Past COVID-19 Protection Framework Protocols
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Hon Justice S E Thomas
Chief High Court Judge – Te Kaiwhakawā Matua
13 August 2020Contents
Introduction
Application of this protocol
No entitlement as of right to access or appear in person
Appearing via audio-visual link
Applications for directions
Authorised actionIntroduction
This protocol will take effect from 8:00 am on 13 August 2020.
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 may be regional variations and that local solutions may be necessary to best address local issues.
1. The COVID-19 Public Health Response (Air Border) Order 2020 and COVID-19 Public Health Response (Maritime Border) Order 2020 (together “the Orders”) provide for current isolation and quarantine requirements for persons coming into New Zealand by air or by sea.
2. Under the Orders, every person arriving in New Zealand by air or by sea (other than “excluded arrivals”) must:
a. report for, and submit to, medical examination and testing, as soon as practicable after their arrival;
b. be isolated or quarantined for the required period;
c. report for, and submit to, medical examination and testing at any time during the required period; and
d. wear personal protective equipment as directed.
3. The Orders refer to circumstances in which such a person is able to leave their place of isolation or quarantine, including if it is “necessary to do so to access any court or tribunal”.
4. This protocol applies to every person who must, under either of the Orders or under any other order or enactment, be isolated or quarantined for a required period in relation to that person which has not expired (“the required period”). All such persons are referred to in this protocol as “managed arriving persons”.
No entitlement as of right to access or appear in person
5. No managed arriving person is entitled as of right to access the High Court by appearing in person unless with the prior specific permission or direction of a Judge and then only in accordance with the terms of that permission or direction.
6. All documents to be filed with the High Court by or on behalf of a managed arriving person must be filed electronically unless filed in person by counsel or by a representative who is not a managed arriving person.
Appearing via audio-visual link
7. During the required period, to the maximum extent practicable, all managed arriving persons who appear in Court will appear via audio visual link (AVL) in accordance with the prior specific permission or direction of a Judge.
8. An application for directions may be made to the registrar if clarification is required on, or there is a dispute concerning:
a. the necessity for the managed arriving person to access the High Court; or
b. the manner in or means by which the managed arriving person may access or appear in the High Court, if it necessary to do so.
9. Such applications will be referred to the local List Judge in the first instance, and then by the relevant List Judge to an available High Court Judge for determination.
10. The application for directions may be made by:
a. the managed arriving person or their counsel or any other representative on their behalf;
b. any prosecutor or relevant government department, or Crown agency; or
c. any other person, including a party to a relevant proceeding, who has an interest in the managed arriving person’s accessing the High Court.
11. The application must specify the particulars and status of the applicant, the relevant proceeding, the particular clarification that is sought or dispute that has arisen, and be accompanied by all information and advice relevant to the application.
12. No determination is made in relation to any particular managed arriving person or particular proceeding merely because of the issue of this Protocol.
13. Any permission or direction in relation to this Protocol must be made or confirmed by a Judge.
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High Court operations under Covid-19 Protection Framework
Chief High Court Judge Susan Thomas
20 December 2021
1. This Protocol sets out practices to be applied by the High Court under the COVID-19 Protection Framework (Protection Framework) Red, Orange or Green level. These practices are expected to be largely operational by 1 February 2022 when the High Court formally recommences business for the year, but will be implemented incrementally in the High Court registries throughout the country as and when it is practicable to do so.
2. Courts are an essential service and the High Court will remain open at all three levels under the Protection Framework.
3. In locations where the Protection Framework practices have not been implemented, the relevant transitional Red, Orange and Green level protocols will apply.
4. Notice will be given when the Protection Framework practices have been implemented for a High Court registry.
PROTECTION FRAMEWORK RED AND ORANGE LEVEL
Criminal trials
5. High Court criminal jury and judge-alone trials will be conducted under both the Red and Orange levels of the Protection Framework.
6. High Court criminal jury and judge-alone trials will commence as scheduled from 8 February 2022.
Criminal and civil hearings
Red Level
7. Participation by remote technology may be appropriate at the Red level.
8. At the Red level, the following matters are presumptively conducted by remote technology (subject to the particular circumstances of an individual case which mean an in-person hearing would be in the interests of justice):[1]
- Bail applications
- Criminal appeals
- Consented applications which may require an order/decision in open court
- Sentence indications
- Admission ceremonies
Orange Level
9. At the Orange level, the following matters are presumptively conducted by remote technology (subject to the particular circumstances of an individual case which mean an in-person hearing would be in the interests of justice):[2]
- Bail applications
- Criminal Appeals
- Consented applications which may require an order/decision in open court
Red and Orange Levels
10. Notice of application to participate in-person at hearings presumptively conducted by remote technology must be given at least five working days prior to the hearing.
