The brief of evidence: what it is and when you get it.

The prosecution's case, on paper.

A brief of evidence is the collection of material the prosecution relies on to prove the charge: witness statements, the accused's record of interview, expert reports, photographs, CCTV, telephone records, and the other exhibits. It is served on the defence so that the accused knows the case they have to meet. In a defended matter, everything, the plea, the strategy, the cross-examination, flows from what is, and is not, in the brief.

This is general information, not advice on your matter. What a brief contains and when it is served depend on whether the matter is summary or indictable and on the court's directions. The consistent point is that you should not make a final decision about plea until the brief has been served and read carefully, because the brief is where the strength of the case is revealed.

What does a brief of evidence contain?

A brief usually contains the statements of the witnesses the prosecution intends to call, the record of any interview with the accused, any expert or forensic reports, and the physical and electronic exhibits, such as photographs, CCTV footage, phone records, and documents. In effect it is the prosecution's case reduced to paper, showing what each witness will say and what the exhibits are said to prove.

Reading the brief tells you the shape and strength of the case. It shows which witnesses say what, where accounts differ, what the forensic evidence does and does not establish, and where the gaps are. A brief that looks strong at a glance often has weaknesses that only appear on a careful read, in an inconsistency between statements, a missing link in the chain, or an assumption that is not actually proved.

When must the prosecution serve the brief?

For a summary matter defended in the Local Court, the prosecution is generally required to serve the brief within a set time after a plea of not guilty is entered, on a timetable the court sets at the mention. The defence is entitled to the brief before the hearing so it can prepare, and if the brief is not served, the defence can seek orders or the exclusion of material that was not disclosed.

For an indictable matter, the brief is served as part of the committal process before the matter goes to the higher court, so that the charge certificate and case conference happen with the material on the table. Either way, service of the brief is the point at which the defence can properly assess the case. Our note on the committal process explains how the brief fits into an indictable matter.

Why is the brief so important to the defence?

The brief is important because it is the evidence. A charge is only as strong as the material that proves it, and until you see that material you are guessing. Reading the brief is what turns a vague sense of the case into a clear view of what the prosecution can actually establish, and it is the foundation for advising on plea. A plea entered before the brief is read is a plea entered blind.

The brief also drives the defence strategy. It identifies the witnesses to challenge, the evidence to test, and the issues to run. Cross-examination is built from the statements in the brief; legal arguments about admissibility come from the exhibits and how they were obtained. Everything the defence does at a hearing is anchored in the brief, which is why the careful reading of it is the heart of preparing a case.

What if the brief is incomplete or served late?

If the prosecution does not serve the brief, or serves it late, the defence has remedies. The court can order the brief to be served, adjourn the hearing so the defence has time to prepare, and in some cases refuse to let the prosecution rely on material it did not disclose in time. The rules on service exist to ensure a fair hearing, and a prosecution that ignores them can be held to the consequences.

The disclosure obligation is not limited to the material the prosecution wants to use. The prosecution also has a duty to disclose material that may help the defence or undermine its own case. If it becomes clear that relevant material has not been disclosed, that is a proper matter to raise, because a fair trial depends on the defence knowing the case and having the material relevant to it.

What should you do when you receive the brief?

Read it, all of it, carefully, and get advice on it before deciding anything about plea. The temptation to make a quick decision, to plead to get it over with or to fight without seeing the case, is where matters go wrong. A brief that looked overwhelming can contain a fatal weakness, and one that looked thin can be stronger than expected. Only a careful read tells you which.

Note the inconsistencies, the gaps, and the points that will need to be tested, and consider whether any of the evidence was improperly obtained. Then weigh the plea with advice, including the sentence discount for an early plea, discussed in our note on the early plea discount. The brief is the document on which the whole matter turns, and the time spent on it is never wasted.

Primary sources: service of the brief of evidence in criminal matters is governed by the Criminal Procedure Act 1986 (NSW), including the requirement to serve a brief after a not-guilty plea in summary matters and service through the committal process for indictable matters, together with the prosecution's duty of disclosure. NSW decisions on disclosure are searchable on JADE.

Common questions

What is a brief of evidence?

It is the prosecution's case on paper: the witness statements, the accused's record of interview, expert and forensic reports, and the exhibits such as photographs, CCTV, phone records and documents. It is served on the defence so the accused knows the case to meet. In a defended matter, everything flows from what is, and is not, in the brief.

When do you get the brief of evidence in NSW?

For a summary matter defended in the Local Court, the prosecution generally must serve the brief within a set time after a not-guilty plea, on a timetable the court sets. For an indictable matter, the brief is served as part of the committal process before the matter goes to the higher court. Either way, you should have it before the hearing to prepare.

Why is the brief of evidence important?

Because it is the evidence. A charge is only as strong as the material that proves it, and until you read the brief you are guessing. Reading it turns a vague sense of the case into a clear view of what the prosecution can establish, and it is the foundation for advising on plea and for building the defence strategy and cross-examination.

What happens if the prosecution serves the brief late?

The defence has remedies. The court can order the brief served, adjourn the hearing so the defence has time to prepare, and in some cases refuse to let the prosecution rely on material it did not disclose in time. The prosecution also has a duty to disclose material that may help the defence, not just the material it wants to use.

Should you plead before reading the brief?

No. A plea entered before the brief is read is a plea entered blind. A brief that looked overwhelming can contain a fatal weakness, and one that looked thin can be stronger than expected. Only a careful read tells you which, so you should get advice on the brief before deciding anything about plea. The early plea discount is still available afterwards.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 30 August 2026. It is general information and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. The law changes and procedure varies from case to case. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More commentary by Aaron Kernaghan.

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