COVID-19 Resources for Criminal Lawyers
Table of contents:
A. Links to Information from Criminal Courts
B. Emergency Legislation In Response To COVID-19
C. COVID-19 and Bail
D. COVID-19 and Sentence
E. COVID-19 and Other Proceedings / Issues
F. COVID-19 and Prisons & Detention Centres
G. Other Useful Information and Links
H. CPD Presentations and Podcasts
I. Feedback about this Page
A. LINKS TO INFORMATION FROM CRIMINAL COURTS
Information about Virtual Courts and AVL Procedures
The Public Defenders have endeavoured to collect the most up to date information about connecting to virtual courts. Practitioners should be aware that practices in individual courts, particularly regional courts, may differ and they should make their own enquiries.
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:
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
B. EMERGENCY LEGISLATION IN RESPONSE TO COVID 19
C. COVID-19 AND BAIL
Articles, summaries, suggested submissions etc
(i) Bail - New South Wales:
Rakielbakhour v DPP  NSWSC 323; 279 A Crim R 280 (Hamill J) (31 March 2020) (Judicial Commission NSW summary available here).
Bail granted – COVID-19 pandemic – delays – prison conditions – ss 16, 18 Bail Act 2013 - self isolation and house arrest
Matters relevant to bail application: prisons susceptible to spread of COVID-19; onerous conditions due to suspension of personal visits; delays in cases being heard and suspension of jury trials; high anxiety levels amongst prisoners; rising rates of COVID-19 cases in Australia and NSW: at -; Re Broes  VSC 128; Brown (aka Davis) v The Queen  VSCA 60.
Bail Act -
COVID-19 pandemic may be relevant to matters including: need for accused to be free for any lawful reason (s 18(1)(m)); length of time likely in custody (s 18(1)(h)); need to prepare for court and obtain legal advice (s 18(1)(l)) impacted by restrictions on prison visits by lawyers; vulnerability of accused (s 18(1)(k)) (relevance to Aboriginal and Torres Strait Islanders noted): at .
Bail Act -
"In some cases, and depending on the circumstances and evidence in a particular case, the issues that the COVID-19 pandemic throw up will be relevant to the question of whether an applicant has shown cause why their detention is not justified:
Bail Act, ss 16A-16B": at .
Condition applicant be subject to form of house arrest with enforcement condition (s 30) is akin to “self-isolation”:
R (Cth)  NSWCCA 27 (5 March 2021)
Bail refused pending conviction appeal in CCA – s 22 Bail Act 2013 "special and exceptional circumstances"
- Elderly offender with health and dental issues adequately addressed by custodial authorities; convicted of attempting to pervert the course of justice (s 43(1) Crimes Act 1914 (Cth)).
- In the absence of clear evidence, the Court does not conclude that Justice Health is unable to or will not discharge its statutory functions to administer appropriate medical and dental treatment to the applicant, including meeting its duty to protect prisoners from infection with COVID-19: at ; R v Achurch (2011) 216 A Crim R 152 at  – .
Gray (a pseudonym)  NSWSC 390 (Rothman J) (1 April 2020)
Bail granted pending conviction appeal in CCA – s 22 Bail Act 2013 "special and exceptional circumstances"
- Delay - arguable case on appeal - NPP to expire before or not long after appeal hearing:at -, .
R v Davis  NSWSC 472 (Wright J)(30 April 2020)
Bail variation application refused - reporting condition not varied – applicant on bail for murder - s 20A Bail Act 2013
- The Court refused the application to vary bail by removal of the reporting condition of five times a week to police. The applicant, on bail for murder, submitted his continued reporting placed at risk to COVID-19 his vulnerable mother (who has asthma and a heart condition and resides with the applicant), his co-accused, the applicant himself and the general community.
