Court Martial and Summary Appeal Court
Chief Judge Kevin Riordan, ONZM - Judge Advocate General
Current as at 7 February 2022 and remains in force until further notice
Nothing in this document reduces fair trial rights, the right to natural justice, or rights under the New Zealand Bill of Rights Act 1990.
1. This Protocol governs all proceedings of:
- the Court Martial of New Zealand - Te Kōti Whakawā Kaimahi o Te Ope Kātua o Aotearoa,
- the Summary Appeal Court of New Zealand - Te Kōti Whakawā Pīra Whakaraupapa Taua o Aotearoa.
(collectively referred to as “The Court”)
The Protocol also applies, with all necessary modifications, to the functions of the Office of the Judge Advocate General and the Reconsidering Authority.
2. This protocol will be reviewed and modified as necessary by the Chief Judge.
3. The courts are an essential service and the Court Martial of New Zealand and Summary Appeal Court continue to operate during the CPF Traffic Light Green, Orange and Red to conduct all proceedings as required.
Access to the Court at Green, Orange, and Red Settings
(i) show a vaccine pass; or
(ii) provide evidence of a negative COVID-19 test administered within 48 hours before attendance; or
(iii) provide evidence of a negative rapid antigen test administered within 24 hours before attendance.
5. Because proceedings are held in courtrooms within Defence Areas, persons seeking access to the courtroom must first gain access to the camp, base or ship within which the trial is to be held. The Chief of Defence Force, or the officer in command of the Defence Area, may lawfully order that persons seeking to enter the area may do so only if they satisfied the relevant Defence Force Covid 19 requirements. These orders, to a large extent, will be to the same effect as set out in paragraph 4 of this Protocol. This Protocol does not override any such order.
6. The application of any such order must not be allowed to adversely affect the fair trial rights of the accused, the principle of open justice, or the interests of discipline and justice. Special measures to ensure participation include those set out below. If such measure cannot be arranged satisfactorily it may be necessary for the judge to delay the trial.
7. Where the accused does not meet the requirements in paragraph 4:
a. A separate facility will be made available to enable remote participation for all appearances other than trial.Alternatively, an in-person appearance may be scheduled at a time and place which allows additional health and safety measures to be implemented.
b. The right of the accused to be physically present in the courtroom for trial remains unchanged. Additional health and safety measures will be implemented to facilitate such presence. However, the accused must comply with the health and safety requirements set out at paragraphs 10 through 15 below, in addition to any other health and safety directives that may be given by the Registrar or judge.
c. Having been placed in close arrest at the commencement of the trial, the accused is regarded as being “in custody” for the purposes of remote participation.
Counsel and all other participants
8. Any counsel, or any other participant, who does not meet the requirements in paragraph 4, must advise the Registrar at least 5 working days prior to the commencement of the sitting. The appropriate means of participation will be considered, including arrangements for remote participation.
9. To the extent practicable:
a. witnesses will not be called into the courtroom until just prior to their scheduled attendance; and
b. counsel should take instructions and brief witnesses at a location other than the courtroom. Rooms will be made available within in the Defence Area for interviews and counsel may request breaks to take instructions safely using those facilities.
10. Wherever practicable accredited news media will have entry to the Courtroom in accordance with the requirements in paragraph 4 to facilitate reporting on proceedings and to ensure continued open and transparent justice. Remote access for accredited news media will be facilitated. A media room may be provided within the Defence Area.
Remote participation and viewing
11. The Protocol for Participation in Remote Hearingswill apply to any hearings involving remote participants.
12. The Protocol for Remote Viewing of Hearingsgoverns media and public access to hearings.
Health and safety
13. Every person must scan the QR code or complete the contact tracing register immediately before entering the Courtroom.
14. Persons present in the Courtroom must observe all physical distancing requirements as specified by the Registrar. This may result in limits to the number of people permitted to enter the Courtroom.
15. Subject to limited exceptions, and the discretion of the judge, all persons attending Court must wear a suitable cloth mask, surgical mask or a KN95 (or equivalent) mask at all times within the court and its surrounds. Subject to judicial discretion, wearing of masks also applies even when addressing the court, unless the interest of discipline and justice otherwise require.
16. The following health and safety measures apply:
a. access will be denied to anyone who is showing signs of illness, or has a body temperature of 38 degrees Celsius or higher, or has had close-contact with a suspected, probable or confirmed case of COVID-19;
b. surgical masks will be provided at the entry to the courthouse for all those who do not have their own mask;
c. cleaning products are available on site to enable staff and lawyers to keep their immediate areas clean (including AVL suites); and
d. hand sanitiser will be readily available within the courtroom.
