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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:


DPP (Cth) v Saadieh [2021] NSWSC 1186 (17 September 2021)

Bail granted - membership of terrorist organisation – relevance of COVID-19 – not the "new normal" for purposes of considering bail - applicant suffers from asthma – factors establishing exceptional circumstances

  • The Court rejected the prosecution submission that the Court should approach the matter "on the basis that the current pandemic, and its impact on prisoners, should be treated as "the new normal"" or as a matter of little weight because all inmates are facing the same problems as contrary to a number of authorities: at [46]-[47]. 
  • Relevance of COVID-19 includes that "once the virus is inside the system as it is now there are difficulties controlling its spread and the procedures introduced to do so create more onerous conditions of incarceration", and the inability of the Courts to conduct jury trials during lockdown will result in additional delay: at [48].
  • Factors amounting to exceptional circumstances include potential difficulties in the prosecution case; significant delay and present onerous conditions of incarceration; seeking psychological intervention before arrest.   Other matters playing part in reasoning include the applicant's potential vulnerability due to a medical condition (asthma) in the context of the spread of COVID; and family support: at [55].


Rakielbakhour v DPP [2020] 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 [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].

Gould v R (Cth) [2021] 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;  attempt 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 [42]; R v Achurch (2011) 216 A Crim R 152 at [125] – [126].

Gray (a pseudonym) [2020] NSWSC 390 (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 (30 April 2020)  

Bail variation application refused - reporting condition not varied – s 20A Bail Act 2013

  • The Court refused an application by the applicant (on bail for murder) to vary bail by removal of the reporting condition of five times a week to police.  The reporting did not place at risk to COVID-19 his vulnerable mother (who has asthma and a heart condition and resides with the applicant), his co-accused, or the applicant himself, based on information regarding Katoomba Police Station, incidence of COVID-19 in 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].

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

Aboriginality

  • 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: Rakielbakhour v DPP [2020] NSWSC 323: at [15].
  • 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: Re Kennedy [2020] VSC 187 (17 April 2020) at [6]. 
  • See also Thomas v Kitching [2020] VSC 206 (23 April 2020) at [69]-[71]; Re Hooper (No 2) [2021] VSC 476 (9 August 2021) [Aboriginalty; delay; difficult cusodial conditions due to COVID-19].


Child – Juvenile / Youth  

  • 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].


(iii) Bail - Victoria:

Re Diab [2020] VSC 196; 282 A Crim R 462 (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."

See also: Bail granted; exceptional circumstances established - Re Broes [2020] VSC 128  (19 March 2020)Re Tong [2020] VSC 141 (26 March 2020).

(iv) 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 (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)

(vi) 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

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

  • 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].
Note:-
  • 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].

Speculation regarding restrictions:-

  • 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 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 [2], [7], [253]-[255]. The respondent's age and respiratory condition, particularly in the present pandemic, would 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].

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

  • Cf. R v Hughes [2020] NSWDC 98 (9 April 2020) Diabetes - higher risk category - Covid-19 pandemic cannot be given much weight in this case. No medical evidence of the extent of any illnesses suffered by the offender. No evidence to establish offender is at greater risk than others in custody so as to amount to hardship: at [134]-[136].
  • 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].

(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 (Early Guilty Pleas fixed sentencing discount scheme)]

  • 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

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 (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 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].
  • Applied: R v Toller [2021] NSWCCA 204 (27 August 2021) It is not a basis for intervention by this Court with a sentence where, after the time of sentence, the offenderconditions 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].

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

Articles, summaries, suggested submissions, etc

Pre-recording of evidence

AVL


Cases - Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

  • R v Choi (No 2) [2020] NSWSC 1849 (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 [2020] NSWSC 1731 (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 [26] - Court ordered that each accused could be arraigned via AVL after obtaining formal consent from each party.


Cases - Other Procedural

Judge-alone Trial Applications

The purpose of s365 Criminal Procedure Act (as introduced by COVID-19 Emergency legislation) is to facilitate more judge only trials: at [23] – "interests of justice also extend to the public interest in the due administration of justice": R v Jaghbir (No 2) [2020] NSWSC 955 at [23]; [30]-[31].

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].

Application for judge-alone trial by accused granted:

  • 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].

Application refused:
  • 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.