The Court did not accept risk of infection to the applicant justified removing the reporting condition based on information regarding Katoomba Police Station, the incidence of COVID-19 in the Blue Mountains region and governmental measures. The Court further stated: "...
the exemption from isolation given under the relevant public health order in cases of gathering at, or travelling to, places in order to fulfil legal obligations, including complying with bail conditions, indicates government authorities do not consider any risk inherent in such compliance is sufficient, at this stage, to outweigh the benefits and community interest in having such legal obligations complied with": at
- In the circumstances of this case, the judge was not satisfied that the real risk to the applicant's mother would be appropriately managed by removing the reporting conditions since (a) the co-accused also lived at the premises and withdrew her application to have identical reporting conditions removed and (b) there was evidence the accused visited other places such as a car yard which would put his mother at risk: at
(ii) 'special vulnerability' (s 18(1)(k) Bail Act 2013 (NSW))
Rakielbakhour v DPP  NSWSC 323 (above)
- COVID-19 pandemic may be relevant to vulnerability (s 18(1)(k)Bail Act 2013); noted material from Health authorities suggests Aboriginal and Torres Strait islanders are particularly susceptible to spread of virus: at
Re Kennedy  VSC 187 (Kaye JA) (17 April 2020)
- Exceptional circumstances established by number of matters, including Applicant's Aboriginality (s 3A Bail Act).
Relevant issues: Prevented from being with family during grieving period for deceased sister; Prohibition on prison visits by family renders remand more onerous;
Particularly vulnerable section of the community with poorer health outcomes, may be at greater risk of serious infection from COVID-19 than otherwise: at
Thomas v Kitching  VSC 206(Croucher J) (23 April 2020) at
Child – Juvenile / Youth
R v JK  VSC 160 (Hollingworth J) (1 April 2020)
Manslaughter – minimal criminal history. Bail granted – compelling reasons include:
Re JB  VSC 184 (Kaye JA) (17 April 2020) [Bail granted – 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
(iii) Bail - Other Jurisdictions:
Summary of propositions regarding COVID-19 on bail matters
: The following propositions have emerged on the way COVID-19 may be relevant in the establishment of exceptional circumstances; and more generally, the way in which the current health crisis may be relevant in a bail application (decisions cited):
"(1) Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence.
(2) The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases. The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail.
(3) The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand. Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
(4) In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail."
Affirmed: Thomas v Kitching  VSC 206 (Croucher J) (23 April 2020) at -;
Che Ashton  VSC 321 (Elliot J) (27 April 2020) at -
Re Broes  VSC 128 (Lasry J) (19 March 2020)
Exceptional circumstances established (Bail Act 1977 (Vic)):
Re Tong  VSC 141 (Tinney J) (26 March 2020)
Bail granted. Exceptional circumstances established (Bail Act 1977 (Vic)):
- 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  ACTCA 16 (Elkaim J) (1 April 2020) at -
- 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  VSC 189 (Incerti J) (21 April 2020)
Bail granted -
Re McCann  VSC 138 (Lasry J) (25 March 2020) Exceptional circumstances: significant delays and not receiving medication due to delay;
possibility of lockdown in prison should virus spread making custody very difficult: at - - Bail granted.
JMT  QSC 72 (Davis J) (9 April 2020) Young offender – Murder – Remand - Any submission concerning COVID-19 must have evidentiary basis (s 15 Bail Act (Qld): at - - COVID-19 will undoubtedly cause delay: at ,  – Flight; limited movement due to COVID-19 – not primary offender; difficulties in Crown case – Bail granted.
Bail refused -
Re El Refei [No 2]  VSC 164 (Incerti J) (8 April 2020) COVID-19 to be considered as part of all surrounding circumstances: at ; Re Tong  VSC 141 at  - Very serious offences, including aggravated home invasion - COVID-19 delays and other matters relied upon not exceptional circumstances - Bail refused.
Re Young  QSC 75 (Lyons SJA) (8 April 2020) Ill-health – No evidence of COVID-19 in prison – Strength of appeal and other considerations – Application pending appeal against conviction and sentence (fraud) dismissed.
(iv) 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]  VSC 164 (Incerti J) (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)  ACTSC 62 (Elkaim J) (23 March 2020)
(v) Overseas jurisdictions:
U.S. v Grobman (PDF) (U.S. District Ct, Sth District of Florida (29 March 2020)
Bail granted - medically-compromised detainee (auto-immune deficiency) in high-risk category – risk of spread in jail - number of U.S. decisions supporting release cited at pp.12-13.
