Intro Criminal Law
Intro Criminal Law
Intro Criminal Law
Third Edition
Table of contents
How to use this book About NSW Young Lawyers Introduction and acknowledgements Credits Foreword v vi vii viii ix
Part 1
Chapter 1: Overview and checklist of what to do on charge of a client
Introduction 1
3
Part 3
Tips on Local Court practice 39 Committals 49 Subpoenas: practice and procedure 65 Forensic procedures and DNA sampling
Chapter 9: a b
Principles
Practical Tips
Chapter 10: Applications for intellectually delayed and 105 mentally ill clients in the Local Court Chapter 11: Diversionary schemes for drug dependent offenders a b Drug Court of NSW 113 MERIT 121 123
129
Chapter 13: The criminal jurisdiction of the Childrens Court 131 Chapter 14: Young Offenders Act 1997 (NSW) 147 Chapter 15: Youth Drug and Alcohol Court Part 6
2
153
159
Chapter 16: Preparing Local Court defended hearings 161 Part 7 Sentencing
177
179
Chapter 18: Sentencing options in the Local Court 187 Chapter 19: Plea making in the Local Court Chapter 20: Plea making in PCA offences 201 Part 8 Ancillary and related orders and powers
219
195
Chapter 21: Apprehended Violence Orders Chapter 22: Ancillary orders and powers a Offenders contribution to victims compensation 229 b c d Asset forfeiture 232
221
Chapter 23: Costs in criminal law 253 Part 9 Options after conviction
259
261 271
Chapter 25: Appealing from the Local Court to the District Court
Chapter 26: Appeals to the Court of Criminal Appeal 275 Part 10 Getting assistance
281
Chapter 27: Briefing counsela practical guide Chapter 28: Contacts 287
283
About NSW Young Lawyers and the NSW Young Lawyers Criminal Law Committee
NSW Young Lawyers (http://www.younglawyers.com.au) is a professional organisation and division of the Law Society of New South Wales. It represents lawyers who are under 36 years of age or who have been admitted to practise for less than five years, and law students. All lawyers in New South Wales fitting this description are automatically members of NSW Young Lawyers (NSWYL). Some of the goals of NSWYL are: To further the interests and objectives of lawyers generally, and in particular, young lawyers in New South Wales; To stimulate the interest of and promote the participation of young lawyers in the activities of lawyers in general; To promote the benefit of the community and disadvantaged groups in general.
This book has been written by members of the NSWYL Criminal Law Committee. The Committee is made up of lawyers and law students who have an interest in criminal law. The Committee is involved in a wide variety of projects, such as writing law reform submissions, speaking to disadvantaged school students about their legal rights, and organising CLE seminars. New members are always welcome. For further information on the NSWYL Criminal Law Committee, visit our website (http://criminal.younglawyers.com.au) or contact: Poppy Drekis, NSWYL Executive Officer, on (02) 9926 0269 or at [email protected] or Lester Fernandez, Chair of the NSWYL Criminal Law Committee, at [email protected]
Lester Fernandez Chair NSW Young Lawyers Criminal Law Committee 20 November 2004
Credits
Managing editor and coordinator
Lester Fernandez
Editors
Annie Taylor and Simon Healy.
Chapter authors
Linda Barnes, Andrew Bide, Linda Black, Luke Brasch, Chris Brown, Lillian Chan, Angela Cook, Mr Nicholas Cowdery AM QC, Sarah Ellison, Lester Fernandez, Olga Guillen, Simon Healy, Haley McEwen, Te'res Sia, Soruban Siva, Rosemarie Slip and Audie Willert.
Contributors
Sam Adair, Linda Barnes, Emma Bayley, Sophia Beckett, Andrew Bide, Linda Black, Chris Brown, Andrew Charleston, Megan Chung, Patricia Collins, Anne Cregan, Juliana Creswell, Shane Cunningham, Mark Dennis, Stuart Devine, Kevin Dwyer, Lester Fernandez, Gideon Gee, Philip Gibson, Sheridan Goodwin, Matthew Greenaway, Elissa Gordon, Olga Guillen, Simon Healy, Tara Jain, Nerissa Keay, Emma Kruijer, Michael Lalji, Haley McEwan, Alfred Matalani, Vivianne Morkos, Nicole Murphy, Chris O'Brien, Sheila O'Connor, Laura Petherbridge, Benjamin Pierce, Amber Pittlik, Mark Rose, Te'res Sia, Soruban Siva, Rosemarie Slip, Jasmine Stanton, Annie Taylor, Noelle Tin, Peita Wallwork, Greg Walsh, Audie Willert and Kelly Woodhurst. Many thanks to all from the editors. Thanks and apologies to anyone who may have been inadvertently omitted.
Illustrations
Andrew Joyner www.andrewjoyner.com
Cover design
Greg Barlow, graphic designer, Law Society of NSW.
Foreword
This publication has become an indispensable guide for those first advising or representing suspects or accused persons, for those who do it infrequently and for those who wish to check that recent developments have not overtaken them by stealth. In shortit is a handy reference for every criminal law practitioner. It provides guidance to all stages of the proceedings from first attendance at the police station through to final appeal. The first edition was published in 2002 and the second in June 2003. Criminal law and procedures legislation, court practices, caselaw are constantly changing and for this edition all chapters have been updated and some completely rewritten. There are two new chapters: Tips on Local Court Criminal Practice; and Preparing a Local Court Defended Hearing. The first edition won the 2002 national Australian Young Lawyers Committee Award in the Professional Issues category. The second edition of this work was fully distributed in seven weeks and won the 2003 national Australian Young Lawyers Committee Award in the Professional Issues category. The standard of this edition is even higher. The New South Wales Young Lawyers are to be congratulated once again for the timely production of a valuable, practical reference book that should be on the shelves of and regularly consulted by all practitioners in the (sometimes bewildering and always exacting) criminal jurisdiction. N R Cowdery AM QC Director of Public Prosecutions, NSW Patron, NSW Young Lawyers, 2004
Part 1 Introduction
1
Overview and checklist of what to do on charge of a client
Introduction
This Chapter is a basic guide to things you should ensure you do when a client faces criminal charges. It does not set out every step you will need to take between when a client is charged and their case is finished. The criminal law is complex. The possibilities of what might happen are too numerous to list all options. In particular, this Chapter does not deal with District Court trials or sentences once a person has been committed up to the District Court (see steps 6 and 7 to determine whether your client will be committed).
Checklist
1. Get the Court Attendance Notice (CAN)1, facts sheet and (if available) criminal record from police, DPP or from client. Find outWhen is your clients next Court date? Check on the CAN. If the first CAN date has passed, the surest way of finding out the adjourned date is to ask the registry of the Court where the first date was listed. 3. Find outis your client in custody? a) Yes: i ii b) No: i ii Is your client subject to bail conditions? If so, get a copy of the bail agreement from the client, DPP, police or the court. Get instructions on whether your client has difficulty with, or wants to change, any bail conditions. If sothe principles in chapter 3 apply to applications to vary bail conditions, in the same way that they apply to applications for bail. Does your client want to apply for bail? If so, see chapter 3 on how to prepare and make a bail application. Find out whether your client is in custody for any other matters (e.g. bail refused on other charges or serving an existing gaol sentence).
2.
4.
Find outis your client an adult or a child (under 18 years of age when offence was allegedly committed)? a) b) Adultcontinue with step 5. Childgo directly to Part 5 (chapters 1315) of this book. Different procedures apply to child defendants. This checklist is written for adult defendants.
All defendants are now brought before the Court to face a criminal allegation by Court Attendance Notice (CAN). For simplicity, the term CAN is used interchangeably with charge in this chapter. 3
5.
Find outis your client brought before the Court by a warrant (as opposed to a fresh CAN)? a) Yes: i Check whether, at the time the warrant was issued, your client was convicted in his/her absence of the alleged offence. The surest way to do this is to seek from the court registry a copy of the actual warrant (not the CAN that purports to summarise it) to determine whether it is a warrant issued under s 25(2) of the Crimes (Sentencing Procedure) Act 1999.2 If so, you will need to take instructions on whether to make an application to annul the conviction. See chapter 24. If not, you will need to ensure that you obtain a copy of the original charge sheet and facts sheet from when your client was first brought before the court.3
ii iii b) 6.
Is the alleged offence against Commonwealth or State law4? a) Commonwealth: i ii Step 7 generally does not apply (it applies to State offences.) Find out whether the offence is being dealt with on indictment or summarily: iii Check with the prosecutor, or If the prosecutor is unavailablelook at the Act that creates the offence and ss 4G4J of the Crimes Act 1914 (Cth).
If being dealt with on indictmentask the court to order a brief of evidence. After that, the charge will be for committal and procedures are as described in step 7(d). If being dealt with summarilydiscuss with the prosecutor whether a brief will be served before a plea is entered. If the prosecutor does not agree to do so, take instructions and be prepared to enter a plea on behalf of your client. Then go to step 8. Go to step 7.
iv
b)
State: i
7.
Find outis the clients most serious5 charge summary, indictable that can be dealt with summarily, or strictly indictable? See chapter 4, which discusses in more detail how you find out, and the meaning of the distinction. a) Summary charge: i Check that the charge has been laid within time6.
An alternative way of checking is to seek access to the original Court bench papers from the Court date when your client did not attend and a warrant was issued. You should not trust that your clients criminal record (especially if produced by way of a non-fingerprinted bail report) will accurately reflect whether or not your client was convicted in his or her absence. Only a small minority of warrants are genuine first instance warrants, which are issued where the police have filed a CAN against a defendant who cannot be located (and there is no realistic alternative means of bringing the defendant to court): see s 181(2) of the Criminal Procedure Act 1986 (NSW). Unfortunately, the words first instance warrant are frequently written inaccurately on CANs, police bail reports and other documents in relation to cases where no first instance warrant has been issued. Only in the case of a genuine first instance warrant will your client not have had a previous court date.
4
3
The vast majority of charges you will deal with will be offences against State law. The most common categories of Commonwealth offences are social security fraud and prohibited drug importation.
Descending order of seriousness is: strictly indictable; Table 1; Table 2; and summary. The categorisation of where a charge falls in these 4 types of charge, not the maximum penalty for the offence, is what matters for this purpose.
ii iii b)
Take instructions and be in a position to enter a plea on behalf of the client. Go to step 8.
Table 2 charge (indictable that can be dealt with summarily unless the prosecution elects to take on indictment): i ii Check that police prosecutors are appearing in the matter7. If so: Take instructions and be in a position to enter a plea on behalf of the client. You have no right to see a brief of evidence before entering your plea. Go to step 8.
iii c)
If not, and the prosecution has electedprocedure is as for a strictly indictable charge, so go to step 8(d).
Table 1 charge (indictable that can be dealt with summarily unless the prosecution or defendant elects to take on indictment): i Ask the court to order a brief of evidenceyou have a right to see a brief of evidence before the charge proceeds further (unless the client specifically asks you to waive that right and the prosecution and court do not object). Once the brief of evidence has been servedconfirm with the prosecution that there is no election (and also no election on behalf of the defence)8. If there is no electiontake instructions on the brief and be in a position to enter a plea on behalf of the client. Go to step 8. If there is an electionprocedure is as for a strictly indictable charge, so go to step 7(d). Ask the court to order a brief of evidencethe charge cannot proceed further until the brief has been served. Once the brief of evidence has been servedtake instructions in preparation for committal. See chapter 6 for details on the law of committals and how to run a committal.
ii iii iv d)
8.
Is there any way of treating your client as a special case or diverting your client from the usual criminal process? a) Is your client mentally ill or developmentally delayed? i ii b) i ii Yessee chapter 10. Nogo to step 8(b). Yessee chapter 11. Nogo to step 8(c).
6 months from the date of the alleged offence, unless a different time is specified under the Act creating the offences 179 Criminal Procedure Act. Only a very small proportion of Table 2 offences are the subject of election. So it is not customary to ask the prosecution are you electing? where a clients most serious charge is a Table 2 offence. If police prosecutors are appearing, that is a clear enough indication that there is no election. See chapter 4 for more detail on when and how an election is made.
8 9
Clients are often understandably reluctant to admit drug use or addiction (for reasons that include: perceived unlikelihood of getting bail if it is admitted and fear of exposing themselves to further charges). Accordingly you may wish to make it clear to your client that there may be advantages to being honest about any drug use, before taking instructions on this point.
c)
Are there any other intervention programs available that may assist your client? i ii Yessee chapter 12. No10go to step 9.
In relation to all diversionary programs, be aware that there are limitations on which defendants are eligible for them (e.g. offences being dealt with on indictment cannot be dismissed under mental health legislation). See the individual chapters for details of all restrictions that apply. 9. Is there any possible advantage in negotiating with the prosecution? Think carefully about this step, because many cases are suitable for negotiation. Chapter 9 discusses the various forms that negotiation may take. a) b) 10. Yessee chapter 9. Nogo to step 10.
Is your client pleading guilty to a charge (or charges) being finalised in the Local Court? a) Yes: i ii See Part 7 (chapters 1720) in relation to sentencing options available and how to prepare for sentence. See chapters 21 and 22 in relation to ancillary orders the court may make on sentencing. If any of them apply or potentially apply, take instructions and (if necessary) prepare submissions on them. Go to step 11. Once the pleas of not guilty are entered, ask the court to order a brief if one has not already been served. See under the heading Service of the brief in summary matters in chapter 4. If you are not experienced at running Local Court hearings, you will need to seek assistance from an experienced practitioner in preparing for the hearing. See chapter 16 for some tips on running a Local Court hearing.
iii b) i
ii iii c)
No, because some or all charges are being committed up to the District Court (whether for trial or sentence): i ii Once the committal has happened, seek assistance from an experienced practitioner in preparing for the District Court trial or sentence. If a charge is going to trial, you will usually be briefing counsel. See chapter 25 for a guide on preparing a brief to counsel.
11.
After appearing for a client on a Local Court sentence: If you are of the view that the sentence was excessive, or your client instructs you to appeal: a) b) Lodge the District Court severity appeal or assist your client to do so (see chapter 25 for details of procedures and time limits); and See chapter 25 for advice on how to run a severity appeal.
10
Note that chapter 12 describes some, not all, intervention programs that may be available. Specific programs may be available in your area. Ask more experienced practitioners who practice at your court if you have any doubts.
11
2
The role of the lawyer at the police station
Introduction
It is impossible to provide a definitive guide to all the steps that should be taken when going to a police station for a client who has recently been arrested. Therefore, this chapter will refer to some general principles, but the advice to be given to a client will depend on the particular circumstances of each case. This chapter only deals with the situation where the client is an adult. Because of the Children (Criminal Proceedings) Act 1987 (NSW) and the Young Offenders Act 1997 (NSW), special considerations apply where juvenile offenders are concerned. These special considerations are referred to elsewhere in this book.
Part 10A Crimes Act 1900 (NSW) - provisions relating to detention after arrest
Before going to a police station or advising a client in custody, you should be thoroughly familiar with Part 10A Crimes Act 1900 (NSW), being the detention after arrest provisions. In general: There is no general power for police to arrest a person for the purpose of questioning. Therefore, unless police are exercising powers under Part 10A Crimes Act 1900, police must either charge your client or release him or her immediately. Police have an investigation period of four hours, which is subject to specific time out periods and may seek an extension of time from an authorised justice by virtue of a detention warrant. A 'time out' is a period in which the clock does not run in determining the maximum investigation period as defined in Part 10A.
Initial contact
When the client initially telephones you or a police officer from a police station, you should advise the client not to make any statement to the police until after you have arrived and conferred with him or her. You should try and speak to the officer in charge (OIC) of the investigation at this time and request that any further attempt to question the client about the offence be suspended until you arrive at the police station. This will probably lead to a time out pursuant to Part 10A. If someone else (such as a family member) contacts you, you should telephone the client at the police station and try to speak to the client. If you are not in a position to get to the police station, the police may allow you to speak to your client on the telephone. You can then discuss the matters set out below, although of necessity in a more limited form.
If arrested by virtue of a warrant, request a copy of the warrant and any associated documentation; and What the attitude to bail is likely to be (although the determination as to whether police bail will be granted will usually be made by a more senior officer at the station).
It will depend on the particular circumstances as to whether you speak to your client about the charges. If you do speak to your client about the allegations, you will also want to consider to what extent you speak about them. After getting the details suggested above, you should be in a position to advise your client about what steps they take from that point on.
On the other hand, on some occasions it may assist your client to make a statement to police. For example, your client may have a totally innocent explanation for the conduct under suspicion. Further, if you are present with your client at the time of their ERISP or identification parade, you will be able to monitor how these are performed and assist your client if there are problems. At this early stage of proceedings against your client you will not be fully apprised of the prosecution case. The cautious approach in these circumstances is to advise a client under arrest to remain silent, that is, not to participate in a record of interview and/or identification parade.
your client to defer making an ERISP or participating in a line-up until they have had the chance of getting more complete advice from you.
Forensic procedures
Forensic Procedures are discussed in detail in chapter 8 of this book. The police may seek an order of the Local Court or purport to exercise their power to take samples, photographs or other procedures pursuant to the Crimes (Forensic Procedures) Act 2000 (NSW).
Bail
If your client is to be charged, you should enquire with the OIC as to his or her attitude to bail. If the OIC indicates that he or she is opposed to bail, you can make submissions to the Bail Sergeant. You do this by asking to speak to the Bail Sergeant at the police station. When police are determining whether bail is appropriate, they are required to apply the provisions of the Bail Act 1978 (NSW) in the same way as a Court is.
Warning your client against speaking to police after formal processes have been completed
After the formal processes, the client should be warned not to make any further comments at all to police. Any further comments to the police may be taken by a Court as being outside of the scope of official questioning and may be potentially admissible at a hearing at trial (see Kelly v R [2004] HCA 12).
Follow up
Whether your client has been granted bail or remains in custody you should contact your client as soon as practicable. A Practitioners Guide to Criminal Law 13
3
Bail
Almost all applications for bail in New South Wales are governed by the provisions of the Bail Act 1978 (NSW). The one exception to this is in relation to terrorist offences, pursuant to s 15AA Crimes Act 1914 (Cth). Apart from this, the Bail Act applies to all proceedings involving bail, regardless of whether the offence for which an accused is charged is pursuant to State or Commonwealth legislation. This chapter discusses the main considerations that practitioners should be aware of when applying for bail for their clients. The provisions of the Bail Act are detailed. Usually, matters contained in the Bail Act relate to both the circumstances of the offence and to the circumstances of the offender. The following summary of the provisions of the Bail Act and the commentary in this chapter provides a broad overview of the law. It cannot replace your own thorough reading of the Bail Act. All references to sections in this chapter are references to sections in the Bail Act, unless otherwise specified.
Bail presumptions
There are five different categories of bail presumption. The particular presumption that applies will be determined by the type of offence, and certain circumstances of the accused. The table at the end of this chapter summarises the particular offences and circumstances that apply to each category of presumption.
Offences for which there is a right to release on bail for minor offences section 8
This presumption is for relatively minor offences. It does not create a right to unconditional bail. Offences that fall within this category do not often come before a court, as police will usually grant bail. It should be noted that there is no right to bail if there is a failure to appear before the court, pursuant to s 51.
Offences for which there is a presumption against bail sections 8A(2), 8B(2) and 8C(2)
Sections 8A(2), 8B(2) and 8C(2) provide that a person accused of an offence to which this section applies is not to be granted bail unless the accused can satisfy the authorised officer or court that bail should not be refused. When determining the question of bail for an offence where there is a presumption against bail, a court focuses less on the particular subjective features of the accused and more on the strength of the prosecution case. A Practitioners Guide to Criminal Law 17
Where there is a presumption against bail, the strength of the Crown case is the prime consideration and matters, such as the particular subjective features of an accused, and other matters common to bail applications are accorded less weight: Kissner (unreported, Supreme Court, 17 January 1992); R v Iskander (2001) 120 A Crim R 302; R v Khazal [2004] NSWSC 548.
Offences for which bail is to be granted in exceptional circumstances only sections 9C and 9D
This presumption applies to murder and where there is a prior conviction for serious personal violence offences. The strength of the Crown case seems to be the major factor bearing on whether or not exceptional circumstances have been established: see Jukes (unreported, Supreme Court of New South Wales, 29 September 2003); Memery v R [2000] VSC 495. Other cases which have interpreted exceptional circumstances include: DPP v Gillies (unreported, Supreme Court of New South Wales, 3 September 2004); R v Magrin [2004] NSWCA 354; R v Hantis [2004] NSWSC 153.
The offence
The circumstances of the offence; The strength of the evidence; The likely penalty upon conviction;
18
Chapter 3: Bail
Failures to appear
If the accused has any previous failures to appear on his/her criminal record, these should be explained if possible. If the accused has a lengthy criminal history with no failures to appear, this should also be highlighted. The willingness to report to police whilst on bail, and the availability of a surety who can deposit cash or other security, may assist a client who has previously failed to appear.
Availability of surety
The type of surety that an accused can offer the court will be very important in the decision to grant bail. A surety who can enter into an agreement and deposit security will always be more persuasive in the decision to grant bail than a surety who can enter into an agreement without security.
Section 36A states that these additional conditions can be imposed for persons who qualify for drug or alcohol assessment, treatment or rehabilitation (such as the MERIT program): That the accused agree to subject himself/herself to assessment for treatment or rehabilitation; and That the accused agree to participate in treatment or rehabilitation.
19
Tender any documents that are relevant to your client's application for bail. You tender documents by handing them to the court officer, who will hand them to the Magistrate. You should serve copies of these documents on the prosecution before court. The Magistrate reads these documents. The Magistrate will ask the Prosecutor what the prosecution's attitude to bail is. The Magistrate will then ask you to make your submissions on bail. The Magistrate then gives judgment in relation to bail.
Oral evidence is not usually called in bail applications in the Local Court.
If bail is refused
Adjournments
Section 25 provides that when bail is refused by a Justice who is not a Registrar, the maximum adjournment period is 3 clear days and then 48 hours on a second adjournment. The matter must then go before a Magistrate if a Magistrate is reasonably available to deal with the case. Where a Magistrate or Registrar has refused bail, the maximum adjournment period is 8 clear days except with the consent of the person. This maximum adjournment of 8 clear days when a Magistrate or Registrar has refused bail does not apply if: The accused consents to longer adjournment; The accused is already in custody for another offence; There are reasonable grounds for a longer adjournment; or The accused is likely to be in custody on another offence for longer than the proposed adjournment period.
20
Chapter 3: Bail
Tips on bail
You should have full instructions from your client before going ahead with a bail application. You can ask to see your client privately either at the police station or at the courthouse but do so at the earliest opportunity. Speaking with your client should be your first priority. Ensure that you have a copy of the charge/s, police facts and a print out of your clients criminal record. You can usually get these documents from the prosecutor. It is always preferable if you can come to some agreement with the prosecution in relation to your clients bail. Try to speak with the informant or prosecutor to ascertain what his/her attitude is to bail. Bail will not always be opposed. The prosecution may seek stringent conditions, including a surety. Although the prosecution's consent to bail does not mean that a Magistrate must grant bail, it is an important factor in favour of granting bail. Section 32(3) states that in hearing a bail application, the court is not bound by strict rules of evidence, and may take into account any evidence or information which the court considers credible or trustworthy in the circumstances. Be mindful that this means that hearsay evidence and opinion evidence may have greater weight in a bail application than in a substantive hearing, where that evidence may otherwise be inadmissible. A close analysis of your client's criminal record will always be necessary. This is particularly important in relation to the criterion of the likelihood of attendance at court and the protection and welfare of the community having regard to the likelihood of commission of further serious offences on bail. If your client has previously applied for bail in the Local Court and wishes to apply for bail again, most Magistrates require that you lodge an 'application for review of bail' with the Local Court registry. This is a form that you can obtain from a Local Court registry. If your client has previously applied for bail in the Local Court and wishes to apply for bail again, you should give notice to the prosecutor that this is the case. Be mindful that the civil standard of proof applies to bail (s 59). It is sufficient if a court, in making a decision in relation to bail, to be satisfied of any matter on the balance of probabilities. The Bail Act does not state who bears the onus of proving such matters, but presumably the onus falls on the party attempting to prove the particular fact in issue.
21
Presumption
Right to release on bail
The right to release does not apply if the person has any prior failure to appear or breach of bail (if this is the case, there is a presumption in favour of bail: s 9(1)(b) & 9(1A)). The right to release does not apply if the person stands convicted of the offence or is incapacitated or in need of physical protection.
s9
All offences, unless referred to elsewhere in the Bail Act. Bail Act s 51 Fail to appear on an offence which does not carry a penalty of imprisonment.
s9 s 9A s 9B
22
relates to s 233B of the Customs Act and where the offence relates to a prohibited drug that is more than twice the indictable quantity. Manslaughter.
and b
23
s 8A s 8B s 8C
Offences
Drug Misuse & Trafficking Actss 23(2), 24(2), 25(2) conspiracy to do above (s 26 Drug Misuse & Trafficking Act) aid, abet etc to do above (s 27 Drug Misuse & Trafficking Act) conspire, aid or abet etc to do above for equivalent laws outside NSW. Customs Act (Cth)ss 231(1), 233A, 233B where the offence relates to a commercial quantity of a prohibited drug. Criminal Code (Cth)Div 11 of Part 2.4 where offence relates to s 233B of the Customs Act and where the offence relates to a commercial quantity of a prohibited drug Crimes Actss 93G, 93GA, 93H(2), 93I(2) or 154D. Firearms Actss 51B, 51BB Firearms Act offences relating to a prohibited firearm or pistol: ss 7, 36, 50, 50A(2), 51(1A), 51(2A), 51A or 51D(2).
s 9C s 9D
Bail not to be granted unless exceptional circumstances justify the grant of bail
A person is a repeat offenderserious personal violence offences where: the person is charged with a serious personal violence offence and There is a prior conviction for serious personal violence offence(s). Serious personal violence offence(s) means offences under: Crimes Actss 19A, 24, 26, 27, 28, 29, 30, 33, 33A, Chapter 3: Bail
24
35(2), 37, 38, 39, 46, 47, 48, 61B, 61C, 61D, 61I, 61J, 61JA, 61K, 61M, 63, 65, 66A, 66B, 66C, 66EA, 66F, 67, 68, 71, 73, 78H, 78I, 78K, 78N, 80A, 85A, 86, 87, 90A, 91, 95, 96, 97, 98, 103, 110, 195(b), 196(b), 198 Crimes Actss 79, 106, 107, 109, 111, 112, 113, where the offence involves actual or threatened violence against a person. Attempts to do the above. An offence under the Commonwealth, State/Territory or another country that is similar to above.
25
4
Criminal procedure
The purpose of this chapter is to provide a general overview of the way in which the various types of offences proceed following charge. The Criminal Procedure Act 1986 (NSW) (CPA) contains provisions relevant to the administration of criminal matters in every jurisdiction in NSW. Practitioners must thoroughly familiarise themselves with the relevant chapters of the CPA. Some of the important parts of the CPA are: The distinction between summary and indictable offences (ss 5 and 6). The procedure for the progress to finality of summary matters and of indictable matters (see Chapter 4 and Chapter 3 of the CPA respectively). The summary disposal of indictable matters (Chapter 5 CPA).
Types of offences
Charges may be classified as being for offences in one of three categories: Summary offences; Indictable offences that may be dealt with summarily (that is, in the Local Court); or Strictly indictable offences (that is, in the District Court or Supreme Court).
The relevance of the different categories of offence and how they are dealt with differently are described further below.
31
Summary offences
Background
Summary offences are generally the less serious of offences. A summary offence is to be finalised before a Local Court constituted by a Magistrate sitting alone: s 7 CPA. Section 6 CPA provides that certain offences must be dealt with summarily, being: An offence required to be dealt with summarily under the CPA or any other Act; An offence described as a summary offence under the CPA or any other Act; An offence for which the maximum penalty available does not include imprisonment for two years or more (unless the offence is required to be dealt with on indictment under the CPA or any other Act);
Time limits apply to commencing proceedings for a summary offence. A charge in connection with a summary offence may only be made or laid within six months from the time when the matter arose (s 179 CPA), unless a different period is specified in the Act that creates the offence.
The date for service of the prosecution brief will be fixed by the Court and must be a date before the time fixed by the Court for the making of the election in respect of the offence (s 265(2) CPA). Under section 265(1) CPA, when an accused charged with a Table 1 offence first appears before a Local Court in respect of the offence the presiding Magistrate must: Address the accused in relation to their right to make an election and the consequences of not making an election; and Must give the person a written statement to this effect in accordance with Schedule 1 Criminal Procedure Regulation 2000.
The court will fix a date for the defence reply to the prosecution brief, which will be the same date that the defence must indicate whether it is making an election (s 263(1) CPA).
32
If the court is satisfied that special circumstances exist it may permit an election to be made after the original date fixed by the Court (s 263(2) CPA). An election cannot be made however after the commencement of the taking of evidence for the prosecution in the summary trial or the presentation of the facts relied upon by the prosecution in the case of a plea of guilty (s 263(3) CPA). Under s 264 CPA, once an election to have the charge dealt with on indictment has been made it may be withdrawn only in certain prescribed circumstances, which are as follows: In a case where a plea of not guilty has been enteredbefore the commencement of the taking of evidence at the committal hearing. In a case where a plea of guilty has been enteredbefore the offender is committed for sentence to the District Court. The maximum fine the Local Court can impose is 100 penalty units (s 267(3) CPA). A penalty unit is presently $110.00 (s 17 Crimes (Sentencing Procedure) Act 1999 (NSW)(CSPA)). The maximum gaol term that the Local Court can impose for an individual offence is two years imprisonment.
These limitations apply for all offences dealt with in the Local Court:
If the prosecution has decided to make an election to have the matter dealt with on indictment, you can make representations to the ODPP to have the election withdrawn. See Chapter 9 in relation to negotiating with the prosecution.
For these reasons, it is rare for an accused to elect to have matter(s) dealt with in the District Court if charged with Table 1 offence(s). A Practitioners Guide to Criminal Law 33
The scope of the definition of a brief of evidence for the purposes of s 183(2) CPA has been considered in DPP v Webb [2000] NSWSC 859.
34
prosecution must serve the brief of evidence upon an accused at least 14 days before the scheduled date of hearing (s 183(3) CPA). Local Court Practice Direction 2/2004 states (in summary) that: Where a plea of not guilty is entered in the Local Court the Magistrate will make an order for service of the prosecution brief by a specified date. The period allowed for service of the brief shall be not less than four weeks from the date of making the order. The matter is adjourned to a date 14 days after service of the prosecution brief. The defendant and/or legal representatives are to consider the evidence and the prosecution witnesses required for cross-examination. A date for hearing is not to be allocated until, on the return date after the period specified, the plea of not guilty is confirmed. At the further mention, if a plea of not guilty is maintained by the accused, a hearing date will be fixed.
