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Public Defenders

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

Acknowledgements


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:

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

B.   EMERGENCY LEGISLATION IN RESPONSE TO COVID 19


C.   COVID-19 AND BAIL

Articles, summaries, suggested submissions etc

Cases

(i) Bail - New South Wales:

Rakielbakhour v DPP [2020] NSWSC 323 (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 [12]-[16];  Re Broes [2020] VSC 128; Brown (aka Davis) v The Queen [2020] VSCA 60.

  •  s 18 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 [15].

  • s 16 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 [18].

  •  Condition applicant be subject to form of house arrest with enforcement condition (s 30) is akin to “self-isolation”:  [20].


Gray (a pseudonym) [2020] 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 [18]-[19],  [21].


R v Davis [2020] 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 [35].
  • 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 [36]-[41]


(ii) 'special vulnerability' (s 18(1)(k) Bail Act 2013 (NSW))

Aboriginality

Rakielbakhour v DPP [2020] 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 [15]

Re Kennedy [2020] 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 [6]

See also:

Thomas v Kitching [2020] VSC 206(Croucher J) (23 April 2020) at [69]-[71]


Child – Juvenile / Youth  

R v JK [2020] VSC 160 (Hollingworth J) (1 April 2020)

Manslaughter – minimal criminal history.  Bail granted – 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].

See also:

Re JB [2020] 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 [40]-[42]]


(iii) Bail - Other Jurisdictions:

Re Diab [2020] VSC 196 (Beach JA) (21 April 2020) 

Summary of propositions regarding COVID-19 on bail matters

At [38]: 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."


AffirmedThomas v Kitching [2020] VSC 206 (Croucher J) (23 April 2020) at [91]-[92]; Che Ashton [2020] VSC 321 (Elliot J) (27 April 2020) at [58]-[61]


Re Broes [2020] VSC 128  (Lasry J) (19 March 2020)

Bail granted.  Exceptional circumstances established (Bail Act 1977 (Vic)):

  • Significant delays due to COVID-19 pandemic: at [35]-[38]; [46]. Likelihood time on remand will exceed sentence: at [41]
  • Take into account applicant would suffer consequences of any lockdown in prison should virus spread in prison: at [39]-[40].


Re Tong [2020] VSC 141 (Tinney J) (26 March 2020)

Bail granted. Exceptional circumstances established (Bail Act 1977 (Vic)): 

  • Significant delays: at [30]-[31]; Re Broes [2020] VSC 128. Time on remand may substantially exceed sentence: at [35]-[36]
  • Additional stress and concern for prisoners and families: at [32];  Brown (aka Davis) v The Queen [2020] VSCA 60 at [48] 
  • Current health crisis will not in every case lead to exceptional circumstances or bail. These matters are part of surrounding circumstances to be taken into account in bail process: at [33].


Other considerations:

  • 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 (Elkaim J) (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 (Incerti J) (21 April 2020)


See further:

Bail granted -

Re McCann [2020] 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 [38]-[41] - Bail granted. 

JMT [2020] 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 [33]-[36] - COVID-19 will undoubtedly cause delay: at [50], [84] – Flight; limited movement due to COVID-19  – not primary offender; difficulties in Crown case – Bail granted.

Bail refused -

Re El Refei [No 2] [2020] VSC 164 (Incerti J) (8 April 2020)   COVID-19 to be considered as part of all surrounding circumstances: at [24]; Re Tong [2020] VSC 141 at [33] - Very serious offences, including aggravated home invasion - COVID-19 delays and other matters relied upon not exceptional circumstances - Bail refused.