R v J.S., 2020 ONSC 1710
(20 March 2020) (Superior Court of Justice - Ontario) Bail granted - Elevated risk to inmates due to prison conditions: at -
Barton v R  NZSC 24 (25 March 2020) Bail pending appeal refused - Applicant submitted disadvantage in preparing Appeal due to imminent prison lockdown.
D. COVID-19 AND SENTENCE
Articles, summaries, suggested submissions etc.
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
- The 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)  NSWSC 547 (Rothman J) (13 May 2020) at -. Custodial orders may require isolation of inmates causing additional hardship making imprisonment more onerous: R v Kelso  NSWDC 157 (Norrish QC DCJ) (17 April 2020) at .
- However, while the impact of COVID-19 on conditions of incarceration and suspension of visits and contact is relevant (Scott v R  NSWCCA 81; McKinnon v R  NSWCCA 106 at ), 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 on social movement: Moodie v R  NSWCCA 160 (Bell P; Davies and N Adams JJ) (15 July 2020) at .
Observations it would be speculative to conclude restrictions will be in place for more than a temporary period:-
- Maxwell v R  NSWCCA 94 (Johnson J; Adamson and Bellew JJ)(8 May 2020) Where the applicant was 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 -.
- See also R v Barnett  NSWDC 193 (Abadee DCJ)(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 -.
(ii) Impact on well-being; stress and anxiety
Valentine v R  NSWCCA 116 (Wright J; Harrison J and R A Hulme J) (4 June 2020)
- Steps taken in correctional centres to avoid risk of COVID-19 have had significant negative impacts upon inmates' well-being: at 
- Noted the applicant is presently due for parole in September 2020. Even if restrictions are gradually lifted, the applicant will have been adversely affected by the measures for a substantial portion of his sentence: at .
- 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, concerning potential impact of COVID-19 measures on mental health of persons in custody in NSW; (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 . (Note: These reports are available below under "F. COVID-19 and Prisons & Detention Centres").
- 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  VSCA 60 at ). Here the offender's depression and anxiety will be exacerbated: R v Despotovski  NSWDC 110 (Haesler SC DCJ) (15 April 2020) at -
- R v Fiordelli  NSWDC 154 (Yehia SC DCJ) (30 April 2020) (Plea of guilty to Import tobacco products) The Court was satisfied it was appropriate in all of the circumstances to impose term of imprisonment to be served by way of Intensive Correction Order based on combination of two distinguishing considerations (to justify any disparity with co-offenders already sentenced): (i) delay and excellent rehabilitation; and (ii) challenging custodial conditions due to COVID-19 restrictions, including anxiety and stress from potential exposure in gaol and suspended visits: Brown (aka Davis) v The Queen  VSCA 60; at -, , -.
(iii) Age and Ill-health
RC v R; R v RC  NSWCCA 76 (Wilson J; RA Hulme J and Hamill J) (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 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: at , , -.
- 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 .
Scott v R  NSWCCA 81 (Hamill J; Brereton JA and Fagan J) (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 the virus: at .
- R v Madex  VSC 145 Impact of age and higher risk category, custody more onerous, unable to self-isolate in prison: at , .
(iv) Ill-Health / Higher risk category
- Cf. R v Hughes  NSWDC 98 (Mahony SC DCJ) (9 April 2020) Diabetes- higher risk category for COVID-19. The Covid-19 pandemic may be a relevant factor in sentencing. However it cannot be given much weight in this case. There is no medical evidence of the extent of any illnesses suffered by the offender. There is no evidence to establish offender is at greater risk than others in custody so as to amount to hardship: at -.
- Although the COVID-19 pandemic was not sufficient reason to warrant immediate release from custody, or to outweigh other sentencing factors, the Court accepted it is causing added concern to the offender (due to medical condition) and moderated the sentence to an extent to take that into account: DPP (Cth) v Politpoulos  VCC 338 at , .
- 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)  ACTSC 76 ( Elkaim J)(14 April 2020) at .
(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  VCC 347 (Dawes J)(26 March 2020) at .
(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  NSWDC 81 ( Scotting DCJ)(3 April 2020) at -.
(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  VCC 343 (Lyon J) (26 March 2020) at -.
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)  NSWDC 306 (Abadee DCJ)(12 June 2020) at , -.
- 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: R vDiez  NSWDC 351 (Weinstein SC DCJ)(6 July 2020): at -.
