Queensland Law Society

Criminal law updates

Updated Thursday 11 June 2020

Contents

Queensland Corrective Services Updates

Legal Aid - bail considerations, updated

The use of technology to progress Criminal law matters

26 March 2020 - Notice to Criminal Law practitioners

Key Information

Magistrates Court

District Court

Supreme Court

Reminder from Queensland Courts Regarding Social Distancing

29 June 2020 - As restrictions are lifted, legal practitioners are reminded to observe social distancing in all courts, particularly the Magistrates Court, where the flow and number of people is higher. The Courts have worked hard to return to normal operations and remind practitioners and others that it is everyone’s responsibility to adhere to these measures. The recommended protocols can be found on the Courts Website here.

Court Ordered Immediate Parole Eligibility Project Brisbane Trial

From Tuesday 5 May 2020 Project COIPE (Court Ordered Immediate Parole Eligibility), an initiative of Parole Board Queensland, was extended to include the Brisbane Supreme and District Courts. This trial is a further extension of Project COIPE, which commenced in the Ipswich District and Magistrates Courts on 2 September 2019 and the Beenleigh District and Magistrates Courts on 2 March 2020.

The project is designed to fast-track parole applications for prisoners where a participating Court has sentenced a term of imprisonment with an immediate parole eligibility date.

More details about the project and how to engage with it in the pilot Courts is available on the Queensland Courts Website.

Queensland Corrective Services Updates

8 July 2020 - Personal visitors to prisoners recommencing, access to prisoner clients via video conferencing and telephone on weekends to cease

Queensland Corrective Services have advised that as part of the progression of the QCS Recovery Plan, from Friday 10 July personal visitors to prisoners will recommence.

We are advised that this will require the return of some correctional centre staff from their current activities co-ordinating video conferencing, to support in person visitation.

As a result, weekend bookings for access to prisoner clients via video conferencing and telephone on weekends will cease.

Practitioners who encounter any difficulties as a result of these changes are welcome to contact QLS on policy@qls.com.au. We are in regular contact with QCS and can pass on your feedback.

10 June 2020 – Updated guidance from QCS for legal professions to visit clients in correctional centres

Bookings for legal professionals to visit clients in correctional centres will open from Wednesday 10 June 2020. Visits will resume from Friday 12 June 2020, please see the Custodial COVID-19 Safe Plan here.

QCS have also provided further information in relation to the Arthur Gorrie Correctional Centre booking processes:

Arthur Gorrie Correctional Centre

AGCC have recently established a new booking process to access the additional videoconference suites available at that centre.

The following information is provided regarding the new booking process at AGCC –

  • Legal or professional bookings for AGCC for video conferencing may be made via email: ARGVisitor'sCentre@Corrections.qld.gov.au using LEGAL or PROFESSIONAL VISITS as the subject line or via telephone 3212 0434.
  • Please note: Bookings for contact with Protection prisoners may only be made on certain days and the bookings officer will assist with identifying available times.
  • Bookings are available in 30 minute timeslots however there is provision for longer timeslots to be booked should this be requested in the booking email.

If legal practitioners have an existing booking using the previous system and require a booking sooner, they may wish to make a new booking using the ARGVisitor’s Centre email and cancel the original booking made through ARGVideoCourts if an earlier timeslot is available.

8 May 2020 - Updated Guidance from QCS on booking telephone and videoconference appointments with clients in custody

Queensland Corrective Services have released updated information outlining the process for contacting correctional centres in order to arrange contact with a prisoner for the purpose of taking legal instructions.  

To ensure more timely access to clients, it is requested that telephone contact rather than videolink is sought, whilst QCS continue to work on increasing videolink capacity across their centres with prioritisation being provided to court proceedings.

For further information please see the COVID-19 Stakeholder Portal

See also key documents:

For any urgent or ongoing issues that need resolving, please see the Correctional Centre Tele & Video conferencing - Legal Practitioners Access Escalation Contacts (updated 8 June 2020).

