Update 155 amends the Bench Book to update and revise various chapters and incorporate recent legislative developments. The following chapters have been revised:

Specific penalties and orders — Crimes (Domestic and Personal Violence) Act 2007

Bail

have been updated to incorporate new s 28B of the Bail Act, inserted by the Bail and Other Legislation Amendment (Domestic Violence) Act 2024 and Crimes (Domestic and Personal Violence) and Other Legislation Amendment Act 2024, and the Bail Regulation 2021 amended by the Bail Amendment (Electronic Monitoring) Regulation 2024.

Section 28B, which commenced on 11 October 2024, provides an electronic monitoring requirement must be imposed when bail is granted in relation to a serious domestic violence offence unless sufficient reasons exist, in the interests of justice, to justify not imposing the condition.

The Index, Table of Cases and Table of Statutes have been updated to Update 155.

Update 154 amends the Bench Book to update and revise various chapters and incorporate recent legislative developments. The following chapters have been revised:

Specific penalties and orders has been updated as follows:

General orders

Commonwealth offences

Committal proceedings

Contempt of court and disrespectful behaviour in court

Chapter reviewed and updated, including the following:

The Index, Table of Cases and Table of Statutes have been updated to Update 154.

Update 153 amends the Bench Book to update and revise various chapters and incorporate recent legislative developments. The following chapters have been revised:

Specific penalties and orders has been updated to incorporate:

Domestic violence offences

Bail

Children’s Court — criminal jurisdiction

Non-publication and suppression orders

Local Court Practice Notes

The Index, Table of Cases and Table of Statutes have been updated to Update 153.

Update 152 amends the Bench Book to update and revise various chapters and incorporate recent legislative developments. The following chapters have been revised:

Specific penalties and orders has been updated to include a performance crime offence under s 154K(1) Crimes Act 1900 following insertion by the Bail and Crimes Amendment Act 2024.

General orders

Bail

Children’s Court — criminal jurisdiction

Children’s Court — care and protection jurisdiction

The Index, Table of Cases and Table of Statutes have been updated to Update 152.

Update 151 amends the Bench Book to update and revise various Chapters and incorporate recent case law and legislative developments. The following Chapters have been revised:

Specific penalties and orders has been updated as follows: the maximum fine for a Table 2 offence listed in the SPO Chapter, not specified in s 268(2) of the Criminal Procedure Act 1986, has been amended to 50 penalty units following the insertion of s 268(2)(h) by the Crime and Criminal Procedure Legislation Amendment Act 2024.

Sexual offences

Domestic violence offences

Interpreters

Apprehended violence orders

The Index, Table of Cases and Table of Statutes have been updated to Update 151.

Specific penalties and orders has been updated to incorporate:

[4-000] Defended hearings is revised at [4-060] to incorporate Darlington v DPP [2023] NSWSC 1139 where the magistrate failed to give adequate reasons and made no real attempt to deal with the accused’s arguments.

[20-000] Bail is revised at [20-300] to remove repealed knife offences under ss 11C and 11E Summary Offences Act 1988 by the Criminal Legislation Amendment (Knife Crimes) Act 2023. The table of bail conditions that can be imposed is revised at [20-360] to include the accompaniment requirement (a form of pre-release requirement) under the new s 28A Bail Act 2013.

[28-000] Committal proceedings incorporates:

[40-000] Children’s Court — Care and Protection Jurisdiction has been amended by Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 parts of which were proclaimed on 15 November 2023 and applies to care applications made on or after that date. Amendments incorporate changes in relation to:

[52-000] Review and appeals incorporates Darlington v DPP [2023] NSWSC 1139 and Selkirk v DPP [2020] NSWSC 1590 at [52-040] which held that appeals to the Supreme Court against a conviction include a finding of guilt without formal order of conviction.

[70-000] Legal Profession Uniform Conduct Rules includes links to:

[74-000] Local Court Practice Notes Practice Note Specialist Family Violence List Pilot has been included. It applies to family violence related proceedings listed at the pilot locations (Sydney Downing Centre, Blacktown, Newcastle, Gunnedah circuit (excluding Tamworth), and Moree circuit) for offences commenced on or after 25 September 2023.

The Index, Table of Cases and Table of Statutes have been updated to Update 150.

The Local Court Bench Book is available in PDF or html.

Specific penalties and orders has been improved by utilising Lawcodes to generate penalties in almost all of the maximum penalty tables. For a list of Acts in Specific penalties and orders that are not populated by Lawcodes see Introduction. The following additional Acts have been included:

Specific penalties and orders has been updated to incorporate:

[2-000] Road Transport includes:

[18-000] Commonwealth offences:

[20-000] Bail is revised at [20-840] regarding the onus on an accused to satisfy bail provisions for Commonwealth child sex offences and to include reference to R v Weatherall [2023] NSWSC 710 regarding s 15AAA Crimes Act 1914.

[28-000] Committal proceedings is amended as follows:

[32-000] Small Claims includes reference to S Olischlager, “Guide to managing small claims hearings”, Local Court Webinar, 3 May 2023 on JIRS Program Materials at [32-160].

[44-000] Coronial Matters has an additional reference at [44-200] to Australian Coronial Law Library in Other Resources on JIRS.

The Index, Table of Cases and Table of Statutes have been updated to Update 149.

The Local Court Bench Book is available in PDF or html.

The Foreword has been updated by His Honour Peter Johnstone, Chief Magistrate.

Specific penalties and orders has been improved by utilising Lawcodes to generate penalties in some of the maximum penalty tables which will result in efficiencies to the currency of the penalties as they will be automatically updated at the same time as the legislation in Lawcodes.

The sentencing statistics for each offence can be viewed (where available) by clicking on highlighted penalties in the tables. These statistics are updated each quarter, and may provide useful information when sentencing.

Higher court penalties are generally displayed in a separate column to clarify the different penalties between the Local Court and the higher courts (or are indicated in square brackets), where applicable. The tables will continue to have a column specifying whether the offence is a Table 1 or Table 2 offence.

The statistics on JIRS will be used to generate the offence description in the tables which will result in concise, shorter descriptions. The links to the legislation will remain in the event more in-depth information regarding the provision is needed.

For a list of Acts in Specific penalties and orders populated by Lawcodes see Introduction.

The Specific penalties and orders tables are only available in html. There is a link in the PDF to the Specific Penalties and Orders in html.

Specific penalties and orders has been updated to incorporate:

[2-000] Road Transport includes automatic and minimum disqualification periods for offences under the Crimes Act 1900 ss 51A, 51B, 52A, 52AB, 53 and 54 at [2-040].

New [4-000] Defended hearings has been included to provide a brief overview of a magistrate’s role to ensure a fair trial and to determine a case on its merits in accordance with the law.

[16-000] General orders includes references to:

[22-000] Apprehended violence orders at [22-220] has been updated to include Wass v DPP (NSW) [2023] NSWCA 71 as authority for the proposition that an application to vary or revoke an order may only be made during the order’s currency, and not after it has expired.

[28-000] Committal proceedings is amended to include Hamilton v DPP [2020] NSWSC 1745 at [28-160], as authority for the proposition that where there is a disagreement as to whether an accused should be committed for trial or sentence on the basis of a factual dispute, the court must determine whether the dispute relates to “essential facts” (the elements of an offence), which requires a trial, or “mere facts”, where the dispute can be resolved on sentence.

