ByLawyers News and Updates

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.

Mandatory alcohol interlock orders – NSW

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Mandatory alcohol interlock orders were extended recently to have application to all mid-range drink driving offences, in addition to other serious alcohol offences and repeat offenders. Mandatory interlock orders are now a standard part of sentencing for drink driving offences in the Local Court. Interlock exemption orders are also available in certain circumstances.

By Lawyers content updated

Amendments have been made to the commentary and some precedent letters in the By Lawyers Traffic publication, within the NSW Criminal Guide, to cover in greater detail mandatory alcohol interlock orders and interlock exemption orders. Enhancements in this regard have also been made to the Appendix of traffic penalties for drink driving offences, located at the end of the Traffic commentary.

Mandatory alcohol interlock orders

Offenders who are subject to an alcohol interlock order can choose to install an interlock device in their vehicle at their own cost – currently about $2200 – and thereby reduce their disqualification period. The device prevents the vehicle being started unless the driver has a zero blood alcohol level. The devices also now incorporate facial recognition technology.

An offender who chooses to re-commence driving under an alcohol interlock order is then subject to a period during which they can only drive a vehicle fitted with an alcohol interlock device. The length of that period will depend upon the seriousness of the offence for which the order was imposed. If they choose not to install the interlock device, their disqualification period will continue for five years.

Interlock exemption orders

It is possible to seek an interlock exemption order. This means that the offender completes their entire disqualification period and must attend a Sober driver program – which currently costs $770 – but they are not subject to any interlock period. Good reasons need to be provided in support of an application for an interlock exemption order.

Further information

Practitioners should see the By Lawyers NSW Traffic Guide for further information.

Library of initial letters – Traffic Offences – VIC

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By Lawyers Victorian Traffic Offences guide has been expanded with the addition of 13 new initial letters to the client. These helpful precedents make initial client communication easier for solicitors advising clients in traffic matters.

The new letters contain details of the applicable penalties for some of the most common traffic offences. They enable practitioners to quickly and accurately advise clients on the available sentencing options for their offence immediately after the first conference and in advance of the first court attendance.

These new precedents are conveniently located within a folder called Library of initial letters to client in Folder A. Getting the matter underway.

The new letters cover drink and drug driving offences including all Blood Alcohol Content offences, driving while impaired and failing a roadside test. There are separate letters for both permit and full licence holders.

Because each letter has been drafted to correspond to a particular drink or drug driving offence and provides all details of the applicable penalty, they help practitioners prepare the client for court faster by eliminating the need to research the specific penalties which apply for a driving offence every time. The letters set out any applicable term of imprisonment, the number of penalty units for any fine, the licence suspension or disqualification period, the Interlock order requirements, the Behaviour Change Program requirements and other licence conditions.

To see the library of new initial letters just Click on the Guides and Precedents button from criminal or traffic matter  in LEAP, or select the Victorian Traffic Offences Guide on the By Lawyers website.

Criminal & Traffic Law – Finalisation letters – NSW

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Enhancements to finalisation letters

The finalisation letters in the By Lawyers Criminal and Traffic Guides (NSW) have been enhanced.

The finalisation letters now cover all sentencing outcomes, including Community Correction Orders.

There are now separate finalisation letters in the Traffic guide for drink driving offences, which include an Interlock order as a sentencing outcome, and for general offences, which do not include the Interlock outcome.

In both guides there is now also a separate letter dealing with deferral of sentence under s 11 Crimes (Sentencing Procedure) Act 1999.

Feedback regarding By Lawyers content

This enhancement was completed as a response to client feedback. At By Lawyers we love to receive feedback from our subscribers and we really appreciate busy practitioners taking the time to let us know what they need from our content.

We are always available via email: askus@bylawyers.com.au.

For LEAP users with By Lawyers as a companion product, there are two additional ways to provide feedback:

  • When in a LEAP matter, in the top right hand corner of the screen there is a blue question mark icon. Clicking on it reveals a drop-down box for the LEAP Community pages – one of these is ‘Help, support and feedback’. There is also a By Lawyers tab on the LEAP Community page which provides helpful information about using By Lawyers content.
  • When using any precedent in LEAP there is  a ‘Provide Feedback’ button in the ribbon at the top of the document, next to ‘Save to matter as PDF’. This opens to a feedback form, where any issues or suggestions regarding the precedent can be provided. Where such feedback relates to a By Lawyers precedent, LEAP send it on to us and we will always address it promptly, directly with the user.

