District Court: Current COVID-19 Protocol

NB: The information on this page reflects the current COVID-19 alert level. For District Court protocols during past alert levels, please refer to:

Protocol during Alert Level 3
Protocol during Alert Level 4

Chief District Court Judge Heemi Taumaunu
13 May 2020

Introduction
General information
Hygiene
Expectations of counsel and prosecutors
Triaging to avoid unnecessary in-person appearances
District Court at Alert Level 2
Rostering and scheduling during COVID-19 Alert Levels 2, 3, and 4
Community transmission response
Access to the Court
Police prosecutors and court probation officers
Counsel
Victims
Criminal jurisdiction
Defendants in custody
Warrants to arrest
List courts
Remote bail applications
Defendants at large or on bail
Case review hearings
Judicial case management directions conferences
Sentencing
Judge-alone trials: Pre-trial conferences
Judge-alone trials
Pre-trial applications
Sentencing indications
Saturday and public holiday sittings
Youth Court
Cross-over cases
Rangatahi and Pasifika Courts
Family Court
Triage
Conferences/call-overs/list courts
Memoranda
eDuty
Mental health
Lay advocates
Hearings
Civil jurisdiction
District Court Civil Practice Note
Civil pre-trial call-overs
Administrative adjournments
Accident Compensation Appeals

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The previously issued District Court Alert Level 3 and Alert Level 4 protocols, unless modified or repealed, will continue to apply to all locations that are subject those Alert Levels (if any).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

In this document “AVL” means any platform which allows for audio and visual remote participation. Without limitation, this includes VMR, Microsoft Teams and any other electronic platform approved by the presiding Judge.

In this document, “vulnerable” means a person at higher risk of severe illness, immune-compromised or with a relevant underlying health condition.

This protocol will be regularly reviewed and modified to the extent considered necessary by the Chief District Court Judge.

General information

Hygiene

1. The Ministry of Justice has advised that it continues to take steps to ensure the safety of those coming into courthouses during Alert Level 2, including:

a. A designated site officer to attend to hygiene, physical distancing and safe working practices.

b. Access will continue to be denied to those:

i. who have a temperature of 38°C;
ii. showing signs of illness such as coughing and sneezing;
iii. reporting feeling unwell;
iv. who have had close-contact with a suspected, probable or confirmed case; or
v. unwilling to disclose the purpose of their visit or their personal information.

c. Limiting entry to those with business at court, including members of the public (who are given prior permission by the presiding judge) to enter.

d. Maintaining an orderly queuing system at courthouse entrances, reminding people not to enter if they are symptomatic, offering wipes for items place in screening trays.

e. Maintaining a contact register for the purpose of contact tracing in the event of an outbreak.

f. Providing a daily supply of clean PPE for use by staff, Judges and all other people who are permitted to enter the courthouse. PPE (gloves and masks) will be available for use if people wish.

g. Persons in the custody of Police, Corrections or Oranga Tamariki will be provided with a face mask by those respective agencies for use if they wish.

h. Maintaining a cleaning regime based on the Ministry of Health recommendations, with a wide range of deeper cleaning measures in key areas throughout public and non-public areas and regular cleans – for example during lunch breaks – to ensure that areas where there is high traffic are clean and sanitised.

i. Monitoring the provision of cleaning supplies such as soap and towels and ensuring availability of key products such as hand sanitiser at appropriate points around the courthouse.

j. Keeping under constant review all cleaning practices and procedures, to enable additional measures to be added if required.

k. Reminding those attending court of the need to take personal responsibility for their own health and wellbeing – including washing hands regularly, following hygiene practices and, if unwell, following Ministry of Health guidance.

l. Leaving doors open where consistent with security, fire safety, privacy and noise reduction.

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

2. Parties should wait outside the courthouse until their matter is scheduled and vacate the courtroom once their hearing has concluded.

3. So far as possible, counsel should take instructions and brief witnesses outside the courthouse, to minimise demand on interview rooms. Larger rooms, where possible, will be made available for interviews, and counsel may request breaks to take instructions safely using those facilities.

