Brief of evidence preparation 110-11020030

See Liaison with the CDDP before referring a brief of evidence.

In the case management system:

• Create a Brief of Evidence activity and complete fields
• When ready for approval, attach documents to the activity. Edit the activity to add case notes and change status to Waiting Approval by TL
• The decision of the Senior Investigator/Approver of Investigations is recorded by editing the activity to update the status and record case notes

The Brief of Evidence contains:

• Brief of submission, including:
• covering letter
• brief submissions
• case analysis and comments
• admissions in record of interview or written statement offences considered
• possible defences
• disclosure certificate
• Electronic brief of evidence (e-brief), including:
• brief of evidence submissions
• national summary of facts
• debt schedules
• witness contact list
• disclosure material index and folder
• victim details
• evidence folder

All e-briefs are prepared according to the following format and order. This structure has been developed to comply with the CDPP's e-brief guidelines:

• Covering Material (folder)
• Evidence (folder)
• Evidence Index Customer Name (excel spreadsheet)

Folder names must follow this format and should not be changed. The contents of each folder and the naming conventions are explained in more detail in the below steps.

The Covering Material folder must contain all relevant documents, and be named as shown, to ensure the documents are presented in the following order:

• 01 Brief of Evidence submission
• 02 National Summary of Facts (include relevant version)
• 03 Debt schedule (include as required)
• 04 Evidence Matrix
• 05 Witness Contact list
• 06 Disclosure Material Index (this is linked to the information placed in the Disclosure Material Folder and only include as required)
• 07 Victim Details List (include as required)

Case analysis and observations

Following the completion of the investigation, the investigator should express their views as to the evidence available to satisfy each element of the offence, and whether the evidence is sufficient to satisfy the relevant burden of proof.

Comments should include possible defences and their rebuttal. Alert the CDPP to any matters such as demeanour, plausibility and likely cooperation of witnesses believed to be relevant to the proceedings. Draw the CDPP's attention to any other matters relevant to the prosecution, for example, public interest considerations.

Offences considered (charge details)

In most circumstances the CDPP decides what charges should be laid (in some arrest cases, the Australian Federal Police will lay charges).

The CDPP will determine the appropriate charges by taking into account the offences that were investigated and the extent of the evidence pertaining to elements of those offences.

Investigators meet their duty to disclose material to the CDPP by completing a Disclosure Certificate and associated schedules. The certificate and schedules are embedded within the brief of evidence template and must be completed for every matter. Disclosure material that is supplied with the e-brief must be noted on the Disclosure Material Index, and the documents contained in a folder titled ‘Disclosure Material located within the Covering Material’.

Investigators must follow the procedural guidelines on disclosure to the CDPP by Investigative Agencies to ensure disclosure obligations are met. This document can be accessed from the CDPP’s secure Partner Agencies portal. See the Resources page for a link.

Where the prosecution is aware of disclosable material in the possession of a third party, the defence should be informed of:

• The name of the third party
• The nature of the material, and
• The address of the third party, unless there is good reason for not doing so, for example an allegation of family violence. It may be necessary for the prosecution to facilitate communication between the defence and the third party

This is designed to provide the prosecutor an overall summary of the customer's information held on computer records (business records) that is not necessarily being produced in the statement of facts.

Include:

• alleged defendant/accused details
• partner details (of alleged defendant/accused)
• alleged offending details
• debt details relevant to the alleged offending
• record of interview details
• appeal details
• freedom of information request details
• prior relevant debts

The summary of facts is a word document that:

• provides a summary of the facts to enable the prosecutor to make submission on a pleas of guilty
• discloses to the defence the details of the alleged offending and a summary of the evidence relied upon, and
• includes relevant matters for sentencing

The statement of facts must be factual and objective, and should clearly state the allegation. The statement of facts:

• is not a summary of the investigation
• should provide facts which support the elements of the offence
• may be cross referenced to witness statements and exhibits
• should indicate matters relevant to sentencing and the seriousness of the offence
• should identify whether the customer participated in a record of interview and detail any admissions made
• should include the financial impact of the alleged offence

The witness contact list is a document that provides the CDPP with a list of witnesses, their contact details and unavailable dates.

