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Returning to a new, improved ‘normal’ in the Magistrates Courts

New normal post COVID

It is only June and already we’ve all been exposed both personally and professionally to innumerable, unforeseeable, life-altering and intense challenges as a result of the global coronavirus pandemic.

Those challenges have had profound and even tragic outcomes for almost all of the more than 7.5 billion who inhabit our tiny planet.

Here in Queensland, the legal profession has been confronted with its own unique set of issues – perhaps none more so than the state’s Magistrates Court, where social distancing is nigh on impossible as it deals with more than 90% of all criminal matters that ordinarily require defendants, legal representatives, prosecutors, witnesses and the judiciary and court support staff to be physically in the same room at the same time.

But with necessity being the mother of invention, Queensland’s Chief Magistrate Terry Gardiner (pictured below) spoke to Proctor to explain how the court and his fellow 100 magistrates have overcome a myriad of problems and issues, and how as a result there may be improvements to the way courts ‘do business’ in a post-COVID-19 world.

“After the initial declaration of the pandemic, the (COVID-19 response) practice direction was issued on 27 March to restrict people coming into the courthouses, because regrettably a lot of the courthouses are not built for social distancing,” Judge Gardiner said.

“And we don’t have expansive common areas that allow for large groups of people to gather. So we were very conscious of the hardship caused to the solicitors, especially the criminal law practitioners, who depend on the courts to be open for their livelihood and to assist clients.

“Currently this practice direction allows practitioners to bring matters on to be dealt with. The courts are (and have been) open and have the capacity to deal with matters, and I encourage all practitioners to list matters and have them determined.

“I myself have been doing sentencing over the phone and by video. Solicitors have been appearing via video from their offices into the court. I’ve had practitioners in (actually in) court cross examining witnesses by video.”

Judge Gardiner said a new practice direction – expected to be released in mid-June – would continue to focus on minimising people’s physical presence in courthouses.

However, he said it would also make special provisions for prosecutors and solicitors to come to court if they wished to.

“To the extent we can, we will be trying to normalise things,” he said. “So that’s where we are (right now).”

Judge Gardiner said that one of the biggest ‘benefits’ to come out of the COVID-19 pandemic was the building of strong collegiality between the judiciary, the Queensland Law Society, the Queensland Bar Association, Police Prosecutions Corp, the Department of Corrective Services, Youth Justice, the Queensland Civil and Administrative Tribunal, Parole Board Queensland and “importantly”, the Government, to find solutions to the problems facing the profession.

“The leadership of the Chief Justice (Catherine Holmes), QLS President Luke Murphy and President of the Bar Association Rebecca Treston QC has been outstanding,” he said.

“The response of (all 101 Queensland) magistrates is something I am very proud of and they have managed all of the challenges COVID-19 thrown at them and are transitioning to clear the workload with determination.

“We have had a huge increase in the uptake of telephone and video communication. This has demonstrated that we can operate without having the huge physical presence of people in courthouses.

“There has been a large increase in the sentencing of prisoners by video and it has resulted in significant reductions of costs of transporting prisoners from correctional centres. And importantly, there has been a large uptake of electronic adjournments by practitioners and also the emailing of documents to the registry that would usually be tendered if there was a physical presence in the court. So there are a lot of things that have been working pretty well.

“In saying that, there have been a few challenges as well. The Magistrates Court is the engine room of the criminal justice system in Queensland. It deals with in excess of 200,000 defendants facing more than 455,000 charges each year. It deals with 95% of criminal lodgements in the state and our 101 magistrates sit at 33 courthouses where there are resident magistrates and they circuit to (courts in) 81 other communities throughout the state.

“So one of the main challenges when the pandemic commenced was to ensure that domestic violence aggrieved (complainants) could continue to apply for protection orders in person, and that has continued. We have also sought to ensure people in custody can apply for bail and equally have their sentences determined, so there is no risk of them serving more time in prison than they would otherwise be sentenced to.

“Initially when the (social distancing) restrictions were put in place, physical appearances had to be minimised and thousands of matters that were before the courts had to be adjourned. That placed a significant strain on the registry. But, the registries (across Queensland) have met all the challenges and we are now in a position to start clearing the backlogs.

“The remaining challenge is to clear the backlog as efficiently and quickly as possible.”

Judge Gardiner said he was optimistic the backlog challenge could be overcome with a return to the hearing of matters in which defendants and legal representatives could appear in person.

“The Magistrates Courts are large enough to accommodate the (legally required) four square metre social distancing expectations. It’s really the common areas outside the courts that are the problem, because people usually congregate in those areas.

“We’ve learned a lot of lessons from this pandemic and the Magistrates Court (ordinarily) operates on paper fi les. The increased use of technology over the last two months has highlighted the need to transition to a paperless court. This, when it happens, will ultimately relieve a lot of the pressure on the registry from handling of paper files.

“Pleasingly, the Attorney-General (Yvette D’Ath) knows the work of the court well and has always been responsive to the courts’ needs.

“But I believe more can be done to electronically reduce the physical presence of people in courts, particularly at long callovers when on some days a magistrate can mention 100 to 200 matters.

“So in respect to the future, there is always going to be a need for a level of physical presence in courts, especially for trials and sentences. But in the future, I expect more appearances will be accommodated electronically.

“We’re proposing to introduce an electronic application that will extend electronic adjournments to all court events…for practitioners to get dates for sentencing hearings and other standard orders to accommodate the progression of committal hearings.

“I can also envisage sentences for minor matters to continue being done via video and I can envisage the more expansive use of video to receive evidence of some witnesses, such as corroborating police, experts or uncontentious witnesses. So we will continue to identify innovative ways to do the business of the courts.”

Tony Keim is Queensland Law Society Media Manager.

This story was originally published in Proctor June 2020.

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