Anti-virus update: 10 ways COVID-19 is impacting on Victoria’s criminal justice system

Words escape me when trying to describe the times we find ourselves living in. And with each person I talk to, either on the phone, a videocall or at least 1.5m apart, I see how differently individuals, businesses, groups, families etc. are affected. The criminal justice system is facing major challenges and upheaval at present. Courts and policy makers are having to juggle competing interests in a swift and effective fashion. Here are seven examples of how our world has shifted in the past few months, and one example of what remains unchanged:
 

1. As at today’s date, all Magistrates’ Courts remain open but have adjourned all cases where the accused is on summons or bail to the nominal date of 15 June. This doesn’t mean the courts will be filled to the brim on 15 June! The court will be fixing a further date later in the year. This date will be communicated by way of a hearing notice and can also be found on EFAS (the Magistrates’ Court’s online filing and diary system). The court is continuing to hear matters where the accused is in custody – if these were postponed it would constitute a major human rights issue.
2. Most lawyers are “WFH” (working from home). Firms and lawyers have had to adapt to these new conditions – technology, electronic files, productivity and ethical practice are just some of the challenges faced. We are negotiating with prosecutors over the phone or by email, which we used to do in person at court ahead of hearings. We are conducting phone conferences with clients and colleagues from our new home offices. We are appearing in court by videolink hoping the neighbour’s dog doesn’t bark. We are maintaining professionalism, unlike some lawyers in Miami.
3. The courts are ruling that Covid-19 is part of “surrounding circumstances” in a bail application. For example, it may be relevant to:
   • the issue of delay – will this pandemic delay the hearing so that the accused may spend longer on remand waiting for sentence than the sentence likely to be imposed?;
   • the increased risk of infection in/out of prison;
   • the hardship / onerousness of prison conditions – for example, personal prison visits are currently suspended;
   • the accused needing to care for someone who is infected or is in quarantine/isolation due to the virus.

   However the courts are also reiterating the fact of the virus is not a get out of jail free card – each case will be decided on its merits on a case by case basis.

4. Social distancing rules are prohibiting family and friends of accused persons attending court to support their loved ones. It is always nice to introduce an accused’s support network in court at the start of their hearing – it creates a sense of community and makes it feel more personal. Unfortunately these loved ones are having to sit at home, anxiously awaiting an update from the lawyer after court.
5. Bail reporting is being suspended from 24 April 2020 onwards. This means there a less people attending police stations and more people staying home which mitigates the risk of the virus spreading. Those currently on bail required to sign in at their local police station will no longer be required to do so. Victoria Police will conduct bail assessments and determine if any other measures are required to ensure the safety of the community in the absence of regular reporting. For example, house visits and curfew checks.
6. New offences! If you fail to adhere to Stage 3 restrictions, you may end up in court. Individuals are facing on-the-spot fines of $1,652 and it’s $9,913 for businesses.
7. The Victorian Parliament recently passed temporary laws to allow Judge-only trials in Victoria. Prior to this legislation being passed, Victoria was one of three Australian jurisdictions that allowed for jury trials only (Tasmania and the Northern Territory being the other two jurisdictions). Juries consist of 12 (sometimes 15) members of the community who sit next to each other for hours at a time during the trial. This makes social-distancing extremely difficult and the risk posed to the jurors, court staff and wider community needs to be mitigated. The accused person has the choice of waiting for a jury trial or having their matter tried sooner by a judge. This decision should be made after receiving considered advice from an experienced criminal lawyer.

That is just a snapshot of what is currently going down.

But let me assure you one thing that hasn’t changed – criminal defence lawyers are doing whatever they can to protect the interests and rights of their clients. We are regularly liaising with courts, policy makers and other entities to ensure fairness and justice to both victims and accused across the jurisdiction. These times are unprecedented and where possible the criminal justice system is working unitedly to ensure an effective, efficient and just system.
 
 
 
Date Published: 27 May 2020