Currency

Update 140, March 2021

Specific penalties and orders

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

  • Pawnbrokers and Second-hand Dealers Regulation 2021 has replaced the 2015 regulation.

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

  • PCA, other alcohol related offences and mandatory interlock order disqualification tables table at [2-020] to include offences pursuant to Road Transport Act 2013 Sch 3 cll 17(1)(a), 17(1)(b), 17(1)(c),

  • Testing for alcohol and drug use — Sch 3 offences — Road Transport Act table at [2-040] to remove offence under Sch 3 cl 17(3).

[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:

  • section 36(c) includes, as a prohibition taken to be specified in every AVO made on/after 27 March 2021, intentionally or recklessly harming an animal that belongs to, or is in the possession of, the protected person or a person with whom they have a domestic relationship,

  • the definition of “intimidation” in s 7(1)(c) includes (for AVO applications, including for variation/revocation, made on/after 27 March 2021) conduct that causes a reasonable apprehension of harm to an animal that belongs/belonged to, or is or was in the possession of the person/another with whom they have a domestic relationship,

  • for persons sentenced to full-time imprisonment for a relevant offence, an ADVO is in force for the period of imprisonment and an additional two years unless there is good reason to impose a different period. Further, such an AVO may commence on a day before the day the person starts serving the term of imprisonment: ss 39(2A)–39(2D),

  • ss 39(1) and 39(1A) provide that, in relation to a person who pleads guilty, or is found guilty, of a serious offence, a court must make a final AVO for the protection of the person against whom the offence was committed whether or not an interim AVO (which includes a provisional order) has been made, or an application for an AVO has been made.

[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:

  • [30-000] includes a table of the provisions in the Mental Health (Forensic Provisions) Act 1990 corresponding to those in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020,

  • [30-040] includes the definitions of “Mental health impairment” and “Cognitive impairment” defined in ss 4, 5(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020,

  • [30-060] lists the matters under s 15 a magistrate may consider when determining whether it is appropriate to deal with a defendant in accordance with Div 2, and the actions set out in ss 13 (adjournment) and 14 (dismissal),

  • [30-120] includes the orders under s 18 for dealing with a defendant who is a “mentally ill person” or a “mentally disordered person” within the meaning of the Mental Health Act 2007,

  • [30-140] includes detention and assessment orders under s 19.

Other consequential amendments were made as follows:

  • [18-000] Commonwealth offences is amended at [18-140] to refer to mental health impairment and cognitive impairment under s 12 Mental Health and Cognitive Impairment Forensic Provisions Act 2020,

  • [28-000] Committal proceedings is amended at [28-180] in relation to remitting a matter to a magistrate after an accused has been found fit to be tried in committal proceedings under s 52 Mental Health and Cognitive Impairment Forensic Provisions Act 2020,

  • [38-000] Children’s Court is amended at [38-260] to add that Pt 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 applies to children in the Children’s Court,

  • [54-000] Warrants for arrest in criminal proceedings in the Local Court has been amended to include a warrant under s 114 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 for forensic/correctional patients outside NSW and the subject of an apprehension order.

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

Update 139, December 2020

Specific penalties and orders

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

  • Liquor Regulation 2018 by the Liquor Amendment (Night-time Economy) Act 2020

  • Rural Fires Act 1997 by the Bushfires Legislation Amendment Act 2020

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

  • at [8-000] and [8-020] by inserting reference to the new Ch 6, Pt 4B, Div 5 Criminal Procedure Act 1986 (Giving of evidence by domestic violence complainants — other provisions) which provides for the evidence of a complainant in domestic violence offence proceedings to be given in closed court, including for a recording of their evidence, and permits witnesses to give evidence remotely

  • a new [8-030] on closing the court when domestic violence complainants give evidence under s 289U and provisions relating to when the evidence also relates to a prescribed sexual offence; when the complainant is a vulnerable person; when the complainant has a support person present when giving evidence; or when the evidence may be heard in open court

  • at [8-040] by inserting reference to ways a complainant in domestic violence offence proceedings may give evidence under new s 289V, namely, by “alternative means” from a place other than the courtroom by AVL or two way communication technology, or using “alternative arrangements” to restrict visual and other contact with the accused or other persons in the courtroom using screens or planned seating arrangements. Reference to the amended Local Court Practice Note Crim 1 Case management of criminal proceedings in the Local Court has been included which provides that 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).