4. Safe distancing will be observed in the courthouse and the courtroom, and the following hygiene practices can be expected:

a. Those present in the courthouse or the courtroom, including counsel, are required to maintain 1m physical distancing, and alternate seats in public galleries will be taped off. Everyone should maintain physical distancing of 1m unless they are in a whānau bubble.

b. Cleaning products are available on site to enable staff and lawyers to keep their immediate areas clean (including AVL suites).

c. Face masks and gloves may be worn.

d. Hand sanitiser will be readily available within the courtroom.

e. The court will not normally permit documents to be handed up. Documents that parties wish to produce should be scanned and shared by email at the appropriate time.

5. Any concerns about health and safety practices in the court should be raised with the site manager in the first instance.

6. Accredited news media will continue to 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.

Expectations of counsel and prosecutors

7. Counsel and prosecutors 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 the court as early as possible if they are unable to attend court.
iii. Physical 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 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.

Triaging to avoid unnecessary in-person appearances

8. Triage should be identified as a primary means to manage demand, and there should be clear expectations that counsel will co-operate and take a pro-active approach to ensure that these are minimised, and use is made of remote participation whenever appropriate.

District Court at Alert Level 2

9. This protocol outlines how the District Court plans to operate at Alert Level 2. The District Court Protocol at Alert Level 2 will come into force on Monday 18 May 2020 at 8:00 am. It contemplates that Level 2 restrictions may apply for an extended time and jury trials will remain suspended until 31 July 2020.

10. At Alert Level 2, the District Court will continue to provide an essential service and will continue to conduct priority proceedings in the Criminal, Family, Youth, and Civil jurisdictions as it has done throughout Alert Levels 3 and 4. At Alert Level 2, the Court will aim to undertake as much additional work as possible within the significant constraints imposed by COVID-19. The work of the Court may remain significantly constrained both by limited staff numbers and by the need to operate safely within the COVID-19 emergency. It will not be “business as usual”. The Court must do its best to operate optimally within these constraints.

11. At Alert Level 2, there may be a significant increase in numbers of people attending courthouses in person, including counsel, stakeholders, defendants at large or on bail and parties attending for Family and Civil hearings. It is necessary to schedule these hearings given the high priority that attaches to cases affecting liberty and personal and community safety particularly in the Criminal and Family jurisdictions, both of which experience substantial family violence workloads.

12. The extent to which numbers attending court will increase depends on the capacity of each courthouse to accommodate them safely. Courts will take steps to avoid unnecessary appearances. They will schedule in-person attendance of defendants and counsel to assist with safe distancing measures at the court. Where practicable and appropriate courts will use remote participation. They will aim to limit in-person attendances as much as possible to meaningful appearances that will substantively advance proceedings. Courts will also aim to conduct administrative appearances remotely as much as possible.

Rostering and scheduling during COVID-19 Alert Levels 2, 3, and 4

13. The statutory function of the Chief District Court Judge is to determine the rostering of judges and scheduling of work. Rostering and scheduling will continue to be determined by the Chief District Court Judge in consultation with the National Judicial Resource Manager and the National Scheduler.

14. During the COVID-19 Alert Levels 2, 3, and 4, local Judicial Resource Managers, the Executive Judges (or the applicable jurisdictional Liaison Judge), Regional Scheduling Advisors and the Registry will work collaboratively to determine the priority and extent of the work to be undertaken in each court in order to develop rosters and local schedules. The schedules will support the directions set out in the District Court Protocol.

Community transmission response

15. At Alert Level 2, it remains possible that a new cluster of COVID-19 community transmission may be confirmed within the location served by a courthouse. 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.

16. 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 could conduct additional types of work by remote participation, e.g. “submissions only” work across all jurisdictions.

Access to the Court

17. For physical distancing reasons, entry to the court will be restricted during Alert Level 2. Entry to the court will be limited to members of the Judiciary, Ministry of Justice staff members, defendants, parties, witnesses, complainants, victims, and other stakeholders. Accredited news media will continue to 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.

18. Members of the public (including a whānau support person or persons for a defendant) whose presence is not required at court will not be permitted to enter unless granted permission from the presiding Judge. Such permission should be sought in the first instance by email to the Registrar in advance (if granted this must be supplied to the Court Security Officer at the front entrance), or alternatively, on the day of the hearing by requesting a Court Security Officer at the front entrance to convey an application via the registrar to the Presiding Judge. All such applications will need to identify the reason or reasons why permission is sought and will be determined on a case-by-case basis. This restriction is necessary to protect others and allow courts to conduct business. A separate process applies for support people in the Youth Court (see paragraph 71 of this protocol).

