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Court Martial and Summary Appeal Court: COVID-19 Past Alert Level 2 Protocol

Chief Judge/Judge Advocate General Kevin J Riordan ONZM
13 May 2020 - reinstated 27 June 2021

Contents

Preamble
Conduct of proceedings (general)
Court Martial and Summary Appeal Court in-person proceedings
Expectations of counsel
Community transmission response

Preamble

1.  Courts are an essential service.  At Alert Level 2, and subject to the restrictions noted below, the Court Martial and Summary Appeal Court of New Zealand will carry out all usual scheduled work that can be safely supported.  This requires the co-operation of all parties to ensure these Courts function at the fullest extent they safely can in performance of their constitutional role.

2.  The Court Martial and Summary Appeal Court, as well as the office of the Judge Advocate General, continue to operate during the Alert Level 2 period to deal with all proceedings, petitions and applications brought before them.  All matters requiring the attention of the Registrar of either Court, or the attention of the Judge Advocate General, are to be filed electronically.

Conduct of proceedings (general)

3.  If counsel, or other persons required or proposing to attend a hearing (for example, the accused, a witness or support person) are at higher risk of illness, are immune-compromised or have a relevant underlying health condition, they should not attend the proceedings in person.  The presiding Judge must be advised, through the Registrar, as soon as possible so that alternative arrangements for the appearance can be made.

4.  Physical distancing will remain an important feature of the procedure of the Court Martial and Summary Appeal Court.  Although the distances required between persons has been relaxed, it is essential that distancing which complies with the Ministry of Health guidelines applicable at each point in time is rigorously maintained.

5.  Wherever possible, matters before the Court Martial and Summary Appeal Court will be dealt with on the papers.

6.  In all proceedings, participation by parties, counsel and witnesses will be conducted remotely by audio visual link (AVL) to the extent that is possible and is in the interests of justice and discipline.  If facilities for the accused/appellant to appear by AVL are not available or appropriate to the proceeding, he or she will appear in person.

Court Martial and Summary Appeal Court in-person proceedings

7.  The Court Martial and Summary Appeal Court are, by design, well-suited to dealing with emergency situations.  Judges of these Courts have significant powers to adjust the procedures where this is in the interest of justice.  The following features will ensure that trials and other proceedings can be conducted in a safe, fair and effective manner:

  • Military Members of the Court Martial (whether three or five in number) are to be sat at least one metre apart from each other, and their table is to be at least two metres away from each of:
    • the nearest counsel table,
    • the table for officers under instruction,
    • the position of the Clerk of the Court, and
    • the witness stand.
  • Courtrooms allocated by units, camps and ships must be large enough to allow required physical distancing amongst all persons attending and the Court.  A trial will not proceed until this requirement is met.
  • Similar standards are to be applied in respect of dining facilities for members of the Court and other participants.  Groups of participants will not be allowed to intermingle at any stage of the proceedings.
  • The timing of appearances of witnesses, when in person, will be regulated by the Registrar to ensure that witnesses waiting to be called do not congregate together or intermingle.
  • Deliberation rooms must be large enough for military members of the Court, with or without the Judge present, to sit and deliberate while maintaining the required physical distancing.
  • The Services are to ensure that no person who is in a vulnerable age group, or has compromised immunity or other relevant health issues, is made available for selection to be a military member of the Court, an officer under instruction, an officer of the Court, Clerk or Orderly.  The Registrar must ensure that persons selected for these roles meet the required vulnerability criteria.
  • No Judge who is in a vulnerable age group, or has compromised immunity or other relevant health issues, will be assigned to a sitting.  The travel of Judges is to be kept to a minimum.
  • Any person attending or intending to attend court, who is feeling unwell, must notify the Registrar or Clerk of the Court Immediately.  Persons having any doubts about the relevant state of their health must not attend the courtroom in person until those issues are resolved to the satisfaction of the Judge.
  • The Judge may exclude, or have removed, from the courtroom any person whom the Judge has reason to believe needs to be self-isolating.  Although this precaution may at present require a measure of self-reporting by the person affected, other obvious cases are those where a person is coughing or running a higher than usual temperature.  Medical services must, when necessary, be provided by the relevant unit, camp or ship to assist the Judge in identifying such cases.
  • No documents are to be handed up to the Court during Level 2.  Any document that is essential to the conduct of the trial is to be scanned by the person producing it and sent to the Court and the other parties electronically.
  • All surfaces are to be regularly wiped down with recommended disinfectants.  This is to occur at least once at the commencement and completion of each session.  If witnesses appear in person, the witness table and chair is to be wiped down to the required standard between the swearing of each new witness.  It remains the case, however, that wherever possible, witnesses will appear by audio visual link.
  • Hand sanitiser in sufficient quantity and dispersal points is to be provided for all sessions by the relevant unit, camp or ship.
  • A full, comprehensive and durable record is to be kept of the name and contact details of every person who attends a court proceeding.  This means that if, despite all precautions, a sitting of the Court becomes the centre of a COVID-19 “cluster”, contact tracing can begin immediately.
  • All court participants in the Court Martial and Summary Appeal Court are permitted to wear personal protective equipment (such as gloves and facemasks) while appearing in Court.  The Judge assigned to the proceedings may, at his or her discretion, require that PPE be worn by any or all persons appearing in, or attending, proceedings.

