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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.

Traffic offence penalties – NSW

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Traffic offence penalties in NSW have changed. The By Lawyers Traffic Offences – Local Court NSW Guide has been updated in relation to recent penalty increases for various drug and alcohol offences. This applies to the commentary for alcohol and drug offences, the appendix of penalties and the retainer instructions.

The appendix to the Traffic Offences NSW commentary ‘Traffic offences and penalties – Drugs and alcohol‘ is a very handy resource that provides a summary of current key information relevant to sentencing for specific common offences, with links to applicable sections of the Act and any relevant programs.

The ‘Retainer Instructions – Traffic offences‘ precedent, also found in the Traffic Offences Guide, contains an ‘Offences and Penalties’ table which sets out the current fine, any applicable custodial penalties and the disqualification periods for most common alcohol, speeding and vehicle use offences. These useful details are readily available when needed – at the point of taking instructions from the client, who will want to know the applicable traffic offence penalties immediately.

All By Lawyers Guides contain practical and up to date commentary and precedents designed to help practitioners work faster and smarter. A team of over 45 legal professionals keep our content updated to reflect legislative changes, so our users can be confident that they’re working with the latest forms, precedents and commentary.

New criminal precedents- All states

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By Lawyers have added over 50 new criminal precedents to the matter plans in our Criminal guides for all jurisdictions. These practical and helpful new precedents will save practitioners time and make matter management easier.

The new criminal precedents cover many of the tasks required when acting for a defendant in criminal proceedings, from arrest, attendance at the police station and bail, to court attendance, sentencing and appeals.

As part of this significant enhancement to our Criminal guides, we have introduced a new type of precedent which is particularly useful for criminal practitioners – Attendance notes.  Attendance note precedents are pre-drafted, detailed file notes which both record work usually performed on a matter and act as a reminder of the necessary components of various common tasks.

An extensive selection of new precedent letters have also been added to the appropriate folders in the Criminal matter plans. These letters are designed to assist practitioners:

  • arrange bail for their clients;
  • seek disclosure from the prosecution;
  • gather evidence from the client and their witnesses;
  • arrange for witnesses to attend court;
  • advise clients on their plea; and
  • inform clients of sentencing outcomes.

By Lawyers are always working to improve and expand our content. These new precedents increase the value of our criminal guides for practitioners who advise and represent clients in criminal matters in all states of Australia.

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Drink driving – Criminal NSW

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In a small but significant change to drink driving laws, from 20 May 2019 offenders charged with first time, low range prescribed concentration of alcohol offences in NSW will be fined and have their licence suspended immediately for three months, rather than receive a Court Attendance Notice.

This results in such offenders needing to make a court election if they wish to ask the court to dismiss the charge and not record a conviction under s 10 Crimes (Sentencing Procedure) Act 1999.

It will also be available to such offenders to make a licence appeal to the Local Court, if they seek to avoid or reduce the period of suspension. A licence appeal can only be made after conviction. The offender has a conviction recorded either by paying the fine in the first instance, or by the court imposing a conviction where a court election is made and no section 10 dismissal is granted.

This means that from now on lawyers are unlikely to see some first time, low range PCA offenders at all, or at least not until after they have paid their fine and are seeking to appeal their licence suspension. As a licence appeal is a slightly different advocacy exercise to a drink driving plea, these changes will involve a re-calibration of the approach to advising and appearing for clients in first time, low range drink driving cases.

For more information, including the full details of penalties for drink driving offences which appear in the Appendix at the end of the commentary, see the By Lawyers Traffic Offences guide.

Domestic Violence Evidence In Chief – NSW

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A recorded video or audio statement of a domestic violence complainant, known as Domestic Violence Evidence in Chief, or DVEC, is admissible as evidence in chief in criminal proceedings for domestic violence offences and in concurrent or related proceedings for applications for apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act 2007. This is pursuant to the provisions of Chapter 6, Part 4B of the Criminal Procedure Act 1986.

In the recent Supreme Court case of Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363  the court determined that a DVEC may be admitted to evidence even where the complainant is not present at the hearing of the matter – although whether or not it actually will be admitted depends on the provisions of the Evidence Act, as for any other piece of evidence.

The  considerations under the Evidence Act of the complainant’s reliability and the prejudice to the defendant of not being able to cross-examine the complainant still have to be overcome. A defendant’s solicitor should still be prepared to argue strongly against the DVEC being admitted in those circumstances.

The commentaries in the By Lawyers Criminal and Apprehended Violence Orders publications have been amended accordingly.

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