[36-000] Proceedings under the Confiscation of Proceeds of Crime Act 1989 has been extensively revised and has been updated as a result of the Confiscation of Proceeds of Crime Legislation Amendment Act 2022. The substantial inclusions are:

The Index, Table of Cases and Table of Statutes have been updated to Update 148.

The Local Court Bench Book is available in PDF or html.

Specific penalties and orders has been updated to incorporate:

[2-000] Road Transport includes updated penalties for the Heavy Vehicle National Law (NSW) at [2-040].

[18-000] Commonwealth offences has been revised due to:

[28-000] Committal proceedings is amended to include the new Practice Note Comm 3 Procedures to be adopted for committal hearings in the Local Court at [28-040], [28-080], [28-100] and [28-120], which applies to committal proceedings for offences commenced on or after 9 January 2023.

[30-000] Inquiries under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 includes reference to the Psychiatric (Mental Health) Report Request Form issued by Justice Health and Forensic Mental Health Network at [30-120].

[32-000] Small Claims has been amended at [32-100] by Local Court (Amendment No 12) Rule 2022 to provide for the transfer of proceedings from the Local Court’s General Division to the Small Claims Division under r 2.3(1A).

[40-000] Children’s Court — Care and Protection Jurisdiction has been amended by Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022:

[44-000] Coronial Matters has been extensively revised and updated to provide more practical guidance to magistrates conducting coronial matters, particularly those sitting in regional areas.

[74-000] Local Court Practice Notes Practice Note Comm 3 Procedures to be adopted for committal hearings in the Local Court pursuant to the Early Appropriate Guilty Plea Scheme has been included. It applies to committal proceedings for offences commenced on or after 9 January 2023.

The Index, Table of Cases and Table of Statutes have been updated to Update 147.

Specific penalties and orders has been updated as follows:

[2-000] Road Transport includes information about the National Heavy Vehicle Regulator at [2-040] which is responsible for the conduct of prosecutions relating to heavy vehicles under the Heavy Vehicle National Law.

[6-000] Evidence Act 1995 refers to the Criminal Trial Courts Bench Book commentary on evidence.

[20-000] Bail is amended at [20-300] to expand upon the discussion of s 22B of the Bail Act 2013 which provides that, upon application, the court must not grant or dispense with bail during the period following conviction but before sentence for an offence for which the accused will be sentenced to full-time imprisonment, unless special or exceptional circumstances exist. The decisions of DPP v Van Gestel [2022] NSWCCA 171, El Hilli v R [2015] NSWCCA 146, DPP v Duncan [2022] NSWSC 927, DPP v Day [2022] NSWSC 938, and R v LM [2022] NSWSC 987 discussing the construction and operation of s 22B are referred to.

[22-000] Apprehended violence orders at [22-120] has been updated to provide guidance as to the meaning of “term of imprisonment” in ss 39(2B), (2C) of the Crimes (Domestic and Personal Violence) Act 2007 .

[28-000] Committal proceedings is amended to include Coles v DPP [2022] NSWSC 960 at [28-160] to clarify it is mandatory for a magistrate to inquire whether or not the accused pleads guilty to the offences before committing the accused to trial.

[40-000] Children’s Court — Care and Protection Jurisdiction includes the new Children and Young Persons (Care and Protection) Regulation 2022.

The Index, Table of Cases and Table of Statutes have been updated to Update 146.

Specific penalties and orders has been updated as follows:

[2-000] Road Transport includes Pearce v R [2022] NSWCCA 68 at [2-000] which provides that the court is to consider whether or not to vary an automatic disqualification period in accordance with the relevant provisions in determining a disqualification period. Also, the period of suspension must be counted towards any disqualification imposed when varying an automatic disqualification period.

New [5-000] Sexual offences in the Local Court Chapter contains information concerning directions relating to misconceptions about sexual consent which may be given in hearings in the Local Court for offences under Crimes Act 1900 ss 61KC, 61KD, 61KE, 61KF and attempts to commit these offences.

[16-000] General orders has been amended at [16-380] to include Stoneham v DPP (NSW) [2021] NSWSC 735 which provides that a court should not adjourn sentence proceedings in order to avoid the effect of s 58 Crimes (Sentencing Procedure) Act 1999 (limitation on consecutive sentences), notwithstanding any concerns regarding the length of the sentence which may be imposed. Offences to which s 58 does not apply are also included.

[20-000] Bail is amended at [20-300] to refer to the new s 22B which provides that, upon application, the court must not grant or dispense with bail during the period following conviction but before sentence for an offence for which the accused will be sentenced to full-time imprisonment, unless special or exceptional circumstances exist. The decisions of DPP (NSW) v Day [2022] NSWSC 938 at [56]–[69], DPP (NSW) v Duncan [2022] NSWSC 927 at [37]–[43], DPP (NSW) v Van Gestal [2022] NSWSC 973 at [41]–[87], R v LM [2022] NSWSC 987 at [15]–[20], discussing the construction and operation of s 22B are referred to.

[38-000] Children’s Court: Criminal jurisdiction is amended at [38-080] to include reference to the statutory scheme regulating the preparation and receipt of Victim Impact Statements on sentence proceedings (Pt 3, Div 2 of the Crimes (Sentencing Procedure) Act 1999) as it relates to the Children’s Court.

[52-000] Review and appeals is amended at [52-060] to include Huynh v R [2021] NSWCCA 148 which discusses provisions relating to appeals to the District Court.

The Index, Table of Cases and Table of Statutes have been updated to Update 145.

Specific penalties and orders has been updated as follows:

[16-000] General orders is amended at [16-120] to include Park v The Queen [2021] HCA 37, Park v R [2020] NSWCCA 90 and R v Doan (2000) 50 NSWLR 115 which provide that a sentence is to be assessed by reference to the maximum penalty for the offence taking into account any discount for the guilty plea, assistance etc, before the relevant jurisdictional limit is considered. The list of offences for which an order to provide identification particulars under s 134 Law Enforcement (Powers and Responsibilities) Act 2002 can be made has been updated at [16-440].

[20-000] Bail is amended to include Iongi v R [2022] NSWCCA 42 at [20-080] as a practical example of the situation in respect of bail when offences are withdrawn and replaced.

[28-000] Committal proceedings is amended to include Black v R [2022] NSWCCA 17 which discusses a magistrates’ supervisory role in committal proceedings at [28-040]. McNab v DPP (NSW) [2021] NSWCA 298 which discusses “special reasons” and “substantial reasons” in the context of calling witnesses on a conviction appeal, is included at [28-140]. Black v R, above, is also referenced at [28-160] to clarify that, if the prosecution propose to proceed to trial on a principal count, a magistrate should not accept a guilty plea to any alternative count.

[56-000] Costs in criminal matters is amended at [56-020] to include reference to Safework NSW v Williams Timber Pty Ltd [2021] NSWCCA 233 which provides that, before making a costs order adverse to a party’s interests, the court must give them an opportunity to be heard even when the other party accepts (by their silence or otherwise) a costs order is appropriate. [56-080], which discusses costs in apprehended violence order proceedings, has been rewritten and refers to ss 99, 99A Crimes (Domestic and Personal Violence) Act 2007. Safework NSW v Williams Timber Pty Ltd, above, is also included at [56-120] to clarify that it is an error to use the refusal to make a costs order to ameliorate the penalty.

The Index, Table of Statutes and Table of Cases have been updated to Update 144.