Evidence not served in accordance with the legislation is inadmissible (s 188 CPA). The court has the power though to order that all or part of the brief not be served (s 187(1) CPA) or to adjourn the proceedings to allow the prosecution to comply with s 183 CPA (see s 187(4) CPA and DPP v West [2000] NSWCA 103).
Commonwealth offences
This chapter only describes procedures for offences against NSW state law. It does not describe procedures for Commonwealth offences. Describing Commonwealth criminal procedure in detail is beyond the scope of this chapter. However, there are two important points to bear in mind when dealing with Commonwealth offences: 1 Commonwealth charges are generally brought and finalised in state Local and District Courts. These Courts are given the power to deal with Commonwealth charges by crossvesting legislation. The same rules of bail apply as in the Bail Act 1978 (NSW). See Chapter 3 in relation to bail. Commonwealth charges are also divided into indictable and summary charges.
35
5
Tips on Local Court practice
The purpose of this chapter is to provide some practical tips on working in the Local Court. It is intended to address day-to-day problems that Local Court practitioners will be confronted with, where those problems may not be answered by referring to legislation.
A. Procedures
Matters that are listed in Local Court generally fall into one of three categories: criminal offences against New South Wales state laws; Commonwealth offences and breaches of Court orders. In both State and Commonwealth matters, the initial process you will follow is the same. You must obtain the charge and facts sheets before taking instructions. If your client has not given them to you, the appropriate prosecutor (police or solicitor from the Office of the DPP) will be able to provide you with a copy. The charges and facts sheets should be read through with your client so that you are clear that your client understands what is being alleged. Instructions should be obtained in relation to pleas. Often, your client will require legal advice before instructing you as to an appropriate plea, as they will not be aware of possible legal defences available. To avoid having your client tailor his or her instructions to your advice, you should take your clients instructions on the facts before advising your client what the appropriate plea is after applying the law to those facts.
Facts sheets that are prepared by the police (or occasionally the Office of the DPP) will have a large number of allegations of fact that provide background and context to the offence, but which are not essential elements of the offence. In the hypothetical example, the facts sheet might allege the following: a b c that your client looked around in a suspicious manner upon picking up the kettle that your client tucked the kettle into a greatcoat that s/he was wearing that when security staff approached your client and asked if s/he had anything belonging to the store, your client replied, Nothing.
On most occasions, a client who is pleading guilty will instruct you to admit that the allegations in the facts sheet are true. However, in the example given, your client might admit the offence but dispute that one or more of the above alleged facts, is true. You should explain to your client that if a plea of guilty is entered, a facts sheet must be handed up to the Magistrate to read. The question is what the facts sheet should say. If there are major discrepancies between your clients version of events and the prosecutions allegations, they should ideally be addressed prior to entering a plea. See chapter 9 on Negotiating with the 36 Chapter 4: Criminal procedure
prosecution, for guidance on the steps you should take when you are seeking to negotiate agreed facts on a guilty plea. If you do not have success in negotiating agreed facts, then your clients principal choices are either: to enter the guilty plea and put the issue of disputed facts before the Magistrate, who may direct that there be a disputed facts hearing at which witnesses are called, or to change your instructions and to formally admit to the court that the previously disputed facts are true.
When advising your client in this difficult situation, you must inform him or her that the benefit of between 10 and 25% discount given on sentencing for the utilitarian value of the plea of guilty, is primarily based upon the saving to the Court and the community of witnesses not needing to attend and give evidence. That benefit will mostly be lost if witnesses need to attend to give evidence. If your client takes the course of putting the issue before the Magistrate, then many Magistrates will ask to read the facts sheet and ask you to refer them to the disputed portion. Then, if the Magistrate forms the view that a finding one way or the other on the disputed issue will not change his or her mind about the appropriate sentence, then the sentencing can proceed regardless of the dispute. If your client makes the decision to admit the previously disputed facts, you should always get signed instructions on the course you are taking, including having the client sign the actual facts sheet that will be tendered. Sentencing need not immediately follow a plea of guilty. Short adjournments may be applied for if, for instance, you or your client need time to obtain character references or medical evidence.
The second scenario generally occurs because your client has committed a further offence during the period that the bond was current. If your client pleads guilty to the new offence or is found guilty after a hearing, he or she will usually be called up on the bond. The sentencing Magistrate may notice (of his or her own volition, or following prompting from the prosecution) that the new offence was committed in breach of a bond, and at the same time as imposing sentence for the new offence, direct that the offender be called up for breach of the bond. (If the new offence is sentenced in the District Court and the bond was imposed in the Local Court, or vice versa, the sentencing Judge or Magistrate will simply recommend that the original sentencing court call up the offender for breach of the bond.) When a person is alleged to have breached a good behaviour bond he or she generally will have to appear before the court that imposed the bond in the first instance. Some Magistrates will call the bond in from another court and adjourn the matter for that to occur. However, sometimes the Magistrate (or Judge) that imposed the bond has marked the court papers that the person must be brought before them if the bond is breached. Where this has occurred, the breach of bond proceeding will be adjourned to where that Magistrate or Judge is sitting, for determination. An alleged breach of a term of a bond can be admitted or not admitted by your client. If not admitted, then formally you can (and, depending on the facts of the case, should) demand that evidence be brought to prove the alleged breach. However, in practice, you should expect that most Magistrates will be reluctant to list the matter for formal hearing and will be inclined to accept what is in Probation & Parole Service reports (unless you can bring evidence that contradicts those reports). Section 98(2) of the Crimes A Practitioners Guide to Criminal Law 37
(Sentencing Procedure) Act 1999 (NSW) (CSPA) blandly refers to the court being satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, but does not prescribe any form of hearing in order for the court to reach that satisfaction. If admitted, arguments can be made to the court that no action should be taken on the breach: see s 98(2)(a) CSPA. The Magistrate has a broad discretion to take no action on the breach for any reason that he or she thinks proper. If the breach relates to a failure to comply with Probation and Parole requirements, then it will make a substantial difference if your client can take steps to remedy that breach before the breach proceedings are first listed in court. The Magistrate may also find the breach proved and impose further conditions upon the bond: see s 98(2)(b) CSPA. The Magistrate will usually only seriously consider this option if there is concrete evidence (such as a recommendation from Probation and Parole) that the further conditions will reduce the risk of another breach. If the Magistrate cannot be persuaded to take no action, or alternatively to add further conditions to the bond, the bond will be revoked and your client will need to be re-sentenced for the original offence in respect of which the bond was imposed: ss 98(2)(c) and 99 CSPA. If the bond breached was a section 9 or 10 bond, then any action taken on the breach is likely to involve a harsher penalty. This will not always be the case, however, if you can make good arguments about the cause for the breach or the subjective circumstances of your client. See chapter 19 on Plea making in Local Courtsmany of the principles in that chapter will be applicable to your submissions on resentencing.
The above subheading applies to all bonds, with particular focus on bonds imposed under ss 9 and 10 CSPA. This subheading refers to those rules that are unique to bonds entered into as a condition of a suspended sentence under s 12 CSPA. Sections 98 and 99 CSPA deal with the procedure for breach of a s 12 bond. See also chapter 18 on Sentencing options in the Local Court. You need to establish that the breach is trivial, or that there are good reasons to excuse the breach, in order to avoid the suspension order being revoked and the sentence taking effect. If satisfied that the breach has occurred, but not satisfied that the breach is trivial or should be excused, the Magistrate or Judge has no discretion and must revoke the bond: s 98(3) CSPA. This means that the suspension of the sentence ceases, and your client will be required to serve the sentence in gaol. Alternatively, if compelling arguments can be made to the Court, the magistrate may consider allowing your client to serve the sentence by way of periodic detention or home detention: see s 99(2) CSPA. If the Magistrate is prepared to consider these options, the matter will need to be adjourned for a pre-sentence report to be prepared stating whether your client is assessed as suitable for either option. See the previous subheading for details of procedure if your client denies the breach. Given the seriousness of the consequences if the breach is found proved and the bond revoked, you should insist that a formal hearing is held on the topic of whether the breach is made out, if your client denies the alleged breach.
Applications for revocation of community service orders (CSOs) also arise in Local Court criminal practice. The conditions of performance of CSOs, and the procedure for their revocation, are set out in Part 5 Division 1 (ss 107117) of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAoSA). Applications for revocation are made because a problem has arisen with your clients performance of the number of hours work he or she was obliged to perform under the CSO. Sometimes the CSO has been frustratedfor example, your client is in custody (and will remain there for the foreseeable future) or your client has suffered a permanent physical injury that makes him or her unsuitable for all duties. In these situations, there will be little alternative but to consent to revocation of the CSO. However, often an application for revocation will be made because it is alleged that your client has failed to attend work as directed on multiple occasions, or a conflict has arisen between your client and his or her Probation and Parole officer (for example, about the location, style or hours of work). In these situations, it is always in your clients interests to resolve the dispute or problem that has arisen with the Probation and Parole Service.
38
Firstly, you must obtain the application for revocation of CSO (which will have been served on your client). The application will contain brief particulars of the alleged breach. Take instructions from your client about whether, if it were possible, he or she would be prepared to return and complete the outstanding hours. If so, contact your clients supervising Probation and Parole officer before the court date, to discuss whether s/he is prepared to attempt to re-allocate more work to your client. If so, but if the CSO is due to expire shortly (see ss 107 and 110 CAoSA which define the length of a CSO), you can make a consent application to the court under s 114 CAoSA for the CSO to be extended. If your client is unwilling to return to complete the CSO, or the Probation and Parole Service is unwilling to allocate any more work, you will need to take instructions from your client as to whether he or she agrees with the breaches of the order alleged in the Application. If your client admits the work was not completed, but claims a reasonable excuse for the failure to complete the work, then the matter will have to be listed for a hearing as to whether the Magistrate is satisfied that your client has failed without reasonable excuse to comply with his or her obligations under the CSO: s 115(2) and (3) CAoSA. Remember that a failure to complete the number of hours within the duration of the CSO is deemed to be a failure to comply with the conditions of the CSO (s 115(6) CAoSA), and so the focus of any hearing will generally be whether your client has established a reasonable excuse for the failure. If the failure without reasonable excuse to comply the CSO is admitted or proved, your client will stand to be re-sentenced: s 115(3) CAoSA. Whichever course the matter takes, you are far more likely to achieve a positive result for your client if you have the relevant Probation and Parole officer on side.
Adjournments
Section 40 Criminal Procedure Act states that a court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so. In practice, adjournments of matters generally are very rare. Matters are almost always adjourned to a specified date. An adjournment may be required for many reasons, including (but not limited to) the following: 1. 2. 3. 4. To take full instructions (particularly if a brief of evidence has recently been served). For the court to order a pre-sentence report if your client has pleaded guilty (or been convicted) and the court is considering imposing a custodial sentence. For charge negotiation to occur. For your client to participate in MERIT or an intervention program (see chapters 11 and 12 on these programs).
A substantial number of your day-to-day court matters will require adjournments for various reasons. However, never adjourn a matter out of habit or because you have not thought through what to do with the matteralways have a purpose of the adjournment in mind.
39
Clients in custody
A large part of your practice will involve seeing clients in the Local Court cells who are in custody. Generally, those clients will be bail refused on the matter currently before the courta few clients will be in custody only in relation to other matters but bail granted in relation to your matter. You are an officer of the court and so are obliged to follow the order of matters dictated by the presiding Magistrate (if the Magistrate is inclined to determine the order in which matters are heard before him or her). However, within the parameters of your duty to the court, your clients in custody are your highest priority. They are deprived of their liberty while waiting for their matters to be determined; your clients on bail are not. For a client waiting for his or her matter to be heard, time waiting in the cells passes more slowly than time in gaol, due to the absence of any of the recreational and educational facilities that might be available at the gaol. Running a successful Local Court practice relies to a great extent on a good working relationship with the staff who run the Local Court cells (historically police, but in the modern age usually Department of Corrective Services staff). Having time to take full instructions from your clients in custody (while still providing a proper service to your clients at liberty and meeting court deadlines) will depend upon being able to get prompt access to those clients without substantial delays. Clients in custody should generally be seen by you first thing in the morning, and so far as you are able to influence the order in which the court hears matters, their cases should be heard first. This rule of thumb is particularly important where your client has been bail refused by the police, and is facing his or her first court appearance in the matter. When meeting a client in custody, you will normally be taking instructions in a divided meeting box with glass separating the two of you. This is a difficult environment in which to establish rapport with a client you are meeting for the first time. It can become particularly difficult if the client has any current drug dependence or psychiatric problems. Even if you are rushed, take time to establish that your client understands the basics: that you are his or her lawyer and what s/he tells you is confidential the reason why s/he is in the cells, i.e. what the charges are; and what will happen to the charges, both today and into the future.
Do not proceed with taking instructions if it becomes clear that your client does not properly understand English. Hold the matter in the list until an interpreter arrives. If you are not able to take full instructions without an interpreter, you risk putting an incomplete or inaccurate case to the court on your clients behalf. You should usually be notified in advance, either by police or by court cells staff, that an interpreter is required. See the Contacts chapter of this book for details of who to call if you need to arrange an interpreter yourself.
Video links
Video links are commonly used for clients who are bail refused and are attending a second or subsequent mention of their matter. The client remains at his or her gaol, and enters a video link room when his or her matter is being heard. Microphones, cameras and monitors at each end enable the court and the client to see and hear each other. At most courts, the prevailing view is that it does not matter whether the client consents to appear by video linkunless there is a particular reason why his or her attendance is required, most mentions (including bail applications) will be by video link. However, defended hearings should not be conducted by video link, and a sentencing matter would only ever be conducted by video link if you had clear and unequivocal instructions from your client that s/he wished to be sentenced in this way. Appearing for a client on video link makes it crucial that your client fully understands what is occurring. If your client is feeling alienated from, or confused by, the proceedings, there is nothing stopping him or her from making an outburst, and if that occurs there is no easy way for you to confidentially placate your client or explain the situation to him or her. All video link rooms in each gaol have telephone numbers (and facsimile numbers). The numbers should be readily available from the Local Court registry at which you practice, or alternatively contact the gaol switch and ask to be connected to the video link (or video bail) room. You must telephone and speak with your client before court, and explain exactly what is going to happen in the court appearance.
40
Otherwise, at best your client is likely to be confused about what is going on, and at worst you will be highly embarrassed in court.
1.
Court officers
Breach reports Copies of warrants Messages from clients left with the Court (reasons for non-attendance such as illness etc) Checking what pleas have been entered Advice as to the Magistrate's preference for the way the list is run.
2.
Court staff
Being told which court number your matters have moved to Finding and viewing court papers (including bail determinations) Getting matters re-listed Listing appeals, bail applications, s 4 Crimes (Local Courts Appeal and Review) Act applications and other applications made on behalf of a client.
3.
Prosecutors
Charge and facts sheets Criminal histories Copies of warrants Assistance with amending facts sheets Advice on procedure
Remember that in addition to gaining information from the prosecutor, that you should serve all material that you will be relying on in a plea of guilty, s 32 Mental Health (Criminal Procedure) Act application or a s 4 Crimes (Local Courts Appeal and Review) Act application, on the prosecutor.
4.
5.
41
6.
7.
8.
Other practitioners
Advice on court procedure Advice on the predilections and preferences of, and procedure adopted by, the presiding Magistrate Assistance on points of law.
42
6
Committals
Committal proceedings
A committal is the main process by which a matter is transferred from the Local Court or Children's Court to the District Court or the Supreme Court. A committal proceeding will take place where an offence is: A strictly indictable offence; or A Table 1 Offence (s 20 Criminal Procedure Act 1986 NSW (CPA)) where the prosecuting authority or the accused elects for the matter to be tried on indictment; or A Table 2 Offence (s 20 CPA) where the prosecuting authority elects for the matter to be tried on indictment.
This chapter focuses on the process of a committal proceeding from the perspective of the defence. The chapter outlines some of the considerations that practitioners should keep in mind when dealing with indictable matters while they are still in the Local Court or Children's Court. There are some particular considerations with respect to committals in the Childrens Court, and these are referred to at the end of the chapter. Otherwise, most of the same principles apply whether the committal takes place in the Local Court or in the Childrens Court. For convenience, the Local Court will be referred to throughout this chapter. As the majority of indictable matters are dealt with in the District Court, this chapter will refer to what happens when matters are committed to the District Court. The same principles apply for matters committed to the Supreme Court. All references in this chapter are references to sections in the CPA unless stated otherwise.
Foreshadowing what you believe to be the most likely outcome of the matter, will guide you as to what steps to take when the matter first comes before the Local Court.
49
In Grassby v The Queen (1989) 168 CLR 1 at 15, Dawson J (with whom Mason CJ, Brennan, Deane and Toohey JJ concurred) said: A committal hearing enables the person charged to hear the evidence against him, and to cross-examine the prosecution witnesses. It enables him to put forward his/her defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a Magistrate that a person should or should not stand trial has, in practice, considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued. The important role of committals in ensuring a fair trial was reinforced in R v Kennedy (1997) 94 A Crim R 341 at 352 where Hunt CJ at CL said that: [W]hat must be shown is that such evidence will serve the true purposes of committal proceedings, which exist in order to achieve a fair trial in the trial court.
50
Chapter 6: Committals
The Crown brief is tendered. As a plea of guilty is entered, the accused's criminal record is also usually tendered. The Magistrate will read the brief on sentence. If it is the case that the statement of facts accurately reflects what is contained in the brief (which it should), you can indicate to the Magistrate that this is the case and the Magistrate may then only need to read the statement of facts. The Magistrate will indicate whether the plea(s) of guilty is/are accepted. If the plea(s) of guilty is/are accepted the Magistrate will commit the matter(s) for sentence to the District Court. Usually, the date the Magistrate commits the matter to date in the District Court is a mention date and not the date for the actual sentencing. Bail is reviewed. If a person is on bail and is complying with that bail, bail to the District Court will ordinarily be allowed to continue. It is prudent to check with the DPP solicitor before the committal as to whether they intend to oppose bail being continued. You can seek a pre-sentence report for the sentence hearing in the District Court when the matter is committed for sentence.
In relation to the charges that the Crown seeks pleas of guilty to, it is important to note that not all the charges that a person was originally charged with may be committed for sentence. For example, charges may be withdrawn or may be put on a Form 1, or simply may not be proceeded with at all.
Paper committals
A paper committal occurs where no witnesses are called to give oral evidence. The Magistrate reads the brief and then makes a determination in relation to the tests under ss 62 and 64 CPA (see below). A paper committal can either be one with submissions on the brief, or with no submissions on the brief.
51
You will need to let your client know about these questions beforehand. You can assist your client in court with their answers. Ordinarily, the answer to each of these questions will be No, Your Honour'. Any submissions pursuant to s 64 CPA are made. If the Magistrate is satisfied that the test contained in s 64 is not met, the accused will be discharged. If the Magistrate is satisfied that the test contained in s 64 is met, he/she will commit the accused for trial to the District Court. A date will be given as the arraignment date (the date on which the indictment is to be presented). This date will usually not be later than one month from the date of committal (s 129 CPA). Copies of certain formal notices relating to legal representation and alibi evidence are given to the accused or to you. Bail is reviewed. If a person is on bail and is complying with that bail, bail to the District Court will ordinarily be allowed to continue. Again, it is prudent to check with the DPP solicitor beforehand as to the attitude towards bail once your client is committed from the Local Court.
If extensive submissions are to be made at committal stage, this would ordinarily not be done on a list day. This is because of the amount of time that will have to be spent on the matter. Therefore, on the court date prior to the committal, you should notify the Magistrate that the matter will take some time and that the Magistrate may then to set the matter down for a day other than a list day.
Waiver of committal
Section 68 CPA permits committal proceedings to be waived, if the Crown agrees. Section 68 CPA enables the committal procedure to be expedited. If the matter is one where no submissions are to be made and the brief seems to establish the Crown case, it may be worthwhile to waive the committal proceedings. In every case, though, the defence will have to consider whether there is any tactical advantage in waiving a committal over having a paper committal. When a committal is waived, the Magistrate does not make a determination on the brief of evidence, nor does the Magistrate ask any questions of the accused. The matter is simply committed for trial to the District Court. The DPP will usually seek that the brief of evidence is tendered even though the committal is waived, and there is little point in objecting to this. If committal proceedings are waived, a form called an 'Application to Waive Committal Hearing' is to be filled out and signed by the DPP solicitor and yourself. You can ask the DPP solicitor to prepare the form.
52
Chapter 6: Committals
It is generally preferable to have witnesses give evidence orally rather than have their statements tendered at the committal hearing as the evidence in chief. This is because it is likely that there will be inconsistencies between the written statement and the actual oral evidence. This may form the basis of cross-examination at committal or at trial. A Magistrate who orders a witness to give oral evidence at a committal hearing will normally only allow cross-examination in respect of the matters that are the basis for the giving of the direction to attend court to give evidence. This will be the case unless there are substantial reasons in the interest of justice why the witness is to be questioned about other matters (s 91(7) CPA). For this reason, it is important that the application for a contested committal clearly states all of the grounds/areas for cross-examination. If a witness does not attend court as directed for a committal hearing, that witness's statement is not admissible in the committal proceedings.
The definition of substantial reasons would encompass all of the considerations listed below which have been held to be special reasons. Some of the examples of substantial reasons given by the Attorney General in the Second Reading Speech on 26 September 1996 (in relation to the then relevant legislation) include:
53
If cross-examination would be likely to result in the discharge of the accused pursuant to ss 62 or 64 CPA. Where there is a likelihood that cross-examination would demonstrate grounds for a no bill application. Where it appears that cross-examination is likely to substantially undermine the credit of a significant witness. Where cross-examination of witnesses will avoid the accused being taken by surprise at trial.
54
Chapter 6: Committals
Unusual or atypical; Clearly distinguishable from the general run of cases; and must be Relevant to the interests of justice.
In this regard relevance to the interests of justice will involve a consideration of the interests of the accused and the interests of the complainant as well as other wider considerations of justice. In this context, it is relevant to consider: the strength or weakness of the prosecution case; whether there will be a real risk of an unfair trial should oral evidence not be permitted; the prospect of prejudice to the accused beyond the ordinary in such event; the real possibility that an accused may not have to stand trial if oral evidence is permitted; the existence of inconsistent statements by or different versions from a complainant or witness.
This is a useful checklist of material considerations for the Magistrate to be addressed in an application for a witness to attend court where special reasons in the interests of justice must be established.
55
Where a complete brief has not been served on either the prosecution or defence and the missing material is significant, for example, prior statements. Where the victim has retracted his/her statement or has given an inconsistent version (B v Gould, supra).
56
Chapter 6: Committals
If the s 91 application is contested or if s 93 (special reasons) applies, the application will be set down for hearing at the earliest available opportunity. In such cases, a copy of the brief is to be delivered to the court not less than two days prior to the s 91/s 93 hearing, or as otherwise directed by the court. Submissions in support of contested s 91 applications are to be in writing, served on the other parties and filed with the court at least seven days before the application is heard. If no application for a direction under s 91 is made, or a direction under s 91 is made by consent, the court will set a date for a committal for trial or sentence on the first available date in the court diary.
The Practice Note also sets out that Audio Visual Link (AVL) facilities are to be used after the initial appearance of the accused in custody, the accused who remains in custody must appear by AVL on the next occasion, unless the court otherwise directs. There is no requirement for the accused or his/her legal representative to consent to this course.
The unique regime established by s 31(3) Children (Criminal Proceedings) Act 1987 (NSW) can, in some instances, assist with the negotiations. This section allows a Magistrate to commit a child who is A Practitioners Guide to Criminal Law 57
appearing court on an indictable charge to the District Court in certain circumstances. If a serious childrens indictable offence is negotiated to a charge that can be dealt with in the Childrens Court, the DPP have the fall back position that if the court is of the view that the matter cannot be properly dealt with in the Childrens Court, the matter can be committed to the District Court. In all dealings with child clients, you must be familiar with the Representation Principles for Children that were adopted by the Law Society of New South Wales on behalf of the legal profession. Solicitors are bound by these Principles (see chapter 13). The sentencing principles as outlined in s 6 Children (Criminal Proceedings) Act 1987 (NSW) apply to all children whether they are before the Childrens Court, District Court or Supreme Court. The provisions of the United Nations Convention on the Rights of the Child should be considered. They are referred to in Prosecution Guideline 21. Of particular relevance are Articles 3.1 and 40.
Further reading
A detailed paper in relation to committal proceedings, their principles and application has been written by Mark Dennis, barrister.
58
Chapter 6: Committals
Application under Criminal Procedure Act s.91 for Witnesses to Attend and Give Evidence at Committal
The accused makes application under s.91 for the attendance at committal of Fairlie Unreliable, Detective Headlock, and Doctor Witchcraft.
Fairlie Unreliable
Fairlie Unreliable is an eyewitness to the alleged robbery. She attends Glenrowan police station the next day and provides a statement. She states that she is shown a single photograph (of the accused) by Detective Headlock who says to her This would be the bloke you saw wouldnt it? Unreliable then proceeds to identify the accused. It is apparent from the statement of Detective Headlock that at the time of speaking with Fairlie Unreliable the accused is in police custody. He is not offered the opportunity of an identification parade. Nor is Fairlie Unreliable shown an array of photographs. It is submitted that the identification evidence of Fairlie Unreliable is made contrary to the provisions s 114 Evidence Act and is therefore inadmissible. It is submitted that such exclusion would give the accused a real prospect of discharge at committal. It is submitted that such prospects establish special reasons and
59
is certainly sufficient to constitute substantial reasons under Section 91 see Studdert J in Hanna v Kearney [1998] NSWSC 227. Even if a trial judge established some initial basis for the admission of such evidence, it is submitted that the trial judge would exclude such evidence in the exercise of his or her discretion as the circumstances for the identification are such that it was unlawfully or improperly obtained. Further, the prejudicial effect of the evidence clearly outweighs its probative value. Substantial reasons are found in the need to cross examine the witness with an eye to discretionary exclusion by a trial judge: see Hidden J in Losurdo v DPP (1998) 101 A Crim R 162 at p.167 as affirmed on appeal in DPP v Losurdo (1998) 103 A Crim R 189. Even if the evidence were not to be excluded at trial, cross-examination of Fairlie Unreliable would substantially undermine the credibility of her identification evidence (and may influence the formulation of the warning given to the jury regarding her evidence pursuant to Evidence Act s.116). That crossexamination is likely to substantially undermine her credit is of itself is sufficient to constitute substantial reasons: see Hanna v Kearney [1998] NSWSC 227. It is further submitted that cross examination of Fairlie Unreliable, when taken together with the evidence and cross examination of other witnesses may demonstrate grounds for a no-bill application and thus substantial reasons should be found: see Hanna v Kearney (supra) at pp.6-7.
Detective Headlock
Headlock makes no reference in his statement to failing to show an array of photographs to Fairlie Unreliable. Headlock is responsible for compiling the array of photographs shown to the alleged victim Noah Idea. It is noted that the array contains only four photographs, and only one person of non-Anglo appearance (the accused) and only one person who is wearing a moustache (again the accused). It is submitted that substantial reasons are established for Detective Headlock to attend and give evidence at committal. Cross-examination of Headlock will have a substantial bearing on the credibility of Fairlie Unreliable as a witness: see Hanna v Kearney (supra). Further, the array of photographs is such that a trial judge may exclude the identification evidence of Noah Idea (assuming that it is held to be otherwise admissible) on discretionary grounds, as it is both improperly obtained (due to the inherent unfairness of the array) and its prejudicial effect outweighs its probative value see the NSW CCA decision in Blick (2000) 111 A Crim R 326. Cross examination of Headlock with an eye to such discretionary exclusion is sufficient to constitute substantial reasons: See Hidden J in Losurdo v DPP (1998) 101 A Crim R 162 as affirmed in DPP v Losurdo (1998) 103 A Crim R 189.
Doctor Witchcraft
Doctor Witchcraft sees the alleged victim Noah Idea at Glenrowan General Hospital shortly after Idea finishes giving his statement to police. Witchcraft is a psychiatrist. Witchcraft states that he observed bruising to the victim of recent origin and further states that having administered certain psychometric tests and personality assessments to Mr Idea I have no doubt whatsoever that Mr Idea was robbed in the main street of Glenrowan. Based on a sance and voodoo principles, tests indicate that the perpetrator is highly likely to be of East Asian descent and is probably left handed. The perpetrator would have low self esteem and probably came from a broken home. Objection is taken on behalf of the accused to the relevance of these opinions. Further, the accused seeks to cross-examine Doctor Witchcraft to ascertain the exact basis of his expertise and qualifications. Even if such opinions were held to be relevant and admissible, it is submitted that the accused should have the opportunity of cross-examining Doctor Witchcraft to ascertain an understanding of the basis upon which these opinions have been formed. In that regard the accused relies upon Studdert J in Hanna v Kearney (supra). Submitted for the information and assistance of the court. Counsel for the accused
60
Chapter 6: Committals
7
Subpoenas: practice and procedure
This chapter deals with issuing subpoenas in the Local Court, broadly outlining some of the most important aspects of the legislation and practice.
There is no substitute for going directly to the rules or the legislation. All references to legislation in this chapter are references to the Criminal Procedure Act, unless stated otherwise.
65
66
Chapter 7: Subpoenas
67
Generally, the party producing the documents named in the subpoena will have no objection to the documents being inspected and copied, and the Magistrate (or Registrar) will simply make the order for inspection and/or copying on the return date for the subpoena.
68
Chapter 7: Subpoenas
court extend the return date for as long as you need to pursue the named party. This means that a new date is given for the return date of the subpoena. If you are satisfied after further inquiries that the named party does not intend to comply with the subpoena, you would consider making application for a court to issue a warrant.
69
To a medical doctor
Schedule a) All medical reports, notes, files, treatment records and all other documents relating to attendances upon or treatment given to [name] (d.o.b.).
To a hospital
Schedule a) All admission reports, clinical notes, notes, files, medical reports, reports, treatment records, and discharge summaries relating to the examination, diagnosis and treatment of [name] (d.o.b.) across the period [date a][date b].
