NSW Bar Association member support for technology issues 

The Bar Association can provide help and support for members experiencing difficulties with connectivity and other technical issues.  They also have an informative LinkedIn group Court Technology Assistance for Barristers.  See their Covid-19 web page:

https://nswbar.asn.au/practice-support/information-about-covid-19 

WARNING:  The Public Defenders are aware, from direct knowledge and from feedback from the profession, that there are some potential privacy issues with virtual courts.  

You may be aware of the following:

• As part of open justice, people who are not parties or legal representatives may be able to connect to a virtual court  
• Such people include members of the press, police officers in charge, victims or families of victims and members of the general public

You may not be aware that:

• it is sometimes possible for people to be connected to the virtual court without:
• being seen or heard;
• the parties being aware that they are connected; or
• anyone knowing who they are
• while it is unlawful to do so (see s9A Court Security Act 2005 (NSW)), there have been instances of people making recordings, and taking "screen shots", of the virtual courtroom

We suggest that defence lawyers should:

• always assume that there may be someone connected to the court who can see and/or hear you and your client
• avoid taking instructions over a virtual court system even if the judicial officer and your opponent have "left" the virtual courtroom to allow you to do so
• try to ensure that anyone who may be associated with your client and who wishes to be connected has their sound muted and is aware that making any recordings or taking screen shots is unlawful
• bring any concerns to the attention of the judicial officer
  

• ADDED AUGUST 2021 See updated Expert reports /  information / Bugmy Bar Book chapter regarding ‘COVID-19 Effect on Prisons and Prisoners’ - Available below under 'F. COVID-19 and Prisons & Detention Centres'

• R v JK [2020] VSC 160 (1 April 2020). Bail granted to young person charged with Manlsaugher with minimal criminal history.  Compelling reasons include - Delay: Child in custody for three years, awaiting trial, is highly undesirable. Time on remand could be as much as, or a significant proportion of, likely non-parole period: at [21]; Suspension of personal visits:  Physical separation from family can be more acute for young persons than adults; importance of strengthening and preserving such relationships in case of accused-children (s 3B(1)(b) Bail Act): at [23]; Education and training opportunities: Desirable for children that these continue without interruption: at [24]-[26].
• Re JB [2020] VSC 184 (17 April 2020). Bail granted to young person. COVID-19 delays would render remand in custody more onerous for various reasons including youth; intellectual impairment; no family visits; less access to programs: at [40]-[42].

• Parents of young children - where spouse restricted by health in meeting greater demands for care at home of young school-aged children: Watson v The Queen [2020] ACTCA 16 (1 April 2020) at [9]-[12]
• Chronic asthma; significantly lower risk of contracting COVID-19 in residential drug/alcohol rehabilitation program compared to prison; suspension of rehabilitation programs in prison - Bail granted for period of residential rehabilitation: Re Nicholls [2020] VSC 189 (21 April 2020)

(v)  Repeat Applications for Bail

• Delays caused by COVID-19 pandemic may constitute 'new facts and circumstances' to justify further consideration of bail - s 18 Bail Act 1977 (Vic): Re El Refei [No 2] [2020] VSC 164 (8 April 2020)
• COVID-19 pandemic – curtailment of prison visiting rights amounts to 'change of circumstances' - Repeat application for bail, s 20C Bail Act 2002 (ACT): R v Stott (No 2) [2020] ACTSC 62 (23 March 2020)

Cases

(1) Sentence

Factors on sentence relating to COVID-19

The courts have acknowledged the COVID-19 pandemic has resulted in increased onerous custodial conditions due to suspension of prison visits, isolation measures, impact on prisoner well-being, prisoner anxiety, age and health concerns, and interruption to rehabilitation/work programs.

(i) Onerous custodial conditions; Suspended visits

• Social and family visits have been suspended, making conditions of incarceration of most inmates more onerous and should be taken into account on sentence: McKinnon v R [2020] NSWCCA 106 (27 May 2020) at [32]; Scott v R [2020] NSWCCA 81 (30 April 2020) at [166]; R vDespotovski [2020] NSWDC 110 (15 April 2020): at [36].

