On 24 April 2020, the COVID 19 Omnibus (Emergency Measures) Act 2020 came into law in the State of Victoria. This has, for the time being, changed the criminal justice system to accommodate social distancing measures as a result of the pandemic This article acts as a summary of the changes that criminal accused can expect as a result of these provisions moving forward. Please note that there are four references in the legislation to a ‘prescribed issue’, which is often an exception to sections of the act. Unhelpfully, the term is not defined in the act, but we expect that it leaves the door open for the Attorney-General to create regulations which will outline ‘prescribed issues’ moving forward as the need arises. The Omnibus legislation is also subject to the Charter of Human Rights and Responsibilities.
The making of regulations without Parliament
Under section 4 of the act, the Attorney General can recommend to the Governor in Council to make regulations that immediately change the Justice Act, a relevant applied law or a subordinate instrument made under a relevant law. This means that the Governor in Council can thereafter change court arrangements, the conduct of proceedings, the process for applying for bail, the process by which intervention orders are issued, the method by which bail is monitored and the process by which courts issue orders, judgements, rulings, and decisions. The regulations can be disavowed by Parliament.
Additional powers of registrars under s152
A registrar now has the power to abridge or extend the bail of a person who has been granted bail in a criminal proceeding, which was a power previously reserved for Magistrates and Judges. These powers can be exercised in the absence of an accused. A registrar may also change the time or place at which a criminal proceeding is listed before the court. However, a registrar cannot vary bail. These amendments are probably overdue and will inevitably reduce the number of unnecessary court attendances by accused persons, particularly in the early stage of the proceedings where many of the appearances are administrative.
Bail
Pursuant to section 34C of the Act, a person will be considered to appear or be brought before the court if their legal practitioner appears for them or, another person empowered by law to appear for that person appears for them. Further, an appearance by audio visual link (AVL) will be considered an appearance. This provision will be repealed on 24 October 2020.
Pre-Sentence Reports for young people
Where a court orders a pre-sentence report relating to a young offender, for use in determining an appropriate sentence, the court can receive that report orally (either in person or by AVL). These provisions only apply to young offenders under the age of 20.5 years and the following requirements must be satisfied under s176:
- the court is satisfied that it is not reasonably practicable for a pre-sentence report to be prepared due to the impact of the COVID-19 pandemic; and
- a previous pre-sentence report has been prepared in respect of the young offender during the 6 month period before the day on which the court proposes to order an oral pre-sentence report; and
- the young offender consents to the giving and consideration of an oral pre-sentence report instead of a pre-sentence report; and
- the Secretary consents to the giving and consideration of an oral pre-sentence report instead of a pre-sentence report; and
- the court is satisfied that it is in the interests of justice to consider an oral pre-sentence report instead of a pre-sentence report in passing sentence on the young offender
Pursuant to s178 of the Omnibus, If the whole or any part of an oral pre-sentence report is disputed by the prosecution or defence, the court must not take the report or the part in dispute (as the case requires) into consideration when determining sentence unless the party that disputed the contents of the report has been given the opportunity—
- to lead evidence on the disputed matters; and
- to cross-examine the person who gave the report on its contents.
Isolation Powers for children in custody
Quite concerningly, pursuant to Division 4 of the Act, an officer in charge of a youth remand centre may authorise the isolation of a child or young person by placing them in a locked room and separate to others and from the normal routine of the centre, for the purpose of detecting COVID-19 or any other infectious disease or to prevent or mitigate the spread of it. This isolation may occur whether or not the isolated person is suspected of having or has been diagnosed with COVID-19. Reasonable force may be used to isolate the child or young person. This is very disturbing, given that we are talking about children, who are already so vulnerable.
Changes to how we swear affidavits and statutory declarations
Electronic signatures will now be considered signatures that satisfy a deponent’s obligations, pursuant to s49B. Where a document needs to be witnessed by another person, this can now be done by AVL. Original copies of sworn documents now include documents that are signed / initialled and then scanned to the person witnessing the swearing of the affidavit so that they can also sign and initial. This division also allows a court to waive compliance with the usual swearing of the documents if satisfied that compliance with these requirements was not reasonably practicable.
Additional Methods of Service
Personal service is no longer required under the Evidence (Miscellaneous Provisions) Act, in the conventional understanding of personal service. Service will not be considered to have been affected if the document is delivered by electronic communication and receipt is confirmed, by sending the document by registered post to the person’s legal representative, by delivering the document to the legal representative personally or electronically. These alternative service arrangements will appear at s600Z of the Act.
Legal Attendances on Prisons
Under the new s112I of the Corrections Act 1986, visits between lawyers and prisoners will be restricted. A lawyer may only enter a prison and visit an inmate if the Governor of the prison has permitted the visit to be conducted using physical barriers that prevent touching, or physical modifications to create distancing between the lawyer and the prisoner. The fact that lawyers are now subject to the discretion of the Governor will make the taking of instructions and provision of legal advice in person challenging.