70
Chapter 7: Subpoenas
8
Forensic procedures and DNA sampling
The Crimes (Forensic Procedures) Act 2000 (NSW) (CFPA) establishes the legislative framework for the taking, testing, destruction and storage of forensic samples. It is important to have a working knowledge of the CFPA: When appearing for a client in an application for an order for forensic procedure; When considering the admissibility, relevance and the use of forensic material in a hearing or trial; and When advising a client both pre and post sentence who has been convicted of a serious indictable offence.
This chapter aims to provide a detailed discussion on each of the above points. Any reference to a section of legislation in this chapter is a reference to a section of the CFPA, unless otherwise specified. A person who is the subject of an application for an order for a forensic procedure (collection of a DNA sample) is referred to as the suspect.
A forensic procedure does not include any intrusion into a persons body cavities (except the mouth) or the taking of a sample for the sole purpose of establishing the identity of that person (s 3).
73
If a suspect cannot or does not consent to the taking of a forensic procedure, an order may be made by (s 23): A senior police officer in the case of a non-intimate forensic procedure on a person under arrest who is not a child or incapable person. An authorised justice in the case of an interim order. A Magistrate in the case of a final order.
make an application seeking an interim order authorising the carrying out of a forensic procedure that must be carried out without delay. An application for an interim order must be made: in person; or if not practicable, by fax; or if not practicable, by some other means.
However, if the application is not made in person, an authorised justice must not issue an interim order unless satisfied that: it is required urgently; and that it is not practicable for the application to be made in person.
If the application is not made in person, the application must be supported by evidence on oath or affidavit as soon as practicable after the making of the application. Section 36A provides for records of the application for an interim order where not made in person or reduced to writing. The provisions that relate to the hearing, making and recording of an interim order (ss 3438) are not canvassed in detail in this chapter on the basis that lawyers are rarely involved at this early stage of the matter. However, it is important to note the following:
74
An interim order should not stand indefinitely and the status of the order should be determined by an appropriate hearing on the s 25 criteria (which are outlined later in this chapter): Kerr v Commissioner of Police [2001] NSWSC 637. A sample taken under an interim order must not be analysed unless: the sample is likely to perish before a final order is made; or a final order is made (s 38).
Final orders
An authorised applicant may apply to a Magistrate for an order authorising the carrying out of a forensic procedure (s 26(1)). Section 26(2) provides that the application must: Be made in writing; Be supported by evidence on oath or affidavit dealing with the matters referred to in s 25; Specify the type of forensic procedure to be carried out; and Be made in the presence of a suspect (subject to any contrary order of a Magistrate).
If a Magistrate refuses an application, the authorised applicant may not make a further application unless there is additional information that justifies the making of a further application (s 26(3)). An authorised applicant may apply to a Magistrate for an order to repeat a forensic procedure of the same type that has already been carried out, if the forensic material collected the first time is insufficient or contaminated, and repeating the procedure is justified in all the circumstances (s 27). It is an offence to give false or misleading information to a Magistrate in making an application for a forensic procedure (s 43A).
If a suspect (other than a child or incapable person) has been asked and does not consent to a buccal swab, a senior police officer may order the taking of a sample of hair (other than pubic hair) from a suspect who is under arrest (s 19) if satisfied of the criteria in s 20 (outlined above).
If an interim order is granted by an authorised justice, the forensic procedure must be carried out without delay (s 32). An interim order operates only until a Magistrate confirms or disallows the interim order (s 32(3)) by way of the granting of a final order.
The burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds or suspicion on reasonable grounds (s 103). At the time of writing, there is little New South Wales case law regarding the interpretation and application of the s 25 criteria. Additionally, there is no legislative specification of the factors to be taken into account by a Magistrate when considering each of the criteria. In Orban v Bayliss [2004] NSWSC 428, Simpson J analysed the legislation and noted the following: The extent to which an intrusive procedure may be so authorised is dependent upon the seriousness of the crime suspected, balanced against the intrusiveness of the procedure for which an order is sought. A forensic procedure necessarily involves some degree of invasion of personal privacy. The degree to which that balance will warrant the making of an order will depend upon the interaction of two things the seriousness of the crime of which the person is suspected, and the degree of invasion of personal privacy or integrity. The purpose of the legislation is not to enable investigators to identify a person as a suspect. It is to facilitate the procurement of evidence against a person who is already a suspect.
Further assistance may be given to the interpretation of reasonable grounds to suspect and believe by the case law examining s 357E Crimes Act 1900 (NSW), and in particular, the decision of Smart AJ in R v Rondo (2001) 126 A Crim R 562 where these propositions emerge: A reasonable suspicion involves less than a reasonable belief but more than a mere possibility . A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. Reasonable suspicion is not arbitrary. Some factual basis must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.
Given the limited case law regarding the interpretation and application of the CFPA, a suspects lawyer should argue that any doubt about the construction of the CFPA should be resolved in favour of the suspect: see Stefanopoulos v Police (2000) 115 A Crim R 450.
at all to what would be contemplated ordinarily as the outcome of criminal proceedings in the sense in which that expression is conventionally employed by the law. Hearsay evidence is admissible in a forensic procedure hearing, not as hearsay evidence to prove the truth of what was asserted, but as a composite body of evidence to assist in establishing the s 25 criteria. In L v Lyons & Anor; B and S v Lyons & Anor [2002] NSWSC 1199 Sully J stated at paragraph 34: That did not entail, however, that Constable Lyons had to prove, by reference to whatever standard of proof might be thought appropriate to such an application, that the plaintiffs, or any of them, were guilty in fact of the crimes which they were respectively suspected by her of having committed. Constable Lyons was entitled to put before the Magistrate the composite body of material which she had collected and collated in connection for her application for orders under the Forensic Procedures Act; and she was entitled to argue, upon the basis of that composite body of material, that the Magistrate ought to be satisfied of, relevantly, the matters to which reference is made in paragraphs (a), (c), (f) and (g), all quoted herein, of s 25 of the Forensic Procedures Act: Accordingly, a COPS event entry and an alleged admission by a co-accused (during ERISP or otherwise) can be admissible in a forensic procedure hearing.
An interview friend may be excluded if the interview friend unreasonably interferes with or obstructs the hearing of the application (s 30(8)). An Aboriginal person or Torres Strait Islander may expressly and voluntarily waive the right to have an interview friend present (s 30(4)). Any other suspect may be represented by a legal practitioner (s 30(5)).
77
Inform the suspect that reasonable force may be used to ensure that he/she complies with the order.
The Magistrate may give directions for the carrying out of the forensic procedure (s 31(2)).
A table in s 50 outlines who may take a forensic procedure. A child, incapable person, Aboriginal person or Torres Strait Islander must, if reasonably practicable, have an interview friend and/or legal representative present while the forensic procedure is being carried out (s 54). An interview friend who is not a legal representative may be excluded if: They unreasonably interfere with the procedure; or The investigator forms a reasonable belief that the interview friend could be prejudicial to the investigations because the interview friend is in some way involved.
In such a case, the suspect may choose another interview friend (ss 54(3) and 55(4)). An Aboriginal or Torres Strait Islander may expressly and voluntarily waive the right to an interview friend (s 55(3)).
78
That the suspect is reasonably assisted to protect and preserve the sample until it is analysed (s 58).
Results of analysis
The result of the analysis of any forensic sample must be made available to the suspect unless to do so would prejudice the investigation of any offence. However, the results must be made available to the suspect in reasonable time before the evidence is adduced in any prosecution of the offence (s 60).
If the section applies, evidence is not to be admitted in any proceedings against the person in a court unless (s 82(4)): The person does not object to the admission of the evidence; In the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that was not obtained in compliance with the provisions of the CFPA; or 79
In the opinion of the court, the breach of, or failure to comply with, the provisions of the CFPA arose out of a mistaken but reasonable belief as to the age of a child.
In considering whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, s 82(5) says that the court may consider the following matters: The probative value of the evidence; The reasons given for failure to comply with the CFPA; The gravity of the failure to comply with the Act, and whether the failure deprived the person of a significant protection under the CFPA; Whether the failure to comply was intentional or reckless; The nature of the provision of the CFPA that was not complied with; The nature of the offence concerned and the subject matter of the proceedings; Whether admitting the evidence would seriously undermine the protection given to suspects by the CFPA; Whether the breach of or failure to comply with the provisions of the CFPA was contrary to or inconsistent with a right of a person recognised by the International Convention on Civil and Political Rights; Whether any other proceedings (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply; The difficulty of obtaining evidence without contravention of an Australian law; Any other matters the court considers relevant.
The CFPA specifically states that the probative value of the evidence does not by itself justify the admission of the evidence (s 82(6)). There is little case law considering section 82, although the section was considered in R v Kane [2004] NSWCCA 78. There, Sully J held that the legislation applies to procedures actually carried out on the person of an individual. Justice Sully held that the chance circumstance of throwing away a cigarette butt, which is retrieved and analysed without any interference to the person is not a procedure within the terms of the CFPA. The terms of s 82 are similar to, but arguably go beyond, the provisions of s 138 Evidence Act 1995 (NSW). Consequently the case law considering s 138 Evidence Act may be useful. When considering forensic material that has been supplied in a police brief of evidence, a practitioner should carefully examine whether: There is evidence which was obtained consequent upon a forensic procedure; There has been a failure to comply with a provision of the Act; They should support the argument for admission or rejection of the evidence by reasoned argument, as per the s 82 criteria.
The following is a brief checklist of matters a practitioner should examine when considering a failure to comply with the Act: 80 Have any time limits been breached? Was the person able to consent? Has there been informed consent? Has the procedure been carried out appropriately? Has the forensic procedure been recorded? Has there been compliance with the provisions for the taking of samples from serious indictable offenders? Does the CFPA require certain forensic material to be destroyed? Has the appropriate person carried out the procedure? Chapter 8: Forensic procedures and DNA sampling
Has there been an interpreter present where appropriate? Has there been proof provided by the prosecution/applicant of any assertion that certain rights have been waived by the person?
A non-intimate forensic procedure for the purpose of Part 7 of the CFPA is the taking of a sample of hair (other than pubic hair), or the taking of a hand print, finger print, or toe print (s 61(2)).
81
For an order for the taking of a buccal swab or any other forensic procedure on a serious indictable offender (s 74(3)).
A police officer can make the application to the sentencing court, or to any court at a later time (s 74(4)). The court must be satisfied that the carrying out of the forensic procedure is justified in all of the circumstances (s 74(5)) and must take into account whether the CFPA would authorise the forensic procedure to be carried out in the absence of an order (s 74(6)).
Section 93 of the CFPA contains a detailed table outlining when it is permissible to match DNA profiles.
The subject of an application for an order for forensic procedure is referred to as the suspect. Appeal is to the Supreme Court and can be brought on a question of law only. Be conscious that any forensic material obtained from a forensic procedure may not be used just for that particular matter in which you appear, but is kept on the database for future use subject to a requirement for destruction in certain cases: ss 9194. Do not hesitate to seek a short adjournment (or stand the matter in the court list) if you need to research or consider the legislation.
83
89
9
Negotiating with the prosecution
A Negotiating with the prosecution: principles
Introduction
In many matters there is room to negotiate facts and/or charges with the prosecution. This is called "charge negotiation" and may lead to a charge agreement and/or a statement of agreed facts. The NSW Office of the Director of Public Prosecutions (ODPP) applies the Director of Public Prosecutions Prosecution Guidelines, as does the New South Wales Police Service (it is claimed). The Prosecution Guidelines should always be addressed in charge negotiations with officers from the ODPP or with Police Prosecutors. The following chapter is an edited version of a paper on negotiating with the DPP (updated to reflect the revised Prosecution Guidelines issued in October 2003) and was written by Mr Nicholas Cowdery AM QC, New South Wales Director of Public Prosecutions. The references within the chapter to the Samuels Report are references to the report of the Samuels inquiry (Review of the New South Wales Director of Public Prosecutions Policy and Guidelines for Charge Bargaining and Tendering of Agreed Facts). This inquiry was commissioned by the Attorney General on 18 September 2001 as a result of public criticism of a number of particular instances involving charge bargaining (as it was then called) and communications with victims and police. Lester Fernandez Chair NSW Young Lawyers Criminal Law Committee
89
Charge negotiation
Mr Samuels said: the optimum outcome of a criminal prosecution is resolution by a plea of guilty to a charge which adequately represents the criminality revealed by facts which the prosecution can prove beyond reasonable doubt, and which gives the sentencer an adequate range of penalty. A charge bargain must not compromise the principlewhich I will call the criminality principlemade up of these three ingredients. Essentially it is a question of adequacy: adequate reflection of the criminality involved and adequate scope for sentencing. Therefore, a prosecutor may in certain circumstances properly withdraw a charge which the available evidence supports (and which, therefore, the prosecution can prove) in return for a plea to a less serious charge. Defence representatives should always be mindful of the possibility of negotiating a plea of guilty to an appropriate charge not necessarily the existing charge. There are sentence discounts available to those who plead because there are obvious benefits to the criminal justice system resulting from a guilty plea: the earlier the plea, the greater the potential for such a discount (see s 22 Crimes (Sentencing Procedure) Act 1999 and R v Thomson and Houlton (2000) 49 NSWLR 383.) For the same reasons, prosecutors should also be on the lookout for an appropriate charge agreement. There are a number of different circumstances where acceptance of a plea to a lesser or alternative charge might properly arise, including the four discussed below. Defence representatives may be in a position to identify such opportunities just as readily as prosecutors will; however, in some cases (eg. a timorous or reluctant witness), where there is no obligation of disclosure on the prosecution, there may still be the possibility of an agreement if it is sought. 1 The timorous or reluctant witness. Typical cases are those involving sexual assaults of young victims. Sometimes the victim may have such a fear of giving evidence that she (or he) initially simply refuses to do so. Sometimes a witness who does not actually refuse to give evidence is nevertheless in such a state of emotional turmoil that he or she may well be neither coherent nor convincing. Sometimes the personal circumstances of the victim may have changed so significantly that further harm may be done by forcing him or her to testify. In such circumstances the prosecutor, to save the witness testifying, is justified in accepting a plea to a less serious charge, or one taken on the basis of a statement of agreed facts which omits or reduces certain matters of aggravation initially alleged - provided always that the criminality principle is observed. Reluctant witnesses are those who, for reasons other than fear of the judicial process itself, become uncooperative and express a desire not to testify. This is not uncommon where there is a close relationship between the accused and the victim, such as in domestic violence offences. A typical case is one where a woman is regularly beaten by her partner but forgives him every time after he has been charged and expresses a reluctance to proceed with the prosecution. Frequently in such cases the public interest will require that the prosecution proceed, despite the reluctance of the victim; but if charge negotiation could lead to a conviction on an appropriate lesser charge in such circumstances, it would be a desirable outcome for all concerned. 90 Chapter 9: Negotiating with the prosecution
The unpersuasive witness. Sometimes the victims evidence, solid enough on paper, may appear at committal or in conference to be significantly short of persuasive. This might not be because of any element of deliberate untruth. It might be because the victims statement includes matter which is hearsay or which for other reasons is inadmissible at the trial or would not carry much weight. In such a case, the criminality principle requires that any negotiated plea adequately reflect the criminality demonstrated by the witnesss admissible evidence. In cases where there is overlapping of adequate penalties it may be appropriate to accept a plea to a lesser charge. For example (instancing a common occurrence), the indictment may contain a charge under section 33 of the Crimes Act of maliciously inflicting grievous bodily harm with intent and the defence may offer a plea to section 35 - malicious wounding or infliction of GBH without the intent. The first carries a penalty of 25 years; the second seven years. In some circumstances, seven years might give completely adequate scope for the sentencing judge. The prosecutors reasoning might therefore be that the Crown can prove the offence under section 33, but at the cost of a lengthy trial which will consume resources, time, money and grief; at the end of which the sentence likely to be imposed will be one of considerably less than the seven years maximum for the less serious offence. Multiple offences. This situation often arises in child sexual assault matters, where there may also be the added complication of a timorous or unpersuasive witness. In such circumstances a plea to some only of the charges might be preferable to proceeding on all with the possibility of an entire acquittal. In such cases there should be careful consideration of which charges are pleaded to. If the offences occurred over a considerable period of time it would usually be preferable to select representative charges that indicate activity over the span of that period. It might also be appropriate in such a matter to include in the agreed facts reference to some or all of the other incidents. Multiple offences can also be encountered in corporate crime and fraud. Such trials are often complex and lengthy and a charge agreement could therefore have considerable public and individual benefit.
Rationale
Charge agreement depends upon the balanced satisfaction of two public interests. One is the interest of the community in ensuring that criminal conduct is punished according to its deserts. The other is the interest of the community in reducing, so far as possible and appropriate, the expenditure of resources in the criminal justice system and the delay between charge and arraignment and trial. Strict adherence to the criminal prosecution process and all that it prescribes is not the only way to address criminal offending.
Agreed facts
The Samuels Report noted that the version of the DPPs Policy and Guidelines then in existence (since replaced by one consolidated document) did not say much about Statements of Agreed Facts. However, in October 2003 a revised version of the Prosecution Guidelines was issued which includes Guideline 20, Charge Negotiation and Agreement; Agreed Statements of Facts; Form 1, a detailed and centralised statement of the requirements relating to agreed facts. The guideline states that a document reflecting the agreement as to facts on sentence should be part of the charge agreement. A charge agreement must be principled and must comply with the criminality principle identified by Mr Samuels. It would usually be impossible to assess whether an agreement results in an adequate reflection of the criminality involved and provides adequate scope for sentencing unless there was also a clear indication of the facts that were to be taken into account by the sentencing judge. This agreed version of the facts should be signed and dated on behalf of both parties. Usually the issues concerning Statements of Agreed Facts relate to aggravating and mitigating circumstances surrounding the commission of the offence. An agreement to accept a plea goes no further than accepting an admission of the elements of the charge. The objective facts and surrounding circumstances add meaning, significance and colour to those bare elements, enabling the sentencing judge to gauge the degree of criminality and assess the appropriate sentence. They are also of great interest and concern to victims. Care should be taken on both sides in preparing Statements of Agreed Facts. In all but the simplest of cases, the police facts prepared at the time of charging will not be sufficient. Apart from their inadequacies of grammar and expression they often contain much that is irrelevant or superfluous. A Practitioners Guide to Criminal Law 91
Sometimes they are prepared primarily for the purpose of bail and stress matters that are relevant for bail but not for the sentence. Often in circumstantial cases they contain recitals of all of the evidence that supports a finding of guilt: but for sentencing purposes it might be necessary to refer only to the inferences or intermediate inferences that flow from that evidence. Preparing a statement of facts has the benefit of causing both parties to turn their minds to the question of exactly what is involved in the plea and the considerations that will be relevant on sentence. This could also, possibly, produce happier judges. If a judge is presented with a police statement of facts that is a grammatical dogs breakfast, is full of superfluous material and omits much of the relevant evidence, there is not likely to be a happy hearing. In complicated matters charts, tables and chronologies should be used wherever possible in preference to long narrative accounts. Which matters surrounding the commission of the offence are included in and excluded from an Agreed Statement of Facts will often quite properly be an integral part of the charge negotiation between the parties. The Crowns approach to this aspect of the negotiation should, as always, be governed by the criminality principle. Adequacy will be the test: adequate reflection of the criminality involved and adequate scope for sentencing. That requires individual judgment. There will be a need for the prosecutor to remain sensitive to the positions of victims and police and consult with police and victims when forming that judgment. Defence representatives should be aware of that requirement and not be concerned that time is taken to attend to this step in the procedure. (The defence should also be assured that such consultation is not undertaken for the purpose of obtaining instructions it is undertaken in order to obtain and express views about the proposed course of conduct.) If there is strong evidence of a relevant aggravating feature, then the Crown should not usually agree to a statement of facts that does not include it (bearing in mind, of course, the De Simoni principle if relevant). Where the prosecution agrees not to rely upon an aggravating feature, no inconsistent material should be placed before the sentencing judge. If the evidence is not strong, however, then there might be scope for omitting reference to that feature. In the spirit of compromise which is an essential part of charge negotiation, it might also be appropriate in some cases to agree to the inclusion of reference to mitigating features if there is clear evidence of them. Defence representatives should press for that in appropriate circumstances. Victims and police will need to be consulted in the process. Prosecutors are instructed to make a record of offers or representations on behalf of accused persons and the responses to them and to place them on the relevant file. In cases of complexity or sensitivity, defence lawyers may be asked by prosecutors to put offers in writing on a without prejudice basis and to indicate the reasons why this is considered an appropriate disposition of the matter. In some cases defence lawyers may be advised that the prosecution will not consider an offer unless its terms are clearly set out in writing, or may be asked to adopt a prosecution document recording the agreement. The content and timing of such communications is significant to the defence as well as the prosecution, given the weight to be accorded to early and appropriate pleas. It will not always be possible to reach agreement on all facts surrounding an offence. Sometimes it might be appropriate to have an agreed statement as to most of the facts relevant on sentence, but on the further understanding that evidence will be led in connection with certain disputed aspects of the offence. The more narrowly these aspects can be confined in advance, the better for all concerned.
Victims
What has been said so far has failed to deal completely with one crucial aspect of charge negotiation and agreementthat is the involvement of the victim. All ODPP lawyers and Crown Prosecutors should be aware ofand defence representatives should also be sensitive tothe legislation (Victims Rights Act; which includes the Charter of Victims Rights) and Prosecution Guidelines relating to victims, in particular Guideline 19, Victims of Crime; Vulnerable Witnesses; Conferences. Victims should be treated with courtesy, compassion and respect for the victims rights and dignity. Victims should also be kept informed in a timely manner of the progress of a prosecution and their views taken into consideration this action now must be taken pro-actively by officers of the ODPP and Crown Prosecutors and defence lawyers need to be aware of that. In the context of charge negotiation, the fundamental rule is that the victim should be informed when any such negotiation is initiated and the views of the victim must be obtained, recorded and taken into consideration before there is any formal decision concerning a charge agreement and before there is agreement as to the contents of a statement of facts. Since a Statement of Agreed Facts is now to be an 92 Chapter 9: Negotiating with the prosecution
integral part of any charge agreement, it follows that the victim must be kept informed of all aspects of the negotiation regarding the proposed statement of facts, in particular any proposed deletion of references to aggravating features. However, the views of victims (and of police officers) will not alone be determinative of the outcome of charge negotiation: it is the general public, not any private sectional, interest that must be served at all stages of the prosecution process.
93
This subchapter provides a practical guide to negotiating with Police Prosecutors and solicitors from the Office of the Director of Public Prosecutions (DPP)1.
When the lawyer for an accused person pursues charge negotiation by writing to the prosecution, this is frequently referred to as making representations.
The benefits of charge negotiation are substantial, and include the following:
94
Avoiding multiple trials or hearings arising out of the one criminal incident. At trial or hearing on a plea of not guilty, it may become apparent that the prosecution cannot establish all the elements of the offence charged, but it does have enough evidence to establish the elements of a less serious offence. Acquittal at trial or hearing in relation to the more serious charge will usually not prohibit the prosecution from laying the less serious charge and taking it to a hearing. That scenario would involve your client going through two sets of court cases in order to get a result that could have been negotiated by agreement at the beginning; Making it possible to keep your client in the Local Court, either for sentencing or for defended hearing, where otherwise he/she would have to be dealt with in the District Court.
95
When devising possible alternative charges, never forget that your greatest achievement will be to keep your client out of the District Court, where penalties are higher and he/she is far more likely to go to gaol. For example, a charge of robbery must be dealt with in the District Court and carries a maximum penalty of 14 years gaol. A charge of stealing from the person, even though it is laid under the same section of the same Act2, may be (and usually is) dealt with in the Local Court where the maximum penalty that the Local Court can impose is 12 months imprisonment.
96
Where you are on the door of the court on the day of a defended hearing, and an adjournment for the consideration of representations is unlikely to be granted, many police prosecutors will be happy to negotiate informally rather than go through with a doomed or highly risky hearing. On a plea of guilty, police prosecutors will generally be prepared to negotiate the statement of facts to be tendered. Where the proposed change involves altering the facts of the offence itself, the prosecutor will need to consult the informant (and often the victim), and written representations may be required. However, where the proposed change to the facts sheet merely involves deleting material that should not be put before the Magistrate on sentence, a competent prosecutor should be prepared to delete it on the spot. Speak with the prosecutor and explain to him/her why the deletion you seek is appropriate.
97
If the representations are unsuccessful, a plea of guilty or not guilty must be indicated to the Court. Where a plea of not guilty is entered, the proceedings will be listed for hearing and the Court will order service of the brief within two weeks. Where the representations have not been resolved by the further adjourned date, no further adjournment is to be granted other than for the purpose of a defended hearing unless the Court considers it in the interests of justice to do so.
Substance
Good representations will conform to the rules of good letter-writing. Specifically, your representations should: State at the beginning what result you are seeking. Outline why the result you are seeking is appropriate, with reference to the evidence where necessary. Chapter 9: Negotiating with the prosecution
98
Any reason that might persuade a reasonable objective third party can be employed, but your representations (even if made to police prosecutors) should always be directed at what is contained in the Director of Public Prosecutions Guidelines3. Written representations should be marked as being without prejudice but you must still be careful in what you write. Generally, it is dangerous to make representations on the basis of your uncorroborated instructions about the facts of the case or any other assertion of fact that is not made out in the prosecution brief of evidence. (It is perfectly acceptable to base your representations in part on any assertions made in a police interview in which your client has participated the transcript of that interview is part of the prosecution brief). Putting forward your clients version deprives the defence of its most important tactical advantage the right to silence and the resultant prosecution uncertainty of what the defence case might be. In any event, you should not expect that the prosecution will have any reason to believe what your client says. So far as your representations are based on assertions of fact, those assertions must be supportable by reference to material that the prosecution has provided to you. In a case where you are certain that you are on very firm ground, you might provide (or point the prosecution towards) third-party evidence that indicates the prosecution should not proceed. However, only contemplate doing so if you are certain (preferably after rigorous testing) that the third-party source of evidence will not blow up in your face and in fact strengthen the case against your client. In your written representations, you may point out deficiencies in the evidence as a reason why a charge should be withdrawn or a plea to a lesser charge accepted. However, beware: unless it is already too late (for example the potential evidence has been lost, destroyed or contaminated), bringing gaps to the attention of the prosecution may just result in those gaps being filled. Do not state in representations that no photographic identification parade has been conducted, unless you have considered the risk that police will conduct one and that it will implicate your client; do not state that no fingerprint analysis has been conducted unless you have considered the risk that it may be done now and that it will implicate your client. Examples of written representations are provided in the Appendix to this sub-chapter.
http://www.odpp.nsw.gov.au/guidelines/guidelines.html
99
All of these considerations point towards withdrawal of the 28 May 2003 charge being appropriate. In addition, Mr Brutal would be conferring a benefit on the prosecution by pleading guilty to the 4 May 2003 armed robbery through not testing the prosecution case in that matter. This letter is written without prejudice for the purpose of negotiations. I would be pleased to discuss this proposal with you. 2. Evidence does not support the charge laid but supports an alternative charge (Omitting formal parts.) I act for Ms Fingers. Ms Fingers is charged with break, enter and steal at Croydon Park on 25 July 2003. I write to make representations in relation to this matter. I propose that if a fresh charge of stealing from a dwelling-house is laid and Ms Fingers pleads guilty to that charge, then the charge of break, enter and steal be withdrawn. The basis for these representations is that the prosecution cannot prove the element of breaking. The victim states that he might have left the front window open at the time of the offence so that my cats could run in and out: paragraph 8 of the statement of Wakelin Fright dated 28 July 2003. Neither the victim nor any police witnesses give evidence to suggest that any window was broken, any lock forced or
100
any door damaged when the premises were thoroughly inspected (paragraph 5, statement of Detective George Retentive dated 26 July 2003) after the theft. Accordingly, the evidence is incapable of proving beyond reasonable doubt that Ms Fingers committed any breaking, and so the charge of break, enter and steal must fail. Stealing from a dwelling house is the appropriate charge on the evidence. This letter is written without prejudice for the purpose of negotiations. I would be pleased to discuss these representations with you.
101
10
Applications for intellectually disabled and mentally ill clients in the Local Court
Scope of this chapter
People who have some kind of mental disability or disorder may be able to be diverted from trial and punishment under the normal rules of the criminal justice system. This is achieved through a successful application under s 32 Mental Health (Criminal Procedure) Act 1990 (NSW) (referred to in this chapter as MHCPA). The effect of a successful application under s 32 MHCPA is that the defendant will not have a conviction recorded against his or her name, and will not be liable to any further punishment (provided the defendant complies with the terms of the order that are made). This chapter deals with offences that are sought to be finalised under s 32(3) MHCPA. Although this chapter deals specifically with matters dealt with in the Local Court, the same principles apply (with some slight variations) to s 32 applications made in the Children's Court. This chapter does not deal with: Adjournments of the proceedings, granting of bail or making of orders as allowed by s 32(2).MHCPA Applications under s 33.MHCPA Fitness to be tried. Applications relating to Commonwealth offences (see s 20BQ Crimes Act 1914 (Cth)).
All references in this chapter to sections are references to sections in the MHCPA, unless indicated otherwise.
Background to section 32
The purpose of section 32
The following passages from Perry v Forbes (unreported, Supreme Court, 21 May 1993) per Smart J at 10 describe the purpose and operation of s 32: Section 32 and s 33 contain provisions allowing a person to be dealt with in special ways appropriate to their condition and obviates the need for a court to embark upon a full hearing on the merits and to proceed to a conviction. By s 31(2), s 32 and s 33 apply to the condition of the defendant as at the time when a magistrate considers whether to apply the relevant section to the defendant. This provision and the scheme of the Act suggest that it is incumbent upon a magistrate where there is material pointing to a mental disorder to consider whether to apply either s 32 or s 33 as the case may be.
105
No conviction is entered. A decision to dismiss charge(s) under s 32(3) does not constitute a finding that the charge(s) are proven or otherwise (s 32(4)).
While a charge may be dismissed, it will still appear on the accuseds criminal record (even though there has been no finding of guilt) with a notation that the matter was dealt with under s 32.
It is possible for an accused to suffer from both a mental condition or mental illness (as defined in s 32(1)) and a developmental disability. If this is the case it is possible to base the s 32 application on both grounds. If an accused can establish that he/she comes within the criteria set out in s 32(1), the second step is to address the discretionary aspect of s 32. This discretionary aspect is that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate considers relevant, it would be more appropriate to deal with the accused in accordance with the provisions of Part 3 of the MHCPA rather than according to law: s 32(1)(b). Being dealt with according to law means the law (such as the Criminal Procedure Act 1986 (NSW) and Crimes (Sentencing Procedure) Act 1999 (NSW)) that normally applies to defendants appearing on criminal matters.