19. Identification for contact tracing purposes may be required to be produced in order to gain entry to the court.

20. Any person who is unwell, experiencing COVID-19 symptoms, or required to be either in quarantine or self-isolation, is expected to remain at home and will be refused entry to the court.

21. Public counters will be open to support the daily sittings, and for filing in-person at Court.

Police prosecutors and court probation officers

22. Police Prosecutors (which includes for the purposes of this protocol, lawyers who work for the Police Prosecution Services) and Court Probation Officers should generally appear in-person for all categories of case. Police Prosecutors and Court Probation Officers are permitted to wear PPE in court. Police Prosecutors and Court Probation Officers in the “vulnerable” category, should generally not appear, but if it is necessary to do so, they may appear by telephone link or by AVL.

Counsel

23. Counsel are permitted to appear in court in-person. Counsel in the “vulnerable” category, may appear by telephone link or by AVL for all cases in all jurisdictions.

24. Counsel who are not in the “vulnerable” category must appear in-person for Judge-alone trials in the criminal jurisdiction and for defended fixtures in the family and civil jurisdictions, unless otherwise directed by the presiding Judge. Counsel who are not in the “vulnerable” category, are otherwise permitted to appear by telephone link or by AVL provided that suitable AVL facilities or telephone links are arranged in advance. If not, counsel who are not in the “vulnerable” category must attend in person, unless otherwise directed by the presiding Judge. Counsel are permitted to wear PPE in court.

25. Judges are expected to remain alert and responsive to representations from counsel regarding their safety and ability to prepare for court.

26. The Ministry of Justice will provide for taped floor markings spaced at 1 metre distances at counsel benches, in the public gallery and clearly demarcating where each defendant or party is to move within the court (to avoid being too close to counsel and other parties) and where he or she is to stand or sit.

Victims

27. Victims may attend personally in the courtroom, or by telephone link, or via AVL, subject to the Evidence Act 2006.

Criminal jurisdiction

28. The Court will aim to hear as much scheduled criminal work in Alert Level 2 as possible, subject to workforce capacity levels, courtroom availability and the requirement to observe physical distancing.

29. All defendants on bail or at large are required to attend the District Court on their scheduled dates during Alert Level 2, unless advised otherwise by a Judge or Registrar acting on direction of a Judge, subject to the Criminal Procedure Act 2011.

30. Registrar’s adjournments may be granted subject to the Criminal Procedure Act. It is recognised that where appropriate, Registrar’s adjournments will be utilised to avoid unnecessary appearances to the greatest extent possible.

31. Where individual courts are able to operate at full capacity, all criminal work will be conducted. Where individual courts are unable to operate at full capacity, criminal work will be conducted in the following order of priority:

a. All priority proceedings under the Level 4 protocol – (this includes rescheduling and bringing forward custodial sentencing, Judge-alone trials and pre-trial applications).

b. Non-custodial lists, including call-overs and conferences.

c. Non-custodial sentencing.

d. Non-custodial case review hearings.

e. Non-custodial Judge-alone trials.

32. The criminal cases that were administratively adjourned during Alert Level 4 are to be reviewed by Criminal Liaison Judges. The objective will be to prioritise and, if necessary and possible, allocate call-over dates or earlier hearing dates for those priority cases. Any defendant who wishes to have a sentencing indication is encouraged to apply to the Registrar to arrange a hearing.

Defendants in custody

33. All defendants who are in police custody or corrections custody will continue to appear before a Judge for all scheduled appearances during the Alert Level 2 period.

34. Subject to the Courts (Remote Participation) Act 2010 (“Courts (Remote Participation) Act”), all defendants in Corrections custody are to appear by AVL unless a Judge otherwise directs. In a Judge-alone trial the defendant must attend court in person unless unable to do so for COVID-19 related reasons.

35. Subject to the Courts (Remote Participation) Act, all defendants in police custody are to appear in person unless a Judge otherwise directs that the appearance be by way of AVL. AVL appearances should not be directed if:

a. there has been inadequate ability for counsel to obtain instructions remotely; or

b. police or the court are unable to facilitate remote participation by the defendant.

36. Where a defendant requests to appear in person the criteria in s 8 of the Courts (Remote Participation) Act must be observed.