  • at [8-120] by specifying warnings to juries when a complainant gives evidence by alternative means or using alternative arrangements (s 289V(5)), and when there has been absence of, or a delay in making, a complaint: s 306ZR.

[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:

  • at [22-060] to include reference to s 28B(2) Crimes (Domestic and Personal Violence) Act 2007 which provides police must not make a provisional order that decreases the protection afforded to a person under an existing AVO

  • at [22-100] by including reference to s 289U Criminal Procedure Act 1986 which requires the court to be closed if a complainant is giving evidence in domestic violence offence proceedings

  • a note has been inserted at [22-100] indicating that Ch 6, Pt 4B, Div 5 Criminal Procedure Act applies to a complainant’s evidence in domestic violence offence proceedings: s 289T(1)(b). The complainant’s evidence is to be heard in closed court (s 289U), and they are also entitled to give evidence by “alternative means” or “alternative arrangements”: s 289V

  • a further amendment at [22-120] to include reference to s 81A which provides that if there is any inconsistency between AVOs made in relation to a defendant and more than one order applies to the same protected person, the most recent prohibition or restriction prevails (subject to s 28B)

  • also at [22-120], to include reference to s 79B(4) which provides the subject of an indefinite order may apply to vary or revoke the order with the court’s leave. Leave may only be granted if the court is satisfied there has been a significant change in circumstances since the order was made or last varied, or it is in the interests of justice: s 79B(5)

  • a reference to s 79B(6) has been included at [22-220], which provides that the power to revoke or vary an indefinite order in s 79B(4) does not apply to police-initiated orders where the protected person (or one of the protected persons) is a child.

[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.

Update 138, November 2020

Specific penalties and orders

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

  • Court Security Act 2005 by the Stronger Communities Legislation Amendment (Courts and Civil) Act 2020

  • Law Enforcement (Powers and Responsibilities) Act 2002 by the Justice Legislation Amendment Act (No 2) 2018

  • Work Health and Safety Act 2011 by the Work Health and Safety Amendment (Review) Act 2020.

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

  • the increased upper limit of the maximum penalty provided for in s 200(3) for offences against ss 188(1), 188(2) and 189(4) has been included at [2-000]

  • a new paragraph on the increased time to commence proceedings for certain offences has been included at [2-000]

  • Road Rules 2014 r 10-2(4), (5A) has been included at [2-000] and provides for taking a suspension into account when imposing a disqualification for speeding offences >30kms/hr

  • the table Speeding offences — Road Rules 2014 at [2-040] has been amended by Road Amendment (Miscellaneous) Rule 2020 by adding r 10-2(5A)

  • the paragraph on Defences under the Heavy Vehicle National Law at [2-040] is updated.

[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:

  • Kindermann v JQ [2020] NSWSC 1268 is included at [38-020] clarifying that a hearing or representation is not required for an interim order under s 33 Crimes (Forensic Procedures) Act 2000

  • [38-060] refers to the process under Part 3, Div 3A Children (Criminal Proceedings) Act 1987, which creates separate committal procedures for children charged with certain indictable offences, and mirrors the process in the adult jurisdiction, except for the mandatory discount scheme for sentencing which does not apply to a person who is both under 18 at the time of the offence and under 21 at the time of charge: s 25A(1)(b) CSPA. The Children’s Court Practice Note 12 is referred to

  • references to the pre-30 April 2018 committal procedure at [38-060] have been removed

  • reference to victim impact statements has been included at [38-080] for offences involving child abuse material offences, certain voyeurism offences and offences involving intimate images; a prescribed sexual offence; or certain offences which result in death or actual physical bodily harm to any person or which involve actual or threatened violence

  • CO v DPP [2020] NSWSC 1123 has been included at [38-100] which states that failure to obtain a background report when sentencing a young person is an error of law.

