A trial commences for the purposes payment in terms of the fixed payments regulations when the first witness is sworn. The definitions of a trial, proof in mitigation and proof of a victim statement are prescribed in regulation 2(3).
These provisions allow for further fixed payments after the first 30 minutes for the first, second and subsequent days of a trial or a proof in mitigation. A “first day” of trial is defined by reference to the duration of the trial, not by reference to a calendar day. The schedule refers to ‘conducting a trial or proof in mitigation for the first day after the first 30 minutes’. So, for example, in the unusual event that you conduct a trial for ten minutes late in a court day and the proceedings are adjourned to the next day, the next morning, after a further 10 minutes (in this example) becomes the “first day”, not the “second day”.
The trial fee is only payable where you are “conducting a trial”. This is consistent with the previous fixed payment structure. The fee for “notional trial” days have now been removed to allow for an enhanced core fee to be paid. Accordingly, any days where you attend:
- an adjourned trial diet, during which no evidence is led, where there was no intention nor anticipation that evidence would be led, the only matter in consideration being the determination of the further procedure of the trial proceedings; or
- an adjourned trial diet, during which no evidence is led, where there was an intention and an anticipation that the trial would proceed through the continued leading of evidence.
must not be charged as a trial day.
The “conduct of a trial” will ordinarily be where you are leading evidence but it may also include where there is objections to evidence, written submissions or any other situation where there was something substantive which takes place.