# Flowchart
The following provides an outline of disclosure of evidence to the accused. A majority of this information is left open to interpretation, so it can be difficult to wrap your head around.
1. You **charge** the accused; ask yourself:
- What is the **case** against the accused?
- What are the accused's likely lines of **defence**?
- What are the **issues/possible issues** in the proceeding?
2. Based on your answers from above (1), work out what material is **relevant** to the case.
- Include all material that the prosecution relies on (evidence).
- But it may also include material the prosecution is not relying on, including material obtained solely for intelligence purposes. Ask:
- Is the material something that could help the accused?
- Is it **exculpatory** (clears of guilt, or "freed from blame") or **inculpatory** (the opposite).
- Could it say something about the issues that you have identified in step 1.
- Could it open a line of inquiry which might assist the defence?
- If so, then all of that information is relevant.
- This will also include material in the [[possession]] of other areas (covert work units, etc.).
3. Identify any relevant material from **other agencies** (IBAC, Interstate, Australian Border Force, etc.).
- Both State or Federal agencies should be contacted before making disclosure of the information provided.
4. Identify if any of the relevant material is subject to **statutory prohibitions** on disclosure. Such as:
- Addresses or phone numbers.
- Medical or counselling files relating to victims of sexual assault.
- Disclosures of improper conduct by public officers.
- Materials relating to people in Witness Protection.
- Materials relating to matters before the Chief Examiner.
- Materials supplied by the Australian Border Force.
- Materials supplied by AUSTRAC.
- Materials supplied by the Australian Security and Intelligence Organisation.
5. Identify if any of the materials are subject to:
- A claim of **public interest immunity**.
- Subject to **legal professional privilege**.
6. Make any necessary **redaction** or take note of documents that need to be withheld of the basis of the above considerations.
7. For a **hand-up brief**; Fill in Form 30 and serve Form 30 on the accused.
8. If any new material (or material is made relevant) comes into your [[possession]] after compiling the brief, provide that material as soon as possible to the Prosecutor.
# Contents of a Preliminary Brief
Beyond what we include on a procedural level (e.g. what your Sergeant likes in a Brief) here are the legislated requirements under [**Section 37 of the Criminal Procedure Act 2009**](http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s37.html "SECT 37 Contents of preliminary brief").
1. A copy of the Charge Sheet.
2. The court information attached to your Accused's Charge Sheet (information about Section 37 and 94, legal representation, legal aid, and how to contact legal aid).
3. A Statement Made by the Informant (Your Statement of Alleged Facts, Exhibit/Witness List, etc.).
4. Any evidentiary certificate (e.g. an EBT Receipt).
5. A copy of the criminal record of the accused.
6. A document that/written notice that the informant refuses to disclose information if required.
It also states that your Statement Made by the Informant must:
- Be an accurate statement of the material available to the prosecution at the time the statement is sworn or affirmed and must include:
- The Statement of Alleged Facts on which the charge is based, including reference to the material available to the prosecution to support those facts; and
- A description of the background to and consequences of the alleged offence, if known; and
- A summary of any statements made by the accused concerning the alleged offence, including any confession or admission; and
- A list of the names of all person who may be called as witnesses and indicating if they took statements; and
- A list of exhibits and those which are in police possession.
Your Brief can also contain any other information, document or thing that is relevant to the alleged offence that may assist the accused in understanding the evidence against them.
This is just the long and legislative list of the majority of the things you would ordinarily include in your Briefs.
# Serving a Preliminary Brief
There a many sections of the Criminal Procedures act that cover the process of serving a brief on the accused.
## Charge Sheet and Timing of Brief Completion
**[Section 24 Criminal Procedures Act](http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s24.html "Section 24 Criminal Procedures Act")** - If a charge-sheet is filed, the informant **must**:
**(a)** Serve a preliminary brief on the accused within **21 days** after the day the charge was filed.
**(b)** On the return date, have available a copy of the brief that can be given to the accused or the legal practitioner on request.
**[Section 35 Criminal Procedures Act](http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s35.html "Section 35 Criminal Procedures Act")** - A preliminary brief is to be served:
**(1)** If required to do so by Section 24.
**(2)** At any time after commencement of the proceeding, the **accused requests** for a preliminary brief to be served.
**(3)** If the accused gives notice under (2), the brief must be served within **14 days**.
**(4)** Nothing in this section prevents the informant from serving a brief at any other time.
## How To Serve A Brief
The legislation on servicing a brief can be confusing, but it's best to understand the basic definitions before reading it so you're not confused:
**Personal Service -** Personally serving the brief on them (as seen below in **Section 391**).
**Ordinary Service -** Utilising pre-paid "ordinary" post addressed to the person to be served at the last known place of residence or business of the person (see below in **Section 394**).
