ByLawyers News and Updates

Commonwealth offences – All states

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Commentary on Commonwealth offences dealt with in state magistrates’ courts has been added to all By Lawyers Criminal Guides.

This new commentary and additional precedents will assist practitioners 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 helpful 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 have been enhanced to include Commonwealth offences.

The new content can be found in the IF REQUIRED – COMMONWEALTH OFFENCES folder on the matter plan in every By Lawyers Criminal law guide.

 

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 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.

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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