• Combination of restrictions and limited visitation renders incarceration more onerous and it will remain more onerous for some period of time: R v Tangi (No 12) [2020] NSWSC 547 (13 May 2020) at [57]-[58]. Custodial orders may require isolation of inmates causing additional hardship: R v Kelso [2020] NSWDC 157  (17 April 2020) at [46].

• While impact of COVID-19 on conditions of incarceration and suspension of visits and contact is relevant (Scott v R [2020] NSWCCA 81; McKinnon v R [2020] NSWCCA 106 at [32]), this should not be overstated or necessarily extrapolated, given fluid nature of distancing restrictions and current cautious confidence in NSW as to control of the pandemic and gradual relaxation of emergency restrictions: Moodie v R [2020] NSWCCA 160 (15 July 2020) at [144].
  

• R v Manojlovic [2020] NSWCCA 315 (25 September 2020) Court does not accept, contrary to approach by sentencing judge, that sentence should be significantly mitigated because of impact of COVID-19. There is currently no community transmission in NSW nor in correctional centres. Despite this, the aggregate sentence is mitigated to some extent on the basis time in custody is more onerous given limited family contact: at [270].

• Maxwell v R [2020] NSWCCA 94 (8 May 2020) Where applicant housed at a regional correctional centre with some restrictions upon visits and availability of courses, it would be speculative to conclude restrictions will be in place for any more than a temporary period. If applicant is released on parole and not deported, there will be ample time by way of conditional liberty in the community to aid rehabilitative measures: at [126]-[127].
  

• R v Barnett [2020] NSWDC 193 (12 May 2020)  Restrictions might be eased in the community and correctional centres, but there is a risk of future waves of the pandemic. Therefore it is speculative for the Court to predict for how long conditions of custody are made more onerous: at [70]-[71].
  

(ii) Impact on well-being; stress and anxiety

• Valentine v R [2020] NSWCCA 116 (4 June 2020) Steps taken in correctional centres to avoid risk of COVID-19 have had significant negative impacts upon inmates' well-being: at [62]. On re-sentence, the Court took into account evidence concerning the COVID-19 pandemic and its impact upon the applicant while in custody, including (i) Report by Dr Andrew Ellis, "COVID-19 and Mental Health Issues for NSW Prisoners", 9 April 2020; (ii) Report by Professor Tony Butler & others, Kirby Institute, University of NSW, "Report on COVID-19 and the impact on New South Wales prisoners", 16 April 2020: at [60]. (Note: These reports are available below under "F. COVID-19 and Prisons & Detention Centres").

         See also:

• Absence of visits from family and friends and heightened anxiety and concerns are relevant factors that must be synthesised along with all other matters. The extent, to which those may be taken into account is a matter to be resolved on the particular facts of the individual case (Brown (aka Davis) v The Queen [2020] VSCA 60 at [48]). Here the offender's depression and anxiety will be exacerbated: R v Despotovski [2020] NSWDC 110 (15 April 2020) at [35]-[39].
  
  

(iii) Age and Ill-health 

• RC v R; R v RC [2020] NSWCCA 76 (22 April 2020) (Judicial Commission NSW summary). On Crown appeal against sentence, the Court held the sentence imposed is manifestly inadequate, however, exercised its residual discretion not to intervene in this case. A custodial sentence will be more onerous due to advanced age, long-term bronchial condition; respondent will experience a level of stress, anxiety, and even fear at potentially fatal consequences were he to be infected in prison: at [2], [7], [253]-[255]. Age and respiratory condition, in the present pandemic, justify a finding of special circumstances (s 44(2) Crimes (Sentencing Procedure) Act 1999): at [252].

• Scott v R [2020] NSWCCA 81 (30 April 2020). Of particular relevance is applicant's advanced age (71 years), asthma and medical conditions making him vulnerable to potentially grave complications should he contract COVID-19: at [166].

• R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) [2021] NSWSC 1343 (21 October 2021) at [142]-[150].
  

(iv) Ill-Health / Higher risk category / Mental Health

• Athsma / respiratory condition and advanced age: Scott v R [2020] NSWCCA 81 at [166]; RC v R; R v RC [2020] NSWCCA 76 at [253]-[255] (see above).
  

