Brief Preparation Guidelines
Brief Preparation Guidelines
1.1 Agencies to which the guidelines apply
These guidelines apply to all Commonwealth agencies other than the ACC and ASIC.
1.2 What is a brief
A brief is a set of papers containing:
- an allegation and reference to the relevant legislation;
- a narrative of the facts of the case; and
- the evidence obtained that proves the elements of the possible offence.
Briefs must be in an orderly and manageable format so that the prosecutor can easily and effectively:
- understand the allegations;
- assess the evidence against the allegations;
- decide what charges are available against whom and whether charges should be laid;
- identify what further evidence the investigator should attempt to obtain;
- provide appropriate disclosure of the prosecution case to the defence; and
- prosecute the case in court.
Poorly put together briefs are much more difficult to understand and assess than well-organised and thought out briefs. Briefs containing large numbers of documents can be particularly difficult to come to grips with because it is difficult to retain all the information in the brief and to understand all the documentary evidence and its significance. The defendant’s lawyers will also find it difficult to understand such a brief. In that situation, they may approach the court to order service of a proper brief.
It is the job of the investigator, not the CDPP, to organise the brief. If the CDPP receives a poorly put together brief, the CDPP may return the brief to the investigator asking that the brief be compiled in accordance with these guidelines.
The following guidelines set out a standard format for a brief of evidence. They are designed to provide general guidance. They do not address every issue which can arise and will not provide guidance on every question which may arise. If an investigator considers that strict application of the guidelines to a particular case, or type of case, would produce an unintended result, the investigator should discuss the issue with the CDPP.
Sometimes the standard format is not the best format for a particular brief. Accordingly, investigators should always consult the CDPP if they have any doubts about the appropriateness of using the standard format in preparing a particular brief.
Short form briefs
Where a defendant has made full admissions in an admissible record of interview, an investigator may provide the CDPP with a “short form brief”. A short form brief should follow the same format as any other brief although it will not include all the evidence and exhibits that would otherwise be provided in a brief. Agencies should discuss with the appropriate regional CDPP office the circumstances where it is appropriate to refer a short form brief and what it should contain.
1.3 Preliminary discussions with prosecutor prior to referral of a brief
The CDPP prosecutes in accordance with the Prosecution Policy of the Commonwealth and does not have an investigation function. However, an investigator may, prior to referring a brief to the CDPP, consult the CDPP on:
- possible offences, criminality and scope of the investigation;
- legal advice as to search warrants and the use of other investigation powers; and
- The format of the brief.
The CDPP encourages this early contact. There should always be consultation in large and complex investigations to obtain CDPP advice on the matters listed above.
When an investigator seeks advice from the CDPP in the pre-brief stage, he or she should provide the CDPP the following material, where available:
- details of the investigation;
- copies of key documents;
- material focussed on the issues;
- identification of the criminality involved;
- details of audits and other activity;
- details of agencies involved; and
- details of any recovery action including details of agencies involved in recovery.
2. FORMAT OF A BRIEF
Where more than one defendant
If there are co-offenders, there should be a brief for each defendant.
Paper copies of the brief
Investigators must provide the CDPP with one full paper copy of a brief for each defendant. The CDPP requires a paper copy of briefs which are delivered electronically via a program such as LSS. If there are co-offenders, there should be a paper brief for each defendant.
Electronic copy of word documents and excel spreadsheets
The investigator should discuss with the CDPP the need to attach to the paper brief a floppy or compact disc containing a copy of all word documents and excel spreadsheets included in the brief. These should not normally be e-mailed to the CDPP as they may contain personal information.
Specific agreements as to format and content
Some agencies, such as ASIC and Centrelink, have agreed with the CDPP a specific format and content for their briefs. Such an agreement overrides these guidelines if there is a conflict between them.
Send copies not original documents
Generally no original documents or exhibits should be included in the brief. The investigator should keep in his or her custody all original statements, documents and exhibits. The prosecutor may wish to peruse these items. Original witness statements may in some instances be provided to the CDPP, but only after consultation with the CDPP. There is no need to place photocopied documents in plastic sleeves.