[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.

Update 137, August 2020

Specific penalties and orders

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

  • Rail Safety (Adoption of National Law) Act 2012 by Rail Safety (Adoption of National Law) Amendment (Drug and Alcohol Testing) Regulation 2020 (No 89)

  • Tow Truck Industry Regulation 2020 commenced on 1 July 2020 and repeals and replaces the Tow Truck Industry Regulation 2008.

[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:

  • the value of the penalty unit amount has increased to $222 from 1 July 2020 due to the Notice of Indexation of the Penalty Unit Amount, and [18-060], [18-100], [18-160], [18-200], [18-220], [18-300], [18-320] and [18-380] have been amended to take account of this increase.

  • amendments regarding Commonwealth child sex offences arising from Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 have been incorporated into [18-020], [18-120] and a new subsection in [18-120], Commonwealth child sex offenders must serve actual term of imprisonment. Child abuse offences at [18-280] has also been renamed and substantially revised.

  • [18-080] Discount for guilty pleas includes reference to s 16A(2)(g) which provides the fact and timing of a guilty plea, including any resulting benefit to the community, victims and witnesses can be taken into account; and Huang aka Liu v R [2018] NSWCCA 70 regarding the desirability to specify the discount given in respect of a guilty plea.

  • [18-140] Person suffering from mental illness or intellectual disability is amended to provide that, when a court is dealing with a defendant suffering from a mental illness or intellectual disability under s 20BQ, the court must not make a recognizance, intensive correction or reparation order, however a residential treatment order may be made.

  • The Table of penalties for Criminal Code offences at [18-160] has been amended to include penalties for Commonwealth child sexual offences ss 471.26, 474.25C and 474.27A.

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

  • [20-080] Persons for whom a bail decision may be made has had a note added to clarify that when additional charges are laid, bail is dispensed with in relation to them unless an order is made: Bail Act 2013, s 10(3).

  • [20-300] Test to be applied includes a note to clarify that if there is a dispute as to whether an offence is a “show cause” offence, the onus is on the prosecution to establish the criteria under s 16B. A reference to DPP v Zaiter [2016] NSWCCA 247 has been included regarding the limited precedential value of single judge bail decisions of the Supreme Court in determining bail for “show cause” offences.

  • [20-500] Procedure if accused granted bail but remains in custody has been updated to include the requirement for the court to be notified in writing within 8 days if a person who has been granted bail but remains in custody: s 42.

  • [20-620] Procedure for determination under s 78 includes a note specifying that a detention application in relation to a person brought before the court cannot be adjourned without a bail decision being made.

New sections include:

  • Jurisdictional issues and restrictions on the Local Court at [20-150] (incorporating previous sections of the chapter)

  • Special bail provisions for Cth child sex offences at [20-820] due to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

  • Onus on accused to satisfy court bail should be granted at [20-840] arising from the above Act.

[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:

  • inclusion of Paul Campbell v R [2018] NSWCCA 87 at [38-000] Guiding principles and [38-080] Sentencing orders and principles which provides the relevant principles regarding the sentencing of children

  • inclusion of RP v Ellis [2011] NSWSC 442 at [38-020] Criminal procedure generally on doli incapax

  • driving matters in the Children’s Court jurisdiction have been updated at [38-020] Criminal procedure generally

  • the responsibility of the police to assist a child to contact the Legal Aid Youth Hotline and the Aboriginal Legal Service Custody Notification Line is included in Detention for questioning at [38-020] Criminal procedure generally

  • the determination of bail conditions for children according to the legislative provisions in the Bail Act 2013 is included at [38-040] Bail

  • the Early Appropriate Guilty Plea committal process for serious children’s indictable offences is included at [38-060] Committals

  • information about the Youth Koori Court is included at [38-080] Sentencing orders and principles

  • supervision by Youth Justice imposed with a good behaviour bond or a probation order is detailed at [38-120]

  • [38-160] Suspended sentence — s 33(1B) is updated noting they remain a sentencing option for children

  • the principles under the “Joint Protocol to reduce the contact of young people in residential out-of-home care (OOHC) with the criminal justice system” which applies to any child under the age of 18 and living in residential OOHC have been included at [38-340] Apprehended violence orders.