Warrants to arrest

37. Warrants to arrest will continue to be issued on a case-by-case basis. However, as a general approach, warrants to arrest would not be issued by presiding judicial officers if they have been informed that the defendant has been denied same-day entry pursuant to clause 2(b) or has called the 0800 COURTS (0800 268 787) number and has advised that he or she is unable to enter the courthouse because he or she is exhibiting symptoms consistent with COVID-19 infection, or is vulnerable on account of age or has a pre-existing health condition. Judicial officers will excuse the attendance of defendants in those circumstances and will grant an adjournment for 3 weeks (21 days) with attendance required at the next appearance. This information about next appearance will be communicated to defendants who call the 0800 COURTS (0800 268 787) number.

List courts

38. Following consultation between Criminal Liaison Judges, local court managers, local counsel and relevant local stakeholders, list courts conducted by Registrars, Community Magistrates, and Judges, may, where necessary, be divided into two list courts to reduce the numbers in court and allow for physical distancing. This may result in Judges presiding over matters that would usually be dealt with by Community Magistrates. List courts may need to be spread over 2 or more days.

39. In-person attendances by defendants on bail should be limited as much as possible to meaningful appearances that will substantively advance proceedings. Administrative appearances should be conducted remotely as much as possible.

Remote bail applications

40. If a local Judge is unavailable to hear a bail application, any other Judge will, where practicable, in appropriate cases, be allocated to hear the application by remote participation. Counsel should apply to the Registry in these cases.

Defendants at large or on bail

41. Defendants who are at large or on bail are expected to comply with Alert Level 2 physical distancing rules when they attend the court. Defendants, amongst others, will be offered personal protective equipment (“PPE”) when they enter the Court. Although defendants cannot be forced to wear PPE, it is acknowledged that duty solicitors and counsel may request defendants to wear PPE when obtaining instructions. If a defendant refuses to do so, it is acknowledged that duty solicitors and counsel may decline to interview defendants to obtain instructions. In those circumstances it is acknowledged that a defendant may appear before the presiding Judge as a self-represented litigant.

42. Defendants who are at large or on bail are not to enter the dock but are to stand adjacent to it. This is to avoid surfaces of the dock being touched.

Case review hearings

43. Counsel are to advise in case management memoranda whether they are in good contact with the defendant and whether there is any utility in the defendant appearing at the case review hearing. A Judge may excuse the attendance of the defendant if satisfied resolution is unlikely and advice will be given to counsel for the defendant in advance of the case review hearing. The Judge at the case review hearing will discuss with the parties what is truly in issue and accurate hearing times will be allocated.

44. Best practice will be for case review hearings for defendants appearing in person to be scheduled on a 30-minute cycle with no more than four cases in every 30-minute period.

Judicial case management directions conferences

45. A case review hearing may be waived by a Judge pursuant to s 58 of the Criminal Procedure Act 2011 and conducted as a judicial case management directions conference.

46. If a defendant is represented by counsel, a Judge may excuse the in-person attendance of the parties and direct that the conference proceed by telephone conference. All such hearings are to be recorded on the FTR system.

Sentencing

47. Sentencing is to be timetabled for specific appointment times and if more practicable in blocks of time. Judges may direct that submissions be filed for non-Crown sentencing matters, to ensure best use of scheduled hearing time.

Judge-alone trials: Pre-trial conferences

48. Pre-trial conferences may be scheduled by telephone with counsel, police or prosecutor at least one day prior to trial to confirm:

a. Whether it is anticipated the JAT may proceed including, whether there are any relevant limitations created by COVID-19 restrictions.

b. If it is to proceed, whether the defendant wishes to consent for the purposes of s 9 of the Courts (Remote Participation) Act.

c. The witnesses who may be required and, subject to Part 3, Subpart 5 of the Evidence Act, whether they are to be heard in-person at Court or by alternative means.

d. If a witness is intended to appear and give evidence remotely, whether there is a need for the sharing of documents during the trial and whether the technology is available for doing so.

e. The types and volume of documents or other items that may be required to be produced in evidence.

f. Such other matters as the Judge may consider appropriate, including pre-allocation of a start time on the hearing date.

49. Counsel and the prosecutor are to email the Registrar one day prior to the pre-trial conference, and address the above factors for purposes of that telephone pre-trial conference call. That email advice is to take into account ss 5–9 of the Courts (Remote Participation) Act.

