Hearings, trials, appeals, bail and sentencing: Court Response To COVID-19

The COVID-19 pandemic has created an extraordinary challenge for the criminal justice system, never seen before in Australian law.  Within a very short period, the Courts, as an essential service in the community, have sought to adapt to the changing environment brought about by evolving health crisis with the need to adopt social distancing practices and to assist those in need of self-isolation

Unfortunately, this has meant that across all jurisdictions (Supreme, District, Local and Children’s Courts) for those who have matters listed for a defended hearing, trial or appeal between April – May 2020, these listings will not likely be able to go ahead and a new date will need to be allocated.

However, application for and to vary bail, some sentences and applications for AVOs are still able to be heard in some jurisdictions, albeit with amendments to the procedures. 

What you need to know about the courts and COVID-19

Bail Applications 

Bail application are still able to be heard by the Courts and the pandemic will be relevant to the issues the Court must consider. 

The recent decision of Hamill J of Rakielbakhour v DPP [2020] NSWSC 323 is a useful case that highlights the relevance of the pandemic to issues of and bail and details the following:

  • The matters that are relevant to bail application regarding COVID-19 in NSW prisons: at [12]-[14].
  • The relevance of COVID-19 pandemic to s 18 Bail Act 2013: at [15].
  • The relevance of COVID-19 pandemic to the question of whether an applicant has shown cause why their detention is not justified: Bail Act, ss 16A-16B, or in other cases will be relevant to various factors under s 18 matters: at [18]

In Victoria, there has also been a number of helpful cases on implications of COVID-19 pandemic for bail.  These principles include: 

  • The COVID-19 pandemic has potential to cause significant delays; jury trials indefinitely postponed; may be delays in Magistrate’s Court before matters sent for trial: at Re Tong [2020] VSC 141 at [30]-[31]; Re Broes [2020] VSC 128.
  • Situation causing additional stress and concern for prisoners and families: Court of Appeal in Brown (aka Davis) v The Queen [2020] VSCA 60 at [48] at [32].
  • Current health crisis will not in every case lead to exceptional circumstances or bail. These matters, unheard of in our living experience, are part of surrounding circumstances to be taken into account in 2 step bail process: Re Tong [2020] VSC 141 at [33].
  • Applicant’s time on remand may substantially exceed any sentence received. Exceptional circumstances established: Re Tong [2020] VSC 141 at [35]-[36]; Re Broes [2020] VSC 128 at [41].
  • Young healthy applicant likely to recover if infected by COVID-19. However, in addition to delay, would suffer consequences of any lockdown in prison if virus spreads: Re Broes [2020] VSC 128 at [39]-[40].

Application to vary bail 

The pandemic may also give rise to the need to vary bail.  Application to vary bail in the Local and District Court are currently being dealt with in chambers.  For applications to vary bail that are opposed in the District Court there are new procedures in place as the application is to be dealt by the Judge in chambers.  Upon receiving the material, the Judge may decide that the application be dealt with in a virtual courtroom with the lawyer to appear in court by video-link.

Sentence proceedings 

Although each sentence will be determined on a case by case basis, the COVID 19 pandemic will be relevant to principles applicable to sentences across the broad.  Where appropriate, Courts should consider how the following principles will be affected:

  1. The impact of health issues and any vulnerabilities of the prisoner to the disease;
  2. The hardship faced by prisoners, including through the banning of personal visits to prisoners;
  3. The safety of prisoner in custody; 
  4. The state of uncertain suspense; and 
  5. Hardship to third parties. 

In R v Madex [2020] VSC 145, such principles were relevant on sentence.  The Court held at [51] and [61] that owing his age (69 year), the offender was at a higher risk in respect of COVID-19 and custody was considered to be more onerous.  

In Brown (aka Davis) v The Queen [2020] VSCA 60, an appeal matter when the Court was redetermining the sentence, the Court also held at [48],”…that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. 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.”

In DPP v Bourke [2020] VSC 130 at [32], the accused pleaded guilty and the Court held that there was a substantial utilitarian value of guilty plea in light of public health concerns.

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O’Brien Criminal & Civil Solicitors
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Sydney NSW 2000

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