ByLawyers News and Updates

Criminal AI prompts – NSW

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New criminal AI prompts have been created.

The following By Lawyers AI prompts have been added to the matter plans for Local Court Criminal and Traffic:

  1. Brief to counsel

  2. Submissions for a s 9 application

  3. Submissions for a s 10 application

  4. Submissions for a bail application

  5. Letter to medico-legal expert requesting a report for sentencing

These new criminal AI prompts will assist practitioners appearing for clients in criminal and traffic matters in the NSW Local Court.

AI prompts are transforming legal document drafting. Technical precision in prompting artificial intelligence can significantly improve the utility and credibility of its output, especially when the AI draws exclusively from data contained in client matters and not from outside sources.

A well-drafted AI prompt acts like a clear direction from a senior lawyer to a junior about how to prepare a document. It sets precise parameters for the task, identifies the required information and where it must be drawn from, specifies the document’s form and any legal or procedural rules with which it must comply, and forbids the use of external or unauthorised sources, including invention – or in AI’s case, hallucination.

The outcome of using an AI prompt in a matter that contains sufficient reliable data is a competent first draft of a document that the lawyer can then refine and perfect, either with or without further input from AI.

Even if sufficient data is not available in the matter to satisfy the prompt’s requirements for the document, the AI will identify the missing data the lawyer needs to obtain via instructions or other means.

By Lawyers is pleased to introduce AI prompts to our publications, helping our subscribers harness the power of LEAP’s Matter AI.

Super Call Overs – NSW

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The Local Court of NSW is currently holding Super Call Overs of pending criminal matters with the intention of reducing delays.

Matters more than 12 months old that currently have a hearing date after 1 February 2025 in the participating courts will be listed in the Super Call Overs.

The participating Local Courts are:

  • Burwood;
  • Campbelltown;
  • Downing Centre;
  • Gosford;
  • Liverpool;
  • Newtown;
  • Penrith;
  • Parramatta;
  • Waverley; and
  • Wyong.

The court’s expectations at these listings are that:

  • parties have had discussions and provided a Notice of Readiness to the relevant court registry at least 21 days prior to the Super Call Over listing;
  • legal representatives in attendance will have sufficient authority so that matters can be effectively dealt with, including to finality; and
  • the court will be unambiguously told about the matter’s state of readiness.

Matters will be dealt with in the following order of priority:

  1. Defendant in custody, matter pending for over two years, DV (domestic violence);
  2. Defendant in custody, matter pending for over two years, non-DV;
  3. Defendant in community, matter pending for over two years, DV;
  4. Defendant in community, matter pending for over two years, non-DV;
  5. Defendant in custody, matter pending for 1-2 years, DV;
  6. Defendant in custody, matter pending for 1-2 years, non-DV;
  7. Defendant in community, matter pending for 1-2 years, DV;
  8. Defendant in community, matter pending for 1-2 years, non-DV;

Defendants who plead guilty at the Super Call Over will proceed to sentence on the day. Otherwise, the matter will be given a new hearing date after 1 February 2025.

Practitioners with a qualifying matter can contact the relevant court registry for inclusion in the Super Call Over list.

For more information about criminal procedure and domestic violence offences, see By Lawyers Local Court – Criminal (NSW) and Apprehended Violence Order (NSW) publications.

Mental impairment – WA

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The Criminal Law (Mental Impairment) Act 2023 replaces the Criminal Law (Mentally Impaired Accused) Act 1996 from 1 September 2024.

The purposes of the new Act are:

  • to make provision in relation to criminal proceedings involving persons with mental impairment;
  • to provide for special criminal proceedings for persons who are unfit to stand trial;
  • to provide for the supervision of persons who, in special criminal proceedings, are found to have committed an offence;
  • to provide for the supervision of persons acquitted on account of mental impairment;
  • to provide for the safe reintegration into the community of persons supervised under this Act;
  • to repeal the Criminal Law (Mentally Impaired Accused) Act 1996 and the Criminal Law (Mentally Impaired Accused) Regulations 1997;
  • for related purposes.

Part 3 of the Criminal Law (Mental Impairment) Act 2023 applies to accused who are unfit to stand trial on criminal charges.

Division 2 of that Part deals with raising and deciding the question of whether an accused is fit to stand trial on criminal charges. There is a presumption of fitness that can be rebutted if the accused is found to be unable to do one or more of the things listed in s 26, which include:

  • understand the nature of the charge;
  • give instructions;
  • understand the requirement to plead, or the effect of a plea;
  • follow the course of a trial; or
  • properly defend the charge.

The question of fitness can be raised at any time before or during a trial.

Under s 29, the court decides the question of fitness to stand trial on the balance of probabilities and may inform itself in any way it considers appropriate, including with medical evidence.