50. It is recognised that counsel will require adequate time to brief clients and witnesses (including allowing clients and witnesses to appropriately handle documents and sign off instructions/briefs of evidence). If applicable, counsel will raise any issues with the presiding Judge during pre-trial conferences. Judge-alone trials would generally not proceed where counsel advise the Court, because of limitations created by COVID-19 restrictions, the case is not ready to proceed (for example it has not been possible to obtain full instructions or brief necessary evidence). However, it is recognised that each decision will remain a matter for individual Judges to determine on the merits on a case-by-case basis.

51. At or following the pre-trial conference the Judge will issue directions regarding the matter, including as to remand to future date if plea to be changed, or plea of guilty entered; as to the trial (including in relation to evidence and exhibits) and any other matters.

52. In any event, if a change of plea is anticipated at any time counsel must inform the court promptly.

Judge-alone trials

53. Judge-alone trial days may commence with 9:00 am call-overs, for presiding Judges to confirm arrangements with counsel and prosecutors either in person or by remote participation. The attendance of defendants at these call-overs is excused.

54. The police or prosecutor should not bring their relevant witnesses to the courthouse but to the extent practicable have them nearby and available to come at reasonable notice if they are in fact required.

55. Trials which are not to be the first trial to start are to be given a fixed time to commence on a staggered basis and adjourned until that time. Counsel/self-represented defendants are to provide the Registrar with email addresses and contact numbers for the purpose of informing them when their matter is ready to proceed.

56. Counsel appearing at Judge-alone trials are to be provided with suitable facilities to obtain instructions. This will include the use of spare courtrooms or other parts of the court building that allow for physical distancing and the ability to take instructions in private. It is recognised that more adjournments than usual may be necessary, and special arrangements may need to be made (especially for those defendants in custody), during the course of a Judge-alone trial to allow counsel to obtain instructions and maintain physical distancing.

57. Counsel and prosecutors are to “hand up” documents during a Judge-alone trial either by emailing an electronic copy of the document to the court registrar or as directed by the presiding Judge.

Pre-trial applications

58. Subject to the Courts (Remote Participation) Act, if a defendant is represented by counsel, hearings of all pre-trial applications that do not involve viva voce evidence may be conducted, in appropriate cases, by way of written submissions with counsel appearing by either telephone link or by AVL. The hearing is to be recorded on the FTR system.

Sentencing indications

59. In appropriate cases, if a defendant seeks a sentencing indication, counsel may apply to have the case rescheduled and brought on earlier for that purpose. In such a case, Part 3, Subpart 4 of the Criminal Procedure Act 2011 applies.

Saturday and public holiday sittings

60. Justices of the Peace will generally sit on Saturdays and on public holidays to conduct Arrest Courts. If Justices of the Peace are unavailable to sit, Community Magistrates will generally sit on Saturdays and public holidays to conduct Arrest Courts. If Community Magistrates are unavailable to sit, Judges will generally be rostered to sit. If a local Judge is unavailable to sit, a Judge will generally be rostered to sit by remote participation.

61. If a Judge considers it appropriate to do so, a Judge may conduct a Saturday and public holiday court whether or not a Justice of the Peace, or a Community Magistrate is available.

Youth Court

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

63. As was the case when moving to Alert Level 3, there will be an enhanced ability to further increase the work of the court under Alert Level 2. The constraints of courtroom availability, registry capacity, the number of people who can be present in a courthouse, and the ability of key agencies to provide services to the court are still applicable under Alert Level 2.

64. Level 2 will see an increase in the number of family group conferences held.

65. The number of in-person appearances made by young people may increase for monitoring events and other substantive hearings. Under Level 2, AVL appearances are no longer the default position, unless safety concerns or other circumstances necessitate this. Appearance in person is the default position.

66. However, 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 work 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 a continued reliance on remote participation of stakeholders, where this is required for safety reasons and it is practicable to do so.

67. All professionals play an equally important role in keeping everybody safe. All reasonable measures should be taken to protect all participants, including vigilant compliance with physical distancing.

68. Professionals should continue to keep the registry informed regarding their ongoing ability to operate safely within the court, so that alternative or flexible arrangements can be made as required. Where professionals wish to appear remotely, a request should be made to the registry in advance of the hearing. Written submissions should be provided to the Court in advance of the hearing wherever possible.

