With closures still occurring all around the world due to COVID-19, many eyes have turned to the legal profession wondering what will become of it. Currently in Australia, measures have differed from state to state. For example, Queensland Courts remain open; however, the trial division is only hearing cases which require oral hearings over video conferences or calls unless the matter is urgent such as an Apprehended Violence Order [1]. Others, for example the NSW Supreme Court, have suspended all new trials. While some have praised the Court’s quick response to COVID-19 many issues have been raised such as access to justice, long Court waits and a person’s right to an in-person trial.
One issue raised is that of Access to Justice, a fundamental human right outlined in various documents including the Universal Declaration of Human Rights. With imminent Court closures, trials won’t be able to proceed, and justice cannot be granted. According to Justice Spigelman “No complex society can operate without the efficient and expeditious performance of legal functions”[2]. It is vital for areas with time sensitive cases, such as custody and domestic violence issues in family law and unfair dismissals in employment law, to have access to justice. Numerous judges have commented on how the quality of justice deteriorates if there is delay in the process of justice (see Justice McHugh’s comments in Brisbane South Regional Health Authority v Taylor [3]). One possible solution to the problem is the increasing use of video applications such as Zoom. Although still in initial trial use, this application will allow Court’s to continue avoiding possible build-ups, maintaining the speed of the judicial system
With Court closures there is also the looming problem of long waits for possible court decisions, caused by both the pausing of current cases, and the future possibility of pile-ups in lower Courts post-COVID-19. According to Wayne Jordash, human rights lawyer, this may undermine “one of the cornerstones of the human rights framework” [4]. Access to swift justice is a right outlined in the International Covenant on Civil and Political Rights (ICCPR) Article 14, and is essential for citizens, especially those in detention. Queensland’s recently enacted Human Rights Act 2019, section 32, which outlines people’s rights in criminal proceedings, requires a person to be tried without unreasonable delay. This is to combat a multitude of issues caused by prolonged detention including psychological and family issues, such as distrust, social withdrawal and psychological distancing. This was explored further in an earlier blog post “COVID-19 in Correctional Facilities – a case for concern?” [5].
Queensland’s Human Rights Act 2019, s32(2)(d),which is based on article 14 of the ICCPR requires people to be tried in person. General commentary on article 14 of the ICCPR by the UN Human Rights Committee links it to the right of the accused to defend themselves to the best of their ability. However, further in the general commentary on Article 14, it states “that accused persons are entitled to be present during their trial.” [6]. While commonly “in person” refers to physical presence rather than over the phone, the object of article 14 and s32(2)(d) of the Queensland Human Rights Act was to ensure each person has the right to pursue all possible defences in his full function. That is why there are only certain circumstances that allow the absence of the accused (the only example listed by the Human Rights Committee being a refusal to exercise this right [7]). The application of Zoom calls, while still allowing people to present their case, could impact the defendant’s outcome. Research found that while there was no difference in the number of guilty outcomes whether appearing by video or in person, there may be increased chances of higher bail and longer sentences for those appearing via video while in custody [8]. This issue could be due to nerves or not being able to understand the situation. The study found that dry runs and informal introductions at the start of trials helped ease defendants’ minds in these scenarios. It is interesting to see how the courts will interpret these rights, but it is clear that if full trials are moved online it is essential that all is done to reduce the stress of the trial.
The future of Queensland Courts is unclear; however, it seems crucial that Courts turn to online technology in order to allow access to swift justice. This radical, albeit possibly needed, technological update will allow Courts to continue hearing pressing cases and ensure that justice is provided.
[2] Access to justice and access to lawyers (2007) 29 Aust Bar Rev 136
[3] Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1, 8
[6] General comment no. 32, Article 14, Right to equality before courts and tribunals and to fair trial.
[7] Ibid.