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

Update 136, February 2020

[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:

  • death investigation and the coroner at [44-020] including that, for deaths occurring on or after 20 January 2020, a doctor may issue a death certificate without having seen the deceased within a prescribed timeframe; and a doctor is prohibited from issuing a death certificate in respect of a reportable death

  • autopsies and objections to them at [44-060] on the powers of a pathologist to undertake non-invasive preliminary examinations, and whether a post mortem examination may be dispensed with and a coronial certificate issued

  • the cost of funding an independent expert’s report at [44-100]

  • the Coroner’s decision whether to hold, or dispense with, an inquest based on the medical evidence from the Chief Forensic Pathologist or another senior forensic pathologist, or an expert at [44-160]

  • conducting the inquest at [44-200] in relation to:

    (a) 

    family support

    (b) 

    the judgment of Atkins v AG(NSW) [2016] NSWSC 1412 on compelling a witness to give evidence where the witness has been acquitted of criminal charges, and

    (c) 

    the application of the doctrine of public interest immunity and the judgment of HT v The Queen (2019) 93 ALJR 1307

  • Concluding the inquest at [44-220] in relation to:

    (a) 

    findings on manner of death, and

    (b) 

    written or ex tempore reasons

  • updating/adding the following templates in the appendices:

    (a) 

    Appendix K — 30 day letter to next of kin

    (b) 

    Appendix L — Coroner’s reasons with dispensing with an inquest

    (c) 

    Appendix X — Coroner’s reasons for dispensing with an inquiry

    (d) 

    a new Appendix U containing a findings template.

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

Update 135, January 2020

[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:

  • powers of the court in interstate extradition at [46-020], including the judgment Visser v Commissioner of Australian Federal Police (No 3) [2012] NSWSC 1387

  • relief from extradition and suppression orders in release of persons unnecessarily detained at [46-080]

  • remand under s 15 in overseas extradition at [46-100]

  • consent to surrender at [46-140],

  • search warrants in extradition to New Zealand at [46-160].

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

  • Local Court review of Local Court criminal decisions at [52-020],

  • Crimes (Appeal and Review) Act 2001 s 63(2A) qualifications added to appeals to Supreme Court and District Court at [52-040], [52-060].

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

Update 134, December 2019

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:

  • Road Transport Act 2013 by the inclusion of the calculation of the “offence-free period” and “never-eligible offence” under [2-000].

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

Update 133, November 2019

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

Specific penalties and orders

The following Acts have been recently amended:

  • Crimes Act 1900 by the Abortion Law Reform Act 2019 No 11 and the Justice Legislation Amendment Act (No 2) 2019 No 20

  • Crimes (Administration of Sentences) Act 1999 by the Justice Legislation Amendment Act 2019 No 10

  • Point to Point Transport (Taxis and Hire Vehicles) Act 2016 by Justice Legislation Amendment Act 2019 No 10.

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

  • dealing with particular indictable offences summarily at [18-060]

  • the discount for a guilty plea at [18-080]

  • fines and breaches of recognizance, Community Correction Order and Intensive Correction Order at [18-100]

  • sentences of imprisonment, particularly in relation to the restriction on the imposition of a sentence of imprisonment for certain minor offences and the ratio of head sentence to non-parole period at [18-100]

  • mental illness, intellectual disability and the features of s 20BQ Crimes Act 1914 at [18-140]

  • sentencing principles in taxation offences at [18-180].

[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.

Update 132, August 2019

Specific penalties and orders

The following Acts have been recently amended:

  • Bail Act 2013 by the Justice Legislation Amendment Act (No 3) 2018 No 87

  • Companion Animals Act 1998 by the Companion Animals and Other Legislation Amendment Act 2018 No 27

  • Innkeepers Act 1968 deleted by the Fair Trading Legislation Amendment (Miscellaneous) Act 2018 No 79

  • Prevention of Cruelty to Animals Act 1979 by the Companion Animals and Other Legislation Amendment Act 2018 No 27.