11. All sentencings, and arraignments of those defendants who are on bail will presumptively take place in-person.
12. Criminal and civil list courts, including banco lists, will presumptively take place in-person.
13. High Court civil jury trials will take place.
14. For all other matters, the question of whether the hearing is in-person or by remote technology will be considered as part of a case management conference or, following a request from the relevant case officer, dealt with on the papers after receipt of counsel’s memoranda (whether joint or otherwise).
15. Sheriff proceedings will be dealt with in the usual way.
PROTECTION FRAMEWORK GREEN LEVEL
16. The presumption is that all criminal and civil matters will be conducted in-person.
17. Counsel and parties may apply to participate in a hearing by approved remote technology. Particular consideration will be given to any health vulnerabilities of participants, the distance that would otherwise have to be travelled and the likely length and complexity of the hearing.
18. Notice of application to participate by remote technology must be given at least ten working days prior to the hearing.
MEASURES APPLYING AT ALL PROTECTION FRAMEWORK LEVELS
Access to the Court
19. Persons attending Court must:[3]
(i) Show a vaccine pass; or
(ii) Provide evidence of a negative COVID-19 test obtained within 72 hours of attendance; or
(iii) Provide evidence of a negative rapid antigen test obtained within 24 hours of attendance.[4]
Defendants
20. Where a defendant in the criminal jurisdiction does not meet the requirements in paragraph 19:
(i) A separate facility may be made available in another part of the courthouse to enable remote participation for all appearances other than their trial[5] or an in-person appearance will be scheduled at a time which allows additional health and safety measures to be implemented.
(ii) The defendant’s entitlement to be physically present in the courtroom for their trial remains unchanged. Additional health and safety measures will be implemented. All defendants will be required, however, to comply with the health and safety requirements set out at paragraphs 28 and 30 (b) below, together with any other health and safety directives that may be given by the Registrar or presiding Judge. Defendants who are not in custody must also comply with the requirement at paragraph 27 below.
Jurors
21. Those summoned for jury service who do not meet the requirements in paragraph 19 will be subject to separate arrangements with appropriate health and safety measures put in place.
Counsel and all other participants
22. If counsel, party or other participant does not meet the requirements in paragraph 19, they are to advise the Court at least 10 working days prior to the hearing so the means of participation can be considered and, if appropriate, arrangements will be made for remote participation. Refer to paragraph 33(c) and (d) below for provisions regarding the attendance of witnesses.
Attending Court
23. Where participants attend Court:
(i) List Courts will operate on a case by case call basis. Parties may be required to wait outside the courtroom until their case is called;
(ii) Witnesses required to attend Court should not enter the courthouse until just prior to their scheduled attendance;
Iiii) So far as possible, counsel should take instructions and brief witnesses at a different location from the courthouse. Rooms will be made available as far as practicable for interviews, and counsel may request breaks to take instructions safely using those facilities.
Media access
24. Accredited news media will have entry to the Court in accordance with the requirements in paragraph 19 above 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.
Remote participation and viewing
25. The following Protocol for Participation in Remote Hearings will apply to any hearings involving remote participants:
Protocol for Participation in Remote Hearings
26. The Protocol for Remote Viewings of Hearings governs media and public access to hearings:
Protocol for Remote Viewing of Hearings
Health and safety
27. Persons entering the Court building must register their attendance by scanning the QR code or by entering their details on a list maintained by the Registrar (or court taker, in the case of counsel).
28. Persons present in the Court building must observe all physical distancing requirements. This may result in limits to the number of people permitted to enter the Court building.
29. Subject to the notes set out below[6], and the over-riding discretion of the presiding Judge:
(i) Vaccinated court attendees and unvaccinated court attendees (such as defendants attending their trial) who have provided a negative COVID-19 test within the preceding 72 hours must wear a cloth mask, surgical mask or a KN95 (or equivalent) mask at all times within the court precincts.
(ii) Unvaccinated court attendees who have not provided a negative COVID-19 test result obtained within the preceding 72 hours must wear a KN95 (or equivalent) mask at all times within the court precincts. These will be provided.
30. The following health and safety measures can be expected in the courthouse:
(i) Access will be denied to anyone who is showing signs of illness, or has a body temperature of 38 degrees or higher, or has had close-contact with a suspected, probable or confirmed case of COVID-19;
(ii) Surgical masks will be provided at the entry to the courthouse for all those who do not have their own mask.