Re Young [2020] 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] [2020] 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) [2020] 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 [18]-[19]

Barton v R [2020] 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

Cases

(1) Sentence - Appellate decisions


Valentine v R [2020] NSWCCA 116 (Wright J; Harrison J and R A Hulme J) (4 June 2020)

Re-sentence - impact of COVID-19 on applicant in custody - reference to Expert reports regarding impact of COVID-19

  • On re-sentence (possess child abuse material), the Court took into account evidence concerning the COVID-19 pandemic and its impact upon the applicant while in custody: at [59].  The Court:
  • (i) accepted the opinions of Dr Andrew Ellis in his report "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, although this general evidence was not entirely applicable in the applicant's case: at [60].
  • (ii) bore in mind report from Professor Tony Butler & others, Kirby Institute, University of NSW, "Report on COVID-19 and the impact on New South Wales prisoners", 16 April 2020. (Noted report may be somewhat out of date in relation to the assumptions made as to likely or possible progress of the disease): at [60].
  • (iii) had regard to document from Corrective Services NSW website,  "COVID-19 (coronavirus) response": at [61].
  • Steps taken in correctional centres to avoid risk of COVID-19 have had significant negative impacts upon inmates' well-being and as outlined in the applicant's affidavits: at [62].
  • 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 [62].

Note: The reports referred to are available below under "F. COVID-19 and Prisons & Detention Centres"


McKinnon v R [2020] NSWCCA 106 (Payne JA; Beech-Jones J, N Adams J)(27 May 2020)

Re-sentence - onerous conditions of incarceration due to Covid-19 taken into account - Scott v R [2020] NSWCCA 81

  • On re-sentence (for drug supply offences) the Court said that, like other prisoners, the appellant has been in physical isolation from the outside world although recently has had video contact with family. The evidence demonstrates that the effect of his imprisonment on his wife and children has been significant. Whilst not evidence of extraordinary hardship, the more onerous conditions of incarceration due to the Covid-19 pandemic nonetheless should be taken into account in sentencing: at [32]; Scott v R [2020] NSWCCA 81.

Cabezuela v R [2020] 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 [2020] NSWCCA 67 at [46]): at [126].
  • (ii) The appellant relies on Scott v R [2020] NSWCCA 81 to contend the evidence may be received on appeal as new evidence as an exception to the general rule (Douar v R (2005) 159 A Crim R 154 at [56])).  However, in Scott the Court was not required to consider the application of those principles as the sentence imposed was, in contrast to the present matter, manifestly excessive. Rather, evidence as to implications of COVID-19 was taken into account for re-sentencing. The authorities in Scott (at [163]) did not provide a basis for admission of new evidence on COVID-19: at [127]-[130]; authorities discussed. 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 [131].
  • (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. The nature and seriousness of the offending (historical child sexual abuse) are such that even if substantially greater weight were given to subjective factors (age, ill-health) and custodial restrictions, no different sentence would properly follow: at [132].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 [133].


Scott v R [2020] 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 - suspension of visits

  • 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 (Wilson J; RA Hulme J and Hamill J) (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].


See further:

Borg; Gray v R [2020] NSWCCA 67 (Adamson J; McCallum JA and Johnson J) (9 April 2020) [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] (Judicial Commission NSW summary available)]

Other jurisdictions:

Wyka & Gardiner v The Queen [2020] 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 [157]-[163]]

Brown (aka Davis) v The Queen [2020] VSCA 60 (23 March 2020)[Acknowledge prisoners suffering additional stress - extent to which that may be taken into account to be resolved on the particular facts of any individual case: at [48]]



(2)  Sentence

Factors on sentence relating to COVID-19:


(i) Additional stress for prisoners  

Brown (aka Davis) v The Queen [2020] VSCA 60 (Priest and Weinberg JJA) (23 March 2020) 

  • "[48] With regard to the COVID-19 pandemic, ... In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle ... . We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, ... . The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case."

See:

R v Despotovski [2020] NSWDC 110 (Haesler SC DCJ) (15 April 2020) 

  • Prisoners cannot practice physical distancing - Absence of visits from family and friends and heightened anxiety and concerns are relevant factors that must be synthesised along with all other matters (Brown (aka Davis) v The Queen [2020] VSCA 60 at [48]) - Offender's depression and anxiety will be exacerbated: at [35]-[39]

R v Fiordelli [2020] 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 (ICO) 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 [2020] VSCA 60; at [100]-[103], [104], [112]-[119].