• Post-Traumatic Stress Disorder: On resentence, the Court took into consideration applicant’s PTSD has and will make time in custody more onerous; PTSD has been negatively impacted by not being able to access psychologist and psychiatrist due to COVID-19 restrictions: Mbele v R [2021] NSWCCA 182 (9 August 2021): at [98], [101], [104].
  

(v) Rehabilitation 

• Cancellation of rehabilitation programs. Interference with rehabilitation is particularly significant;  offender is a good candidate for rehabilitation; the current restrictions may have a deleterious effect on the good work achieved so far: R v Khoder (No 2) [2020] ACTSC 76 (14 April 2020) at [12].
  

(vi) First time custody 

• Measures taken to deal with pandemic may add to hardship, particularly as first time custody and of young age (22 years): DPP v Hersi [2020] VCC 347 (26 March 2020) at [26].
  

(vii) Financial capacity to pay fine

• In consideration of accused's means to pay fine, take into account uncertainty arising from COVID-19 pandemic that it is likely to have an adverse impact on accused's business, but extent of that impact is unclear: McAndrew v Simmons [2020] NSWDC 81 (3 April 2020) at [92]-[93].
  

• Cf. R v Sapform [2020] NSWDC 86 at [88]-[89].
  

(viii) Prisoner work limited to essential tasks only 

• Opportunity to work and occupy oneself meaningfully in prison reduced as prisoner work limited to essential tasks will add to stress of time in custody and has some effect in mitigation, along with suspension of visits and anxiety regarding virus in prison: DPP v Tennison [2020] VCC 343 (26 March 2020) at [36]-[39].
  
  

(ix) Discount - Guilty Plea [Commonwealth offences; and NSW offences to which Part 3, Div 1A Crimes (Sentencing Procedure) Act 1999 does not apply]

• Chenhall v R [2021] VSCA 175 (18 June 2021) In certain cases, a plea of guilty during COVID-19 pandemic should be accepted as augmenting the utilitarian value of the plea,  so that it should therefore be accorded additional weight as a mitigating circumstance; a plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time: at [33]; Worboyes v R [2021] VSCA 169. Applied Perrin v R [2021] NSWDC 408 (17 August 2021) at [120].

• R v Diez [2020] NSWDC 351 (6 July 2020) Commonwealth offences; s16A(2)(g) Crimes Act 1914 (Cth). Relatively late plea for drug importation; guilty plea has some real utilitarian value in current circumstances of substantial stresses on court's capacity to conduct jury trials: at [37]-[38].

(x) Discount – election for trial by judge alone

• A discount of 5% was granted for the utilitarian benefit of an election for trial by judge alone during the COVID-19 pandemic (s 22A Crimes (Sentencing Procedure) Act 1999). The election served to reduce delays and case backlog when jury trials resume, and was beneficial to the Court and community generally in allowing Court to continue with provision of an 'essential service': R v Ross (No. 5) [2020] NSWDC 306 (12 June 2020) at [33], [36]-[37].
  

(2) Appeals

SF v The Queen [2022] NSWCCA 216 (7 October 2022)

Fail to take into account that Covid-19 pandemic renders conditions of imprisonment more onerous - appeal allowed

• Sentencing judge had indicated at sentence hearing intention to take into account as a circumstance of mitigation the likely impact of the Covid-19 pandemic on applicant's conditions of imprisonment, indicating that he intended to give it "significant weight". 
  
• Where sentence handed down two months after sentence hearing, it cannot be inferred from Remarks that judge did in fact do so.  The Remarks make no reference to applicant's likely conditions of imprisonment either generally or consequent to the impact of Covid-19 pandemic on prison system and, in particular, it is not a bases identified for a finding of special circumstances.
  

R v Toller [2021] NSWCCA 204 (27 August 2021) 

Impact of pandemic on custodial conditions not to be taken into account for offenders sentenced before pandemic 

• It is not a basis for intervention by this Court with a sentence where, after the time of sentence, the offender’s conditions of custody have been rendered more onerous because of the imposition of restrictions by the prison authorities in response to the threat posed by a pandemic: at [23]-[25]; Cabezuela v R [2020] NSWCCA 107; Borg; Gray v R [2020] NSWCCA 67. 

