President's Message

15/05/2020

New South Wales Local Court: Preparation for return to defended hearings

The Chief Magistrate has communicated with the Association this week seeking the assistance of members in constructively engaging in the planning necessary for undertaking the return of defended hearings to the judicial activity of the Local Court of NSW. The Association wholeheartedly supports the safe return of hearings in the Local Court and all members must work to facilitate the administration of justice in this busiest of jurisdictions, within current health guidelines.

The Chief Magistrate has advised that steps need to be taken by the Local Court to continue to manage social distancing measures whilst at the same time reducing the significant volume of Local Court cases that remain for defended hearing.

Chief Magistrate’s Memorandum (No 10) – COVID-19 - Preliminary Arrangements for Return to Normal Sitting Arrangements which was issued on 7 May constituted the first step in that process.

Historically many Local Court matters listed for hearing turn into a plea of guilty on the day of hearing or are withdrawn by police on the allocated hearing date, which has flow on effects for the Court, practitioners and witnesses. Given current circumstances and the extra time for preparation of matters, practitioners should be in a position to advise of guilty pleas at the time of listing and should proactively facilitate discussions with the prosecutors to limit any required witness attendance.

The following order of priority will apply to Local Court criminal listings:

1. Custody defended hearings where a date had previously been set for hearing;

2. Domestic violence related charges and hearings for bail and non-bail defendants; and

3. Remaining general matters for hearing.

The first steps towards addressing the backlog in defended hearings in the Local Court will involve the use of a combination of physical attendance where it is safe to do so and available technology to manage these matters. It is expected that, initially at least, the accused in custody matters will appear by way of Audio Visual Link hearings in locations where that technology is available.

The Chief Magistrate has indicated to the Association that practitioners will need to make an application to the Court if they consider that it would not be in the interests of justice for a hearing to proceed with the accused appearing via AVL.

Where a custodial matter previously listed for hearing is pending at a Court that does not have access to AVL it will need to be listed at a Court that does have such technology available. The Chief Magistrate acknowledges that this may potentially cause inconvenience to parties.

There is no general prohibition on physical appearances by members in the Local Court. It is a matter for individual practitioners to consider in the light of current public health restrictions and their own health and safety. The Chief Magistrate has indicated that he is satisfied appropriate arrangements will be in place to manage social distancing where legal representatives choose to appear in person. The same considerations apply in relation to witnesses.

Where appropriate functional arrangements for appearance can be made through the use of technology the Court is content to continue to accept appearances remotely.

The Chief Magistrate has also advised that there will be a series of call overs conducted throughout the State to determine the status of in custody defended hearings which have so far been abandoned to a date in August. Those call overs will be conducted in mid-June 2020 as status hearings.

Each Local Court having access to Audio and Audio Visual technology will advise the parties of the chosen date. The Chief Magistrate has emphasised that practitioners should use their best efforts to ensure that they have consulted their clients and are ready to proceed on the day of the status hearing, which would greatly assist the Court.

It goes without saying that the Local Court is the busiest jurisdiction in the State. It also needs to be recognised that the Court has been hugely under-resourced for a long period of time and efforts by the profession and the Court to have this issue properly addressed by bringing it to the attention of Government have fallen on deaf ears. In the current environment it is more important than ever that this issue be addressed urgently.

Members in defended matters are also encouraged to be proactive in ensuring that the prosecution have allocated all summary hearings in order that discussions can be facilitated at the earliest possible time.

I join with the Chief Magistrate in strongly encouraging members, wherever possible, to resolve matters well in advance of any listing.

I ask all members with a Local Court criminal practice to use their expertise to assist the Local Court towards a return to normal activity at this challenging time.

Coroner’s Court at Lidcombe

In other news from the Court, the Chief Magistrate has also advised that, after discussions with the State Coroner and the establishment of appropriate control mechanisms with the assistance of Health authorities, listings at the Coroner’s Court in Lidcombe will commence on 1 June 2020.

COVID-19: Information for attending Court

The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements (link) has today again been updated in terms of recent developments.

Members are advised in this regard that, although the Bar Association is regularly updating the COVID-19 page of its website as information comes to hand, please refer to the latest court resources directly as developments are changing quickly at this time. Do not make any assumptions regarding your case without first doing so. Links to the various court and tribunal pages are provided in the body of the guide.

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