The Mental Health section of the Full Commentary in the By Lawyers Magistrates Court – Criminal (WA) guide has been updated accordingly.

Bail – NSW

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From 1 July 2024 serious domestic violence offences and coercive control are included as offences to which the show cause requirement applies for bail to be granted in New South Wales courts.

Section 16B of the Bail Act 2013 lists offences for which bail must be refused, unless the accused can show cause why their detention is not justified. These are all serious offences, generally involving violence, including sexual offences, plus drug dealing and firearms offences.

Following proclamation of the Bail and Other Legislation Amendment (Domestic Violence) Act 2024, serious domestic violence offences, and the new offence of coercive control under s 54D of the Crimes Act 1900 are included in s 16B.

Serious domestic violence offences are defined in s 4 of the Crimes Act 1900 as those under Part 3 of the Act, being crimes against the person, that have a maximum penalty of 14 years imprisonment or more if the offence is committed by a person against an intimate partner, or equivalent offences under a law of the Commonwealth or another State or Territory.

Further the amendments require that, if bail is granted for a s 16B offence, it must be subject to a condition for electronic monitoring, unless the bail authority making the grant is satisfied there are sufficient reasons in the interest of justice not to impose such a condition.

The section on bail in the Full Commentary in the By Lawyers Local Court – Criminal (NSW) guide has been updated in accordance with these amendments.

 

Bail amendments – VIC

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The latest raft of bail amendments have effect from 24 March 2024.

Changes to the Bail Act 1977 under the Bail Amendment Act 2023 and Bail Amendment Regulations 2024 include:

Second bail application now permitted

The amendments allow an accused person to make a second legally-represented bail application before a court without having to establish new facts or circumstances. This addresses the issue of lawyers being reluctant to represent an accused person on a bail application at the first possible opportunity because of the concern it will exclude them from making a better-prepared application a bit later, which has contributed to a high number of short-duration remands.

Changes of terminology and defined terms

These bail amendments include changes in terminology:

  • from surety and persons offering a surety, to bail guarantee and bail guarantors; and
  • from undertaking to bail undertaking, which accords with a slight amendment to the definition of an undertaking in s 3, so that it means a bail undertaking given under s 5(1) to surrender into custody at the time and place specified for the next appearance, rather than undertaking more generally under s 5 or otherwise.

Refinements to the unacceptable risk test

Under the current test, a person can be remanded in custody if there is a perceived risk of even minor reoffending. To address this, the amendments refine the unacceptable risk test so that an accused person cannot be refused bail on specified minor offences unless they have a terrorism record and have previously had their bail for the same offences revoked. The offences to which this provision applies are any under the Summary Offences Act 1966 except those listed in a new Schedule 3 to the Bail Act, relating to violent and sexual offences. Accused persons released on bail for these offences can still be subject to strict bail conditions.

Additional surrounding circumstances

When considering the surrounding circumstances under s 3AAA of the Bail Act in the context of determining bail, the bail decision-maker must take into account, if relevant, several new factors in addition to those already listed in the section, being:

  • whether, if the accused is found guilty, it is likely they would be sentenced to a term of imprisonment and, if so, that the time they would spend on remand if bail is refused would exceed the term of imprisonment;
  • whether the accused was on remand for another offence or was at large awaiting sentence for another offence; and
  • any special vulnerability of the accused, including being an Aboriginal person, being a child, experiencing ill health including mental illness, or having a disability.

Aboriginal people

Section 3A of the Bail Act provides a list of non-exhaustive considerations that must be taken into account when making a bail determination concerning an Aboriginal person. The section has been amended to give greater guidance to bail decision-makers, who will now be required to consider:

  • systemic factors that have resulted, and continue to result in the over-representation of Aboriginal people in the criminal justice system and remand population, and the increased risks of Aboriginal people in custody;
  • personal circumstances that may make an Aboriginal person particularly vulnerable in custody, may be a causal factor for offending behaviour, or may be disrupted by being remanded -such as disability, trauma, family violence, involvement with child protection, housing insecurity, and caring responsibilities;
  • the importance of maintaining protective factors that play a significant role in rehabilitation, such as connection to culture, kinship, family, Elders, country and community; and
  • any other cultural obligations.

Children

These bail amendments update the child-specific considerations in the Act limit the applicability of the step 1 exceptional circumstances test and the step 1 compelling reason test to children charged with a small number of very serious offences, or with a record or risk of terrorist activities. In addition to the current considerations in s 3B of the Bail Act, bail decision-makers will need consider the need to impose on the child the minimum intervention required in the circumstances, with remand of the child being a last resort

Review

A new s 32C of the Bail Act provides that the Attorney-General must conduct a review of the operation of these bail amendments no later than 2 years after their commencement.

Publication updates

The By Lawyers Criminal Magistrates’ Court guide has been updated accordingly.

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.

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.

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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