Can an accused be prevented from seeing their entire brief of evidence?

restricted retention order

If an accused makes a plea of not guilty and goes to trial for murder in NSW, the matter will begin in the Local Court for committal proceedings. Then the trial will be heard at the Supreme Court. It is important, then, that the brief of evidence is received so that the defendant can know whether to make an early guilty plea, or whether to defend the matter. This is why it is important to have all available evidence when the matter is at the Local Court, so that the appropriate course of action can be made at that earlier stage in the proceedings.
A recent case highlighted the fact that the Local Court, despite being the lowest of all jurisdictions in New South Wales, has an implied power which prevents an accused in a criminal matter from receiving parts of the evidence against them.

Is the accused entitled to receive the entire brief of evidence against him/her?

The answer is, in some circumstances, no. Section 61(1) of the Criminal Procedure Act provides that the prosecutor must serve or cause to be served a brief of evidence, relating to each offence for the
proceedings, on the accused after committal proceedings commence.

However, section 61(2) tells us this requirement is not affected by other laws or obligations which relate to the prosecution providing material to the accused. The legislation gives examples, such as laws about privilege and immunity regarding evidence.

What this means is, usually, a prosecutor will serve on the accused’s legal representation the Crown’s brief of evidence against the accused. The solicitors would then make a copy of this brief available to the accused person, so that the accused can give instructions to the solicitors. This is to serve the interests of justice, so that the accused can properly defend the case against him or her.

However, sometimes there may be other laws or obligations which can prevent an accused person from receiving part of the evidence against them. These laws or obligations may not be written in legislation, but they may exist due to the common law (judge-made law) or implied powers of the court. If that is the case, the parts of the brief, or the entire brief, can only be withheld where exceptions provide for it,
either by legislation, the common law, or the implied powers of the court.

Below are some examples of exceptions:

  • Where it is impossible or impractical to copy a thing that must be served, or the accused agrees to inspect the thing: s 64(1) Criminal Procedure Act.
  • The power for a magistrate to make an order to prevent evidence from being served on the accused, or to prevent the accused from having reasonable opportunity to inspect the evidence. However, this can only be done on an application by the accused or with the accused’s consent: s 91 of the Criminal Procedure Act.
  • Where the evidence is “sensitive evidence” or “terrorism evidence”, established by Pts 2A or 2B of Ch 6 of the Criminal Procedure Act titled “Evidentiary Matters”.
    However, as shown by the recent case of Commissioner of Police v Walker [2023] NSWSC 539 (“Walker”), the Court found that it had the implied power to make a Restricted Retention Order (RRO) to withhold aspects of the brief of evidence in a case involving murder.

What is a Restricted Retention Order (RRO)?

An RRO (Restricted Retention Order) is an order of the magistrate which restricts the accused’s ability to retain a copy of parts/all the brief of evidence for certain reasons. This type of order is also called a “restricted access order” or a “brief withholding order”. In the case of Walker, the Commissioner of Police requested the magistrate to restrict the first defendant’s ability to retain a copy of parts of the brief of evidence since there was another defendant involved in other proceedings, which were not finalised.

Why did the prosecution seek an RRO?

The prosecution requested that the accused be prevented from retaining a copy of the evidence which related to certain witnesses, such as documents, statements, audio, or transcripts. The prosecution believed that there was an extreme risk involving the safety of those witnesses.

Does the Local Court have an implied power to make the Restricted Retention Order?

The Court in Walker found that, although the Local Court is an inferior court with a limited jurisdiction, it has an implied jurisdiction based on the principle that “a grant of power carries with it everything necessary for its exercise”: Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 at [21] and [23].

The Court did not make a list of the powers which the Local Court could exercise based on the implied powers. However, the Court stated that its implied powers could be used when required, so that it could effectively exercise its jurisdiction, which is implied from the legislation giving it the jurisdiction to do so.
Also, the Local Court has powers pursuant to section 28 of the Local Court Act, as it can “give directions with respect to any aspect of practice or procedure not provided for” under other legislation.

The test of “necessity” for exercising implied power The Court cannot exercise its implied power to make an RRO unless it is “necessary” for the “effective exercise” of the Local Court’s jurisdiction: Grassby v
The Queen [1989] HCA 45; (1989) 168 CLR 1 at [21].

It must relate to the exercise of the court’s jurisdiction or to the exercise of its powers: Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 at [33]-[40]. The Court in Walker went through the various meanings given to the term “necessary” by previous decisions and concluded that the test of necessity can be applied with varying degrees of strictness. For instance, if the court exercised the implied power in the case of murder, it would impact the fundamental principle of the administration of criminal justice; that is, the right to confront accusers. Therefore, the test of necessity must be applied with a higher level of strictness compared to other cases: John Fairfax v District Court at [51]).

What happened in the end?

The Court found that the issue of the physical safety of witnesses in certain serious matters is an issue which has been addressed by legislation, such as the Court Suppression and Non-publication Orders Act 2010 (NSW). This legislation allows the court to restrict or supress information for the safety of witnesses.

However, sometimes the legislative scheme may not go far enough to minimise the risks of danger to a witness. Therefore, it was determined that the Local Court has an implied power to make an order in relation to the service of the brief of evidence, which has the effect of regulating or restricting an accused’s access to portions of the evidence.

The above information is intended as general information and is not intended to be relied on as legal advice.

Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales. If your matter is at Blacktown Local Court, we are conveniently located within a walking distance from the Blacktown Local Court.

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