The first contact on the witness list should be the investigator, followed by all other witnesses in alphabetical order by surname.

Evidence placed in the Evidence Folder will be linked to the Evidence Index.

To link documents to the Evidence Index, investigators must place the documents in the Evidence Folder and ensure the consecutive naming convention is used, for example:

• 001
• 002
• 003
• 004

The Evidence Index is a spreadsheet that links to documents stored in the Evidence Folder.

The investigator must use the drop down box in the evidence spreadsheet to:

• select the file type
• provide a description of the document, for example Financial institute bank statements
• select the type of evidence
• select the time period, and
• who the evidence was produced by for example (SURNAME, Firstname)

The Doc ID number and evidence file name (in the evidence folder) is determined by the order of the evidence. 001 will always be the investigator’s statement/system statement; 002 will be determined by the first exhibit in the investigator’s statement; 003 the second exhibit etc.

Once all the investigator’s exhibits and evidence aligned to the system statement have been documented, any other evidence can be included.

In all states and territories except Queensland, the record of interview should be attached to the statement of the person who conducted the interview.

Documents from Services Australia are regarded as Commonwealth 'records or documents' and can be considered admissible as evidence.

In most instances, a statement annexing the document will suffice. This is the preferred approach. However, it may be necessary to produce some documents or records via a certificate.

A certificate is made in writing in relation to certain evidence that allows it to be received in courts as prima facie evidence. Certificates need to be drafted based on certain conditions relating to the provision of law. For example, a certificate pursuant to s155A Evidence Act (Cth) can be used to admit a Commonwealth document or records. See the References page for link.

There should be a separate brief and submission for each offender even if the majority of the material is identical.

For example, a member of a couple where both parties have incurred overpayments and are alleged to have each committed an offence.

One electronic copy of the brief of evidence must be provided to the CDPP via the Referral Gateway. There is no requirement to provide a paper copy of any documentation including the letter of referral unless requested.

The CDPP may request a paper copy of the brief of evidence if required by the defence, or for contested matters. Investigators must provide a complete paper copy of the brief of evidence to the CDPP within 14 days of the request.

Where the defence have agreed to accept an e-brief electronically, the CDPP will be responsible for removing the disclosable material, and Legal Professional Privilege sections, and sending of the e-brief to the defence.

Once the e-brief has been provided to the CDPP, an assessment will be undertaken in accordance with the Prosecution Policy of the Commonwealth. If, in the opinion of the CDPP, the brief is incomplete, the brief may either be returned or the assessment suspended and further material requested.

The CDPP will provide requests for further information in writing, unless the request is for readily accessible business records, such as a screen print or the outstanding balance of any debt.

If the requested material is in the possession of Services Australia, the information should be provided within 14 business days. If the requested material is in the possession of a third party, this information should be provided within one month, or a period as agreed with the CDPP.

Investigation staff should respond to the CDPP advising of the intended action, for example, gathering or not gathering the requested information, the potential time frames for response, or any anticipated concerns.

A response is required on every occasion where further evidence has been requested from the CDPP. If the requested information will not be provided, correspondence from the Branch should state why it will not be provided.

Once a matter has been referred to the CDPP, any dealings with the customer should be balanced in accordance with discharging any administrative responsibility.

In some cases it is necessary to have continued dealings with the customer concerning any appeal. Ensure that any dealings do not prejudice the criminal proceedings. Do not make any comment on the merits of the prosecution.

Dealings with the customer's lawyer or other persons representing the customer in relation to the conduct of the criminal proceedings should be conducted by the CDPP. If contacted by the defendant or a representative in relation to the prosecution, refer them to the CDPP.