ByLawyers News and Updates

NSW Criminal Local Court – Substantial changes to committal procedure

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Substantial changes to committal procedure in the Local Court.

Amendments to the Criminal Procedure Act 1986, pursuant to the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017, commenced on 30 April 2018, with consequent amendments to the applicable Regulations. These amendments substantially change the procedure for committals by mandating early charge negotiations and encouraging early pleas of guilty.

In summary, the new procedure is:

  • Following charge in indictable matters, the police will provide a simplified brief of evidence to the Office of the Director of Public Prosecutions (ODPP), which does not have to be in admissible form and is to include evidence relevant to the defence case.
  • Existing prosecution disclosure obligations are unchanged and unaffected by the amendments.
  • A senior prosecutor in the ODPP will review the brief and file a Charge Certificate with the Local Court confirming the charges which will proceed and certifying that evidence is held to support those charges.
  • The Charge Certificate must be filed within 6 months, or a magistrate may discharge the accused.
  • The prosecutor and defence lawyer must then have a case conference, in person or by audio visual link (not by phone), to determine if any pleas of guilty can be entered and to identify/attempt to resolve any issues.
  • Parties then complete and file a Case Conference Certificate at court.
  • Existing provisions for applications to have prosecution witnesses attend to give evidence at committal proceedings are unchanged, although now contained in different sections of the Act.
  • Magistrates are no longer required to assess the evidence and determine whether an accused should be committed; they are only required to confirm that the Charge Certificate and Case Conference Certificate have been filed, determine any application for witnesses to attend, if so take that evidence, then commit the accused for trial (if plea not guilty or no plea entered,) or for sentence (if plea guilty).
  • Both committal hearings and ‘paper’ committals are accordingly abolished.
  • There are some exceptions to the compulsory case conference – where the accused is unrepresented, or ‘fitness to be tried’ is in issue.
  • Magistrates can now also commit cases on the issue of ‘fitness to be tried’.

The Commentary and Precedents in the By Lawyers NSW Criminal Local Court Guide have been updated to cover the new procedure.

 

NSW – Traffic offences – Application to remove driver licence disqualification added

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Application to remove driver licence disqualification precedent has been added to the Traffic Offences matter plan as a result of the recent commencement of the Road Transport Amendment (Driver Licence Disqualification) Act 2017 which commenced on 28 October 2017.

NSW – Criminal – Proposed 2018 sentencing amendments

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The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Crimes (High Risk Offenders) Amendment Act 2017 and the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 are awaiting proclamation, but are expected to commence in May 2018. The cumulative effect of the amendments is a very significant overhaul of criminal procedure in the Local Court and of sentencing options in all courts, the likes of which has not occurred since the Crimes (Sentencing Procedure) Act 1999 was introduced.

The intent of the legislation is to (a) reduce the number of offenders in custody, by replacing largely unsupervised sentencing options with highly supervised ones and providing fixed discounts for early pleas; and (b) reduce the backlog of trials by speeding up the process, mandating case conferences and encouraging more early pleas of guilty. The likely overall intention is to have fewer and quicker trials and fewer people in gaol for breaches of bonds/orders.

The forthcoming amendments include:

  • Intensive Correction Orders (already existing) – substantially augmented and strengthened.
  • Community Correction Orders introduced – replaces bonds under s 9
  • Community Release Orders introduced – replaces bonds under s 10(1)(b)
  • New procedure in the Local Court following charge
  • Paper Committals abolished
  • Codified discounts for early pleas of guilty
  • Simplified brief of evidence requirements
  • Eligibility for the High Risk Offenders Scheme expanded

These changes are likely to cause some disturbance and take a while to work themselves out. They may or may not achieve their objectives, but regardless the impact is potentially significant. The commentary will be updated when the legislation commences.

For a full summary of the proposed changes, see the commentary heading “2018 proposed sentencing amendments” in the NSW Criminal Commentary.

NSW – Criminal – Proposed 2018 sentencing amendments

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The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, the Crimes (High Risk Offenders) Amendment Act 2017 and the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 are awaiting proclamation, but are expected to commence in May 2018. The cumulative effect of the amendments is a very significant overhaul of criminal procedure in the Local Court and of sentencing options in all courts, the likes of which has not occurred since the Crimes (Sentencing Procedure) Act 1999 was introduced.

These changes are likely to cause some disturbance and take a while to work themselves out. They may or may not achieve their objectives, but regardless the impact is potentially significant. The commentary will be updated when the legislation commences.

For a full summary of the proposed changes, see the heading “2018 proposed sentencing amendments” in the Criminal NSW commentary.

NSW – Driver licence disqualifications – major changes

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ALERT: The Road Transport Amendment (Driver Licence Disqualification) Act 2017 commenced on 28 October 2017. It reduces some penalties for various driver licencing offence (notably it removes the automatic disqualification for driving unlicensed), it repeals the Habitual Traffic Offender declaration provisions entirely, it removes/amends mandatory minimum disqualifications and it creates an application to the Local Court to remove licence disqualifications after certain offence-free periods.

It is suggested that the last of these will likely create new/increased  work for lawyers in the Local Court.

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