They have had, or are currently having, psychological/psychiatric treatment, including being under the supervision of a community mental health team; They may have been or are currently in some form of supported accommodation, or are getting paid a disability support pension.
You might also be assisted in assessing whether s 32 applies to a client of yours through using the Court Liaison Service. The Court liaison Service: Provides specially trained health professionals who are attached to courts. Provides early intervention mental health services at certain Local Courts. Provides psychiatric expertise and advice to Magistrates when people with a mental illness first appear in court (usually in custody).
The aim of the Court Liaison Service is to divert mentally ill offenders to appropriate treatment programs and to prevent inappropriate incarceration. Mental health nurses make an immediate assessment and provide a report to the court on options for further assessment and treatment. You should check whether there is a Court Liaison Service attached to the court at which your client is appearing. They are a valuable aid in acting for clients who might be mentally ill. The Court Liaison Service is not involved in clients who have developmental disabilities.
A report from a psychiatrist (rather than a psychologist) will be more convincing to a Court in establishing that your client has a mental illness. An assessment of intellectual disability will usually be made by a psychologist, who would usually conduct a number of tests. A diagnosis of intellectual disability will generally be preferred coming from a psychologist than from a psychiatrist. Any reports or other evidence you propose to tender should be served on the prosecution prior to the hearing of the application.
107
In an application under s 32 it will usually be appropriate for a service provider to acknowledge to the Court that they will advise the Community Offender Service or Department of Juvenile Justice of noncompliance with treatment. The Community Offender Service has prepared documents that service providers can complete in the event of a breach of a s 32 condition. A Magistrate may require an accused who is going to be discharged under s 32 to sign an authorisation to the service provider authorising the service provider to report non-compliance with a treatment plan. 108 Chapter 10: Applications for mentally ill clients in the Local Court
A Magistrate may also require an accused who is going to be discharged under s 32 to sign an undertaking to comply with a treatment plan.
You should consider seriously whether to take the step of asking a Magistrate to disqualify him/herself following an unsuccessful s 32 application if you do not intend to make a subsequent s 32 application before another Magistrate. It may be appropriate to require the Magistrate to disqualify him or herself in many cases where your instructions are to enter a plea of not guilty.
109
Further reading
S Hayes and G Craddock, Simply Criminal (2nd Ed), Federation Press, Sydney, 1992. D Humphreys "Appearing for the Mentally Disordered/Intellectually Disabled Client" College of Law, A Day in Crime 98/49 (1998) 35. New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issues Discussion Paper 35, 1984. B Schurr, Criminal Procedure, LBC Information Services, Sydney, 1996, Chapter 14.
110
Chapter 10: Applications for mentally ill clients in the Local Court
11
Diversionary schemes for drug dependent offenders
A Drug Court of New South Wales
Mandatory tests
Read ss 5, 6 and 7 of the Drug Court Act 1998 (NSW) and clause 5 of the Drug Court Regulation carefully before seeking to refer a client to the Drug Court. In summary, your client needs to fit all of the following criteria before seeking a referral to the Drug Court: 1. 2. Be before a Local or District Court in western Sydney, namely: Bankstown; Blacktown; Burwood; Campbelltown; Fairfield; Liverpool; Parramatta; Penrith; Richmond; Ryde; and Windsor courts. Have a usual place of residence in western Sydney, defined as being within one of the following local government areas: Auburn; Bankstown; Baulkham Hills; Blacktown; Campbelltown; Fairfield; Hawkesbury; Holroyd; Liverpool; Parramatta; or Penrith24. Be highly likely to receive a full-time custodial sentence in relation to the charge(s) faced. Be pleading guilty or having indicated that he/she intends to plead guilty to the charge(s) to be referred (see below). Appear to be dependent on prohibited drugs25. Not be facing a charge involving a strictly indictable supply of prohibited drugs. Not be facing a charge involving violent conduct or sexual assault (see below).
3. 4. 5. 6. 7.
Look closely at this requirement, as it is more restrictive than the court location requirement. For example, clients who live in Lakemba, Burwood or Ryde are ineligible even though offences committed in those suburbs are likely to be charged before referring Courts. Note also that having ones usual place of residence as being within a western Sydney gaol or remand facility does not qualify: R v Duggan [2001] NSWDRGC5. As prohibited drugs is defined in the Drug Misuse and Trafficking Act. Note that alcohol dependency does not qualify, nor does dependency on prescribed medication such as benzodiazepines (except rohypnol). Of course, if the client has a multiple-drug dependency, it is enough that at least one of the drugs of dependency is prohibited.
25
24
113
8. 9.
Not be suffering from any mental condition that could prevent or restrict the person's active participation in a Drug Court program26. Be of or above the age of 18 years, and not facing a charge before the Childrens Court.
2.
You may refer your client to the Drug Court if s/he has been convicted in his or her absence of the relevant offences (provided, of course, your client admits guilt and does not intend to attempt to have the convictions overturned): R v Wilson [1999] NSWDRGC 4.
26
Even though this is a mandatory criterion, do not fail to refer a client merely because they suffer from a mental illness. If the client wins the ballot, the Drug Court will usually adjourn their case for a report on whether the person, if properly medicated, is capable of participating in a Drug Court programme.
114
If you are concerned about the appropriateness of referring a particular charge to the Drug Court, you should contact the Drug Court Legal Aid solicitors for advice. Their telephone numbers are contained in the Contacts chapter of this book.
115
The persons mental illness or developmental disability is such that the person would either be incapable of participating in the program, or the person would present an unacceptable risk of violent or antisocial behaviour on the program27. Despite being otherwise eligible, the person is incapable of participating in a Drug Court program because he/she is in custody and will remain in custody for the foreseeable future, either serving a sentence or bail refused. The persons prior behaviour (whether criminal or not) is such that the court could have no confidence that the person would comply with the rules of a Drug Court program28. Everyone on a Drug Court program represents some degree of risk to the community in that he or she might relapse and commit further offences. The court must endeavour to ensure that if a Drug Court participant does relapse there is no substantial prospect that any further offences will be violent or seriously threatening offences.
There is no appeal from the Drug Court exercising its discretion not to convict and sentence a person under the Drug Court Act: s 7(5) of the Act.
Suspended sentences
Many drug-dependent clients get suspended sentences (s 12 Crimes (Sentencing Procedure) Act), and then breach them by committing further offences. In the decision of R v Riquelme [2001] NSWDRGC 8 the Drug Court decided that as the law then stood it did not have the power to further suspend (pursuant to the Drug Court Act) gaol sentences which had already been suspended (pursuant to the Crimes (Sentencing Procedure) Act) where the suspension order had already been (or was due to be) revoked. As a result of that decision, sections 8AA8AD Drug Court Act were added to the Act effective August 2003. Those provisions provide a scheme for suspended sentence bonds to be referred to the Drug Court, and for the Drug Court to sentence offenders under the Drug Court Act and enter them into a Drug Court program, in the same way as if the suspended sentence had never been entered. In practice, proceedings for breaches of good behaviour bonds under sections 9 and 10 of the Crimes (Sentencing Procedure) Act may also be referred to the Drug Court under this scheme. Section 8AA(2) imposes a duty upon a referring court before whom an offender appears under s 98 of the Crimes (Sentencing Procedure) Act29 to: a) ascertain if the person is an eligible person under the Drug Court Act (see above in this chapter) b) if so, ascertain if the person is willing to be referred to the Drug Court to be dealt with for the breach of bond, and c) if so, refer the person to the Drug Court to be dealt with for the breach of the bond. Note that the power conferred by s 8AA must be exercised as soon as practicable after the persons first appearance at court on the breach of bond: s 8AC(3) of the Act. However, be aware that the referring courts under s 8AA are the same as the referring courts in all other matterssee mandatory criterion 1 at the start of this chapter. (All other mandatory criteria also apply.) Therefore, even if your client meets all other criteria and has other eligible charges before a referring court, if the breach of suspended sentence bond proceedings are before a non-referring court (i.e. a court outside western Sydney), there is no power for that court to refer those matters to the Drug Court.
See footnote 3 above. The Court employs a consultant psychiatrist, and will never exclude a person on psychiatric grounds without considering a psychiatric report commenting on the persons history, compliance with medication and perceived risk factors.
28 29
27
The provision of the Crimes (Sentencing Procedure) Act that deals with calling offenders up for breaches of good behaviour bonds.
116
Why would I advise an otherwise eligible client not to seek referral to the Drug Court?
You need to advise your client of the disadvantages of being on a Drug Court program: If a client has any chance of getting an alternative to a full-time custodial sentence, he/she should not apply to enter the Drug Court program, as entering a Drug Court program involves an acceptance that a full-time custodial sentence is inevitable. If your client is not ready (either mentally or in terms of having appropriate support in the community) to fully rehabilitate at this stage of his/her life, he/she will often be facing the possibility of serving a lengthier term of imprisonment than if he/she had never entered the program. This is because a participant who relapses presents a high risk of re-offending. Offences committed whilst on the program attract harsh sentences because of the serious breach of conditional liberty, and cumulative sentences are almost always imposed. The client may well have been able to secure a concurrent or partially cumulative sentence if sentenced for the same string of offending at a Local Court or District Court. For clients facing short gaol sentences, there is often good sense in doing the sentence and attending to rehabilitation after release, rather than entering into a highly intrusive and lengthy Drug Court program (for a minimum duration of 1 year and frequently longer) with no guarantee of avoiding a custodial sentence at the end of it. What should a client consider before applying to participate in a Drug Court program?
Your client should be advised that the Drug Court program is not an easy option. The requirements of the program are quite onerous and your client should have a genuine desire to reform their drug dependency before agreeing to enter the program. Not everybody is able to graduate from the program. Graduation requirements include that the participant has a period of some months free from all illicit drug use (as confirmed by regular monitored urine tests), be well established in employment or education and be integrated into the community. A participant may dramatically reduce his or her drug use and criminal activity, stabilise in the community, and yet still not meet the graduation requirements. This is generally due to the fact that occasional drug use, minor breaches of program requirements, or lack of employment or education will stop a participant from graduating. If a participant appears to be incapable of meeting the stringent graduation requirements and has had a lengthy initial sentence, the participant may receive a substantial reduction from his/her initial sentence, but still face a custodial sentence when the program ends.
Graduation from the program takes a minimum of 12 months from commencement on the program. During the program the participant attends a number of report-backs. The Drug Court team (comprising representatives from the Legal Aid Commission, the Office of the DPP, the Probation & Parole Service, the Health Services and the Drug Court Judge) meets prior to commencement of court to discuss the progress of every participant appearing that day.
117
When Court commences, participants report-back to the court in person. Participants advise the court of any drug use, compliance with program appointments, compliance with any medications prescribed, and other issues in their lives. Participants lawyers may be required to give advice or appear in relation to legal issues. However participants are encouraged to appear for themselves in report-backs. Legal Aid solicitors are available to represent participants in every strictly legal matter, such as arguments about termination of the program (see below), section 7(2) arguments (see above), initial sentences and final sentences. There is intensive supervision and monitoring of participants on the program. If the Court suspects that a participant is not complying with the program, the Court may issue a warrant for the participants arrest (s 14 Drug Court Act). When arrested the participant must be brought before the Drug Court and the Bail Act does not apply. Sections 10 and 11 of the Drug Court Act deal with proceedings for terminations and non-compliance with the program. Apart from termination of the program where a client completes it (graduation), a Drug Court program may be terminated in 3 ways: a) If a participant requests it (self-termination) b) If the court finds that the participant is unlikely to make any further progress in the program, or c) If the court finds that the participants ongoing participation in the program poses an unacceptable risk of re-offending. Where the Office of the DPP (or the Court of its own volition) contends that categories (b) or (c) may apply, the participant will be listed for an argument before the Drug Court as to whether his or her program should be terminated. Section 12 of the Drug Court Act deals with the imposition of final sentences after the program has been terminated. The final sentence imposed will vary from case to case, but must take into account the participants level of participation in the Drug Court program.
Getting assistance
Once a person has been successfully referred to the Drug Court, Legal Aid solicitors based at the Drug Court will represent the person with no means or merit test. Because it is a specialised jurisdiction, very few private practitioners appear at the Drug Court. Legal Aid solicitors can be contacted at the Drug Court in order to answer any questions that you may have in relation to referrals to and appearances at the Drug Court. Their telephone numbers are listed in the Contacts chapter of this book.
118
MERIT
What is MERIT?
The Magistrates Early Referral into Treatment (MERIT) program is a government funded program which aims at diverting people with drug problems into effective drug treatment. MERITis only available to defendants appearing in Local Court matters (that will be finalised at the Local Court). Treatment offered by MERIT is specific to an individuals needs and includes: detoxification, residential rehabilitation services, counselling, case management, welfare support and other assistance.
Eligibility criteria
To enter the MERIT program your client must: Be an adult. Have an illicit drug problemalcohol cannot be the primary drug. Be willing to participate in the program and consent to treatment. Not be involved in offences related to physical violence, sexual assault or District Court matters. Have a treatable problem. Be approved by the Magistrate to participate in the program.
Failure to participate
If during the MERIT program the defendant commits a further offence or breaches his/her bail conditions, the MERIT team will notify the court. He/she may then be excluded from the program.
119
120
12
Intervention programs
There are a variety of programs intended to divert people away from crime, the criminal justice system or incarceration.
Pre-sentence programs
The MERIT program, which is intended to temporarily divert individuals away from the criminal justice system while they deal with their drug problem (discussed in detail in chapter 11(b)). The Youth Drug and Alcohol Court (in which children are referred on the basis that they will participate in a rehabilitation program prior to sentence at the Childrens Court; the program is discussed in detail in chapter 15). Traffic offender programs (discussed in detail in chapter 20). The Rural alcohol diversion scheme, which is a pre-sentence option currently being trialled at Bathurst and Orange Local Courts. The Scheme is based on the MERIT program, but is aimed at alcohol rather than drugs. Community Aid Panels (CAPs).
CAPs assist in the punishment of generally young and first time offenders. The CAP usually consists of a police officer and other people involved in the community. If there is a CAP attached to the court at which your client is appearing, when you enter your clients plea of guilty you can suggest that your clients matter may be suitable for referral to a CAP. Matters are adjourned with a bail condition added that the accused contacts the local area CAP, usually through reporting to the local area police station. The CAP will set an amount of unpaid hours of work to be performed by the accused. The number of hours worked is usually less than that imposed for a community service order made pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), and is usually in the vicinity of 1020 hours. The CAP will prepare a report to the court when the work is completed satisfactorily. Involvement in the above pre-sentence programs can lead to more lenient sentences, because they often indicate a level of self-motivation on the part of an accused, as well as a degree of rehabilitation.
Other post sentence options which are intended to divert an accused from future offending are courses run by Community Offender Services (COS) (formerly known as the Probation and Parole Service). These programs include: anger management courses; 123
domestic violence perpetrators course; relapse prevention programs; responsible behaviours programs; and drug and alcohol abuse programs.
These are generally courses for treatment and management and may be ordered as conditions of a good behaviour bond or arranged as a result of an order for supervision by COS. It is advisable to check with the local COS Office as to the types of programs they offer.
124
program (and to comply with any plan arising out of the program) under the Criminal Procedure Act. When a court finds a person guilty of an offence it may make an order requiring the person to participate in an intervention program (and to comply with any plan arising out of the program) under s 10 Crimes (Sentencing Procedure) Act 1999 (NSW). When participation in an intervention program (and compliance with any plan arising out of the program) is made a condition of a good behaviour bond under s 9 Crimes (Sentencing Procedure) Act, or of a suspended sentence under s 12 of that Act.
125
131
13
The criminal jurisdiction of the Childrens Court
This chapter discusses the criminal jurisdiction of the Childrens Court. All references to legislation in this chapter are references to the Children (Criminal Proceedings) Act 1987 (NSW)(CCPA) unless stated otherwise. A child is defined as a person under the age of 18 years (s 3). In this chapter, a reference to a young person is a reference to a child.
Until those matters have been explained to the child, the court before which the proceedings are brought shall not proceed further (s 12 CCPA). Children's Court Practice Direction 10 is also relevant to this point. In communicating with the child, a practitioner: [S]hould use language appropriate to the age, maturity, level of education, cultural context and degree of language proficiency of the child. Preference should be given to face-to-face communication with the child rather than communication by telephone or in writing (Principle D6). It may be useful to obtain instructions from your client in the absence of the parent or carer. Often the child will give a more complete description of the offence or their involvement in the offence if the parent or carer is not present during your interview.
Certain offences under the Drug Misuse and Trafficking Act 1985 (NSW); or Any other offence prescribed by the Regulations; OR In the opinion of the person commencing proceedings there are reasonable grounds for believing that: The child is unlikely to comply with a summons or court attendance notice; or The child is likely to commit further offences; OR
If in the opinion of the person commencing proceedings the child should not be allowed to remain at liberty due to: The violent behaviour of the child; or The violent nature of the offence;
Additionally, the case law regarding arrest and the commencement of criminal proceedings make clear that arrest: Is inappropriate for minor offences where the defendants name and address are known, where there is no risk of him/her departing and there is no reason to believe that the summons will not be effective; Is reserved for cases where it is clearly necessary; Is inappropriate where a summons will suffice.
It is recognised that these principles apply all the more when any person suspected of having committed an offence is a child: DPP v CAD & Ors [2003] NSWCCA 196). A recent case relevant on this issue is DPP v Lance Carr (2002) 127 A Crim R 151. While this case does not directly deal with s 8 CCPA, it is relevant in the following ways: The interpretation of s 8 should be strictly applied: This court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendants name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective it is time that the statements of this Court were heeded (per Smart AJ at paragraph 35). Where arrest is inappropriate, evidence of further offences that follow (for example, resist police, assault police) should be rejected under s 138 Evidence Act 1995 (NSW). The fact that a child was arrested when it was appropriate to summons him/her is relevant to penalty. The appropriate submissions should be made relate to these statements by Smart J in DPP v Lance Carr: Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. A suspect suffers a greater penalty by being deprived of his liberty than he could possibly get by going to court and being found guilty. DPP v Lance Carr can be used as the basis for submitting that bail should be dispensed with in matters when they should have been initiated by CAN or summons rather than arrest.
Was a child when the offence was committed; and Was under the age of 21 years when charged before the Children's Court.
The Table One and Table Two classification of offences outlined in Division 3 of the Criminal Procedure Act 1986 (NSW)(and discussed in chapter 4) is not relevant to the Childrens Courts jurisdiction. The classification is relevant however to the Young Offenders Act 1997 (NSW)(YOA) (see chapter 14). Serious childrens indictable offences The Children's Court does not have jurisdiction to hear and determine proceedings, other than committal proceedings in respect of serious childrens indictable offences. Section 3 CCPA and Reg 4 Children (Criminal Proceedings) Regulation define serious childrens indictable offence. A serious childrens indictable offence is dealt with according to law in the District or Supreme Court, as opposed to being dealt with under the CCPA. Examples of serious childrens indictable offences are: Murder; An offence punishable by imprisonment for life or for 25 years, such as Armed Robbery with a Dangerous Weapon.
Traffic offences The Children's Court does not have jurisdiction to hear and determine a traffic offence that is alleged to have been committed by a person unless: The traffic offence arose out of the same circumstances as another offence that is alleged to have been committed by the person which is being dealt with by the Children's Court (s 28(2) CCPA); or The person was not of licensable age when the offence is alleged to have been committed (s 28(2) CCPA). A person must be at least 16 years of age or 16 years and 9 months before they can obtain a learners licence for a motor vehicle or motor cycle respectively (rules 6 and 10 Road Transport (Driver Licensing) Regulation 1999 (NSW)).
A child not of licensable age will be dealt with by the Childrens Court for a traffic offence. All children falling within this category will be under the age of 16 years and consequently the court cannot record a conviction against the child. Ordinarily, the power to disqualify a person from driving only arises where a person has been convicted of the offence (ss 24 and 25 Road Transport General Act 1999 (NSW)). However, it has been held that s 33(5)(a) CCPA provides a power to disqualify a child from driving who has been found guilty of an offence, even though a conviction cannot or has not been recorded (HA & SB v DPP [2003] NSWSC 347)). Importantly, the power to disqualify a child from driving in these circumstances is an exercise of discretion rather than an automatic consequence of disqualification. Any child who is of licensable age, and does not have another Childrens Court offence arising from the same circumstances, will be dealt with in the Local Court for a traffic offence. In these circumstances, the Local Court is not a closed court (s 10(2) CCPA) and generally utilises the sentencing options available for sentencing adults. However, the Local Court may exercise the sentencing options outlined in s 33 CCPA when dealing with a child convicted of a traffic offence (s 210 Criminal Procedure Act 1986 (NSW)). When addressing a court on sentencing options in these circumstances, you should consider submitting that the matter be finalised under s 33 CCPA. The Local Court cannot impose a sentence of imprisonment on a child found guilty of a traffic offence (s 210(3) Criminal Procedure Act 1986 (NSW)) but can impose a control order (s 33(1)(g) CCPA).
Dealing with matters in the Childrens Court and dealing with matters according to law
A child shall be dealt with according to law, as opposed to under the CCPA, for a serious childrens indictable offence (s 17 CCPA). Section 31 CCPA states that if a person is charged before the Childrens Court with an offence (whether indictable or otherwise) other than a serious childrens indictable offence, the proceedings for the offence shall be dealt with summarily. The exceptions to this are: A Practitioners Guide to Criminal Law 133
If the person charged wishes to take his/her matter to trial (s 31 (2) CCPA); or If the person is charged with an indictable offence and the Childrens Court is of the opinion, after all the evidence for the prosecution has been taken (s 31 (3) CCPA): Having regard to the evidence, the evidence is capable of satisfying a jury beyond reasonable doubt that the person committed an indictable offence; and The charge may not be properly disposed of in a summary manner,
the proceedings for the offence shall not be dealt with summarily but shall be dealt with in accordance with s 65 Criminal Procedures Act 1986 (NSW). This mans the matters are dealt with as if they are committal proceedings. See chapter 6.for a discussion of the procedure relating to committals. The matters that the court must take into account these matters when considering whether a child should be dealt with according to law (s 18(1A)): The seriousness of the indictable offence concerned; The nature of the indictable offence concerned; The age and maturity of the person at the time of the offence and at the time of sentencing; The seriousness, nature and number of any prior offences committed by the person; Such other matters as the court considers relevant.
These matters seem to codify the matters set out in R v WKR (1993) 32 NSWLR 447. A higher court that determines to deal with a child under the CCPA may remit the child to the Children's Court to be sentenced (s 20 CCPA).
134
The Children's Court must take into account that the child has pleaded guilty, when the child pleaded guilty or indicated an intention to plead and accordingly reduce any order it would otherwise have made. If the Children's Court does not reduce an order, it must state that fact and the reason(s) for not reducing the order (s 33B CCPA).
Section 33(1)(d) of the CCPABoth (b) and (c) above. Section 33(1)(e) of the CCPAA probation order with conditions as the court sees fit for a period not exceeding 2 years. Section 33(1)(f) of the CCPAA community service order (CSO).
Pursuant to s 13 Children (Community Service Orders) Act 1987 (NSW) the number of hours that a CSO cannot exceed: If the child is under 16 years old100 hours; If the child is 16 years or older: 100 hours if the maximum period of imprisonment for the offence does not exceed 6 months; 200 hours if the maximum period of imprisonment for the offence is greater than 6 months but less than 1 year; 250 hours if the maximum period of imprisonment for the offence is greater than 1 year;
The Childrens Court may make more than one CSO run concurrent (s 10 Children (Community Service Orders) Act 1987 (NSW)). Section 33(1)(g) Control order for a period not exceeding 2 years. A control order may be cumulative or concurrent (s 33A). The Children's Court cannot accumulate more than 2 periods specified in control orders (s 33A(4)(b)). The Children's Court cannot make a control order or direction that would have the effect of detaining a child for more than 3 years (s 33A). When a child is sentenced to a control order, the Children's Court must record the reason why the matter has been dealt with by way of control and the reason that it would be wholly inappropriate to deal with the child under s 33(1)(a)(f) (s 35 CCPA). The imposition of a 135
control order is clearly a last resort. This notion is reinforced by Article 37 of the UN Convention on the Rights of the Child. The Children's Court must obtain a background report from the Department of Juvenile Justice (DJJ) before sentencing a child to a control order (s 25(2) CCPA).
Section 33(1B) Suspended sentence. The Children's Court may make an order suspending the execution of an order under s 33(1)(g) for a specified period (not exceeding the term of that order) and release the person on condition that the person enters into a good behaviour bond under s 33(1)(b). A breach of a s 33(1B) suspended sentence is dealt with under s 41A CCPA. Section 41A(2) states that the bond is to be terminated unless the court is satisfied that: The breach was trivial ( s41A(2)(a)); or There are good reasons for excusing the failure to comply with the bond ( s 41A(2)(b)).
If the bond is terminated, the suspension of the control order ceases to have effect and Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to that order (that is, a parole and non-parole period may need to be set): s 41A(3) CCPA. The Children's Court may make an order for compensation. The Children's Court must have regard to the childs means and income if any (not the income of the parent/carer). The maximum compensation that may be awarded is $1000 (ss 24 and 36 CCPA).
136
The following are some important points when considering doli incapax: The prosecution must rebut the presumption of doli incapax as an element of the prosecution case. If the presumption is not rebutted, the prosecutions case is not made out at the prima facie level.(see chapter 16) The child must know that the act was seriously wrong as opposed to naughty or childish mischief: R v CRH (unreported, NSW Court of Criminal Appeal, 18 December 1996); C (A Minor) v DPP (1996) 1 AC 1; JM v Runeckles (1984) 79 Crim App R 255. The prosecution evidence must be strong and clear beyond all doubt and contradiction. The act/offence itself is not sufficient to rebut the presumption however horrifying or obviously wrong the act may be: R v CRH (unreported, NSW Court of Criminal Appeal, 18 December 1996); DK v Rooney (unreported, Supreme Court of NSW, 3 July 1996). The older the child, the easier for the prosecution to prove guilty knowledge. An admission in an interview with police does not necessarily rebut the presumption: R v Whitty (1993) 66 A Crim R 462; IPH v Chief Constable of South Wales [1987] Crim LR 42. Prior criminal history and the court alternatives history may be tendered to rebut the presumption: Ivers v Griffiths (unreported, NSW Supreme Court, 22 May 1998). However, where prior matters have no bearing on the case, ss 135 and 137 of the Evidence Act 1995 (NSW) may serve to exclude the record/history. Where the prior matters are of a completely different nature, it is arguable that doli incapax has not been rebutted. If the prosecution seek to rely upon the delivery of a caution to rebut doli incapax, a transcript of the caution or a statement from the person who delivered the caution should be available. If the prosecution seek to call evidence from a parent to rebut the presumption, the court must be satisfied that the parent is aware of their right to object to giving evidence: s 18 Evidence Act 1995 (NSW). Section 188 of the Criminal Procedures Act 1986 (NSW) prevents the prosecution calling the parent or relevant person that accompanies the child to court on the day from giving evidence unless all the other requirements relating to service of the brief of evidence have been complied with (see chapter 4). The prosecution could obtain evidence from a teacher who knows the child well, and/or use an internal school disciplinary hearing to rebut the presumption: Graham v DPP (unreported, Queens Bench, 10 October 1997); C (A Minor) v DPP [1996] 1 AC 1. Flight alone does not rebut the presumption: C (A Minor) v DPP [1996] 1 AC 1; A v DPP [1992] Crim LR 34. Flight in combination with an admission may rebut the presumption in certain circumstances: T v DPP [1997] Crim LR 127; JM v Runeckles (1984) 79 Crim App R 255. Surrounding circumstances may be used by the prosecution to rebut the presumption: R v M (1977) 16 SASR 589; R v Folling (unreported, Queensland Court of Criminal Appeal, 19 May 1998); LMS (1996) 2 Cr App R 50.
It is essential to be aware of whether the prosecution have the requisite evidence to rebut the presumption and be ready to make the appropriate submissions/application.
137
The exception is where the court is satisfied that there was proper and sufficient reason for the absence of such an adult/person and considers that in the circumstances of the case that the statement, admission or confession should be admitted in evidence in the proceedings. This exception does not effect the courts general discretion to exclude any statement if its prejudicial effect would outweigh its probative value (ss 135 and 137 Evidence Act 1995 (NSW)) despite compliance with CCPA. The role of the support person has been outlined as follows: To act as a check upon possible unfair and oppressive behaviour; to assist a child, particularly one who is timid, inarticulate, immature, or inexperienced in matters of law enforcement, who appear to be out of his or her depth, or in need of advice; and also to provide comfort that accompanies knowledge that there is an independent person present during the interview. That role cannot be satisfactorily fulfilled if the support person is himself or herself immature, inexperienced, unfamiliar with the English language, or otherwise unsuitable for the task expected, that is, to intervene if any situation of apparent unfairness or oppression arises, and to give the appropriate advice if it appears the child needs assistance in understanding his or her rights (R v Phung and Huynh [2001] NSWSC 115). The support person must be informed of their role and responsibility and be suitably able to perform the task. Regulation 26 Crimes (Detention After Arrest) Regulation 1998 requires the custody manager to explain to a support person that his/her role is not confined to acting merely as an observer, but also extends to doing the other things specified. The requirement for an informed and appropriate support person to be present should be strictly applied: The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of an investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law (R v Phung and Huynh [2001] NSWSC 115). Furthermore, the custody manager has a positive obligation to assist a vulnerable person or child to exercise their rights (regulation 20). This obligation includes the services offered by the Legal Aid Commissions Youth Hotline being made known to the child, as indicated in R v ME , R v LT and R v CE (unreported, Supreme Court of New South Wales, 3 October 2002): The whole intention of the hotline is that young people would know that it is free, that it is available, and would be able to obtain advice there and then. Failure to make it available is a clear breach of the Act and regulations but, more importantly, in clear breach of the requirement of fairness to the child See also: Part 10A of the Crimes Act 1900 (NSW) and in particular ss 356C, 356D, 356G, 356M, 356N and 356P. The Crimes (Detention After Arrest) Regulation 1998 and particular regulations 4, 20, 21, 22, 25, 26, 27 and 29. R v H (1996) 85 A Crim R 481.
