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Criminal lawyers call for court videolink hearings during COVID-19

Criminal lawyers call for court videolink hearings during COVID-19

By Karin Derkley

Courts COVID-19 Technology 


The criminal law sector could suffer serious damage unless the criminal courts provide for hearings to be held via videolink during the COVID-19 pandemic, criminal lawyers say.

A historical lack of investment in videolink technology in the Magistrates' Court and the County Court has paralysed the system under the court shutdowns during the pandemic, says Galbally Parker defence lawyer Ruth Parker.

"Essentially the system has been built on face-to-face contact between practitioners and prosecutors and magistrates,” Ms Parker says. “And we are now seeing the result of that lack of investment. The system has become paralysed.”

Defence lawyers have been told that unless their matter is one of four types of very short hearings it will be adjourned to a nominal date of 15 June, Ms Parker says. "By deciding that all matters will basically be postponed to mid June, it's going to be obliterating an entire industry in one fell swoop."

Sarah Pratt & Associates defence lawyer Sarah Pratt said the current situation is already untenable. "Everyone is struggling. We’ve got people stuck in custody with uncertainty as to when their matters can be heard. While there may be the ability to apply for bail, not everyone is a suitable candidate for bail. We're going to have to become very creative and practical to ensure that we do this the best way, because otherwise the system is going to completely crumble."

Lawyers stressed they were not criticising the courts, which were doing the best they could in a difficult situation, but the lack of historic investment by successive governments in the infrastructure needed to make remote and videolink hearings possible.

The LIV and others have called on the Victorian government to expand the capacity for video links and teleconferencing, with the LIV arguing an investment would be valuable in the short and long term.

Barrister Justin Hannebery QC says the pandemic shutdown means that courts and practitioners have to change their mindsets "very quickly and be prepared to be flexible about how we do things and not be constrained by traditional work practices that are simply not going to be tenable for the next weeks or months”.

Courts have traditionally been very reluctant to use anything other than the most secure video links available, he says. "That may well be appropriate for some cases but there are plenty of cases where it's an open court and things like Webex or Zoom or Microsoft teams would be appropriate to use."

"People are innovative and flexible and if people have got the right attitude we will be able to find ways to deal with all of those problems."

Gallant Law director and criminal lawyer Lauren Cassimatis has initiated a petition calling on the state government to properly fund the courts so they can implement video-conferencing for hearings during this time. She says courts need a significant funding boost to update video-conferencing facilities and allow the justice system to continue operating.

"I started the petition to the government because if they are freeing up funds for police, they also need to free up funds to make sure the court system is able to function properly during this crisis," Ms Cassimatis says.

"It should be possible to have hearings operating through things like Zoom and Skype so we can operate it from our computers at home, but we’re just not able to, so everything has come to a standstill."

The impact on the criminal law sector is already being felt, with several defence law firms having to lay off people.

“We're very quiet for anything that's not a bail application,” says Ms Pratt. “They have increased, but everything else has just stopped.”

Ms Cassimatis says the court shutdown has put a freeze on her income and earning ability. “We're reliant now just on new arrests, bail applications and family violence.”

Mr Hannebery says the next three months of work more or less evaporated for him overnight. “While I'm fortunate to be a bit more established than a lot of people, like everyone, a big plank of my business model has been taken out from under me and that is going to be the case for the next few weeks, at least.”

Ms Parker says the potential loss of lawyers from the sector could be catastrophic in the long term, particularly if there is a surge in crime as a result of a recession.

“Practising criminal law is a very complex area. It's not an area you dabble in. You need experienced people who are going to be able to take up that volume of work. If people leave the profession you're not going to have the practitioners available to deal with the surge in demand.”

Ms Pratt said given it is possible to conduct video-link briefings with clients in prison, it should be possible to do so with the courts. "I understand the courts have to be really stringent with security and links, but there are ways to make that work." Among the measures could be an identity verification system conducted by the VLSB or the LIV, she suggested.

Investing in technology that allows courts to continue with their work “by providing for practitioners, witnesses and/or parties to appear remotely, and that allows for oral advocacy and open justice, would create efficiencies,” says barrister Paul Smallwood. "And that would undoubtedly be able to be embraced beyond the term of the pandemicIn the longer term, it will save time. It will save money. It will allow courts to better serve their communities.”

Some jurisdictions are already using video-conferencing to hear matters. The Common Law Division of the County Court is now conducting hearings via Zoom. The County Court says it is consulting with legal practitioners to test the use of WebEx video-conferencing software for use in the Court’s Criminal Division.

However, at the Magistrates' Court, all criminal proceedings (except filing hearings, committal mentions and committal hearings) where the accused is on summons or bail are being adjourned to the nominal date of 15 June 2020.

The LIV is meeting weekly with a group of stakeholders from across the criminal justice sector, chaired by Judge John Cain, to discuss court operations and other issues.

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