, the matter will likely be adjourned and directions given for the police/prosecution to provide the criminal background check. If it proceeds to conviction and is appealed solely on the ground that no criminal history was disclosed (and hence, police/prosecution breached their duty to disclose) then the judge will likely apply the proviso on the grounds that despite the procedural irregularity or error, there was no substantial miscarriage of justice (especially if this person is self-representing or has no prior history and so non-disclosure would not have prejudiced him).

 

[Ponala]

If you look on the 1st page of the full brief document there will be a box that says 'Prior Convictions', I assume this will have a 'No' in it as you say they have no prior convictions - this is classified as a statement that the accused has no previous convictions or infringement convictions.

 

[Rod]

Re-looked at the full brief and the only tick box about priors indicates whether or not a list of priors or a statement about having no priors is attached to the brief. The box is not ticked.

 

[Rod]

... or has no prior history and so non-disclosure would not have prejudiced him)

The planned defence relies on the character of the accused. Having no priors is an essential part of the defence