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Family violence – WA

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From 6 August 2020 some provisions of the Family Violence Legislation Reform Act 2020 commence, amending the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

Family violence – Bail considerations

The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a family relationship with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.

There are additional provisions relating to the interaction of bail conditions and restraining orders.

Family violence – Restraining orders

Sections 3 to 6A of the Restraining Orders Act define all relevant terms used in the Act, including what constitutes ‘family violence’.

Some of the amendments deal with the conduct of family violence proceedings.

The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.

At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.

Victims of family violence may have one or more support person with them when they give evidence.

The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly.

Further provisions of the amending Act will commence in October 2020. By Lawyers guides will be further updated when those amendments commence.

Online applications for criminal matters – QLD

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Online applications for criminal matters in the Queensland Magistrates Court was enabled from 9 July 2020. Queensland’s Chief Magistrate Judge Terry Gardiner paved the way for the listing of all criminal matters in the Magistrates Courts electronically via the release of a new practice direction.

Magistrates Court Practice Direction 7 of 2020 allows for either prosecutors or defence legal representatives to submit an electronically lodged form for any matters listed in the Magistrates Court seeking an order for a date for a directions hearing, bail application or sentence. However, such applications must be by consent.

If an application is not by consent parties must approach the court in the usual way and Practice Direction 10 of 2010 continues to apply.

“Where a matter has a current listing date, a party may apply electronically where the consent of the other party – prosecution or defence – has been obtained,” Judge Gardner said when releasing the new practice direction.

Online applications can be made for:

  • a sentence date, including a short plea, lengthy plea or contested sentence;
  • an adjournment, other than of a hearing;
  • a date for a hearing of an application, including a bail application or a directions hearing;
  • a direction by the court, including for the provision of a brief of evidence.

Any application where the matter already has any date listed must be made at least two clear business days before the currently listed date.

“The Court will advise the parties electronically of the outcome of the application,” the Chief Magistrate advised. “If the application is not granted by the Court, the current listed Court date remains as well as any orders or directions that have been made.”

Online applications for criminal matters are available now on the courts’ website. The By Lawyers Queensland Criminal Magistrates Court publication has been updated accordingly.

Guide to Commonwealth offences – All states

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A new Guide to Commonwealth offences dealt with in state magistrates’ courts has been added to all By Lawyers Criminal publications.

This helpful new commentary and additional precedents will assist practitioners in advising and representing clients charged with offences under the Crimes Act 1914 (Cth) and the Commonwealth Criminal Code.

The new commentary sets out the procedure for summary and indictable Commonwealth charges in state courts, from bail considerations to sentencing.

The possible sentencing options are covered in detail and there is a very useful table of the Commonwealth offences most frequently encountered in state magistrates’ courts.

New precedents include:

  • Example written submissions in support of an application for discharge of an offender without proceeding to conviction; and
  • Letter to client after sentence – providing for various outcomes.

All existing Retainer Instructions for criminal and bail matters in the respective state Criminal Guides have been enhanced to include Commonwealth offences.

The new Guide to Commonwealth offences can be found in the Related Guides drop-down menu of the Legal Guides tab.

Family violence – WA

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Various legislation has been amended as a result of the Family Violence Legislation Reform (COVID-19 Response) Act 2020.

The amendments provide for:

  • applications for Family Violence Restraining Orders and Violence Restraining Orders to be made online;
  • increased flexibility for courts in allocating hearing dates and serving documents in relation to applications for restraining orders;
  • police to be able to grant bail for breaches of a Family Violence Restraining Order or a Violence Restraining Order in urban areas, consistent with their existing power in regional areas;
  • courts to be able to impose electronic monitoring requirements as part of a home detention order in relation to a restraining order, a bail condition, or a sentence.
  • new offences and penalties for interfering with electronic monitoring equipment, or failing to follow the directions of a community corrections officer for electronic monitoring.

These amendments have been incorporated in the relevant By Lawyers Guides.

See Criminal Magistrates Court, under both Bail and Sentencing and also Restraining Orders for more information.

Commonwealth offences – All states

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Commentary on Commonwealth offences dealt with in state magistrates’ courts has been added to all By Lawyers Criminal Guides.

This new commentary and additional precedents will assist practitioners advising and representing clients charged with offences under the Crimes Act 1914 (Cth) and the Commonwealth Criminal Code.

The new commentary sets out the procedure for summary and indictable Commonwealth charges in state courts, from bail considerations to sentencing.

The possible sentencing options are covered in detail and there is a very helpful table of the Commonwealth offences most frequently encountered in state magistrates’ courts.

New precedents include:

  • Example written submissions in support of an application for discharge of an offender without proceeding to conviction; and
  • Letter to client after sentence – providing for various outcomes.

All existing Retainer Instructions for criminal and bail matters have been enhanced to include Commonwealth offences.

The new content can be found in the IF REQUIRED – COMMONWEALTH OFFENCES folder on the matter plan in every By Lawyers Criminal law guide.

 

Duration of orders – ADVOs – NSW

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The duration of orders for apprehended domestic violence (ADVOs) provided for in the Crimes (Domestic and Personal Violence) Act 2007 has been amended.

From 28 March 2020 the default duration of orders increases to 2 years for adult defendants. It remains 12 months for a defendant who was under 18 years of age at the time the application was first made.

Longer periods can apply if the court considers it necessary. Final orders can be for any period, including an indefinite period.

Unless the court specifies a different period, an order remains in force for the default period under s 79A of the Act. The parties can agree on a different period and the court can make such an order by consent.

Section 79A also sets out the matters to which the court is to have regard when deciding on the period of an order.

