Gallant Law principal lawyer, director and founder Lauren Cassimatis said that as a criminal lawyer, she is constantly keeping her “finger on the pulse” and adapting her advocacy accordingly.

Some of the biggest trends this year, Ms Cassimatis said, will be in line with a stronger focus on culturally safe representation for First Nations clients, off the back of the 2023 referendum results and “the need for unity and understanding”.

“In Victoria, proposed amendments to the Bail Act 1977 were sparked by the coronial inquest into the death of Veronica Nelson, a Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman, which found the bail system has a discriminatory impact on Aboriginal people resulting in grossly disproportionate remand rates. Under the proposed amendments, bail decision-makers must take into account systemic issues, trauma and vulnerabilities and ensure incarceration rates of Aboriginal people are not further compounded unless there is a good reason,” she said.

“In [Queensland], courts face pressure regarding a perceived ‘ongoing youth crime problem’, with police and youth justice authorities actively monitoring and targeting Indigenous youths. These punitive policies and responses disproportionately focus on First Nations children.”

Coercive control law and sexual offences

Principal lawyer of Astor Legal and an accredited specialist in criminal law Avinash Singh said that the biggest issue criminal lawyers will face in 2024 will undoubtedly be the introduction of legislation criminalising coercive control in NSW.

“Those who practise in criminal law will be subject to a steep learning curve as it is unclear how the courts will interpret the legislation,” she said.

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“Until some authority from the superior courts interprets this legislation, I would predict there will be many of these offences which proceed to a defended hearing – perhaps even as ‘test cases’ – to see what types of behaviours will be deemed to meet the criminal standard.”

J Sutton Associates director and principal Andrew Tiedt said these new laws will come into effect in mid-2024.

“From July 2024, it will be an offence to engage in ‘abusive behaviour’ towards an intimate partner if that behaviour is intended to ‘coerce or control’ that person, and if the conduct was likely to cause a fear of violence or adversely impact that person’s capacity to go about their day-to-day activities,” he said.

“This new offence is unlike most other criminal offences in that it is, regrettably, maddeningly vague in its drafting. There will be a great deal of attention paid to who the charge is laid against, how it is prosecuted, and how the courts wrestle with these difficult legal issues.”

This comes after domestic violence offences were at an all-time high, after rising 13.5 per cent over the past five years, according to MacDougall & Hydes associate Phoebe Macdougall.

“Criminal lawyers are seeing a steady increase in DV-related charges coming across their desks. One of the trends for the coming year for practitioners is navigating the new coercive control legislation,” she said.

“With the new legislation coming into effect, practitioners will need to familiarise themselves with the nuances of what constitutes coercive control and the threshold of when it constitutes criminal offending. New South Wales is the first state to enact such laws, so practitioners in this jurisdiction will be paving the way on how to advise their clients and navigate these offences in the criminal justice system.”

Fisher Dore Lawyers managing principal Nick Dore added that 2024 “will be an interesting year for those that practise in criminal law”.

“The criminalisation of coercive control will see a change in the criminal law landscape with many people who would not usually be exposed to the criminal justice space being charged with and defending offences. The flow-on effect will also see a change in the way that criminal investigations are conducted by the Queensland Police service and prosecuted by the various authorities,” he said.

“Whenever there is substantial change within the criminal law, there is also a significant demand on resources for all stakeholders. In my view, I would foresee that further demand will impact across all areas of the criminal justice system to accommodate these changes.”

In addition to coercive control legislation, Streeton Lawyers principal lawyer Justin Wong said that this year, there will be a number of developments in sexual assault matters.

“For me, as a criminal law practitioner, the introduction of the new coercive control offence this year is of particular note. This legislation could fundamentally change the way that domestic abuse is reported, policed and prosecuted. There will be a steep learning curve for all stakeholders as this legislation comes into effect,” he said.

“This year will also see many of the first affirmative consent sexual assault matters come to trial. Although these laws came into effect in 2022, it remains to be seen how courts and juries will apply these relatively new laws.”

However, founding partner at Hugo Law Group Karen Espiner said there is also a “real risk” that the trend of fundamental criminal law principles and procedures being challenged, in particular with respect to sexual assault matters, would continue through 2024.

“Calls for sexual assault trials to be heard by specialist judges without a jury, suggestions that there be a lower standard of proof for sexual assault trials, and criticisms about the trial process requiring a complainant to be cross-examined challenge fundamental legal concepts that have been in place for hundreds of years and risk sexual assault matters being dealt with differently to all other criminal offences,” she opined.

“In my view, these calls should be resisted by those in the profession who are on the ground, and I would encourage lawyers to consider joining committees or organisations so their voices are heard in the debate.”

Affirmative consent laws will also put more pressure on defendants during criminal law proceedings, Ms Cassimatis said.

“The focus is now on the accused to establish they sought affirmative consent (through their own actions/words) rather than their belief as to the complainant’s mindset and/or relying on the complainant to give consent. This places pressure on an accused to give their version during proceedings (and even during a police interview) and displaces the right to silence and potentially the right to a fair trial. I anticipate significant judicial intervention/interpretation in the near future. In the meantime, adjust your advice and advocacy accordingly,” she added.

“Recent changes to the Family Law Act aim to improve the way courts handle family and domestic violence. This focus will no doubt crossover into criminal law hearings: we will see a stronger, no-tolerance stance by the courts during bail applications, sentencing and family-violence orders proceedings.”

AI and other tech

Further, as AI and emerging tech continue changing the landscape of the Australian legal profession, the criminal law space will be no exception.

“The impact of AI will also continue to disrupt and transform all legal practice. If used selectively and correctly, there is huge potential for AI to simplify, automate and make more cost-efficient criminal legal practice,” Mr Wong added.

However, Ms Cassimatis added that the rise of AI may have adverse effects.

“With post-pandemic rising costs of living and access to AI for legal research, more people are opting to self-represent in criminal matters. However, being fully informed of your rights, case analysis, strategic advocacy, reading the bench and thinking on your feet can never be achieved by a robot,” she said.

“AI may, in fact, clog up the court system with self-represented accused people having to then seek assistance of a duty lawyer or several matters being appealed in higher courts.”

With these changes and as governments “seek greater control in the name of public safety and efficiency”, the role of criminal lawyers in “safeguarding individual liberties becomes more vital and challenging than ever”, added Nyst Legal managing director Chris Nyst.

“While we face new roadblocks, such as a quantum shift away from full disclosure by the effective abolition of committal hearings, and a diminished right to silence through the exercise of coercive powers by investigative commissions, such changes present opportunities for innovation and advocacy, and call for a renewed commitment to protect the presumption of innocence and the rights of the individual,” he said.

“With ever-increasing reliance by both prosecution and defence on digital technology, requiring criminal practitioners to upskill and broaden their service offerings accordingly, the job has become much more complex. But this complexity underscores the importance and impact of what we do. We must be at the forefront of these changes, ensuring individual rights are not just preserved, but championed with vigour and expertise. Our contribution to justice and the rule of law is now more crucial than ever.”