Doudar v R [2021] NSWCCA 37 (18 March 2021)

Absence of evidence concerning applicant's particular case - judge not obliged to expand upon observations regarding pandemic's effect on custodial conditions for prisoners generally.

• The COVID-19 pandemic and its implications for conditions of incarceration may and often should be taken into account: Scott v R [2020] NSWCCA 81 at [166]; McKinnon v R [2020] NSWCCA 106 at [32]: at [72].
  

• Contrary to the situation in Scott v R, there was no evidence as to any particular impact of the COVID-19 pandemic on the applicant. The sentencing judge took judicial notice of restrictions for visits and reduction in rehabilitative programs. In the absence of evidence concerning the applicant's particular case, the judge was not obliged to expand upon his observations of the effect that the pandemic was known to have on custodial conditions for prisoners generally. The judge properly took into account the well-known impacts of COVID-19 on the custodial environment and was not required to do anything further: at [73]-[74].
  

Cabezuela v R [2020] NSWCCA 107 (25 May 2020) (Judicial Commission NSW summary)

Inadmissibility of Covid-19 as fresh evidence - where sentence not manifestly excessive

• Following refusal of leave to appeal on ground sentence was manifestly excessive,  the Court held evidence of the COVID-19 pandemic and its relationship to the applicant's advanced age, ill-health and custodial arrangements was not admissible as fresh evidence: (i) The evidence was not fresh evidence in the sense that there was any material relating to COVID-19 existing at the relevant time, the import of which was not known or not fully appreciated; thus was not admissible on appeal as a matter of general principle (Borg v R; Gray v R [2020] NSWCCA 67 at [46]): at [126]. (ii) The additional burden due to subjective factors (age, health) were given considerable weight by the sentencing judge and is not challenged. The new evidence may not be utilised to impugn the sentence not otherwise susceptible to challenge on manifest excess grounds: at [127]-[131]; Scott v R [2020] NSWCCA 81 distinguished. (iii) This is not a case where receipt of the material may have impacted upon the sentence imposed, or where a comparatively short sentence may have been affected by new evidence of an additional burden upon the appellant. Given the nature and seriousness of offending (historical child sexual abuse), even if substantially greater weight were given to subjective factors and custodial restrictions no different sentence would properly follow: at [132].

Scott v R [2020] NSWCCA 81 (30 April 2020) (Judicial Commission NSW summary)

Sentence appeal - COVID-19 on re-sentence - advanced age - ill-health.

• On re-sentence, additional evidence and submissions regarding COVID-19 taken into account (no such ground having been raised; and as sentence found to be manifestly excessive it was not necessary to decide if evidence regarding COVID-19 was admissible as fresh evidence): at [164].
• Of particular relevance is applicant's advanced age (71 years), asthma and medical conditions making him vulnerable to potentially grave complications should he contract virus.  Suspension of visits makes incarceration more onerous: at [166].
  

RC v R; R v RC [2020] NSWCCA 76 (22 April 2020) (Judicial Commission NSW summary).

Crown appeal – residual discretion not to intervene - COVID-19 pandemic - advanced age and respiratory ill-health

• On Crown appeal against sentence, the Court held the sentence imposed (community corrections order) is manifestly inadequate, however, the Court exercised its residual discretion not to intervene, in the unusual circumstances of this case. 
• A custodial sentence will be more onerous; the respondent, of advanced age and suffering from a long-term bronchial condition, will experience a level of stress, anxiety, and even fear at potentially fatal consequences were he to be infected in prison: [2], [7], [253]-[255].
• The respondent's age and respiratory condition, particularly in the present pandemic, would justify a finding of special circumstances to permit departure from the ordinary statutory ratio (s 44(2) Crimes (Sentencing Procedure) Act 1999): at [252].
  

