The executive director of the NSW BOCSAR, Jackie Fitzgerald, reflected on the “concerning” increase in reported sexual assaults, noting that this surge is “mostly driven” by the rise in assault victims. She revealed a staggering 62 per cent increase in sexual assault incidents for adults.

Fitzgerald also attributed the significant increase in sexual assault reporting to the 92 per cent rise in historical child sexual assault reports.

The BOCSAR report indicated a 15.4 per cent increase in reporting of domestic assaults and a 7.8 per cent increase in reporting of non-domestic assaults over the past five years.

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Fitzgerald said the rise in reporting domestic assault is attributed to the “increase in report family violence, together with an escalation of intimate partner assaults”.

“Non-domestic assaults have increased against adult women and young people. Looking at where these offences are occurring, we’ve seen an increase on residential premises (up 18 per cent or 1,567 additional incidents) and school premises (up 46 per cent or 748 additional incidents).”

The notable increase in reporting such crimes presents challenges for criminal lawyers in effectively navigating and providing services to their clients due to the evolving legal landscape.

To delve deeper into this topic, Lawyers Weekly sought insights from four senior criminal law practitioners: Angela Cooney, national practice director for Armstrong Legal; Katrina Favre, principal lawyer for KF Lawyers; Justin Wong, principal lawyer for Streeton Lawyers, and Avinash Singh, principal lawyer for Astor Legal.

What difficulties arise as a result of the rising number of reported crimes?

When asked about the challenges posed by the increase in reporting these crimes, all respondents highlighted the added burden on criminal lawyers, the court systems, and the criminal justice system in handling this surge.

Singh underscored how this increase in reporting these crimes is “likely unsurprising” to criminal lawyers in NSW as “prosecutorial policy has been leaning towards an increase in the number of prosecutions commenced for sexual offences”.

Wong said criminal lawyers are already tasked with a “high volume of cases and clients”, so the anticipated increase in caseloads “will only intensify” the “pressures placed on criminal lawyers to respond to the needs of their clients”.

He said: “Adequate funding for Legal Aid, the ALS and DPP is also an ongoing issue. Unless funding for those agencies can keep up, especially amidst increasing cost of living pressures, the expectation will be that the lawyers in those organisations will have to fill the gap. That just isn’t fair or sustainable.”

Cooney said the rise in reporting of sexual offences would “undoubtedly place a further strain on the Direct Court of NSW”, considering that this court already handles a “large part” of those cases at this level.

Concerning domestic violence incidents, Cooney said a “specialist family and violence list pilot is currently being trialled in NSW Local Courts”, which can enhance the court's services for users and contribute to better outcomes for individuals involved in such cases.

Favre’s analysis of the average annual increase in criminal proceedings for these cases underscored the escalating burden on judicial resources and legal practitioners resulting from the reporting surge.

“The average increase of 1.6 per cent per annum in proceedings that have been defended in Court for adult offenders, and 2.9 per cent per annum for young people is telling of the higher demands on court resources and members of the legal profession,” Favre said.

“The increase in reporting of sexual assaults alongside the increased recognition of family violence has resulted in criminal charges being laid against clients, restrictive ADVOs being enforced, and strict bail conditions being imposed,” Favre said.

How challenging is it to work as a practitioner in this particular field at the moment?

Given the challenging landscape of criminal law currently, the respondents have identified a range of difficulties they must navigate within this complex field.

Favre shed light on the emotional toll it takes on criminal lawyers when navigating clients through these “confronting matters and finalise the proceedings in a timely manner”.

Favre also said clients involved in these criminal trials are often highly stressed and have complex backgrounds, which “adds an extra layer of emotional stress”.

Singh offered valuable insights on the impact of the “rapidly changing legislation and case law”, and said criminal lawyers face a significant challenge in staying “abreast of the latest development” to ensure they effectively navigate this dynamic landscape.

He said: “While consent is the most significant change in recent years, there have also been amendments to matters such as trial directions, tendency evidence and sentencing.”

Cooney said professionals must prioritise their mental health in light of the escalating exposure to distressing cases to confront these challenges effectively.

