The ‘Coronavirus Effect’ On the NSW Court System

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The impact of Coronavirus has hit the Australian legal system, with announcements in recent days that new criminal trials in Victoria and the Northern Territory will be delayed until further notice.

No new jury trials

In New South Wales, all new Supreme and District Court jury trials have been suspended until further notice, although existing trials will continue. Of particular concern is the risk to jury participants. For now, Judge alone trials, bail applications and civil trials will proceed as normal.

Changes to local court procedure

However earlier this week The Chief Magistrate of the Local Court has issued a memorandum, outlining steps it is taking to mitigate the potential risk of exposure and spread of the Coronavirus.

The Local Court has more than one million visitors a year and the measures are specifically designed to handle as many matters as possible remotely – by phone call, email or audio visual link, to ensure that people don’t actually have to be in the Local Court, at risk of contamination.

The Local Court has determined that, for the foreseeable future:

  • Wherever possible, all appearances by persons in custody, whether from a

Correctional centre or a police station are to be by audio visual link (AVL).

  • List matters that are currently pending before the Court but which are not

listed for hearing or sentence can be dealt with electronically.

  • A lawyer may represent a client in court on their behalf. The memo states that ‘Where a person is legally represented an appearance will be deemed to be a physical appearance where the legal representative communicates the fact of their representation and the nature of their request to the court.’
  • The first return date in matters where the defendant is not legally represented

may also be dealt with by email containing any request for adjournment and the reason for the request.

Entering a plea of guilty

Defendants who are representing themselves and wish to enter a plea of guilty can notify the court of that fact by email or email or by written plea. They will not be required to attend for sentencing unless the presiding magistrate considers that the offence is so serious that their attendance is absolutely necessary.

If the court decides attendance is required, then the court will adjourn the matter and advise the defendant in writing. Any communication between defendants and the court should include a range of personal contact information including an email address, residential address or mobile telephone number for communication of a response by electronic or written means including by SMS.

Entering a plea of ‘not guilty’

A legal representative or unrepresented defendant may advise the court by email or in writing of a plea of not guilty. The court will make orders for service of the brief of evidence if required and advise the legal representative or defendant by electronic means.

At the return date of the brief of evidence the legal representative or the defendant may advise the court by electronic means as to whether the plea of not guilty is maintained or changed, and in so doing, the range of dates upon which they will be available for the matter to be heard.

The court will deal with this information in the absence of the legal representative/ defendant and inform them of the date fixed for the hearing. The usual arrangements under the Court’s Practice Direction for applications to vacate a hearing date will continue to operate. These do not require the attendance of a party unless the court directs an appearance.

The court will be cautious in dealing with matters in the absence of a defendant. If there is no appearance by a defendant and no communication as to the approach to be taken in relation to the matter before the court the court will adjourn the proceedings until a date in June 2020 and advise the defendant.

Apprehended Violence Orders

The Court will not require the attendance of the person in need of protection (or PINOP) for any application brought by police over a Apprehended Violence Order unless the proceedings have been listed for a hearing.

Proceedings currently listed for hearing

The legal representative of a defendant who has a matter listed for a defended hearing is to consult with their client and seek instructions regarding their intention. Where there is a change of plea the Court is to be notified by either electronic or written means of any change of plea. This is to obviate the need for witnesses to attend. Similarly where the prosecution intend to withdraw proceedings the court is to be notified 7 days prior to the listing date.

This is to obviate the need for the attendance of the defendant. In the case of an application for costs the court is to be notified of this intention and will allocate a date for argument. Notification can be made in writing or by electronic means. Return advice regarding the date for argument will be in writing or email.

Civil Proceedings

Notices of Motion and the review list will be conducted by teleconference without the need for the legal practitioner to appear. Any argument by a party is to be limited to no more than 15 minutes.

Coronial Jurisdiction

The office of the State Coroner will contact families in relation to arrangements that may need to be made in relation to pending inquests.

Small Claims

The hearing of matters before an Assessor in the Small Claims division of the Local Court will take place by teleconference. The physical appearance of a party will not be required.

Of course, in a court system that’s already strained, this disruption is difficult to manage, but the Local Court has set aside the month of October 2020 to catch up any backlog. But as the largest summary trial jurisdiction, the Local Court of New South Wales is Australia last year dealt with more than 330,000 cases in its criminal jurisdiction, with magistrates across the state presiding at over 140 locations, and as the Coronavirus continues to spread, unprecedented times, call for unprecedented measures.

Right now, those in leadership positions must balance the judicial rights of defendants against concerns that public institutions could unwittingly become contamination sites.  While the severity and full impact of the virus is yet to be determined, it’s been decided that it’s in people’s best interests to manage court processes differently, where possible, for the time being.

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