(iii) Cleaning products are available on site to enable staff and lawyers to keep their immediate areas clean (including AVL suites);
(iv) Hand sanitiser will be readily available within the courtroom.
31. Any concerns about health and safety in the Court should be raised with the Court Manager (sole High Court) or the Manager Justice Services (combined Court) in the first instance.
32. In the event of community transmission within a courthouse catchment area, public health advice will be taken and further directions given.
Expectations of Counsel
33. Counsel are expected to assist the Court by:
(a) Advising the Court at an early stage if they become aware that alternative measures are likely to be required for their client’s attendance at trial because they do not meet the requirements set out in paragraph 19 above.
(b) Briefing clients and witnesses on the health and safety measures in the courthouse as outlined in paragraphs 27 - 30.
(c) 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 in appropriate cases;
(ii) Seeking excusals from appearances in administrative hearings; and
(iii) Limiting the number of witnesses via the use of agreed facts.
(d) Counsel should consider and endeavour to agree whether it is appropriate for any witness to participate remotely and advise the Court of any such proposals well in advance of the hearing date. This should include consideration of any witness unable to attend Court by reason of the requirements set out in paragraph 19 above. The relevant provisions, r 3.4A of the High Court Rules 2016, the Evidence Act 2006, and the Courts (Remote Participation) Act 2010, will govern whether and how any witness may give evidence remotely. Also refer to the Guidelines for Remote Participation by Witnesses in Criminal Hearings.
Filing and filing fees
34. Documents may be filed electronically, by post, courier or in person. Counters will be open. Address details are contained in Addendum 1.
35. Filing Fees will be payable. Rule 5.1B(2) of the High Court Rules provides for payment of filing fees by alternative means, including at the Registrar’s discretion, credit card, electronic banking or solicitor’s undertaking. [Link to Rules 5.1A and 5.1B] An online “file and pay” system is available. Courts of New Zealand file and pay
ADDENDUM 1
Addresses for filing electronically and by mail
All electronic filing is to be to the following addresses:
Auckland High Court: aucklandhc@justice.govt.nz
Hamilton High Court hamilton.hc@justice.govt.nz
Rotorua High Court rotorua.hc@justice.govt.nz
Tauranga High Court tauranga.hc@justice.govt.nz
Wellington High Court: wellingtonhc@justice.govt.nz
Christchurch High Court: christchurchhc@justice.govt.nz
If any party wishes to contact the Court regarding an urgent matter, use the above email addresses.
All filing by mail is to be to these addresses:
Auckland High Court: PO Box 60, Auckland
Hamilton High Court: DX GX10076, Hamilton
Rotorua High Court: DX JX10550, Rotorua
Tauranga High Court: DX HX11034, Tauranga
Wellington High Court: PO Box 1091 or DX SX11199, Wellington
Christchurch High Court: 20 Lichfield Street, Christchurch or DX WX10021, Christchurch
[1] See also Courts (Remote Participation) Act 2010, ss 5 and 6.
[2] See also Courts (Remote Participation) Act 2010, ss 5 and 6.
[3] Nothing in this protocol will prevent the attendance at court of any person required to attend Court, for example pursuant to a summons, legislative requirement or judicial direction, who does not meet the requirements in paragraph 19. Appropriate health and safety measures will be put in place.
[4] The Ministry of Justice will meet the cost of the rapid antigen test for any person required to attend Court, for example pursuant to a summons, legislative requirement or judicial direction.
[5] Subject to any determination pursuant to ss 8 or 9 of the Courts (remote Participation) Act 2010
[6] (i) People who have a mask exemption card issued by the Ministry of Health will not be required to wear a mask.
(ii) Some court attendees (for example jurors, defendants and witnesses) may be directed by the Judge to wear a clear mask, which will be provided by the Court.
(iii) Leave may be given to vaccinated attendees, or unvaccinated attendees who have provided a negative test result, to remove their mask when speaking.
(iv) Leave may be given to unvaccinated court attendees who have not provided a negative COVID-19 test result within 72 hours to replace their KN95 (or equivalent) mask with a clear mask when giving evidence.
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Chief High Court Judge Susan Thomas
3 December 2021
1. Measures to be implemented in the High Court for the COVID-19 Protection Framework (Protection Framework) are under development. These measures are expected to be largely operational by 1 February 2022 when the High Court formally recommences business for the year.
2. In the interim the following transitional provisions will apply to High Court registries that are in the Protection Framework Red level. These settings are essentially the same as the Alert Level 3 and 4 protocol, with some modifications where in person appearances can be safely undertaken.