Health and safety guidance is also available from the Ministry of Justice.

8.  All proceedings will be dealt with by the Chief Judge/Judge Advocate General, and the Registrar of the Court Martial until further notice.  If changing circumstances require adjustment of the procedure of the Court, or require that additional precautions be taken, the Judge has full powers under the Armed Forces Discipline Rules of Procedure 2008 to change the procedure of the Court to the extent that he or she considers necessary in the interests of justice and discipline.

9.  Accredited news media will continue to have access to the Court Martial in order to report court proceedings, to ensure continued open and transparent justice.  Physical distancing and hygiene requirements will be demanded of members of the media.

10.  Other persons who wish to attend the Court sitting, eg members of the public, must apply to the Registrar by email beforehand.  Such access will be limited, as necessary, by proximity and duration to minimise heath risks.

11.  A number of locations on camps and bases now have a virtual hearing facility which can be used by the Court, counsel, court participants, and accredited media to participate in proceedings by AVL from their homes or offices.  A Judge and the Registrar, and where necessary, the military members of the Court, will be in the courtroom but where consistent with the conduct of a fair trial, other participants are encouraged to appear by AVL whenever feasible.  The Registrar will advise when virtual hearing facilities are available.

Expectations of counsel

12.  Counsel are expected to assist the Court by:

a.  Briefing clients and witnesses on public health messages:

i.  Not to come to court if unwell.
ii.  To advise counsel as early as possible if they are unable to attend court.
iii.  Social distancing expectations in the courthouse and precincts.
iv.  How exhibits will be handled in their case.
v.  What they may expect by way of PPE and hygiene supplies in the courthouse.
vi.  The limits on attendance by support persons and members of the public.

b.  Reducing the need for attendance in the courthouse by counsel, their clients and witnesses by reviewing each attendance in advance and:

i.  Seeking remote participation for appropriate cases and witnesses.
ii.  Seeking excusals from appearances in administrative hearings.
iii.  Limiting the number of witnesses via the use of agreed facts.

c.  Raising any deficiencies with cleaning, the availability of cleaning supplies or physical distancing with the site manager immediately.

Community transmission response

13.  At Alert Level 2, it remains possible that a new cluster of COVID-19 community transmission may be confirmed within the location at which the Court Martial or Summary Appeal Court is assembled.  In that event the Court will rely on official advice.  Steps may be taken to reduce in-person attendances at the Court to help protect those working or appearing there.  The extent of any reduction will depend on the circumstances and official advice or notices.

14.  If a location is required to return to Alert Level 3 or 4, the Court is now better equipped for remote participation.  Where practicable and appropriate, the Court may order that additional types of work be conducted by remote participation.