ByLawyers News and Updates

Intervention orders – VIC

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Following a recent Supreme Court decision, a declaration of truth is not sufficient evidence on which a court can make personal safety intervention orders.

Section 38 of the Personal Safety Intervention Orders Act 2010 provides that an application for an interim order must be supported by oral evidence or an affidavit, unless the orders are by consent or the requirement is waived.

Under s 38(1A) the court may waive the requirement that the application be supported by oral evidence or an affidavit if the applicant is a police officer and the application is made by electronic communication:

  • provided the court has considered whether it is practicable to obtain oral evidence or an affidavit before making the interim order; or
  • the application is made before 9 a.m. or after 5 p.m. on a weekday or on a Saturday, Sunday or a public holiday, and it was certified by the police officer in accordance with s 13(2).

As a COVID-19 response in 2022, the Magistrates’ Court introduced a declaration of truth form as part of the online application process for intervention orders.

In Myers v Satheeskumar & Ors (Judicial Review) [2024] VSC 12 the applicant challenged the validity of an interim intervention order on the basis that it was not supported by oral evidence or an affidavit, there being no consent and no waiver. The Supreme Court agreed with the applicant, finding that a declaration of truth is not the same as an affidavit and cannot ground an application for interim orders. In doing so, the the presiding judge noted:

I have concluded that the interim PSIOs are invalid, in spite of the public inconvenience and safety issues entailed by this conclusion. I am conscious that this conclusion could cast doubt on the validity of other interim PSIOs granted in similar circumstances. It may be a matter of urgent public concern if other interim PSIOs are subject to doubt by reason of any systematic defect in the manner they have been granted. It is unclear to me whether the approach of the Magistrates’ Court to this case is widespread. However that may be, any perceived solution must be left to the legislature, not the Court.

It is likely that the Magistrates’ Court will soon amend their form and online application to require an affidavit to be filed. There may also be a legislative response. However, until that happens, an application for an interim order cannot be supported by a declaration of truth, and unless a waiver applies the applicant will need to either give evidence or file an affidavit before the court can make any interim orders.

The commentary in the By Lawyers Intervention Orders (VIC) publication has been updated accordingly, and will be updated again if there are further developments.

Criminal Rules – SA

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The Joint Criminal Rules 2022 have been amended with effect from 1 January 2024. These rules apply to all SA courts that deal with criminal matters.

Amendments under the Joint Criminal (No 3) Amending Rules 2023 include the following.

Continuity of representation after committal

A new rule 24.2(4A) provides that a law firm, and the responsible solicitor at that firm, that represented the defendant in committal proceedings which resulted in the defendant being committed to a higher court, is deemed to be representing them in the higher court. If a lawyer ceases to act after a committal proceeding, an application to the higher court will be required.

Remote appearances

A  substituted r 38.5 allows the court to direct or permit a party or a lawyer to appear by audio or audio-visual link, if the court considers it is justified in the circumstances.

This requires:

  • an application in the prescribed form; or
  • an oral application at a prior hearing; or
  • ticking the remote appearance box on any form filed via the court’s electronic filing system; or
  • sending an email to the chambers of the judicial officer who will hear the matter.

The request must specify why the remote appearance is necessary.

If a request is granted the requesting party must pay any costs involved, and if they are uncontactable after 15 minutes of the appointed time it will be treated as a non-appearance.

An application for a witness to appear by audio link or by audio visual link must be made by an interlocutory application in the prescribed form supported by an affidavit in the prescribed form, or an oral application at a prior hearing.

Written submissions

A new rule 38.9(3) provides that any written submissions must include at the end of the document the name of counsel who settled them, or, if there is no counsel, the name of the solicitor responsible.

Sentencing material

A new Division 8—Sentencing material in Part 2 of Chapter 7 provides that any material filed for the purposes of sentencing, including reports, victim or community impact statements, or references, must be filed with a sentencing material form in the prescribed form, being Form 136 Sentencing Material.

Publication updates

The By Lawyers Criminal Magistrates Court guide has been updated in line with the amended criminal rules.

First remand hearing – VIC

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New procedures apply to the first remand hearing for criminal matters in the Magistrates’ Court from 8 January, 2024.

A first remand hearing is when an accused in custody is initially brought before the court. Under Practice Direction no. 1 of 2024, the accused is required to attend in person unless the court has directed under s 42MAA(1) of the Evidence (Miscellaneous Provisions) Act 1958 that they can appear online.

