Written by Bill Doogue. Partner, Doogue & O’Brien Criminal Defence Lawyers
Criminal Defence Lawyers are set to face new and incomprehensible difficulties defending driving matters with the recent notification that the Highway Patrol will not provide us with full briefs when we request them. They will send the signed statement by the Informant. They will send the client’s prior criminal history. But, they will not send a copy of the person’s prior driving history (their Vicroads priors).
Highway Patrol’s position is that if the matter proceeds to case conference or contested hearing they will then send a full brief. They contend that we should cease to request a full brief initially. Apparently, the prosecution will have the priors in their briefs, but on their end all the traffic priors are deleted.
There are many reasons why this is a move that beggars belief.
1. This is contrary to the Criminal Procedure Act.
We have a right to ask for the full brief at any time as outlined in 39(b) of the Criminal Procedure Act (read below).
2. The Highway Patrol have no right to tell us when we can request the full brief.
If we have the charges then the matter has commenced.
3. It will save a lot of wasted Court time if we are provided the Vicroads priors before we go to Court.
It is not so difficult for them to attach them to the preliminary brief or to keep a copy at their office. Or, Heaven forbid, print a copy when a lawyer asks to see what their client’s priors are.
4. Have the rights of the defendant become so diminished as to disclosure that we can not have a copy of their priors before attending Court?
This procedure would result in the client having to pay us for unnecessary Court appearances. There is a very real probability that we will have to adjourn the matter, for example, if their priors were worse than they remembered or if there is a disputed prior appearance.
5. Often, a client will not remember whether they were driving unlicensed or on a suspended licence on a previous Court appearance.
That distinction can make all the difference as to whether they are facing prison or not.
6. Clients applying for legal aid cannot do so.
Legal aid clients need to be assessed to ensure they meet the guidelines for funding. Without access to their Vicroads priors how could you assess if someone is likely to be facing a suspended gaol term, which is the test for legal aid in driving matters?
Providing the priors would save Court time and is fairer. It is hard to understand the position of the Highway Patrol on this one.
Criminal Procedure Act 2009 – SECT 39
When full brief must be served
39. When full brief must be served
(1) The accused, by written notice to the informant, may request that a full
brief be served.
(1A) A request under subsection (1) may be made-
(a) if a preliminary brief is served within 7 days after the day on which
the charge-sheet is filed, at any time after a summary case conference
is held; or
(b) in any other case, at any time after the criminal proceeding has
(2) If the accused gives a notice under subsection (1), the informant must
serve a full brief on the accused at least 14 days before-
(a) the contest mention hearing; or
(b) if a contest mention hearing is not held, the summary hearing.
(3) The Magistrates’ Court, by order, may vary the date for service of a full
brief to a specified date that is earlier or later than the date for service
required by subsection (2).
(4) Nothing in this section prevents agreement between the informant and the
accused to more limited disclosure than is required in a full brief.
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