8 May 2020 - Queensland Corrective Services COVID-19 Stakeholder Portal

QCS has developed a COVID-19 Stakeholder Portal. The portal provides information and updates on matters such as custodial centre and Community Corrections management during COVID-19, prisoner and offender management, restrictions limiting access to custodial centres, temperature testing and health screening of all before entry to a custodial centre, health checks and isolation practices for all new prisoner receptions, vulnerable prisoner management, and access to legal representation.

This information will be regularly updated, and practitioners are encouraged to access this site as a first point for information on measures implemented by QCS in light of the COVID-19 pandemic.

15 April 2020 QCS assistance with s651 applications

QCS has advised that during the course of the COVID-19 pandemic, Queensland Corrective Services will assist legal representatives with the completion of section 651 applications. If you have an application that needs to be signed by a prisoner, please send it to the sentence management email address at the correctional centre where the prisoner is accommodated (as per attachment). Sentence Management staff will coordinate the completion of these applications (including the completion of the Oaths Act declaration) and return by email to legal representatives.    

If you have any queries please do not hesitate to contact Suzanne Cantatore via email at suzanne.cantatore@corrections.qld.gov.au

Directive regarding Corrective Services visits

23 March 2020 - Personal visits to Queensland prisons have ceased until the public health emergency for novel coronavirus (COVID-19) has ended, or the direction has been cancelled or replaced. The Direction from the Chief Health Officer can be found here. For further information, visit the Queensland Corrective Services Website here.

Section 651 applications and access to clients in custody

26 March 2020  QLS has written to Queensland Corrective Services seeking their urgent assistance in allowing all section 651 applications to be received and sent by email and facsimile. We have also raised the difficulties our members are experiencing with the accessibility of video and teleconferencing to facilitate bail applications. We will keep members of informed of developments in this regard.

Legal Aid - bail considerations, updated

To support assessing applications for aid for bail applications (all jurisdictions), Legal Aid Queensland has expanded the criteria for merits assessment. See the Legal Aid Queensland website for further information here.

Brisbane Recovery Services Day Program - Online

Brisbane Recovery Services Centre (Moonyah), based at Red Hill are now offering a day program online for adult clients impacted by alcohol and other drug use.

An information sheet for participants and service providers can be found here.  Further queries can be directed to deborah.dowsett@salvationarmy.org.au.

 

2 April 2020 - The use of technology to progress Criminal law matters in the Supreme and District Courts – COVID-19

The Supreme and District Courts are continuing to encourage practitioners to actively consider all matters which might be progressed via judge-alone trial, or via telephone or audio-visual links during this challenging time.

Practitioners should have regard to the new “Supreme Court – Use of Technology during COVID-19 response” note here which states that “Court users should now assume that all cases in the trial division requiring any form of substantive oral hearing will take place by the use of teleconferences or videoconferences (or a combination of the two)”.

Members are also encouraged to become familiar with the following User Guides, namely Chorus Call for telephone conferences and Cisco Webex Teams for video conferences.

The Supreme and District Courts Criminal List Manager has also encouraged telephone appearances for Criminal reviews and Indictment presentations here.

Further information is also available in the ‘Protocol for Criminal Law Reviews in the Supreme Court’, available here.

This week, District Court judges have successfully conducted circuits remotely, hearing multiple matters each day.  The Courts are attempting to embrace innovative approaches to conduct court matters as much as possible during this time. 

The key message from the Courts is that practitioners should be proactive in getting matters listed and rise to the challenge of doing things remotely.

Where they are any issues being encountered in the use of technology which might be addressed, QLS, through its’ Criminal Law Committee will continue to work with the Courts to overcome these. If you have any specific concerns which ought to be communicated, please send your feedback to policy@qls.com.au.

These are difficult and uncertain times but we encourage practitioners to continue to engage productively with each other and to utilise the Courts’ readiness to continue to hear matters via innovative technology solutions.

26 March 2020 - Notice to Criminal Law practitioners—COVID-19 update

The suspension of jury trials presents some opportunities to practitioners in the criminal jurisdiction.

Crown Prosecutors have time available to consider submissions and resolve issues. The Acting Director of Public Prosecutions has agreed that the freeing up of Crown Prosecutor’s time by the cessation of jury trials means they will have greater availability to consider how matters might be progressed. Judges who would have been hearing trials have time available to hear other matters.

