Alyssa Fritzlaff
VICTORIA’S County Court Chief Judge Peter Kidd has welcomed the return of jury trials in Morwell and across the state.
Throughout the pandemic, the legal system has faced many challenges, from navigating online proceedings to the suspension of jury trials.
As Victoria comes out of its most recent lockdown, Chief Judge Kidd takes a moment to
reflect on the impact the pandemic has had on the County Court and discusses how they will proceed moving forward.
So many trials have been run online, how has this impacted the County Court? Has it been difficult to navigate?
IT HAS been challenging. Obviously, we went from a court which was run normally – with the vast majority of hearings being in person, and then in March last year that had to
change, and change dramatically.
As a consequence of that, we shifted to conducting a lot of our hearings online.
We have three jurisdictions at the County Court. Each of the jurisdictions is slightly different, we’ve got jury trials which are Criminal trials and we also have some jury trials in Common Law. What happened when we had to shift to online, is that jury trials had to be suspended.
But all our non-jury work in Common Law, Commercial Law, and in crime … we basically conducted online and we were able to keep up with all of those lists in each of those
jurisdictions- jury trials being the exception.
What about for families, offenders, and victims, how has the move to online trials impacted them?
FROM our perspective, where we are conducting the hearings online, like anything online it’s not as good or as perfect as an in-person exchange. There’s a reason why courts have always operated in person, because it’s easier.
Communication flows more freely and people are generally more engaged.
While we don’t speak to these people, I think we can be confident that some offenders and some victims would have a preference to do things in person.
But can we get justice done remotely, when we need to? We can.
What we do know is this, with the pandemic and the use of technology, that’s enabled people to participate in court hearings much more conveniently in certain situations, for example when people live far away from the nearest courthouse.
So, what the digital space is offering is participation and attendance for a section of our community in a much more convenient way than in-person attendance.
In an environment when we’re very conscious of family violence and tensions between families in court cases, it also provides an opportunity for safe participation for a number of people that would prefer to remain at a distance and follow a proceeding remotely.
How has COVID-19 impacted the three different divisions of the County Court, Criminal, Commercial and Common Law? Has it been a different experience for each area?
I THINK it largely depends upon whether the division is a jury division.
So let’s take Common Law. They do some jury work and some non-jury work, but the law has always allowed for their jury cases to be converted into a judge alone case.
Throughout the pandemic, all of the cases which might have been jury cases have been converted into judge alone trials.
And as for Crime, we haven’t been able to do jury trials whilst we’ve been in lockdown, and as result there’s been a backlog, a significant backlog for jury trials.
You mention in your annual report that COVID-19 has resulted in a number of upgrades in courtroom technology and physical layout, could you tell me about this and how these upgrades will impact proceedings moving forward?
IN ORDER to get jury trials up and running during the pandemic – because there have been times when we haven’t been in a full lockdown where we have run jury trials– we have run our trials in a socially distanced environment.
So, what we did in terms of the layout was to convert a number of our rooms to make them suitable for social distancing. We increased the size of the jury boxes, we
paired each courtroom with another bigger room for the deliberation of jurors, so that they had a good sized deliberation room – more often than not that was just another courtroom. And of course, the seats and chairs within the room were moved.
Technology is a journey, and there’s never an end… one of the things we’ve been focusing on in the County Court is ensuring that our video and audio-visual facilities in the court rooms are high grade digital facilities so that they can facilitate the most reliable and most effective way of bringing people appearing remotely into the court room. As we know, if someone is on the screen, and it’s a clear screen, its high resolution and the sound quality is good, and it’s reliable and predictable, then someone can meaningfully participate in a court hearing. Of course, if that all starts to break down it becomes problematic.
Remote participation is not new, the pandemic didn’t cause us to go down the path of remote participation, we were already doing that. But it’s obviously accelerated that to a very large extent. We have almost completed our upgrades in our courtrooms to high resolution digital audio-visual technology.
In the future, this will just give us the options or the opportunities to allow people to meaningfully participate in hearings remotely when it’s appropriate.
Many trials have been conducted as judge alone trials, does this have the potential to have an impact on the outcome?
THEY conduct the trial on the same evidence as it goes before a jury, it’s just that the judge is the ultimate decider in place of the jury. The same law applies, whether it’s a trial
before a judge or before a jury.
If it’s a jury, the judge would direct the jury as to the relevant law that applies and how the relevant law applies to the facts, and the judge would
give the jury some assistance as to the evidential matters that they would have to consider in resolving the facts in issue.
With a judge alone trial the judge is giving himself, or herself, those same directions. So, in fact the trial record in many respects is identical, and the manner in which the trial is ultimately conducted having regard to the laws of procedure, laws of evidence, and the facts, or the evidence in the case in light of all the arguments put by counsel is the same. It’s just you’ve got the judge deciding the decision rather than the jury.
If you look at the statistics throughout the country where the two systems have been in place for a period of time – such as NSW -the broad statistics are pretty similar in terms of the outcomes, whether it’s judge alone or jury.
Have trials with juries having not being able to go ahead increased the number of people out on bail?