69. For Lay Advocates specifically, home visits are not recommended under Level 2. Lay Advocates may attend court hearings in person where necessary to support young people and their whānau or appear remotely by AVL.

70. The Youth Court appointment system will continue to operate as under Level 3, ensuring that physical distancing measures are in place for all participants, and 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.

71. The Youth Court process notified on 3 April 2020 for the attendance of support persons for young people remains in force during Level 2, unless otherwise directed by the presiding Judge.

72. 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.

There are six categories of cases under Alert Level 2:

Young people who have been arrested and are in policy custody

73. Young persons who are arrested need to be brought before a Youth Court for consideration of bail. Under Level 2, first appearances of young persons may be heard by AVL from the police station where facilities exist, unless otherwise directed by the Judge. Where AVL is not available or if the Judge directs otherwise, the young person is to be brought to the nearest courthouse which is open and operating. If a Youth Advocate becomes aware of any circumstances that would make appearance by AVL inappropriate, such as cognitive impairment or communication issues, these circumstances are to be brought to the attention of the Judge by the Youth Advocate as soon as practicable.

Young people in Oranga Tamariki custody and Corrections custody

74. For those already in custody in Residences, appearances are to be in person wherever practicable for substantive hearings affecting the young person. These include opposed bail applications, early release hearings, secure care applications, and disposition hearings of all types.

75. 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 a direction.

76. Moving young people and their escorts from residence to court remains risky for all. 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

77. 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 the Police, Oranga Tamariki, forensic services, and any other agency or professional such as communication assistants involved whose input is necessary.

The cases which have been adjourned

78. Under Level 2, 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.

79. 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 family group conferences already directed, or progress on family group conference plans already under judicial monitoring.

80. 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 Advocate 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.

81. 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.

Cross-over cases

82. Cross-over cases under Level 2 must continue to comply with the Family Court Protocol for Level 2 and engage in consultation with the relevant Family Court professionals.

Rangatahi and Pasifika Courts

83. 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.

Family Court

84. At Alert Level 2 the Family Court remains an essential service. Under Alert Level 2 the Court will continue to undertake priority work, such as box work and without notice applications as examples, but also intends to undertake all previously scheduled work.

85. However, the court’s ability to do so will be subject to workforce capacity levels and the requirement to observe physical distancing.

86. During the COVID-19 Alert Levels 2, 3, and 4, local Judicial Resource Managers, the Family Court Liaison Judge, Regional Scheduling Advisors and the Registry will work collaboratively to determine the priority and extent of the work to be undertaken in each court in order to develop rosters and local schedules. The schedules will support the directions set out in the District Court Protocol.

Triage

87. A triage process has been operating in a number of courts (particularly metropolitan courts) to identify and progress priority cases within the following categories:

matters adjourned during alert level 4;
matters dealt with on e-duty during alert level 4;
an anticipated post-COVID-19 surge in applications;
work identified as urgent from triaging box work files, and
matters already scheduled to be heard.

88. In cases where that process is incomplete, it will continue. The files will be provided to Judges in accordance with local arrangements. There is no requirement for the registry to prepare memoranda or use the E-Box process other than for actual box work.

89. Cases identified as a priority will be scheduled for a 30-minute conference/callover.

Conferences/call-overs/list courts

90. All counsel are entitled to appear in person. However, a Judge may permit counsel to appear by telephone link or AVL provided that suitable facilities are available and a timely application has been made. Otherwise counsel must attend in person, subject to paragraph 24.

91. The parties may also appear in person but the Judge may excuse in-person attendance and direct that the conference/callover proceed by way of remote participation including AVL or telephone. Judges must have regard to the interests of vulnerable parties and those for whom remote participation is not possible.

92. All conferences/callovers are to be conducted by a Judge and recorded on the FTR system.

93. All conferences/callovers/lists will require further time to be scheduled with best practice requiring 30 minutes to be allocated rather than 15 minutes.

94. If there are in-person appearances, then:

physical distancing must be observed;
any person who does not have direct business with the Court may not attend without prior approval of the presiding Judge;
whānau support may only be given by a whānau member or members whose attendance has been permitted by the presiding Judge; and
the introduction/continuation of split lists may be necessary.

95. Cases already scheduled in list courts will remain as scheduled. No changes will be made to the event duration.

Memoranda

96. No fewer than 5 working days before any conference/callover or fixture, counsel must file memoranda detailing the following:

whether they have current instructions;
whether the conference/fixture is still required; and
if not, what directions/orders are sought.