Adjournment; virtual courtroom  

  • Atanaskovic v Birketu Pty Ltd [2021] NSWCA 11 (17 February 2021) Civil appeal – adjournment application refused – recovery of fees – adjournment sought due to unavailability of senior counsel who had travelled to UK and not able to return due to travel restrictions - interests of justice require hearing not be vacated - public interest in achieving most efficient use of court resources - Civil Procedure Act 2005, s 56 - overriding purpose of Act is to facilitate just, quick and cheap resolution of real issues in civil proceedings.
  • R v Macdonald; Obeid; Obeid (No 11) [2020] NSWSC 382 (8 April 2020)  Application to adjourn proceedings granted – Technical difficulties of virtual courtroom - Impact upon fair trial.  (Judicial Commission NSW  summary available)
  • Capic v Ford Motor Company of Australia Limited [2020] FCA 486 (Perram J) (15 April 2020) Application for adjournment of civil trial refused – Virtual trial – Impact on conduct, length and expense of trial. (Judicial Commission NSW summary available)

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 (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 (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 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 were 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) [2020] ACTSC 90 (20 April 2020) Court concluded 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 [6], [15]. 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)]. 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) [2020] ACTSC 139 (29 May 2020).
  • R v IB (No 3) [2020] ACTSC 103 (30 April 2020) [Court ordered judge alone trial – opposed by both parties]
  • R v Coleman [2020] ACTSC 97 (22 April 2020) [Court ordered judge alone trial – opposed by both parties]

Law enforcement & Police Powers

Articles

Cases - Public Assemblies / Protest cases

  • Commissioner of Police v Thomson [2020] NSWSC 1424 (15 October 2020) Police application to prohibit public assembly refused – protest by National Tertiary Education Industry Union, NSW, in Sydney regarding tax on higher education, jobs at universities and right to demonstrate – low health risks; low number of registrants: at [61]-[63].
  • Commissioner of Police v Holcombe (on behalf of Community Action for Rainbow Rights) [2020] NSWSC 1428 (9 October 2020) Police application to prohibit public assembly granted – protest proposed in Sydney against private legislation regarding gender and sexuality and impact on students in schools – unclear if large numbers may attend: at [57]-[59].   
  • Commissioner of Police (NSW) v Gibson [2020] NSWSC 953 (26 July 2020) Police application to prohibit public assembly granted – protest proposed in Sydney regarding Aboriginal deaths in custody and justice for David Dungay Jnr – public assembly of 500 [Appeal dismissed: Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW) [2020] NSWCA 160; 283 A Crim R 197 (28 July 2020)  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 [2020] NSWSC 867 (4 July 2020) Police application to prohibit public assembly refused – protest in Newcastle by 'Fighting in Solidarity Towards Treaties' to show solidarity with Black Lives Matter movement and Aboriginal deaths in custody - immunity in s 24 Summary Offences Act 1988 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, New South Wales Police Force v Kumar (OBO National Union of Students) [2020] NSWSC 804 (19 June 2020)  - Police application to prohibit public assembly granted – protest proposed in Wollongong by National Union of Students of 500 persons to support Black Lives Matter movement and raise awareness of aboriginal deaths in custody.
  • Commissioner of Police (NSW) v Supple [2020] NSWSC 727 (11 June 2020) Police application to prohibit public assembly granted - protest proposed by Refugee Action Coalition in Sydney to release refugees held in detention.
  • Bassi v Commissioner of Police (NSW) [2020] NSWCA 109; 283 A Crim R 186 (9 June 2020) Protest in Sydney in response to death of George Floyd in USA; Black Lives Matter movement and in memory of David Dungay. The Court held a public assembly had been authorised by the Commissioner of Police. Allowing the plaintiff's 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 

RECENTLY ADDED



Expert Reports


Prisoners - duty of care

  • Rowson v Department of Justice and Community Safety [2020] VSC 236 (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.

COVID-19 web pages:  Corrective Services NSW;  Youth Justice NSW & Justice Health; Department of Communities and Justice

Corrective Services NSW maintains an up to date COVID-19 information page which deals with 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

  • Youth Justice NSW Covid-19 management plans etc. Youth Justice has Covid-19 action plans for each juvenile detention centre and a Covid-19 Management Plan (updated 19 August 2021) which outlines procedures for the management of new admissions and COVID-19 suspected or confirmed cases.  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


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

Department of Communities and Justice: https://www.coronavirus.dcj.nsw.gov.au/

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 

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.