4. Criminal Procedure

​B. Hearings by Alternative Means

i.  Legislation

Victoria:
Evidence (Miscellaneous Provisions) Act 1958 (Vic) amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).
 
Oaths and Affirmations Act 2018 (Vic) amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).

New South Wales:
​Evidence (Audio and Audio Visual Links) Act 1998 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW).
 
Made under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW):  ACT:
Personal Violence Act 2016 (ACT) amended by the COVID-19 Emergency Response Act 2020 (ACT).
​
​ii.  Case law

​In responding to the exigencies of the COVID-19 pandemic, courts have been prepared to proceed by video-link to hear applications for bail (see, for example, Rakielbakhour v DPP [2020] NSWSC 323, [13]) and to pronounce sentences (see, for example, McAndrew v Simmons [2020] NSWDC 81, [3]).

However, where a virtual trial is impractical, an accused’s right to a fair trial may be put at risk by requiring the trial to continue virtually. In those circumstances, an adjournment may be warranted, even after the trial has commenced: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11) [2020] NSWSC 382, [29]. In that case, a virtual trial was held to be impractical where: defence counsel acted for the accused on a direct access basis; the accused had insufficient computer skills to provide instructions by email during the trial; and poor internet access and other technological impediments existed (R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11) [2020] NSWSC 382, [24]-[29]).

​The issue of whether and, if so, in what circumstances, counsel may be permitted to withdraw from a proceeding because of some risk posed by COVID-19 to their health was raised, but ultimately not determined, by the Court in Kahil v The Queen [2020] NSWCCA 56 ([21], [27]). In that case, counsel withdrew without leave to do so and the accused successfully appealed the trial judge’s refusal to adjourn the trial after counsel withdrew. The Court relevantly held that the trial would be unfair if it proceeded in circumstances where the accused had become unrepresented through no fault of his own ([21]-[25]).