24 March 2020
Supreme Court
Practice changes - COVID-19
24 March 2020
This is a resolution of the Judges and Masters of the Supreme Court made at a special meeting held on Friday, 20 March 2020, to modify the practice and procedure of the Court to address the risk to public health caused by the Covid-19 virus pandemic. The resolution will be put into effect as may be necessary by giving specific directions, or by dispensing with the requirement of a rule or rules, in particular cases, and, in due course, amending the Rules.
The changed practices reflect a balance between the duty of the Court to continue to administer justice and the duty of the Court to make its contribution to public efforts to contain the pandemic and secure the health of the community. The changed practices acknowledge the need for deference to the decisions and advice of those officers with ultimate responsibility for public health measures under the South Australian Public Health Act 2011 but are also mindful of the wider concerns of many in the community. The resolution sets out default procedures which will be applied flexibly to meet the special circumstances of a particular case. The procedures will be reviewed as the situation changes.
General Matters
Signs have been placed at the entrance to all court buildings drawing attention to those classes of persons who are required to isolate themselves by either public health directives or advice. They explain procedures which persons otherwise required to appear in court should follow. All legal practitioners and other persons proposing to enter a court building should read those signs carefully.
Health authorities have recommended that a distance of 1.5 metres be maintained between people in order to minimise the risk of infection (the health distancing requirement). The Courts Administration Authority has asked the Chief Executive of SA Health to give directions under that Act and/or the Emergency Management Act 2004, which prohibit persons who are required to self-isolate from entering court buildings and require other persons in, or about to enter, court buildings, to leave if it would otherwise not be reasonably practicable to keep a distance of 1.5 metres between all visitors to the court building and/or in particular, court rooms. Legal practitioners must inform their clients that the Court is imposing the heath distancing requirement strictly and that the number of accompanying persons should be limited in order to facilitate those measures.
Sanitisers are available at the entrances to court buildings and in court rooms and should be regularly used. All legal practitioners should acquaint themselves with recommended hygiene practices and ensure that they, and those who accompany them to court, observe those practices.
Water jugs will no longer be provided at the bar table. Practitioners should bring their own water container. Plastic cups will be available.
It is never possible to anticipate all future circumstances. That is particularly so with the Covid-19 pandemic. The Court will maintain a flexible approach.
Changed Procedures for Hearings by Category
Hearings Before Masters
Practitioners should follow the memorandum issued by Judge Bochner and Judge Dart on 16 March 2020.
Directions Hearings, including the High Risk Offenders List, and Interlocutory Applications Before Judges
The parties must email to the Judge’s chambers, by no later than 4.30 pm on the day preceding the hearing, a single electronic document containing draft minutes of orders which have been agreed or, as to any order or orders which have not been agreed, marked up versions of those orders which show the differences between parties on the proposed order(s). The parties must contemporaneously provide submissions, proportionate in length to the matters in dispute, in support of the order or orders sought.
The directions hearing will proceed by electronic audio communication, initiated by the Judge at the appointed time, unless the Judge otherwise orders. For example, a Judge may direct an email exchange on particular issues, arrange for an audio-visual link, decide the application on the papers or request the parties to attend for an oral hearing.
Civil Listing Conferences
These conferences will be held by an electronic audio communication unless the Judge otherwise directs. If any orders other than a trial date are sought, the procedure for directions hearings and interlocutory applications must be followed.
Criminal Listing Conferences
These conferences will be held by an electronic audio communication unless the Judge otherwise directs. If any orders other than a trial date are sought, the procedure for directions hearings and interlocutory applications must be followed.
Arraignments
Arraignments will proceed in the ordinary way.
Applications for Permission to Appeal (Criminal)
The applications for permission to appeal in criminal matters will be heard on the papers and a date before the Court of Criminal Appeal will be arranged administratively. Written submissions of no longer than 20 pages (unless the prior permission of the presiding Judge has been obtained) must be provided electronically to the chambers of the presiding Judge by 4.30 pm three business days before the application is to be heard. The submissions should also address the estimated time required for the appeal if permission is given, on the basis that more than two hours will only be allocated if there is a good reason to do so.
Applications for Permission to Appeal (Civil - Single Judge)
As for criminal.
Applications for Permissions to Appeal (Civil - Full Court)
There will be no change.
Magistrates Appeals
Parties will be required to put in a full written submission and not merely an outline. The presiding Judge will fix a time for an oral hearing which will be abbreviated to reflect the fuller submissions now required. Any documentary material which might have been handed up as a hard copy during the oral hearing, must be transmitted to the chambers of the presiding Judge electronically by no later than 4.30 pm on the preceding working day.
Sentencing Hearings
Sentencing hearings will be heard in the ordinary way but legal practitioners are required to take all reasonable steps to minimise the length of the sentencing hearing. In particular, practitioners must provide factual summaries, chronologies, submissions on applicable statutes and common law principles, by no later than 4.30 pm on the preceding day.
Court of Criminal Appeal Hearings
The date of the hearing and the time for oral submissions will be decided by the permission Judge. Only in special circumstances will more than two hours be allowed for a hearing. Counsel are expected to have agreed a division of time between themselves before the matter is called on before the Court of Criminal Appeal. The Court will direct that the appeal will be by audio-visual link if a party to the appeal is in custody. Submissions for any different order should be made in the written submissions.
Full Court Appeal Hearings
They will be heard in the ordinary way. The Chief Justice will, when fixing a date, set a time for the hearing of the appeal. Only in special circumstances will more than two hours be allowed. The listing co-ordinator should be provided with a short memorandum in support of any application for a longer hearing.
Jury Trials
The Supreme court will continue to hold jury trials if they can be managed consistently with public health directions and advice. Jurors will not be included in a panel if they are physiologically vulnerable to the effects of flu viruses or especially anxious. The Court will also have regard to the concerns of parties, witnesses and victims. In order to ensure safe distancing between jurors, jurors will be allowed to sit both within and outside of the confines of the jury box by making provision either in the well of the court or the public gallery of the court room. Public access to the court room will necessarily be limited. The jury will retire to an adjacent court room for breaks during the day and for its deliberations. Exemptions will generally be granted to jurors who are genuinely anxious about Covid-19 infection or who are physiologically vulnerable to its affects.
Civil Trials
All current hearing dates will be maintained and new trials will continue to be set down. The Court will endeavour to ensure that they proceed in the ordinary way. The parties are asked to consider whether there are special practical difficulties in their trial proceeding and to inform the Court of any such difficulty as soon as possible. Parties will be required to provide electronic documents wherever it is reasonably practicable to do so. Counsel will be required to actively consider additional measures to expedite the hearing and to limit the hearing to those issues which are truly contested. Counsel should raise with the Judge if safe distancing practices and/or other public health practices have limited counsel’s capacity, or the capacity of his or her instructors, to properly prepare for the trial. The Judge may then, in his or her discretion, reduce the sitting hours or not sit on some days during the course of the trial, in order to allow legal practitioners the additional time required to properly prepare for the trial.
Admissions
Admissions ceremonies are cancelled until further notice. The Court will make orders admitting applicants who have been certified fit to practice by the Board of Examiners.
The Court will do so without counsel moving the admissions and in private. Arrangement may be made for the oath to be taken and the signing of the Roll by contacting Grant Ryan, Admissions Coordinator (grant.ryan@courts.sa.gov.au). The Court will consider holding recognition ceremonies when the risk of Covid-19 infection subsides.
The Honourable Chris Kourakis
Chief Justice of the Supreme Court of South Australia