[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.

Update 131, May 2019

Specific penalties and orders

  • Road Transport Act 2013 by the Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (No 54) and Roads and Maritime Services v Farrell [2019] NSWSC 552.

[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.

Update 130, April 2019

Specific penalties and orders

The following Acts have been recently amended:

  • Children and Young Persons (Care and Protection) Act 1998 by the Children and Young Persons (Care and Protection) Amendment Act 2018 (No 81)

  • Combat Sports Act 2013 by the Combat Sports Amendment Act 2018 (No 76)

  • Crimes Act 1900 by the Criminal Legislation Amendment (Consorting and Restricted Premises) Act 2018 (No 50) and Victims Rights and Support Amendment (Statutory Review) Act 2018 (No 34)

  • Crimes (Domestic and Personal Violence) Act 2007 by the Victims Rights and Support Amendment (Statutory Review) Act 2018 (No 34)

  • Environmental Planning and Assessment Act 1979 by the Statute Law (Miscellaneous Provisions) Act (No 2) 2018 (No 68) and Planning Legislation Amendment (Greater Sydney Commission) Act 2018 (No 66)

  • Heavy Vehicle (Adoption of National Law) Act 2013 by the Road Transport Legislation Miscellaneous Amendments Act 2018 (No 23)

  • Law Enforcement (Powers and Responsibilities) Act 2002 by the Justice Legislation Amendment Act (No 2) 2018 (No 29)

  • Local Government Act 1993 by the Statute Law (Miscellaneous Provisions) Act (No 2) 2018 (No 68)

  • Liquor Act 2007 by the Statute Law (Miscellaneous Provisions) Act (No 2) 2018 (No 68)

  • Liquor Regulation 2018 by the Liquor Amendment (Miscellaneous) Regulation 2019 (No 125)

  • Protection of the Environment Operations Act 1997 by the Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 (No 80) and Protection of the Environment Operations Amendment (Drug Exhibit Waste and Vapour Recovery) Regulation 2019 (No 88)

  • Road Transport Act 2013 by the Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (No 54)

  • Road Rules 2014 by the Road Transport Legislation Amendment (Light Rail) Regulation 2019 (No 51)

  • Tow Truck Industry Regulation 2008 by the Tow Truck Industry Amendment (Fees) Regulation 2018 (No 746).

[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

  • Practice Note Civ 1 — Case management of civil proceedings in the Local Court has included the amendments of 15 March 2019.

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

  • Practice Note No 2 of 2012 — Domestic and personal violence proceedings has been amended

  • Practice Note Comm 1— procedures to be adopted for committal hearings in the Local Court has been amended

  • 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 amended

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

Update 129, December 2018

Specific penalties and orders

The following Acts have been recently amended:

  • Child Protection (Offenders Registration) Act 2000 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

  • Crimes Act 1900 by the Crimes Legislation Amendment Act 2018 and the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

  • Crimes (Administration of Sentences) Act 1999 by the Crimes (Administration of Sentences) Legislation Amendment Act 2018

  • Crimes (Domestic and Personal Violence) Act 2007 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

  • Crimes (Sentencing Procedure) Act 1999 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

  • Criminal Procedure Act 1986 by the Crimes Legislation Amendment Act 2018

  • Health Services Act 1997 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

  • Heavy Vehicle (Adoption of National Law) Act 2013 by the Road Transport Legislation Miscellaneous Amendments Act 2018

  • Law Enforcement (Powers and Responsibilities) Act 2002 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

  • Protection of the Environment Operations Act 1997 by the Forestry Legislation Amendment Act 2018

  • Protection of the Environment Operations (Waste) Regulation 2014 by the Protection of the Environment Operations Legislation Amendment (Waste) Regulation 2018

  • Road Transport Act 2013 by the Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018

  • Road Rules 2014 by the Road Amendment (Portable Traffic Light Trailers) Rule 2018

  • Summary Offences Act 1988 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.