17. Any person who refuses or fails to comply with these requirements will, in addition to any other consequences they may face, be denied access to the courtroom. Any concerns about health and safety in the Court must be raised with the Registrar.
18. In the event of community transmission within the area in which the trial is being held, public health advice will be adopted and further directions given.
19. The numbers of persons present in court must not exceed the number (if any) prescribed for the relevant Traffic Light setting. Members of the public (including whānau support person(s) for the accused) must seek permission to attend by email to the Registrar in advance.
20. Any person who is unwell, experiencing COVID-19 symptoms, or is required to be either in isolation or quarantine, must bring this to the attention of the Registrar by e-mail before seeking to attend the Court. That person will be refused entry to the Court.
Expectations of Counsel
21. 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 4 above.
b. Briefing clients and witnesses on the entry requirements, and health and safety measures in the courtroom as set out in this Protocol.
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 where these are not necessary; and
iii. limiting the number of witnesses through 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 4. The relevant provisions of 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.
22. Documents may be filed electronically.
Increased Use of AVL
23. While the Epidemic Preparedness (COVID-19) Notice 2020is in force, the health and safety impact of COVID-19 may be considered a “relevant matter” under s 5(d) of the Courts (Remote Participation) Act 2010.
24. The increased use of AVL is encouraged and intended to assist the Court to reduce the number of people required to attend the courthouse in-person and thereby reduce the risk of transmission of COVID-19 in the courthouse and surrounding area.
25. Whether AVL is used for the appearance of the accused will be determined on a case-by-case basis and will depend on the applicable law and an assessment of the interests of service discipline and justice. This will be determined by the judge taking into account a range of relevant considerations.
26. Counsel and parties may apply to participate in a hearing by AVL. Particular consideration will be given to any health vulnerabilities of the participant, any relevant difficulties in travelling to court, the distance that would otherwise have to be travelled and the likely length and complexity of the hearing. To the extent that it is reasonably practicable, a notice of application to participate by AVL should be given at least 5 working days prior to the hearing. Pre-trial hearings, applications, and trials in which the accused indicates an intention to plead guilty to all charges, may be conducted remotely. In every case, however, the interests of justice and discipline prevail. Parties will be heard on the issue of whether remote participation is appropriate. The following point are relevant:
- In accordance with Armed Forces Discipline Rule of Procedure 89, an accused can request that a guilty plea be made before Judge alone. This procedure may, where appropriate, be conducted remotely.
- An accused who has indicated a guilty plea, may change his or her mind up until the time that the judge requires the accused to plead to each charge. In the event that a not-guilty plea is entered to any or all charges at that point, it is for the judge to decide whether the sitting will continue in person, or needs to be adjourned.
- The accused wishes to address the Court directly on the question of sentence, it may not be appropriate to conduct the trial remotely.
- Trials that engage complex or contentious issues relating to the appropriate sentence may need to be held in person.
27. Wherever possible, the accused and witnesses should be located in a facility in another part of the unit supporting the trial. This means that the accused and witnesses are readily on-hand should their attendance in person be deemed necessary.
28. If counsel, the accused, victims, parties and witnesses become unable to attend court, they should advise the court as soon as practicable, so that arrangements may be made for appearance by AVL.
Use of AVL at Red, Orange and Green Settings
29. Although all cases will be considered the judge on a case-by-case basis, the increased use of AVL at Red, Orange and Green Settings will be generally appropriate in the following types of hearings:
a. pre-trial hearings;
b. summary appeals; and
c. unopposed bail applications.
30. AVL may be less appropriate in the following types of hearing:
a. arraignment, entry of plea and the trial phase; and
31. In deciding whether the use of AVL is appropriate, the Judge will seek the views of the parties. Of particular relevance are
a. The prevalence of Covid 19 in the region and facts relating to its spread
b. The likely complexity of the issues,
c. The likely length of proceedings,
d. The likely requirement of extensive travel for participants, the judge, counsel, military members and other officers of the Court
e. Whether submissions to the Court are of such a nature that "in-person" advocacy is required.
32. In sentencing matters, the range of appropriate sentence is a relevant consideration. A proceeding in which a punishment of imprisonment, dismissal or detention is sought by the Crown militates in favour of "in person" appearance by the accused and other participants.
Remote Bail Applications
33, Applications for bail directed to the Court or to the Judge Advocate General, will normally be heard by AVL. Counsel or the applicant seeking bail must apply to the Registrar by e-mail.
Questions about this Protocol should be directed to the Registrar