Mandatory quarantine of prisoners entering prison / Treatment of prisoners for COVID-19
Where a person is transferred from a police gaol to a prison, the Secretary or Governor of the Prison may, in writing, order that prisoners be held in protective isolation quarantine for a period of up to 14 days. Given that these measures apply to new prisoners, the experience will likely be very distressing. A Secretary or Governor of a Prison may facilitate or arrange for a prisoner to be medically examined, assessed, tested or treated. However, there appears to be no duty imposed on them to do this. It is discretionary. Accordingly, a Secretary of Governor may not facilitate medical care for symptomatic prisoners. Given the concerning state of medical care within the prison system generally, the discretionary application of this provision raises concerns that Governors or Secretaries may not facilitate care for a number of logistical and practical reasons. A prisoner has to give informed consent to the treatment or testing.
MAP Orders pursuant to s33D
The courts can now make modified access and procedure orders. These orders can be made by the head of the jurisdiction and relate to proceedings and hearings in court where requirements can be made that there be no appearance by the parties, or appearances by the parties, and that these appearances may be made by AVL. These orders also permit a specified person, or class of person, to be present (in person or by AVL) for the whole or part of proceedings and, may also prohibit the same. The orders may also confer powers on presiding members and judicial officers to make these decisions, without reverting the issue back to the head of jurisdiction.
Open Justice
The courts operate on a principle of open justice, which provides that any member of the public can enter a court and observe legal proceedings unless the court is closed for a number of particular reasons. In response to the concern that open justice will not be able to be facilitated under the Omnibus, section 33K provides that this interest can be facilitated using a number of other methods including broadcasting the proceedings, arranging for a recoding to be released, providing a transcript or making written judgements available to the public. Where there are cases running that will attract the public interest (such as the prosecution of Police officers who perverted the course of justice by using Nicola Gobbo as a human source, or the prosecution of Gobbo herself), it is expected that these proceedings will be broadcast so that the media can report on the matters raised.
Trial by judge alone
Most significantly, Part 9.2 of the Omnibus provides that an accused person can elect to be tried by judge alone. The Prosecution’s consent is not required, but the position of the Prosecution will be considered when the application is determined by the Judge. The court must however be satisfied that the accused has received legal advice and that it is in the interests of justice to make the order for a trial by judge alone. Where there are multiple accused, each has to consent. A party to a proceeding may appeal to the Court of Appeal the decision of a judge regarding an order for relating to a judge alone trial, if the Court of Appeal gives the party leave to appeal. Further, the Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
Ground Rules Hearings
Where ground rules hearings are being conducted with child complainants, the complainant, prosecutor, defence practitioner and intermediary will all appear by AVL, unless it is not reasonably practicable or the court orders otherwise.
Determination of issues without a hearing
Judges now have the power to determine issues in a criminal matter on the papers (ie on the basis of written submissions by the parties) and without a hearing. However, significant pre-trial issues including issues of law and admissibility, issues of fact and other important pre-trial determinations cannot be determined on the papers and the parties may appear. The court must also consider the appropriateness of deciding issues on the papers, taking into account the rights of the accused to be present at their trial and to have a fair hearing, the nature of the issue, whether the accused has had legal advice and whether the parties have consented to determination on the papers.
Court appearances
An accused person appearing before the Magistrates’ Court upon a Plea or Sentencing Hearing may appear by AVL, pursuant to section 174 of the Omnibus. Further, unless a Magistrate explicitly makes an order for a physical appearance by the accused, accused persons appearing before the Magistrates’ Court will appear by AVL. Where a person is referred to the County Court for a fitness hearing, appeal, plea or trial, that person will appear by AVL unless the Court directs a physical appearance. Child accused and victims addressing the court may appear by AVL by order of the court. Where an accused person is appearing by AVL and their lawyer is in Court, section 182, requires that there be appropriate technology to allow the court to hear the accused enter a plea, give evidence or make a submission and, to enable a lawyer to have private communications with their clients and exchange documents remotely. Pursuant to section 183, an accused person may in fact be arraigned by AVL. Arraignment is the process by which the accused enters pleas of guilty or not guilty in the County and Supreme Courts.
Personal Safety Intervention Orders
Previously, a person could apply to extend a final order before the expiry of the order and, the court could make an order extending the original order for 28 days in order to give the respondent notice of the application. Under section 181B of the Omnibus, this period has been extended to three months.
Electronic Monitoring of people subject to Community Corrections Orders
The Magistrates’ Court now has the power to attach an electronic monitoring condition to a CCO, which was a power previously reserved for judge. On application by a person to vary an existing CCO, a Magistrate may not include an electronic monitoring condition.
We expect that there will be new regulations brought into effect which make further changes to the criminal justice landscape. When those changes come into effect, you will find them published on our website.
Galbally Parker Lawyers
