The Supreme Court or the Chief Examiner may make an order (a ‘custody order’) requiring that a person who is in custody be brought before the Chief Examiner to give evidence at an examination.
A custody order is directed to the General Manager of the facility where the witness is held. The witness is served with a copy of the custody order.
Any documents served on the witness will not be left with them in custody. If the witness requests it, the documents may be provided to you, once you confirm that you act for them in relation to the examination.
For the most part, the examination of a witness who is in custody must proceed in the same way, and subject to the same requirements, as the examination of a person who is issued a witness summons.
When served with a copy of a custody order, your client may also be given a Notice of Confidentiality. This Notice requires them to keep confidential the fact that a custody order has been made, or any information relating to it.
Notices are most often given to protect the safety of a person, the fair trial of a person suspected of or charged with an offence, or an ongoing investigation.
If your client receives a Notice of Confidentiality, it is very important that they do not tell any person (apart from a legal representative) about the custody order or examination. It is an offence to do so.
A Notice of Confidentiality does not prevent your client from discussing the custody order with you to get advice or arrange representation at the examination. In those circumstances, you are also bound by the Notice of Confidentiality. It is an offence for you to further disclose the information, unless you have a reasonable excuse.
Reviewed 23 March 2021