BAIL is always decided upon having regard to a variety of issues, or a number of relevant factors. Delay can be a factor, so if the delay is going to be longer, then that’s a matter that the judge will consider when determining whether or not to grant bail.
But its only one factor, even if the delay is significant.
Ultimately, if the person charged with the offence is an unacceptable risk to the community, that is an unacceptable risk for committing further offending, or an unacceptable risk of interfering with witnesses, then they’re not going to get bail even if the delay is significant.
Because there’s a backlog of cases, we’ve got more cases on our books, so there will probably be more people out on bail. And there may be some cases where the delay, the significant nature of the delay, has tipped the balance in favour of granting bail. But each case depends upon its own facts, and as I said, if there’s an unacceptable risk that the offender poses to the community they’re not going to get bail.
Does this pose any significant danger to the community, specifically for areas with high crime rates like the Latrobe Valley?
EACH case depends upon its own facts. If a person charged with a serious criminal offence represents a significant risk, then they’re not going to get bail. And that would be the
case whether it’s the Latrobe Valley or Melbourne.
When people are charged with criminal offences, they’re not then convicted of those offences – they are presumed innocent until they have their trial … that’s why people get bail, because they’re not convicted criminals at that time.
Judges obviously have to apply the law that’s put before us, which parliament passes, with respect to bail. But is there a risk that people may re-offend on bail? Of course there’s a risk.
But that’s part of the justice system, we are always balancing different factors. Risk is one of them. But there comes a point where there might be one case where the offender has demonstrated that the risk very small for them, and all other factors when they’re taken into account justifies that person getting bail.
With the return of juries, how will the court procced to move through the back-log?
WE’VE just re-commenced juries in here at Morwell. In fact, we’ve recommenced statewide. We will get a cohort of jury trials done before Christmas, and then next year, all things going well and provided that there are no changes to the restrictions, we will be conducting jury trials statewide – back to our full capacity.
Indeed, we will be going beyond our normal capacity. We were able to do that for two reasons with jury trials. The government has provided the Court with some advanced judicial replacements.
So, where judges are due to retire in the next few years, the government has provided
funding to allow us to replace some of those judges in advance, so we are getting additional judges for a period.
We have also engaged further reserve judges. A reserve judge is a judge who is retired but comes back part time.
So we have more judicial officers available, at least for the forthcoming period to tackle jury trials.
So, my expectation is that next year we will be in the position to, hopefully, do more jury trials then we’ve ever done before as we move through the course of the year. Of course I say hopefully, because I don’t control the health situation, or the nature of the restrictions that are put in place.
With the Latrobe Valley, we’ve got two judges who will be sitting here for the entire time each circuit period next year, back to back, usually doing criminal jury trials. We wouldn’t
normally have that.
In (the) Latrobe Valley we will be increasing our jury trial capacity by about 30 per cent overall.
How may the delays in criminal trials impact their outcomes, for example witness testimonies, changes in relationships and so on?
DELAYS always have some kind of negative impact. Whether it’s an accused person who is awaiting his or her trial, it’s stressful, or a complainant in a case, everyone wants – quite naturally – justice as quickly as possible.
Likewise, family members, are the same, being involved in a court case is a stressful experience.
The sooner we can bring cases to a resolution, the better for everybody.
In terms of the quality of the evidence and the outcome, of course, the law has a long experience in dealing with questions of delay. We’ve always had cases which involve
some kind of historical events, there’s nothing new about that. Not all cases involve events which were committed last year, for example – and that was so before the pandemic.
If there is a significant delay in a case, then that’s something that jurors are given directions about by the judge. They are told about the possible impacts that that may have had on that particular case … much depends upon the facts and circumstances of the individual case.
It seems in the past year the County Court has taken particular interest in working to identify causes of offending and rehabilitating offenders through the Court Integrated Services Program and the Drug and Alcohol Treatment Court. Can you tell me a bit about how these approaches may have an impact on Victoria’s future?
THIS is what we call Therapeutic Justice.
We know from our experience, the experience of our court, it’s the experience of the law in fact, that a very significant cohort of offenders come to court with great social disadvantage.
Alcohol and drug addiction challenges and problems, mental health difficulties and accommodation problems – there’s no continuity or steady accommodation for those offenders who come before us, and significant relationship challenges.
If the law can do something to promote their rehabilitation and reform, that obviously reduces their prospect of re-offending, which means the community is safer.
With the end of the County Courts 2017-2022 roadmap coming next year, what are the courts goals for 2022?
WE WROTE that roadmap before the pandemic, so everything has changed.
Next year, I think the priority is to re-establish the Court’s business as usual approach to work.
It sounds a humble goal. But in the context of what’s taken place over the last two years, if someone could say to me right now that we wouldn’t have any interruptions over the next year and we’ll work to our full capacity, then that’s not just my immediate goal – that’s almost my sole goal for next year.
Allied to that, one of the shorter term objectives is that we want to address what we retain from the pandemic, with respect to the use of technology and remote participation in hearings. There’s no doubt that some aspects of what’s occurred during the pandemic have been positive.
