ByLawyers News and Updates

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.

 

 

Magistrates’ Court appearances – VIC

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All Magistrates’ Court appearances and counter services from 12 September 2022 will be subject to the arrangements set out in Practice Direction No 6 of 2022.

The practice direction applies to both criminal and civil matters, including intervention orders and specialist courts and programs.

COVID recovery arrangements made permanent

Essentially the temporary COVID recovery arrangements previously in place under Practice Direction No. 3 of 2022 have been made permanent, with that practice direction revoked.

In general, remote appearances by clients and practitioners are available, encouraged, and in some cases required. However, physical appearances are also possible, mainly by request, and in some cases they are required.

The new practice direction sets out detailed arrangements for all types of Magistrates’ Court appearances, including:

Criminal matters

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • specialist courts and programs;

Intervention Orders

  • applications;
  • hearings;

Civil matters

  • applications, directions hearings, pre-hearing conferences, early neutral evaluations and judicial resolution conferences are all to be conducted online, unless otherwise directed by the Court;
  • final hearings may be online or in person at the court’s direction.

For online appearances it is the practitioner’s responsibility to ensure that they and their client are able to join the online hearing with audio visual capability.

Magistrates’ Court publication updates

The following By Lawyers Victorian publications have been updated accordingly:

  • Magistrates’ Court – Criminal
  • Magistrates’ Court – Traffic offences
  • Intervention orders
  • Magistrates’ Court Civil – Acting for the plaintiff
  • Magistrates’ Court Civil – Acting for the Defendant
  • Dealing with COVID-19 legal issues

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.

Disclosure certificates – VIC

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A requirement for prosecution Disclosure certificates has been introduced for criminal matters.

The new s 41A of the Criminal Procedure Act 2009 requires the informant, or any other officer who prepared a full brief, to complete a Disclosure certificate and file it with the registry within 7 days of the brief being served. This certificate must be provided to the DPP, if they are conducting the matter, and served on the defence.

Disclosure certificates are required to set out anything that is not included in the full brief because it is subject to a claim for privilege, public interest immunity or other statutory immunity or restriction, and the nature of any such claim.

Sections 41-48 of the Criminal Procedure Act set out the ongoing disclosure requirements on the prosecution. The informant, usually a police officer, also has a general and ongoing duty of disclosure to the Director of Public Prosecutions where that office is conducting the prosecution. The informant must provide to the DPP any information, document or thing that is in the possession of, or known by, the informant that is relevant to the alleged offence, subject to any claims for statutory privilege or public interest immunity: s 415A Criminal Procedure Act 2009.

Disclosure certificates apply also to matters in the indictable stream that proceed by way of a hand-up brief.

The commentary in the By Lawyers Criminal – Magistrates’ Court (VIC) publication has been updated accordingly.

See the By Lawyers  101 Subpoena Answers publication for information about public interest immunity, statutory immunity, and other statutory restrictions.

COVID Recovery – VIC

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Practice Direction No. 3 of 2022 – COVID recovery currently applies to all types of matters in the Magistrates’ Court of Victoria. It overrides any other directions to the extent of any inconsistency.

In general, remote appearances by clients and practitioners are available, encouraged, and in some cases required. However, physical appearances are also possible, mainly by request, and in some cases required.

The practice direction sets out detailed special arrangements for all types of appearances, including:

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • Specialist courts and programs;
  • intervention orders – applications and hearings;
  • civil hearings including oral examinations;
  • counter services.

In some instances it is necessary for practitioners to email the court and request permission to make a physical appearance in a matter.

The By Lawyers commentaries in all publications involving the Magistrates’ Court have been updated with a link to the practice direction.

  • Magistrates’ Court – Criminal
  • Intervention Orders
  • Traffic Offences
  • Magistrates’ Court Civil – Act for the plaintiff
  • Magistrates’ Court Civil – Act for the defendant
  • Enforcement

These COVID recovery arrangements under the practice direction continue indefinitely at this stage.