[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 1 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.

Update 128, September 2018

Specific penalties and orders

The following Acts have been recently amended:

  • Crimes Act 1900 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

  • Criminal Procedure Act 1986 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

  • Law Enforcement (Powers and Responsibilities) Act 2002 by the Rural Crime Legislation Amendment Act 2017 and the Gas and Electricity (Consumer Safety) Act 2017

  • Electricity Supply Act 1995 by the Gas and Electricity (Consumer Safety) Act 2017.

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.

Update 127, August 2018

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:

  • Companion Animals Act 1998 by the Companion Animals and Other Legislation Amendment Act 2018

  • Crimes Act 1900 by the Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018

  • Criminal Procedure Act 1986 by the Justice Amendment Act (No 2) 2018 and the Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018

  • Environmental Planning and Assessment Act 1979 by the Statute Law (Miscellaneous Provisions) Act 2018

  • Gaming Machines Act 2001 by the Gaming Machines Amendment (Leasing and Assessment) Act 2018

  • Jury Act 1977 by the Terrorism (High Risk Offenders) Act 2017

  • Law Enforcement (Powers and Responsibilities) Act 2002 by the Justice Legislation Amendment Act (No 2) 2018

  • Liquor Act 2007 by the Liquor and Gaming Legislation Amendment Act 2018 and the Statute Law (Miscellaneous Provisions) Act 2018

  • Marine Safety Act 1998 by the Marine Legislation Amendment Act 2016 and the Road Transport Legislation Amendment (Road Safety) Act 2018

  • Public Health (Tobacco) Act 2008 by the Smoke-free Environment Amendment Act 2018

  • Work Health and Safety Act 2011 by the Work Health and Safety Amendment Act 2018.

The following new Regulations have been included:

  • Rail Safety (Adoption of National Law) Regulation 2018

  • Liquor Regulation 2018

  • Child Protection (Offenders Prohibition Orders) Regulation 2018

Update 126, June 2018

[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.

Update 125, December 2017

Specific penalties and orders

Amendments were made to the following Acts and Regulations:

  • Crimes Act 1900

  • Crimes (High Risk Offenders) Act 2006

  • Firearms Act 1996

  • Firearms Regulation 2017

  • Point to Point Transport (Taxis and Hire Vehicles) Act 2016

  • Protection of the Environment Operations Act 1997

  • Protection of the Environment Operations (Noise Control) Regulation 2017

  • Road Transport Act 2013 (including major revisions to the commentary of the Road Transport legislation to reflect changes made by the Road Transport Amendment (Driver Licence Disqualification) Act 2017) which introduced a procedure for applying to the Local Court for the removal of a licence disqualification.

[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:

  • [18-140] Person suffering from mental illness, etc

  • [18-180] Taxation offences

  • [18-220] Social welfare fraud

  • [18-280] Child pornography and child abuse offences

  • [18-300] Customs offences

  • [18-320] Offences under the Quarantine Act 1908

  • [18-340] Offences under the Migration Act 1958

  • [18-360] Passport offences

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.

Update 124, July 2017

Specific penalties and orders

Two new Acts have been included:

  • Biosecurity Act 2015 No 24 offences have been added.

  • Poppy Industry Act 2016 No 37 offences have been added.

Amendments have been made to the following Acts:

  • Fisheries Management Act 1994 No 38, Sch 6D, cl 12 added.

  • Security Industry Act 1997 No 157, s 27A(3) added.

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:

(i) 

in the same manner as Practice Note Comm 1 in relation to certain Commonwealth indictable offences, and

(ii) 

to allow an additional week for reply where service of the brief is ordered in Table matters, to mirror Practice Note Comm 1 in relation to strictly indictable matters.