Borg; Gray v R [2020] NSWCCA 67  (9 April 2020) (Judicial Commission NSW summary)

• No error established, therefore Court will not consider additional submissions on COVID-19 as Court not entitled to re-sentence: at [7], [10], [48]. Review of sentence a matter for Executive Government: at [9], [10], [46].
  

Other jurisdictions:

Wyka & Gardiner v The Queen [2020] VSCA 104 (1 May 2020) [No error on sentence; COVID-19 pandemic a "rare and exceptional" event, however, effects on added hardship not admissible as fresh evidence in support of stand-alone ground of appeal; where subsequent event has made sentence excessive is matter for Executive; may be otherwise where error established: at [157]-[163]]. 

E.   COVID-19 AND OTHER PROCEEDINGS / ISSUES

• Pre-Recorded Evidence Hearings In Response To Covid-19: Issues To Consider - Caitlin Akthar (PDF)
  

• Navigating the New Laws Allowing For Pre-Recorded Evidence In Hearings (Podcast) https://legalaidnsw.podbean.com/ - Caitlin Akthar and Jonathon Paff - Legal Aid NSW (25 May 2020) (podcast)
  

• Inclusive justice: a system designed for all -  Interim evidence report, Video hearings and their impact on effective participation,  Equality and Human Rights Commission (UK), April 2020

• Video Enabled Justice Evaluation Final Report - Professor N Fielding et. al., University of Surrey, March 2020 (PDF) Evaluation of booking tool for use in organising first appearance remand hearings by video.  Background & summary at Sussex Police and Crime Commissioner (UK)

•  R v Warren Scott [2021] NSWSC 1004 (22 September 2021) Application granted - murder - substantial impairment.
  
• R v Kerollos [2020] NSWSC 1758 (8 December 2020) Application granted - murder trial - mental illness and substantial impairment - credibility of accused a neutral issue - COVID-19 delays a significant factor in interests of justice.
  
• R v Jaghbir (No 2) [2020] NSWSC 955 (29 July 2020) Application granted – procure and counsel persons to commit murder - determination of application is entirely related to COVID-19 pandemic; it otherwise would have been rejected: at [15] – purpose of s 365 Criminal Procedure Act is to facilitate more judge-only trials: at [23] – "interests of justice also extend to the public interest in the due administration of justice" – in the interests of justice that criminal trials should proceed with least chance of interruption and delay during current crisis: at [30]-[31].
  
• R v McCloskey (No 2) [2020] NSWSC 786 (24 June 2020) Application granted where prior application had been made before another judge and refused – murder trial - circumstances arising out of current COVID-19 pandemic were not factors at time of first application - trial previously vacated – 4-6 week trial - substantial risk circumstances could cause trial to be vacated for second time – Criminal Procedure Act 1986, ss 132A.
  
• Regina v BD (No. 1) [2020] NSWDC 150 (29 April 2020) "Interests of justice" including: intention of Parliament that "the business of the court is to continue"; application by accused; considerable delay if delayed until matter heard by jury; accused in custody since arrest and likely remain in custody until trial: at [32], [40]-[43].
  
• R v Johnson [2020] NSWDC 153 (30 April 2020) Factors taken into account in assessing "interests of justice" include: request by and informed agreement of accused; need for complainant to give evidence in a timely and expeditious manner; to shorten 'state of suspense' hanging over accused; adjournment would result in unacceptable delay: at [19]-[24].
  
• R v MPW [2020] NSWDC 170 (4 May 2020) Matters including: administration of justice would be slowed: at [22].
  
• R v Swain [2020] NSWDC 198 (11 May 2020) Matters including: Crown relying on tendency evidence; significant time in custody: at [24]-[26].
  
• R v DLW [2020] NSWDC 205 (15 May 2020) Where not possible to hear back-to-back trials – Matters including: substantial weight to agreed position between Crown and accused that no community standards will be brought to bear in adjudication of accused’s guilt; No overt legal or factual complexity which might typically incline Court determine trial proceed by judge alone: at [11], [22]-[30].

• R v Brookman [2021] NSWDC 110 (25 March 2021) Application refused – amongst other considerations, Covid-19 pandemic not considered as having any real weight at this time due to current management.

