The coronavirus restrictions passed in 2020 requiring courts to go virtual is an under-appreciated but serious threat to the traditions that have been built up over centuries to protect our freedoms and the rule of law.
The first and most striking change from ordinary court process came with the announcements, beginning in March, that jury trials in all states and territories will be suspended for various periods of time.
While for most states and territories waiving the right to a jury trial must be with the consent of the accused, the Australian Capital Territory passed legislation – the COVID-19 Emergency Response Act 2020 to operate from March 16 to December 31 – to allow courts to enforce judge-only trials irrespective of the wishes of the accused.
Last month, Victoria’s parliament passed the COVID-19 Omnibus (Emergency Measures) Act 2020, briefly infamous for its planned powers to enforce virus containment measures and for giving designated authorised officers the ability to detain people upon suspicion they might break rules. These were rejected. But among more controversial provisions, it also amended the criminal court process to allow for judge-only trials if considered in the “interest of justice”.
Currently, challenges to provisions allowing judges to order that a trial be conducted without a jury are yet to be considered by the High Court. There has been, however, a number of cases before lower courts in various states and territories. One of the most significant cases was R v Coleman, which came before the ACT Supreme Court in April. In that case, Justice Michael Elkaim accepted a judge-only trial could be ordered despite the accused arguing that the order would not only be contrary to the Magna Carta, but also the ACT’s own Human Rights Act.
The fact that emergency provisions to suspend jury trials have been accepted by the courts is a surprising violation of a pre-existing legal right captured in Article 39 of the Magna Carta that states “no freemen shall be taken or imprisoned except by the lawful judgment of his peers or by the law of the land”.
Jury trials have been a centuries-long practice to ensure the administration of justice is consistent with the expectations of the public or, as former High Court Justice Gerard Brennan put it, the jury trial is “the chief guardian of liberty under the law”. Even in 1215, Article 39 of the Magna Carta was merely a codification of an existing norm. This norm was subsequently transported to Australia and restated in section 80 of the constitution, which guarantees a jury trial for indictable offences.
Suspension of the jury trial may be the most important change in court process, but is by no means the only one. From March in-person court hearings that bring parties into the same room were replaced by the “virtual courtroom” in order to continue through the coronavirus restrictions. This has serious consequences for the judiciary’s capacity to achieve just outcomes. Almost every aspect of the physical court and the processes have been developed over centuries with justice in mind.
Oral evidence gives a chance to test not just the facts but also the reliability of the witness. The practice of bowing towards the coat of arms signals respect for the rule of law. The garb anonymises and symbolises that the judge and lawyers are carrying out a function, rather than acting in a personal capacity. But over video many of these practices have changed beyond recognition. Facial expressions and gestures are low-resolution, delayed or out of shot. The public listening in is not required to participate in customary shows of respect. Lawyers are in chambers or home offices surrounded by personal paraphernalia. The strength of traditions is that their value is not in their practicality – it is in their symbolism.