Specific penalties and orders

has been updated as a result of the following recent developments:

[2-000] Road transport is amended by the Road Transport Legislation Amendment Act 2021 (No 22) which replaces s 69 of the Road Transport Act, creating an offence of obtain/renew registration or unregistered vehicle permit by fraud etc, (maximum penalty for an individual - 20 pu, and for a company — 100 pu) at [2-040].

[16-000] General orders is amended to include:

[38-000] Children’s Court — Criminal jurisdiction has been amended to include notes throughout the Chapter for sample orders involving conviction to indicate a child under 16 cannot be convicted: Children (Criminal Proceedings) Act 1987 s 14(1). It has also been amended to address some of the recommendations in the Family is Culture Review Report 2019, noting in the “Joint Protocol to reduce the contact of young people in residential out-of-home care (OOHC) with the criminal justice system” that facilitating connection to family, community and culture improves a child’s wellbeing, and that the parties to the Protocol are to be culturally sensitive and relevant in their responses in providing care at [38-340].

[40-000] Children’s Court — Care and Protection Jurisdiction has been amended to address some of the recommendations in the Family is Culture Review Report 2019. The Aboriginal and Torres Strait Islander Principles are made up of five elements aimed at enhancing and preserving Aboriginal children’s sense of identity, as well as their connection to their culture, heritage, family and community: (i) prevention; (ii) partnership; (iii) placement; (iv) participation; and (v) connection. The decision of Hackett (a pseudonym) v Secretary, DCJ [2020] NSWCA 83 has also been included, which, although dealing with the Adoption Act 2000, provides guidance regarding the application of s 5 of the Children and Young Persons (Care and Protection) Act. Reference has also been added to the late identification, and the de-identification, of children by DCJ having consequences for planning and placement so that, in such cases, the court will be assisted by timely evidence from the parties.

[2-000] Road transport is amended to refer to the new Road Transport (General) Regulation 2021 at [2-000].

[8-000] Evidence by domestic violence complainants has been extensively amended following commencement of the new s 289VA Criminal Procedure Act 1986 on 1 September 2021. A new section on court appointed questioners for self-represented defendants has been included at [8-110] which sets out suggested procedures for the court, and suggested information and advice to be given to a self-represented defendant.

[16-000] General orders is amended to refer to the new Road Transport (General) Regulation 2021 at [16-040].

[20-000] Bail has been updated to refer to the new Bail Regulation 2021 at [20-160] and [20-720].

[22-000] Apprehended violence orders at [22-100] has been updated to refer to the new s 289VA Criminal Procedure Act 1986 which provides that a complainant cannot be examined by a self-represented defendant, but must be examined through a court appointed questioner.

[28-000] Committal proceedings includes the following amendments:

[36-000] Proceedings under the Confiscation of Proceeds of Crime Act 1989 has been updated to refer to the new Confiscation of Proceeds of Crime Regulation 2021 at [36-020].

[38-000] Children’s Court: Criminal jurisdiction has been updated to refer to the new Children (Criminal Proceedings) Regulation 2021 at [38-060], [38-080], [38-100], [38-120], [38-140], [38-220].

[40-000] Children’s Court: Care and Protection Jurisdiction includes the following amendments arising from the Families, Communities and Disability Services Miscellaneous Amendment Act 2021:

The Index, Table of Statutes and Table of Cases have been updated to Update 142.

Specific penalties and orders

has been updated as a result of the following recent developments:

[2-000] Road transport legislation has been amended to incorporate Road Transport Legislation Amendment (Drink and Drug Driving Offence) Act 2021 amendments which create combined alcohol and drug driving offences under new s 111A of the Road Transport Act 2013 as follows:

[38-000] Children’s Court has been amended to include the increased victims support levy for financial year 2021/22 at [38-280].

The Index, Table of Statutes and Table of Cases have been updated to Update 141.

Specific penalties and orders

has been updated as a result of the following recent amendments:

[2-000] Road transport legislation has been amended as follows:

[22-000] Apprehended violence orders at [22-120] and [22-140] is updated to include the following amendments in the Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 which commenced on 27 March 2021:

[22-160] has also been amended to clarify that s 99A prohibits an award of costs against an applicant who is a protected person in AVO proceedings unless the application is “frivolous or vexatious”.

[30-000] Inquiries under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 has been extensively revised as a result of the commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021 on 27 March 2021. Significant amendments have been made to the Chapter including in relation to the following paragraphs:

Other consequential amendments were made as follows:

The Index and Table of Statutes have been updated to Update 140.

Specific penalties and orders

has been updated as a result of the following recent amendments:

[8-000] Evidence by domestic violence complainants has been amended as follows:

[16-000] General Orders has been updated at [16-080] to refer to s 25(2A) Crimes (Sentencing Procedure) Act 1999 which provides a magistrate is to consider whether it is more appropriate to adjourn proceedings when deciding whether to issue a warrant for an absent offender who has provided a written plea of guilty.

[22-000] Apprehended violence orders has been amended as follows:

[38-000] Children’s Court Criminal jurisdiction has been amended at [38-020] to specify the Local Court and the Drug Court may not hear and determine criminal proceedings over which the Children’s Court has jurisdiction: ss 7(1), 7(2) Children (Criminal Proceedings) Act 1987. Reference to victim impact statements has been removed from [38-080].

Local Court Practice Notes the Local Court Practice Note Crim 1 Case management of criminal proceedings in the Local Court has been amended and updated. The amended practice note provides the prosecution must provide the court with a notice at the first mention indicating whether the complainant wishes to give evidence by alternative means or using alternative arrangements (Attachment E of PN 1/2012), and extends the time standard for the listing of a hearing in domestic violence offence proceedings from three months to six months from the date charges are laid.

The Index and Table of Statutes have been updated to Update 139.

Specific penalties and orders

has been updated as a result of the following recent amendments:

[2-000] Road transport legislation has been amended as follows:

[8-000] Evidence by domestic violence complainants has been updated at [8-040], [8-060] and [8-080] to remove references to the pre-30 April 2018 committal procedure.

[20-000] Bail has been updated at [20-520] to take into account amendments arising from the Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 in relation to detention applications to the Supreme Court after a grant of bail for a serious offence (s 40).

[22-000] Apprehended violence orders has been amended at [22-120] by including information on Apprehended domestic violence orders (ADVOs) and indefinite orders under ss 79A and 79B of the Crimes (Domestic and Personal Violence) Act 2007.

[24-000] AVO proceedings involving children has been amended at [24-040] by providing information about setting the duration of apprehended personal violence orders (APVOs) and ADVOs under ss 79 and 79A of the Crimes (Domestic and Personal Violence) Act 2007.

[38-000] Children’s Court Criminal jurisdiction has been amended as follows:

[58-000] Crimes (Forensic Procedure) Act 2000 has been amended at [58-000] by including Kindermann v JQ, above, which provides that, in relation to final orders, where the suspect is a child, an incapable person or identifies as an Aboriginal or Torres Strait Islander, and is present at the hearing, an interview friend must be present and the suspect has a right to legal representation. A suspect, including a child, does not have a right to a hearing when an interim order is made, the special requirements which apply to a child (as well as certain others) for a final order do not apply to interim orders. Also at [58-040], the procedure under s 30(8) whereby the interview friend may be excluded if they unreasonably interfere with or obstruct the hearing is included.

[66-000] Right of appearance has been amended by removal of repealed sch 1 Fines Act 1996.