138
Evidence that a child has been dealt with under the Young Offenders Act 1997 (YOA) is not to be admitted into evidence in any criminal proceedings subsequently taken against the person in any court other than the Children's Court (s 15(3) CCPA and s 67 YOA). For the purpose of the Criminal Records Act 1991 (NSW), any order made under s 33 CCPA (other than an order dismissing a charge pursuant to s 33(1)(a)) is treated as a conviction. This is even if the court cannot, or decides not to, record a conviction (s 5 Criminal Records Act 1991 (NSW)). The conviction remains a conviction until it is spent. A conviction is considered spent under s 8 Criminal Records Act 1991 (NSW): On completion of the relevant crime-free period, which in the case of an order of the Childrens Court under s 33 CCPA, is any period not less than three consecutive years after the date of the order during which: The person has not been subject to a control order; and The person has not been convicted of an offence punishable by imprisonment; and The person has not been in prison because of a conviction for any offence and has not been unlawfully at large (s 10 Criminal Records Act 1991 (NSW)).
When a court finds that an offence proved, or that a person is guilty of an offence, but does not proceed to conviction, the conviction is spent immediately after the finding is made (s 8(2) Criminal Records Act 1991 (NSW)). Most convictions are capable of becoming spent. However, some offences are specifically excluded from this provision. For example sexual offences, defined in s 7 (4) Criminal Records Act 1991 (NSW) are not capable of becoming spent. These offences remain as convictions for the purpose of that Act despite the fact that under the CCPA a magistrate cannot record a conviction or may determine to refuse to record a conviction. See also the Criminal Records Regulation 2004.
Early release pursuant to the Children (Detention Centres) Act 1987 (NSW)
A child who is serving a control order in a detention centre may be released from the detention centre before control order expires. This release is pursuant to s 24(1)(c) Children (Detention Centres) Act 1987 (NSW).and is commonly referred to as early release or conditional release. The Director-General of the Department of Juvenile Justice may by order in writing discharge a person who is subject to control from detention if the Director-General has made arrangements for the person to serve the period of detention by way of periodic detention or made suitable arrangements for the supervision of the person during the period. (Facilities for periodic detention for children do not currently exist in New South Wales). Supervision under early release is usually provided by the Intensive Programs Unit (IPU) of the Department of Juvenile Justice. If the conditions of early release are breached, a warrant will be issued and the child returned direct to the custody of the Detention Centre. Early or conditional release is available to children serving a control order. It is not available to children serving a sentence of imprisonment for a serious childrens indictable offence. Early or conditional release is a discretionary and administrative function of the Director-General. A sentencing court cannot direct or authorise the Director-General to permit a child to early release. However, the Childrens Court will occasionally make a recommendation that the Director-General consider early release after a specified period of time. While a recommendation may be expedient in a particular case, as a general rule it is undesirable: R v Sherbon (unreported, NSW Court of Criminal Appeal, 5 December 1991). A recommendation may be considered appropriate when a sentencing court does not find special circumstances to vary the usual ratio between the parole and non-parole period.
139
Serving a sentence in a juvenile detention centre rather than an adult correctional centre
A child will serve a control order or term of imprisonment in a juvenile detention centre until the child turns 18 years old. If a court sentences a person under 21 years of age to imprisonment in respect of an indictable offence, the court may make an order directing that the whole or any part of the term of the sentence of imprisonment be served in a detention centre (s 19(1) CCPA). A person is not eligible to serve a sentence in a detention centre after the person has attained the age of 21 years unless the non-parole period or term of the sentence of imprisonment will expire within 6 months of attaining the age of 21 (s 19(2) CCPA). A person sentenced to imprisonment for a serious childrens indictable offence is not eligible to serve a sentence of imprisonment in a Detention Centre after the person has attained the age of 18 years unless (s 19(3)): The sentencing court is satisfied that there are special circumstances justifying detention of the person in a detention centre; or The non-parole period or term of the sentence of imprisonment will expire within 6 months of the person attaining the age of 18.
In determining special circumstances justifying detention of the person in a detention centre the court is to have regard to the following matters (s 19(4) CCPA): The degree of vulnerability of the person; The availability of appropriate services or programs at the place the person will serve the sentence of imprisonment; Any other matter that the court thinks fit.
With the leave of the court, a person who is subject to an order that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order (s 19(5) CCPAADA). This provision gives a child, whose application was unsuccessful at first instance, a second opportunity to make the application at the time of transfer from a juvenile detention centre to an adult correctional centre.
140
present during proceedings. The media are entitled to be present during proceedings (unless the court directs otherwise). Any family victim is also entitled to be present (see s 10 CCPA). While the media are entitled to be present, the publication and broadcasting of the names of both child offenders and child victim/witnesses are subject to s 11 CCPA. All practitioners and the police prosecutor remain seated at the bar table. You do not stand up when you address the Magistrate. Your client is referred to as the child or young person as opposed to the defendant or prisoner. When appearing in the Childrens Court for a child who is over 16 years old and under 18 years old, always address the court on exercising the discretion set out in s 14 CCPA to refuse to record a conviction. A report regarding the sentencing options for a child is called a background report and not a PreSentence Report (PSR). The background report is prepared by the Department of Juvenile Justice. The prosecutor usually tenders the childs Criminal History and Court Alternatives History. The Court Alternatives History is not referred to as a record. Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to children (unless the child is being dealt with according to law).The corresponding provision for children to s 10 is s 33(1)(a) CCPA A child is sentenced to a control order, not a term of imprisonment (unless the child is being sentenced according to law). When a child is dealt with in the Local Court for a traffic offence, the court does not need to be a closed court (s 10(2) CCPA). Be aware of the maximum penalties and compensation that can be awarded and advise the child accordingly. Whilst the maximum compensation that a court can award against a child is $1,000, the child is potentially open to civil proceedings or a Victims Compensation Claim for an amount greater than $1,000. Note that any admission made in accordance with a matter being finalised under the YOA is not admissible in other proceedings (s 67 YOA). If a child is being sentenced for an offence of escape custody, the Childrens Court does not have to accumulate the sentence (as is the case with adults see s 58 Crimes (Sentencing Procedure) Act1999 (NSW)). The sentence (if by way of a control order) may be concurrent. The maximum penalty for escape is three months (s 33(1) Children (Detention Centres) Act 1987 (NSW)). When appearing for a child, who a court has convicted of an offence, an application should be made to the court to direct that the child be exempt from paying a compensation levy. The court has power to make this direction under s 79 Victim Support and Rehabilitation Act 1996 (NSW). When the Children's Court deals with a matter under s 33(1)(a) or finds a child not guilty of an offence the Children's Court is to order the childs fingerprints to be destroyed. When the Children's Court exercises the powers conferred on it by s 33(1)(b)-(g) and is of the opinion that the circumstances of the case justify its doing so, the Children's Court may order that the fingerprints etc be destroyed (s 38 CCPA). You should make submissions regarding this issue if applicable. When appearing for a child on a traffic offence in the Childrens Court, Local Court or on a District Court appeal, consider the age of the child, whether any conviction can be recorded, whether the child is to be, or has been, disqualified from driving for the traffic offence (especially if a further period of disqualification would accumulate). When appearing for a child who committed or is alleged to have committed a sexual offence against another child, be aware of the operation of the Child Protection (Offender Registration) Act 2000 (NSW) applies. This is because the (CP(OR)A) applies to children. The Intensive Programs Unit of the Department of Juvenile Justice conducts a specific program, the Sex Offender Program, to assist such offenders. The CP(OR)A is discussed in detail in Chapter 22(c). Be familiar with how the Crimes (Forensic Procedures) Act 2000 (NSW) (C(FP)A) applies to your child client. The C(FP)A is particularly significant in the Childrens Court because a child (or adult on behalf of the child) cannot consent to the taking of a forensic sample. All forensic procedures taken from a child must be by way of order from the Court. The C(FP)A is discussed in detail in Chapter 8. 141
When appearing for a child charged with a Commonwealth offence under the Crimes Act (1914) (Cth) note that s 26 of the Act provides that the State sentencing options apply. The Legal Aid Commissions Youth Hotline (1800 10 18 10) is a legal advice telephone service available for children under 18 years old. The Hotline is open each weekday from 9.00am to midnight and 24 hours public holidays and from Friday 9.00am through to midnight on Sunday. Practitioners can find out the details of the advice given to their client (with their clients consent) from the Legal Aid Commissions Childrens Legal Service.
142
14
Young Offenders Act 1997 (NSW)
The Young Offenders Act 1997 (NSW) (YOA) establishes an alternate regime for dealing with young people who commit certain offences, by diverting them from the Childrens Court. The YOA provides the legislative framework for warnings, cautions and Youth Justice Conferences (YJC). All sections referred to in this chapter are references to the YOA unless otherwise specified. The YOA defines child as a person who is of or over the age of ten years and under the age of 18 years.
The principles of this diversionary scheme, contained in s 7, include: The least restrictive form of sanction is to be applied against a young person who is alleged to have committed an offence; The young person is to be informed about the right to obtain legal advice; Criminal proceedings are not to be instituted against a young person if an alternate (and appropriate) way of dealing with the young person is available; Criminal proceedings are not to be instituted solely to advance the welfare of the young person or family; If appropriate, young persons should be dealt with in their communities to assist reintegration and to sustain family and community ties; Parents are to be recognised as primarily responsible for the development of the young person; Victims are entitled to receive information regarding potential involvement in any action in accordance with the YOA.
147
Traffic offences committed by a young person of licensable age (16 years of age for a motor vehicle and 16 years and 9 months of age for a motor cycle); Offences that result in the death of any person; Sexual offences under ss 61E, 61L, 61M, 61N, 61O(1), (1A) or (2), 66C, 66D, 80, 81A, and 81B of the Crimes Act 1900 (NSW); An offence under Part 15A (apprehended violence offences) of the Crimes Act 1900 (NSW); An offence under Division 1 of Part 2 of the Drug Misuse and Trafficking Act 1985 (NSW) that, in the opinion of the investigation official or prosecuting authority, is more than a small quantity within the meaning of the Act; An offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985 (NSW) other than: An offence under ss 23(1)(a) or (c) that involves not more than half the small quantity as defined in the Act, or, in exceptional circumstances, where the quantity is more than half the small quantity but less than the total small quantity, and it would be in the interests of rehabilitation and appropriate in all the circumstances to deal with it under the YOA; or An offence under ss 27 or 28 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence under ss 23(1)(a) or (c) that involves not more than half the small quantity as defined in the Act, or, in exceptional circumstances, where the quantity is more than half the small quantity but less than the total small quantity, and it would be in the interests of rehabilitation and appropriate in all the circumstances to deal with it under the YOA.
The relevant considerations as to whether a matter should be cautioned or referred to a YJC are as follows (ss 20(3) and 37(3)): Seriousness of the offence; Degree of violence involved in the offence; The harm caused to any victim; The number and nature of any offences committed by the child and the number of times the child has been dealt with under the YOA; Any other matter the official thinks appropriate in the circumstances.
If a caution is given to a child, or the child satisfactorily completes an outcome plan in accordance with a YJC referral, no further proceedings may be taken against the child: For any offence in respect of which the caution or YJC was given; or For any other offence in respect of which proceedings could not be commenced, if the child had been convicted of the offence for which the caution or conference was given (ss 32 and 58).
The investigating official must keep a record of any warning, caution or YJC (ss 17, 33, and 59). This is usually by way of a Court Alternatives History.
148
Cautions
A young person is entitled to be dealt with by way of caution if the investigating official determines that a warning is not appropriate or a warning may not be given. The exception is where the investigating official is of the view that a caution is not appropriate because it is contrary to the interests of justice to deal with the matter by way of caution (ss 20(1) and (2)); Notwithstanding the above, a young person is not entitled to be dealt with by caution in relation to an offence if the young person has been dealt with by caution on three or more occasions. This exemption applies whether it is the police officer, youth liaison officer or court that is considering the caution and whether the caution is sought for offences of the same or of a different kind to the previously administered cautions (s 20(7)); The matter may be referred to a specialist youth officer to make this decision (s 20); The young person is to receive written notice prior to receiving the caution (s 24). If practicable, a caution must be given not less than 10 days and not more than more 21 days after notice of the caution is given (s 26). A caution must be given at a police station (s 26 (2)) but may be given at another place if the person giving the caution is of the opinion that it is appropriate to do so (s 26(3)); At any time before the caution is given, the young person may decide not to proceed and to have the matter dealt with by a court (s 25(1)); The investigating official may determine that it is not in the interests of justice to deal with the matter by way of caution and refer the matter to a specialist youth officer to consider whether action should be taken in regard to a YJC referral (s 25(2)); The Childrens Court may give a caution under the YOA if the offence is one for which a caution may be given. If the Court exercises this option, the Local Area Commander of the police station (closest to where the offence occurred) is given written notice of this decision and the reasons for the decision (s 31). The Childrens Court regularly disposes of matters by way of YOA caution in instances where a young person has exercised a right to silence at the police station and/or does not make the required admission to the offence.
The ODPP or court (if either was the referring body) may determine that the matter should not by dealt with by way of conference (s 44(3)); A child referred to a YJC is entitled to be advised (but not represented) by a legal practitioner (s 50(1)) unless the conference convenor permits the child to be represented either generally or subject to conditions (s 50(2)). The young person; The conference convenor; A person responsible for the young person; A member of the childs family or extended family; An adult chosen by the child; A legal practitioner advising the child; The investigating official; A specialist youth officer; Any victim or person chosen by the victim as a representative; A support person (s 47(1)); Other persons (such as a respected member of the community, interpreter, social worker) may be invited to attend the conference (s 47(2)).
The aim of the conference is to reach agreement on an outcome plan that the young person can complete. The following principles apply to outcome plans: The outcome plan may provide for an oral or written apology, reparation to the victim, participation by the child in a program or action towards the reintegration of the child into the community (s 52(2)); The outcome plan must contain outcomes that are realistic and appropriate and sanctions that are not more severe than those that a court may impose; The outcome plan must set a timeframe for implementation and cannot impose an obligation to do community service work that exceeds the maximum amount that may be imposed according to the Children (Community Service Orders) Act 1987 (NSW) (previously outlined in the Childrens Court chapter) (s 52, r 19 Young Offenders Regulations); The Act and Regulations may make provision regarding what must be included in an outcome plan for a particular type of offence. Examples of such provisions are those that relate to arson and bushfire offences.
150
It is well recognised in case law that deprivation of liberty following arrest is the most restrictive form of sanction. In light of the principles of the YOA, more particularly, that the least restrictive form of sanction is to be applied against a child who is alleged to have committed an offence, having regard to matters required to be considered under this Act, it is inappropriate and unsatisfactory for a child to be arrested for the purpose of delivery of a YOA option, or to be arrested when the application of a YOA option would have been an appropriate penalty. Arrest, when a YOA option would have been appropriate, may be relevant to sentence and (in appropriate matters) form the basis for submissions that a child be extended the benefit of a more lenient YOA option than otherwise appropriate in the absence of arrest; It is often thought that any offence involving domestic violence is excluded from the YOA. This is not correct. The only domestic violence offences specifically excluded from the Act are offences under Part 15A Crimes Act 1900 (NSW). An assault or malicious damage offence, which arises in a domestic situation, is not specifically excluded from the Act. If appearing for a client charged with an assault and contravene Apprehended Domestic Violence Order (ADVO) (if otherwise eligible for a YOA option) it may be appropriate to make representations to the Police that the Contravene ADVO charge be withdrawn or alternatively, seek to have the assault referred under the YOA and adjourn the sentence of the Contravene ADVO charge until completion of the outcome plan for the assault matter; The Young Offenders Regulation (r 20) makes particular provision for the referral of juvenile arson and bushfire offenders to a YJC. Regulation 20 applies to a child who commits an offence that consists of the lighting of a bushfire or the destruction or damage of property by means of fire. An outcome plan for one of these offences must include: Attendance by the child at a burns unit or ward of hospital that agree to participate in the YJC scheme; The making of reparation for the offence, such as: Assistance in clean-up operations and in treatment of injured animals; and The payment of compensation (not exceeding the amount that a court may impose on conviction for the offence). In addition, the Department of Juvenile Justice released a Supplementary Guideline for dealing with these offences that makes provision for the psychological assessment of a child prior to participating in the required outcome plan and for the involvement of various Rural Fire Services and Bushfire Squads. Regulation 20 is a particularly useful tool for dealing with the more serious arson and bushfire offences as the onerous nature of the requirements of the outcome plan rebut any notion that a referral to a YJC is a soft option.
151
15
Youth Drug and Alcohol Court
The Youth Drug and Alcohol Court (YDAC) commenced in Western Sydney in July 2000. It has recently expanded its catchment area to include Central and Eastern Sydney. The YDAC currently sits at Campbelltown Childrens Court, Cobham Childrens Court (Werrington), Bidura Childrens Court (Glebe), and such other court as directed by the Senior Childrens Magistrate. The YDAC Registry is located at Campbelltown Court Complex. The YDAC has a Court Team comprising: A Childrens Court Magistrate; YDAC Registrar; Police Prosecutor; Solicitor, Childrens Legal Service, Legal Aid Commission; and A representative from the Joint Assessment and Review Team (JART). Department of Juvenile Justice; Department of Community Services; Department of Education and Training; and Justice Health, Department of Health.
The YDAC is not governed by separate legislation of its own. It sits and operates within the Childrens Court system and is governed by the following: Bail Act 1978 (NSW); Children (Criminal Proceedings) Act 1987 (NSW) (CCPA); Childrens Court Practice Direction No 23: Youth Drug and Alcohol Court.
Sections 33(1)(c2) and 50B were inserted into the CCPA to facilitate the operation of the YDAC. It should be noted that Childrens Court Practice Directions 18 and 19 were withdrawn from 1 August 2004, and replaced by Childrens Court Practice Direction 23.
It is important to note that Practice Direction 23 paragraph 5 (b) states that the court of its own motion, may refer a young person for assessment of their suitability for the YDAC program without their consent.
JART recommend to the YDAC whether or not the young person is eligible for the YDAC program. If the YDAC Magistrate determines the young person is eligible to participate in the YDAC program, the matter is adjourned for a period of 14 days for a Comprehensive Assessment of the young persons suitability for the YDAC program. This assessment is undertaken by JART. A Comprehensive Assessment can be conducted either in custody or whilst the child is in the community on bail. If the young person is found to be ineligible for the program, the YDAC Magistrate will generally remit the matter to the referring court for finalisation. Even if a young person is found to be eligible, the YDAC Magistrate may exercise his or her discretion and exclude the young person from the YDAC program. Circumstances in which such discretion, may be exercised include: The monthly quota has been reached; The young person is eligible to receive a caution; The young person is eligible to be referred to a youth justice conference; There is no likelihood of a control order being imposed; and The young persons offence/s and/or their history of offending is such that a control order/s will be imposed despite satisfactory completion of the YDAC program.
154
Non compliance with the Youth Drug and Alcohol Court program
Non-compliance with YDAC program arises when the child is in breach of their YDAC program. Breaches of YDAC program will be assessed by the Manager of JART, who will determine whether the nature of the breach is serious or minor.
Serious breaches
If the young person is alleged to have been in breach of their program plan, and that breach is assessed by the Manager of JART to be a serious breach, the Manager of JART will advise the YDAC Police Prosecutor. The YDAC Police Prosecutor may then make an application to the YDAC Registrar for a warrant of apprehension be issued. Upon execution of the arrest warrant, the arresting police or custody manager will notify the YDAC Police Prosecutor. When the young person is brought before the YDAC, the breach will either be admitted or denied. If the breach is admitted or proved, the matter will be adjourned for two weeks for a review by JART to take place. JART will provide the YDAC Court Team with a treatment review report and recommendations. The YDAC Magistrate will, after hearing any submissions, determine if the young person is to be discharged from the program and sentenced or if they are to be allowed to continue with the YDAC program. The YDAC Magistrate will also consider if: A Practitioners Guide to Criminal Law 155
The current program plan needs to be altered; or The current program plan needs to be extended.
Minor breaches
If the young person is alleged to have been in breach of their program plan, and that breach is assessed by the Manager of JART to be a minor breach, the Manager will direct the young person to attend the YDAC on its next sitting day. If the young person does not attend as directed, the Manager of JART may proceed as if the breach was a serious breach, unless there is good reason for non-attendance. For a minor breach, if the breach is admitted or proved, the YDAC Magistrate may, after hearing any submissions, determine that the young person remain on the YDAC program: On the current Program Plan; or On an adjusted Program Plan; or That the time for completion of the current Program Plan is to be extended; or That a discharge hearing be conducted.
In the case of a second or subsequent breach the Manager of JART may recommend that proceedings be commenced as if it were a serious breach.
Sentencing
Sentencing occurs in accordance with s 33(1) CCPA. The YDAC Magistrate will take the young persons participation in the program and, where appropriate, the young persons successful completion of the program, into account in determining the sentence (Practice Direction 23 paragraph 19).
156
161
16
Preparing Local Court defended hearings
The purpose of this chapter is to set out ways to approach preparing a defended hearing in the Local Court. There are several ways to approach a defended hearing, and each advocate will have a different approach. The approach set out in this chapter is a guide to matters to be considered when preparing a Local Court defended hearing, from a defence perspective. The purpose of this chapter is not to discuss the law or the practical aspects of advocacy in detail. There are many other books that discuss both, and some of these books are set out at the end of this chapter.
The offence
What is your client charged with?
It is important as part of your preparation to be aware of the precise offence that your client is charged with and to thoroughly research the law in relation to that offence. A number of offences have specific legal principles. For example: In relation to offences of receiving or disposing of stolen property (ss 188 and 189 Crimes Act) there is an element of knowing that an item was stolen. Knowing has a specific meaning at law. In relation to malicious wounding (s 35 Crimes Act) the intention that has to be proved is the intention to cause some physical injury and not the particular injury that may have been caused (R v Stokes and Difford (1990) 51 A Crim R 25).
You will find commentaries on the law relating to specific offences in a good loose-leaf service on criminal law.
An offence may include a number of different types of conduct. It is important to be aware of exactly what exactly the type of conduct is alleged by the prosecution. For example, Goods in Custody (s 527C Crimes Act) encompasses a person: Having any thing in his or her custody, Having any thing in the custody of another person, Having any thing in or on premises, whether belonging to or occupied by him or her, or whether that thing is there for his/her own use or the use of another, or Giving custody of any thing to a person who is not lawfully entitled to possession of the thing,
and that thing may be reasonably suspected of being stolen or otherwise unlawfully obtained. A Practitioners Guide to Criminal Law 161
After you have examined the elements, you should re-examine the wording of the charge for possible defects. For example, the offence might be duplicitous or might be ambiguous.
Where Crimes Act provisions have been amended, repealed or substituted, the correct section to lay an offence under depends on the date of offence.
The statement of the victim. Statements of civilian witnesses, if any Statements of expert witnesses, if any. Results of forensic tests, such as blood alcohol tests. Photographs, plans, sketches and other similar documents, if any.
Always check that the statements in the brief have been signed. Note that the prosecution is under a continuing obligation to make full disclosure to the accused in a timely manner of all material known to the prosecutor, which may be relevant to a fact in issue (see the Office of Director of Public Prosecutions Guideline 18).
Making requisitions and requests for particulars: sections 166169 Evidence Act 1995 (NSW)
Once you have read the police brief of evidence, consider if you need further information. Often there will be additional information or details that you require that is not contained in the brief of evidence. The way to get this information is to make requisitions or to seek particulars from the prosecution. This is done by writing to the officer in charge of the matter and sending a copy of that letter to the Senior Police Prosecutor at the police station closest to the courthouse where the matter is going to be dealt with. Examples of matters that might be requisitioned, if relevant, are: Your clients criminal record. The criminal records of the victim or other relevant witnesses. Original medical and other records. Applications for search warrants and listening device warrants. Part 10A Crimes Act custody management records. Other documents that are referred to in the brief but are not contained in the brief.
Requests are dealt with in ss 166 - 169 Evidence Act. Those sections set out matters about which requests can be made, the time limits for making requests and the consequences of failure or refusal to comply with such requests.
Your instructions
What is your client's version of the events?
You must take instructions from your client on their version of events and on the statements and other material contained in the police brief of evidence. You should always get your client to sign his/her instructions to you.
163
Although in practice a Police Prosecutor is likely to be reading the brief of evidence on the date of the hearing, you can ring the Police Prosecutors at the police station closest to where the court is that you are appearing in, and ask to speak to either the Senior Police Prosecutor or another police prosecutor to discuss your matter. This problem does not occur when the DPP has carriage of a matter, as a solicitor is allocated to each individual matter.
Subpoenaing documents
Subpoenas are often issued to obtain material that might not have been provided by the prosecution. See chapter 7.
164
The hearing
Both the Criminal Procedure Act 1986 (NSW)(particularly Chapter 4 Part 2) and the Evidence Act 1995 (NSW) contain a number of important sections relating to the taking of evidence from witnesses. Some of the important sections to be aware of are set out below.
Questioning witnesses
Section 29 Evidence ActA party may question a witness in any way the party thinks fit, except where such questioning contravenes the Evidence Act or a direction of the court. Section 37 Evidence ActA leading question is one that suggests the answer, or presumes matters not yet in evidence. A leading question must not be put to a witness in examination in chief or in re-examination except in certain circumstances, including where the court gives leave or the question relates to a matter that is not in dispute. Section 39 Evidence ActOn re-examination, a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and other questions may not be put to the witness unless the court gives leave. Section 42 Evidence ActLeading questions in cross examination. A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it. The court may take into account a number of matters in deciding whether to disallow the question or give such a direction, including the extent to which evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, the witness age, or any mental, intellectual or physical disability to which the witness is subject, and which may affect the witness answers.
Improper questions
Section 41 Evidence ActImproper questions The court may disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the question is misleading, or unduly annoying, harassing, intimidating, offensive, oppressive or repetitive. For the purposes of the section, the court can take into account, certain matters including any relevant condition or characteristic of the witness, as well as age, personality and education, and any mental, intellectual or physical disability to which the witness is or appears to be subject.
165
Exclusion of evidence
Admissibility of evidence
You should rigorously apply the Evidence Act to what is contained in the brief of evidence to determine what the admissible evidence is. This will help you determine what the issues will be at the hearing. For example, identification evidence is only admissible in certain circumstances (see ss 114116 Evidence Act) and even if admissible, the evidence may be subject to a warning in relation to its reliability (s 165(1)(d) Evidence Act). See below for a discussion of some of the grounds on which evidence can be excluded.
Objections
If the evidence sounds or seems objectionable to you, it probably is objectionable. In these circumstances, it is generally preferable to make an objection and then formulate the grounds for objection. You object to evidence by standing and stating I object. It is useful to start off your objection by saying, for example, This is hearsay evidence, because or This is not relevant evidence, because . Similarly, the answer to an objection to evidence you are calling will be effective when it commences with a direct explanation of the answer to the objection. For example, this is not hearsay evidence because There can be no substitute for a thorough understanding of the Evidence Act and the grounds for objection contained in the Evidence Act. It is useful to have a list of headings of the most common grounds for objection to assist you in determining the basis of your objection. Some of these grounds are: Relevance (Part 3.1 Evidence Act). Hearsay (Part 3.2 Evidence Act). Opinion evidence (Part 3.3 Evidence Act).
The exclusion of prejudicial evidence in criminal proceedings. Such evidence must be excluded if the probative value of evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant (s 137). The exclusion of improperly or illegally obtained evidence (s 138).
Oral questioning of witnesses in the absence of videotape or audio taped questioning of the witnesses (s 13 Children (Criminal Proceedings) Act 1987 (NSW); s 281 Criminal Procedure Act) 1986 (NSW). Police impropriety (ss 84, 85, 86, 90 Evidence Act).
Proven impropriety in the conduct of police may lead to the exclusion of evidence improperly or illegally obtained (s 138 Evidence Act).
167
Alternately, you may make a submission (commonly referred to as the 'second limb of May v O'Sullivan') that on the whole of the evidence before it, the Court is not satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact. You need to be mindful about making a 'second limb of May v O'Sullivan submission as some Magistrates take the view that, if the submission is made and is unsuccessful, the defendant is precluded from giving evidence or calling evidence in the defence case. It is advisable to ask the Magistrate about his/her opinion on this rule before making such a submission. If you are not making either of these submissions, you then have to decide whether you go into the defence case. This section of this chapter discusses the defence case.
Opening statements
Section 159 Criminal Procedure Act allows an accused person or his/her counsel to make opening addresses at two points: Immediately after the opening address by the prosecutor. Any such opening address is to be limited generally to an address on the matters disclosed in the prosecutors opening address, including those that are in dispute and those that are not in dispute, and the matters to be raised by the accused person.
If the accused intends to give evidence or to call any witness in support of the defence, the accused person or his or her counsel is entitled to open the case for the defence before calling evidence, whether or not an address has been made to the jury after the prosecutor's opening address. Although s 159 refers specifically to addresses to the jury, opening addresses in the Local Court can also be used effectively. Your opening address will be the first opportunity to tell the Magistrate what the case is about. The Magistrate might be assisted with being given a general indication of the matters in issue. In your opening address you will want to clearly and logically outline the facts, and perhaps give a general outline of the issues involved in the case. The purpose of the opening address is not to put a legal argument (that is for the closing address). You should always be mindful about not disclosing too much of your case to the Crown. To call your client or not to call your client? If you are going to call evidence on your client's behalf you need to consider whether to call your client. If you decide to call your client to give evidence generally your client will be the first witness you call. Every accused has a right to silence. They do not have to give sworn evidence in the witness box. The decision to call your client to give evidence is an important one. The advantage is, that the magistrate will hear your client's sworn evidence. There are a number of disadvantages. Your client might not cope well under cross-examination. Your client may not make a good witness (you will be able to assess this through your conference with your client). There may be good reasons, such as proof of technical matters which the prosecution may be assisted with if your client was to give evidence. However, it is important to note though if you do not call evidence in the Local Court, you are precluded from calling fresh evidence at an appeal against conviction to the District Court. The exception is if you have the leave of the District Court and only if it is in the interests of justice (s 18 Crimes (Local Courts Appeal and Review) Act). Calling a client to give evidence is not a necessity, and in some cases, it may be better for the client to exercise their right to silence. Each case (and client) must be assessed before such a decision is made, and you should get your clients clear instructions about whether he/she wishes to give evidence.
