Australia: Do I have to go to court in New South Wales during lockdown?

With Greater Sydney in lockdown, both the Local and District Courts are postponing cases and have issued new rules relating to attendances.

With Greater Sydney in extended lockdown, New South Wales Courts have implemented changes to court cases scheduled over the next few weeks..

In the District Court, trials scheduled to start on or before 27 August will be vacated for the courts below, meaning they will not commence on their listed dates and will need to be set down for some time thereafter.

In addition to this, lawyers are encouraged to notify the Court of:

• Sentencing hearings that require priority, particularly those involving defendants whose time on remand is approaching the period likely to be served on sentence; and
• Local Court appeals where the appellant has been sentenced to a custodial sentence.

The District Court has also advised that cases heard by way of audio-visual link will be given priority.

As for New South Wales Local Courts, the Chief Magistrate's Memorandum 19 has prescribed changes which apply to:

For these courts, procedural matters are being handled by email.

Many other matters are being handled by telephone or audio-visual link when technology is available and suits the type of proceedings.

Other important changes are listed below.

Matters listed for mention will be handled by the court electronically, including via email.

Participants may seek to appear in writing (by email), or by telephone or audio-visual link (AVL).

Defended hearings occur after a defendant pleads not guilty. It is when witnesses attend court, are examined and cross-examined, the parties make submissions and the magistrate determines whether the defendant is guilty or not guilty.

These will no longer be held until after at least Friday 27 August 2021.

Those whose cases are listed for a defended hearing will have their cases changed to a mention, and a new defended hearing date will be set on that day.

If this affects you, then you – or your lawyer on your behalf – should contact the court via email as soon as possible so a new date can be arranged.

Remember, each court has its own specific email address so you must contact the court where your matter has been scheduled.

That said, any defended hearings that do not require witnesses to attend may be able to proceed, if this is with the consent of all parties and administrative arrangements allow for them.

Matters listed for interlocutory (pre hearing) proceedings, submissions and/or decision may remain listed and can proceed wherever possible.

Wherever possible, matters listed for sentence – which is when a person pleads guilty and the magistrate determines the appropriate penalty – will proceed and participants are expected to appear.

If a participant is prevented from attending court, then it's important to contact the court to seek an alternative option, including

1. an appearance in writing;
2. attendance by alternate means (Telephone or Audio Visual Link); or
3. to have the proceedings adjourned

Contact must be made with the court no later than 3.00pm the day prior to the listing.

If a defendant is on bail and a sentence assessment report has been requested, the court will require the attendance of the defendant and his/her legal representative in person.

Small claims hearings will remain listed and wherever possible will proceed via telephone. All parties must provide statements and other requested information via email no later than three days prior to the hearing.

If parties object to the hearing being conducted via telephone they should notify the court as soon as possible and if hearings need to be adjourned, they will be on a date after 27 August.

Masks are now required in courts, and the new fine in NSW for not wearing a mask is $500, however you can remove your face covering in the following circumstance:

• The person is at work and the nature of the person's work means clear enunciation or visibility of the person's mouth is essential.
• A person working alone in an indoor area like an office (or chambers) a mask is not required, until another person enters the area.
• Exceptions permitted by the presiding magistrate.

Although it is not encouraged at this time, nothing prevents a physical appearance before the court, except by a defendant in custody.

More court updates will be published as they become available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.