R v Hughes [2020] NSWDC 98 (Mahony SC DCJ) (9 April 2020) at [134]-[135]


(ii) Visits

  • Like other prisoners, the appellant has been in physical isolation from the outside world although recently has had video contact with family. Whilst not evidence of extraordinary hardship, the more onerous conditions of incarceration due to the Covid-19 pandemic nonetheless should be taken into account in sentencing: McKinnon v R [2020] NSWCCA 106 (27 May 2020) at [32]; Scott v R [2020] NSWCCA 81.

  • To minimise the risk of the virus entering the prisons all social and family visits have been suspended, making conditions of incarceration of most inmates more onerous: Scott v R [2020] NSWCCA 81 (30 April 2020) at [166]

See also: 


(iii) Onerous custodial conditions 

  • The effect of the strict conditions is that conditions of incarceration are much more difficult. While one can hope conditions will be temporary, some restrictions will be in place for a significant amount of time. 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) [2020] NSWSC 547 (Rothman J) (13 May 2020) at [57]-[58]
  • The consequence of custodial orders currently being served or to be imposed may require isolation of inmates causing additional hardship making imprisonment more onerousR v Kelso [2020] NSWDC 157 (Norrish QC DCJ) (17 April 2020) at [46]
  • See also DPP v Kotiau [2020] VSC 245 (Elliot J) (7 May 2020) Prison system remains free; community infection rate trending downwards. However, it is acknowledged that while the risk of infection remains and related restrictions are in place, the consequences for prisoners are significant: at [75]

Note observation made in the following case that it would be speculative to conclude restrictions will be in place for more than a temporary period-

  • Maxwell v R [2020] NSWCCA 94 (Johnson J; Adamson and Bellew JJ)(8 May 2020) The applicant is housed at a regional correctional centre.  There are some restrictions upon visits and availability of courses as a result of Covid-19.  It would be speculative to conclude that these restrictions will be in place for any more than a temporary period. If the 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].
  • See also R v Barnett [2020] 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 [70]-[71].


(iv) Age and Ill-health 

RC v R; R v RC [2020] 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 (community corrections order) is manifestly inadequate, however,  exercised its residual discretion not to intervene in the unusual circumstances of this case: [2], [7], [255]. 
  • 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 [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].

Scott v R [2020] 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 [166].

See also:

  • R v Madex [2020] VSC 145 Impact of age and higher risk category, custody more onerous, unable to self-isolate in prison:  at [51], [61].


(v) Ill-Health / Higher risk category 

See above:

See also:

  • Cf. R v Hughes [2020] 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 [134]-[136].
  • Although the current crisis in relation to 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 and moderated the sentence to an extent to take that into account: DPP (Cth) v Politpoulos [2020] VCC 338 at [76], [83]


(vi) Rehabilitation 

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

(vii) 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 (Dawes J)(26 March 2020) at [26]

(viii) 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 (Scotting DCJ)(3 April 2020) at [92]-[93]

(ix) Prisoner work limited to essential tasks only 

  • (Victorian case) 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 (Lyon J) (26 March 2020) at [36]-[39]

(x) Guilty Plea (other jurisdictions)

  • 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 [2020] VSC 130 (Jane Dixon J) (16 March 2020) at [32].


E.   COVID-19 AND OTHER PROCEEDINGS / ISSUES

Articles, summaries, suggested submissions, etc

Pre-recording of evidence

AVL

Cases

Judge alone trial - Application by Accused granted (s365 Criminal Procedure Act as introduced by COVID-19 Emergency legislation)

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 [2020] NSWDC 153 at [19];  Regina v BD (No. 1) [2020] NSWDC 150 at [2].

