Liz Bell
JUSTICE must be served, or so they say – just don’t expect it to be swift during coronavirus social distancing restrictions.
As the first level of Victoria’s justice system, the Magistrates’ Court in Sale is usually a hive of activity, as people shuffle in and out throughout the day, filling its corridors while they wait to be called, or huddling in corners speaking with lawyers in hushed voices.
These days it is a very different scene.
Most cases have been postponed or held virtually in order to balance the health and safety of the community and the legal profession with the need to continue the service.
Stage three restrictions – first imposed in March and then again in regional areas in August – have meant in-person court hearings are limited to guilty pleas, bail applications, urgent and ‘priority’ cases and family protection issues.
Even then, while defence and prosecution counsel are in the courtroom, the magistrate will likely appear by a video link and in some cases the client will appear via remote video to minimise the need to transport prisoners.
While the court system has worked at lightning speed to modernise and continue to operate while maintaining transparency and efficiency, veteran lawyer John Sullivan says online hearings have their limitations, largely because of the difficulty in getting everybody online at the same time.
Although defendants are still afforded the same level of representation in a virtual court, he believes a reliance on technology has the potential to impact a client’s ability to participate in the process.
“Lots of the people who get charged with criminal offences don’t have the means to access technology,” he said.
“And we can’t exactly bring them into court to do that.”
Usually one of the busiest defence lawyers in Sale, Mr Sullivan said the past four to five months had resulted in the Sale Magistrates’ Courts’ throughput reduced “to a trickle”.
It will be a long game of catch-up once restrictions are lifted.
Cases that were originally adjourned until June were then put forward to August, but will most likely not be heard now until the end of the year, or possibly later.
Virtual trials have changed the way court staff and lawyers present information and interact with each other and clients, arguably with little impact on the level of defence offered to those charged.
Mr Sullivan said constant adjournments could affect the fluidity of the legal process, and made it hard “to advance cases by negotiation”.
It can also create a level of uncertainty for clients, who tend to “go away and forget” about the case, and may be unprepared when they eventually have to appear.
The new reliance on written submissions over face-to-face appearances means discussion can be less fluid, raising concerns that lawyers are less able to defend their clients with oral arguments tailored for the occasion, or alter their line of argument once a submission is filed.
Victoria Legal Aid’s acting regional managing lawyer for Gippsland, Kate Windmill, said it had been an impressive effort by everyone in the justice system to keep courts running during the COVID-19 pandemic, and for some video link
hearings were fine, or even an improvement.
“But we know that many clients may find it more difficult to participate in court proceedings,” she said.
“This is particularly true for people who live with a disability, require the assistance of interpreters or people who don’t have good access to technology or a safe and private place to take the call.”
Ms Windmill said the issues and challenges were being monitored, and more support was being developed so all clients could participate in their court hearings.
“As part of this, we’re working collaboratively with the courts, other legal assistance groups like the Gippsland Community Legal Service, Victoria Police, the Department of Health and Human Services, and family violence support services to raise and seek to address issues as they arise,” she said.
“We’re also collaborating to resolve matters earlier, where that’s appropriate.”
The Australian Human Rights Commission is also monitoring the handling of court cases around the country, given that measures introduced by courts in some states and territories could affect the right to access a fair trial.
This includes measures to halt all new jury trials and have trials presided over by a judge alone.
It says there is evidence that virtual hearings can have a “disproportionately negative impact” on people with a disability, particularly those with a cognitive impairment, mental health condition or neuro-diverse condition, and their ability to seek justice.
But for the time being, remote courts, delays and adjournments are an inevitable consequence of the pandemic, and the court system is doing its best to deliver core and vital services in a fair and transparent manner.
It’s a similar story in the County Court in Sale, which is the principal trial court and sits above the Magistrates’ Court.
Mr Sullivan said that because of the restrictions, there were now more than 800 jury trials awaiting listing.
To get through some of the backlog, Webex video-conferencing is being used to facilitate remote appearances for those pleading guilty and currently in custody, often in conjunction with traditional video-link technology.
But just when the backlogs can be cleared is like knowing when a vaccine will be available.
Nobody knows.
Anyone needing help with a court matter can phone the Victoria Legal Aid Gippsland office on 5126 6444 to find out if it can help.
