Archived Court of Appeal
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Justice Mark Cooper
INTRODUCTION
1. Courts are an essential service. The Court of Appeal will remain open despite the presence of COVID-19 in the community, to ensure access to justice.
2. This protocol sets out a framework for ensuring that everyone who needs to participate in proceedings is able to do so. The primary considerations that underpin this protocol, and decisions under it, are the interests of justice and the protection of the health and safety of everyone in the court building.
3. This protocol applies subject to any directions given by a judge in a particular case. A judge may direct that requirements set out in this protocol do not apply in a particular case if the judge is satisfied that it is in the interests of justice to do so.
ENTRY TO THE COURT OF APPEAL BUILDING
4. The following requirements apply to entry into the Court of Appeal building:
a) A person may not enter the Court of Appeal building if they are showing signs of illness;
b) A person who has tested positive for COVID-19 within the last 7 days may not enter the Court of Appeal building.
5. The Court of Appeal building remains open to the public during office hours, but for health and safety reasons there may be limits on the number of people who are not directly involved in proceedings who are permitted to be physically present in the courtrooms and the court building.
MASKS
6. All persons entering the Court of Appeal building may wear a surgical mask or a KN95 mask and are encouraged to do so when moving around the court building (including the courtrooms).[1] Masks will be provided at the entry to the court building for all those who do not have their own mask.
7. A surgical mask or KN95 mask must be worn by all persons present in Court of Appeal courtrooms, or by specified persons in a courtroom, if the presiding judge so directs.
CONDUCT OF HEARINGS
8. All hearings will be conducted in person, unless a judge directs otherwise. Directions may be given for a hearing to be conducted remotely.
9. A party, counsel or other participant may apply to participate in a hearing by remote technology.[2] A request to appear remotely should be made with as much notice as possible, and where practicable five working days in advance. Participation in a remote hearing will continue to be facilitated in accordance with the Protocol for Participation in Remote Hearings.
RAPID ANTIGEN TESTS (RATS)
10. Court participants who have any symptoms of COVID-19, however minor, must take a RAT before attending a Court of Appeal hearing.
a) If they test negative, and the symptoms are very minor (e.g., a scratchy throat), they may attend court but must wear a mask at all times.
b) If they test negative and the symptoms are more severe (e.g., runny nose, coughing) they must not attend court unless a judge so directs. If they are permitted to attend court, they must wear a mask at all times.
c) If they test positive they must not attend court: see paragraph 13 below.
11. A judge may require that some or all participants in a hearing longer than one day take a RAT in the morning before attending court, on such days as the judge directs, if the judge is satisfied that it is reasonably necessary to do so in the interests of justice and to protect health and safety in courts.
12. The Registry will advise counsel and any party who is not legally represented of the arrangements for obtaining RATs from the Court.
13. Court participants who have received a positive COVID-19 test result must not attend court (and if present in the Court of Appeal building, must promptly leave). Whether and how the hearing may be able to continue will be a matter for the presiding Judge to determine on a case-by-case basis.
14. If a court participant is required to take a RAT, and declines to do so, the presiding Judge will determine whether and how the hearing will proceed.
GENERAL PROVISIONS
Media access and remote viewing of hearings
15. Accredited news media will have entry to the Court of Appeal building in order to report court proceedings, and to ensure continued open and transparent justice. Remote access for accredited news media will continue to be facilitated in accordance with current protocols.
16. The Protocol for Remote Viewing of Hearings governs media and public remote access to hearings:
Protocol for Remote Viewing of Hearings
Health and safety
17. The following health and safety measures can be expected in the Court of Appeal building:
a) Cleaning products will be available on site to enable staff and counsel to keep their immediate areas clean;
b) Hand sanitiser will be readily available within the courtroom;
c) Face masks will be readily available in the Court of Appeal building;
d) RAT kits will be available in the Court of Appeal building.
18. Any concerns about health and safety in the Court of Appeal should be raised with the Court of Appeal Registrar in the first instance.
Expectations of Counsel
19. Counsel are expected to assist the Court by briefing clients and witnesses on the Court building entry requirements and RAT testing requirements set out in paragraphs 4-7 and 11-14 above.
Filing and filing fees
20. Court documents may be filed by email, by post, or in person at the Registry in Wellington. Filing by email or via the file and pay service is encouraged.
21. Filing fees may be paid by File and Pay.
22. All electronic filing should be sent to: courtofappeal@justice.govt.nz.
23. All filing by post should be sent to: 54 Molesworth St, Wellington 6011, or PO Box 1606, Wellington
[1] All references to KN95 masks include references to masks of an equivalent standard such as P2 masks.
[2] For relevant factors see the Courts (Remote Participation) Act 2010, ss 5 and 6.
