According to practice notes released by the District Court, applications for all judge-alone trials may be made in “exceptional circumstances”. Even then, only in Perth.

For those that are proceeding with judge-alone trials, the judge must ensure all guidance and social distancing restrictions are adhered to and the conduct of the trial is the matter for the judge’s discretion, including whether it proceeds via digital means.

So how are Western Australian courts surviving this pandemic? Lawyers Weekly checked in.

Supreme Court
With regard to the Supreme Court, since 16 March when jury trials were suspended, eight have been adjourned due to the COVID-19 pandemic. Other matters vacated would likely be because of different reasons, and some are still being dealt with by the court.

One trial was brought forward by a “significant time frame” because the accused persons requested the case be heard by a judge-alone trial.

Two cases before the Supreme Court were held urgently and electronically, in the face of COVID-19 restrictions. In one, the court was determining the fate of $27 million held in an account under the control of Clyde & Co. The court finalised orders, but it was requested that delivery be held off “for a reasonable period”, determined by the pandemic.

In a separate case, JCK Australia v CH2M Hill Companies, the respondent requested an adjournment on the grounds of COVID-19, but it was rejected due to the “experience from the court that the conduct of appeal hearings by telephone has been satisfactory”.

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Ultimately, the Supreme Court was confident in its ability to hold the case via a video link and adjourning would be “antithetical due to administration of justice in state of Western Australia and at odds with the achievement of the goal and orders”.

District Court
The District Court of Western Australia vacated all jury trials listed in Perth and in regional courts from 17 March 2020 until 3 July 2020. Since then, 163 trials have been vacated in Perth and 65 matters listed for a possible trial hearing within regional areas.

Fourteen vacated trials have been granted judge-alone trials, and these will be heard on dates previously allocated for the accused’s trial by jury. According to a spokesperson, a judge-alone application “can only be considered for Perth” and the option is not presently available in regional courts “given the regional lockdown imposed in this state”.

“Although the District Court COVID-19 guidelines set out issues relevant to consideration of an application for a trial by judge alone, including in COVID-19 public health measures, any application for trial by judge alone must be judicially considered applying the factors set out in the Criminal Procedure Act,” the spokesperson added.

“All trials that don’t proceed by judge alone are referred to compulsory case conferencing. Compulsory case conferencing is a judicially led mediation process conducted on a without prejudice basis and specifically introduced to reduce the number of trials and the length of trials requiring relisting once COVID-19 measures are removed.”

In the case of The State of Western Australia v Bouwman, the District Court had alternate arrangements in place to ensure the case proceeded under COVID-19 restrictions. Only one witness was in the room, and it was necessary for practical reasons.

“At the time of this trial, Western Australia faces an unprecedented health crisis from the COVID-19 pandemic. Consequently, I directed that the evidence of witnesses in this case, as far as practicable, be taken by video link from a remote room within the court building rather than from requiring the witness to come into court,” the court documents read.