Practising law may never be the same again … Powers of the state unlikely to be wound back … Unhappy remote experiences … Costs and time blowouts … Corona appeals … Lockouts … Home on the range … Theodora does the rounds
Here’s one email from a despairing barrister after an experience with the NSW Supreme’s virtual courtroom.
1. The judge couldn’t see anyone.
2. Lines dropped out regularly.
3. Witnesses didn’t know where to go.
4. The notice to produce to court when called upon couldn’t be physically answered and the court didn’t have a copy when argument started over compliance.
5. Subpoenaed material could not be accessed by anyone and we didn’t know if there had been production.
6. If two computers were in the same room i.e. counsel and solicitor practicing social distancing there was feedback that made it impossible to proceed.
7. Nobody (including the judge) knew if witnesses were to give evidence over this system or AV.
8. Examination was impossible because of Skype-like lag.
9. The microphones picked up any instructions given by a solicitor (even when whispered in counsel’s ear)
At 3 pm on the first day of a two day case we all agreed that this was hopeless and the new estimate would be six days to do what would have been a two day case.
The plaintiff will now be charged eight hearing allocation fees rather than two.
Good luck with your cases.
It’s not anyone’s fault and one day it will be sorted out but for now … my view … try and stay away.”
Another message from a frustrated brief who wrestled with the dial-in for a criminal case listed for trial at Campbelltown.
“Just letting you know the telephone dial-in callover for criminal already listed for trial at Campbelltown is something of a fiasco.
Communicating with your client is impossible (a significant number of the accused are remanded in custody and can only give instructions electronically).
It is impossible to obtain them in a rapidly evolving situation, which is akin to playing ethical roulette.
Any thoughts concerning the ethical obligations of counsel in a situation not previously countenanced?
There is already talk of an anticipated wave of “Corona appeals” and complaints in criminal law circles.”
In NSW the courts of appeal and criminal appeal are working remotely, and counsel can appear virtually in informal mode – bar jacket and jabot, but no wig and gown. Some appeals have been put off into the future, including for the two murderers Rogerson & McNamara.
NCAT has been saying its members cannot work from home and need to travel to the locations where hearings are held, though the parties are remote. Even Juan Martinet at HWL Ebsworth has retreated from that position. It means full-time NCAT members have had to visit three or four separate venues in a week, making it easier to receive and spread bacteria.
As of Monday (March 23) NCAT hearings and appeals were conducted audio-visually, on the papers or by telephone. Prior to Monday it was not uncommon to see crowds of people in a small room, witnesses huddling for a concurrent event, large lists with parties, barristers, witnesses milling in the same place for extended periods.
The members have been using uncleaned computers, shared by numerous others. Registry staff are still dealing with the public over-the-counter, minute-by-minute, not a drop of hand sanitiser in sight. Latest arrangements are here.
NCAT cleaners are instructed only to wipe desk surfaces that are clear and members are expected to do their own disinfecting and bring their own wipes (if there are any). It’s an uphill battle with the germs.
While NCAT ploughs on, the NSW Local Court has “abandoned” all civil cases in the Drowning Centre listed between March 30 and September 30, 2020. Chief Madge Graeme Henson said that the court’s capacity to “continue to operate effectively across the breadth of the jurisdiction is being systematically compromised by progressive restrictions announced by governments”.
The tribunal’s civil work must be more important than the Local Court’s.
In most magistrates courts around the country defended criminal hearings have been deferred, except for those where a defendant is in custody and where the hearings can go ahead by audio-visual link.
Magistrates are desperately rushing about looking for courts with AVL facilities, churning out fresh hearing dates and bail decisions in the process.
There’s been a marked rise in the unexplained non-appearances of parties and witnesses, who have steered clear of local courts in cases where they were expected to appear.
Henson told his troops:
“I believe it is better for the court to assist government in its endeavours to manage the challenging environment than to simply expect that justice will be done in every case by continuing to believe this part of the court’s responsibilities will not be impacted to the potential detriment of the interests of justice.”
The fallout for briefs doing legal aid work is beyond dire.
The Federal Court says its shopfront counters are closed “but we’re still working”. Hearings are held remotely using Microsoft Teams and “group chat software”, with remote counsel, remote witnesses and even remote journalists who, in certain circumstances, can phone in and report from the audio of hearings. ASIC’s action in the Dunk Island case is being reported in that manner.
Some Federal Court judges seem to be having trouble with the technology, with one report saying that a judge in a trade secrets case expressed anxiety about viewing proceedings on an iPad and how cross-examination might proceed with restrictions on numbers and proximity.
Family law matters are subject to complex arrangements and there are pages and pages of the latest measurements on the Circuit Court website – from parenting orders, changes to registry services, face-to-face protocols, electronic filing, building clearances in Sydney and notices to the profession.
The High Court is closed for business and will not sit in Canberra or on circuit in April, May and June. Special leave and urgent matters will be dealt with by video link. It means the judges can speed up their judgment writing with the appeals in Pell and the Palace Letters likely to be determined sooner.
The NSW bar has issued a handy guide for arrangements affecting all the state’s courts – you can spend days reading these notifications and their endless daily modifications. Bar fees for tickets to trade and memberships have been waived for two year olds and on a case-by-case basis for two to fives, “… however we encourage all of those able to do so to pay their membership fees in full”.
Inevitably, when in crisis mode, governments will seek to take and concentrate more power. Even conservative regimes, which in theory want less government, have closed businesses, reordered the daily life of citizens, pumped trillions of dollars into downward spiralling economies, increased the powers of the police and put the military on standby.
Parliaments, also, have been suspended, in Canberra for five months and in Sydney and elsewhere for up to six months. Technology is struggling to do the job, yet after a few months of this it should be working much more seamlessly and will become the ultimate preferred modus operandi for lawyers and courts.
People will be fined or imprisoned if they don’t do what they are told – all in the name of decisive action. In England, prosecutors have warned that anyone who coughs on or spits at an emergency worker faced up to two year porridge. The Economist, in a report, on coronavirus and its fallout says:
“History suggests that after a crisis the state does not give up all the ground it has taken. Today that has implications not just for the economy, but also for the surveillance of individuals.”
The NSW government’s COVID-19 emergency measures legislation has come under attack, including from bar ‘n’ grill president Governor Game.
He objects to the pre-recording of untested evidence for use in future trials.
This is “inconsistent with the fundamental concept of a criminal trial … There are no safeguards to ensure the integrity of the process by which evidence is taken remotely”.
In addition, parliamentary authority has been ceded to ministers who have been given regulatory powers to override criminal justice laws with respect to bail arrangements, criminal proceedings and sentencing. Parliament doesn’t resume until September 16.
It’s just a matter of time before elections are cancelled – too dangerous for citizens to vote.
People are rushing to get their haircuts before there’s a complete lockdown, attend funerals before the limit of 10 is reduced to zero and get married before even tiny nuptials are entirely eradicated.
The Caravan Association of Australia is calling for an exemption from the human distance rules for those in “cabin accomodation”. And everyone seems to be an emergency worker. Pollution is down and, with pubs shut, sobriety is up.
Massage “therapists” have closed, with this message posted on the door of a Kings Cross knock shop …
There’s lots more to report so please tell us if you know of further difficulties at the coal face. For an anonymous message use our Blow The Whistle function in the right hand column of Justinian’s home page …