ByLawyers News and Updates

Family violence – WA

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From 6 August 2020 some provisions of the Family Violence Legislation Reform Act 2020 commence, amending the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

Family violence – Bail considerations

The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a family relationship with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.

There are additional provisions relating to the interaction of bail conditions and restraining orders.

Family violence – Restraining orders

Sections 3 to 6A of the Restraining Orders Act define all relevant terms used in the Act, including what constitutes ‘family violence’.

Some of the amendments deal with the conduct of family violence proceedings.

The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.

At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.

Victims of family violence may have one or more support person with them when they give evidence.

The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly.

Further provisions of the amending Act will commence in October 2020. By Lawyers guides will be further updated when those amendments commence.

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.

Circumstances of aggravation – Traffic offences – WA

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Amendments to s 49AB of the Road Traffic Act 1974 (WA) have commenced, providing for new circumstances of aggravation which have the effect of doubling the maximum penalty for the offence of dangerous driving causing death from 10 years to 20 years imprisonment.

The new circumstances of aggravation now in s 49AB(1) of the Act include:

  • Excessive speed
    Circumstances of aggravation include driving more than 30 kph over the applicable speed limit. Previously, the section provided for 45 kph over, but the threshold has been lowered by the amendments.
  • No authority to drive
    Circumstances of aggravation include the driver having ‘no authority to drive’. This includes the driver having never held a licence, having an expired licence, having been refused a licence, or being at the time of the offence disqualified from holding or obtaining a licence. The provision extends to any Australian licence, not just WA.
  • Failure to comply with conditions of an extraordinary licence
    Circumstances of aggravation include where the driver holds an extraordinary licence but at the time of the offence is driving in contravention of the requirements or conditions of the extraordinary licence, for example, where the driver is authorised to drive a car but at the time of the offence is riding a motorcycle.
  • Failure to comply with alcohol interlock scheme
    Circumstances of aggravation include the driver being required to drive a vehicle fitted with an alcohol interlock device but at the time of the offence driving a vehicle without such a device, not having the required authorisation to drive, or driving in breach of the alcohol interlock condition of an authorisation to drive.

The By Lawyers Traffic Offences – Magistrates Court (WA) guide has been updated accordingly.

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.

WA Criminal – Costs determination

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For costs applications by a successful accused at the conclusion of criminal proceedings in WA Magistrates Court, the amount of any award of costs may be determined in accordance with the relevant determination made under the Legal Profession Act 2008 for the purposes of the Official Prosecutions (Accused’s Costs) Act 1973 and in accordance with s 280 Legal Profession Act 2008 and s 67(3) Criminal Procedure Act 2004.

A link to the current costs determination produced by the Legal Costs Committee in accordance with s 278 of the Legal Profession Act 2008 has been added to the By Lawyers Criminal  commentary.

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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