An application under s 42MAA(1) for the accused to appear online can be made by a police officer, the prosecutor, or the accused’s lawyer.

The application must include:

  • a statement as to how an online appearance is consistent with the interests of justice;
  • a statement either that the accused consents to appearing online or that exceptional circumstances apply, in which case they must be set out;
  • whether the accused has received legal advice;
  • whether there are facilities to enable the accused to communicate with their lawyer before and during the hearing;
  • whether the accused intends to apply for bail;
  • whether the accused requires an interpreter; and
  • whether the accused identifies as Aboriginal or Torres Strait Islander

Lawyers must also appear in person at the first remand hearing. Exceptions to this requirement apply if the court has directed that the client can appear online, or the client is Aboriginal and the lawyer’s appearance would assist the court considering the issues in s 3A of the Bail Act1977, but the lawyer cannot appear in person, or the court has directed otherwise. If an exception applies the lawyer can attend online.

If appearing online, it is the practitioner’s responsibility to ensure they have audio-visual capability from an appropriate, private location and their online appearance must not cause delay or interrupt the court.

The By Lawyers Criminal Magistrates Court guide has been updated accordingly, including with the new form of application.

 

 

Bail provision – NSW

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A new provision of the Bail Act 2013 commenced on 30 October 2023, under the Justice Legislation Amendment (Miscellaneous) Act 2023.

The new provision, s 28A of the Bail Act, enables a bail authority to impose a bail condition that an accused person only be released on bail into the care or company of a specified person or class of persons. This is called an accompaniment requirement.

The bail authority can impose such a condition as a pre-release requirement on an accused person’s bail. The condition is met when the specified person, or a person of the specified class, is present at the place from which the accused person is to be released on bail, and able to accompany them.

The condition is intended to be used to address identified bail concerns.

Reference to a class of persons is intended to ensure an accused person can be accompanied, where applicable, by someone from an organisation such as the National Disability Insurance Service or Youth Justice, in circumstances where the specific identity of the accompanying person may not be known in advance.

This new provision is subject to the existing provisions of the Act. Section 20A requires the bail authority to assess bail concerns and impose conditions that are:

  • reasonably necessary to address a bail concern,
  • no more onerous than necessary to address the bail concern in relation to which it is imposed, and
  • reasonably practicable for the accused person to comply with.

The commentary about bail in the By Lawyers Local Court Criminal guide has been amended accordingly, and the Retainer instructions – Bail precedent has been amended to prompt the practitioner to seek instructions about an accompanying person or persons.

Specialist Family Violence List – NSW

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A Specialist Family Violence List operates in some Local Court locations from 25 September 2023.

The Specialist Family Violence List Pilot Practice Note applies in the Downing Centre Local Court, Blacktown Local Court, Newcastle Local Court, Gunnedah circuit, excluding Tamworth, and Moree circuit. The list may operate at other local courts at the Chief Magistrate’s direction.

The practice note applies to all family violence related proceedings listed at those locations, which include:

  • All domestic violence offences, including breaches of Apprehended Domestic Violence Orders (ADVOs);
  • All applications for ADVOs, whether commenced by police or privately;
  • Family law applications if ancillary to an ADVO application.

Apprehended Personal Violence Orders and personal violence offences that are not domestic violence offences under s 11 of the Crimes (Domestic and Personal Violence) Act 2007 are excluded.

Eligible matters will automatically be placed in the list. Charges and related AVOs will be listed together and remain together as they progress.

There are different procedures for standalone ADVO proceedings and those with related criminal charges.

Lapsing interim order

The practice note provides that the court can deal with standalone ADVO matters in the Specialised Family Violence list by imposing a lapsing interim order (LIO). This is an alternative to a final order and operates to the same effect as a conditional discharge in a criminal matter.

If the court considers it appropriate to impose a LIO, the matter will be adjourned for a period at the court’s discretion and, if there are no breaches of the order during that period, the AVO may be withdrawn and dismissed.

If the defendant agrees to undertake counselling or other intervention during the adjournment period, this will be taken into account by the court when the matter returns.

Either party may return the matter to court at any time during the adjournment period to fix a date for a defended hearing. If a breach of the LIO results in charges, the court may relist the proceedings.