Local Court Practice Notes the Local Court Practice Note Crim 1 Case management of criminal proceedings in the Local Court has been amended and updated.

The Index, Table of Statutes and Table of Cases have been updated to Update 138.

Specific penalties and orders

has been updated as a result of the following recent amendments:

[2-000] Road transport legislation includes a note at [2-020] to clarify that particular “second offences” in the PCA, other alcohol related offences and mandatory interlock order disqualification tables are only mandatory interlock offences where the first offence was any other alcohol-related major offence..

[18-000] Commonwealth offences has been extensively revised and amended as follows:

[20-000] Bail has been extensively revised and amended. The main amendments are as follows:

New sections include:

[28-000] Committal proceedings (renamed) has new information on Vulnerable witnesses in Commonwealth committal proceedings at [28-140] due to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth). Section 15YHA of the Crimes Act 1914 (Cth) provides that certain “vulnerable witnesses” cannot be cross-examined in committal proceedings for particular Commonwealth offences (see ss 15Y(1) & (2), 15YAA, 15YAB, 15YHA(2) for relevant definitions and inclusions). The Committal proceedings (pre-30 April 2018) Chapter has been removed.

[38-000] Children’s Court Criminal jurisdiction has been extensively revised and updated. The most significant amendments relate to the following areas:

The Index, Table of Statutes and Table of Cases have been updated to Update 137.

[16-000] General Orders has been updated at [16-170] to include a ready reckoner table with the length of orders and the community service hours that can be imposed under a conditional release order, community correction order and intensive correction order.

[44-000] Coronial Matters has been extensively revised and updated. The most significant amendments relate to the following areas:

The Index, Table of Statutes and Table of Cases have been updated to Update 136.

[32-000] Small Claims has been revised at [32-020] and the information on pre-trial management has been updated.

[34-000] Proceedings under the National Consumer Credit Protection Act 2009 the jurisdictional limit has been updated at [34-020].

[46-000] Extradition has been revised and updated. The amendments relate to the following areas:

[52-000] Review and Appeals has been revised and updated. The amendments relate to the following areas:

The Index, Table of Statutes and Table of Cases have been updated to Update 135.

Following the expansion of the former Practical Notes section, the Bench Book has been restructured and renumbered so that its contents page is better organised and it is easier to locate the various Chapters/topics covered.

Specific penalties and orders

The following Acts have been recently amended:

The Index, Table of Statutes and Table of Cases have been updated to Update 134.

The following amendments have been made to the Local Court Bench Book:

Specific penalties and orders

The following Acts have been recently amended:

[18-000] Commonwealth offences has been revised and updated. The amendments relate to the following areas:

[28-000] Committal proceedings (from 30 April 2018) has been amended at [28-120] to include when a case conference certificate is not required under s 74(5) of the Criminal Procedure Act 1986. The provisions related to explaining aspects of the committal process were changed by the Justice Legislation Amendment Act (No 2) 2019, and these have also been incorporated at [28-040].

[30-000] Inquiries under the Mental Health (Forensic Provisions) Act 1990 has been amended at [30-060] to include reference to Jones v Booth [2019] NSWSC 1066 regarding the use of psychologist’s reports on an application under s 32 of the Mental Health (Forensic Provisions) Act 1990. A new paragraph has been added at [30-240] on s 35 of the Mental Health (Forensic Provisions) Act 1990 which enables a defendant in custody to be transferred to a mental health facility for assessment.

[48-000] Contempt of court includes references at [48-180], [48-200] and [48-220] to the offence of disrespectful behaviour in court.

The Table of Contents has been expanded to include the topics previously contained within the Practical Notes section.

The Table of Cases includes new cases up to Update 133.

Specific penalties and orders

The following Acts have been recently amended:

[20-000] The Bail Act 2013 has been amended at [20-240] to reflect amendments by Justice Legislation Amendment Act (No 3) 2018 No 87 Sch 1.2.

[22-000] Apprehended violence orders has been amended at [22-020] and [22-100] and incorporates the amendments made by the Crimes Legislation Amendment (Victims) Act 2018 No 88.

[24-000] AVO proceedings involving children has been amended at [24-040] and incorporates the amendments made by the Crimes Legislation Amendment (Victims) Act 2018 No 88.

[44-000] Coronial matters has been amended at [44-020] and includes a new section at [44-140] to reflect changes to reporting requirements arising from the Ageing and Disability Commissioner Act 2019.

Specific penalties and orders

[38-000] Children’s Court — Criminal jurisdiction This section has been extensively revised and amended by the Crimes Legislation Amendment (Victims) Act 2018, Justice Legislation Amendment Act (No 3) 2018, Victims Rights and Support Amendment (Statutory Review) Act 2018, Justice Legislation Amendment Act (No 2) 2018 and the Parole Legislation Amendment Act 2017.

[40-000] Children’s Court — Care and Protection Jurisdiction This section has been extensively revised and amended in consultation with the Children’s Court Education Committee and incorporates amendments by the Children and Young Persons (Care and Protection) Amendment Act 2018.

Specific penalties and orders

The following Acts have been recently amended:

[20-000] The Bail Act 2013 has been amended at [20-300] to include Moukhallaletti v DPP (NSW) [2016] NSWCCA 314 which discusses “show cause” principles.

[32-000] Small Claims has been updated at [32-120] and incorporates the amendments made by the Local Court (Amendment (No 10) Rule 2019.

[10-000] Evidence from vulnerable persons has been amended at [10-140] to refer to further information contained in the Criminal Trial Courts Bench Book.

Local Court Practice Notes

The following Practice Notes have been revised to reflect the Practice Notes as they are on the Local Court website:

Specific penalties and orders

The following Acts have been recently amended:

[16-000] General orders at [16-200] and [16-260] has been revised to reflect minor amendments by Justice Legislation Amendment Act (No 3) 2018 which partially commenced 28 November 2018.

[28-000] Committal proceedings (from 30 April 2018) at [28-000] and [28-140] has been extensively amended to incorporate amendments by the Crimes Legislation Amendment (Victims) Act 2018 which commenced on 1 December 2018.

[44-000] Coronial matters has been amended to insert Coronial Practice Note 1 of 2018 and Coronial Practice Note 2 of 2018. The Practice Notes commenced on 19 November 2018.

[52-000] Review and appeals has been amended at [52-040] and [52-060] to incorporate amendments by the Justice Legislation Amendment Act (No 3) 2018 which partially commenced 28 November 2018.

[8-000] Evidence by domestic violence complainants has been amended at [8-040] and [8-080] to include references to DPP v Nagler [2018] NSWSC 416 and at [8-060] to refer to DPP (NSW) v Al-Zuhairi [2018] NSWCCA 151.

Specific penalties and orders

The following Acts have been recently amended:

General orders at [16-000]ff has been extensively amended by Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 which commenced 24 September 2018. Schedules 1 and 2 amend the Crimes (Sentencing Procedure) Act 1999, sch 3 amends the Crimes (Administration of Sentences) Act 1999 and sch 4 amends various Acts. The Crimes (Sentencing Procedure) Regulation 2017 and Crimes (Administration of Sentences) Regulation 2014 have also been substantially amended.

Specific penalties and orders

The penalties and commentary in all Acts and Regulations have been revised and updated.

The following Acts have been recently amended:

The following new Regulations have been included:

[16-000] General orders [16-220] Intensive correction orders The commentary was updated to correct some minor errors in the references to s 71 Crimes (Sentencing Procedure) Act 1999.