See Duration of orders in the commentary in the By Lawyers Apprehended Violence Order guide, within the NSW Criminal – Local Court publication, for further detail.

Presumption against bail – WA

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A presumption against bail has been created via recent amendments to the Bail Act 1982 (WA). There is now a presumption against bail for those charged with terrorism offences. This brings WA into line with other states.

The Bail Amendment (Persons Linked to Terrorism) Act 2019 (WA) amends the Bail Act 1982. Its purpose is the implementation of the 2017 Council of Australian Governments agreement for a presumption against bail to apply to persons with links to terrorism. A presumption against bail now applies in WA in relation to certain ‘terrorism offences’ and for ‘persons linked to terrorism’, as newly defined in s 3 of the Bail Act.

A person has links to terrorism for the purposes of the Bail Act if:

  • they are charged with, or have been convicted of, a terrorism offence; or
  • they are subject to an interim control order or confirmed control order made under the Criminal Code Act 1995 (Cth); or
  • they have been the subject of a confirmed control order within the last 10 years.

It is not necessary for these links to terrorism to have any connection to the charge currently before the court for which bail is being considered.

The amendments commenced on 1 January 2020.

The full commentary in the By Lawyers Criminal Magistrates Court guide for Western Australia has been updated accordingly.

Amendments to domestic violence law – SA

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Recent amendments to domestic violence law have commenced in South Australia. They are contained within the Statutes Amendment (Domestic Violence) Act 2018.

Variation of interim orders

The new s 26A of the Intervention Orders (Prevention of Abuse) Act 2009 enables an applicant to apply to the court to vary an interim order issued by police.

Where such an application is made the court must hold a preliminary hearing as soon as practicable and without summoning the respondent to appear. An application can be made by telephone or other electronic means, and the preliminary hearing may occur by oral questioning of the applicant and any other available witness, or by other means contemplated by the rules including affidavit evidence. If the court thinks it appropriate, it may adjourn the hearing so the applicant can attend for questioning.

At the preliminary hearing, the court may:

  • issue an interim variation of the intervention order if it appears to the court that there are grounds for issuing the variation; or
  • determine that the application should be dealt with under s 26 without the issuing of any interim variation order; or
  • dismiss the application on any ground considered sufficient by the court.

Any interim variation issued by the court must require the defendant to appear before the court within eight days.

An interim variation of an intervention order issued by the court comes into force against the defendant when:

  • the order is served on the defendant personally; or
  • the order is served on the defendant in some other manner authorised by the court;
  • the defendant is present in the court when the order is made.

Admissibility of recorded evidence

Pursuant to the new s 13BB of the Evidence Act 1929 and the new s 28A of the Intervention Orders (Prevention of Abuse) Act 2009, the applicant, or someone else for whose protection an intervention order is sought, may give evidence via a recording. Section 28A applies in addition to, and does not derogate from, any other power of the court to receive evidence or to determine the form in which evidence may be received, including evidence in the form of a recording.

Domestic violence strangulation offence

The new s 20A of the Criminal Law Consolidation Act 1935 introduces a specific domestic violence strangulation offence—namely, choking, suffocating or strangling a person without consent with whom the offender is, or was, in a relationship. The maximum penalty for the offence is seven years imprisonment.

Amendment to publications

These amendments to domestic violence law have been incorporated into the commentary in the By Lawyers Intervention Orders guide for South Australia.

Online applications for intervention orders – VIC

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Online applications for intervention orders are now available for family violence related matters, via the Magistrates’ Court website.

Amendments to the Family Violence Protection Act 2008 which commenced on 31 July 2019 allow an applicant to apply online, instead of attending in person at a police station or magistrates  court. Online applications for intervention orders take about 15 minutes to complete. They can be saved, amended and lodged at any time within 4 weeks of being started.

Police can also make the online application on someone’s behalf.

There is no requirement for the application to be sworn or witnessed. Rather, when completing the online application the applicant must make a declaration of truth as to the contents of the application. Making a deliberately false declaration of truth is an offence carrying serious penalties – up to 600 penalty units and 5 years imprisonment. The applicant must also acknowledge their understanding of that offence and those penalties when completing the application.

When deciding whether to make an interim order based on an online application, the Magistrates’ Court can waive the requirement that the application be supported by oral evidence or an affidavit. Before waiving the requirement the court must consider whether it is practicable to obtain oral evidence or an affidavit before the order is made.

The By Lawyers guide Intervention Orders (VIC) has been updated to cover online applications for intervention orders. This publication is located in the By Lawyers Criminal – Magistrates’ Court guide.

Assistance for potential applicants and background information on the new process is available from the Neighbourhood Justice Centre via the Magistrates’ Court website.

Special Hardship Order – Traffic law – QLD

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Following recent amendments, Queensland drivers who are subject to a Special Hardship Order can no longer accumulate any demerit points. If they do, their licence will be suspended for double their original suspension period.

A Special Hardship Order is available under the Transport Operations (Road Use Management–Driver Licensing) Regulation 2010. An application can be made by a driver whose licence has been suspended. The driver must present the court with affidavit evidence that they meet certain criteria and establishing hardship as a result of the licence suspension. If the order is granted the driver will be able to resume driving but will be subject to the conditions of the order for a period equating to the original suspension period.

Breaching the conditions of a Special Hardship Order attracts a fine of 20 penalty units and automatic disqualification for the remainder of the original suspension period, plus 3 months.

Effective from 1 July 2019, drivers who are subject to a Special Hardship Order will also be unable to accumulate any demerit points.

See the By Lawyers Traffic Law guide for more information.

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