Opinion

Richard Ackland
How Covid-19 transformed the courts

The suffering has been intense. No costumes, no theatre, no crowds, no greasepaint. Barristers have been beside themselves for months as Covid-19 cancelled performances in courtrooms throughout the land.

To have one’s stage so cruelly confiscated is a bitter pill for legal thespians who spent the best years of their life perfecting special flourishes and routines.

The pandemic-related fallout has pushed out trial delays, particularly in criminal cases; stripped income from swaths of the profession; ushered new ways of conducting litigation and trials; threatened barristers’ clubby, communal model; squeezed and pummelled open justice; and has players wondering whether their lives and livelihoods are forever changed.

The starchy formality of the courtroom has been deflated with Zoom litigation conducted by counsel from a bedroom, maybe in a bar jacket and jabot on top and jimjams down below, and a four-year-old squawking in the hallway.

Quite apart from the income-producing capacity of the justice system, the courts, the staff, the judges and the lawyers who ply the trade provide a crucial community service – so when Covid-19 arrived there was a scramble to keep a semblance of the show on the road.

New South Wales bar council president Michael McHugh, SC, told The Saturday Paper that information and communications technology – such as the online platforms and videoconferencing that were hastily assembled to allow for a remote justice system – is here to stay. Nothing will be quite as it was.

Justice Nye Perram of the Federal Court last May said it took eight weeks to achieve a technological take-up that otherwise would have taken 10 years.

The expectation is that from here on much of the preliminary trial work, mentions, case management and interlocutory applications will continue to be conducted remotely or on the papers.

Solicitors will be trying to eat barristers’ lunch with this work and the squeals of pain from the bars will get louder.

Yet there is a definite desire to get back to the full monty for civil and criminal work as soon as possible, and in most cases that is now happening, gingerly.

Delays in the judicial process have been an ever-present clog on the majesty of the law, largely because the District, County and Magistrates’ courts are so stretched and chronically under-resourced.

The pandemic has exacerbated the delays and audiovisual hearings take longer to conduct. These hearings, Justice Perram says, are 20 to 40 per cent slower.

McHugh points to the Productivity Commission’s just-released report on government services, which includes an indicator of court backlogs.

Domestic violence-related criminal offences finalised by the NSW Local Court within three months of the first court appearance are forecast to fall from 54 per cent to 45 per cent.

And the backlog of pending Family Court applications, that are not appeals, has climbed almost 35 per cent, from 4997 to 6720 between 2012 and 2019.

The pending backlog in the Federal Circuit Court is even worse, increasing by 72 per cent in the same period.

In 2019-20 the backlog persists, with 6781 cases in the queue for the Family Court and 58,624 for the Federal Circuit Court.

McHugh thinks the disproportionate delays in the criminal lists will go well into 2022.

Meanwhile, the old order is threatened. The ancient model by which barristers conduct their business from expensive sets of chambers in the cities is under threat.

Anecdotally, everyone hears multiple stories of people upping stakes and working from home, their farms, their ski lodges.

The live courtroom was a source of zest and energy, but people now are finding the Zoom sessions strangely exhausting and spiritually depleting – despite some of the bars signing up for training at NIDA on how to better perform on screen.

If there was one thing that compensated for the slog of earning a crust as a sole practitioner, it was the society of colleagues, the propinquity, the drinks and collegiality.

That is diminished as more work from home or with computers in cafes, sitting on cold coffees and slices of raisin toast.

In Victoria, Damien Cremean, a barrister, academic and tribunal member, has written that there have been about 1400 applications to Barristers’ Chambers Limited for rent relief.

Victorian Bar president Christopher Blanden, QC, reports fewer cases were heard last year south of the Murray and that in the Magistrates’ Court there has been a huge build-up of cases.

For the better part of last year trials stopped and life for younger criminal lawyers was grim. Although live-action criminal courts have been resuscitated, Blanden says barristers cannot get back into face-to-face hearings quickly enough. It is the “lifeline”.