Criminal Magistrates’ Court – VIC

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The By Lawyers Criminal Magistrates’ Court publication has been reviewed and enhanced. Improvements following from this review include:

  • The matter plan and commentary have been revised and re-ordered to better reflect the flow of the criminal Magistrates’ Court processes.
  • New and amended commentary headings for improved searchability.
  • The summary of the 2018 bail reforms has been incorporated into the general commentary as those provisions are now entrenched.
  • The commentary on taking instructions in criminal matters has been expanded.
  • The commentary on the preliminary issues which may require practitioners’ attention before the first court appearance, or before a plea is entered, has been enhanced.
  • Commencement of charges is now dealt with in more detail, including notices to appear and the consequently different process which applies compared to a charge and summons, or a warrant.
  • The importance of identifying whether the charge is summary or indictable has been highlighted and discussion of the different processes which apply to each stream has been enhanced.
  • Discussion of the process for charges in the indictable stream has been augmented with new headings added, including the Filing hearing, The hand-up brief, Committal mention, Applying for summary jurisdiction, Pleading guilty at the committal mention and Listing a committal hearing.

Practitioners are reminded that the Criminal Magistrates’ Court publication now also includes the By Lawyers guide to Commonwealth Offences, which covers all aspects of dealing with Commonwealth offences in state courts.

This review is part of the continuing commitment of By Lawyers to updating and enhancing our publications to help our subscribers enjoy practice more.

Discounts for guilty pleas – SA

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Provisions relating to discounts for guilty pleas have changed from 2 November, including for matters on foot as at that date.

The By Lawyers Magistrates Court – Criminal SA commentary has been amended accordingly. See particularly the section on Discounts on sentence for early pleas of guilty.

Section 39 of the Sentencing Act 2017 for summary and minor indictable offences treated summarily, and s 40 for other offences, provides that when passing sentence the court must take into account the fact that the offender pleaded guilty and when the offender pleaded guilty. The court can reduce the sentence it would have otherwise imposed up to certain percentages depending upon when the plea is entered.

Section 39(4) and s 40(5) Sentencing Act 2017 set out the considerations to which the court must have regard when determining an appropriate discount, including where the defendant is charged with or has pleaded guilty to more than one offence. Practitioners should note that some of those considerations now only apply to guilty pleas entered on or after 2 November 2020.

Specific percentage discounts for pleas of guilty are provided in the legislation for defendants pleading guilty to all types of offences in the Magistrates Court. To be eligible for the maximum reduction of the sentence that the court would otherwise have imposed, the defendant must enter the plea of guilty within four weeks of the first appearance.

In all cases, the considerations under s 39(4) and s 40(5) Sentencing Act 2017 include when the defendant first indicated an intention to plead guilty – it is therefore important, if seeking the maximum discount to indicate a likely plea of guilty to the court as soon as the instructions are to that effect, preferably on the first appearance, even if the actual plea cannot be entered until a later date due, for example, to negotiations over the facts.

Guide to Commonwealth offences – All states

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A new Guide to Commonwealth offences dealt with in state magistrates’ courts has been added to all By Lawyers Criminal publications.

This helpful new commentary and additional precedents will assist practitioners in advising and representing clients charged with offences under the Crimes Act 1914 (Cth) and the Commonwealth Criminal Code.

The new commentary sets out the procedure for summary and indictable Commonwealth charges in state courts, from bail considerations to sentencing.

The possible sentencing options are covered in detail and there is a very useful table of the Commonwealth offences most frequently encountered in state magistrates’ courts.

New precedents include:

  • Example written submissions in support of an application for discharge of an offender without proceeding to conviction; and
  • Letter to client after sentence – providing for various outcomes.

All existing Retainer Instructions for criminal and bail matters in the respective state Criminal Guides have been enhanced to include Commonwealth offences.

The new Guide to Commonwealth offences can be found in the Related Guides drop-down menu of the Legal Guides tab.

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