Court of Appeal operations with COVID-19 in the community. Effective from Tuesday 13 September 2022 (PDF, 183 KB)
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President Stephen Kós
5 April 2022
1. This practice note applies forthwith. It sets out practices to be applied where hearings are conducted in this Court at locations that are within a COVID-19 Protection Framework Red, Orange or Green level.
2. At all three levels of the Protection Framework, and subject to the restrictions noted below, the Court of Appeal will remain open and will continue to carry out all usual scheduled work that can safely be supported. The following directions are made to assure the safety of staff, counsel, other participants and observers.
Courthouse entry
3. No person who is unwell should enter the Courthouse at any time. Access will be denied to any person who:
(a) is showing signs of illness;
(b) has a body temperature of 38 degrees or higher;
(c) has tested positive for COVID-19 and is required to isolate; or
(d) is a household contact of a confirmed case of COVID-19.
4. Any other person entering the Courthouse must:
(a) observe social distancing requirements;
(b) comply with mask-wearing requirements in [5]; and
(c) comply with Rapid Antigen Testing requirements in [7] – [9].
Mask-wearing requirements
5. Mask-wearing requirements are:
(a) At Red and Orange levels, a KN95 (or equivalent) mask, or surgical mask, is to be worn in public areas and courtrooms at all times, unless a valid exemption exists.
(b) At Green level, wearing a mask in public areas and courtrooms is encouraged.
6. The Judge presiding at a hearing may permit a mask to be removed by counsel or other persons, to enable effective communication, provided social distancing requirements are met.
Rapid Antigen Testing requirements
7. Persons participating in a hearing at the Courthouse may be asked to take a Rapid Antigen Test (RAT) on each morning before the hearing commences. The Registry will advise the arrangements for testing.
8. If any such person is asked to take a RAT and declines to do so, the Court will determine whether and how the hearing will proceed.
9. If any such person tests positive for COVID-19, the Court will determine on a case by case basis whether and how the hearing will proceed.
Use of remote technology
10. Counsel, parties or other persons who are unwell or unable to meet the requirements set out above may participate in or observe a hearing by approved remote technology.
11. Counsel or self-represented parties who are able to meet the requirements set out above, but do not wish to participate in a hearing in person, may apply to the Court to participate by approved remote technology.
12. A request by counsel or a self-represented party to participate in a hearing by remote technology must be made at least five working days prior to the hearing. The Protocol for Participation in Remote Hearings will apply to any hearings involving remote participants.
13. A request to observe a hearing by remote technology must be made before 1:00 pm on the working day before the hearing. The Protocol for Remote Viewing of Hearings governs media and public access to observe hearings.
Hearings conducted at a location within a COVID-19 Protection Framework Green level
14. Hearings at a location in a COVID-19 Protection Framework Green level will be conducted in person, subject to the requirements set out above.
Hearings conducted at a location within a COVID-19 Protection Framework Orange level
15. Hearings at a location in a COVID-19 Protection Framework Orange level will be conducted in person, by remote technology, or by a combination of both, as determined by the President or Judge presiding at the scheduled hearing.
Hearings conducted at a location within a COVID-19 Protection Framework Red level
16. Hearings at a location in a COVID-19 Protection Framework Red level will be conducted by remote technology unless the President or Judge presiding directs otherwise.
17. Documents must be emailed to the Court at courtofappeal@justice.govt.nz, or via the file and pay service, by 3:00 pm the day prior to the hearing.
General
18. Counsel are expected to assist the Court by briefing clients on the public health measures set out in this practice note.
19. Courtrooms will be cleaned thoroughly on a daily basis. Hand sanitiser and antibacterial wipes will be available.
20. Hearings will continue to be recorded where possible.
21. Those who cannot file by email may file by post, or in person at the Registry in Wellington, providing the requirements set out above are followed.
22. Filing fees remain payable in the usual way, including via file and pay service.
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President Stephen Kós
9 February 2022
1. This practice note applies forthwith. It sets out practices to be applied where hearings are conducted in this Court at locations that are within a COVID-19 Protection Framework Red, Orange or Green level.
2. Persons entering the Court of Appeal can proceed on the basis that all Court of Appeal Judges and all Court of Appeal staff they may come into contact with are vaccinated.
3. At all three levels of the Protection Framework, and subject to the restrictions noted below, the Court of Appeal will remain open and will continue to carry out all usual scheduled work that can safely be supported. The following directions are made to assure the safety of staff, counsel, other participants and observers.
Courthouse entry
4. No person who is unwell should enter the Courthouse at any time. Access will be denied to any person who is showing signs of illness, has a body temperature of 38 degrees or higher, has had close contact with a suspected, probable or confirmed case of COVID-19, or is required to be in quarantine or self-isolation. If any of these criteria apply, the person concerned should not seek to enter the Courthouse.