[20-000] The Bail Act 2013 This Chapter has been renamed Bail.

[22-000] Apprehended violence orders [22-240] Review and appeal provisions in relation to AVOs has been added. It addresses the addition of Pt 13B of the Crimes (Domestic and Personal Violence) Act 2007 which gives effect to New South Wales’ adoption of the National Domestic Violence Order recognition scheme. Part 13B was inserted by the Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Act 2016 which commenced on 25 November 2017.

[26-000] Indictable offences This section has been renamed Committal proceedings (before 30 April 2018) following the commencement of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 on 30 April 2018. Legislative reference links in this section are to those provisions in the Criminal Procedure Act 1986 in force before 30 April 2018.

[28-000] Committal proceedings (after 30 April 2018) This section has been added following the commencement of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 on 30 April 2018. This section applies to committal proceedings commenced on or after 30 April 2018. This section outlines, by reference to the relevant legislation, the procedures to be followed in committals and the forms of orders that a magistrate makes on committal of a person for trial or sentence.

[30-000] Inquiries under the Mental Health (Forensic Provisions) Act In [30-120] Orders under s 33 Mental Health (Forensic Provisions) Act 1990 The text was revised to reflect amendments made by the Justice Legislation Amendment Act (No 2) 2017 which commenced on 25 September 2017, to address practical difficulties associated with bringing defendants found to be mentally ill back before the court. In [30-140] Detention and release following an order under s 33 text was revised to reflect amendments made by the Justice Legislation Amendment Act (No 2) 2017 to address issues associated with the interaction between the Bail Act 2013 and the Mental Health (Forensic Provisions) Act 1990.

[38-000] Children’s Court — Criminal jurisdiction This section has been amended to reflect changes to committal proceedings with respect to juveniles following the commencement of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 on 30 April 2018.

[38-100] Sentencing orders and principles — in the Hierarchy of penalties table, the Victims Support Levy for financial year 2017/18 has been amended by the Victims Rights and Support (Victims Support Levy) Amendment Notice 2017.

[42-000] Children’s Court — Parole, this section has been added and outlines the procedures concerning the court’s jurisdiction for determining juvenile parole following the commencement of amendments to the Children (Detention Centres) Act 1987 by the Parole Legislation Amendment Act 2017 which commenced on 26 February 2018. The commentary includes a summary of the most important provisions including those concerning terrorism-related offenders. [45-300] Parole has been deleted as a result.

[8-000] Evidence by domestic violence complainants

This section has been amended to reflect the changes to legislative references following the commencement of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 on 30 April 2018. Reference to the operation of s 289F, Criminal Procedure Act 1986 has been added to [8-080] Admissibility of a recorded statement and relationship with Evidence ct 1995.

Local Court Practice Notes

Practice Note Comm 2 — Procedures to be adopted for committal proceedings in the Local Court pursuant to the Early Appropriate Guilty Plea Scheme has been inserted. This Practice Note commenced on 30 April 2018 and applies to committal proceedings commencing from this date.

Practice Note Crim 1 — Case management of criminal proceedings in the Local Court, has been amended.

Specific penalties and orders

Amendments were made to the following Acts and Regulations:

[16-000] General orders and [14-000] Interpreters References to regulations were updated.

[18-000] Commonwealth offences The Chapter was reviewed to update legislative references and revise the commentary. In [18-040] Arrest for Commonwealth offences, references to relevant legislation were updated. In [18-080] Sentencing policy, the text was revised to update legislative references, in particular: adding general deterrence to the list of s 16A(2) factors that must be taken into account; updating text on reduction for promised co-operation to refer to s 16AC and repositioning the commentary; and revising text on taking other offences into account. In [18-120] Sentences of imprisonment, the commentary was revised to reflect amendments to the Crimes Act 1914 (Cth) by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), which commenced on 27 November 2015, concerning the imposition of sentences of imprisonment.

In the following paragraphs, the commentary was revised and legislative references in the text and relevant tables were updated:

In [18-240], now named Offences involving border controlled drugs, plants and precursors, minor amendments were made to the text. In the newly retitled [18-400] Proceeds of Crime Act 2002, the text has been revised to refer to the procedures under the 2002 Act.

[20-000] The Bail Act 2013 In [20-300] Test to be applied, the text was updated to reflect changes to s 16B by the Justice Legislation Amendment Act 2017 which commenced on 25 August 2017 relating to show cause offences.

[22-100] Apprehended violence orders In [22-100] Procedure to be adopted at a hearing, the text was revised to reflect amendments by the Justice Legislation Amendment Act (No 2) 2017 which commenced on 25 September 2017.

[30-000] Inquiries under the Mental Health (Forensic Provisions) Act In [30-020] To whom do the provisions relate?, text was revised to add the definition of “cognitively impaired” inserted by the Justice Legislation Amendment Act 2017. Reference to the Mental Health (Forensic Provisions) Regulation was updated to refer to the 2017 regulation.

[36-000] Proceedings under the Confiscation of Proceeds of Crime Act 1989 In [36-020] Definitions, text was revised to reflect amendments made by the Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 which commenced on 8 September 2016. In [36-080] Confiscation orders, the text was revised to include the relevant period provisions that apply to a confiscation order.

[38-000] Children’s Court In [38-280] Committals, the text was amended to reflect changes made by the Justice Legislation Amendment Act 2017 to the transfer of back-up and related offences on committal.

[52-000] Review and appeals [52-020] Local Court review of Local Court decisions was amended to reflect changes made by the Justice Legislation Amendment Act (No 2) 2017, commentary on appeal provisions vis-a-vis the Local Court was amended to include a reference to the prosecution right of appeal in s 8(1) of the Crimes (Appeal and Review) Act.

[10-000] Evidence from vulnerable persons In [10-060] Evidence by way of pre-recorded interview, reference to Tikomaimaleya v R [2017] NSWCCA 214 concerning the proper approach to s 13(1) Evidence Act 1995 if an issue is raised about a vulnerable person’s competence during a recorded interview was added.

Specific penalties and orders

Two new Acts have been included:

Amendments have been made to the following Acts:

Commonwealth offences

Commonwealth offences at [18-000]ff has been updated to reflect the increase to the value of a penalty unit (from $180 to $210) for offences committed from 1 July 2017. [18-060] Procedures — the heading for the discussion of s 4J Crimes Act 1914 (Cth) has been updated to Dealing with certain indictable offences summarily. Reference has been added to Local Court PN Comm 1 Procedures to be adopted for committal hearing in the Local Court and Local Court PN Crim 1 Case management of criminal proceedings in the Local Court and to Morgan v District Court of NSW [2017] NSWCA 108.

Mental Health

[30-060] An inquiry under s 32 — discussion of the options available to a magistrate under either ss 32(2) or 32(3) has been updated. The discussion of s 32(3) now includes a reference to DPP (NSW) v Saunders [2017] NSWSC 760. A magistrate must specify with some precision the name of a particular person or particular place a defendant has been referred to for assessment.

[48-000] Contempt

Contempt — the paragraphs in this Chapter have been renumbered. [48-000] Introduction has been added and includes cross references to the contempt sections in the Civil Trials Bench Book at [10-0000] and ff and the Criminal Trial Courts Bench Book at [1-250] and ff. [48-060] Referral to the Supreme Court has been updated to include references to Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 and Prothonotary of the Supreme Court of New South Wales v Chan (No 23) [2017] NSWSC 535.

