It Just takes Practice (Notes)

When the pandemic struck, some people took up breadmaking to while away their extra time at home. I took up Practice Directions; the construction and interpretation thereof. It started quietly and simply enough – the equivalent of purchasing a Brickfields organic bread mix and using a bread maker. The High Court made the first move, with a single announcement that all physical appearances were cancelled forthwith. If one thought this announcement dramatic at the time, in fairness to the High Court, it proved to be prescient. Furthermore, it was mercifully unambiguous. The State jurisdictions soon followed, but due to efforts to keep critical work continuing as much as possible, the moves away from physical appearances were staged, complex, and varied across jurisdictions. In the very early days of the pandemic, for example, it appeared that there was not a lot of change to practice in criminal trials, but for the very pleasing news that the Downing Centre public area toilets were to be cleaned.

Unprecedented times were almost immediately upon us, though. All of a sudden, no measure seemed too extreme. Holidays and parties were cancelled. The Practice Notes began being issued in earnest, with new ones most days of the week. Keeping up now required a religious commitment similar to developing one’s own sourdough starter. ‘Practice Direction number 12 replaces practice direction numbers 2 and 3 and consolidates 5 and 9, but for bail applications, in which case practice note 8 refers’. An [all-male] Heads of Jurisdiction meeting decided that no wigs would be worn in AVL appearances on the very same day that the Prime Minister announced the closure of hairdressers around the country.

Due to the need to rapidly adapt to the ever changing progress of the pandemic, the Notes were long, and filled with conditional hypotheticals: 'If the accused is on bail, go to clause 4.5; if the accused is on bail and pleading guilty, clause 6 applies; if on a realistic appraisal the accused is more than likely to go to gaol, go to clause 6.5'. Registrars issued notifications which were meaningless to all but the IT crowd: 'Practitioners are requested to use a SIP address where possible but if using a WebLink please ensure it is supported by a browser with appropriate minimum capability'. Perhaps reactively, the language of the memoranda became more arcane: 'Clause 5.5 applies only in circumstances whereby the listing necessitates a break in the remand'.

'Ok, like, whatever, Boomers' sighed the millennials, who hadn’t read the Practice Notes but were coping just fine appearing in court from their phones at bus stops or in bed, having electronically modified their backgrounds to display Commonwealth Law Reports, and applied the 'touch up your appearance' function on Zoom to its full effect.

The generational divide expanded. It was as though every remote court hearing across the State had a relaxed and well-presented young person with a functional wifi connection appearing for one party; and a close-up camera view of somebody’s isolation beard, appearing for the other. After several minutes of miming, the beard owner would finally locate the unmute button, adjust the camera so it displayed the crown of his head, and attend to loudly shuffling papers immediately adjacent to his microphone, before accidentally disconnecting altogether.

Even when the users were competent, if the connection was poor, lists took on a farcical quality. 'Your Honour my client pleads indecipherable.' 'I beg your pardon Ms D, was that indecipherable or guilty?'
'Yes, I’m sorry your Honour, indecipherable guilty'. Eventually, the [20-something] DPP clerk intervenes: 'Your Honour, if it assists, I have contacted Ms D’s instructing solicitor via Snapchat and he confirms that the plea is one of Not Guilty.'

Connectivity issues meant that the virtual courtroom became gloriously non-hierarchical. At a traditional call over, senior counsel can arrive whenever they please, using rumpled silk robes to part the crowd of punctual anxious juniors and have their matter dealt with immediately. The justice department AVL system did not recognise the inner bar, nor seniority of any sort. Only IT competence and – relatedly – the stability of one’s internet connection made a difference to one’s position at the virtual bar table. Eminent silks would be cut off and ejected from the virtual courtroom mid-pontification because there was 'too much traffic' on the line. Or at least that was the reason given.

As we (hopefully) emerge from the other side, however, there are positives to take with us. Barristers have learnt what hitherto many considered impossible: waiting one’s turn to speak. We have finally caught up with the reality that it is not necessary to take the train to Burwood to obtain a consent adjournment. For an appellate advocate, the benefit of being able to mute the microphone and freely discuss one’s opponent’s submissions in real time, is only surpassed by the discovery that in the Banco Court, the position of the bench microphones means that one judge is unable to whisper to another 'when is she going to finish this unfortunate submission?' without being heard loud and clear over the AVL. And did I mention the Downing Centre….?