• R v Flame [2020] NSWSC 1013 (5 August 2020) Application refused – opposed by Crown - foreshadowed defences of mental illness, substantial impairment, excessive self-defence – whether substantial impairment will require practical consideration by jury – difficulties in judicial officer determining central normative element of substantial impairment.
  R v Camilleri [2020] NSWSC 951 (24 July 2020) Application refused – single factual issue in dispute – substantial impairment – application of community standards – importance of community participation.

Law enforcement & Police Powers

Articles

• Law enforcement and police powers in NSW during COVID-19 – Anthony Levin and Trish Kashyap, Judicial Officers Bulletin, May 2020 Volume 32 No 4 

• COVID-19 and Mental Health Issues for NSW Prisoners: Report to Legal Aid NSW - Dr Andrew Ellis, Consultant Forensic Psychiatrist, 9 April 2020 (PDF)

• Expert Report: Covid-19 and Prisons in England and Wales - Professor Richard Coker, Emeritus Professor of Public Health at the London School of Hygiene and Tropical Medicine (LSHTM), 31 March 2020 (extenal link)

• See also: Report on Coronavirus and Immigration Detention - Professor Richard Coker, 17 March 2020 (PDF)
  

• See also: Supplementary Report on Coronavirus and Immigration Detention - Professor Richard Coker, 18 March 2020 (PDF)
  

Information from national and international NGOs

• Preparedness, prevention and control of COVID-19 in prisons and other places of detention – Interim guidance, WHO Regional Office for Europe, 15 March 2020 (PDF)

• Coronavirus: Healthcare and human rights of people in prison - briefing note, Penal Reform International, 16 March 2020 (PDF)
  

• 'Urgent action needed to prevent COVID-19 "rampaging through places of detention"' - Michelle Bachelet, UNHCHR, 25 March 2020

Information and data from other jurisdictions about COVID-19 in prisons

• 'Press release from Legal Aid Society re NYC jail infection rates 25.3.2020' (PDF - jail infection rates are more than seven times higher than in the general NYC community) - Legal Aid Society NYC Covid-19 up-to-date infection tracking in NYC jails

Articles and other information about "de-carceration" and COVID-19

Prisons - Other relevant information

G.   OTHER USEFUL INFORMATION AND LINKS

Other information and links about courts, the law and COVID-19

• Judicial Commission NSW, COVID-19 Legislative Changes, Newsletter 3 April 2020 (PDF)
  
• Judicial Commission NSW, COVID-19 Legislative Changes and Case Law Summaries, Newsletter 17 April 2020 (PDF)
  
• Judicial Commission NSW, COVID-19 Case Law Summaries, Newsletter 8 May 2020 (PDF)
• Judicial Commission NSW, COVID-19 Legislative Changes and Case Law Summaries, Newsletter 25 May 2020 (PDF)
• Principles on Jury Trials in the Context of COVID-19 – Law Council of Australia, May 2020
• Principles for Facilitating  Access to Justice for  Marginalised and Vulnerable Groups as a Result of the COVID-19 Pandemic – Law Council of Australia, May 2020
• Novel Coronavirus (COVID-19): Information for NSW Criminal Law Practitioners - Martin Bernhaut, Legal Aid NSW, (v2) 16 April 2020 (PDF)
• Extensive list of links on various Covid-19 issues relevant to criminal law and justice - Andreea Lachsz, last updated 28/06/20 (PDF)
• Online textbook: COVID-19 and the Law of Australia - E Nekvapil, M Narayan & S Brenker (May 2020)
• Summary of Australian court arrangements during COVID-19 pandemic: Judicial College of Victoria - Coronavirus and the Courts

COVID-19, wellbeing, OH&S, financial issues etc for criminal lawyers 

• Mental Health Counsellor Robyn Bradey's 15 minute advice for Legal Aid lawyers under COVID-19 (Provided with the Permission of Robyn Bradey and Legal Aid NSW
  
• Black Dog Institute, Managing your health at home: information about working from home during COVID-19 (PDF)
  
• COVID-19 Tax Relief Measures: What relief is available for barristers? - PWC, for Australian Bar Association, 1 April 2020 (PDF)