By Paul Gregoire and Ugur Nedim
Recently appointed NSW Chief Justice Andrew Bell has issued a revised set of COVID protocols pertaining specifically to the NSW Supreme Court, and another set that distinctly deals with the running of criminal jury trials within the state’s highest court.
These updated protocols took effect on 4 April.
The onset of COVID-19 in March 2020 saw the operations of NSW courts take a distinct hit. In mid-March, all jury trials were suspended, and from the end of that same month, judge-alone trials were put on halt, along with a number of regular matters that would go before magistrates.
Some hearings continued if it was possible to conduct them via audio-visual link. And by mid-June that year, as cases were subsiding, certain restrictions started being lifted and it was thought courts would soon return to the way they’d formally been running.
However, as we all know, it wasn’t that simple because COVID variants have kept emerging.
The last set of COVID protocols, which took effect on 31 January this year, were released by former Chief Justice Tom Bathurst, and required all participants within courtroom proceedings to be fully vaccinated, to wear a mask and to continue to check-in using a QR code.
So, these new guidelines are the next step in an ongoing process of moving away from the Supreme Court shutdown within the new environment termed living with the virus. And perhaps rather than marking a gradual return to normality, they’re serving to develop a brand new way of operating.
Live hearings are back
Live hearings have returned to the NSW Supreme Court with up to four matters listed for each floor of the Queen’s Square building, which will include appeals and examinations. In-person hearings have also returned to the King Street, St James Road, Darlinghurst and Hospital Road complexes.
Unless notified otherwise, all parties should assume from now on that substantive hearings and contested matters, including bail applications, will be heard before a judge live within a courtroom. And the judicial officer will stagger the matters as much as possible.
If a lawyer or a client isn’t able to attend the court at the scheduled time, due having contracted COVID or any other health-related reasons, such as being a close contact, they should email the associate of the list judge or chief judge to arrange for the matter to proceed via audio-visual link.
Such an application should have the opposing side copied into the request and it must clearly state the reason why proceedings cannot continue in person.
And while live cases are back, certain proceedings will remain via audio-visual link until otherwise announced. These include matters relating to the Registrars’ List and uncontested matters from the Judge’s List. And Duty Judge matters will continue to be conducted via AVL until further notice.
Entering the Supreme Court
In terms of appearing in court, most COVID restrictions remain. Participants must be at least double vaccinated or have proof of a medical exemption, and it’s up to solicitors to obtain documented evidence as it’s a requirement to enter and without it entry will be denied.
Masks are to be worn in all public places throughout the courts. And everyone in the courtroom must wear one, except for the judge, any person speaking during proceedings or if someone has proof of a medical exemption.
QR check-ins are still be available but are no longer mandatory.
In terms of courtroom capacities, the one person per two square metre rule applies. Capacities of each room are being displayed at the entrance.
Although, this rule doesn’t apply to ceremonial sitting at the Banco Court, and neither the List courtroom, where hearings will be staggered.
Court proceedings will be open to the media and the public, as long as vaccination status requirements are met, and where possible, AV links to court proceedings will continue to be available online.
Criminal jury trials
In terms of conducting criminal trials health concerns will remain paramount. Participants who are feeling unwell must notify the court. And additional cleaning and hygiene facilities are currently operating at the Darlinghurst and King Street facilities.
A “trial bubble” is now established for each criminal case, with all participants required to be double vaxxed, except perhaps the accused, as well as anybody else who’s officially approved by the court not to be so.
Participants are now required to carry out rapid antigen tests on a regular basis, while lawyers and other parties who can’t attend due to COVID-related matters will be able to apply to participate via AV link.
Recent amendments to the Jury Regulation 2015 (NSW) have allowed for up to three additional jurors to be sought for cases that are likely to last for two weeks or more, with a view to dealing with conditions where a juror may have to pull out due to COVID contraction.
If a presiding judge considers it necessary, they can arrange with the legal representatives of both sides at the trial venue to discuss matters relating to the administering of provisions that are designed to keep possible COVID transmission situations from occurring during a trial.
Rapid antigen screening
Rapid antigen sites have been established close by each Supreme Court site. The process, which takes 15 minutes to turn up a result, will be administered via NSW Health guidelines. And the testing is said to enhance the other preventative measures such as vaccinations, masks and distancing.
Prior to empanelment, the Office of the Sheriff will oversee the testing of all potential jurors and those turning up a positive result will be advised to return home.
Further judges, staff, the defendant, corrections staff and any other trial participants will be required to be tested on the first day of proceedings.
Once the trial bubble is established, participants will be required to undergo rapid antigen testing every two days at the sites at the specific location. And those testing positive will be sent home to isolate for seven days, while the other participants must monitor their symptoms.
The trial bubble stipulations will apply to anyone else required for the purposes of the trial, and in the case of an interpreter or a witness who is unvaccinated, they may be able to attend via audio-visual link.
These protocols apply to all regional Supreme Court matters, and they will continue to apply until further notice.
The NSW Chief Justice’s documents also note that air filters in air conditioning systems have been upgraded or are continuing to be improved throughout the entire NSW Supreme Court system.