Local Court Practice Note Comm 1

Procedures to be adopted for committal hearings in the Local Court

The Practice Note has been amended to:

(i) 

apply to proceedings for Commonwealth offences. It requires each party to expressly indicate consent or refusal to summary disposition of certain indictable offences following the decision in Morgan v District Court of NSW [2017] NSWCA 105

(ii) 

allow an additional week for reply following service of the brief, due to changes in mail delivery services, and

(iii) 

detail the expected conduct of the parties upon the adjournment of proceedings for negotiation.

Update 123, April 2017

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.

Update 122, March 2017

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.

Update 121, December 2016

Specific penalties and orders

Amendments have been made to the following Acts:

  • Coroners Act 2009: s 103A — Disrespectful behaviour in coronial proceedings offence has been added

  • Crimes Act 1900: ss 37(1), (2) offences have been added

  • Crimes (Domestic and Personal Violence) Act 2007: a note has been added regarding sentencing for domestic violence offences, noting that a discussion of the principles and approach when sentencing for a domestic violence offence is found in the Sentencing Bench Book at [63-500]

  • Fines Act 1996: a note has been added regarding amendments made by the Fines Amendment Act 2016 (No 13) (commenced 1 June 2016) which addresses the position where a fine is paid before an offence nomination is made

  • Marine Safety Act 1998: Part 3 Boating safety — alcohol and other drug use; Prescribed concentrations of alcohol (s 22); Commercial purpose — ss 13A(1), 25, 26, 28A(1), 63A(1), 102, Sch 1 cll 17(1), (2); Cancellation and suspension (s 28A) has been amended and/or added

  • Maritime Services Act 1935 was repealed on 7 October 2016 and has been removed from the SP&O chapter.

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.

Update 120, July 2016

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).

Update 119, June 2016

Specific Penalties and Orders

Amendments have been made to the following Acts:

  • Bail Act 2013 — ss 16A and 16B, show cause requirement

  • Firearms Act 1996 — ss 51F and 51H, use etc stolen firearms/parts; ss 62 and 63, increase of penalties from 10 yrs to 14 yrs imprisonment

  • Gaming Machines Act 2001 — ss 139(2) and (3), Centralised Monitoring System

  • Inclosed Lands Protection Act 1901 — s 4B(1), aggravated unlawful entry on inclosed lands

  • Weapons Prohibition Act 1998 — s 25B(1), possession of digital blueprints for manufacture of prohibited weapons

Practical Notes

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

Update 118, March 2016

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.

Update 117, December 2015

Specific penalties and orders

Amendments have been made to the following Acts and Regulations:

  • Environmental Planning and Assessment Act 1979

  • Environmental Planning and Assessment Regulation 2000

  • Jury Act 1977 (eligibility and exemptions for jury service have been updated)

  • Pawnbrokers and Second-hand Dealers Regulation 2008 has been repealed and replaced by the 2015 Regulation

  • Passenger Transport Act 1990 has been re-added to the section

  • The PCA and the Other alcohol-related offences tables have been combined along with the Mandatory alcohol interlock program penalties.

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.

Update 116, September 2015

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.

Update 115, June 2015

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.

Update 114, January 2015

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.

Update 113, December 2014

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:

  • [16-080] Offences dealt with in the absence of a defendant

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:

  • [46-120] Admissibility of evidence — Remand under s 15 and Waiver of extradition

  • [46-140] Surrender hearings — Consent to surrender and Surrender determination by Attorney-General.

Local Court Practice Note Crim 1 of 2012

Amendments have been made to Part B — Procedure:

  • First mention: para 5.4(c)(i), (ii)

  • Matters where accused is legally represented: para 5.7(c)–(g).

Update 112, September 2014

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.

Update 111, June 2014

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 facilitiesOperational 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.

Update 110, May 2014

[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].

Update 109, February 2014

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.

Update 108, October 2013

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, July 2013

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, March 2013

Update 106 contains the following revised chapters:

Update 105, December 2012

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, September 2012

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.

Update 103, June 2012

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.

Update 102, April 2012

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.

Update 101, December 2011

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.

Update 100, June 2011

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.

Update 99, March 2011

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.

Update 98, November 2010

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, October 2010

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.