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Practitioner's Guide to Criminal Law About the Guide Practitioner's Guide to Criminal Law About the Guide This is the second online edition of the Practitioner's Guide to Criminal Law, an exciting initiative of young NSW criminal lawyers. This edition was updated by a Senior Editorial Team throughout 2016-17 (Rob Hoyles, Rhonda Furner, Michael Tangonan, Simon Lipert and Sarah Maddox), adding to the work of over 50 contributors for the first online edition release in 2014-15. Whilst this edition delivers a much needed update to the guide, we note that significant changes to the laws of Sentencing, Committals, Parole, High Risk Offenders, Driver Disqualification are proposed for late 2017 and early-mid 2018. This will require a further update to the guide, which remains an eternal work in progress. 1 TABLE OF CONTENTS 1. Checklist – what to do when your client is arrested or charged……………………………………………………..3 2. At the Police Station – the process that police follow and the options you have as a solicitor………………….7 3. Bail – how it works, what you need to consider and how you apply for bail …………………………………..….16 4. Criminal Procedure – the basics on Summary, Indictable and Table Offences and briefs of evidence………23 5. Tips on Local Court Practice – the Do's and Don'ts of appearing in the Local Court......................................30 6. Committals – how the process works ...............................................................................................................41 7. Subpoenas - issuing them, challenging them, and how they work……………………………………...…………57 8. Forensic Procedures – taking DNA and other samples, when is it lawful, and the various types of applications……………………………………………………………………………………………………………….….65 9. Negotiating with the Prosecution……………………………………………………………………………………80 10. Intellectual Disability and Mental Illness………………………………………………………………………….95 11. Drug Court & MERIT.......................................................................................................................................96 12. Children's Court – appearing in the Criminal Jurisdiction for young people…………………………………..106 13. Young Offenders Act – Youth cautions and the like……………………………………………………………..107 14. Local Court Defended Hearings…………………………………………………………………………………...113 15. Sentencing in Local Court………………………………………………………………………………………….128 16. Sentencing for PCA offences – what you need to know about a drink driving plea…………………………144 17. Apprehended Violence Orders – the basics……………………………………………………………………..156 18. Costs in Criminal Law……………………………………………………………………………………………….173 19. Annulment Applications – what to do if your client did not attend court and is convicted in their absence……………………………………………………………………………………………………………………..177 20. Appeals from Local Court to District Court……………………………………………………………………..181 21. Appeals to the NSW Court of Criminal Appeal…………………………………………………………………185 22. Briefing Counsel – what you need to know……………………………………………………………………….193 2 Chapter 1 - Checklist - When Your Client Is Charged Overview and checklist of what to do if your client is charged Introduction This chapter is a basic guide to some of the things you should do if your client is charged. It is not an exhaustive list because the possibilities are too numerous to address all options. In particular, this chapter does not deal with trials or sentences once a person has been committed to the District or Supreme Court (see steps 6 and 7 to determine whether your client will be committed). Checklist 1. Get the Court Attendance Notice (CAN) for each charge, the Police Facts Sheet and criminal record from police, DPP or from client. If the matter involves a domestic violence allegation, the police should also make available by the first mention (or within a week of the first mention) the domestic violence ‘mini brief’ (complainant’s statement, photos etc.) 2. Find out - When is your client’s 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 out - Is your client in custody? a) Yes: i. Does your client want to apply for bail (release application)? If so, see chapter 3 on how to prepare and make a bail application. Check whether your client has already made a release application before a Magistrate and whether there are new facts or circumstances justifying a further application (s74 Bail Act). ii. 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). In addition to referring to an updated criminal history, to determine the dates and details of your client’s custodial status, email the Department of Corrective Services, Sentence Administration at [email protected] (link sends e-mail). b) No: i. Is your client subject to bail conditions? If so, get a copy of the bail agreement from the client, DPP, police or the Court. ii. Get instructions on whether your client has difficulty with, or wants to change, any bail conditions. If so - the principles in chapter 3 apply to applications to vary bail conditions. iii. Is your client subject to an interim or provisional AVO? See Chapter 17 for limitations on their bail addresses or conduct. PRACTICAL TIP: Some courts require defence practitioners to provide several days notice before a bail variation application will be heard. Others do not. The DPP often will require that notice of a bail variation is 3 given so that they can seek instructions from the police Officer in Charge. It is worth checking the practice of the court in which you are appearing before you give your client advice in this respect. A court to deal an application in relation to bail as soon as reasonably practicable. 4. Find out - Was your client an adult or a child (when the offence was allegedly committed)? a) Adult - continue with step 5. b) Child - go directly to chapters 12 & 13. Different procedures apply to child defendants. This checklist is written for adult defendants. 5. Find out - Is your client brought before the Court by a warrant (as opposed to a fresh CAN)? a) Yes: i. Check what type of warrant was issued and executed – an arrest or bench warrant or a warrant pursuant to s25(2) Crimes (Sentencing Procedure) Act 1999. 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). Do not trust the criminal record provided, especially if it is non-fingerprinted. You should also seek access to the bench papers to determine the history of the matter. ii. You need to obtain the original CAN and Facts Sheet, not just the papers on the execution of the warrant. It is not uncommon for there to be multiple warrants executed in the same arrest so make sure you have all the necessary paperwork for each matter. iii. If it is a s25(2) sentence warrant, you need to determine whether your client has been convicted in their absence pursuant to s196 Criminal Procedure Act 1986 or the sentence warrant was issued following a plea of guilty. Again consult the bench papers to determine that history. If your client has been convicted in their absence, you will need to take instructions on whether to make an application to annul the conviction. See chapter 19 for how to lodge an annulment application. b) No - continue with step 6. 6. Is the alleged offence against Commonwealth law?1 a) Yes: i. Find out whether the offence is being dealt with on indictment or summarily. Check with the prosecutor, or if the prosecutor is unavailable - look at the Act that creates the offence and ss 4G - 4J of the Crimes Act 1914 (Cth). ii. If being dealt with on indictment - ask the court to order a brief of evidence. After that, the charge will be for committal and procedures are as described in step 7(c). iii. If being dealt with summarily - discuss 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. b) No – go to step 7. 7. Find out - Is the client’s most serious charge summary, an indictable offence that can be dealt with summarily, or strictly indictable?2 See chapter 4, which discusses in more detail how you find out, and the meaning of the distinction. 4 a) Summary charge: i. Check that the charge has been laid within time.3 ii. Take instructions and be in a position to enter a plea on behalf of the client at the first mention. iii. Go to step 8. b) Table 1 charge (indictable that is dealt with summarily unless the prosecution or defendant elects to proceed on indictment) or Table 2 charge (indictable that is dealt with summarily unless the prosecution elects to proceed on indictment): i. Check that police prosecutors are appearing in the matter.4 ii. If it is apparent the matter will proceed summarily, take instructions and be in a position to enter a plea on behalf of the client at the first mention. You have no right to see a brief of evidence before entering your plea (unless it is a domestic violence matter as mentioned above at step 1). Go to step 8. iii. If not, and the prosecution is going to elect - procedure is as for a strictly indictable charge, so go to step 7(c). c) Strictly indictable charge: i. Ask the court to order a brief of evidence - your client is not obliged to enter a plea until the brief has been served. ii. Once the brief of evidence has been served - take instructions in preparation for committal. iii. See chapter 6 for details on the law of committals and how to run a committal. iv. Consider negotiation with the DPP - see chapter 9. v. Once the committal has happened, seek assistance from an experienced practitioner in preparing for the District Court trial or sentence.
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