COVID-19 PANDEMIC - NEW SOUTH WALES

Aaron Kernaghan is fully compliant with all Practice Directions and Emergency Health Orders of the Local Court, District Court and Supreme Courts of New South Wales and provide a safe environment for conferences with our clients, court appearance and attendance and ensuring that everyone's health is as safe an protected as possible.

We have secure online conference and meeting facilities that allow our clients to contact us and provide instructions with absolute security, utilising end-to-end encryption and security transmission of documentation. Witnessing and signing documents that can be attended to under the Electronic Transactions Act are able to be provided as part of our client services.

DIRECTIONS ON COVID-19 IN EACH MAJOR JURISDICTION

 

Click on the below to go directly to the relevant and most recent directions or notifications about practice and procedure:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NSW SUPREME COURT

On 8 October 2021, the Hon. Chief Justice of the Supreme Court of NSW, Tom Bathurst released an update to Court Operations. Full details of the Supreme Court directions, including previous updates can be found on the Supreme Court Website or by clicking here.

From Monday, 18 October 2021 the Supreme Court of New South Wales will recommence a

limited number of live hearings.

 

The proposed arrangements are as follows:

From Monday, 11 October- no change.

From Monday, 18 October

• one live hearing per floor

• civil matters only, including appeals

• no motions

• multiple parties allowed

• each party will be allowed:

o three legal representatives

o a client representative

o witnesses

• no in-person media or members of the public. AVL/telephone access only.

From Monday, 25 October

• two live hearings per floor

• civil matters only, including appeals

• criminal appeals

• motions can be conducted in person with 20 min gaps between each matter

• multiple parties allowed

• each party will be allowed:

o three legal representatives

o a client representative

o witnesses

• no in-person media or members of the public. AVL/telephone access only.

From early December (subject to review)

• three live hearings per floor

• civil matters only, including appeals

• criminal appeals

• motions can be conducted in person with 20 min gaps between each matter

• multiple parties allowed

• no limit to the number of legal representatives allowed to attend, subject to

courtroom capacity limits. Double vaccination applies to all those attending

• no in-person media or members of the public. AVL/telephone access only.

Vaccination Status

All persons appearing in person to be double vaccinated. The onus will be on the solicitors

for the parties to make enquiries of all their participants and confirm their vaccination status

to the court.

 

Masks

Masks to be worn by everyone in the courtroom with the exception of the judge and those

speaking. This will be reviewed at the end of October.

The Court will review these changes in November with a view to introducing further changes

in December.

Criminal jury trials will recommence at the end of October.

 

The Court is working closely with the District Court and the Office of the Sheriff regarding arrangements for jurors and jury trials. It is expected that all persons connected with a criminal jury trial, including jurors, will be fully vaccinated.

 

The Court is also discussing the role of rapid antigen screening to ensure the health and wellbeing of jurors and court users.

The Court will have a more detailed statement on criminal jury trials shortly.

 

The registry public counter remains closed. Details regarding online filing and online registry services can be found on the Supreme Court website.

NSW DISTRICT COURT - Information Collection is Underway

The DCJ is currently collecting information about witnesses and legal representatives including their vaccination status and 'COVID-19' status to determine whether witnesses and legal representatives have been partially or fully vaccinated against COVID-19 and whether they are infected. If you do not provide the information requested you may be prevented from participating in the proceedings in Court.

 

For more information, download the following document that was put out by the District Court of NSW and which can be accessed online here.

In a Covid Update released on 13 October 2021, the District Court made significant announcements regarding the requirement for Rapid Antigen Testing, its support for vaccinations among barristers and solicitors and the clearest indication yet of the requirement for vaccination (and proof of it) under the NSW WHS (formerly OH&S) laws.

 

See here for a copy of the latest direction

On 17 September 2021, the District Court announced the resumption of jury trials and noted that the following efforts were being made:

Accordingly, the COVID-19 safety precautions to be adopted when the temporary suspension of jury trials is lifted on 25 October 2021 will be a combination of pre-existing measures from last year and new enhanced measures in response to the Delta strain, including: 

- fully vaccinated jurors; 

- routine rapid antigen testing; 

- 4m2 capacity rule in courtrooms; 

- social distancing of jurors in the courtroom; 

- enlarged jury deliberation rooms and empanelment areas; 

- individualised jury meals; and, 

- mandatory face mask wearing. 

