Legal Papers

It is trite to observe that the Local Court of NSW is, by far, the busiest criminal jurisdiction of all NSW Courts. According to the Bureau of Statistic, in 2018 the NSW Local Court finalised 128,932 criminal cases. By comparison, the higher jurisdictions combined finalised a comparatively modest 4897 criminal cases in the same year. It is not surprising then that most criminal law practitioners spend the vast majority of their time in the Local Court. What is more surprising is the lack of seminars and literature designed to assist practitioners who appear in this jurisdiction navigate the manifold issues which can arise in Local Court matters.

Those who regularly appear in the Local Court know that it is a very different beast to the higher jurisdictions. While the substantive law  is the same in all jurisdictions, the practice and procedure in the Local Court, as well as the practical realities of the resource constraints that all parties to Local Court criminal proceedings are typically faced with, mean that there are certain issues which arise uniquely in the context of  Local Court  proceedings. This paper seeks to provide Local Court practitioners with (hopefully) helpful, practical guidance to assist in dealing with some of these issues and offer suggestions as to how to more effectively run defended matters in this jurisdiction. To that end, a deliberate effort has been made to keep case references to a minimum in favour practical, pithy advice about matters which arise in the daily practice of the criminal law in the Local Court.

This paper discusses some ways in which traffic offences can be defended. It is intended to be a practical guide for traffic law practitioners who daily advise and represent individuals charged with the commission of traffic offences.  It is not, and does not pretend to be, an academic treatises. It argues no particular position and has no central theme except that betrayed by its title. Consequently, it is it little more that a mosaic of different defences and defence strategies relating to traffic offences and hence lacks a rigid structure. While this makes it less erudite than some, it is the writers hope that what it lacks in scholarly elegance, it makes up for in practical utility.

The reader is reminded that this paper is not intended to include detailed legal research, either as to the common law or legislation relating to sex matters. It is intended to provide the ‘basics” in some terminology and directions given by a trial judge; and to get the reader thinking about potential strategies and which may be best suited to you and/or your client’s case; together with some very real practical considerations, some of which may not have previously been encountered.

This paper will refer to some case studies from which one will be able to discern the strategies employed to assist the advocate/instructing solicitor.

The Amending Act [EAGP] passed Parliament on 18 October 2017 and the Department of Justice [“DoJ”] has advised it is expected that the EAGP reform will commence by May 2018.
The Department of Justice [“DoJ”] has referred to the EAGP reforms as “a systemic shift in the way serious criminal matters are managed in the courts”. Indeed, the reforms will significantly change the way in which a criminal lawyer should approach the client’s case and likely, in the advice to be given to that client…

PCA (Proscribed Concentration of Alcohol) charges are rarely defended. There are a number of very good reasons for this fact. For one thing, in most cases there is no reasonable prospect of a successful defence. The system for the detection, documentation and prosecution of PCA offences is so finely tuned that there is often no room left for doubt about the guilt of the accused. Added to this is the cost associated with mounting a defence to a criminal charge. Even where there is a viable defence, some accused will choose to plead guilty to a PCA in order to avoid the substantial cost of a defended hearing.

I appeared for Dean Waters as trial advocate, in my first murder trial [at Newcastle Supreme Court] in 1997 before his Honour RS Hulme J (as he then was), when after a 9 day trial, the jury took about 30 minutes to find the accused not guilty of the murder of Allen Hall; notwithstanding the accused’s admission to firing the shotgun that killed the deceased. All the subjective background of the accused, including his very substantial abuse at the hands of his father, Cec Waters, was in evidence at the trial and was never disputed by the Crown.

This paper will cover two separate topics which, it is hoped, are of interest and practical utility to criminal law practitioners. As is necessitated by the allocated time, and no doubt much to the relief of the audience, the focus of this paper will be inexorably practical and pragmatic. In deference to the undoubtedly substantial experience of the members of this audience, no attempt will be made to set out the basic principles of the areas of law under consideration. Instead, the writer will endeavour to highlight aspects of each area of the two areas of law under consideration which may be less well understood of known while at the same time being of use in the everyday conduct of a criminal practice.

This paper, and the presentation which it accompanies, will cover three distinct areas of the criminal law, specifically: drink driving, drugs and domestic violence.

What is Advocacy in a Criminal Law context?

This paper deals with the offences of assault, affray and, as a separate topic, the defence of self-defence (with a particular focus on its application to assault and affray charges).