- Substantial utilitarian value of guilty plea in light of public health concerns regarding COVID-19 which may have impacted on practical management of a jury; noted that in interim, new jury trials have been suspended: DPP v Bourke  VSC 130 (Jane Dixon J) (16 March 2020) at . Affirmed in R v Nolan  VSC 416 (Taylor J)(10 July 2020) at . See also R v Ross (No. 5)  NSWDC 306 (Abadee DCJ)(12 June 2020).
Doudar v R  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 on sentence: Scott v R  NSWCCA 81 at ; McKinnon v R  NSWCCA 106 at : at .
- 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 -.
Cabezuela v R  NSWCCA 107 (Walton J; Hoeben CJ at CL and Harrison J) (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 the ground the sentence was manifestly excessive, the Court held evidence of the COVID-19 pandemic and its relationship to the applicant's advanced age, ill-health (incl. diabetes, heart disease) and custodial arrangements was not admissible as fresh evidence. Dismissing the appeal, the Court held: (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 it was not admissible on appeal as a matter of general principle (Borg v R; Gray v R  NSWCCA 67 at ): at . (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 -; Scott v R  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 .
- Noted the prison system has not had outbreaks of COVID-19. It may be accepted appellant would be anxious but the risk he faces are moderated by controls by Corrective Services NSW: at .
Scott v R  NSWCCA 81 (Hamill J; Brereton JA and Fagan J) (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 .
- 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 .
RC v R; R v RC  NSWCCA 76 (Wilson J; RA Hulme and Hamill JJ) (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: , , -.
- 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 .
Borg; Gray v R  NSWCCA 67 (Adamson J; McCallum JA and Johnson J) (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 , , . Review of sentence a matter for Executive Government: at , , .
Wyka & Gardiner v The Queen  VSCA 104 (Niall JA and Croucher AJA) (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 -].
E. COVID-19 AND OTHER PROCEEDINGS / ISSUES
Articles, summaries, suggested submissions, etc
Pre-recording of evidence
Cases - Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
R v Choi (No 2)  NSWSC 1849 (Adamson J) (20 December 2020)
Application by Crown for witnesses to give evidence by audio visual link from outside of NSW (from U.S.) granted - application consented to by accused - ss 5B, 22C Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
R v Dougas and Others  NSWSC 1731 (Adamson J) (3 December 2020)
Power of Court to arraign accused outside of New South Wales - ss 22C(2A), 22C(7A) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) - COVID-19 pandemic special provisions – s 22C(2A) entitles each accused to appear by AVL if the Court directs or the parties consent – s 22C(7A) expressly provides that appearance by AVL may take place from a place within or outside New South Wales, including a place outside Australia "if the court directs or the parties to the proceedings consent": at  - Court ordered that each accused could be arraigned via AVL after obtaining formal consent from each party.
Cases - Other Procedural
Judge-alone trial applications (s365 Criminal Procedure Act as introduced by COVID-19 Emergency legislation)
The purpose of s 365 Criminal Procedure Act is to facilitate more judge only trials: at  – "interests of justice also extend to the public interest in the due administration of justice": R v Jaghbir (No 2)  NSWSC 955 at ; -.
The single test governing the power to grant a trial by judge alone pursuant to s365 is that of the 'interests of justice': R v Johnson  NSWDC 153 at ; Regina v BD (No. 1)  NSWDC 150 at .
Applications by accused granted (opposed by Crown):
- R v Kerollos  NSWSC 1758 (RA Hulme JA) (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)  NSWSC 955 (Davies J) (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  – purpose of s 365 Criminal Procedure Act is to facilitate more judge-only trials: at  – "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 -.
- R v McCloskey (No 2)  NSWSC 786 (Davies J) (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)  NSWDC 150 (Lerve DCJ)(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
R v Johnson  NSWDC 153 (Grant DCJ)(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 -.
R v MPW  NSWDC 170
(Priestley SC DCJ)(4 May 2020) "Interests of justice" including: administration of justice would be slowed: at
R v Swain  NSWDC 198 (Abadee DCJ) (11 May 2020) Matters including: Crown relying on tendency evidence; significant time in custody: at
R v DLW  NSWDC 205 (Abadee DCJ)(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
- R v Flame  NSWSC 1013 (Button J) (5 August 2020) Application for judge-alone trial 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.
