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.

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 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 after conviction – NSW

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Bail after conviction must now be refused for offences where the accused will receive full time imprisonment, unless special or exceptional circumstances exist.

The Bail Amendment Act 2022 (NSW) commenced on 27 June. It adds a new s 22B to the Bail Act 2013.

The new section provides that on an application for bail after conviction of an accused person, before they are sentenced for an offence for which they will receive full-time custody, the court must refuse bail unless the accused can establish special or exceptional circumstances exist to justify the decision to grant or dispense with bail.

The same applies to a detention application brought by the prosecution in the Supreme Court under Section 40 of the Bail Act.

However, if the offence of which the accused person has been convicted is a show cause offence, the requirement for the accused person to establish special or exceptional circumstances to justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why their detention is not justified.

The Bail section of the By Lawyers Criminal – Local Court NSW commentary has been updated accordingly.

Apprehended violence legislation – NSW

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Apprehended violence legislation in NSW has been further amended.

Amending legislation

Further provisions of the Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 27 March 2021.

Duration of ADVOs

Where a defendant is sentenced to a term of imprisonment which is to be served in a correctional centre, the apprehended violence legislation now requires the court to specify that any related apprehended violence order (ADVO) will be in force for a period of two years longer than the sentence imposed. That does not apply if the court otherwise orders, or if the offender is under 18 years of age.  The term of imprisonment refers to the full sentence imposed by the court, including non-parole and parole periods. The additional two years is calculated with reference to the total sentence imposed by the court at the time that the ADVO is made.

Harming animals

The apprehended violence legislation has also been amended in relation to harming, or threatening to harm, animals belonging to or in the possession of a protected person.

Conduct that causes a reasonable apprehension of harm to animals belonging to or in the possession of the protected person is now within the definition of ‘intimidation’.

A person who engages in that conduct is guilty of an offence that carries a maximum penalty of five years imprisonment or 50 penalty units or both.

The change to the definition of ‘intimidation’ means that harm to animals belonging to or in the possession of the protected person is now included in the mandatory prohibition in every AVO which prohibits damage or destroying property. This amendment was based on evidence that threatening, injuring or killing family pets is a tactic used to control and coerce partners or other family members in the context of domestic violence.

New standard order

There is a consequential amendment under the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021, which also commenced on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by or in the possession of the person in need of protection under an order.

By Lawyers Apprehended violence orders (NSW) publication has been updated accordingly.

Mental health provisions – NSW

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Mental health provisions in the criminal courts have had their first substantive overhaul in 30 years. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 27 March 2021. Division 2, Part 2 of the new Act applies to criminal offences in the Local Court.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 replaces the Mental Health (Forensic Provisions) Act 1990, including what were previously known as ‘section 32 applications’. This re-set of mental health provisions in the criminal context provides a diversionary scheme for people with mental health and cognitive impairment issues who are charged with offences that may be dealt with summarily.

Under s 12 of the Act, if it appears to a magistrate that a defendant has, or had at the time of the commission of the offence, a mental health impairment or a cognitive impairment, or both, then the magistrate can make an order under s 14 to dismiss the charge either conditionally or unconditionally. The magistrate may also adjourn the proceedings under s 13 for assessment or diagnosis, preparation of a treatment plan or to identify a responsible person for the purpose of making an order.

The main changes from the existing law – apart from the new section numbers – are:

  • ‘mental health impairment’ is now defined’;
  • the existing definition of ‘cognitive impairment’ is slightly amended;
  • the new Act sets out what the magistrate can consider when deciding whether to make an order, although the court retains ultimate discretion; and
  • magistrates can now re-call people who are discharged on conditions under the Act, which they fail to comply with, for a period of 12 rather than 6 months.

These changes should see more people with mental health or cognitive impairments successfully diverted from the criminal justice system.

The By Lawyers Criminal Law publication has been updated accordingly. The existing commentary on section 32 applications has been moved to an Appendix at the end of the commentary, as the previous legislation continues to apply to matters which were already on foot before 27 March 2021.

 

Duration of orders – ADVOs – NSW

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The duration of orders for apprehended domestic violence (ADVOs) provided for in the Crimes (Domestic and Personal Violence) Act 2007 has been amended.

From 28 March 2020 the default duration of orders increases to 2 years for adult defendants. It remains 12 months for a defendant who was under 18 years of age at the time the application was first made.

Longer periods can apply if the court considers it necessary. Final orders can be for any period, including an indefinite period.

Unless the court specifies a different period, an order remains in force for the default period under s 79A of the Act. The parties can agree on a different period and the court can make such an order by consent.

Section 79A also sets out the matters to which the court is to have regard when deciding on the period of an order.

See Duration of orders in the commentary in the By Lawyers Apprehended Violence Order guide, within the NSW Criminal – Local Court publication, for further detail.

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.

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.

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