Further important information about changes to the NSW District Court operations is set out on a dedicated page maintained by the Court and it can be accessed here.

NSW LOCAL COURT

Chief Magistrate's Memorandum No. 23 - Covid 19.

This is the latest memo from the Chief Magistrate and

provides the current rules and directions on how COVID-19

is to be managed until 31 October 2021. 

1. Masks

Masks are now required in all courts.

To ensure the safety of all, court participants must wear a fitted face covering or mask as a condition

of entry to Local Court premises. Any participant relying on an exemption pursuant to Clause 17(2) of

the Public Health order must provide evidence of such physical or mental health illness or condition,

or disability, that makes wearing a fitted face covering unsuitable. The simple assertion of an

exemption will not suffice. Where the exemption sought is based on medical grounds written support

from a medical or other relevant practitioner or the relevant statutory declaration specifying the

physical or mental illness or condition, will be required.

Please note the public health order does allow for the following exceptions (amongst others):

 

A person may remove a fitted face covering in the following circumstance, the person is at

work and the nature of the person’s work means clear enunciation or visibility of the

person’s mouth is essential.

 

A person working alone in an indoor area like an office (or chambers) a mask is not required,

until another person enters the area.

 

Any applicable exceptions are to be managed by the presiding magistrate.

2. Defended Hearings (ie matters requiring witnesses to give evidence

and Defendant/accused is not in Custody)

 

All defended hearings in which the defendant/accused is NOT in custody that require a witness to

give evidence at the above Local Courts listed from Monday 11 October 2021 until 31 October 2021

will no longer proceed, unless parties make prior application to the court to hear the matter and

relevant administrative arrangements can accommodate hearing of the proceedings. Participants

in vacated proceedings are not required to attend court. Those matters will remain listed for

mention on the date they are currently set for the hearing to allow a new hearing date to be

arranged.

As noted above upon application to the Court of listing and with the consent of all parties and

where administrative arrangements allow, hearings that do not require the physical attendance of

any witness (other than the accused) may proceed.

Parties in vacated proceedings are not required to attend in person, however must notify the court

via email of the status of the proceedings prior to 3.00pm on the day prior to the listing and provide

all unavailable dates.

Definition: A defended hearing is a matter in which witnesses are required to give evidence. Please

Note: Matters listed for applications, interlocutory proceedings, submissions and/or decision may

remain listed and proceed wherever possible.

3. Defended Hearings (Where defendant/accused is in custody)

 

In an attempt to reduce the time an accused person may be in custody awaiting a hearing before

the Local Court. Hearings where the defendant/accused is in custody may proceed to hearing on

the following basis:

 

Proceedings that meet criteria 1 below are to be listed and proceed to hearing.

 

Criteria 1 - To Proceed

The Detainee/Defendant to appear via AVL from Corrective Services Facility;

- All witness are available and are able to give evidence remotely (confirmation of this will be

required);

- Only the Prosecutor and Legal Representative to be in person in the Court Room

- Note consideration may be given to practitioners appearing via AVL if it is deemed reasonably practical for the matter to proceed on that basis. In these circumstances the Practitioner is to be directed to make arrangements for the delivery of any exhibits to the court prior to the hearing.

 

Proceedings that meet criteria 2, below are to be listed and proceed to hearing if by consent only:

 

Criteria 2 - To Proceed (only by consent of all parties)

- The Detainee/Defendant to appear via AVL from Corrective Services Facility;

- All or some witnesses area available can appear in person or via AVL

- The Prosecutor and Legal Representative to be in person in the Court Room

Proceedings that meet criteria 3, below are to be listed and proceed to hearing if by consent only

and only on advice from Corrective Services that transport can be facilitated on the date of listing:

Criteria 3 - To Proceed (only by consent of all parties and on the advice from Corrective

Services that Transportation to court can be facilitated.)

- Detainee/Defendant to appear in person (eg these matters may be those requiring an

interpreter)

- All or some witnesses area available and appear in person.