Preparing questions
It is always more persuasive to be able to look at a witness, and to listen to the answers that a witness gives. For this reason, writing down every question you propose to ask is rarely helpful. It may be more helpful to write down a list of topics or areas for examination in chief and cross examination. If you are well prepared, you will have a good understanding of the case and the evidence you are trying to elicit, and you can rely on your notes less. 168 Chapter 16: Preparing Local Court defended hearings
Closing addresses
The closing is the last opportunity where you will have to present your version of the events and your position in relation to the facts and the issues to the magistrate. The closing is a presentation of an argument to the magistrate as to why your client should be acquitted of the offence. Some of the important parts of a closing address are: Addressing how the facts assist your case. Weaving your instructions into the argument. Using exhibits and visual aids. Pointing out the weaknesses in the other sides case. Addressing the weaknesses in your own case.
169
Witnesses are not usually called to give evidence once again in the District Court. This is unless the court grants leave for such witnesses to appear, should it be necessary to do so, in order to bring fresh evidence before the court.
Bail
If your client is likely to be given a sentence of imprisonment after conviction and sentencing, you should have sufficient instructions to be able to apply for bail on your clients behalf. If your client is looking at a sentence of imprisonment if convicted and sentenced, you would need to inform your client of this possibility before the hearing. Discussing possible sentence options upon conviction and obtaining instructions on this issue will allow you to be prepared for an appeals bail application if your client is in fact convicted and sentenced to full time imprisonment.
Some of the areas covered in the Practice Note are described below. Setting matters down for hearing The Practice Note states that when setting matters down for hearing, parties must be in a position to advise the court of: The dates upon which the parties and their witnesses are available; The estimated length of hearing time; That all interlocutory matters have been completed; That the matter is otherwise ready to proceed; If subpoenas are to be issued; and If a date prior to the hearing date is required for return of subpoenas.
170
Adjournment applications
The Practice Note sets out the following: Adjournment applications are a decision for the court in the proper exercise of judicial discretion. There is no hard and fast rule on the acceptable number of adjournments that should be granted in any matter. As a general rule, practitioners cannot expect the court to consider applications for adjournment in any matter without cogent and compelling reasons. Tardiness in preparation, the late obtaining of instructions, the making of representations or change of counsel does not, of itself, justify the granting of an adjournment by the court.
There is good reason to prepare a closing address first. In a closing address, you will be addressing the court on the law and the facts according to the evidence. Preparing your questioning by preparing your closing address first will alert you to the important issues, and will alert you to the questions you need to ask and evidence you will need to elicit, and from which witnesses you will be seeking this evidence from.
171
In order to be admissible, information given by accused people to police during the course of official questioning usually has to be tape recorded (s 281 Criminal Procedure Act). The tape recording (which is defined in s 281(4) Criminal Procedure Act) is an exhibit when it is tendered in court. The transcript of the videotape is called the aide memoire. It assists the court but is not the actual exhibit. It is important to watch the ERISP or listen to audio tapes of records of interview. It will not only help you work out whether the transcript is accurate, but it may also indicate important aspects of the questioning and your clients manner and condition at the time of questioning which may be relevant in your case (for example, being intoxicated or not in a fit mental state).
172
Part 7 Sentencing
179
17
Sentencing overview
The purpose of this chapter is to outline some fundamental aspects of sentencing. All references in this chapter are to the Crimes (Sentencing Procedure) Act 1999 (NSW), unless indicated otherwise.
The relationship between the objective aspects of an offence and the subjective background of the offender
It is important to consider the relationship between the objective aspects of an offence and the subjective aspects of the offence. The relationship between these two aspects can be seen in the following passage from Dodd (1991) 57 A Crim R 349 at 354 where the Court of Criminal Appeal said: As Jordan CJ pointed out in R v Geddes (36 SR at 556), making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen v R (No 2) (1987-88) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary. (See, for example, the passage from the judgment of Street CJ in R v Todd [1982] 2 NSWLR 517 quoted in Mill v The Queen (1988) 166 CLR 59 at 64). Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case (R v Rushby [1977] 1 NSWLR 594). We consider that to have happened here. In our view the requirement of a reasonable proportionality with the circumstances of the crime called for a significant full-time custodial sentence.
concurrently or cumulatively in order to reflect the total criminality before the court: Pearce v R (1998) 194 CLR 610. Generally, totality is achieved by making sentences wholly or partially concurrent (Pearce v R (1998) 194 CLR 610). In an appropriate case the court may lower individual sentences to take into account the fact that they are to be served cumulatively (Johnson v R [2004] HCA 15 at paragraph 26).
Aggravating factors
The list of aggravating factors which are to be taken into account in determining the appropriate sentence for an offence are as follows: a) The victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victims occupation, The offence involved the actual or threatened use of violence, The offence involved the actual or threatened use of a weapon, The offender has a record of previous convictions, The offence was committed in company, The offence involved gratuitous cruelty, The injury, emotional harm, loss or damage caused by the offence was substantial, The offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), The offence was committed without regard for public safety, The offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, The offender abused a position of trust or authority in relation to the victim, The victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victims occupation (such as a taxi driver, bank teller or service station attendant), The offence involved multiple victims or a series of criminal acts, The offence was part of a planned or organised criminal activity.
b) c) d) e) f) g) h)
i) j) k) l)
m) n)
Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: a) The injury, emotional harm, loss or damage caused by the offence was not substantial, b) The offence was not part of a planned or organised criminal activity, c) The offender was provoked by the victim, d) The offender was acting under duress, e) The offender does not have any record (or any significant record) of previous convictions, f) The offender was a person of good character, g) The offender is unlikely to re-offend,
181
h) The offender has good prospects of rehabilitation, whether by reason of the offenders age or otherwise, i) j) The offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, The offender was not fully aware of the consequences of his or her actions because of the offenders age or any disability, The degree of pre-trial disclosure by the defence (as provided by section 22A),
k) A plea of guilty by the offender (as provided by section 22), l) m) Assistance by the offender to law enforcement authorities (as provided by section 23).
It is always preferable to have evidence to establish your client's contrition, such as:
iii)
iv)
The strength of the Crown case is not to be taken into account in assessing the utilitarian value of the plea of guilty (R v Thomson and Houlton at paragraphs 137 [138; R v Parkinson (2001) 125 A Crim R 1; R v Sutton [2004] NSWCCA 225).
182
x)
xi)
183
In taking matters into account, the sentencing court gives greater weight to the following 2 elements than it would if sentencing only for the primary offence: (i) personal deterrence, and (ii) the community's entitlement to extract retribution for serious offences for which no punishment has been imposed. An offence taken into account is not to be regarded as a conviction. However, ancillary orders such as restitution, compensation, costs, and disqualification/loss of licence may be imposed in relation to Form 1 offences as if they had been convictions. The court has discretion to refuse to take matters into account on a Form 1 in spite of the wishes of the offender and prosecution. The court only needs to take into account further offences if, in all the circumstances, the court considers it appropriate to do so (s 33(2)(b)).
The Court also indicated that, whilst the court has a wide discretion, generally the Form 1 procedure will not be appropriate: For offences which are punishable by life imprisonment. These offences cannot be included on a Form 1 s 33(4)). The maximum sentence allowed in relation to the principal offence is not great enough to allow the total criminality of Form 1 offences to be reflected in the sentence.
184
18
Sentencing options in the Local Court
The sentencing options available to courts dealing with adults are contained in the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Administration of Sentences) Regulation 2001 also contain a number of provisions relating to sentencing options. The purpose of this chapter is to briefly describe the sentencing options available to a court, with particular reference to the Local Court. All references are to the sections in the Crimes (Sentencing Procedure) Act 1999. (NSW) unless stated otherwise.
Non-custodial sentences
Dismissal and conditional discharge (section 10)
Section 10 allows a court, without proceeding to conviction, to find a person guilty of an offence and make any one of these following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enters into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. Section 10(3) sets out the matters that a court must have regard to, which are: (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. These matters are a checklist of what needs to be addressed if you are seeking to have a matter dealt with under s 10. There is a guideline judgment in relation to High Range PCA offences: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303. This guideline judgment discusses the appropriateness of s 10 being used for High Range PCA offences. The guideline is discussed in chapters 17 and 19.
187
Custodial sentences
Suspended sentences (section 12)
A court that imposes a sentence of imprisonment on a person which is not more than 2 years) may make an order suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order on the condition that a person enters into a bond for the term of the sentence. When suspending a sentence of imprisonment, a court may direct that the person be released from custody on condition that the offender enters into a good behaviour bond for a term that is not longer than the term of the sentence. In setting the sentence, a court sets a non-parole period and the balance of the term of the sentence (s 12(3)). A sentence cannot be suspended if the person is subject to some other sentence of imprisonment (s 12(2)). Suspended sentences are particularly useful for offenders where a custodial sentence must be imposed but where there are prospects of rehabilitation. Suspended sentences are sentences of imprisonment, and that they do provide for punishment and deterrence (see, for example, R v JCE (2000) 120 A Crim R 18; R v Zamagias [2002] NSWCCA 17). If a court revokes a suspended sentence, it can then impose a sentence of imprisonment, which is to be served full time, by periodic detention, or by home detention (s 99). For a discussion of revocation of suspended sentences, see R v Tolley [2004] NSWCCA 165.
188
In order to be eligible for periodic detention, your client must be assessed as suitable to perform this order (see s 66). This means that a pre sentence report written by an officer from the Community Offender Service. The pre sentence report will have an assessment of whether your client is suitable to perform periodic detention. Periodic detention cannot be imposed for: An offender who has previously served imprisonment for more than 6 months by way of full-time detention in relation to any one sentence of imprisonment, whether in New South Wales or elsewhere (s 65A). People who are to be sentenced for certain sexual offences (s 65B).
The Parole Board deals with all breaches of periodic detention. If the Parole Board revokes a person's periodic detention order, the Parole Board can direct that a warrant be issued for the persons apprehension and return to custody. Once arrested on the warrant, your client will be kept in custody until such time as they appear before the Parole Board. Bail cannot be granted before your client goes before the Parole Board.
The balance of the term of imprisonment must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more. In R v Way [2004] NSWCCA 131, the Court of Criminal Appeal stated at paragraphs 111 - 113 that if a court finds special circumstances, that it is not required to first determine a minimum term, which was thereafter immutable. Section 44(2) in substance specifies the sequence in which the sentence is to be set, focusing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole. A court may not set a non-parole period for a sentence of imprisonment if the term of the sentence is six months or less (s 46). This means any sentence of six months or less is to be a fixed term of imprisonment. If your client is looking at a sentence of imprisonment of longer than six months, then you would normally ask the court to find special circumstances. The meaning of special circumstances was discussed in R v Moffitt (1990) 20 NSWLR 114 and in R v Simpson (2001) 53 NSWLR 704. Examples of matters that may comprise special circumstances are: Youth. First time in custody. Need to address drug/alcohol issues. Need for an extended period of supervision. The sentence is likely to be served in protective custody (see R v Totten [2003] NSWCCA 207; R v Durocher-Yvon [2003] NSWCCA 299; R v Mostyn [2004] NSWCCA 97). When cumulative sentences are imposed.
189
Multiple sentences of imprisonment (section 58) When a court imposes multiple sentences of imprisonment, it must do so in accordance with Pearce v R (1998) 194 CLR 610, which states that a court: Fixes an appropriate sentence for each offence. Then considers questions of cumulation or concurrence. Finally, considers the totality of the sentences.
The approach in determining whether sentences should be served concurrently or cumulatively was set out by Simpson J (Mason P agreeing) in R v Hammoud (2000) 118 A Crim R 66 at 67 as follows: Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong. As a result of the decision of the High Court in Pearce, the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce, a judge is required to fix 'an appropriate sentence' for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced. Accumulation of sentences in the Local Court Section 58 Crimes (Sentencing Procedure) Act states that the restrictions on a Magistrate when imposing cumulative or partially concurrent and partially cumulative sentences of imprisonment. The Local Court may accumulate sentences to a maximum period of five years: s 58(1). There is no restriction on the power to accumulate sentences. However, the maximum penalties for table offences where there is no election has not changed: ss 267 and 268 Criminal Procedure Act. Section 58(3) states that the restriction on the power to accumulate sentences does not apply if: (a) the new sentence relates to: (i) an offence involving an escape from lawful custody, or (ii) an offence involving an assault or other offence against the person, being an offence committed (while the offender was a convicted inmate) against a correctional officer or (while the offender was a person subject to control) against a juvenile justice officer, and (b) either: (i) the existing sentence (or, if more than one, any of them) was imposed by a court other than a Local Court or the Childrens Court, or (ii) the existing sentence (or, if more than one, each of them) was imposed by a Local Court or the Childrens Court and the date on which the new sentence would end is not more than 5 years and 6 months after the date on which the existing sentence (or, if more than one, the first of them) began. Home Detention (sections 7 and 7483) A court that has sentenced a person to imprisonment for not more than 18 months may make a home detention order, directing that the sentence be served by way of home detention. Home detention is not available: To people to be sentenced for with certain types of offences, including sexual assault of adults or children or sexual offences involving children, any offence involving the use of a firearm, assault occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm), stalking or intimidating a person with the intention of Chapter 18: Sentencing options in the Local Court
190
causing the person to fear personal injury, and a domestic violence offence against any person with whom it is likely the person would live, or continue or resume a relationship, if a home detention order were made (s 76). To people with certain offences on their criminal records, including sexual assault of adults or children or sexual offences involving children, or who has at any time been convicted of an offence of stalking or intimidating a person with the intention of causing the person to fear personal injury, or who has at any time within the last 5 years been convicted of a domestic violence offence against any person with whom it is likely the person would live, or continue or resume a relationship, if a home detention order were made, or who is (or has at any time within the last 5 years been) subject to an apprehended violence order made for the protection of a person with whom it is likely the person would live, or continue or resume a relationship, if a home detention order was made (s 77).
You should apply for your client to be assessed for home detention straight after your client has been sentenced to full time imprisonment. The assessment takes a number of weeks and is conducted by an officer from the Community Offender Service. Your client will sometimes be granted bail during this time. You should let your client know that the conditions of a home detention order are onerous. Home detention is strictly supervised by the Community Offender Service and includes random phone checks, regular urinalysis, and unannounced visits. People on home detention are not allowed to drink alcohol and are obviously not allowed to use illegal drugs. Deferral of sentence to assess rehabilitation and for other purposes (section 11) A court that finds a person guilty of an offence (whether or not it proceeds to conviction) may make an order adjourning proceedings against the person to a specified date, and grant bail to the person, for these purposes: To assess the person's capacity and prospects for rehabilitation, or To allow the person to demonstrate that rehabilitation has taken place, or To assess the person's capacity and prospects for participation in an intervention program, or To allow the person to participate in an intervention program, or For any other purpose the court considers appropriate in the circumstances.
The maximum period for which proceedings may be adjourned under this section is 12 months from the date of the finding of guilt (s 11(2)). The nature of this sentencing option was discussed in detail in R v Trindall [2002] NSWCCA 364 and R v Williams [2004] NSWCCA 64. In practice, a deferral of sentence would not be sought for a first offender or someone with a minor record. The procedure is particularly applicable to clients with long records, serious records, or records comprising repeat/identical/similar offences. If you are asking for your client's sentencing to be deferred pursuant to s 11, it is useful to have reports confirming acceptance to a rehabilitation program or facility, or a course of counselling/supervision if applicable. Non-association and place restriction orders (sections 17a and 100a100h) For any offence that is punishable by imprisonment for 6 months or more, a Court when sentencing a person may make either or both of these orders in respect of that person: A non-association order, which is an order prohibiting the person from associating with a specified person for a specified term. A place restriction order, which is an order prohibiting the person from frequenting or visiting a specified place or district for a specified term.
These orders can be made if a Court is satisfied that it is reasonably necessary to make these orders to ensure that the person does not commit any further offences (being offences punishable by imprisonment for 6 months or more).
191
Orders under s 17A can be made in addition to (and not instead of) any other penalty for the offence, but may not be made if the only other penalty for the offence is an order under s 10 or s 11. The term of an order under this section is not limited by any term of imprisonment imposed for the offence, but must not exceed 12 months (s 17A(5)).
192
19
Plea making in the Local Court
This chapter looks at important aspects of plea making, with particular emphasis on plea making in the Local Court. It is important to be thoroughly aware of the following when appearing in a sentence matter: The Crimes (Sentencing Procedure) Act 1999 (NSW)(CSPA); The applicable purposes and principles of sentencing (see chapter 17); and Cases in relation to specific types of offences or types of offender.
Background matters
Court Attendance Notice and facts sheet
When arrested or summonsed to court, your client will receive a Court Attendance Notice (CAN) and, usually, a facts sheet. These documents set out, in general terms, the prosecutions case. You must consider the offence and read the facts sheet closely. You will be advising your client whether the elements of the offence(s) alleged are made out. Obtain full instructions on the matter and on whether your client agrees with what is contained in the facts sheet. As the facts sheet is a document prepared by a police officer, it may contain material that it should not, such as: Prejudicial and unsupported assertions; Material that is not relevant; and Material that may support a more serious charge being laid against your client. You should consider the principles in De Simoni (1981) 147 CLR 383. A court cannot take into account any matter of aggravation that could warrant a conviction for a more serious offence.
All material of the types mentioned above should be removed from or blackened out of the facts before the agreed facts are tendered in court. You will need to speak to the prosecutor to discuss amendments to the facts sheet.
195
Sometimes a prosecutor may only have a bail report. A bail report is a record created for bail and it may include matters that your client has not been convicted of. The prosecutor should delete these matters from the bail report if it is to be tendered.
References
References can be useful. Whether you use them will depend on your client and the particular circumstances of your client's case. It is good practice to be selective. Two or three references will usually be sufficient. References should be signed and dated and should, among other relevant matters: Be addressed to the Presiding Magistrate, [place] Local Court. State that the writer of the reference is aware that your client is to be sentenced for criminal charges. The charges should be listed in the reference. State how long the writer of the reference has known your client, and in what capacity.
2.
In sentencing in the District Court, written PSRs are usually the type of PSRs that are prepared. In the Local Court, the appropriate type of PSR will depend on your client's offence and personal circumstances, as well as the Magistrates preference. A full report requires an adjournment of approximately six weeks in order to be prepared. Your client will be directed to attend the nearest COS office to his/her residence to enable the report to be written. If a full report has been ordered, you can contact the COS Officer a day or two before the adjourned court date and ask for a copy of the report. The COS is not obliged to give you a copy of the report, as the report is prepared for the court, but they are generally provided. If an oral PSR is ordered, your client will generally see the COS Officer on the day of court, and have the report written then. Sometimes, short adjournments are required to have an oral PSR written. You can get a copy of your clients PSR by asking the court officer for it, as it will usually be placed with the court papers for your client. You can ask the Magistrate to stand your matter in the list while you go through the PSR with your client.
Calling evidence
It is unusual to call oral evidence at a sentence matter in the Local Court. If there is material that you want the Magistrate to consider, it is preferable to tender an affidavit or statutory declaration.
196
Objective factors
Seriousness of the offence. Circumstances of the offence, including the level of impulsiveness/planning involved. Relevance of alcohol or drugs in the commission of the offence (see R v Coleman (1990) 47 A Crim R 306 and R v Henry (1999) 46 NSWLR 346, respectively). The maximum (or any minimum mandatory) penalty available. The prevalence of the offence and consequent need for general deterrence. Any aggravating factors (such as those set out in s 21A(2) CSPA). Any applicable guideline judgments (see chapter 17).
Subjective factors
Age. Remorse and/or restitution. Education. Employment. Criminal History. Prospects for the future/likelihood of rehabilitation.
Guideline judgments
The Court of Criminal Appeal has delivered a number of guideline judgments. The purpose of these guideline judgments is to assist courts in achieving consistency when sentencing. The guideline judgments which are particularly relevant to practitioners appearing in the Local Court are discussed in chapter 17.
The facts
The relevant considerations are referred to above, under objective factors. The facts should be examined in detail in the plea, as any penalty imposed must be proportionate to the objective seriousness of the offence.
Penalty
You should generally address on the penalty you consider appropriate for the court to impose. You should explain why the penalty you are asking for is appropriate.
After court
You should never let a client leave the court until you have explained the sentence imposed. In particular, you will need to explain the conditions of any bond that has been imposed and the consequences of breaching the bond. You also need to advise your clients of their appeal rights, and the 28 day time limit in which to lodge an appeal to the District Court (see chapter 25). You should also take some time yourself to reflect on your performance in court, to help you improve in the future.
198
20
Plea making in PCA offences
This chapter discusses aspects of plea making in driving offences and particularly in relation to PCA offences. There is a guideline judgement in relation to High Range PCA offences: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303. Justice Howie gave the leading judgment, with which the four other members of the Court agreed. This case ('the HRPCA guideline') refers to matters that are specific to HRPCA offences, as well as matters generally relevant to PCA offences. It constitutes important guidance from the Court of Criminal Appeal as to how people are to be sentenced for PCA offences. All practitioners should be thoroughly familiar with this judgment when representing clients in PCA offences.
The majority of offences that come before courts are PCA offences where a precise blood-alcohol reading is obtained. DUI offences generally arise in two circumstances: A Practitioners Guide to Criminal Law 201
Where your client is (or is alleged to be) under the influence of a drug other than alcohol. The presence of a drug other than alcohol in your clients system would usually be proved by blood analysis. Where your client is alleged to be under the influence of alcohol but police are unable to take a blood-alcohol reading, whether due to your clients refusal to provide a sample, technical failure or other cause (such as due to injury sustained in a motor vehicle accident).
The penalties for these offences are set out the end of this chapter.
You can ask the court to quash the habitual traffic offender declaration at the time you make your sentencing submissions. If the court does not do this, you can apply to the court in the future, asking the court to quash the declaration.
202
For offences involving drugs or alcohol, you must have specific instructions in relation to consumption and use by your client before driving. Police will usually ask a person who has breath-tested positively about the quantity of alcohol consumed and the period of time over which it was consumed. You should make sure that you are aware of what (if anything) your client said to police at the time of being apprehended. This will be noted in the police facts that are given to your client.
Driver history
When your client obtained a drivers licence. How many years your client has been driving (both of which will be clear from your clients RTA driving record). Whether your client may have been required to drive extensively as part of his or her employment and has therefore driven much more than the average driver.
The above matters may be particularly relevant in persuading the court that your client's driving offence was an isolated incident, if that argument is open to you to make.
Subjective instructions
In addition to the matters listed above, the following matters may be relevant:
203
Your client's age. Your client's health such as whether your client has an illness or disability which will make the loss of his/her licence even more onerous than it would be to the average citizen. Remoteness of residence in particular, whether your client lives in a remote country location, which would result in your client becoming completely isolated if he/she was unable to drive. History of community service or volunteer work. Employment history. Marital status and children. Economic considerations such as whether your client is the sole or primary provider for his/her family, and the effect loss of licence will have on other members of the household.
References
References are letters written by friends, family or colleagues of your client who provide written evidence as to your clients character, work ethic, community involvement and achievements, provided by persons who know or have an association with your client. References are discussed in chapter 19.
204
The absence of aggravating factors does not operate in mitigation in HRPCA matters
The HRPCA guideline indicates at paragraph 120 that aspects of an offender's driving can increase the moral culpability of the offender and aggravate the offence. The HRPCA guideline indicates that the absence of aggravating matters is not a mitigating matter. The HRPCA guideline gives these examples of matters which, when absent, do not operate in mitigation: There was no accident resulting from the driving. There was no observable sign of the effect of the intoxication on the manner of driving. That the offender was detected at a random breath test,
There may be cases where the offending is technical (rather than trivial), there being no real risk of damage or injury arising from the driving, so that the highly exceptional course in making an order under s 10 would be justified. The court must have regard to all of the criteria in s 10(3) in determining whether a dismissal of the offence or a discharge of the offender is appropriate. There can be cases where there are such extenuating circumstances that a dismissal or a discharge under s 10 might be justified. It is impossible and inappropriate to delineate situations in which an order under s 10 might be warranted, notwithstanding the objective seriousness of the offence. An example might be where the driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle, such as to take a person to hospital. Where the offence committed is objectively serious and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of s 10 decreases.
Licence disqualification
The nature of licence disqualification
The HRPCA guideline makes it clear at paragraph 116 that a court can take into account the period of licence disqualification that is to be imposed at the same time as determining the appropriate sentence for a PCA offence. The HRPCA guideline states that licence disqualification is such a significant matter and can have such a devastating effect upon a person's ability to earn an income and to function appropriately within the community that it is a matter which must be taken into account by a court when determining what the consequences should be, both penal and otherwise, for a particular offence committed by a particular offender. Therefore a person's need for a licence, or the consequences to that person of being disqualified for a significant period, can be taken into account by a court in fixing the sentence to be imposed. A courts sentencing discretion will not be controlled by this single factor of disqualification alone.
The guideline itself states that in an ordinary case of HRPCA the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification. Good reasons may include: The nature of the offenders employment. The absence of any viable alternative transport. Sickness or infirmity of the person or another person.
You should note that often your clients licence may have been suspended by police on commission of an offence. The period of suspension served before sentence can go towards satisfying the whole or part of the period of disqualification imposed by the court: s 34(6)(b) RTGA.
206
Always make sure, if the penalty imposed requires disqualification, that the Magistrate backdates the disqualification period to commence on the date when your clients licence was suspended.
If a DSO ceases to have effect during the interlock participation period the person will have to serve out the difference between of the full disqualification period and the disqualification compliance period already served before the operation of the DSO. If your client comes before a court for a major offence before the end of the interlock participation period, you will need to ask the court to allow the DSO to continue. For more information about the interlock program go to www.rta.gov.au and see ss 25A25H RTGA, and see the table setting out the disqualification and participation periods, which is at the end of this chapter.
208
Disqualification compliance period6 months 2. A person convicted of an offence under section 9 (4) (a) or (b), 12 (1) (a) or (b) or 15 (4) of the RTSTMA who, at the time of the conviction or during the period of 5 years before the conviction, is or has been convicted of any other alcohol-related major offence (whether of the same or a different kind). Minimum interlock participation period48 months Disqualification compliance period12 months 3. A person convicted of an offence under section 9 (3)(a) or (b) of the RTSMA who, at the time of the conviction or during the period of 5 years before the conviction, is or has been convicted of any other alcohol-related major offence (whether of the same or a different kind). Minimum interlock participation period24 months Disqualification compliance period6 months 4. A person convicted of an offence under section 9 (1A), (1)(a) or (b) or (2)(a) or (b) of the RTST MA who, at the time of the conviction or during the period of 5 years before the conviction, is or has been convicted of any other alcohol-related major offence (whether of the same or a different kind). Minimum interlock participation period 12 months Disqualification compliance period 3 months
(3) In an ordinary case of a second or subsequent high range PCA offence: i) an order under s 9 of the Sentencing Act will rarely be appropriate; ii) an order under s 10 of the Sentencing Act would very rarely be appropriate; iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate. (4) The moral culpability of a high range PCA offender is increased by: i) the degree of intoxication above 0.15; ii) erratic or aggressive driving; iii) a collision between the vehicle and any other object; iv) competitive driving or showing off; v) the length of the journey at which others are exposed to risk; vi) the number of persons actually put at risk by the driving. (5) In a case where the moral culpability of a high range PCA offender is increased: i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate; ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate. (6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased: i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate; ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
210
All references and sections below are to the Road Transport (Safety and Traffic Management) Act 1999 unless otherwise indicated. M denotes Major offence FIRST OFFENCE SECOND OFFENCE
[within 5 years] [Section 4 see Dictionary clause 2] [Previously convicted of this offence or any Major offence within 5 Years]
M
HIGH RANGE PCA 0.15 or more
Section 9(4)
DISQUALIFICATION AUTOMATIC MINIMUM 3 YEARS 12 MTHS Section 25(2)(d) Road Transport (General) Act DISQUALIFICATION AUTOMATIC MINIMUM 12 MTHS 6 MTHS Section 25(2)(b) Road Transport (General) Act DISQUALIFICATION AUTOMATIC MINIMUM 6 MTHS 3 MTHS Section 25(2)(a) Road Transport (General) Act
DISQUALIFICATION AUTOMATIC MINIMUM 5 YEARS 2 YEARS Section 25(3)(d) Road Transport (General) Act DISQUALIFICATION AUTOMATIC MINIMUM 3 YEARS 12 MTHS Section 25(3)(b) Road Transport (General) Act DISQUALIFICATION AUTOMATIC MINIMUM 12 MTHS 6 MTHS Section 25(3)(a) Road Transport (General) Act
M
MID RANGE PCA 0.080.15
Section 9(3)
M
LOW RANGE PCA 0.050.08
Section 9(2)
M
SPECIAL RANGE 0.020.05
Section 9(1)
DISQUALIFICATION AUTOMATIC MINIMUM 6 MTHS 3 MTHS Section 25(2)(a) Road Transport (General) Act DISQUALIFICATION AUTOMATIC MINIMUM 6 MONTHS 3 MONTHS Section 25(2)(a) Road Transport (General) Act
DISQUALIFICATION AUTOMATIC MINIMUM 12 MTHS 6 MTHS Section 25(3)(a) Road Transport (General) Act DISQUALIFICATION AUTOMATIC MINIMUM 12 MTHS 6 MTHS Section 25(3)(a) Road Transport (General) Act
M
NOVICE RANGE 0.00-0.02
Section 9(1A) FINE IMPRISONMENT $1100 NIL Section 9 (1A)
DISQUALIFICATION No minimum: section 24(1) Road Transport (General) Act applies DISQUALIFICATION AUTOMATIC MINIMUM 3 YEARS 12 MTHS Section 25(2)(d) Road Transport (General) Act DISQUALIFICATION AUTOMATIC MINIMUM 12 MTHS 6 MTHS Section 25(2)(b) Road Transport (General) Act
NB: The same penalties apply for Failure to stop (s 13(5)) and for Refusing to submit to a sobriety assessment (s 29(1)) FINE IMPRISONMENT $5500 12 MTHS Section 15(4) DISQUALIFICATION AUTOMATIC MINIMUM 5 YEARS 2 YEARS Section 25(3)(d) Road Transport (General) Act DISQUALIFICATION AUTOMATIC MINIMUM 3 YEARS 12 MTHS Section 25(3)(d) Road Transport (General) Act
M
REFUSE BREATH ANALYSIS
Section 13(2)
M
DRIVING UNDER THE INFLUENCE
Section 13(2)
211
Note also that the offences of wilfully alter blood alcohol concentration (s 16); and prevent taking a blood sample (s 22) carry the same penalties as refuse breath analysis.
