Written by Third prize winner of Dennaoui Lawyers Student Awards: Maha Mahmood
COVID-19 has been the most unprecedented, emotional and frustrating time for all Australians. It has affected each one of us in different ways. It has affected each discipline in different ways – whether that is the medical field, the education system or the law and justice system.
The restrictions that have been put in place due to COVID-19 have vastly impacted the legal system. Private firms have closed and made the move to working from home, trying to solve cases virtually. Many clients’ trials have been pushed forward because of the requirements of quarantine and now need to wait, silent yet worried about the future. However, we, as Australians, need to be hopeful. It is true that the Magistrates’ Court has adjourned over 7000 cases, not deemed a priority, to a date in September but matters concerning bail applications, remands relating to family violence, filing hearings, committal mentions, and county court appeals are continuing. This is because our Government has stated that these matters can safely continue. It needs to be understood that we, Australians, are being looked after here. Our safety is being considered as first priority.
Having said that, however, it is prudent to consider whether the rule of law is being upheld during these times and whether our human rights are being permanently and unreasonably impacted. A recent legislation in relation to Judge Alone Trials was enacted on 25th April as part of the COVID-19 Omnibus (Emergency Measures Act) 2020 in relation to courts ordering trial by judge alone. This legislation amended the Criminal Procedure Act to, inter alia, provide for trial by judge alone as a mode of trial for indictable criminal matters in particular circumstances This legislation has been enacted in response to the COVID-19 pandemic and is reasonably acceptable as it has been placed for the safety and security of many, however, there are certain human rights laws that may be affected, specifically, the constitutional express right to be tried by a jury.
According to this constitutional express right, criminal trials in Victoria must be heard by a jury, reflecting the longstanding and fundamental role of juries in the criminal justice system. The Attorney-General, in the Second Reading Speech stated that the fact that the Supreme Court and County Court have had to suspend new jury trials due to the COVID pandemic “raises significant issues for the justice system particularly for accused persons facing indictable charges who are on remand, and victims of crime, who may experience further trauma due to delays”. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury’s verdict than it would be to accept the judgement of a judge or magistrate who may, be portrayed as being over-responsive to authority or remote from the affairs and concerns of the ordinary and reasonable person. The random selection of a jury panel, the public anonymity of individual jurors and the jury’s isolation from external influences is all present to not only protect the victim’s privacy and honour but also to ensure that the accused is granted a fair and just trial. The twelve jurors chosen at random are likely to represent community views and values in a way that a single judge may not. Juries, because they do not give reasons for their decisions, can bring the conscience of the community to bear on issues in a trial in a way that a judge is not likely to be able to do so. Furthermore, the community participation in the administration of criminal justice, by way of jury service, promotes an understanding of the system in a way that no other system does; it promotes the principles of fairness and justice that are supposed to be at the core of the legal system. These are all reasons of why trial by jury has existed and why it became a constitutional express right in the first place.
In their best efforts to ensure fairness, however, there are four principle pre-conditions about which the Court must be positively satisfied in Victoria, before the discretion to make an order for judge alone trials, one of which is each accused must give their consent to the making of an order for trial by judge alone. Despite this effort, the fact remains that the accused’s whom do provide their consent, will still not be granted the constitutional right of being tried by their peers. However, it also needs to be considered that the world is undergoing a global pandemic. Times are changing. Is it reasonable to push all cases forward to protect every Australian’s constitutional right of being tried by a jury and not consider our other right of being tried within a reasonable time so as to affect the interests of justice?
Chief Judge Kidd in DPP v Combo  VCC 726, commented on the interests of justice and stated that “the public interest concerns ensuring the integrity and proper functioning of the criminal justice system within the courts, as well as ensuring that the accused receives a fair trial according to law”. His Honour then states that where the interests of justice will lie depends on each particular case, where no single factor will be determinative. In this view, granting applications for judge alone trials will allow the administration of justice to continue, and reduce delays, both for the courts generally, and for accused people in particular.
Trial by jury has always been Victoria’s position for criminal trials – a position that Victoria intends to return to, however, it is being asked for the philosophical, historical and traditional considerations to take a back seat to the reasons for enacting the Emergency legislation in the first place, since the reasons to be tried by a jury can apply in a world where juries can gather together without contracting or spreading COVID-19. It is considered reasonable for Victoria to allow the option of Judge Alone trials during this pandemic because of the indefinite delay putting a hold not only on the administration of the justice system but also in the lives of many people who are affected, specifically, accused people and victims of crime.
This time that we are going through is a very unpredictable, unprecedented, changing time. The fact that the legal system has been affected is not in question, because it inadvertently has been and it is scary where the future of the justice system is considered, because it is no longer a debate between trial by jury and judge alone trials, it is about the rights of the people and the interests of justice that need to be put first and foremost to ensure that miscarriages of justice are not resulted.
Criminal Procedure Act 2009, s 420D.
 Australian Constitution, s 80.
 The second reading speech for the COVID-19 Omnibus (Emergency Measures) Bill 2020 was incorporated by reference in the Legislative Council.
 DPP v Combo  VCC 726, Chief Justice Kidd at 48.