Practical Notes

Evidence from vulnerable persons

[10-000] Children and cognitively impaired — competence to give evidence — the discussion has been updated to include references to RJ v R (2010) 208 A Crim R 174 and The Queen v GW (2016) 258 CLR 108 which discuss s 13 Evidence Act 1995 and competence. A cross reference to the Criminal Trial Courts Bench Book discussion at [1-105]–[1-118] concerning competence and sworn and unsworn evidence has also been added.

References

Local Court Practice Note Civ 1

Case management of civil proceedings in the Local Court.

Chapters 18 (General Division) and 24 (Small Claims Division) have been amended in the same terms as Practice Note Crim 1 to address the making and determination of written applications for witnesses to give evidence via AVL or telephone. The new application form is set out at Annexure C.

Local Court Practice Note Crim 1

Case management of criminal proceedings in the Local Court

Chapter 5 has been amended:

Local Court Practice Note Comm 1

Procedures to be adopted for committal hearings in the Local Court

The Practice Note has been amended to:

Update 123 amends [30-000] Mental Health. It incorporates the decision of DPP v Wallman [2017] NSWSC 40 which concerned orders under s 33 Mental Health (Forensic Provisions) Act 1990 that the defendant be taken to, and detained in, a mental health facility for assessment.

Apprehended violence orders

The Apprehended violence orders Chapter at [22-000] and ff has been revised to incorporate amendments arising from the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (commenced on proclamation on 3 December 2016 except Sch 2 which commenced on 22 August 2016). The Amendment Act extends the definition of “domestic relationship” and expands the range of offences in the definition of “personal violence offence”. A new section on Interim and provisional orders has been added at [22-060]. The section Procedure at first listing of the application at [22-080] has been expanded. A new section Procedure to be adopted at a hearing has been inserted at [22-100]. This includes new subsections “Procedures for evidence from vulnerable persons”; “Procedures for evidence in cases where sexual offences are involved”; “Party’s right to a support person when giving evidence” and “Procedure if party not present on hearing date”. A new section Making orders at [22-120] encompasses the statutory test to be applied when making an order for an AVO or APVO. A new subsection “Considerations in relation children” is included at [22-120]. The court’s obligations when other proceedings are pending is included at [22-140] and the court’s discretion with regard to costs in AVO proceedings is included [22-160].

A revised and expanded section AVO proceedings involving children has been inserted at [24-000] and ff.

Specific penalties and orders

Amendments have been made to the following Acts:

Bail Act 2013

The Bail Act 2013 Chapter has been updated to reflect amendments effected by the Bail Amendment Act 2015, commenced 6 December 2016 (LW 2.12.2016). [20-300] Test to be applied includes the new “show cause” offence of committing a serious indictable offence while the subject of an arrest warrant; an expanded definition of a serious personal violence offence; and a new s 22A which provides that, unless exceptional circumstances exist, bail must be refused for specified terrorism-related offences.

References

Practice Note 1 of 2015 has been amended and reissued at 30 September 2016. The Practice Note provides for the Chief Magistrate to approve the types of proceedings in which an online court may be used.

Index, Table of cases and statutes

A revised Index, Table of Cases and Table of Statutes have been added.

General orders

Amendments have been made to [16-100] Compensation and restitution to clarify a magistrate may order compensation for loss up to the maximum amount of the Local Court's civil jurisdiction, that is $100,000: s 29(1)(a) Local Court Act 2007.

Commonwealth offences

Text has been amended at [18-100] Sentencing options to clarify that there is no monetary limit on the amount that may be ordered for reparation for loss or expenses incurred by reason of a federal offence: s 21B Crimes Act 1914 (Cth).

Specific Penalties and Orders

Amendments have been made to the following Acts:

Practical Notes

[58-000] Crimes (Forensic Procedure) Act 2000 — scheduled review of Chapter.

Practice notes

Non-publication and suppression orders

[62-000] A new Commonwealth provisions table has been added to the Chapter.

References

Local Court Practice Note Crim 1

The list of courts with AVL facilities and paragraph 13.2(a) Referrals to forum sentencing in PN Crim 1 have been updated.

Specific penalties and orders

Amendments have been made to the following Acts and Regulations:

General orders

[16-360] The timeframe for pre-sentence reports has been added in the Custodial sentences table.

Proceedings under the National Consumer Credit Protection Act 2009

[34-040] Reference to the Consumer Credit (Queensland) Act 2009 has been removed from the section.

Coronial matters

[44-020] The paragraph “Death investigation and the coroner” has been updated to make clear which health-related procedure deaths are reportable.

Index

The Index, Table of cases and statutes have been bought up to date.

Commonwealth Offences

[18-000] The Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth) amends s 4AA(1) of the Crimes Act 1914 (Cth) to increase the value of a penalty unit for Commonwealth offences from $170 to $180. The amendments commenced on 31 July 2015.

Apprehended violence orders

[22-060] Procedure for referring an apprehended personal violence proceeding for mediation has been updated following the amendment of s 21 of the Crimes (Domestic and Personal Violence) Act 2007 by the Crimes (Domestic and Personal Violence) Amendment Act 2013 (commenced 21 May 2014).

Mental health

[30-120] Procedure for making orders under s 33 Mental Health (Forensic Procedure) Act 1990 has been amended. Problems with the interaction between the Bail Act 2013 and the Mental Health (Forensic Procedure) Act are flagged at [30-120].

Practical notes

Non-publication and suppression orders

[62-040] Additional provisions have been added to [62-040] Table A — Automatic non-publication/suppression provisions and [62-060] Table B — Non-publication/suppression provisions requiring a court order.

Local Court Practice Notes

The Local Court Practice Note 7 of 2008 has been removed from the Bench Book.

A new Practice Note 1 of 2015 Local Court Civil General Division – Online Court Protocol is included.

Specific penalties and orders

The Commission for Children and Young People Act 1998 has been repealed and replaced by the Advocate for Children and Young People Act 2014 as part of the mid 2015 update for the penalties Chapter.

General orders

[16-220] The ICO section has been reviewed.

Commonwealth offences

[18-000] Various penalties have been updated.

Bail

[20-300] References to DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 have been included.

Civil/Small claims

[32-040] Small claims
The section on “Motions” and references to repealed legislation have been updated.

[36-000] Proceedings under the Confiscation of Proceeds of Crime Act 1989
Reference to the Victims Support and Rehabilitation Act 1996 has been updated with the Victims Rights and Support Act 2013.

Children’s Court

[38-100], [38-260] References to the Bail Act have been updated throughout and references to Victims compensation levy have been changed to the Victims support levy.

[47-360] A definition for “relative” has been updated in the Care and protection jurisdiction section.

Coronial matters

[44-020] Clause 3A Coroners Regulation 2005 has been repealed and replaced by cl 3 Coroners Regulation 2010.

Practical notes

[8-000] A new section “Evidence by domestic violence complainants” has been added to the Chapter.

[68-000] Correctional Centres, [62-000] Non-publication and suppression orders and [58-000] Crimes (Forensic Procedure) Act 2000
Repealed legislation for the above sections has been updated.

Local Court Practice Crim 1

Item 10 Summary hearings for domestic violence offences and the form Local court listing advice have been updated.

Index, Table of cases, Table of Statutes

The Index, Table of cases and Table of Statutes have been updated to Update 114.