212
FIRST OFFENCE
[within 5 years] [Section 4 see Dictionary clause 2]
SECOND OFFENCE
[Previously convicted of this offence or any Major offence within 5 Years]
M
MENACING DRIVING WITH INTENT
Section 43(4)
DISQUALIFICATION AUTOMATIC MINIMUM 3 YEARS 12 MTHS Section 25(2)(d) Road Transport (General) Act DISQUALIFICATION AUTOMATIC MINIMUM 3 YEARS 12 MTHS Section 25(2)(d) Road Transport (General) Act
DISQUALIFICATION AUTOMATIC MINIMUM 5 YEARS 2 YEARS Section 25(3)(d) Road Transport (General) Act
M
MENACING DRIVING POSSIBILITY OF MENACE
Section 43(2)
DISQUALIFICATION AUTOMATIC MINIMUM 5 YEARS 2 YEARS Section 25(3)(d) Road Transport (General) Act
M
DRIVING FURIOUSLY, RECKLESSLY OR IN A MANNER DANGEROUS
Section 42(2) FINE IMPRISONMENT $2200 9 MTHS Section 42(2)
DISQUALIFICATION AUTOMATIC MINIMUM 3 YEARS 12 MTHS Section 25(2)(d) Road Transport (General) Act
DISQUALIFICATION AUTOMATIC MINIMUM 5 YEARS 2 YEARS Section 25(3)(a) Road Transport (General) Act
M
FAILURE TO STOP AND RENDER ASSISTANCE
Section 70
DISQUALIFICATION AUTOMATIC MINIMUM 3 YEARS 12 MTHS Section 25(2)(d) Road Transport (General) Act
DISQUALIFICATION AUTOMATIC MINIMUM 5 YEARS 2 YEARS Section 25(3)(a) Road Transport (General) Act
M
AID, ABET OR ACCESSORY BEFORE THE FACT TO MAJOR OFFENCE
Section 25(1)(d) Road Transport (General) Act (Not a Major Offence) FINE IMPRISONMENT LIABLE TO SAME PENALTY AS PRINCIPAL OFFENDER
DISQUALIFICATION AUTOMATIC MINIMUM 3 YEARS 12 MTHS Section 25(1)(d) Road Transport (General) Act
DISQUALIFICATION AUTOMATIC MINIMUM 5 YEARS 2 YEARS Section 25(1)(d) Road Transport (General) Act
FINE IMPRISONMENT $3300 18 MTHS Section 25A(1) Road Transport (Driver Licensing) Act
MANDATORY MINIMUM DISQUALIFICATION 12 MTHS Section 25A(10) Road Transport (Driver Licensing) Act
FINE IMPRISONMENT $5500 2 YEARS Section 25A(1) Road Transport (Driver Licensing) Act
MANDATORY MINIMUM DISQUALIFICATION 2 YEARS Section 25A(10) Road Transport (Driver Licensing) Act
213
FIRST OFFENCE
[within 5 years] [Section 4 see Dictionary clause 2]
SECOND OFFENCE
[Previously convicted of this offence or any Major offence within 5 Years]
DRIVE UNLICENSED
Section 25A(1) Road Transport (Driver Licensing) Act
NEGLIGENT DRIVING
Section 42(1)(c)
NB: Negligent driving causing death carries the same penalties as high range PCA: s 42(1)(a)
SPEEDING
(where speed 130km/h or less) Offences and disqualifications are provided for in the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999
MANDATORY DISQUALIFICATION 6 MTHS MINIMUM: MORE THAN 45KMS Over 3 MTH MINIMUM: MORE THAN 30KMS Over
SPEEDING
(where speed more than 130km/h) Legislative source as specified above
FINE IMPRISONMENT $3300 NIL For large vehicles $2200 NIL For other vehicles
MANDATORY DISQUALIFICATION 6 MTHS MINIMUM: MORE THAN 45KMS Over 3 MTHS MINIMUM: MORE THAN 30KMS Over 1 MTH MINIMUM: LESS THAN 30KMS Over
214
221
21
Apprehended Violence Orders
This chapter outlines some of the basic considerations involved when acting for a complainant or a defendant in Apprehended Violence Order (AVO) proceedings. The provisions relating to AVOs are contained in Part 15A Crimes Act 1900 (NSW). These provisions must be considered in detail when appearing for a person in AVO proceedings. All references to sections in this chapter are references to the Crimes Act unless specified otherwise.
Important definitions
Protected person/Person in need of protection (PINOP): This is the person for whose protection an AVO is made: s 562A. Defendant: The person against whom an AVO is made or is sought to be made: s 562A. Complainant: The person who seeks (or has sought) an AVO. This may either be the PINOP or a police officer Cross-application: When a defendant to an AVO, applies for an AVO against the complainant Interim order: An order made by the Court in order to protect the PINOP from the defendant prior to the hearing: ss 562BB and 562BBA. Telephone Interim Order: An interim AVO order made by an authorised justice in accordance with s 562H: s 562A. Order: An AVO (including a telephone interim order or an interim order made by the court) in force under Part 15A of the Crimes Act: s 562A.
As a consequence of either the police being called to an incident or an individual attending a police station, a police officer may swear an application for an AVO on behalf of the PINOP.
Only a police officer can make a complaint for an order on a child's behalf: s 562C(2A). An application for an AVO will generally contain the following: A summary of the incident(s) of violence or abuse which led the PINOP or police officer to apply for an AVO; An outline of the specific restrictions or prohibitions which the PINOP asks the court to place on the defendant; and A summons to the defendant to appear at Court at a specific time and date so that the Court can hear the complaint.
A copy of the application is given to the PINOP and a copy is served on the defendant either by the Clerk of the Court or the police at the address provided by the protected person. An AVO has no legal force until it is served on the defendant unless the defendant is present at court when the order is made: s 562I(2).
The Magistrate can only issue a warrant for the arrest of the defendant if the Magistrate believes that the personal safety of the PINOP will be put at risk unless the defendant is arrested for the purpose of being brought before the court.
A TIO:
222
Final orders
Only a Magistrate can make a final order for an AVO (s 562AE (for ADVOs) and s 562AI (for APVOs)). A court must be satisfied on the balance of probabilities that the PINOP has reasonable grounds to fear and in fact fears: The defendant committing a personal violence offence against him/her; or Conduct amounting to harassment or molestation, being conduct that, in the opinion of the court, is sufficient to warrant the making of the AVO; or Conduct amounting to intimidation or stalking, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order:
The test as to whether a PINOP is fearful is a subjective test. The test as to whether a PINOP has reasonable grounds to fear the defendant is an objective test. A court has the power to extend the order to protect a person or a child under the age of 16 years with whom the protected person has a domestic relationship. If a PINOP is under 16 or is suffering from an appreciably below average general intelligence function, a Magistrate does not need to be satisfied that the person does in fact fear that such an offence will be committed, or that such conduct will be engaged in.
223
224
If contact with the complainant is essential, it is prudent to discuss this with the police officer in charge in the matter, the police prosecutor or the solicitor from the DPP with carriage of the matter prior to making contact. Practitioners should be aware of the Law Society's Guidelines for Contact with the Complainant in Apprehended Violence Matters and Criminal Matters. The Guidelines serve to assist practitioners when acting for clients involving apprehended domestic violence matters and criminal matters. The Guidelines can be accessed at the Law Society's Internet site (www.lawsociety.asn.au) or can be obtained directly from the Law Society. In summary, the Guidelines state that: Apprehended domestic violence matters and criminal matters are particular types of matters where practitioners must act prudently and be very cautious that they do not breach their obligations and responsibilities. A practitioner should be very careful when coming into contact with a complainant in apprehended domestic violence matters and criminal matters, irrespective of who initiates the contact. Practitioners should be mindful of their duties not to influence witnesses and to preserve the integrity of evidence. A practitioner should contact a complainant in an apprehended domestic violence matter or criminal matter only if it is necessary. When making contact, the practitioner should be sensitive and careful not to suggest any impropriety or intimidation. Where it is necessary for a practitioner to contact a complainant, whether in person or via telephone, and there is no order in place prohibiting this contact, the practitioner should state details such as: their name; the name of their firm; who they act for; and the reason for contacting the complainant. It is imperative that a practitioner keeps a detailed file note of any contact with the complainant, clearly dated and as far as possible in the exact words said by each party. If a complainant contacts a practitioner suggesting that they will not attend court, or refuse to comply with a subpoena, or change the evidence they propose giving, a practitioner must make a detailed file note and ensure no further discussion is entered into, and no further contact is made with the complainant. Practitioners must not be material witnesses in their client's cases.
225
226
22
Ancillary orders and powers
A Offenders contribution to victims compensation
Where a victim of a violent crime causing personal injury or death has been awarded compensation by the Victims Compensation Tribunal (VCT), the tribunal may take action against the person who was convicted of the offence by making a provisional order for restitution. Part or all of the money awarded to the victim may be recovered from the offender. The purpose of this subchapter is to provide a general outline of this process.
Secondary victims are persons who received a compensable injury as a direct result of witnessing the act of violence that resulted in the injury to, or death of, the primary victim of that act (s 8 of the Act).
229
If a person objects to a provisional order, the VCT will conduct a hearing into the matter. There is provision for the setting aside of an order if sufficient cause is shown: s 56. However, the Act provides no guidelines as to what is considered to be sufficient cause. There is a right of appeal from the Tribunals decision to make a provisional order in the same way as there is a right of appeal from a decision of a Local Court exercising civil jurisdiction: s 55. It is always advisable to object to a provisional order. The defendant can enter into negotiations as to the amount of the debt and the way it is paid (periodic payments or lump sums). Forms are available from the website at http://www.agd.nsw.gov.au/vs.
230
Asset forfeiture
This chapter sets out the circumstances in which a person suspected to have been involved in the commission of a criminal offence can be forced to forfeit assets that are connected to the suspected criminal activity. The relevant provisions are contained in the following pieces of legislation: The Confiscation of Proceeds of Crime Act 1989 (NSW) ("The CPC Act"); The Criminal Assets Recovery Act 1990 (NSW) ("The CAR Act"); The Proceeds of Crime Act 2002 (Cth) ("The POC Act 2002"), which applies to Commonwealth prosecutions.
The CPC Act deals with confiscation of property where there has been a conviction while the CAR Act deals with the confiscation of property where there has been no conviction.
231
A drug trafficking offence means an offence under ss 2328 Drug Misuse and Trafficking Act 1985 (NSW). An application for forfeiture must be made to either the court that imposed the conviction or the Supreme Court and must be made within the relevant period: s 13(3). The period is set out in s 4 and should be read in conjunction with the definition of conviction in s 5. Generally it is within 6 months of the date of the conviction. The application can be made in relation to more than one offence: s 13(4). Once an application is determined a second application can only be made with the leave of the court. Note that an application can be made for an order pending forfeiture pursuant to s 22(1) of the CPC Act. This section enables the court to make an ex parte order, where a person has been convicted of a serious offence that the defendant or any other person must not dispose of the property. Section 14 requires the applicant to give written notice of the application for forfeiture order to the defendant and to any other person they believe may have an interest in the property. In making the forfeiture order the court only has to be satisfied that a forfeiture order may be made in respect of the property. If no forfeiture is made then the court may set aside the order made, in part or whole, in respect of the property and may make any such orders it considers appropriate in relation to the operation of the order.
Tainted property
A forfeiture order can only be granted if the court is satisfied that the property is tainted property in relation to the offence. Tainted property, as defined in s 4 of the CPC Act, means property that was either: a) Used in, or in connection with, the commission of a serious offence; or b) Derived or realised, directly or indirectly, by any person, from property used in, or in connection with, the commission of a serious offence; or c) Derived or realised either directly or indirectly, by a person, as a result of the commission of a serious offence; or d) Derived or realised either directly or indirectly, by a person for the depiction of a serious offence, or the expression of the offender's thoughts, opinions or emotions regarding the offence, in any public promotion. If the court is satisfied the property is tainted the court must then take into consideration, pursuant to s 18(1)(b): The use that is ordinarily or had been intended to be made of the property; and Any hardship that may reasonably be likely to arise (whether on the part of that or any other person) following the making of the order.
In considering hardship the court is not to take into account the sentence imposed for the offence: s 18(2). Notwithstanding this, the effect of the forfeiture needs to be considered as compared to the gravity of the offence and the penalty imposed may be relevant for this purpose. For example, the fact that the respondent is serving a sentence in prison can be properly considered by the Court when assessing the total hardship to the respondent and his or her family that would result from the making of a forfeiture order: R v Wealand (2002) 136 A Crim R 159. The court must be satisfied on the balance of probabilities that the property was used in, or in connection with the commission of an offence: s 18(4)(b). In the absence of refuting evidence the court shall presume such use: s 18(4)(a). If the court orders that property is forfeited to the State, the court shall specify in the order the amount it considers to be the value of the property at the time the order is made. Once the order is made the property cannot be disposed of until the relevant time has elapsed. The relevant time is specified in s 19(4) and is the expiration of the period to appeal against the order made or against the conviction for the relevant serious offence, or the time when the appeal lapses, or is finally determined, as the case requires.
232
Third parties
An innocent third party can apply for an order under s 20 of the CPC Act, within six months of the making of the order, declaring the nature, extent and value of their interest in the property and setting aside the order as it applies to their interest. Before such an order can be made the court must be satisfied on the balance of probabilities that: a) b) The applicant was not involved in any way with the commission of the serious criminal offence; and The applicant acquired the interest for sufficient consideration and had no reasonable suspicion that the property was tainted.
A forfeiture order is quashed if the conviction is quashed and the Attorney General should make arrangements for the property to be transferred back to the owner: s 21.
Restraining orders
Part 3, Division 2 of the CPC Act deals with restraining orders. These are orders issued only by the Supreme Court, which direct that certain property is not to be disposed of by the defendant or any other person except in a manner specified in the order. An appropriate officer can apply for the order on an ex parte basis when a person is charged or is about to be charged, see s 43(1). The order can be made against some or all of the property of the defendant or specified property of a person other than the defendant. If the person has not been charged, the court must be satisfied that the person will be charged within 48 hours. The court must also be satisfied that the property is in the effective control of the defendant or some other specified person. Section 43(2) and (4) specifies what should be stated in the affidavit in support of the application for the order, and includes the grounds for the applicant's belief that the property is either tainted property from the commission of the offence, or is the defendants proceeds of drug trafficking.
233
Tainted property includes property that was used in, or in connection with, the commission of a serious offence. Where an offence occurs on a particular property, the location itself will not be enough to establish the necessary nexus between the commission of an offence and the property on which it occurred. For example, in Director of Public Prosecutions (NSW) v King (2000) 49 NSWLR 727, a restraining order was sought over proceeds of sale of a boat on which a sexual assault had occurred, Justice O'Keefe determined that the boat was not used in the commission of the offence and therefore was not tainted property within the meaning of s 43 of the CPC Act. The court may, if it thinks fit, require a copy of the application to be served on the person who has an interest in the property. Once the order is made a copy must be served on the person affected by the order. The order can be made subject to conditions that allow for the defendants (and their dependents) reasonable living expenses, reasonable business expenses and the reasonable expenses of defending a criminal charge: s 43(6). It is an offence to knowingly contravene a restraining order by disposing or otherwise interfering with property which is the subject of the order. Contravention attracts a maximum penalty of a fine equivalent to the value of the property or 2 years imprisonment, or both. Pursuant to s 55 a restraining order will cease to have effect: a) 48 hours after the order is made if the person has not been charged; or b) When the charge is withdrawn; or c) When the person is acquitted of the charge (providing no other related charge is laid); or d) If a court makes a forfeiture, pecuniary penalty or drug proceeds order then the Supreme Court may set aside the order.
Production orders
Part 4 of the CPC Act deals with information gathering powers. Where a person has been convicted of a serious offence and an authorised officer has reasonable grounds for believing that that person or some other person has property tracking documents, the officer can apply to the Supreme Court for a production order. A production order requires the person to produce or to make available for inspection any propertytracking documents that are in their possession or control. A production order may not be made in respect of bankers books which include any accounting records used in the ordinary business of banking. A production order will specify the time, place and to whom the documents are to be produced. The fact that the documents may be incriminating, or that the production would breach an obligation of the person not to disclose the existence or content of the document, does not excuse the person from having to comply with the order: s 62. Failing to comply with a production order is an offence which carries a maximum penalty of two years gaol and/or 100 penalty units, or 500 penalty units for a corporation.
Appeals
Section 92 of the CPC Act says that an appeal can be lodged against the making of an order under the Act by any person who has an interest in the property, as if the person has been convicted of a serious offence and the order were, or were part of, the sentence imposed for that offence. The time limit applicable to a severity or all grounds appeal will apply in relation to the orders made under the CPC Act, requiring an appeal to be lodged within 28 days of the making of the order: s 11(2)(a) Crimes (Local Courts Appeal and Review) Act 2001 (NSW).
234
The proceedings are civil proceedings and the rules of evidence applicable to civil proceedings apply: s 5. Accordingly the Supreme Court rules will apply to the forms, modes of service and the practice and procedure to be complied with in the conduct of these matters. Serious crime related activity is defined in s 6 as a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence. It is irrelevant for the purpose of the CAR Act as to whether the person, if charged, was acquitted or not. A serious criminal offence is defined in s 6 to include: a) A drug trafficking offence: ss 23 27 Drug Misuse and Trafficking Act 1985 (NSW); or b) A prescribed indictable offence (similar in nature to a drug trafficking charge); or c) An offence punishable by five years or more which involves theft, fraud, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide; or d) An offence under s 51B Firearms Act 1996 (NSW) (selling firearms on an ongoing basis); or e) A drug premises offence; or f) An offence involving an attempt to commit, conspiracy or incitement to commit an offence referred to above.
For an order to be made under the CAR Act the court must be satisfied that the person against whom the order is sought has an interest in the property, as defined in s 7 of the Act. This interest must not be subject to the effective control of another person: s 8. Further, the order must relate to serious crime derived property or illegally acquired property as defined in s 9 of the CAR Act.
Restraining orders
Restraining orders may be sought ex parte on the basis of a suspicion that a person has engaged in serious crime related activity: s 10(3). The Supreme Court may make the following orders under Part 2 of the CAR Act dealing with restraining orders: a) A restraining order that no person is to dispose or otherwise deal with an interest in property except in such manner as the court specifies; b) That the property or interest in property be transferred to the Public Trustee; and c) That a person be examined under oath concerning the nature and location of property (even if this may incriminate them or in answering would breach legal professional privilege: see s 13). A restraining ordinarily remains in force for 48 hours, but will continue to have effect pursuant to s 10(9).if: there is an application for an assets forfeiture order pending in relation to the same interest; there is an unsatisfied proceeds assessment order or an application for a proceeds assessment order pending; or the Court extends its operation where a confiscation order has been refused.
235
Of note are ss 22(6) and (7), which state that the raising of doubt as to whether a person engaged in a serious crime related activity, or even if the conviction is quashed or set aside, is not in itself sufficient to avoid a finding under sub-section (2). Importantly, an order under section 22(2) need not be based upon the finding of a particular offence. That is, the legislation requires no causal connection between the assets forfeited and the crime committed. The extraordinary consequence is that a person convicted of a simple shoplifting offence can be required to forfeit their interests in any property that the Commission seeks. Such was the case in NSW Crime Commission v D'Agostino & Anor (1998) 103 A Crim R 113, in which the defendant, who had been convicted of shoplifting goods valued at under $500 was made subject to a forfeiture order over her interests in a house property at Coogee and a Mercedes motor vehicle. After such an order is made, the onus shifts to the defendant to establish that an exclusion order should be made. Section 24 provides relief from hardship for dependants and the spouse of the person against whom the order is made. A dependant is defined as a spouse or de facto partner of the person, a child of the person or a member of the household of the person who is dependant for support on that person. The application for relief against forfeiture need not be made prior to the forfeiture order, though an applicant will face practical difficulties in seeking relief once the property is quantified or order executed: NSW Crime Commission v Kelly [2003] NSWSC 56. If the court finds that the order would cause hardship to any dependent, it may order the dependent to be paid a specified amount out of the proceeds of the sale of the interest or, where the dependent is less than 18 years old, make orders for the proper application of the amount to be paid to that dependent.
Exclusion orders
A person against whom an application for a restraining or forfeiture order is served should file an application for an exclusion order under s 25(1) of the CAR Act to exclude some or all of the property from the order. Section 25(2) puts the onus on the person applying for the exclusion order to prove on balance that the interest is not illegally acquired property. The application for an exclusion order can be made any time before the forfeiture order is made. However, once the order has been made, if the person is served with the notice of the application, it must be lodged within 6 months of when the order took effect and with the leave of the Supreme Court. If the person has not been served, the application must be lodged within 6 months of when the order took effect, or with the leave of the Supreme Court.
Appeals
As these proceedings are civil proceedings any appeal against a decision made under the CAR Act should be done in accordance with the Supreme Court rules to the Full Bench of the Supreme Court and lodged within 28 days of the date the order is made.
Commonwealth matters
The Proceeds of Crime Act 2002 provides a civil forfeiture regime broadly similar to what exists under the State CPC Act, and strengthens the Commonwealth provisions for conviction based confiscation. The POC Act also provide for the freezing and confiscation of property used in, and intended to be used in, or derived from, terrorist offences in accordance with the International Convention for the Suppression of the Financing of Terrorism and United National Security Council Resolution 1373. As with the CPC Act, the types of orders which can be made are: a) A forfeiture order against tainted property; b) A pecuniary penalty order in respect of benefits derived by the person from the commission of the offence; and
236
c) A restraining order. The orders referred to in (a) and (b) are referred to as confiscation orders. Under Part 2-1 of this legislation the Commonwealth DPP can apply for a restraining order in circumstances where: A person has been convicted, charged with, or it is proposed that the he or she be charged with, an indictable offence: s 17; A person is suspected to have committed a serious offence within the last 6 years: s 18; There are reasonable grounds to suspect a person has committed a terrorism offence, or any other indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); and, if the offence is not a terrorism offence, that the offence was committed within the 6 years preceding the application, or since the application was made: s 19; or A person is suspected to have derived literary proceeds from the commission of an indictable offence: s 20. All or specified property of the suspect; All property of the suspect other than specified property; Specified property of another person (whether or not that other persons identity is known) that is subject to the effective control of the suspect; Specified property of another person (whether or not that other persons identity is known) that is proceeds of the offence or an instrument of the offence.
A restraining order may only relate to one suspect, but may relate to more than one offence in respect of that suspect: s 22. Provisions for the exclusion of property from restraining orders are contained in Division 3 of Part 2-1; and notice requirements are set out in s 33. A court also has the power to make ancillary orders under s 39. A restraining order ceases to be in force 28 days after the person's acquittal, withdrawal of charge or conviction is quashed, or within 28 days of the order if no conviction, charge or confiscation order has been made: s 45. Contravention of a restraining order is a strict liability offence carrying a maximum penalty of 300 penalty units or 5 years imprisonment, or both: s 37. Forfeiture orders are to be made: In respect of property the subject of a restraining order and a serious offence is suspected to have been committed within the last 6 years: s 47; or A person has been convicted or an indictable offence: s 48; or The property is covered by a restraining order and the property is proceeds of either an indictable offence, a foreign indictable offence, an indictable offence of Commonwealth concern, or a terrorism offence, and each offence that is not a terrorist offence was committed within the last 6 years: s 49.
The Act incorporates provisions for reducing the effect of forfeiture orders where the order would cause hardship caused to a dependant of the person (s 72); an exclusion order is sought (s 73); or a compensation order is sought for the proportion of the property that did not involve proceeds of an offence (ss 77-79). The assessment of pecuniary penalty orders is also similar to those in the CPC Act and is contained in Part 24of the Act. Provisions for the making of literary proceeds orders are contained in Part 2-5. The Act also re-enacts the information gathering powers which exist under the Proceeds of Crime Act 1987 (Cth), with some modifications (Chapter 3 of the POC Act 2002).
237
Note that if proceedings relate to an offence committed or a conviction recorded before the commencement of the POC Act 2002, or an application or order made under the Proceeds of Crime Act 1987 (Cth), see the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 for details regarding the application of the 1987 Act.
238
Offender Registration
This sub-chapter introduces the legislative scheme that places people who have been convicted of particular offences against children on a Register and requires them to report to police. The Child Protection (Offenders Registration) Act 2000 (NSW) (the Act) applies to sexual and other specified offences committed against child victims (that is, a victim under 18 years of age). The Act does not apply to offences against an adult victim. In certain circumstances the Act can have a retrospective effect. The Act provides the legislative framework for the Sex Offender Register, hereafter referred to as the Register.
239
Registrable persons (that is, people who a court has at any time found guilty and sentenced in respect of a Class 1 or Class 2 offence), noting that finding of guilt is broadly defined in s 3(2) of the Ac Existing controlled persons (as defined in s 3(1) of the Act), who are people previously convicted of Class 1 or Class 2 offences whose sentence is still current and not yet finalised.
However, a number of categories of offenders who would otherwise be registrable persons are specifically excluded from the operation of the Act. For example, a person whose matter(s) are dealt with under s 10 Crimes (Sentencing Procedure) Act 1999 (NSW) (in the case of an adult offender) or under section 33(1)(a) Children (Criminal Proceeding) Act 1987 (NSW) (in the case of a child offender) is not on the Register. As another example, a person who has committed a single Class 2 offence and who is placed on an unsupervised bond is not a registrable person. You must look in detail at the definition of registrable person in section 3(1) of the Act to determine whether your client falls within its provisions.
The duration of the reporting obligation: s 14 of the Act. That it is an offence punishable by a fine of $1,100 and/or two years imprisonment to fail to comply with the reporting obligation or to knowingly furnish information that is false or misleading in any particular: ss 17 and 18 of the Act. The client has a right of appeal to the Administrative Decisions Tribunal to seek to have the reporting obligation suspended: s 16 of the Act.
There is a crossover between the Act and the Child Protection (Prohibited Employment) Act 1998 (NSW) (the 1998 Act). In the 1998 Act, a prohibited person includes a person on the Register and accordingly, there will be career (and presumably economic) restrictions for some registrable persons: see section 5 of the 1998 Act. A relevant discussion of the construction and intention of the 1998 Act may be found in Commission for Children and Young People v A [2003] NSWIRComm 6. This case involved an appeal against an earlier declaration that A was not a prohibited person within the meaning of section 5 of the 1998 Act.
Prohibiting a person from associating with or other contact with specified persons or kinds of persons. Prohibiting a person from being in specified locations or kinds of locations. Prohibiting a person from engaging in specified behaviour.
The 2004 Act will also amend the Act to insert a new section (s 20A) to impose reporting obligations on persons who are subject to child protection prohibition orders. It is important to note that the 2004 Act has not commenced at the time of this books publication. It is to commence on a day to be appointed by proclamation.
When appearing on sentence for a client charged with an offence to which the Act applies, it can be argued that placement on the Register is a relevant factor that can be taken into account on sentence. The reporting obligation may place a more onerous restriction on an person whose duration of reporting is at the highest end of the scale (for example, an offender with a lifetime reporting obligation) or an offender who for cultural, occupational or other reasons has a transient or mobile lifestyle. One can argue by analogy with cases that consider the relevance of bail conditions to a persons sentence. It is arguable that the reporting obligation under the Act will be a restriction on the liberty of the person and that any such restriction is relevant to sentence. Bail authorities to consider include: R v Keyte (unreported, Court of Criminal Appeal, 26 March 1986); R v Cartwright (1989) 17 NSWLR 243; R v Khamas (1999) 108 A Crim R 499; and R v Eastway (unreported, Court of Criminal Appeal, 19 March 1992).
241
This subchapter discusses the powers of arrest within New South Wales of people who are alleged to have committed an offence outside of the State, and extradition to the State where the offence is alleged to have been committed. State and Commonwealth powers of arrest are found in s 352A Crimes Act (NSW) and in the Service and Execution of Process Act (Cth) respectively. For the purpose of this chapter, all references to the Crimes Act are references to the Crimes Act 1900 (NSW). The Service and Execution of Process Act 1992 (Commonwealth) will be referred to as SEPA.
The police officer has to have reasonable cause to suspect the person:
For more detail on what constitutes an indictable offence, see chapter 4).
Section 352A(7) Crimes Act states that if a person is admitted to bail or remanded in custody under s 352A(3) and a warrant is not executed within a reasonable time (not exceeding 7 days) the person may be released from bail or shall be discharged from custody by order of the court.
242
It is not necessary to produce the warrant when the person is apprehended (s 82(4) SEPA).
The Magistrate does not need to do this if satisfied that the arrested person is not the person named in the warrant or that the warrant is invalid, in which case the Magistrate must order that the person be released from custody (s 83(10) SEPA). When considering the validity of the warrant, the Magistrate is not limited to a consideration of the face of the warrant but may also receive evidence addressing the validity of the warrant (R v Gummer (1994) 71 A Crim R 140). Where the warrant is not produced If the warrant is not produced, the Magistrate may order: The person be released; or Adjourn the proceedings for such reasonable time subject to a grant of bail or bail refusal (s 83(3) SEPA). Order the person be released; or If reasonable cause is shown, adjourn the proceedings for a further specified time subject to a grant of bail or refusal of bail (s 83(4) SEPA).
If on the adjourned date, a copy of the warrant is not produced, the Magistrate may:
The total time of adjournments must not exceed 5 days (s 83(5) SEPA). If the warrant is not produced after the second adjournment, the Magistrate must order the person to be released (s 83(7) SEPA). If a person has been released on the warrant, the person may be re-apprehended if/when the warrant is produced (s 82(5) and (6) SEPA).
243
The avenue for review of a Magistrates order for extradition is to the Supreme Court of the State in which the order was made (s 86(1) SEPA). The application must be made within 7 days of the making of the order (s 86(2) SEPA). Pending the review, the Supreme Court may stay the execution of the order and order that the person be remanded on bail or in custody (s 86(6) SEPA). The review is by way of rehearing (s 86(7) SEPA) and the Supreme Court may confirm, vary or revoke the order for extradition (s 86(8) SEPA). In summary, a Magistrate does not have any power to refuse interstate extradition unless he/she is satisfied that the person arrested is not the person named in the warrant or that the warrant is invalid. This is in contrast to the repealed Service and Execution of Process Act 1901 whereby a Magistrate had power and discretion to refuse interstate extradition. Accordingly, in the current legislative framework, the relevant questions are: Is the person arrested the person named in the warrant? Is the warrant valid? Will extradition be ordered subject to a grant of bail or bail refusal?
244
There can be specific consequences for people who are convicted of certain offences or who have certain orders made against them. The following outlines some of the major areas where practitioners need to keep the specific consequences of convictions or orders against their clients in mind.
