Guidance for criminal proceedings affected by COVID-19

Last updated: 2 August 2022

Criminal proceedings in the Trial Division

The following guidance is provided for those practising in the Criminal Division of the Supreme Court.

The ongoing nature of the COVID-19 pandemic means that the Court must continue to reduce the need for physical proximity where possible. 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.

In-person hearings

Please see the Notice to the Profession – In-Person Hearings for up-to-date information about in-person hearing arrangements.

Any questions about hearing arrangements should be sent to the chambers of the presiding judge (where known) or to the Criminal Registry ( pevzvanyqvivfvba@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@noisividlanimirc ).

Personal service

Personal service may pose difficulties in the current circumstances, for example, where a person may be required to isolate or quarantine. The Supreme Court Rules and s 391 of the Criminal Procedure Act 2009 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 also pose significant challenges in having affidavits sworn or affirmed.

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.

Please refer to the relevant provisions of the Oaths and Affirmations Act 2018 for further information.

Section 28A of the Oaths and Affirmations Act 2018 states the Court may admit ‘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 Division proceedings, and requires subpoenas to be in Form 6-1B or 6-1C.

Documents produced in response to a subpoena should be provided electronically. This can be done either by:

• Email to the Criminal Registry ( pevzvanyqvivfvba@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@noisividlanimirc ), if document size permits;
• Providing an operable link to the Criminal Registry ( pevzvanyqvivfvba@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@noisividlanimirc ) to download the documents; or
• Contacting the Criminal Registry which can provide the addressee with a SharePoint link where the subpoenaed documents can be uploaded to.

If the subpoenaed party wishes to object to the production and/or release of some or all of the subpoenaed documents, they should electronically provide:

• Two versions of the subpoenaed documents, clearly marked ‘redacted’ and ‘unredacted’; and
• 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.

Those filing subpoenas should provide the above information to the addressee at the time of service of the subpoena.

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