Spicer, Nicole; Walker, Melinda; Rankin, Peter --- "Delivering justice in a pandemic: Some interim observations from Victoria" [2020] PrecedentAULA 74; (2020) 161 Precedent 42

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DELIVERING JUSTICE IN A PANDEMIC

SOME INTERIM OBSERVATIONS FROM VICTORIA

By Nicole Spicer, Melinda Walker and Peter Rankin

After 15 weeks of hard lockdown in Melbourne and a somewhat shorter but similarly challenging period for regional Victoria, restrictions are thankfully starting to ease and it seems that the 'second wave' has finally been brought under control.

The pandemic is not over yet, and there will be further challenges ahead. But as we re-enter some sort of 'normalcy' there will undoubtedly be a reckoning of what has been lost and gained. As we take our metaphorical first breaths of fresh air in some time, it is worth reflecting upon our prison populations and the operation of the Victorian criminal justice system more broadly.

Much has changed.

Courts transitioned rapidly from antiquated, paper-based systems to online hearings and document management. The Magistrates’ Court of Victoria faced the greatest challenge in this respect, having thousands of people ordinarily moving through the courts each day and a largely manual system of managing its caseload. It has been repeatedly observed that change which might ordinarily have taken a decade, with undoubtedly some resistance from the legal profession, occurred in a matter of months.

Prisoner advocates agitated intensively early in the pandemic, and again as it escalated, for the wholesale release of low-risk prisoners. An entire jurisprudence of ‘COVID-19 bail’ cases developed and many prisoners were released on the basis of the anticipated delays to hearing dates and the significant risk of a COVID-19 outbreak within the prison setting.

The Victorian Department of Justice and Community Safety responded by imposing strong and unapologetic quarantine, infection prevention, and control measures in custodial settings. Prison visits were stopped, newly arrived prisoners were quarantined for 14 days, and anyone with symptoms or possible contact with a COVID-19-positive case was also quarantined. Some prisoners experienced significant hardship as a consequence. Prolonged periods of isolation, lack of time outdoors, and limitations to contact with family and legal representatives will all have exacted a cost.

By the same token, at least up to this point, the measures have successfully averted the very real risk of a catastrophic outbreak of COVID-19 within the prison system.

A comparison with residential aged care facilities, which did not fare so well in the Victorian outbreak, is instructive. As at 20 September 2020, when the Royal Commission into Aged Care Quality and Safety published its special report into COVID-19 and aged care, 629 of the 844 persons who had died from COVID-19 in Victoria had been living in aged care homes at the time of their deaths.^[1]

By comparison, while there were multiple receptions of prisoners who had contracted COVID-19 in the community, there had been no outbreak within Victorian prisons and, significantly, no deaths.

A further and more chilling comparison can be made with the US, where in September 2020 the non-profit journalism organisation The Marshall Project reported that over 1,000 prisoners and 75 prison staff had died of COVID-19. By the end of October 2020, the numbers had already increased to 1,300 prisoners and 86 staff.^[2] A John Hopkins University study published in early July 2020 found that the COVID-19 death rate of prisoners in US prisons was three times higher than that of the general population, even when adjusted for age and other demographic factors.^[3]

From a public health perspective, the Victorian prison response has, so far, been a success.

The impact of pandemic-necessitated action, or in some instances absence of action, is more varied in relation to other aspects of the criminal justice system. A proposal to reduce jury numbers to eight rather than 12 members was quickly shelved in the face of vocal opposition. True, online courts have made the actual hearing of matters possible and kept the 'wheels of justice' turning, and practitioners and judicial officers have adapted quickly to the 'virtual courtroom'. But some defence practitioners have expressed concern that efficiency is coming at the cost of a fair hearing for some. Anecdotal accounts tell of self-represented defendants online being refused adjournments to seek legal advice (old problems, new environment), and of defendants being unable to contact their lawyers and matters proceeding in their absence.

Some practitioners express concern that these online appearances favour people who have more resources and are more technologically adept, and may be compromised for those who are in a violent relationship or live in an unsafe household. During a virtual court hearing it can be extremely difficult, if not impossible, for an accused person to communicate with their lawyer. Further, other individuals (for example, estranged family members or work colleagues) may be given undue emphasis in the hearing as they appear on the screen with equal prominence to the accused person. The dynamic is entirely different to that in the more private and tightly structured courtroom environment.

Online court requires people to have access to the internet and appropriate technology. COVID-19 has highlighted that this technology isn’t easily available to everyone – for example, many people have limited home or mobile data coverage. Many low-income earners or people living on Centrelink will access public computers at libraries, which don't offer privacy or confidentiality, and may interfere with other users. Lockdown movement restrictions, infection risks, and personal safety concerns in understaffed offices have meant that many defence practitioners have been concerned about an expectation of the court that they facilitate their client's online appearance.

At a practical level, magistrates’ court users miss out on a range of court resources if they deal with their matter online. In the Melbourne Magistrates’ Court building they can normally access these support services onsite. A related concern is that people on community corrections orders have been unable to access face-to-face help, which potentially increases the risks of disengagement and reoffending. Notably, however, there is also some evidence of increased compliance with orders due to the ease of attending phone appointments, although it remains to be seen how effective this is as a therapeutic process.

Online proceedings have not been without their lighter moments. It was just a matter of time before a defendant ‘mooned’ the court, advising the judge ‘there's more where that came from’. More recently, a prominent criminal defence lawyer recounted his client lighting up a cigarette while the prosecutor and magistrate discussed sentence.

Further, throughout this period so far, an opportunity has been missed to explore a program of decarceration and positive diversion programs to better support those who come into contact with our criminal justice system. During the pandemic, we have had a unique opportunity to review the hard-line policies on punishing low-level crimes that can be dealt with in a more constructive manner. Now is a perfect time to revisit rehabilitative outcomes as alternatives to incarceration, and to address the underlying causes of crime, such as homelessness and poverty, and broaden judicial sentencing discretion.

The reckoning will continue as the unusual summer of 2020/2021 approaches. We can only hope that what has been gained will be retained, and that the experiences of the marginalised and vulnerable in our community continue to be considered and taken into account in future responses and adaptations.

Nicole Spicer and Melinda Walker are the co-chairs, and Peter Rankin is an executive member, of the Criminal Law Section of the Law Institute of Victoria. The authors were each working as criminal defence practitioners during Victoria's first and second lockdowns at Stary Norton Halphen Lawyers, Melinda Walker, and Rankin Lawyers respectively. EMAIL [e-mail] and [e-mail].

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^[1] Royal Commission into Aged Care Quality and Safety, Aged Care and COVID-19: A Special Report (Report, 30 September 2020) 2.

^[2] The Marshall Project, A state-by-state look at Coronavirus in prisons, <https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons#prisoner-deaths>. See also K Bragg and K Sosin, ‘Inside the COVID unit at the world’s largest women’s prison’, PBS, 19 October 2020, <https://www.pbs.org/newshour/health/inside-the-covid-unit-at-the-worlds-largest-womens-prison>.

^[3] John Hopkins University, ‘Coronavirus infections and death rate higher among incarcerated people’, Hub, 9 July 2020, <https://hub.jhu.edu/2020/07/08/coronavirus-infection-and-death-rates-higher-in-prisons/>.