Courtrooms in the time of Coronavirus


Progressively in the last week, Phillip Street and the Queens Square precincts have been emptying. Wigs are off and Chambers and Courts are virtualising from the backyard. Already in these rapidly changing times, a COVID-19 precipitated matter has entered a judgment of the Court of Criminal Appeal in Kahil v R [2020] NSWCCA 56.

The plea of the near septuagenerian Barrister

The Barrister in question was representing an accused person in a drug importation trial with an estimate of 3 weeks.

Midway through the hearing, feeling unwell, the Barrister informed the Court that he had a compromised immune system, was of an advanced age (69) and therefore at greater risk, plus, he had recent proximity to his client whom he described as “fluey”. The Barrister also noted that he had presented at a testing clinic for the COVID-19 virus but had been turned away on the basis that he did not qualify for a test.

The Trial Judge said words to the effect, “I’m not going to abort the trial simply on the basis that you feel that you may have come in contact with someone who has the flu”. The Barrister remained standing yet said nothing. The Trial Judge continued, “Standing there at the Bar table like a shag on a rock is not advancing anything.” Shortly after, the Barrister withdrew from the trial but without leave of the Court, ordinarily, something of great exception.

The Crown also supported the application for the discharge of the jury, noting that it was a concern of the Crown, the DPP and the New South Wales Bar Association, that practitioners ought not, through being required to perform their professional obligations in representing clients, be exposed to unnecessary risk with respect to their health.

But the Trial Judge ordered that the trial continue notwithstanding the withdrawal of the accused’s Barrister.

For the balance of the afternoon, the trial continued with the accused represented by his instructing solicitor who had never previously run a criminal trial and ordinarily did not take on criminal law matters.

Incidentally, the orders of the Trial Judge were made last Monday, 23 March 2020. Later that day, at 11:59 pm, a range of upgraded measures to tackle the spread of COVID-19 were implemented and have been subsequently increased. Similarly, since that time, practice and procedure in our courts has changed dramatically on account of the risk posed by COVID-19.


The accused appealed the interlocutory decision of the Trial Judge under s 5F of the Criminal Appeal Act 1912 (NSW) on the basis that his trial continue notwithstanding the withdrawal of his Barrister.

On appeal, leave was granted and the accused was successful. As a result, the jury was discharged. A new trial will commence in due course.

The Single Issue

The single issue confronting the Court of Criminal Appeal was whether it was in the interests of justice to require an accused person in a criminal trial then running before a jury to continue in the trial without counsel of his choice. The Court of Criminal Appeal held that the accused’s right to competent representation at his trial should never have been subverted or compromised by the desire to keep his current trial on foot.

COVID-19 Practice and Procedure – A Consolidated Guide

The NSW Bar Association is maintaining a guide to the various COVID-19 court arrangements in NSW and in Federal Courts and Tribunals. The guide covers information for those attending court as well as up to date information on procedural changes being made in view of the coronavirus pandemic in the various jurisdictions.

A link to the helpful publication is here.


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