Jimmy Singh, Principal at Criminal Defence Lawyers Australia, examines the impact of COVID-19 on the barriers to accessing justice in criminal law. He looks at both the positive and negative effects and highlights the key takeaways from this pandemic in the criminal law landscape.
The COVID-19 pandemic has indeed caused significant difficulties faced by the legal profession and industry, which has consequently effected the criminal justice system, particularly the access to justice.
In particular, the pandemic has unfortunately impacted upon many aspects of the criminal justice system, including bail applications, sentence proceedings, criminal trials, prisons and detention centres.
The decision of Rakielbakhour v DPP NSW SC 323, is a case where His Honour Justice Hamill granted bail to the accused after acknowledging factors relevant to the decision to grant bail, namely, the potential for COVID-19 to be spread across the prison population; onerous conditions in custody as a result of the suspension of personal visits; significant delays in jury trials; the increased levels of anxiety across prisoners; increasing rates of COVID-19 cases across the nation and NSW.
The Pandemic has in effect increased the period of time that inmates on remand are likely to remain in custody pending their trial or hearing (in a system where they are presumed innocent until proven guilty); and it has caused restrictions on lawyers to be able to even conduct prison legal visits to their clients to provide advice and guidance.
Of note, is the acknowledgment by the courts of the vulnerability that COVID-19 places onto Aboriginal and Torres Strait Islanders who are more susceptible to the spread of the virus. This has been acknowledged as a relevant consideration in determining the grant of bail by the Victorian Supreme Court in Re Kennedy  VSC 187.
In summary, the pandemic has caused delay in trials; resulting in people who’re accused of crimes spending greater time in custody on remand than the likely sentence; more onerous custody conditions given prison authorities are prohibiting visits creating greater isolation, impacting on education, and rehabilitation opportunities which are matters relevant in sentencing principles in court.
Overseas, we are seeing a similar impact that the pandemic is having. For example, the case of U.S. v Grobman granted bail on the basis that the accused was medially-compromised due to his health condition, placing him in a high-risk category where there is a risk of the virus spreading in custody.
Delay, Expense, and Practical Implications in Criminal Trials
The case of R v Macdonald; R v Edward Obeid; R v Moses Obeid (No11)  NSWSC 382 is an example of the kind of impact that COVID-19 is having.
This case was a joint trial which had been in progress for nearly 5-weeks before it was adjourned to 27 March 2020 in response to the health concerns from the pandemic. By such time, a prosecution witness was still in the process of giving evidence via AVL but had not completed giving his evidence when the case was adjourned due to the pandemic.
Just prior to the 27 March 2020, in response to the pandemic, the Chief Justice made a direction to stop physical appearances in court until further notice, except for in exceptional circumstances and with leave. This was effective as of 24 March 2020.
As a result, the trial was to be conducted via a ‘virtual courtroom’ using a weblink to the court. Before the commencement of the trial by this method, the facilities to run a virtual court room was tested. The lawyers were all provided with a facts sheet outlining instructions on how practitioners would navigate the virtual court room.
During the test run of the virtual court room, it became apparent that, the system was unable to cope with catering for all 6 barristers and their instructing solicitors; the ability for witnesses to give evidence and be cross-examined in circumstances the court book volume exceeds 7,500 pages with over 70 documents marked for identification that may be used during the evidence of each witness.
On 25 March 2020, new legislation was assented to, which allowed courts to direct that witnesses and accused people attend proceedings by AVL, not in person.
The Crown (prosecution) applied to the court for permission to have relevant parties appear via AVL from various remote locations. An alternative order was also sought, to allow barrister and solicitors to appear in a restructured court room, by maintaining social distancing with witnesses and accused to appear remotely.
On the 27 March 2020, the trial unable to proceed due to the fact that none of the parties were able to connect to the virtual court room.
As a result, the trial was adjourned to later that day, at which time the trial commenced using the virtual court room process. However, the virtual court-room continued to drop-out for one or more of the parties. The barristers, via the virtual court-room were difficult to hear, and on occasions there were time delays whilst parties were talking. This also impacted upon the integrity of the transcripts of the court proceedings. The connection issues were coming from the remote locations where the parties were virtually appearing from.
The proceedings were adjourned to 31 March 2020, when the court continued to experience technical difficulties with the technology. As a result, the court adjourned to 6 April 2020.
On 6 April 2020, technical difficulties with technology continued, and none of the parties were able to successfully connect until later that morning.
It became apparent, that the accused would not be given a fair trial, with fair process and procedure in the current climate using a virtual court room due to the impracticalities. As a consequence, the accused right to a fair trial will be compromised if the trial continues in this way.
The trial was then adjourned to 31 August 2020.
Positive Impacts of COVID-19?
With the pandemic related restrictions beginning to ease, the District Court has re-commenced jury trials again, but under strict conditions involving temperature checks, screening questions and the sort.
For other cases, the virtual court-room has proven a success.
In particular, the courts have been able to now use virtual technology by utilising AVL’s in appeals, bail applications and even judge alone trials. As a result, the courts have been able to effectively hear about 500 cases a week notwithstanding the restrictions caused about by the pandemic.
Shorter non-complex matters listed in court, including ‘mentions’, have moved from physical attendances to appearances via “email appearances”. This has saved significant travel time and resources, especially for criminal lawyers in Sydney.
It has allowed particularly criminal lawyers to spend less time in court, and more time on preparing for cases. It has also reduced the period of time it takes for these matters to be otherwise physically heard and dealt with in court, increasing efficiency.
The pandemic has also been a wake-up call to our criminal courts, especially the Downing Centre Court and legal profession, prompting for more investment of technology into the criminal justice system.
It has forced the legal profession, particularly in criminal justice, to invest in and learn how to better utilise technology in criminal justice, to provide for a greater access to justice.
Mr. Jimmy Singh is the principal lawyer at Criminal Defence Lawyers Australia, a team of Sydney criminal lawyers. He is highly respected amongst the profession and recognised for his experience and success, exclusively practising in criminal law for over a decade. Connect with Jimmy via email or LinkedIn