The Bail Act 2013

The Bail Chapter has been amended to incorporate the amendments made by the Bail Amendment Act 2014 which commenced on 28 January 2015: LW 16.01.15. The amending Act applies to offences committed or alleged to have been committed, or charged, before the commencement of the amendments: Sch 3, Pt 3, s 12. The amending Act requires that bail for certain serious offences be refused unless the accused shows cause why detention is not justified. It also requires the bail authority to consider additional matters in applying the unacceptable risk test. The amending Act also inserts new flow charts for the bail decision and special rules for certain offences. The flow charts are reproduced.

Specific Penalties and Orders — Road transport legislation

The Road Transport Amendment (Mandatory Alcohol Interlock Program) Act 2014 commenced on 1 February 2015 (LW 2.01.2015). This Act amends the Road Transport Act 2013 to require, inter alia, for persons convicted of a mandatory interlock offence, the making of a mandatory interlock order imposing a mandatory period of disqualification together with an interlock requirement (ss 209–214). The Specific Penalties and Orders tab has been updated to reflect these changes.

Specific penalties and orders

Three new Acts have been added to the Specific Penalties and Orders Chapter: Combat Sports Act 2013, the Motors Dealers and Repairers Act 2013 and the Passenger Transport Act 2014 (part commenced).

A new Protection of the Environment Operations (Waste) Regulation 2014 replaces the previous 2005 regulation.

Amendments have been made to the following Acts: Crimes (High Risk Offenders) Act 2006, Graffiti Control Act 2008 and the Home Building Act 1989.

General orders

[16-000] The Crimes Legislation Amendment Act 2014 commenced on the date of assent 23 October 2014. This amends the process in the Criminal Procedure Act 1986 at s 190 for convicting a defendant in their absence. Amendments have been made at:

Extradition

[46-000] The Extradition Chapter has been updated to take in changes following the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012. Amendments have been made at:

Local Court Practice Note Crim 1 of 2012

Amendments have been made to Part B — Procedure:

Specific penalties and orders

Road transport legislation

New commentary — Disqualification for certain offences where sentence of full-time imprisonment imposed has been inserted in the Road transport legislation section of the Specific penalties and orders Chapter.

[16-020] — General orders

New material regarding the administration of breaches for ICO orders in relation to NSW and Commonwealth offences have been inserted at heading Non-compliance/breach.

[16-360] — A new column, Ability to impose aggregate sentence for multiple offences and an update on the entry Who deals with the breach has been added to the Custodial sentences Table.

Practical notes

[60-000] — A new section, Involuntary drug and alcohol treatment has been added to the Practical notes Chapter. The Drug and Alcohol Treatment Act 2007 replaces the Inebriates Act 1912 and provides the legislative basis for an involuntary detention, treatment and stabilisation regime for persons with severe substance dependence.

[62-040] — Non-publication and suppression provisions — New material has been inserted in Tables A and B regarding Involuntary drug and alcohol treatment, ss 37 and 41 Drug and Alcohol Treatment Act 2007.

[54-000] — Warrants for arrest in criminal proceedings in the Local Court

The Warrants for arrest — Table has had some minor amendments to the Description column.

References

Local Court Practice Note Crim 1 — subparagraphs 12.5(f)–(g) have been deleted. Paragraph 13, Forum sentencing has been replaced.

Specific penalties and orders

Amendments have been made to the following Acts and regulations: Companion Animals Act 1998, Graffiti Control Act 2008, Liquor Act 2007 and Liquor Regulation 2008, Passenger Transport Regulation 2007 Pt 5 and 6, Police Act 1990, the Rural Fires Regulation 2008 has been repealed and replaced by the Rural Fires Regulation 2013.

 Road Transport Legislation

The Road Transport (Vehicle and Driver Management) Act 2005 and the Table of penalties for mass, dimension and load restraint breaches have been replaced by the Heavy Vehicle (Adoption of National Law) Act 2013 and the Heavy Vehicle National Law (NSW).

Extradition

[46-120] References to Watson & Watson “Australian Criminal Law: Federal Offences” (1985) Vol 2 Ch 7 Australian Criminal Law (“ACL”) have been removed from the Chapter.

Practical Notes

[12-000] The Remote witness video facilities — Operational guidelines for judicial officers has been updated. The section now includes, [12-020] Operational guidelines for legal representatives, [12-040] Operational guidelines: system setup checklist, [12-060] Operational guidelines for Sheriff’s/Court Officers, [12-080] Operational guidelines for support persons.

References

A new Index, Table of Cases and Table of Statutes have been included.

[20-000] The Bail Act 2013

The Bail Act 2013 commenced on 20 May 2014, repealing the Bail Act 1978. The section on Bail commencing at [20-000] has been rewritten in light of the new approach to bail that now applies in NSW. The new Act establishes a risk-management approach to bail, providing for a right to release for fine-only and most summary offences. The unacceptable risk test determines whether bail is allowed for other offences. Bail conditions can only be imposed for the purpose of mitigating unacceptable risk. There are new procedures and powers to make or vary bail decisions.

Specific penalties and orders

The penalty section for the Bail Act 1978 has been replaced with the new penalties section for the Bail Act 2013.

[38-060] Children’ Court — the paragraph for Children’s Court bail has been updated. The entry for Suspended control order sentence in the Penalties table has been revised to include ss 41(1), 41(1A) of the Children (Criminal Proceedings) Act 1987. Other references to the Bail Act 1978 have been updated.

[52-120] Appeals and review — the paragraph for bail in the Appeals and review Chapter has been. The paragraphs for Appeals to the Supreme Court at [52-040] and Appeals to the District Court at [52-060] have also been updated.

Other amendments

[16-100] General orders — the paragraph Victims compensation and restitution has been updated to incorporate changes from the repeal of the Victims Support and Rehabilitation Act 1996 and its replacement by the Victims Rights and Support Act 2013. References to the Bail Act 1978 have also been replaced with references to the Bail Act 2013 at [16-020].

[34-000] Civil/Small claims — the section on Proceedings under the National Consumer Credit Protection Act 2009 has been updated to incorporate information about enforcement orders and costs at [34-140].

Specific Penalties and Orders

This is the second for 2013 of the twice yearly reviews of the Specific Penalties and Orders Chapter. The amendments are:

Bail Act 1978

A Note has been added at the entry for the Bail Act advising that the Bail Act 2013 anticipated to commence in May 2014 “will substantially change the law with respect to the grant of bail, however penalties for failure to appear remain the same”.

Road transport legislation

The table, Disqualified, suspended or cancelled driving — Road Transport Act 2013 has been amended to take in references to ss 53(3) and 54(5) in the column — second offence previously convicted.

Explosives Regulation 2005 has been repealed and replaced by the Explosives Regulation 2013.

New sections added:

Court Security Act 2005 — s 9A

Drug Misuse and Trafficking Act 1985 — s 25B

Explosives_Act 2003 — s 6A

Firearms Act 1996 — 50B

Local Court Practice Note Crim 1

Paragraph 12.4(a)(ii) is amended following a change in the eligibility criteria to the Magistrate’s Early Referral Into Treatment (MERIT) program. The exclusion on participation by those charged with “offences involving significant violence” has been removed.

In the Listing Advice, the reference to cl 19 Criminal Procedure Regulation has been amended to cl 25.

The list of AVL facilities has been revised.

Minor amendments have been made to the following chapters:

Specific Penalties and Orders

In the Specific Penalties and Orders chapter, “SNPP offence” has been add to the Crimes Act, Firearms Act and Weapons Prohibition Act where an offence is a standard non-parole period offence if dealt with on indictment.