All witness statements and records of interview should be paginated. Arabic numerals should be used, for example, 1, 2, 3.
It is normally not necessary to paginate the brief. The CDPP believes that there is no need for pagination, except in limited circumstances in Victoria, because it has the potential to cause confusion if further materials were added to the brief or it is re-arranged.
However, in Victoria, the CDPP may request an investigator to paginate a brief prior to a hand up committal. In this situation the investigator does not need to paginate the brief before initially referring the brief. At some stage the CDPP may return the brief for pagination. This will occur only in a small number of cases.
All witness statements should have every paragraph numbered. Where paragraphs are numbered, Arabic numerals should be used, for example, 1, 2, 3.
Records of interview should have each question numbered, again using Arabic numerals.
Please place the brief in two-ring, lever arch folders. The exception is when the brief is very small in which case the papers may be held together securely in some other convenient fashion. If there is more than one folder, please number each folder and label it, for example:
“R v Smith
A – C”
Where there are numerous statements, each statement should be tagged.
Identification of victims
The brief cover sheet should identify any victim in relation to the criminal conduct alleged in the brief of evidence, even if that victim is not a potential witness in the matter. The CDPP’s Policy on Victims of Crime defines ”victim” is an identified individual who has suffered harm as a direct result of an offence or offences committed, or apparently committed, against Commonwealth law or prosecuted by Commonwealth authorities. ‘Harm’ includes physical or mental injury, pregnancy, emotional suffering or economic loss.
The brief cover sheet should also note if any victim has a particular vulnerability, for example if the victim is a child.
3. ELECTRONIC BRIEFS
In cases involving a very large number of documents, often the only way to manage the investigation and brief preparation, the assessment of the brief by the CDPP and eventual prosecution is to use an electronic system such as the ASIC’s Litigation Support System (LSS).
The current HOCOLEA standard for an electronic brief is LSS. ASIC make LSS available to Commonwealth investigators upon request. The CDPP will accept electronic briefs using a system other than LSS so long as it is compatible with LSS. Where an electronic copy is provided, the CDPP also requires one paper copy of the brief.
There are certain practical requirements for an electronic brief. These are set out below. With the increased use of electronic briefs it makes sense to adopt these as general practices where possible, even if an agency delivers an electronic brief only occasionally.
Use 9 digit alphanumeric barcode numbers
It is very important to use 9 character alphanumeric barcode numbers for all numbered documents and exhibits. LSS needs a 9-digit alphanumeric barcode “number” for all documents and exhibits. It simply will not work with more or less than 9 digits. Numbers less than 9 digits long should be prefixed with zeros to make 9 digits eg “146700” becomes “000146700”.
The document and exhibit numbers should not include any non-alphanumeric characters such as dashes, dots, brackets or commas.
Electronic copies of documents, images, audio and video
Where an agency provides material to the CDPP electronically, below is the format in which it should be provided:
|Documentseg exhibit list||Microsoft WordMicrosoft ExcelMicrosoft Rich TextMicrosoft Access|
|Text||Microsoft WordMicrosoft Rich TextASCII Text|
|Document images||TIFF Group 4 Multi-Page format (also known as TIF)|
|Audio||Microsoft WAV or MP3|
Use of labels, including barcodes on documents
An electronic brief is used in a case involving large numbers of documents that are obtained during the investigation. Investigators will usually place exhibit numbers or barcodes on these documents using sticky labels. Labels should be placed so that they do not cover any printing or markings on the document or exhibit.
Where possible, a label should be placed on an original document on the top right hand corner of the first page or front cover of document, whichever is first. If that is not suitable, place it on a clear space on the front page, preferably on the top half of the document. If that is not possible, place the label on the back of the first page or front cover of the document.
Labels should not list any agencies name or initials because the documents may be eventually returned to the owner.