5. Any other person entering the Courthouse must:
(a) Meet entry requirements set out in [6];
(b) Comply with mask-wearing requirements in [7]; and
(c) Observe social distancing requirements.
6. Courthouse entry requirements are:
(a) registration by scanning the QR code or by entering their details on a list maintained by the Registrar and administered by court security; and
(b) provision of a current My Vaccine pass; or
(c) evidence of a negative PCR test administered within 48 hours of entry; or
(d) evidence of a negative rapid antigen test administered within 24 hours of entry.
Alternative options may be directed should a hearing location enter the COVID-19 Protection Framework Green level.
Mask-wearing requirements
7. Mask-wearing requirements are:
(a) At Red and Orange levels, a KN95 (or equivalent) mask, surgical mask, or cloth mask is to be worn in public areas and courtrooms at all times, unless a valid exemption exists.
(b) At Green level, wearing a mask in public areas and courtrooms is encouraged.
The Judge presiding at a hearing may permit a mask to be removed by counsel or other persons, to enable effective communication, provided social distancing requirements are met.
Use of remote technology
8. Counsel, parties or other persons who are unwell or unable to meet the requirements set out in [5] may participate in or observe a hearing by approved remote technology, subject to compliance with [10] and [11].
9. Counsel or self-represented parties who are able to meet the requirements set out in [5], but do not wish to participate in a hearing in person, may apply to the Court to participate by approved remote technology.
10. A request by counsel or a self-represented party to participate in a hearing by remote technology must be made at least five working days prior to the hearing. The Protocol for Participation in Remote Hearings will apply to any hearings involving remote participants.
11. A request to observe a hearing by remote technology must be made before 1:00 pm on the working day before the hearing. The Protocol for Remote Viewing of Hearings governs media and public access to observe hearings.
Hearings conducted at a location within a COVID-19 Protection Framework Green level
12. Hearings at a location in a COVID-19 Protection Framework Green level will be conducted in person, subject to the requirements set out in [5].
Hearings conducted at a location within a COVID-19 Protection Framework Orange level
13. The Court will continue to carry out its work at locations in a COVID-19 Protection Framework Orange level. Hearings will be conducted in person, by remote technology, or by a combination of both, as determined by the President or Judge presiding at the scheduled hearing.
14. Documents may not be handed up to the Bench at in-person hearings, but must be emailed to the Court at courtofappeal@justice.govt.nz, or via the file and pay service, by 3:00 pm the day prior to the hearing.
Hearings conducted at a location within a COVID-19 Protection Framework Red level
15. The Court will continue to carry out its work at locations in a COVID-19 Protection Framework Red level. Hearings will be conducted by remote technology unless the President or Judge presiding directs otherwise.
16. Documents must be emailed to the Court at courtofappeal@justice.govt.nz, or via the file and pay service, by 3:00 pm the day prior to the hearing.
Hearings conducted at a location subject to a COVID-19 lockdown
17. Hearings scheduled to be conducted in a location subject to a COVID-19 lockdown will be conducted by remote technology only.
18. Priority will be given to urgent hearings. Urgent hearings will be conducted in order of highest priority, determined by the President.
19. Other hearings will proceed, subject to operational capability and the requirements of natural justice. Appeals involving oral evidence may not be suitable for remote hearing, without special arrangements.
20. Documents must be emailed to the Court at courtofappeal@justice.govt.nz, or via the file and pay service, by 3:00 pm the day prior to the hearing.
General
21. Counsel are expected to assist the Court by briefing clients on the public health measures set out in this practice note.
22. Courtrooms will be cleaned thoroughly on a daily basis. Hand sanitiser and antibacterial wipes will be available.
23. Hearings will continue to be recorded where possible.
24. Those who cannot file by email may file by post or in person at the Registry in Wellington, providing the requirements set out in [5] are followed.
25. Filing fees remain payable in the usual way, including via file and pay
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President Stephen Kós
6 April 20201. Rule 8(1) of the Court of Appeal (Criminal) Rules 2001 requires a notice of appeal or application to be signed by an appellant personally.
2. This requirement is often impracticable under the current Level 4 state of emergency.
3. Pursuant to r 4(3) of the same Rules, I direct that until further notice the Court will accept for filing a notice of appeal or application signed by counsel, provided counsel:
a) certifies that personal execution by the appellant is presently impracticable;
b) certifies that the notice has been read by or to, and approved by, the appellant; and
c) undertakes that an original notice signed by the appellant will be filed as soon as practicable (and prior to any fixture being allocated).