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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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.

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.

Access to criminal case information – WA

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There is now a greater public right of access to criminal case information in the WA Magistrates Court. Practitioners acting for accused persons in the WA Magistrates Court should be aware – and, where appropriate, advise their clients – that an amendment to the Magistrates Court (General) Rules 2005 (new rule 40) now allows any person to request from the court the following information relating to a particular case:

  1. the charge;
  2. any conviction or order made in respect of the charge; and
  3. any penalty imposed on the accused in relation to the charge.

However, this rule is expressly subject to the non-publication provisions of s 171 of the Criminal Procedure Act 2004. In appropriate circumstances, consideration should be given to seeking a non-publication order under s 171(4) to avoid the effect of this rule.

Also, this rule does not allow anyone to generally access the accused’s criminal history other than the outcome of the specific case.

The commentary in the By Lawyers Criminal Magistrates Court (WA) guide has been updated accordingly.

Apprehended violence orders amendments- NSW

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On 1 December 2018 a number of provisions strengthening apprehended violence orders in NSW commenced:

  1. a new ‘without consent’ version of the s 37 Crimes Act 1900 offence of choking, suffocation and strangulation, created specifically for the domestic violence context by the Crimes Legislation Amendment Act 2018;
  2. provisions in the Crimes (Domestic and Personal Violence) Amendment Act 2018 making it clear that stalking and intimidation can be by internet or other such electronic means;
  3. new Crimes Legislation Amendment (Victims) Act 2018 provisions providing that proceedings for apprehended violence orders will be held in a closed court if they involve any person under the age of 18 years, with such persons entitled to have a support person present.

The By Lawyers Apprehended Violence Orders (NSW) guide has been updated accordingly.

Further, commencing 17 December, certain provisions of the Justice Legislation Amendment Act (No 3) 2018 mean that an apprehended domestic violence order can be made against a paid carer for the protection of a dependant, but not against a dependant for the protection of the paid carer.

There are also amendments pending proclamation in the Crimes Legislation Amendment Act 2018 which change the default duration of apprehended domestic violence orders.

The By Lawyers Apprehended Violence Orders (NSW) guide will be updated when these further amending provisions commence.

Criminal procedure NSW

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Mandatory pre-trial disclosure has been introduced into Division 3 of Part 3 of the Criminal Procedure Act 1986, which now requires mandatory pre-trial disclosure for both the prosecution and the accused. The provisions are set out at ss 142 – 144 of the Act.

These provisions only apply after an indictment has been presented or filed in proceedings: s 141. As this only occurs after the matter is transferred from the Local Court to the District or
Supreme courts, mandatory pre-trial disclosure does not apply to summary matters, or to indictable matters which proceed summarily – that is, matters that remain in the Local Court.

If the matter is committed to a higher court on the basis of a plea of not guilty, the mandatory pre-trial disclosure provisions will need to be considered and complied with. The accused’s obligation is to provide:

(a)  the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial,

(b)  the nature of the accused person’s defence, including particular defences to be relied on,

(c)  the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue,

(d)  points of law which the accused person intends to raise,

(e)  notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 in relation to each of the following:

(i)  a statement of a witness that the prosecutor proposes to adduce at the trial,

(ii)  a summary of evidence that the prosecutor proposes to adduce at the trial,

(f)  a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given,

(g)  a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment),

(h)  if any expert witness is proposed to be called at the trial by the accused person, a copy of each report by that witness that is relevant to the case and on which the accused person intends to rely,

(i)  notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,

(j)  notice of any significant issue that the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges,

(k)  if the prosecutor disclosed an intention to adduce at the trial any audio or visual recording or the transcript of any audio or visual recording:

(i)  any request that the accused person has that the recording or transcript be edited (other than in circumstances to which subsection (2) (d) relates), and

(ii)  particulars sufficient to clearly identify the edits that the accused person requests.

As pre-trial disclosure relates only to trial matters in the superior courts, it is substantively outside of the scope of the By Lawyers Criminal Local Court guide. However because the provisions may be relevant to the overall strategic approach for a successful defence of indictable charges, a note has been added to the commentary alerting practitioners to these requirements.

Victim Reviews – Magistrates Court Criminal – WA

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The commentary in the By Lawyers WA Magistrates Court – Criminal Guide has been amended to ensure that practitioners acting for clients who are charged with sexual and violent offences are aware of the Director of Public Prosecutions’ new Policy and Guidelines for Victims of Crime 2018. These provide for Victim Reviews – a formal process for a victim of crime to complain and seek a review about any decision by the DPP which ‘significantly alters the prosecution case in relation to which they are the victim’.

That would, for example, include an agreement by the prosecution to withdraw a charge and/or proceed with a lesser charge.

There is a corresponding requirement under the policy for State Prosecutors to seek an adjournment of the matter for 7 days, where necessary and practicable, for such a review to be conducted – if a review is requested. Victims can waive their right to a review. In some instances, where a trial is pending for example, an adjournment for 7 days will not be possible and prosecutors are expected to use their discretion when seeking adjournments.

Whether any adjournment is granted will always be matter for the Court, in the context of the particular matter, but it is likely that such adjournments will usually be granted by the Court if reasonably possible.

It is, of course, preferable that discussions about plea resolutions between defence lawyers and prosecutors occur with sufficient time for the adjournment not to be necessary, but there will always be some instances where an agreement is reached at, or within 7 days of, an interlocutory appearance – such as the Disclosure Committal – resulting in the need for an adjournment.

Where victim reviews are required, clients will need to be warned that any plea ‘deal’ is not guaranteed until the review is conducted and the matter returns to court after the adjournment.

New publication – WA Criminal Magistrates Court

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We are pleased to announce the release of another comprehensive step-by-step guide for Western Australian practitioners, being Criminal Magistrates Court WA .

This publication covers all aspects of criminal practice and procedure, for both simple and indictable offences, when acting for the defendant in criminal proceedings in the Magistrates Court.

The guide assists practitioners with all aspects of conducting a criminal matter from arrest and bail, or a first appointment in the office, through to hearing and/or sentencing, including avenues of appeal and possible costs applications. The commentary is practical and easy to understand, with numerous helpful precedents and all current Magistrates Court forms included.

Key content includes:

  • Law and procedures relating to arrest and bail, including the right to silence, the record of interview and practical tips for lawyers attending at the police station. Retainer instructions, including for a bail application, are included on the matter plan.
  • Practical guidance in preparing for court, with detailed commentary on analysing the charge and conducting plea negotiations. Precedent letters to the Crown are included on the matter plan for this purpose, as well as an instruction sheet for a plea and mitigation.
  • Procedures involved when attending court for both simple and indictable matters, pre-sentence reports and conducting the plea.
  • Preparing for hearing when a plea of not guilty has been entered.
  • Sentencing options and procedure for guilty pleas in the Magistrates Court.
  • Client mental health considerations, with a letter instruction to a psychiatrist or psychologist.
  • Example written submissions on sentence are included on the matter plan.
  • Information on appeal rights.

This guide is a valuable tool for all practitioners who appear in the Magistrates Court, especially those with limited experience in criminal work, or those supervising younger lawyers.

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