4. CONTENTS OF A BRIEF
A brief must be accompanied by a:
1. letter of referral;
2. witness contact details list; and
3. a disclosure certificate and any material not disclosed as part of the brief.
1 Letter of referral
This should contain:
- the name of the investigator;
- his or her contact details;
- the investigation agency’s identification reference for the matter; and
- any comments by the investigator including:
- the available evidence and whether it is sufficient;
- possible defences and how they might be rebutted;
- any witness problems such as the demeanour, plausibility, likely cooperation of witnesses and whether an indemnity is requested;
- any public interest factors relevant to the decision to prosecute;
- If the suspect is or was employed by the Commonwealth, whether he or she has been disciplined in relation to the alleged offence and the consequences of conviction on his or her future employment;
- any administrative action undertaken or proposed;
- whether there are any statements or exhibits for which the investigator wishes the CDPP to claim legal professional privilege or public interest immunity;
- whether there are any statements or exhibits which have a security rating eg “PROTECTED”;
- whether a disclosure certificate is attached or not and if yes, any comments on it or material referred to in it; and
- any other matters.
Because the letter of referral may contain confidential material the letter should be marked “IN CONFIDENCE” and “SUBJECT TO LEGAL PROFESSIONAL PRIVILEGE”.
2 Witness contact details
It is important for the CDPP to have details of the witnesses, including their address and contact details. However, in some situations this information should be treated as confidential. The CDPP prefers that this information be provided with the covering letter rather than as part of the brief proper. Where a witness makes a statement in his or her capacity as a Commonwealth employee, the address given should be the witness’s work address.
A format for providing this information is:
Witness contact details:
|Name||Work address & e-mail home address & e-mail||Work phone no.Home phone no.Mobile phone no.||Comments|
Date of birth of witnesses
The Investigator should include the date of birth of a witness in the above witness list only when it is necessary to identify witness, for example, if the witness has a common name or where investigator anticipates the CDPP will want to check if the witness has a prior criminal record. The CDPP may also, on occasion, request a witness date of birth if one is not supplied.
3 Disclosure certificate
4 Any other material not disclosable as part of the brief.
The brief proper
The brief proper should use the following format:
1 Brief cover sheet
Attached to the brief should be a completed cover sheet. If the brief is referring more than one suspect, please complete a separate brief cover sheet for each defendant because the CDPP creates a separate file for each suspect.
Completed cover sheets will assist the CDPP to enter accurately and quickly details of the brief into the CDPP’s computerised prosecution records system. With the CDPP receiving more than 5,000 briefs a year, streamlining the process of data entry should produce considerable efficiencies for the CDPP.
Brief cover sheet
|Date and place of birth:|
|Sex (male, female, company):|
|Aboriginal or Torres Strait Islander: Yes/No/Unknown:|
|Interpreter needed, language & for whom:|
|Brief description of offence:|
|Expiry date for prosecution, if applicable:|
|Criminal record: Yes/No/Unknown:|
|Was the defendant arrested? Yes/No:|
|If arrested, date of arrest:|
|If arrested, is defendant on bail?|
|If defendant on bail, what are the conditions?|
|Is there a next in court date?|
|If yes, court name:|
|If yes, date:|
|If yes, time:|
|Names of co-accused:|
|Name of victim/s:|
|Does the victim have any vulnerabilities? i.e. is a child, is elderly, has a disability|
|To be completed by the CDPP not the investigator:|
|Type of matter:|
|Major act & section:|
|Name of company||ABN/ACN/ARBN||Where & when incorporated|
2. Proposed defendants – names and addresses
Please use the following table for individuals:
|Name & Date of Birth||Address||Criminal record? Yes/no & details||Role in offence|
For companies please use the following table:
|Name of company||ABN/ACN/ARBN||Where & when incorporated||Role in offence|
Where corporate structures are involved, the brief should outline those structures including a listing of officers of the company and the relationship of particular defendants to the company.