Firearms licences
The Firearms Act 1996 has numerous restrictions about who may be granted a firearms license (see s 11(5) in particular). There can be serious consequences of a conviction or an Apprehended Violence Order (AVO) being made against someone who uses firearms as part of their employment. A persons firearms license is automatically suspended upon the making of an Interim AVO until the AVO is confirmed or revoked (s 23 Firearms Act 1996 (NSW)). Once an AVO is made, the court has a discretion to prohibit or restrict the possession of all or any specified firearms by the defendant (s 562D Crimes Act 1900 (NSW)). Section 24(1) Firearms Act 1996 (NSW) states that a firearms license is automatically revoked if the licensee becomes subject to a firearms prohibition order (s 73 Firearms Act 1996 (NSW)) or an AVO.
Spent convictions
Section 7(1) Criminal Records Act 1991 (NSW) states that all convictions (defined to include matters proven without conviction) can be spent. There are however certain categories of offences where convictions cannot be spent. For adults, a conviction becomes spent after at least ten consecutive years after the date of conviction, during which the person has not been convicted of an offence punishable by imprisonment, and the person has not been in prison because of a conviction for any offence and has not been unlawfully at large: s 9 Criminal Records Act 1991 (NSW). When a matter is dealt with without proceeding to a conviction, the conviction is spent immediately: s 8(2) Criminal Records Act 1991 (NSW). For children, a conviction becomes spent not less than 3 consecutive years after the date of the order during which the person has not been subject to a control order, and the person has not been convicted of an offence punishable by imprisonment, and the person has not been in prison because of a conviction for any offence and has not been unlawfully at large.
Medical practitioners
Any conviction for a criminal offence is required to be notified to the Registrar of the NSW Medical Board: see s 71 Medical Practice Act 1992 (NSW).
Nurses
A conviction for an offence may make a person ineligible for registration if it is considered by the Nurses Registration Board to render the applicant 'unfit in the public interest to practice nursing': see s 29A Nurses Act 1991 (NSW).
Legal Practitioners
A legal practitioner convicted of an indictable offence, a tax offence or has committed an act of bankruptcy must provide a written statement to show that they are still a fit and proper person to hold a practicing certificate: see Part 3 Division 1AA Legal Profession Act 1987 (NSW). A Practitioners Guide to Criminal Law 245
The commission of an indictable offence, a tax offence or an act of bankruptcy will constitute professional misconduct: s 127(4) Legal Profession Act 1987 (NSW).
Teachers
Any conviction for an indictable or summary offence punishable by 12 months imprisonment or more is treated as a 'breach of discipline': s 86 Teaching Services Act 1980 (NSW)). A conviction may result in a range of punishments, including: caution or reprimand, a fine, demotion, reduction in salary, dismissal or instruction to resign: see s 85(1) Teaching Services Act 1980 (NSW).
Police
Police misconduct and complaints about police misconduct may be investigated by the Police Integrity Commission, the Police Commissioner, the NSW Ombudsman and ICAC. There is a detailed regulatory scheme governing these investigations and describing which body is responsible for investigating different types of complaint.
Security guards
The Commissioner of Police must refuse to grant an application for a licence if the Commissioner is satisfied of certain matters: see s 16 Security Industry Act 1997 (NSW).
Defence personnel
Part VIIIA Defence Act 1903 (Cth) makes provision for urinalysis of people engaged in combat or combat related duties to test for narcotic substances. Positive test results can result in dismissal from the armed forces.
246
23
Costs in criminal law
In NSW, there are three pieces of legislation that deal directly with the issue of costs. They are: The Criminal Procedure Act 1986 (NSW); The Costs in Criminal Cases Act 1967 (NSW); and The Suitors Fund Act 1951 (NSW).
This chapter focuses on the Criminal Procedure Act (CPA), as it is the Act that will most frequently apply in Local Court Proceedings. The Justices Act 1902 (NSW) was the Act that contained most of the provisions in relation to costs. When the Justices Act was repealed, the relevant provisions in relation to costs were transferred to the CPA. Much of the law in relation to costs came from interpreting provisions previously in the Justices Act. For this reason, the Justices Act will be referred to in this chapter. All references in this chapter are to the CPA, unless stated otherwise.
253
There is no requirement for a connection between the reason for dismissing the charge or discharging the defendant and the facts upon which the court relies to make an order for costs (see R v Hunt [1999] NSWCCA 375). Therefore, a practitioner is entitled to tender evidence on a costs application which is beyond the evidence called at the hearing. An example of further evidence may be representations made to the prosecution to withdraw the offence before to the hearing.
254
That the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought This provision seems to bear some similarity to the previous criteria in that it relates to the conduct of the investigation. This section is particularly concerned with the failure to investigate matters that are brought to the attention of the prosecution by the defendant. This extends to those situations where an accused person has disclosed matters to the prosecution that the prosecution has failed to investigate. This would especially be the case if, had the prosecution investigated, they would not have brought or continued the prosecution. This provision may be triggered by matters such as what an accused says in a record of interview or statement to police, or information that is provided by a defendants legal representative. It could also be triggered by written representations by the accused's lawyer to the prosecution that contain evidence or information pointing to an accused being not guilty. That, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs This provision requires something in the conduct of the proceedings to justify an order for costs. The fact that the charge is dismissed will not, on its own, suffice. Examples of matters that may satisfy this criterion include the failure of the prosecution to disclose relevant material, or the failure of the prosecution to call a relevant witness.
The wording of s 213 makes it clear that the principles above apply to the determination of costs pursuant to the Criminal Procedure Act. The Magistrate must make an order quantifying the amount of costs. Professional costs are defined in s 211 to mean costs (other than court costs) relating to professional expenses and disbursements (including witness expenses) in respect to proceedings before a court. The manner in which a defendant conducts the proceedings, for example, by unnecessarily prolonging the hearing, may disentitle the defendant to part of the costs (see Emanuele v Dau (1996) 87 A Crim R 417). A Magistrate will usually hear submissions on the amount of costs to be awarded once the Magistrate has determined that an order for costs will be made. It is therefore helpful to be able to tender a prepared bill of costs if you are likely to make a costs application. It is best to avoid advising the magistrate of the costs sought during the application for costs. The amount of costs sought only becomes relevant once the Magistrate decides that costs will be awarded.
255
256
261
24
Annulling convictions
People who have been convicted in their absence in the Local Court can apply to the Local Court to have their convictions annulled (that is, taken away). This chapter deals with applying to annul convictions in the Local Court. The general principles discussed in this chapter are also applicable to the Children's Court. All references to legislation in this chapter are to the Crimes (Local Courts and Appeal Review) Act 2001 (NSW) unless otherwise stated.
Section 4 is the applicable section and states that: (1) An application for annulment of a conviction or sentence made or imposed by a Local Court may be made to the same Local Court: (a) by the defendant, or (b) by the prosecutor, but may be made by the defendant only if the defendant was not in appearance before the Local Court when the conviction or sentence was made or imposed.
not desirable, even if possible, to catalogue them here. The basis for the application is that the conviction was made in the absence of the defendant. It seems to me quite obvious that if the appellant was prevented from coming to court on 10 December 2001 because of illness, that falls well within the ambit of the expression "hindered by illness from taking action in relation to the proceedings". It is not to my mind, significant or any answer to such a claim that the appellant was well enough to telephone his solicitor or to write a letter. To conclude otherwise, defeats the intention of the legislation. The case illustrates that a wide interpretation is to be given to the relevant legislation. Sheller JA examined the Second Reading Speech in relation to the introduction of amendments to the Justices Act in 1997. Justice Sheller said at paragraph 21 that it was apparent that the amendments were directed, in addition to other matters, to widen the grounds for review of a Local Court decision. The particular mischief which Sheller JA found that the amendments were directed to was that of a person who knew that the court case was listed for a particular date but was prevented by accident or other reason from getting to the court. The Court of Appeal allowed the appeal, granted the application for annulment, and remitted the matter to the Local Court.
263
Calling evidence
If evidence is not contested (for example, when there is proof that your client was in custody at the date of his or her conviction) there will be no need to call evidence. Other cases will depend on your client giving evidence. Your client may have to explain the circumstances that prevented him or her from attending court if this is the case. You should prepare your client to give evidence as you would prepare a client to give evidence in chief in a defended hearing, and you should also prepare your client for the possibility of cross examination by the prosecution.
264
You make submissions as to why the application should be granted, which will be followed by the prosecutions submissions. The prosecution may be asked to indicate their attitude to the application. If the prosecution does not oppose your application, then you may not need to go through the whole procedure set out above.
If your client wishes to plead not guilty, you should be in a position to set a hearing date if a brief of evidence has previously been served. This will mean knowing how many witnesses you are likely to call and how long you estimate that the hearing will take.
265
Applicant/Defendant (your name) Date of Birth Drivers Licence Number Court Case Reference Number Date of Court Conviction/Order Place of Court Conviction/Order
: : : : :
Sydney
(Downing Centre)
Offence : Receiving Place of Offence : Maroubra Date of Offence : 11 July 2004 SDRO Enforcement Order Number (if applicable): (* delete any statements that do not apply)
I am making this application because the conviction and/or order was recorded in my absence AND:
DETAILS:
I was found guilty without being at court on the date that my matter was listed for hearing. I was very sick on the morning of my hearing. I telephoned the court at 9 o'clock and told the person that I spoke to that I would be going to see my doctor. The person I spoke to took my name and details. I went to my doctor, Dr Marlowe, at about 10 o'clock in the morning. She gave me a medical certificate which I asked her to fax to the court. Dr Marlowe told me that she faxed this certificate to the court. I attach a copy of the medical certificate. I contacted my solicitor, Mrs Marston, but was not able to speak to her. I left a message with her secretary to let her know that I was sick and could not go to court. When I rang the court in the afternoon to find out what had happened with my court matter, I was told that I had been found guilty. I contacted my solicitor and I went to the court the next day and had my court matter re-listed. I took all the steps I could take to let the court know why I would not be able to make it to court on 12 October 2004. The date of hearing of my matter was 12 October 2004. I had attended court on the two previous dates that this matter was listed at court, which were 25 July and 30 August 2004. 266 Chapter 24: Annulling convictions
I have never had a fail to appear or conviction in my absence. I wish to plead Not Guilty to the matter. Defendants signature (you sign here): ............................................................. Date:
Signed: ....................................................Clerk of the Local Court at Sydney (Downing Centre) Date: ................
267
25
Appealing from the Local Court to the District Court against severity of sentence
This chapter discusses appeals to the District Court on the grounds of severity of sentence. The chapter specifically refers to appeals from the Local Court, but the principles are the same (with some minor differences) in relation to appeals from the Children's Court. All references to sections in legislation are references to the Crimes (Local Courts Appeal and Review) Act 2001 unless indicated otherwise.
The Notice of Appeal or Application for Leave to Appeal can be obtained from any Local Court Registry. An appeal must be made within 28 days after sentence is imposed (s 11(2)(a)). The appropriate form is the Notice of Appeal. If the 28 day period has passed, leave of the District Court must be sought by way of an Application for Leave to Appeal. This must be done within three months of the date of the conviction or sentence imposed (s 13(2)).
271
In determining an appeal, the District Court must not make an order or impose a sentence that could not have been made or imposed in the Local Court (s 71). As a matter of fairness, if the District Court is considering increasing the sentence which was imposed in the Local Court, the Court must warn the appellant that it is considering doing so (Parker v DPP (1992) 28 NSWLR 282). This is commonly called a Parker warning. If a Judge gives you a Parker warning, it is usually best to get your client's instructions to seek leave to withdraw the appeal. It is up to the Judge whether leave to withdraw the appeal is granted. If the Judge does not grant leave to withdraw the appeal, you will have to go ahead and argue the appeal.
You can get the depositions in your client's matters by applying in writing to the following:
You should check the depositions to make sure that all the relevant papers have been included. It is common that documents tendered in the Local Court are not included with the depositions which are prepared for the District Court. It is therefore important to get instructions from your client on all the documents that were tendered in the Local Court, and to have your own copies of them when you go to court. If documents have not been included with the depositions for the District Court, you should let the DPP solicitor know this before the appeal is heard and provide him or her with copies.
272
Chapter 25: Severity appeals from the Local Court to the District Court
If there is no further evidence, you say "That is the case for the appellant". You make your submissions, followed by the DPP solicitor making submissions. The Judge gives his or her decision.
Practical tips
Keep in mind what result you are aiming for. For example, your appeal may be limited to the length of a disqualification period that may have been imposed, or the structure of sentences imposed, or a failure to find special circumstances when a sentence of imprisonment was imposed. It may be helpful to let the Judge know at the outset of the appeal what sentence or orders you are seeking. Think carefully about whether you call evidence from your client or any other witness (for example, a relative, drug and alcohol counsellor, or chaplain). You should call evidence if it will assist your client's case. If the evidence you want to call is not disputed, or is contained in other documents before the court, there is little benefit in calling that evidence. Some Judges prefer sworn evidence, while other Judges prefer appeals to proceed by way of submissions. If you do not know the preference of the Judge you are appearing before, find out by asking other lawyers who have appeared before the same Judge. If you are calling evidence, remember that leading questions that result in your client or witness answering simply 'yes' and 'no' are less persuasive than asking open questions. Open questions allow your witness to give evidence in their own words. Open questions include questions which start with 'What', 'When', 'Where', 'How', 'Why', and 'Who'. Before court you should tell your client what a Parker warning is, so that your client knows of the risk and so that if you do get a Parker warning, your client will know what it means.
273
26
Appeals to the Court of Criminal Appeal
The Court of Criminal Appeal (CCA) is a division of the Supreme Court of NSW and is the highest criminal court in this State. Most appeals to the CCA come from the District and Supreme Courts. The CCA is a court of review; matters are not heard de novo. This means that the CCA deals with errors of law. It does not hear evidence itself, and in most cases fresh evidence is not admissible. The CCA reviews the proceedings that occurred in the lower court, and the judgment of the lower court Judge, and decides whether an error of law has been demonstrated. Appeals to the CCA are usually: appeals by defendants against severity of sentence appeals by defendants against conviction appeals by defendants against conviction and (if unsuccessful) appeals against severity of sentence (also known as all grounds appeals); or Crown appeals against leniency of sentence.
Other types of appeal to the CCAsuch as appeals by the Crown against a decision by a trial Judge to exclude evidence, where the exclusion destroys or substantially weakens the Crown caseare not dealt with in this chapter. The phrase court of trial is used by the CCA (and in this chapter) to refer generically to the lower court whose decision is being appealed to the CCA. It is used even if the appellant pleaded guilty at the lower court.
appeal (that advice will later form the basis for the written submissions), grounds of appeal settled and, if necessary, fresh evidence obtained.
Requesting documentation
As soon as the NIA is lodged, the applicant must request the transcripts of proceedings and exhibits from the court in which the matter was originally heard. Such a request should be made in writing to the relevant registry of the Court in which the matter was originally heard. This should be done when the NIA is lodged with the CCA. The primary material that is required in order to prepare an appeal to the CCA is: the transcript of the proceedings before the District or Supreme Court (including any judgments, submissions by counsel, the summing-up by the Judge, and the remarks on sentence); and the exhibits that were tendered at the District Court or Supreme Court.
Because the CCA will generally not hear fresh evidence, the success of an appeal in the CCA is heavily reliant on the way the matter is run in the original court. A significant part of the 6 month period in which a NIA is current is often spent awaiting exhibits and/or transcripts. If there are significant delays in receiving the requested documents, you must regularly contact the trial court to discuss the progress of your application. If your appeal is not ready to proceed by the end of the 6 month NIA period, you will need to make an application for extension of the period in which the NIA has effect (Form VF under the Criminal Appeal Rules). In that application, you will need to establish that you have taken all steps in your power to progress your clients intended appeal.
Briefing counsel
Counsel experienced in criminal appellate work should be briefed to advise on the merits of appealing to the CCA, and, where the appeal does proceed, to draft written submissions and appear at the hearing of the appeal. Counsel will usually draft and settle the grounds of appeal and any submissions. The quality of the advice or submissions that you get from counsel will be heavily dependent on the quality of the brief sent to counsel. See the chapter on Briefing counsel in this book. In appeals where a grant of legal aid is sought, the Legal Aid Commission requires that an advice on the merits of the appeal is obtained before a grant of legal aid is made. The Legal Aid Commission will not fund an appeal to the CCA if the appeal does not have reasonable prospects of success. In any event, the practice of getting an advice on the merits of the appeal that should be adopted in most appeals.
276
Call-overs
The CCA regularly holds call-overs. A matter will not be listed unless the Notice of Appeal has been filed, or unless the party has requested that the matter be listed. Where a sentence appealed against is a short one, the Registry and the CCA Unit of the Office of the DPP should be advised immediately so that the appeal may be expedited. If the appeal cannot be expedited, an application for Supreme Court bail should be considered (see below for a discussion of bail issues pending a CCA appeal). Once the grounds of appeal have been filed with the Notice to Appeal, at the call-over the Registrar sets: a timetable for filing of any evidence on which the appellant relies; a timetable for filing the respondents evidence/submissions in reply; and the hearing date.
It is only in exceptional circumstances that an application to vacate a hearing date should be made. Affidavit material will need to be filed and a strong case put to the Registrarand possibly the CCA itself particularly if such an application is not made a substantial time before the hearing.
Evidence
As a general rule, the CCA will not admit any fresh material into evidence that the appellant, or his or her legal representative, was aware of at the time of the sentencing or trial. The CCA may, in exceptional circumstances, admit evidence that has become known since the original proceedings. It will do so essentially where it would be a miscarriage of justice not to admit the new evidence For example: In sentencing mattersthe diagnosis of an extremely serious illness that an appellant would have been suffering from at the time of sentencing, but which at that time was undiagnosed; or In conviction mattersan admission of fabrication from a complainant.
The CCA is predominantly a paper jurisdiction. Before the hearing of the appeal, the CCA Registry prepares an appeal book containing all relevant transcript and exhibits from the court of trial. The Judges of the CCA will have read this material, and the written submissions for both parties, by the time the appeal is heard. A Practitioners Guide to Criminal Law 277
In sentence and Crown appeals, the CCA will often make a determination on the day of the hearing, and if the appeal is allowed, will move immediately to re-sentence the appellant. It is important, therefore, to anticipate this and have already filed evidence which the appellant can rely on for the purpose of resentencing. This evidence is usually confined to things the appellant has been doing (e.g. to advance his or her rehabilitation) since the time of the original sentence. This material must be filed in affidavit form your client will not have the opportunity to speak to the CCA directly. An appellant can abandon his or her appeal at any stage before to the hearing (r 27 Criminal Appeal Rules). The effect of abandoning an appeal is that the appeal is deemed to be dismissed or refused, and therefore the original sentence is confirmed. An appellant may also withdraw an appeal during the course of the hearing of the appeal, although this is rarely done.
278
283
27
Briefing counsela practical guide
The purpose of this chapter is to provide a practical guide on how to brief counsel in criminal matters. You will most commonly brief counsel to appear at trial, and some of the recommendations in this chapter presume you are preparing a matter for trial. You may however brief counsel at any stage of proceedings, including to advise on a particular point of law or procedure. The general principles in this chapter should assist with briefing counsel in criminal cases. Briefing counsel is a continuing process. It is not completed simply by delivering the brief to counsel which has a back sheet around a selection of correspondence and original documents. A poorly put together brief is unfair to both counsel and your client.
284
You will want to note the accuracy of the transcript, as well as your clients demeanour and appearance, which may be just as important as his/her answers to questions. You will want to go through the ERISP with your client, as well as with counsel.
285
Subpoenas you have issued and any significant documents you have received in response; and Any relevant cases and legislation.
286
28
Contacts
The following is a list of contact details of various government, community and other organisations that you may find helpful to know about.
Children
Ask! A free Legal Service for Youth
Function: Address: Provides free advice in all areas of law for 14 to 21 year olds in the Sydney metropolitan area Randwick: c/o Ted Noffs Foundation 206A Alison Road (corner Avoca Street) Parramatta: c/o The Smith Family Level 1, 239 Church Street (corner George Street) (02) 8383 6629 (02) 9310 0020 [email protected] Provides criminal law advice to children under 18, especially those in police custody. 1800 10 18 10 Administers the childrens criminal justice system Central Support Office Levels 22, 23, 24 477 Pitt Street Sydney NSW 2000 (02) 9219 9400 (02) 9219 9500 [email protected] http://www.djj.nsw.gov.au Promotes the protection of children and young people from risk of harm and provides care for children and young people who are not able to live with their families. 4-6 Cavill Ave Ashfield NSW 2131 Locked Bag 28 Ashfield NSW 1800 (02) 9716 2222 13 2111 (24hrs) (02) 9716 2999 http://www.community.nsw.gov.au Provides advice and limited representation for children and young people. Provides an email advice service, LawMail, where people under 18 years of age can email their legal question. c/- University of New South Wales, Sydney 2052 (02) 9398 7488 287
Address:
Address: Phone:
(02) 9398 7416 [email protected] (children only) www.lawstuff.org.au The centre is a free legal service for homeless and disadvantaged young people aged 25 and under. It also provides legal information and training for young people and youth workers. 356 Victoria Street, Darlinghurst NSW 2010 (02) 9360 1847, mobile 0418 407 290 (02) 9331 3287 [email protected] www.theshopfront.org Hours Mon-Fri 9.30-5.00 (arrangements can be made outside hours if necessary)
Courts
District Courts
Phone: (02) 9287 7581 (7582) (Downing Centre, Sydney) For a complete list of regional and city District Courts go to Website: http://www.lawlink.nsw.gov.au/dc Additional information: You can also download relevant court forms at the above address
Local Courts
For a complete list of regional and city local courts go to Website: http://www.lawlink.nsw.gov.au/lc Additional information: You can also download relevant court forms at the above address
Phone:
288
Fax: (02) 9230 8628 Principal Registrar Phone: (02) 9230 8729 Registrar, Court of Criminal Appeal Phone: (02) 9230 8066 Email: [email protected] For more information and a complete list of NSW Supreme Courts go to Website: http://www.lawlink.nsw.gov.au/sc Additional information: You can also download court forms from the above address
Website:
289
Indigenous Services
Aboriginal Medical Service
Function: Phone: Fax: E-mail: Address: Clinic Hours: Provides medical care to Aboriginal clients in NSW. Services are generally provided from several clinics on a drop-in basis. (02) 9319 5823 (02) 9139 3345 [email protected] 36 Turner Street, Redfern NSW 2016 MonThurs 9.00am6.00pm Friday 10am-5pm Provides information, advice and advocacy for tenants about their rights. Provide help with Residential Tenancy Tribunal hearings and tenancy disputes. (02) 9564 5367, 1800 772 721 (Sydney) 1800 810 233 (Dubbo) 1800 248 913 (Grafton) 1800 672 185 (Batemans Bay) ATSILS provides a 24 hour legal representation service for Indigenous people. This service is provided in courts, corrective institutions, police stations, and watch houses. (02) 9318 2122 (02) 6772 5990 (02) 6651 8033 (Coffs Harbour, Grafton and Maclean areas) (02) 6622 7088 (Lismore) (02) 6921 9230 (02) 4422 3255 (02) 6882 6966
Kamilaroi Aboriginal Legal Service (TamworthMoree) Many Rivers Aboriginal Legal Service
South Eastern Aboriginal Legal Service (Nowra/Canberra) Western Aboriginal Legal Service (Bourke/Broken Hill/Walgett)
Lawyers
Director of Public Prosecutions (NSW)
Function: Address: 290 Prosecutes indictable offences (except Commonwealth matters) in NSW courts 265 Castlereagh Street Chapter 28: Contacts
Phone: Fax: Website: Additional information: Function: Address: Phone: Fax: Website:
Sydney NSW 2000 (02) 9285 8606 (02) 9285 8600 http://www.odpp.nsw.gov.au Has a number of suburban and regional offices. Prosecutes Commonwealth offences Level 7, 6668 Goulburn Street Sydney NSW 2000 (02) 9321 1100 (02) 9264 8241 http://www.cdpp.gov.au
291
Legal Institutions
Commonwealth Ombudsman
Function: Address: Phone: Fax: Website: Function: Investigates complaints against Commonwealth public officers, including police officers. 477 Pitt Street Sydney NSW 2000 1300 362 072 (02) 9211 4402 http://www.ombudsman.gov.au To assist agencies and persons within NSW to be aware of their responsibilities to the public and to ensure they comply with the law and best practice in administration. 580 George Street Sydney NSW 2000 (02) 9286 1000 1800 451 524 [email protected] http://www.ombo.nsw.gov.au The promotion and protection of human rights 133 Castlereagh Street Sydney NSW 2000 (02) 9284 9600 1300 369 711 (general enquiries) 1300 656 419 (complaints) http://www.hreoc.gov.au Prevent and investigate corruption in the public sector. Level 21 133 Castlereagh Street Sydney NSW 2000 (02) 8281 5999 (02) 9264 5364 [email protected] www.icac.nsw.gov.au
292
Mediations
Community Justice Centre directorate
Function: Address: Provides mediation and dispute resolution services Level 8, Goodsell Building 8-12 Chifley Square Sydney NSW 2000 Phone: (02) 9228 7455 Fax: (02) 9228 7456 Email: [email protected] Website: http://www.cjc.nsw.gov.au/cjc.nsf/ Additional information: Has a large number of suburban and regional offices
293
Phone: Website: Function: Address: Phone: Website: Function: Address: Phone: Website: Email: Function: Address: Phone: Freecall: 294
[email protected] http://www.mentalhealth.asn.au State-wide service that promotes access to mental health services for people of non-English speaking background. Clinical consultation, an assessment service and translators available. 5 Fleet Street Nth Parramatta NSW 2151 (02) 9840 3800 1800 648 911 (for callers in NSW) [email protected] http://www.tmhc.nsw.gov.au Mon-Fri 8.30am5pm Mental health intake, assessment, crisis management and treatment. (02) 8382 1911 (02) 9360 3678
MERIT program
Function: Is a Local Court based diversion program that targets adult defendants with illicit drug problems who are motivated to undertake drug treatment. Defendants who are assessed as suitable for MERIT can undertake supervised drug treatment as part of their bail conditions. Contact person Lyn Bond/Steve Childs Craig Cooper Sue Robbie Bronwyn Buller Clare Felton Mark Buckingham Nicole Maher David Rogers Kylie Crawford Lyn Gardner Matt Jessimer John Scantelton Julie Carter Sandra Sunjic/Andre Van Altena Susie Wallis Mark Milic Tanya Merinda Nicole Maher Phone 4320 3752 4320 3057 9797 9930 (08) 8080 1540 6921 3159 4924 6800 4228 8211 6845 3300 0408 477 832 6392 6800 6766 8081 9906 7083 6620 7650 9521 8922 9828 6746 6299 1725 4734 2131 9840 3474 6845 3300
Area Health Service Central Coast Central Sydney Far West Greater Murray Hunter Illawarra and Shoalhaven Macquarie Mid North Coast Mid West New England North Sydney Northern Rivers South East Sydney South West Sydney Southern Wentworth Western Sydney Wellington
295
Phone: Rural Free Call: Indigenous Women: Fax: Email: Websites: Function: Phone: Fax: Email: Web address: 296
General Research
Useful Websites
Austlii Scaleplus Lawlink State Library of NSW: Legal Information Access Centre (LIAC) NSW Government portal NSW legislation Parliament of NSW http://www.austlii.edu.au http://scaleplus.law.gov.au http://www.lawlink.nsw.gov.au
Interpreting Services
Translating and Interpreting Services
Phone: Website: Phone: Sydney: 131 450 http://www.dimia.gov.au 1300 651 500 Level 8, Stockland House 175-183 Castlereagh Street Sydney NSW 2000 117 Bull Street Newcastle NSW 2300 84 Crown Street Wollongong NSW 2500 http://www.crc.nsw.gov.au/interpreting/ Provides interpreting services state-wide (must give a minimum of one weeks notice) Suite 104, Level 4 Macquarie House 169 Macquarie St Parramatta 2150 (02) 9893 8555 (02) 9893 8333 [email protected] http://www.deafsocietynsw.org.au
297
Phone: Fax:
McKinnon Unit
Function: Address: Medicated selective detoxification for people from the local area. Rozelle Hospital Glover Street Rozelle NSW (02) 9556 9241 (02) 9556 9246 4 week residential rehabilitation program Rozelle Hospital East Balmain Road Leichhardt NSW (02) 9556 9752 (02) 9556 9766 Long term residential rehabilitation program 56 Albion Street Surry Hills NSW 2010 (02) 9212 2322 (02) 9281 9771 Rehabilitation for drugs, alcohol and gambling 431 Elizabeth St Sydney NSW 2000 (02) 9281 5144 (for admissions) (02) 9820 9999 (treatment centre) 13a Moonstone Place Eagle Vale
Phone: Fax:
Palm Court
Function: Address:
Phone: Fax:
Odyssey House
Function: Address: Phone: Treatment centre:
298
Wisteria House
Function: Address: Phone: Fax: Function: Address: Phone: Fax: Email: Website: Drug and alcohol detoxification Cumberland Hospital, ward 12 Parramatta NSW 2150 (02) 9840 3462 (02) 9840 3869 Community self-help group for men or women, residential rehab. Has centres in Chippendale (for men), Redfern (for women) and Cessnock (men and women) PO Box 1237, Strawberry Hills NSW 2012 (02) 9318 2980 (02) 9318 1987 [email protected] http://www.whos.com.au Drop-in centre/clinic; needle and syringe exchange; methadone treatment; referral service. 100 Darlinghurst Road Darlinghurst NSW (02) 9360 2766 (02) 9360 5154 Private methadone and buprenorphine treatment clinic; counselling and referral service. 166 Bronte Road Waverly NSW (02) 9369 1277 (02) 9369 4985 Methadone maintenance and detoxification; counselling. North Sydney (02) 9906 7083 (02) 9926 8419 Assessment and counselling; methadone maintenance; needle and syringe exchange; outpatient detox; chemical use in pregnancy service. 591 South Dowling St Surry Hills NSW 2010 (02) 9332 8777 (02) 9332 8700 Specialist drug and alcohol medical service, methadone maintenance. 36 Regent Street Chippendale NSW (02) 9211 2311 (02) 9211 2443
Kobi Clinic
Function: Address: Phone: Fax:
Langton Centre
Function: Address: Phone: Fax:
Clinic 36
Function: Address: Phone: Fax:
299
Accommodation Services
Lifeline
Function: Telephone: Provide referral to crisis accommodation services in all local areas, including refuges and low cost accommodation. 13 11 14
300