How COVID-19 is Affecting NSW Local Court Cases in Australia

 

Taking affect Monday, 30 March 2020, a number of key changes have been made to the way in which NSW Local Court matters are to be dealt with during the COVID-19 pandemic.

On 24 March 2020, the New South Wales Chief Magistrate, Judge Graham Henson AM, released a Memorandum regarding some of the key changes to the way in which matters in the Local Court will be dealt with during this crisis.

The key arrangements that will take affect from Monday 30 March are as follows:

 

Current Defended Local Court Hearings

A Defended Local Court Hearing refers to proceedings in which a plea of not guilty is maintained in respect of a criminal or traffic charge(s).

The court hearing date refers to the date on which the police evidence is tested by the defence before the Magistrate or Judge presiding provides a verdict of either ‘guilty’ or ‘not guilty’.

Defended local court hearings that have already been listed between 23 March 2020 and 1 May 2020 will not be heard by any Local Court in NSW.

This effectively means, that the court will not determine any defended Local Court hearings during this period.

Matters listed during this period will be adjourned in chambers (by the Magistrate or Judge). There is no requirement for either the defendant or legal representative (lawyer) to appear on the hearing date. The relevant parties will be notified via email of the new ‘mention’ date.

On the new mention date, it is anticipated that matters will be allocated a new hearing date.

In a further more recent update by the Chief Magistrate, all such defended hearing that were vacated and adjourned for mention will now be further adjourned for a mention on an August date 2020.

For those defended hearings that have already been allocated a hearing date in the local court between periods 4 May to 31 July 2020, have now also been vacated and will be re-listed for mention to a date in September 2020.

 

New Matters which require a Hearing Date

The Local Courts will not allocate new hearing dates where a plea of ‘not guilty’ is entered.

In such matters, the court will adjourn the case to a date for at least three months, at which time the position in relation to the impact of the pandemic will be reassessed.

Although this creates a bit of uncertainty, the courts have been prompt in providing continuous updates and have been highly responsive during this time.

 

Sentencing Hearings in the local court

Sentences refer to court matters in which a plea of guilty has been entered to a criminal or traffic charge(s) by a defendant, where the Magistrate or Judge in court proceeds to imposing an appropriate penalty after hearing any further evidence produced.

A sentence refers to a court date on which a Judge or Magistrate imposes a penalty on a person who has pleaded guilty (or is found guilty after a hearing) to a criminal or traffic charge.

If a matter is listed for sentence in the Local Court, the physical attendance of the defendant or their legal representative will not be required unless the court determines that it would be necessary, in which case the court will advise so.

Should a matter be listed for a Sentence, the legal representative may for now appear via email.

What does this mean? The legal representative will be required to draft an email to the court with submissions and evidence, in order to convince the court to impose a more lenient penalty on sentence.

The submissions (with enclosed evidence) in the email will be the same submissions (and evidence) a legal representative would have made and relied upon if appearing in person.

Submission will usually include, the objective gravity of the offending, and any mitigating features relevant to the offence.

These are to be emailed to the court no later than 24 hours prior to the sentencing date.

All written submissions (via email to the court) are to be no longer than three A4 size pages.

Should the legal representative rely on authoritative caselaw (previously decided decisions of courts), a reference to the relevant parts of the judgement upon which the submissions rely upon is sufficient. This means that there is no requirement to attach the actual judgment of the case to the submissions in the email.

 

What happens if the court intends on imposing a Conditional Release Order sentence (CRO), or a Community Corrections Order sentence (CCO) on the sentence date (in the absence of the defendant and the legal representative)?

The court will adjourn the proceedings for a period of 8 weeks if this happens.

On the return date (after the 8-week period), the court will reassess whether it can deal with the matter to finality. On this court date, the defendant and his/her legal representative may appear via email.

 

What happens if the court intends on imposing an Intensive Correction Order sentence (ICO) on the sentence date (in the absence of the defendant and legal representative)?

If the court is of the view that an Intensive Corrections Order (ICO) sentence or an order of full-time imprisonment sentence is appropriate to impose, the court will adjourn the proceedings for a period of eight weeks.

On the return court date (after eight weeks), the defendant and his/her legal representative may appear via email. Again, the court will reassess whether the sentence can be dealt with to finality on the return court date.

 

Section 32 of the Mental Health (Forensic Provisions) Act 1990 – Mental Health Applications

If it is to be anticipated by the legal representative that a Section 32 Mental Health Application is to be made on behalf of his/her client, the legal representative will be required to email the court flagging this application.

On the mention date of these matters, the court will adjourn the proceedings for at least 8 weeks and, pending the situation at the time, will reassess whether it can list these matters for a section 32 hearing.

 

Mention Matters

A “mention” court date refers to a procedural appearance in which administrative issues are raised with the court regarding criminal or traffic charges.

