Victorian Criminal Court Processes During COVID
Since the commencement of the initial lockdown period in Victoria in March 2020, the courts have undergone dramatic change to their practices to enable the ongoing facilitation of justice. These changes to court practice and procedure are ongoing. Everyone attending physically at a court in Victoria must first obtain leave from the court to appear and must wear a mask in the court precinct. This article outlines the changes that have been made to the criminal court process during COVID.
Criminal Court Processes During COVID: Magistrates Courts
The Magistrates Court in Victoria initially limited its capacity to only hearing urgent cases, cases involving bail, family violence and cases where the accused was on remand. This resulted in all other matters being adjourned, in some cases numerous times as the pandemic developed in Victoria.
The introduction of Practice Direction 9 of 2020 (updated on 26 October 2020) provides clarity on how matters listed for Diversion are to be considered by the court. With the introduction of this Practice Direction, defence practitioners are now required to attend to the filing of documents prior to the Diversion listing and the application for Diversion will be considered in the Magistrates Chambers (away from the parties) with the result to be made known via email. In the event that Diversion is not deemed suitable, the matter will then be listed online via the Online Magistrates Court.
In relation to criminal matters not pertaining to Diversion, Practice Direction 22 of 2020 directs that all matters listed for in-person hearings from 9 November 2020 are to be listed on the Online Magistrates Court or heard using remote technology (such as Webex). This Practice Direction requires defence to advise the court as to the progression of the matter and to request a Webex Link from the court no later than 3 working days prior to the listing date.
In the event that the communication is not made with the court in keeping with 3-day requirement, the court cannot guarantee that a Webex link will be available and defendant (or their legal practitioner) will need to liaise with the court to ensure that a warrant is not issued for their arrest.
Criminal Court Processes During COVID: County Court
All criminal trials that were listed after 16 March 2020 have been vacated and relisted by the court. In many circumstances, those matters that were listed for trial during this time have been provided a nominal date to return before the court. At the nominal date, the court will then advise the parties of the new trial date.
In an effort to reschedule those vacated trials, the court has determined to hold a ‘trial readiness conference’ eight weeks prior to the scheduled trial date. This is to ensure that criminal trial matters are ready to proceed on their new allocated date.
The court has undergone significant changes to facilitate the empanelment of juries in a ‘COVID-safe’ manner. In this regard many courtrooms have been adjusted to enable members of the jury to social distance. Empanelment may now occur by way of audio visual link and juries are summonsed by way of a ‘virtual jury pool’.
Following the alteration to the manner in which juries are empanelled and the alteration of processes to ensure safety, the County Court was able to recommence a limited number of jury trials in November 2020.
The County Court has also implemented other safety mechanisms, such as virtual subpoena inspection, the introduction of Emergency Case Management Conferences to enable the progression of matters despite the limited jury trials and the commencement of Judge Alone trials.
Supreme Court of Victoria
All hearings in the Trial Division of the Supreme Court continue to be conducted with all parties appearing remotely. In this regard, a party may only attend at the court precinct with leave of the court (considered on a case-by-case basis).
The Supreme Court resumed a limited number of jury trials on 16 November 2020, these resumed with various COVID-safe measures implemented.
The Supreme Court has also commenced hearing Judge Alone trials. For a trial to proceed as a Judge Alone trial, either the defence or the prosecution must apply to the court for the case to be determined in this manner. Any application for a Judge Alone trial must be agreed by all parties.
All Court of Appeal matters continue to be heard by the court with all parties appearing remotely unless leave is otherwise granted by the court.
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