District Court: Past Alert Level 1 COVID-19 Protocol

Chief District Court Judge Heemi Taumaunu
10 June 2020

Introduction
District Court at Alert Level 1
Criminal jurisdiction
Defendants in custody
Jury trials
Family Court
Youth Court
Prioritisation of cases
Young people who have been arrested and are in Police custody
Young people in Oranga Tamariki custody and Corrections custody
Criminal Procedure (Mentally Impaired Persons) Act proceedings
Rangatahi and Pasifika Courts
Civil jurisdiction
District Court Civil Practice Note
Accident Compensation Appeals
Health and safety
Community transmission response
Rostering and scheduling

Introduction

Nothing in this document is intended to reduce fair trial rights, the right to natural justice, or rights under the New Zealand Bill of Rights Act 1990.

This protocol recognises that there are likely to be regional variations and that local solutions will be necessary to best address local issues. Any such variations or solutions must be approved by the Chief District Court Judge.

The previously issued District Court Alert Level 2, Alert Level 3 and Alert Level 4 protocols, unless modified or repealed, will continue to apply to all locations (if any) that are subject those Alert Levels. The District Court Alert Level 1 protocol (contained in this document) will apply to all locations that are subject to Alert Level 1.

This protocol may be reviewed to the extent considered necessary by the Chief District Court Judge.

District Court at Alert Level 1

1. This protocol outlines how the District Court plans to operate at Alert Level 1 and will come into force on Wednesday 10 June 2020 at 8:00 am.

2. At Alert Level 1, the District Court will carry out all its usual scheduled work.

3. Criminal, Family, Youth and Civil proceedings will, in general, return to normal operation. Whānau and other support people will be permitted to attend court.

4. The use of remote participation will remain available for use on application in appropriate cases, such as purely procedural matters, to be determined on a case-by-case basis.

Criminal jurisdiction

5. The District Court will conduct all scheduled criminal work in Alert Level 1.

Defendants in custody

6. All defendants who are in Police custody or Corrections custody will appear in person for all scheduled appearances during the Alert Level 1 period, unless directed to appear by AVL.

Jury trials

7. Criminal jury trials will resume in the Dunedin District Court from the week commencing 20 July 2020. Criminal jury trials for the rest of the country will resume from the week commencing 3 August 2020.

Family Court

8. The District Court will conduct all Family Court cases that are scheduled during Alert Level 1.

Youth Court

9. This protocol outlines how the Youth Court will operate under Alert Level 1. This protocol needs to be read in conjunction with the District Court (Criminal) protocol under Alert Level 1. The reader should also be familiar with the District Court and Youth Court protocols in force under Alert Levels 2, 3 and 4.

10. The work of the court will gradually transition to full capacity. This protocol recognises that, notwithstanding the move to Alert Level 1 some concerns amongst participants in the Youth Court may continue, particularly regarding gatherings in confined areas and smaller facilities.

11. The content of this protocol will be reviewed regularly and updated as appropriate.

12. As was the case under Level 2, AVL appearances are no longer the default position, although there will be circumstances that may necessitate the use of AVL. Appearance in person remains the default position. The number of in-person appearances made by young people will increase for monitoring events and other substantive hearings.

13. The safety of young persons and their whānau (especially those aged over 70 or with pre-existing health conditions) remains of paramount concern for the court and all professionals involved in the Youth Justice process. Youth Court professionals are expected to continue working collaboratively to uphold the primary objective of keeping all court participants safe. This may involve measures to limit the need for travel to courts for young persons and their whānau, and remote participation of stakeholders, where this is justified and it is practicable to do so.

14. All professionals are expected to appear in person, unless an application is made to the Court in advance of the hearing and in writing to appear remotely.

15. For Lay Advocates specifically, home visits must proceed with caution under Level 1. If a Lay Advocate wishes to undertake a home visit, they should firstly confer with whānau and ensure they agree to this. Lay Advocates are expected to appear in person, unless an application is made to the Court in advance of the hearing and in writing to appear remotely.

16. The Youth Court appointment system will continue to operate, ensuring young persons and their whānau continue to be provided privacy. The expectation remains that parties who attend in person are punctual and do not attend court earlier or remain at court any later than their appointment time. Specific appointment times will be allocated for each case.

17. The Youth Court process for permitted support persons in court does not apply under Alert Level 1.

18. There are cases where hearings have been delayed as a result of the earlier alert levels. The Youth Court will continue to prioritise those cases affecting the liberty of young people and where decisions need to be made affecting those who are already in custody.

