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A crowd, but distanced. (Photo: Getty Images)
A crowd, but distanced. (Photo: Getty Images)

OPINIONSocietyMay 12, 2020

A few metres from normality: On anxiety and alert level two

Contributing writer
A crowd, but distanced. (Photo: Getty Images)
A crowd, but distanced. (Photo: Getty Images)

They’re calling level two a return to normality, but for many of us that’s not really true. Sam Brooks, for one, is anxious as hell about the prospect of a world that’s more open, and more dangerous.

Less than two minutes after Jacinda Ardern announced we would be moving to level two, I messaged two of my best friends: “Wine at mine Thursday?” 

Within a minute both responded. “Keen.”

There wasn’t a doubt in my mind that I would be seeing these two people, one way or another, as soon as I was legally able to. I imagine thousands of similar plans were being made across the country yesterday. People are prepping to pop their bubbles, and I’ve got a bottle of fancy champagne that’s been waiting for the same treatment.

I’m so excited to see my two friends, to breathe the same air. I’m excited to share a bottle of expensive wine in cheap glasses. I’m excited to talk about the nothing that we’ve done and the everything we’ve felt. And I’m excited to do it over and over again for the foreseeable future, not just with those friends but with others.

But I’m also scared as hell. I’ve always been the one in group projects who does all the work because I don’t trust anybody else to do it properly. But that doesn’t work when it comes to a pandemic. It doesn’t work with a team of five million where everybody has to do their part.

A failing grade, to stretch the metaphor, means a different thing to some of us than others. I’m immuno-compromised (which, depending on my mood, I alter to immuno-fucked). That means I have a reduced ability to fight off diseases that non-compromised people might shrug off. Before Covid-19, I’d been dimly aware of it. I got my annual flu vaccine, I washed my hands, I was vigilant if I got a cold.

But when Covid-19 struck, and before the alert levels were even introduced, I was terrified. I didn’t want to be one of an ever increasing death toll (March is a terrible time to die – better to wait until the winter fashions are out, so your mourners don’t have to wear that black outfit just the once). So when the first cases started to appear, I self-isolated myself. That was a week before the alert levels arrived. 

Throughout lockdown, I’ve been nervous but calm. I’ve fielded questions from my best friend about his bubble situation (who can he see, when can he see them), I’ve stayed on top of the news, I’ve Zoomed my loved ones. Most depressingly, I’ve thought of the good old times when zoom was a verb a child would use to describe the sound a car makes, rather than a verb that an adult uses every day in a professional capacity.

Yesterday’s announcement brought a tremendous amount of worry for me. Of course I wanted the country to return to level two. It meant that our team of five million was doing well. They were doing the readings, handing in their homework and putting in the work.

Yet the anxiety was not dissimilar to what I felt during the previous move from level four to three. With every loosening of restrictions announced, I could see a hundred people trying to figure out a loophole – “Yes, but what is 10 people really?” Everybody suddenly becomes that dick in your first year philosophy class asking what is an essay anyway. People who you wouldn’t trust to tell you the time of day suddenly become experts on what social distancing really is. 

A drink? Poured by someone who isn’t in your bubble? Groundbreaking, honestly (Photo: Sam Brooks)

It’s not necessarily that my anxiety is about being unable to trust anybody; I’ve had that my whole life. Distrusting “a team of five million” is not significantly different from distrusting everybody except a select few. It’s the anxiety of having been inside for two months, having only had face-to-face contact with one person, and then my world suddenly being flooded with strangers.

I love going out to bars and restaurants with my friends – I truly miss the beautiful taste of a drink that arrives after the swipe of a debit card, rather than my own laboured heaving of a cork out of a bottle. But I’m not sure how easy it’s going to be to return to that simple pleasure when I’m worried if this surface has been properly cleaned, or if that person nearby has been around someone who hasn’t been careful.

For most people, level two means a turn down the road towards normality. It’s not that for me. I’m not sure whether I’m ever going to be able to go to a bar and not worry that it’s a gamble with my life. A low-level gamble as they go, a scratchie, but a gamble nonetheless.

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It’s also not a return for normality for many others. Despite the economy opening up, many of us are going into level two without jobs. Entire industries have been gutted. God knows how many restaurants or bars will actually open when they get the go-ahead. Our entertainment industry has pivoted to managing just OK, but a pivot back to normal is far from a certainty. For a lot of people, level two is going to mean facing a reality that has been lying hidden for the past six weeks.

When you’re surrounded by abnormalities, far closer than two metres away, you can accept your reality. Everything is equally ridiculous, so everything is equally unreal. We’re going to close down the entire country and shut ourselves away from each other for two months? A significant proportion of the country is going to need to be financially supported by the government, technically turning many of us into beneficiaries? Pile it all on, why not?

But as we turn towards normality, and towards reality, the loss of the past weeks is going to hit us. We’ve lost jobs, we’ve lost people, and we’ve lost a sense of security. Daily briefings from a charismatic prime minister and a reassuring civil servant have only gone so far to mitigate that. There’s going to be a long period of adjustment and acceptance. Some of us will have to learn not to hug our friends when we see them on the street. Others will have to learn what it’s like to not have a job, maybe for the first time ever. We’ve been trapped in bubbles with ourselves and our distorted realities for the past two months. Now they’re popping, and I think we’re realising that what we’re coming back to isn’t going to be normality. Nothing even close.