Adjournment; virtual courtroom
Withdrawal by counsel for COVID-19 reasons
- Kahil v R  NSWCCA 56
(30 March 2020) Interlocutory appeal
– Trial judge refused to discharge jury although applicant's trial counsel had withdrawn (due to possible
– Failed to address key question: whether trial likely to be unfair if applicant were forced on unrepresented – Discretion to grant or refuse adjournment miscarried (Judicial Commission NSW summary available)
Application to vacate listed hearing
R v Collaery (No 5)  ACTSC 68 (Mossop J) (31 March 2020) Hearing vacated
-Lengthy delay likely; older witnesses; travel restrictions on witnesses; impact on defendants' ability to prepare for hearing - application consented to by all parties.
Juror discharged; trial proceeds with jury of 10
R v WE (No.18)  NSWSC 373
(Bellew J) (7 April 2020) Crown application for discharge of juror granted –
Illness; accused's third trial; jury already deliberated for six days – Impact of COVID-19 pandemic noted: at  - Order to proceed with jury of 10.
A.C.T - Judge alone trial ordered by court in absence of accused consent [Note: The following decisions were under then unique ACT provisions (s 68BA Supreme Court Act 1933 (ACT)) which allowed a court to make an order for trial by judge alone, absent consent of the accused and Crown. Those provisions are now repealed (on 9 July 2020 by the COVID-19 Emergency Response Legislation Amendment Act 2020 (No 2) (ACT)). Under NSW emergency legislation, as before COVID-19, consent of the accused remains a prerequisite for an order for trial by judge alone: see s 365 Criminal Procedure Act 1986 (NSW). However, the ACT decisions are cited by NSW courts on the issue of whether a judge alone trial is in the "interests of justice" - see above, 'Judge Alone Trial'].
R v UD (No 2)  ACTSC 90 (Elkaim J) (20 April 2020) The court concluded the trial proceed by judge alone absent consent by the accused (ss 68B-68BA Supreme Court Act 1933 as amended by the COVID-19 Emergency Response Act 2020 (ACT)): at , . Final orders are to be made upon judgment concerning a validity challenge to the legislation: at  [see
UD v The Queen HCATrans 59 (29 April 2020)]. Note: Following resumption of jury trials in the ACT, this matter was removed from the High Court and an order made to proceed before a jury taking into account accused's lack of consent to judge alone and trial can be conducted in accordance with health safety measures: R v UD (No 3)  ACTSC 139 (Elkaim J)(29 May 2020).
- R v IB (No 3)  ACTSC 103 (Murrell CJ) (30 April 2020) [Court ordered judge alone trial – opposed by both parties]
R v Coleman  ACTSC 97 (Elkaim J) (22 April 2020) [Court ordered judge alone trial – opposed by both parties]
Law enforcement & Police Powers
- Commissioner of Police v Thomson  NSWSC 1424 (15 October 2020) Police application to prohibit public assembly refused – s 25 Summary Offences Act 1988 - protest in public park regarding Federal Government tax on higher education, jobs at universities and right to demonstrate – low health risks; comprehensive COVID-19 safety plan; low number of registrants; no indication of large number of persons attending - Court does not compare relative risks of other gatherings or worth or value of other public assemblies that have been prohibited or authorised: at -.
- Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW)  NSWCA 160 (28 July 2020) The Court dismissed the appeal from an order by the Supreme Court prohibiting a proposed public assembly. The Court held the Supreme Court's jurisdiction to entertain an application to prohibit a proposed public assembly did not depend on compliance with s 25(2) Summary Offences Act 1988 (which sets out a process of conferral and that the Commissioner shall not make an application to prohibit a public assembly unless a particular procedure is followed).
Commissioner of Police (NSW) v Gray  NSWSC 867 (4 July 2020) Application by the Commissioner for an order prohibiting a public assembly refused. Having regard to evidence that the risk of transmission of COVID-19 was low, the public interest in free speech and freedom of association outweighed public health concerns. The Court found the immunity in s 24 would protect participants in an authorised public assembly from criminal prosecution for breach of cl 18 Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW) which makes participating in an outdoor public gathering of more than 20 people an offence under the Public Health Act 2010 (NSW).