The logistical requirements imposed by Covid-19 were daunting. To achieve social distancing some courts had jurors dotted around the room or separated by plastic dividers. It was difficult for counsel to know where to direct their most engaging looks.

In the NSW District Court, walls were knocked down to enlarge jury rooms and accommodate social distancing. Huge spaces had to be found for jury panels of up to 50 or 60 people.

One barrister said he had to remotely examine a child, but was sure the mother was in the room, off camera so he couldn’t see her. Who knows what prompting occurred by someone who would have been a witness in the case?

In another NSW hearing, it was said that a judge forced a case to proceed while the client was coughing and spluttering in what could have been evidence of Covid-19 symptoms.

The cameras themselves were often a problem. In the NSW Court of Criminal Appeal, there was one camera trained on three judges, whereas in Federal Court appeals each judge was the focus of a separate camera, which enabled a more accurate scrutiny of responses.

In Brisbane’s Queen Elizabeth II judicial cauldron, lift capacity was limited to three people during the height of the pandemic. This allowed for two jurors at a time, plus a bailiff, in any lift. Moving 12 jurors into place for five separate trials could take the better part of a morning.

The Family Court last year began a special list for disputes that were a direct result of the pandemic, especially related to family violence.

The Commonwealth coughed up an extra $2.5 million to allow for the expansion of the Covid-list and four new registrar-related positions and support staff swung into action.

Face-to-face hearings have recommenced in the Family Court and Federal Circuit Court, but for heavy divorce and duty lists, where a lot of people mill about, it’s still done by Microsoft Teams.

In the furthest corners of the Commonwealth, there were ripples of adjustment. Tasmania had been largely immune from the contagion, the result of a travel ban and the fact it is surrounded by a giant moat.

However, the delays in criminal trials are such that from the date an accused person is committed to stand trial in the Supreme Court, a wait of a year is not unheard of.

The Tasmanian director of public prosecutions, Daryl Coates, issued a plea to practitioners early last year that, because of pressure on the crime list, his office was more inclined to agree to lenient penalties for offenders who surrendered without a trial.

He welcomes the opportunity “to discuss any reasonable offer to resolve a matter”.

In Western Australia, briefs are still being exported to eastern silks. A number of experienced criminal barristers were appointed to the bench to get through the backlog, and the four main criminal silks are all booked up to 2022.

What of the reptiles of the media who cover proceedings in fulfilment of their duty to open justice? Stephen Murray, who covers federal and state courts, is surprised that relatively few of the usual tricoteuse gallery viewed hearings online. There were a few cult-busters who tuned in for the Chelmsford defamation case, and bigger numbers for the Stead v Aston show.

One observer in that hearing started taking screenshots of the participants and posting them online. Justice Michael Lee was not amused.

It’s a heady time. The Roy Morgan research people calculated that in January this year movements in the Melbourne CBD were down in the first part of the month by 72 per cent on the comparable period last year. In Sydney it was 66 per cent.

Of course, it’s holiday time, but that level of reduced foot traffic means that more lawyers, bankers, finance types, accountants, consultants and associated captains, cabin boys and cabin girls of commerce are staying away, and the great cities are being hollowed out.

Legal Cheek, an online English law organ, reported that lawyers do not miss the daily commute into the city on smelly, packed trains; the queues for coffee or security checks; the early morning school runs; or ironing shirts for a week of pressed appearances.

In Australia, lawyers and courts are swinging back into 2021, with a fair amount of uncertainty. Michael McHugh agrees the bar will be forever changed – not necessarily in a bad way, but for whom?

 

After the better part of seven years Richard Ackland has stepped down from writing the Gadfly column. He remains The Saturday Paper’s legal affairs editor.

This article was first published in the print edition of The Saturday Paper on Feb 6, 2021 as "Court on camera".

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Richard Ackland is The Saturday Paper’s legal affairs editor. He publishes 500Words.com.au.