Each party can be heard on the suitability of an LIO. In determining whether to impose an LIO, the court may consider:

  • if it is by consent;
  • the complainant’s views, including if they do not want a final order and whether they have received independent advice;
  • the relationship between the complainant and defendant;
  • the seriousness of the allegations and the conditions being sought;
  • whether any LIO has been sought previously;
  • any impact of imposing an interim order rather than a final order;
  • whether the defendant is seeking treatment or counselling; and
  • any other matter the court thinks appropriate.

The commentaries in the By Lawyers Apprehended Violence Order (NSW) and Local Court (NSW) – Criminal guides have been updated accordingly.

Subpoena forms and processes – VIC

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Amendments to subpoena forms and processes in the County Court of Victoria commenced on 14 August 2023.

Chapters I and III of the County Court Civil Procedure Rules 2018 are revised as to subpoena forms and processes. The County Court (Chapters I and III Subpoena Amendment) Rules 2023 amend the prescribed civil and criminal subpoena forms.

The Rules now require subpoena recipients to respond using the eCase electronic case management system. The Registrar or Court must grant leave for any physical production. The eCase platform is mandatory for production, inspection, and objections.

The amended civil subpoena forms are:

  • Form 42A Subpoena to attend to give evidence – minor amendment;
  • Form 42AA Subpoena for production to Registrar – substituted form;
  • Form 42B Subpoena to produce – substituted form; and
  • Form 42C Subpoena both to attend to give evidence and to produce – substituted form.

The County Court Criminal Procedure Rules 2019 have also been amended.

The amended criminal subpoena forms are:

  • Form 1D Subpoena to attend to give evidence – minor amendment;
  • Form 1E Subpoena to produce – substituted form;
  • Form 1EA Subpoena both to attend to give evidence and to produce – substituted form; and
  • Form 1I Short service order subpoena – minor amendment.

From 14 August 2023, the Registrar will not issue any subpoenas that are not in the correct form. The new subpoena forms are available from the Victorian County Court website.

The By Lawyers Victoria guides County Court Litigation – Plaintiff and County Court Litigation – Defendant have been updated for the new subpoena forms and processes, including links.

1 July updates – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.

These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News & Updates posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Bail amendments – WA

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Bail amendments under the Bail Amendment Act 2022 received assent and commenced on 3 September 2022.

The Bail Act 1982 has been amended in a number of small but important respects, aimed mainly at better protecting the safety and welfare of victims of child sexual offences.

These latest bail amendments include:

  • provision ensuring that a person charged with a serious offence cannot be released without bail;
  • deleting the definition of serious offence under s 6A of the Act, so that the definition of serious offence in s 3 applies throughout the Act. This means that all serious offences are now listed in Schedule 2 of the Act, with the sole exception of the offence of breaching bail under s 51(2a) of the Act;
  • highlighting the capacity of bail decision makers to defer bail under s 9 to inform protective bail conditions in cases involving alleged sexual offences against children;
  • requiring bail decision makers to consider the conduct of the accused towards any alleged victim of the current offences and any victim of an offence the accused has previously been convicted of including any conduct towards the victim’s family;
  • requiring bail decision makers to take into account specific additional considerations that are specific to bail in cases involving alleged sexual offences against child victims;
  • requiring judicial officers to consider the fact that a person has been convicted of an offence and any sentence that is likely to be imposed when determining bail for an accused awaiting sentencing; and
  • expanding the list of serious offences under Schedule 2 to the Act. This means that a broader category of accused persons charged with serious offences while already on bail or on early release for another serious offence will bear the onus of satisfying the court
    that there are exceptional reasons why they should not be kept in custody.

The commentary on bail and the Retainer instructions – Bail precedent in the By Lawyers Magistrates Court (WA) – Criminal publication have been updated to reflect these bail amendments.

Magistrates’ Court appearances – VIC

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All Magistrates’ Court appearances and counter services from 12 September 2022 will be subject to the arrangements set out in Practice Direction No 6 of 2022.

The practice direction applies to both criminal and civil matters, including intervention orders and specialist courts and programs.

COVID recovery arrangements made permanent

Essentially the temporary COVID recovery arrangements previously in place under Practice Direction No. 3 of 2022 have been made permanent, with that practice direction revoked.

In general, remote appearances by clients and practitioners are available, encouraged, and in some cases required. However, physical appearances are also possible, mainly by request, and in some cases they are required.