Commissioner of Police (NSW) v Supple  NSWSC 727 (11 June 2020) The Court made an order prohibiting the holding of a public assembly (of up to 200 people) pursuant to s 25(1) Summary Offences Act 1988. In the present context of the Covid-19 pandemic, the balancing of public health risks as a result of the success of Governmental public health measures, outweighs, in the balance, the rights to public assembly and freedom of speech.
Raul Bassi v Commissioner of Police (NSW)  NSWCA 109 (9 June 2020) The Court held a public assembly had been authorised by the Commissioner of Police. Allowing the appeal, the Court found that the appellant had given notice of intent of the public assembly (of up to 50 people) to the Commissioner under s 23(1) Summary Offences Act 1988, that an amendment of notice within time (that up to 5000 people would now attend) had the effect that a new notice had been given, and that the Commissioner had notified the appellant that the holding of a public assembly as described in the amended notice was not opposed.
F. COVID-19 AND PRISONS AND DETENTION CENTRES
COVID-19 and Prisons: effect on prisons and prisoners
Bugmy Bar Book chapter
Prisoners - duty of care
- Rowson v Department of Justice and Community Safety  VSC 236 (Ginnane J) (1 May 2020) Tort – Interlocutory application by applicant to be released from prison for health reasons – Whether prima facie case duty of care breached – To ensure applicant's health preserved for purposes of litigation - Adjourn summons for risk assessment.
Information from national and international NGOs
Information and data from other jurisdictions about COVID-19 in prisons
Articles and other information about "de-carceration" and COVID-19
'Why prisons in Victoria are locked up and locked down' - Lesley Russell, Adjunct Associate Professor, Menzies Centre for Health Policy, University of Sydney, 23 July 2020
Why releasing some prisoners is essential to stop the spread of coronavirus' - Thalia Anthony, Professor in Law, University of Technology Sydney, 18 March 2020
Explainer: how will the emergency release of NSW prisoners due to coronavirus work?– Thalia Anthony, Professor in Law,
University of Technology Sydney, 25 March 2020
'We need to consider granting bail to unsentenced prisoners to stop the spread of coronavirus' - Rick Sarre,
Professor of Law and Criminal Justice, University of South Australia; Lorana Bartels, Professor & Program Leader of Criminology, Australian National University; and Toni Makkai, Emiritus Professor, Australian National University, 26 March 2020
'Coronavirus is a ticking time bomb for the Australian prison system' - Thalia Anthony, Professor in Law,
University of Technology Sydney, 26 March 2020
- Prisons and custodial settings are part of a comprehensive response to COVID-19 – S Kinner et.al., 17 March 2020
Prisons - Other relevant information
Inspector of Custodial Services: Women on Remand Report (February 2020) (PDF) - Note:
Aspects of the Women on Remand report may be relevant on COVID-19 bail/sentence submissions. For example: Chapter 7: Access to health :services identified deficiencies in timely access to medical and mental health care at certain correctional centres before COVID-19. Chapter 10: Maintaining family relationships discusses the importance of women inmates maintaining family relationships and issues that impeded this before COVID-19.
G. OTHER USEFUL INFORMATION AND LINKS
Other information and links about courts, the law and COVID-19
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
H. CPD PRESENTATIONS AND PODCASTS
I. FEEDBACK ABOUT THIS PAGE
We welcome any feedback about how we can improve this resource page.
Please send us links to, or copies of, any additional cases, articles, cases or other relevant information. Please ensure that such information is in the public domain, or has been released with the appropriate consents or authorities.
If you are appearing, or have appeared, in a case involving Covid-19 issues, you may want to ask the judicial officer to publish the decision on CaseLaw and then send us the link.
Please contact us and send any information to: email@example.com
If you would like to provide confidential feedback about how the emergency COVID-19 practice changes are working, please use our COVID-19 FEEDBACK FORM
The Public Defenders acknowledge the assistance of the Aboriginal Legal Service, UTS, Professor Richard Coker, Public Defenders Research Lawyer Prita Supomo, volunteer Lauren Stefanou and the
Bugmy Bar Book to the content of this page.