All practitioners should consider whether they have conduct of matters that:

1. could be advanced or resolved by negotiation with a Crown Prosecutor
2. could be listed for pre-trial applications
3. are listed for pre-trial applications which could be brought forward
4. are suitable for a trial by judge without a jury, or
5. could be listed for sentence, or are listed for sentence and could be brought forward, especially:

a. sentences where an offender in custody may already have served most of the custodial portion of the likely sentence; or

b. sentences where there is no real likelihood of a sentence of imprisonment.

Where there is agreement with the prosecution that a matter could be brought forward, or is ready to be listed, practitioners should contact the criminal list manager of the appropriate court.

Online adjournment function for committal callover and summary callover matters

The Brisbane Magistrates Courts have asked that practitioners be reminded of the Online adjournments function contained on the Queensland Courts website here.

If you use this function, you do not have to email the court or appear via telephone.  Your matter will be adjourned on the papers and you will receive notification of the court result.

This function can be used for both committal callover (Court 19 & 20 on a Monday) and summary callover (Court 19 & 20 on a Wednesday) matters where delay would not cause substantial prejudice to your client (see s.19 of PD 3 of 2020).  

The electronic form allows you to state reasons for your adjournment application and request orders from the court (e.g. brief of evidence, disclosure direction, etc.).  The form requires you to tick a box confirming you have obtained the consent of the prosecution prior to submitting the request. *QPS has provided a blanket consent in this regard in relation to any matters where it is the prosecutor.

Brisbane Police Prosecution Corps have emphasised that they will continue to case conference and otherwise progress as many matters as possible while PD 3 of 2020 is in force.

 

Key Court information

For regular Court developments, please visit the ‘COVID-19 Update on Courts, Commissions, Tribunals, Titles and property’ page on the QLS website here

Key developments for Criminal Law practitioners to date include:

16 March 2020 - The Chief Justice of the Supreme Court of Queensland, The Honourable Catherine Holmes AC, and the Chief Judge of the District Court of Queensland, His Honour Judge Kerry O’Brien have announced that new jury trials are suspended for the immediate future here.

Magistrates Court

8 July 2020 - New Online Application for a Court Event (Magistrates Courts)

From 8 July 2020 the Queensland Magistrates Courts Online Application for a Court Event form is available for use by lawyers in adult criminal matters. The form can be used to seek an order for:

  • a sentence date (including a short plea, lengthy plea or contested sentence)
  • an adjournment other than of a hearing
  • a date for a hearing of an application (including a bail application or a directions hearing)
  • a direction by the Court (including a direction for the provision of a brief of evidence)

The matter must already have a listing date. 

The form is available from the Queensland Courts website Online Application for a Court Event (Magistrates Courts). At this stage, the form should only be used by lawyers in adult criminal matters.

The form can be used for all Magistrates Court locations across Queensland. Practice Direction 7 of 2020 – Online Court Event Applications has been issued to support the use of the form.

The form replaces the current Apply for an adjournment form available on the Queensland Courts website which can only be used for matters in the Brisbane Magistrates Court.

Questions on the use of this form can be directed to: Website.Feedback@justice.qld.gov.au

8 July 2020 - Practice Directions 6 and 7

The Chief Magistrate has issued the following practice directions:

11 June 2020 - Update from the Brisbane Magistrates Court

Please see below important information from the Brisbane Magistrates Court in relation to the matters listed in the week commencing 22 June 2020

To ensure both efficient disposition of matters and to apply physical distancing in accordance with the Chief Health Officer’s guidelines, the following measures are proposed:

Summary Callover

(1)   All matters involving represented parties listed in the Summary Callover (Court 20, 24 June 2020) will be heard on Tuesday 23 June 2020. 

The Callover matters will be heard over five Courts. 

*Please see here a Schedule prepared by the Brisbane Magistrates Court which contains the courtroom allocations for law firms.  Matters have been grouped by representation so legal practitioners do not have to go to different Courts if they wish to appear in person.   

For callovers the Court is encouraging audio/visual appearance (Chorus call or Pexip) by legal practitioners to decrease numbers in Court. 

Electronic adjournments are also encouraged.  Practitioners may also appear in person. Unless required, the personal appearance of a represented defendant is discouraged.