The new practice direction sets out detailed arrangements for all types of Magistrates’ Court appearances, including:

Criminal matters

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • specialist courts and programs;

Intervention Orders

  • applications;
  • hearings;

Civil matters

  • applications, directions hearings, pre-hearing conferences, early neutral evaluations and judicial resolution conferences are all to be conducted online, unless otherwise directed by the Court;
  • final hearings may be online or in person at the court’s direction.

For online appearances it is the practitioner’s responsibility to ensure that they and their client are able to join the online hearing with audio visual capability.

Magistrates’ Court publication updates

The following By Lawyers Victorian publications have been updated accordingly:

  • Magistrates’ Court – Criminal
  • Magistrates’ Court – Traffic offences
  • Intervention orders
  • Magistrates’ Court Civil – Acting for the plaintiff
  • Magistrates’ Court Civil – Acting for the Defendant
  • Dealing with COVID-19 legal issues

Joint criminal rules – SA

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Criminal procedure in the SA Magistrates Court has been overhauled with the commencement of the Joint Criminal Rules 2022 and the Uniform Special Statutory Rules 2022 on 29 August 2022. At the same time, the CourtSA criminal portal has gone live, for online filing and case management.

The By Lawyers Magistrates Court (SA) – Criminal, Traffic Offences and Intervention Orders guides have been extensively updated to reflect the new rules and procedures.

New rules

The Magistrates Court Act 1991, the Joint Criminal Rules 2022 and the Uniform Special Statutory Rules 2022 provide the framework for the way criminal, or criminal-related, matters are dealt with, including the commencement of proceedings.

The Joint Criminal Rules 2022 or the Uniform Special Statutory Rules 2022 govern all actions commenced in the Criminal Division and Petty Sessions Division of the Magistrates Court, other than the review of certain decisions made by the Chief Recovery Officer. They also apply to steps in proceedings taken on or after the commencement date.

The previous rules, the Magistrates Court Rules 1992 (Criminal), continue to govern steps in a proceeding taken before the commencement date.

All forms associated with the new rules will be added to the matter plans shortly.

Elder abuse proceedings

The Magistrates Court also has jurisdiction under Part 4 Division 6 of the Ageing and Adult Safeguarding Act 1995 with respect to applications by the Director of the Office for Ageing Well for orders preventing elder abuse, or proceedings for alleged contraventions of such orders. The matters are now dealt with in the Civil (General Claims) Division of the Magistrates Court. See the By Lawyers Intervention Orders commentary for further detail on elder abuse orders.

Changes to criminal procedure

The Information

The Joint Criminal Rules require that an Information be accompanied by a summary of the allegations with respect to each count, an antecedent report, or a document combining the two, any applicable bail agreement or details of bail, and a Notice relating to the highest charge category.

The new rules also require the information to identify whether the matter is a priority proceeding, which applies to the highest charge category.

The order of charge categories is:

  • major indictable;
  • Commonwealth indictable;
  • minor indictable;
  • summary; and
  • summary not punishable by imprisonment.

Depending on the nature of the most serious charge, an Information is also to be served with certain forms that may be filed by the defendant, including a Written Guilty Plea and Election for Trial in the District Court. The requirement to disclosure this additional information ensures compliance with s 105 of the Criminal Procedure Act 1921.

Defence disclosure

There are also new defence disclosure requirements when the prosecution has complied with its own obligations. Where the charge being heard in the Magistrates Court includes an indictable offence, the new rules provide that s 134 of the Criminal Procedure Act applies, as modified by the Joint Criminal Rules, in particular r 75.5.

In effect, if the prosecution makes an application supported by an affidavit stating it has no existing but unfulfilled obligations of disclosure to the defence, then the court has the power to order that a defendant disclose if it intends to adduce evidence at trial in relation to:

  • fitness to stand trial;
  • acting for a defensive purpose;
  • acting under provocation;
  • acting under automatism;
  • whether the alleged offence occurred by accident;
  • acting out of necessity;
  • acting under duress;
  • acting under a claim of right;
  • acting under intoxication.

The prosecution can make such an application up until 28 days before the trial date.

Initial adjournment

Under the previous rules, the court’s directions provided for an initial adjournment but generally required a defendant to indicate at the second appearance whether they intend to enter a plea of guilty or not guilty.

It is uncertain whether the court will treat matters commenced under the Joint Criminal Rules any differently. The Joint Criminal Rules appear to leave open the possibility that a plea will not be entered on the first occasion. See r 65.1 and the general power to adjourn under r 38.1.

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