Litigation in the time of Covid

The outbreak of Covid-19 and the proclamation of a pandemic has been making most human activities challenging.  Litigation is no different: at present I’m looking at an array of hearing dates being pushed off into the ether for want of a jury.

For better or worse, the Courts can order matters to proceed as judge-alone trials rather than jury trials.  A short decision from the Supreme Court of Victoria gives some idea what factors will be considered in the time of Covid.

In the matter in issue the plaintiff alleged that he was sexually abused at a Victorian school.  Proceedings were issued in the Supreme Court of Victoria and both parties requested that it be heard by a jury.  The plaintiff subsequently asked for the matter to be heard without a jury, which the defendant opposed.

Photo by cottonbro on

Macaulay J noted that –

It is not currently known how long the suspension of jury trials will last. Doing the best I can, I think the projection is likely to be of the order of many weeks not just days. It could be a number of months.

He also noted that the effect of this would be to cause significant delays and extra strain on the Court system.  While the Court had a discretion to dispense with a jury in the interests of justice, a jury would generally decide the matter if a party so requested.  His Honour also observed that the Civil Procedure Act 2010 obliged him to promote the just, efficient, timely and cost-effective resolution of the issues in dispute.

The factors Macaulay J particularly considered relevant to the justice of the case were –

  1. The nature of the plaintiff’s injuries and the impact of the litigation process on him
  2. The “unprecedented nature of the current coronavirus crisis means that it is totally uncertain when this case could be heard again before a jury”
  3. What the case would be heard again it would be competing for a hearing date with many other matters.
  4. There was no factor in the case which would make a judge-alone trial unjust.
  5. The delay and the uncertainty as to a new hearing date stood to cause “real injustice to the plaintiff”.
  6. There was a public interest in cases being dealt with in an orderly, timely and cost-effective way.  This contended against deferring cases in a situation of uncertainty

The Court decided that the matter should proceed without a jury.

Mulquiney v Reynolds [2020] VSC 119

Nobody wants to see it

A recent case from the Geelong Magistrates Court (Victoria, Australia) gives an insight into penalties for indecent exposure.

'Sorry, I'm a doctor. If you want that looked at, you'll have to make an appointment like everyone else.'
Image from here

On 8 October 2017 a 31 year old man asked a 46 year old woman walking on a trail to “show her tits”. He then exposed himself to her. It appears he was charged with breaching section 48 of the Crimes Act 1958 (Vic.), for which the prescribed penalty is five years imprisonment:

(1) A person (A) commits an offence if—
(a) A engages in an activity; and
(b) the activity is sexual; and
(c) another person (B) sees the activity or a part of the activity; and
(d) A knows that B will see, or will probably see, the activity or a part of the activity; and
(e) A—
(i) intends that B will experience fear or distress from seeing the activity or a part of the activity; or
(ii) knows that B will experience, or will probably experience, fear or distress from seeing the activity or a part of the activity.
(2) A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).
A mistaken but honest and reasonable belief that the activity was not sexual is not a defence to this offence.

McGarvie M accepted that the man had no criminal record and that the offense was out of character. However, she considered that the victim would have been confused and then horrified. The offender was placed on a 12 month good behaviour bond and fined $500.00 without conviction.

Police v Devlin (2018), Geelong Advertiser, 16 April 2018, p.14