If you have a matter in the Summary Callover, but your firm is not listed on the Schedule, or if you have any other questions about the summary callover listing procedures, please contact Brisbane Criminal Listings (BMC.CriminalListings@justice.qld.gov.au) and Leanne Mahoney (leanne.mahoney@justice.qld.gov.au).

(2)   Due to the COVID19 pandemic creating a significant backlog of matters in the Magistrates Court and the Court now being able to schedule summary hearing matters again, the Court is seeking the assistance of the legal profession when listing matters. 

In this regard, see here the Summary Hearing Priority Protocol form. It is only for use for matters in the Brisbane Magistrates Court which are currently in the criminal Summary Callover (adult) stream. 

Practitioners are encouraged to complete this form upon case conferencing with prosecutions being finalised and where a summary hearing listing is sought.  The form should be either emailed to the Court to be placed on the file prior to mention.  The presiding Magistrate will then consider the information and, where necessary, seek any clarification.  The matter can then be prioritised for listing.  The form can be used until 30 September 2020 when it is expected much of the backlog will be addressed.

(3)   Subject to capacity the Court has indicated that it will be able to hear short pleas on 23 and 24 June 2020.

(4)   Matters involving unrepresented defendants will be heard on 24 June 2020.  Again to encourage social distancing six courts will sit to hear the matters.

Committal Callover

(5)   The Committal Callover (Court 20, 22 June 2020) will operate in a similar way.  Six courts will be available to hear matters.  Again, it is proposed to group matters by representation so legal practitioners do not have to go to different Courts if they wish to appear in person.   

The leadership of the Magistrates Court has confirmed that in accordance with PD 5 of 2020 legal practitioners are encouraged to appear by audio or videoconferencing facility or apply for consent orders electronically.  Again, unless required, the personal appearance of a represented defendant is discouraged.

Practitioners are asked to note that the Court will resume listing matters for hearing (including committals with cross-examination and directions hearings).  Matters where a hearing was de-listed due to Covid-19 will receive a priority listing, and practitioners should ensure that they inform the court of any previous listing at the mention.

If a represented defendant is appearing by videoconference, and their appearance is no longer required, please inform the Court at the earliest possible opportunity.

(6)   To facilitate this process legal practitioners are encouraged to provide to Brisbane Criminal Listings (BMC.CriminalListings@justice.qld.gov.au) and Leanne Mahoney (leanne.mahoney@justice.qld.gov.au) a list of their matters they would like to have heard together.

(7)   The numbers in Court are being monitored and similar arrangements may be instituted for other days where high numbers of defendants are expected to attend Court.

28 May 2020 – The Magistrates Court has issued Practice Direction 5, which repeals Practice Direction 3 from 14 June 2020. This new practice direction will commence from 15 June 2020 and can be found here. It provides for amended COVID-19 Court Arrangements, including new requirements for appearances in person for most trials, committal proceedings, pleas, hearings and applications (unless leave is given to appear via telephone or videoconference), arrangements for callovers/mentions/first appearances, procedures for documents to be relied upon in matters and other relevant measures.

28 May 2020 – The Childrens Court (Magistrates Court) has issued Practice Direction 6, which repeals Practice Direction 4 from 14 June. This new practice direction will commence from 15 June 2020 and can be found here. It provides for amended COVID-19 Court Arrangements, including new requirements for appearances in person for most trials, committal proceedings, pleas, child protection applications, hearings and other applications (unless leave is given to appear via telephone or videoconference), arrangements for callovers/mentions/first appearances, procedures for documents to be relied upon in matters, and other relevant measures.

14 May 2020 - The Magistrates Court is testing a new cloud-based videoconferencing system for the conduct of proceedings. PEXIP is currently in testing so only select matters will be heard in this manner. If you are a party to a matter that is testing the system you will receive instructions. Further communication and updates will be provided as testing progresses including frequently asked questions.

29 April 2020 - The Brisbane Magistrates Court have issued an Amended COVID-19 Brisbane Magistrates Court Guideline for Criminal Proceedings.