“Any potential increase in exposure to this kind of work requires solicitors (and their employers) to be conscious of and actively manage the risk of trauma and poor mental health outcomes,” she said.

To address these critical issues, Cooney provided a list of several organisations that lawyers could reach out to if seeking assistance with their wellbeing.

“There is a multitude of organisations available to provide assistance (not least of all, the Solicitor Outreach Service provided by the Law Society of NSW which can be contacted on 1800 592 296). I am firmly of the view that you cannot provide the best assistance for your clients if you are not looking after yourself,” she said.

Despite the immense pressures and challenges that criminal lawyers have to navigate, Wong underscored the profession's interconnected and supportive environment and their unwavering dedication towards advocating for their clients.

“But most criminal lawyers I speak to, like myself, love what we do and have a genuine desire to help people, whether it’s defendants or victims. It’s a supportive and collegiate profession and I’m sure that will continue regardless of new challenges,” Wong said.

What will constitute best practice for criminal lawyers moving forward?

In light of the ongoing evolution of criminal law, the respondents share insights and recommendations for criminal lawyers regarding what they foresee as best practices for these legal professionals.

Cooney stressed the importance of providing timely advice and assistance to clients and to “act with diligence” to prevent delays in court proceedings.

She said: “It is important for criminal lawyers to be up to date with current practice in these spaces as developments continue to occur – for example, familiarity with the Specialist Family and Violence List Pilot Practice.”

Favre said the importance of utilising the “Early Appropriate Guilty Plea process” and thoroughly preparing cases at the earliest opportunity are crucial elements of best practice for criminal lawyers, as they contribute to achieving the "best outcomes for clients".

She also commented: “Criminal lawyers ought to focus on the prosecution evidence and assess the strengths and weaknesses of the Crown case when giving advice to their clients on serious charges such as sexual assaults.”

“It is important to carefully analyse the pieces of evidence before taking the position to defend the matter in its entirety, or consider a plea to a lesser offence to dispose of the proceedings in a timely and fair manner that exposes their clients to less risk,” he said.

Wong said implementing effective processes to allocate sufficient time to each client constitutes best practice in the legal profession.

“Best practice will involve processes to ensure lawyers are still able to spend the required time on each client. Sometimes that means asking for help, knowing when to turn down work, setting in place adequate practice support, and making sure the quality of advice and advocacy doesn’t suffer as a result of increased volume,” he said.

Singh drew attention to the evolving legal landscape, particularly regarding consent in sexual offence cases, emphasising that staying updated on navigating these complexities is crucial for maintaining best practices.

“Criminal lawyers need to be mindful of the requirements for consent. Specifically, that an accused person is required to say or do something to find out whether the other person is consenting to sexual activity,” he said.

How should the NSW government best address these findings?

As the demand for criminal lawyers grows, the respondents advocate for the NSW government to implement proactive strategies and enhanced resources to effectively meet evolving needs.

Cooney said the government is “catching the problem way too late”, and its response has been reactive.

She said additional funding for the court system to handle the increased workload across all levels of the judicial system is necessary.

“With increases in these kinds of matters being reported and prosecuted in the NSW Criminal Justice System, further funding will be necessary for Local and District Courts to support the increased workload that goes along with this,” she said.

“I also think there is a place for a discussion about involving prosecuting authorities (like the DPP) in the investigation and preparation of sexual assault matters at a much earlier stage, and in a different way to how they operate at present.”

Wong echoes Cooney’s sentiments, underscoring the necessity for all areas of the criminal justice system to receive additional funding.

He also expressed the urgent need for financial support for virtual court systems by stating: “There really needs to be funding into virtual court for criminal matters. It is still difficult, and often impossible, to appear remotely in procedural mentions in the Local Court. It would be a huge benefit for criminal lawyers in managing their workload if they could rely on the efficiencies of online and virtual courts.”

Favre said the NSW government must implement quality checks for prosecution briefs, and to achieve this it requires “tighter guidelines for the DPP in approving briefs from investigating police officers prior to charge certification under the EAGP process.”