Usually, mentions refer to appearances in which a defendant enters a plea (either guilty or not guilty) in relation to the charge (or charges), or adjourns the matter for a sufficient reason.

Mention matters may be dealt with in writing via email through the defendant‘s legal representative.

It’s sufficient that the defendant‘s legal representative provide instructions to the court via email as to the proposed course of the matter, and no physical appearance by either the defendant or his/her legal representative is required on these mention dates.

However, the email to the court must be clear as to the relevant instructions.

 

More Serious Charges (Early Appropriate Guilty Plea Matters (EAGP matters))

“EAGP” matters broadly refers to proceedings commenced on or after 30 April 2018 for strictly indictable and elected table offences. These basically are for more serious criminal or traffic charges.

All EAGP matters listed for mention can be dealt with in the absence of the defendant and his/her legal representative. This applies to anyone who is on bail, and is to be done via emailing the court.

If an EAGP matter is listed for committal for trial or committal for sentence, the physical attendance of the defendant and his/her legal representative is required.

Should the legal representative or defendant in the proceedings be unable to attend court on the committal date, the legal representative of the party is to notify the court not less than 72 hours prior to the date fixed for the committal outlining the reasons why the matter would need to be adjourned (via email).

If this occurs, the court will advise both parties by email of the new court date.

 

Matters where clients are in custody

All appearances by someone who is in custody are to be done by Audio Visual Link (AVL).

The court will not be hearing any Local Court defended hearings between 30 March 2020 and 1 May 2020. These matters will be re-listed for mention to obtain a future hearing date.

 

Freshly arrested individuals

From Monday, 30 March 2020, those individuals who are arrested by police will be required, as best as possible, to appear via AVL to particular courts.

In the Sydney Greater Metropolitan area, individuals who are arrested are to appear by AVL to Parramatta, Penrith, Campbelltown, Liverpool, or Central Local Court depending on the police station facilitating the appearance.

In the regional or country courts, individuals who are arrested are to appear via AVL to Wagga Wagga, Dubbo, Tamworth, Lismore, Port Macquarie, Newcastle, and Wollongong Local Court depending on the police station facilitating the appearance.

Should the individual who is arrested be granted bail by the Local Court, the matter will be adjourned to the Local Court where they would otherwise have been brought.

Should a court grant an individual bail, the appropriate brief orders may be made on the first court date, and the court should excuse the defendant from appearing on the next occasion if they are legally represented.

On the new mentioned date, the legal representative of the defendant may appear by email setting out what orders are sought from the court.

 

A Review of Bail, or Bail Applications

A bail application in NSW is when you apply to the court to have an accused person (defendant) who has been charged released on liberty either with or without bail conditions pending the court proceedings.

A bail review is when you apply to the court to ask that the condition(s) of the existing bail conditions be deleted or changed, either for the entire court proceedings or for a certain period of time.

All applications for a review of bail or bail application in respect of the Sydney Greater Metropolitan area are to be lodged with the Registrar at the Downing Centre Local Court.

This applies irrespective of where the current matter is listed. For example, should a substantive matter be listed at Burwood Local Court, a review of bail/bail application will need to be lodged with the Registrar at the Downing Centre Local Court.

The substantive charge(s) however remain before the court in which it is currently listed. Only a review of bail/bail application is to be lodged at the Downing Centre Local Court.

Any review of bail/bail application must be lodged in writing by email, and the prosecuting authority i.e. the police, are to be given not less than three (3) days’ notice of the application.

The police are also to be provided with the grounds upon which the bail review/bail application is sought.

If the application does not comply with the minimum three (3) day notice period, it will not be dealt with unless the review of bail/bail application is by consent.

 

Can visitors and family or friends attend court?

 If you’re not part of the court proceedings there will be no need for you to attend court, whether as a support person (i.e. family or friend) or visitor.

You will not be considered part of court proceedings if you’re there as family or friend to support a person who’s charged, facing court. A person who is considered a part of court proceedings include, defendant(s), prosecutor, police officer, witness.

 

Contacting the Court During Covid-19

If representing yourself in court, you should call the court service number beforehand on 1300 679 272 or you may email the court to find out if you should attend court or not. Your matter may well be a matter the court can deal with without your attendance in court, simply by informing the court what you wish to do with the case i.e. plead ‘guilty’ or plead ‘not guilty’.

When contacting the court through an email, the court will reply back via email, and from our practical experience of this, the courts are currently very responsive in emailing back usually on the same day.

For urgent free legal advice, call us. Our criminal lawyers are in Sydney and represent clients across all criminal court. We offer a free consult and fixed fees for most cases.

About Fouad Awada

Fouad Awada is a Senior Associate, and a Specialist Criminal & Traffic Defence Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Outstanding Results across all Australian Criminal Courts.

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