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Getty Images

SocietyMay 12, 2020

Court adjourned: How the pandemic is delaying justice in criminal cases

Getty Images
Getty Images

The average wait for a jury trial in New Zealand is 425 days – and the coronavirus just made the problem a whole lot worse, write Nessa Lynch and Yvette Tinsley of Victoria University of Wellington.

In a recent interview on Māori Television, chief district court judge Taumaunu described the Covid-19 pandemic as an unprecedented challenge for the courts, noting that even the two world wars did not result in the same level of disruption, and that around 50,000 court events in the district court jurisdiction were affected. There are approximately 80,000 adults prosecuted in court per year (covering around 200,000 charges), while 1,400 children and young persons are prosecuted.

Under alert level four, court proceedings were limited to urgent, time-sensitive matters. Under level three, the general approach is that courts are an essential service and are operating where it is safe and practicable to do so, and are making use of remote participation methods.

Even when the country moves to level two soon, the ongoing public health measures and the backlog of cases means that the effect of the pandemic on court business will persist in the medium to long term, in an already creaking justice system.

The right to be tried without undue delay and the right to a jury trial are fundamental and long-standing protections for the accused person. Pandemic implications such as the need for physical distancing, delays in completing expert reports, and difficulties with taking instructions from clients will mean delays for all types of criminal cases.

The right to a jury trial is for those facing penalties of two years’ imprisonment or more. There is no doubt the announced suspension of jury trials until the end of July was the best option in the short term. But the resulting delay causes systemic issues, risks breach of individual rights, and is likely to cause distress and harm to defendants, complainants, witnesses and their whanau.

The current pause comes at a time where there is already considerable strain on the system: the annual report from the high court in 2019 reported that the average wait for a jury trial in Auckland is already 436 days, while the nationwide average is 425 days.

There is a danger that more defendants will plead guilty in order to avoid further delay or may elect judge-alone trial when they would otherwise have elected trial by jury. For the most serious offences such as murder and manslaughter, trial must be by jury. Despite the presumption of innocence, a significant proportion of defendants will be remanded in custody, at a time when reports suggest that Covid-19 measures in prisons have led to increased lockdown times.

Other common law jurisdictions are actively looking for ways to avoid the problems that suspension of jury trials brings to the criminal process. For example, the Australian state of Victoria has enacted temporary legislation allowing defendants in custody to opt for judge-alone trials in cases where a jury trial was previously mandatory, something that has also been hotly debated in England and Wales. In New Zealand, we are not yet having significant public debate about the ongoing effects of delays to jury trials, much less about solutions.

At present – barring specific limited exceptions – there is no general ability for New Zealand courts to order trial by judge-alone where the defendant wants to be tried by jury. One obvious solution to the delay is to have more judge-alone trials even where the defendant would like to be tried by jury, either by increasing the maximum penalty at which the right kicks in, or more radical legislative reform to allow it in all trials.

This might seem a straightforward solution, but it fails to consider the importance of the jury trial as a due process protection of individuals from the might of the state. Famously described by Lord Devlin as “the lamp that shows that freedom lives”, the constitutional role of the right to a jury trial goes back to the Magna Carta. Juries also allow for community participation in justice and educate the public about the criminal system. Lessons from the infamous Diplock trials in Northern Ireland show us that in bringing in reform to clear an emergency backlog, we risk a long-term loss of the right to a jury trial – all without proper debate of its merits in the longer term.

We should therefore consider more creative ways to get jury trials happening again as soon as possible. It’s worth exploring changes to the way juries are selected so that large groups are not having to gather at court, including performing the initial pre-trial ballot online. To address people’s potential reluctance to serve on a jury soon after an economically punishing lockdown, jury attendance fees could be increased and excusals and deferral of jury service for those in “at risk” groups for Covid-19 could be made easier.

Once empanelled, there are likely to be problems with physical distancing in courtrooms and jury rooms in some of our courts. The use of large venues as courtrooms, such as university lecture halls, has been mooted elsewhere, and there is also the possibility of the jury sitting in a different courtroom or building, viewing the trial by remote link.

There is even research being conducted on virtual criminal trials where jurors connect to the trial from their homes, although early reports suggest that despite some positives there are significant drawbacks related to both practical, technological issues and principled problems of representation and security.

Reducing the number of jurors could also address the problem of physical distancing but should be approached with caution. The under-representation on juries of Māori and other groups might be exacerbated, while smaller juries means less protection against prejudicial reasoning. The possibility of alternate jurors – who act like injury substitutes in a football game – could also be explored. Our law already allows for continuing a trial with fewer than 12 jurors, but one or two alternate jurors would offer a buffer should some jurors need to self-isolate part way through a trial.

There’s no easy fix to this issue, but consideration of short-term changes is necessary, while balancing procedural rights with the need to ensure a reasonable timeframe for defendants, complainants and their families.

Nessa Lynch is Associate Professor and Yvette Tinsley is Professor at the Faculty of Law, Te Herenga Waka, Victoria University of Wellington.

Society