General Orders

In the General Orders chapter, [16-080] Penalties which cannot be imposed ex parte has been revised to incorporate “warrants may be issued to bring the offender before the court”: s 25(2) Crimes (Sentencing Procedure) Act 1999.

References at [16-000] and [16-340] to the Road Transport (General) Act and Regulation 2005 and the Road Transport (Safety and Traffic Management) Act and Regulation 1999 have been replaced with the new Road Transport Act 2013.

Extradition

The Extradition chapter at [46-160] Endorsement of New Zealand warrants has been updated to specify that, to be valid, the endorsement must be on the warrant itself.

Local Court Practice Notes

PN 2 of 2008 has been superseded by PN 1 of 2013.

Paragraph 12.4(a)(ii) of PN Crim 1 — criteria to participate in the MERIT program has been revised.

Update 107 contains the revised chapters Specific Penalties and Orders, Commonwealth Offences and General Orders.

The changes to Specific Penalties and Orders are:

Changes to the Commonwealth Offences chapter addresses the amendment to s 4AA Crimes Act 1914 (Cth) by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 which increases the penalty unit from $110 to $170.

The amendment to the General Orders chapter takes in material on the Court Cost Levy at [16-060].

Update 106 contains the following revised chapters:

Specific Penalties and Orders

New Acts and regulations added:

 Tattoo Parlours Act 2012

 Prevention of Cruelty to Animals Regulation 2012

General Orders

Section reviewed — [16-000]

Bail

Section reviewed — [20-000]

Bail — presumptions

Reissued table — [22-000]

Civil/Small Claims

New sections added:

 [34-000] Proceedings under National Consumer Credit Protection Act 2009

 [36-000] Proceedings under the Confiscation of Proceeds of Crime Act 1989

Practical Notes

Guidelines added:

 Interpreters — [14-180]

Amendment:

 Costs in criminal matters — [56-060]

Update 104 contains the revised chapter Apprehended violence orders, amendments to General orders, Children’s Court, Local Court Practice Note 2 of 2012 and Local Court Practice Note Crim 1. Local Court Practice Note 6 of 2008 has been removed from the Bench Book.

Specific Penalties and Orders

Update 103 contains the half-yearly update of the Specific Penalties and Orders chapter. Some Acts and regulations have been reduced in scope completing the review of the chapter started in December 2011. The Crimes (Criminal Organisations Control) Act 2009 has been reinserted. Community clean up orders have been added to the Graffiti Control Act 2008 and the commentary for the Road Transport section has been reviewed.

Mental Health

The Mental Health chapter has been reviewed with additional material covering “Procedures where orders made under section 33(1)(a) or (b)”, “Release following assessment”, “Return to court following assessment”, “Admission for purpose other than mental health assessment”, “Section 33 and bail”.

Reference

Local Court Practice Notes have been revised with the removal of PNs 5 of 2002; 7 and 9 of 2003; 3 of 2004; 4 of 2005; 4, 5 and 7 of 2007; 1 and 2 of 2010; 2 of 2011; 1 of 2012. Practice Notes that have been added are: PN 2 of 2012; PN Crim 1; PN Comm 1.

Childen’s Court

Additional material has been included in the Children’s Court chapter. Age jurisdiction at [38-020]; Release on bail to demonstrate rehabilitation at [38-140]; Non-association or place restriction order at [38-220]; ss 33(1)(c1), 41A(2) and 41(1A) Children (Criminal Proceedings) Act 1987; s 5(1A) and (1B) Children (Community Service Orders) Act 1987.

Contempt

The Contempt chapter at [48-000] has been replaced with new material focusing on Local Court matters with a link to the Contempt chapter in the Civil Trials Bench Book.

References

Local Court Practice Notes 10 and 11 of 2003, 1 of 2006 and 3 of 2008 have been removed. Practice Note 2 of 2011 — Forum sentencing program has been reissued and there is a new Practice Note 1 of 2012 — Procedure for summary hearing of domestic violence offences.

Specific Penalties and Orders

Update 101 takes in a comprehensive review and update of the Specific Penalties and Orders chapter.

The review was based on data from BOCSAR listing the offences which have come before the Local Court over the last four years and their frequency. Following this review, a number of Acts and regulations have been removed from the chapter (for example, the Anti-Discrimination Act, Building and Construction Industry Long Service Payments Act), further Acts and regulations have been included (for example, the Child Protection (Offenders Prohibition Orders) Act 2004, Commission for Children and Young Persons Act 1998), and the scope of other Acts and regulations enlarged or reduced.

The new Work Health and Safety Act 2011 (scheduled to commence 1 January 2012) has been added.

New commentary has been inserted at the beginning of the chapter by way of introduction to the legislative scheme under the Criminal Procedure Act 1986 and the Crimes (Sentencing Procedure) Act 1999.

Practical Notes

A new section on Non-publication and suppression orders has been added to the Practical Notes chapter.

Specific Penalties and Orders

Update 100 contains the half-yearly review of the Specific Penalties and Orders chapter. The Pharmacy Practice Act 2007 and the Trade Measurement Act 1989 have been removed. The Health Services Act 1997 and the Residential Tenancies Act 2010 have been added.

General Orders

A new Table showing Custodial sentences has been added to the General Orders chapter at [16-360].

Practical Notes

A new Table showing Warrants for arrest in criminal proceedings in the Local Court has been added to the Practice Notes chapter at [54-000].

Local Court Practice Notes

A new Civ 1 — Case Management of Civil Proceedings in the Local Court has been added. This Practice Note supercedes PN 1 of 2001, PN 1 and 2 of 2005, PN 2, 3 and 6 of 2007, PN 1 of 2009, and PN 3 of 2010. Practice Note 5 of 2002 — Magistrates early referral into treatment (MERIT) programme has been updated.

General Orders

Update 99 contains amendments to the General Orders chapter at [16-220] — eligibility for intensive correction orders.

Local Court Practice Notes

Practice Note 1 of 2010 is reissued to show amendments as at 17 December 2010. Practice Note 5 of 2008 is replaced by Practice Note 2 of 2011.

General Orders

Update 98 contains amendments to the General Orders chapter, that is, the replacement of the periodic detention order paragraph at [16-240] with new material on intensive correction orders. References to periodic detention throughout the Local Court Bench Book have been amended.

Specific Penalties and Orders

Also the Specific Penalties and Orders chapter has been updated, in particular, s 25A(3A)(11) Road Transport (Driver Licencing) Act which deals with a “second and subsequent offence” of driving while suspended, etc.

Update 97 comprises a reordered Local Court Bench Book, that is, the reissue of the mainwork, tabcards and a new wide spine binder. The Bench Book will now be contained in one binder and the reordered chapters reflect their frequency of use.

Mental Health

Also in this update, the Mental Health chapter has been amended with the removal of the section Mental Health Act 2007. The definitions held in the 2007 Act have been moved to the Mental Health (Forensic Provisions) Act 1990 section at [30-040].

Practical Notes

The section Remote Witness Video Facilities in the Practical Notes chapter has been updated.

Local Court Practice Notes

Local Court Practice Notes 1 of 2007 and 4 of 2008 have been removed and Practice Note 1 of 2010 has been updated. A new Practice Note 3 of 2010 has been added.

Please put the reordered mainwork and tabcards into the new binder.