19. There are five operating principles under Alert Level 1:

Prioritisation of cases

a) Under Level 1, Judges will continue to review cases where the young person is on bail or at large to identify those cases which require priority attention, including those awaiting a family group conference to be reported back to the Court, monitoring appearances, Judge-alone trials, disposition hearings and Criminal Procedure (Mentally Impaired Persons) hearings.

b) Oranga Tamariki will continue to advise the Court of progress on other active cases, for example those progressing towards agreeing family group conference plans for FGCs already directed, or progress on FGC plans already under judicial monitoring.

c) In some cases, the information currently on file might not reflect the need for urgent attention due to a change in circumstances or other issues that have arisen since the adjournment. For those cases Youth Advocates are to confer with the Police, Oranga Tamariki, Lay Advocates and other agencies or professionals, such as communication assistants involved whose input is required and provide an agreed memorandum as to any issues requiring urgent attention and the directions sought to advance matters.

d) Judges will continue to convene pre-hearing conferences as required, with remote participation by Youth Advocates, Youth Aid, Oranga Tamariki and other professionals as appropriate. It is not expected that young people will attend these conferences. Youth Advocates, Police, Social Workers and other appointed professionals must discuss the issues for consideration at the conference in advance so that wherever possible an agreed position can be put before the Judge.

Young people who have been arrested and are in Police custody

e) Young persons who are arrested are to be brought before a Youth Court in person for consideration of bail. Under Level 1, the young person is to be brought to the nearest courthouse which is open and operating. An application may be made to a Judge for such an appearance of the young person to be by AVL where appearance in person is not practicable.

Young people in Oranga Tamariki custody and Corrections custody

f) For those already in custody in Residences or in Corrections custody, appearances are to be in person for any substantive hearings affecting the young person. These include opposed bail applications, early release hearings, secure care applications, and disposition hearings of all types. An application may be made to a Judge for such an appearance of the young person to be by AVL.

g) It remains vital to ensure that any in-person appearances for those in custody are in fact necessary. Youth Advocates are requested to consider whether application should be made for attendance to be excused where nothing substantive is to be decided and provide a memorandum to the Judge where that is appropriate seeking such a direction.

h) Moving young people and their escorts from Residence to Court may be constrained by logistical limitations. In instances where inter-regional and/or air travel would be required, case-by-case determinations will need to be made around whether appearances may be by AVL or transferred to a court nearest the residence.

Criminal Procedure (Mentally Impaired Persons) Act proceedings

i) In relation to Criminal Procedure (Mentally Impaired Persons) Act 2003 proceedings decisions will need to continue to be made in each case as to how best to proceed. Special hearing arrangements will need to be considered and directions given by Judges. Youth Advocates are again requested to consider any of these cases which they have and to seek directions from a Judge after consulting with Police, Oranga Tamariki, forensic services, and any other agency or professional such as communication assistants involved whose input is necessary.

Rangatahi and Pasifika Courts

j) Youth Court sittings on marae and at Pasifika venues will not resume until it is considered by all participants to be safe to do so. Where cases were being heard at Te Kōti Rangatahi or Pasifika Courts but are now being heard at courthouses Youth Advocates and Lay Advocates are requested to advise the court whether the young person and whānau seek to have cultural processes such as karakia and pepeha incorporated in their hearing.

Civil jurisdiction

20. The District Court will conduct all civil cases that are scheduled during Alert Level 1.

District Court Civil Practice Note

21. The District Court Civil Practice Note that came into force on 23 April 2020, and the District Court Civil Practice Note that came into force on 22 May 2020 will both cease to have effect from Wednesday 10 June 2020 at 8:00 am.

Accident Compensation Appeals

22. Under Alert Level 1, appeals adjourned under Alert Levels 3 and 4 have been accorded priority and rescheduled for hearing.

23. Hearings will proceed face-to-face as was the usual practice prior to the introduction of Alert Level restrictions. Nevertheless, with consent of the parties, appeals may be determined on the papers without hearing.

24. Notices of Appeal, associated documents and communications can continue to be filed electronically in the Accident Compensation Appeals District Court Registry, managed by Tribunals, Wellington at AppealsACR@justice.govt.nz.

Health and safety

25. If counsel, or other persons required or proposing to attend a hearing (for example, a party) are unwell, they should not attend Court. If this applies, the presiding Judge should be advised so that alternative arrangements for the appearance may be made.

26. The Ministry of Justice will provide the hygiene measures described on their website.

27. Any concerns about health and safety practices in the District Court should be raised with the local Court Manager in the first instance.

Community transmission response

28. At Alert Level 1, it remains possible that a new outbreak of COVID-19 community transmission may be confirmed within the location served by a courthouse. In that event the court will rely on official public health 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.

29. If a location is required to return to Alert Level 2, 3 or 4, the Court is now better equipped for remote participation. Where practicable and appropriate, the court could conduct priority proceedings and additional types of work by remote participation, eg 'submissions only' work across all jurisdictions.

Rostering and scheduling

30. During Alert Level 1, rostering of Judges and scheduling of work will be determined by the Chief District Court Judge in consultation with the National Judicial Resource Manager and the National Scheduler.