The following guidance is provided for those practising in the Criminal Division of the Supreme Court, including in the Court of Appeal, in the current coronavirus (COVID-19) environment.

Updated 7 May.

Criminal Proceedings in the Trial Division and Court of Appeal

The following guidance is provided for those practising in the Criminal Division of the Supreme Court, including in the Court of Appeal, in the current environment.

As new procedures are adopted by the Courts to reduce the need for physical proximity it is apparent that lawyers have been conscious of the need for cooperation, flexibility and adaptation in the interests of justice. The following information notes some of the approaches available.

Rule 1.15 of the Supreme Court (Criminal Procedure) Rules 2017 authorises the Court to dispense with compliance with any of the requirements of the Rules either before or after the occasion for compliance arises.

Physical attendance of the accused in Trial Division proceedings

Where possible, arrangements will be made for the accused to appear via audio-visual link. In limited circumstances the accused’s physical presence will be required. This will be determined on a case by-case basis by the presiding judge. Any questions about these arrangements should be sent to pevzvanyqvivfvba@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@noisividlanimirc and the chambers of the presiding judge (where known).

Personal Service

Personal service may pose difficulties in the current circumstances. Lawyers are reminded that the Supreme Court Rules and the Criminal Procedure Act 2009 (s 391 as modified by s420ZM) provide a means of avoiding physical contact by

  • putting a copy of the document down in the person’s presence and telling the person the nature of the document
  • leaving a copy of the document for the person to be served at the person’s last known or usual place of residence with a person who appears to be of or over the age of 16 years by putting the document down in the person’s presence and telling the person the nature of the document
  • delivering a copy of the document by fax or email to a person’s legal representative who has consented to receiving documents on that person’s behalf
  • service on an informant or the DPP by electronic means.

Affidavits

The current circumstances may pose significant challenges in having affidavits sworn or affirmed. 

Following recent changes to the Oaths and Affirmations Act 2018, affidavits may now be completed remotely by 

  • the deponent or the authorised affidavit taker signing or initialling the affidavit using electronic means
  • the deponent or the authorised affidavit taker doing things in each other’s ‘presence’ by audio or audio-visual link
  • the authorised affidavit taker signing or initialling a scanned hard copy or electronic copy of the affidavit.

Part 5A of the Act provides the detailed requirements for this form of affidavit taking.

The amendments (new s 49F of the Act ) also provide that the Court may admit unsworn or ‘purported’ affidavits if

  • the Court is satisfied that compliance with the Act was not reasonably practicable; and 
  • the unsworn or ‘purported’ affidavit states why compliance with the Act was not reasonably practicable. 

Where an unsworn affidavit it sought to be filed the party filing should continue to ensure

  • the deponent has been instructed that this relaxation of formality does not diminish the need for them to satisfy themselves that the content of the affidavit is true and correct
  • the deponent is prepared to swear or affirm the affidavit in the form provided
  • a formally sworn or affirmed affidavit is filed when circumstances allow.

Subpoenas to produce documents

Rule 1.12 of the Supreme Court (Criminal Procedure) Rules 2017 applies Orders 42 and 42A of the Supreme Court (General Civil Procedure) Rules 2015 with necessary modification to criminal trial proceedings and provides for subpoenas to be in Form 6-1B or 6-1C.

Production of copy documents in electronic format in response to a subpoena is both permitted under the Rules and encouraged in the information provided in the forms. 

In the current COVID-19 circumstances, where possible, subpoenaed persons (addressees) are encouraged to comply with a subpoena requiring the production of documents by providing an operable link to download and access the documents (i.e. uploading the documents to a storage service and sharing the link). The Registry can be contacted to provide further information or assistance regarding options for how to do this, or alternatives which might be available depending on the size of electronic files.

If the subpoenaed party wishes to object to the production of some or all of the subpoenaed documents, they should provide two versions of the subpoenaed documents, clearly marked ‘redacted’ and ‘unredacted’. They should also provide a covering letter which explains the basis for any redaction which has been made on the basis of public interest immunity, legal privilege, or other legal ground of objection.

Links should be sent to pevzvanyqvivfvba@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@noisividlanimirc , and copied to the chambers of the presiding judge (where known). 

Those filing subpoenas should provide the above information to the addressee when serving them with the subpoena.

Court of Appeal orders for production under s 317

Pursuant to s 317 of the Criminal Procedure Act 2009 the Court of Appeal may order the production of documents. In the current COVID-19 circumstances, where possible, such documents should be produced by providing the Court of Appeal Registry with an operable link to download and access the documents (i.e. uploading the documents to a storage service and sharing the link).
 

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Published on 07 May 2020