Jury trials are slowly returning to Victoria’s courts this week, having resumed on Monday in a modified way after months in limbo.
Despite the cautious resumption, for hundreds of cases it will be a long wait for court time.
In March 2020, the legal system took drastic measures in the face of the rapid spread of COVID-19, initially suspending all jury trials and court hearings – leaving thousands of people waiting anxiously.
As the backlog soared, the court system moved to an online approach, where possible.
Concern about buildup of cases
Barrister Amber Smith* said she was concerned about the number of cases in backlog.
“About 750 County Court trials are sitting in abeyance, we’re talking hundreds just in the County Court alone,” she said.
The Magistrates’ Court has been able to operate partially online, with urgent matters such as bail applications and family violence related proceedings taking priority.
Other matters such as plea hearings are done online where the court has availability however, with the capacity being significantly reduced, between 100,000 and 120,000 cases are on hold.
The backlog is expected to endure well into 2022.
Chief Magistrate Lisa Hannan told the ABC in May that the courts were adapting to the new environment, in line with restrictions and safety.
“We are transforming a court that’s been paper-based, into a court that’s capable of conducting these sorts of hearings,” she said.
In the Supreme and County Court, jury trials stopped for months. People could apply for a judge-only trial, however according to an ABC report only six had been heard that way by late last month.
The Chief Justice of the Supreme Court of Victoria, Anne Ferguson, said she appreciated the legal community’s efforts to deal with the issues.
“We have been extremely grateful for the co-operation and perseverance of everyone who has worked so hard [to keep the] virtual doors open,” she said in a statement on the easing of coronavirus restrictions.
The online movement
In September, Justice Ferguson said the system would manage a transition through the easing of restrictions in accordance with public health guidelines, “practically, safely and steadily”.
As cases moved online, technology was put under pressure, with proceedings appearing through the systems WebEx, Skype, Zoom and VideoLink. These don’t always work, causing disruptions, whether technical or practical.
Ms Smith said there had been some problems. “Things can get lost in technology and WebEx has been put under a huge strain. Something that should take two days, might take up to four online,” she said.
Criminal lawyer Liza Pearce said that as courts weren’t fully prepared for such a change, the introduction of online hearings was a big adjustment.
“The dynamics are so different. You don’t have the same presence online as you would in a court room,” she said.
“It’s preferable to be in person, however, online was the only answer to the situation,” she said.
The limited capacity to undertake trials has left “only 5 per cent of criminal barristers [having] enough work for full-time hours”, Criminal Bar Association chair Daniel Gurvich QC told The Age.
Ms Pearce said she had found that the reduced amount of work has quietened her usually busy days, which would typically consist of being in a number of courts each day.
“Sometimes I used to be in two courts in one day, now all of a sudden I’m not going anywhere,” she said.
However, while the movement to online meant less travel and moving about, the level of behind the scenes work increased.
“It’s a lot of work on the papers, and the waiting around has made a lot of people and clients very stressed,” Ms Pearce said.
With the uncertainty surrounding how the backlog would be handled, Ms Pearce said it would be unpredictable, but the environment would adapt accordingly.
Jury trials in the Supreme and County courts resumed last Monday, with physical distancing rules in place, masks required for jurors and other court modifications. Some cases will continue online.
Social distancing and other modifications are likely to continue for many months.
Ms Smith said the pandemic had “fundamentally changed the courts system”.
“I think a lot of things will continue to be done online and not in court, but there’s still work to be done, particularly with respect to jury trials.”
Chief Magistrate Lisa Hannan told the ABC the notion of justice was still as highly regarded as it would be if the courts were completely open and functioning as they had in the past.
“Justice hasn’t changed, just the mode of delivery.”
*Not her real name.