3. Charges laid or proposed
The brief should state whether charges have been laid. Where charges have been laid, a copy of the information and summonses must be included. If charges have not been laid include here details of the recommended charges.
4. Statement of facts
This is a short summary of the alleged facts that should give the prosecutor an overall appreciation of the case. It is not a summary of the investigation. The prosecutor will also use this to read to the court when a defendant pleads guilty or in bail applications. In larger more complex cases the CDPP requires a longer and more detailed statement of facts.
The statement of facts should set out a chronology of the alleged facts of the offence. The chronology should be of the alleged facts that constitute the physical elements of the offence, not of the investigation. The chronology should be factual and objective and cross-referenced to witness statements and exhibits.
Tables, flow charts and other charts are often useful, especially in complex matters.
The investigator should state here whether the suspect participated in the record of interview and whether he or she made admissions. Where relevant, the financial repercussions of the offence should be included.
The CDPP may request an electronic copy of the statement of facts, particularly if it is long and detailed.
5. Witness list (also known as brief head)
Please use the following format:
|Name||To Prove||Exhibits witness will prove/produce||Folder in brief|
A witness “proves” a document when he or she is able to produce a document or other exhibit in a hearing so that it is admitted into evidence.
Any records of interview of suspects should be set out in the above list by reference to the investigator who conducted the record of interview.
Witnesses should be listed in the above list in alphabetical order of their surnames.
Exhibits should be listed in the order in which they are mentioned in the witness statement which proves the exhibit.
It is not necessary to fill in the column headed “Folder in brief” if there is only one folder.
6. Exhibit list
The Exhibit list sets out all the exhibits in the brief. They should be listed in numerical order of their unique identifier numbers, if they have them. Otherwise, they should be listed in some other logical way.
|Unique identifier no. if one exists||Short description||How obtained|
Please put statements in alphabetical order of the family name or surname of the person making the statement.
There are two main ways to place exhibits in a brief:
- behind every statement that refers to the exhibit; and
- separately from the statements in numerical order of their unique identifiers.
In Queensland, there is a legislative requirement for committals that the statements must be separate from the exhibits. In Queensland, the CDPP prefers that statements be separate from exhibits in a brief. In Queensland, please place exhibits in numerical order of their unique identifiers, if they have them. Otherwise, place them in some other logical order and provide a short piece of text explaining the order used.
All other states and territories
In other states and territories, please attach to the statement a copy of the exhibits referred to in the statement, unless otherwise agreed with CDPP.
If a number of witnesses refer to a long documentary exhibit in their statements, it is not necessary to attach the exhibit to a statement where the exhibit is correctly described so that there can be no doubt as to which exhibit is being referred to.
In briefs with a large number of documentary exhibits is it often better to place exhibits in separate folders in numerical order of the exhibit numbers. If you have any doubts about what is the best order for exhibits in a particular case, please contact the CDPP and discuss.
Records of interview
Except in Queensland, any records of interview of suspects should be attached to the statement of the investigator who conducted the record of interview. In Queensland, please put all records of interview at the beginning of the exhibits.
Agency computer records
Where these form part of the evidence, please ensure that they are explained via an appropriate system and/or process statement.
Courts now expect disclosure of the prosecution brief to the defendant prior to a hearing. In addition, some state legislation now requires disclosure of the prosecution brief to the defendant and his or her representatives, in summary and indictable prosecutions.
The CDPP’s Statement on Prosecution Disclosure encapsulates these requirements.
The Statement requires the CDPP to disclose to the defence:
- the prosecution’s case against him/her
- any information in relation to the credibility or reliability of the prosecution witnesses and
- material which the prosecution does not intend to rely on as part of its case and either runs counter to the prosecution case or might reasonably be expected to assist the defendant in advancing a defence.
The CDPP requires a Disclosure Certificate to be attached to all briefs of evidence. The completion of this certificate will ensure that the investigator has turned his/her mind to all potentially disclosable material and possible exceptions to disclosure which might apply. This in turn will assist the CDPP in meeting its disclosure obligations.