By Lawyers have often introduced new precedents or enhanced our commentaries as a result of subscriber suggestions. Whenever we see a need for the suggested additions or amendments we are happy to oblige, so as to benefit not only the firm that made the request but all of our other users as well. Sometimes our subscribers will not only identify an issue, such as a new precedent that might be needed, but they will also provide us with the resolution – a precedent they have developed themselves and are happy for us to publish for the assistance of others. The law is, after all, a noble profession and helping each other in a collegiate way is one of the hallmarks of being a lawyer.

Our mission at By Lawyers is to help our subscribers enjoy practice more. Responding to feedback is one of the ways we do it.

Costs disclosure – Increase of legal rates during a matter

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Increase of legal rates during a matter

All By Lawyers Costs Agreements and Client Service Agreements have been updated to include a clause notifying a client that legal rates may increase during the course of a matter requiring a revision of the costs estimate provided. This clause provides for 30 days written notice of any proposed changes to legal rates. While such a clause is not required by Legal Profession legislation concerning costs disclosure requirements, providing such notice on initial costs disclosure is considered best practice.

All of our Guides contain Costs Agreements (Client Service Agreements for QLD Guides) within the folder ‘A. Getting the mater underway’. All of our agreements are compliant with the relevant Legal Profession legislation and are reviewed and updated regularly to ensure compliance.

Judicial registrars in the Magistrates’ Court – VIC

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Some recent legislative amendments have expanded the categories of criminal offences which can be dealt with by judicial registrars in the Magistrates’ Court of Victoria.

The offence of Improper Use of a Motor Vehicle has now been added to the list of offences which can be dealt with by a judicial registrar rather than a magistrate.

All traffic offences commence in the Magistrates Court and most traffic offences remain there, as only a relatively few traffic offences such as culpable driving and dangerous driving causing death are serious enough to be dealt with on indictment.

Some criminal offences, including some traffic offences can be dealt with in the Magistrates’ Court by a judicial registrar – see Rule 6(ea) of the Magistrates’ Court (Judicial Registrars) Rules 2015 for a full list of these. This now includes Improper Use of a Motor Vehicle. One of the ways in which that offence can be committed is to drive a motor vehicle in a manner which causes the motor vehicle to undergo loss of traction by one or more of the motor vehicle’s wheels. The maximum penalty for the offence is 5 penalty units.

The Full Commentary in the By Lawyers Victorian Magistrates’ Court – Criminal publication has been updated accordingly.

The commentary also includes, in the Overview, an explanation of the nature and value of ‘penalty units’.

Domestic violence amendments – SA

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Some of the domestic violence amendments under the Statutes Amendment (Domestic Violence) Act 2018 have now commenced. The act makes a number of changes to domestic violence provisions, most of which commenced on 31 January 2019.

Amendments that commenced on 31 January 2019 include:

  • additions to the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to include forcing a person to marry another person, preventing a person from entering the person’s place of residence and taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of a person and threatening to distribute the image without the person’s consent;
  • increased penalties for breaching an intervention order, where a breach is a ‘second or subsequent’ offence, which generally means offences within 5 years of each other, AND the breach involves physical violence or the threat of it, then the maximum penalty is $20,000 and 4 years imprisonment (whereas the maximum penalty for a first offence is $1250 and 2 years imprisonment);
  • s 10A(d) of the Bail Act 1985 has been amended to classify certain domestic violence offences as ‘aggravated offences’ in  relation to which there is a presumption against bail;
  • new s 20A—Choking, suffocation or strangulation in a domestic setting has been added to the Criminal Law Consolidation Act 1935. This offence provides that a person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person, without that other person’s consent, is guilty of an offence, the maximum penalty for which is imprisonment for 7 years.

Amendments yet to commence include:

  • where police are seeking to urgently vary an existing final order the court may now conduct a preliminary hearing in the absence of the defendant and may take evidence by telephone or such other means as the court determines appropriate and the rules of court allow;
  • where an Intervention order is sought by police, the applicant and anyone else for whose protection the order is sought, may give their evidence in the proceedings by recording and may only be cross-examined about that evidence if the court permits it.

These provisions are suspended until proclaimed, commencing on 6 December 2020 at the latest.

The commentaries in the By Lawyers Criminal SA and Intervention Orders SA guides have been updated accordingly.

Standardised bail conditions – Criminal QLD

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The Queensland Supreme Court has developed and made available standardised bail conditions, through its Streamlining Criminal Justice Committee and Rules Committee.

The document is not a practice direction or court form and has no formal application; it is simply an attempt by the court to provide examples of clearer proposed bail conditions so that clients granted bail can better understand their obligations. The document is a useful aid in the drafting of proposed orders when bail is sought and might assist practitioners and their clients in seeking and obtaining bail before the Magistrates Court.

See the By Lawyers Criminal Magistrates Court matter plan for a copy of the Standardised Bail Conditions – and helpful commentary on bail applications generally.

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