Saving Time and Money briefing your Lawyer Local

Saving Time and Money briefing your Lawyer Local Government Compliance Inc. Seminar at Fremantle Oval Friday, 17 August 2018 (Doc. 2583353) Presented by Brenton Oakley, Consultant and Anne Wood, Partner

Overview Ø Part 1 – Introduction; Ø Part 2 – General principles; Ø Part 3 – Evidence Requirements; Ø Part 4 – Recording and maintaining evidence; Ø Part 5 – Documents prepared by the Lawyer Ø Part 6 – Briefing the Lawyer; Ø Part 7 – Summary

Introduction Saving time and money Ø Prosecuting as a means of compliance enforcement is often a last resort. Ø It can be expensive and time consuming Ø Local government resources in site attendance, recording of evidence, briefing the lawyer, ongoing instructions to lawyers, attending Court. Ø Lawyers costs in taking instructions, research, document preparation, dealing with the Court, dealing with the accused or their Lawyers, attending Court. Ø How and where can you save time and money.

General Principles Efficiency Ø Monty Python – Spanish Inquisition Sketch Ø …. . ”amongst our weaponry are such diverse elements as: fear, surprise, ruthless efficiency, an almost fanatical devotion to the Pope and nice red uniforms”…. . Ø Efficiency is the key to saving time and money. Ø Recording evidence and providing the required information in the right way increases efficiency of Local Government staff and lawyers. Ø Increased efficiency reduces time and money.

Evidence Requirements Section 42 - Criminal Procedure Act 2004 (slide 1) Ø Prosecutor required to disclose Confessional Material : Ø being written statement signed by the accused, written record of interview (signed or unsigned), electronically recorded interview; Ø Electronic recording of telephone with accused relevant to the charge; Ø Written records of oral statements by the accused relevant to the charge;

Evidence Requirements Section 42 - Criminal Procedure Act 2004 (Slide 2) Ø Prosecutor required to disclose Evidentiary Material : Ø Witness Statements made in accordance with Schedule 3 including the documents or objects referred to in the witness statement; Ø Copy of every other document that prosecutor intends to tender; Ø Copy of every other document or object that may assist the accused’s defence that is in the possession of person or organisation who investigated; Ø Notice of name and address of any other person prosecutor thinks may be able to give evidence that may assist accused’s defence

Evidence Requirements Schedule 3 - Criminal Procedure Act 2004 (Slide 3) Ø Witness Statements : Ø statement identifies person making it & confirms over 18 years (the maker ); Ø the statement purports to be signed by the maker; Ø contains words to the following effect — Ø This statement is true to the best of my knowledge and belief. I have made this statement knowing that, if it is tendered in evidence, I will be guilty of a crime if I have wilfully included in the statement anything that I know to be false or that I do not believe is true. Ø Any document referred to as an exhibit and identified in a statement tendered in evidence - deemed to be produced before the court and identified by the maker

Recording Evidence Telephone calls or on site meetings: Ø Importance of recording the substance of calls or conversations in writing Ø (note can’t orally record conversation without permission) Ø Record (in writing) the substance of the conversation as soon as possible (contemporaneous) — Ø Use the expression “words or words to the effect” where you do not remember precise words. If you do recall precise words then say so. Ø Identify clearly parties, date, location, and date the file note prepared.

Recording Evidence Photographs: Ø Photo should be date marked; Ø File note clearly identifying the photographer, the date taken, how many photos taken, what photo is showing and where it was taken Ø Keep the photos from a particular day on the same page or pages ie don't mix different dated photos on same A 4 page.

Maintaining Evidence Letters : Ø A communication or letter that is posted, emailed, hand delivered or couriered or served by hand should ideally show on its face when and how it was delivered or received. Ø If that is not possible then some form of contemporaneous file note should record the date and mode of delivery or receipt. Ø Keep a signed copy.

Maintaining Evidence Emails: Ø Emails have become the dominant form of written communication for business today Ø There is little doubt they will form some of the evidence in most prosecution proceedings (note that service can not occur via email for some documents) Ø Avoid repetitive email strings that reply off of earlier emails that may not be relevant – wastes time at all stages of the process

Maintaining Evidence Aerial Photographs: Ø We are often keen on obtaining aerial photos from Nearmaps or Intramaps for planning and building offences if the matter is going to trial Ø The idea is to obtain the aerial photos as close to, and either side of the offence dates set out in the charges. Ø It is important that you orientate yourself with aerials

Docs Prepared by Lawyer Prosecution Notice / Service affidavit: Ø Name/s addresses of accused Ø Individuals, companies, directors Ø All known addresses Ø Enough information to be able to formulate the charge Ø The nature of the offence Ø The date or dates of the offence…….

Docs Prepared by Lawyer Statement of Material Facts: Ø We will draft and provide to instructing officer for comment at least 5 days prior to the First Mention Ø Sets out the facts Ø we need to prove to achieve a conviction; and Ø other facts that go to sentencing (ie seriousness of offence) Ø Also will contain legal and costs submissions

Docs Prepared by Lawyer Witness Statements (generally) : (slide 1) Ø We will only prepare where not guilty plea entered Ø Often the most time consuming and costly exercise undertaken by the lawyer to prepare the matter for a trial Ø The presentation of instructions and documents is huge opportunity to save costs through efficiency. Ø Usually will want more than one council witness to have all the business records in their WS just in case someone cannot attend trial on the day

Docs Prepared by Lawyer Witness Statements: (Structure) (slide 2) Ø Full name of witness, employment and authorisations to enter Ø WS history prepared in numbered paragraphs in chronological order. Ø Each paragraph starts with the date of the event or action ie Ø The site visit, the telephone call, the sending or receipt of communication, the date aerials were obtained (not taken) Ø Evidence referred to in each paragraph is identified with a number and attached to the WS.

Briefing the Lawyer The Brief Ø Consider the facts and set them out in the brief in chronological order: Ø giving the date, the facts and identify the evidence for each event; and Ø stating the names of all parties present at site visit or meeting Ø Consider witness availability…. . (leave)

Briefing the Lawyer The Evidence Ø Try to keep evidence separate for each dated event Ø Keep the evidence in chronological order. Ø Identify the evidence so that we can easily match it with the corresponding paragraph in the brief. ………………. .

Other Tips Photocopying Ø You can do printing of large or colour documents yourself. Legal Problems Ø Discontinue early if legal problem becomes apparent Witnesses Ø Good idea to use the same officers to conduct inspections where possible on individual properties

Summary Increase efficiency / reduce costs Ø Understand what it is the lawyer has to do Ø Record and maintain evidence clearly Ø Brief the lawyer with the facts in chronological order similar to how the witness statements will read. Ø Organise the evidence in chronological order in line with the paragraphs of the Brief. . ………………. .

Contact us Brenton Oakley and Anne Wood Phone: +61 8 9321 3755 Email: boakley@kottgunn. com. au : awood@kottgunn. com. au Web: kottgunn. com. au – subscribe to our monthly Legal Update Kott Gunning @kottgunning