4. Criminal Procedure

​A.  Adjournments

i.  Legislation

​As of the last update, we are not aware of any COVID-19 related legislation in this area.

ii. Cases

​In R v Collaery (No 4) [2020] ACTSC 61, the ACT Supreme Court declined to vacate a hearing listed for trial two weeks later. In determining that it would not be appropriate to vacate the hearing date, the Court took into account the following factors:
  • the delay that would be caused, in normal circumstances, by vacating dates that were mutually convenient to counsel and had been set for some time ([6(a)]);
  • that the potential for delay in re-listing the matter was increased by the COVID-19 pandemic — in particular, by the uncertainty as to when circumstances might improve ([6(b)]);
  • that the procedural history of the matter involved a previously set hearing date being vacated and there was a strong public interest in having serious criminal charges determined promptly ([6(c)]);
  • that there was insufficient material before the Court to demonstrate that there would be any difficulty involved in conducting the hearing, such as to give rise to injustice to the parties ([6(d)]); and
  • that the Court was, at that time, still conducting oral hearings ([6(e)]).

However, the Court noted that circumstances were changing rapidly in response to COVID-19 and that the issue of whether the matter could proceed by oral hearing might need to be revisited at a later stage ([7]).

Subsequently, in R v Collaery (No 5) [2020] ACTSC 68, the Court vacated the hearing date, after that course was consented to by the Commonwealth Attorney-General and Director of Public Prosecutions.

The Court reiterated a number of the matters it had identified in R v Collaery (No 4) as weighing against adjournment of a trial (see: R v Collaery (No 4), [6]; and R v Collaery (No 5), [12]). The Court also observed that, in circumstances where increased community transmission of COVID-19 would present increased risks for lawyers and witnesses in higher risk categories and where those risks were likely to abate only with the widespread use of a vaccine, the vacation of a listed hearing might have adverse consequences for a defendant who has an interest in having a hearing under s 27(3) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) conducted as soon as possible ([13]).

In granting the application to vacate the hearing date, the Court took account of the following:
  • that the potential impact of movement restrictions on the availability of witnesses was a significant factor impeding the proper conduct of the hearing ([16]-[17]);
  • that movement restrictions would exacerbate difficulties with the management of confidential information during preparation for and conduct of the hearing ([18]); and
  • the general desirability of participating in a reduction of human interaction, in circumstances where that was the clear policy of Commonwealth, State and Territory governments ([19]).

In Guest v DPP [2020] VSC 218, the applicant, who had pleaded guilty to attempted murder, sought an adjournment of his plea hearing for six months, in light of the impact of COVID-19 on prison conditions. Jane Dixon J refused that application, applying the well-known principles relevant to such an application to the new circumstances presented by COVID-19. Her Honour referred (among other things) to:
  • the observations by the Court of Appeal in Brown v The Queen [2020] VSCA 60 at [48] as to the need for evidence of COVID-19 impacts when relied on for sentencing ([49]-[50]; see also the Sentencing section in Chapter 3);
  • that the applicant was not especially vulnerable, but rather relied on a risk of COVID-19 posing a threat to prisoners in the future (at [53]); and
  • the “legitimate public interest in ensuring that criminal proceedings are dealt with in a timely way, when it is practical to do so in the current COVID-19 environment, thus alleviating the distress felt by victims of crime when matters are adjourned for lengthy periods” (at [57]).