3. Notice will be given when the Protection Framework measures have been implemented for a High Court registry.
Transitional arrangements
4. High Court business will be conducted to the extent possible by remote participation including AVL or other remote means.
5. In-person hearings may take place if a Judge decides that it is in the interests of justice to do so.
Criminal
6. The jury trial in Rotorua scheduled for the week of 6 December will take place as scheduled and the jury trial currently underway in Whangarei will continue.
7. No other jury trials will commence before the week of 8 February 2022.
8. Sentencings and arraignments of those defendants who are on bail will take place in person where appropriate with careful management to mitigate risk.
9. The Court will continue to deal with all other criminal work by remote means including first appearances, bail applications and appeals, custodial remands, conviction and sentence appeals, case review hearings, sentence indications, and pre-trial matters.
Civil
10. The Court will conduct as much of its usual civil business as reasonably possible by remote means, including habeas corpus, civil appeals, judicial review, summary judgments, interlocutory applications, urgent injunctions, caveat applications, liquidation and bankruptcy proceedings, probate matters and originating applications.
11.Sheriff proceedings can be filed and will be dealt with in the usual way.
12.New filings will be triaged according to priority.
13.Applications for probate will be accepted. General Registrar work will be carried out to the extent possible.
Media access
14.Remote access for accredited news media, will continue to be facilitated where possible in accordance with current protocols.
Remote participation and viewing
15. The following Protocol for Participation in Remote Hearings will apply to any hearings involving remote participants:
Protocol for Participation in Remote Hearings
16. The Protocol for Remote Viewings of Hearings governs media and public access to hearings:
Protocol for Remote Viewing of Hearings
Health and safety
17. Persons entering the Court building must register their attendance by scanning the QR code or by entering their details on a list maintained by the Registrar (or court taker, in the case of counsel).
18. Persons present in the Court building must observe all physical distancing requirements. This may result in limits to the number of people permitted to enter the Court building.
19. The following hygiene practices can be expected:
a) Access will be denied to anyone 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;
b) Physical distancing will be required in public spaces and in the courtroom;
c) Face masks must be worn in public areas of the courthouse and in courtrooms (unless a medical exemption applies). Masks may be removed in courtrooms when speaking at the discretion of the presiding Judge;
d) Cleaning products are available on site to enable staff and lawyers to keep their immediate areas clean (including AVL suites);
e) Hand sanitiser will be readily available within the courtroom.
20. Any concerns about health and safety practices in the Court should be raised with the Court Manager (home registries) or the Manager Justice Services (combined High Court/District Court registries) in the first instance.
21. In the event of community transmission within a courthouse catchment area, public health advice will be taken and further directions given.
Filing and filing fees
22. Documents may be filed electronically, or by post or courier. Address details are contained in Addendum 1.
23. The public counter will be open in the home registries (Auckland, Wellington and Christchurch) and is subject to local arrangements in the combined High Court /District Court registries.
24. Filing Fees will be payable. Rule 5.1B(2) of the High Court Rules provides for payment of filing fees by alternative means, including at the Registrar’s discretion, credit card, electronic banking or solicitor’s undertaking. An online “file and pay” system is available. Courts of New Zealand file and pay
ADDENDUM 1
Addresses for filing electronically and by mail
All electronic filing is to be to the following addresses:
Auckland High Court: aucklandhc@justice.govt.nz
Wellington High Court: wellingtonhc@justice.govt.nz
Christchurch High Court: christchurchhc@justice.govt.nz
If any party wishes to contact the court regarding an urgent matter, these emails are also the addresses to use.
All filing by mail is to be to these addresses:
Auckland High Court: PO Box 60, Auckland
Wellington High Court: PO Box 1091 or DX 11199, Wellington
Christchurch High Court: 20 Lichfield Street, Christchurch or DX WX10021, Christchurch
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Chief High Court Judge Susan Thomas
3 December 2021
1. Measures to be implemented in the High Court for the COVID-19 Protection Framework (Protection Framework) are under development. These measures are expected to be largely operational by 1 February 2022 when the High Court formally recommences business for the year.
2. In the interim the following transitional provisions will apply to High Court registries that are in the Protection Framework Orange level. These settings are essentially the same as the Alert Level 2 (Delta) protocol.
3. Notice will be given when the Protection Framework measures have been implemented for a High Court registry.
Transitional arrangements
4. Subject to the restrictions noted below, the High Court will carry out all its usual scheduled work in person both from the home and circuit registries which can be safely supported.
Criminal
5. No jury trials are scheduled to commence before the week of 8 February 2022.
6. Judges and counsel will consider whether defendants in criminal procedural matters ought to be excused from attendance or (where necessary) attend by AVL or other remote means.