97. If a fixture is still required:

Advise whether the case should be afforded priority and why.
Identify the issues in dispute.
Identify the directions sought including the number of witnesses and the mode of evidence.
Provide an accurate estimate of time.

eDuty

98. The eDuty platform is to remain regionally based to the extent practicable. However, if on any day there is no Judge in the region rostered for eDuty, then the eDuty auditor will allocate cases to the judges who are rostered for eDuty. This process is to be reviewed at regular intervals by the Principal Family Court Judge in consultation with the Ministry of Justice.

Mental health

99. Following consultation with the Director of Mental Health, it is expected that, under Alert Level 2, in-person hearings may resume, where it is practicable and safe to do so, and all factors including, but not exclusive to, the following will need to be considered:

Whether any participant in the hearing is in a risk group vulnerable to COVID-19.
Whether the venue for the hearing presents a risk to the spread of COVID-19.
Where a hearing will necessitate avoidable lengthy travel for anyone or might involve crossing between regions.
The individual rights of the patient.

100. The hearing options are: in person, AVL, telephone link or a combination of them. Decisions will need to be made on a case-by-case basis.

Lay advocates

101. For Lay Advocates specifically, home visits are not recommended under Alert Level 2. Lay Advocates may attend court hearings in person where necessary to support young people and their whānau or appear remotely by AVL.

Hearings

102. Hearings that do not involve viva voce evidence such as submission-only hearings or Pickwick hearings may be conducted, in appropriate cases, by way of written submissions with counsel appearing by AVL or telephone link. The hearings are to be recorded on the FTR system.

103. All short cause hearings, for example family violence fixtures, and long cause hearings will be preceded by a call-over to be conducted in advance of the hearing date. The call-over will be conducted by telephone and will determine such matters as:

The order of hearings for the day.
The length of the hearing.
Numbers of witnesses.
Mode of evidence.
Ability to observe physical distancing.
The production of documents/exhibits.

104. All documents are to be filed in electronic form prior to the hearing. There are to be no hand-ups, unless a Judge otherwise directs.

105. For long cause fixtures a call-over must occur in sufficient time in advance of the hearing to enable fixtures to be allocated and to consider whether the hearing can proceed subject to Level 2 constraints.

106. It is anticipated that scheduled long cause fixtures with multiple parties and/or multiple witnesses may present challenges in terms of physical distancing and hygiene that make it impossible to safely proceed with these types of hearings. If counsel identify any such scheduled hearings, then they should file a memorandum immediately for consideration by a Judge as to whether the fixture can safely proceed or not.

Civil jurisdiction

107. Subject to workforce capacity levels and the requirement to observe physical distancing, the District Court will aim to hear as many of the civil cases that are currently scheduled during Alert Level 2 as possible.

District Court Civil Practice Note

108. The District Court Civil Practice Note that came into force on 23 April 2020, unless modified or repealed, continues to apply during Alert Level 2.

Civil pre-trial call-overs

109. Civil Liaison Judges will conduct pre-trial call-overs and give directions in respect of all defended civil trials that are scheduled to be heard during the Alert Level 2 period.

Administrative adjournments

110. The civil cases that were administratively adjourned during Alert Levels 3 and 4 are to be reviewed by Civil Liaison Judges to prioritise and, if possible, allocate earlier hearing dates for those priority cases.

Accident Compensation Appeals

111. Under Alert Level 2, Judges will accord priority for assessment of those appeals that were scheduled for hearing under Alert Levels 3 and 4. Such assessment will determine the next steps ahead, including dealing with them on the papers, by telephone conference, use of remote technology or by adjournment as agreed by the parties.

112. The Accident Compensation Appeals jurisdiction in the District Court, managed by Tribunals, Wellington will receive new matters and existing matters will be reviewed regularly by email. All communications including queries on any matter and filing of all documents are to be by email to email address AppealsACR@justice.govt.nz. Given the restrictions under Level 2, there will be delay in responding to matters.

113. If a party does not have the ability to file documents electronically, they may be mailed to DX number:

SX11159
Wellington Tribunals

or to

Wellington Tribunals
Level 1, 86 Customhouse Quay
Wellington, 6011

No document will be received for filing in person at the Tribunals Office, Wellington or any other Tribunals Office.