- The Prosecutor and Legal Representative to be in person in the Court Room

 

4. Small Claims Hearings

Small claims hearings will remain listed and wherever possible will proceed via telephone. Parties

must provide all statements via email no later than three days prior to the hearing. If parties object

to the hearing being conducted via telephone they should notify the court as soon as possible.

Those small claims hearing that are unable to be conducted via telephone will be adjourned for

mention and/or hearing on date after 31 October 2021.

5. Matters Listed for Sentence

All matters (where the accused is not currently in custody) that are likely to result in a custodial

sentence are to be adjourned to a date after the current public health order.

Wherever possible these matters that are not likely to result in a custodial sentence will proceed.

If a participant is prevented from attending court contact must be made with the court to seek:

1. an appearance in writing;

2. attendance by alternate means (Telephone or AVL); or

3. to have the proceedings adjourned

Contact must be made with the court no later than 3.00pm the day prior to the listing.

 

6. Matters Listed for Mention

 

No physical appearance is required. Written notices of pleadings will continue to be accepted

electronically, including via email. Participants may seek to appear in writing (email), via telephone

or AVL.

 

For all listings of a procedural nature only the court’s preferred option is to accept appearances in

writing (e-mail). The attached email template should be used by legal practitioners when

communicating with the court.

7. Committal Proceedings

 

Where there is consent by the prosecution, defendants on bail are not required to physically attend

the court for proceedings that are being committed for sentence or trial. These appearances are to

be accommodated via AVL.

 

8. Defendants in Custody

 

Wherever possible all defendants in custody should appear via Audio Visual Link.

9. List matters

 

In interlocutory or list matters (i.e. matters not listed for hearing or sentence) may be dealt with

without a physical appearance as follows:

a. Where a defendant is legally represented:

The defendant’s legal representative may enter an appearance, make a request (including

where seeking an adjournment) and/or indicate a plea to the court in writing/ by email. For

all listings of a procedural nature only the court’s preferred option is to accept appearances

in writing (e-mail).

 

Where a plea of not guilty is entered: the court will make orders for the service of the brief of

evidence if required and advise the legal representative by email.

b. Where defendant is unrepresented:

First return date: an unrepresented defendant may contact the court by email with a request

for an adjournment and the reason for the request. Where the defendant is seeking an

adjournment to obtain legal advice and/or representation, the matter should be adjourned for

a period of no less than 2 weeks.

First return date: an unrepresented defendant may contact the court by email with a request

for an adjournment and the reason for the request. Where the defendant is seeking an

adjournment to obtain legal advice and/or representation, the matter should be adjourned for

a period of no less than 2 weeks.

When seeking to enter a plea: an unrepresented defendant may enter a plea by email or by

written notice of pleading. See s182 of the Criminal Procedure Act, 1986.

10. Hearings

Due to the demand on the Courts technology all parties (not in custody) are to physically attend for

the defendant hearing of proceedings unless an application has been made to attend and granted by

the court to allow an appearance by alternate means.

11. Custody Matters

 

All appearances by persons in custody are to be by Audio Visual Link (AVL), unless listed for hearing

and an order has been made by the court to bring the defendant physically before the court.

 

12. Sentence Proceedings

 

Except for fine only offences the physical appearance of the defendant and his or her legal

representative is required at sentencing.

 

13. Fine Only Offences

 

Subject to the availability of appropriate facilities, application may be made by the defendant and his

or her legal representative to appear via Audio or Audio Visual Link for sentence proceedings for

offences that only carry a monetary penalty. There is nothing that prevents the court dealing with a

matter by way of fine in the absence of the accused.

14. Domestic and Personal Violence Proceedings

The Court will NOT REQUIRE the attendance of the person in need of protection in respect of any

application brought by police for an apprehended domestic violence order unless the proceedings

are fixed for hearing.

 

Note: In the event of travel restrictions or the increased risk of infection, nothing in the memorandum

prevents an application by a party or legal representative, for consideration of an appearance by

audio or audio visual link. However any request will be subject the availability of such technology

and suitability of the proceedings being dealt with in this manner.

NOTE: Nothing in the arrangements set out below prevents a physical appearance before the

court, except by a defendant in custody.

Judge Johnstone

Chief Magistrate of New South Wales

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