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Just over one week into the new year, physical courtrooms have shut their doors once again to mitigate the risk of spreading COVID-19 amid a surge of Omicron cases across NSW.

The Chief Magistrate of the Local Court, Judge Peter Johnstone, published a memo on Monday 7 January to announce all defended hearings in NSW listed up to and including Friday 21 January would be postponed, including hearings where the defendant is in custody. The judge said matters would remain listed for call over, and parties who are represented by a lawyer could be excused from attendance while their lawyer could choose to appear via audio-visual link or seek a later hearing date via email.

The decision to vacate courtrooms and postpone hearings for defendants has raised concerns for some lawyers, particularly those with clients who are being kept in custody on remand.

“For people in custody – and we have clients in custody – there is a presumption of innocence until proven guilty. Justice delayed is justice denied,” criminal lawyer and partner at Dowson Turco Lawyers Nicholas Stewart told LSJ.

“However, I would preface this by saying these are changing times and we are in a very dynamic, unpredictable environment [with COVID-19] … The decision is understandable, from a health and safety standpoint, because judicial offices and court staff and lawyers are exposed. It can be quite scary to attend court – from a virus point of view.

“I don’t think there’s any alternative; the good thing is that this is only a short deferment to the end of January and then a ‘wait-and-see’ approach.”

While the Supreme Court is out of session until Monday 31 January, it has advised any urgent civil hearings during the court vacation period should occur via audio-visual link (AVL), unless the judge deems an in-person hearing to be “absolutely essential”. The court said a decision on hearings from 31 January would be made on Monday 24 January.

Sittings for the District Court are also due to resume on 31 January. The court on Wednesday published guidance that all civil proceedings will move to virtual courtrooms, with no personal appearances allowed until further notice. Many types of criminal hearings will also go online including sentencing hearings, Local Court appeals, bail applications, and matters for mention.

District Court jury and judge alone trials will continue to proceed in-person; with anyone attending court, including jurors, required to take a rapid antigen test at the start of the trial and on every second day of the trial. Media will not be able to attend in person but may request a link to the virtual courtroom.

Stewart said the face-to-face interaction of parties was essential for jury trials.

“If you’ve elected to be heard before a jury and have your peers in society judge you or make determinations of fact, they need to see you in person. And even in non-jury trials or mentions, it is often very hard to run in an online court if you have technical problems,” he said.

He added delaying trials in criminal justice affect “everyone” – from traumatised victims to burnt-out police officers, and prosecutors dealing with huge volumes of material, to inconvenienced jurors and witnesses. He said the system was already struggling to catch up with delays from the past two pandemic years.

“I’ve got matters that have been running for years and we still haven’t had trials, after jury trials were vacated during lockdown last year. I’m still worried about some of those set for February and March this year. We know the longer matters go on, the harder it is for witnesses to remember what happened.”

The Children’s Court of NSW has excused parties from attending court in person unless otherwise directed. A memo published by the court on 8 January said all crime, parole, care and protection, education and AVO lists will continue to operate but should be conducted by audio-visual link (online). If necessary, the parties can attend the court to appear by telephone or by AVL where those facilities are available, but the memo encourages parties to avoid travelling to court and to attend remotely where possible.

NSW Health has advised office workers to work from home where possible until at least 27 January, and to wear a mask in indoor settings that are not private homes or accommodation.

The Law Society of NSW provides weekly COVID-19 email updates for lawyers wishing to stay across changing court procedures and requirements through the pandemic. Sign up to the emails here.