The Guideline is to be read with Practice Direction 3 of 2020 (amended), Practice Direction 4 of 2020 (amended) and the Designated Matters and Urgent Applications: Listing Procedures; and will be in effect from 29 April 2020.

28 April 2020 -Regional Co-ordinating Magistrate Pinder has amended the Cairns and Far North  Queensland Region Guideline 2 of 2020.

QLS has been informed the changes in this amendment are as follows:

  • In 8.0 Urgent Application for leave to hear a matter – The email to the Registry should be headed ‘Request to Hear Urgent Matter: Name of Matter/Listing Date’ and -  The applicant’s estimate for time of hearing needs to be provided
  • In 13.0 Applications for leave to hear designated matter – The email to the Registry should be headed ‘Request to List Designated Matter: Name of Matter/Adjournment Date’ and - The email should include availability dates seven days ahead from the date of the request.

The guideline provides information on:

  • General arrangements
  • Telephone and video appearances
  • Work the Court will undertake
  • Courts that will sit in the Cairns Magistrates Court
  • Bail applications
  • Video Court
  • Committal and summary hearing mentions
  • Sentences/Long Pleas
  • Urgent applications for leave to hear a matter
  • Domestic Violence Applications
  • Childrens Court
  • Urgent QCAT Applications
  • PPRA Applications for Order and Warrants
  • Applications for leave to hear designated matters
  • Surrenders to the Court by Defendants

27 April 2020 - Queensland Courts have published a notice in relation to domestic violence applications. The notice outlines that “due to the impact of COVID-19, some applicants wishing to file a domestic violence application, may be unable to have their application verified by a justice of the peace using the normal statutory declaration process. To assist, Magistrates Courts will permit any applicant seeking a domestic violence application to orally verify their statutory declaration over the phone to the presiding Magistrate.” The notice can be read in full online.

24 April 2020 - The Brisbane Magistrates Court has issued the ‘Designated Matters and Urgent Applications: Listing Procedures Email Guidelines

This document outlines the Listing Procedures Email Guidelines for Brisbane Magistrates from 27 April 2020 for:

  • Appearances by telephone pursuant to paragraph 10 of the PD 3 and 4 of 2020 Court Arrangements COVID-19 (amended);
  • Urgent Matters pursuant to paragraph 19 of PD 3 and 4 of 2020 Court Arrangements COVID-19 (amended); and
  • Designated Matters pursuant to paragraph 20 of PD 3 and 4 of 2020 Court Arrangements COVID-19 (amended).

 

9 April 2020 - Regional Coordinating Magistrate Chris Callaghan has issued a protocol for the North Coast Region Magistrates Court (Maroochydore Nambour Noosa Caloundra and Gympie Courts), Protocol for having matters listed, in relation to Practice Direction 3 of 2020 – Court Arrangements (COVID-19) (Amended)

The protocol covers Substantial Prejudice Matters, Paragraph 20 of PD 3 of 2020 and Paragraph 15 of PD 4 of 2020 Matters, and also general advice regarding the hearing of matters.

9 April 2020 - The Magistrates Court Brisbane has published further information about listing procedures for 'Designated matters' and urgent applications in the Brisbane Magistrates Court from 20 April 2020. From 20 April 2020 Brisbane Magistrates Court (BMC) will run two lists dedicated to hearing designated matters in accordance with Practice Direction 3 (Amended) of 2020 (PD 3), paragraph 20. For further information about these procedures, see the Notice from Deputy Chief Magistrate Brassington here.

7 April 2020 - The Chief Magistrate has amended Practice Direction 3 of 2020 and has also issued a Notice in accordance with this amended Practice Direction today, 7 April 2020:

PD 3 of 2020 Court Arrangements (COVID-19) (amended) – A new heading “Applications for Leave to Hear a Designated Matter” and paragraphs 20, 21 and 22 have been added. A consequential amendment has been made to paragraph 12(k) to reflect these changes.

Notice in accordance with paragraph 6 of PD 3 of 2020 (amended) and paragraph 4 of PD 4 of 2020 (amended) – This Notice means that unless otherwise directed by Regional Coordinating Magistrate Callaghan, Gympie matters will be heard from Maroochydore.