[**Section 391 Criminal Procedures Act (Personal Service)**](http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s391.html "Section 391 Criminal Procedures Act") - A personal service of a document must be affected by:
**(2)** **Personal service** is effected by:
**(a)** **Giving** a copy to the person; or
**(b)** **Putting** **the copy down** in their presence and telling them the nature of the document; or
**(c)** Leaving a copy with a person **over 16** at the **last known address**.
**(4)** If a **legal practitioner** represents the accused and is allowed to accept service of documents on behalf of the accused:
**(a)** **Giving** the legal practitioner a copy; or
**(b)** **Leaving** a copy at the ordinary place of business they work at; or
**(c)** **Sending** a copy by registered post; or
**(d)** Via a document exchange that the legal practitioner has access to.
[**Section 394 Criminal Procedures Act**](http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s394.html "Section 394 Criminal Procedures Act") - **(1)** Ordinary service of the document is effected by:
**(a)** Sending a copy by prepaid ordinary post addressed to the person to be served at the last known place of residence or business of the person; or
**(ab)** The document relates only to a traffic camera offence (send by post); or
**(b)** If the person being served is being represented by a legal practitioner, by sending a copy of the document by post; or
**(ba)** Via a document exchange to the legal practitioner if they have facilities to do so; or
**(c)** in any other manner agreed by the parties.
**NOTE**
The [**Electronic Transactions (Victoria) Act 2000**](http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/eta2000345/ "Electronic Transactions (Victoria) Act 2000") allows a document to be served electronically, including by fax or email, in accordance with that act.
**Section 36** (below) simply goes over what we as Informants should take into consideration when choosing our method of service; either **Personal** or **Ordinary** service.
[**Section 36 Criminal Procedures Act**](http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s36.html "SECT 36 How preliminary brief must be served") - A preliminary brief **must be served personally** on the accused unless:
**(1)** The informant is satisfied that ordinary service in accordance with [**Section 391**](http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s391.html "Section 391") by;
**(2)** In considering servicing the brief by ordinary service:
**(a)** The **nature** and **gravity** of the offence;
**(b)** whether the accused has been found guilty or convicted of any **similar offence**;
**(c)** the **period of time** that has elapsed since the **accused's address was ascertained**;
**(d)** the **manner of service** of the summons to answer the charge.
Putting all of this information together refer to **Section 36**; or your consideration of HOW to service the Brief and then refer to the relevant Section (391 or 394) for how to go about your servicing procedure.
# Disclosure Legislation
Disclosure of Evidence is covered above in the Flowchart Section. This section summarises the legislation relating to that.
[**Section 42 Criminal Procedures Act (Continuing Obligation of Disclosure)**](http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s42.html "SECT 42 Continuing obligation of disclosure") - **(1)** Any information, document or that:
**(a)** Comes into the informant's possession or to the informant's notice after service of a brief; and
**(b)** Would have been required to be listed, or a copy which would have been required to be served in the brief.
**(2)** The informant must serve the accused a copy of the document or list as soon as practicable after the information comes into the informant's possession.
**(3)** If the informant refuses to disclose any information, the informant must serve as soon as practicable a written notice informing the accused of such a decision, identifying the grounds for refusing disclosure.
**Prejudice -** Harm or injury that results or may result from some action or judgement (e.g. something that would harm your investigation).
[**Section 45 Criminal Procedures Act (Grounds to Refuse Disclosure)**](http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s45.html "Grounds to Refuse Disclosure") -
**(1)** The informant may refuse to disclosure any information that is required if the informant considers that the disclosure would, or would be likely to:
**(a)** Prejudice the investigation by contravening the law or administration of the law; or
**(b)** Prejudice the fair hearing of the charge against a person or impartial adjudication; or
**(c)** Disclose or enable a person to ascertain the identity of a confidential source of information; or
**(d)** Disclose methods or procedures for preventing, detecting, investigating or dealing with matters arising out of contraventions or evasions of the law AND would prejudice the effectiveness of those methods; or
**(e)** Endanger the lives or physical safety of persons engaged in, or in connection with, law enforcement or persons who have provided confidential information; or
**(f)** Endanger the life or physical safety of a person or of a family member, as defined in the Family Violence Protection Act 2008 (AFM); or
**(g)** Result in the disclosure of child abuse material to the accused personally.