Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11) [2020] NSWSC 382
Court: Supreme Court of New South Wales
Date: 8 April 2020
Judge(s): Fullerton J
Background
Three accused were standing joint trial on criminal charges when, after nearly five weeks of proceedings, the trial was adjourned in mid-March 2020 in response to the emerging COVID-19 pandemic. The Chief Justice subsequently directed that from 24 March 2020, no physical appearances would occur in court matters save in exceptional circumstances.
The Court attempted to resume the trial through a "virtual courtroom" arrangement using audio-visual link (AVL) technology. These attempts revealed significant and persistent technological difficulties, including parties being unable to connect at all, repeated drop-outs during proceedings, and poor audio quality that compromised the transcript.
One of the accused appeared without an instructing solicitor, represented directly by counsel. His counsel deposed to specific practical difficulties arising from conducting a complex criminal trial remotely, including his client's limited computer skills, an inability to communicate instructions effectively in real time, and connectivity problems at his client's home.
Legal Issues
- Whether the joint criminal trial could continue in a virtual courtroom format consistent with the accused's right to a fair trial.
- Whether orders should be made under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) directing witnesses and the accused to appear by AVL.
- Whether the trial should be adjourned part-heard to a later date.
Decision
Issue 1: Practicability of the virtual courtroom
The Court found that conducting the trial in a virtual courtroom was impractical. A test run on 24 March 2020 revealed the AVL system could not comfortably accommodate all six counsel and their instructing solicitors, and the Court Book exceeded 7,500 pages with 79 additional documents marked for identification (at [4]-[5]). On 27 March 2020, parties repeatedly dropped out, audio was fractured or delayed, and the transcript was compromised (at [12]). On 6 April 2020, despite repeated attempts by all parties including the accused, no one could access the virtual courtroom at all, with proceedings eventually conducted by audio link only (at [23]).
Issue 2: Right to a fair trial
The Court held that the accused's right to a fair trial would be at risk if the trial continued under the prevailing conditions (at [29]). The evidence of counsel for one accused was particularly relevant: his client had limited computer skills, could not provide instructions effectively by email, required face-to-face contact to refine or confirm instructions during cross-examination, and experienced regular internet drop-outs at home (at [24]-[25]). The prohibition on non-members entering chambers further prevented any in-person arrangement between that accused and his counsel (at [24]).
Issue 3: Adjournment
The Court adjourned the trial part-heard to 31 August 2020, with a mention listed for 3 August 2020 (at [30]). The Court expressed hope, without assuming any easing of restrictions, that by that date counsel might be able to appear personally in a courtroom configured for social distancing, with witnesses and the accused retaining the option to appear by AVL under the Evidence (Audio and Audio Visual Links) Act if the facilities proved workable (at [31]).
Orders Made
- Trial adjourned part-heard to 31 August 2020.
Key Takeaways
- The Supreme Court held that an accused's right to a fair trial encompasses fair process and procedures, and that right was engaged where persistent technological failures made meaningful participation in a virtual courtroom impossible (at [29]).
- Repeated and entrenched failures of AVL connectivity, including a complete inability by all parties to access the virtual courtroom on 6 April 2020, were central to the court's conclusion that proceeding remotely was impractical (at [23], [29]).
- Where one accused appears without an instructing solicitor, the practical necessity of face-to-face communication between counsel and client during cross-examination is a material factor in assessing whether remote proceedings can deliver a fair trial (at [24]).
- The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 amended the Evidence (Audio and Audio Visual Links) Act 1998 to permit the court to direct witnesses and accused persons to attend by AVL, but the existence of that power did not resolve the underlying technological and fairness concerns that led to adjournment (at [7], [29]).
- In adjourning to a future date, the Court expressly declined to assume either an easing of social distancing restrictions or any improvement in the Court's capacity to conduct adversarial criminal proceedings remotely (at [31]).
Legislation and Cases Referenced
Legislation
- COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Public Health Act 2010 (NSW)
- Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW)
Cases
- Not stated