Applications by accused granted (opposed by Crown):

  • Regina v BD (No. 1) [2020] 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 [32], [40]-[43].
  • R v Johnson [2020] NSWDC 153  (Grant DCJ)(30 April 2020) Factors taken into account in assessing "interests of justice" include intent of Parliament that trials continue; 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 (Priestley SC DCJ)(4 May 2020) "Interests of justice" including: delay; extent of further delay uncertain; a judge alone is not to be supposed to not be as able a fact finder than a jury; administration of justice would be slowed: at [22].
  • R v Swain [2020] NSWDC 198 (Abadee DCJ) (11 May 2020) Matters including: Crown relying on tendency evidence; accused significant time in custody; intent of legislation that Courts continue: at [24]-[26].
  • R v DLW [2020] NSWDC 205 (Abadee DCJ)(15 May 2020) Trial listing Gosford 25 May 2020 - where not possible to hear back-to-back trials – Matters including: prospect of delay; substantial weight to agreed position between Crown and accused that no community standards will be brought to bear in adjudication of accused’s guilt, lessening need for trial by jury; time in custody; application by accused; intent of Parliament trials continue. Acknowledge no overt legal or factual complexity which might typically incline Court determine trial proceed by judge alone: at [11], [22]-[30].

Adjournment; virtual courtroom  

Withdrawal by counsel for COVID-19 reasons

  • Kahil v R [2020] NSWCCA 56 (30 March 2020) Interlocutory appeal  Trial judge refused to discharge jury although applicant's trial counsel had withdrawn (due to possible COVID-19)  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) [2020] 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) [2020] 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 [8] - 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 are under unique ACT provisions not replicated in any other Australian jurisdiction.   Under the emergency legislation in NSW, as before COVID-19, the consent of the accused remains a prerequisite for an order for trial by judge alone: see s 365 Criminal Procedure Act 1986 (NSW), as inserted by the Covid-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW). However, the decisions have been cited on the issue of whether a judge alone trial is in the "interests of justice" - see NSW decisions under 'Judge Alone Trial']:

  • R v UD (No 2) [2020] ACTSC 90 (Elkaim J) (20 April 2020) The court concluded tht the trial proceed by judge alone absent consent by the accused, pursuant to ss 68B-68BA Supreme Court Act 1933 (ACT) (as amended by the COVID-19 Emergency Response Act 2020 (ACT)). The parties opposed the making of the order. Under the ACT COVID-19 emergency legislation, the consent of the accused or the Crown is not a requirement for the making of a order: at [6], [15]. The court held that final orders are to be made upon judgment concerning a validity challenge to the legislation: at [76].[see UD v The Queen [2020] HCATrans 59 (29 April 2020)]

Prisoners - duty of care

  • Rowson v Department of Justice and Community Safety [2020] 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.

F.   COVID-19 AND PRISONS AND DETENTION CENTRES

COVID-19 and Prisons: effect on prisons and prisoners 

Expert Reports


Bugmy Bar Book chapter


COVID-19 web pages:  Corrective Services NSW,  Youth Justice NSW & Justice Health

Youth Justice NSW Covid-19 management plans etc

Youth Justice has Covid-19 action plans for each juvenile detention centre and a memorandum about quarantine and isolation.  These are available, upon request and upon an undertaking not to distribute or publish them, to lawyers acting for children in criminal proceedings.  If you have a childrens criminal case and you would like a copy of any of these documents, please contact  YJC19CommandPost@justice.nsw.gov.au

Corrective Services NSW maintains an up to date COVID-19 information page which deals with the status of COVID-19 cases in the corrections system, gaol visit information and reporting requirements for those on community supervision:

https://coronavirus.dcj.nsw.gov.au/services/corrective-services

Youth Justice NSW :

https://coronavirus.dcj.nsw.gov.au/services/youth-justice-nsw

Justice Health:  

https://www.justicehealth.nsw.gov.au/novel-coronavirus


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


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: pdc19feedback@justice.nsw.gov.au 

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


ACKNOWLEDGEMENTS

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.