7. Sentencing hearings will take place in person, although applications to appear via AVL or other remote means will be considered in appropriate cases.
8. Criminal circuit work not involving witnesses may be conducted remotely by AVL or other remote means.
9. In the home courts, criminal work not involving witnesses may be heard by remote means on application or by direction of the Judge.
Civil
10. The Court will conduct as much of its usual civil business as possible.
11. Where appropriate, matters will be dealt with on the papers or by remote means.
12. Sheriff proceedings can be filed and will be dealt with in the usual way.
Modifications for in-person proceedings
13. Where participants attend Court:
a) List Courts will operate on a case by case basis. Parties may be required to wait outside the courtroom until their case is called;
b) Witnesses required to attend Court should not enter the courthouse until just prior to their scheduled attendance;
c) So far as possible, counsel should take instructions and brief witnesses outside the courthouse. Rooms will be made available as far as practicable for interviews, and counsel may request breaks to take instructions safely using those facilities.
Media access
14. Accredited news media will have entry to the court 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.
Remote participation and viewing
15. The following Protocol for Participation in Remote Hearings will apply to any hearings involving remote participants:
Protocol for Participation in Remote Hearings
The Protocol for Remote Viewings of Hearings governs media and public access to hearings:
Protocol for Remote Viewing of Hearings
Health and safety
17. Persons entering the Court building must register their attendance by scanning the QR code or by entering their details on a list maintained by the Registrar (or court taker, in the case of counsel).
18. Persons present in the Court building must observe all physical distancing requirements. This may result in limits to the number of people permitted to enter the Court building.
19. The following hygiene practices can be expected:
a) Access will be denied to anyone 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;
b) Physical distancing will be required in public spaces and in the courtroom;
c) Face masks must be worn in public areas of the courthouse and in courtrooms (unless a medical exemption applies). Masks may be removed in courtrooms when speaking at the discretion of the presiding Judge;
d) Cleaning products are available on site to enable staff and lawyers to keep their immediate areas clean (including AVL suites);
e) Hand sanitiser will be readily available within the courtroom.
20. Any concerns about health and safety practices in the court should be raised with the Court Manager (home registries) or the Manager Justice Services (combined High Court/District Court registries) in the first instance.
21. In the event of community transmission within a courthouse catchment area, public health advice will be taken and further directions given.
Expectations of Counsel
22. Counsel are expected to assist the court by:
a) Giving early notification if they seek an adjournment.
b) Briefing clients and witnesses on public health measures including:
(i) Not to come to court if unwell;
(ii) To advise counsel as early as possible if they are unable to attend court;
(iii) The requirements for physical distancing, contact tracing and wearing of a face mask in the courthouse;
(iv) What they may expect by way of personal protective equipment and hygiene supplies in the courthouse.
c)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 in appropriate cases;
(ii) Seeking excusals from appearances in administrative hearings;
(iii) Limiting the number of witnesses via the use of agreed facts.
d) Counsel should consider and endeavour to agree whether it is appropriate for any witness to participate remotely and advise the Court of any such proposals well in advance of the hearing date. The relevant provisions, r 3.4A of the High Court Rules 2016, the Evidence Act 2006, and the Courts (Remote Participation) Act 2010, will govern whether and how any witness may give evidence remotely. Also refer to the Guidelines for Remote Participation by Witnesses in Criminal Hearings.
Filing and filing fees
23. Documents may be filed electronically, or by post or courier. Address details are contained in Addendum 1.
24. The public counter will be open in the home registries (Auckland, Wellington and Christchurch) and is subject to local arrangements in the combined High Court /District Court registries.
35. Filing Fees will be payable unless a waiver is applied for. Rule 5.1B(2) of the High Court Rules provides for payment of filing fees by alternative means, including, at the Registrar’s discretion, credit card, electronic banking or solicitor’s undertaking. An online “file and pay” system is available. Courts of New Zealand file and pay
ADDENDUM 1
Addresses for filing electronically and by mail
All electronic filing is to be to the following addresses:
Auckland High Court: aucklandhc@justice.govt.nz
Wellington High Court: wellingtonhc@justice.govt.nz
Christchurch High Court: christchurchhc@justice.govt.nz
If any party wishes to contact the court regarding an urgent matter, these emails are also the addresses to use.
All filing by mail is to be to these addresses:
Auckland High Court: PO Box 60, Auckland
Wellington High Court: PO Box 1091 or DX 11199, Wellington
Christchurch High Court: 20 Lichfield Street, Christchurch or DX WX10021, Christchurch