3 April 2020 - Regional Coordinating Magistrate Chris Callaghan has issued a protocol for the North Coast Region Magistrates Court (Maroochydore Nambour Noosa Caloundra and Gympie Courts), Domestic Violence Protocol, in relation to Practice Direction 3 of 2020 – Court Arrangements (COVID-19) (Amended)

The protocol covers Police Applications and Private Applications.

27 March 2020 - Judge Terry Gardiner, Chief Magistrate issued Practice Direction No 3 of 2020 with respect to all Magistrates Courts arrangements in response to COVID-19. The PD sets out important information for practitioners regarding appearances, work the Court will currently undertake, information regarding currently listed Matters, new matters where the defendant is not in custody and urgent applications for leave to hear a matter. The PD can be found here.

District Court

21 May 2020 – The Supreme and District Courts released a “Notice to Practitioners in Relation to Criminal Proceedings during the COVID-19 Pandemic.” This Notice takes the place of the Notice issued on 18 March 2020. It provides an update regarding proposed resumption of jury trials and increased sentencing in the second half of the year. The notice can be found here.

27 April 2020 – The Queensland Courts have announced that from 27 April 2020, the Supreme and District Courts, Brisbane, are trialling a new cloud-based video conferencing system for the conduct of proceedings. Parties should refer to the daily law list to confirm if their matter will be conducted via the system. Read the User Guide Online.

27 March 2020 – District court circuits update: We have been advised that the District Court are conducting three circuits next week (the week commencing 30 March 2020) with Judge Farr, Judge Chowdhury and Judge Porter.  The circuits will be entirely remote, with the judges remaining in Brisbane.

18 March 2020 – The Chief Justice of the Supreme Court of Queensland and the Chief Judge of the District Court published a ‘Notice to legal practitioners in relation to the COVID-19 pandemic’ which provides an update to practitioners about the conduct of Trial Division - Civil matters, Trial Division - Criminal matters and information about matters in the Court of Appeal. More information is available here.

Supreme Court

21 May 2020 – The Supreme and District Courts released a “Notice to Practitioners in Relation to Criminal Proceedings during the COVID-19 Pandemic.” This Notice takes the place of the Notice issued on 18 March 2020. It provides an update regarding proposed resumption of jury trials and increased sentencing in the second half of the year. The notice can be found here.

27 April 2020 – The Queensland Courts have announced that from 27 April 2020, the Supreme and District Courts, Brisbane, are trialling a new cloud-based video conferencing system for the conduct of proceedings. Parties should refer to the daily law list to confirm if their matter will be conducted via the system. Read the User Guide Online.

16 April 2020 - This invaluable recording hosted by the Bar Association of Queensland provides important information on how to ensure civil trials, appeals and interlocutory hearings can go ahead in the Supreme and District Courts and that they proceed efficiently under the changed COVID-19 protocols. It includes a Q&A session with The Honourable Justice Walter Sofronoff, The Honourable Justice Ann Lyons, The Honourable Justice John Bond, His Honour Judge Bernard Porter QC, Nick Ferrett QC and Gavin Handran. Click here to access.

24 March 2020 - His Honour Justice Burns, Criminal List Judge published a ‘Protocol for Criminal List Reviews in the Supreme Court’ to assist in the management of risks associated with Coronavirus (COVID-19) and, in particular, to avoid the need for any appearance in court, where that is at all possible and, instead, facilitate appearances by telephone, using chorus call. It is intended to reduce the number of people in the courtroom at any given time, see the Protocol here.

19 March 2020 – The Criminal List Manager, Supreme Court of Queensland Brisbane Registry has published a ‘Note to Practitioners’ which provides further information following the Chief Justice’s Notice to Legal Practitioners which was published on 18 March 2020. The further note provides information about criminal reviews and indictment presentations, jury trials, adjournments of sentences, priority matters and bail applications.

18 March 2020 – The Chief Justice of the Supreme Court of Queensland and the Chief Judge of the District Court published a ‘Notice to legal practitioners in relation to the COVID-19 pandemic’ which provides an update to practitioners about the conduct of Trial Division - Civil matters, Trial Division - Criminal matters and information about matters in the Court of Appeal. More information is available here.

Cases and Resources